On President’s Day, We Celebrate The Guardian of the Presidency

It is Presidents Day – a time to repost my traditional column commemorating the late, great Richard E. Neustadt. This year the post seems particularly timely, given President Trump’s decision to declare a national emergency in order to free up money to fund construction of a wall along the United States’ southern border with Mexico. Although Trump’s critics view the declaration as another sign of Trump’s authoritarian tendencies – a view consistent with many political science arguments regarding the effectiveness of unilateral presidential action, I suspect Neustadt would have a different reaction to Trump’s decision. He almost certainly would view it as a sign of presidential weakness – not strength. To understand why, it is worth reviewing Neustadt’s argument.

Until his death in 2003 at the age of 84, Neustadt was the nation’s foremost presidency scholar.  In his almost six decades of public service and in academia, Neustadt advised presidents of both parties and their aides, and distilled these experiences in the form of several influential books on presidential leadership and decisionmaking.  Perhaps his biggest influence, however, came from the scores of students (including Al Gore) he mentored at Columbia and Harvard, many of whom went on to careers in public service.  Others (like me!) opted for academia where they schooled subsequent generations of students in Neustadt’s teachings, (and sometimes wrote blogs on the side.)

Interestingly, Neustadt came to academia through a circuitous route that, unfortunately, is rarely used today. After a brief stint in FDR’s Office of Price Administration, followed by a tour in the military, he returned to government as a mid-level career bureaucrat in President Harry Truman’s Bureau of the Budget (BoB) in 1946, gradually working his way up the ranks until he was brought into Truman’s White House in 1950 as a junior-level political aide.  While working in the BoB, Neustadt took time to complete his doctoral dissertation at Harvard (working from Washington), which analyzed the development of the president’s legislative program.  When Truman decided not to run for reelection in 1952, Neustadt faced a career crossroads. With the doctorate in hand, he decided to try his hand at academia.

When he began working his way through the presidency literature to prepare to teach, however, he was struck by just how little these scholarly works had in common with his own experiences under Truman.  They described the presidency in terms of its formal powers, as laid out in the Constitution and subsequent statute.  To Neustadt, these formal powers – while not inconsequential – told only part of the story.  To fully understand what made presidents more or less effective, one had to dig deeper to uncover the sources of the president’s power. With this motivation, he set down to write Presidential Power, which was first published in 1960 and went on to become the best-selling scholarly study of the presidency ever written. Now in its 4th edition, it continues to be assigned in college classrooms around the world (the Portuguese language edition came out a few years back.) Neustadt’s argument in Presidential Power is distinctive and I certainly can’t do justice to it here.  But his essential point is that because presidents share power with other actors in the American political system, they can rarely get things done on a sustained basis through command or unilateral action. Instead, they need to persuade others that what the President wants done is what they should want done as well, but for their own political and personal interests.  At the most fundamental level that means presidents must bargain. The most effective presidents, then, are those who understand the sources of their bargaining power, and take steps to nurture those sources.

By bargaining, however, Neustadt does not mean – contrary to what some of his critics have suggested – changing political actors’ minds.  As I have written elsewhere, Neustadt does not mean that presidents rely on “charm or reasoned argument” to convince others to adopt his (someday her) point of view. With rare exceptions, presidential power is not the power to change minds. Instead, presidents must induce others “to believe that what he wants of them is what their own appraisal of their own responsibilities requires them to do in their interests, not his.” That process of persuasion, Neustadt suggests, “is bound to be more like collective bargaining than like a reasoned argument among philosopher kings.”

At its core, Presidential Power is a handbook for presidents (and their advisers). It teaches them how to gain, nurture and exercise power. Beyond the subject matter, however, what makes Neustadt’s analysis so fascinating are the illustrations he brings to bear, many drawn from his own personal experiences as an adviser to presidents. Interestingly, the book might have languished on bookstore shelves if not for a fortuitous event: after his election to the presidency in 1960, President-elect John F. Kennedy asked Neustadt to write transition memos to help prepare him for office. More importantly for the sale of Neustadt’s book, however, the president-elect reportedly was photographed disembarking from a plane with a copy of Presidential Power clearly visible in his jacket pocket.  Believe me, nothing boosts the sale of a book on the presidency more than a picture of the President reading that book!  (Which reminds me: if you need lessons about leading during a time of crisis, President Trump, I’d recommend this book. Don’t forget to get photographed while reading it!)

