Cato Institute Looking to Hire an Executive Power Scholar

An opportunity to work at the nation's leading libertarian think tank.

Cato Institute

The Cato Institute - where I am the Simon Chair in Constitutional Studies (in addition to my primary position at George Mason University) - is looking to hire a full-time executive power scholar. Here is a description of the position:

The Cato Institute seeks a full-time Executive Power Scholar to: 1) conduct original research on the rise, uses, and abuses of executive authority in the United States; and 2) develop reform ideas and proposals in order to reduce presidential and executive branch power back to its proper constitutional limits, in order to restore the separation of powers envisioned by the founders. This position will advance Cato's mission by producing rigorous scholarship that analyzes constitutional structure, unilateral presidential action, administrative growth, and the separation of powers from a libertarian perspective, emphasizing limited government, individual liberty, and the rule of law.

The projected salary range for this role is $110,000 – $150,000 per year. Compensation is based on the successful candidate's experience and skills.

More information - including instructions on how to apply - at the link above. Please do not send your applications to me; use the link.

Comments

[Kleppe]

Libertarianism is fake and gay. People who can organize effectively to acquire power will always triumph over people who "just want to be left alone."

[Longtobefree]

Yep.
The real problem is those who prefer individual freedom cannot force people to be free; those who prefer state control over our lives can and do use force.

[Brett Bellmore]

A libertarian society is like a yardstick balancing on it's end; At best it's only metastable. Authoritarian societies are more like yardsticks lying on their side, stable.

But there actually was a time when the US was close enough to libertarian you might have hoped to get that yardstick balanced. The problem is that moment passed decades ago, and the libertarian project is now impossible in the US.

Really, serious libertarians should be into things like seasteading, or soon, space colonies. Start out a society with people who already want to be free, don't try to transform a society of willing slaves and aggressive masters into a free society.

[SRG2]

Professors from the South Texas College of Law BBQ and Grill need not apply.

[Martinned2]

Why not? Seems like a perfect job for Josh, now that he just finished writing the Heritage version of the constitution.

[Longtobefree]

This answers all my questions about CATO.

[non-native speaker]

"envisioned by the founders"

Why not developing reform ideas and proposals that _improve_ the founders' vision?

[Brett Bellmore]

While I wouldn't argue that's impossible, you have to reach a place before you can venture past it.

[Jack Jordan]

non-native, that actually is what the founders envisioned. That's even what they actually provided for in our Constitution. That's the whole point of the Ninth Amendment. It's also implicit in much of the other vague or indefinite language in the Constitution, e.g., Article I empowering (and requiring) Congress to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [of Congress], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" (including all executive and judicial officers).

[Glaucomatose]

It's very important that conservative legal scholars spend the next three years very quietly doing background research into executive power, so they can suddenly and loudly start talking about how the Constitution demands a weak executive and all real power should be at the congressional and local levels starting in 2029.

[Martinned2]

What do you think is going to happen in 2029?

[Roger S]

The Cato Institute has too much money.

[David Nieporent]

It's very important that conservative legal scholars spend the next three years very quietly doing background research into executive power, so they can suddenly and loudly start talking about how the Constitution demands a weak executive and all real power should be at the congressional and local levels starting in 2029.

You know that Cato isn't conservative, right? Your comment is valid when discussing, say, Prof. Blackman, but not Cato.

[Jack Jordan]

The Cato Institute seems to really need an "executive power" scholar. Cato's amicus brief in Trump v. Slaughter included two insightful falsehoods. Most fundamentally, it misrepresented that “[t]he Framers divided all power into three categories: legislative, executive, and judicial.” That falsehood was asserted to support the more particular falsehood that “the Framers created a ‘vigorous executive’ by vesting all the executive power ‘in a single magistrate.’ ”

Much of the text and structure of our Constitution emphatically divided power, first and foremost, between the sovereign people and all our public servants. See, e.g., the first sentence of our Constitution and the first sentences of each of Articles I, II, and III, and most of Article VI and all of Article VII.

