Season 3, Episode 13 | George Washington and the Constitutional Design of Article II

Was the American presidency meant to be weak, or was it powerful from the start?

In this episode of This Constitution, Savannah Eccles Johnston sits down with Dr. Sai Prakash to examine the original design of Article II and how George Washington shaped the presidency in practice. They explore the Vesting Clause, the creation of a unitary executive, and why early Americans ultimately embraced a strong president after rejecting monarchy.

The conversation then turns to the modern “living presidency.” Executive power has expanded through precedent, practice, and political necessity rather than constitutional amendment. From war powers to campaign mandates, Professor Prakash argues that today’s presidency is stronger than ever while Congress grows weaker.

At stake is a central question. Can constitutional balance be restored, or are we drifting toward government by executive alone?

In This Episode

• (00:00) Introduction to Dr. Sai Prakash and his forthcoming book on the presidential pardon
• (02:11) Washington as commander in chief and father of the Constitution
• (03:26) The anti-monarchical moment and weak state executives
• (04:36) The Philadelphia Convention and the move to a unitary executive
• (06:50) Creating the presidency with George Washington in mind
• (07:44) Comparing the presidency to an elective monarchy
• (11:27) Washington’s theory of executive authority
• (12:39) The Vesting Clause and foreign-affairs power
• (15:07) How Article II came to be seen as weak
• (17:31) The rise of the living Constitution
• (19:09) War powers and presidential precedent
• (21:27) Delaying statutory mandates and administrative reinterpretation
• (23:24) Is a living presidency necessary?
• (25:58) Campaign promises and the idea of a presidential mandate
• (27:00) The presidency as law-enforcement officer, not policy engine
• (28:30) Congress’s institutional decline
• (29:19) Restoring constitutional balance

Notable Quotes

(06:50) “We kind of created this office with George Washington in mind.” — Sai Prakash

(12:39) “The Constitution grants executive power. It’s a suite of powers related to law execution and foreign affairs.” — Sai Prakash

(19:29) “The strongest declaration of war is from the mouths of cannons.” — Sai Prakash

(25:03) “We can’t wait.” — Referencing modern executive justification for unilateral action

(27:00) “The president is meant to be the institution of law enforcement, not primarily about making law.” — Sai Prakash

(29:19) “Letting a president get away with usurping another branch’s authority today might be in your short-term interest, but it isn’t healthy for the country.” — Sai Prakash

Transcript

[00:00:00] Intro: We the people, do ordain and establish this Constitution. 

[00:00:13] Savannah Eccles Johnston: Welcome to This Constitution. My name is Savannah Eccles Johnston, and today we have a very special guest. We have Dr. Sai Prakash. Who was a, James Monroe, distinguished professor of law and the Miller Center Senior Fellow at the University of Virginia, and just kind of a ridiculously talented researcher.

[00:00:30] Savannah Eccles Johnston: And also you have a new book coming out. So why don't we start actually with you giving us a little primer on this book, on the pardon power, which good timing on that, by the way. 

[00:00:39] Saikrishna Prakash: Well, thank you. Thank you. Thank you for giving me the chance to put in a shameless plug. The book is called The Presidential Pardon: The Short Clause with the long troubled history coming out from Harvard Press in January of 2026.

[00:00:52] Saikrishna Prakash: Operators are standing by on Amazon and elsewhere, so it's available for pre-order now, and the book looks at the creation of the [00:01:00] pardon clause. Early controversies about its use and then obviously looks at the Biden and Trump administrations, both the previous Trump administration, the Biden administration, and then the first several months of the Trump administration and talks about the politicization of the pardon power.

[00:01:16] Saikrishna Prakash: Using the pardon power as a campaign tool using the pardon power is a means of securing donations. Securing political support. So it is very timely because of course, the pardon powers in the news like never before, given the marijuana pardons of Joe Biden and then the January 6th pardons of Donald Trump.