But it takes more than a president’s endorsement to turn a book into a classic, one that continues to get assigned in presidency courses today, more than two decades after the last edition was issued.  What explains Presidential Power’s staying power? As I have argued elsewhere, Neustadt’s classic work endures because it analyzes the presidency institutionally; presidential power, according to Neustadt, is primarily a function of the Constitutionally-based system of separated institutions sharing power.  That Constitutional grounding makes Neustadt’s analysis of continuing relevance.   And while many subsequent scholars have sought to replace Neustadt’s analysis with one of their own, for the most part they end up making his same points (although they often don’t acknowledge as much) but not nearly as effectively.

Neustadt was subsequently asked to join Kennedy’s White House staff but – with two growing children whom had already endured his absences in his previous White House stint – he opted instead to stay in academia.  He went on to help establish Harvard’s Kennedy School of Government, wrote several more award-winning books, and continued to advise formally or informally every president through Clinton. After the death of Bert, his first wife, he married Shirley Williams, one of the founders of Britain’s Social Democrats Party (and now a Baroness in the House of Lords), which provided still another perspective on executive politics.  He also continued churning out graduate students (I was the last doctoral student whose dissertation committee Neustadt chaired at Harvard.) When I went back to Harvard in 1993 as an assistant professor, my education continued; I lured Neustadt out of retirement to co-teach a graduate seminar on the presidency – an experience that deepened my understanding of the office and taught me to appreciate good scotch.  It was the last course Neustadt taught in Harvard’s Government Department, but he remained active in public life even after retiring from teaching.  Shortly before his death he traveled to Brazil to advise that country’s newly-elected president Lula da Silva.

What might Neustadt make of the Trump presidency?  That is a topic worthy of a separate post.  But I suspect that in contrast to many of my political science peers, who have expressed a fear that Trump’s authoritarian tendencies pose a threat to the Constitutional order, Neustadt would have a different concern:  that Trump’s inexperience – compounded by his initial decision to surround himself with equally inexperienced aides – has led to an exceptionally weak presidency, one unable to provide the energy and institutional stiffening that Neustadt believed was indispensable for making our system of shared powers work toward solving national problems.  To be sure, that weakness might yet lead a frustrated president to lash out against his political enemies, and to engage in extraconstitutional actions that could further weaken the presidential office. If so, my colleagues’ fears may yet be realized. For now, however, I suspect Neustadt would worry not that Trump’s presidency was too powerful – but that it was not powerful enough.

The recent emergency declaration perfectly illustrates Neustadt’s thesis. Trump issued it only after failing to persuade the Democratically-controlled House to fund his proposed border wall in the amount he requested, and after the nation endured a 35-day partial government shutdown that failed to gain Trump any additional traction. Although Trump might yet be able to use the emergency to reallocate appropriated money toward funding the wall, it is a potentially risky strategy – as are most instances in which presidents act “unilaterally” through “command” authority to achieve objectives. In this instance, Trump’s actions will almost certainly be challenged in court, and the long-run repercussions on his sources of influence are at best uncertain. All this is consistent with Neustadt’s warning that unilateral efforts to achieve presidential objectives are typically a sign of weakness, not strength and that in the long run they frequently undercut a president’s sources of bargaining power – particularly his public prestige and professional reputation, to say nothing of his formal powers. It remains to be seen how this latest effort to exercise command authority will play out, but I suspect it will prove costly to Trump in the long run.

In the meantime, take time today to hoist a glass of your favorite beverage in honor of Richard E. Neustadt, our own Guardian of the Presidency. If you are interested in learning more about him, there’s a wonderful (really!) book available on Amazon.com edited by Neustadt’s daughter and that blogger guy from Middlebury College (see here). It contains contributions from Doris Kearns Goodwin, Al Gore, Ernie May, Graham Allison, Ted Sorensen, Arthur Schlesinger, Jr., Harrison Wellford, Harvey Fineberg, Jonathan Alter, Chuck Jones, Eric Redman, Beth Neustadt and yours truly.

Here’s to you,  Dick!

