Interview #2 – Saikrishna Prakash

INTERVIEW #2 – PROF. SAIKRISHNA PRAKASH

Professor Prakash's scholarship focuses on separation of powers, particularly executive powers. He teaches Constitutional Law, Foreign Relations Law and Presidential Powers at the University of Virginia Law School.

Prakash majored in economics and political science at Stanford University. At Yale Law School, he served as senior editor of the Yale Law Journal and received the John M. Olin Fellowship in Law, Economics and Public Policy. After law school, he clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit and for Justice Clarence Thomas of the U.S. Supreme Court.

Among Prakash's articles are "50 States, 50 Attorneys General and 50 Approaches to the Duty to Defend," published in the Yale Law Journal; "The Imbecilic Executive," published in the Virginia Law Review; and "The Sweeping Domestic War Powers of Congress," published in the Michigan Law Review. He is the author of Imperial from the Beginning: The Constitution of the Original Executive.

The following has been edited and condensed for clarity. The views shared here do not reflect nor do they suggest the views of the Virginia Review of Politics.

TRANSCRIPT OF INTERVIEW

Virginia Review of Politics: Could we start by having you give us an overview of your personal background with law? What drew you to law over other, related fields?

Saikrishna Prakash: I was interested in political science in high school and I liked to follow politics. I’d always thought that I might go to law school, and I went there, and I really enjoyed it. I enjoyed it so much that I thought I’d study it for the rest of my life. I did practice for a while, and I clerked for a couple of years, but I migrated my way back to the academy and into studying law.

VROP: Is there something about the University that you preferred to private practice?

SP: I like the freedom that one has as a professor. The freedom to choose one subject that most interests yourself, rather than working for a client.

VROP: Could you give us an overview about some of your work and what interests you the most about the law, specifically?

SP: Most of my work has been on the separation of powers. A few things on rights, a few things on federalism. And then within the separation of powers, most of my work has been on Presidential power. I think most of that is tied back to my initial interest in politics.

VROP: How has the law and the Supreme Court more specifically changed over the past twenty years? Do you think that there have been significant changes, or are they all part of one big, historical arc?

SP: Well there have been changes, even if they’ve been part of an arc. The Court is more willing to enforce limitations on Congress’s subject matter powers; the Commerce Clause isn’t seen as a font of total legislative power. There are limits to what Congress can do under the Commerce Clause, as most recently seen in the health care case from several years ago. I think there have been rather interesting innovations with respect to sexual freedoms and with respect to marriage. I’m thinking of Lawrence v. Texas and the Obergefell case from several years ago that didn’t seem in the cards when I was in law school, or at least, they weren’t what people were talking about. I suspect that if you examine cases over a twenty-year period, you’re going to find innovations in other areas too. I don’t think that the mere fact of innovation is itself new, I just think that what’s being done is potentially new.

VROP: Let’s talk about some of your work. In your book, Imperial from the Beginning, you describe the Presidency as possessing a great deal of power even before the advent of the modern “imperial” Presidency. Could you briefly describe the types of evidence that led you to this conclusion?

SP: Sure. The book is a soup to nuts description of the Presidency. 13 chapters, each one focusing on a particular topic. Legislative powers of the President, foreign affairs powers, the war powers, the President’s relationship with the Congress, with the judiciary, with the states, emergency powers, executive privileges. The reason why I think the President was monarchical from the beginning is in part due to the vast accumulation of power vested in the President’s hands, but also because many people at the time said as much. Many people at the time looked at the Presidency and said “you’ve got a king in all but name”. This included foreign monarchs, it included Jefferson, it included John Adams, and Anti-Federalists of course.

They all said “this person is really powerful” and some people were criticizing the proposed Constitution, other people were praising it, and other people were just making observations. It’s the combination of vast amounts of power concentrated in one person’s hands, coupled with the acknowledgement that the Presidency was monarchical, led me to the conclusion that the President has always been monarchical. I say “imperial” because I’m playing off of Arthur Schlesinger’s book; you could say “monarchical from the beginning”.

I think we tend to forget this because we either think of monarchy as an absolute monarchy, or we think of monarchy as a hereditary monarchy. But in the 18th century and today as well, there were limited monarchs, and there were also elected monarchs. And so, elections aren’t inconsistent with monarchy, and a limited executive isn’t inconsistent with monarchy. Once one understands that, one can see. I mean, if you compare the President today with the Queen of England or many monarchs in Europe, the President’s far more powerful. He doesn’t wear a crown or have a scepter or wear robes, but in terms of just sheer power, he has far more, far more authority than many of these monarchs in Europe. We tend not to think of it in those terms, right, we tend to say “oh well, he’s not a monarch because he doesn’t have a crown or a robe or a scepter”, but of course anybody with money can buy a crown or a robe or a scepter. They’re not the necessary incidents of monarchy. I think the powers attached to the office tell us more about what’s monarchical and what’s not than the pomp and circumstance.