[00:01:35] Savannah Eccles Johnston: Right. So we need to get you back on the podcast when it comes back out so we can hear about it. I would love 

[00:01:41] Saikrishna Prakash: to do that. Yeah, I would love 

[00:01:41] Savannah Eccles Johnston: to do it again. All right, so the reason that we even get you on here the first time is because you are here to give a lecture for Constitution date, which was delayed for us, so it actually happened.

[00:01:51] Savannah Eccles Johnston: In November. 

[00:01:52] Saikrishna Prakash: Mm-hmm. 

[00:01:53] Savannah Eccles Johnston: And, uh, your lecture was about Washington as Commander in chief, but especially Washington [00:02:00] as the father of the Constitution. Mm-hmm. Which is this wonderful argument. And this ties into this book that I have sitting here for those who are watching the, uh, living presidency in which you argue along with previous books, that the original presidency is strong.

[00:02:16] Savannah Eccles Johnston: It is. You call it the. Imperial from the beginning in a previous book. 

[00:02:21] Saikrishna Prakash: Mm-hmm.

[00:02:22] Savannah Eccles Johnston: But that you're deeply concerned with a living presidency. 

[00:02:24] Saikrishna Prakash: Mm-hmm. 

[00:02:25] Savannah Eccles Johnston: Which takes the constitution part out of it and creates a president of necessity at the moment. 

[00:02:30] Saikrishna Prakash: Mm-hmm.

[00:02:30] Savannah Eccles Johnston: So what I would like to do is to tie these three things together.

[00:02:33] Saikrishna Prakash: Mm-hmm. 

[00:02:34] Savannah Eccles Johnston: I would like you to begin by setting the stage for us. What is the feeling, the general feeling? In the 1780s leading up to the convention, maybe in the year or two before the convention on the executive mm-hmm. Are Americans as deeply anti monarchical and non-executive power. As many historians say they were.

[00:02:57] Saikrishna Prakash: Mm-hmm. Mm-hmm. So I think if you start [00:03:00] off in 1776, you do see that deeply anti monarchical feeling in the state constitutions. Every single state executive is extremely weak. Almost none of them have a veto. A lot of them don't have appointment powers, and a lot of them are fractured. Right? They're plural executives.

[00:03:18] Saikrishna Prakash: And then finally, they're term limited and served for very short terms. They think that the executive and the judicial branches are kind of. Regal or aristocratic institutions and they want to give all the authority to the state assemblies. And that's something you see across state constitutions with some exceptions like in in New York and in Massachusetts.

[00:03:37] Saikrishna Prakash: But they quickly find that this is not a recipe for success, that there needs to be mutual checking. And for that to happen, you need to have strong branches. And you can't just have a super strong legislative branch and weak executive and judicial branches. And so that's why later, you know, constitutions like Massachusetts tend to create a stronger executive than the earlier ones.

[00:03:59] Saikrishna Prakash: New York was 1777, so it was a year later than a lot of the state constitutions, but it too created a pretty strong execut. But they still feel as if the state executives are ciphers, as Madison puts it, like he says. They're just, they're nothings, they're non-entities. They don't really serve to check the legislature, and they have their powers being us served by the state legislatures at the federal level.

[00:04:21] Saikrishna Prakash: The continental Congress is essentially an executive. It's not a legislature at all, and it's not doing a good job of stewarding. Federal officers or national officers because it's distracted. It's not always in session and people come and go, right? It's, it's a plural entity. It's of, you know, dozens of people.

[00:04:39] Saikrishna Prakash: So the federal executive isn't functioning well, the state executives aren't functioning well, and there are lots of people talking about maybe we should have a monarchy of some sort at the federal level. I think it's fair to say that most people don't favor a monarchy. They certainly. Don't think they favor a monarchy, but they do favor a stronger executive.

[00:04:59] Saikrishna Prakash: And over the course of the convention, the executive, this is the Philadelphia Convention, the executive grows stronger over time. Right? They decide to have a unitary executive, not a plural executive. As was the case in Pennsylvania and even in Virginia, they decide to give the president a veto over legislation, which is quite significant.

