Speaker 1: Bloomberg Audio Studios, podcasts, radio news.
Speaker 2: Congress can't always move as fast as the world moves,
Speaker 2: so presidents have been granted powers to move faster to
Speaker 2: respond to major events like war.
Speaker 1: Presidents and this has been true under almost every modern
Speaker 1: president I think, have really taken a broad view of
Speaker 1: their power to use force without getting authorization from Congress.
Speaker 1: Like President Bush, the first one maintained that he had
Speaker 1: the right to send troops to Iraq without congressional authority,
Speaker 1: and then later we have a say Obama doing drone
Speaker 1: strikes in Libya without asking for congressional approval.
Speaker 2: That's Dan Farber, a law professor and the author of
Speaker 2: a book on presidential powers. As he notes, none of
Speaker 2: this is new.
Speaker 1: I like to believe that presidents generally try to exercise
Speaker 1: their powers responsibly and that we haven't had like these
Speaker 1: huge abuses of power that are theoretically possible. But that's
Speaker 1: because of norms as much as it's about law, right,
Speaker 1: it's about sort of expectations about what people think is
Speaker 1: proper for the president that are kind of ingrained, but
Speaker 1: they're not necessarily backed up by law. We kind of
Speaker 1: count on these norms as restraints and to ensure that
Speaker 1: the broad powers of the president aren't abused.
Speaker 2: Over the years, through the use of executive orders and
Speaker 2: other tools, we've seen a tug of war between Congress
Speaker 2: and the president over the use of these powers. What
Speaker 2: keeps presidential power in check? Well, that's complicated.
Speaker 1: One thing that we're finding out is how much could
Speaker 1: the president say do hypothetically to use his powers to
Speaker 1: undermine the government or to block elections and have immunity.
Speaker 2: That's an open question and one that's soon to be
Speaker 2: debated in the Supreme Court. In a town hall on
Speaker 2: Fox News in December, Trump himself suggests that he'd use
Speaker 2: his first day back in office to issue a flurry
Speaker 2: of executive orders.
Speaker 1: He says, you're not going to be a dictator. I said, no, no, noe.
Speaker 1: Other than day one.
Speaker 2: As November inch is closer and the prospect of a
Speaker 2: second Trump term comes into focus, questions are swirling. Could
Speaker 2: a sitting president pardon himself in the face of legal troubles,
Speaker 2: could he take executive powers to a new level? And
Speaker 2: what does history tell us about just how far this
Speaker 2: could go? Today on the show, I sit down with
Speaker 2: Dan Farber, law professor at the University of California, Berkeley
Speaker 2: and the author of Contested Ground. We talk about how
Speaker 2: the American presidency has changed since the country's birth, what
Speaker 2: our founding documents have to say about it, and what's
Speaker 2: at stake if anyone decides to ignore the norms we
Speaker 2: take for granted from Bloomberg's Washington Bureau. This is the
Speaker 2: Big Take DC Podcast. I'm Saleamosen, So Dan, can you
Speaker 2: tell tell me sort of big picture, how has the
Speaker 2: executive branch changed in the time since the country's founding.
Speaker 1: It's almost impossible to exaggerate how much it's changed. The
Speaker 1: executive branch was tiny at the time of the founding.
Speaker 1: Even by the time of Abraham Lincoln. The entire White
Speaker 1: House staff that now fills the whole West wing of
Speaker 1: the White House and the building next to the White House, well,
Speaker 1: at that time there only had a handful of employees.
Speaker 1: Even if you just look at the army, the army
Speaker 1: when George Washington was president was smaller than the New
Speaker 1: York Police forces today. So there's just been this tremendous
Speaker 1: change in the scale of government. At the same time,
Speaker 1: the president's really become the focal point of US government
Speaker 1: instead of being just one of the three.
Speaker 2: Branches, and a lot of what we're talking about was
Speaker 2: sketched out in the country's founding documents. How strong are
Speaker 2: those documents on the point of presidential power.
Speaker 1: Like everything else about presidential power, that's debated. But my
Speaker 1: view from looking at the debates about the presidency and
Speaker 1: about gratifying the Constitution was that they didn't really have
Speaker 1: a very clearer picture of what the president would do.