The Danger in the Kavanaugh Vote

If the executive summary of the FBI investigation released by Senate Judiciary Chairman Chuck Grassley accurately captures the underlying FBI findings, it appears that Judge Kavanaugh is on track to be confirmed as the next Supreme Court justice, consistent with what I suggested in my previous post. We may know more regarding how the remaining undecided senators will vote after today’s cloture vote to end debate. If he does get majority support, his confirmation is likely to be on a near-straight party line vote, with most, if not all Senate Democrats voting against him.  It is understandable why they do so, and why Republicans will vote to confirm him.  It also poses potential risks to the future of the Court.

Why do Democrats oppose Kavanaugh if there is no clear evidence to corroborate Dr. Ford’s allegations of sexual assault?  Because he is a Republican, and is unlikely to rule in ways on the Court that most Democrats will find acceptable.  In fact, I suspect this fear has been the primary motivation behind Senate Democrats’ opposition all along. Republicans, of course, are motivated by similar political reasoning. However, because it is still viewed as unseemly to defend one’s confirmation vote on partisan reasoning, senators rarely if ever admit to this motivation.  And, in their defense, it is understandable why.  As an unelected body, the Court’s legitimacy depends in part on the fiction that justices are “priests in robes” who impartially decide cases based on legal reasoning and precedent.   As Judge Kavanaugh said in today’s Wall St. Journal op ed piece, “The Supreme Court must never be viewed as a partisan institution. The justices do not sit on opposite sides of an aisle. They do not caucus in separate rooms. As I have said repeatedly, if confirmed to the court, I would be part of a team of nine, committed to deciding cases according to the Constitution and laws of the United States. I would always strive to be a team player.”

But, of course, the Supreme Court is very much a partisan institution, in the sense that justices’ decisions in legal cases seem to generally fall along distinct ideological lines.   This is not always the case, of course, and other factors do influence judges’ decisions, but it happens enough that political scientists can discern clear voting patterns consistent with a certain ideological viewpoint.  Nonetheless, justices like Kavanaugh continue to insist that they vote in a nonpartisan manner.  As my Syracuse Law Professor and former colleague Keith Bybee argues, that hypocrisy serves a valuable function.   By portraying justices as “neutral” umpires who call “ball and strikes” according to some shared, widely-accepted view of the legal strike zone, it is more likely that the Court’s ruling will be accepted by the majority of people.  The alternative – to view judges as naked partisans – would risk delegitimizing the Court, and making it less likely that partisans from the other side will comply with Court edicts.

Alas, this legal fiction is in danger of being stripped away. As the parties have become better sorted, in which ideology increasingly lines up with party labels, we have seen both political parties engage in tactics designed to win popular support in order to gain an ideological majority on the Court.  This has led to increasingly bitter confirmation fights dating back at least to Reagan’s unsuccessful effort to appoint Judge Robert Bork to the highest court. The bruising battle regarding Kavanaugh’s confirmation is but the latest illustration of this trend.  Senators do so for an understandable reason: the Court, as an important political institution whose members sit for life, has the capacity to influence public policy for years to come. As a result it makes perfect sense to base one’s vote according to a justice’s perceived ideology. However, it is even better if a Senator can clothe that support or opposition in some higher principle – it cannot simply be about politics!  Instead, they claim to be voting on a more important issue: “This is a vote against a racially-based high-tech lynching!”  “This is a vote for women everywhere who have been sexually assaulted!”  Much of the opposition to Kavanaugh seems consistent with this approach, even if the logic seems at times somewhat tenuous.  For example, Democrats’ claim that Kavanaugh’s Senate testimony indicates he lacks the proper judicial temperament seems to ignore what his 11-year record on the bench tells about his judicial “temperament.”  Anyone truly interested in assessing this aspect of his demeanor would be combing his actual judicial behavior across the previous decade, rather than basing a conclusion on what he admits was a deeply emotional response to what he perceived to be as unfounded attacks on his family name.  It certainly suggests that Democrats are not really opposing him because of questions regarding his temperament.

