#1587 The Sad History of Executive Orders
2024-02-19 00:50:40
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Good day, citizens, and welcome to another edition of Listening to America with Clay Jenkinson. I'm David Horton. I have the honor of serving as your host for this edition of Listening to America, and I am thrilled to be here with noted humanities, scholar and all-around amazing individual, Clay Jenkinson. How are you, my friend?
It's great to see you. We're talking by Zoom technology, or Riverside, rather, and it really has changed the world. I didn't know about Zoom until about six years ago, and now I can't live a day without it.
Absolutely, and the amazing thing about it is it makes things possible that would have taken a satellite or a giant production truck or something along that line just a few years ago. It's kind of remarkable.
We wouldn't have been able to do it at all. It would just be too cumbersome. I used to be called by a network, and they'd say, can you get to a studio? This changes everything. You can do it in your bathroom, if you like.
You can do it from a hotel room or from the Taj Mahal, for that matter.
As long as you have a good internet connection.
Which we almost never do, but we make it work.
We make it work one way or the other. Well, this week, my friend, we are in a presidential election year, and it looks like we're going to have a rematch of the 2020 election, but not so much about this year. I think one of the interesting things to talk about as we go through the next several months through primaries and election season is presidential power and what presidential power actually is and what it isn't. You know, so much of our government is based on us having a separation of powers and putting much of the power with the Congress, with the legislature. But today, if we could, I'd like to talk a little bit about that power and also talk about executive orders and what those are, what they were intended to be, and kind of what they've become.
So that's a big topic for us to get into. But can we talk first about the original concept of the founders of the separation of power? Because I think that's an important element to start with before we get into executive order.
David, we were once something called a republic, was based really on the work of Montesquieu, who was a French social theorist and political scientist who wrote a really important book called The Spirit of the Laws in the 1740s. And he was working from what he took to be the British constitution, but also looking back at the old Roman constitution. And he believed that there should be separation of powers and checks and balances so that no one entity of government could control the government, that there would always be another counterweight, if necessary, to check any excesses in that branch. So in our system, as everybody knows, we have three branches, the executive branch, the legislative branch and the judicial branch. The executive has certain powers, enumerated in Article 2 of the Constitution, but they're limited.
And the Congress has other powers and nothing can pass into law unless both houses of Congress pass it. And the president either signs it or allows it to pass into law without objection. But the president can veto legislation and yet Congress can override that veto under certain circumstances. And so each branch checks the other. The judicial branch is meant to stand on the outside and looking in.
And when it sees a violation of the Constitution, as long as it's brought to its attention, they can step in and say, that's not. that's not what the Constitution means. And so the whole idea was that there would be, there would never be, a monopoly of authority and power in the hands of a single person or a single entity in the United States. That, in a nutshell, is the doctrine of separation of power.
And, you know, that has served our nation well for nearly 250 years. But almost from the beginning, the president had the ability to issue executive orders. Although I understand, with Washington, they were just a tiny handful of things, one about Thanksgiving and maybe a couple of about how he wanted his staff to report to him and produce reports. But since then, executive orders have become completely a different animal. And one of the things I'd like to talk about is, throughout the years, what executive orders have been and then what they've been in the last 20 to 40 years and how that's changed the nature of our government.
So can you share a little bit about some of the earliest that you're aware of?
Well, first and foremost, the Constitution does not authorize executive orders. The Constitution enumerates certain powers for Congress, certain powers for the executive, certain powers and limitations for the judiciary. You can read the 4000, some words of the Constitution a hundred times and never find the doctrine of executive orders in it. However, it turns out that the Constitution is silent on a large number of things. And presidents from the very beginning, beginning with the beloved father of our country, George Washington, took it upon themselves to issue these orders as part of their executive authority.
So one can make the case that it's inevitable that there will be some executive authority, as expressed through what we now call executive orders. There have been some 14,000 of them in the course of American history. George Washington had eight. That's quite a lot. You know, John Adams only had one.
Jefferson had four, Madison one, Monroe one, and John Quincy Adams three. The reason that Washington had eight, David, is because he was setting up the government and he needed to have certain procedures and processes in place. And so he then created what he needed to do to govern under the broad grant of authority in the second article of the Constitution. So these were all procedural. None of them were substantive in that they would really affect the lives of average Americans.
And that's really the point I want to make throughout. Executive orders are not in the Constitution, but if we see them as necessary and inevitable, the idea was that they would not amount to legislating by executive order. They would be on procedural things, small things, organizational things, anything of substance, anything that involves money or the taxing of the people or affects the daily lives of Americans should not be under executive order. That is the purview of Congress. In other words, I'm a citizen of the state of North Dakota and also a citizen of the United States.
I want my money protected by my Constitution. And I want to be able to vote for the people who represent me. And they want them to vote on how they will adjust our public life as a people. What we don't want is a single human being, whether it's George Washington or Millard Fillmore, legislating from the Oval Office, as it were. And unfortunately, recently that has become the habit.
