Constitution Breakdown #4: Janet Napolitano

This month, Roman and Elizabeth turn to Article Two, which establishes the executive branch, alongside former Secretary of Homeland Security Janet Napolitano.

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Roman Mars?

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• 1:29Roman Mars?

  This is the 99% Invisible Breakdown of the Constitution. I'm Roman Mars.

• 1:34Speaker 02

  And I'm Elizabeth Jo.

• 1:36Roman Mars?

  Today, we are discussing Article II, which establishes the executive branch of the federal government. Our special guest for this episode is Janet Napolitano, who served as Secretary of Homeland Security under President Obama from 2009 to 2013. Prior to that, she was the governor of Arizona, so she has executive experience at the state level as well. And she was the Attorney General of Arizona before that. After leaving the Obama administration, she became the president of the University of California, the largest public university system in the country. Today, she teaches at the Goldman School of Public Policy at UC Berkeley. Later in the show, Elizabeth explains the Trump administration's attacks on Venezuelan boats through the lens of constitutional law.

• 2:19Roman Mars?

  But first, our Article II conversation with Janet Napolitano.

• 2:24Roman Mars?

  Secretary Napolitano, thank you so much for being on the show.

• 2:27Speaker 03

  Oh, thank you.

• 2:28Roman Mars?

  So Article II establishes the executive branch using probably the vaguest terms possible. Section two of Article II contemplates that there will be a cabinet, but not much is specified beyond that in terms of a job description. There's no required meetings, for example. So when you were Secretary of Homeland Security, was that job an extension of what the president wants, or is the president expecting you to come up with lots of policy proposals? Like, how does it work in practice?

• 2:57Speaker 03

  Well, I think how it works in practice varies with whomever is the president.

• 3:03Speaker 03

  I was secretary under President Obama, and it was a combination of things. You're a member of the cabinet, so there's an expectation that you're going to be carrying out the policies that have been enunciated by the White House. But those policies, particularly in the homeland security area, which deals with everything from cybersecurity to disaster response to immigration and all the complications with immigration, those policies need to generate from somewhere. And so President Obama used his cabinet to help generate policy ideas, as well as using the National Security Council and the Domestic Policy Council as well.

• 3:49Speaker 02

  And so what did that look like on a sort of day-to-day basis? Are you sort of implementing, you know, you have a team that comes up with different kinds of, how are we going to respond to this initiative? Is that how it works?

• 4:00Speaker 03

  Well, yeah, and that's really important, because how you implement or operationalize, to use that word, a policy, particularly when you're dealing with a huge federal department, is a management challenge, among other things. You've got to figure out the FTE, you've got to figure out the resources, you've got to figure out the deployments, you've got to figure out the logistics, you've got to, and then you've got to have some way to actually monitor and see whether what you're doing is achieving the policy result that is intended. And so it's a constant kind of push-pull sort of thing. And it can be easy, it can be tough.

• 4:42Speaker 03

  I remember when we started DACA, Deferred Action for Childhood Arrivals. That was a brand-new policy. It was generated by, actually by me, by the Secretary of Homeland Security, went to the White House, got the White House's approval, got the President's blessing. He actually announced it from the Rose Garden. But then he gave us 60 days to actually put this new policy into practice. And we had to, first of all, design the forms, set the fee, because there was no appropriation for it, educate the people who were going to be reviewing the DACA applications,

• 5:25Speaker 03

  educate the community at large who were working with young people who were eligible for DACA, and do that all in record time. You think about setting up a federal program in 60 days. That's kind of rocket speed.

• 5:40Speaker 02

  That's right.

• 5:41Speaker 03

  But we were able to do it. And we didn't know. We didn't know on the first day whether we'd have five people or 500 or 5,000. And it turned out it was a very popular program. I think at its peak, we had about 850,000 young people enrolled in DACA. But that was an illustration of an idea that originated in a Cabinet Department that went to the White House, got the President's approval, and then was sent back to the Cabinet Department to actually implement. On other examples, the word kind of came from the White House. We want you to do X, and you figure out how to do X.

• 6:22Speaker 02

  I'm so glad that you mentioned DACA. I'd like to, maybe we could familiarize some of our listeners with what the program is if they're not familiar. Of course, DACA started by you in 2012, and it's a program that allows a group of undocumented young adults who arrived in the United States when they were children to be protected from deportation. They're supposed to register and then apply for renewals every two years, if I remember correctly. Now, Part of this is, you mentioned the idea of implementation, how to implement the president's will or his or her policies. And of course, that goes back to Article II. In Article II, Section 3, we have the "take care" clause. And of course, Section 3 states that the president shall take care,

• 7:07Speaker 02

  that the laws be faithfully executed. Now, on the one hand, the clause imposes a kind of obligation or duty on the part of the president. That means the president, and really the executive branch, must execute the laws Congress passes. On the other hand, the "take care" clause is also a presidential power. It's the executive branch alone that has the authority to make sure federal law is followed. Now, previously, when you've talked about DACA, you've mentioned that when you first created it, you and your team focused a lot on the word "shall." I wonder if you could talk a little bit more about that?

• 7:43Speaker 03

  Well, we didn't focus on the text of the Constitution when we were forming DACA. I mean, the lawyers looked at it. The Department of Justice looked at it and concluded that it was within the executive power of the president. Because in the field of law enforcement, and immigration really is law enforcement, there's enormous discretion that is given to prosecutors and enforcers to set priorities, right? Because you never have the resources to prosecute everyone. So to set priorities and then to implement those priorities that are set. And I think that falls within the "take care" clause

• 8:24Speaker 03

  because that is the only common sense way to interpret it.

• 8:29Speaker 02

  And you mentioned this idea of this law enforcement discretion. You know, that's actually part of what's in the memo that you signed when you established DACA, that this, in your view, was an example of prosecutorial discretion. You know, can you explain a little bit more about what you mean by that term or what was meant at the time? And how that actually justifies the DACA program itself?

• 8:51Speaker 03

  Sure. So prosecutorial discretion. And I'm a former U.S. attorney and a former state attorney general, so it kind of came out of the prosecution ranks. And what it means is that the prosecutor always has the discretion to decide who to charge, what to charge.

• 9:12Speaker 03

  What to plead, if there's going to be a plea bargain, if there's going to be an offer. And that is inherent in the role of the judgment of the prosecutor. It's supposed to be, until the current administration, guided by very strict standards about the predicates you need to have before making those decisions and kind of the boundaries in which those decisions can be made. But it goes back to, I think, two points. First, that a prosecution is inherently involved.

• 9:46Speaker 01

  Some judgment.

• 9:48Speaker 03

  I.e. discretion. But secondly, no prosecutor's office or law enforcement office has enough people, has enough resources to investigate, prosecute whatever, every conceivable violation of law. And so, there are actually guidelines in the U.S. Attorney's Manual to help with the exercise of that discretion. In the immigration context, we translated it into immigration context, and we were very firmly of the view that the enormous weight of the federal government where immigration is concerned ought to focus on recent border crossers so that they don't get settled into

• 10:31Speaker 03

  the United States, ought to be focused on those in the United States illegally who've committed other crimes, and those in the United States for whom we actually had evidence of connection to terrorists or terrorism groups or organized gang activity. But the lowest kind of priority were these young people who were raised in the United States, grew up here, oftentimes had never been to their country of origin once they were here. On the average, were brought to the United States under the age of six years old, and, you know, they'd gone to school, many of them were trying to go to college, they were

• 11:13Speaker 03

  trying to, or some had joined the military, et cetera. And we felt that it was both in terms In terms of judgment and in terms of resources, kind of just didn't make sense that they should have to always be looking over their shoulder to see whether there was an ICE agent following them. And also, we thought it made sense that they should have some sort of deferred deportation arrangement, which is what this is, deferred action, that would allow them to get work authorization so that they could actually work while they went to school. They could actually work for a business instead of, you know, trying to get a job and having to be paid under the table and so forth.

• 11:56Speaker 02

  So it sounds like this is kind of similar to another initiative under President Obama, which was the guidance officially from the Justice Department about not going after every single person who might be violating the federal laws regarding marijuana. So maybe we don't have enough resources. So is that fair to say that it's a kind of similar discretion?

