Survey from Neo Babylonians to Persians

WEBVTT
Kind: captions
Language: en

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- [Narrator] Let's now continue
with our super fast journey

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through history.

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And one thing I want to point out,

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because I already touched
on it in the previous video,

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is while we talk about
this ancient history,

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I'm also referring to some
stories from the Old Testament.

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So let's call that religion.

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Now, the reason why
I'm doing it is because

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religion is such a big
part of our modern culture,

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it's clearly, especially
the Old Testament,

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is the basis of three major
world religions today,

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and so it can help us hopefully
create a little bit more

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of a narrative in our head on
some of these ancient events,

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because a lot of these events
described in the Old Testament

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have a historical context.

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There was a Babylon, there
was a Neo-Babylonian Empire.

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We're gonna talk about
Nebuchadnezzar in this video.

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There were pharaohs,
these things are described

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in the Old Testament.

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Now, there's other things
in the Old Testament

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that have less of a historical context,

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where we really don't have evidence yet

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of did they happen, or
did they happen in the way

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that is described in the Old Testament?

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We might be able to find
that evidence over time.

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And then there's clearly a lot of events

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that are not described
in the Old Testament,

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but we are able to find evidence,

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we're able to find documents,
writing, hieroglyphs,

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we're able to find artifacts
and date those artifacts,

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we're able to find ruins.

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And the fun of history is
to try to figure out, well,

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what do we know and what do we not know,

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and can we construct
narratives that make sense?

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And over time, whether
we're talking about events

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that are referred to in the Old Testament,

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or things where there's a
large historical basis for it,

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as we understand more, these
dots might change a little bit,

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or at least our understanding
of how they occurred

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or the causality.

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So that's one of the really
fun things in history,

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and I encourage you, everything
that you hear me say,

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don't take it for granted,
look it up yourself,

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and come to your own conclusions.

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So with that said, let's continue,

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and I'll review a little
bit from the previous video.

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We're in 1700 B.C..

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It's the time of Hammurabi,
you have the code of Hammurabi,

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famous, famous, as a written code,

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a written code of laws.

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Now, we believe, if
the stories of Abraham,

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because there are parallels
between the Old Testament

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and the code of Hammurabi,

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it has often placed Abraham,
as a biblical figure,

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is often placed in or shortly
after the time of Hammurabi.

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And so it's Abraham of Ur,

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and this migration to Canaan,
which would eventually become

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the kingdom of Judea and Israel,

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modern-day where the states
of Israel and Palestine are,

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that migration, people place
it at around 1200, or sorry,

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at around 1700 B.C.E.,

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once again, roughly in
the time of Hammurabi.

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Now, we don't know this.

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There is not a lot of
historical evidence here,

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but it fits kind of
the historical context,

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especially with the code,
with the code of Hammurabi.

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Now, we fast forward a few hundred years,

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and now we're firmly on
the side of religion,

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where these are stories
from the Old Testament.

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We haven't found a lot of
historical evidence yet

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of the migration of the
Jewish people to Egypt,

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the famous story of Joseph.

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So that's the migration, which is placed,

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tends to be placed around 1500 B.C.E..

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1500 B.C.E.,

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and once again, I'm gonna
put a question mark here.

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And so when we look at our timeline,

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this is Abraham going from Mesopotamia

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and then to what is now,
or to establish this tribe

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in what eventually becomes Judea, Israel.

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They're there for several hundred years,

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you have the story of
Joseph, Abraham's grandson,

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he becomes a vizier of the pharaoh,

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his family eventually joins him,

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but then the Jewish people get enslaved,

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according to the Old Testament,

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for several hundred years,
until they are freed

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in the Book of Exodus by Moses,

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and they are led back to Judea.

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And so this part right over
here, we are definitely,

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let me circle that in a color you can see.

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This part right over here,

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we're definitely operating outside of

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a lot of historical evidence.

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But we believe that the exodus
from Egypt back to Judea,

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this is often placed around 1200 B.C.E..

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So I know my map is
getting a little bit...

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1200 B.C.E., and once again,

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I'm gonna put a question mark there,

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because we don't really know.

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But that's where we believe that the,

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what was essentially the
tribe of Jewish people

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is now established as a real
state, as a real kingdom,

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the united kingdom of Israel and Judea,

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and you have the famous
kings, King Saul, King David,

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King Solomon, King
Solomon famously noted for

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the construction of the
first temple at Jerusalem.

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And now we're gonna fast forward,

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because in a few hundred years,

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that temple gets destroyed
by the Neo-Babylonian Empire.

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So let's fast forward a little bit.

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The Neo-Babylonian Empire,
led by Nebuchadnezzar II,

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often known as the Chaldean Empire.

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This is approximately,

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and I'm going very high
level in this video,

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600 B.C.E., before the common era,

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secular way of saying
before the time of Christ,

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before Christ, you might often see B.C.,

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which would refer to before Christ,

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B.C.E. is referring to
before the common era,

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but 600 B.C.E. and 600 B.C.
are referring to the same date.

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But you have the Neo-Babylonian Empire,

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and I'll stress the word Neo,

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because even though you
hear a lot about Babylon

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when we talk about ancient Mesopotamia,

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you notice that Babylon was only dominant

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for relatively short periods of time

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when we look at this, you know,

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multi-thousand year view of things.

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Actually, most of the
time, in this period,

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the Assyrians were dominant,

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with their capital at Nineveh.

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But when we get to roughly 600 B.C.E.,

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you have Nebuchadnezzar II.

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He is the king, the emperor,
of this Neo-Babylonian Empire,

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and he goes...

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He searches for conquest.

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He wants to expand his empire.

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And he's really set on
taking over the pharaohs,

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among other people, or the Egyptians,

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but on his way, he's unsuccessful

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on taking over the pharaohs, so let me,

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this is him on the way to try
to take over the pharaohs.

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He is unsuccessful to
try to take over Egypt.

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But on the way, he's able
to march through a lot of

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what we now call the Middle East,

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and relevant to the Old Testament,

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he destroys the first
temple that Solomon built,

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so he destroys that temple,

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and then he takes the
Jewish people captive,

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according to the Old Testament.

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And that is the famous
Babylonian captivity,

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and that was Nebuchadnezzar who does it.

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Now, Nebuchadnezzar's empire, his dynasty,

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is relatively short-lived in
the whole scheme of things.

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The Neo-Babylonian Empire,
the Chaldean Empire,

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because by the time we get to the,

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or we get a little bit further

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into the sixth century B.C.E.,

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so around 539,

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539 B.C.E., this is when
you have the Persians

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come and invade the Neo-Babylonian Empire.

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The Persians, led by Cyrus the Great.

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So now you have the
Persians come and take over

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the Neo-Babylonian Empire,

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and on our timeline here,

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this is the Persians going on,

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going and taking over
more and more territory,

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they take over Mesopotamia,

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they're able to take
over what we, you know,

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Judea and actually this whole region

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that is kind of the modern Middle East,

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and they are successful.

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And this is a big deal,

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because look how long this line
of Egyptian civilization is.

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They are able to take over Egypt,

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and they keep going their conquest,

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and as we'll see in the next video,

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they get very frustrated
because they're not able

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to take over the Greeks,
even though in a lot of ways,

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the Greeks did not seem as
significant of an empire

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as the Egyptians or the Babylonians.

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But we will continue
that in the next video.


Expansion of presidential power

WEBVTT
Kind: captions
Language: en

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- [Presenter] I'm here with
Jeffrey Rosen, the head

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of the National Constitution
Center in Philadelphia,

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and what I wanna talk about
in this video, Jeffery,

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is how has the powers of the president,

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how have they changed over
time since the ratification

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of the Constitution?

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- [Jeffery] Well, they've hugely expanded

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and it's so striking that the
Framers of the Constitution

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were concerned that Congress
would be the most dangerous

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branch and they were
so concerned about that

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that they split Congress
in two and created

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this bicameral legislature,
the House and Senate,

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in order to divide its powers.

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They would have been stunned
to learn that the president

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is twice as powerful as Congress today.

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They created a unitary
executive because they were less

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concerned about Executive
than congressional tyranny

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and it's really interesting
to think about why that,

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why that happened.

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- [Presenter] What do you
mean by the president today

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is twice as powerful as Congress?

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- [Jeffery] Well, I guess
that was a hypothesis,

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but it's arguable that,
having assumed powers

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to deploy troops without
congressional authorization

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to target and kill
American citizens abroad,

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to engage in Executive
orders without congressional

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approval, critics of the
expansion of presidential power

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say that the president has
usurped congressional authority,

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he's exceeded his power
under the Take Care Clause

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of Article II, Section
3 of the Constitution

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and that in this way,
presidential authority has hugely

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expanded while congressional
authority has contracted.

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- [Presenter] I see.

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And what are, I mean, what
are the dynamics that allowed

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this to happen over the
last several hundred years?

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- [Jeffery] Well,
there's a wonderful essay

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on the National Constitution Center's

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Interactive Constitution by
William Marshall and it's,

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you can find it if you click
on Article II, Section 3,

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and William Marshall
is trying to figure out

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what some of these dynamics
were, and he comes up with

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a bunch of reasons why the
president has been so dominant.

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First, he says political
culture, the president

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has become the focus of
national power and culture

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in a way that he wasn't in a
pre-internet, pre-television,

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pre-radio age, and this
was the case even during

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World War II when Justice Jackson

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Steel Seizure Case that
we talked about before,

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talk about Executive
power having the advantage

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of concentration in a
single head in who's choice

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a whole nation has a
part, making him a focus

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of public hopes and expectations.

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But there's no question that
the focus on the individual

00:02:26.992 --> 00:02:31.266
person of the presidency
has vastly expanded.

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- [Presenter] It's just this idea

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that there's one person there,

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people associate that
person, hey, they're our

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Head of State, they put their
hopes and fears on that person

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and that just gives them
inherently more power.

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- [Jeffery] It does and
you can call it culture,

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you can call it celebrity,
but it's so striking that

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the Framers are so concerned
that the president not be

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a king and they reject
Alexander Hamilton's suggestion,

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which again (chuckles)
we know from the musical,

00:02:53.989 --> 00:02:55.843
that the president be elected for life.

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They wanna have four year terms
and then the, subsequently,

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a Constitutional amendment is
passed, the 22nd Amendment,

00:03:01.566 --> 00:03:03.687
to limit the president to only two terms,

00:03:03.687 --> 00:03:08.353
and despite all that, the
presidency has expanded so much.

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It's not only the political culture.

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Marshall points to a
bunch of other reasons.

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Executive branch precedence,
basically every president

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has been successful in
asserting increasingly sweeping

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exercises of executive power.

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This is a bipartisan phenomenon
from President Clinton

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to George W. Bush, to President Obama,

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the Office of Legal Counsel
in the Justice Department

00:03:32.329 --> 00:03:36.204
has authorized increasingly
sweeping exercise

00:03:36.204 --> 00:03:39.443
of executive authority,
and we find presidents

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of both parties either
criticised or praised

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for having established these
executive branch precedence.

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There's also just the expan--

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- And just to make sure.
- Yeah.

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- [Presenter] I wish
to understand, I mean,

00:03:49.241 --> 00:03:51.693
it's just this idea that even
if you were just president,

00:03:51.693 --> 00:03:54.040
I come in into office, I
might even be more restrained,

00:03:54.040 --> 00:03:57.193
but then the next guy or, or
gal (chuckles) that comes in

00:03:57.193 --> 00:03:59.786
can cite you presidency
and say hey, he did it,

00:03:59.786 --> 00:04:02.356
why shouldn't I be able
to do it, so there's this,

00:04:02.356 --> 00:04:03.528
it's never gonna go back.

00:04:03.528 --> 00:04:05.474
Precedent will never take you,
take powers away, (chuckles)

00:04:05.474 --> 00:04:06.478
they'll only add to them.