And let me just point out that Barack Obama is the one who really articulated this. As you know, he was so frustrated by the Congress that set out to thwart him that he finally said, look, if you won't govern this country, there are things that must be done. Great nations must do certain things. And if Congress won't act, that doesn't mean we don't have to act. And therefore, I will reluctantly issue executive orders.
Of course, everyone cried foul, but he was right. He was absolutely right that things must get done. And if Congress won't do it, somebody has to step in or the people have to get so angry at a do-nothing Congress that they have to throw the rascals out, which they seldom seem to do.
Well, and before we get to the modern era, which I think is a very important distinction, I'd like to continue with our historical view of executive orders for just another minute and talk about Abraham Lincoln, because I think that was a real turning point in our presidential history, in that up to that point, as you said, it had been used fairly judiciously and on matters that perhaps didn't really affect the lives of every single citizen. But with the Civil War, with Lincoln's time in office, things began to change a little bit. Could you explain some of that to us?
So the first really important executive order in American history comes on January 1st, 1863.
. Not that there weren't others of interest, but this was the first big one, and that was Abraham Lincoln's Emancipation Proclamation. It was not a constitutional amendment, although three post-Civil War amendments came. It was not a bill that worked its way through Congress. Using his authority as the commander in chief during a national emergency, Abraham Lincoln issued an executive order which freed all of the enslaved people in states that were in rebellion.
Interestingly enough, it did not free enslaved people in states that were loyal. It was targeted at the Confederacy and the states that had seceded from the Union. This was a gigantic leap forward in presidential power. There are caretaker presidents and there are great and emergency presidents. And if you're Millard Fillmore or if you're James Buchanan, or if you're Gerald Ford, for that matter, nothing much is really at stake, and the country can kind of govern itself using the norms under the constitutional system and the habits that we have formed over the last couple of hundred years.
But in times of great emergency, and this was the first fundamental emergency in American history, presidents sometimes have to step in and do what might be regarded as stretching the Constitution or even extra constitutional activity. But in this case, on January 1st, 1863, Abraham Lincoln issued the Emancipation Proclamation. Every schoolchild knows about this. Most don't know that it was done by executive order.
One other interesting executive order from Lincoln's time in 1861, when he used the power to remove habeas corpus as they were going through elements of the Civil War. So, again, setting the stage for what was necessary in an emergency, but certainly changing the face of the presidency as we know it.
That first executive order on habeas corpus is more troubling because the Constitution overtly prohibits the violation of habeas corpus in the United States, except in times of insurgency. And of course, that was his justification. But any time an executive erodes something that is enumerated and fundamental to the Constitution, that's a big deal. And so this was a highly controversial action by Abraham Lincoln. It probably was necessary to survive the war.
Remember what Mr. Jefferson said, talking about executive power back in his own time, 1801 to 1809.. He said, doubtless, a strict adherence to the Constitution is a very important thing. But guess what's more important? The survival of the country is more important.
And he said, if I have to choose between the survival of the American Republic and a strict adherence to the Constitution, I'm, of course, going to do the right thing, which is to extend my powers in an emergency situation, because to lose the country while adhering to the niceties of the law is an absurdity. And so if Jefferson can say that, I mean, he's our stickler for constitutional commitment and adherence. If he can say that, we understand that there are these moments when either the president perceives that the emergency is so great that he's going to do something extremely unusual, or it actually is an emergency of that sort. And I suppose historians could could debate this forever. Was Lincoln right or wrong?
Probably he was right. The nation survived, and really survived because we had to whoop you Southerners, who were wanting to protect your peculiar institution and your state's rights and your local authority. We survived because we thwarted the rebels.
Very true. But it's also all a part of it in that while this did change the presidency, it did not lead to a series of dictators, nor kings and other individuals the republic maintained. This expansion of presidential power, which is how I'm sure many presidents have evaluated and argued, did not destroy the nation, did not destroy the ability of citizens to participate, nor take away so much power from Congress that they couldn't exist. We need to take a quick break. But when we come back, I'd like to talk about that evolution over the last definitely the last 20 years.
But prior to that, things were beginning to change bit by bit as we went through the 20th century with regard to executive orders. This is Listening to America.
Welcome back to Listening to America with Clay Jenkinson. I'm David Horton, serving as your co-host this week, and we're talking about presidential power and executive orders. In our first segment, we had a wonderful review of some of the earliest eras up to Abraham Lincoln's monumental executive orders. But I would like to continue that discussion of the evolution of executive orders and how they changed with other presidents and how they continued to move forward and and creep up into other things. So, Clay, you know, if you can help us unpack that just a little bit and think through.
that. Well, again, it's so important to say that this is not a power enumerated in Article 2 of the Constitution. This is a power that's been sort of assumed by executives and it's grown over time, and particularly in the last 30 or 40 years, and never more so than now. But I've been, I have a chart here in front of me. So Jefferson did four, by the way, and they were on meaningless things about tariff districts and so on.