[00:05:18] Saikrishna Prakash: They give him the appointment authority, a treaty power. An unlimited pardon power far beyond what was given to state governors at the time. State executives, whether plural or singular. And part of the story behind that move is that a lot of people think that you can't have a balanced government if you have a weak executive.

[00:05:38] Saikrishna Prakash: And they've seen what happened with a weak executive. The legislatures did all kinds of crazy things in their minds. And then part of it also is the supposition that if we have a single president, George Washington will be that single president. And a lot of members at the Philadelphia Convention say, we kind of created this office [00:06:00] with George Washington in mind.

[00:06:02] Saikrishna Prakash: And they regret it in the sense that they think too many powers were given to the president. As compared to a situation where there, you know, if there had been no George Washington in the room, maybe they wouldn't have been as confident about seeding such broad powers to the executive. They had a virtuous man in their midst who they all thought would be president, and they were very comfortable giving that future president more powers.

[00:06:22] Saikrishna Prakash: The reason why I say it was regal, and I'm not the only person to say this, is that when you look at the president compared it to state executives, the president clearly eclipses all of them. But when you compare it to monarchs, the president kind of looks like a monarch, right? In terms of the authority.

[00:06:40] Saikrishna Prakash: And I say in some respects it's more powerful than the English monarch. So when you think about, well, it's an elective situation, it's not a hereditary, well, they were elective monarchs at the time, and so they were very familiar with elective monarchs, and the electoral college is something that they took from elective monarchy.

[00:06:58] Saikrishna Prakash: The Polish King was elected, the [00:07:00] Pope was elected, and he had some authority over portions of Italy, and there were other elective monarchs in history, like the Holy Roman emperor was, was elected for a time. So there's nothing about election that makes it inconsistent with monarchy. And then we tend to think of monarchs as absolute monarchs, but they were familiar with limited monarchs like the British Crown.

[00:07:22] Saikrishna Prakash: Uh, Montesquieu described. The British Constitution as a republic, disguised as a monarchy, meaning he thought it was really a republic. And so in 18th century thought they had this concept of a mixed monarchy or a mixed republic, and that's the way that people like John Adams or Thomas Jefferson viewed the American constitution.

[00:07:42] Saikrishna Prakash: They saw a legislature, but they saw a strong executive as well. They thought, well, this is sort of a mixed system. It's not purely a, you know, a Republican form of government or a democratic form of government because the executive is so strong. And so I think Adam said it was a limited Republican [00:08:00] monarchy, which seems odd to our ears, but they were more familiar with the idea that you would, you know, have multiple kinds of systems in one government.

[00:08:09] Savannah Eccles Johnston: Right. So if we're to do a quick recap on this, we may have thrown the baby out with the bath water when we threw off a king. Realize actually you do need some kind of executive. 

[00:08:17] Saikrishna Prakash: Mm-hmm. 

[00:08:18] Savannah Eccles Johnston: Mm-hmm. And then we get even more of an executive than maybe many people would've been comfortable with. Mm-hmm. Because it's George Washington sitting in the big chair at the convention.

[00:08:26] Savannah Eccles Johnston: Everyone knows this is the guy. Yes. And he has the virtues necessary to have this kind of. Imperial President. 

[00:08:34] Saikrishna Prakash: Mm-hmm. Mm-hmm. 

[00:08:35] Savannah Eccles Johnston: If you will. Mm-hmm. 

[00:08:36] Saikrishna Prakash: That's exactly right. 

[00:08:37] Savannah Eccles Johnston: But then George Washington is gonna go away, right? No one thinks long term. 

[00:08:40] Saikrishna Prakash: Well, the anti-Federalists do the anti-Federalists mention this?

[00:08:43] Saikrishna Prakash: They say we can't create a presidency for one man. We should be thinking about all the naves that will follow and you know, I mean, it's too late at that point. Right? It's already been made. Right. They're saying this once, it's before the people and. You know the option. Either you take the presidency as is, or you reject the Constitution [00:09:00] and hope for something better to come along down the line.

[00:09:03] Saikrishna Prakash: And of course, as we know, spoiler alert, they ratify the constitution so they don't have the chance of rethinking it. 