00:04:06.478 --> 00:04:08.459
- [Jeffery] That's exactly
right and this really important,

00:04:08.459 --> 00:04:11.049
but not so well known office,
the Office of Legal Counsel,

00:04:11.049 --> 00:04:13.770
which several Supreme Court
Justices have been the head of,

00:04:13.770 --> 00:04:17.267
is, basically, a mini-Supreme
Court for the executive branch

00:04:17.267 --> 00:04:20.552
and it issues opinions about
what the president can do

00:04:20.552 --> 00:04:23.443
and those opinions are relied
on by subsequent presidents

00:04:23.443 --> 00:04:25.356
to justify the expansion
of executive power.

00:04:25.356 --> 00:04:27.030
- [Presenter] Fascinating.

00:04:27.030 --> 00:04:30.234
- [Jeffery] Not all presidents
have taken this view.

00:04:30.234 --> 00:04:32.913
I'm writing a book, now,
about William Howard Taft

00:04:32.913 --> 00:04:34.984
who was the only president
who went on to become

00:04:34.984 --> 00:04:36.745
Chief Justice and he thought,
he had a very literalist

00:04:36.745 --> 00:04:38.982
or judicial conception of the presidency,

00:04:38.982 --> 00:04:40.659
he thought the president could only do

00:04:40.659 --> 00:04:42.603
what the Constitution
explicitly authorized.

00:04:42.603 --> 00:04:45.313
He refused to take actions
that he thought weren't

00:04:45.313 --> 00:04:47.724
authorized by the Constitution,
and in this sense,

00:04:47.724 --> 00:04:50.426
he gives us a vision of
what a more constitutionally

00:04:50.426 --> 00:04:53.132
constrained presidency would look like.

00:04:53.132 --> 00:04:55.247
- [Presenter] But even though he did that,

00:04:55.247 --> 00:04:57.517
as we were just talking about,
people who came after Taft

00:04:57.517 --> 00:04:59.369
could just cite people before
Taft (chuckles) and say--

00:04:59.369 --> 00:05:02.029
- [Jeffery] Absolutely right,
and Taft's predecessor,

00:05:02.029 --> 00:05:05.363
Theodore Roosevelt, had the
most sweeping conception

00:05:05.363 --> 00:05:06.363
of the presidency.

00:05:06.363 --> 00:05:08.429
He said the president can
do whatever the Constitution

00:05:08.429 --> 00:05:12.347
doesn't explicitly forbid and
his stewardship conception

00:05:12.347 --> 00:05:14.702
of the presidency definitely
has been vindicated by time

00:05:14.702 --> 00:05:17.241
and you'd have to say
presidents today are much more

00:05:17.241 --> 00:05:20.180
Rooseveltian than they are the heirs

00:05:20.180 --> 00:05:21.388
of William Howard Taft. (chuckles)

00:05:21.388 --> 00:05:22.441
- [Presenter] Yep.

00:05:22.441 --> 00:05:23.703
What other dynamics are at play?

00:05:23.703 --> 00:05:25.464
We talk about political
culture that celebrity

00:05:25.464 --> 00:05:28.149
into one person, this precedent
that keeps expanding powers.

00:05:28.149 --> 00:05:29.022
What else?

00:05:29.022 --> 00:05:30.967
- [Jeffery] Well, there's
the huge expansion

00:05:30.967 --> 00:05:32.507
of the Federal government,
and the administrative state,

00:05:32.507 --> 00:05:35.042
and the growth of the executive agencies

00:05:35.042 --> 00:05:36.604
in the post-New Deal period from

00:05:36.604 --> 00:05:38.530
the Environmental Protection Agency,

00:05:38.530 --> 00:05:40.599
and even progressive-era agencies,

00:05:40.599 --> 00:05:43.463
like the Federal Trade Commission
or the Federal Reserve,

00:05:43.463 --> 00:05:47.225
and work place safety,
National Park management,

00:05:47.225 --> 00:05:49.514
smoke stack emissions, college sports.

00:05:49.514 --> 00:05:52.058
There's almost no area of American life

00:05:52.058 --> 00:05:54.668
that these executive
agencies don't regulate.

00:05:54.668 --> 00:05:57.647
The president, by appointing
the head of these agencies

00:05:57.647 --> 00:05:59.623
and having the ability to fire them,

00:05:59.623 --> 00:06:02.873
can issue executive orders
that have the force of law,

00:06:02.873 --> 00:06:04.872
even though they're
not passed by Congress,

00:06:04.872 --> 00:06:06.762
and that can lead to
really dramatic clashes

00:06:06.762 --> 00:06:09.177
between the president's
use of executive orders

00:06:09.177 --> 00:06:11.263
and what Congress says
that it actually intended,

00:06:11.263 --> 00:06:13.781
as we've seen during the
Obama administration.

00:06:13.781 --> 00:06:15.704
So that's a big factor, as well.

00:06:15.704 --> 00:06:16.966
- [Presenter] Yep.

00:06:16.966 --> 00:06:19.406
And what other dynamics are there?

00:06:19.406 --> 00:06:21.881
- [Jeffery] Well, the modern
world is moving a lot faster,

00:06:21.881 --> 00:06:24.272
in an age of the internet
and instant communication,

00:06:24.272 --> 00:06:26.502
there are a lot more emergencies,

00:06:26.502 --> 00:06:30.329
attacks are much more
sudden than they were

00:06:30.329 --> 00:06:31.989
at the time of the framing

00:06:31.989 --> 00:06:33.432
and have to be repelled more quickly,

00:06:33.432 --> 00:06:35.232
so just the speed of contemporary life

00:06:35.232 --> 00:06:38.758
has led to the president to
assert new emergency powers.

00:06:38.758 --> 00:06:41.484
And then, finally, and I'm just
tracking William Marshall's

00:06:41.484 --> 00:06:44.386
great essay, here, there's
the rise of partisan politics.

00:06:44.386 --> 00:06:46.769
Because of Congress becoming so polarized,

00:06:46.769 --> 00:06:49.505
often people in Congress
see their responsibility

00:06:49.505 --> 00:06:52.279
to support their party
rather than to take seriously

00:06:52.279 --> 00:06:55.555
their Constitutional
or institutional duties

00:06:55.555 --> 00:07:00.215
as legislatures, so they may
be unwilling to, or check

00:07:00.215 --> 00:07:03.148
the president's power when
their party is in the majority,

00:07:03.148 --> 00:07:05.343
they're just willing to write
the president a blank check

00:07:05.343 --> 00:07:09.176
when he happens to be a
member of their party.

00:07:10.472 --> 00:07:12.716
- [Presenter] And I can see
that when it's the same party

00:07:12.716 --> 00:07:15.055
in charge of Congress and the presidency,

00:07:15.055 --> 00:07:17.177
but what about when it's
the other way around?

00:07:17.177 --> 00:07:20.129
Obviously, in recent time
it seems like the, Congress

00:07:20.129 --> 00:07:21.624
is being very effective

00:07:21.624 --> 00:07:23.056
at limiting presidential power.

00:07:23.056 --> 00:07:23.889
- [Jeffery] Well--

00:07:23.889 --> 00:07:25.147
- [Presenter] Because
of partisan politics.

00:07:25.147 --> 00:07:26.634
- [Jeffery] You do have
either congressional inaction

00:07:26.634 --> 00:07:30.283
or refusal to act on
presidential proposals,

00:07:30.283 --> 00:07:35.040
but often, critics of
congressional inaction complain

00:07:35.040 --> 00:07:39.207
Congress is refusing to veto
bills, for example, or sorry,

00:07:40.689 --> 00:07:43.704
to override presidential vetos
or to refuse to pass laws

00:07:43.704 --> 00:07:45.263
on constitutional grounds.

00:07:45.263 --> 00:07:47.551
Instead, they're filing lawsuits,
they're kicking things up

00:07:47.551 --> 00:07:48.549
to the court.

00:07:48.549 --> 00:07:51.022
When President Obama
issued his executive orders

00:07:51.022 --> 00:07:54.371
about immigration, there
was a lawsuit filed.

00:07:54.371 --> 00:07:57.552
So, increasingly, the judiciary
is becoming the arbiter

00:07:57.552 --> 00:08:00.217
about disputes between
Congress and the president.

00:08:00.217 --> 00:08:02.451
The Framers expected a
much more direct clash

00:08:02.451 --> 00:08:05.017
between the president and
Congress and thought that both

00:08:05.017 --> 00:08:08.225
of those branches of
government would make decisions

00:08:08.225 --> 00:08:10.206
on constitutional grounds
and would directly

00:08:10.206 --> 00:08:11.376
check each other.

00:08:11.376 --> 00:08:13.394
- [Presenter] It's this idea
that instead of Congress

00:08:13.394 --> 00:08:16.631
passing legislation and then
the president either signing

00:08:16.631 --> 00:08:19.688
them or vetoing them, that
when you have this gridlock,

00:08:19.688 --> 00:08:21.957
that the president starts
taking more executive orders,

00:08:21.957 --> 00:08:24.069
and then Congress take
the president to court

00:08:24.069 --> 00:08:25.012
(laughter)
over them.

00:08:25.012 --> 00:08:26.517
- [Jeffery] That's very well stated

00:08:26.517 --> 00:08:29.437
and that's definitely not
what the Framers intended.

00:08:29.437 --> 00:08:31.645
- [Presenter] This is
really, just to go over them

00:08:31.645 --> 00:08:33.577
once again, when you just
have one person in charge,

00:08:33.577 --> 00:08:36.099
and this is, it starts with Washington

00:08:36.099 --> 00:08:40.436
who was this huge personality,
obviously American hero,

00:08:40.436 --> 00:08:44.474
and so that, by itself, put a
lot of power in the president.

00:08:44.474 --> 00:08:47.594
Then every president
comes along and maybe does

00:08:47.594 --> 00:08:49.122
a little bit more (chuckles)

00:08:49.122 --> 00:08:50.725
than the ones that came before it.

00:08:50.725 --> 00:08:52.475
And then anyone can cite that president,

00:08:52.475 --> 00:08:54.166
hey, he pulled it off, why can't I?

00:08:54.166 --> 00:08:56.338
As you mentioned, the
Federal Government is far,

00:08:56.338 --> 00:08:59.467
far, far larger than
it was in the time of,

00:08:59.467 --> 00:09:01.913
when the Constitution was written

00:09:01.913 --> 00:09:04.514
and in the time of
Washington, and just the speed

00:09:04.514 --> 00:09:06.759
with which things are
happening, it's necessary

00:09:06.759 --> 00:09:09.863
for a president to, whether
it's in war, or regulation,

00:09:09.863 --> 00:09:12.093
or other things, to just be
able to take action quickly.

00:09:12.093 --> 00:09:14.362
And then finally, partisan
politics, I guess,

00:09:14.362 --> 00:09:16.481
that one could, it seems that
could be debated either way

00:09:16.481 --> 00:09:18.591
depending on which parties
are in power where,

00:09:18.591 --> 00:09:21.481
but it is fascinating, it
does seem like this has been

00:09:21.481 --> 00:09:23.222
a very clear trend over time.

00:09:23.222 --> 00:09:24.221
- [Jeffery] It's true.

00:09:24.221 --> 00:09:26.805
Those are all great reasons
offered by William Marshall

00:09:26.805 --> 00:09:28.525
in his interactive Constitution essay.

00:09:28.525 --> 00:09:30.917
There's one other factor
and that is the fact

00:09:30.917 --> 00:09:32.662
that both branches, the
president and Congress,

00:09:32.662 --> 00:09:35.320
are not evaluating their actions
on constitutional grounds

00:09:35.320 --> 00:09:36.517
the way they used to.

00:09:36.517 --> 00:09:39.692
The president has the veto
power under Article I, Section 7

00:09:39.692 --> 00:09:43.859
and at the time of the framing,
the presidents often issued

00:09:45.153 --> 00:09:48.044
vetos on constitutional grounds.