• 12:16Speaker 03

  Yeah, it's similar. I mean, in fact, the marijuana thing is really kind of funny because I was the U.S. Attorney for the District of Arizona in Clinton's first term. And of course, Arizona is a border state, and this was in the early 90s. And we didn't deal with small baggies of marijuana. We were dealing with like tons of marijuana being brought over the border. And we would prosecute those big cases, no kidding. But the notion that we would then, you know, spend time on personal use cases was was kind of ludicrous.

• 12:52Roman Mars?

  So DACA was somewhat created in a vacuum of a legislative solution for solving this problem. Can you talk about that role and what it meant to create it and what that vacuum was about?

• 13:07Speaker 03

  Well, that's true. And the background was there was the young people had organized, and they were known colloquially as Dreamers.

• 13:17Speaker 02

  Right.

• 13:18Speaker 03

  And they now don't use that name, but that was the term that they were known as in Washington, D.C. And the Congress had tried several times to pass a so-called Dream Act, to have a statute that would actually do, actually do much more than what DACA did.

• 13:40Speaker 03

  And the Senate was never able to get to the 60-vote threshold to get it through.

• 13:45Speaker 02

  Uh huh.

• 13:45Speaker 03

  So when they failed at the end of, I think it was 2011, to pass the Dream Act once again, I can remember this clear as day, I called my staff into my office and I said, "You know, we've got to do something here. Give me a memo, give me some options that are possible." And remember, President Obama was very careful on immigration. He didn't want to proceed simply by executive order because he felt this was Congress's responsibility. And I think he's right about that. But in this particular instance, we felt that within

• 14:24Speaker 03

  the statutes, within the power of the executive, he could adopt a program that, in essence, was a form of discretion that was used by the Department of Justice and other sorts of situations and the like. But we had to do some convincing. I mean, the White House was initially a little bit, they really wanted to make sure the i's were dotted and the t's were crossed.

• 14:50Speaker 02

  So that brings me back to this idea of discretion again. You know, I think one of the things people are trying to do is understand the current moment and the way that the White House is flexing its authority. So if the president has the broad authority to establish a program like DACA, which is, as you say, an exercise of executive discretion, well, isn't that the same broad authority that President Trump, in his first term, relied on to justify the travel ban on majority Muslim countries? And couldn't it simply also be the same broad authority to justify some of these really frightening immigration raids that we've seen around the country? Is that all part of the same spectrum of discretion?

• 15:33Speaker 03

  I think they're different issues. DACA was, in essence, was a very confined program that fits squarely, I thought, within precedent. Interestingly enough, the first Trump administration tried to rescind DACA. Right. And remember that? And the University of California, I was then the president. Right, right. We sued them, and it went all the way to the Supreme Court. And the Supreme Court didn't uphold the legality of DACA, but what it said was that the way that the Trump administration had gone about rescinding it violated the administrative procedure. They had tried to rescind it incorrectly.

• 16:15Speaker 03

  But there's still cases out there that, brought by Republican attorneys general and others, that have challenged the underpinnings, the legal underpinnings of DACA. But when you talk about the travel ban, and when you talk about these raids that are going on, those involve different exercises of immigration authority. The raids, for example, get to what kind of requirements must an ICE agent or a Border Patrol agent have before they can detain somebody?

• 16:53Speaker 03

  And like I described earlier, we always tried to have a set of priorities for our ICE agents so they didn't just go willy-nilly around streets picking up people. Because we felt, yes, agreed, people are in the country illegally, that's a violation. But like every other thing in the law enforcement realm, you don't really have the resources to go after everybody. And so you really have to set some priorities. With the, with the street level raids, not only are they, I think, bad law enforcement policy, but they implicate a whole set of rights of the individuals involved

• 17:38Speaker 03

  that really were not implicated by DACA.

• 17:40Speaker 02

  When you say it's bad law enforcement policy, could you say a bit more about that, why you think so?

• 17:44Speaker 03

  Oh, for heaven's sake, yeah. I mean, first of all, you know, it, you know, it creates enormous tension within the communities that these raids are going out and a, and a whole atmosphere of fear among people who are here legally as well as those here illegally. There have been too many documented instances of abuse by the agents who are out on the street. And the fact that they are masked and the fact that they are driving in unmarked vehicles and so forth. Law enforcement is supposed to enforce the rule of law.

• 18:27Speaker 03

  Law enforcement agents ought to be clearly identified. They ought to be acting pursuant to clear rules that people understand. And when you think about just kind of law enforcement policy, they're not coordinating with local police. In fact, I think in, in some of these cities, they've created an enormous problem for local police. So that's a law enforcement problem. The second problem is that they are picking up

• 18:57Speaker 02

  way too many people they have no business picking up.

• 19:01Speaker 03

  I.e. people who are in the country either already legally or who are in the immigration process already. And then third, they have taken away any restriction on going into schools and to churches. And this business of standing around courthouses where people are actually going for their immigration hearings and then picking them up. Well, talk about a disincentive for people to try to actually legalize their process and become naturalized citizens or at least get some legal status within the United States. It seems totally bass ackwards to me.

• 19:43Roman Mars?

  I mean, this is a key part of DACA because you had to convince, you know, these dreamers who were afraid of immigration authorities for most of their lives to trust you enough to, to go through a federal legalized process to, you know, that they were okay. What was that like, sort of convincing people and establishing that trust?

• 20:04Speaker 03

  It was all about trust because the, many of them were, as you suggest, nervous because, you know, they had to turn over, they had to turn over their addresses. They had to turn over the names of their parents, you know, you know, all that kind of basic biographical information. So we had a policy in DACA that the information, the information was collected by a branch of the department called USCIS, Citizenship and Immigration Services, that that information would be held only in CIS and not given over to ICE. And, and we adhered to that policy.

• 20:44Speaker 03

  Of course, in this era, if I were a young person, I don't, I think I would be well advised not to apply for DACA because ICE now has been given access to all kinds of information. It's been given access to tax documents by the IRS. It's been, it's been trying to get information about people who are enrolled in state benefit programs. So, you know, but it ultimately involved trust. And when we started DACA, we spent a lot of time with the immigrant community, talking about what the program, what it wasn't. It didn't provide for route to citizenship. Only Congress could do that.

• 21:27Speaker 03

  But it was a, it was a temporary fix for these young people so that they could move on with their lives.

• 21:33Speaker 02

  Well, when you mentioned that it's a temporary fix, you know, what does it mean to you that now, you know, 13 years later, that this really seems to be the only solution? And it's kind of seems to be fading, actually, for this group of undocumented young people? What does that mean to you now?

• 21:49Speaker 03

  Well, it gets to the genesis of this conversation, which is what is Congress's responsibility under Article I versus what is the executive's responsibility under Article II of the Constitution? And Congress, unfortunately, our current Congress is just...

• 22:09Speaker 03

  And this has been going on for too long, but seems incapable of dealing with really big, complicated problems in a way that makes sense. You can see it in things like immigration overall, for sure. You can see it just in all the budget craziness and the inability to actually engage in a regularized budget appropriations process that makes sense. Even under Obama, we were dealing with, you know, repeated either threats of shutdowns or shutdowns. Well, try running a department with a quarter of a million employees and a half a million contractors when you're constantly having to send out

• 22:53Speaker 03

  warnings, you know, "Oh, you're going to continue to work, but you're not going to get paid while you're working," or "You have to stay home, and by the way, you can't access your computer or your phone or anything else while you're staying home." And, you know, people always say you ought to run government like a business. No business would operate like this. And that ultimately is a failure of the Congress, right?

• 23:16Roman Mars?

  Yeah.

• 23:17Speaker 03

  They just can't get their act together.

• 23:19Roman Mars?

  So I think of DACA as this like amazing success and a great policy that was forged out of a failure of the Congress. And so is that always a part of it for you? Like, do you think of it always as being this thing that was done because some part of the system was failing?

• 23:35Speaker 03

  No. I think there are ideas and policies to implement that are more on the executive level, their management level, et cetera, that don't require necessarily an action by Congress. But here's where it gets interesting from a legal point of view, because the Supreme Court is developing these doctrines, you know, the major questions doctrine, the non-delegation doctrine, et cetera. That I think one of their failures is they do not take into account the institutional capabilities of the Congress.

