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When the Constitution Meets Realpolitik: Why Paper Rules Can't Always Stop Power · William Cooper Podcast Channel

• 0:00
  Welcome to How Our Constitution Works and Why It Doesn't.
• 0:04
  I'm William Cooper, and with me, my co-host, Edward Larson. Ed, how are you?
• 0:10
  Nice to see you again. We have quite the lineup today after a series of guests.
• 0:16
  I think we've had wonderful guests, leading figures in constitutional law for
• 0:22
  about five episodes in a row at least.
• 0:25
  But now it's just us. So, but that'll allow, uh, both of us like to talk.
• 0:30
  So it'll give us a little more room to, to get our views in.
• 0:33
  And we have a tremendous subject. This one's close to my heart as a litigator,
• 0:38
  you know, somebody who's been a litigator for many years, you know,
• 0:43
  about 15 now, I feel like it's one of those areas.
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  I, I understand from personal, you know, direct personal experience and how
• 0:52
  it plays out. And that's when litigation slows things down and how the president
• 0:57
  can do things from the Oval Office.
• 1:01
  And even if it's contrary to law,
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  There's not a whole lot that can be done just because the wheels of justice
• 1:08
  grind slowly and dysfunctionally.
• 1:11
  And I think you can describe our topic better than I can as you frame the episode.
• 1:16
  But I think those are some examples of how this is a really important topic.
• 1:21
  I'm excited to jump into it.
• 1:24
  It hits right in. I agree with everything you just said.
• 1:27
  It hits right into the thesis of our podcast, how the Constitution works.
• 1:34
  Yes, we're going to tell you how the Constitution works and why it doesn't.
• 1:38
  And it's not that these framers didn't know this.
• 1:42
  Washington, Pierce Butler of South Carolina, Elder Ridge, Jerry of Massachusetts,
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  John Adams, they all commented on this.
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  The Constitution itself was written for virtuous people.
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  It was written for people who will take the words, take the spirit, and then live by.
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  Washington was that sort of leader.
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  Adams was that sort of leader. I could give examples. Thomas Jefferson was that sort of leader.
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  And even the ones that pushed the boundaries, like Lincoln and Franklin Delano
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  Roosevelt, they did so in true emergencies, a time of desperate emergencies
• 2:26
  of World War II and in the Civil War.
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  And what the problem is, as Adams had said when he was president,
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  that, you know, you'll break the strongest cords of our Constitution as a whale
• 2:40
  goes through a net, that famous line. And that's because.
• 2:44
  How do you hold people to account? You say something is constitutional.
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  You say you can't take any foreign emoluments.
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  Totally clear what that means.
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  A president or any top official.
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  That includes the people the president chooses as ambassadors,
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  his negotiators going over and meeting places in other countries where foreign
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  emoluments would make a difference.
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  It includes any federal officeholder, members of cabinets, Supreme Court justices.
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  They're not supposed to take any foreign emoluments.
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  And yet, who's to stop them?
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  How do you stop them? Their own virtue will stop them.
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  Oh, sure, you can try to impeach them. But impeachment is like using a,
• 3:31
  you know, using a tourniquet to deal with a severe cut. It's not always the,
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  it doesn't fit all. It's not a simple solution.
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  And so people can go out and collect their foreign emoluments unless you have the virtue not to do it.
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  Same way with starting a war. It's clear that only Congress can declare war. That's what they meant.
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  They wanted the people's representatives to decide.
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  Nationalizing elections, it clearly is supposed to be the states.
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  Yet how do you hold them in account? Well, we think, oh, the courts can do it. Oh, Congress can do it.
• 4:07
  Well, partisanship makes it harder for Congress to hold a president of their own party to account.
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  It just is. And the courts, as you were suggested, and I want to get into a conversation with you.
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  Courts are bound by all sorts of rules designed to protect
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  against fraudulent cases that are possibly brought or inadequately defended
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  representatives to work justice in the key cases.