00:09:48.044 --> 00:09:51.063
President Andrew Jackson
who vetoed the re-chartering

00:09:51.063 --> 00:09:53.645
of the second bank of the
United States vetoed it

00:09:53.645 --> 00:09:57.279
on the grounds that he could veto any bill

00:09:57.279 --> 00:09:59.675
that he considered
unconstitutional and he sided

00:09:59.675 --> 00:10:02.228
with Thomas Jefferson's view that the bank

00:10:02.228 --> 00:10:04.275
was unconstitutional,
rejecting the view of Hamilton

00:10:04.275 --> 00:10:06.532
and George Washington that is was okay.

00:10:06.532 --> 00:10:09.433
But nowadays, presidents
tend not to issue vetos

00:10:09.433 --> 00:10:12.162
on constitutional grounds
and Congress tends not to

00:10:12.162 --> 00:10:15.147
debate bill in constitutional
terms and as a result,

00:10:15.147 --> 00:10:17.876
critics on both sides of the aisle say

00:10:17.876 --> 00:10:21.791
both branches are exceeding
their constitutional powers

00:10:21.791 --> 00:10:24.867
and failing adequately to check
the constitutional excesses

00:10:24.867 --> 00:10:25.998
of the other branch.

00:10:25.998 --> 00:10:27.220
- [Presenter] That's fascinating,

00:10:27.220 --> 00:10:29.111
something I never fully appreciated that,

00:10:29.111 --> 00:10:31.612
what you mentioned is historically,
Washington, and Adams,

00:10:31.612 --> 00:10:33.966
and Jefferson, they viewed
their veto as kind of like

00:10:33.966 --> 00:10:35.827
a light Supreme Court, a
little bit, like is this

00:10:35.827 --> 00:10:38.029
constitutional or not, and
that's why I'll veto it.

00:10:38.029 --> 00:10:39.946
But then later presidents
started to say, no,

00:10:39.946 --> 00:10:41.818
if I just disagree with it,
I just think it's a bad law,

00:10:41.818 --> 00:10:43.014
I will veto.

00:10:43.014 --> 00:10:45.290
- [Jeffery] Absolutely, and
this idea that the Supreme Court

00:10:45.290 --> 00:10:49.465
is the sole authority,
arbiter, of constitutional,

00:10:49.465 --> 00:10:51.891
of the constitutionality of laws

00:10:51.891 --> 00:10:53.356
would've surprised the Framers.

00:10:53.356 --> 00:10:55.120
They had a theory of departmentalism.

00:10:55.120 --> 00:10:57.646
They thought that all three
branches had an obligation

00:10:57.646 --> 00:10:59.331
to evaluate the constitutionality of laws,

00:10:59.331 --> 00:11:02.586
that Congress, when they passed a bill,

00:11:02.586 --> 00:11:03.901
the president, when he signed it,

00:11:03.901 --> 00:11:05.266
and the courts, when they reviewed it,

00:11:05.266 --> 00:11:06.814
and only when all three branches agreed,

00:11:06.814 --> 00:11:08.199
could a law go into effect.

00:11:08.199 --> 00:11:11.566
But that, now, we tend to punt
all constitutional questions

00:11:11.566 --> 00:11:14.051
to the Supreme Court and
that has left something

00:11:14.051 --> 00:11:17.563
of a vacuum on the side of the
president and the Congress.

00:11:17.563 --> 00:11:18.637
- [Presenter] Well, thanks
so much for this, Jeff.

00:11:18.637 --> 00:11:20.470
- [Jeffery] Thank you.


The President as Commander-in-Chief

WEBVTT
Kind: captions
Language: en

00:00:00.769 --> 00:00:02.125
- [Host] So, I'm here with Jeffrey Rosen

00:00:02.125 --> 00:00:05.294
head of the National Constitution
Center in Philadelphia

00:00:05.294 --> 00:00:06.680
and we're continuing to talk about

00:00:06.680 --> 00:00:08.823
Article II of the US Constitution

00:00:08.823 --> 00:00:11.018
which talks about the
powers of the president.

00:00:11.018 --> 00:00:12.289
And now we're gonna focus a little bit

00:00:12.289 --> 00:00:14.824
on the first part of section two

00:00:14.824 --> 00:00:17.560
which talks about among other things

00:00:17.560 --> 00:00:20.910
that the President shall
be the Commander-in-Chief

00:00:20.910 --> 00:00:24.460
of the Army and Navy of the United States,

00:00:24.460 --> 00:00:26.234
essentially the military
of the United States.

00:00:26.234 --> 00:00:29.343
And this seems like there's
a bit of a balance here

00:00:29.343 --> 00:00:32.028
because in Article I which describes the

00:00:32.028 --> 00:00:35.510
powers of the congress in section eight,

00:00:35.510 --> 00:00:37.847
it says the congress shall have power

00:00:37.847 --> 00:00:41.022
and it starts listing a bunch
of stuffs, a bunch of things

00:00:41.022 --> 00:00:42.528
but one of the things that it list is

00:00:42.528 --> 00:00:44.682
the power to declare war,

00:00:44.682 --> 00:00:47.682
grant letters of marque and reprisal

00:00:48.866 --> 00:00:53.170
and make rules concerning
captures on land and water.

00:00:53.170 --> 00:00:55.490
How do these two things
fit together, Jeffrey?

00:00:55.490 --> 00:00:57.400
- [Jeffrey] Well, they've led to the most

00:00:57.400 --> 00:01:00.222
dramatic constitutional
controversies in American history

00:01:00.222 --> 00:01:03.527
as Justice Robert Jackson put
it in the Steel Seizure case.

00:01:03.527 --> 00:01:06.086
These cryptic words of the
commander-in-chief clause

00:01:06.086 --> 00:01:07.579
have given rise to some of the most

00:01:07.579 --> 00:01:10.596
persistent controversies in
our constitutional history.

00:01:10.596 --> 00:01:13.905
Everyone agrees that congress
has the power to declare war

00:01:13.905 --> 00:01:15.132
and once war is declared,

00:01:15.132 --> 00:01:17.276
the president has total control

00:01:17.276 --> 00:01:18.997
over the conduct of the war.

00:01:18.997 --> 00:01:20.927
There's civilian control of the military,

00:01:20.927 --> 00:01:23.153
there's a single leader
once the war starts

00:01:23.153 --> 00:01:25.965
but how the president can
act to deploy the troops

00:01:25.965 --> 00:01:28.757
in the face of emergencies
when congress is silent,

00:01:28.757 --> 00:01:30.927
and how much congress
can constrain its power

00:01:30.927 --> 00:01:34.659
has led rise to some huge
constitutional controversies.

00:01:34.659 --> 00:01:36.381
- [Host] And the Steel Seizure
case that you talked about,

00:01:36.381 --> 00:01:37.730
this was in 1952,

00:01:37.730 --> 00:01:40.836
this was arguably talking
about the Korean War.

00:01:40.836 --> 00:01:41.879
What was the context there?

00:01:41.879 --> 00:01:44.326
Why did this need to be ruled on?

00:01:44.326 --> 00:01:45.553
- [Jeffrey] Well, it's an amazing case

00:01:45.553 --> 00:01:48.228
and the steel companies
are gonna go on strike,

00:01:48.228 --> 00:01:49.664
and President Truman decides

00:01:49.664 --> 00:01:51.274
this is a threat to national security

00:01:51.274 --> 00:01:54.761
because the army needs steel
to conduct the Korean War.

00:01:54.761 --> 00:01:57.860
He decides on his own without
congressional authorization

00:01:57.860 --> 00:02:00.969
to seize the steel mills
as part of his authority,

00:02:00.969 --> 00:02:03.469
his military authority
as commander-in-chief

00:02:03.469 --> 00:02:04.900
and this goes up to the supreme court

00:02:04.900 --> 00:02:07.020
and the supreme court strikes him down.

00:02:07.020 --> 00:02:09.514
They say he can't seize
the steel mills on his own.

00:02:09.514 --> 00:02:12.609
Truman is shocked, he's
appointed many of the justices

00:02:12.609 --> 00:02:15.621
but the most influential opinion
in the steel seizure case

00:02:15.621 --> 00:02:18.088
is the concurring opinion
by Justice Robert Jackson,

00:02:18.088 --> 00:02:20.303
and I want our listeners to
go check it out on the web

00:02:20.303 --> 00:02:21.655
because it's so important.

00:02:21.655 --> 00:02:23.727
And Justice Jackson
identified three categories

00:02:23.727 --> 00:02:26.071
of executive power that
every law student learns

00:02:26.071 --> 00:02:27.541
and they're easy to remember.

00:02:27.541 --> 00:02:29.137
Basically, when the president acts

00:02:29.137 --> 00:02:30.856
with congressional approval,

00:02:30.856 --> 00:02:32.916
his authority is at its height.

00:02:32.916 --> 00:02:35.255
When he acts in the face of
congressional disapproval,

00:02:35.255 --> 00:02:37.621
his authority as at its lowest ebb.

00:02:37.621 --> 00:02:40.800
And when congress has neither
approved or disapproved,

00:02:40.800 --> 00:02:43.044
the president acts in a zone of twilight,

00:02:43.044 --> 00:02:44.251
as Justice Jackson said.

00:02:44.251 --> 00:02:45.426
It sounds like the Twilight Zone

00:02:45.426 --> 00:02:47.790
and I always think of
that music. (mumbles)

00:02:47.790 --> 00:02:50.446
But it means that in
the Steel Seizure case,

00:02:50.446 --> 00:02:55.385
although the congress had
not authorized the seizure

00:02:55.385 --> 00:02:57.921
and the president had
no civilian authority

00:02:57.921 --> 00:02:59.348
to seize the steel mill,

00:02:59.348 --> 00:03:01.244
so he had no independent authority

00:03:01.244 --> 00:03:02.994
to rely on them in the zone of twilight,

00:03:02.994 --> 00:03:07.109
and therefore, the court held
he acted unconstitutionally.

00:03:07.109 --> 00:03:08.594
- [Host] And Truman's
argument might have been

00:03:08.594 --> 00:03:11.496
hey, look the constitution
makes me the commander-in-chief.

00:03:11.496 --> 00:03:12.993
If I read that broadly I should be able

00:03:12.993 --> 00:03:15.942
to do whatever I need to
execute in times of war.

00:03:15.942 --> 00:03:19.576
Steel is a very important
input into making

00:03:19.576 --> 00:03:21.794
the things that you need
to execute your war with.

00:03:21.794 --> 00:03:22.860
And so, if they're gonna go on strike,

00:03:22.860 --> 00:03:26.696
that's gonna keep me from
being able to conduct our war.

00:03:26.696 --> 00:03:27.529
- [Jeffrey] That's exactly right.

00:03:27.529 --> 00:03:28.849
That's just what he argued

00:03:28.849 --> 00:03:30.526
and although some justices bought it

00:03:30.526 --> 00:03:32.951
including Chief Justice Fred Vinson

00:03:32.951 --> 00:03:34.993
who Truman had appointed,

00:03:34.993 --> 00:03:36.966
a majority of the supreme court said

00:03:36.966 --> 00:03:39.068
that civilian power over the military

00:03:39.068 --> 00:03:40.695
doesn't authorize the president

00:03:40.695 --> 00:03:43.417
to use his power in the United States

00:03:43.417 --> 00:03:46.120
in ways that might be
helpful to the war effort.

00:03:46.120 --> 00:03:49.509
He needs explicit congressional
approval for that.

00:03:49.509 --> 00:03:51.457
It really upset President Truman.

00:03:51.457 --> 00:03:54.180
He invited the whole supreme court.

00:03:54.180 --> 00:03:55.984
They actually invited him for drinks

00:03:55.984 --> 00:03:57.209
at Justice Hugo Black's house

00:03:57.209 --> 00:03:58.575
after the decision came down,

00:03:58.575 --> 00:04:00.338
and Truman sulked for a while and he said,

00:04:00.338 --> 00:04:02.203
"Hugo, I don't think much of your law

00:04:02.203 --> 00:04:04.196
"but my golly, this bourbon is good."

