Can the President Be Stopped? | Rescuing the Rule of Law

[music] >> Good evening and welcome to rescuing the rule of law, a series of shows exploring major threats to our 250-year-old American system of equal justice and due process for all. It is this rule of law with its checks and balances that protects the rights and freedoms of the people and stops us from falling into a dictatorship. The rule of law is the idea that our laws, our rules, should apply the same to each and every person, whether you are rich or poor, have friends in high places or not, and no matter the color of your skin or your religion. Hello, I'm Roger Katz, a former state senator and Augusta attorney. This show is produced by Maine Lawyers for the Rule of Law, a group representing hundreds of Maine lawyers devoted to defending the rule of law built into our federal and state constitutions. This group helps educate the public about the essential role of the rule of law in keeping our democracy alive and the need for everyone to stand up for it. You can learn more on its website, mainruleoflaw.org. This month, as we celebrate the 250th birthday of our country, we take a look at one of the most significant documents in human history, the US Constitution, and we focus on that separation of powers that is designed into the document. The idea that the three branches, Congress, the executive, and the courts, would act as a check on the others. With some notable exceptions, that has served us well for the last 250 years, but now some worry that the executive branch, the president, is challenging that delicate balance. To discuss that tonight, we're joined by two guests. Derek Langhauser has practiced and taught constitutional law, having served as chief legal counsel to governors here in Maine, one Republican and one Democrat. And Bill Harwood, a retired lawyer who serves on the steering committee of Maine Lawyers for the Rule of Law. Bill was Maine's senior advisor for regulatory affairs within the governor's energy office. Before that, Bill worked 40 years in private practice also an adjunct professor at the University of Maine School of Law, where he teaches courses on the regulation of firearms, public utilities, and administrative law. Let's get started. So, let's start with a little history lesson, Derek. >> Well, as we all know, the colonists first arrived in 1620 on the Mayflower, and they settled 13 colonies from from Georgia to New Hampshire, and they were all colonies of England. Um they were ruled by the king, and they had little to no say in the laws that were they were obliged to follow that were set by the king. And for the first 150 years, the colonists really struggled economically. They they struggled to find housing, food, um create commerce so that they had money. And those conditions were significantly exacerbated in 1765, when the king imposed stamp act taxes. Yeah, the king was asking people who didn't have any money, who were already struggling without money, to pay more taxes. And there was also the notion of, "Well, this is taxation without representation." So, they filed a complaint uh declaration of rights and grievances with the king, and the king actually relented, and pulled back, and said, "Okay, we'll we'll stop the stamp act taxes." But inside of two years, the the king imposed even greater taxes across a broader swath of products in 1767, called the the Townshend Acts taxes. A year later, a thousand British soldiers uh were permanently stationed as a standing military occupation in Boston Harbor to to make sure that the colonists would would not rebel. But the colonists reacted with what's we all know to be the Boston Tea Party. They said, "Fine, we'll take your tea that you want to tax, and we'll throw it in the harbor." Which is what they did. And then a year later, they adopted what were known as the Suffolk Resolves in Boston, which is said, "We're going to refuse to pay taxes. We're going to boycott all British goods, and we're going to prepare our local militias in case the troops um are looking for a fight." And this is where it got to be a little more serious. And this is where the the discussion among the citizens began more serious about whether or not to declare independence from from England. >> Including people like Thomas Paine. >> Yeah, one of the interesting, fascinating things to me is we spend a lot of time in our high school American history, we talk about Lexington and Concord, and the Boston Massacre, and the Tea Party. But there's another piece of this. It didn't happen just with soldiers and muskets and violence. Guy named Thomas Paine in Philadelphia issued a 47-page pamphlet called Common Sense, and it took off around within the 13 colonies. In it, he came up with what today seems very straightforward, but at the time was a very radical idea, and that was no one should be born into a family that gives them the right to rule over people. That idea, and of course, Spain, England, France, the Netherlands all had kings and queens, and he was basically calling it out and saying, "This is not okay. We can do better here in the US." And that's partly There's one great quote there in that where he says, "Where is the king of America?" And he answers his own question. "In America, the law is king." And that really gets to this concept of the rule of law. Essentially, we are going to as a society come up with a series of laws that will decide who governs us rather than the fact that their mother or father or grandfather was the king or the queen or the duke or whatever. And of course, 6 months after that pamphlet is issued, we get to July 4th, 250 years ago, and the Declaration of Independence. >> And we declared independence in 1776. From then until 1789, we struggled along with a confederation, and then 1789 comes along. >> Yes, exactly right. Declaration