To be sure, senators may even convince themselves that this high-minded principle is their primary motivation.  Even if they do not, it makes perfect political sense to adopt this public posture, if for no other reason than to sway public opinion.  The risk, of course, is that if the argument seems increasingly out of step with the facts, or as a blatant political move (see Republican opposition to Merrick Garland) as perceived by the general public (as opposed to activists on both side) the “principled” stand may impose a political cost.  We shall see if either party pays a price in the upcoming midterms.  Early indications are that the Kavanaugh controversy may have energized Republicans, raising their interest in the midterm election to that of Democrats’.

However, there is a bigger worry.  It is that these partisan-driven confirmation battles pose a long-term risk to the Court’s perceived legitimacy.  In that regard, there is some evidence that approval of the Court has declined in the last two decades, at least as measured by survey data.

So far, however, that disapproval has not manifested itself in outright refusal to abide by the Court’s rulings. There is no guarantee that this support will persist in the face of obvious evidence that the Court is, first and foremost, a political institution driven primarily by partisan rulings.   Some veneer of “principled” reasoning is crucial to its continued public support.   Chief Justice Roberts, who is likely to become the new swing vote on the court in closely decided decisions, seems to recognize this and there is some evidence suggesting it has driven his vote when the Court is closely divided.  Is it enough to save the Court’s reputation as an impartial arbiter of constitutional issues?  We shall see.

So far, we remain committed to the belief that we are a government of laws, and not of men and women.  May it always be so.

The Truth About the Ford-Kavanaugh Confirmation Hearing

In response to multiple emails from current and former students, and others, here are some initial and admittedly impressionistic thoughts regarding the Kavanaugh confirmation hearings.  As senators Feinstein and Harris were quick to remind Ford, and their audience, yesterday was not a criminal trial.  If it were, the proceedings would have ended quickly. There is no evidence that a crime was even committed – at least not enough to bring a legal indictment, never mind determine who is the guilty party.  But the Senate hearing was not intended to determine the “truth” of Ford’s allegations, or Kavanaugh’s denials.  Nor, contrary to Feinstein’s claim, was it a “job interview” to determine whether Kavanaugh was qualified to serve on the Supreme Court. Instead, the hearing was designed to provide political cover for senators of both parties to vote the way they wanted to vote before the hearings began.  All they asked was for their witness to appear credible enough to allow them to cast a vote that could be defended back home, with their constituents.   And, in my view, and consistent with the responses I am getting from “normal” people who watched bits and pieces (or even more) of yesterday’s proceedings (I use “normal” in the statistical sense), both Ford and Kavanaugh cleared the bar.  Put another way, if you went into yesterday’s hearings believing Kavanaugh was guilty, I am quite sure you came out of it convinced you were right.  I suspect that among his defenders there was a similar reaction – “I thought he was innocent, and yesterday proved me correct.”  And for those of you who were genuinely undecided?  I doubt yesterday clarified anything, and that you are still undecided.  Yes, I am fully aware of the inconsistencies in the testimony of Kavanaugh and Ford that advocates on both sides are eagerly rehashing on social media.  It’s funny how those inconsistencies always seem to reinforce one’s prior dispositions!  Indeed, as I remarked on twitter yesterday, I’ve yet to hear from one person who said that they had changed their views after listening to the testimony by both parties.

When I make this argument, students often respond with, “Ok, but what do you think?  Is he guilty or not?”  My response is that I have a pretty strong belief regarding whether he is guilty.  But I also recognize that my belief is not based on any evidence, but instead reflects a gut instinct based on poorly-informed theories of human behavior that may or may not apply here. And guess what – reams of science reminds me that one’s “gut instinct” and “intuition” is often quite wrong; frequently it serves as a manifestation of underlying predispositions that lead one to engage in confirmation bias.  Put another way – I recognize that no matter how strong my belief, it is not rooted in any objective assessment of the relevant facts (of which there are almost none), and therefore it is of no value in this debate.

So where do we go from here?  If my assessment is right – if yesterday’s testimony provided adequate cover for senators to vote their partisan preferences – I suspect Kavanaugh will be confirmed on a near-straight party vote.  As I write this, media sources are reporting that Jeff Flake will vote yes.  Given their political leanings, I’m guessing Collins and Murkowski will do so as well, and would not be surprised if Manchin and Donnelly cross party lines, given the tough political fight they are facing.  As I tweeted yesterday, however, the actual hearing was only the start of the political fight.  Much depends on how the media reports that hearing – what sound bites will they use?  Visuals?  And there is the added layer of extremist voices in social media that may play a role in framing the debate.