00:04:04.196 --> 00:04:05.316
So they kind of,
(laughs)

00:04:05.316 --> 00:04:06.962
they made up after the case.

00:04:06.962 --> 00:04:08.314
(laughs)

00:04:08.314 --> 00:04:11.131
- [Host] And another I guess relevant,

00:04:11.131 --> 00:04:13.143
this isn't a case but a resolution,

00:04:13.143 --> 00:04:17.448
is War Powers Resolution
1973, historical context.

00:04:17.448 --> 00:04:19.362
We're nearing the end of the Vietnam War.

00:04:19.362 --> 00:04:21.088
What was the background there?

00:04:21.088 --> 00:04:22.442
- [Jeffrey] Well, congress was very upset

00:04:22.442 --> 00:04:25.787
that President Nixon had
sent bombers into Cambodia

00:04:25.787 --> 00:04:27.568
without congressional approval,

00:04:27.568 --> 00:04:29.824
and there'd been other disputes about

00:04:29.824 --> 00:04:32.675
the president's power in Vietnam.

00:04:32.675 --> 00:04:34.630
Congress decided to try to codify

00:04:34.630 --> 00:04:36.476
exactly when the president could act

00:04:36.476 --> 00:04:37.919
to repel sudden attacks,

00:04:37.919 --> 00:04:41.005
which everyone agrees that
he has the right to do.

00:04:41.005 --> 00:04:43.716
So, congress said, "President,
you've got to notify us

00:04:43.716 --> 00:04:45.381
"within 48 hours of the time

00:04:45.381 --> 00:04:47.321
"that you send troops on your own

00:04:47.321 --> 00:04:48.686
"and you can only keep those troops

00:04:48.686 --> 00:04:50.712
"on the ground for 30 days,

00:04:50.712 --> 00:04:53.375
"except under extraordinary circumstances,

00:04:53.375 --> 00:04:55.827
"otherwise you need
congressional approval."

00:04:55.827 --> 00:04:57.841
Despite this effort to kind of set out

00:04:57.841 --> 00:05:00.792
congressional approval for
these extraordinary situations,

00:05:00.792 --> 00:05:02.027
some presidents have argued

00:05:02.027 --> 00:05:04.105
that the War Powers Resolution itself

00:05:04.105 --> 00:05:06.558
is unconstitutional as a violation

00:05:06.558 --> 00:05:08.846
of the president's
commander-in-chief power.

00:05:08.846 --> 00:05:10.339
Others on the other
side they said congress

00:05:10.339 --> 00:05:12.261
is sitting too much power to the president

00:05:12.261 --> 00:05:14.876
but so far the supreme
court has not struck down

00:05:14.876 --> 00:05:16.387
the War Powers Resolution,

00:05:16.387 --> 00:05:18.154
and presidents are
supposed to abide by it,

00:05:18.154 --> 00:05:19.529
although sometimes they haven't.

00:05:19.529 --> 00:05:22.429
President Bill Clinton
sent troops into Kosovo

00:05:22.429 --> 00:05:24.717
without following the
War Powers Resolution

00:05:24.717 --> 00:05:26.890
and notifying congress.

00:05:26.890 --> 00:05:29.200
- [Host] What's the argument
that a president would make

00:05:29.200 --> 00:05:32.369
that the war powers or anyone could make,

00:05:32.369 --> 00:05:34.452
that the War Powers Resolution
is unconstitutional?

00:05:34.452 --> 00:05:36.506
That somehow conflicts with section two.

00:05:36.506 --> 00:05:37.992
- [Jeffrey] The argument is

00:05:37.992 --> 00:05:42.003
that the president's unitary
authority under Article II

00:05:42.003 --> 00:05:46.569
gives him complete power
as commander-in-chief

00:05:46.569 --> 00:05:49.002
to conduct military
operations as he thinks best,

00:05:49.002 --> 00:05:50.810
and that includes the ability

00:05:50.810 --> 00:05:53.265
to send troops into the field

00:05:53.265 --> 00:05:55.166
despite the explicit provision

00:05:55.166 --> 00:05:56.781
in Article I, section
eight of the constitution

00:05:56.781 --> 00:05:59.450
that says the congress has
the power to declare war.

00:05:59.450 --> 00:06:01.489
The unitary executive people

00:06:01.489 --> 00:06:04.743
and President George W.
Bush's administration

00:06:04.743 --> 00:06:06.609
claim this explicitly say

00:06:06.609 --> 00:06:07.935
that the president basically can do

00:06:07.935 --> 00:06:09.870
whatever he thinks is necessary

00:06:09.870 --> 00:06:12.266
to preserve national security.

00:06:12.266 --> 00:06:16.433
That led after the
terrorist attacks of 9/11

00:06:18.165 --> 00:06:22.103
other presidents including
President Obama said

00:06:22.103 --> 00:06:24.269
that because of the
commander-in-chief clause,

00:06:24.269 --> 00:06:26.176
various attempts by congress to limit

00:06:26.176 --> 00:06:30.230
the president's unitary
authority were unconstitutional

00:06:30.230 --> 00:06:31.998
and the Bush administration said

00:06:31.998 --> 00:06:33.798
the forbidding of torture of detainees,

00:06:33.798 --> 00:06:35.161
warrantless surveillance,

00:06:35.161 --> 00:06:37.741
the detention of U.S.
citizens as enemy combatants,

00:06:37.741 --> 00:06:40.632
all of these were unconstitutional.

00:06:40.632 --> 00:06:43.240
The supreme court rejected
many of those claims

00:06:43.240 --> 00:06:44.648
including most famously in the

00:06:44.648 --> 00:06:47.688
Hamdan and Rumsfeld case in 2006

00:06:47.688 --> 00:06:48.983
where the court said that the president

00:06:48.983 --> 00:06:51.213
could not set up military tribunals

00:06:51.213 --> 00:06:52.930
without congressional authorization.

00:06:52.930 --> 00:06:55.233
The big lesson from
all these cases is that

00:06:55.233 --> 00:06:58.215
when the president acts
side by side with congress,

00:06:58.215 --> 00:07:00.942
then the supreme court tends
to uphold executive power.

00:07:00.942 --> 00:07:03.413
But when this president
acts unilaterally on his own

00:07:03.413 --> 00:07:05.826
especially in the face of
congressional disapproval,

00:07:05.826 --> 00:07:08.756
the supreme court is
likely to slap him down.

00:07:08.756 --> 00:07:09.875
- [Host] But across all of these,

00:07:09.875 --> 00:07:12.349
there is a, even though these cases

00:07:12.349 --> 00:07:14.194
especially the ones we cite seem to

00:07:14.194 --> 00:07:17.155
limit presidential
authority to some degree.

00:07:17.155 --> 00:07:18.316
There is this general notion

00:07:18.316 --> 00:07:20.709
even our founding fathers thought of

00:07:20.709 --> 00:07:24.175
which is yes, the congress
has the power to declare war

00:07:24.175 --> 00:07:26.248
but as the commander-in-chief,

00:07:26.248 --> 00:07:28.246
what if we're suddenly
attacked by someone.

00:07:28.246 --> 00:07:29.724
Obviously, you don't wanna
go through the process

00:07:29.724 --> 00:07:31.595
of getting all the congressmen
together and to vote,

00:07:31.595 --> 00:07:33.174
you need to be able to act quickly.

00:07:33.174 --> 00:07:35.043
It has always been understood that

00:07:35.043 --> 00:07:37.049
as commander-in-chief, the president could

00:07:37.049 --> 00:07:39.671
engage in conflict quite quickly.

00:07:39.671 --> 00:07:41.530
- [Jeffrey] No question about it

00:07:41.530 --> 00:07:44.524
and presidents have done
so from the beginning,

00:07:44.524 --> 00:07:48.980
the response to 9/11 is
a famous example as well.

00:07:48.980 --> 00:07:51.708
But many of the framers thought

00:07:51.708 --> 00:07:54.427
that congress' approval was necessary

00:07:54.427 --> 00:07:56.459
for serious wars, the war of 1812

00:07:56.459 --> 00:07:57.819
there was a former declaration

00:07:57.819 --> 00:07:59.286
but there were lesser uses of force

00:07:59.286 --> 00:08:01.948
like the war with France in 1798,

00:08:01.948 --> 00:08:05.231
conflict with the Barbary
states in Tripoli and Algeria,

00:08:05.231 --> 00:08:06.543
conflict with Native American tribes.

00:08:06.543 --> 00:08:08.717
All of these are approved by congress

00:08:08.717 --> 00:08:10.497
although without formal declarations.

00:08:10.497 --> 00:08:12.364
In the modern era though,
things have really changed

00:08:12.364 --> 00:08:14.486
and presidents have used military force

00:08:14.486 --> 00:08:17.014
without expressed consent from congress.

00:08:17.014 --> 00:08:19.653
On lots of occasions,
the Korean War, Libya,

00:08:19.653 --> 00:08:22.486
Grenada, Lebanon, Panama, Noriega,

00:08:23.980 --> 00:08:27.080
all of these are cases where the president

00:08:27.080 --> 00:08:29.832
has used this force without
congressional authorization.

00:08:29.832 --> 00:08:32.216
And we haven't had a
formal declaration of war

00:08:32.216 --> 00:08:34.457
since World War II.

00:08:34.457 --> 00:08:36.895
- [Host] I mean, that
statement I think is worth

00:08:36.895 --> 00:08:39.014
writing down that's why I--
(laughs)

00:08:39.014 --> 00:08:41.414
- [Jeffrey] Okay, Let's write it down.

00:08:41.414 --> 00:08:43.308
- [Host] Since World War II.

00:08:43.308 --> 00:08:45.998
I mean, when I, when you say that

00:08:45.998 --> 00:08:47.448
to me it's like well, what's,

00:08:47.448 --> 00:08:49.128
it kind of feels like well,

00:08:49.128 --> 00:08:50.621
we've clearly had what you and I

00:08:50.621 --> 00:08:52.540
would consider wars since World War II,

00:08:52.540 --> 00:08:55.959
Korea, Vietnam War, obviously post 9/11

00:08:55.959 --> 00:08:57.252
what happened in Afghanistan.

00:08:57.252 --> 00:09:00.714
We have the Iraq war, actually
we have both the Iraq wars.

00:09:00.714 --> 00:09:02.846
And you've had all
sorts of military action

00:09:02.846 --> 00:09:04.535
whether we're talking about drone strikes

00:09:04.535 --> 00:09:08.045
or kind of very surgical interventions

00:09:08.045 --> 00:09:11.067
and all of those were done without

00:09:11.067 --> 00:09:13.447
a formal declaration of war by congress.

00:09:13.447 --> 00:09:14.962
So, to what degree does
this even matter anymore?

00:09:14.962 --> 00:09:17.306
It seems like in modern times,

00:09:17.306 --> 00:09:20.970
presidents are able to do what
they need to do militarily.

00:09:20.970 --> 00:09:22.445
- [Jeffrey] Well, that seems right.

00:09:22.445 --> 00:09:24.321
Now, that's not to say
congress hasn't acted.

00:09:24.321 --> 00:09:25.659
Many of the wars we've talked about

00:09:25.659 --> 00:09:28.422
have had informal statutory authorization

00:09:28.422 --> 00:09:30.712
including most famously recently,

00:09:30.712 --> 00:09:34.261
the authorization of the use
of military force after 9/11

00:09:34.261 --> 00:09:35.980
which was said to authorize

00:09:35.980 --> 00:09:37.800
a lot of what happened after 9/11.

00:09:37.800 --> 00:09:39.840
And it's now contested
whether that continues

00:09:39.840 --> 00:09:42.473
to authorize the war not against Al-Qaeda

00:09:42.473 --> 00:09:43.958
which it was originally passed for,

00:09:43.958 --> 00:09:45.931
but also against ISIS.