Speaker 1: They spend a lot of time arguing about how the
Speaker 1: president would be elected. They actually spent time talking about
Speaker 1: whether there would be one person or three people, and
Speaker 1: they talked about whether the president would be chosen by
Speaker 1: Congress or in some other way. So they spent a
Speaker 1: lot of time talking about stuff like that, but they
Speaker 1: spent much less time, really hardly anytime talking about what
Speaker 1: the powers of the president would be. And so Washington
Speaker 1: created precedents for some of that that have kind of endured,
Speaker 1: but other issues really didn't come up at the time.
Speaker 2: And when did the twenty second Amendment, the one that
Speaker 2: states that a president can serve for two terms four
Speaker 2: year terms each, When did that come into play?
Speaker 1: So that was after World War Two, you know, until then,
Speaker 1: there'd been a custom of presidents only serving two terms,
Speaker 1: but then Franklin Roosevelt FDR served an extra term because
Speaker 1: the Great Depression was ongoing, and then a fourth term
Speaker 1: because it was the middle of World War Two.
Speaker 2: It was my firm intention to turn over the responsibilities
Speaker 2: of government the other hands at the end of my term.
Speaker 1: That could be the Republicans at least were really unhappy
Speaker 1: about that and thought we should have more in the
Speaker 1: way of term limits.
Speaker 2: It's interesting to hear that when the country was being established,
Speaker 2: presidential powers weren't really thought about. Let's come to the
Speaker 2: modern era after World War Two. Since then, what are
Speaker 2: some of the key moments that you think stand out
Speaker 2: as pivotal in the expansion of executive authority.
Speaker 1: I think beginning with World War Two, presidents have really
Speaker 1: assumed they had a lot more power or tagged independently
Speaker 1: on national security matters. Nixon tried to really push executive
Speaker 1: power in a lot of areas, but he got slapped down,
Speaker 1: and so there was like a period of reaction to that,
Speaker 1: say under Jimmy Carter and Gerald Ford, where the presidents
Speaker 1: kind of pulled back a bit. But then with Reagan
Speaker 1: there was really kind of starting with their conscious effort
Speaker 1: to expand presidential power.
Speaker 2: Dan, I'm curious, is it mostly war that triggers these
Speaker 2: kinds of overreaches or are there other signs that a
Speaker 2: president might try to expand powers so.
Speaker 1: A war and foreign affairs in other ways, Like one
Speaker 1: of the unsettled areas was whether the president can get
Speaker 1: out of a treaty at will, Like can Trump withdraw
Speaker 1: all on his own from NATO without permission from Congress?
Speaker 1: Not clear. One of the things we tend to see,
Speaker 1: say a president wants to do some big action, right,
Speaker 1: they want to spend money. So what they do is
Speaker 1: they look around the whole executive branch. They look if
Speaker 1: they've got some agency that has some power that's somewhat related,
Speaker 1: and then they tell that agency go big. And there
Speaker 1: are a bunch of federal laws that provide emergency powers.
Speaker 1: By and large, they're kind of vague about what's an emergency.
Speaker 1: If you're kind of worried about what presidents might do,
Speaker 1: one of the risks is they start invoking these emergency
Speaker 1: powers like the Insurrection Act in a way that might
Speaker 1: be very difficult for a court to intervene.
Speaker 2: What is the Insurrection Act?
Speaker 1: The Insurrection Act gives the president the power to respond
Speaker 1: to an insurrection with force without prior approval from Congress.
Speaker 1: I think it was used as early as George Washington,
Speaker 1: or at least a predecessor of the current law was.
