Melissa Martin: We would like to welcome you to the Free Speech Movement Educational Program Series at UC Berkeley. I’m Melissa Martin and I’m the co-chair, along with my colleague, Shannon Monroe here, of the Free Speech Movement Educational Program’s Committee.
The FSM Educational Programs at the UC Berkeley Library are designed to educate, engage students, faculty, staff and visitors with the issues of the Free Speech Movement and the wide range of activities the movement helped to inspire, including contemporary expressions of free speech, activism and social change. We hope to inform and entertain as well as engender debate and discussion on a wide range of issues.
And this year, we have a new group of committee members, so I would just like to ask everyone on the committee to stand up. And if you have any questions after the talk, please feel free to come up to one of us and we will be happy to answer any questions that you have. Our committee is made up of a group of library staff who are passionate about free speech. We enjoy working with students especially and welcome student groups and others to submit applications for programs to be held in the Free Speech Movement Cafe.
Information on how to propose a program is available on the library website, and it’s a little hard to navigate, but it’s under “About” and also the event, so you can just search under FSM Programs, Free Speech Movement Programs. So, I’d like to hand it over to Shannon.
Shannon: Thank you, Melissa. So tonight, we have a great event in honor of Constitution Day. That is an event that we have to sponsor every year. And so I’d like to introduce Professor Daniel Farber. Professor Farber is the Sho Sato Professor of Law at the UC Berkeley Law School. He is also the Faculty Director of the Center for Law, Energy and the Environment. Professor Farber also serves on the editorial board of Foundation Press. He’s a member of the American Academy of Arts and Sciences, and a life member of the American Law Institute. He’s the editor of Issues in Legal Scholarship and the author of 18 books, including Research Handbook on Public Choice and Public Law, Judgment Calls: Politics and Principle in Constitutional Law, as well as Retained by the People: The ‘Silent’ Ninth Amendment and The Rights Americans Don’t Know They Have, as well as others. Please welcome Professor Farber.
Daniel Farber: Thanks. So my talk tonight is going to be more about the sort of public debate and controversy part of the FSM Cafe’s and Speaker Series than it is about the First Amendment, although I’m happy to talk about the First Amendment too, but it seems to me, as you may know, we have a president who’s somewhat controversial and I thought it would be maybe useful to talk about some of the constitutional issues there because I know they’re on a lot of people’s minds these days.
So what I’m going to do really is, in the lecture part of it, it’s gonna be kind of academic, although hopefully not dull, but what I want to do is just give some background on the constitutional ground rules, talk about a couple of the major issues the Supreme Court’s dealt with in recent years, and then hopefully, leave a lot of time for discussion because there’s a lot to talk about. So I’m going to start with some short background about presidential powers, what can the President do or not do, putting aside so much individual rights issues, that is, putting aside cases where the Bill of Rights is involved. And then I’ll talk about some of the most significant recent disputes about presidential power and individual rights. And then I hope that we will all have a chance to talk, because that’s a lot more fun than just listening to me.
So I’ve actually written a book about Lincoln and the Constitution, and I kind of wanted to start with this as an example of why it might not be a good idea to take the obvious solution of just not having presidents that have very much power. And the reason I think for not going that direction is sometimes, you really need somebody who can act decisively in an emergency. And Lincoln for me is sort of a paradigm case. The South seceded from the Union and fired on Fort Sumter while Congress was not in session, and in those days, it took people quite a while to get to Washington. And so Lincoln took action on his own, and here’s some of the things he did.
He called out the militia, which is allowed under something called the Militia Act, and he ordered a blockade. A blockade under international law at the time was an act of war. Still is an act of war still I think under international law but you don’t see as many of them these days because technology and the world have changed, but in the 19th century, that was a very big deal and that really was equivalent to starting to shoot. He also, and this gets more into the individual rights issues, suspended habeas corpus. Habeas is the legal procedure that allows someone to challenge their being detained by the government. He suspended that, and in a fairly limited area at the beginning of the war, Congress later approved that, and over time, it expanded a lot.
There were also military trials of both Confederate soldiers for violating the rules of war, for civilians who are blowing things up behind Union lines and so forth. So this raised a lot of very dramatic questions about individual rights and the Constitution, but I think it also shows why if the president had not had the power to respond, by the time that Congress got organized, came back, got its act together, the South could have been allowed to go on. So a problem is that sometimes, we have a crisis where we really need the president to step in, because there really isn’t anybody else who can take that kind of action.
But the more discretion we give the president to deal with emergencies, the greater the chances of abuse, right? So it’s sort of a trade-off, you give more power, you’re taking more of a risk of abuse. And less power, less risk of abuse, but less ability to respond in an urgent situation where Congress doesn’t have time to intervene. So that’s what courts are kind of wrestling with is how do you strike some kind of balance? Often in situations where it’s very hard for courts to find out the actual facts and what’s going on depends on intelligence information and who knows what that courts are not really part of. And what we’ll see is courts try to maintain a balance, but I don’t think it’s very steady balance over time, the court sometimes seems to give the president close to a blank check, and other times, really jumps in and tries to limit potential abuses.
