Includes the manner in which subsidized payments on the national debt. Congress is appropriation law is standing conflict with the debt ceiling log which caps the amount of debt the federal government can go at any one particular time. Since enacting a statute in 1917 congress has routinely prescribed budgets mandating spending that so plainly exceeds projected revenues that they will inevitably require the treasury to borrow funds in excess of the debt ceiling to make good on our obligations. And for Decades Congress has improved approved home virtually every time we have crept close to the Borrowing Limit and all in all this is a very good thing because it is the largest borrow in the world a default by the United States government would in all likelihood trigger a worldwide economic depression. All that changed in the summer of 2011 when the republican majority elected elected to optimize the debt ceiling. And use the threat of the federal default in the resulting and the resulting calamities that would result to obstruct. And despite rep it is quite likely this summer when the federal, and the available proceeds treasury funds dwindle we may face another debt ceiling standoff. Borrow money or unthinkably raise taxes. They posit that these options would ha a further consequence. Whatever option he chooses will be in direct contradiction to a statute andption he chooses will be in direct contradiction to a statute and would fail to execute a duly enacted law. I attempt to analyze his options under the test prescribed by Justice Jackson. Now, i am sure most people are familiar. But it involved president trumans unilateral seizure of the American Steel industry. And Justice Jackson offered his concurring opinion. For questionable cases of exercise of president ial power. They fluctuate. He offered his famous three zone template. Now, the president acts pursuant to explicit or implicit congressional authorization. The president s powers are at there apex. All the powers of article two. In the second so we deal with situations where congress has chosen to remain silent. The distribution of power. In this congressional indifference or acquiescence and may be seen to invite independent measures of president ial responsibility. The motive, analysis it often depends upon the imperatives of events. Zone three involves situations where the pres. President acts in the face of implicit rejection. The power it can only be sustained if it falls within an exclusive exercise of power. Enacting what later became the tafthartley act. Considered a version that would have authorized the president to seize Domestic Industries but the version ultimately enacted permitted to such language. Further because further, because seizing American Industries cannot be regarded as a preclusive power the seizure was constitutionally innocent. If so what does it yanks down steel tell us . At first blush it seems like the ptions fallen herself. The unilateral cancellation of programs all explicitly prohibited by statute and certainly the powers to tax and spend our exclusive legislative powers. Youre in town and its progeny teachers when multiple statutes bear upon the president s powers the scope of authority cannot be deemed by looking at a single law but must require careful consideration. I contend that viewed collectively the situation faced by the president would not fall within the three zones because each of the three zones contemplate coherent congressional instructions. It can implicitly create the mediate the exercise of power. The debt ceiling standoff the president will be paradoxically faced with instructions. You must read these programs it would be absolutely impossible to comply. The president must choose allowed to break in order to save the other two two, and i would suggest this requires expensive txonomy to include a fourth zone of power to deal with situations that have not happened before. So what standards should apply in this . Justice jackson himself acknowledged congressional acquiescence invites independent measures of president ial responsibility. This line of reasoning only applies in the zone of twilight. Such a command comes without congressional discretion. When congress has issued inconsistent contradictory commands and has steadfastly refused to clarify or prioritize which command should precede the other. In my view that act acquiescence invites independent measures on president ial responsibility. Constitutionally which commands mt be sacrificed. Basically they assert the president is faced with this choice. Must choose one of the three laws to sacrifice. I do not arise easily and argue that this sort of abdication is an existential threat to the longterm stability of our democracy. I wish i had more time to talk about it. And as the maxim goes anything follows from a contradiction. Having said that, i am not here suggesting the president should unilaterally raise taxes. I think that would be an act of political suicide. The application has authorized that extreme action. To to conclude i will leave you with words of warning. Thinking of the crisis faced in the korean war, the power to legislate for emergencies belongs in the hands of congress. By engaging in standoffs congress has allowed core legislative power to slip from its grasp by forcing the president to confront an emergency of congress is on creation. Thank you. Back next we have Professor William marshall. Thank you for coming out today. I actually thought it would be canceled. I read in the paper that Mitch Mcconnell has decided he wants to work with the president. So our era of congressional dysfunction is over. We can get together and move on. The interesting thing about president ial power is peoples ideas evolve and change. With president ial power you can pick the exact date where he changes. Inauguration day a lot of people loved president ial power and a lot of people really hated it. And that is the kind of background we