i want to start with the reagan administration. i submit to you that the reagan administration stood for the proposition that a vigorous executive could play an important role in the country in domestic affairs and international affairs. i would note on the domestic side in particular just to emphasize that given john's interesting comments many of the leading cases that we talk about that you probably discussed are about the reagan administration. state farm, costco, those are cases where the white house is trying to reflect a particular plosfy, a particular approach to how the law should beismented. an approach that not everybody agrees with as justice rehnquist says in his concurrence state farm re-elects a degree of democratic legitimacy.

an interest that the administration has in implementing laws. how justice rehnquist asked can we not expectation elections to matter when the administrative state does its work. we still expect legitimacy to flow from the president. it goes forward into cases like the free enterprise case which was eluded to yesterday. but it also goes backward in time. that's what i want to draw your attraction to. it will show you what was afoot in the reagan mx was in some respects not that new at all. we've probably heard about the battles that the roosevelt administration had with congress vis-a-vis court backing. you may not have followed so closely is that a peril battle just as intense at the time

probably comparable to the debates today about the affordable care act reflected the administration into re-organizing the executive branch. roosevelt was clawing for authority to reorganize the executive branch. when congress slapped that down, interestingly enough the roosevelt administration did not take another run at it. if you want to hear mb at what happened, you can read a book that i've written, but is not on sale today. i want to draw your attention to a very interesting set of documents that i found buried under stacks and stacks of papers in the roosevelt library describing what roosevelt's staff was saying to the president about the importance of re-organization. i'm going to let the documents speak for themselves. i quote here, as a guide to the timing of steps and re-organization the following is suggested. first, do those things which when done will reduce the difficulties of the president in

dealing with his duties and assist him in discharging his activities as the chief administrator of the government. do those things to help the administrators whose responsibility to the people is through the president. third, do those things which when done will advantage heads of departments in the discharge of their own responsibilities. the memo goes on and has a note that says historical note. this is what i found interesting. roosevelt's aids were describing to the president the result of an effort that was under taken by commission to see how the federal government should be reorganized this is what the staff tells roosevelt. it is an interesting fact that few federal administrators have spoke on the the members of the president's committee on administrative management in terms of the interest of the president or the presidency or the administration. but nearly always in terms of the immediate and particular interest of the department or bureau as if it were safe trapping. a couple of things to observe

about this. number one is the extent to which roosevelt's staff understands the president to be the chief administrative officer of the government. we can argue about whether that's right or wrong. when reagan administration approached the problem it was not doing so on a blank state. second, it's interesting that the staff are concerned about how even hand picked very loyal political lieutenant in agencies might actually have a divergent view vis-a-vis the president. fast forward to the truman administration. here's one of his agency officials testifying before congress describing how he views his role as a presidential appointee. the department head must be regarded as an extension of the president's personality. he's expected to carry out any basic instructions which a president may provide for his guide asbestos. political attitude which this appointee describes as an important role for the appointee to bear in mind reflects believes on proud public issues.

on scope of government activities about both the ends and means of government action. my point is that the true man administration reflects agency officials describing to congress their understanding of the role of agency heads as folks who have not only an expert technical role but a role of engaging in political judgment. this is what i want to observe just in closing up. clearly you're talking here about a long running effort on the part of presidents from both parties to figure out how to make sense of their potentialities vis-a-vis a very large government. a large government that i might add notwithstanding some instances of presidential efforts to get legislation enacted has largely been created almost entirely created by congress itself. that has culminated an effort to enlarge the executive office of the president. to create senior aids to the president. people like harry hopkins in the roosevelt administration, jack you are lackman in the nixon

administration. kissinger, roger porter in the jovmt hw bush administration. this discussion was not happening with a judicial vacuum. if you look at the midwest oil case from 1915. curtis wright, youngstown and moore these cases are almost household names for law school. they reflected judicial recognition of the executive role of the executive affairs. the passage of time matters to the extent that presidential powers changing in nature i would argue that it's partly something that is being driven by congress. and in part it's being driven by a competition among different congressional committees to enlarge the jurisdictions of particular agencies and results in executive branch that often involves agencies with overlapping jurisdictions. these jurisdictions often place the president in a strange role where the role of the president is in part to deconflict and