VROP: Considering the monarchical history of the Presidency, is there something about the office that has changed significantly since the ratification of the Constitution?

SP: The President was a limited elective monarch, in the language of the times. By limited, I mean that he wasn’t an absolute monarch; he could not declare war, appropriate funds, dispense with statutes, he did not have an emergency power. However, he had lots of other authority. Over time, I think the President has acquired parts of Congressional authority from Congress, like the war power, I think, has at least partially been transmitted to the executive from Congress. Not in some sort of necessarily open process, but through the accretion of power that’s come about through various presidential acts. So I think the President’s a much more powerful military figure in war than he was at the founding.

The President’s also more powerful for other reasons not having to do with the Constitution. The creation of parties and the recognition that the President is the most powerful member of his party, gives the President additional sway over other institutions in our government. It makes him a leader of Congress in a way that was not true at the Founding. When you have a party system and the President’s the head of one party, he has a greater ability to sway Congress to his will than would have been true in the past. Whereas I think the Founders thought the legislature was going to be this independent branch, the Congress I think, feels that it’s more dependent on the President than the Constitution contemplated, by virtue of the fact that a good portion of the members of Congress look to the President for legislative leadership, not just executive leadership.

And then, the size of the federal government gives the President much more scope for influencing the nation than he had in the past. The more that Congress chooses to regulate, the more that’s given to the executive branch by Congress, the more sway the President has over the entire nation. So the regulatory state, as a byproduct, makes the President more powerful than a point in time in our nation’s history when Congress wasn’t as interested in regulating the economy.

VROP: I wanted to go back to what you said about the President being a figurehead for the legislative branch. Is there a specific point in history where you think that this process first began to happen, where the President stopped being seen as independent from the legislature and rather as a rallying point for the parties that controlled Congress?

SP: I can’t say whether there was some inflection point, but I think that Jefferson, while President, was intimately involved with guiding Congress behind the scenes in a way that isn’t so obvious if you just paid attention to the public letters of Jefferson. I think he was more deeply involved with Congress than the documents might suggest. I think that, for a long time, the authority or the sway that the President had would wax or wane depending on personalities of the President and the personalities of the people running the House or the Senate. But I can’t pinpoint a particular time where there was an exponential increase in Presidential influence.

VROP: Moving from more abstract examples of Presidents to the President that we currently have on hand, what are your thoughts on President Trump’s current relationship with the judiciary? Especially with regards to his public statements about judges, do you think that his statements threaten the separation of powers in any significant way, or do you think that this is more of a relatively normal historical phenomenon that has been blown out of proportion by the media?

SP: I think criticism of the Court has always existed. His criticisms are magnified because criticisms that would have been expressed in a letter are now expressed in tweets or in speeches. But I don’t think that criticism of courts in general is a threat to the separation of powers. Just as when Congress criticizes the President, that’s not a threat to the separation of powers. I think the tone is perhaps a little bit different, and the argumentation – or the lack thereof – is different, but the bare fact of there being criticism by one branch of another is not, is nothing new. There’s nothing new under the sun there. President Obama, of course, used the State of the Union address to criticize the Supreme Court and its decision in Citizens United. There were some people that blanched at the idea of criticizing the Court during the State of the Union speech when the Court was sitting right in front of him, but had he made that speech somewhere else, no one would have batted an eye.

I think people are prone to think of the judiciary as in need of support, and if you support the particular things that the Court is doing, then you’re going to apt to be unhappy with criticism. But of course, if you think that some of the things that the Court is doing is wrong, then you’re not going to feel unhappy with a President criticizing it. I think that there’s going to be a somewhat antagonistic relationship between the President and the courts for the rest of his four years, in part because he does not shy away from giving criticism or fighting those who resist him, but also because I think that there are members of the Court who view him as some sort of aberration, and they view themselves as a check on him. I think that means, more concretely, that there will be judges who do not give him the benefit of the doubt that they would have given other Presidents.

VROP: So do you think that this kind of antagonism is something that might just be because it is this specific President that is doing this? In other words, do you think that there is going to be some kind of “return to normalcy” after this President leaves?

