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Welcome to our second half of the episode of Free Speech with CR. And we have, joining us today, of course, my wonderful cohost, Molly Blakemore, but also our guest today is Dr. Ryan Emenecker.

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So you mentioned that the Article I establishes the Congress, and Article II establishes the presidency. And I just wanted to talk a little bit about this unitary executive theory, If you could explain what that is. And maybe then, we can talk about how that's playing out now.

Sure. Yeah.

So unitary executive theory, it's one of these big topics right now.

Sure.

I was lucky enough that when I was in graduate school, actually, one of my professors that I worked very, very closely with, was Steve Calabrese, who's one of the people that helped found that doctrine and came up with it. And at the surface level, unitary executive is the idea that, rather than having a plural executive and multiple people in the executive, we have just one person there.

So in California, we have a plural executive. We elect the governor, the lieutenant governor, the secretary of state, all separately email, all separate job. And they're independent of each other. Most states have a plural executive.

The argument then is, because from the Federalist papers and the arguments they had there, there was a debate about whether we should have two people serve in this executive role, or three people, and they decided to have one person play the role. And so on some level, everybody agreed they had a unitary executive.

Now, unitary executive theory then takes that a little bit further and says, well, if you look at the structure of Article II and the way it begins, where it says that the executive power will be vested in a president. Well, then use her executive theory, some versions of it, there's weaken strong strength of it, but strong strength of it are valued. Well, That means all executive power is housed solely in the president. And the president has complete control over everything that happens in the executive room.

Again, I love Steve Calabrese, but we also love to disagree with each other, and I really respected him for that. He recognized that I am what he called me a congressional supremacist, while he was an executive supremacist. We worked well together.

But I think, there seems to be very little support for the strong version of unitary executive theory. Clearly, yes, we have a president, we don't have multiple different elected positions that are all there, although, we do separately elect the vice president, we do. And in fact, that was even more separate, initially, until we adopted the 12th Amendment, where it used to be often, one party and another party, vice president or president would serve.

So in that sense, we all don't have a unitary executive, but nonetheless, the power is supposed to be all housed with the president. The vice president has only two jobs in the Constitution-- one is basically to wake up and see if the president is alive and better so the occasional vote if the Senate didn't die. So Vice President has a very limited role.

And the president chooses the vice president.

And currently held office, again, because they run on a ticket. But that, of course, is not how the framers set it up, because they set it up as whoever gets the most votes is president, and whoever gets the second most votes i9s vice president. You could imagine what that would have meant in the last election, Kamala Harris would be vice president, that would have been.

Well, no, that would most certainly be in Senate. So we decided that that wasn't going to work, but we had to amend the Constitution. So when we look to what they actually debated, that wasn't the structure they came up with.

Now, the argument then for unitary executive is then the strong version that is, everything that has in the executive branch that happens has to be under the control of president. The difficulties that theory I can quickly runs into is that, well, there are several parts of executive power that are not housed solely with the president.

Budget.

So budgeting power. How are the purses with the legislative branch [inaudible]. Even executive powers like the appointments power. When President appoint people, well, it has to be confirmed by the Senate. And so it's very explicit that, right there in Article II, it tells us that you don't have full power over you appoint within your branch.

Secondly, the other one that also is shared is the idea of treaty-making. President gets to negotiate treaties, but it requires 2/3 of the Senate to agree. So here's another spot where executive power is carved off and handed out flair.

And the other one that I think almost no one talks about, but I think it's one of the most important, is the idea of being commander-in-chief. Now, commander-in-chief, we often think, it's the sole power of the president, but no one ever bothers to read the full sentence.

So what is the full sentence?

So the president is commander-in-chief of the Army, and Navy, and the several states. And then everybody just leaves this part off. The next part is-- when called into actual service.

You're right. No one recognizes that piece of that.

And think about how important that is in terms of changing the meaning of that sentence. So who calls the Army, and Navy into service? Congress. So on some level, the president's commander-in-chief power, one of the greatest powers that we almost always talk about, well, that's the lone power that belongs to president.

Only when Congress allows that to happen.

Congress has some control over that. So we have several aspects of executive power.

But this is also part of the Constitution that we ignore regularly, like you pointed out, by going to war without Congress acting.