The Cato Institute indicated that for parts of its second falsehood, above, it quoted Hamilton in Federalist 69 and 70. But the Cato Institute egregiously and obviously misrepresented not only what Hamilton said, but also (and more importantly) what our Constitution says.

Neither Hamilton in Federalist 69 or 70 nor our Constitution said anything at all about vesting all executive power in the President. In fact, Hamilton wrote Federalist 69 and 70 to prove to people (who did not want, or were reluctant, to ratify our Constitution) why they should ratify our Constitution, and he did so by emphasizing how our Constitution emphatically deprived the President of some powers traditionally seen as executive and it emphatically restrained the President’s exercise of other ostensibly executive powers (including especially (and especially obviously) the power to appoint officers).

Hamilton clearly and specifically emphasized exactly the opposite of the Cato Institute’s assertion about vesting all executive power in the President. In Federalist 70, Hamilton emphasized that the Framers of our Constitution, the people who ratified our Constitution, and the plain text of our Constitution did exactly the opposite of the Cato Institute’s assertion, specifically regarding executive power and even more specifically regarding the power to appoint people to particular offices.

Federalist 70 expressly and specifically emphasized that the “unity” of any given power “may be destroyed in two ways: either by vesting the power in two or more [people] of equal dignity and authority; or by vesting it ostensibly in one [person], subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors.” Hamilton emphasized that “[b]oth these methods of destroying the unity of the Executive have their partisans” in the U.S., and of the second method, we can “find examples in the constitutions of several of the [original 13] States.” For example, Hamilton emphasized that his home state of “New York,” had a “council” only for the particular “purpose of appointing [people] to offices.”

Our Constitution also commonly employed the second method “of destroying the unity of the Executive,” as Hamilton already had emphasized in Federalist 69, including specifically and expressly regarding the power to appoint officers.

Supporters of the so-called theory of the mythical Unitary Executive are some of the most extremist and most dangerous fanatics threatening our Constitution and our nation today. Their abuse of the word “all” highlights their extremism and highlights their abuses of their so-called constitutional interpretation. They seek to facilitate the current President’s dangerous usurpation of powers that were not granted to any President by our Constitution.

[David Nieporent]

Wow, is that a bad misreading of Federalist 70 on your part.

[Jack Jordan]

Show us, David, if you can. But I won't waste time waiting for more of your insipid petulance.

Our Constitution clearly (and commonly) employed the second method “of destroying the unity of the Executive” in many respects, as Hamilton already had emphasized in Federalist 69. Directly refuting the assertions of fanatics of the so-called theory of the "unitary executive" about “all executive power,” Hamilton even began Federalist 69 by immediately emphasizing that “[t]he first thing which strikes our attention is, that the executive authority, with [a] few exceptions” is “vested in a single magistrate.” Hamilton began Federalist 69 with immediate and striking emphasis on “the first thing” that “strikes our attention” about “the executive authority” vested in the President by our Constitution, i.e., that multiple very important “exceptions” prove that not all executive power was “vested in a single magistrate.” Hamilton devoted the remainder of Federalist 69 to highlighting many striking “exceptions” in our Constitution to the so-called theory that all executive power was “vested in a single magistrate.”

Clearly and emphatically, our Constitution destroyed the unity of power regarding the executive power to make treaties or appoint officers. Article II conspicuously emphasized that the President had no power “to make Treaties” and very limited power to “appoint” many “Officers of the United States” without the “Consent of the Senate.” Thus, as Hamilton put it in Federalist 70, regarding treaties and many appointments, the Senate serves as “a council, whose concurrence is made constitutionally necessary to the operations of the ostensible Executive.”

Federalist 70 also emphasized the reason that the people who wrote and the people who ratified our Constitution expressly “declared in favor of a single Executive and a numerous legislature” sharing the power to exercise certain powers that ostensibly were executive. They “considered the [legislature] as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.” “In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of the government [the legislature], though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority” (of legislators or of the People, themselves).