have to deal with when thinking about pres. Obamas exercise of unilateral executive action. I happen to support Immigration Reform strongly and a lot of the other substantive goals, but imagine a republican president who cannot get through a repeal of a Capital Gains tax and decides unilaterally to not enforce it. He makes the announcement that no one has to file a scheduled the end dont have to declare money from Capital Gains. Would that be constitutional . We have so many other tax issues to enforce. So lets think about Something Like that as background when we talk about it unilateral president ial action and the question of a part of this panel congressional dysfunction. What is congressional dysfunction can . What does that mean . Maybe i am thinking back to seventh grade, but i thought the design of the constitution was to create dysfunction, checks on things happening too quickly, friction, quick friction, the things should not happen to easily or quickly. If we if we take a look at history, from the very First Congress opposition was immediately raised. Martin van burens administration burens administration was met with folks who started off by saying we need to do everyting that we can to make this presidency fail. This particular congress is one of the most irresponsible and history. Mitch mcconnell starts off by saying he we will do everything imaginable to make sure the president ial agenda was not passed. Lets come to compromise when there was no strategy. But all of that as background does that Mean Congress did anything wrong . There is a reason why an out of the Administration Party would want to do everything to obstruct the party in power because they no the party in power will build on successes for the next election whether it is a reelection or to increase power, Congressional Authority or elect a new president. This is this is called the permanent campaign, the phenomenon we face are where each party consistently looks forward to the next election. The idea that an out of power party we will do everything that they can take on some breakdown should not be unexpected. Inappropriate . Why should that party try to help the Current Party retain power . Finally, there is another particular example out of place to suggest congress is trying to block an agenda because i thought legislation was supposedly the province of the Congress First and not the president. There is a reversal. That that is a little bit of some of the reasons i am skeptical as to this notion that their can even be something called congressional dysfunction. Acting somehow unconstitutionally when it does not enact or follow through. There are areas i would support giving the president power. Therefore when the president is elected news that he is invested with a power regional officers do not have david pozen has a brilliant article out saying that presidency should have the power of selfhelp. The president should be able to step in and transport congress is doing to be able to accomplish his agenda. In the short moments i have left, do we we want to add to president ial power . The president has already amassed five crazy power by a number of circumstances that is just a Natural Evolution of the office. That has invested the power. The second is media. The focus is often on the white house because it is easier to take a look at one person as the embellishment of the nation as a whole. More more information at his or her disposal than the congress. Enormous resources of the administrative state. The congress cannot even put other kind of limits on the president s ability to manage the estates for the political purposes. I will come back to this. There is a oneway ratchet. Unless you deal with president ial power subject to judicial review that is not often the case. Often it depends upon what previous president s have done which just keeps on increasing. Whether we need need to create and test a presidency with more power than it has seems to be pretty controversial. What are the harms of suggesting that the president has extraordinary power . To say that when Congress Acts to obstruct the president should have additional power to overcome that. That is what it is all about. Paul wellstone was going to do everything that he could before he died in a plane crash to stop the iraqi war. That would have been congressional dysfunction or would have led to it that he succeeded. Does that make it a improper, or is it exactly think we want to congress to do . Second the interesting thing about congressional dysfunction and using that as a reason to advance president ial power actually encourages the president to shortcircuit the political system. Instead of going into all of the places that the states with which there is opposition that he can just say i need to take these doors on my own. Think about the predicaments. If Congress Opposes to strongly he can say at this. I can now just circumvent their opposition or if congress says, okay, i will give you some of what you want to do what i want to curb your enforcement power or authority the president can sign the law subject to a signing statement. This is a centering of continued power into the presidency that we should all be concerned about. We have we have a choice. One is between a dysfunctional federal government and the second is increased centralized power. I think the structure of the constitution suggested that we should live with some of the former, the dysfunction in order to prevent too much power. Power. Let me go back to my beginning and talk about senator mcconnell and speaker bader. Times change. Adjusting constitutional law to deal with four or six years of history is not necessarily the best way to construct a constitutional law. Thank you. [applauding] we have thousands of superman and associate professor at fort University School of law. I will switch it up here. Thank you. I will be talking about the president s recently enacted programs. But. But