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  But here, if you have a executive branch that has endless financial resources
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  for lawyers because they just use the Justice Department,
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  and if they don't want to follow, if they want to build an arch or tear down,
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  the east wing of the White House, who's to stop them?
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  It can be after the effect, and it's just too late.
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  In the hearing before a judge for building the ballroom, the judge asked the
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  government prosecutor,
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  well, if the president, given that the Constitution clearly says all federal
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  property is controlled by Congress. Congress has to decide.
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  Do you build an arch? If you build a ballroom?
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  Whatever. And so they asked him, you know, really looked at the government solicitor
• 5:31
  general and asked him, so if the president just decides to tear down the Statue
• 5:37
  of Liberty, he can just start tearing it down until the court stops him?
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  And he answered, And yes, yes, he can just do it, even though it's clearly unconstitutional.
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  So we need leaders who will follow the Constitution. And if they don't do that,
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  it's like a whale cutting through in that. And.
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  The courts, yeah, they can in a rough way do it, but not in a sort of manner
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  of really keeping the Congress in
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  force. So that's an example of why the Constitution doesn't always work.
• 6:11
  Yeah, I think it's a great example, and it's definitely one that,
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  doesn't get talked about enough in my view. I mean, it's very,
• 6:23
  easy to say, well, the Constitution says this and Trump did that and therefore
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  it's a violation, but the way it plays out in practice is it could be very complicated.
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  And one of the things, you know, one dimension of this that's fascinating for
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  me is how uneven and sort of ragged the protections are.
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  So in some cases, the president can be prevented from what he wants to do.
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  So, for example, Trump really wants to get Jim Comey prosecuted.
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  But in that case, you know, you need a grand jury to indict,
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  and you need a judge not to throw the case out.
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  So he can't do it. He can't get it done.
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  He's impotent as the most powerful person in the world to get his political rival prosecuted.
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  At the exact same time, he can disregard the war power of the Constitution and
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  invade an entire country and threaten to end an entire civilization.
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  And there's nothing we can do about it.
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  And that contrast we see throughout constitutional law where depending on the
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  specific area we're talking about, sometimes the checks work really well and
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  they work as envisioned.
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  And sometimes because of the lack of virtue, we just see a nail going through
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  a net day after day after day.
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  Now, great points. Let me just comment on both of them because,
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  as you know, they're all nuanced.
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  Congress could slowly, grudgingly, by the appropriations process,
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  hold a president to pull out of a war. They've done it before.
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  They can just cut off funding, but you've got to have Congress willing to do it.
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  And that doesn't stop the president from starting it, using up all the armaments
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  we have. But when they finally run out of armaments, what are they going to do?
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  It's a similar way with some of the restrictions. The president tried to cut
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  funding for certain things.
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  Like, well, an example that he tried
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  to cut funding was National Science Foundation. He cut it to some extent.
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  But then Congress went ahead and even though the budget came with huge reductions, they put it back in.
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  And so Congress can deal with it to an extent. It's hard to do it when it's
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  the president of your same party.
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  On the other example, yeah, Comey, they couldn't get a, on the one hand,
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  they couldn't get a jury to go along. And that's an important point.
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  But on the other hand, and they ended up having a lot of prosecutors quit on
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  some of these cases because they wouldn't do them.
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  But on the other point, you know, the government put him through a lot of expense.
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  He had a lot of agony. He had a lot of, of course, people, his name is vilified
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  with the president's followers, and there's questions about him that remain.
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  Never can quite clear his name.
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  And on the other hand, he's had to run up a lot of bills. So you can create
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  a lot of pain and suffering, just as the Biden administration did for,
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  and not just the Biden administration, the,
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  prosecutors in New York for Trump out of office. So you can still do a lot of damage.
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  A great example of that is tariffs.
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  Here, the president imposed these tariffs that I thought from the beginning
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  were unconstitutional because only Congress can impose taxes.
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  And tariffs is listed as one of the taxes only Congress can impose.
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  He used a bootstrap approach that did not do it to impose the first pass of tariffs.
