The Discretionary President: The Necessity & Dangers of Executive Authority | BRI Scholar Talks

0:00 [Music] hi this is tony williams a senior fellow with bri and we’re pleased to bring you another episode of scholar talks on this episode we’re honored to have scholar ben kleinerman who is going to discuss his book the discretionary president the promises and peril of executive power

0:21 as part of the american presidency series the guiding question for this series is what are the constitutional powers and limits of the american presidency now dr benjamin kleinerman is the r.w morrison professor of political science at baylor university where he teaches classes on political thought and political institutions

0:42 he is also on the board of directors of the jack miller center and he’s written for a number of scholarly and mainstream publications and is the author of the the discretionary president ben i want to thank you very much for joining us thanks for having me this is fun great well you know i really love your book because it it really taps into an issue

1:03 of you know how much power you know does a president have especially in terms of responding to crises and acting with discretionary authority and what i really love about it is it just approaches the question along the way from so many different angles right you have some political philosophy in there with hobbes and lock and then

1:25 looking at the founders and and lincoln and the progressives and some modern examples so it’s a really comprehensive look right it’s not just you know you telling us but how all these different sort of authorities and actors uh have listed questions so so so really really thoughtful well let’s jump right in uh so if you can just simply uh

1:45 you know define for us what is discretionary presidential authority and maybe give an example and then maybe as a follow-up we can ask what are the promises and perils as you stated uh of the exercise of that discretionary authority yeah so i think generally you know what i’m trying to define with by discretionary

2:05 presidential authority is those times when we need the president to act in ways that the law might not have specified or even in the most extreme examples against the law against what the the law specifies we needed the president to act in those ways because the situation requires it so the classic example i’d say is lincoln’s

2:25 suspension of the vedic abuse corpus at the beginning of the civil war he the given the situation given that troops are supposed to be going through baltimore on their way to dc and baltimore is a kind of hopped out of bed of confederates he needs to settle the situation but he doesn’t have the legal authority

2:46 you know essentially congress is given the authority to suspend the rate of babies corpus he does it anyway the question is should he have or how do we justify such authority you know because we don’t want presidents to be able to do it all the time right we don’t want them to just be able to set aside the law all the whenever they want but at the same time

3:06 there are times lincoln’s example being the case par excellence when we do want them to set aside the law so that’s what i’m wrestling with in the book because what i’m trying to argue in the book is that it’s really important that presidents have this authority and it’s really important that they not have too

3:26 much of this authority you know and that’s really so you would say the promise and the peril of that authority all right good now the founders themselves instantly had somewhat different views of that discretionary executive authority um and and you know there was sort of this this this debate dialogue between uh hamilton

3:49 alexander hamilton and james madison can you can explain that a little bit so hamilton is you know i’d say the john you of the founding generation you know um the he’s although i i wouldn’t say he goes as far but he wants a powerful executive and he wants a powerful

4:11 executive or president rooted in the constitution that the president’s discretionary authority would be understood as primarily constitutional and um you know how far that goes i i wouldn’t say it goes as far as the imperial presidency people now go with it but it’s still rooted in the

4:32 constitution and going fairly far so the various things the president needs to do that are outside the law of congress would still be inside the law of the constitution um if that means if that makes sense madison i’d say

4:52 is much more worried about presidential power much more worried about presidents becoming too powerful by the time of the washington’s proclamation of the neutrality act um he’d come to see that he hadn’t madison had come to see that he hadn’t fully appreciated at the founding that

5:14 the president could be a danger that even though the president is not a king that the executive power is still something dangerous for our constitutional order so whereas hamilton embraces a powerful executive madison um comes to worry about one okay right and that’s when they have this famous helvetius pacificus debate

5:37 over over foreign policy right right which is actually an interesting debate because as i like to point out it’s not about whether washington can do it it’s not even about whether washington had the authority to do it or whether he should have done it it’s about the foundation of washington’s authority

5:58 hamilton argues it’s implicit in the constitution madison wants to argue it’s it’s not in a certain way and so their disagreement is about the justification for washington’s action which is fascinating right you can’t imagine such a disagreement now you know the it’s a constitutional

6:19 disagreement in a way that we can’t imagine now you know right i was going to say they’re having an actual debate over the constitution formulating policy right yeah right right you know and they’re not supreme court justices at this you know they’re people debating about the constitution which we don’t do anymore we just leave it to the supreme court it seems right

6:41 uh and then uh you mentioned an example from lincoln uh president abraham lincoln controversially exercise discretionary presidential powers uh during uh the crisis of the american civil war uh and so my question to you is is did he exercise those powers legitimately and maybe can you give us a few examples

7:01 of this um yeah i think he did i i have a um a shrine to lincoln in my office a bunch of i sometimes use it as my zoom background with lincoln busts and things so i i like lincoln and i do think it was legitimate but it the question again comes to the comes back to

7:24 why and how it’s legitimate um it’s not just legitimate because lincoln says it so it’s legitimate because the politics of the time and the situation requires it which is i think really important in terms of understanding discretionary presidential authority it’s not inherent

7:45 in the constitution itself so in that way i think i end up disagreeing with hamilton when it characterizes hamilton’s position it’s necessary in those situations that require it which then invites a judgment by the people at the time and by later peoples as to whether that’s true

8:07 you know so it’s always something that invites judgment so unlike other legal kinds of exercise of power where the power is inherent and you can’t judge it because it’s already there discretionary authority is always inviting judgments and so the question as to whether lincoln had the authority to suspend the rate of behaviors corpus

8:29 during the civil war the supreme court in ex parte merimen says no so you could say well then he doesn’t but i think that’s not quite right we can still judge it politically independent of what the supreme court says right and unless i’m mistaken he uh took his actions to congress uh called them into a session uh and uh you

