From the earliest days of the United States, presidents have pushed the limits of their authority. Some of those moves were condemned at the time and celebrated later. Others reshaped the office of the presidency. Today, those questions are no longer abstract, from sweeping changes to how government operates to the use of military force abroad, including the recent U.S. invasion of Venezuela. We are once again confronting questions about the president's power. So who decides what a president can do and what powers will the next president inherit? Hi, everyone. I'm Lynn Tomen and Mrs. Three Takeaways. On Three Takeaways, I talk with some of the world's best thinkers, business leaders, writers, politicians, newsmakers, and scientists. Each episode ends with three key takeaways to help us understand the world and maybe even ourselves a little better. Today I'm excited to be with Jack Goldsmith. Jack is a Harvard Law School professor, co-founder of Law Fair and co-author of the Substack Executive Functions. He is the former head of the Office of Legal Council under President George W. Bush. That's the office responsible for telling the president what is and what is not legal. If anyone knows where the trip wires of the Constitution are buried, it's Jack. I'm looking forward to learning about presidential power and more specifically the president's power when it comes to changing the government, war, and whether the invasion of Venezuela was lawful. Welcome Jack and thanks so much for joining Three Takeaways today. Thank you, Lynn, for having me. It is my pleasure. Jack, you gave a great talk, the Walter Burns Constitutional Day lecture about great presidents and the fragility of judicial supremacy. Speaking across American history, why do so many of our greatest presidents end up pushing constitutional limits? They did so for a couple of reasons. One is that the office of the presidency is really undefined and Article 2 of the Constitution. It doesn't really have significant constraints on the presidency and the president's powers are phrased and open into terms. It turns out that the president is the prime mover in the system of separation of powers and courts are reactive, Congress is decentralized, presidents are unitary, so they end up taking the initiative to achieve political and constitutional goals in the country. They have political incentives to do so. They have since the beginning since they're largely responsible for the government. And presidents have been rewarded for acting aggressively and pushing constitutional limits. So all of these reasons explain why our most consequential presidents have been ones who tested constitutional limits. Can you give a few recent examples? FDR is a famous example for Uncle Roosevelt. He issued many, many, many more executive orders than President Trump has and Trump is far behind in second place to FDR's executive orders. Many of them were very controversial, taking the US off the gold standard, the bank holiday. FDR threatened the Supreme Court when it thought it might not ruin his favor in a case involving saboteurs and military commissions. He presided over the massive growth and transformation of the American bureaucracy. He tried to pack the court. From recent times, George W. Bush pushed the envelope on war powers, Barack Obama pushed the envelope on relying on statutory authorizations in areas like immigration and Obamacare, some of the things he did there. And of course, President Trump has pushed the envelope on many, many dimensions. Can you talk a little more about why the president is almost always the government's prime mover? The reason is because the separation of powers makes it hard for anything to happen. And Congress itself is decentralized. Its power is divided between two different houses. You can't do anything without lots of internal coordination. The courts themselves are reactive. They can only act when cases are brought to it. The president is, as the Supreme Court has said, a branch of government. The executive power is vested in the president. So the president can bark in order and then see that the order is carried out. The president can take initiative in the communications front in a way that Congress has a hard time doing so because it is decentralized. So it really has to do with the fact that the president is really the only person who can say something and then have the branch act and it's the branch with the sword, the power to enforce the power to act. Those are the reasons why the president has taken the lead. We often assume the Supreme Court is the final word. You use the term judicial supremacy. What does that idea really mean? Judicial supremacy actually means many different things. Most Americans, indeed, most lawyers think of the Supreme Court as having the final word on the meaning of the Constitution. That whatever the Supreme Court says the Constitution means is what it means and that everybody else has to bow down to that. That's the basic idea of judicial supremacy. This was actually a very controversial idea for most of American history. The idea was that yes, the courts have the final say on cases within their jurisdiction and when cases are brought before them, but that what the Supreme Court says about the meaning of the Constitution isn't necessarily in other circumstances binding on the other two branches, on the president or on the Congress. Who can, if they think they have within their authority, an article two and article one, they have to interpret the Constitution for themselves. That is theoretically true that each of the three branches has the authority to interpret the Constitution for themselves. In practice for almost all of American history, the court's decisions have been deferred