[Jack Jordan]

David, if you need more help with the plain meaning of the plain text of our Constitution and Federalist Nos. 69 and 70, then please read Federalist No. 77.

Hamilton began Federalist No. 77 by emphasizing, in perfectly clear and compelling language, the meaning of our Constitution’s express prohibition on the President’s power “to make Treaties” or “appoint” many “Officers of the United States” without “the Advice and Consent of the Senate:”

"one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of [the Senate] would be necessary to displace as well as to appoint. A change of the Chief Magistrate [President], therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body [the Senate] which, from the greater permanency of its own composition [with six-year terms of office], will in all probability be less subject to inconstancy than any other member of the government."

Hamilton’s decision to address this issue during the ratification debates (and to use this very issue to persuade people to ratify our Constitution) is proof that people who ratified the original Constitution and the initial amendments thereto necessarily thought (and thought that our Constitution required) that the “consent” of the Senate “would be necessary to displace as well as to appoint.”

Our Constitution expressly and emphatically vested in Congress the power (and imposed on Congress the duty) to “make all Laws” that are “necessary and proper for carrying into Execution” absolutely “all” the “Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” That text of our Constitution and Hamilton’s assertions, above, are proof that our Constitution clearly and specifically permitted Congress to enact legislation restricting the President’s power to unilaterally remove any person from any office, and especially any person who had been appointed jointly by the President and the Senate, and even more especially any person who had been appointed jointly by the President and the Senate pursuant to federal law made in pursuance of our Constitution.

[Jack Jordan]

David, you and The Cato Institute might also want to think a little more about some things Justice Scalia emphasized in multiple opinions.

In 2015, Justices Scalia, Thomas and Alito issued a dissenting opinion in King v. Burwell to emphasize that SCOTUS justices sometime usurp powers not granted to them by the People in our Constitution:

“More importantly, the Court forgets” (justices pretend to have the power to ignore) the crucial principle that is the foundation of our entire Constitution, i.e., “that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers,” much less the will of executive or judicial officers who do not even try to ascertain the actual meaning of the terms of our laws. The dissenting justices quoted a prior SCOTUS decision to emphasize that “this Court ‘has no roving license . . . to disregard clear language” used by the People in our Constitution or used by our representatives in Congress in federal laws enacted in pursuance of our Constitution.

In 1988, Justice Scalia issued a more powerful and insightful dissenting opinion in Morrison v. Olson for the purpose of powerfully emphasizing profoundly important and highly relevant principles. Scalia's opinion included everything below except my final paragraph:

It is the proud boast of our democracy that we have “a government of laws and not of men.” Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:

“In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” The Federalist No. 47 [ ]. Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.

The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. Article I, § 1, provides that “[a]ll legislative Powers herein granted shall be vested in a Congress [ ].” Article III, § 1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” And [ ] Art. II, § 1, cl. 1, provides that “[t]he executive Power shall be vested in a President of the United States of America.”

But just as the mere words of a Bill of Rights are not self-effectuating, the Framers recognized “[t]he insufficiency of a mere parchment delineation of the boundaries” to achieve the separation of powers. Federalist No. 73, p. 442 (A. Hamilton). “[T]he great security,” wrote Madison, “against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack.” Federalist No. 51, pp. 321-322. Madison continued [by emphasizing the following crucial and dispositive truth about our Constitution and about how the People used Articles I and II to deny or limit power that ostensibly was executive]:

“But it is not [even] possible to give to each department an equal power[. Moreover, i]n republican government, the legislative authority necessarily predominates.”

It is self-evident that the supremacy of our Constitution (as the paramount part of "the supreme Law of the Land") over all public servants, and the power vested in Congress to create subordinate parts of "the supreme Law of the Land," i.e., "Laws" that were "made in Pursuance" of our Constitution, i.e., “all Laws” that are “necessary and proper for carrying into Execution” all "Powers" of Congress "and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” (including all executive or judicial officers) is much of what it means to have “a government of laws and not of men.”