And there was nobody over 200 until Ulysses S. Grant, 217, which at the time was huge. Of course, this is just after the war.
Reconstruction.
So these are very important moments in American history. And then it goes down again. And guess who is the first person to blow the thing out of the water? Theodore Roosevelt. Theodore Roosevelt issued one thousand eighty one executive orders.
And I just want to stop there for a moment because I'm a big fan of Theodore Roosevelt. But he was a power hungry man. Thank goodness his values were solid and that he wanted nothing but the best for this country. Roosevelt is a larger than life figure. And in some respects, he brought the United States into the 20th century, sometimes kicking and screaming.
He wanted us to take our place in the world's arena. And we did. He used his authority greatly. And remember, he didn't even have two full terms. He was an accidental president.
So he believed that the country was no longer a simple agrarian republic. Of course, he was right. He believed that we were now an industrial power. And he freely said the Constitution exists for the people, not the other way around. I'm going to stretch the Constitution.
And if the people don't like it, they can impeach me or they can fail to reelect me at the next quadrennial election. So he's really the key figure in American history. And he issued 1,081 executive orders. Taft went down to 724.. Wilson did 1,800, even more than Theodore Roosevelt, if you can imagine.
And then the next big step, and the one that I really want to concentrate on now, is FDR Roosevelt. Fifth cousin, Franklin Delano Roosevelt, of course, presided over the two greatest crises of the 20th century, not only the Great Depression and the Dust Bowl, but also America's entry into World War II after Pearl Harbor. And so you can imagine that executive orders became more important during the Roosevelt administration. And of course, you know, the big one.
Absolutely.
Interment of Japanese people in the United States by executive order. It was later upheld by the Supreme Court. But he issued an executive order which allowed us to create effectively what were concentration camps, many on the West Coast, some of them in the heart of Wyoming and so on. And people of Japanese descent were rounded up, put into these camps. They were not, you know, this is not Buchenwald and Dachau and Auschwitz.
But nevertheless, these are camps with watchtowers and concertina wire and armed guards, and nobody comes and goes without permission. This is one of the most controversial things that FDR ever did. We now cringe, really, when we think about it. But at the time, it seemed essential. And so this was done, not by Congress, but by the president of the United States through his use of the executive order, which tells you how much power really exists in the presidency when a president wants to use it in the time of international or national emergency.
And I think that's a real lesson to all of us. between that order and Lincoln's habeas corpus order. We've kind of set the stage for one individual in one office being able to change the course of life for almost every American.
We could talk all we want about due process, but there are moments when the perception of emergency is so great that presidents feel they must step in. Now, here's the problem with that. FDR did this in the context of what was going on. We sort of accept it, even though we don't like it very much. But really, I mean, don't you think, David, that something of this magnitude really belongs in Congress?
It belongs in the two houses of the body of people who legislate for the whole country.
At the very least, a consensus, a debate, an opportunity for opposition to really voice its opinion and for us to consider all the potential downfalls. Absolutely. I think the problem you run into is when crisis is present, people tend to lose their respect for the process, the government that we have, that has persevered for centuries, and tend to let fear be the thing we should fear, to steal a phrase. But I think that's the problem, that through fear, we are allowed to do those things that may remove the rights of citizens and may dehumanize people. So it is a very scary thing.
Absolutely, that should be debated. And absolutely, if a consensus can't be found, then you're in a very different place. If four or five hundred Americans can't come together to say, no, I think this is right, it may not be.
I agree with all that you have said, of course. But, you know, Theodore Roosevelt said in a moment of lightness, it would be so much easier to govern this country without Congress. You know, if you've watched the Senate and House debates lately, or really any time in American history, it would get you failed in any middle school debating society in the United States. So sometimes things are too important to let Congress handle it, because you know what's going to happen when that occurs. And so this is one of the points I always try to make, David, when you think about America, you think about your civics education when you were in grade school.
That's what you read. And then you actually watch the thing. And it's what Otto von Bismarck said. Nobody really wants to see the sausage being made, because it's not a pretty picture behind the curtain.
Well, it's the best and the worst thing about democracy at the same time. I mean, that's the problem with a representative republic. That's the problem with having something that's non-dictatorial, non-authoritarian. It does allow for that kind of chicanery to take place. But at the same time, it's the worst possible way to govern, other than every other possible way to govern.
There you go with channeling your Winston Churchill again. Just remember the senior senator from Oklahoma who, not so many years ago, held up a snowball on the floor of the United States Senate and said, there's your global warming. That's the standard of debate and evidence and science in Congress today. So I get it. And you sort of don't want one person doing this.
That's the whole nature of Montesquieu's belief that the will of the people cannot ever be embodied in a single person.
