tv Presidents and the Constitution CSPAN June 14, 2015 6:30pm-7:31pm EDT
enormous impacts on population health. >> tonight at 8:00 p.m. eastern and pacific on c-span's "q&a." >> next on american history tv harold bruff, author of "untrodden ground: how presidents interpret the constitution.." " examines and contrast how presidents lincoln, fdr, bush and obama interpreted the constitution. bruff discusses the powers presidents assume from the constitution and how these assumptions shaped subsequent administrations. hosted by the national constitution center, this event is about 55 minutes. host: now it is my great pleasure to welcome harold bruff . you're in for a treat because these two scholars are as good as they come. harold bruff served on the law faculties of arizona state university, university of texas,
and gw law school where he left the year before i came. we just missed each other. i'm so glad, we have you in person. it is so great to welcome you. he has been a senior attorney in the u.s. department of justice. you know the olc that provides constitutional advice to the president, the most important constitutional body in the justice department. he testified before congress, and he is here today to discuss his new book "untrodden ground: how presidents interpret the constitution." and as our moderator, it is a thrill to welcome my old friend peter spiro. he is the charles weiner chair in international law at temple university's beasley school of law. he was rusk professor at the university of georgia law school. he is a former law clerk to david souter. he specializes in international immigration and constitutional law and is the author of "beyond citizenship, american identity after globalization." join me in welcoming harold
bruff and peter spiro. peter: thanks, jeff, very much for that gracious introduction. it is really a thrill to have jeff here doing so many wonderful things at the national constitution center. it really is a huge asset to philadelphia. thanks also to all of you for coming today. it is really a delight and a pleasure to engage mry old friend hal bruff in a conversation about his very excellent book, which is a real tour de force. i should mention before i forget that hal will be doing a book signing downstairs after our conversation, but hal and i go way back. he was a mentor to me when i was starting out studying the things he is one of the real leaders in in constitutional law. in the field.
so, we are going to have a conversation. then i'll prompt hal with some questions, and then we will take some questions from the audience. and so, looking forward to a really terrific hour with you. so the first question for hal really is, for you, is why you wrote this book. the conventional understanding of constitutional law is that it's responsibility of the course to tell us what the law is. what room is there to talk about presidents and their interpretation of the constitution? hal: thank you all for coming. no audience, no talk, no book sales. jeff was talking about the supreme court. it's enough of that, ok? we are not going to talk about the supreme court in this hour. if you have a system of three
separated branches each of them will interpret the constitution for itself every day. i knew that for years working on these issues. what struck me about executive interpretation as i want to look is no matter how many lawyers there were advising presidents, the way presidents interpret the constitution is very personal to them. if flows out of their personality, the events of the day, and it proceeds from their overall view of the constitution and works down from that towards particular issues. so what really matters in presidential interpretation of the constitution is the president himself or herself. and that's what drives it. the book is about that. peter: so the book goes through
the full horizon of american history and how each of the presidents approached constitutional interpretation. what role does personality play in constitutional interpretation, and you give us -- and can you give us some examples? is there a difference between being a good president and being a good president constitutionally speaking, or are the two coextensive? hal: i think there is a great deal of overlap between being a good president and being a good presidential constitutional interpreter. largely because when you reach this level the boundary between politics and law becomes indistinct. what the greatest presidents have done is to reconstitute american politics. with it, they hauled our views of the constitution along. jefferson did that, jackson
lincoln, fdr, reagan. so, presidential political action is eventually constitutional change. that means the one to have been effective at the one have been effective at the other. and those who have not been effective as presidents have typically had low impact on constitutional law. some from time to time. but not as much. peter: so, is there a difference between long politics? so, the line is not as distinct as you have with judicial institutions, but are there some things where the presidents are clearly engaging in constitutional interpretation an d other areas where it is just politics and how3 do the two sort of intersect? hal: the boundaries a pretty clear. some things are daily politics is some things are technical constitutional interpretation. what presidents do is they look at the constitution. is they are very interested in
what the presidents -- their predecessors have done. those are the only people ever sat in that seat. what the supreme court has said. they want to fit themselves into the tradition. this means that when presidents interpret the constitution for lawyers in the room, it is like generation of the common law. that is customs starts to build precedent starts to build. pretty soon we start thinking, this is no longer just a custom. it is constitutional law. an example well-known to peter is that early presidents started the precedent of deciding who is the correct governmental foreign power. there is nothing in the constitution on this. so, when we recognize a new government after a revolution, that is a presidential action because george washington
started doing that, and presidents have occupied that constitutional ground. peter: you have other examples some of them are historically prominent, i guess when it comes to issues such as war power and other national security questions. others are non-obvious, but very interesting demonstrations of the role presidents play in constitutional interpretation. so issues relating to presidential succession, veto power, the power to appoint and remove executive branch officials. these are fascinating samples, even though they are not the headliners. hal: let me mention a couple of them. presidential succession. when the first presidential to die in office did william henry harrison, john tyler came in and took the oath of office.