So here is the view from 10,000 feet about what presidents can do, what powers do they have under the Constitution, and how do we know what powers they have? So the text in the Constitution actually isn’t very clear about president’s powers. I should say, there’s some people who think it’s crystal clear, but they disagree with each other about what it means. So Article II of the Constitution says the President has the executive power. That might be just sort of a chapter title, Article II, the Executive Branch, or it might be actually a grant of power to do whatever it is the executive power means. Big Brother contention. When you get to more specific powers, there are a few that really stand out, and one is commander-in-chief of the military. So the President gets to tell the generals what to do. That’s a sort of civilian control. The Constitution says the president, “Shall take care that the laws be faithfully executed.”
So as the term executive power indicates, one of the things the president does is execute laws that Congress has made. The President has broad power, according to some people, unlimited power, over appointing judges and significant government officers. For a lot of those appointments, the consent of the Senate is required, but not all of them. Judges, yes, but not all executive officers.
There are big fights over just how much power the president has. For example, could the president directly fire Mueller, or does the president need to get the Attorney General to do it? And then finally, there is an oath to support and defend the Constitution, which presidents, including Reagan, have said gives them broad power to do things that are needed to protect and defend the Constitution. There are a bunch of other littler things, some of which seem very minor, like the president has the power to require the heads of Cabinet departments to give written opinions about things. The president has the power to receive ambassadors which has been interpreted to mean a lot of power over foreign affairs, but that’s sort of the language.
It’s pretty short, much shorter than the section about Congress and its powers. And people have been fighting over it ever since George Washington took the oath of office, almost literally. It took only a year or two before Jefferson and Hamilton and Madison were fighting with each other over presidential power. But anyway, that’s what we have to work with in terms of constitutional text. What about the history? A lot of people believe that original understanding should control constitutional law. Other people don’t think that, but they do think it’s relevant, so what do we know about the original understanding that the founding fathers, or founding parents, had about the powers of the president?
And the answer is honestly not much, except by implication. The reason is that they didn’t talk about it very much. There were just a lot of other things that were on their plate that seemed a lot more pressing, and they also knew that the first president would be George Washington, and they all trusted George. So for a number of things is they just didn’t really talk about it, so we don’t know, but they all share a common understanding that they didn’t talk about. There are a few little wisps of discussion here and there about the president’s powers, people, I mean, there was like tea leaves to try to figure out something bigger, but it was very hard to tell.
And we didn’t think of the president as this awesomely powerful office, which it is today, but back for parts of the 19th century, there were always presidents whose names you can’t remember and the reason you can’t remember them is that they were just one step above being errand boys for Congress. They were not, they were weak politically, Congress was very powerful, it had extremely powerful leadership, and presidents, and it’s not like it was nothing to be president, it’s always, people always wanted that office, it’s always kind of a big deal, but nothing like today. And over time, that has changed.
I would say really, the beginning of Teddy Roosevelt, 100 and some years ago, and in the 20th century and the 21st century, we’ve seen a more or less steady increase in presidential power, with a few glitches along the way. After Watergate, there was some retrenchment and so on, but basically, presidents throughout this sort of modern period have either exercised or assumed, whichever you prefer, a lot of authority. One thing that seems clear is that presidential power is especially broad when you’re not inside the US. So anything to do with foreign affairs, anything to do with national security, that’s also an area that presidents get a lot of leeway, but especially if it’s outside the U.S. So those are the areas where presidents have the broadest scope.
One of the issues has been everything kind of affects foreign affairs and national security. I mean, we’ve seen the president put steel tariffs on steel from Canada on the basis of national security, so how do you draw a line? And when should courts step in? That’s been a big issue. So today, when courts approach these issues, when the president has done something that’s being challenged, they use a three-part test.
So, there are two categories. The first category is where the president does something and Congress authorized it. There’s a statute that says the president can do acts, and that’s what the president did. And in those cases, the president’s power is broadest because the president is combining the constitutional power of the presidency, plus the constitutional power of Congress. Now there’s still some limitations, but they’re smaller. The third category of that is when Congress says no and the president says yes. Or Congress says yes, and the president says no, and in those categories, in that category of cases, the president’s power is the weakest because all the president can rely on are powers that are kind of specifically and clearly granted in the Constitution.
And then there is this middle area where Congress really hasn’t spoken directly to the issue one way or the other, and in those cases, the courts kind of punt to a certain extent, they also tend to look at whether the president is doing something that has been done a lot, and that Congress has either given the nod to or at least tolerated over a long period of time. So those are the most difficult cases probably for the courts.
Now, the case that established this test is called the Steel Seizure Case, and it goes back to Harry Truman. During the Korean War, there was a threatened strike in the steel mills. The Korean War probably doesn’t mean as much in American memory as either World War II or Vietnam, but it was a very serious, very major war, and the concern was that if the steel mills went on strike, then there would be no steel to make all the things you need to have to fight a modern war. The Supreme Court, and I think it’s kind of interesting, I think essentially everybody on the court had been appointed by a Democrat by then just because the Democrats had been in the White House since 1932, so quite a long time. They held it illegal, and the reason they held it illegal, at least according to the opinion that everybody follows today realized that Congress really had kind of said no.
Congress provided another way for the president to settle labor management disputes or at least put them on hold if it was a threat to the national economy or national interest. Congress did not authorize this. In fact, it was proposed, they didn’t pass it, and so the courts said, “No, you can’t do this. You’ve got the commander-in-chief power,” but as Justice Jackson who wrote the opinion I’m talking about said, “the president is commander-in-chief over the Army and the Navy, but not everybody else.” He had a great way with words. So, steel seizure indicates how, putting limitations on presidential power can also protect individual rights.