• 24:18Speaker 03

  You know, they presume that Congress always, when it wants to, can speak clearly and precisely. Not giving any kind of give in the system for the congressional process itself, how messy it is, in a way by design, but how messy it is and how they can actually, by creating these doctrines, presume a capacity that, particularly in the present day, simply doesn't exist.

• 24:47Roman Mars?

  Yeah. You do feel that unrealistic, like they're sort of saving this sort of idealized form of what legislators are supposed to do. And it just, yeah, it is completely unrealistic. It just doesn't function today like that at all.

• 25:00Speaker 03

  Right. But it's important because Congress has to do its job to avoid the executive exceeding what was intended, I believe, under Article II.

• 25:15Roman Mars?

  Yeah.

• 25:16Speaker 02

  And so, do you see that Trump's use today of just a whole slew of executive orders, is that part of what you see as the exceeding the boundaries of what the president can do? Because executive orders, of course, have existed for a long time prior to Trump.

• 25:31Speaker 03

  They've existed, but not to this degree. We are so far along executive order spectrum. And, you know, governing by executive order, here's the problem with it, which is you can do any, you know, you can govern by executive order, the next executive comes by and retracts it.

• 25:49Roman Mars?

  Yeah.

• 25:50Speaker 03

  So it creates instability in the government in addition to overuse of and abuse of power.

• 25:58Speaker 03

  And I think one of the things that I've been troubled by in Trump 2.0 in the current administration is the Supreme Court's willingness under the so-called shadow docket to let so many of these executive orders stand. And the harm is being incurred while the underlying merits case is still being litigated. I think if we want to talk about abuse of power, that's the Supreme Court's abuse of power and the executive's abuse of power. And so I think we're really in a constitutional quandary right now.

• 26:36Roman Mars?

  Do you have a remedy for how we're supposed to get out of it?

• 26:39Speaker 03

  Well, I think the Supreme Court needs to do its job. It doesn't need to take all these cases. It can let the lower court injunctions stand while the cases are being litigated. I think they've been too eager to reach out and take cases that are not fully briefed, that are not fully considered, and kind of bless them in one-line orders, as opposed to saying, you know what, we're going to let the district court's injunction against firing all these federal employees, or terminating all these programs, or getting rid of all of these commissioners on independent agencies. We're going to let those stand, and we will

• 27:18Speaker 03

  take those cases when they've gone through the normal process. Because the way it's been working, the harm is already being incurred. And it's being incurred at this, you know, kind of injunctive level, as opposed to like the tariff case. Now, the tariff case is interesting because it's been fully briefed, fully argued. It's a fascinating, very important case. But think if the Supreme Court had reached out and decided that on the shadow docket, you know, and I'm sure some of them were tempted to. So that's what I mean by saying

• 28:01Speaker 03

  that the way they've been operating seems to me To not follow normal Supreme Court practice. And the Supreme Court is the ultimate arbiter of the rule of law in the United States. And when they don't give us their legal reasoning, when they rush to one-line orders, it's like, well, I could do a one-line order. I mean, but I want to see what the Supreme Court says to give us the law, the legal analysis, the reasoning behind their decisions. And I think it would make them look much less like just another political branch like the Congress or the executive, and more like what they are supposed to be. I know we've strayed into Article 3 now, but what the heck.

• 28:46Roman Mars?

  That's all right. They all talk to each other.

• 28:49Speaker 03

  Yeah.

• 28:49Speaker 02

  So if you're suggesting, and I think we all agree here, that Congress is not really stepping up, and the Supreme Court isn't either. Now, you're in the unique position of having been in the highest levels of the federal government and having been governor of a very important state. What do you see as the role of the states now in maybe checking what the president is doing?

• 29:09Speaker 03

  Oh, I think this is also a fascinating issue. And you see it really come to life in its use of the National Guard. So I'm a former governor. You know, the commander of your National Guard typically sits in a governor's cabinet. You use them for all kinds of reasons in the state. Emergency services. We actually deployed the Guard to the border when I was governor, not to do actual apprehensions or anything, but to handle kind of back-office work, because there was just a huge number of people coming across the Arizona border then, to free up the federal agents who were actually assigned to police the border.

• 29:54Speaker 03

  So they're a very important tool that a governor has. They're the state, quote, militia. And the notion that the president would federalize the Guard, over the governor's objection, over the mayor's objection, and just send them in for long periods of of time. I mean, you have to recognize the men and women in the guard, they have real jobs on the outside. They're civilians. Right. I mean, they, they give a couple of weekends a month to the guard and two weeks of training in the summer whatsoever. But he's actually almost using them in some cities

• 30:36Speaker 03

  like an occupation force over the objection of governors. And I think that the statute needs clarification here as to when and how and under what circumstances the president can federalize the guard.

• 30:55Roman Mars?

  More of our conversation with Secretary Napolitana when we come back.

• 31:03Roman Mars?

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• 31:48Roman Mars?

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• 32:08Roman Mars?

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• 33:52Roman Mars?

  So, the Department of Homeland Security was created in 2002 compared to the State Department, which was created in like 1789. So, and you were the third person to lead this massive agency and manage everything from border control to hurricane relief. You know, and I read your book that you published during the first Trump term, and you know, there's a lot of like you kind of building the machine as you're using the machine, even at that point. How do you figure out what you can do, what your remit is, what you can't do? I mean, the Constitution doesn't provide a lot of advice here, unlike Article One, which has a list of things Congress can and can't do. So, how do you begin to sort of figure out what the department is, you know, is capable of achieving?

• 34:37Speaker 03

  That's a good question.

• 34:40Speaker 03

  You know, DHS was created in the wake of the attack of 9/11. And the genesis of it was this kind of presumption that if various departments were under one umbrella, they would communicate with each other better, their actions would be better coordinated, and maybe another, it could help prevent another 9/11. I mean, that's really what DHS was designed to do. And so then they decided, they just threw everything in the department. And, and so then, I was, as you say, the third secretary, and there were 23 separate agencies that were thrown under the Department of Homeland Security, and some new ones created,

• 35:22Speaker 03

  like we federalized airport security under the TSA. And so, you know, we had, there are 23 agencies, but there are seven major operational agencies within the department. And so I spent most of my time with those seven. There's Citizenship and Immigration Services, there's ICE, there's Customs and Border Protection, there's FEMA, there's TSA, and, oh my gosh. It's on the final list. Yeah, yeah, yeah. They're gonna kill me. But anyway, there are seven. And, and we spent most of my, most of my, oh, Secret Service and Coast Guard. Sorry. Sorry.

• 36:07Speaker 03

  And we spent, I spent most of my time with the heads of those agencies, but, you know, there was Intelligence and Analysis, there was an Office of Civil Liberties, there was a presidentially appointed Privacy Office. So, I mean, it was really broad-ranging and quite fascinating and important. And what I did was, you know, you go into this department, you're a newbie, I was the first Democrat to be the Secretary. I'm a governor, so I know FEMA very well, I'm a border state governor, I know the immigration side very well, but...

• 36:44Speaker 03

  You know, I didn't know anything about airport security. I didn't, I didn't, you know, Coast Guard, I'm from Arizona.

• 36:54Speaker 03

  You know, so there was a lot of learning that had to be done and, and done quickly because you take over the new administration and you've got to look at the budget like within the first two weeks. So there was that and then, you know, it's like any major challenge of a large institution, you have to set clear, these are the things I want to focus on. And I had a list of, of a half a dozen things that were going to be our focus. And we just kept, you know, even in the day-to-day crisis management and so forth, of which there's a lot in DHS, we were always focused on, for example, cybersecurity. You know, nobody was really talking about cybersecurity too much in the early 2000s,

• 37:39Speaker 03

  but we could see it as a growing threat vector. And so we really embarked on the process of building what became CISA, the Cyber Infrastructure Security Administration. We, we looked at TSA and we began thinking about how to be more risk-conscious in how we screen passengers. Did all passengers have to undergo the same screening at the airports? And we developed TSA PreCheck. Thank you for that.