00:09:45.931 --> 00:09:47.659
But it certainly seems to be the case

00:09:47.659 --> 00:09:49.398
that formal declarations of war

00:09:49.398 --> 00:09:51.294
have now been replaced with these more

00:09:51.294 --> 00:09:53.889
informal authorizations

00:09:53.889 --> 00:09:57.269
or even with presidential
unilateral action.

00:09:57.269 --> 00:10:00.103
- [Host] And I guess, maybe
one argument there is that

00:10:00.103 --> 00:10:01.268
in some of these wars,

00:10:01.268 --> 00:10:04.058
it gives more flexibility to
the president to be flexible

00:10:04.058 --> 00:10:05.808
and there might not even be a state

00:10:05.808 --> 00:10:07.688
to declare war against.

00:10:07.688 --> 00:10:09.696
- [Jeffrey] That's true
although there have been

00:10:09.696 --> 00:10:12.011
a bunch of these wars where
there are clear states.

00:10:12.011 --> 00:10:14.594
Korea, Libya, Grenada, Lebanon.

00:10:16.325 --> 00:10:19.354
More literalist conceptions
of the president say

00:10:19.354 --> 00:10:20.906
the president could have
and should have asked

00:10:20.906 --> 00:10:22.785
for formal declarations of war,

00:10:22.785 --> 00:10:26.318
but that's not the way that
the modern executive want.

00:10:26.318 --> 00:10:27.151
- [Host] Fascinating.

00:10:27.151 --> 00:10:28.076
Well, thanks so much Jeffrey.

00:10:28.076 --> 00:10:29.627
This is really informative.

00:10:29.627 --> 00:10:32.877
- [Jeffrey] Thanks. A pleasure to talk.


Presidential precedents of George Washington

WEBVTT
Kind: captions
Language: en

00:00:01.258 --> 00:00:03.712
- [Sal] Hi this is Sal and
I'm here with Jeffrey Rosen

00:00:03.712 --> 00:00:05.706
who's the head of the
National Constitution Center

00:00:05.706 --> 00:00:07.216
in Philadelphia.

00:00:07.216 --> 00:00:09.557
In the first video we did an overview

00:00:09.557 --> 00:00:11.918
of the entire Article
Two of the Constitution

00:00:11.918 --> 00:00:14.153
which covers the powers of the presidency,

00:00:14.153 --> 00:00:17.301
and now we're gonna jump
in a little bit deeper.

00:00:17.301 --> 00:00:19.332
Jeffrey one of the things
that surprises me about

00:00:19.332 --> 00:00:22.354
Article Two is for a job as
important as the President,

00:00:22.354 --> 00:00:25.706
it's an awfully short amount of text.

00:00:25.706 --> 00:00:26.658
- [Jeffrey] It is.

00:00:26.658 --> 00:00:29.978
Article One, defining the powers
of Congress is much longer.

00:00:29.978 --> 00:00:32.635
The Framers were much more
concerned about tyranny

00:00:32.635 --> 00:00:35.120
in Congress than tyranny in the Executive,

00:00:35.120 --> 00:00:39.432
and because there is so much
wiggle room in Article Two,

00:00:39.432 --> 00:00:41.763
presidential practice has
been really important,

00:00:41.763 --> 00:00:43.908
and obviously the most important
president in establishing

00:00:43.908 --> 00:00:47.682
that practice was our first
president, George Washington.

00:00:47.682 --> 00:00:49.519
- [Sal] This is this idea
that because it was short

00:00:49.519 --> 00:00:53.373
it left out a lot of what
a president maybe could do

00:00:53.373 --> 00:00:57.861
or could not do and that's
why our first president,

00:00:57.861 --> 00:01:00.476
the precedent that he
set was really important

00:01:00.476 --> 00:01:03.917
for how people perceived
the powers of the President.

00:01:03.917 --> 00:01:06.258
- [Jeffrey] Yes, it's a nice homonym,

00:01:06.258 --> 00:01:09.163
he was a both a president and
set this important precedent

00:01:09.163 --> 00:01:12.040
and because the Framers knew
that Washington was gonna be

00:01:12.040 --> 00:01:16.211
the first president, he
takes office in 1789,

00:01:16.211 --> 00:01:18.778
right when the Constitution is ratified,

00:01:18.778 --> 00:01:20.842
they trusted him to
establish these precedents

00:01:20.842 --> 00:01:22.940
which have been followed to this day.

00:01:22.940 --> 00:01:24.718
- [Sal] And just a little
bit of historical context,

00:01:24.718 --> 00:01:27.395
in 1776 is the official
founding of the country,

00:01:27.395 --> 00:01:29.008
the Declaration of Independence,

00:01:29.008 --> 00:01:31.821
the official start of
the Revolutionary War.

00:01:31.821 --> 00:01:34.699
Although I'm sure you have
skirmishes before that.

00:01:34.699 --> 00:01:36.697
Then we have the Articles of Confederation

00:01:36.697 --> 00:01:38.655
that get ratified in 1781.

00:01:38.655 --> 00:01:41.494
It was deemed that it was too weak,

00:01:41.494 --> 00:01:43.506
essentially of a confederation and then

00:01:43.506 --> 00:01:45.928
our Constitution gets ratified 1789,

00:01:45.928 --> 00:01:48.277
same year that Washington takes office

00:01:48.277 --> 00:01:49.410
as our first president.

00:01:49.410 --> 00:01:51.863
- [Jeffrey] Exactly right.

00:01:51.863 --> 00:01:54.574
As soon as he takes office,
Washington faces this dilemma

00:01:54.574 --> 00:01:56.562
that's not answered by the Constitution.

00:01:56.562 --> 00:02:00.168
And that's does he recognize
the French Revolution

00:02:00.168 --> 00:02:04.254
who have just killed and
guillotined Louis XIV.

00:02:04.254 --> 00:02:05.859
So Washington has these three choices,

00:02:05.859 --> 00:02:08.704
he can stand by the monarchy
and condemn the Revolution,

00:02:08.704 --> 00:02:11.325
he can recognize the French
Revolutionaries as the

00:02:11.325 --> 00:02:14.608
rightful government or he
can say it's not my choice

00:02:14.608 --> 00:02:16.753
and all of our former treaties are void.

00:02:16.753 --> 00:02:19.093
He consults his cabinet,
decides to recognize

00:02:19.093 --> 00:02:21.952
the Revolutionaries and that
establishes the precedent

00:02:21.952 --> 00:02:24.941
that Presidents now have
unilateral power to recognize

00:02:24.941 --> 00:02:28.276
or de-recognize foreign governments.

00:02:28.276 --> 00:02:29.860
- [Sal] And that's interesting
'cause when we're looking at

00:02:29.860 --> 00:02:32.640
Section Two which at least
talks something about treaties,

00:02:32.640 --> 00:02:35.325
it says that the President
can make treaties,

00:02:35.325 --> 00:02:37.694
I'll underline this.

00:02:37.694 --> 00:02:40.143
The President can make
treaties provided two thirds

00:02:40.143 --> 00:02:42.502
of the Senators present concur.

00:02:42.502 --> 00:02:44.896
It talks about ambassadors
but it doesn't talk about

00:02:44.896 --> 00:02:48.283
the recognition of foreign countries.

00:02:48.283 --> 00:02:49.953
And as you point out
the French Revolution,

00:02:49.953 --> 00:02:53.528
things started in 1789, as
you get into the early 90's

00:02:53.528 --> 00:02:55.962
the Revolution continues
and Washington says well,

00:02:55.962 --> 00:02:59.907
do we recognize the
government of Louis the XVI

00:02:59.907 --> 00:03:02.270
that helped America during
the French Revolution

00:03:02.270 --> 00:03:04.350
or do we recognize the
Revolutionaries who seem

00:03:04.350 --> 00:03:06.784
to have a lot more in common
with us in terms of their

00:03:06.784 --> 00:03:09.523
principles around government,
at least of the stated ones.

00:03:09.523 --> 00:03:11.677
And he decides that
well, it's not written in

00:03:11.677 --> 00:03:13.629
the Constitution here but as President,

00:03:13.629 --> 00:03:18.291
I can make that decision to
recongize the Revolutionaries.

00:03:18.291 --> 00:03:20.585
- [Jeffrey] Absolutely.

00:03:20.585 --> 00:03:23.584
That leads to another series
of important questions

00:03:23.584 --> 00:03:26.016
which you just flagged, who exactly gets

00:03:26.016 --> 00:03:28.616
to negotiate the treaties.

00:03:28.616 --> 00:03:32.624
And Washington has, soon
after the French Revolutionary

00:03:32.624 --> 00:03:35.949
recognition, he wants to
negotiate a treaty with Britain,

00:03:35.949 --> 00:03:37.326
it's called the Jay Treaty.

00:03:37.326 --> 00:03:39.460
So he secretly sends Gouverneur Morris,

00:03:39.460 --> 00:03:41.229
who's the Framer who
is most responsible for

00:03:41.229 --> 00:03:43.404
drafting the Preamble to the Constitution,

00:03:43.404 --> 00:03:47.087
as an unofficial emissary
or negotiator to Britain

00:03:47.087 --> 00:03:50.730
and they negotiate the
treaty and then Washington

00:03:50.730 --> 00:03:53.507
designates John Jay as the envoy.

00:03:53.507 --> 00:03:56.178
The Senate doesn't endorse
the diplomatic mission,

00:03:56.178 --> 00:03:58.506
Jay is getting his orders
straight from Washington.

00:03:58.506 --> 00:04:01.850
After the deal is reached,
then Congress, after the fact,

00:04:01.850 --> 00:04:05.346
approves of Washington's
diplomatic entrepreneurship.

00:04:05.346 --> 00:04:07.834
So this establishes the
really important precedent

00:04:07.834 --> 00:04:10.550
that the President can send
emissaries to negotiate

00:04:10.550 --> 00:04:12.119
treaties which are approved by Congress

00:04:12.119 --> 00:04:14.895
after the fact, and that
precedent is seized on by

00:04:14.895 --> 00:04:17.452
President Thomas Jefferson
who negotiated for

00:04:17.452 --> 00:04:20.300
the really important purchase
of the Louisiana Territory

00:04:20.300 --> 00:04:22.875
on the spot without Congressional approval

00:04:22.875 --> 00:04:25.649
and gets Senate approval after the fact.

00:04:25.649 --> 00:04:27.979
- [Sal] Famously negotiated
with Napoleon Bonaparte

00:04:27.979 --> 00:04:31.064
because he frankly, his navy
had been destroyed at Trafalgar

00:04:31.064 --> 00:04:33.709
so he was in no position to
protect something halfway

00:04:33.709 --> 00:04:35.244
across the world (laughing).

00:04:35.244 --> 00:04:37.808
- [Jeffrey] And this drove
Jefferson's critics crazy

00:04:37.808 --> 00:04:40.355
'cause Jefferson is this big proponent,

00:04:40.355 --> 00:04:43.348
before he becomes President,
of limited Presidential

00:04:43.348 --> 00:04:47.014
authority and he becomes
President and he seems

00:04:47.014 --> 00:04:50.145
to expand it by seizing on
this treaty negotiation power

00:04:50.145 --> 00:04:52.614
that isn't explicitly in the Constitution

00:04:52.614 --> 00:04:56.925
and hugely increases the
landmass of the United States.

00:04:56.925 --> 00:04:58.193
- [Sal] And the importance
of these precedents,

00:04:58.193 --> 00:05:00.639
just to go back to
Section Two, it does say,

00:05:00.639 --> 00:05:02.963
"He shall have power
by and with the advice

00:05:02.963 --> 00:05:04.998
"and consent of the
Senate to make treaties,

00:05:04.998 --> 00:05:08.197
"provided two thirds of the
Senators present concur."

00:05:08.197 --> 00:05:11.271
And your point is that the way
it's written in Section Two,

00:05:11.271 --> 00:05:13.483
it's not clear whether you need the advice

00:05:13.483 --> 00:05:16.261
and consent beforehand
or whether they just

00:05:16.261 --> 00:05:18.325
kind of approve after the fact.