SP: Well, the antagonism has always been there. It’s just been hidden behind closed doors. Jefferson hated Marshall, hated the Court that he was running. Roosevelt was very unhappy with the Supreme Court for a while, Truman was very unhappy with Youngstown, I don’t know what Bush thought of the War on Terror cases, but there’s always been unhappiness. I just think that the executive branch has always tended to try to keep the criticism under wraps. I don’t expect that judges will go around saying “we think the President is unworthy of our respect”, but I sense that part of what’s going on with Trump is the feeling that the judiciary needs to check him, and I think there’s an unwillingness to give him the benefit the doubt that’s been given other Presidents. You can justify or un-justify that.

VROP: Pivoting away from that topic, your article on “50 States, 50 Attorneys General, 50 Approaches to the Duty to Defend” foresees an increasingly prominent role for state AGs in standing up for or against legislation. Do you think that your prediction there is holding true, and if so, what are your thoughts on the phenomenon?

SP: I really haven’t revisited the question since we wrote the piece a couple of years ago, but given the trend that we saw, I would expect it to continue. Interest groups expect that attorney generals will at least consider choosing not to defend statutes that they think are unconstitutional. In that context, once the cat’s out of the bag, once people recognize that the attorney general doesn’t need to defend every statute, then the question of whether or not to defend is put on the table, and because attorney generals are politicians, naturally the question of politics comes into play. So if you can curry favor with the base of your party and you actually think that the statute maybe is or actually is unconstitutional, you’re not going to defend the statute.

VROP: Right, right. Is the position of the attorney general as a political figure something that’s always been the case, or have they just more recently discovered their political role? I know that a lot of politicians tend to think of state attorney generals as springboards to higher, more national offices. Is that something that has historical precedent, or is that something new?

SP: Well, the attorney general position is often shortened to AG, and people have often said that AG is short for “aspiring governor”. So I think that attorney generals have always been politicians, but politicians act within a certain context. If they know that they’re expected to defend all statutes, then that’s what they’ll do. However, once they’re told that they don’t have to defend all statutes, they’re going to react to that environment and act accordingly. It’s partly a matter of statute, but it’s also partly a matter of convention. Once it becomes common for attorney generals not to defend statutes, they’ll be more willing to look at the option and more willing to exercise it. In the past, that was less true, so it didn’t occur to them that they should be doing that.

VROP: Finally, what do you think is the most important issue facing the Presidency today, or at least one that you would like to highlight that you don’t think enough people are aware of?

SP: Most important issue confronting the Presidency… It’s hard to pinpoint any one issue, but the issue that comes to mind in light of recent events is the President’s claimed ability to use military force against other nation-states without prior Congressional authorization. At the Founding, most people didn’t believe that the President had this authority, but through repeated practice, Presidents have claimed such authority in modern times. Some members of Congress resist this, but other members embrace it. If you want there to be more uses of force, you don’t want to have Congress have a monopoly on questions of use of force. That’s why someone like Senator McCain is constantly saying “oh, the President can do this as Commander in Chief”. Not because he thinks he’s going to be commander in chief, but it makes it more likely that we’re going to use force, and he thinks that using force sometimes is appropriate and necessary. If you’re like Rand Paul and you think we’re fighting too many wars, you will be drawn to the view that Congress has to authorize the use of military force first.

What this means is that if you have a Congress that consists of some people who want more use of force and some people who want less, that Congress is going to find it harder to coalesce around a position that as a constitutional matter, the President can’t authorize the use of force overseas against nation-states without first going to Congress. So Congress is internally split on the constitutional question. The President, you know, isn’t, so that gives the President an advantage.

VROP: So given that disparity, do you think that there is any way that Congress can ever rein in the President’s war powers in the future, or do you think that that sounds politically unfeasible?

SP: It’s not unfeasible! Everything seems unfeasible until things realign and things before feasible. I think that if the President were to start a war and it turned out to disastrous, and that Congress never approved, it’s always possible that members of Congress reacting to the concerns of their constituents could say “we want to make it crystal clear that the President can’t take these acts”. The War Powers Resolution is partly designed to do that, and you might think that it’s had some success. It hasn’t completely stopped Presidents from using force without Congressional authorization, but on the other hand, you might think that the uses of force are more modest and more infrequent than they otherwise may have been absent the War Powers Resolution. The War Powers Resolution’s failure to achieve an 100% success rate doesn’t indicate or signal that it’s totally been ineffectual.