• 38:12Roman Mars?

  Yeah. I salute you.

• 38:14Speaker 03

  I've often said that on my gravestone, it's going to be Janet Napolitano, develop DACA and PreCheck, you know? But, but, but that was based on a, on a real policy analysis about, you know, what was the threat information we were getting about airline, air travel? What made sense? What was the technology capability and so forth? So we're always emphasizing those kind of key priorities. And a new administration will have different priorities. I mean, that's part of the, the nice thing about changing administrations is you get fresh blood.

• 38:52Roman Mars?

  Right. But one of the not-nice things about it.

• 38:56Roman Mars?

  Is that and and I felt this when you when you were writing about this during the first Trump term is is is the department was being run with you in used in ways that you didn't agree with and I can only imagine that feeling is more acute today. I mean, do you think what is happening now calls for different structural changes in DHS or is that possible or how do you see what was created and how it's being used today and what to do about it if there is anything?

• 39:22Speaker 03

  Personally, I don't think it's a matter of moving different elements of the department to different agencies and splitting it up and all that. I don't think that's worth the time, effort, or trouble to do. It requires a different White House and a different secretary. Just plain point of fact.

• 39:42Roman Mars?

  Yeah.

• 39:44Speaker 03

  There's nothing about the department that is inherently wrong, but it is a very challenging department with a huge remit and it has to be carefully administered. It is not solely the Department of Immigration Enforcement, although that's what you would think if you saw the White House and how the current secretary manages it. You know, FEMA, which has come under attack in the current administration for, you know, when I took over FEMA was still suffering from post Katrina issues because it had failed.

• 40:30Speaker 03

  It clearly failed in Katrina. So here's what we did. We went out and recruited a head of FEMA who was the head of emergency services for the state of Florida. So he knew hurricanes like the back of his hand and and he had just a solid, not only experiential grounding in emergency management and recovery, but also really strong ideas about how FEMA ought to operate. And its role vis a vis cities and states, vis a vis local, in terms of emergency preparation and response. And we did a lot on FEMA. In fact, toward the end of the first term,

• 41:12Speaker 03

  President Obama's first term, we had Hurricane Sandy that came up into New York Harbor. And that response was night and day from what had happened in Katrina. And that was because of, you know, years of work to improve FEMA. But FEMA plays a critical role, and you don't know you need FEMA till you need FEMA, right? And the notion that you can just devolve all those resources, all that experience and talent, to go state by state by state doesn't make any sense. But FEMA is part of the Department

• 41:51Speaker 03

  of Homeland Security. Why? Because if you want people to feel safe and secure, they need to have some confidence that when the hurricane hits, the earthquake happens, the forest fire comes swooping down, that there will be capacity to help them.

• 42:10Speaker 02

  So your example of, you know, how you decided to pick a head of FEMA sort of brings to mind the current moment in which there's been a kind of attack on expertise. I mean, you clearly wanted an expert to head FEMA. And we see a lot of this sort of, you know, don't trust the experts, whether we're talking about science and, you know, even crisis management. What's your view on how that's affecting the federal government at large?

• 42:36Speaker 03

  I think they're hollowing out the federal government. And I, you know, here's the thing, it's easy to destroy. It is hard to build. And when you look at the leadership at the Department of Defense, Department of War, which is the largest federal department, when you look at DHS, when you, when you look at what they've done at the Department of Health and Human Services.

• 43:05Speaker 03

  You know, you have to ask yourself, is our country safer? Are people healthier? Uh, are we better? Because we don't have people who are qualified and confident enough in themselves to rely on experts, uh, running the government. Uh, and I would have to say, no. Uh, absolutely, we're not. Um, and when you look at foreign policy, now, foreign policy is kind of a key power of the executive. That, you know, Article two really gives the president, uh, president that. But in prior administrations, you had a whole process. You had the National Security Council, for example, that considered options.

• 43:49Speaker 03

  And they went to the deputies of the principals committee, the national security advisor. So when the president made decisions, he was well advised about options that he had and also possible pros and cons of those options, whichever way he went. Uh, and the professionals in that world are professionals. They'll do what the elected official ultimately tells them to do. Um, but in, in the current, uh, administration, I can't identify what the national security process is, you know, beyond, you know, whom the president talked to last. Um, and so, uh, and that should be of concern to everyone because that is a core presidential

• 44:31Speaker 03

  power, but it needs to be well exercised.

• 44:36Roman Mars?

  I mean, what you're pointing to is a, is a big part of the sort of ongoing project that Elizabeth and I have been, when we've been discussing the Constitution in reference to Trump, is that there is a bunch of stuff that isn't in black and white in the Constitution. It is all about, uh, norms and procedures and stuff that is not written down. And, uh, and a lot of it depends on the personality of the people who's involved and the sort of ethics and ideologies of the people who's involved in ways that I don't know if the average American New until this moment. And so, you know, what does this make you think of vis a vis the Constitution in terms of like the actual operation of the government?

• 45:14Speaker 03

  Well, I think you're exactly right. The president has, he's got his own set of norms. I mean, he's a, he's a unusual sui generis character in American politics in a way. I hope he's sui generis. But norms have a function. And when I think reflexively of my time in federal service, so as a US attorney under Clinton, I was a secretary under Obama, I was on President Biden's Intelligence Advisory Board. What I am critical myself of is we didn't think enough about how to make government

• 45:58Speaker 03

  better, how to evolve it, move it forward. So there was the most efficient and fair government that the people could, could expect. And in other words, we relied too much on, well, norms. Instead of saying, well, does this one still make sense? Or maybe we ought to do it differently. Maybe we ought to do this or that. And, and that kind of just are assumptions that things were working fine. I think caught up with us. And I think, you know, when you look at the election of particularly the, the election

• 46:39Speaker 03

  of 2024, I think the voters were saying, you know what? We're not happy. We want something different. Well, they got something different. I don't think they got what they thought they were going to get, but they got something different.

• 46:52Roman Mars?

  Yeah. Interesting.

• 46:54Speaker 03

  Yeah, but you know, for us to say, you know, when the Democrats ultimately take the White House back, or what have you, and we'll restore the government. I think that's the wrong way to think about it. I think what we ought to be thinking about is, how do we make government better in a better way? How do we actually support the experts that we need? How do we actually recruit and retain the best talent to be in these positions? How do we actually have processes that move decision-making

• 47:35Speaker 03

  with more alacrity than in the past? How do we better use technology to help with people who need access to services, who need access to information? I think we ought to be thinking forward, not only in terms of restoration.

• 47:57Speaker 02

  In a practical way, though, are you concerned that, you know, in a future administration beyond Trump, it's going to be hard to say, hey, come and be a scientist at the EPA and work for the next 20 years with us? Or, you know, come and be someone who works for the FDA and work on, you know, drug science? You know, are people going to be willing to, maybe it's not a restoration, but to try this new project for the long haul? What do you think about that?

• 48:24Speaker 03

  I think that's a really hard question, and we won't know until that time comes. But, you know, the people, so many of the people I've met in government, career civil servants, they have an ethos. They want to spend their lives helping things be better for other people, to put it basically. And you can't do that in the private sector. I mean, it's a different ethos than the private sector. And, you know, the notion of just willy-nilly firing people and moving things, don't get me started about Doge. But, you know, the fact of the matter is, we live in a very large, complex, diverse

• 49:07Speaker 03

  country, diverse, it's urban, it's rural, it's east, it's west, it's many types of ethnicities and backgrounds and histories. It's a, it's a, it's a, it's a complicated place. But the federal government should serve as, and serve as kind of the bones, right? The skeleton on which all of these other things can happen and where people can feel with some sense of confidence that basic problems, their basic problems are being dealt with, and that the future is moving forward. And when you denude the federal government, when you

• 49:50Speaker 03

  remove expertise, when you make the federal government not an attractive place for really good people to work, that in the end hurts all of us.

• 50:02Roman Mars?

  Well, Secretary DePaulitano, thank you so much for talking with us about Article Two and about your experience. I just had a great time with our conversation.

