Can the President do that? – with Jack Goldsmith and Ilya Shapiro

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Follow the gist every weekday on YouTube wherever you get your podcasts. And tell them you might be right, thank you. - Congress is given away a lot of power to the president.

And the problem is to put back guardrails

and to constrain the president through legislation requires both houses of Congress and usually enough votes over right of veto. - This kind of pen and phone and tweet governance is not a good idea.

It's not effective either I should add. I mean, you live by the executive order. You die by the executive order. If you want durable change, you do have to legislate it. - Welcome to You Might Be Right,

a place for civil conversations about tough topics. Husted by former Tennessee governors, Phil Bredison, and Bill Haslam. I'm Marian Wanamaker, Dean of the Baker School at the University of Tennessee.

We're members of our producer circle, make this show possible. To learn more about our work, visit youmightvright.org. - Hello to our listeners and welcome to another episode of You Might Be Right.

I'm Phil Bredison, and today we're diving into a topic that really is at the forefront of current political debates, the power of the American presidency. That's good to be back with you, Bill. - Well, thanks, Phil.

“I think this is really one of the most important questions”

facing us today. You know, Congress has been in a deadlock.

The world affairs have never been more complex.

The crises come at us faster. Some folks have argued that this really requires a more active, powerful president than what was, then maybe even what our founders defined. - And I think, you know, the founders were very suspicious

of executive power. I mean, just from the history of their relationship with England and with the King of England. So I'm in, seem to go to great lengths in the Constitution to limit executive power.

But you're right, things have changed, and what is required to the executive today is very different. Isn't expansion of power like we're seeing now in appropriate response? - Yeah, I would add to, like I said, not just our history,

but that one of the brilliant things about our founders was that they recognized that men are an angels. And they need checks, the whole balance of powers that the Constitution defines was what's made our nation great. And if those checks on power go away,

that we're in a bad spot. - Well, let's dive into this topic. We're excited to have you join us on this journey and explore different perspectives. And we're not really looking for agreement here,

but we're really just to try to expand these issues and see what the issues might be. Hopefully, you know, both sides of the issue can learn from the other. - That's it, and it's particularly pertinent.

We've already had one major Supreme Court decision in presidential power regarding tariffs.

“I think there's several more coming today”

or coming soon around everything from birthright citizenship to some other issues. So the issue of what the president can do by himself

or herself has never been more important.

- Let's get out of it.

who's a professor at Harvard Law School,

former Assistant Attorney General

“in the Office of Legal Counsel at the Department of Justice.”

Jack previously served as special counsel to the Department of Defense and was written extensively on executive power and national security in the law of war. He's the author of the terror presidency

and power and constraint where he examines the modern presidency and the legal limits on executive authority. So Jack, welcome to our podcast. You might be right.

- Thank you, brevby, me. - Jack, when our founders designed article two of the US constitution, would they be surprised by what the US presidency looks like today? - They would be certainly enormously surprised

by what the presidency looks like today because they frankly couldn't have imagined how big the American state would have grown, how it would have changed. They couldn't have imagined what kind

of international relations the United States would be conducting. They couldn't have imagined the type of hedge among the United States became or modern military weapons. So they would be surprised by the entire state

“and the presidency at the head of the state, I think.”

- Do you think this change over the years? I mean, what's the driven head? Has it been declining influence of Congress? Has it been polarization? Has it because the world has changed, you say?

We're a much bigger, more consequential country now. - Well, what do you think is driven the segregation of power? - There's been a whole series of events all pushing in one direction. There's a pretty direct correlation

between the rise of the standing army over the last 250 years and the rising use of military power abroad as Congress has given the president a bigger and bigger military he's used it. There's been a pretty strong correlation

between the rise as I was saying of the administrative state and the rise of the presidential power. This has happened because presidents have irrigated power to themselves and because Congress is acquiesced.

- And Jack, it feels like I'm gonna pick up

on the second part of that.

Feels like to me because Congress has acquiesced because in my opinion, Congress is fairly evenly split to get something done and involves compromise and working with the other side.

Nobody really wants to do that anymore. So they just thrown up their hands and said we're gonna sit tight and hold to our position and because of that then the president's been left with a lot of free field to Roman and my right or wrong.

- I think that's basically right. I mean Congress has grown more polarized. The parties have grown more polarized. That means as you say that compromise across the aisles has become harder.