Several pundits have speculated that if he is confirmed, Kavanaugh’s palpable anger at this confirmation process will spill over into his decisions in a way that will cause him to rule against the Democratic party’s preferences.  I find this highly implausible, mostly because – as I indicate below – Kavanaugh was always likely to rule in ways that Democrats would find unacceptable regardless of how smooth the confirmation process went.  If you want a clue regarding how Kavanaugh will judge, you need only to look at his prior judicial record.  (Note: use these scores with caution – they depend heavily on the issues that came to a vote during Kavanaugh’s time on the court, among other caveats.)

A final thought. Many activists, particularly those backing Ford, think this confirmation fight will somehow damage the long-term legitimacy of the Court, particularly if Kavanaugh is confirmed.  I disagree. That view is based on a willfully misleading impression of the court as a decision-making body composed of priests in robes who divine the “truth” through careful consideration of legal principles.   But decades of social science research paints a different picture.  Justices are partisan in robes, who interpret ambiguous language in ways that are consistent with their political preferences.  Yes, we all are willing to adopt the pretense that the Court is above politics, and I think that fig leaf serves a useful purpose by providing a sheen of legitimacy to court rulings, and compensating for the fact that once confirmed they are not accountable to the people.  But partisans on both sides understand the true nature of the Court, and the Kavanaugh confirmation battle will only reinforce what they already know, which is that elections matter, and whichever party has the votes in the Senate will use them to tilt the Court toward their preferred political direction.  It has always been thus, and it will always be so.

And for those lamenting Kavanaugh’s confirmation – if he is confirmed?  Note that our best guess, based on his record to date (see above) is that Kavanaugh will vote in ways that make him much closer to Thomas, and the right wing of the Court, than to Kennedy’s relatively more centrist views.  However, this will likely make Chief Justice Roberts the new swing voter on many issues, replacing Kennedy in that role.  And Roberts is, at heart, an institutionalist very concerned with protecting the Court’s perceived legitimacy and public standing.  This makes it highly unlikely, in my view, that he will support decisions, such as repealing Roe v. Wade, that run counter to prevailing public opinion.   That may provide small comfort to those who believe Ford’s testimony, and who are convinced there is no place on the Supreme Court for a man like Kavanaugh. To you, I say, use that anger constructively – by voting.  Control of the Senate – and likely of the federal courts – is at stake.

The “Gay Cake” Supreme Court Decision: Not A Judicial Masterpiece

Martin Naunov, Middlebury class of ’17, used the Masterpiece Cakeshop case in his senior honors thesis to explore the potential conflict between equal treatment of gays and lesbians in the marketplace, and the Constitution’s guarantee of religious liberty and free speech.  Here he reacts to the Supreme Court’s decision, handed down on Monday, in the Masterpiece case.

On Monday, the U.S. Supreme Court handed down its ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the same-sex wedding cake case. The decision? Far less sweeping than some had hoped but not as distinctly insignificant as some others maintain.


As I have explained in greater detail in an earlier post, Masterpiece invited the Court to strike a balance between two exalted, but sometimes conflicting, principles: equal treatment or anti-discrimination on one hand and free exercise of religion on the other.

The substantive questions that the case presented can be stated as follows: Does the Constitution require that religious wedding vendors be exempted from the scope of the public accommodation laws? Does compelling a wedding vendor—say a baker, a florist, or a photographer—to provide their wedding services on equal basis irrespective of the customer’s sexual orientation contravene the Free Exercise or the Free Speech Clause of the First Amendment?

As most newspapers’ headline make clear, the 7-2 Masterpiece majority sided with the religious baker. What these headlines make less clear, however, is that in actuality, the Court sided with no one on the substantive questions. Monday’s decision did not settle the tension between freedom of speech and religion and non-discriminatory treatment of the historically marginalized LGBT community.

The Court, in other words, did not answer the question whether wedding vendors have the First Amendment right to decline services for same-sex wedding ceremonies; and to the extent that it did, the answer is in the negative. Although “religious…objections are protected,” the majority opinion affirmed, “it is a general rule that such objections do not allow business owners…to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Ministerial exception can be assumed, the opinion continued, “yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws.”