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  Well, eventually, and so people had to pay them.
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  They had to pay them for over a year because the courts are slow.
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  And eventually they struck them down. But when they struck them down, who gets the money back?
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  The taxpayers, that is consumers, had paid those tariffs.
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  They're not getting any of the money back. The money back's going to the corporations
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  that collected it to the extent they get it back.
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  And the administration is being grudging about returning it biting every tooth
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  and nail, according to the reports I read in the paper.
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  But even then, it doesn't go back to the consumer who paid it.
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  So there are costs and there are inefficiencies even when the president's held into account.
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  And the same thing happened with the decision recently saying the president
• 11:01
  can't go in and use the mails to nationalize elections. Well, of course he can.
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  There was no way that was going to be a constitutional, but it took a long time.
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  The court punted several times. It took time.
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  It ended up costing effort. And in the end, it ended up raising a lot of questions.
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  We never know how many, but in people's minds about will mail-in voting work?
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  And what's to stop the administration from coming up with trying a new approach
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  tomorrow and have to go through it all again?
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  Or a week before the election, so there's really no way to do it,
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  right? There's really no way to stop it.
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  Yeah, it's, those are all, all really good points.
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  And, you know, the, the founders on the one hand built the constitution for
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  people of virtue, right?
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  As you, as you started the show, but on the other hand, they also recognize
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  the dark side of human nature and they constructed a government to deal with
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  that, right? They certainly looked at King George and his behavior and tried to stop that.
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  And Madison, of course, his famous remedy for human nature when it goes the
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  wrong way is to pit factions against each other.
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  And so one of the great geniuses, we talk about how the Constitution doesn't
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  work, but to me, some of the Constitution worked incredibly well. And one of the great.
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  Geniuses of its design is that pitting of factions against each other and the branches.
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  And it's really unfortunate they didn't consider these political parties that
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  are at war with each other. But the way they constructed the government with
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  the bicameral legislature and so forth.
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  So what solution would there be? You know, due process can take a long time.
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  Sometimes litigants need to put on a lot of evidence. Sometimes they deserve
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  their day in court before a jury.
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  What remedy might there be?
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  If you could write a constitutional amendment to fix this or improve it,
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  what might that be? Or is this just the way civilization has to work?
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  Resolving disputes is hard. It takes time.
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  And you're never going to really get it efficiently.
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  I love that you put it back to the beginning because.
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  The framers weren't perfect. The biggest problem is they didn't anticipate political parties.
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  They didn't also anticipate corporations. Those two are two big ones,
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  but the parties one you mentioned.
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  And how that plays out is the way they thought, the way Madison thought he had
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  factions figured out, was the state legislatures were picking the Senate.
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  So that would be rooted in the states.
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  People were from small districts, not by political affiliation,
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  but picking their representatives.
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  That's the popular house, the lower house, where money bills have to come from.
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  And the president was picked by yet another approach. Now, the idea,
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  which was uncertain, whether it was the legislature that was picking the electors
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  or the people, states could do it either way.
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  And for years, they did it both ways. They sort of split on how they do it.
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  So that would true create differences, these factions. And I think that would
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  have helped balance it out.
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  But when we pass the constitutional amendment and shows how constitutional amendments
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  can backfire, well, we all believe in democracy.
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  But when they pass a constitutional amendment saying the people elect the senators,
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  well, it really makes the Senate no different than the House of Representatives,
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  except they serve longer terms.
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  So they're partisan, and they're not really representing a different faction.
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  It's not like the old idea of England, where you had a king for life and a house
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  of lords representing the established nobility, and then a somewhat popularly
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  elected house of commons. So you get three different factions.
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  We lost that with the amendment that allowed the direct election of senators.
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  With the idea of increasing democracy, but in a way it unbalanced the faction approach.
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  So the factions didn't really, really work when you have a party controlling the legislature.
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  That's why I think so many people, whether they're Republican or Democrat,
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  like at least one branch of government held by another party,
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  because at least somebody will hold somebody in check.