[00:09:10] Savannah Eccles Johnston: Right. So yet again? Yeah. Washington is the indispensable man. He has to be there in that moment for the American presidency to look the way it does. 

[00:09:17] Saikrishna Prakash: I think it looks rather different. I mean, the way I, you know, asked my students, well, what if we created a constitution in 1975, right?

[00:09:24] Saikrishna Prakash: Right after Nixon resigns? I think it looks rather different, right? Because people are always reacting to the situation that's in front of them. To the possibilities that are in front of them. So a federal constitution, 70 76, creates a weak executive. But in 1787, not so much. And in fact, if you look at the state constitutions after the federal constitution of 1787, the state constitutions start looking like the federal constitution may start making the state governors stronger because.

[00:09:52] Saikrishna Prakash: If you think that the state governors or state executives are too weak, so you create a strong federal executive, it's not surprising that you would also [00:10:00] reform the state executives in the same direction. 

[00:10:02] Savannah Eccles Johnston: Right. All right, so article two is short. Mm-hmm. And kind of bare bones. 

[00:10:08] Saikrishna Prakash: Mm-hmm. Mm-hmm. 

[00:10:08] Savannah Eccles Johnston: And now it's Washington's job to put flesh on the bones of Article two.

[00:10:12] Saikrishna Prakash: Mm-hmm. 

[00:10:13] Savannah Eccles Johnston: So in many ways our understanding of the presidency has Washington's personality stamped all over it. Can you give me Washington's theory of the presidency? 

[00:10:23] Saikrishna Prakash: I think Washington saw himself as the embodiment of the executive branch. He says, I take the creation of these other officers in departments.

[00:10:33] Saikrishna Prakash: As necessary for me to carry out my powers. They, they're just my adjuncts and so he views them as his assistants. He tells them what to do. He on occasion fires them when they don't do what he wants them to do or when he, they do things, you know, using their discretion that he doesn't like. So he has a, a very robust view of the office.

[00:10:54] Saikrishna Prakash: It's a presidency that can direct and remove officers, a presidency that has significant [00:11:00] authority over foreign affairs that. Where it's not tied to a narrow clause of, of Article two. Both of these conceptions of presidential power, I believe, come from the vesting clause. In fact, he cites the vesting clause as a reason why he's receiving communications from foreign governments.

[00:11:17] Saikrishna Prakash: There's nothing in the constitution saying that he should be the one communicating with foreign governments. It says he can negotiate treaties, but that doesn't imply a complete monopoly. But he starts writing foreign sovereigns and telling them. I've got the letter that you sent to Congress because now I have the executive power and certainly his aids feel this way as well.

[00:11:37] Saikrishna Prakash: Hamilton famously says that the vesting clause gives the president authority over foreign affairs subject to the exceptions and limitations found in the Constitution, where the Senate has a rule or Congress has a rule. Jefferson says the same thing. He says, the Senate can't decide destination or grade of diplomats.

[00:11:53] Saikrishna Prakash: That's an executive power left of the President by the vesting clause. You don't have to agree with either of their [00:12:00] particular narrow claims to see the work that the vesting clause is doing in their thinking. They, they think that the Constitution grants executive power. It's a suite of powers related to law, execution, and foreign affairs.

[00:12:12] Saikrishna Prakash: And then there's a bunch of exceptions and restrictions in Article two and elsewhere that. Cuts it back, right? So the president can't start a war 'cause Congress has to declare war power. President can't set foreign terrorists because Congress has the foreign commerce. Power President can't appoint whoever he wants to for an indefinite term because the Senate has to participate giving its consent.

[00:12:32] Saikrishna Prakash: And obviously the same is true with treaties. Early on, they decide the president can't create offices. The Congress has to be the one to do that, create offices and departments. So there's a grant of general power. That's hemmed in by a bunch of restraints. So the president is still very powerful, but it's, you know, obviously not as powerful as the French monarch, right?