- It gives the president free a reign to Rome, I suppose, but it really gives the president a strong incentive to act unilaterally because the president is elected to get things done. Like all elected politicians are,

but he's uniquely responsible for his branch and he's seen as the head of the government. So I do think that the president has gotten lots of presidents going back many decades have become increasingly aggressive with unilateral action.

As Congress has gotten out of the business of major legislation. - So both six years and eight years ago it's thought about running for the United States Senate when I went up to Washington to visit with senators.

They all basically said, they were fairly discouraging saying, hey, it's really hard to do anything if you're here to try to address the deficit or address whatever problem you think it is,

probably not gonna happen. And you see countless senators leaving,

“even more representatives, is that, is it their own fault?”

Nothing's happening or is the system changed on them in such a way that you just can't be effective anymore? - There are a lot of things going on. (laughs) The system has definitely changed.

Running for reelection has become a full-time job. It is harder because of the way Congress has organized itself for individual members to have as much power as they used to.

It, as I said a second ago, has become more difficult

because of the nature of the parties and the nature of the people who are being elected to compromise and to find compromise across aisles. We've had 50, 50 elections for a long time. We've got lots of entrenched seats.

I mean, there are a lot of things pushing in the direction of Congress being less and less able to legislate. I should add, as you well know, that the system was set up to make it hard to legislate. - Right.

- So the framers wanted it to be hard to legislate and they put those hurdles in place and the hurdles have become higher and thicker over time. - We have a number of cases working

Which of these do you think are particularly consequential

and really have the potential to fundamentally change to the way things work? - Well, one of the most consequential happen last week in the Tariff decision, right, where the Supreme Court ruled by a vote of six to three

that President Trump lacked authority under the International Emergency Economic Powers Act to issue any tariffs and that's been the main statute to our basis. He's relied on that was a huge decision for a whole bunch of reasons, but it denied the President

authority under one of the broadest statutes Congress has given him in an emergency context and it's something the President cared a lot about. That was very consequential on a number of levels. There are several other decisions this term

that will be very consequential.

There's the birthright citizenship case.

There's the, and then there are a couple of decisions about the President's authority to fire executive officials which will help determine how much control the President has over the executive branch to be as a be Congress.

That's an especially important,

“those two cases are especially important”

for the topics we're talking about. - So you think if we looked back on this era 20 years from now that the President, that the Trump presidency, would be saying, I'm sure people have its positive negatives, but was important in terms of bringing forward

a bunch of the fault lines and clarifying a lot of these issues that had been somewhat, somewhat glossed over in terms of the President's power in the past. - I would say, I mean, it's very hard to know, but 20 years out as hard to know

'cause there could be a backlash to this presidency just as there was, for example, in the 1970s. I will agree with you though that President Trump has pushed executive power in places

that it's never been pushed and he's shown

that it can be pushed there, even though the courts have done an extraordinary job of checking him and what are my view his most blatantly illegal actions, but even so he's pushed the boundaries quite a lot and he's shown that executive power

can go further than had it been thought to be able to go before. - And the Democratic President, well, as the Democrats are increasingly talking about, they're going to use these extraordinary powers to their ends, at least, that's the most foreseeable event.

So it might look that way, but it also there could be a backlash.

“I think 20 years is too far out to predict.”

- The new Trump regime is taking a brick bat to norms the Constitution and the law, seemingly saying to the US justice system, make me. Will the courts hold? - What you're seeing right now is a fundamental disregard

of basic constitutional principles. - Join me, Dalia Lethwick, on Amicus, Slate's podcast about the courts and the law to hear from the lawyers, judges, advocates and analysts who have the answers.

Search Amicus, that's AMI/CUS, wherever you listen to podcasts, because legal knowledge is power. (upbeat music) - If you're like me and you enjoy podcasts that provide historical context to the day's news headlines,

then check out the long-standing podcast called, "My History can beat up your politics." Each episode hosts Bruce Carlson uses history to make sense of today's politics, covering different eras of American history

from the Reagan administration stance on foreign policy, to Grover Cleveland's warnings about tariffs, and how the fall of the Soviet Union set the stage for today's geopolitics. The show's been called the perfect antidote

to talking heads by the Columbia Journalism Review, so you know it's worth a listen. Find my history can beat up your politics on all podcast platforms. - And so, I mean some Republicans would say that now,

like, well, Obama or Biden started this by doing this from forgiving student data, whatever it would be, what's, I mean, the guardrail, the guardrail politics that we're seeing, even more dramatically I would argue now, and it's fair, the assumption that you make is fair to say

that when the Democrats next take over, they're gonna jerk it back as hard as they can to the left. What's the right role for the other two branches? Excuse me, the other two branches of government to prevent that from happening?