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  And I think we may see that in this election, people voting that way,
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  not because they like the Democrats, but they just don't want the Republicans to control everything.
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  So how do you make up, how do you deal with that flaw?
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  How do you adjust the Constitution? Well, most of the world does it,
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  obviously, by not having a two-party system.
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  We have a two-party system because I think it's the 12th Amendment, the amendment that.
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  President and vice president run on the same party, and the original document
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  that says you need a majority to become president.
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  And so you can't really, practically, you can't really have a multi-party system.
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  I think a multi-party system might help.
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  The approach that they have in, this could be state by state,
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  rank-ordered voting might help to break the lockjam of two-party system.
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  But as I said, the framers realized the problem.
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  Ben Franklin's solution, of course, was having impeachment. The original constitution
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  didn't provide for it. He insisted on impeachment.
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  But again, that breaks down when you have partisan government.
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  And Franklin said in the Constitutional Convention, in his closing remarks,
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  he said, the executive will always be increasing here as elsewhere till it ends in monarchy.
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  And Elderbridge Gerry, who was at the Constitution Convention and voted against
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  the Constitution, says, the people don't lack virtue, but they're the dupes
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  of pretend patriots and false reports circulated by designing men,
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  and which no one on the spot can refute.
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  Pierce Butler, who was also there, said at the convention, it has been observed
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  that in all countries the executive power is on a constant course of increase.
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  Why might not a Catalina or a Cromwell arise in this country as well as others?
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  They recognized the threat.
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  They recognized Americans throughout history that was accused.
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  Andrew Jackson being this way, certainly people accused Lincoln of this,
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  and Franklin Roosevelt.
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  People of both parties have been accused of Woodrow Wilson, these problems.
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  And ultimately, it comes down to we the people.
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  And how we can toughen that, how we can increase that, we should spend a show on that.
• 18:06
  Yeah, yeah, that's a great idea.
• 18:09
  I think a really salient example that a lot of lay people can understand or
• 18:16
  at least get a sense of the dynamics here was Elon Musk and Doge.
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  You know the way i saw that he he came in trump delegated to him enormous latitude,
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  to just go in and and take a chainsaw to the federal government and to change things,
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  he is a total lay person when it comes to government i mean he's a brilliant
• 18:46
  engineer and a brilliant businessman but you can tell he's illiterate when it
• 18:50
  comes to some aspects of how government works and how he talks about,
• 18:54
  judges and and legislation things it's just not his area probably gets it better
• 19:00
  than i get rocket science but.
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  But he did but it but but nonetheless he went in and just started tearing down agencies,
• 19:13
  changing rules for how, you know, trillions of dollars of annual spending sloshes
• 19:18
  around American society and even globally.
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  And nobody could stop it. That what, what were they to do?
• 19:30
  Right. You file a lawsuit. First of all, people didn't even know a lot of the
• 19:34
  things that were happening.
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  Second of all, it did have the, you know, the blessing of the duly elected president.
• 19:41
  And these lawsuits, you know, by the time a court is hearing the opening briefs, USAID was in rubble.
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  And you can't just bring it back easily, and it still hasn't come back.
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  So I think it's a really good example of the limits of what a piece of paper can do.
• 20:01
  Yeah. And it reminds me of the great line.
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  I'll wrap up this thought with this from Scalia, where he would always talk
• 20:08
  about how the best constitutions in the world on paper are in dictatorships.
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  They're beautifully crafted, wonderfully phrased, inspiring documents.
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  And in practice, whales are flying through nets every second of every day as
• 20:27
  the dictatorship runs its course. Interesting.
• 20:33
  One time at lunch when I was talking to him, he said, well, if you want to control
• 20:37
  the president, just go up to the Capitol building and they can do it.
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  But he knew they couldn't.
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  How do you deal with each of these? So the Congress has set aside money,
• 20:48
  whether or not I support it. I was never a big fan of the Education Department
• 20:52
  personally, but Congress had appropriated money for the Department of Education.