Now for many of us, the individual right of a steel company to run its own business may not be an individual right we feel strongly about. I mean, this is Berkeley, but nevertheless, if the president can do that, what else could the president seize? And what could you do with the stuff that was seized? So this, I think, and I think the court was really worried about that more than the individual case, the idea that if they didn’t draw a line somewhere, presidents would really pretty much just start governing by decree.
So let me talk a little bit about the president and individual rights. At least until recently, the most high-profile cases involved the Bush Administration. Soon after 9/11, President Bush issued some executive orders and the executive orders, at least in some people’s view, were actually trying to create a kind of legal black hole where the people subject to the orders would have no legal rights. So one of the things that President Bush said was that the military, or the government, could detain people who were working in connection with Al Qaeda or the Taliban, and Al Qaeda had been in Afghanistan, so there was some sort of linkage. And when they detained them, they can ship them to Guantanamo Bay. That’s a Navy base on Cuba.
When the US sort of held Cuba for a while after the Spanish-American War and when they gave it up, we insisted on keeping this naval base, so it’s outside the United States, but it’s been under US control forever, 80 years or something, and it’s an indefinite, it’s a permanent lease, so it’s almost like we own it. But it’s not inside the US, and there was a World War II president that said that really people who were for this group or maybe even citizens who were being held outside the U.S. didn’t really have any rights to go to the court, let alone to indicate their positions.
So there was some pretty big precedent from World War II. Of course, a very different time, with different issues. And if you look historically, courts are very reluctant to overrule the president in wartime, or you can debate, and this really ought to be considered a war, but at least a lot of people thought it was the equivalent of a war, the War on Terror. And courts have been very deferential, as indicated by those World War II cases, they were just not going to tell President Roosevelt that he couldn’t do things he thought were necessary for national security. And I think one of the reasons for that is they would just hate to be wrong and have have some terrible thing happen, another 9/11 in this case, or, I don’t know, an invasion or whatever, attacks on Americans just because you stepped in the way of the president.
Also, as this sort of political science matter, presidents have a lot of public support in these conditions and the court may be reluctant to risk its institutional standing by going head-to-head with the president during war. There’s always a chance that the president will just ignore them and say, “Sorry, this is war. “Much as I respect and love the Supreme Court, I can’t let the country go down the tubes.”
So that was the situation in these post 9/11 cases, what happened? Well, there are actually three Supreme Court cases, and some more, but three big ones. So the first case, which was the biggest surprise was that the Supreme Court said that, “We can hear cases.” They said the president could detain people under those circumstances, including even U.S. citizens. There were a couple of people who had been detained who at least had been born in the U.S., although I don’t think any of them lived more than a brief period in the U.S. after they were born, but they were citizens. But, the court said, “You have to give them due process. You can’t just hold them forever until you decide to let them go. You have to give them a hearing at which they can establish and which you have to show evidence that they fit within one of these categories, they really were involved with one of these groups and they were conducting actions that were illegal.”
We have all this stuff, partly, The Hague conventions partly, post-Nuremberg things, et cetera, that make certain things illegal in wartime, so you kind of have to show that they’re violating something like that. Or at least some U.S. law. So that was a big shot to the Bush Administration, they’d been really confident that they were gonna win this case, the court was going to say that this was outside the U.S., they had no jurisdiction, and even if they did, this was presidential authority. Only one justice on the Supreme Court really bought the very broad theory of presidential authority that Bush was claiming, and that was Justice Thomas.
Now in the second case, the court held that if you were gonna actually punish anyone for violating the laws of war, you had to follow the Geneva Conventions. And the Geneva Conventions basically mean you have to have a real trial, as the court interpreted that. You have to give them some kind of trial that the military would give one of its own people. Now, it’s no joke that military justice is to justice as military music is to music, but actually, the military lawyers have been working really hard for at least a number of decades trying to get past the joke and to make it a real legitimate system of justice, and in fact, a lot of them were very unhappy and pushed back on Bush’s executive orders, which I think that kind of conflict within the executive branch is something we’re gonna talk about in constitutional law because it’s not courts, but it can still make a real difference.
And then finally, Congress passed a statue that was trying to keep these people from having full access to the U.S. courts. They give very limited access so courts could have some role, but it would be a much more limited role than they would normally have in hearing a case about somebody who’s been punished or detained. And the Supreme Court said, “No, that’s unconstitutional.” So in all these cases, you can say the courts should have pushed harder, maybe they should have said all the detentions were illegal because they weren’t specifically authorized by Congress, they could have gone farther on these, or you can’t, at least, detain U.S. citizens without a criminal trial and charges, but they went a lot farther than anyone would have thought they would, and it was very frustrating for the Bush people.
So that brings me to the current era, and I want to talk a little bit about the immigration ban. I probably don’t have to say too much about the facts because it’s so recent and it’s probably sort of hard to avoid hearing about it even if you didn’t want to. So the basic facts are Trump, during the presidential campaign and afterwards, made a lot of anti-Muslim comments and said he was gonna cut off all Muslims from entering the U.S., and maybe deport everybody who was already here. Fairly soon after he took office, he issued an executive order, cutting off basically all immigration from a list of countries all of which were majority Muslim. And that went to court, and the Supreme Court never heard it, but the lower courts all said, “That’s unconstitutional because it’s clearly, you don’t have a good, you don’t really have a rationale for why you’re doing this except that you don’t like Muslims.” And they knew this discrimination was not acceptable under the Constitution, that’s what the lower court said.