of Independence, 1776. The Revolutionary War ends by 1781. The search for the how are we going to govern ourselves now that we now that we are in fact independent. The uh experiment with the Articles of Confederation didn't work for a variety of reasons, and by 1789, they convened a Constitutional Convention, and that's where they adopted what are what do we have today? Are the seven articles of the main Constitution, which which set forth the structure of our government, who the government consists of, and who gets to decide what issues. And then shortly thereafter, 2 years later, adopted the first 10 amendments, and those are the protections of the individual rights from the government, standing for the proposition, as Justice Jackson once famously said, that that no one's constitutional rights should depend on the outcome of an election. >> And this separation of powers, three branches, the executive, the legislative, and the judicial. Why three branches? Why this separation of powers? >> Well, I think that the what they saw was in a monarch, one individual having so much power over the citizens, it just railed they railed against it. And the concept that there could be another individual, even if he or she didn't have the title of king or queen, that would be in charge. And so the idea was very simple, to diffuse power. And that in order to do that, you would take the concept of the Parliament, which had been in England, and you would take the sense of an executive, and of course, the English courts. And they built on that this very elaborate scree scheme, in which we call separation of powers, in which they were essentially checks and balances on each other. >> So, how were those powers to be kept separate? I mean, what are the What does the document say about the the making sure that there are these checks and balances in play? >> Well, and it it So, it's all over the Constitution. And the the starting place would be the recognition that it just to follow it to add to add to Bill's point is that the the underlying fundamental premise to separating the powers is to to protect individual liberty. That that is considered was considered by the framers and is still considered today to be the paramount interest among the many important interests. And our Constitution says it in the preamble, leads with it in the preamble, restates it in the Fifth Amendment to protect individuals against the federal government, and in the 14th Amendment to protect individuals from the state governments. So, so three times over. And the way that the as Bill said that that we conceived of best protecting liberty was to disaggregate the power and spread it around. So, very special attention in in this analysis as as I'll explain in a second was to make sure that the powers of the executive in particular were limited and checked by the other branches. For example, congressional checks on executive power, only Congress can declare war um even though the executive have some latitude perhaps to to initiate hostilities. Um Congress decides where and how much money to spend, and the executive is not free to decide whether or not that money is then going to be released for those purposes. Um Congress remains has a number of additional checks. Um they can override the presidential vetoes and allow a bill to become a law. They can reject the president's nominations to to courts and other offices. They can reject proposed treaties. Um and of course, the biggest power of all is that they can impeach and remove the president, which impeachment power is really the structural exception to separation of powers where the legislative branch literally comes in, reaches, and removes the executive. So, there's absolutely no notion that the executive is unchecked. The the judicial check on executive power is the same as it is on Congress, which is the power of judicial review and judicial supremacy. Law students will recognize Marbury vs. Madison, where it said that the courts get to decide whether or not an act of the Congress or an act of the president is lawful and whether or not it can go forward. >> This has survived for 250 years and it's easy to say, "Well, they got it right. They might This is This is was brilliant and they figured something out." As we know, it hasn't always worked out perfectly and we'll get into some of those issues, but there are a couple as we're seeing more recently, a couple of structural problems that are making it challenging to limit the power of the presidency. The president has a tendency to want to take more power. As Derek says, the Congress and the courts, the judicial and legislative branch Part of the problems with the Congress is if the same party is in control of the White House and the Congress, it's very hard for Congress to step up and stand up to the executive. And so what we're seeing today are some criticism of Congress as to because they are of the same Republican party not being fulfilling their duty under separation of powers. Similarly, for the courts, they have a different challenge, which is they're not in a position to proactively speak out on issues of the day. By definition, they have to wait for a plaintiff and a defendant to come to them before they speak. So they're not in a position It's In other words, if the president is about to exceed his or her constitutional authority, it's not like the courts can say, "I'm going to hold a press conference in the next couple of weeks and explain why that isn't okay." They have to wait and when the other piece of it is that there is our court system is slow. That's a We could talk about that in another show, but we don't move very quickly through the court system and through the appellate system, so it is often months and sometimes years between the presidential action that may exceed constitutional