Has the U.S. Presidency Become a Dictatorship? (Update) | Freakonomics Radio

Sure, we all pay lip service to the Madisonian system of checks and balances. But presidents have been steadily expanding the reach of the job. With an election around the corner, we updated our 2016 conversation with the legal scholar Eric Posner — who has some good news and some not-so-good news about the power of the presidency. (Part one of a two-part series.) FOLLOW FREAKONOMICS RADIO: YouTube: https://freak.ws/3yIl6dl Apple Podcasts: https://freak.ws/3yAvQh0 Spotify: https://freak.ws/3TsdCmV ABOUT FREAKONOMICS RADIO: Discover the hidden side of everything with host Stephen J. Dubner, co-author of the Freakonomics books. Each week, Dubner speaks with Nobel laureates and provocateurs, intellectuals and entrepreneurs, and various other underachievers to uncover things you always thought you knew (but didn’t) and things you never thought you wanted to know (but do) — from the economics of sleep to the future of education, from markets for marriage to the surprising utility of wolves. ABOUT THE FREAKONOMICS RADIO NETWORK: Freakonomics began as a book, which led to a blog, a documentary film, more books, a pair of pants, and in 2010, a podcast called Freakonomics Radio. Hosted by Stephen J. Dubner, it’s one of the most popular podcasts in the world, with a reputation for storytelling that is both rigorous and entertaining. Its archive of more than 500 episodes is available, for free, on any podcast app, and the show airs weekly on NPR stations. Freakonomics Radio is now the flagship show of the Freakonomics Radio Network, which includes the podcasts No Stupid Questions, People I (Mostly) Admire, and The Economics of Everyday Things. FREAKONOMICS RADIO NETWORK PODCASTS: Freakonomics Radio: https://freakonomics.com/series/freakonomics-radio/ No Stupid Questions: https://freakonomics.com/series/nsq/ People I (Mostly) Admire: https://freakonomics.com/series/people-i-mostly-admire/ The Economics of Everyday Things: https://freakonomics.com/series/everyday-things/ Special series: https://freakonomics.com/topics/ CONNECT WITH US: [email protected] https://twitter.com/freakonomics https://www.instagram.com/freakonomics/ https://www.facebook.com/freakonomics/ https://www.tiktok.com/@freakonomicsradio https://www.linkedin.com/company/freakonomics-media Subscribe to our newsletter: http://eepurl.com/bKm0cf

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• 0:03Stephen J. Dubner?

  Hey there. It's Stephen Dubner, and you are about to hear the first episode in a two-part series on presidential power. We figured the timing made sense. This first episode is an update of a fascinating conversation we had back in 2016, even more fascinating in retrospect, with the University of Chicago legal scholar Eric Posner. This conversation took place in the autumn of 2016, toward the end of President Obama's second term, and a couple of months before Donald Trump beat Hillary Clinton in a big upset. Part two of this series will be released very soon, because we want you to hear them close together. Part two includes a new conversation with Posner about the past eight years of the presidency, and we also try to figure out if election betting markets

• 0:45Stephen J. Dubner?

  might be better than election polls. Okay, here's part one. As always, thanks for listening.

• 0:56Stephen J. Dubner?

  So basically, all my ranting on this topic in the past, arguing that the president matters much less than people think, you're saying that I'm pretty much entirely wrong?

• 1:07Eric Posner?

  No, partly wrong, not entirely wrong. It depends what you mean. If what you're saying is, "Oh, don't worry, it's Congress and the courts that decide things, and the president doesn't really decide that much," then I would say you are wrong. But if what you're saying is Donald Trump will not be able to refuse to enforce the corporate tax, I think you're right.

• 1:30Stephen J. Dubner?

  You may have heard that there's a presidential election going on. In the past, we have argued on this program that the president of the United States is much less powerful than people generally think. Today, the legal scholar Eric Posner tells us why we're wrong. But when it comes to presidential power, we're not the only ones who are wrong.

• 1:52Eric Posner?

  Yes, the Democrats are wrong.

• 1:54Stephen J. Dubner?

  So how'd this happen? How did presidents keep grabbing more and more power?

• 1:58Eric Posner?

  With the benefit of hindsight, the whole constitutional system seems pretty nutty.

• 2:03Stephen J. Dubner?

  But come on, is it really such a huge deal?

• 2:06Eric Posner?

  Yeah, it's a huge deal, and interestingly, it's one that people often don't really understand.

• 2:11Stephen J. Dubner?

  Today on Freakonomics Radio, help us understand, Professor Posner.

• 2:28Speaker 02

  This is Freakonomics Radio, the podcast that explores the hidden side of everything with your host, Stephen Dubner.

• 2:44Stephen J. Dubner?

  What were the founding fathers really aiming for when they sat down in 1787 to write the American Constitution?

• 2:52Eric Posner?

  It boiled down to one thing, which is, we want a powerful government that will protect us and allow commerce to flourish, but we don't want a government that becomes so powerful that it would abuse its power and interfere with our liberties.

• 3:05Stephen J. Dubner?

  Eric Posner is a legal scholar.

• 3:08Eric Posner?

  And I'm a professor at the University of Chicago Law School.