[00:12:54] Saikrishna Prakash: In terms, it's not an absolute monarch in any sense of the word, but you can see why people, the anti-Federalists in [00:13:00] particular said, this just looks like the British crown. Except in terms of the duration of the presidency's term and in terms of the title, right? Like they would say over and over again, you know, the only thing this person's missing is a crown, right?

[00:13:15] Saikrishna Prakash: Or the title king, 

[00:13:17] Savannah Eccles Johnston: right? So what you're describing is a very powerful unitary execut. That this is, uh, from the beginning. 

[00:13:25] Saikrishna Prakash: Mm-hmm. 

[00:13:26] Savannah Eccles Johnston: The Constitution has created this powerful executive, and this is an important point to reemphasize. 

[00:13:31] Saikrishna Prakash: Mm-hmm. 

[00:13:32] Savannah Eccles Johnston: Is that later there will be a very different understanding of what our Article two does.

[00:13:35] Saikrishna Prakash: Mm-hmm. 

[00:13:35] Savannah Eccles Johnston: Which basically is just this, because article two is so short and it doesn't include all of the, the list of powers that, that Congress gets, it must be weaker in nature. 

[00:13:45] Saikrishna Prakash: Mm-hmm. Mm-hmm. 

[00:13:46] Savannah Eccles Johnston: Your argument, and this is an argument many other people make as well, is that the vesting clause in Article two is the key to the executive that the executive power shall be vested in.

[00:13:57] Savannah Eccles Johnston: Mm-hmm. Mm-hmm. No, it doesn't list out. [00:14:00] He can exercise these executive powers. Right. The executive power is vested in. That's very different than Article one, right? Where it's all legislative powers herein granted. 

[00:14:07] Saikrishna Prakash: That's right. 

[00:14:08] Savannah Eccles Johnston: This is the, the crux of what makes the original presidency powerful. But later we get a very different understanding that the original constitution created a weak presidency.

[00:14:18] Saikrishna Prakash: Mm-hmm. 

[00:14:18] Savannah Eccles Johnston: And this ties into your concern about a living presidency. Mm-hmm. That it's from concerns of a weak presidency that you get the living presidency. So can you explain to us how did this. Happen. How did we get from a very powerful presidency, an original presidency to a presidency, which you say in your introduction to this book, the Living Presidency, you are alarmed about.

[00:14:40] Saikrishna Prakash: Mm-hmm. 

[00:14:40] Savannah Eccles Johnston: Mm-hmm. What happened? 

[00:14:41] Saikrishna Prakash: So the book aims to describe the modern presidency, but also discuss the influence of the idea of a living constitution on the presidency. And the basic claim is, although the original constitution creates a powerful presidency, it's, it's not meant to. Expand and contract [00:15:00] over time, right?

[00:15:00] Saikrishna Prakash: The, the Constitution creates a set of rules, and unless you amend those rules, the institutions aren't supposed to acquire new powers or lose powers. But in the late 19th and early 20th century, Woodrow Wilson and others talked about how we need to have a living constitution of constitution that changes with the times, and that we shouldn't be bound to some ancient conception of.

[00:15:24] Saikrishna Prakash: The executive branch or the legislative branch, or for that matter, the judicial branch, we, the constitution should be understood to change it. Its meaning should be understood to change over time. And of course, you know what Woodrow Wilson and others were talking about. Came to be a dominant view on the bench in the 1960s and 1950s, right when the Warren Court started, I think, tinkering with the Constitution, but it, you know, it also existed during the New Deal as well.

[00:15:52] Saikrishna Prakash: And what the book describes is Pres embracing this conception of an evolving presidency. Embracing the [00:16:00] idea that practice could change the Constitution, right? There's a famous opinion, uh, Youngstown sheet and tube, and there's an opinion in that case by Justice Frankfurt Duren. Frankfurter says, practice can put a gloss on the Constitution, and he has a bunch of constraints on when practice can put a gloss on the Constitution.