“So, I think the courts are doing as good”

as job as they possibly could, and that's not a popular opinion. People on the left think the courts are too conservative, and people on the right think they're too progressive, but I think on balance, not looking at every single case,

but looking at the aggregate cases, the courts have done an extraordinary job of checking this president and other presidents, and especially this president,

Congress hasn't done a thing. A lot of what President Trump is doing in terms of pushing the executive power is directly trampling on congressional prerogatives, in ways that it's hard for courts to protect.

So, for example, this administration is just trashing Congress's prerogative over the spending power, which is a core congressional power. Congress is essentially acquiesced in that. This president is not enforcing laws and ways

that go even beyond what press presidents have done directly undermining Congress. Congress's, if Congress won't stand up for its prerogatives, then there won't be that their courts can only impose so many guardrails.

It's really the-- - Let me stop here for a second.

Is that because, is that due to the president's boldness or hoodspo, whatever you want to call it?

“Or is it due to his power over the Republican base?”

Why, why has Congress acquiesced as much as they have? - There's no simple explanation. I mean, when you say Congress acquiesce, it's basically the Republican Party and Congress acquiescing. And, you know, they have--

I don't know why they've acquiesced. I think the basic answer is because the president has enormous control over them. I think the president has been very aggressive in punishing distal political disloyalty.

I think there's a natural tendency, obviously, for the party and Congress to support the president. But this Congress has been especially deferential on core congressional positives in ways that the framers didn't anticipate.

They thought that members of Congress would protect congressional progatives and not party progatives. And that's been a major change in American history. - So if the Democrats win one or both houses in the midterms, what's likely to happen to this expansion

of presidential powers? What's the battle going to look like? - That's a great question.

“I can only speculate, but I think it will let's just assume”

which appears to be the most likely. And this is obviously an assumption that the Democrats win the house, but not the Senate. But even if they win both houses,

it's basically going to be the same.

It's going to be hard for Trump to get any legislation through. And whatever branch of Congress that the Democrats control will go into very aggressive mode and investigating the presidency.

What will be different is they will go very hard against the president and the executive branch. There might be another impeachment. But what's going to be different and you've seen Democrats talking about this

is they're going to have a hard time investigating the president because the president was just Stonewall Congress and thrown into the courts. What they're going to do and what they're signaled they're going to do is to go after private entities.

The corporations and individuals that have been supportive of the president who won't have a defense to show up to Congress and answer into Congress.

“I think that's where the action is going to be.”

One last question filled and I promise I'll stop. But I realize that's probably how the political play out. But in terms of the expansion of presidential power, where and how will a Democrat Congress, even at one house or two houses,

fight back on the expansion of presidential power? Or is that primarily a court function? It's a Congress function, but one branch alone can do very little. One branch alone can do very little. Congress is given away a lot of power to the president

and the problem is to put back guardrails

and to constrain the president through legislation requires both houses of Congress and usually enough votes to override a veto. So it's very hard for Congress to claw back the powers that it's given away to the president.

Absent massive majorities or a huge loss in power by the president in his party. As happened, for example, in Watergate, when after the Nixon tapes case, the Republican support just collapsed and you had a whole wave of reform against the presidency

in the mid-70s. So if I were in Congress and saying as a Democrat, one who's interested in the functioning of the system is opposed to simply playing partisan politics. And I came to you and said, look, I'd like to be

one of the people who are trying to rebalance the system to back to the kind of checks and balances that the founders conceived of and has worked in a reasonably well over the years, including in certain amount of lifetime.

Where would you tell me, where are the buttons to push there? What are the first things that the Congress needs to do? - Well, the list is so long. The list is so long.

I don't know where to begin. A lot of what's going on is hard to fix, but even if they had super-rejardies, because a lot of it is the president based on article two power. I would say, let me just give two major examples

One is the kind of what I view as financial self-aggrandizement complex of interest in the executive branch right now. Those are things that Congress has allowed to be governed by norms that can be governed by law.

And I think should be governed by law basically.

The president has been excluded to date from conflict of interest rules.

“That's one, I think very important, Harriet,”

that I think is having a bigger impact to Washington than has appreciated. Another general area, and again, I could go on for hours about what Congress needs to do. Another general area is, when the president defies

congressional progatives by not spending appropriated monies and by impounding either statutory or by constitutional means. Congress has tools to fight back and punish the president. That's the way the separation of power is supposed to work.