Clearly do. But I think, in terms of the legal scholarship that's pushing that forward, I mean, it's one thing for us, I think, as actions to ignore things. It's another thing for citizens to not be aware of it. But I think as legal scholarship, I think you can't leave that off. It's right there.

And so it always troubles me that this is one of the things that I thought, I think, maybe in some of my next research, is actually looking at some article theorem or one part of it. There's the importance of how we think about the commander in chief clause, and the fact that people just ignore the whole important part of the sentence. So we have lots of parts of executive power that aren't housed solely by the executor. And that's true of a lot of the constitutions.

So often, we think of the Constitution, we use this phrase "separation of powers," not a phrase that's in the Constitution. It's a phrase that people like me made up as a way to describe what exists. But I think we made up a terrible phrase, because most of the powers are shared. Almost all the powers we have are shared. We separated the institutions, but we shared the powers.

So if you say, who has more powers? Well, Congress has more powers, in some sense, because they get to declare war. They raise Army and Navy. And they have the fund war every two years. President has more powers because commander-in-chief. So almost all the powers operate like that, but it's shared, right.

Treaty power, well, it's shared [inaudible] even the legislative power of it. The very thing the legislative branch was named for, legislative powers are shared with the president. The president gets to propose legislation, and they get to sign bills into law or veto them.

So we actually don't have separated powers. We have shared powers with separated institutions. And I think that's a much better way to think of it. And sometimes, I use an illusion in class, rather than talking about the branches of government, which indicate this very separation, I try to do my really bad version of a Yoga Tree Pose, where I tried to get my three branches out there, but really, it works much more like what we're familiar with here in Humboldt County, blackberry brambles. We have three brambles of that. And the powers are very intertwined and interlocked, and sometimes, a little bit difficult to untangle. But that also may be beneficial.

Thomas Jefferson made the argument that, he said, well, actually, free government is found in jealousy, not in confidence. The fact that the [inaudible] are jealous of each other's power is good point. And they aren't confident that they have the power, sometimes prevents them from acting in ways that they shouldn't, because they're like, well, think I can do this, but they maybe hedge their bets a little bit.

And so his argument, a little bit, was that this vagueness we talked about a little bit in the first half, but this vagueness actually has some real benefits to protecting people's liberties and how things operate, and probably gives a little bit more power to us as the people, in terms of what our opinions matter and how things play out.

And it seems like now, though, the unitary executive theory is having maybe more of a spotlight, because Congress has ceded a lot of its powers to the executive, making the executive seem stronger than it is. And we have yet to see what the Supreme Court is going to do about that, I guess.

I mean, I was under the impression that the shadow docket was really allowing him to do most everything that he's wanted to do, but I'm glad you pointed out that hasn't decided yet. So that's just an interesting-- can you talk about the shadow docket a little bit more too?

Yeah. So this is a term that I think it comes up in the early 2000s to 2010s. It's not something that legal scholars had really of explored prior to that. And Steve Vladeck is the one that comes up with this. And he's basically like, look, the court is increasingly making decisions.

So the normal court term starts in October and generally runs till about the 4th of July. And that's where they have all the merit-based decisions. And almost all of our scholarship is always focused on that. What did they decide in Roe v Wade? What did they decide in this? What did they decide in that? What do they decide in Brown versus-- what do we really focus on that ?

And what Steve Vladeck starts noticing is, well, they're making lots of decisions that are happening outside of this normal thing, that aren't, when we start counting, like, oh, they had 80 cases this year, and this many were decided this way by six to three. He's like, but what about all these decisions that aren't fitting in that framework, whatsoever?

But they're getting decided. They aren't really seeing an opinion on them. And these are usually these emergency things that have to happen. And he's like, wow, bigger and bigger in decisions and more and more often is happening in this way that's going outside of what we normally research and study.

And so he came up with this argument of like, well, there's this shadow docket, not the docket that we normally talk about, this other docket that's happening, and it's becoming increasingly important. And so we're seeing these types of things.

Now, again, these are supposed to be decisions where it's like, something's happening in emergency, something has to happen quickly. Historically, this, usually, was reserved to more of things like a state is going to execute someone. And then could a Supreme Court justice would be like, hey, you got to put that on hold until we get a chance to look at it and make a decision is, they can't act now because obviously, they don't intervene, and make your decision later on. The official docket is not going to help much for someone to even put to death.