[00:16:19] Saikrishna Prakash: But what he's describing is, well, maybe at one point the Constitution meant a but. If we keep on doing something over and over again, practice, it might mean B in 10 or 20 years. And again, he has a bunch of restrictions in mind as to when that can occur. But in point of fact, if you think about the presidency, the presidency doesn't honor those restrictions.

[00:16:43] Saikrishna Prakash: So presidents have caught into the idea that they can. Acquire new constitutional powers over time by just repeatedly doing something. And we've seen this in the area of war powers where presidents talk about what other presidents have done. Washington and his successors never thought the president could [00:17:00] start a war.

[00:17:01] Saikrishna Prakash: The power to declare war in the 18th century was the power to start a war. So if anybody. The government started a war. They had declared war, 

[00:17:09] Savannah Eccles Johnston: right? 

[00:17:10] Saikrishna Prakash: The English talked about declaring war, not through some document, but by just attacking. Right? They said the strongest declaration of war is from the mouths of cannons.

[00:17:20] Saikrishna Prakash: Well, so obviously if the president starts a war, he has declared it. That would be in contravention of the Constitution, which is signs that power to Congress, right? The imp. It's implicit that if the Congress has the power. Ordinarily the president would not have the power. 

[00:17:33] Savannah Eccles Johnston: Right. 

[00:17:33] Saikrishna Prakash: And so Washington and, and Hamilton and Jefferson, all these folks said that the president can't start a war.

[00:17:39] Saikrishna Prakash: And if you look at early authorizations of the use of force, they were all done through Congress, right? Congress always authorized use of force. Well that in the modern era, that's just no longer true. And the, what President cite to is, we'll look at all the things that presidents have done without congressional authorizations and that.

[00:17:58] Saikrishna Prakash: Proves that we can do it [00:18:00] now. Well, that's a living constitution approach to war powers, right? Hmm. And we see this over and over again. We see it in the context of something as mundane, as delaying effective dates. It used to be the case that occasionally in the last 20 or 30 years, presidents have, uh, signed new taxes into being that Congress passes a tax, the president signs it.

[00:18:21] Saikrishna Prakash: Sometimes those taxes have been retroactive to a couple of months. So the statute says what the effective date is. President has sometimes said, you know, this doesn't seem fair to us. We're gonna not honor that effective date. And for whatever reason, there wasn't a, you know, a, a bruhaha that arose from that.

[00:18:39] Saikrishna Prakash: Well, then comes the, you know, the Affordable Care Act and they have employer mandates. 

[00:18:43] Savannah Eccles Johnston: Hmm. 

[00:18:44] Saikrishna Prakash: And the Obama administration says. Well, the presidency has been doing that for many years, delaying the effective date of statutes, and we're gonna delay the, uh, employer mandate. The difference with the employer mandate is the Affordable Care Act was passed two years [00:19:00] later.

[00:19:00] Saikrishna Prakash: The employment mandate was supposed to take effect. So there's a two year transition built into the statute. They give them another year or two, right? And so it goes beyond any previous transition relief, but it's of a piece because the idea is, well, we now have a transition relief power that we've acquired through practice.

[00:19:17] Saikrishna Prakash: And so this is happening in area after area. If Biden does something, Trump says, I can do it. If Trump does something, Newsom says he can do it. If Newsom does something, Vance says he can do it. So they may have opposed it when they weren't in the White House, but they will all embrace it later on. And the executive branch.

[00:19:36] Saikrishna Prakash: Is the branch that's able to create new facts and new practices on the ground. It's unitary, right? It can just do something. It doesn't have to go through some, you know, bicameralism and presentment and it doesn't have to hear a case. It can just do it. And so it is best positioned to change and transform itself through the alchemy of practice.

[00:19:56] Savannah Eccles Johnston: Right? So once upon a time, the great fear was that the [00:20:00] legislature would suck all power into it like a vortex. 

[00:20:02] Saikrishna Prakash: Mm-hmm. 

[00:20:02] Savannah Eccles Johnston: But in practice, it's the presidency that has actually done that in. Is doing it today. 