• 3:11Stephen J. Dubner?

  Do you care much about politics on a personal level?

• 3:16Eric Posner?

  I don't really care that much. I mean, like everybody, I have instinctive political reactions, but I try to maintain a distance and try to be objective about things. And often, when I think about politics today, I try to think about how someone 100 years from now might think about politics, a historian looking back. And when we look back 100 years or 200 years, we often find it very difficult to understand why people seem to get upset about little things that in the end didn't matter much. And I think it's important to take that view when thinking about politics today.

• 3:54Stephen J. Dubner?

  Right. Do you vote, for instance? I'm curious.

• 3:57Eric Posner?

  I vote.

• 3:58Stephen J. Dubner?

  Okay, settled that.

• 4:02Stephen J. Dubner?

  One of Posner's books, co-authored with Adrian Vermeule, is called The Executive Unbound: After the Madisonian Republic. James Madison, the fourth president and so-called father of the Constitution, was passionate about the division of the federal government into three branches: the legislative, the judicial, and the president's branch, the executive.

• 4:24Eric Posner?

  The Madisonian checks and balances view is that we don't want a single person or a small group of people to have all the power.

• 4:34Stephen J. Dubner?

  How would you say that the role of the president and the power of the presidency of the United States has turned out compared to how the founders intended the role?

• 4:43Eric Posner?

  Oh, the founders could not possibly have imagined that the president would become as powerful as he has. I mean, our presidency is completely transformed.

• 4:55Speaker 03

  I shall ask Congress for the one remaining instrument to meet the crisis: fraud, executive power.

• 5:05Speaker 04

  A short time ago, an American airplane dropped one bomb on Hiroshima. I'm the decider, and I decide what is best.

• 5:16Stephen J. Dubner?

  So I wanted to speak with you today about a new essay that you've written that was published in the American Academy of Arts and Sciences journal Daedalus. Your essay was called Presidential Leadership and the Separation of Powers. So you argue that the presidents who are generally judged as great, Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt, and Ronald Reagan you name, are generally, quote, "the presidents who most frequently tread on constitutional norms." And you ask, how can our top presidential leaders also be major lawbreakers? Okay, so how can they?

• 5:50Eric Posner?

  The law actually prevents presidents from doing great things. That, in a nutshell, is the problem. The law, constitutional law in particular, but also the laws passed by Congress, set down a long time ago, and people are imagining that the president should do one thing but not necessarily other things. And then, you know, there's a huge convulsion. Times change. There's a war. There's a depression. These old laws are in place, and a very sort of modest president might obey them and not solve the problems. But the great presidents are the ones who basically push it aside so that they can do something great.

• 6:30Stephen J. Dubner?

  Something great, in their eyes at least, but also something unilateral. Indeed, if you didn't know any better, you'd think that most presidents, and especially the two main candidates running for the position this year, can make just about anything happen just by willing it so.

• 6:48Speaker 05

  I will build a great, great wall on our southern border, and I will have Mexico pay for that wall. Mark my words.

• 6:56Speaker 06

  The super wealthy, corporations, Wall Street, they're going to have to invest in education, in skills training, in infrastructure.

• 7:06Speaker 05

  We're gonna have Apple Computers start making their computers here.

• 7:09Speaker 06

  And if Congress continues to refuse to act as president, I would do everything possible under the law to go even further.

• 7:18Speaker 05

  I alone can fix it.

• 7:22Stephen J. Dubner?

  Eric Posner is not an alarmist, but he definitely thinks the US government has strayed very far from the founders' intentions.

• 7:32Eric Posner?

  The founders knew a great deal about classical history, much more than any politician today does. And the great lesson of Roman history was that, for quite a long time, the Roman Republic had a limited government. It was not run by kings or emperors. And it was also highly successful. I mean, by the standards of the time, it was wealthy. They conquered lots of places. It was a fantastic role model for the founders, who were very ambitious for the United States, but didn't want a king. But then the Roman Republic collapsed and was replaced by an emperor. So the founders, looking back at Roman history, said, you know, we'd like to be powerful, like the Roman Republic,

• 8:17Eric Posner?

  and we'd like to imitate the constitutional structure of the Roman Republic, to the extent that it was able to maintain liberty while creating this powerful country. But we want to avoid the errors that they made, which paved the way for an emperor.

• 8:33Stephen J. Dubner?

  You write that this system was supposed to, quote, "allow decisive action by the executive" while blocking it or any other part of government from acquiring excessive power. But it has never been clear how this system could work. You further write that checks and balances simply make it difficult for the national government to act, whether for good or bad. So if I understand you correctly, the Constitution, which we love, I guess, and talk about an awful lot, and is held up as a model around the world, Gives a very loose and murky blueprint for the role of the president. And then, again, if I understand you correctly, presidents went on to define the role in their

• 9:15Stephen J. Dubner?

  image much more concretely than the Constitution did. So, tell me if I'm reading you right, first of all. And, second of all, talk about the ways in which presidents, over time, did shape the Madisonian system to suit their needs.

• 9:32Eric Posner?