the question was was he acting president or was he president? if you are acting anything, you do not have much power. so tyler said, the constitution does not say, so i am the president. he took the oath, he made congress and the executive branch believe him. and now -- he insisted, basically. now everybody thinks of the president dies, the next person is president right then. you have to take the oath. so, that is a precedent that stuck. what was the second one? peter: veto power. hal: the early presidents, the founding generation that you see all around this national park, thought the veto should be used only for statuestes that were on constitutional. andy jackson said i will veto anything i do not like. the vetoed the bill to
reconstitute the national bank. here is the conjunction of long politics. he was democratizing the country. and having a presidential field that -- veto that could stop congress for political reasons was a real empowerment of the president. that view is the one we have today. the president can veto a bill for any reason he or she cares to. so there again, it is simply a change in practice that is hardened into constitutional law. peter: wthen with respect to the appointment and removal of executive branch officials, i know that the founding there was a question about whether the attorney general was going to be really on the president's side or whether she was going to occupy some sort of intermediate space between the presidency and the legislative branch. hal: and george washington decided how that should be done. the statute creating the
attorney general is the one that created the supreme court. it simply said there should be appointed an attorney general. it did not say who would do it. washington said that would be me. he appointed his personal attorney. many presidents have done that. the attorney general moved close to the president, because of this practice. the attorney general has been at the president's side ever sense. this mean the president ge sympathetic legal advice from somebodyts who could have been a semi-autonomous judge within the executive branch sort of thing. you know what would've happened? presidents would have found somebody else to ask. peter: on some of these things, from our perspective, it looks like that is the way it has to be. i guess the press -- the president seems to line up with what makes sense.
it did not necessarily have to end up that way. are there precedents, are there episodes in which presidents have tried to establish pre cedents that did not stick? are there some practices that had to be circumvented to other practices? hal: the most famous example ever of a practice that did not stick was the cour tpt packing attempt by fdr. there is one that demonstrates one of the real chekcs cks on presidential interpretation. he thought he could transform the supreme court in short order. both parties rose up against it. the people do not like it, either. subsequent presidents have not thought that was a road they could go down. earlier presidents have added
one here or there. it was -- overreaching is the thing to be avoided there. peter: so just taking the proposition on its face that presidents can engage in constitutional interpretation does raise the question of what does constrain them in the way t hey interpret the constitution. it is not just something they can do unilaterally. so what are some of the mechanisms by which they are brought in to check? hal: it is really a question of anticipated reaction. that is, presidents will have referred interpretations -- referred interpretations they would like to run with. if they have any sense, they are thinking carefully about what the reactions will be in congress, in the courts, if it is the kind of issue the courts will take on, among the people. and it's that political
construct that also constrains constitutional development. and i think in a way that is very good news because the whole system is moving along in this presidential -- precedential way, and it is a way we update our constitution. we cannot really amend it with any ease. it takes 3/4 of the states. that is one reason why the supreme court is so active. you cannot change the text ever. you need some sort of bipartisan thing like should 18-year-old's vote? peter: that points to your rejection to originalist approach is to the constitution. there are many who believe that all we need to get our constitutional answers is the text of the constitution itself and implicitly exquisitely reject that method of
interpretation. maybe you can elaborate on it. hal: although, after this talk i am going to go down and get among the statutes of the framers and see if -- peter: the oracle. hal: sometimes i think i can hear them anyway. but one of things that both madison and hamilton said in the federal 's is to see how this new construct is going to work, we have to work it for a while. we have to run the machine. then we will know how it works out. so, they thought we would have to adapt to this thing they had built, that they could only imperfectly predict. and generally teaching constitutional law, i do not like original sin because i do not think we can go back. and i will tell you, my book demonstrates beyond all doubt, that presidents are not originalists. they when they can will cite,