[00:20:07] Saikrishna Prakash: There's a lot of truth that, I mean, you can look at Congress and say that Congress has taken authority from the states in terms of its reading of the Commerce Clause, but that happened in the New Deal and we're still, you know, living with that the presidency is the one that's being more aggressive in the modern era.

[00:20:24] Savannah Eccles Johnston: So the natural question here is. Was it necessary? Is it necessary to have a living presidency to live up to the requirements and the difficulties of today, you would take war powers as one example, right? We not every war is declared, sometimes it's just a, a military action that a president conducts.

[00:20:41] Savannah Eccles Johnston: Mm-hmm. Overseas drop a bomb in Libya or something. The original constitution doesn't seem to allow for something like that. Mm-hmm. 

[00:20:48] Savannah Eccles Johnston: So is it necessary, is a living presidency necessary to make the presidency? Workable in 2025, or are you saying, wait a second. The presidency was always powerful and this completely destroys our system.

[00:20:59] Saikrishna Prakash: [00:21:00] Uh, I mean, I do think the presidency was always powerful. I, the way I say it in the book is where the presidency was strong. It's stronger now than it was before, and where it was weak, it's strong. 

[00:21:08] Saikrishna Prakash: So it's only moved to a, a more dominant position. I mean, I think if you start off with the premise that we need to be involved all over the world.

[00:21:17] Saikrishna Prakash: And then you think that Congress is more parochial, then you will of course think that the old system just doesn't work anymore. But it's predicated on this contestable claim that we need to be involved all over the world, and that the president, you know, is the only one who can make that happen. 

[00:21:34] Savannah Eccles Johnston: Right?

[00:21:34] Saikrishna Prakash: I mean, obviously Congress. The Senate in particular approved nato. Right? Right. So it's not as if the Senate or the Congress is incapable of making decisions about overseas commitments. The Congress approved the, the two wars, right, the two wars and the war on terror. But you can assume that the Congress is slower to act and less likely to be involved overseas than the presidency.

[00:21:57] Saikrishna Prakash: Has been in the modern era. And so if, if you assume [00:22:00] that we have to do that, then the presidency is the only institution that can make that happen. But you know, this was, if you may recall, during the Obama administration, he had a immigration bill in mind. And when it didn't happen, they just had this sort of mantra, we can't wait.

[00:22:17] Saikrishna Prakash: And of course, Congress will not always gratify the executive's wishes. If the executives can just say, well, we're just gonna do it anyway, then there's no point in having a Congress. 

[00:22:28] Saikrishna Prakash: And so what people might say about war powers or foreign affairs could be said about domestic policy as well.

[00:22:34] Saikrishna Prakash: In other words, if I think something is important enough and if I don't think Congress will come through, that's an argument for the President to do it. Right. Right. And that's just basically. Eliminating another branch of government. 

[00:22:46] Savannah Eccles Johnston: Right. If Congress won't act, I will. 

[00:22:48] Saikrishna Prakash: Right. 

[00:22:48] Savannah Eccles Johnston: This is a very good answer, I think, by the way.

[00:22:51] Savannah Eccles Johnston: Okay, so then fix it for us. How do we, uh, step away from this cliff? 

[00:22:55] Saikrishna Prakash: I mean, I didn't mention some other things, but the, the rise of presidential [00:23:00] campaigns and promises was not foreseen. 

[00:23:01] Savannah Eccles Johnston: Hmm. 

[00:23:02] Saikrishna Prakash: Most people did not run for the presidency. They certainly didn't make any promises. As late as the mid 19th century, one candidate said, I'm not gonna prostitute myself by making promises.

[00:23:12] Saikrishna Prakash: I think the idea was I should do what's best for the country, not make a bunch of promises to get the office. But then they started making promises and then they started arguing that I have a mandate and the constitution doesn't talk about a mandate. And of course there's. No popular vote for the presidency, right?

[00:23:31] Saikrishna Prakash: The electors vote for the presidency. The original system doesn't contemplate the president saying, I was elected on this platform by the people and therefore I get to implement the platform. But that's just a common. Way of speaking about the presidency today. Every incoming president claims a mandate from the people, even if they lose the popular vote.