  Well, with the benefit of hindsight, the whole constitutional system seems pretty nutty. And we actually know this because some other countries imitated it, which was a big mistake. Especially in Latin America, a bunch of countries imitated our system. And what happened was, the three branches of government in those countries just became gridlocked. Nothing could be accomplished. And eventually, the president would just effectively declare himself the only ruler, and he would rule by dictat. And these countries were very unstable. Now, it's not really clear whether we should blame separation of powers, or these countries had other problems. But most political scientists, I believe, think that parliamentary systems are a lot more sensible.

• 10:16Eric Posner?

  It's a system that gives the government a great deal of power, but not too much.

• 10:22Stephen J. Dubner?

  Okay. So, the US wasn't set up as a parliamentary system, but it was set up to prevent the president from accruing too much power. So, what happened?

• 10:33Eric Posner?

  Something special happened, which was that, for a long time, Congress was basically the leading government authority. The courts were pretty passive. The president, with some important exceptions, basically did what Congress wanted him to do. And this was able to work, maybe up until the Civil War or so, because, basically, the country was vast. People were anxious to make money and move westward and so forth. But in the 20th century, things got way too complicated. And I think what was very fortunate was that Congress and the courts eventually realized that the only way to get this system to work was to Allow the president to have a primary role, to be the first among equals,

• 11:18Eric Posner?

  which they did by creating what we call an administrative state, which basically means a very big bureaucracy headed by the president, which makes most of the important rules.

• 11:28Stephen J. Dubner?

  So in your view, a lot of presidents ran roughshod, are your words, over the Madisonian system in countless ways. Let's have some quick examples, please. Let's start briefly in the beginning with Washington.

• 11:41Eric Posner?

  Washington's a little hard because people sort of expected that he would set some precedents. The Constitution says very little about the role of the president. It says that the executive power is vested in the president, but it doesn't explain what executive power means. And then it has a few trivial things, like he has the power to receive ambassadors, and a few more significant things, like he's the commander in chief of the army. So it's possible that the founders, or some of the founders, thought of the president as basically kind of a limited office, who just does whatever Congress tells him to do. It's also possible that many of them thought of the president as something like a king, except a king who had to survive elections. We really don't know.

• 12:26Eric Posner?

  My guess is there was a lot of disagreement, and people didn't really know what the presidency was going to look like. They did expect George Washington to be the first president, and they trusted him. And I think partly because of that, they were able to agree to a constitution that was not very specific about what the president's powers would be.

• 12:46Stephen J. Dubner?

  OK, how about Thomas Jefferson?

• 12:49Eric Posner?

  The Louisiana Purchase by Jefferson was widely regarded as unconstitutional, even by Jefferson himself. But it was just irresistible. It just seemed like such a great deal that he went ahead and did it anyway, and then hoped Congress would later ratify it.

• 13:04Stephen J. Dubner?

  Abraham Lincoln.

• 13:05Eric Posner?

  Well, he suspended habeas corpus even though the Constitution pretty clearly says only Congress can suspend habeas corpus. So the practical effect of that was that the president could arrest people or have the military arrest people and they would not be able to go to court. So that was pretty dramatic. But he did other things as well. He impounded funds. In other words, he used money that Congress had appropriated in ways that he wasn't supposed to. A lot of the country was just ruled by martial law, meaning that the military made the rules. Congress did not make the rules. But what you can say about Lincoln is that a civil war was going on. So he could make a reasonable argument, I think, that in the middle of a civil war,

• 13:46Eric Posner?

  a lot of these constitutional rules can be suspended or weakened. And what is true is that after the civil war, in the following decades, nobody tried to act like Lincoln.

• 13:57Stephen J. Dubner?

  Skipping ahead quite a bit, Theodore Roosevelt.

• 14:01Eric Posner?

  So before him, it was generally understood that Congress would make policy, debate policy, pass the laws and so forth. Roosevelt took the view that the president should lead, using the bully pulpit, as he called, to appeal to the public, which of course, we're used to this now, but that was new when he did it. And so the president began to be the primary figure for determining domestic policy as well. It wasn't that he would pass laws by himself, but he would set the agenda and he became a much more important figure than he had been in the past.

• 14:36Stephen J. Dubner?

  Talk for a moment about Woodrow Wilson.

• 14:38Eric Posner?

  Woodrow Wilson was a professor and he had these professorial ideas, one of which is that parliamentary systems are better than presidential systems. And he sort of thought of himself in that way. And what that meant was that he, as the president, would be the primary person for determining domestic as well as foreign policy. So he was building on Roosevelt. And he also helped initiate the modern administrative state. He was one of the first presidents who really put a lot of force behind the idea that a lot of the rules should be made and enforced by bureaucracies in Washington, which would be headed by the president.

• 15:19Stephen J. Dubner?

  Okay, and take a deep breath for the next one, Franklin Roosevelt.

• 15:24Eric Posner?