and when the court finally has the final word, and of course what happens during that time becomes very important. >> So the Congress because if the reasons you said may not exercise its full authority to with the president, the courts may not for the same reason you just said. Well, let's talk for a minute about what kinds of power the president actually does have. What does the Constitution give him and and and what what is the some presidents tried to expand that into? >> Well, this is exactly the dynamic that brings what we're going to talk about now in into focus. And the entire structure of the Constitution, indeed much of law generally, is based on the concepts of expressed and implied powers. And an expressed power is one that is specifically set forth, specifically identified, uh and specifically defined. That's pretty straightforward. There's also a notion of implied powers, and those are those are powers that are not necessarily specifically identified and defined, but are nonetheless deemed reasonably and necessarily interpreted as being part of an expressed power. And that concept's embedded throughout the Constitution. So, for example, Congress has 27 expressed powers. They're called the enumerated powers and and there's a very important reason why that is the case. But they themselves are, for as much power as much authority as they have, have limited powers. And those are 27 expressed powers. Their implied power is actually expressly set forth as the reasonable the the necessary and proper clause. So, they have the same construct. The the courts, by example, they only have two expressed powers that are set forth in the Constitution. >> Give a couple of examples of expressed powers that the president has. >> Yeah, so the the the president has six expressed powers. He has power to propose legislation, but of course Congress can decide whether or not to pass the bill. He has power to appoint certain officials, but of course Congress has the authority to to confirm. He has power to give pardons, but he can't pardon himself uh for impeachment. He has the authority to conduct foreign policy, but the Senate is the one who ratifies the treaties. He He has an authority to command the armed forces when there is a war, but Congress has four distinct express powers relating to to managing and funding uh the troops um across a whole swath of of issues. And then finally the the sixth and final power of the express power of the president is to faithfully apply the laws as written by Congress or as directed by the courts. Um and it's really this last power, the what's called the faithful execution clause, is well a lot of what we talk about. Um what does it mean? Uh faithful execution is is both a power and a duty, which means you have the authority, but you have limits. One must carry out or enforce the laws whether they like them or not. That's the duty part. And you must do so in a way that is consistent with how the law is written and what it was it was intended to do. And if a president doesn't like the law, then the remedy is to propose legislation and get Congress persuade Congress um to to amend it or or to repeal it. And what does all this mean? It means that faithful execution means that the president is not free to do whatever he or she wants. Article two is not a is not a blank check. They can't ignore the law by failing to act entirely. They can't apply the law selectively with favoritism or on unprincipled reasons. And they can't come up with uh essentially a whole new law by using strained interpretations of what Congress or the courts actually said. So that's the fundamental piece of what's going on. What we're seeing emerge today is the invocation of a third concept, which is not expressed or implied, but what is called the inherent power of a president. >> Is this new? >> This has been talked about by at least three presidents over time, but never really actively used. And in the one instance when it was actively used by the president in 1952, the United States Supreme Court expressly addressed it and expressly rejected it. And that was the Youngstown case and decision. >> So, it was only putting it in until recently the courts when faced with a case have have required the president to show where in the law he is delegated the power he's trying to exercise. And now maybe it's changing a little bit where the president saying to the courts, show me where the law says I can't do this. >> That that that is a very good summary of of what is happening here. So, under the notion that the executive only has the powers that are given to him or her by the Constitution or by the statute, the analysis is in order to justify the executive's action, show us the authority that is either expressed or from which you are drawing the implication. What what you see in the argumentation style now coming from the executive is different. It's not well frankly, it's not that we we can't show you the expressed or implied source, but we're going to ask you to show us where it says I can't do it. Or if the law said that I can do some things, it doesn't say that I can do only those things. And why is it that I can't then do what it is I want to do. And so, this is really a fundamental shift in legal reasoning. And the reason that I think that it's so important is because this is where the rule of law really faces I think its its sternest challenge. Because this is where you know, all law's about specificity and definition and understanding of authority and of limits. And if now we're saying, well, it's inherent, we can't point to the source, it's general, we'll know it when we see it, um take my word for it, it gives me the the authority to do what I want to do, this is where the rule of law gets overtaken by individual will. >> So, let's let's let's talk about a specific