figure out how to coordinate different agencies. it's important for us to recognize that courts have a very important and central role in our system. but when it comes to the issue of supervising and constraining executive power in particular, i submit the courts also face great constraints. some of those constraints are prudential, they're from unreviewablity, they're from standing con strabts. malt matly where that leaves us should be in recognizing that courts have an important role, but further recognizing that the rule of law is very much in our own hands. by that i mean in the hands of the people that are pointed to executive agencies who always have the choice to say this is not what i signed up for. this is not what i means to be loyal to the constitution. i am leaving this job and ultimately the american people who go to the ballot box. thank you very much. [ applause ] >> thank you. professor harrison. >> thank you. my presence here is an example

of what you might call just in time logistics. as a result of some travel difficulties that i don't want to tell you about, i arrived ant 15 minutes before the panel was scheduled to start. so i am here. and in the interest of last minute adjustments and spontaneity, i am going to substantially depart from when i was originally planning to say which was largely about war powers and a little bit about czars and instead talk more broadly about the topic we've been discussing and pick up from some of the things that everybody else on the panel has already said. and the first thing i want to talk about by way of illustrating the centrality of the presidency and as a result the centrality of the identity of the president at any time picks up something tina said a few minutes ago about the way in which the truman administration after the roosevelt administration reconsidered a number of important aspects of executive power in administrative law. one of the things that the

truman administration gave us is an almost certainly and potentially disastrously unconstitutional statute governing presidential succession. this is an issue on which i suppose john you and i would have strong feelings. the story is that president truman overruled the office of legal counsel. the result is disaster for the constitution. the presidential succession statute runs the succession of the presidency from the president to the speaker of the house then the president to the senate and then through the cabinet. for a long period before the most recent dange done under the truman administration in 1945 and 19 h 18946 when the statute was reconsidered and revised in light essentially of modern warfare and in particular nuclear weapons, for the proceedings 0 or 80 years after the change around 1880, can congressional officers had been taken out and the line of

discussion went entirely through the cabinet which was a very good idea both for policy reasons because it made it impossible to change the party control of the presidency by killing the president, which now can't be done again if the congressional officers are in the line of succession. it is at best highly doubtful to be in the line of succession for the presidency. they are most certainly not officers as they're referred to in the presidential succession provisions of the constitution. so imagine that something very, very bad happens to the president and vice president. and the speaker of the house and secretary of state are of opposite political parties. the secretary of state being of the president's party. the speaker being of the opposite party. and they are bitterly divided on some major policy question.

it is harry truman's fault. the point i want to make sure is just first it's an important thing to know and it's a fascinating story. but president truman, this is something particular to him happened to believe very strongly that it was very bad for someone who had never been elected to act as president. so he was adamant even to the point of overruling something no president should ever do, he was adamant that somebody who had been elected ought to be in the line of succession. and despite the constitutional difficulties with the arrangement and despite the problem of changing party, president truman said well, i'm the president and that's what we're going to do. and one reason we have that and

so much particular power in the president of the united states is we have a quite short short and spare constitution and one that is very, very hard to change. we have a great deal of authority vested in the president. even 200 years later if the constitution were rethought a number of changes would be made. i think the single most important change that might well be made again to pick up what he was talking about would be the constitutional create of an independent central bank. the constitution is too hard to amend. think of state constitutions they are much easier to amend. they adapt to the times much better. we still have the original constitution quite short, quite brief as john yu said designed for a presidency that does not

fit with the mod herb presidential role and in particular the role of the president as domestic leader. i will say the idea of the president as legislative leader began almost at the beginning. is this is one of those topics where the plan went awry from the outside. and jefferson was the leader of a political party and was immeansly influential with congress and president truman was able to get what he wanted done. having in sense criticized the constitution for being too hard to amend before being so brief and being so brief in particular about executive power and hence putting all sorts of importance decisions like the one about presidential succession in the hands of the president, if you wanted to justify the system we have, and whanted to show what is the role of the president should the president be making detailed decisions about how to structure the bailout should the