  Well, yeah, we could be here all day. He did so much. One thing he did, of course, was stay in office for more than two terms. That was not unconstitutional, but it violated a longstanding precedent which had been set by Washington of all people. And a lot of people did accuse him of being a dictator, not just for that, but because, of course, in the New Deal, he vastly expanded the power of the federal bureaucracy. And he got Congress to pass laws, which were what lawyers called delegations of power. Rather than passing a law that says, "You have to do this or that," to ordinary people, the laws say to the president, "You figure out what people should do." To use an anachronistic

• 16:04Eric Posner?

  example, but an easy one to understand, when environmental law was eventually enacted in the 1970s, Congress didn't really say, "Here are all the pollutants, and this is what you should do about them." Congress said to the executive branch, "Do something about air pollution and do something about water pollution." The Supreme Court initially struck down these laws, but eventually acquiesced in them. And then it was up to the bureaucracy and the executive branch, ultimately the EPA, to figure out what the rules were. And then the final thing, of course, is World War II. For all intents and purposes, during the war, Roosevelt was a dictator who basically decided how things would go, both in terms

• 16:46Eric Posner?

  of how the war was prosecuted and in terms of domestic policy.

• 16:51Stephen J. Dubner?

  But again, in extreme times, we give more leeway, yes?

• 16:56Eric Posner?

  We do. But what's striking here is that in both settings, things were permanently changed. Once the administrative state was put in place and strengthened under Roosevelt, it just remained there, and ever since has become more and more powerful. There was a very brief and weak effort to roll it back in the mid to late 40s. And then, from time to time, people like Ronald Reagan say, you know, "We should deregulate." But basically, this system of administrative governance is fully entrenched. And then, on the foreign policy side, the president, basically as the commander in chief and as leader of foreign policy, his decisions just had much more importance than they had before World War

• 17:41Eric Posner?

  II. And that would never change. That would become permanent.

• 17:47Stephen J. Dubner?

  So the accumulation of power by US presidents has not only been substantial, but cumulative. After the break, what does constrain the modern president?

• 17:58Eric Posner?

  So he can say, well, I think it's in the national interest not to allow Muslims into the country. And he's acting consistently with the statute.

• 18:05Stephen J. Dubner?

  I'm Stephen Dubner. This is Freakonomics Radio. We'll be right back.

• 18:17Stephen J. Dubner?

  Eric Posner, a law professor at the University of Chicago, has been telling us how the power of the US presidency has expanded, especially since the growth of what is called the administrative state.

• 18:28Eric Posner?

  The executive branch went from basically a post office at the founding to it now has 3 million people or so.

• 18:35Stephen J. Dubner?

  Our constitution says that Congress should be the center of lawmaking. But Congress has ceded, or perhaps delegated, much of that authority to the president and the many agencies under his or potentially her control.

• 18:50Eric Posner?

  Congress is a small body with relatively small staff. And it's a multi-headed body consisting of people who disagree with each other about all kinds of things. It simply cannot exert consistent, powerful influence over the agencies in the executive branch. It just can't.

• 19:10Stephen J. Dubner?

  And then there's the expansion of power in the foreign and military arenas. During the Cold War, presidents were given broad powers that included unilateral authority over the CIA, which was behind coups in countries like Iran, Guatemala, the Congo, Dominican Republic, South Vietnam, and Chile. Presidents have also led the US into many wars, every one since World War II, in fact, without having an official declaration of war from Congress, although Congress did formally authorize some of them.

• 19:42Eric Posner?

  The president has always had quite extensive war powers. Even before World War II, presidents would send troops off to do things without congressional authority, although they were usually relatively minor sorts of things. But after World War II, this power expanded. There was something of a backlash in the 1970s. But I think the backlash was, to a large extent, a backlash against Nixon.

• 20:05Speaker 07

  People have got to know whether or not their president's a crook. Well, I'm not a crook.

• 20:10Eric Posner?

  And to some extent, a backlash against the Vietnam War.

• 20:14Stephen J. Dubner?

  In 1973, Congress passed the War Powers Act over President Nixon's veto, we should say. It stipulates, among other things, that the president should consult with Congress over matters of war and peace, and it requires congressional authorization for conflicts that last more than 60 days.

• 20:32Eric Posner?

  I don't think the War Powers Act really had much of an effect. The presidency in the 70s was weak because of the backlash against Nixon. But by the time we have Reagan, you know, Reagan sent troops abroad, Grenada and Lebanon, without congressional authorization. George H. W. Bush would do it in Panama and Somalia. Clinton would do it in Serbia and Somalia and Afghanistan. I mean, there are all these examples of presidents using military force without congressional authorization, and then, most recently, Obama in Libya.

• 21:08Stephen J. Dubner?

  Every president since the War Powers Act has said that it is an unconstitutional abridgement of their prerogatives as commander in chief. For now, it's an unsettled constitutional question, but functionally, Posner says, when it comes to war making, Congress generally bows to the might of the president.

• 21:30Eric Posner?

  And we're basically back to where we were before the War Powers Act was passed.

• 21:36Stephen J. Dubner?

  So it's clear that on many dimensions, the president isn't nearly as constrained as the founders planned. Does that mean, however, that the president is all-powerful? So I've been arguing for a few years, to little or no effect, I should say, that the president of the United States essentially matters much less than is commonly thought. And yet, many Americans think that the president has vast powers over everything, from the economy to geopolitics of countries halfway around the world. So tell me, in a nutshell, how do you... Characterize the breadth and depth of presidential power.