It needs to exercise those tools. So I mean, sorry, what are those tools? Those tools include not giving them president the money that he wants for certain programs, not confirming presidential nominees, the people

that he wants to be confirmed. Those are the two main things, the spending power and the confirmation power. There are lots of little things. I mean, that the president still needs Congress for every year.

There's an appropriations bill or there should be every year.

“There's a national defense authorization act where the president”

has needs and Congress can exercise that leverage. If it could get its acts together, and that's the way the framers thought it was going to work. They thought that Congress would use its tools to push back against a president that was using the executive branch

tools to go too far. If we were to succeed in shrinking the power of the executive, what do we lose if that happens? It depends on what dimensions, what many dimensions you could strain the president.

I don't believe, for example, that conflict adventurous and reform, tax disclosures, reform, things like that would have any material impact on the presidency. War powers reform that can strain presidential uses a force of broad, could constrain the president

from doing something that the president thinks is important in an emergency or so that there's a trade off there between constraint and the need to act to protect the national interest in an extreme case. If the Constitution were formed or a Supreme Court

president's changed and the president's law enforcement discretion were narrowed, that might have an adverse impact. Of course, the president can abuse that power aggressively, but if the president doesn't have enough law enforcement power, law doesn't get enforced in order

suffers. That was one of the main reasons why they gave the president

broad executive power in the first place,

because the framers experience with the articles and confederation. So on most issues, there is a trade off between constraining the president and the situation where the president's going to think he needs those powers.

But in some, like conflict or interest reform, I don't think there is.

“And for example, spending reform, I think that Congress”

should be able to restrain the way the president spends money. That's a congressional prerogative. So you'd have to go through one by one. But I think there are a lot of reforms that could be done without endangering the need for a strong

presidency, but some would involve a trade off. Jack, you've been terrific. We appreciate you taking time in. So clearly expressing the view.

We always ask our guests one question that we borrowed

from Howard Baker who always, and always remember the other person, the other fellow, might be right. Can you think of a time in your past where you realized, like I didn't have it exactly right? The other side might have been right on this.

I think a lot of issues about which that's been through my life. I've changed my mind on things a lot. I'll just give one answer 20, some odd years ago, I thought that right after 9/11 that the president needed more article 2 power

in unilateral power to defeat the terrorists, then he actually did need. And for example, military commissions that were the president of Bush tried, I thought they were lawful.

I was looking at the World War II president. I thought this was a good tool. It turned out not to be a good tool, and it turned out that the World War II presidents were, they just weren't apt in 2002.

The world had changed too much. So that was an example where I was kind of being legalistic and not thinking about the reality of what military commissions would involve. So I went from being a proponent of those to a skeptic.

That's just one small example. There've been many like that. - Listen, thank you very much. This has been very illuminating. And we appreciate your time.

- Thank you for having me. - Thanks, Jack. Thanks so much. - Thank you. (upbeat music) ♪ I'm just a bill, yes, I'm only a bill ♪

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it's not who writes influences and kills bills.

It gets messy. I'm Scott Greenstone. - And I'm Libby Dankman on sound politics. We tell that story. The inside track on how policy gets made

in this Washington and the other one. And how it impacts you. - Listen, now on the KUW app or wherever you get your podcasts. - There is a lot, and I mean a lot.

Going on in the news, around our government and our laws. And there's one question that we all hear or think about all the time. Is this constitutional?

“If you don't remember all the civics classes”

you may have taken in school, you can get the answer to that question. And many others by listening to civics 101, the critically acclaimed podcast from New Hampshire Public Radio.

Civics 101 is an entertaining way to learn about how our government works or at least how it's supposed to work. And you'll hear a lot of surprising stories along the way. Like, Hedell and Mark Supreme Court decisions

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And even, why does the Senate have so much power? Civics 101 is a great companion to you might be right. Because it'll help you understand a bit more about what's going on. And it will make you a smarter citizen in the process.

So listen to civics 101, wherever you get your podcasts. And tell them you might be right to send you. Well, Phil, our second guest today is Ilya Shapiro, a senior fellow and director of constitutional studies at the Manhattan Institute.

Ilya is a constitutional scholar and commentator who writes frequently on the Supreme Court, separation of powers, and federalism. He previously served as executive director of the Georgetown Center for the Constitution

as author of Supreme Disorder, judicial nominations, and the politics of America's highest court. Ilya, welcome to you might be right. Good to be with you, I hope I am right. Glad to have you here.