The Court sided with the baker by equivocating. Justice Kennedy hedged on the question whether Mr. Phillips had a First Amendment right to decline his services for same-sex weddings; however, Mr. Phillips certainly had the First Amendment right to “neutral and respectful consideration” of his religious liberty claims. This principle, the Court found, was “compromised” by the Colorado Civil Rights Commission’s “treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.”

The inference of religious animus was twofold. First, the Court found unacceptable certain remarks made by some of the commissioners. According to one of the commissioners, for example, “we can list hundreds of situations where freedom of religion has been used to justify discrimination…whether it be slavery, whether it be the holocaust…And to me it is one of the most despicable pieces of rhetoric that people can use…to hurt others.” I suspect many people—religious people like myself included—would find this remark to be largely innocuous and perhaps fair, even if somewhat overstated. To the Court’s swing Justice, however, it was unacceptable—clear evidence that the Commission’s deliberation was tainted by religious animus.

It may merit mentioning that conservative newscasts have been fulminating against the above remark long before Monday. In fact, when I talked to one of Mr. Phillips’ lawyers after December’s oral arguments, this comment was one of the very first issues she brought up.

In any event, the Court found another sign of religious animus in the discrepancy in the Commission’s treatment of Masterpiece versus three other cases where bakers declined to create cakes with religious text and images condemning same-sex marriage. A rationale might exist, the majority acknowledged, to differentiate these cases. Therefore, the issue is not the constitutional soundness of the differing outcomes—the other three bakers, unlike Mr. Philips, prevailed—but, rather, the differing level of respect with which the bakers’ conscience objections were treated. Namely, in Masterpiece, the Commission approached differently the element of attribution—Is the baker merely ‘a conduit’ of their customer’s message or is the message attributable to him? —and the argument that the bakery was willing to sell other products to the rejected customers.


Although constrained in its capacity to serve as a precedent in deciding the substantive questions in other cases of LGBT discrimination by wedding vendors, Masterpiece could prove to be nontrivial in its interpretation of Smith. This element—the Court’s treatment of Free Exercise doctrine—seems to have eluded many legal commentators.

Smith, which controls Free Exercise jurisprudence, pronounced the following rule for determining whether the challenged regulation contravenes the Free Exercise Clause: “if prohibiting the exercise of religion…is not the object…but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” In other words, according to Smith, as long as the law in question is a neutral law of general applicability that does not target a specific religion or religious practice, it should be reviewed under the “rational basis” standard.

The Smith decision did not, however, mean that the Court would absolve from strict scrutiny those laws that are not neutral or generally applicable. The Court made this clear in Lukumi, the precedent that the majority opinion in Masterpiece largely relies on.

In Lukumi, however, it was the very purpose of the law that was tainted by religious animus. Namely, soon after Santeria followers—known for practicing animal sacrifice—expressed an intent to establish a church in Hialeah, Florida, the city council enacted three ordinances that banned the sacrificial killing of animals. The city argued that the ordinances aimed to protect the public health and prevent animal cruelty. However, the ordinances banned almost exclusively Santeria rituals. Florida permitted almost every type of animal killing (e.g. for medical research) except for religious sacrifice; even with ritual killings, it exempted the ritual slaughter of animals by some other religions, such as kosher slaughter. It was obvious that the goal of the ordinances was suppression of Santeria religion’s central component. Hence the Court struck it down.

No such situation is present in Masterpiece. Public accommodation laws do not belong to the “purposeful discrimination” category that the Court found in Lukumi. Colorado’s Anti-Discrimination Act (CADA) does not condone discrimination on the basis of sexual orientation by one religion (say Muslims) but not by another (say Jews). The law applies to both home-based bakers and those who have a stand-alone store; it applies to both luxurious restaurants and Safeway stores.

The Court’s Masterpiece analysis, therefore, which subjected a formally neutral law under a level of scrutiny clearly harsher from the extremely deferential rational basis test required by Smith, is a milestone in its own right. It is possible that Masterpiece would amount to an anomaly, but the “gay cake case” could also prove to be an important precedent in future religious liberty cases. Somewhat paradoxically, this largely depends on whether the conservative-leaning Court decides to move away from Justice Scalia’s emphasis of formal neutrality and closer to Justice Brennan’s requirement for substantive neutrality—one that is concerned not only with the purpose of the challenged law but also with its application and effects on conscientious objectors.