00:05:18.325 --> 00:05:22.158
Washington, his term was
from 1789 until 1797,

00:05:23.885 --> 00:05:26.400
he assumed that no, I should be able to go

00:05:26.400 --> 00:05:28.859
and very nimbly negotiate
these things without

00:05:28.859 --> 00:05:30.786
having to involve the entire Senate.

00:05:30.786 --> 00:05:32.863
And once it's negotiated
I need to go to them

00:05:32.863 --> 00:05:35.010
and get them to approve it.

00:05:35.010 --> 00:05:38.843
Jefferson, who was in
power from 1801 to 1809,

00:05:40.294 --> 00:05:42.083
kind of further reinforced that precedent,

00:05:42.083 --> 00:05:43.959
said hey, I'm just gonna
negotiate this thing

00:05:43.959 --> 00:05:45.237
and then get it approved.

00:05:45.237 --> 00:05:47.648
- [Jeffrey] That's exactly
right and that allows Jefferson,

00:05:47.648 --> 00:05:50.741
when he gets approval for the
Louisiana Purchase in 1803,

00:05:50.741 --> 00:05:52.694
to get the Senate to
approve the treaty and

00:05:52.694 --> 00:05:55.356
to persuade the House to
finance the legal structure

00:05:55.356 --> 00:05:56.671
for the new territory.

00:05:56.671 --> 00:05:58.054
He probably couldn't have
done that if he hadn't

00:05:58.054 --> 00:06:01.467
worked out the negotiating
details in advance.

00:06:01.467 --> 00:06:04.445
- [Sal] Another element that
the second paragraph here

00:06:04.445 --> 00:06:07.500
of Section Two talks about is,
with the advice and consent

00:06:07.500 --> 00:06:10.088
of the Senate, this is talked about a lot.

00:06:10.088 --> 00:06:11.917
The Constitution tries
to set up the Senate

00:06:11.917 --> 00:06:15.888
as where the President
goes to test his ideas,

00:06:15.888 --> 00:06:17.388
get some thinking.

00:06:18.291 --> 00:06:21.210
But Washington also decides that well,

00:06:21.210 --> 00:06:22.955
it's not that efficient
to talking to all these

00:06:22.955 --> 00:06:25.492
elected officials, maybe
I'll set my own body

00:06:25.492 --> 00:06:27.645
that I talk to more frequently.

00:06:27.645 --> 00:06:29.186
- [Jeffrey] That's exactly right.

00:06:29.186 --> 00:06:32.204
As we talked about before,
Section Three of the Constitution

00:06:32.204 --> 00:06:35.304
seems to say that the
President can consult Congress

00:06:35.304 --> 00:06:37.692
for advice in all sorts of situations.

00:06:37.692 --> 00:06:40.605
He can convene both houses.

00:06:40.605 --> 00:06:42.398
He can adjourn them and so forth,

00:06:42.398 --> 00:06:44.720
but Washington established this precedent

00:06:44.720 --> 00:06:47.052
of using a cabinet, and that's a term that

00:06:47.052 --> 00:06:49.280
doesn't appear anywhere
in the Constitution.

00:06:49.280 --> 00:06:52.446
Despite the part of the
Constitution that also allows

00:06:52.446 --> 00:06:57.410
the President to seek the
opinions of the various officers,

00:06:57.410 --> 00:07:01.954
Washington informally
sought his cabinet's advice.

00:07:01.954 --> 00:07:04.210
And today although the
cabinet meets less frequently

00:07:04.210 --> 00:07:06.881
than it did before, the
Presidential Cabinet

00:07:06.881 --> 00:07:10.676
or Cabinet meetings is
established as a precedent

00:07:10.676 --> 00:07:12.676
in the Executive Branch.

00:07:13.909 --> 00:07:18.501
- [Sal] The last piece
that this Section Two also

00:07:18.501 --> 00:07:20.979
talks about the ability of the President

00:07:20.979 --> 00:07:24.181
to make appointments,
anything from ambassadors,

00:07:24.181 --> 00:07:27.021
other public ministers,
consuls, judges, Supreme Court,

00:07:27.021 --> 00:07:29.037
and other officers of the
United States and it also talks

00:07:29.037 --> 00:07:33.081
about Inferior Officers which
are more junior officers

00:07:33.081 --> 00:07:35.431
that some Presidents can do that without

00:07:35.431 --> 00:07:38.048
getting approved by Congress.

00:07:38.048 --> 00:07:40.775
This is also up for some interpretation

00:07:40.775 --> 00:07:43.620
and Washington's precedent's
important there as well.

00:07:43.620 --> 00:07:46.597
- [Jeffrey] It is, Washington
was very frustrated by

00:07:46.597 --> 00:07:51.275
the Senate and basically
decided to cut it out and

00:07:51.275 --> 00:07:53.740
not to seek advice and consent in person.

00:07:53.740 --> 00:07:55.832
One account says that when
he left the Senate Chamber,

00:07:55.832 --> 00:07:58.515
he said he'd be damned if
he ever went there again.

00:07:58.515 --> 00:08:02.133
He didn't seek the Senate's
written advice before making

00:08:02.133 --> 00:08:04.393
big decisions like treaty
negotiations and he just

00:08:04.393 --> 00:08:06.875
preferred to consult the Cabinet.

00:08:06.875 --> 00:08:09.446
That Cabinet had huge and
important disagreements.

00:08:09.446 --> 00:08:11.771
Again we know from the musical Hamilton,

00:08:11.771 --> 00:08:13.896
Hamilton and Jefferson disagree about

00:08:13.896 --> 00:08:16.707
the constitutionality of the
Bank of the United States,

00:08:16.707 --> 00:08:18.287
they both give their opinions,

00:08:18.287 --> 00:08:20.809
Washington listens to both
and he sides with Hamilton

00:08:20.809 --> 00:08:23.149
over Jefferson and decides to
bless the constitutionality

00:08:23.149 --> 00:08:25.185
of the bank, he got that from his Cabinet

00:08:25.185 --> 00:08:27.838
and not from Congress.

00:08:27.838 --> 00:08:30.289
- [Sal] And then finally
in this appointment,

00:08:30.289 --> 00:08:34.148
to what degree can the
President unilaterally

00:08:34.148 --> 00:08:35.942
take people out of
their jobs, fire people,

00:08:35.942 --> 00:08:37.744
that is also left to interpretation.

00:08:37.744 --> 00:08:39.853
- [Jeffrey] That's right,
Washington established the ability

00:08:39.853 --> 00:08:43.236
for President unilaterally
to fire executive officers

00:08:43.236 --> 00:08:44.974
or executive department heads.

00:08:44.974 --> 00:08:47.930
Since the Senate textually
has the power to hire

00:08:47.930 --> 00:08:50.687
department heads, you
could have read Article Two

00:08:50.687 --> 00:08:53.889
to allow it to have a mirror
role in firing them as well

00:08:53.889 --> 00:08:57.778
but the Supreme Court blessed
this idea that the President

00:08:57.778 --> 00:09:01.124
can dismiss people on his own,
there was an important case

00:09:01.124 --> 00:09:03.440
called Meyers Against United
States which said that

00:09:03.440 --> 00:09:05.970
the Vesting Clause which
we talked about earlier

00:09:05.970 --> 00:09:08.627
gave the President both the
authority to execute the law

00:09:08.627 --> 00:09:10.772
and to remove executive officials.

00:09:10.772 --> 00:09:12.919
There are other cases like
the Humphrey's Executor case

00:09:12.919 --> 00:09:15.570
from 1935 which said
that Congress could limit

00:09:15.570 --> 00:09:19.158
the President's ability to
remove certain commissioners.

00:09:19.158 --> 00:09:21.180
But the broad precedent
that Washington established

00:09:21.180 --> 00:09:24.264
is that the President's unitary authority

00:09:24.264 --> 00:09:28.431
allows him alone to fire
Executive Branch officials.

00:09:29.458 --> 00:09:31.399
- [Sal] Fascinating, well
thanks so much Jeffrey,

00:09:31.399 --> 00:09:33.366
this is super valuable.

00:09:33.366 --> 00:09:36.283
- [Jeffrey] Thanks, great to talk.


Constitutional powers of the president

WEBVTT
Kind: captions
Language: en

00:00:01.362 --> 00:00:04.006
- [Sal] This is Sal, here,
I'm here with Jeffrey Rosen,

00:00:04.006 --> 00:00:06.233
head of the National Constitution Center

00:00:06.233 --> 00:00:08.937
and we're gonna talk about Article Two

00:00:08.937 --> 00:00:10.998
of the United States Constitution.

00:00:10.998 --> 00:00:12.891
So, Jeffrey, what does the Article Two,

00:00:12.891 --> 00:00:14.761
what does Article Two deal with?

00:00:14.761 --> 00:00:16.386
- [Jeffrey] It deals
with the executive power,

00:00:16.386 --> 00:00:18.623
the powers of presidency
and it lays them out

00:00:18.623 --> 00:00:21.997
and it starts by saying
the executive power shall

00:00:21.997 --> 00:00:25.591
be vested in a President of
the United States of America.

00:00:25.591 --> 00:00:29.350
- [Sal] And today that
seems somewhat commonsense,

00:00:29.350 --> 00:00:31.446
the the executive power is invested in the

00:00:31.446 --> 00:00:32.798
President of the United States of America.

00:00:32.798 --> 00:00:35.171
Why did they, what's special about that?

00:00:35.171 --> 00:00:37.024
- [Jeffrey] Well, when the
Constitution was drafted,

00:00:37.024 --> 00:00:39.864
it wasn't obvious we'd have
a single executive under the

00:00:39.864 --> 00:00:42.639
Articles of Confederation,
all the state governors,

00:00:42.639 --> 00:00:46.248
some of them had plural executives.

00:00:46.248 --> 00:00:48.597
Alexander Hamilton at the
Constitutional Convention

00:00:48.597 --> 00:00:51.700
was proposing a kind of
monarchy, a President for Life,

00:00:51.700 --> 00:00:54.464
so the idea of setting out
limited powers for the presidency

00:00:54.464 --> 00:00:57.733
and specifying what they
were, creating a President

00:00:57.733 --> 00:01:00.732
that was energetic enough
to achieve common purposes

00:01:00.732 --> 00:01:02.902
but restrained enough not to be a tyrant

00:01:02.902 --> 00:01:05.956
was a huge achievement
for the Constitution.

00:01:05.956 --> 00:01:07.663
- [Sal] That under the
Articles of Confederation

00:01:07.663 --> 00:01:09.883
there wasn't a proper
executive branch, it was really

00:01:09.883 --> 00:01:13.582
the President presided, so
to speak, over Congress.

00:01:13.582 --> 00:01:16.509
- [Jeffrey] That's right
and each, you needed

00:01:16.509 --> 00:01:18.961
unanimous consent to get
anything done, which is why

00:01:18.961 --> 00:01:22.034
the Confederate Congress
couldn't raise money

00:01:22.034 --> 00:01:24.929
to support the war efforts
and couldn't raise taxes.

00:01:24.929 --> 00:01:28.017
So the framers came to
Philadelphia to create an

00:01:28.017 --> 00:01:31.432
energetic executive but one
that was also restrained

00:01:31.432 --> 00:01:34.414
and that's why the vesting
power is so important.

00:01:34.414 --> 00:01:38.858
It basically says that the,
all executive power is vested

00:01:38.858 --> 00:01:40.191
in the President

00:01:41.118 --> 00:01:43.899
but that power is not unlimited.

00:01:43.899 --> 00:01:45.791
Now, people have disagreed
about how much power

00:01:45.791 --> 00:01:47.089
the vesting power grants.

00:01:47.089 --> 00:01:49.342
Theodore Roosevelt had
this stewardship theory

00:01:49.342 --> 00:01:52.334
that the President can do
anything that's not forbidden

00:01:52.334 --> 00:01:54.345
by the Constitution and Article Two.