But let me just start out with maybe a framing question for you.

“I think most of us look at the presidency today”

and see a different presidency than it seems to be envisioned in the Constitution. And I'd just like to know whether you see that as something which has been maybe stringed from the path to founder's set

or just a natural response to the different role we have in the world today in the complexity of society today. We've had a growth in executive and specifically presidential power for decades.

This is not a Trump phenomenon. It's not a modern phenomenon in the sense of the internet age or something like that. This has been going on going back to, I don't know, when, but certainly the progressive era of the New Deal, et cetera.

And it's partly because presidents have just grown more muscular, but it's partly because Congress has abdicated its responsibility. One of the things that the founders and James Madison couldn't foresee was that Congress wouldn't

jellously guard its powers, but rather respond to the incentive to pass the buck to say,

“OK, we don't want to make these hard calls”

because then people are going to get mad at us. So we'll delegate that power to the executive and then people can get upset with the labor department and the EPA, et cetera. As we're typing this, last night was the state

of the union address. And the thing that may be struck me the most about the whole almost two-hour talk was-- Longest ever. And what was--

the president didn't ask Congress for one thing. He didn't ask them to do one thing. But at the only time he really referred to him was saying, I can do terrorists, I don't need you. That feels to me, like an example of where we've--

the role of the executive has gotten far beyond the balance that the founders envisioned. That's a breakdown in our system. Absolutely. This kind of pen and phone and tweet--

--governance is not a good idea. It's not effective either I should add. I mean, you live by the executive order. You die by the executive order. If you want durable change, you do have to legislate.

And on some of these issues, probably not the tariff, but on a lot of these issues that he raised, these are 80, 20 issues. And so he should either be able to get that through Congress, or be able to run a political campaign against his ideological

opponents saying, look, they oppose this clear common sense thing. And that can be used then to build your party and have more success during midterm elections. And what have you-- but that's right.

Trump's not the first one to act as this-- people have gotten conditioned to seeing the president, whether you love him or you hate him,

as this all-powerful feeling.

And yeah, that's being. And that's not healthy for the body politic.

I guess I may be just ask you about this-- with President Trump is the assertions of power in places where you just wouldn't-- we wouldn't think it happens. I mean, both Bill and I are familiar

with the notion of executive orders, which, to me,

have always been things you do to command the executive

something in the executive department to do something rather as opposed to I'm a king issuing a written of whatever is that kind of approach to things like executive orders? Is Trump the first one to do that?

Have people in the past on that? They definitely are. Use that technique? Absolutely he did. That's right.

I mean, you don't have to just look at President Trump's immedious predecessors, Biden, Obama, Bush, who certainly used executive orders plenty. And by the way, it's not the number of executive orders. It's not counting them.

Sometimes they're these surveys, and there's charts. It's not the number. It's the significance, obviously.

And so much, so many of that flurry that we saw in the first day,

the first week, the first month of Trump 2.0, was, indeed, giving orders to the executive branch, reorganizing the executive branch, saying that we're getting rid of DI within the executive branch that we're no longer, when we press ideas in court, we're not using disparate impact.

That we're consolidating these operations. Doge was supposed to be about finding waste fraud and abuse within the executive branch and all of that.

“So you have to differentiate just number and seeming flurry”

of all the stuff that they had planned during the transition from things where this or any president get in trouble. And as you said, that's when they try to create new law as Obama did with immigration after saying that he was a president not a king and as Trump has done with certain things where

the court has been pushing back, not least with the tariff. Although the government has had the administration has had a good success overall with the Supreme Court, because again, most of the things that have been challenged are with reorganizing the executive branch.

So to give an example with the education department, the president cannot simply shutter the education department all told you need a legislation for that. But he surely can move at the administration of student loans from the education department to the treasury, for example.

And have a reduction in force. It's not that you need legislation every time the government wants to fire people. At what point does--

“you've started, I think, a great summary of why”

the executive branch has grown so much relative to the legislative. At what point is there the broad use of executive power does it cross into abuse of power?

How do we know when there's a lot of people that are always

thinking, oh, this is a constitutional crisis? What just happened? How do we know when we're getting close to that line? Whether it's this president or any other one? Well, all presidents have pushed the envelope.