• 50:09Speaker 02

  This was wonderful. Thank you for your time. Thank you for DACA. Thank you for TSA Pre-Check.

• 50:14Speaker 03

  Thank you all. Enjoyed it.

• 50:17Roman Mars?

  Coming up, what Trump can teach us about con law, the war power edition.

• 50:29Roman Mars?

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• 51:01Roman Mars?

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• 51:46Roman Mars?

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• 51:59Roman Mars?

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• 52:43Roman Mars?

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• 53:06Roman Mars?

  So we are now into the what Trump can teach us about con law portion of the show. It is November 20th, 11:15 a.m. as we are recording this. What are we going to be talking about today?

• 53:16Speaker 02

  Okay, Roman, here's a question for you. Was the Civil War a war?

• 53:21Roman Mars?

  Oh, God. Huh. Uh. Whoa. Let's see, declared. I'm trying to think of like what I know from Article One at this point.

• 53:34Speaker 02

  You could just have it off the cuff.

• 53:35Roman Mars?

  Yeah, I mean, I'm gonna say yes. I, yes. The Civil War was a war. Let's go with that.

• 53:42Speaker 02

  Yeah, I think that's right. And it might seem obvious to us now that it was a war. But in 1863, it was an open question and a dangerous question for President Lincoln. And that was because of the Amy Warwick, the Hiawatha, the Briante, and the Crenshaw, all four ships that were captured by the U.S. Navy. Now, after Confederate troops fired on the U.S. Army garrison at Fort Sumter in April of 1861, and that's the start of the Civil War, President Lincoln responded by issuing a series of executive proclamations. He called up 75,000 volunteer soldiers to form what would become the Union Army.

• 54:25Speaker 02

  And Lincoln also issued a naval blockade of the South. Now, this was meant to cut off supplies to the Confederacy and to prevent it from selling its goods overseas to raise funds for the Confederate Army. All of this was premised on Lincoln's war power as president. Now, why a naval blockade? A blockade meant that the U.S. Navy could seize private ships that were violating the blockade. And in fact, such a ship and its cargo could be claimed as a prize of war. By the 18th century, there existed a complex body of law called prize law. And prize law worked like this.

• 55:08Speaker 02

  The Navy would board a ship to determine whether it was violating the blockade. And if the ship appeared to be in violation of the blockade, the captured ship would be sent to a Union court where a prize court was located. The prize court would then determine whether the ship would be claimed as a prize of war. Now, prize law has some really wonderful terms. The prize master sailed the ship to the prize court and would provide all of the papers found on board the captured ship. And the lawyers involved would libel the prize. That means asking for an investigation of all of the facts to determine whether the ship and its cargo would be forfeited. After all the evidence was considered, the prize court would then condemn or release the prize.

• 55:52Speaker 02

  Now, at this point, you might be wondering, what does prize law have to do with the Civil War being a war? A lot, it turns out. And that is because Lincoln chose to impose a naval blockade rather than just close the ports of the South. Now, that choice is significant because a naval blockade, under recognized principles of international law, is allowed only in wartime between two enemy nations. Well, that was a problem for Lincoln, right? Because Lincoln's position was that the Confederacy was engaged in insurrection, not a war. If the Confederacy was engaged in a war with the United States, well, then, other nations might recognize the South as a sovereign nation.

• 56:37Speaker 02

  But if this was not a true war, then the blockade was illegal. You see, the problem... Yeah, it's tricky. Right. So if all of the ships seized during the blockade were unlawfully taken, then the Union might be forced to pay huge sums in compensation. But most importantly, if Lincoln did not have the authority to issue a blockade, then he lacked the authority to call up troops, to direct the Treasury to pay for the Union effort, and even to issue the Emancipation Proclamation of 1863. All of these were acts issued under Lincoln's constitutional war authority. So if the blockade was unconstitutional, then these other things were too. The Amy Warwick, the Hiawatha, the Briante,

• 57:22Speaker 02

  and the Crenshaw had all been seized separately for violating the blockade. The owners and the merchants laying claim to these ships appealed to the Supreme Court, and their legal claims were heard together in what would be known as the prize cases. In March of 1863, the Supreme Court decided by just one vote in favor of the Lincoln administration. Yes, according to the Supreme Court, this was a war. The concept wasn't limited just to a conflict between two independent nations. And yes, Lincoln did have constitutional authority to issue the blockade. And if war was brought to the United States by invasion or rebellion, as the court explained,

• 58:04Speaker 02

  the president was not just authorized, but required by the Constitution to resist what it called "force by force." In other words, Lincoln did have the authority for the blockade, even though Congress hadn't approved it. The prize cases were a turning point in the constitutionality of the Civil War. And the prize cases also happened to be the only time the Supreme Court has ever addressed the constitutionality of presidential war power without congressional approval.

• 58:32Roman Mars?

  Wow.

• 58:33Speaker 02

  Yet, president after president has claimed that they have independent war authority, no matter what Congress might say. And that raises the question of whether President Trump can constitutionally order military strikes on what appear to be fishing boats in the Caribbean because the Trump administration alleges that these boats are carrying illegal drugs into the United States.

• 58:55Roman Mars?

  So what do we know about these strikes in the Caribbean?

• 58:59Speaker 02

  So remember that in March, President Trump signed a proclamation that designated Tren Di Agua, or TDA, as a designated foreign terrorist organization. And TDA, as a reminder, is a criminal gang that originated in Venezuela, but now it's considered kind of a multinational criminal organization. And Trump's proclamation back then stated that TDA was perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States. And so in our previous episode, we talked about how this proclamation has been used by the Trump administration to detain Venezuelan non-citizens in the United States and then designate them as alien enemies and simply deport them. And so there's been

• 59:43Speaker 02

  a controversy over that, of course. And that designation also leads us to these boat strikes.

• 59:49Roman Mars?

  Right.

• 59:49Speaker 02

  On September 2nd, the Trump administration announced that it had carried out a strike on a drug-carrying boat that came from Venezuela and was operated by the TDA. Now, boat-strike is really an indirect way of saying that the military had blown up the boat.

• 1:00:05Roman Mars?

  Yeah.

• 1:00:05Speaker 02

  And the people on board, 11 of them, were killed. And that was just the first boat-strike. So as of today, we know of at least 21 US military strikes on boats in the Caribbean that have killed at least 83 people.

• 1:00:20Roman Mars?

  Wow.

• 1:00:21Speaker 02

  There are two known survivors that were sent back to their home countries of Ecuador and Colombia. And these strikes have taken place in international waters. And from the reporting, these strikes appear mainly to be carried out by drones that are launched from US naval ships.

• 1:00:37Roman Mars?

  So are these strikes legal at all?

• 1:00:40Speaker 02

  Simple answer is no.

• 1:00:41Roman Mars?

  Yeah.

• 1:00:42Speaker 02

  So...

• 1:00:43Roman Mars?

  I would think not assassinating people like this.

• 1:00:46Speaker 02

  It just seems pretty much like summary execution.

• 1:00:49Roman Mars?

  Yeah.

• 1:00:49Speaker 02

  They are not justifiable under any rational reading of any law. And even some of the most conservative legal analysts agree with that conclusion. But why these strikes are unlawful takes a little bit of explanation. And as we go through this topic, I think you'll see why the boat-strikes are both shocking, but also not entirely surprising at the same time.

• 1:01:11Roman Mars?

  Okay.

• 1:01:12Speaker 02

  Let's start with the war power. The Constitution splits the war power between the Congress and the President, and we know that from the text itself. Article 2 designates the President as the Commander-in-Chief of our military, and Article 1 gives Congress the power to declare war, to raise and support an army, and to provide and maintain a navy. The only problem is that Congress hasn't declared a formal war since World War II, and yet we have sent troops to arm conflicts many, many, many times since World War II. So in many of these instances, Congress has formally given the president the ability to use military force by passing a law, and we can call that an authorization to use military force.

• 1:01:54Speaker 02

  And the Supreme Court has generally treated this as an acceptable constitutional compromise. It's not quite a war, but Congress is allowing the president to do this. So Congress grants the president formal approval to send troops, and then the president is essentially acting under that congressional authority. So for instance, after September 11th, 2001, when the terrorist attacks happened, Congress passed the 2001 Authorization for the Use of Military Force, or the 2001 AUMF. And the 2001 AUMF allows the President of the United States to use all necessary and appropriate force against all nations or groups that planned, committed, or aided the 9/11 attacks.