00:01:54.345 --> 00:01:58.089
William Howard Taft, who
came after Roosevelt,

00:01:58.089 --> 00:02:00.210
had the opposite theory,
a kind of judicial

00:02:00.210 --> 00:02:01.463
theory of the President.

00:02:01.463 --> 00:02:04.446
He said the President can
only do what isn't forbidden.

00:02:04.446 --> 00:02:06.681
So the question of whether
Article Two is the exclusive

00:02:06.681 --> 00:02:09.412
series of presidential
powers or whether there

00:02:09.412 --> 00:02:12.045
are other implicit powers
is a debate that continues

00:02:12.045 --> 00:02:13.386
to this day.

00:02:13.386 --> 00:02:14.730
- [Sal] This will be fascinating.

00:02:14.730 --> 00:02:16.391
We'll go into much more
depth in future videos.

00:02:16.391 --> 00:02:18.428
And just going through
the rest of Section One,

00:02:18.428 --> 00:02:20.879
it looks like there's
a lot of the mechanics

00:02:20.879 --> 00:02:24.133
of what does it mean to
have a term of office.

00:02:24.133 --> 00:02:27.050
What the, how you become President.

00:02:28.359 --> 00:02:30.496
Is that essentially Section One?

00:02:30.496 --> 00:02:32.799
You see this first part, he
shall hold his office during

00:02:32.799 --> 00:02:35.183
the term of four years and
together with the Vice President,

00:02:35.183 --> 00:02:37.480
chose for the same term,
be elected as follows.

00:02:37.480 --> 00:02:39.673
And then they kind of go into
the electoral college system.

00:02:39.673 --> 00:02:41.444
- [Jeffrey] Exactly, and then there are

00:02:41.444 --> 00:02:42.482
a couple other requirements.

00:02:42.482 --> 00:02:45.836
No person except a natural born citizen

00:02:45.836 --> 00:02:48.362
can be President and we
know that term was subject

00:02:48.362 --> 00:02:51.451
to some debate during the
recent presidential election.

00:02:51.451 --> 00:02:54.549
And then there's the provision
that says that Presidents

00:02:54.549 --> 00:02:57.119
have to 35 years old,
it's the most explicit

00:02:57.119 --> 00:03:00.607
part of the Constitution
and the point was to prevent

00:03:00.607 --> 00:03:03.209
aristocratic scions
without a lot of experience

00:03:03.209 --> 00:03:04.477
from taking office.

00:03:04.477 --> 00:03:06.508
The framers were really
concerned about having

00:03:06.508 --> 00:03:08.639
new monarchies and they wanted
to make sure that Presidents

00:03:08.639 --> 00:03:10.706
were seasoned enough
so that's why you can't

00:03:10.706 --> 00:03:13.278
be President unless you're 35.

00:03:13.278 --> 00:03:15.139
- [Sal] Fascinating.

00:03:15.139 --> 00:03:18.984
And as we go further,
and I've copied this text

00:03:18.984 --> 00:03:21.909
from your website, from the
National Constitution Center

00:03:21.909 --> 00:03:24.271
and why did you all
highlight some of this text

00:03:24.271 --> 00:03:26.948
of Article Two in this
yellow-orange color?

00:03:26.948 --> 00:03:28.800
- [Jeffrey] Well, we're really
thrilled by this website,

00:03:28.800 --> 00:03:31.593
we're excited to be doing a
series of videos with you,

00:03:31.593 --> 00:03:34.016
Sal, and it's the
interactive Constitution,

00:03:34.016 --> 00:03:36.452
folks can find it at
constitutioncenter.org.

00:03:36.452 --> 00:03:39.367
These are the main clauses
where we commission the top

00:03:39.367 --> 00:03:41.206
liberal and conservative
scholars to write about

00:03:41.206 --> 00:03:43.602
what they agreed and
disagreed about these clauses.

00:03:43.602 --> 00:03:47.806
So in Section One of
Article Two, the main clause

00:03:47.806 --> 00:03:50.266
is the vesting clause and
that's the one to focus on.

00:03:50.266 --> 00:03:52.086
The other stuff, as you
said, is basically just

00:03:52.086 --> 00:03:54.106
requirements of what you have to

00:03:54.106 --> 00:03:55.335
be in order to be President.

00:03:55.335 --> 00:03:57.684
And then we highlighted
other important provisions

00:03:57.684 --> 00:04:00.499
in Sections Two, Three, and Four.

00:04:00.499 --> 00:04:03.506
- [Sal] Yep and in
particular this section on

00:04:03.506 --> 00:04:06.709
the electoral college
system, this was superseded,

00:04:06.709 --> 00:04:09.769
I saw, I learned from your
website, by the 12th Amendment.

00:04:09.769 --> 00:04:12.373
Is that because of what happened with

00:04:12.373 --> 00:04:13.905
Aaron Burr and Thomas Jefferson?

00:04:13.905 --> 00:04:15.856
- [Jeffrey] Yes, we know that
from the musical Hamilton,

00:04:15.856 --> 00:04:18.451
the election of 1800 did not end well.

00:04:18.451 --> 00:04:21.534
There was actually a tie in the House

00:04:23.634 --> 00:04:25.874
and so it went into the

00:04:25.874 --> 00:04:27.699
electoral college and Aaron,

00:04:27.699 --> 00:04:30.801
rather a tie in the electoral
college, it went to the House

00:04:30.801 --> 00:04:34.858
and Alexander Hamilton cast
his support for Jefferson

00:04:34.858 --> 00:04:37.274
over Burr and Burr was
so furious about that

00:04:37.274 --> 00:04:40.150
that he challenged Hamilton to the duel

00:04:40.150 --> 00:04:41.842
that ultimately killed him.

00:04:41.842 --> 00:04:45.135
But the peculiarity of
having the original system

00:04:45.135 --> 00:04:47.314
where the first place winner
in the electoral college

00:04:47.314 --> 00:04:49.202
became President and
the second place winner

00:04:49.202 --> 00:04:53.724
became Vice President was
so unwieldy that provision

00:04:53.724 --> 00:04:55.829
of the Constitution was
amended and now, as we know,

00:04:55.829 --> 00:04:59.984
Presidents and vice Presidents
run on a single ticket.

00:04:59.984 --> 00:05:00.949
- [Sal] Yup, yup.

00:05:00.949 --> 00:05:02.581
And the rest of Section
One, it kind of finishes

00:05:02.581 --> 00:05:04.714
off with, in the case of the
removal of the President,

00:05:04.714 --> 00:05:06.982
his death, resignation,
or inability to discharge

00:05:06.982 --> 00:05:10.183
the powers, it talks
about how Congress can

00:05:10.183 --> 00:05:12.675
provide for who should be President next.

00:05:12.675 --> 00:05:15.063
- [Jeffrey] Exactly, so,
and there are statutes

00:05:15.063 --> 00:05:18.366
that provide that and
Congress has an elaborate

00:05:18.366 --> 00:05:21.127
rule of succession that
it's created as empowered

00:05:21.127 --> 00:05:23.478
by this part of the Constitution.

00:05:23.478 --> 00:05:25.835
- [Sal] Yep, and then
the last two pieces here,

00:05:25.835 --> 00:05:27.954
it talks about just the
compensation of the President,

00:05:27.954 --> 00:05:31.034
cannot be increased or
diminished during the period

00:05:31.034 --> 00:05:33.743
for which he shall be
elected, maybe to prevent him

00:05:33.743 --> 00:05:36.803
from giving himself a raise
or herself from giving

00:05:36.803 --> 00:05:39.498
herself a raise and then
the last is just the famous

00:05:39.498 --> 00:05:41.064
oath of office.

00:05:41.064 --> 00:05:43.836
I do solemnly swear or
affirm that I will faithfully

00:05:43.836 --> 00:05:48.247
execute the office of the
President of the United States

00:05:48.247 --> 00:05:51.141
and will do to the best
of my ability, preserve,

00:05:51.141 --> 00:05:54.555
protect and defend the
Constitution of the United States.

00:05:54.555 --> 00:05:56.213
- [Jeffrey] Sal, you did a
great job, although there was

00:05:56.213 --> 00:05:58.017
an extra do in there and
I'm pointing that out

00:05:58.017 --> 00:06:00.059
because you remember when
Chief Justice Roberts

00:06:00.059 --> 00:06:01.656
administered the oath to President Obama.

00:06:01.656 --> 00:06:04.058
The fact that he slightly
bungled it led Roberts,

00:06:04.058 --> 00:06:08.037
just to be safe, to
re-administer the oath.

00:06:08.037 --> 00:06:11.053
So, if you want, I can
do it again and maybe

00:06:11.053 --> 00:06:12.720
you'll be President.

00:06:13.947 --> 00:06:15.680
- [Sal] Sounds good.

00:06:15.680 --> 00:06:17.925
So then we get into Section
Two which is, I think, maybe,

00:06:17.925 --> 00:06:20.993
gets a little bit more involved.

00:06:20.993 --> 00:06:23.160
This first paragraph here,

00:06:24.623 --> 00:06:28.019
it says the President shall
be the Commander in Chief

00:06:28.019 --> 00:06:31.780
of the Army and Navy of the
United States and clearly

00:06:31.780 --> 00:06:35.887
they don't say all of the
different forces of the

00:06:35.887 --> 00:06:38.263
United States because we
didn't have an Air Force then.

00:06:38.263 --> 00:06:39.146
- [Jeffrey] Yes.

00:06:39.146 --> 00:06:40.020
- [Sal] Or Marines.

00:06:40.020 --> 00:06:43.464
- [Jeffrey] We sure didn't,
but there was a concern about

00:06:43.464 --> 00:06:46.999
the king controlling the
military, so the two main

00:06:46.999 --> 00:06:50.509
purposes of this Commander
in Chief clause are, first,

00:06:50.509 --> 00:06:53.376
total civilian control of
the military and second,

00:06:53.376 --> 00:06:56.225
the idea that there's
just a single leader.

00:06:56.225 --> 00:06:59.874
So the military is
subordinate to civilian and

00:06:59.874 --> 00:07:02.633
democratically accountable
control and unlike the

00:07:02.633 --> 00:07:06.404
Articles of Confederation, a
single person gets to control

00:07:06.404 --> 00:07:08.885
all of this power so that you can have a

00:07:08.885 --> 00:07:11.743
coordinated military force.

00:07:11.743 --> 00:07:13.896
- [Sal] And as simple and
as clean as this statement

00:07:13.896 --> 00:07:16.510
seems to be, in future
videos we'll discuss more

00:07:16.510 --> 00:07:19.756
of how this may or may
not be in contention with

00:07:19.756 --> 00:07:22.062
the power given to Congress in Article One

00:07:22.062 --> 00:07:24.341
around the right to declare war.

00:07:24.341 --> 00:07:29.247
- [Jeffrey] Exactly right,
we know that the President

00:07:29.247 --> 00:07:31.914
in Section Two has the power to,

00:07:36.322 --> 00:07:38.760
Congress has the power to
declare war and the question

00:07:38.760 --> 00:07:43.078
of what the President can do
is contested, as you said.

00:07:43.078 --> 00:07:44.928
We'll talk about it more
later but everyone agrees

00:07:44.928 --> 00:07:49.808
that the President has the
ability to repel sudden attacks.

00:07:49.808 --> 00:07:52.209
At the same time, we
haven't had a declared war

00:07:52.209 --> 00:07:54.091
since World War Two,
although there's been lots of

00:07:54.091 --> 00:07:56.204
military actions and
the question of how much

00:07:56.204 --> 00:07:58.096
independent power the
President has to initiate

00:07:58.096 --> 00:08:01.228
military action is very hotly contested.