And going back to the early days, there's arguments over the Louisiana purchase, whether that was within Thomas Jefferson's authority, the alien sedition acts. I mean, lots of things in the early, early days,

not to mention the civil war in our history. That's the give and take of the separation of powers. And courts have pushed back when there are arguments for abuse. I would actually argue that the biggest, the clearest example of an abuse by President Trump in this second term

is something that doesn't get discussed as much because it doesn't fit neatly into the red team, blue team, or maga resistance narratives. And that's with TikTok, Congress, which it rarely does these days by a super majority, passed a law requiring the divestiture

of TikTok from its Chinese parent company, or it wouldn't be allowed to operate. It was from national security reasons. Again, super majority, the Supreme Court, the fast-tracked challenge to this law on free speech and other grounds.

And the Supreme Court unanimously approved it. Now, President Biden had one day to do it. He didn't follow through on enforcing that law. And then President Trump several times,

“I think it was three, ultimately, sign 90-day extensions.”

The law does provide for 90-day pauses if there's an agreement in principle in place for the divestiture, and it just takes some time for the lawyers to paper that up. Well, there was no agreement in principle until very recently.

I think it was in November, December, that's something finally came together. And yet, for an entire year, almost President Trump

That is, I think, legally indefensible.

Into people who'd say, OK, fine. But that's about TikTok.

“It doesn't feel like it threatens the Constitution.”

What would your answer be? It's a violation of the separation of powers. It's a-- you want a clear example of not just arguing over things where there are many gray areas. Is the president failing in his duty to enforce

a migration law or does he have that discretion? Is the president allowed to send in the national guard to protect federal property or is that an improper use of federal power over local issues? reasonable lawyers reasonable people can disagree

on legal or policy grounds. There I think there's a scandal. There's a scandal. The lawyer coming from here. [LAUGHTER]

The-- it's when you look at what the president does. There are things that seem to be very much in those gray areas. And I guess one of the things that's kind of occurred to me is that there is that so much of the way our government works over time has had to do with just sort

of practices that are not encoded in law and lines that people don't cross in the like norms. Norms and norms and the like. And Trump has come along and obviously pushed very hard on those norms.

Does a powerful presidency sort of create the need

to establish brighter lines between what's presidential, what would the scope present shall power and what is not? Well, we're living in a populist moment about the left and the right, meaning that people

don't are frustrated for all sorts of reasons with the system as such. They want a quick change by a hero to defend their interests. And we go back and forth without building durable political coalitions.

Much of what Trump has done, as we've been discussing, is a difference of degree, not kind, from his predecessors. The greater difference, of course, is stylistically.

We've never had a president from the entertainment world,

if you will, someone who's first political office was the presidency, first campaign, was for the presidency, whose style is completely different than anything that they came before. And at a time of flux of rearrangements of the coalitions

that support the different parties, there's always tensions when those sorts of things happen. But there is a danger to say, well, look, there's all of this flux, there's all this uncertainty. We need to write down more rules to legalize all of these things.

“And despite being a lawyer, I think there”

can be problems with being overly legalistic, because some things are better left, either to the political process, to the kind of the given take of the play in the joints, if you will, that are necessarily there, to mix metaphors, to let off steam.

So that being said, you're obviously, like said, you're a constitutional scholar, you've devoted your life to understanding, explaining, arguing, the merits of the Constitution. And I'm guessing you'd say it's one of the things

that is made our country special. I think you'd agree with that. So I mean, I was born in the Soviet Union, and we immigrated to Canada, actually. I grew up north of the border.

And very early on, I was precocious and realized that I preferred life, liberty, and pursuit of happiness to peace, order, and good government. And so had to immigrate again. And so these things are very important to me, indeed.

So that being said, everybody's all, like I said, the term constitutional crisis is thrown around a lot. What truly concerns you about protecting the Constitution and it being the guiding document for our country? What at the end of the day, when you lose sleep

“over something related to the Constitution, what is it?”

- Structure matters. It's as Justice Scalia used to say, any ten-pot dictatorship can have a bill of rights. But what makes America unique is this system of the separation of powers both horizontally

among the branches and vertically, the dual sovereign between the federal government

As Madison wrote, my favorite federalist paper, number 51,

“if men were angels, then we'd be in Utopia,”

and no government would be necessary. And if the government were angelic, then who cares about checks and balances, but we live in the real world. And it's fallen humanity all the way down. And so we need to oblige the government to check itself.