• 22:19Eric Posner?

  I think the president is enormously powerful, certainly the most powerful person in the United States and really in the world by a large amount. But I also don't disagree with you. What people usually say about the president is that his power is constrained by the Constitution. And in particular, this idea of separation of powers, where the government is divided into the executive branch led by the president, Congress, and the courts. And the old idea, which I think we all learned in junior high school, is that this separation of powers is what constrains the president. But I think most people, political scientists, historians, and me as well, think that that

• 23:00Eric Posner?

  system doesn't really operate the way people imagine it does. And in fact, these constraints are much more limited.

• 23:08Stephen J. Dubner?

  So what does constrain the president?

• 23:11Eric Posner?

  What really constrains him is the difficulty of leading. And in particular, this institutional environment that has evolved, which has made him the leader of three different groups. He's understood to be the leader of the country. He's also the leader of the party. And he's leader of the executive branch. Trying to be the leader of these different groups with different interests and values turns out to be an extremely difficult task.

• 23:38Stephen J. Dubner?

  An extremely difficult task, and you would argue a more significant constraining factor on the power of the president than the Constitution itself, yes?

• 23:49Eric Posner?

  Yes. The major constraints on the president in the Constitution are Congress and the courts. And Congress has, to a large extent, acquiesced to presidential power, has given the president more and more power. And the courts also tend to be highly deferential, at least for important issues. But if the president wants to accomplish something, he does need his subordinates in the executive branch to carry out his orders. And he does need popular support within the country as a whole. And he also needs cooperation from his party, because the party is a very important institution through which the president also maintains his support and accomplishes the things that he wants to get done.

• 24:31Stephen J. Dubner?

  Give me an example of an issue that a president might care about a lot. And as leader of the country, he or she has, let's say, a clear path. But as leader of his or her political party, there is obstruction.

• 24:44Eric Posner?

  I think Guantanamo Bay is a pretty good example, actually in multiple ways. So George Bush, at some point, decided he wanted to basically shut down Guantanamo Bay, and his party was definitely opposed to that. You know, I don't think Bush cared that much, but Obama cares a great deal. And I think both the Democratic Party and the Republican Party have gotten in his way. I'm not exactly sure what the country as a whole thinks about Guantanamo. I think people have pretty mixed feelings about that. But that's an example of conflict.

• 25:15Speaker 08

  We will close Guantanamo prison. Guantanamo will be closed one year from now. That is why I ordered the prison at Guantanamo Bay closed by early next year.

• 25:27Stephen J. Dubner?

  22 years after it was opened, the US military's detention camp at Guantanamo Bay remains open. Like President Obama before him, President Biden has tried to shut it down, but as of this recording, there are still 30 prisoners at the site. Coming up after the break, is the US presidency turning into, I'm not sure I even want to say this word, is it turning into a dictatorship?

• 25:50Eric Posner?

  Yes, I think that is happening, although dictatorship is such a freighted term.

• 25:56Stephen J. Dubner?

  I'm Stephen Dubner. This is Freakonomics Radio. We will be right back.

• 26:07Stephen J. Dubner?

  Hey there. Just a reminder that you were listening to an episode we made in 2016, shortly before the election between Donald Trump and Hillary Clinton, which means that Barack Obama was nearing the end of his second term. For much of his presidency, Obama faced a Republican-controlled Congress that countered many of his policy goals. This led Obama to bypass Congress by issuing many executive orders. Saturday Night Live took note of this maneuvering in a parody of the old Schoolhouse Rock song about how a bill becomes a law.

• 27:02Speaker 09

  My legs. President Obama, what's the big idea? That bill was trying to become a law.

• 27:09Speaker 10

  I realize that. But you know, son, there's actually an even easier way to get things done around here. It's called an executive order.

• 27:17Speaker 11

  I'm an executive order and I pretty much just happened.

• 27:26Stephen J. Dubner?

  Obama issued an average of 140 executive orders per four-year term, which may sound like a lot, but it is slightly less than George W. Bush and considerably less than Bill Clinton, who averaged around 180 per term. Joe Biden has so far issued 142 executive orders during what will be a single term. And how about Donald Trump during his single term? 220. When we spoke with the legal scholar Eric Posner back in 2016, Trump hadn't been elected yet. I asked him how Obama had used executive orders differently from his predecessors.

• 28:01Eric Posner?

  The most distinctive and interesting innovation by President Obama has been to use a power that people don't talk about much, sometimes called prosecutorial discretion, sometimes called enforcement power. The idea in the original Constitution was that Congress passes the law and the president enforces them. But what does it mean for the president to enforce the laws? Maybe he doesn't, then what happens? And there's a clause in the Constitution called the "take care" clause, which says, "Well, you've got to enforce the laws." But there's also the executive power clause, which seems to say, "Well, you have discretion." And this whole idea of the executive as being an independent branch suggests that the president has discretion.

• 28:43Stephen J. Dubner?

  The discretion, for instance, to provide legal status to nearly 5 million immigrants who'd illegally entered the US. That's what Obama tried to do in 2014.

• 28:53Eric Posner?