• 20:56
  Trump just answered. Closes it down, shifts it around. Same way with the spending
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  money on the war, but then not spending it on, you mentioned, foreign aid. Now.
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  And then the question comes out, well, who has standing? Who is standing to bring the case?
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  I understand why the standing rules are there, but it makes it very hard.
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  Now, they can do some specific things, but we see that playing out in the Kennedy Center.
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  So on one hand, it's almost a comical issue. But here it is,
• 21:27
  the president wants his name on the Kennedy Center.
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  He seems absolutely determined to be at the Trump Kennedy Center.
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  So he gets Congress to appropriate a whole bunch of money for it.
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  He puts his name on it. Court says, you can't do that. You can't add your name,
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  which is true. He can't. I mean, constitutionally, he can't just add his name
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  because Congress created that name.
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  He could get Congress to change it. But no, he does it unilaterally through
• 21:53
  being his self-pointed board.
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  And now he says, well, it's going to go bankrupt. You won't add his name.
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  We're just going to close it down for good.
• 22:03
  Well, the money's been appropriated. That means he's not going to spend the money. So that sort of.
• 22:11
  Pushing ahead at all costs, same way with the victory guard.
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  He wants his statutory garden of heroes in the mall.
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  But Congress has been very clear. Every monument that's gone up in the mall,
• 22:24
  whether it's the one for Martin Luther King or the one for the Vietnam Veterans
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  Memorial, beautiful monuments,
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  That's been approved by Congress. One for World War II, they recently added not too long ago.
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  Now he wants to put in all these 250 statues, and he's already started constructing
• 22:43
  some of the pavilions there, and he's starting boring holes for the arch across the way.
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  And if anybody tries to be in a complaint, he just says, well,
• 22:54
  it's just conceptions yet. We're not doing it yet.
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  And therefore, it's not right for decisions. And the result is,
• 23:01
  by the time a court can deal with it,
• 23:05
  the East Wing has been torn down and the new Trump ballroom has been built.
• 23:12
  The Supreme Court, that would be where I'd close on this.
• 23:17
  Every court ruled that President Trump could not unilaterally put up the ballroom.
• 23:23
  Every court ruled it. When it got to the Supreme Court, four members said, you can't do it.
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  The chief justice said, it's unconstitutional.
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  But five justices said, well, it's not ripe yet for decision.
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  But they didn't say it was legal. They didn't say it was constitutional.
• 23:43
  So every judge has said it's unconstitutional.
• 23:46
  And yet, in the end, there'll be a ballroom. Yep.
• 23:50
  One of Trump's most effective tactics as president, I think,
• 23:56
  is on display here, and that is flooding the zone and just having this flurry of activity,
• 24:04
  that distracts people.
• 24:07
  If you do 100 things and five of them get attention, 95 are not getting attention.
• 24:15
  So his flurry of activity endlessly, both in the press and I think in the governance,
• 24:22
  his style of governance in substance, can be very effective.
• 24:27
  And one of the things that makes it really effective is that,
• 24:31
  The courts like to decide concrete issues. They like to decide concrete disputes,
• 24:37
  especially the Supreme Court, especially the chief justice.
• 24:41
  He wants to decide only what's right in front of them. And I actually think. Let me add. Please.
• 24:48
  And with parties who have standing, with narrow standing rules.
• 24:52
  Absolutely. So there needs to be a concrete dispute.
• 24:56
  People, parties have to have standing and they're only going to decide what's in front of them.
• 25:01
  And in a way, I actually like that because to me, that moves power,
• 25:10
  keeps power in the democratically elected officials more than the courts.
• 25:14
  And I think in general, that's a good approach.
• 25:18
  But when you've got Donald Trump, who is, I will say it, is not a virtuous actor
• 25:24
  in a lot of these contexts, and he floods the zone with dozens and dozens of aggressive,
• 25:30
  executive action, and then you have a court meant to be the bulwark against it,
• 25:35
  only deciding the narrow slices that come before them,
• 25:39
  it makes what Trump's doing very effective from his perspective.