You mentioned constitutional crisis. I don't think we're anywhere near that. That's generally thought of as a problem in governmental operations or conflict between branches of power that the country's law,

the country's foundational laws, unable to resolve. The Constitution fails or has perceived as approaching failure to give guidance to political actors. We had things that sort of approached that,

you know, political instability or political actors contesting each other's legitimacy, as early as the 1796 election between atoms and Jefferson or the following election, when Jefferson and his running mate Aaron Burr

“got the same number of electoral college votes,”

causing a constitutional amendment. And then we had kind of open questions. It was unclear when William Henry Harrison died just a month into his presidency, whether John Tyler actually succeeded him

or would be an acting president. But he took the oath of office and sort of settled that matter. Lawyers call that liquidation kind of, we see in practice who had the answer to the question.

But there's not been governmental paralysis or collapse, civil war. You know, there's the guardrails are holding. There's courts that are pushing, you know, hither and yon.

The president has never, this president has never said,

I'm just gonna, you know, as Andrew Jackson, never actually said this, but his kind of attitude was, you know, the Supreme Court's made its decision, let it enforce it.

I'm not gonna, I'm not gonna follow it. So even when there's stark policy disputes whether over the travel ban early in Trump 1.0, whether now over birthright citizenship, that is playing itself out in the courts.

And it's not that we have, you know, rival factions or parts of the country following the president, others not recognizing his authority or or something like that or the, you know, we don't have a, we have a change in the constitutional vibe

if you will in the political culture. But we don't have, you know, something approaching the Supreme Court or even those, you know, Jacksonian sort of circumstances. - I was gonna just ask you, as we're coming to a close

of our time here, we, this podcast is called, you might be right and the genesis of that was a Howard Baker center of my state. Was well known as both, I mean, certainly both the partisan but also someone who understood the need to compromise

and he said, you know, just remember,

always remember the other fellow might be right.

Kind of have a question for you just personally and that is, can you think of a time you can share with our listeners where you had some point of view of something and maybe some, you know, some collision with or conversed

with somebody who had a very different view and it's up changing your mind and you say, you know,

“I think the other fellow was right on this one.”

- Well, every time I disagree with my wife, I think that ends up happening, but, you know, more often, I think my mind is changed when certain events prove me wrong. I was very concerned about the election of President Trump

in 2016, for example. But then he governed in many ways that assuaged a lot of those concerns so I was more comfortable going on. An issue that's kind of flared up lately

is antisemitism on the right. I used to poo-poo it. I think, you know, some random, you know, neo-Nazi Wahoo's in the middle of Idaho. It's, you know, with no cultural power whatsoever

that all of the antisemitism is now on the left, but clearly in recent months, we've seen that there's this huge underground surge, you know, now driven by leading figures like Tucker Carlson and other influencers, representing and further in flaming

antisemitism and illiberalism because antisemitism is sort of the canary and the coal mine of all sorts of underlying pathologies wherever it flares up in world history. That is, you know, something to contend with.

Not on campus so much because campuses are controlled by the left in our society writ large and it's a moving target, but that's something that I'm much more worried about than I was a year ago. - Well, you've been a terrific guest.

Thank you. You've been thoughtful and clear in how you communicated and we really appreciate not just what you brought

Thanks so much for being our guest.

- Pleasure, pleasure, maybe. - My pleasure and all good luck with this podcast

“which as I said earlier, I think is just a great idea”

and I do hope that you keep growing in listeners and viewers. I'm happy to help in anyway I came with that. - Thanks. - Thanks, Elia.

- I think we heard, I think I'm in a very thoughtful presentation of two very different sides of this issue there today. - Well, you know, I think, you know, except we share the background of him been mayor

and governor and feeling like, hey, there's a reason you need the executive needs to have clear authority and power to execute the purposes of government and as we said and with the presidency unlike our jobs,

you also have the, you know, the US on the international front that there needs to be one leader

you can't have Congress do it.

But I think all of us also are a little concerned that the presidential power has grown in the way it has when Elia Shapiro, I thought he had a great summary of why it's happened two things. Number one, Congress is afraid to make hard decisions

and so they won't take on tough issues so the president says, okay, if you won't and I'll just do it by executive order, that means it won't last. And then secondly, we have a president

who's not afraid to test boundaries and it's part of who he is. - Yeah, well, this issue of the Congress, not wanting to do hard decisions, I mean, that's something which,

I mean, you probably have the same experience but it wasn't incredibly frustrating in a meter at the time that I was governor because there were important things. I dealt a lot with Medicaid.

There were important issues in Medicaid that really were political questions that the Congress should have addressed and they just in writing the legislation totally plastered up with that.