president be deciding monetary policy. quite possiblisy no. one argument that put made in the system that puts so much stress on the identity of the president, it creates a role for the president that maybe somebody can do. one of the things that specialists in separation of powers tend to underrate is the chief justice myers against the united states is built. the opinion is i will call it bulky and just leave it at that. but the fundamental insight of myers is that if the president has the power to appoint and the power to remove, chief justice taft who had been president of the united states thought those two powers together were really

all the president needed. and he might have been right because if the president can decide in whom he has confidence, if the president can decide often in very technical areas like for example monetary policy, this is -- this is the sort of person who the general political tendency that i lean and the general political tendency that caused me to be elected should have in this role and if the president can then take somebody out when he loses confidence in that person even if he doesn't understand what has gone wrong, if he knows that something has gone wrong, well then all the people really need to ask when they elect the president is not do you know anything about monetary policy, do you know anything about emergency management, do you know anything about nuclear disarmamentmenting one, what is your basic world view and two are you the sort of person who can decide which expert to trust? can decide in whom all this

confidence should be placed. do you have those fairly rare skills of management and assessment of other people that make it possible to be the taftian president. i don't want to be pollyannna on this. if i were in charge we would not come up with the same constitution. there is something to say for what we have. by creating this central figure, but creating the presidency and giving the president a task that a single individual actually can perform, it makes it possible for the spare old system maybe even if we would replace it and i would still to function. thanks. >> thank you very much. [ applause ] >> this is a good start to the discussion. what i'd like to do now is to open the discussion to members of the panel to respond to thoughts they heard expressed by their colleagues and let it go

from there. we will leave about a half-hour for questions from the audience. >> i agree with at least 95% of what john has just said. i want to touch on -- you're absolutely right. i think one of the interesting questions is it's been 60 years why is it that there is no serious discussion of this. there are a few of us who have written about this. i think part of it is because the legal academy and the legal culture at large is rights obsessed and regards this kind of issue as dull and boring and not worth our attention. but i think for the reasons that john sets out. the discussion is very much worth our attention and the brunt of work i'm doing these days is that the dull and boring

issues that are consigned to high school civics courses assuming any are taught any longer are in fact at least as important and i would argue are really more important than most of the rights disputes we get into because rights can change for better or worse. you win some elections, you appoint some judges and you will get different sorts of understandings about rights. but if for example, you think that one of the unfortunately features of our political system is the extent to which the presidential veto has turned us into a tricam ral rather than a bicameral system in part because it's not impossible to override a presidential veto. but it turns out 95% of all vetoes are upheld and we might have different sorts of results if it were a 55% or switching

from the majority of those voting to the majority of the actual membership of the senate. these all strike people as boring. one thing is we chopped downforces to discuss the difficulty of judicial review and never talk about other hearings in our system including bicameralism and the veto. a couple of other points because i know we should proceed quickly. the lincoln problem. we've had 44 presidents. so much of discussion turns out to focus as if it's an end of one. so that proposals are often judged about what abraham lincoln. let's talk about abraham loin condition for 30 second. he captured the white house with 38.9% of the popular vote. that election triggered a wall that killed part of the population. you may not believe the war was

a good thing. i'm slightly ambivalent to the extent that i support this con fill graduation. it is basically because of humanitarian efforts to overcome slavery. if one is anti-slavery, one ought to believe that it was described by garrison as a covenant with death should not itself been ratified. but even independently of the war, there have been 44 presidents and it would have been good and it is certainly not a very high end, but at least we might discuss the overall experiences we have had. john is right that the presidents are legislative leaders at least as early as jefferson and one thing about jefferson is he didn't like speaking to the public. it was the rhetorical presidency that arises with with woodrow wilson where he really takes --

makes the president much more into a cult figure, and i do think that one of the very unfortunate futures of our political system is the president serving as head of state instead of head of government and one of the things is that we expect presidents to be highly partisan leaders of political parties and that is taken into account with regard to vetoes and appointments. so the only area we disagree on and what i thought were extraordinary remarks is that i would trust more a president who fit the notion of the virtuous person, interested and public good then the president is always looking at the next election and it was based in part with ohio and we do need to talk about how one integrates the reality of the modern party