example of that right here in Maine, I think, where where the president has claimed that implied authority to do something which the courts have said, no, you can't do that. And we've >> Yeah, one of the cases that really exemplifies this is the school lunch case that we're all so caught up in last year. Um it it is the perfect, you know, but President Trump has said, I am the president, I can do whatever I want. And he's literally quoted as saying that. And what we're hearing from Derek, of course, that's not a fair reading of the Constitution. The Maine school lunch case has its background in the issue of whether trans athletes should or should not be allowed to play on girls sports teams. And of course, you'll remember Governor Mills is down at the White House at a governor's conference, and they're sitting there, and in a large and the president says, I hope you're going to start following the law and not allow trans athletes on girls school. And in a perfect rule of law example, Governor Mills says, I will abide by the law, to which the president says, I decide the law, I am the law, and to which Governor Mills says, I'll see you in court. So, that went back and forth. When the dust settles, the White House and advises, instructs the Department of Agriculture to start withholding school lunch money from Maine schools, particularly low-income students who depend on that, so they get fed lunch at the same time as those kids who have enough money in their bank account to buy their own lunch. It's a critical part of our education system, and I think the White House felt that they could withhold that money. Now, and Congress had appropriated it. Exactly. Thank you. The money had been appropriated and so, of course, the Attorney General, on behalf of the people of Maine, including those students who were may or may not get their lunch money, went into court and relatively quickly Judge Woodcock issued this what many of us think is a really brilliant 70-page decision and essentially said, "Well, first of all, the White House said the courts have nothing to do with this. But out. This is not what we call jurisdictional. This is a political fight." And Judge Woodcock dismissed that and said, "No, that's our job. Remember the checks and balances. We're the court. We get to decide what the Constitution means and what is okay and not okay." And essentially Judge Woodcock ordered the federal government to restore all of the funds that had been segregated and withheld and prohibited them, enjoined them from withholding any future funds. So, it's a perfect sort of little hypothetical, shows the rule of law, shows we have a president who exceeded the rule of law, and we go to court and the court holds him accountable and restores the funding that, as you say, the third branch of government, Congress, had wanted those school lunch money to find its intended beneficiary. >> Thank you. Let's switch gears a little bit and talk about something we hear about it seems about every week now, and that's another executive order. Derek, what is an executive order? Where's the authority for it? And how has it been used? >> Yeah, the idea of an executive order arises from the faithful execution clause. It's a way of executing the laws. It's a way of memorializing what it is you're going to do to execute the laws. You know, an an executive, a president or a governor, can change the you know, if they want if they want to change the laws, they can propose legislation, they can promulgate regulations, or they can choose to act unilaterally. And in that instance, they can give use a number of vehicles, oral directives, or a memorandum, or agency guidance, or they can issue an executive order. They all They all do the same thing, which is they give instructions to executive branch employees about how the the chief executive wants the the the law to be interpreted and enforced. We hear a lot more about executive orders cuz they're used a lot more by this current administration, quite a bit more than they were by previous administrations, and they're used in different ways as well. But the fact of the matter is is that any of those executive directors directives don't have the force of law unless they're faithfully executing the law. That's That's the pinch point. And so, executive orders are most commonly used for either, you know, administrative or or emergency purposes. You know, administrative, you know, here in Maine, for example, um executive order was used to create the the commission to investigate the Lewiston shooting, then used to create a a panel to to study climate change in the state, and been used by governors, uh you know, going back 50 years to create judicial selection merit selection uh panels. And they've also been used, you know, for emergency purposes. You know, Governor um McKernan used the executive orders to manage the first budget shutdown in the early '90s. Governor King used it to manage the ice storm. Governor Mills used it to manage the pandemic. So, they're they're usually used in that in that um administrative or that emergency sense, where you really don't have time to get everybody together to agree what you're going to do, and that the leadership is going to act in in in this smaller way. This administration is using them uh in a in in a broader sense to try to put its interpretation of the statutes out there for its constituents and others to see. >> This is not the first administration in history which is being accused of improper use of the executive order is it? >> No, you go back in history and and and what we're seeing today is more extreme and more frequent pushing the limits of presidential power, but it has been around. You can go back to some of our greatest presidents, Abraham Lincoln was we've all aware of this suspension of habeas corpus. Habeas corpus