So as soon as they got, sort of, slammed on this one, they went back to the drawing board. The first one been written by Steve Bannon or Steve Miller, or somebody like that who was not really on top of this stuff, so they tried again, and they took that one to court. And again, it was a little bit, I would say as a lawyer it was a little bit better, would have been a little bit better case, and then again, it got knocked down. So they go back a third time, and the third time, they really lawyer up, so they come up with a much more complete explanation of what they’re doing and why this is supposed to be justified by national security, which really they didn’t have before. They included a couple of non-Muslim countries, Venezuela was one, I can’t remember the other one, and so they tried to, they did everything they could to make it look like this is legitimate national security concerns because these people are not really screened, conditions in these countries were very bad and we don’t know what kinds of terrorist activities are going on there, et cetera. And it also excluded Iraq, under a lot of pressure from the military because the military had promised all kinds of people who were helping us that they would be resettled here, and the Pentagon was very upset about the idea the president backing off from those promises.
So this, again, they listened to the courts. What happens? Well in the lower courts, two different courts of appeals, I guess I’ll come to that, let me back up first, so in the lower courts, two different courts of appeals ruled that it was still illegal. One of them on statutory grounds, they said that the immigration laws didn’t allow it, and one on the same kind of constitutional grounds that, as before, it goes up to the Supreme Court and is argued, everybody’s watching very closely what happens. A majority of the court, five to four, upholds the order. Okay, so why? I don’t know if I can totally tell you why because only those Justices presumably know for sure. What they said was, normally they wouldn’t even look at anything outside of an immigration order like this. They would just look at the order, if it looked appropriate, that would be the end of it, but in this case, we’re going to look outside, at all the various tweets and stuff to see if it’s a legitimate justification. So we won’t decide if we agree with the order, we don’t decide what the president’s motives really were, but at least we’ll take a harder look than we normally would to see if this is really justified on the basis of national security rather than something bad.
So kind of a compromise there, kind of weak in terms of actually keeping an eye on the president. On the other hand, at least I think there’s some hints of opinion that they might not have upheld the first two orders, same majority that those orders, the justification just wasn’t presented well enough to make the cut. But applying this standard of a plausible national security rationale, they decided it was, and that it wasn’t clear from this order that it was based on anything bad, we had these two non-Muslim countries, we had Iraq excluded. Of course, it never included people from Saudi Arabia or some other, Pakistan, some other Muslim countries, and the court said, “Okay, passes the smell test and that’s all we’re looking for here.” That opinion by Chief Justice Roberts, joined by the only people who weren’t sure about going into this case was how would Justice Kennedy rule? And Justice Kennedy had this sort of concurring opinion sort of clearing his throat and saying, “Oh, this is really something we need to worry about and blah, blah, blah,” but going along.
There were, I guess, some unusually strongly worded dissenting opinions from the four liberals. Some were not all that liberal, but that’s how we refer to them on the court. And they criticize the majority I think on two basic grounds. One is yes, if this was the first thing the president had done and they didn’t know anything else about the previous attempts, we might say, yeah, this looks fine. But we do know about the previous attempts, which were blatantly, or at least more blatantly discriminatory, and of course disclosing ties to that. They also said the court is just ignoring just how much evidence of bias we have here and just how extreme it is. And even it continued after, some people were saying, some lower court judges, “Oh no, you know, some people will say anything during a campaign, that doesn’t, you know, basically, that doesn’t affect anything after they’re elected, they just forget all that and start fresh.”
And some of these statements were after the election and after he took office. And the minority said, “How can you close your eyes to reality?” There’s some very strong language, as I mentioned. Justice Breyer, who is a very moderate justice, he’d been a law professor, his prose usually tends to the boring side, he’s not somebody to engage in flashy rhetoric or accuse the majority of doing horrible, horrible things if he’s in dissent, and very sort of studious, but he wasn’t in this case. He said, “This is just like Korematsu.” Korematsu was the big Japanese internment case in World War II. Another case where the Supreme Court upheld Roosevelt after he essentially ordered that both Japanese immigrants and their children would all be rounded up and held in these camps because there was worry on the west coast that they would somehow be collaborating with the Japanese. It turned out in retrospect that actually there was no evidence. Some people dispute this, but it seems pretty clear, the government just lied. Maybe not the government lawyers because they may have been taken in, or some of them may have, but there just wasn’t any evidence there.
And so this has always been considered a real black mark on the Supreme Court that they went along with this, and Breyer said, “It’s just the same. You’re biased against a group, you don’t have any real national security thing and you’re going after them.” The majority did say for the first time, “Korematsu was a terrible decision. It’s overruled. But we think this case is different because these are people who are not inside the U.S., none of them are American citizens and in addition, this is a much more carefully designed order.” Take take that as you will.
So I do think the dissenters had a compelling argument that the majority opinion was ignoring reality. I mean, I really, I find it hard to believe that anybody, whatever their view of Trump is, positive or negative, would think that he waited until he read all this top secret information about security threats and then he made up his mind. I mean, he had made his position clear during the campaign, people voted for him, and that’s what he was doing. Can’t say anything for the majority opinion. Well, courts have given presidents lots of leeway in national security and they tend to enforce constitutional rights less strongly in immigration cases.