the framers and so on. they are very interested in the president -- the predecessors in office. they are interested in what it's become. they use mostly strategically things that were said at the time. lincoln did a lot of this. reach right past this to the declaration of independence. lincoln debt that because they were such defects in the original constitution which he was having a war over. he wanted to go back to the founding values of liberty and equality. presidents who reconstruct american politics and affect the constitution very often reach way back to what they sell to the people as original values. ronald reagan is probably the most recent president who has done that effectively. again, they look back to basic values but not technical originalists. peter: so, there's a kind of moral perspective that comes
into play? or is it a story of continuity and legitimation that presidents turn to in basically selling what they are doing today? or it just a fine with they are doing today? hal: yes. i think that teddy roosevelt's bully pupllpit notion undersells it. i do not think the moral dimension of the office can ever be separated from it in terms of effectiveness and of constitutional development. i think of both lincoln with his greatness of bringing the country to a new birht ofth of freedom, and to the presidents before and after who lacked any kind of moral vision because they both saw the country as it had been in 1840 and wanted in
many ways to head there. so vision for the united states looks back for basics values and forward to what the country is supposed to be. that is what is affected. that plus pragmatism on means. to be effective as a president has to be -- willing to find a way through. peter: we can name some names. best presidents from this perspective? maybe those who were some that were more flawed in examples on how their interpretation of the constitution did not fly or was misdirected? hal: as i researched this book, what i wanted to do was to look back at the history. i did that. it took a liong time. instead of imposing a theory on history. as i went along, some people surprised me. i had revered lincoln.
this only d defense because i saw his -- deepened, because i saw fact hungering us. presidents who lose touch with those become far less effective. a great difficulty george w. bush had was he was not as interested in the facts on the groundin say the middle east as he should have been. fact hungriness matters a lot. rigidity and means. woodrow wilson lost a lot of effectiveness because he just did not have the kind of subtlety about working his program through that lincoln had superbly, that a ronald reagan did well. so it is along these kinds of lines that they develop. i wound up liking wilson a good bit less. i wound up admiring lyndon
johnson for histamine stick side -- his domestic side. he brought the civil rights bill through, knowing it would impact his party. he thought it was the right thing to do. his tragedy in vietnam wrecked his reputation but there is a side of it that should be alive. peter: so, lincoln, he may have been very careful with the facts but he was also, of course somebody who could put expository eloquence to work. i found very interesting a phrase that you use that he used with respect to this kind of practice precedential, this continuity to the founders. "the mystic chords of memory," which i thought very powerful. encapsulation of what you are talking about here. at the same time, you also have
a label for this interpretation by the presidents of departmental is him. i wonder if you could sort of elaborate on those two strands and what they reflect. hal: departmental-ism is a term i would never use in the book unless everyone else was using it. all it means is the phenomenon that each of the three branches interprets the constitution in its own way reflecting its function. the courts are different from the executive branch. departmentalism, each of the three branches looks at it different. so i thread that through because i'm looking at one of these threads. the mystic chords of memory is intrinsic to the way the executive branch does it because you have a string of single individuals at the apex who can try to relate in as systematic
fashion as the politics allowed to everything that has gone before. what strikes me very much reading about all the presidents, everybody down to barack obama is like this, they are forever talking about what their predecessors have done. they are deeply interested in their legacy, and they tried to connect it up to the grander figures of the past. nobody is looking to be the next pecan and. -- the next buchanan. some of them are really mystic because they are in avlues and visions for the country -- and values. peter: maybe bringing the story closer to the present day, how would you compare the personalities, the styles of george w. bush and barack obama in terms of their their
approach to constitutional interpretation, and which of t heir predecessors to they most resemble in their constitutional style? hal: how aer re they like and who are they like and unlike? start with barack obama. i think the highest compliment i can give him, the one he would like most, is i do consider them to be fact hungry like lincoln. this was a problem for george w bush who was much more value-based. both of them have had difficulties that come from parts of the package that are not there. for barack obama, someone that read the book, said to me, it looks to me practically as though maybe he is a bit too much of a. professor so, i said that is exactly right.