And let's come back to that when we get to the period post-September 11th, 2001.
. I don't want to jump ahead that far yet, but that's a time where we need to talk about that. Let's talk about Truman first and continue on with our 20th century journey of American executive orders.
So again, of the thousands of executive orders, most of them are neither here nor there, but some of them are monumental. And Executive Order 9981, issued in 1948, is amongst the most important in our history. So, you know, the history of the United States is the agonizing tragedy of race relations. Slavery built into the Constitution, slavery perpetuated by the founding fathers, including Thomas Jefferson, slavery perpetuated in the American West, with the Missouri Compromise and so on. Slavery in the West becoming the basis of the Civil War.
Reconstruction foiled by racism after the war. You know, African-Americans have served in all of our wars, including the Civil War, but usually in segregated units, often treated very badly as servicemen for the United States and women. Afterwards, Harry Truman, who was one of my heroes, thought, you know, no, no, we can't, we cannot go on this way. People that have served this country that well should not be in a segregated class in our armed services. So Executive Order 9981 ordered, quote, there shall be equality of treatment and opportunity for all persons in the armed services, without regard to race, color, religion or national origin.
In short, he desegregated the U.
S. military. And David, it worked, not perfectly, but by mingling African-Americans and white Americans and Hispanics and others and having military rigor to prevent chaos, these peoples began to get used to each other and to find out that color is not the most important distinction in American life. And the military has been one of the one of the places of racial progress in the United States. It led the way.
And the other, surprisingly, the other entity is sports. Sports and the military have been the integration forces chiefly in this country. And so that's worth really respecting and honoring. But I give the greatest credit. It was highly controversial what Truman did, and it nearly cost him reelection.
And let's talk about that.
There should be equality of treatment and opportunity for all persons in the armed services, without regard to race, color, religion or national origin. That's presidential leadership. And yet again, you sort of hope Congress will do this.
And it sets the stage for the next four decades of civil rights action in this nation.
Yes. So all hail. Harry Truman, accidental president. Now he becomes the president on April 12th, 1945, on the death of FDR, who was down in Warm Springs in Georgia. That day, as you know, the new president learned of the Manhattan Project for the first time.
He was as a U.
S. senator and vice president. He was unaware of the Manhattan Project. He had to make the decision to use the atomic bomb within weeks of becoming an accidental president. He said to the reporters who were there that day, April 12th, 1945, he said, fellows, you ever had a load of hay fall on your neck?
That's how I feel right now. And so, but you know what? He rose to the occasion. He wasn't always perfect, but he took responsibility. We all know the famous cliche, the buck stops here.
He was bold. He did the right thing, and he did the right thing when it was unpopular. And we had a conversation about this a few months ago, and one of his friends said, you're a southerner. Don't do this. You know, we don't really want to live with these people.
And Truman wrote back and said, I'm going to do the right thing if I'm a one term president. That's it. We don't see that kind of leadership very often today. And it takes that kind of leadership to break through on these fundamental questions.
And, you know, interestingly enough, and I've thought about this a lot, if the stage that was set, beginning in 1948, had continued down a path similar to the era of the 1850s, who knows? He could have been the president that sort of set us on a path to a second civil war as we went through civil rights and desegregation. And it might have been viewed very differently that since this didn't come from the people, that the nation wasn't perhaps prepared for it, and that making that choice, which in hindsight was exactly the right choice at the time, could have set the stage for the second civil war in our nation. So I think that's part of the risk with that type of leadership. And that, again, is where the founders saw the importance of having the buy in, of having the consensus of a Congress, because in some ways, while it may not get everything done as needed, it provides that support that is so needed from the citizens and the states and everyone else, ultimately, if a decision can be made.
But I don't disagree with you. I think that was probably one of the most monumental executive orders of the entire history of our nation. And, as we said, certainly set the stage for civil rights throughout the 50s, 60s, 70s and into the current era. As we continue through the rest of the 20th century, executive orders continue to play a role.
Let me just name two easy ones before we take a break. Not easy, but less grave, let's say. Dwight David Eisenhower, the hero of World War Two and D-Day, issued Executive Order 10730.. This was 1957.. And what he did was to direct the Secretary of Defense to federalize the National Guard units in Arkansas to make sure that the Little Rock Nine were able to attend Little Rock Central High.
And this was, of course, a deeply divisive and controversial order. As you know, the Southerners at that time, in the Deep South particularly, did not want to integrate. They fought this. Segregation now, segregation forever, said George Wallace in Alabama. This was a really sad, ugly, dark time in American history.
The agonizing work that we had to do to integrate our school systems. And the North had plenty of problems with this, too. Just look at Boston's agony over integration a little bit later in the 70s. But this was 1957, and Eisenhower sent those troops. Many of those troops were very unhappy to be federalized.
in this case. It does raise problems of the 10th Amendment and local sovereignty, state sovereignty. But he did it, and we now know that it was the right thing to do. Somebody has to be the pioneer. Somebody has to be the James Meredith.