• 1:02:38Speaker 02

  It's still in effect, actually.

• 1:02:40Roman Mars?

  Wow.

• 1:02:41Speaker 02

  Yep. It's also true that every president has said that no matter what Congress says, the President of the United States has his own inherent or implied war power under Article II of the Constitution.

• 1:02:55Roman Mars?

  What makes the president think that they have this inherent war power? That's not what I read when I read it.

• 1:02:59Speaker 02

  Well, it's just an assertion, right? So there's that problem. But we can also return to the prize cases. There, the Supreme Court endorses the idea that the president has the constitutional authority to defend the country from an armed attack, an armed invasion, even if Congress doesn't provide formal authorization. So I think there's definitely agreement among all three branches that the president has some kind of inherent war power. The problem is that it's not clear what the limitations of this inherent war power is. Presumably, there's some limit, otherwise that would upend our understanding of the federal government's idea of limited authority. So there has to be some limit, but it really hasn't been defined.

• 1:03:41Roman Mars?

  So then who gets to define what a war is?

• 1:03:44Speaker 02

  Well, there's no definitive answer to that question.

• 1:03:49Speaker 02

  Both Congress and the executive branch have asserted their own primacy over who gets to make the final call. So there are some hints about the extent of war authority in some Supreme Court decisions, but in general, the United States Supreme Court just doesn't want to get involved in making this essentially political determination. Who gets to make the final call in deciding when a war is a war? And so there's always a back and forth between the Congress and the president. So let me give you an example.

• 1:04:19Roman Mars?

  I love that they get to just decide, like, we just don't want to get involved in this. This seems too messy, you know?

• 1:04:24Speaker 02

  Right.

• 1:04:25Roman Mars?

  And that's what they do, yeah.

• 1:04:26Speaker 02

  Exactly. And it's not, I mean, they certainly get involved in other highly charged decisions, but war making, they generally don't.

• 1:04:32Roman Mars?

  Yeah, fair enough. Okay.

• 1:04:34Speaker 02

  So let me give you an example. In 2013, the Obama administration considered military intervention in the Syrian civil war after reports that chemical weapons had been used by the Assad regime against its own civilians. So Obama went on TV in 2013, and he announced that he would actually ask Congress if they would authorize military action in Syria. Now, what's interesting about Obama's speech is, at the same time he's telling the public, "I'm going to ask Congress for authorization," he also said this, "I believe I have the authority to carry out this military action without specific congressional authorization." So, you see, Obama's sort of having it both ways.

• 1:05:17Speaker 02

  He's saying, "I don't need Congress's permission, but I'm going to be cooperative, and I'm going to do it anyway." And that's been essentially the position of every single modern American president. I don't have to ask Congress for permission, but, you know, when it's convenient, I will ask Congress for permission, although I don't have to.

• 1:05:35Roman Mars?

  Okay.

• 1:05:36Speaker 02

  And so that's where the War Powers Resolution comes in. The formal name of the War Powers Act is the War Powers Resolution, but it's actually a formal law that was passed over Nixon's veto in 1973.

• 1:05:50Roman Mars?

  Okay, so what does the War Powers Resolution do?

• 1:05:53Speaker 02

  So the resolution doesn't actually give the president any powers at all. Instead, you can think of the War Powers Resolution as a kind of a way for Congress to step in and ask for some coordination from the president. Anytime the president wants to use military force, and the president doesn't ask Congress beforehand. So the resolution has several provisions, but here are the key points. Section four of the War Powers Resolution requires the president to tell Congress within 48 hours, anytime that American armed forces are sent into, and here's the specific language, which will be important for later, hostilities or into situations where imminent hostility is clearly indicated by the circumstances.

• 1:06:38Speaker 02

  That notification to Congress is supposed to explain the legal authority the president is relying on to use military force. So this is a formal, I'm telling Congress what I'm doing and why I'm using the military. And the president is also supposed to estimate how long and extensive the military involvement will be. So of course, you know, when these things happen, of course, Congress knows in this world of media, but it's a formal notification.

• 1:07:02Roman Mars?

  Got it, got it.

• 1:07:03Speaker 02

  Okay, so the second part of the War Powers Resolution that's important here is that within 60 days after that military action, the president is supposed to stop using the military unless Congress declares war, it's not going to happen, or gives the president some other formal authorization, or there's some kind of national emergency because there's some ongoing attack on the United States. Of course, that doesn't happen either. Now, the president can extend this by another 30 days if he declares that there's some unavoidable military necessity. So the War Powers Resolution has three important numbers, 48 hours, 60 days, 90 days. And this is all meant to ensure that Congress and the president work together whenever the president decides, hey, I'm going to send troops abroad for some reason.

• 1:07:48Roman Mars?

  Yeah, yeah, yeah.

• 1:07:49Speaker 02

  So every president since Nixon, and of course Nixon tried to veto the resolution, it didn't work, has raised doubts that the war powers resolution is actually constitutional. But every single president since Nixon has also complied with the resolution in varying degrees.

• 1:08:07Roman Mars?

  In terms of the boat strikes, is Trump like engaging with the war powers resolution at all, or just ignoring it completely? What's going on?

• 1:08:15Speaker 02

  Well, yes and no. So let's get to the yes. So after the first boat strike in September, Trump actually sent a formal letter to Congress within 48 hours on September 4th. And the letter to Congress confirms that the US military did in fact, strike a vessel at a location beyond the territorial seas of any nation. Now, the letter also says that the boat was assessed to be affiliated with a designated terrorist organization and to be engaged in illicit drug trafficking activities. Now, it doesn't say anything about TDA, but Trump announced at the time of the boat strike that this was an action against

• 1:08:55Speaker 02

  TDA. He announced this on Truth Social. How long will this last? The letter says, well, we don't know. It's not possible to know at this time, the full scope and duration of these military operations. So Trump's letter to Congress says, I'm writing to Congress because this is to comply with the war powers resolution. But the letter also says that Trump directed these strikes under his constitutional authority as commander in chief and chief executive to conduct United States foreign relations. So again, having it both ways. I'm complying, but I actually don't have to seek any kind of approval here, right? Very similar to what all other modern presidents have said in their own 48 hour notices, any

• 1:09:38Speaker 02

  time that they've complied with the war powers resolution. So let's step back for a moment and think about what this means. Trump is saying, I've used military force against these boats, at least some of which actually appear to be fishing boats. But what is this use of military force?

• 1:09:56Roman Mars?

  So is he asserting that this is actually a war? Or is he even engaging with that level of argument at all?

• 1:10:04Speaker 02

  Well, you know, if you look at the letter to Congress, the Trump administration says that it is acting under the nation's right to self-defense. But if this is in some sense a war, let's go with that idea for a moment. How are the people in these boats combatants in armed conflict with the United States, right? Even if we assume that there are people in these boats who are bringing illegal drugs into the United States. And remember, the administration hasn't offered any evidence supporting this yet. Then the usual manner of dealing with drug runners would be as a matter of law enforcement, not war making.

• 1:10:44Roman Mars?

  Yeah, of course.

• 1:10:46Speaker 02

  So presumably, you'd have something like the Coast Guard, who would stop the boats and arrest the crew and bring them in for criminal prosecution. But these weren't prosecutions. They simply blew up the boats. These were executions without any process at all. And so if you bring illegal drugs into the United States, that's certainly a crime. But, you know, is it really an attack on the United States? That's not really the way we think about armed conflict. And there's no sense that the TDA is engaged in any sustained or organized campaign against the United States as a sovereign nation, right? And a basic principle of armed conflict means that you distinguish between combatants and civilians.

• 1:11:30Speaker 02

  So even if we assume that these are drug runners, that they are in fact bringing illegal drugs into the United States, they're still civilians. They're not wearing uniforms. They're not trying to pretend to be soldiers in any sense. But the administration told Congress in September that essentially we are in an armed conflict with non-state actors. And they called the people that they had killed in these boats combatants. So that's really a stretch. But you see, they're trying to assert that this is some kind of war that the United States is engaged in.