that is the problem. he is too much a of a professor. he is explaining things the way i might. not the way ronald reagan would. for obama he is not have an overarching vision as a reconstructed president. modern politics have made that difficult in ways we all know. he reminds me a little bit of george h.w. bush in a swense, he has run a competent presidency but without the vision overlay that you would want if you really want readch. for george w. bush, he wanted to be ronald reagan with his values. i do not think his vision sold as well as reagan's had. he reminds me a little bit of woodrow wilson in the downside way, who was i think a little bit too rigid, especially in the early years.
he loosened up and got better in a lot of ways in his second term. but these guys, you can see amalgams of their predecessors. it is never an exact fit. they will have a little bit of this one or that one. i invite readers to make their own club sandwiches out of these guys. peter: of course, one thing that both of them faced but now particularly president obama is a context in which there is full-out political gridlock, in which there is very little cooperation of any description between the executive and legislative branches. how does that effect this exercise in constitutional interpretation from the perspective of the presidency? hal: what is has done, i think for anybody who might be in the white house right now, i think this will be true in january 2017, because i think the red-blue split is going to
continue, and the sender does not seem to be anywhere to be seen. what it means is they will have to do a lot of going it alone. and the way barack obama is doing that is very likely the way that mitt romney would be doing it if he had been elected instead. domestic side. obama is issuing executive orders in what i call the twilight zone, areas where a statute does not clearly say he may act or not. the immigration one is a good example. it is in an area where there is some authority. you have to decide whom to deport. there are 11 nine undocumented people in the country and there is money to deport 400,000 every year. do the math. figure out who you're going to deport. obama said we were going to keep the student and send the felons and we will tell people they can stay a while. this in the twilight zone.
the statutes did not say clearly yes or no. it is in the courts. i think obama should prevail. notice what he cannot do is simply go to congress and say, ok, ready now. -- let's do an immigration statute. he harkens me back, it looks like he got bitten by teddy roosevelt, because tr was completely blocked on his conservation agenda, so what he did was issue executive orders in areas were statutes gave him just enough authority to do things like preserving the grand canyon. it is a tradition that stretches back to presidents whenever congress is not helping they will look for areas and statutes where there is just enough room to maneuver. fdr's famous to story is still was one of though. there was maybe enough authority to allow it. he was right at the edge. peter: the tr comparison to
obama seems particularly appropriate on the foreign policy side. from what one hears about the iran nuclear deal, you would think that the executive orders or something barack obama has made up when in fact they go way back to not just to tr but to the founding itself. hal: here is one of those areas were refilled in gaps in the original constitution. we know the original constitution allows you to make treaties. the president sense to send. -- to the senate. starting with washington, we made agreements with other countries. the first one had to do with how we do international mail. we had to agree with each different other nation how you do international mail. do you want to line it up and send it to the senate? you just exchange
correspondence. executive agreements started with washington. over the years, they started being used for important things. the destroyer deal, the -- with great britain was one of those. the iranian hostage settlement in 1979 was one of those. there were delicate international things where you may have three or four international parties working. you have to schmooze it through and find a way. that is true of the iranian negotiations now. in the main constraint on it is what congress will tolerate. i have thought this developing where congress wants a yes or no say so on the iranian agreement is entirely positive because it brings congress in. it is not something he has a right to keep them out of. they can insist on dissertation. -- on precipitation --
participation. i liked by and with congress in any major foreign-policy initiative. -- i like buy in. >> that points to another example of congress overreach. they have to step to the plate and do something otherwise does it tend to be congressional acquiescence to particular policies? >> the hard part is knowing when you have acquiescence that you think is genuine. the best current example. the whole set of current commander in chief initiatives. they are being done under the authority of two things. the authorization of force
following 9/11. the other is the 2003 authorization against iraq. isias maybe kissing cousins to al qaeda, but that is all they are. we need renewed authority on that. obama has asked for that in congress is making it over in the most extended way and showing no movement. i think that they need to get aboard and set a limit for things that are difficult for them. and many cases like that they would simply acquiesce in a way that doesn't make them feel very good about them or help the president much either. foreign affairs has historically had a lot of presidential interpretation because the courts have been very reticent in stepping in with their own constitutional views. is that better, or worse?