Somebody has to be the Ruby Bridges in New Orleans. Somebody has to be the person who takes the heat, surrounded by U.S. Marshals, many of whom are not on board with these decisions. But they performed their duty as good citizens of the United States.
And I'm not sure that's an order a President Truman or a President Kennedy, or a President Nixon, shall we say, could have issued because Dwight Eisenhower was in a unique position and with a unique level of respect in this nation during his era to be able to do that. Can you speak to that just a little bit?
He's a hero, of course. And so, you know, we always. the cliche we always use is that Nixon and Nixon alone could open our relations with China in 1972, that it takes a person of a certain political persuasion and stature to have the authority to get away with doing something. that's highly controversial. So if this had been George McGovern, you can imagine that that would not have been an acceptable executive order, that there would have been more chaos.
But when it's Dwight David Eisenhower, the man who saved the world or helped to save the world in 1944 and 1945, people respect the military. They certainly respected him. He was beloved. Of course, hundreds of thousands, even millions, of Americans had been involved in the war. And so he was their commander in two senses.
He'd been the commander in the European theater, but he was now the commander in chief. And for him to do this was less appalling, still appalling, but less appalling to many people because of his stature.
And I would say that the troops that he had to command to do this responded differently than they might have responded to someone who had not been the supreme commander of the military during World War II. So I think that's all a big part of it. So I gave him a raise. I gave him a title.
Who was it in South Carolina, a U.
S. senator who said that Bill Clinton should probably not come to any of the bases in South Carolina because he was a draft dodger? I mean, just think of the ugliness at times of the American spirit.
It can be. Now, one more executive order before we take a break. What was the other one?
This is a fun one. This is a great one, and a fun one and a harmless one. But John F. Kennedy issued Executive Order 10924 in 1961, one of the first things he did creating the Peace Corps. He wanted a Peace Corps.
He was afraid that it would get tied up in Congress. He thought, I'll get it started. Once it started, they'll see the usefulness of it and then they'll fund it, which is exactly what happened. He issued this executive order right off the bat after his inauguration. It captured the public imagination.
A generation of young people participated in the Peace Corps, still do. There are some issues with the Peace Corps, but on the whole, it creates people with a strong sense of global possibility, young idealists, people doing selfless work in difficult places for a couple of years of their life. I have almost unlimited respect for the Peace Corps, and I'm glad that it was John F. Kennedy who did it. It wouldn't be quite the same if it had been Lyndon Johnson or Dwight Eisenhower or Harry Truman.
In his great inaugural address, Kennedy said the torch has been passed to a new generation of Americans born in this century. He wanted to empower youth and that generation, the Kennedy idealists, are just now beginning to pass out from the scene. And with it, there's a loss of that particular moment, the new frontier idealism that was so important to the Kennedy legacy. So I love that one. And, you know, this is not a very dangerous one.
I suppose he was appropriating money, but he had to use the monies from existing Defense Department accounts. He couldn't spend money without a congressional authorization of some sort.
He couldn't create a tax for the Peace Corps. So interesting thing about that, though, I always have contended that without Kennedy's untimely passing, the Voting Rights Act and many elements of the civil rights movement likely would have been challenged to be passed through Congress. So in my opinion, and maybe I'm very uninformed, had Kennedy lived and had a second administration, some of those things might have happened in the form of executive order. Who knows?
Maybe, I don't know, but I think you're right in your larger point that the death of John F. Kennedy on November 22nd, 1963, I remember where I was. You're too young. That's one of the pivotal moments in the history of the United States. Johnson wisely understood that his duty was to protect the vision of President Kennedy.
Kennedy's programs were stalled. They probably would not have been passed. Johnson forced them through. Amazing that he was able to get away with it, the Civil Rights Act, the Voting Rights Act, this 1964, 1965.. But a large part of it, David, was the legacy and martyrdom of John F.
Kennedy in Dallas. Without that, we would have gotten there at some point, but not nearly as quickly and not nearly as dramatically as we did with Johnson.
And again, without consensus, perhaps. That's always the challenge that you have when you try to get through Congress. We have taken a great journey through a couple of hundred years. at this point. Two quick little notes before we take a break.
I thought it was very interesting, as we were doing some research for this episode. President Bill Clinton had the high watermark for the post-Truman era with 364 executive orders. And while there were crises, certainly it wasn't an era of crises like Truman experienced, or Eisenhower, or even looking back to the Roosevelts. And then the most prolific president over a four-year period, Jimmy Carter, averaged 80 executive orders per year. And so quite prolific in what they tried to do from the Oval Office.
We'll come back to executive orders in the 21st century and the modern era when we return to Listening to America.