So you can’t say it’s completely unprecedented to do that either apart from Korematsu, which nobody wants to rely on, so there’s that, and I think there’s also, it may not have just been a matter of overruling the president, right? It would have been a matter of, “We’re overruling the president because the president and his lawyers are now lying to us about his intentions.” And maybe Justice Kennedy or others on the court just weren’t willing to throw down the gauntlet like that. As I said, we don’t really know what they were thinking. Probably some mixture of those things. Conceivably, although I hope not, some of them were thinking, “Yeah, Trump was right. We should keep all these people out.” I don’t really believe that about anyone on the court, or at least I don’t want to believe it, but anyway, that’s how the case came out.
So, what do we take away from all this? Plus, the other 5,000 pages, or 50,000 pages of stuff people have written about the presidency. So first is, even though presidents have asked for a blank check, they’ve never quite gotten it. The court has never said, “No, if the president says so, that’s the end of it, presidents can do what they want.” Even in national security cases, even in wartime. But courts are also reluctant to push too hard. I think part of them had a genuine belief, people have had a sort of reverence for the presidency, our national leader, elected by the people, knows about all this top secret stuff the rest of us don’t know about, has to make all these hard decisions, these people all look about 30 years older by the time they get done being president. We don’t want to, that we’re not gonna try to do that job ourselves. And I think there is real worry about maintaining the court’s institutional capital in a way that might be difficult if the president, and especially if the president gets backed up by Congress just says, “Oh, say what you want. You Justices, it’s very nice, we’ve taken it under respectful consideration for a minute and we’re not gonna do it.”
Well, then what? So I think the court does worry about those things, although they rarely admit it. So I think the upshot of all this is the court just isn’t really consistent in these cases over time. Some cases, the court jumps in more firmly than others, as they did in the terrorism cases, but they really kind of backed away. Maybe not as much as they might have, they could have just said, “Hey, this is immigration. These people are outside our borders and the president can decide who comes in the country.” They did not do that, but they did give the president an awful lot of leeway in a situation where it was pretty clear he was abusing that leeway. I’m trying not to be partisan, but — at least, I think it’s pretty clear.
But the other thing I want to talk about, at least mention is especially lawyers, but other people I think also think of constitutional law, is something the courts do and the Supreme Court does more than anyone else, and there’s a lot of constitutional law that happens outside of the courts. Some that happens inside the executive branch, when people like those military lawyers say, “No, we don’t agree with that, we won’t go along. And we will publicly let people know that the military does not support this.”
So sometimes it’s that, sometimes it’s pushback from Congress, but in this case, we’ve had a president and Congress from the same party, so we haven’t seen as much of that. Sometimes it’s public opinion. And to the extent that the court is worried about maintaining its standing, or maybe the limits of the kind of judgment that it can pass under the separation of powers, we’re not limited that way, right? We are entitled to say, “No, we’re gonna make our own judgment about what’s constitutional.” And I think ultimately, the public has to be in involved because when the Supreme Court acts, the president has, a president who’s convinced of the rightness of what he’s doing, I would say, or she, but we have yet to see that, is likely to think it’s still really important to do it regardless of these pointy-headed judges, it’s the question of what would the public say if you disobey a court, what will Congress say, which depends a lot on the public, that’s the ultimate check that makes things happen.
So, I think with respect to all this stuff, plus many, many other actions, say in the last couple of years, it’s up to us to make up our own minds. So I think I did pretty well actually in sticking to my time schedule. As my former students can testify, sometimes you run a little bit over, but I think I was pretty close this time. So let me just open it up for Q and A. Go ahead, I don’t have to call on anyone.
Audience member: You were speaking about issues during war and/or immigration, and with the Japanese internment, that seems to have come together. I was wondering if you could speak towards the waterboarding that one aspect, just how that played out because there was a, Senator McCain who really was just outraged by how that played out.
Daniel Farber: So that never really got decided by the courts, they kept finding excuses not to really, people were not available to bring lawsuits, or one thing or another. It was a big question about whether it was prohibited by law and the Bush people were very concerned about that because there’s an anti-torture law that sort of derives from an international treaty, and it’s a criminal offense. And they were really worried that, “Yeah, we can do this now, but if Democrats come in, they might come after us, so we better make sure we got some justification for why we’re not violating the statute.”
Audience member: There was a UC Berkeley professor…
Daniel Farber: There is a UC Berkeley professor, still one of my colleagues, who helped write those opinions, yes. And said, “No, it’s technically not covered by the torture prohibition.” Senator McCain did not like that, and I think under his pressure, Congress passed the law that said that the military can’t do that. It wasn’t limited to waterboarding, but it was basically the military is limited in its interrogation techniques and they can’t engage in these sort of extreme methods, whether or not they’re actually torture. There was kind of a recall because it just says the military, not the CIA, but still, it went a long way and then I think at some point, people, maybe in the CIA and elsewhere started having second thoughts about this too. So at least as far as we know, they’re not doing that anymore. But we can’t be sure because if they’re doing it, we might not know. Yeah, in the back.
Audience member: I was wondering if you were asked to force rank everything President Trump has done since he came in in terms of threats to our constitutional ideas. What, in your mind, what’s the worst thing he’s done? You’ve talked here mostly about immigration, but I’m thinking, when you hear the word abuse of power all the time mentioned in reference to Trump, how true is that? But tell us the number one worse thing he’s done.
Daniel Farber: Oh gosh. That’s like an impossible task. At least for me. I think… So I mean, I think there are a lot of areas where Trump has violated at least the norms of what, the modern era, we expect presidents to do or not to do, though not necessarily any hard-and-fast law. For me… I think the abuse of national security as a justification for things like tariffs against Canada, just because they’re sketchy. If it says the President has this power, do it on the basis of national security, so okay, we’ll say it’s national security, I think that’s a real abuse.
