Jack Goldsmith and Sai Prakash on Slaughter and Cook

A very interesting video and transcript. Sai's summary from the end (though of course it's just a summary, and the analysis is elsewhere in the transcript and in Sai's articles on the subject):

I think the founders wanted to create a strong executive—not all-powerful, but strong.

And they wanted someone in charge of law execution. I think that's the principal function of the executive, not rulemaking and not acting as a substitute court.

And they had examples of plural executives in the states, and they eschewed them.

So I think the Court got it right….

I … think the country is better off having a president in charge of law execution rather than having a bunch of people independently doing it.

Having said that, we do have states where we have plural executives, and it's not as if people think they're dysfunctional.

But I think there are advantages to executive unity, particularly when it comes to law execution.

Comments

[Murcushio]

I think the founders wanted to create a strong executive—not all-powerful, but strong.

Even if you care what they thought, which you largely shouldn't, this is a dubious proposition. Their writings on the subject indicate strong suspicion of executive power, and what they actually wrote down establishes an executive with a tiny handful of inherent powers and everything else revolving around doing the will of Congress.

It seems to me that an awful lot of people, at least when the President is someone they like, desire that Congress' only involvement be that they provide the executive with pots of money and vague operating instructions and that beyond that they have very little, if any, power. Indeed, impoundment, that most anti-Constitutional of ideas, has been making a comeback. The idea seems to be to flense Congress of any ability to control or bind the executive branch beyond vandalism (zeroing out funds, imploding entire departments, etc.) or impeachment. The idea seems to be that Congress will never do that, leaving the presidency in the catbird seat.

The next push in the courts will be that the civil service protections are unconstitutional.

[Rossami]

On the contrary, they'd tried that under the Articles of Confederation. The Constitutional Convention was convened in large part to address those failings. There was considerable debate among the Founders but ultimately, Madison's view won out and it is very much what the authors described above.

That said, I take Congress to task for delegating far too much to the executive branch, for creating the abomination that is "administrative agencies" with the powers of all three branches of government and, most egregiously, for vastly expanding the scope of government far beyond the Constitutional intent. Bluntly put, we shouldn't have to be worrying about these potential (or actual) abuses of executive power because government shouldn't be doing so much in the first place. A weaker government would leave less to fight over. And that growth was entirely under the legislature's control.

[Murcushio]

On the contrary, they'd tried that under the Articles of Confederation.

Tried... what, now? I don't take your meaning.

There was considerable debate among the Founders but ultimately, Madison's view won out and it is very much what the authors described above.

No, it isn't, and I know that because that's not what they wrote down, either in the Constitution or in their writings ON the Constitution.

for vastly expanding the scope of government far beyond the Constitutional intent.

Congress, of course, has not done this.

because government shouldn't be doing so much in the first place.

On the contrary; the government does far too little and should do much more.

[neurodoc]

Slaughter makes me feel as though I am contemplating the approach of a comet on a collision course with our planet.

[Krayt]

Ooh. Maybe I shouldn't be praying so hard for an asteroid to smear this worthless planet.

[QuantumBoxCat]

I'm still trying to figure out how Congress had the power to provide a process for presidential removal in 1789, but then apparently lost that power.

[TwelveInchPianist]

"Slaughter and Cook"

A few tips and tricks, eh?

Finally a little bit of practical info.