Welcome back to Listening to America with Clay Jenkinson. I'm serving as your co-host. I'm David Horton, and I'm honored to be here this week as we review two and a half centuries of executive orders in American history. And we are now up to the dawn of the 21st century. And one of the things I'd like us to begin this section of the program with is looking at the actions of September 11th, 2001, and what followed with the executive branch and the Bush administration.
9-11 is one of those pivotal inflection moments in American history. We all, you are young enough to remember where you were on that day. We didn't know whether this was the first wave and more were coming. We're pretty sure now that the fourth plane was heading towards the Capitol. Thank goodness that was thwarted by heroes who rushed the cockpit and landed, crashed that plane in Pennsylvania.
I remember George W. Bush, a young, untried president, being flown around on Air Force One, winding up in Offutt, in Omaha, and not clear that he wanted to go back to Washington. Security. people did not want him to go. I mean, this was a terrifying moment in American history.
And on the basis of that, we wound up doing the things that you think you have to do to survive. Some of which, when we look back on now, are really upsetting and more than cringeworthy. They're deeply troubling for anyone who loves the Bill of Rights and the Geneva Conventions and so on. We're talking about executive orders, but almost immediately after the attacks, the Patriot Act was passed by Congress. It's a long, long, long bill.
It had been on the shelf. In other words, it had already been written, most of it. And it was just dusted off when this emergency came. That really troubles me. It troubles me that, somewhere in government, all these things had already been kind of contemplated and worked out in their details.
And once this crisis happened, I'm not saying that it was a conspiracy, but once this happened, this really corrosive bill for human rights, which still, I think, was a mistake and is a mistake, it's dusted off and passed by the Congress. At least that's Congress.
But I would argue, too, that Executive Order 13224, which was the state of emergency following September 11th that the president issued, set the stage for that and also probably told Congress, you're either going to do this or I'm going to do this. And behind the scenes, more likely than not, that's where they said, listen, we've got this in place, where we can make it happen quickly. Let's pass this, or else the president's going to have to do it through executive action or something along that line. Again, that's some supposition on my part, but that executive order really set the stage for everything that followed.
Including, of course, enhanced interrogation techniques, what would, in common parlance, be known as torture. The idea of the unitary presidency, which aids to G.W. Bush, but people that have been around on the neocon side of the equation for a long time were itching to do. The idea that, effectively, there is no limit on presidential authority, particularly in times of emergency, that, that the idea that there are any real limits on executive authority, these folks were arguing is erroneous, and that the presidency is inevitably a dictatorship at times, and that that's okay. That's necessary.
And that any attempts to erode the powers of the president are dangerous to the national security of the United States. I remember that debate. I don't agree with it. I don't, I certainly don't agree with the unitary concept of the presidency and look where it's gone now, in the hands of Donald Trump. But all this was part of the kind of panic and the sense of terror and our concern about whether an even worse attack was coming.
And so the United States of America, a signatory to the Geneva conventions, engages in enhanced interrogation techniques and rendition, sending suspects to other countries that are more willing to torture. This is a shameful moment in American history. I suppose you can say these things happen, but here's my concept of us, David, you tell me if I'm wrong. We're America. Therefore, we should bend over backwards, always to avoid this sort of thing.
We're better than that. That's what we like to think. We're better than that, and that we are. It's baked in the cake. It's baked in our American ideal.
It's baked in the Constitution. But fear, once again, back to fear, that will enable just about anything to take place. And I think that's an incredibly important lesson for us to take from each of these executive actions that have eroded the rights of citizens of this nation, of the world really, and have eroded the American ideal to some extent. But you're exactly right with all of this. This is something we should look at and study.
And, granted, it has only been a few decades, as opposed to 60, 70, 80 years ago as some of the others. So we're still processing and unpacking some of the consequences of those time periods. But, having said that, as we move forward, we've got to keep these things in mind, because presidential authority with executive orders only continues to be a part of our lives. And the Obama administration had quite a number of executive orders, although nowhere near a Harry Truman or near a Wilson or Roosevelt.
It is true that President Obama issued 276 executive orders, but G.
W. Bush had issued 291 and William Jefferson, Clinton, 364.. So Obama has sort of pointed out in conservative circles as the guy who used the executive order. He used a lot of them, but not as many as G.W. Bush and Bill Clinton, for example.
President Obama did feel the need to enact executive orders, as he had such opposition within Congress at the time.
But Congress is entitled to do that. I mean, if Congress wants to prevent the executive from acting, they can do that. Of course, he did what he thought he had to do. But I'll say this, you know, I lean a little more on the on the left side than the right, but I'm a centrist. But when Barack Obama, for example, did DACA, that's a very, very, very important thing to do.
That's grave. You know how people feel about immigration. That's why we're kind of coming undone at this moment. For a president to do that with his pen, when the Constitution does not authorize a president to make decisions of that magnitude unilaterally, those are the things that belong in the legislative branch. When he did this, I thought if we were a republic, he would be checked and maybe impeached.