are there things about our current global context that tend to enable presidents and maybe even create conditions in which presidents can engage in a type of constitutional adventurism? >> i think that this is very much a feature of the gridlock problem. congressional oversight is not nearly as effective as it has been over the generations, were congress would engage or provide statutory authority or withdraw some. on the adventurism, we have more by machines. drones, cyber warfare, all of these sorts of things that we have not thought through. obama has been insperity --
experimenting. george w. bush experimented before, the less aggressively. the real concern is this. it is difficult for congress to check the president. in the foreign affairs, it is difficult for the courts to check him. i am concerned about whether the presidency is out of control of the presidents themselves. we have a giant secret, national security bureaucracy. part of it is privatized. part of it is cia nsa. the president struggles to hold command. there are signs known again that it is -- now and again that it is slipping away. for one set of hands to control this, when it is hard for you and me to know what is going on, is a challenge of our time.
>> you and the book on a hopeful note. why should we be hopeful given these conditions on the ground that seem to dilute the checks we see in history that you describe. >> we are all we have got. [laughter] the president is what we have got. the system is working along in what seems to me an acceptably fair way most of the time the checks work, not only all that well but we look at the whole course of things and the machine is working on it. as we start to enter into the electoral season, is there a way
that we can put your lens to work in assessing candidates for the presidency? to what extent does the office make the person rather than the other way around. >> the office will change the next president, fairly immediately very importantly if you look at the last five to 10 electoral campaigns, compare the issues of the presidency in question. the disjoint is going to be fairly considerable. what i look for are those questions of personal character that i am hoping for. a vision of the country that is clearly communicated that it looks as though the country will and doors those political skills to make that move along and i am a lot more interested in that
than a position on a minor policy question. it is those questions of character that have mattered the whole time. it is the genius of the american modern political system to obscure all that from us. in colorado, there will be attack ads from here to the election because we are a purple state. we have to work through that. >> we have some excellent questions here from the audience. maybe we can move to them. first we have a question -- presidential interpretation always tends to enhance presidential and federal power. should congress and the courts do more active controlling of this tendency? there is an interesting trend in
the supreme court to try to control presidential power including in the sphere of foreign affairs. even though you have presidents back to the washington administration where it has been generally understood that this is the president's power that question is now presented before the court. how would the court use that historical precedent in reaching its determination, and should it police history in that sense? >> very good question. for the court, let me start with the front of the question. the president certainly has an incentive to aggrandize and
increase their power. this is self interested interpretation. the nature of this one symptom -- they are aware of the constraints they see around them. for federalism questions, most presidents will not be unduly sensitive to that. although occasional ones are, jefferson, jackson, reagan and so on. it will happen but you need someone with a certain conservative mind cast to do that. the supreme court has been active in that realm. pretty much more against congress than the executive. the jerusalem case mentioned is where they may wield
presidential power a little, but most of the court's granting federalism has been through the regional statutes. >> a very interesting case from last year's term of the spring court in which the court addressed the question that before the decision had pronounced that addressed -- the court may vary in thing in that decision. >> it is a 5-4 decision demonstrates you can get anywhere you want to get with history. you can make a good historical case for either side. the one thing that it does, is to make it almost impossible for recess appointments to happen a time in the immediate future.