  Our immigration law says that if you come into our country without papers, you're here illegally and you're going to get kicked out. President Obama has made it clear in a way that these earlier presidents haven't, that as a matter of policy, he doesn't think he should kick out certain classes of people, children who came here when they were very young and a few other classes of people. And what he's doing in some ways is continuous with our understanding of presidential power. He's using discretion to enforce the law, and presidents are allowed to do that. But I think it also troubles a lot of people because he's doing it on such a huge scale and in an area where we would normally expect Congress to act by issuing an amnesty or providing a path to citizenship.

• 29:37Eric Posner?

  And so I do think this is a major advance in presidential power.

• 29:42Stephen J. Dubner?

  Obama's immigration move was blocked by a Texas court. The decision was later upheld by the US Supreme Court. On the day of the Supreme Court's ruling, the Texas Attorney General issued a statement that said, "Today's decision keeps in place what we have maintained from the very start. One person, even a president, cannot unilaterally change the law. This is a major setback to President Obama's attempts to expand executive power and a victory for those who believe in the separation of powers and the rule of law."

• 30:16Stephen J. Dubner?

  So President Obama came to office making a number of promises of reform in a number of different areas. I'd like to go through them with you, one by one. I'd like you to tell me how far he got, if at all, and whether that happened according to what we think of as normal constitutional channels or other channels. So, number one, let's call it, we'll combine these, economic stimulus and financial regulation. Talk about his promise and the outcome and the methodology.

• 30:46Eric Posner?

  He obtained laws from Congress both for stimulus and for financial regulation. So in that sense, he used normal congressional procedures.

• 30:59Eric Posner?

  On the other hand, the response to the financial crisis, which of course started with Bush but continued while Obama was in office, involved tremendous use of administrative powers, many of which were of questionable legality. And so, at least with respect to the response to the financial crisis, I think some of it was outside of the traditional constitutional sense.

• 31:24Stephen J. Dubner?

  Talk about President Obama's policy initiative on universal health care.

• 31:28Eric Posner?

  So here, in one sense, he followed constitutional norms. He obtained a statute that we call Obamacare, the Affordable Care Act. But once the statute was in place and Congress turned hostile, he had to aggressively use administrative powers to implement it. And so famously, he has in several instances delayed the administrative rollout of the statute for both practical and political reasons in ways that many people think are constitutionally questionable, although, you know, people argue back and forth about that.

• 32:05Stephen J. Dubner?

  Carbon emission regulation.

• 32:06Eric Posner?

  President Obama tried to obtain a statute and failed. So then he used his administrative powers under existing statutes like the Clean Air Act to issue regulations. This is a good illustration of how our system works. He wanted Congress to pass a statute. Having failed to do so, he was still able to accomplish much of what he wanted to do through regulation.

• 32:31Stephen J. Dubner?

  His preferred reforms to counterterrorism.

• 32:34Eric Posner?

  Interestingly, George Bush was much more successful than Obama here. George Bush wanted to do some aggressive things and basically persuaded Congress, of course, a mostly Republican Congress, to pass statutes like the Patriot Act that allowed him to do that. Of course, he broke some rules as well. Obama hasn't been as successful in obtaining the statutes that he's wanted. But on the other hand, he's been able to use the powers that Congress gave to Bush. And he's also pushed on the envelope a little bit, using drone strikes to kill people, including American citizens, is, you know, you might argue constitutionally questionable.

• 33:13Stephen J. Dubner?

  You write that when it comes to the Affordable Care Act and Dodd-Frank, that not only did Congress acquiesce in the president's legislative agenda, it vastly expanded his authority and the authority of his successors to regulate, that is, to make policy decisions in the financial and health sectors of the economy. So considering, Professor Posner, that the health and financial sectors of our economy are gigantic, that sounds like a huge deal, that President Obama expanded his authority and that of his successors to make policy decisions there. What do you make of that? And what would James Madison make of that?

• 33:48Eric Posner?

  Yeah, it's a huge deal. And interestingly, it's one that people often don't really understand. The president didn't break any laws. He wasn't like Nixon. He went to Congress and he got a statute, which is what the president is supposed to do under Madison's vision. But what these statutes do is they give the president enormous discretionary authority. So that means that going into the future, when we're trying to figure out what's good financial policy and what's good health policy, what we should do is talk to the president and persuade him to pass the regulations that we think are important, rather than going to Congress. Now, Madison wouldn't have recognized this. He just didn't imagine that this is what would happen.

• 34:30Eric Posner?

  And partly, in those days, these sorts of things would have been dealt with by state governments, not the national government. But basically, the founders were not creating a system of administrative government. They knew about administrative government. A lot of countries had big bureaucracies with a king at the top, places like France. These sorts of systems did not appeal to them, and they tried to create a different type of system. But that system is gone, and we have an administrative state today.

• 34:58Stephen J. Dubner?

  So I'm trying to square two conflicting narratives here. One is the Obama- And democratic narrative that a Republican-dominated Congress stymied everything that President Obama and the Democrats wanted to do with your narrative that President Obama got almost everything he wanted by expanding or kind of maximizing presidential power. So can you put those two narratives together for me?