So it was reserved for more things like that. But now, we're starting to see a lot more things around governmental powers and other stuff getting decided in the shadow docket. Now, again, many of these decisions aren't final decisions. They aren't saying, well, yes, we think what you're doing is OK. They're just like putting things on hold or keeping things status quo and other stuff. But it's starting to take up a bigger and bigger thing.

And we're, as legal scholars, having to figure out-- how do we deal with this thing that we just never studied when we studied the court? So hundreds of years of us as legal scholars, have looked at the court. And we've looked at a particular way. Now, all of a sudden, we're having, oh, wait a minute, we need to expand how we look at this, because things are being done in a way that it's happening more often, but you also don't notice things that you don't have a label for. And until we had a label for it, we're like, I think we can go back and actually see a little bit more shadow document in the past that we just didn't. Until you label things, it's one of the things that science does.

So is it particularly healthy way for us to govern?

I think there's some real problems with it. And I think that because we're starting to recognize it now, that one of the things is the court often doesn't issue an actual opinion. So it'll say, usually, it's an unsigned opinion. This is the ruling, [inaudible] X happens.

But one of the things that we've always thought of as a benefit of the courts is, they have to explain themselves. And that's not always true for presidents or Congress, but it's one of the reasons we often like to celebrate what the courts do is they have to give us some reasoning, because they don't have the power of the purse or the sword, but they have the power of reason.

But take away their reasoning, then all of a sudden, it starts to look like they're operating in the way we don't tend to use support courts operating. We want to know that reason. It's that reason that makes us trust them, think that we should have power.

Gives us a better understanding of what the Constitution means today.

Right. At this point, so we lack that. And so some argument has been that maybe, we need to write-- because again, most of what Article III says, yes, it establishes the courts, but it basically just says, there'll be a Supreme Court. And you could almost summarize the rest by saying, Congress decide everything else. Congress gets to put huge restrictions on how the court operates and so forth.

And so they could put some things about shadow docket. The fact that the court meets October, Congress decided that. They used to meet different times. Sometimes, Congress has even decided the Supreme Court can't do. So you go back to the 1800s, they were very concerned about some of the decisions that the court was going to make, and so they just canceled the session of the court for two years.

Is that right?

Yeah.

I don't remember that.

That's actually the basis of Marbury versus Madison.

I don't think you were around that. Sometimes, I wonder. But yes, OK.

But actually, getting to the basis of Marbury versus Madison, it's like, that controversy starts in 1800, but the court case doesn't have until 1803. Why? Because Congress, you're going to rule against us. So we're just going to cancel the session of the court. You don't get to meet this year. You don't get to meet next year. [inaudible] like to meet.

But Congress could put certain restrictions on the court in terms of, well, here's how the shadow docket is going to work, or what you can or can't do, or what types of cases you have to-- almost everything the court does is controllable by Congress. There's a very small window of things the court has to be able to hear, everything else is decided by Congress.

So before, we were talking about the friction between the lower courts and the Supreme Court. And what kind of avenues do the lower courts have to still operate after the Supreme Court is shutting them down, basically?

Usually, it's based on interpretation. So Brett Kavanaugh, one of the Supreme Court justices, came out this week and said, well, one of the problems that we're creating for the lower courts is that perhaps, some of our decisions haven't been so clear. One of the problems with the shadow documentation was offering reasoning.

Then the lower court has to be like, well, you've told us this happens, but why? I mean, most of us in constitutional law, we aren't necessarily as interested in which party wins. We're interested in why they win. Why they win tells us a whole lot more than who wins, right?

And so did they win because you can never operate in this way? Or did they win for a very narrow? And so when we're not getting that reasoning, that's really depriving the lower courts of something that can help guide their actions, but then I guess, on some level, it also opens up their ability to make all sorts of rulings.

So that's, I think, one of the big areas where the shadow docket is becoming an increasing problem lower courts often have. So we had a lower federal court recently that just ruled, that wanted Trump's tariffs violate the Constitution. And a lower federal court that just said that President Trump's sending of troops into LA was unconstitutional.