it is one of those cases where the practice can go on for centuries. finally the case at just the right posture to come through. >> a question on bill clinton. anything to say about his approach? >> he is an interesting soul, isn't a? -- isn't he? it took him a long time to learn. he lost a big election two years in, much as obama did. clinton is such a natural politician that he learned the leverage of power. his constitutional interpretations were in foreign policy. kosovo and things like that. most of these democratic presidents have been quite aggressive. in part for humanitarian
interests, which is kind of new. for the most part presidents have projected -- to protect american citizens and american interests. it is not something we have done a great deal of. he turns out to have developed along those lines. >> so long that point it is the case that both president clinton and president obama have been very aggressive in interpreting the war powers resolution to create exceptions. both cases they were faced with ongoing military operations that lasted for longer than 60 days so they then should have terminated those operations. president obama, more recently
with libya and president clinton with kosovo. does that show that there are limits on how congress can check presidents in the context of war power and national security? >> i think if i had finished writing the book last week instead of late 2013, i might have modified some of the things i said about war powers. the war powers resolution says if the president is using the troops in hostilities, he has 60 days to get it done, get the troops out or get authorization. the book says that his constitutional. it is a deadline that congress can do. it has worked, until bill clinton went over the period and congress rumbled and grumbled and eventually gave authorization late. bill clinton -- bill clinton went over the period in libya. nothing happened.
now with isis, he is reaching way back to those earlier authorizations i mentioned to find an authority hook. to put it in lbj's terms it is getting thinner than grandma's nightgown. the authority is very weak. but congress, which has been asked, has not been willing to step up and do something. it puts the presidents in a bad position. >> at the same time, the public doesn't seem very agitated. you speak of political ratification, in effect, by the electorate. how does that play into these kinds of questions? a sense that the public seems to acquiesce to the action? >> if you ask me the greatest change to the text of the
original constitution, it is to grab a great deal of the war power away from what the framers thought was a congressional center of gravity. the commander in chief power has come to dominate it in many ways. that secreted slowly. a lot of it came through the late 19th century adventures in latin america. americans have become used to the idea that the president will move the troops and do more like activity without immediate preauthorization from congress. william howard taft may have put it best. he said, i can send in the marines by myself, but it takes congress to send in the army. he meant, i can do a military strike, but if i want to occupy somebody, congress has to do it. there is a practical legal line there somewhere. it has moved way toward the
presidency in modern years. >> you can almost draw a line between real war, which requires congressional approval and for which presidents have almost always secured approval, korea being the exception, as opposed to these other smaller scale operations of which there are 100s by some counts. does that line work pretty well by way of identifying the line in the precedent itself? >> as i finished the manuscript, i thought it was working pretty well. the difference between a strike and something that warrants authorization, the scale and expected response and so on, korea is the outlier.
that is a precedent that failed. he didn't ask for authorization because he did not want to constrain future presidents. the lesson that has come down, is that was a big mistake for him. dwight eisenhower came in and said he was over the line. it was unconstitutional. he had to go to congress. occasionally they take a step that has to be stepped back from. both times, dick cheney said, we don't need it. >> we have a very informed audience today. two questions that any student of foreign relations law would pair together. one is, is the truman u.s. steel case an example of overreach of the presidents in interpreting the constitution, and another question, can you comment on the united states versus curtiss
wright export operation and its influence on the law and foreign policy in relation to presidential power. these are two favorite opinions. >> indeed. in 1952, there is a steel strike. harry truman issues an executive order that seizes the steel mills and puts them under government control. the injunction is successful and harry has to give back the steel. the case is nothing but good for the way the government works. those of us who work in the justice department know the point of the steel seizure case is that when a president contravenes a statute -- when congress contravenes statute the president will stop them. the steel seizure principle is, you can stretch statutory
authority, but don't defy it. that is very important in the executive branch on a day-to-day basis. yes sir, you can go here. nose or, don't -- no sir, don't go there. the executive order obama issued left out a category he had been issued left out -- because he did not think he had authority and i think that was right. curtiss wright is the favorite hymn of the executive branch when it comes to extremist assertions of power. the supreme court in deciding a case that wasn't important said a lot of things about how the president is the sole organ of the nation in foreign policy, and has exclusive power. suggesting that congress could not control the president. it has. nothing to do with the decision of the case. it is really stupid, in terms of