Masterpiece, to conclude, ended up being quite insipid, but it did give Smith some bite.


Mission Accomplished! But On Whose Authority, And To What End?

By now, most of you have heard that Great Britain, France and U.S military forces combined to strike three Syrian chemical weapons facilities earlier this morning (about 4 a.m. Syrian time).  The strikes were in response to the reported use of chemical weapons, most likely chlorine gas and the sarin nerve agent, by the Assad regime against its own citizens in rebel-held areas. According to the just-concluded joint State Department and Pentagon press briefing, coalition forces, including surface ships, submarines and aircraft, launched a total of 105 weapon strikes, largely destroying the targets. At this point it is unclear how many, if any, casualties (military or civilian) the strikes inflicted.  Pentagon officials say that prior to the attacks, “deconfliction” channels were used to warn Syria’s ally Russia that the strikes were imminent, although no specific logistical details regarding the timing or the nature of the attacks were conveyed.  Syrian air defenses were deployed but – again, according to Pentagon briefing – the Syrian efforts were ineffective, with some (most?) of their anti-missile launches coming after the targets had been hit.  To this point, there has been no sign of Russian involvement in the Syrian response.

The decision by President Trump to launch the retaliatory strikes immediately raises two important questions.  First, under what authority did he order the strikes?  Second, what was their objective, and was it accomplished?  In what can be considered either a blatant “eff-you” to his critics (and to the gods), or a demonstration of historical ignorance, Trump issued the following tweet this morning:

Donald J. Trump‏Verified account @realDonaldTrump 2h2 hours ago

A perfectly executed strike last night. Thank you to France and the United Kingdom for their wisdom and the power of their fine Military. Could not have had a better result. Mission Accomplished!”

For most of us, of course, the “Mission Accomplished” tagline immediately invokes memories of the banner placed by sailors in May, 2003, on the U.S.S. Abraham Lincoln. That banner served as the backdrop to President Bush’s announcement from the ship’s deck that we had reached the end of “major combat operations” in Iraq.  As we now know, within a couple of years a full-scale insurgency broke out in Iraq which led to the U.S. recommitting military forces.  The “Mission Accomplished” banner became a symbol of a military intervention gone wrong.

While social media had a field day with Trump’s brazen proclamation, it is worth considering what mission he believes the strikes accomplished.  In the days before the Assad regime (allegedly) gassed its own people, Trump had publicly voiced his desire to get U.S. military forces out of Syria – echoing promises he had made (to generally favorable audience responses) during the 2015-16 presidential campaign. The primary reason for military intervention in the region, he argued, was to defeat ISIS and that goal was, essentially, achieved.  However, although the talking heads on cable and social media made much of the seeming inconsistency between Trump’s professed desire to leave Syria and the subsequent air strikes, the reality is that a suspected chemical attack took place between those two events.  It’s worth recalling that Trump’s predecessor Barack Obama, in a 2013 press conference, stated, “We have been very clear to the Assad regime, but also to other players on the ground, that a red line for us is we start seeing a whole bunch of chemical weapons moving around or being utilized.  That would change my calculus.  That would change my equation.” To be sure, a full read of Obama’s remarks suggests the “red line” might have referred to evidence that the Assad regime had lost control over its chemical weapons, instead of marking their use as unacceptable. Ultimately, when Assad did use chemical weapons, Obama argued that the U.S. should take military action, but he also chose to let Congress decide whether to authorize a military response – a choice undoubtedly made with the realization that Congress was unlikely to agree on how to act.  That type of lawyerly reasoning did not endear Obama to everyone, but it did effectively preclude a potential debate over the extent of his war-making powers.

No matter how one interprets Obama’s words, it is apparent that for Trump, Syria’s use of chemical weapons constitutes crossing his own red line, as he made clear a year ago in ordering a limited missile strike against a Syrian airfield used by Assad to launch a previous chemical strike. In this way Trump has decided to push the expanse of presidential power, whereas Obama held back.  So what did Trump hope to accomplish with these latest strikes?  The joint State-Pentagon briefing this morning was instructive.  Both State Department Assistant Secretary for Public Affairs Dana White and the Joint Chiefs Director Kenneth McKenzie made clear in response to persistent questioning that the goal was to deter further use of chemical weapons by the Syrian government.  They consistently refused to engage in any discussion about the impact of the strikes on the Syrian civil war.