00:08:01.228 --> 00:08:04.071
- [Sal] Yep, and in this next
section, this talks about

00:08:04.071 --> 00:08:06.951
the power of the
President to make treaties

00:08:06.951 --> 00:08:11.034
but with the advice and
consent of the Senate and

00:08:13.041 --> 00:08:15.183
it has to be approved,
provided two thirds of

00:08:15.183 --> 00:08:17.575
the senators present concur.

00:08:17.575 --> 00:08:20.616
- [Jeffrey] Yes, so the
treaty power is shared between

00:08:20.616 --> 00:08:23.797
the President and the Senate,
and generally people think

00:08:23.797 --> 00:08:26.210
that the Senate can approve
or disapprove or maybe

00:08:26.210 --> 00:08:29.090
attach conditions or
reservations to the treaty

00:08:29.090 --> 00:08:32.413
but the President, alone,
has the power to negotiate

00:08:32.413 --> 00:08:35.766
treaties and that was a precedent
set by George Washington.

00:08:35.766 --> 00:08:37.789
So the treaty power is shared.

00:08:37.789 --> 00:08:39.729
- [Sal] And there's a lot
here cause it also talks

00:08:39.729 --> 00:08:43.896
about the power of the President
to appoint ambassadors,

00:08:45.089 --> 00:08:47.767
other public ministers,
consuls, judges of the

00:08:47.767 --> 00:08:50.595
Supreme Court, and other
officers of the United States.

00:08:50.595 --> 00:08:52.405
So this is a pretty
important sentence there.

00:08:52.405 --> 00:08:53.492
- [Jeffrey] It sure is.

00:08:53.492 --> 00:08:55.541
We know now from the controversy over

00:08:55.541 --> 00:08:57.918
Supreme Court nominations
that the so-called advice

00:08:57.918 --> 00:09:01.137
and consent clause is really important.

00:09:01.137 --> 00:09:03.893
The advice and consent
clause is limited to

00:09:03.893 --> 00:09:08.425
high officers as opposed
to inferior officers.

00:09:08.425 --> 00:09:10.581
Because the clause says
for inferior officers,

00:09:10.581 --> 00:09:12.369
Congress can vest the
appointment in the President

00:09:12.369 --> 00:09:15.089
alone, in the courts of law or
the heads of the department.

00:09:15.089 --> 00:09:17.814
But for high ranking officials
like Supreme Court judges,

00:09:17.814 --> 00:09:21.329
the President can nominate,
the Senate exercises advice

00:09:21.329 --> 00:09:25.381
and consent and this is a
shared power between the

00:09:25.381 --> 00:09:27.292
President and Congress.

00:09:27.292 --> 00:09:29.578
- [Sal] Yes, and just
to make people familiar

00:09:29.578 --> 00:09:31.391
with the language, when
they're talking about inferior

00:09:31.391 --> 00:09:32.928
officers, they're not
making any judgment about

00:09:32.928 --> 00:09:35.641
those peoples capability,
they're more talking about

00:09:35.641 --> 00:09:39.740
a more junior, less senior
officials in the government.

00:09:39.740 --> 00:09:41.635
- [Jeffrey] That's an
excellent point but although

00:09:41.635 --> 00:09:44.618
it is a term of art, it's
hugely important and people

00:09:44.618 --> 00:09:46.910
have disputed about who
counts as an inferior officer

00:09:46.910 --> 00:09:49.247
cause a lot hangs on it.

00:09:49.247 --> 00:09:51.507
If the officer isn't inferior
then the President alone

00:09:51.507 --> 00:09:53.359
doesn't get to appoint them.

00:09:53.359 --> 00:09:54.367
- [Sal] And then they--

00:09:54.367 --> 00:09:56.834
- [Jeffrey] Sorry, and
also the question of who

00:09:56.834 --> 00:09:59.134
the President can remove or
fire without Congressional

00:09:59.134 --> 00:10:01.751
approval is important
and may hinge on that

00:10:01.751 --> 00:10:03.750
question as well.

00:10:03.750 --> 00:10:05.447
- [Sal] Right, and we'll talk
more about it, but it seems

00:10:05.447 --> 00:10:09.466
like, you need Senate consent
for more of the getting

00:10:09.466 --> 00:10:12.799
people into their jobs but being able to

00:10:14.407 --> 00:10:16.523
remove them is oftentimes,
there's more power there

00:10:16.523 --> 00:10:17.644
for the President.

00:10:17.644 --> 00:10:19.892
- [Jeffrey] Absolutely,
although again, like most of

00:10:19.892 --> 00:10:22.577
these powers, they're
contested, there are arguments

00:10:22.577 --> 00:10:24.785
on both sides throughout
history and the Supreme

00:10:24.785 --> 00:10:28.070
Court has both recognized
the President's unitary

00:10:28.070 --> 00:10:30.162
authority to fire
executive branch officials

00:10:30.162 --> 00:10:32.091
but in other cases have said
that Congress can impose

00:10:32.091 --> 00:10:36.171
certain conditions on when the
President can fire someone.

00:10:36.171 --> 00:10:38.254
- [Sal] And somewhere we'll
talk about it more but

00:10:38.254 --> 00:10:41.056
this next sentence, really,
is also a really interesting

00:10:41.056 --> 00:10:43.587
one is that look, when
the Senate is in recess,

00:10:43.587 --> 00:10:45.598
the power shall have the
President, the President

00:10:45.598 --> 00:10:47.779
shall have the power to
fill up all vacancies

00:10:47.779 --> 00:10:50.658
and it seems like it's
a temporary filling of

00:10:50.658 --> 00:10:53.753
positions by granting
commissions which shall expire

00:10:53.753 --> 00:10:55.947
at the end of their next session.

00:10:55.947 --> 00:10:57.877
- [Jeffrey] That's exactly
right and the President's

00:10:57.877 --> 00:11:00.324
power to make recess
appointments was just litigated

00:11:00.324 --> 00:11:02.411
before the Supreme Court
and the Supreme Court

00:11:02.411 --> 00:11:04.900
unanimously that President
Obama could not make

00:11:04.900 --> 00:11:07.945
certain appointments because
Congress wasn't technically

00:11:07.945 --> 00:11:10.200
out of session, so the
question of when the Senate

00:11:10.200 --> 00:11:13.566
is in recess is very
contested and the scope

00:11:13.566 --> 00:11:16.492
of that power is really important as well.

00:11:16.492 --> 00:11:20.392
- [Sal] And Section Three,
it kind of just says,

00:11:20.392 --> 00:11:23.023
hey, the President can
get Congress together for

00:11:23.023 --> 00:11:24.947
the State of the Union,
can address Congress,

00:11:24.947 --> 00:11:28.722
can kind of tell Congress
what's on his or her mind.

00:11:28.722 --> 00:11:30.055
- [Jeffrey] Yes.

00:11:31.568 --> 00:11:34.332
It does say that and
the State of the Union

00:11:34.332 --> 00:11:35.583
power is really important.

00:11:35.583 --> 00:11:38.065
You know, there's one
other clause in Section Two

00:11:38.065 --> 00:11:40.142
that just might want to flag and that's

00:11:40.142 --> 00:11:41.892
the take care clause.

00:11:42.953 --> 00:11:45.643
Sorry, that's in Section
Three and I know you're about

00:11:45.643 --> 00:11:46.781
to get to it.

00:11:46.781 --> 00:11:49.448
So we start with this ability to

00:11:50.679 --> 00:11:53.300
give Congress information
about the State of the Union,

00:11:53.300 --> 00:11:55.633
the ability to convene
both Houses of Congress

00:11:55.633 --> 00:11:57.312
in cases of disagreement among them.

00:11:57.312 --> 00:11:59.662
Then you get to this really
core power, that he shall

00:11:59.662 --> 00:12:02.817
take care of the laws
we faithfully executed.

00:12:02.817 --> 00:12:04.737
- [Sal] And why is that
so important that he takes

00:12:04.737 --> 00:12:06.682
care of the laws?

00:12:06.682 --> 00:12:09.946
I mean, isn't that what the
executive should be doing?

00:12:09.946 --> 00:12:12.715
- [Jeffrey] Absolutely, but
there's a serious question,

00:12:12.715 --> 00:12:14.721
what happens if the
President believe a law

00:12:14.721 --> 00:12:17.696
is unconstitutional, then
is it the kind of law

00:12:17.696 --> 00:12:19.220
that he has to execute?

00:12:19.220 --> 00:12:21.966
And President Thomas Jefferson
said no, he refused to

00:12:21.966 --> 00:12:24.912
enforce the Sedition Acts
which basically allowed

00:12:24.912 --> 00:12:27.367
the government to punish
people who criticized

00:12:27.367 --> 00:12:29.472
the President on the
grounds that Jefferson

00:12:29.472 --> 00:12:31.818
believed that it was unconstitutional.

00:12:31.818 --> 00:12:34.618
More recently, we've had a big
controversy over this clause

00:12:34.618 --> 00:12:37.245
when opponents of President
Obama's executive orders

00:12:37.245 --> 00:12:39.369
about immigration have said
that they're a violation

00:12:39.369 --> 00:12:41.820
of his power to take
care that the laws are

00:12:41.820 --> 00:12:44.794
faithfully executed because,
according to opponents,

00:12:44.794 --> 00:12:47.957
Congress reached a different
immigration policy.

00:12:47.957 --> 00:12:50.290
The Supreme Court ultimately

00:12:51.424 --> 00:12:53.981
refused to cleanly decide
that because of the four four

00:12:53.981 --> 00:12:57.344
split and it didn't clearly
rule on the question

00:12:57.344 --> 00:13:00.515
of the take care clause
and the immigration policy.

00:13:00.515 --> 00:13:01.858
- [Sal] Fascinating.

00:13:01.858 --> 00:13:03.784
And just to finish up
here and we'll go deeper

00:13:03.784 --> 00:13:07.222
in future videos as we
go into Section Four,

00:13:07.222 --> 00:13:09.189
this really just talks
about how the President

00:13:09.189 --> 00:13:11.190
or the Vice President
and all civil officers

00:13:11.190 --> 00:13:13.687
of the United States, how they
might be removed from office.

00:13:13.687 --> 00:13:16.681
- [Jeffrey] That's right
and we know from not so

00:13:16.681 --> 00:13:18.901
distant history that the
only way the President

00:13:18.901 --> 00:13:21.450
can be removed from
office is by impeachment.

00:13:21.450 --> 00:13:24.263
A President is impeached
by the House and has to be

00:13:24.263 --> 00:13:25.837
convicted by Senate.

00:13:25.837 --> 00:13:27.771
Two Presidents have been
impeached in American history,

00:13:27.771 --> 00:13:29.484
Andrew Johnson and Bill Clinton.

00:13:29.484 --> 00:13:32.224
Neither has been convicted
so we've never actually

00:13:32.224 --> 00:13:34.262
had a President who's
been removed from office

00:13:34.262 --> 00:13:35.327
under the impeachment clause.

00:13:35.327 --> 00:13:36.974
- [Sal] And a lot of
times in popular language,

00:13:36.974 --> 00:13:40.556
impeachment, to be clear,
impeachment is the accusation

00:13:40.556 --> 00:13:44.192
and then you have to be held
at, no you actually did,

00:13:44.192 --> 00:13:46.896
those crimes happened and
that's what you're saying,

00:13:46.896 --> 00:13:48.373
the Senate is responsible for it.

00:13:48.373 --> 00:13:50.018
- [Jeffrey] That's right,
you can be impeached but

00:13:50.018 --> 00:13:51.948
acquitted and that's what
happened to both Bill Clinton

00:13:51.948 --> 00:13:54.309
and Andrew Johnson so it's
like being indicted but

00:13:54.309 --> 00:13:56.420
then you go to trial and
you're later acquitted,

00:13:56.420 --> 00:13:58.753
you get to keep your office.

00:14:00.055 --> 00:14:01.405
- [Sal] Well thanks so much, Jeffrey,

00:14:01.405 --> 00:14:03.013
this is a super valuable overview.

00:14:03.013 --> 00:14:06.680
- [Jeffrey] Thanks,
it's been great to talk.