to. But that is less of a constitutional requirement than it is a kind of political practice or norm based practice that really serves the interests of all three branches. But on occasions, the political branches and indeed presidents will stand up to or threaten the court in a way that leads the court sometimes to hedge, sometimes to fudge, sometimes to worry about its authority. Ultimately, the Supreme Court, all it can do is issue opinions. It can't enforce the opinions. It depends on the executive branch to do that. The court is often thought of as above politics, yet it's clearly aware of political realities. Why is the Supreme Court sensitive to political concerns and can you give a few historical examples? I want to try to be subtle about this. I don't think that the court is political in any, in the sense in which the political branches are political. It has a different rhetorical and logical structure to what it does. And the court is certainly aware of politics in this sense. The court's authority, in most instances, it's a court, it's authority to decide cases. Depends on the political branches. The court, as a general matter, there are some exceptions to this. But as a general matter, it only has the power to decide cases that the political branches, the Congress and the president say it can decide. And the Congress and the president have lots of authority to withdraw the court's power to decide cases. A couple of famous examples happened during the Jefferson presidency when Thomas Jefferson was president and John Marshall was chief justice. The famous Marbury versus Madison case, the case that at least in the Supreme Court clearly established the idea of judicial review, the idea that the courts could judge the constitutionality of statutes and executive actions. In that case, John Marshall wrote the opinion to actually duck the issue to avoid confronting Jefferson because there was a worry that Jefferson would defy the court. There was a huge clash between the Jeffersonians and the Federalists that were the residual power in the courts. And in that case, and in another case, called Stewart versus Laird, the Supreme Court ducked an important constitutional issue to avoid confronting the president because it worried that the president wouldn't enforce his judgments. And that idea has recurred throughout American history. Not a lot, it's an unusual circumstance, but it reveals the ultimate fragility of the court's judgments. And it's not just that Congress and the president control the jurisdiction of the courts, it's also the idea that the number of seats on the Supreme Court is under Congress's control. The number of seats can be expanded or contracted. And there are other threats and powers that the political branches have over the courts that are in the background that the courts are sensitive to. We've argued that each branch of government interprets the law for itself. What lawyers called departmentalism? What does that mean in practice? And why does that idea matter so much right now? When the president enforces the law or implements a program, the president has a duty to interpret the law for the executive branch. Most of the time, the president will follow the president's of the Supreme Court. Sometimes the president doesn't. President Trump and the birthright citizenship order issued an executive order that flies in the face of all Supreme Court presidents. He thinks that those presidents are wrong or distinguishable. He's making a bid for constitutional change. In this example, the court will ultimately resolve that issue, but that's an example where presidents can through interpretation can challenge old Supreme Court presidents. Just as it all the time as well, when they enact statute that defies Supreme Court presidents, this is one way that constitutional law changes. Roe versus Wade was overruled in the DOBS case because states and the executive branch did not like Roe versus Wade and pushed over rule it. Those are examples in the presidential context of departmentalism in some sense. It's a complicated story, much more complicated than one learns in civics class. We've described President Trump as having the ambitions of a reconstructive president. Can you briefly explain what that means and a few of the ways that he is trying to change the presidency? Some presidents have ambitions to change the constitutional order, to change our understanding of the way the constitution and especially the respective powers of the branches should be understood. We think of the constitution as this document that is set in stone forever and many people like to think of it that way. But in fact, the constitution, the real constitutional order is something that goes far beyond those words and that gets changed over time through a complicated and counter-mysterious process that presidents are largely often leading. That's what I meant when I said Trump has reconstructive ambitions. He seeks to change the constitutional order in some sense. The main tenets of his efforts to change the constitution are enhancing executive power on many, many dimensions. He is acting in ways that challenge lots of understandings about the American presidency. One main thing that he's challenging is all of the norms associated with the presidency. These are non-legal practices that have been very close to law in the sense that they've been followed by almost all presidents all of the time, at least in the last 60 years, since we've had the latest set of norm changes. Trump is disregarding all of those and trying to push out the full extent of the latent constitutional powers of the president. The main way, there are many ways, but the main way he's doing this is just trying to assert unitary control