Did Trump accomplish this mission? Will the strikes deter Assad from further use of chemical weapons?  The answer to that question will go a long way to determining how one should respond to the second issue I raised above: does Trump have the authority to launch these strikes on his own?  In the aftermath of the latest strikes, as they did after the previous strikes, journalists and pundits have been eagerly parsing the relevant statutes and constitutional provisions to explain why Trump does, or does not, have this authority.  The reality, however, as the late, great presidential scholar Richard Neustadt reminded us in his classic study of the Presidency: “The probabilities of [presidential] power do not derive from a literary theory of the Constitution.”  What Neustadt meant is that a close textual reading of the Constitution, and related statute cannot – by itself – determine the answer to this question, because these texts only provide formal vantage points from which the relevant actors – in this case, the President, Congress, and the Courts, will do battle. The relevant documents do not, by themselves, determine the victor. In this regard, Neustadt was a Hamiltonian; he believed the Constitution, and the nation, was best served by a president who constantly sought to expand the boundaries of his formal powers until he bumped up against determined opposition. As Neustadt put it, “The more determinedly a President seeks power, the more he will be likely to bring vigor to his clerkship. As he does so he contributes to the energy of government.”

To be sure, the Framers of the Constitution could not have anticipated the demands placed on our political institutions by modern warfare.  But the Trump administration’s evoking of its Article II “executive power” to protect national interests as a justification for the missile strikes is a reminder that the Constitution has proved to be a remarkably adaptable document.  Presidents are constantly pushing its boundaries, trying to expand their implied powers, until someone – Congress? the Courts? – pushes back. Some see this as a weakness, and would prefer more clearly stated restrictions on a president’s war-making powers. However, as we can see with the limited impact of the War Powers Resolution, which has never been effectively evoked, beyond compliance with its reporting requirements, it is difficult to legislate limits to presidential power in this area. In Madison’s words, “parchment barriers” (Federalist 48) haven’t proved to be a very useful limit on presidential war making. (If press reports are accurate, Trump complied with the reporting requirements of the War Powers Resolution, at least in principle, by informing congressional leaders, of his intentions to launch military strikes.)

So what has worked? Politics.  History suggests that limits on presidents’ capacity to engage in military action are a function of how well Congress is able to push back against presidential war making, and whether the public, broadly speaking, sides with the legislative body.  And, for better or for worse, that calculus will depend in part on assessments regarding whether the missile strikes were justified, and whether they achieved their goal.  In this regard, Vermont’s Democratic congressional contingent condemned Assad’s use of chemical weapons, but also questioned Trump’s authority to launch air strikes, while not fully repudiating the strikes themselves. This is the type of careful political calculus that the nation’s lawmakers must make in the next hours and days.  Their collective decision, in turn, will provide cues to how the public ultimately responds to Trump’s actions.  But the public’s response will also be conditioned in part by what impact the strikes have on Assad’s use of chemical weapons, as reported by the media.

Trump has acted, citing his Article II “executive power” to protect the national interest. Undoubtedly, some will claim that this is an unprecedented, and thus unconstitutional, increase in the president’s war-making capacity based on an expansive and unjustified reading of Article II.  Others will argue it is entirely consistent with Hamilton’s conception of an “energetic” president leading the War against Terror, based on prerogative powers implied by Article II. Who is right?  It is important to realize that there is no “correct” answer to this as determined by a careful reading of relevant statutes.  Instead, the Framers expected these questions to be resolved through the political process.  Historically, presidents have often sought to expand their prerogative powers to protect the nation, as implied by Article II.   Congress has not always agreed with these efforts, although they have frequently been content to let presidents assert their expanded power, and have waited to see how that power is used, and whether the outcome it is ratified by the public.  As Neustadt put it,”The need of others for a President’s initiatives creates dependence on him. Their dependence becomes his advantage. Yet he can only capture the advantage as he meets the need.”

Has Trump effectively met that need? Has he used his pursuit of power in a way that energizes the government for the greater good?  Let the debate begin!