Of course, he's not alone. Those before and after him do this, too. But I was really sorry to see this happen, however necessary it might be, because once you get down that path, Donald Trump is inevitable, frankly.
And I think one of the biggest challenges is what happens to all of these folks who, by all accounts, became American citizens when they were either born here or brought here as children, are deported and are deprived of their citizenship or deprived of their rights. So in some ways, sort of the opposite of some of what we worried about with Truman and with Lincoln, of taking people and depriving them of their freedom, but keeping them here. But how do you address it when you deprive people of their American experience? And that's part of the challenge. And you're not wrong in that Congress really should be the place where this is debated and decided.
But is Congress functional enough to do that? And I think that's what we say with almost every one of these executive orders. You bring up an interesting point. It does set the stage for other presidents to do things their way.
Now we have the yo-yo effect that's been in place now for a couple of administrations. So a Democrat president does X by executive order. Republican president undoes all those executive orders on day one and does his own. Next president undoes what was just done and returns to something previously. We see this with Bears Ears and Grand Staircase, Escalante, National Monuments in Utah and so on.
No way to run the ranch. Let's put it that way. And it's not only bad constitutionally. It's not only bad from a policy point of view. But, as you say, there are human victims of this.
People are being used as pawns in nakedly partisan political divisions which show little or no respect for the actual human beings who are, who wait every day to know whether they're going to be arrested and deported. I get it. I mean, none of us should be in favor of illegal immigration. But to play with human beings in this way is an appalling and obscene thing. And I'm sorry to live in a country that does this.
And both sides are doing it now. But this is cruel. It's appalling. And we need a constitutional revolution to prevent this sort of thing from happening.
So that sets the stage. And we come into the Trump administration. We end up in the Biden administration. And then we come to today, where we're in a presidential election year and executive orders have been talked about in terms of elect me, and these things are going to happen. Elect me, and something else might happen in a totally different way.
Just as you mentioned, the yo-yo effect. How does that make us feel as Americans? How does that affect us in terms of an electorate? And how? how do we approach this as we move forward?
Well, frankly, it makes me sick to my stomach. And I want to be nonpartisan here. I think Donald Trump is a is a norm breaker and a deliberate disruptor and in some respects, a nihilist. And so, because he says all those things, I think I can say them here without being too partisan. But he's by no means alone in all of this.
And of course, he's in many respects a figurehead for a certain ugliness that's percolating in the American population these days. I think we need a constitutional amendment on this, on executive orders that says something like this. No executive order shall be permissible if it has the following implications. If it involves more than a hundred thousand people, if it involves the spending or the redirection of of taxpayer money, if it hasn't been vetted with a panel of some sort. I think if we had a check and balance on the executive orders, we would be in both better and worse shape, better shape because we wouldn't be in this sort of continual constitutional crisis, but worse because what Obama was wanting to do was to protect the innocent children who had been brought here by their parents through no fault of their own, and so on.
So so here's the deal. We are a post small, our Republican nation with an 18th century constitution that has only been amended 27 times and and not recently, not since 1992, pretending to be a constitutional republic. That's what happened to Rome. I spent a lot of time working on this and interviewing people. And the question is, are we Rome?
And in many respects, we're not. But in some we are. Rome began as a city state and its constitutional system was designed for a small agrarian city state. Soon, Rome was the hegemon of the world, trying to govern itself with that old, small, our Republican system. And it didn't work.
And so it led to civil war. We are in this point where the constitution is essentially broke, and we were afraid to admit it. Americans are conservative, small c conservative with respect to the constitution. We always talk about the founding fathers with capital F's and the original meaning of the constitution. That's all nonsense.
We're trying to govern ourselves in the 21st century, not in the three mile per hour world, but in one that travels at one hundred eighty, six thousand miles per second in a very, very dangerous and volatile world, with an instrument created by men in tights and buckled shoes and wigs. It's absurd. And the strain is so much that every president is now deserves impeachment, because every president now violates the provisions of the three most important articles of the Constitution of the United States. That's where we are, and why we won't admit that and step back and redesign the thing for the exigencies of the 21st century. I just don't know.
But it's killing us. It's killing us. And we are ungovernable because of it.
Well, let me make this argument. Who would lead that charge? Because, more likely than not, you would need a Washington or maybe a Jefferson type figure, or even a Roosevelt. Well, that person who gets the presidency is not going to voluntarily say, I think my power needs to be less. I.
I think we've got to return power to the people. And we've talked a lot about a Congress trying to debate a particular subject, much less a constitutional amendment. in today's environment. How in the world would we be able to get the majority needed to have a constitutional amendment? Do you see any way forward?
Yes, but it doesn't look good. Jefferson said they're not going to reform from within. That never happens. You go to Congress and tell them to limit terms or to redistrict along strictly scientific lines. So Jefferson said, you know what?
