Jack Goldsmith, a Harvard Law professor and former Office of Legal Counsel member under George W. Bush, dives into the complexities of executive power. He discusses the historical expansion of the presidency, scrutinizing its roots and recent aggressive interpretations. The conversation navigates the relationship between the executive branch and Congress, the implications of the unitary executive theory, and the dual role of the take care clause in law enforcement. Goldsmith offers insights into how recent administrations have recalibrated executive authority amidst ongoing judicial challenges.
The podcast explores the historical expansion of executive power, emphasizing a significant shift towards greater autonomy for the presidency since the Constitution's inception.
It highlights the crucial role of the judiciary in counterbalancing executive authority, particularly amid aggressive assertions of power by the Trump administration.
Deep dives
Historical Expansion of Executive Power
The discussion highlights the historical context of executive power in the United States, tracing its expansion since the Constitution's founding. The framers created the presidency as an independent branch with broad powers, although they may not have fully anticipated its evolution. Over time, especially in the last 25 years, there has been a significant acceleration in the interpretation and assertion of executive authority. Various administrations, particularly under George W. Bush, have aggressively expanded executive powers in ways that often disregard congressional statutes, contributing to a trend of increased executive dominance in governance.
The Jural Framework of Executive Authority
The framework established by Justice Jackson in the Youngstown Steel case effectively categorizes executive power based on the relationship between the president's actions and congressional directives. According to Jackson, the executive is at its peak when acting in line with congressional intent and at its lowest when opposing it. However, the interpretation of this relationship is often contested, with the Supreme Court's recent rulings suggesting that the president can operate independently of congressional authority. This uncertainty raises questions about the dynamic tension between the branches of government and the effective checks on presidential power.
The Unit of Accountability in Domestic Affairs
In examining executive power, a distinction is made between foreign and domestic affairs, where traditionally, the president enjoys greater latitude abroad. Nevertheless, recent cases, like Trump v. United States, illustrate that the president is asserting expansive powers in domestic contexts, particularly regarding the Justice Department. The conversation indicates that a unitary executive theory is being aggressively pursued, with Trump administration policies asserting broad control over executive agencies and challenging the independence of institutions like the Department of Justice. This development presents a significant shift in how executive power is viewed and practiced in domestic governance.
Implications of Legal Compliance and Checks
The current state of executive action raises constitutional concerns about the extent of legal compliance within the Trump administration. Fragmented checks from Congress and within the executive branch highlight the potential for unchecked power, with internal constraints being weakened. The role of the judiciary is underscored as a critical counterbalance, as the courts may play a pivotal role in holding executive power accountable, particularly regarding adherence to judicial rulings. The unpredictable balance of powers indicates that the courts could face challenges in maintaining legal boundaries amidst aggressive assertions of executive authority.
As outside groups continuously file lawsuits to slow down the Trump administration’s agenda, many Americans are wondering: how much power does the president rightfully have?
Jack Goldsmith, Harvard Law professor and co-author of the Executive Functions Substack, joins Oren to break down the judicial landscape less than two months into the second Trump administration. They discuss the modern presidency and constitutionalism, limits on executive authority, and everything from impoundment to more aggressive theories of the unitary executive.
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