The Constitution’s undefined executive
Harlow Giles Unger told Bob Zadek that George Washington “did invent the presidency as we know it,” and that recent presidents “almost make a mockery of the office that he created.” Unger said the Constitutional Convention, having lived under what he described as the tyranny of an absolute monarch, King George III of England, “were not about to create a new King George in the executive power of the United States,” and so “created really a figurehead as president.” He noted that the Constitution says the executive power shall be vested in a President of the United States but “fails to define executive power.” Unger quoted James Madison’s words that in our government “the executive department is not the stronger branch of the system, but the weaker,” and observed that the Constitution begins with “We the People” rather than “We the President.” How Washington Invented the Presidency (2013)
Zadek framed the same point in his own words, telling Unger that the audience may not appreciate how little the Constitution says about what the President is supposed to do and how the office relates to the other branches, and that there was “virtually a few syllables of commentary” on what is now the most important political office in the world. Unger added that the framers hoped the president would sit in the presidential seat and smile and do nothing, and that the document does not say what the President should do with the executive power “other than execute the office of the President, whatever that means.” How Washington Invented the Presidency (2013)
War, emergency and the imperial presidency
Ivan Eland, described by Zadek as director of the Center on Peace and Liberty at the Independent Institute, said his center tries to bring home for people of all political persuasions the costs of war, and that among the hidden domestic costs are “erosion of civil liberties, increasing executive power past what the Founders had ever intended.” Eland said, “We now have an imperial presidency because of the wars of the 20th century and, I would say, partly into the 21st century here,” describing the nexus between war and the erosion of liberty as what the center studies. United Iraq Falls: Ivan Eland on Partitioning for Peace (2014)
In the same episode, Zadek described war as having once been a precise and formal act: the President, perceiving a need to go to war, would go to Congress and seek congressional approval, and could not go to war and commit forces without it. He said that has eroded, that the army has become the private police force of the President, who can call out the cops whenever the President wishes, and that Congress has ceded that responsibility, leaving the country in a state of perpetual war in which war is the natural condition in which we live. United Iraq Falls: Ivan Eland on Partitioning for Peace (2014)
Christopher Preble told Zadek that it is relatively easy for the United States to wage war because it has a large military deployed in many places around the world and staffed by professionals, whereas in the past the country had to raise a military in order to do it. Because the President now has that military at his disposal, Preble said, the President uses the military and then dares Congress to cut off the funds for that military, which almost never happened. He also said that after World War II the National Security Act of 1947 created an Air Force and the Central Intelligence Agency, and that the Department of War was redefined as the Department of Defense, with defense redefined as defending an idea forward, mostly in Europe and Asia. On Foreign Policy, will Trump heed the Restraining Constituency or John Bolton? (2019)
Preble added that the Constitution makes it hard to do things, requiring a large public groundswell and the alignment of all the branches, and that war by contrast is the easiest of all things the President can do. Zadek had asked him how the country evolved from one founded on the principle of not harming others except in self-defense into one permanently at war more than any other country on the planet. On Foreign Policy, will Trump heed the Restraining Constituency or John Bolton? (2019)
Delegation, abdication and the administrative turn
Zadek argued that when an executive such as a mayor or a governor makes a decision based solely upon health considerations, it turns over executive power to a subordinate official in the health department. He said the executive is one notch above the health department, at the top of the pyramid with a series of departments and advisors reporting to him, and that his job is to take health department input, economist input, political input and sociological input and make the decision. Zadek called it an abdication when a governor says it is the health department’s call, and said that hiding behind “science” is the last refuge of elected officials. Here comes “the spike…” (2020)
Elizabeth Nolan Brown told Zadek that President Biden invoked a 2003 bill, the Higher Education Relief Opportunities for Students Act, signed by George W. Bush, which permits the Secretary of Education to waive or modify federal student financial assistance program requirements to help students and their families or academic institutions affected by war, other military operations, or national emergency. She said Biden is counting the COVID-19 pandemic as a national emergency and saying the bill gives the administrative branch the right to get rid of student loan obligations. Student Loan Debt Forgiveness (2022)
Zadek, reading the statutory phrase back to Brown, said the Supreme Court has reminded us countless times that when a statute says A, B, or C, C must have something to do with A or B, and that the two words before it relate to military action of one form or another. He said COVID is not like a war or military action, and that when Biden took steps involving a moratorium on evictions he acknowledged it was not going to succeed but would succeed for a few months till it went to the court. Brown said it speaks to how executive power, when expanded, is stretched by later officials to do even more expansive things. Student Loan Debt Forgiveness (2022)
Mike Munger told Zadek that both sides have decided they need to grab power because they will have power forever, or to do as much as they can now while they have power. He said colleagues on the left at Duke had told him they could not imagine having a bad president and that a more powerful government was needed because the president would always be good, but that after 2016 that was no longer hypothetical because they thought Trump was actually dangerous. Munger said he assumed that once Trump was no longer in office they would say a less powerful president was needed, but they did not, and instead wanted a very powerful president in the person of Biden, able to control the economy and healthcare. Troubleshooting the Constitution (2022)
Impeachment and the office
An episode listing describes Bob Zadek interviewing Gene Healy, Vice President at the Cato Institute, about the constitutional and historical nature of impeachment, why impeachment should be viewed as a “high-profile firing” to protect the country rather than a criminal punishment, the intent of the Founders, and the specific charges against Donald Trump. The excerpt supplies no further statements by either speaker. The New Royal Prerogative: Philip Hamburger on Administrative Law (2014)
Across episodes: no arc the excerpts support
Executive power is touched on in the Unger episode on Washington’s creation of the office, the Eland episode on partitioning Iraq, the Hamburger episode listing on impeachment, the Buckley episode listing on The Republic of Virtue, the Preble episode on foreign policy and the restraining constituency, the “spike” episode on pandemic decision-making, the Munger episode on Public Choice, and the Brown episode on student loan forgiveness; the excerpts show the same complaint about a presidency grown past the Founders’ design recurring without a documented change in the argument between the earlier and later treatments.
What the sources do not cover
The excerpts do not state what any court held on the student loan program, whether the forgiveness survived review, or which amendment or provision any case turned on. They do not give the outcome of the impeachment proceedings Healy discussed, the contents of Buckley’s argument, or the text of the National Security Act beyond the agencies Preble named. Where an excerpt ends mid-sentence or mid-exchange, nothing further is recorded here.