This is in his letter to Madison from Paris. You've got to tear up the Constitution from time to time. If you tear up the Constitution from time to time, sure, it's a little chaotic. But that's the only way you can break through. So here's what I want to do.
And I know it's not going to happen. 2026 is coming, David, the 250th anniversary of the United States. The best gift we could give ourselves is not fireworks. The best gift would be to have a non-binding constitutional convention. There are ways to do this and have that group sit in isolation for a couple of months and to produce a more perfect union, to solve the problem of, say, cloture and the filibuster and the electoral college and the pardon clause and the emoluments clause, and to make a run at what the Second Amendment should look like in the age of the age of 15 and so on and so forth.
And then to publish that and present it to the American people and say, this would be better. This would be better. And to have the best constitutional scholars and historians involved, people of every color, every background, every religion, every ethnicity, every demographic to be involved. You've got to make it fair. Remember, the 55 founding fathers were all white males of a certain property base.
That makes no sense. So we could do this. We have the algorithms, as you know better than anybody, because Radford is an algorithmic place. We could design that constitutional convention. Whether we keep secrecy is another question.
But if they produced a more perfect union and said, this works, the one you have doesn't, at least. that's a talking point. That's a national conversation. And I think it would be the greatest possible gift to ourselves for July 4th, 2026.. I'm ready.
You know, Pee Wee Herman is not here anymore. You know, we don't have the kind of statesman we're looking for, but we need to do this. And if we don't do this, it's, I promise you, it's going to be one constitutional crisis after the next for the rest of your life.
You bring up a very interesting point with that, that 2026 affords us an opportunity to reflect and to try to begin to become the best versions of ourselves in the 21st century. And it also sets the stage for the presidential election of 2028, where this type of thing could be debated and determined, along with what leadership we were to select. It's a big, big task, a big bite. As we move toward 2026 and as we consider these things as Americans, how do we begin to take small baby bites of this great, big bite?
Well, number one, everyone should read the Constitution. It can be done in 45 minutes. It's a document of about 4000 words. It's pretty clear. And if you read it, I think you will think, whoa, we strayed pretty dramatically from that.
In other words, we've left civics to rot in our schools and our school systems. And young people don't know what country they live in, really. They can't name the three branches of government. They can't name their vice president. They can't name their U.S.
senator. They don't know how a bill is passed. They don't know what an impeachment is. They don't know what an emolument is. So we're not.
we're not doing what a democracy must do, which is to train each generation to understand what's at stake. And clearly we fail. Look, look how we've let ourselves begin to circle the drain. here. I mean, we the guardrails barely held in 2020, not clear their hold in 2024..
We are flirting with national collapse. I don't think we will. I think we muddle through, but we need to re-engage civics. That's doable. We need to start reading books again.
I know I'm not just sounding like a ridiculous utopian, but we cannot, you know, Jefferson said this, if you expect to be a nation ignorant and free, you expect something that never has been and never can be. We are testing that proposition. We are a nation ignorant and not any longer really free. And the things we fight about, whether Taylor Swift is trying to destroy the by dating Mr. Kelsey, these sorts of things that actually get mileage, that the Democrats are running a sex trafficking ring in a pizza house in Washington, DC.
These things have millions of adherents. There are millions of people who believe things that are so nonsensical that it makes you guffaw or weep. We have got to recover and we can't recover going down the path we are currently on, it's just getting worse, but to suck it up, and that's going to require discipline. Every parent, every professor, every institution, uh, every political figure, we need a new onset of idealism. The last time we, the last two times we really felt it in my lifetime, where JFK 1960 and then Ronald Reagan, 1980 different visions, but both of them trying to call Americans back to a higher sense of our, our place in the world and our duties as responsible citizens.
that hasn't happened for a while. Who's the, who's that figure? Who's the Kennedy-esque, Reagan-esque figure of our time? Who's trying to lift us to a higher regard for what's left of our republic? I don't see that person.
Clay Jenkinson for our inspirational leader of tomorrow, president 2028.
. I see it now, the headlines wrote large and we will move forward, but you're exactly right. Without this focus on our civic journey, without the look at who we are and the reflection, how can we move forward? And I'll offer this one way is this little community that participates in listening to America, and we have these discussions and we have these forums to begin this conversation.
And you know, David, I'm coming your way. I'm going to be traveling the country with my Airstream. I'm going all over this country for the next five or six years, listening, listening, listening. And I want to really talk about this with people like what, what would it take to restore America? What would it take to, to create a more perfect union and to live according to a set of rules so that we're not in a continuous constitutional crisis?
You know, it's easy to beat up on Donald Trump, but he's really a symptom of the disintegration of America rather than the leader of that. But his, his vision is a nihilistic one. And we need the vision to be hopeful and progressive in the best sense of that term, not liberal, but progressive.
And thank you, my friend, as always, our journey continues. And this is Listening to America with Clay Jenkinson. Until next time, farewell.
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