system into an 18th century constitution that was drafted under what we in retrospect can regard as the almost lunatic assumption that there would not be a party system that would not end up responding to politics. let me just end by quoting james madison in trying to get credit for madison and myself, my favorite passage in the 14th federalists where he emphasizes that we should learn the lessons of experience and praises the revolution aers for not being bound up by what he calls names or tradition and instead forging new understandings for a new world and i don't spend much or any of my time as bashing and i think they did the best they can, the people i want to bash are us today who don't learn an

important lesson from the generation of the founders which is to look at the lessons of experience, do what mr. jefferson -- and i believe in the revolution every 19 years, but he did leave in conventions and actually scrutinizing the extent to which the constitution is working well and it's not. >> it was a lot of fun and i appreciate sandy's comments about lincoln. so i thought -- i wrote this last book of mine which is not on sale today, unfortunately, which is about what makes for great bad presidents and we do tend to focus on the great ones, particularly lincoln, fdr and washington, and what i wanted to do was restore some attention to the loser presidents, right? the bad ones. so if you were to look at -- and the federal society did a poll of 300 scholars and they do it every few years asking us to

rank presidents and the outcome of the list was remarkably unchanged over the years and there's not a lot of valuation based on political part and the interesting thing is if you look at the ones who are at the bottom they tend to have a lot of high level of very accomplished people and so when i mention this, some of the students start thinking buchanon, buchanon because they think pat buchanon might have been president when they were kids and i'm referring in fact to james buchanon, the president right before lincoln who was truly an accomplished guy. the senator of pennsylvania had done everything you were supposed to do in being a good president and he thought the president had no right to stop secession to head off the civil war. another president i would actually put down in the bad presidents area, and there's more disagreement, this is

madison himself, so i think madison, if you look at his presidency was probably one of the smartest people to ever be president, but he actually did believe in executive legislature and it's particularly foreign policy and he let the country run into the war of 1812 which was the war we've been involved with with the war where the united states is neutral and between england and france and we make a lot of money trading between the two, and we decided to declare war against the only country whos had the troops on our border and why? because you want to invade canada, i'll understand the obsession of taking over canada. all the smart canadians move here anyway. >> it's for the doughnut, john. we would have had universal

health care faster, i suppose. the british took our capital and burnt it to the ground and this is how they've led action with the way the framers did have executive. >> there was a very interesting point about how exercises of executive power are a response to congress putting more and more responsibility and more and more duties passing broader and broader legislation where there was a president like reagan or president like clinton ask all those cases are cases where the reagan administration was trying to deregulate and they were using executive power to pull back the expansion of federal regulation as opposed to the different president who would use regulatory power who would expand as congress would like

and i would like to distinguish with two kind of presidential power in regard to congress. i think you're quite right. all presidents have responded to this phenomenon by doing some of the things mentioned on the last panel and trying to centralize authority and trying to put cost benefit analysis agency wide, and i think it is in that respect, a response, again, to the presence becoming excessively involved with the execution of the legislative policy. it's just an effort to try to control it, so i don't -- i can totally understand it, and i can understand why presidents do it. last, i have john harrison, and i thought that was interesting. i admire his effort as judge griffith was saying every convention has a panel on presidential power and also every federal society conference has traces and all of the world's ills and all who failed

to the loss of control to the removal of power and i think there is something to it. on the other hand, i wonder whether even if mars den had never happened and even if you lived in the meyer where they could freely remove any member of the executive branch. would it really cure the problems we've had with the administrative state. would it really enable the president to centralize control of this enormous administrative state that's involved in every area of human life. sometimes i worry that there is such a distraction that they would spend so much time on this and they would lose focus on important things which is, like, foreign affairs and national security. and the last example is fdr. fdr signed all these bills creating these limits and fdr was very much in favor of the executive and he accepted these limits when it came to domestic

policy and to play sandy's game about how do the presidents do if they were in office. i would bet if world war ii had not happened that fdr would have considered a mediocre president and now i think it did cure the great depression. i think it was when he focused on foreign affairs or the coming of world war ii and did violate to get us involved and that's when we began to consider him a great president. >> this is great stuff. i'm just going to be brief because i want us to get to the questions, but i want to note that this gives me great material to talk to my kids about. i'm still a little crazy here. so the main point is rethinking what a constitution should look like, but i wouldn't urge just to approach the task with much caution. there is a lot we