And I think also, again, in the foreign affairs area, this sort of attitude of indifference toward our treaty obligations is another area where I think that’s a clear abuse of power. I think there are others, if people that have other examples they want to talk about, I’m happy to do that. I could have brought a list I guess, but I didn’t think to. I mean, all presidents are accused of their opponents of abuse of power, right? So things kind of flip, right?
So Democrats accuse Bush of abuse of power, and then the Republicans accused Obama, and now we’re back to the Democrats. I try not to think about, am I taking a position that I would be willing to take even against a president who I really think highly of? Or is it just that I don’t really like this president? And then the other way around, so with Obama, I guess I’m giving away my leanings, but with Obama, I would think, “Yeah, okay, he’s doing a, or Lincoln for that matter, but what about other presidents who I don’t agree with? What do I think about that?” Yeah, I’m sure some other things will come to me.
Audience member: Thank you, professor, for your very informative discussion. You spoke a lot about how courts are deciding finally what the executive powers are, but our Constitution is supposed to check and balance all divisions. What about the Congress and legislative branch? What are their powers, and how can they control the president’s powers?
Daniel Farber: Congress has a lot of powers, they’re not unlimited, there are some things under that category three where the president can still do something and Congress says no, but that’s very limited. So what can Congress do? Well first, they can pass a law that says the president can’t do that. And that won’t always work, but it will quite a bit. They can do hearings. They can’t probably call the president as a witness, or at least there’s been an understanding that they won’t, but they can call a lot of people and step down and make their lives miserable.
I mean, I can hardly imagine, I just watched a few hearings on TV and it’s just like some senator or member of Congress was just going on and on and on about how terrible you are, and you’re not allowed to say anything. Yeah, yeah, so they can do that. Something that is very powerful legally is they can cut off funding. Now there’s some things the president might do that require funding, going on Twitter, but, probably can’t keep the president from talking to foreign leaders. But almost everything else, the Constitution says that the government can’t spend any money except if it’s been appropriated by Congress. So if Congress doesn’t give the money or Congress specifically says, “Here’s some money, but we can’t use it for X.” That’s pretty much the end of it. Now sometimes, it’s harder to do that than others, either politically or because it’s hard to kind of specify what money could be used for what, but that’s a very powerful tool.
And then finally, Congress has power of impeachment, the House of Representatives can impeach, and then the Senate can convict. Technically, I think it’s sort of a silly point, but lawyers are fond of pointing out that technically, impeachment is just what the House does, which is true, but really, who cares? They can do that. Now, there have been major impeachment efforts that got to the Senate for Andrew Johnson at the end of the Civil War, and against Bill Clinton. Neither of them was convicted. There was no formal impeachment by the House against Richard Nixon, but it’s generally believed by historians that there surely would have been and that he might well have been convicted by the Senate, but he resigned. So we now have three cases where it’s come up historically. I mean, that’s hard to do, it takes a 2/3 vote in the Senate, which almost inevitably, except for just a few years under Roosevelt would require you to have some members of the opposition party, or the president’s party voting for it.
Like right now, it would take I think 15 Democrats in the Senate as it’s it constituted now, I mean, not 15 Democrats, all the Democrats, 15 Republicans to do it, so it’s not exactly easy. The courts probably will not review those cases, so Congress really has pretty much the final word there. And it’s sort of the nuclear weapon, the atomic bomb in this situation, right? I think there are other things that they can do too that are kind of more subtle, just sort of pressuring agency heads that, “We may not pass anything, but if you want to get a decent budget from us for your pet project, we’re not gonna give it to you unless,” things like that.
We have seen much less of that in the last two years because not only do we have unified government with Congress controlled by Republicans, but the Republicans in Congress also would be fairly terrified of a primary challenge if they cross Trump. So there have been, I mean, there have been exceptions for sure and Congress has actually even passed some things that limit the president, but they have been very, very cautious about doing it. They have not done much oversight of government agencies either, so it’s been a very weak Congress for a variety of, I think, political reasons in the last couple of years. But who knows about the future? I mean, it might depend on the merits of what happens and it might also depend on whether at some point, they’re more worried about losing general election than they are about losing the primary, that’s some of my somewhat cynical take.
Audience member: I’m interested in using, in the use of the claim of national security for imposing tariffs. Is there a way to challenge that claim?
Daniel Farber: I don’t think we know. So there are a couple levels to that question. One is the treaties themselves, which I know a little bit about, but I’m not an expert. So I think all the trade agreements, including the WTO, have a sort of opt-out clause for national security. And the idea behind that ruling is if you think your national security is at stake, you’re gonna do it, regardless of trade loss, so why should we get in front of the bus and get knocked over? In general, trade tribunals have said, “We’re not gonna question those national security claims.” But then, governments don’t make a lot of them either. And they tend to make them in situations where it looks pretty plausible. “We’re not gonna allow the export of something because it can be used to make fissionable material,” things like that.
So you might disagree about are they doing it in exactly the right way and stuff, but it looks pretty legitimate. As far as I know, and again, I don’t really know what other countries might have done, but I think Trump’s use of national security in this context is pretty unparalleled, and I think he is being challenged in some of the trade tribunals. And there’s also the question of domestic law, but I think the statutes are pretty broad.