Speaker 1: There's been talked that, like, maybe we should revise the
Speaker 1: Insurrection Act to define a little more close what's an insurrection,
Speaker 1: rather than taking the risk that some president might decide
Speaker 1: to just label something in insurrection and then you know,
Speaker 1: sending the troops. I like to believe that presidents generally
Speaker 1: try to exercise their powers responsibly and that you know,
Speaker 1: we haven't had like these huge abuses of power that
Speaker 1: are theoretically possible. But that's because of norms as much
Speaker 1: as it's about law, Right, It's about sort of expectations
Speaker 1: about what people think is proper for the president that
Speaker 1: are kind of ingrained, but they're not necessarily backed up
Speaker 1: by law. We kind of count on these norms as
Speaker 1: restraints and to ensure that, you know, that the broad
Speaker 1: powers of the president aren't abused. But a president who
Speaker 1: doesn't care about the norms is hard to restrain, and
Speaker 1: any restraint would probably have to come at least as
Speaker 1: much from Congress. Then who knows the politics and Congress
Speaker 1: at the time, So our safeguards are not as in
Speaker 1: some ways they're really strong, because these norms are really
Speaker 1: well ingrained, but in other ways they're not that strong.
Speaker 2: Heading into the November election, many voters appeared to be
Speaker 2: on edge. The latest Bloomberg News Morning Consult poll found
Speaker 2: that half of swing state voters fear violence around the election,
Speaker 2: and as Bloomberg Business because reported, both Republican and Democratic
Speaker 2: focus groups are hearing, undecided voters worry that if Trump wins,
Speaker 2: he won't seed power at the end of his second term.
Speaker 2: That wouldn't just go against presidential norms, it would also
Speaker 2: be in violation of the twenty second Amendment. Coming up,
Speaker 2: Professor Dan Farber and I dig into the legal loopholes
Speaker 2: that could be exploited or created to expand presidential power
Speaker 2: even further, and we talk about the strength of the
Speaker 2: Constitution itself and how the country's belief in it plays
Speaker 2: a role in ensuring its future. It occurs to me
Speaker 2: that Washington is a town of lawyers, and a town
Speaker 2: of lawyers are always looking to either exploit or create loopholes.
Speaker 2: Considering that are there loopholes in our laws right now
Speaker 2: that could subvert our free and fair and predictable election cycle.
Speaker 1: So there are some on the congressional side, because you know,
Speaker 1: if Congress decided not to do its job, it's not
Speaker 1: clear anyone else could stop them. In terms of the president,
Speaker 1: the president doesn't have any real formal involvement like in
Speaker 1: the counting of electoral votes or anything like that. But
Speaker 1: could the president use powers in a way to sort
Speaker 1: of favor his own side of an election or make
Speaker 1: it more difficult for people to vote in someplace. Maybe. Yeah,
Speaker 1: the idea that the president might stop people from going
Speaker 1: to the polls isn't one that I'm super worried about.
Speaker 1: But you can imagine lots of other things to try
Speaker 1: to influence the election that a president could do, including,
Speaker 1: you know, try to use the powers of the federal
Speaker 1: government against the opposing party. Some of the things that
Speaker 1: you know Nixon tried to do. You could imagine a
Speaker 1: president doing that. You don't have to imagine it. We
Speaker 1: know one of them tried.
Speaker 2: We're in the midst of an election year and one
Speaker 2: that is already tumultuous and could be even more tumultuous ahead.
Speaker 2: Do you think the Constitution alone can protect the passage
Speaker 2: of presidential power.
Speaker 1: I don't think the Constitution alone can do anything in
Speaker 1: a sense, right. I mean, it's a piece of paper.
Speaker 1: The Constitution has meaning to the extent that the courts
Speaker 1: enforce it, and that people believe in the Constitution and
Speaker 1: stand behind the courts. The power is power that comes
Speaker 1: from belief and faith in the rule of law. There's
Speaker 1: kind of a dilemma in constitutional law, right, which is,
Speaker 1: you want to prevent bad presidents from abusing their powers.
Speaker 1: Same time you know that emergencies happen that really do
Speaker 1: need responses, that the Congress can't always think of everything,
Speaker 1: and so you want to leave enough room for good
Speaker 1: presidents to be able to do the right thing when
Speaker 1: it's necessary. And so you kind of have to strike
Speaker 1: a balance. If you completely tie up the president in
Speaker 1: legal knots, that could be great for preventing abuse, but
Speaker 1: also means the president's not going to be able to
Speaker 1: take care of some important stuff.