• 35:23Eric Posner?

  Yes, the Democrats are wrong. Obama has accomplished a huge amount, both by obtaining statutes and through his administrative powers. What is true is he hasn't accomplished as much as he'd have liked to have accomplished and as much as many Democrats would have liked him to have accomplished. There could have been a health law that was much more ambitious with a public option. Dodd-Frank could have been stronger. The president has been disappointed that he hasn't been able to close Guantanamo Bay, and there he certainly was stymied by Congress. But you've got to be realistic about what can be accomplished. If the public doesn't want something and the president wants to remain influential and popular, he just can't do as much as his party might want him to do.

• 36:08Stephen J. Dubner?

  Now, you sound a little bit like a Democrat when you describe how much he accomplished. I don't know if you are or aren't, or if you care to say whether you are or aren't.

• 36:17Eric Posner?

  I vote both ways.

• 36:19Stephen J. Dubner?

  Are you or were you friends and/or colleagues with President Obama when he was at the University of Chicago Law School?

• 36:25Eric Posner?

  Yeah, I knew him. I actually knew him in law school when we were in law school. I knew him a bit. He lived in Hyde Park as I do, and I occasionally saw him around the law school. I wouldn't call him a friend, though. I mean, I probably should, but he's not really a friend. I didn't know him that well.

• 36:42Stephen J. Dubner?

  But in terms of the big policies that we've been talking about, do you generally find yourself on the side of President Obama and seeking out the kind of, let's say, financial reforms and healthcare reform?

• 36:52Eric Posner?

  I think Dodd-Frank was a good idea, although a lot of the details one could quarrel with. I think he basically was right that we needed healthcare reform. I don't know whether the Affordable Care Act was a good statute or not, but mainly because this is an area of policy about which I know very little. So I don't have strong views about this. I think historians in the future will look back at Obama and say, yeah, he did a pretty good job. He accomplished many of the things that he wanted to accomplish in difficult circumstances. I don't think he'll be regarded as a fantastic president like Lincoln or Jefferson or any of those people. And I guess for my part, I'm kind of ambivalent.

• 37:34Eric Posner?

  I think it's very hard to evaluate presidents until long after they've left office and the archives have opened up and you can really see what sorts of choices they faced.

• 37:43Stephen J. Dubner?

  But considering your argument that all the presidents who are categorized as great by political scientists and historians make a lot of end runs around the Constitution, then by that logic, President Obama will be close to great, no?

• 37:59Eric Posner?

  Well, that's a necessary but not sufficient condition, I think. So a president could be a dictator who destroys the country. If you compared someone like Obama to Carter, Carter's never going to be considered a great president, maybe because he was too scrupulous about the law and about the Constitution. In the case of Obama, it's possible he'll be considered a great president, and partly because he was very aggressive. Law professors have already written thousands of articles talking about how many laws he's broken, and they will continue to do so, but in the end, I don't think that's how people are going to evaluate him as a president.

• 38:36Stephen J. Dubner?

  At least according to his public statements, which I find no reason to think are not how he really feels, President Obama is not enthusiastic about a Donald Trump presidency at all.

• 38:50Eric Posner?

  Yes.

• 38:51Stephen J. Dubner?

  How would you characterize the calculus of a president in office creating new leverage for the presidency so that he or she can take advantage of that leverage while potentially handing off said leverage to a successor with very different views?

• 39:06Eric Posner?

  I think this is a real problem that Obama has thought about. If you read the various memoirs and so forth, he said to his subordinates and his lawyers, That he doesn't want to expand presidential power because he's worried about future presidents relying on these precedents to do bad things. But he's done it anyway. And he's done it because he felt that the immediate objectives were sufficiently important. The nature of how precedents influence future behavior is very complicated. People have made the argument that because he refused to enforce the immigration law,

• 39:47Eric Posner?

  if Trump becomes president, Trump could refuse to enforce corporate taxes, for example. But I just don't believe that. I think if Trump refused to enforce corporate taxes, there'd be an enormous political backlash. I just think they're different settings. But it is a risk that Obama has taken.

• 40:06Stephen J. Dubner?

  Given what Donald Trump has said about his plans overall for the presidency, including immigration, ban on Muslims, et cetera, et cetera, et cetera, how would you see a President Trump being able to carry out his various plans if he were elected and even if the Democrats were to control Congress?

• 40:21Eric Posner?

  He can probably ban Muslims from coming into this country, at least in the short term. The immigration statute already gives the president enormous power to block anyone from entering the country if the president thinks it's in the national interest. So he can say, well, I think it's in the national interest not to allow Muslims into the country, and he's acting consistently with the statute. It's possible that a court could block this type of order on constitutional grounds. It's hard to know whether that would happen because there's really no direct precedent for that. In terms of trade, the president can tear up treaties, he can tear up NATO, and because

• 41:03Eric Posner?

  he controls American forces abroad, he could just not use them.

• 41:09Eric Posner?

  Like if Russia invades Germany, there's no way to force the president to use troops to defend Germany. So he has a lot of power over these alliances and treaties as well.

• 41:19Stephen J. Dubner?

