Louis Fisher, a national leader in the scholarship of separation of powers, will present "Presidential Power: Legitimate and Fabricated Sources," a free public University Forum Lecture, on Sept. 19 at 7:30 p.m. in the UNLV Student Union. Fisher is scholar-in-residence at the Constitution Project and emeritus senior specialist in Constitution law for the Congressional Research Service.
The U.S. Constitution established a mutually supporting — and sometimes antagonistic — tripartite system, with the judicial, congressional and executive branches of the federal government each serving as a check on the others. Since the beginning of the Republic, there have been challenges and changes to the system.
We asked UNLV’s Constitution Day Public Lectureship committee members — Thomas McAffee, a William S. Boyd Professor of Law; David Tanenhaus, the James E. Rogers Professor of History and Law; and Rebecca Gill, associate professor of political science at UNLV — to put this this federal holiday in context for us and tell us why they invited Louis Fisher to campus this year.
What is Constitution Day?
Tanenhaus: In 2004, Congress established “Constitution Day and Citizenship Day,” which commemorates the signing of the U.S. Constitution on Sept. 17, 1787. Since then, federal agencies and public educational institutions have annually hosted programs that celebrate the Constitution and U.S. citizenship.
UNLV established the Constitution Day Public Lectureship to bring internationally renowned scholars, such as Louis Fisher, who has been described as a national treasure, to the university to deliver public lectures and engage our community about our constitutional heritage and continuing civic responsibilities.
Why is Constitution Day relevant to public discussion and debate today?
McAffee: The struggle over separation of powers will never go away, and the polarization of our politics has just strengthened its hand. … When our politics are polarized, it is almost inevitable to have the branches conflict. Even for those of us who are sympathetic to the ends pursued by the White House, there is rejoicing that there is a real prospect of checks and balances on executive power being implemented.
Gill: Our government's system of separated powers delineates the boundaries of authority among the branches of government. When paired with our constitutional system of checks and balances, the separation of powers requires a good deal of collaboration among the branches of government. Although inter-branch gridlock has long been a problem, it is particularly acute now. A recent example of this is the Deferred Action for Childhood Arrivals (DACA) plan and its various expansions, which attempted to shift immigration policy in the absence of congressional action on the subject.
The courts have the task of interpreting which powers are allotted to which branch. In the case of DACA, the courts have let the original plan survive as an appropriate use of presidential power, but the expansions are on hold in the wake of the Court's deadlock in this year's Texas v. U.S. decision. As this example illustrates, navigating the separation of powers is an increasingly important and difficult part of advancing policy goals in today's polarized and gridlocked political environment.
The subject of limitations on the power of the president has, of course, been debated quite vigorously in past years and decades. Today Congress seems to have largely ceded the power to make war to the Presidency. Is that a good idea? Is that a new, permanent fixture of our federal government?
Gill: Dr. Fisher has certainly argued that the judicial branch has ceded its power to check presidential war powers. He views this as a very troubling development. I don't know that this is a permanent state of affairs, although some characteristics of the modern world might make it more difficult for Congress to reassert this authority. The rise of threatening non-state actors complicates the idea of Congress "declaring" war, since we have generally assumed that such declarations would be against other nation-states. Advances in military technology have also generated many shades of gray between "war" and "peace." Language about "hostilities" or "overseas contingency operations" illustrates this.
McAffee: I worked on a war powers book as a research assistant in law school. It was written and published in the wake of Vietnam and reflected a new determination to reclaim Congress' authority over the decision for war. My students embraced that perspective in the early 1980s, but the slide away from congressional power, strengthened by the Cold War, continued; and by early in the 21st century, my students were embracing the power of the presidency.
All we can hope for now is congressional insistence on being dealt in on the deliberations over starting, continuing, and ending wars. We have managed that, if just barely. An expanded executive power to wage war is now a permanent fixture of our federal government – although I am not sure Professor Fisher would agree.
For more than 30 years, Dr. Fisher’s classic book "Constitutional Conflicts between Congress and the President” has been in print and updated six times. He looks at the limits and growth of presidential power in the context of those conflicts from the Constitutional Convention through the modern era. Of all of such conflicts, which is the most interesting to you?
Tanenhaus: For me, the most interesting conflict involved President Harry Truman’s decision in 1950 to go to war against North Korea without seeking from Congress either a declaration of war or specific statutory authority. In his talk, Dr. Fisher will explain the enduring significance of this fateful decision that transformed American constitutionalism.