Deportation.

Deportations. We have all these big ruling.

Firing of the heads of Civil Service.

But if you have the court then that says, well, we're going to put that on pause for now if the Supreme Court says it, well, if you don't know why, well then, what do we do if we have a similar action that happened in LA, now happens in Chicago?

That's right.

Because then, well maybe that action in Chicago needs to have the same ruling as what happened in LA, because [inaudible] situation. Or maybe it has a very different ruling because there's enough difference there. We could think about that with the Federal Reserve, where the Supreme Court did make a ruling in terms of who you could hire--

Or who they aspire to fire. Sure.

--in terms of executive agencies, that seem to make the strong carve out for how the Federal Reserve worked. Now, if we didn't get that information, then a lower federal court is like, oh, I guess the president can just fire everybody in the executive-- you need to know those reasons why if you're going to be a lower federal court.

So we often mistake what the terms "Supreme" and "Supreme Court" means. Sometimes, we think of it as it's the supreme authority on the Constitution. It's just the top court. But that means it has to operate in a particular way to let the inferior courts-- which, again, they don't like that term, "the lower courts," but inferior courts is what the Constitution says-- how the inferior courts are going to operate below them, they need to have that guidance and that information. And I think Brett Kavanaugh is right to say, sometimes, we're not doing a good job of letting you know how you're supposed to operate.

So you being a Supreme Court scholar, and we see a lot of other problems with not just the constitutional interpretation but how the Supreme Court also rules, how do we fix that? How do we fix the Supreme Court? Because I do remember the conversation when President Biden was in office, about packing the court, which is not an answer that we should probably-- or I wonder, is that the answer? How do we make it balanced? Because right now, it's not.

Yeah.

How do we balance the court?

I mean, I think the most important thing that, I think, again, when I say that Congress is the first branch of government, I think everything comes back to that. And then again, when we say that Article III of the courts, most of what it's in there is giving powers back to Congress, I think one of the primary problems with the court is more about how Congress is operated. So again, Congress, sometimes, passes laws on shakey constitutional grounds. And it's like, well, we'll let the court decide. And I think Congress needs to stop doing that.

I think also, when Congress does confirmation hearings, I think they need to have more substance to them. I think those have become largely just shows. And I think it's also become largely, at this point, in the last decade or two decades, it's basically just been, everybody lines up with third party and--

Very partisan. Yeah.

Yeah.

And I think we need to have more people that are willing to-- I don't care that this party of that I'm in, that it's the party of the president that I agree with. I want to see someone, I think, who's going to be able to do a good job.

One of the increasing problems, I think, with the Supreme Court, too, is that increasingly, presidents have decided to try to pick judges who are younger, and younger, and younger, because the younger you pick one, the longer they can be on the court, and the longer your legacy. But that means that anybody who is essentially 60 years or older is no longer a potential pick for the court, even though a person might be 65 and a great pick, but we're like, oh, I'll take the person that's 55.

Because they'll serve that party longer.

Right Legacy will be longer.

Sure.

Yeah.

Yeah. One of them--

The term limits would be a good fix.

And that really affects term limits do you think?

I mean, so the issue with term limits, and we can talk about compared to short packing, one of the things that's so interesting to me. So short packing, the idea of just putting more people on the court. Clearly, according to the Constitution, Congress gets to decide the number on the court. There's no number set in the Constitution, that number 9, and it's been ranged from 6 to up to 11. They pick different numbers. And in fact, they've raised and lowered it with particular intentions to control decisions of the court.

So right after the Civil War, Republicans in Congress were really upset that the president was striking down civil rights legislation and was not helping newly freed slaves.

So Johnson is president.

Johnson. Right. And they were really upset at Johnson. So basically, they said, OK, fine, we're going to lower the number on the court, so that, Johnson, you never get to put anyone there. And Johnson, as soon as you're no longer president, we'll raise that number back up so the next person can put some more people there.

I understand it.

So one of the reasons why we have some of the Civil Rights protections we do today is because Congress is willing to raise them, lower that number.

And because we had a functioning Congress at the time.

So are you saying then, Congress now is dysfunctional?

I was. Yes.

I'm up. And I would agree.