• 1:12:01Roman Mars?

  I see.

• 1:12:01Speaker 02

  But they aren't. They're civilians.

• 1:12:03Roman Mars?

  Yeah.

• 1:12:04Speaker 02

  And the United States can't simply kill civilians because they're allegedly importing illegal drugs into the United States. Right? That's problem number one and maybe the easiest one to think about. Just isn't a war at all, period.

• 1:12:17Roman Mars?

  So Trump used the military to do this. At this point, we're, you know, it's two months after September 4th. So that 60 day where they have to stop using force unless Congress says so.

• 1:12:28Speaker 02

  Right.

• 1:12:28Roman Mars?

  We've reached past that point. What has happened in regards to that?

• 1:12:33Speaker 02

  Well, this is the trickier part. So remember the three numbers of the War Powers Resolution. You just brought up one, 48 hours, 60 days, 90 days. So it's very clear contemplation in the resolution that the president can't just go it alone if he orders the use of military force. He needs the cooperation and approval of Congress.

• 1:12:52Roman Mars?

  Yeah.

• 1:12:52Speaker 02

  Right? When the military first blew up the boat, the first boat on September 2nd, that triggered not just the reporting requirement, but the 60 day clock that you just mentioned.

• 1:13:02Roman Mars?

  Yeah.

• 1:13:02Speaker 02

  Right? So remember, the president is supposed to withdraw the military force unless Congress authorizes the military action. But remember, the Trump administration has continued to strike these boats and kill people.

• 1:13:15Roman Mars?

  Mm hmm.

• 1:13:15Speaker 02

  Right? Dozens of people at this point. So the Trump administration, what are they doing? Did Congress approve? No.

• 1:13:22Roman Mars?

  No. But they're

• 1:13:23Speaker 02

  Except

• 1:13:24Roman Mars?

  declaring it a national emergency?

• 1:13:26Speaker 02

  Not quite that. That would be like an alien invasion.

• 1:13:28Roman Mars?

  Okay.

• 1:13:29Speaker 02

  But except that Trump is claiming that the War Powers Resolution doesn't constrain him at all. Right? So the War Powers Resolution does recognize that the president has some inherent or implied constitutional authority to use military force. And the War Powers Resolution essentially says, fine. But Congress does get to play a role here by authorizing that force at some point. Now here's where the OLC is relevant.

• 1:13:57Roman Mars?

  What is the OLC?

• 1:13:59Speaker 02

  Right. The Office of Legal Counsel.

• 1:14:02Roman Mars?

  Oh, yeah. Yeah, yeah, yeah.

• 1:14:03Speaker 02

  Yeah, yeah, yeah. The Office of Legal Counsel is a part of the Justice Department that provides legal advice to the president. Now, let's go back to 2011. In 2011, the Obama administration's OLC looked at the history of presidential action and concluded that the president has constitutional authority that doesn't need any approval whenever military action would serve what it called "important national interests."

• 1:14:30Roman Mars?

  Important?

• 1:14:31Speaker 02

  Yeah, very important.

• 1:14:33Roman Mars?

  That's not enough. That's a strong enough word. Okay, continue on, I'm sorry.

• 1:14:36Speaker 02

  Okay. And when the military action doesn't rise to war in the constitutional sense. So, the OLC wrote the memo to justify whether Obama would have constitutional authority to use airstrikes in Libya. So, remember in 2010 and 2011, there were pro-democracy movements spreading across the Arab world, in places like Egypt and Tunisia and Libya. In Libya, this led to a violent crackdown against civilians. And as a result, the UN Security Council had passed a resolution for military intervention in Libya. And the United States was to lead the NATO coalition, establishing a no-fly zone over the country.

• 1:15:18Speaker 02

  This was to protect civilians who were being targeted by the Gaddafi regime. That's a very specific objective, right?

• 1:15:25Roman Mars?

  Yeah.

• 1:15:26Speaker 02

  But the OLC is saying, "Well, we can do this because it serves important national interests." That's a pretty broad standard, supporting presidential authority.

• 1:15:36Roman Mars?

  Real, oh my God. It's like, "I want to murder these people." No, that's illegal. But it's important. Well, if it's important, I mean, then I guess so.

• 1:15:44Speaker 02

  Right, right.

• 1:15:45Roman Mars?

  Crazy. Okay, keep going.

• 1:15:47Speaker 02

  So, there you have a pretty specific objective. And then, the OLC says, "That's why we can do it. It's serving important national interests, and it's really not war in the constitutional sense."

• 1:15:57Roman Mars?

  Okay.

• 1:15:58Speaker 02

  Okay, that's 2011. But then you see this very same two-part test from the OLC being used by the Trump administration, the first Trump administration, to justify airstrikes in Syria. And then we get to the boat strikes. According to reporting from the New York Times, the Justice Department has written a document justifying the boat strikes as lawful because Trump has inherent constitutional authority to order these strikes. Number one, because these boat strikes are in the national interest. And two, these strikes are not war in the constitutional sense. That's the same two-part test that we've just talked about.

• 1:16:41Speaker 02

  So that means in one sense, the American military blowing up fishing boats in the Caribbean is shocking and unprecedented, but the legal pathway the Justice Department is using isn't wholly new, even if we couldn't have predicted it would be used in this particular and very extreme way.

• 1:17:00Roman Mars?

  Again, we're running into this thing where language fails us because it can't stop a bad actor interpreting these as broadly as possible to sort of just to do whatever they want.

• 1:17:13Speaker 02

  Exactly. I mean, you know, we sort of think, well, with a good faith president, we think, well, that's a broad standard, but maybe, you know, we could differ on whether that's appropriate in a policy sense, but we never would have thought we'd get to the boat strike situation.

• 1:17:26Roman Mars?

  Totally.

• 1:17:27Speaker 02

  Unfortunately, it gets worse. There's another significant interpretation of the War Powers Resolution that's important here, too. So, Roman, remember that the War Powers Resolution applies whenever the president sends armed forces into hostilities or into situations where imminent hostility is clearly indicated by the circumstances.

• 1:17:48Roman Mars?

  Yes.

• 1:17:49Speaker 02

  So what's your general sense of what we mean when we say hostilities?

• 1:17:55Roman Mars?

  That they are attacking the United States. That would be my sense of what hostilities are.

• 1:18:00Speaker 02

  Yeah. I mean, that's pretty reasonable. The problem is that the War Powers Resolution does not define what hostilities are, right? But the underlying presumption is that the War Powers Resolution only applies when there are hostilities. Then the president has to tell Congress and then later ask Congress for permission to keep using the military force. But because the act doesn't define the term, that's become contested, too. So let's go back to 2011 and Libya again. So Obama did notify Congress in March of 2011 about the military campaign.

• 1:18:41Speaker 02

  And the airstrikes kept going and they kept going on after the time allowed by the War Powers Resolution and Congress had not authorized it.

• 1:18:50Roman Mars?

  Yeah.

• 1:18:51Speaker 02

  Well, in June of 2011, President Obama sent a report to Congress and the gist of it was, "Well, the military is not engaged in hostilities, so the War Powers Resolution doesn't apply."

• 1:19:04Roman Mars?

  So, why not? What was the justification here?

• 1:19:08Speaker 02

  Well, according to the Obama administration, the use of American military force was "not sustained fighting or active exchanges of fire with hostile forces, nor do they involve US ground troops." So remember, this was part of a NATO coalition to enforce a no-fly zone from the air. There were no US troops on the ground and Obama administration lawyers argued like Libyan forces couldn't realistically fire back. So this wasn't a hostility.

• 1:19:38Roman Mars?

  So, you know, these Venezuelan fishermen or Ecuadorian Caribbean fishermen are not firing back at the drones either, so does that apply here too?

• 1:19:51Speaker 02

  Yeah, that's essentially what they're saying. In early November, the Justice Department told Congress that Trump was going to continue to order lethal strikes on boats that were suspected of bringing illegal drugs into the United States. And they said, "What? Well, these don't count as hostilities under the War Powers Resolution." I guess the idea seems to be these aren't hostilities because the people in the boats can't shoot back.