8:52 know sought to um you know offer up the the exercise of that authority to uh the people’s representatives yeah although even there he doesn’t he waits a while to do that um he doesn’t make it entirely clear that he needs their authority um in fact

9:12 one of my arguments in the book is that it’s actually in a certain way dangerous for congress to have that authority because it’s harder to judge when congress exercises it than when the president exercises it’s easy to judge one person who’s misused it but i’m not sure we want congress

9:34 i’m not sure we want congress voting on whether to [Music] you know start arresting people arbitrarily you know that that’s called bills of attainder the constitution is pretty explicitly takes that away from congress so one of my arguments is that it’s actually good for the one person to

9:55 exercise these powers because that one person can more easily be judged for how he’s how he’s doing with them okay and and judged by whom then uh you said is the congress is it the people is it congress it’s the people and impeachment has to be the most um the the constitutional means of judgment is impeachment um and

10:17 re-election you know so the people think he’s abusing his power they can impeach him through congress they can also choose not to reelect him so um there are means of judgments in the constitution right okay very good yeah i know that clarifies it uh and so uh how did woodrow president woodrow wilson and

10:38 the progressives view this this discretionary executive authority because they they had a sort of somewhat differing view of the founders constitution uh as i read it i think you know at its heart wilson thinks the constitution is insufficiently powerful for the president which means it needs to be supplemented by kind of rhetorical

11:00 authority um and [Music] so the the insufficient power means more power for the president has to come from popular offending from popular opinion rooting presidential power uh i think i mean in a way that’s related to what i just

11:22 said about presidential you know if in the course of world war one there’s a lot of aggressive repression of of public free speech and such and the people in in america um

11:43 initiated by you know say in a way wilson um and it it illustrates and they’ll initiated by not only wilson but representatives and so world war one actually illustrates well why it’s not always the case that you want the people judging these things

12:03 because sometimes the people judge to do the people decide to do things that are rather repre that it had you know have have a large degree of repression so that’s what i worry about with the progressive with wilson and the progressives is in a way

12:25 too much popular opinion too much popular opinion isn’t necessarily a good thing all right is this scene maybe in the debate over the versailles treaty uh you know wilson uh sort of doesn’t see it getting through the senate uh probably but he’s going to take his case directly to the people with this muscle stop tour and and try to whip up popular support for it yeah

12:46 well there’s that and that ends up causing this um in jeff tullis’s book the rhetorical presidency he illustrates this pretty well the that it causes this problem where wilson is saying one thing to congress and one thing to the american and a different thing to the american people and congress kind of

13:07 gets frustrated because they don’t understand what wilson’s actually saying and so precisely by going around the constitutional processes and trying to go to a public opinion what um wilson short circuits if you will the the the not sure short circuits breaks a circuit in the

13:28 constitutional order right uh and so my final question is is can you give some examples in the in the 20th or 21st century more recent history that illustrate the the necessity uh as well as the dangers of discretionary authority how have and maybe give some

13:48 some famous examples of how presidents uh have exercised this maybe for good or fail yes the example i used to give in my class when it was more immediately relevant because they remembered 9 11. on the day of 9 11 when the planes had crashed into the world

14:09 trade center and into the pentagon there’s a worry that there are more planes in the air that will start crashing and so bush issues an order that all planes left in the air need to need to come down immediately and along with that order issues in order saying if they won’t come down shoot him down

14:31 um now obviously he can’t have the legal authority right to start shooting down planes that’s not something you’d want to give him in the laws um rather dangerous to put in the law as well in this situation when this happens but it’s a nice illustration of discretionary authority because in that situation

14:52 it makes sense that the president have that authority it wouldn’t make sense to have that authority on september 10th you know on 9 10 you don’t say oh well if the president wants to shoot down on planes he can um or write that into the laws um so that’s i think a nice example of when when and why you want presidents to act

15:13 outside the statutes outside the laws which has the advantage you don’t want to make room for all contingencies in the laws because that those laws could be abused you know but you still want presidents to be able to deal with contingencies so um or as the founders use the word exigencies um so

15:36 911 i think of another i mean one of one of the things i’m exploring my current book is the extent to which in hurricane katrina um i think a lot of people wanted bush to exercise um the discretionary authority to just

15:58 send troops in and help people out but yet there were statutes standing in the way so i think in that case you actually there’s a was a desire for an energetic president that didn’t go beyond the laws i mean the governor of louisiana never formally requests him to do it so he technically couldn’t

16:18 and listens to the laws in that case we actually i think everyone at the time wanted to see the national guard come in and help people and you never see that in the way that we would have wanted so um you know there in other words that’s another time when we want presidents to exercise discussion or authority

16:39 i guess you could say some of the things for which trump was the trump impeachment went forward were perhaps abuses of presidential authority so you know in those cases trump is president trump was using authority independent of the laws and

17:00 perhaps abusing them i think one of the problems is that our discourse around this ends to be ends up being too legalistic and insufficiently political if you will or constitutional we should be asking did the president violate discretionary authority did the president do something that was simply

17:21 unnecessary an example another example of the president perhaps violating discretionary authority in a in a bad way would be again bush during the wars in iraq and afghanistan when torturing um torturing detainees became a question you know does he or should he have the

17:43 authority to exercise that kind of extreme power you know or is that an exercise something illegal something right the book is the discretionary president the promise and peril of executive power

18:04 ben i want to thank you for joining us thank you and thank you all for joining us on this episode of scholar talks please check out our other interviews in the series on the american presidency and from our extensive library of interviews on the topic including our cold war in the presidency series steve knott on the constitutional and populist presidency

18:27 and sarah burns on the presidency and war powers also check out the highly popular bri curriculum presidents and the constitution thank you for joining us you