I would definitely make the argument that the Congress is dysfunctional. I think most members of Congress would also agree with that. I don't think that's necessary. Particularly, one of the really popular books from around 2008, called The Broken Branch. [inaudible] comes out and explains why Congress isn't working and so forth.

And I think, if you talk to Jared Huffman, who was our local representative, he would also argue, Congress is not functioning. I mean, he would say that, not just because Democrats are in the minority, and he's a Democrat. He's in the majority. He would also make that argument. There are several good reasons to be concerned about how Congress is operating.

And I don't know that necessarily raising and lowering the number on the court is a good or bad idea, but I think it's interesting that people have such a adverse reaction to it, even though it's clearly a power of Congress.

Yeah. So I was going to ask--

But people are much more open to the idea of term limits, even though that seems to be unconstitutional. It's so interesting to me, people are more in favor, and actually, even Biden's commission on the Supreme Court, they had more support for term limits than they did for raising the number. And again, they're supporting something that seems to be--

Why would you say it's unconstitutional?

I'm not 100% sure on that. I think I lean on that side of it. But basically, it seems to imply that it needs to be lifetime tenure. And a lifetime tenure requires that, basically, you can't-- the judge-- unless you impeach her over them, which is another clear power of Congress.

And in the past, we have had congresses [inaudible]. And in fact, that's another clear power of Congress, and maybe one that they should occasionally be more willing to use, I think we can use for lower federal courts in ways that have been really important. We've had 12 to 15 federal court judges impeach and remove for very good reasons.

But other ways that Congress could work on it. But we have ethics and reporting requirements for lower federal court judges, but those don't apply to the Supreme Court. And so one of the recommendations of the commission is like, well, why not have Supreme Court also have recusal requirements when they might have a conflict of interest? That just seems like, maybe that's an obvious thing that should be there and that doesn't exist.

And so we have several other ways that Congress has control over the courts that they're not exerting. And I think it's too often an idea of, well, I want the expedient win in the moment rather than maybe the long-term processes that are going to work out better.

I'm sorry. Go ahead, Mo.

I was just going to say, why do you think people are so opposed to, quote unquote, "packing the courts"?

Adding numbers.

Yeah.

I think the main aversion to it is that, does this become a never ending arms race? So this side raises a number, and then this side raises-- and do we just continually change the number in order to do that?

I think we probably could come up with a principled way that if you could get all parties together-- one of the arguments used to be that the number on the Supreme Court was supposed to be reflective of the number of circuit courts that we had around the country. So each Supreme Court justice reflected one of the circuits. And when that circuit had an emergency appeal, such as an execution in the state, and it goes to one of the Supreme Court justices to decide, do we need to stop that execution immediately? Well, we expanded the number of circuits, we didn't expand the number of justices. And so it used to be more tied together.

So we have 13 circuit courts on the Supreme Court, covering more than one circuit and so forth. And so one argument is like, maybe we come up with a principled way of like, this is the right number of circuit courts. And again, Congress can raise or lower those. And you haven't raised that in a long time either. But maybe it makes sense that it's like, OK, here's what that number on the Supreme Court needs to represent. And now, it's not really tied to anything other. And we just kept the number the same since 1870, essentially.

So I have a question for you. And I want you to try your best to go with me on this question. If there was a brand new formulated country, and they came to you and said, I need you to form our government, what advice would you give this new nation? What would you do? What would you say?

I think it's a great question. I want to give a couple preface answers.

Of course, they're helpful. Of course.

One--

It's a big question.

It's a big question. Yeah.

--I think it's really interesting that today, when American scholars help other countries develop constitutions-- Iraq, Afghanistan--

Sure.

--they never propose our own Constitution as a model to follow.

I noticed that. Yes.

Right?

This is why I'm asking the question.

Which I think is a really interesting thing. I think there are elements-- so one, I think it depends on every country. So I think when you make a Constitution, it has to be reflective of the country. So I don't think you're always going to get one answer. So I think one example is the idea of federalism, like, how much regional power you have in states or in countries where you have really strong ethnic groups or really strong regional identification? I think federalism is a really important thing to do.

Most democracies work under a unitary system. And I think that works really well in certain types of countries. But I think in other countries, we need to have this idea of federalism. So depending on whether I would do federalism like the United States or whether I would do [inaudible], that would depend on the situation.