[00:23:52] Savannah Eccles Johnston: Right? 

[00:23:53] Saikrishna Prakash: So that's, we have to go back to the system where people don't think of the president as an engine of policy, but really [00:24:00] a law enforcement officer. Right. The, the institution is about law enforcement, not primarily about making new laws. I think. What has to be done in Congress is members of Congress have to think of their institution and their place within it over the long term and stop thinking about what can I get out of this president over the next four years?

[00:24:20] Saikrishna Prakash: Because inevitably that means that when the next president comes in, they, they don't get anything they want and that it's a disaster for them policy wise. You know, Madison talks about the connecting the the man to the interest of the place that's been torn his under by the. Party system, but it doesn't need to be that way.

[00:24:37] Saikrishna Prakash: Right. I mean, members of political parties can still say, I am part of a party, uh, but I'm not gonna. Just let the president do whatever he or she wants because ultimately that interrogates from my authority. I'm now part of an institution that no longer has any real authority. I mean the, it's not clear what Authority Congress has that's exclusive.

[00:24:57] Saikrishna Prakash: If the president is willing to misread statutes over, [00:25:00] read statutes, sometimes they try to. Read a statute in an expansive way to get what they want. Other times they try to read it in a restrictive way to avoid some restriction. Well, ultimately what you're doing is just making the statute irrelevant.

[00:25:13] Saikrishna Prakash: Right? And then what's the point of congress if the president can always find what he wants in the existing code through legal trickery of various sorts. We're coming to that point, right? Like other than the budget. Everything is being done administratively. 

[00:25:29] Savannah Eccles Johnston: Mm-hmm. 

[00:25:30] Saikrishna Prakash: Right. The president's just reinterpreting statutes, reinterpreting the Constitution, and it's a bipartisan problem.

[00:25:35] Saikrishna Prakash: It's not particular to Trump or, or Biden or you know, Obama or Bush. This has been going on for decades and Congress. Risk being a debating society and not a, a true legislature if it doesn't reassert itself. So it, it takes a Congress to reassert itself. It takes the public who understands that letting a president get away with usurping.

[00:25:58] Saikrishna Prakash: Uh, another branch's [00:26:00] authority today might be in their short term interest, but isn't healthy for the country. 

[00:26:03] Savannah Eccles Johnston: Absolutely institutional thinking, fixing how the public perceives the presidency. There also seems to be a third component here, which is the people learning to, uh, reward and punish members of Congress who do not think institutionally.

[00:26:18] Savannah Eccles Johnston: Mm-hmm. Who instead make trades for policy wins instead of correct processes. 

[00:26:24] Savannah Eccles Johnston: So, uh, these three together. Seem to be the only possible solution to preventing a living presidency from spiraling into a government of only the president. 

[00:26:37] Savannah Eccles Johnston: No one left. Well, I, uh, want to encourage all of our readers, our listeners, I should say, to go and read Professor Prakash's, uh, book the Living Presidency, which is ex excellent, and then to pre-order.

[00:26:50] Savannah Eccles Johnston: His book on Pardons, which is coming out in January, you said. 

[00:26:54] Saikrishna Prakash: Mm-hmm. 

[00:26:55] Savannah Eccles Johnston: Because you have important things to say and we need to be listening to you. 

[00:26:58] Saikrishna Prakash: Oh, that's so sweet of you. I, I want to [00:27:00] second that encouragement. 

[00:27:03] Savannah Eccles Johnston: Thank you. 

[00:27:05] Outro: The Constitution is more than Parchman under Glass at the National Archives. It's a blueprint for American self-government that shapes every part of our civic life from the rights we cherish to the laws we live under.

[00:27:18] Outro: We explore the ongoing battle over the meaning and relevance of America's founding document. This constitution will equip you to engage the most pressing political questions of our time. Join us every two weeks as we hash out constitutional questions together. This podcast is ordained and established by the Center for Constitutional Studies at Utah Valley University, the home of Utah's civic thought and leadership initiative.