• 25:43
  But I'll wrap up my point, and we've got a few more minutes,
• 25:46
  and I welcome you to have the last word today.
• 25:49
  But I'll wrap up this by saying I do have a prediction. I predict.
• 25:54
  There will be a very big decision in the next several years coming from the court,
• 26:01
  that's broader than many of
• 26:04
  their decisions that really does strike back against what Trump's doing.
• 26:10
  And I don't know if it'll be in the context of confiscating funds from universities
• 26:14
  or tearing down the Department of Education,
• 26:17
  but one of these cases is going to work its way through the courts,
• 26:21
  and I predict a resounding, I don't know if it'll be a 6-3 or 5-4 or 7-2,
• 26:26
  but a resounding opinion,
• 26:29
  really stating firmly that the way President Trump has been anti-constitutional
• 26:36
  with a lot of these actions is not okay.
• 26:39
  It won't solve every problem, but I think there'll be a really positive opinion
• 26:43
  that flows from this. We'll see if I'm right.
• 26:46
  Well, I think what is also going to be involved in that is if Congress is no
• 26:52
  longer solely in the hands of the Republicans and Congress begins passing things.
• 26:58
  That the court can then help work with the court to hold them accountable,
• 27:04
  because that's the way the process is supposed to work.
• 27:09
  And so that could be part of the steps to it.
• 27:13
  I saw a poll today, a major poll that said, not that the people like the Democratic
• 27:19
  Party, but they didn't want, they felt that there had to be some check on the
• 27:24
  presidency and they wanted Congress somehow to more check the president.
• 27:28
  So if they're working hand in glove, that might bring some relief.
• 27:32
  But I do think there can be constitutional amendments that will help Re-establish
• 27:40
  these guardrails, because in theory, our Constitution is a beautiful thing.
• 27:46
  People should understand, which is our purpose, help understand.
• 27:50
  And only if we understand what the terms of the Constitution is, war powers in Congress.
• 27:58
  Voting in the states. That's part of the checks and balances.
• 28:03
  No foreign emoluments. You think of these, you know these rules,
• 28:08
  and then the people can help flag these issues, help them account.
• 28:13
  So it's important that we know what it is, and then we hold them in account.
• 28:17
  I'll give two examples, though.
• 28:19
  We think of people, the other presidents who come to mind in this respect there
• 28:24
  are, of course, Andrew Jackson, Lincoln, and Roosevelt.
• 28:29
  Roosevelt, by executive order, interred the Japanese from California and the West Coast.
• 28:35
  Congress never did that. Congress didn't act. Executive order.
• 28:39
  Now, he claimed an emergency, and the Supreme Court ultimately upheld Lincoln.
• 28:46
  Declaring an emergency at the beginning of the Civil War, unilaterally blockaded
• 28:51
  the Southern ports, and, as president, took away habeas corpus.
• 28:57
  Now, it's unclear if the Constitution gave them the authority to do it or whether
• 29:02
  that was required congressional.
• 29:04
  Their Congress later ratified both of those acts.
• 29:08
  So those were examples of, yes, there were probably constitutional excesses by these presidents.
• 29:16
  One, the court upheld. The other one, Congress later affirmed.
• 29:20
  But in those cases, the presumption was that the president, Lincoln and Roosevelt,
• 29:27
  were trying to do the right thing.
• 29:29
  I don't know if I agree on the interment of the Japanese, but the court decided
• 29:34
  he was trying to do the right thing. And so they upheld it.
• 29:36
  So these, we do have historical examples where we've come back from the brink.
• 29:42
  I hope you're right that we'll come back from the brink again.
• 29:45
  Great, great examples. And they put all of this into context.
• 29:51
  Thank you. This has been lots of fun and a great episode.
• 29:55
  And we'll be back next week and we'll see if we've got a guest or another conversation
• 30:02
  between the two of us. But thank you, Ed, for another great episode.
• 30:06
  Great talking to you, Will.