Other things, I think, proportional representation, which is not the way that we are doing, although the Constitution doesn't forbid it, but it's not the way we're doing representation in the United States, Congress currently forbids it, which I think is a problem, but I think that's something that probably, universally, most democracies do, and I think makes a lot of sense. I think that the way we've done our presidency is a problem.

Talk to us about that, Ryan.

We've combined two things in one. So in most countries, they separate out what is known as the head of state and the head of government. So the head of state is stately affairs. So the cutting the ribbons, welcoming ambassadors--

The queen and the prime minister.

--the queen. That's the most obvious easiest example to think about. So the role of the head of state is what the Queen's doing or the King's doing in that country. And many countries have a president and a prime minister. Prime Minister is the head of government, they actually do governing stuff, and the president.

We've combined those two roles. And again, most democracies don't do that, but what that's done is it gives an incredible amount of power to president. We have maybe terrible tragedy that happens in the United States. The person, as head of state, goes and gets a rousing speech about how terrible they're going to hear us. And then that same person then goes to Congress and says, well, now give me the power to do it.

I think when you separate out those two folks, the person that gives the rousing speech, and you have someone else that has to ask for the power to do it, I think allows us to have a more full discussion about what's the appropriate response as a country and so forth. And I think, sometimes, we conflate that. Head of state power starts to allow someone to amass.

Might get a cult of personality.

I think it becomes more likely. That never happens in America. I'm being facetious. OK. I mean, one joke that political scientists made about the only countries that follow our presidential system tend to be near totalitarian, authoritarian governments in South America. That doesn't exist in other democracies, they don't follow this model.

And so it would be one that if I was proposing things-- again, in 1787, they had to follow the information they had at the time. We've learned a lot in a couple hundred years. And I think that's one where we point to and be like, that's not something I would replicate.

So then does that explain the ease in which the country is moving toward, having a dictator type of government?

Yeah. I think we're seeing elements of authoritarianism. So one scholar from Yale broke it down, on one end, you have democracies, on the other end, you have totalitarianism. And then in between, you have authoritarianism, and obviously, gradations in between.

And I think we have lots of elements of democracy index scores and other things in the United States all indicate that we're sliding points of thought into some in various ways, which is suppression of dissent, suppression of opposition happening.

And so I think we're seeing lots of worries around that that's only come off very rarely in the United States history. It was a fear of authoritarianism in that way. And I think our system is a little bit prone to that because of the combination of head of state and head of government. And I think that that is a problem and makes us more prone to having that problem. And we've seen that in other countries.

But I think we are lucky in the United States, we tend to have fairly robust civic organizations. And hopefully, whether you agree with particular president or not, the idea is that those civic organizations exist to be in opposition so that we can have these more full conversations. And so we can be free to think these ideas and come up with the country that works for all of us, and that they want to have work and leave those organizations.

It's clear to me, during our conversation, of how ignorant a lot of our fellow Americans are to politics, Supreme Court, and how our government should and should not work. What's the answer? How do we educate people about-- what's actually going on? And what can be done? I mean, what role does higher ed then play?

Yeah, I mean, I think higher ed has a big role in the sense of, I appreciate California's one state that requires everybody that gets a bachelor's degree to have an intro US government class. That's not true in every state. Oregon does not require that, for example, we do in California. So I think that's one move that's really important.

But I obviously think that that's enough. So my students often say the same thing. We say, education is really-- how come we don't know any of this stuff? Which, to me, on some level, it's like, well, you were required to learn it in 3rd grade, 8th grade, 12th grade, and now in college.

So I'm not completely sure what that answer is. I do think that at least one part of the answer is, it's good that we have this American institutions requirement in California. I think that's really important. States are starting to get rid of that, but I think that's important. But I think there has to be more open spaces to have these types of conversations and discussions, too.

So we want to thank you again for coming, Dr. Ryan Emenecker. His book is called Current Debates in American Government.

Thank you very much. My name is Keith Flamer. And I so appreciate the conversation today. I learned a lot. And there's a lot to still talk about. And join us next time for another episode of Free Speech with CR.

(SINGING) [inaudible] promise that you never deepfake me

One small step for man.

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