  And let's say Donald Trump, President Trump, were to decide that a new alliance was in the benefit of America. You know, he does profess quite a fondness for Vladimir Putin as a leader.

• 41:29Eric Posner?

  Yes.

• 41:30Stephen J. Dubner?

  Let's say that Trump decides, rather than being these neo-Cold War antagonists, why don't we join forces and that we should essentially form an alliance, maybe even a merger? How far could Donald Trump go in not only tearing up existing alliances, but maybe creating new ones?

• 41:47Eric Posner?

  He can do what he wants. He and Putin could agree that henceforth, the United States and Russia are military allies. Let's suppose they entered into an agreement that if one country were invaded, then the other country will come to its aid. And then subsequently, Russia's invaded, I don't know, by China. He would have the power to bring the military to Russia's aid. He can do those sorts of things. There are possible ways to constrain him. But just looking at the tradition of presidential power, presidents make agreements all the time. Obama himself made the Iran Agreement and the Paris Agreement on climate change without the involvement of the Senate, even though the Constitution says the Senate's

• 42:28Eric Posner?

  supposed to be involved in treaties. But in many ways, his power is limited because he can't use a treaty to affect the rights and obligations of Americans on American soil. So he couldn't, for example, order every American to send a check of $100 to the Russian Treasury. That wouldn't work, even if he promised Putin that he would do that. So it's kind of a complicated thing. But you know, if he wants to destroy the world, he can do it. That's our system. If he wants to enter into crazy alliances or tear up good alliances, he can do that up until he's impeached, or until he leaves office and is replaced by another president who puts everything back in order. But that's what presidents have been doing for quite a long time.

• 43:13Stephen J. Dubner?

  Hearing you talk, I have to think that if someone is even a little bit of a constitutionalist, then they have to be worried that the presidency is turning, or seems to be turning, into a form of dictatorship. Is that happening?

• 43:27Eric Posner?

  Yes, I think that is happening, although dictatorship is such a freighted term.

• 43:33Stephen J. Dubner?

  What's a better word?

• 43:34Eric Posner?

  I like the term presidential primacy. But that's a kind of vague, weasely way of putting it, isn't it?

• 43:40Stephen J. Dubner?

  Well, you are a legal scholar. We expect vague and weasely from you people.

• 43:45Eric Posner?

  Yes, it's true. I mean, the Romans, for example, they had an office called the dictator, the temporary office, sort of like a commander in chief, who would lead the forces for six months or a year, but would also have dictatorial power. And people thought this was unfortunate but necessary in certain emergency situations. But nowadays, when we think of dictator, we think of Hitler and people like that. And I don't think the presidency is headed in that direction. I think what we're getting is an administrative state headed by the president. But the reason why the president isn't going to be Hitler or anybody like him in the foreseeable future is that he continues to need political support and the support of his subordinates

• 44:28Eric Posner?

  in the executive branch, who he needs to carry out his orders, and support in the press. And the country is just very complicated. There's a kind of a technical sense in which the president has more dictatorial power than the founders imagined he would. I think the practical implications aren't nearly as terrifying as that word suggests, because there continues to be all these constraints, political and others, that prevent him from acting in an arbitrary fashion.

• 44:56Stephen J. Dubner?

  You would be forgiven for thinking this conversation with Eric Posner happened after the 2016 election of Donald Trump, but it was actually published a couple of months beforehand. As we all know, Trump's single term was quite eventful, and now Joe Biden is finishing up his single term. So with another election coming soon, we thought it might be a good idea to go back to Eric Posner, to talk about everything that's happened since 2016.

• 45:24Eric Posner?

  I will say that I have changed my views about the presidency to some extent.

• 45:29Stephen J. Dubner?

  That's coming up in our very next episode very soon. So I'm glad you finished with this one, because that one will be waiting for you, if it isn't already. In part two, we will also ask if betting on elections is a terrible idea or a great idea.

• 45:45Speaker 05

  Has betting on elections led to the demise of democracy or terrible scandals? I don't see it.

• 45:54Stephen J. Dubner?

  That's next time. Until then, take care of yourself. And if you can, someone else do.

• 46:00Stephen J. Dubner?

  Freakonomics Radio is produced by Stitcher and Renbud Radio. You can find our entire archive on any podcast app, also at Freakonomics.com, where we publish transcripts and show notes. This episode was produced by Greg Rosalsky. Our staff includes Alina Kuhlman, Augusta Chapman, Dalvin Abouajie, Eleanor Osborne, Ellen Frankman, Elsa Hernandez, Gabriel Roth, Greg Rippon, Jasmine Klinger, Jeremy Johnston, John Schnars, Lyric Bowditch, Morgan Levy, Neil Carruth, Rebecca Lee Douglas, Sarah Lilly, Teo Jacobs, and Zach Lipinski. Our theme song is "Mr. Fortune" by The Hitchhikers, and our composer is Luis Guerra. As always, thank you for listening.

• 46:40Stephen J. Dubner?

  Good. You don't sound excited.

• 46:41Eric Posner?

  Takes a lot to excite me.

• 46:48Speaker 02

  The Freakonomics Radio Network, the hidden side of everything.

• 46:55Eric Posner?

  Stitcher.