is one of those Latin terms that gets thrown around. It essentially says bring me the body which means a judge has issued an order that a individual has been detained and imprisoned and the judge wants to make sure that it was all done lawfully and properly consistent with the law and it has been referred to as the great writ of liberty. We came from centuries-old English law and we incorporated into our system of law as a way to make sure that overzealous prosecutors, police, jail, for correction facilities weren't taking people off the streets and putting them behind bars without having a chance to go before a judge and explain themselves. So now we're in the middle of the Civil War, we have rebellion, riots in the streets of Baltimore, Abraham Lincoln has got his hands full and he announces that there will be a suspension of the writ of habeas corpus which essentially says that whatever the soldiers ground up, if people are in their judgment misbehaving or rebelling against the United States, they can be put in prison indefinitely without getting a chance to go see a judge. To us today, it's kind of unbelievable, but it was there and it went to court. The court looked at it and said, "No, Congress could amend the writ of habeas corpus. You, Mr. President, do not have that power. That isn't part of your enumerated powers that Derek has just explained. It didn't stop Abraham Lincoln. He ignored the court order, and we had a national suspension of habeas corpus that as long as the Civil War extended, and then it ended. But, it is one of those moments in which we look back and say even some of our greatest presidents struggled with this issue. >> And uh during World War II, perhaps even worse example. >> There's another great president, FDR. And again, we're on a wartime footing. We have the day of infamy, December 7th. The Japanese bomb Pearl Harbor. We uh the United States government suspected something like this might be coming. They were looking at alternative plans. And within a few months, 3 months after Pearl Harbor, we are rounding up over 100,000 Japanese people in the United States. Almost every single one. The It was like 90% of the entire Japanese population. Sent to 10 concentration camps uh spread out over the mostly out of the over the western part of the state. They lost their homes. They lost their businesses. They lost most of their belongings. Many of them were there for 2, 3 years till the for the duration of the war. Um 2/3 of them were US citizens. I mean, today, that's just unbelievable. The idea that you can essentially take a citizen and put them in a concentration camp simply because they claimed that maybe some of them were disloyal. And this whole concept of disloyalty comes up in a variety of One of the great quotes that I love for this is when the government pretended that they were really doing this for the protection of the Japanese, one of the Japanese citizens said, "Then why are the guns held by the guards and the gun power pointing inward instead of outward?" And I think that really pointed out what was really going on. The good student knows it has a happy ending. In 1988, the US had a commission, we apologized to the Japanese, we paid modest reparations to them, but it was 46 years too late. >> Derek, let me ask you about a more current example of the use of executive power deploying the Marines and the National Guard to Los Angeles. >> In the spring of '25, uh the president and the secretary of defense, I I guess now war, uh federalized National Guard troops and Marines uh sent 47 uh hundred troops, 4,700 troops to California uh ostensibly to help deal with uh protests that were occurring there with with ICE raids. The um there were there was some violence related to the protest, but largely on balance they were um they they were not violent. Um there's an there was a federal law, the Insurrection Act, actually dates back to 1807 that would have expressly allowed this deployment. It had four requirements, but two of them were not met. So, the administration couldn't use that law. Um and there's a long history we have in this country about not using troops to enforce the law. British occupation uh we we reference uh paragraph 14 of the Declaration of Independence, no fewer than six constitutional provisions talk about the raise flags about the caution uh with that. And even Alexander Hamilton, who was probably our biggest executive uh wartime hawk, said both it's it's it's impo- tical and illogical to send troops. Um but even more so than that, there was a law from 1898 that expressly where Congress expressly said, "No troops to enforce the law um unless Congress uh has an express gives an express exception for it." There was no express exception, but the administration argued back to the early discussion about inherent power. Um and the and the court found that, "Well, though there is no inherent power, you need express authority and you don't have it." And that that was the most recent uh case on inherent power use of troops and and it really is a nice case that brings it all together. >> we have we have we have so much more to talk about and we are out of time. I'm so so sorry but maybe we will reconvene this at another time to continue the discussion. Derek, thank you so much for being here and Bill you as well. >> Happy to. >> Thank you. Thank you, Roger. >> Thank you, Roger. >> That's our show for tonight. I hope you've enjoyed this conversation on the Constitution of the United States and the separation of powers that the document designates. I want to thank our contributors tonight, Derek Langhauser, [music] constitutional attorney and professor, and Bill Harwood, adjunct professor at the University of Maine School of Law. If you'd like to donate to our cause, you can visit mainruleoflaw.org. Good night. >> [music] [music]