over the executive branch, claiming unprecedented powers to have fire and direct executive branch officials so that the president can completely control the executive branch. And it's also in doing that, making large claims of power vis-à-vis Congress. Jack, when you talk about the unitary executive, what is it? It's the idea that the president has vertical control over the actions of the executive branch because the executive power is vested in him alone. When you talk about unitary power over the executive branch, you're mostly talking about the independent bureaucracy, the alphabet soup of agencies, including the Department of Justice, the FBI, the CIA, SEC, the EPA, the IRS, and others, who ultimately controls these agencies? Let me draw a distinction. Some of the alphabet agencies, like the FTC, for example, report to be independent, which in this context means that Congress has placed restrictions on the president's power to fire the senior members of the agencies. But some of them don't report to be independent. The FBI, the CIA, they're not independent of the president. All of these agencies and departments fall within the executive branch. And there's been a distinction traditionally between the so-called independent agencies, which the president supposedly didn't have as much power over, and the other executive branch agencies were the president had full power. But just speaking in general terms, what's at stake here is whether Congress sought in some... In really most of these contexts, Congress sought to define the offices in these executive branch agencies to give them certain powers and certain constraints on powers and to constrain in some instances, as I said, the extent to which the president could control these entities. Who ultimately controls them? It really depends on the context. Trump is making a play to push out and expand presidential control over these entities. Ultimately, I believe it's going to depend on A. How much the Supreme Court goes along with that. We're in the middle of finding that out. I think the Supreme Court will go along with much of it, but not all of it. So the court has a role. And Congress too potentially has a role. Congress, even in the broad understanding of the unitary executive, still has a role to play in defining offices, defining the powers of the executive branch, defining what the executive branch can do. That power is latent, if not OTOs right now. But Congress does have a large role to play theoretically in defining who controls the executive branch. So in some, all three branches have a role to play. Trump is acting most aggressively now in trying to assert maximum control over these entities. So it's not clear where the president's authority over these agencies that are within the executive branch actually begins and ends. It's definitely not clear right now. It's up in the air. The Supreme Court's got a case this term. The Supreme Court through its interim orders, these temporary orders pending final resolution of a case, has made clear as it has in the last decade that it favors a broader conception of the unitary executive. And the Trump has been building on those presidents and pushing them. But the ultimate limits of that control, whether it extends to civil servants, for example, whether the president can, through constitutional means, fire members of the permanent bureaucracy, whether the president can direct, for example, administrative law judges inside the executive branch. The ultimate limits on this are subject still to what the court says, to how far Trump pushes it, and to what Congress does if anything in response. I would say the lines of control over the bureaucracy right now are more in flux than they have been in a while, moving in favor of the president to be sure. One of your most sobering points is the presidential power accrues. What one president claims the next one inherits. How have recent presidents expanded presidential power? And what does that mean for the future of the presidency? If we were plotting a graph of presidential power over time, there would be a generic rise in presidential power from Washington to Trump. This has happened in the domestic sphere. As the government domestically has grown broader and broader, the executive branch has grown broader, the presidency has grown broader. And it's happened in foreign affairs, especially war powers. It's happened for a whole bunch of reasons, but one thing that happens is one president asserts a power that courts sometimes push back, but usually go along. Congress sometimes pushes back, but usually acquiesces. Over time, these presidents accrue. And then we end up in a place far beyond where we began. And presidential power has accrued over both Republican as well as Democratic presidency, is that correct? Yes, that's true. And in different ways, Republican and Democratic presidents tend to emphasize different powers and to write different kinds of legal opinions. But yes, I would say that that's definitely true. We've been talking about presidential power in general. Now let's talk about war. Is the invasion of Venezuela lawful? And that's not an easy question to answer. It almost certainly, at least based on the information we have at the moment, violates the UN Charter, article 24 of which protects the territorial independence of every nation, prohibits the use of force and violation of another nation's independence, which is what the United States did here. They did so ostensibly on the basis of an arrest warrant for Maduro and his wife. They went in there, killed 40 people, and extracted him and took him out. It almost certainly violates international law, whether it violates domestic laws, or a complicated question. I believe that based on