• 1:20:17Roman Mars?

  Yeah.

• 1:20:18Speaker 02

  Because they aren't armed possibly would be the reason.

• 1:20:21Roman Mars?

  Yeah, or, you know, I mean, but it's so, this is so infuriating because the pretense of doing it at all is that these people are combatants that are shooting or shooting back.

• 1:20:33Speaker 02

  Right, right.

• 1:20:34Roman Mars?

  And then when confronted with the fact that if people are shooting back, you need to behave this way, they're like, "No, they weren't shooting back." It's so, that is so infuriating. In both cases, it's infuriating.

• 1:20:44Speaker 02

  Right, and remember, why is the Trump administration doing this? They're trying to avoid being restrained by that 60-day clock.

• 1:20:51Roman Mars?

  Yeah.

• 1:20:51Speaker 02

  That would require Trump to stop the boat strikes, or to have Congress approve of what he is doing, which I think seems unlikely.

• 1:21:00Roman Mars?

  Yeah, yeah.

• 1:21:01Speaker 02

  So these boat strikes are definitely unprecedented. I mean, Trump is ordering the execution by the military of people who are allegedly, allegedly bringing drugs into the United States, rather than apprehending them and arresting them. That is unprecedented. But Trump's attempts to legally justify what's happening, that by itself is not completely a surprise. So if you go back to 2011, the Obama administration interpreted the Constitution and the War Powers Resolution so that the United States could participate in part of this NATO coalition effort. And we could raise questions about the wisdom of that specific intervention, but it was backed by a UN Security Council resolution.

• 1:21:44Speaker 02

  And the reason this happened, or the reason why the Obama administration took the direction it did, was because there were a lot of Republicans who objected to this particular intervention. It was not realistic that he was going to get congressional authorization, so it crafted a legal interpretation to try to justify its use of military force. But even if you disagreed with what the US was doing, I don't think we'd really call it the actions of a rogue president. We might say, well, you know, maybe the US shouldn't have intervened to the extent that it did, or to the amount of time that it did. But it's not exactly a rogue president in this way. But I don't want to just dump on Obama here. We can go back further, to 2001.

• 1:22:26Speaker 02

  Now, the country's response to the terrorist attacks of 9/11 was to pass the 2001 AUMF. And again, that AUMF has not expired.

• 1:22:38Roman Mars?

  Amazing.

• 1:22:38Speaker 02

  It is still in force today. In fact, the 2001 AUMF has been used to address terrorist organizations that didn't even exist in 2001. And so for that reason, the 2001 AUMF has been called the beginning of our forever wars, in part because it's just not clear how the objectives of the 2001 AUMF that stretches from the Bush administration to today, how those objectives will ever be completed? How will we know that those objectives are done? And even before 9/11, presidents have long argued that their constitutional authority to exercise the war power is very, very broad, so broad that Congress can't really impose any checks on it.

• 1:23:23Speaker 02

  But of course, it takes Trump, right, a president who's not fond of any limits at all, to really force us to ask what kind of limitations there should be on what the president's war-making authority is.

• 1:23:36Roman Mars?

  Yeah. Has there ever been an effort to pass another bill, like rescinding the 2001 AUMF?

• 1:23:43Speaker 02

  Oh, there are often many, there have been many calls to do this, but they've been unsuccessful. I mean, for lots of reasons, but I think maybe the obvious political reason is, you know, politically, you wouldn't want to do that, as a lawmakers to say, we should get rid of this. But as a result, we have this very old authorization that is very broad, allows the president to do all kinds of things, and presidents of both parties have relied on the AUMF to engage in military actions all over the world that, you know, sometimes have kind of just a secondary association with what happened in 9/11.

• 1:24:18Roman Mars?

  It's still like, leads us back to this foundational part of the Constitution, which is that it wasn't built around parties, it was built around opposing branches, and that the loyal opposition wasn't just the other party, the loyal opposition was the legislative branch. Because when you see this 1973 Act, you know, trying to, trying to rein in Nixon, it's like a veto-proof majority passed it. And it really takes Congress saying, no, this is our domain, and we're going to fight back with it. And if they, you know, try to work around it, fine, and they pass other laws and they, you know, like, but it requires that sort of jockeying to come to You know, some kind of solution that represents America in some way.

• 1:25:03Roman Mars?

  And if you don't have that, then you have nothing. You just have a person who can just run roughshod over all morals and ethics.

• 1:25:13Speaker 02

  I think that's right. And also, remember, because of the way the war powers are defined, meaning not defined very clearly, and the Supreme Court doesn't get involved in these kinds of questions, it means that it's just an endless, ongoing, unresolved conversation between Congress and the president. And remember, presidents continue to raise the question, I don't even think that Congress has the authority to do this. Make me report. I will report if I feel like it. But sometimes if I don't feel like it, I'm not going to comply at all. And Congress's hands are tied. And also, if you think about it, what is the president doing? Any president who orders military force is using our troops, which means paying for the troops, paying for everything they need.

• 1:25:55Speaker 02

  One thing that Congress could do, even without the compliance of the president, would be, fine, we'll withdraw the funding. But Congress is never going to do that. Never going to do that.

• 1:26:05Roman Mars?

  Yeah. I mean, sometimes it's okay to have things be undefined in words so that it forces negotiation, and that negotiation is like part of the ongoing conversation of what it is to make a society. Like, I'm okay with that. You know, like, you know, like, having discretion and discussion and negotiation, you know, instead of like, a wall, for example. You know what I mean? Like, you know, like, having not a hard solution, but a negotiated solution. It's sort of like, as things develop, that's fine. But this one seems particularly messy. Like, because there's so many lives and so much awful activity can happen underneath the, through the vagaries of trying to work this stuff out.

• 1:26:47Speaker 02

  I think that's right. And also, you know, the problem is, you know, even if there is an emergency power that we want to keep in reserve for the President of the United States, the problem is, when everything is an emergency, as the Trump administration keeps asserting, then this expansive power is never going to end. And we can't always point to the Civil War as our precedent, because that was the national emergency. The nation almost split apart. But that's not the way we think of ordinary uses of military force.

• 1:27:15Roman Mars?

  Yeah. As soon as you read some part of the law that says emergency, I'm like, oh, well, this is the end. This is like... This is a huge problem for us because, because he's just, emergency here, emergency there, emergency, I ran out of milk, emergency. Like, everything is an emergency. And no one anticipated that. We maybe need a new, stronger word than emergency. I don't know what it is, but we maybe need something else to put into our laws.

• 1:27:38Speaker 02

  That's right.

• 1:27:40Roman Mars?

  Well, this was really fascinating stuff. Thank you so much for talking me through it.

• 1:27:43Speaker 02

  Thanks, Roman.

• 1:27:48Roman Mars?

  Join us next month. We're continuing our discussion of Article II. We covered a lot with Secretary Napolitano, but there's plenty more to talk about.

• 1:27:57Speaker 02

  The 99% Invisible breakdown of the Constitution is produced by Isabel Angel, edited by Committee, music by Swan Real and from Doomtree Records, mixed by Martine Gonzalez.

• 1:28:09Roman Mars?

  99% Invisible's executive producer is Kathy Too, our senior editor is Delaney Hall, Kurt Kohlstedt is the digital director. The rest of the team includes Chris Berube, Jason DeLeón, Emmett Fitzgerald, Christopher Johnson, Vivian Le, LaSham Don, Jacob Medina Gleason, Kelly Prime, Joe Rosenberg, Talon and Rain Stradler, and me, Roman Mars. The 99% Invisible logo was created by Stefan Lawrence. The art for this series was created by Aaron Nestor. We are part of the SiriusXM Podcast family, now headquartered six blocks north in the Pandora Building in beautiful Uptown Oakland, California. You can find the show on all the usual social media sites, as well as our own Discord server, where we have fun discussions about constitutional law, about architecture, about movies, about

• 1:28:52Roman Mars?

  music. We talk about the power broker like a lot, all kinds of good stuff. It's where I'm hanging out most of the time these days. You can find a link to the Discord server as well as every past episode of 99PI at 99pi.org.

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