how the country can work well. you don't need the president running rampant. if congress tries to control him, they ordinarily should be able to do so. it is hard enough to do that anyway. curtiss wright is like a scoundrel and foreign affairs dialogue. >> the old line is curtiss wright so i am right. which leads out in the litigation. any off presidents will cite the case because it serves their interests. it is not curtiss wrong. while some have been disappointed with president obama, because while it seems that he has put the bush administration interpretations to work, maybe a few words about the continuities between the two administrations. >> it was very interesting in
2009, my book section is titled plus la change. the old french proverb. the more things change, the more they stay the same. presidents who want to get an office are much more likely to be continuous than discontinuous with what presidents have done, if the actions were, as the new president perceives, in the general interest of the united states. obama wanted to" tata motors -- wanted to close guantanamo. a lot of it stayed the same. the terrorists remained held over the years, because it was in the interest of the united states to do that. the other thing is there was a question among many democrats will they be prosecuting all kinds of people who did harsh
things during the terrorist years? obama said, let's move on. he was being very typical. he was much more interested in what he wanted to do, than in making new enemies by prosecuting what had gone before. that is the way most of them are , most of the time. >> this becomes a way of identifying what the law is, as it evolved through presidential interpretation. you may have excesses of one administration, and something that comes closer to the mean in subsequent administrations. has that become another kind of check? the check of subsequent interpretation and practice? >> yes and as you know many have commented on this. the bush-obama situation. right after 9/11, we had a
strong response that things needed to be sorted out. by the second bush and ministration, we were much calm her about things -- second bush administration, we were much calm her abouter about things. you are getting precedent settling over time. that is normal as well. >> here is somebody who served in the office of legal counsel. maybe a few words from you about how presidential interpretation is put to work in an everyday kind of way. >> the office of legal counsel does legal opinions to the president on things like the immigration executive order and so on. the iranian executive agreement has been lawyered up. what you do there is you combine normal lawyer sources -- let's
throw in curtiss wright. we are done with that and can move on to actual things. you look at the statutory pattern and clear authority and where is it denied and where is the path through. you're very interested, as the president will be in what prior presidents have done. what you really like is something like what the current president is proposing has been done before by presidents of both parties, then you are pretty happy. it doesn't look like a partisan move it is just a presidential practice. you're trying to hook it to the history as much as you can. >> so you end up with an opinion that looks like a judicial decision citing historical presidents and prior presidential interpretations on most in the way that the supreme court would site its own
president -- precedent? >> exactly. but once during the bush of ministration that cause a lot of trouble, the memos were not alex. they did not look to see what the arguments -- were not balanced. they did not look to see what the arguments were against what the president wanted to do. the president's file in those situations and he or she must be well advised including where the perils are. you can try this, but here are the arguments against it. there are ways to steer presidents to say, you can do this, richard nixon tried it. [laughter] it didn't work very well. you will be understood on the other end of the megaphone. >> along the lines of an earlier
observation, presidents are reaching back. president bush did that with his post-9/11 actions inciting lincoln and what he did so it is a demonstration of this natural tendency to cite the greats and it also shows how history becomes a part of this picture and something that the presidents look to and it constrains them today. >> it constrains them and it comforts them. bush read something like 16 biographies of lincoln, he said at one point. they do this because it lets them reach back for inspiration and gives them a sense for this terrible pressure that they are under that has been shared by
these other people and they got through it somehow maybe i can too. >> i thought i would close with a quotation that struck me as powerful from the book and to remind everybody that copies of the book will be available for signing downstairs after the session. this is in the context of the assessment of president polk and wondering why he doesn't fare better in the view of history and he has this to say. great precedents -- presidents are revered for placing a moral stamp on the nation. this achievement expands the overall legal powers of the presidency by increasing the people's regard for the office and their willingness to accept broad residential claims of power.
there is a lot to unpack and i recommend the book, and thank you. [applause] >> thank all of you for coming. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2014] >> like many of us, first families take vacation time. like presidents and first ladies, a good read can be the perfect companion. what better book than one that peers inside the personal lives of every first lady in presidential history. "first ladies," inspiring stories of fascinating women who survived the scrutiny of the white house. a great summertime read.
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