Again, it’s a real question, will the courts look beyond what the president has said in order to determine if there’s some kind of legitimate national security claim? And tariffs, again, are another area where the courts have generally said it’s up to Congress and the president on tariffs. So I think it could be, maybe, but… It’s just very hard to challenge, as the president’s in situations where the Congress has said, “You can do x on the basis of national security” because we don’t usually want to accuse the president of just making stuff up.
Audience member: So they can forbid the importation of popcorn on the basis of national security?
Daniel Farber: I would say, in terms of what a court would do, there’s a good chance the answer to that is yes. But that doesn’t mean that it’s, I’d say, an abuse of power, right? I mean, even if you can’t get a court or even a trade tribunal to intervene. I don’t think it’s a sure thing that it would be upheld. I think for the WTO it’s just got to be, or a NAFTA tribunal, it’d be awfully tempting to say no, but then again, there’s a problem that if you do, maybe Trump just walks out of the WTO completely, and then you’ve got even unless leverage than you had before. So, I don’t know. I don’t think it ever occurred to anybody that we would have this sort of sweeping use of national security claims in situations where it’s really kind of hard to see. I mean, Canada?
Audience member: So, are there movements in the courts now to look into these broad sweeping…
Daniel Farber: I think cases have been brought. I don’t think they’ve progressed that much though. I mean, there’s been a lot of litigation about the Trump Administration, there’s always a lot of litigation, on both constitutional grounds and non-constitutional grounds. For example, there’s a really interesting, two really interesting cases, but they may not agree with each other in the courts about the emoluments clause. Okay, so I’m seeing heads nod. I’m not sure anyone would have even known what the emoluments clause was until recently, but the idea is that it prohibits Trump from taking things from either foreign governments, or from state governments, as it turns out, even though his hotels and other business operations have done that.
There is some dispute about just how broad that clause is and there’s a lot of dispute about whether anyone has standing or the courts can decide it, but that, I mean, the issue is still ongoing, and at least one lower court has ruled in favor, against Trump on this. So if you had to spin-off hotels and things like that, that would certainly be a major blow, I think, for him personally, not to the presidency. There are a lot of little things that the administration did was try to delay almost all of the rules of the Obama Administration had one on subjects like climate change, which is something I do a lot of work on, and the courts have generally, have said, “No, you can’t do that. You don’t have statutory authority.” If you want to get rid of a rule, you gotta go through a whole big process, it’s gonna take you a year, or two years. You can’t just short cut it by saying, “We’re indefinitely putting it on hold.” So I think we are seeing so real pushback.
On the other hand, I guess my worry is Trump’s appointing a lot of judges and the Senate has been rushing through, and with only a very few turned back after they’ve been nominated. And by and large, they are very, very conservative. And we don’t really know as the makeup of the judiciary changes whether they’re gonna change their view on some of these issues. And what’s gonna happen to the Supreme Court with five solid conservative votes, and six, if something happens to Justice Ginsburg, or Breyer, who’s the second youngest? So I think the courts are, at this point, mostly trying to play it straight, maybe with some irritation at what seems to be abuse of power, but we just can’t be sure whether that will continue. Think pretty good for the, for the next two years probably, there’s a second term. Who knows? Which is one reason why your constitutional judgments matter because Congress has all these various powers, but we have the ability to vote. At least, if we have sufficient ID in some states. Yeah?
Audience member: I was wondering if the president has the authority to pardon themselves, if they ever needed to?
Daniel Farber: So, as far as I can tell you, there’s a zero precedent for that. Even a precedent with, I don’t even know if, say, governors who have, they have the power to pardon, too, for state law. I don’t know if, I think we would have heard just because it’s an issue. So we don’t know, there’s some scholars on both sides, I think the answer is clearly no, in places, myself, yeah.
Audience member: I just read in here it clearly said in cases of impeachment, he’d be pardoned.
Daniel Farber: Yeah.
Audience member: So do we know, is that for the Navy and all the other stuff, instead of generally?
Daniel Farber: So it probably means he can’t pardon you from the impeachment. So that is from being kicked out. But probably still could pardon for federal criminal offenses. But there’s a whole bunch of issues, right? So can the president pardon himself? I just think it’s a ridiculous idea basically, but who knows? But if you look at the reasons that gave the president the pardon power, it doesn’t really seem to apply to the president doing a self-pardon. Given that the Constitution gives the president the pardon power, could use of the pardon power be obstruction of justice, or is that just something that nobody can question? Again, no, I don’t think there’s any precedent. I could imagine that there might have been in a state-level pardon, but I, at least, I don’t know of anything.
Again, we’re in uncharted territory here. It seems to me that… the Constitution specifically says members of Congress cannot be prosecuted for their official acts, there’s something called the speech and debate clause. There is no such clause for the President, so I would argue that those could still be. But again, as Justice Brennan, one of the great liberal judges, has repeatedly said, “With five votes, you can do anything out of nine.” So, anyway, I don’t think that’s quite true, by the way, or at least the assumption that you can find five Justices who are willing to do anything, at all. Everything, anything. But we don’t know, right? We could end up with lengthy litigation, et cetera. One thing that’s important to keep in mind is that the President cannot pardon for state crimes.
So if, just to take a random example, if the Attorney General of New York were to find that there had been violations of New York law somewhere along the way, the President can’t do anything about that. And again, big issue, can you indict a sitting President? Again, no precedent for that either way. Justice Department has always said no, or always, at times, may have been asked, they said no, but then they work for the President, so how much weight can you give that? You can make arguments both ways based on cases dealing with somewhat related topics, and so, we don’t know the answer to that either. I mean, one thing you can say for Trump is he has, is raising a lot of really interesting legal issues. It’s a good time to be a law professor. At least in that sense.