Speaker 2: We also don't want a good president to abuse power exactly.
Speaker 1: So we're trying to kind of draw a line that
Speaker 1: gives the president enough power but not too much. It's
Speaker 1: sort of like a Goldilocks standard.
Speaker 2: If you're saying that a constitution is just a piece
Speaker 2: of paper. How much of what we're dealing with comes
Speaker 2: down to the black letter law versus the values of
Speaker 2: the day in society and the strength of the electorate.
Speaker 1: I think a lot of it does come down to
Speaker 1: the values of society. I mean, one of those values
Speaker 1: can be obeying the constitution right or the laws, and
Speaker 1: hopefully people think that's important, even if they don't totally
Speaker 1: agree with the say what the laws say. But part
Speaker 1: of it is are people still faithful to the idea
Speaker 1: of democracy and the rule of law. Having a constitution
Speaker 1: helps with that, Having the Supreme Court helps with that,
Speaker 1: can help with that. But at the end of the day,
Speaker 1: if the society isn't willing to stand up for democracy
Speaker 1: in some sense or you know, the rule of law,
Speaker 1: then they can't survive. We saw even you know, under
Speaker 1: Trump's first term, Congress said no to him sometimes. But
Speaker 1: it kind of relies on a sort of healthy party system.
Speaker 1: And again, I mean I worry about that at this point.
Speaker 2: I'm almost afraid to ask you this question now. But
Speaker 2: the US is looking uncertain to allies and adversaries abroad,
Speaker 2: and folks are wondering if someone could turn American democracy
Speaker 2: into a dictatorship. How long or short is the path
Speaker 2: to a dictatorship in America.
Speaker 1: I don't really see a sort of pure dictatorship emerging
Speaker 1: anytime soon. I don't think any president, no matter how
Speaker 1: belevolent they were, could turn themselves into Putin, where you know,
Speaker 1: they exercise basically unchecked power at all levels. In fact,
Speaker 1: I think even Putin took time to accomplish that. I
Speaker 1: think it would be difficult to do. We have state
Speaker 1: governments that have some degree of autonomy that would be
Speaker 1: hard to control. You know, we have all kinds of
Speaker 1: things that would work in the other way, including the
Speaker 1: courts right that I think would operate at least to
Speaker 1: some extent as a check. I think Congress would do so.
Speaker 1: One of the legal rules, it's very strong, is that
Speaker 1: the president can't spend money without authority from Congress. So
Speaker 1: that does give Congress some ultimate con goals over what
Speaker 1: the government does. What I do worry about is something
Speaker 1: not a dictatorship, but the kind of authoritarian still not
Speaker 1: entirely dictatorial government that we see in Hungary or with Turkey,
Speaker 1: where yeah, there's still elections and it's still possible that
Speaker 1: the people in power could lose the election, but it's
Speaker 1: not exactly a free society anymore either. On most days
Speaker 1: at least, I'm fairly optimistic that that's not going to happen.
Speaker 1: But i'd like to be certain it's not going to happen,
Speaker 1: and I can't say that. I am Dan.
Speaker 2: Thank you so much for joining us. Has been an
Speaker 2: absolutely illuminating conversation.
Speaker 1: Well great, it's been fun talking to you. Thanks for
Speaker 1: inviting me.
Speaker 2: Dan Farber is the author of Contested Ground, How to
Speaker 2: Understand the Limits on Presidential Power. Thanks for listening to
Speaker 2: The Big Take DC podcast from Bloomberg News. I'm Salaiamosen.
Speaker 2: This episode was produced by Julia. It was mixed by
Speaker 2: Blake Maples and fact checked by Audreyanatapia. It was edited
Speaker 2: by Aaron Edwards and Wendy Benjaminson, who provides editorial direction
Speaker 2: with Elizabeth Ponso. Naomi Shaven and Kim Gilson are our
Speaker 2: senior producers. Nicole Beemster Bower is our executive producer, and
Speaker 2: Sage Bauman is Bloomberg's head of Podcasts. Please follow and
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