“I think one of our guests at one point said,”

yeah, that's because decisions like that, they make somebody mad so why not let it be your credit? - Right. There's no question.

So let me, the other distinction. There are, listen, as we said, a lot of the issues that we talked about here because it's part of who president Trump is to push boundaries and he's Andrew Jackson said,

or Jack said about himself, I was built for a storm and calm does not suit me and I think it's fair to say calm doesn't suit President Trump and he's wanting to make things happen, doing some things that makes a lot of people

in the country uncomfortable, like, whoa, I'm not certain that's the president, has the authority to do that. But should we be comforted by the fact that today, the center has held,

the court has retained its power, nobody has, you know, nobody's questioned it, well, I don't care what they say, we're gonna do what I want.

“Should we, should we as Americans be comforted by that?”

- I, I think there's some comfort in that. Although there are things, you know, I mean, I still don't really believe that the, that is impossible or inappropriate for the Congress to set up agencies

that are relatively independent of the projects to deal with, you know, some of the more technical aspects of running, you know, this huge complex development government that we have. So there are things like that that do, you know,

that do concern me. - Let me ask this and then we'll wrap up, what's the answer here? Because I do think, listen, you know, present, Trump is now, gets all the tension,

like I said, because he's obviously strong personality and he's an office now, but he's not the first, I mean, you know, we prior presidents have tried to do a lot of things by executive authority that they probably shouldn't have,

what's the answer to get Congress to step up and play its role? - Well, I don't know, I mean, I think, I mean, just, same thing the same thing then, when, when is you mentioned earlier, you know,

we get to stay in the United States and ask Congress for exactly nothing, which I can't even remember when that's happened before. - Right. - At some point, you gotta get tired of being humiliated

and have to stay at a step forward.

- I think that, I mean, people always ask like,

what concerns you about what's going on in the country and one of those is that people are living, leaving Congress and drugs. - Right. - And when, you know, Bob Gorker from Tennessee,

you know, retired from the Senate several years ago, he said, I'm just not sure this is the way and a thoughtful adult should spend their life because it's, you know, it's kind of a position, it's turned into a position of no consequence

the way it's worked. So I think it has to begin there with leaders in Congress step it up and say, we have to make this a place where people feel like I am doing something meaningful and impactful and I'm actually engaged with the issue.

- Yeah, I have to say, I mean, one of the, I mean, I mean, I mean, I'm a Democrat, obviously, and one of the mistakes that I think Obama made when he came into office, I mean, he came in with enormous kind of standing

and ability to do things. And that was a great opportunity to, you know, to really re-establish the, I think a useful

And, you know, by not letting them, you know, do the usual, the usual kinds of things. I remember some of those first bills of the Congress

as it always does, you know, it's stuck the kitchen sink

and the bathroom sink and everything else into the bill. When they were trying to address some very specific problems, I mean, I was kind of hoping to say, you know, just put that stuff aside. Let's just get into the core of this thing.

Let's use a kind of regular process in here and have the Congress do its job. So I actually think, I actually think it's going to take either leadership in Congress or a president who wants to do that to really start moving his toward rectifying it.

“- I think that's an, I'll come back to my own party”

since you talked about yours. When I was running for office in 2010, it was sort of the heyday of the Tea Party. - Yeah. - And the folks that were strong adherent to the Tea Party

always, a lot of them had a, well, many constitutions,

they kept in their shirt pocket and they had always said, they pulled out as they have you read this. And it times always thought they were being a little dramatic. But now I feel like, for my party, the Constitution, which was so important

what we talked about everywhere, seems to have taken a little bit of a back seat. And as Elie Shapiro, one of our guests said, it really is an amazing document that has helped make this country different than everyone else.

And, you know, James, the point he brought about Madison,

saying, hey, if we were all angels, we wouldn't need a government. And we wouldn't, if the government was great, it wouldn't need checks and balances. But we know that's not true.

And so we need the checks and balances. And I'm hoping the folks on my side will have a growing appreciation.

“- Well, but I think, I think both parties are guilty”

of, I'm standing on these very strong principles unless it's contrary to what I want to get done today. - Or in case of who I've elected, in case it's different from what they say. And so I think there's no one who's without fault of this.

But I thought this was a thoughtful, a thoughtful presentation of two very different sides. And I hope our listeners will take something relevant. - Great. - Thanks again.

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And please help spread the word by sharing, rating, and reviewing the show. Thank you, Governor's Medicine and Haslam, for hosting these conversations. You might be right, is brought to you by the Baker School

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