a whole long string of executive branch presidents and opinions that it would be easy for the Justice Department to justify it. That's because, in my view, the precedence for unilateral uses of power under domestic law have grown, extravagant, and had no practical limits. I'm not sure that the question of legality is the most important question. There are all sorts of political, strategic, international relations, questions about domestic politics, but that's my basic view about the law. Is it legal when presidents have bombed different countries under presidents Trump, Obama, and Biden? We've variously bombed Yemen, Somalia, Pakistan. There's two ways of looking at legality. Because the president had the constitutional authority to do these things and does it violate international law, the United States has a very capacious understanding of what international law permits. A lot of the world thinks that a lot of our bombings in other countries violate international law, and we have an extremely capacious view of self-defense, which is one justification for bombing under international law. As for domestic law, over hundreds of years presidents have been garnering more and more power to use lateral force. Congress has given the president a huge military, the president, and his lawyers have written dozens of legal opinions justifying ever-broader uses of force. So under executive branch law, these things are lawful. And whether it's consistent with the constitution, this may seem like a cop-out, but it's a very contested matter as to what the constitution actually requires in 2025 on these issues. And a president uses, or wants to use, military force. What role are Congress and the courts supposed to play, and what role are they playing in reality? The courts have never, ever played a robust role in the question about the president's power to use force in the first instance. They've always shot away from those questions under various legal theories, mainly what's called the political question doctrine. It basically says it's a matter for the Congress and the president to work out. That's just been the practice for it since the beginning, with tiny exceptions that aren't really relevant. Congress is supposed to have a robust role. Congress has the power to declare war. Congress is the entity that appropriates, that gives the president the army, that gives him the weapons. Congress is supposed to be intimately involved in the use of military force, but they have completely, as an institution, Congress has completely given away the store for a long time. And especially in the last 50, 60 years, but really going back before then, there was the war power resolution in 1973 during the Great Resurgence of Congress, in which Congress tried to reassert some authority over war powers, but it was an utter failure. It's been ignored or circumvented by presidents ever since, and it wasn't well drafted in the first place. But Congress is completely missing an action on this, and that's one of the reasons why presidents have basically been able to do what they want in the war field. They're very few constraints on what the president can do. Now Congress could change that. Congress can, through appropriations and through directives, limit the president's use of force abroad. Congress can deprive the president of weapons and the army. Congress has a lot of latent potential power to constrain the president anymore, which it is not exercised. If you want to know the reality of constraints on presidents' repower, it's politics. What the president wants to achieve and what the president thinks he can get away with, and it's what Congress will or won't do to constrain him. Those are the constraints on the presidency, but in terms of legal constraints within the executive branch, they're very few. That is so scary. It's scary, but it's not new. Jack, what are the three takeaways you'd like to leave the audience with today? My first takeaway is that our most consequential and important presidents have pushed constitutional limits. But I don't want to leave anyone to think that pushing constitutional limits by itself makes a great or important president. It doesn't. The second big idea is that the Supreme Court is not the way many people think the final word on constitutional meaning. In fact, presidents have a very important role through interpretation, through challenges, through bringing cases to the court, through challenging the court, that presidents, especially in transitional periods, have a very important role in devising constitutional meaning, largely through interactions with the court and sometimes with Congress. Then the third idea is that when we were discussing a moment ago that presidential power tends to accrue across administrations, it tends to build over time. Sometimes there's retrenchment, but the long-term trend is for presidential power to grow and grow. We're certainly seeing the most expansive claims of presidential power. We've seen basically ever in the aggregate. A lot of what Trump is doing, I would say most of what he's doing builds on presidents of past presidents. Thank you, Jack. This has been great. I learned so much from our conversation, and I also really enjoy your sub-stack executive functions. Thank you, Len, very much. I appreciate it. If you're enjoying the podcast, and I really hope you are, please review us on Apple Podcasts or Spotify or wherever you get your podcasts. It really helps get the word out. If you're interested, you can also sign up for the Three Takeaways newsletter at 3Takeaways.com, or you can also listen to previous episodes. You can also follow us on LinkedIn, X, Instagram, and Facebook. I'm Lynn Toman, and this is Three Takeaways. Thanks for listening.
