Can We Agree: Has Trump Changed Presidency Forever?

SPEAKER_1 (0:02)

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Michael Smerconish (0:25)

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John Yoo (0:27)

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SPEAKER_5 (1:00)

Welcome to The Smerconish Podcast for Independent Minds.

Michael Smerconish (1:05)

This is Can We Agree, the program that asks whether two brilliant minds from opposite corners of an argument can find any common ground on the questions that matter most to America today.

Donald Trump's second term has triggered a fierce national debate about the limits of presidential authority. He's issued more executive orders than any modern president, dismantled agencies created by Congress, defied court rulings and claimed powers that critics call unconstitutional and supporters call long overdue. He has literally changed the landscape of Washington, DC.

But here's the question that cuts deeper than Trump himself and will outlast his presidency. Did Donald Trump actually change the office or did he simply use powers that were always there, powers that his predecessors possessed but chose for reasons of tradition, temperament, or political caution never to exercise? John Yoo from UC Berkeley School of Law is one of America's foremost constitutional scholars and a leading architect of expansive executive power theory. Yoo argues that Trump has not rewritten the rules. He simply read them more boldly than those who came before him.

William Galston, a weekly columnist for The Wall Street Journal, is a senior fellow at the Brookings Institution and one of the country's most respected voices on democratic governance. Galston argues that whatever the legal theory, the practical consequences are the same. A presidency that has been permanently and dangerously transformed and whose powers the next occupant of the Oval Office, Democrat or Republican, will inherit in full. Trump and presidential power, revolution or revelation? Let's see where they agree. First of all, thank you both for being here. I've got the only, I would say progressive, you would say what? Liberal at the Wall Street Journal and the only conservative from Berkeley.

John Yoo (2:52)

I'm always happy to switch sides, Bill, if you want to trade places.

Kayleigh (2:55)

We're going to get to that.

Michael Smerconish (2:56)

I'm actually going to ask you to do that in just a couple of minutes time. John, did Donald Trump invent presidential power or just use the authority that was already there?

John Yoo (3:06)

Michael, first, thanks a lot for having us. I hope Bill and I can have some agreement.

Kayleigh (3:10)

Me too.

John Yoo (3:11)

We can launch this great enterprise on its maiden voyage. I think Bill and I would agree that our Constitution, our system is different than a parliamentary democracy, where the head of Congress essentially is also the head of the executive branch. Our Constitution creates an independently elected president, not elected with Congress, not chosen by Congress. Different term in office, different selection, different removal, and different powers. Our Constitution does vest the president with some independent powers. Where I think we'll disagree is, what are those powers and how far do they go?

I think, Michael, as you suggested in your introduction, I think that the reason the presidency exists is so that there is a different branch of government that does have independent separate powers of Congress. If I were to characterize them to the founders and political theorists who influence them, it is to have a branch of government always in existence, that can react at a stroke immediately with energy to crises, unforeseen circumstances, ultimately wars.

Alexander Hamilton says, the definition of good government is energy in the executive. That's why we have one person who's the president, someone who has independent powers, and I'll close here, the two that they thought were most important was executing the laws and protecting the community from foreign threats and instability and crises. I think that's what might separate Bill and I, how far do those powers and those responsibilities go? In today's world, I think Donald Trump, I think he's protecting us against enemies like Venezuela, Iran, Russia, China. I think he's trying to protect us from domestic instability, by resistance to federal law, immigration laws, hate the policies, love the policies, it is still federal law that's being enforced, states don't have a right to stop it. And I think he's trying to whittle down this vast administrative state that a New Deal Congress created, that's kind of outside the control of anybody, that the people have no contact with, no relationship, and restore it to political control.