Audience member: I have a question about the usage of President Trump’s on Twitter. First is how frequently he uses it, and secondly is his opinion on it, because compared with the CEO of a public company, they usually carefully make public statement, or their opinion or something, or how they look about the future, because the president is some kind of representative of the country. So do you think it’s a problem, or it’s better to have some limit on this kind of issue?
Daniel Farber: Well, I think it’s better to have some limit, right? I don’t know that there’s a way of putting a legal limit on it, maybe, but I think… presidents can cause a lot of problems, even putting aside what you think of the president, just by spur-of-the-moment saying something, right? And then they realize when they’re saying it that this is definitely offensive to some foreign country because nobody, they just didn’t know, or, I don’t know, it contradicts something the government’s already doing, or who knows what. It’s classified, so presidents are usually very careful about off-the-cuff remarks. And that tends to make their official communications less fun.
Obama used Twitter, but the Twitter things were all kind of official statements. So yes, I think it’s very imprudent, I feel ridiculous saying that in the situation, but yes, it’s very imprudent, I think. There’s an interesting legal question about whether Trump’s Twitter account is private or public. People who have been blocked from the account have brought First Amendment cases saying that the President can’t block them because it’s a public forum, and that’s in the courts.
The White House has sometimes referred to Trump’s tweets as official statements because the downside is if they’re just personal, he could be sued for libel. I think that it is a public forum and that the court should rule that there’s a First Amendment right to comment on the public forum, but, and I’m somewhat more confident that the courts would uphold that, but not 100%. Again, don’t have any real precedent. Even if Obama blocked somebody on Twitter, it just never got any attention, and I don’t know Obama ever did. It just wasn’t a big issue, and then before Obama, I don’t know, did they even have Twitter?
Audience member: One more, thank you. I need clarification on, basically, executive orders. I know as Congress’s power to get things done has diminished, the presidents have used executive orders more and more. How does that fit into the balance of power? Can somebody trump a Trump executive order?
Daniel Farber: Yeah. So, most executive orders are really in the nature of memos to federal agencies. Except they’re public, and highlighted. So for example, Trump had issued a bunch of environmental executive orders that were all basically saying, “Scott Pruitt, I want you to look into this, and do something. But I won’t tell you exactly what because it’s your call.” There are a lot of orders like that. So most executive orders don’t really do anything legally. The exceptions are things where the president really does have an independent right to act, like the immigration orders. There are also some military, they’re not really counted as executive orders for some reason, but there are military orders that the president can issue to armed services. Those, as long as they’re not inconsistent with law, are probably valid, but they don’t affect people outside of the military. Most of the rest of it is, really, just the way the president is saying, very publicly, “Here’s what I think.” I mean it could, a lot of the orders with dealing with environmental stuff or other things, could have picked up the phone, and done the same thing.
Audience member: I think that Obama did a lot more executive orders than previous presidents, because of Congress trying to close everything…
Daniel Farber: Yeah.
Audience member: And trying to understand…
Daniel Farber: Yeah, but a lot of his orders were similar, not all of them, and there’s a lot of dispute about some of them about the DACA and DAPA orders, and whether he could do those, or was it contrary to the immigration laws to do those? And the courts, Supreme Court split evenly on one of those issues. So all of those issues, most of it is sort of garden variety, not constitutional stuff directly, but, “Did you violate the law? Did you have the legal power to issue that order?” But a lot of them are really, just don’t even pretend to. They’re just like internal to the executive branch, and nothing will really happen until somebody lower down than the president actually issues something that you can take to court. So yeah, that’s very misleading.
And the other’s also true of Obama in many situations right? He used executive orders to, and Clinton, I know, Bush, to prod agencies to get them to do something and make it clear that it’s a priority to maybe mobilize public support, but the order itself doesn’t necessarily have any legal, so it could be called a memo. And in fact, there are memos that actually have legal effect and executive orders that don’t. So it’s not a magic term. Contrary to what some people in the White House might think. Well, this has been great and…
Shannon: Mr. Farber, I have one more question for you.
Daniel Farber: Okay.
Shannon: Just thinking ahead to, say, if Judge Kavanaugh is pushed through, and then these cases get really dug into and things get proven with certain, the allegations that are out, I’m sorry, if Brett Kavanaugh is confirmed to the Supreme Court and then after he’s confirmed, some of these allegations are actually investigated and he is found guilty or anything like that, can he be removed?
Daniel Farber: So I think the answer is yes. The reason I’m hesitating a little bit is that impeachment, I think the answer is yes. I mean, the question really only is can you impeach someone for something they did before they were in office? And I think there are precedents, they don’t have judicial precedents for this stuff, but there are precedents of the Senate doing that in the case of federal judges based on this conduct before they were in office. So I think the answer is yes, and then presumably if there were a criminal prosecution, that would raise other kinds of issues, but I think, as far as I know, nobody’s argued that Justices are immune from indictment. Other federal judges definitely are not. So yeah, something like that could happen. Now, would it really ever happen? I don’t know, my crystal ball broke in November of 2016. And I have given up on making predictions.
Shannon: Thank you, and thanks everyone for coming, Really appreciate it. Fantastic presentation, thank you.