i will be talking about it from a slightly different frame. Unlike bill and chad i will i will not be talking about the horizontal separation of powers. I will not be thinking about a vertical separation of powers between the state and federal government the kind of things that, when we talk about state and local Immigration Enforcement policies. I will try a different frame. Think about vertical agency. Not only from the top the pres. And cabinet officials but from the bottom and the middle and that these relationships provide an important set of checks and balances within the agency can also provide normative support for maybe not all but certainly some of the types of president ial actions we are talking about on this panel today. There are two core features of this kind of vertical agency relationships, what i call experimentation. Not discretion at the top, the kind of discretion that lowerlevel officials with the cbp Committee Executive office of immigration review, a day today enforcement. They do that. But instituting removal out of respect for the harms that the protection would cause to a particular individual where equities are especially strong and can do so for reasons that would eventually become policy bases across the board in and of themselves for categories of individuals. Enforcement decisions are made with policy rationales in mind. When this happens time after time those policy choices can begin to percolate within the agency and later become reflected in the kind of acrosstheboard directive we are talking about today in a number of different kind of ways. I will talk about of one or two. The first involves a situation that was space bar numerous binational samesex couples in which you have a a us citizen and Foreign National in a samesex relationship with a wornout eligible for traditional familybased family based immigration benefits, kind that many routinely use. And the reason for this is the numerous states that do not reflect the rights of gay and lesbian couples to marry but for many years the issue of Section Three of the defense of marriage act. Tiffany numerous couples from being able to use the ordinary adjustment process. The position of the Obama Administration for many years while it was not defending the constitutionality was to do nothing. You can think of this as a horizontal issue. We will embarrass the Obama Administration. These couples as we see in the context of dreamers with respect to talk about. That would be a horizontal way of thinking about it. The vertical dimension you try to persuade individual officers to exercise favorable discretion. In removal cases you try to get an immigration judge to close or get a long continuance or maybe get a dhs attorney to drop the preceding or go to a us cia as to prevent a removal proceeding. This actually worked. Lawyers can do this where government trial attorneys agreed to exercise discretion by consenting to administrative disclosure. Us benefit administrators agreed to defer action in cases in which the Foreign National partner was not even in removal proceedings that. Immigration judges willing to do the same. Of one piece at a a time and slow going. While the larger lawsuits or still in their briefing we were beginning to see a kind of culture time time after time administrative commonlaw decisionmaking among agency bureaucrats. Eventually after enough cases have been decided we saw a directive directing lowerlevel officers to grant prosecutorial discretions longterm samesex committed couples. That is the first feature. There are other examples of this as well. First i want to talk about the second feature, the separated and overlapping jurisdictions among the subunits of the executive branch. A lot of jurisdictional overlap. A Foreign National may be caught up in a issue that you may not be able to get solved by one agency. These are the kinds of internal checks and balances i am interested in. Exercising a form of oversight. We saw this because often times is a dhs attorney was unwilling the immigration judge would agree to it. Another example as to do with him to thesis in which the department of state and the legacy both share jurisdiction over interpreting the actual requirements developing interpretations and told one went out. Anotr example has to do with mandatory Detention Program which light level officers refuse to comply with the idea should mandatorily comply. These two features, positive redundancies within the agency helps us to see the change not just from the top but from the bottom as well and helps contextualize and provide normative support for some of the kind of broader prosecutorial discretion programs we are talking about today. President ial president ial action is not about starting from scratch but rather trying to make policy that reflects what is already a longterm Agency Practice administrative commonlaw. This rectifies inconsistent behavior among various line officers. Dot treat like cases and like ways. Replacing an absent judicial review because these enforcement provisions. Often different from the conventional story administrative constitutional style. The literature is the president as a designer in chief. Empowering empowering those agencies to take on or different and greater action particular kind of lowerlevel agency discretionary power is hard to do that because it was not reported. Its often the attorneys on the ground to have the most amount of information. I am not saying the horizontal approach about the limits of president ial power and the fit between the two is not the right starting. , but i dont think it is the only frame. It is the interplay that can bring this important additional lens to the discussion to complement the frames we use. Thank you. [applauding] thank you, professor. What i would like to do is open this session to questions and answers. They have given us rich food for thought and points of disagreement. I would start by posing one or t