Takeaway 1: The state attorney general’s office is one of the most powerful spots 
from which to check executive power.

Multiple speakers made the case that state attorneys general wielding the power of lawsuits have been the strongest check on executive power in recent years. Sometimes, these lawsuits are designed to overturn a federal policy — take the Washington attorney general’s suit against the Trump administration’s first travel ban. Other times, they’re designed to force the federal government into action. Either way, attorneys general of the states are filling a vacuum left by an ineffective Congress and cautious judiciary.

“It wasn’t this way 40 years ago,” Trevor Cox, the acting solicitor general of Virginia, said during panel remarks, “and we don’t know where it’s going to go next.”

In a morning talk, former Virginia attorney general Mark Earley pointed to the 1998 tobacco settlement, growing money in attorney general races, and increased partisanship among attorneys general as contributors to their rising influence over the last three decades. Over this period, attorney general candidates increasingly began “coming to office with a national agenda,” he said.

The states’ power to challenge federal policy increased dramatically with a 2007 Supreme Court decision that gave states broad standing to sue the federal government. The case was about whether 12 states, led by Massachusetts, could force the Environmental Protection Agency to consider carbon dioxide a pollutant for purposes of emission standards under the Clean Air Act. But first, the court had to rule on standing. When it did, it ruled very broadly, writing that states, as “quasi-sovereign” petitioners, are “entitled to special solicitude in our standing analysis.” The floodgates were open.

During the Obama era, Republican attorneys general used this “special solicitude” to sue the administration over everything from EPA regulations, immigration, and the Affordable Care Act. When Donald Trump took office, “we move to the Indy 500,” Earley said, with suits from Democratic attorneys general over policy changes in these very same areas, but with different arguments for different resolutions reflecting different political positions. Perhaps no one captured this new breed of attorney general better than Texas attorney general Greg Abbott when he described a typical workday during a 2013 speech: “I go into the office, I sue the federal government, and I go home.”

The president is often not the only one perturbed by the actions of state attorneys general, said Jonathan D. Shaub, one of the panelists with Cox. He pointed out that in Tennessee, where he is an assistant solicitor general, the state legislature recently instructed the attorney general to file suit against the federal government, and the attorney general refused. In response, the legislature went around the attorney general and hired a private firm to sue on behalf of the state.

'The executive power shall be vested in a president'
President Barack Obama signs Executive Order "Improving the Security of Consumer Financial Transactions," at the Consumer Financial Protection Bureau in Washington, D.C., 2014 (left, official White House photo by Pete Souza); The Supreme Court of the United States (right).

Elbert Lin, a former solicitor general of West Virginia and also a panelist, described the states’ growing use of lawsuits against the federal government as “a good development for the nation” because it reinforces the separation of powers between the states and the federal government.

“States have a role to play in keeping the feds from intruding on states’ rights,” he said. He also contended that there are some arguments only states can make.

Other speakers had more mixed views. During a Q&A session, one panelist noted that presidents are left in a bind: “When the president is making a decision, he will be sued either way. If every policy decision is challenged by one or more states, that’s a real problem.”

Earley, Virginia’s former attorney general, pointed out that lawyers in both the Obama and Trump justice departments have argued for changing the standing rule established in the 2007 EPA case. The Supreme Court, Earley added, may be disinclined to do so out of fear of being drawn into partisan politics.

But the long-term rise of state attorneys general has been undeniable. “There are two ways to view this — glorious or disastrous,” Earley said. “Either way, the AG’s office is one of the most powerful spots from which to check executive power.”

Takeaway 2: We’re still arguing over what the framers of the Constitution would think about the modern presidency’s powers — and over whether it even matters.

A panel on the constitutional definition of executive powers focused on the merits of originalism as a strategy for deciding cases. This approach to legal interpretation focuses on strict adherence to the text of a law as it was understood at its time of passage, a philosophy associated with Justice Antonin Scalia. The panel was moderated by one of his former clerks, Richmond Law professor Kevin Walsh.

Originalism “has played almost no role” in the court’s decisions since the middle of the 20th century, “and that’s good,” argued Eric Segall, a law professor at Georgia State University. “We don’t care what happened in 1787, and we shouldn’t care.” 

He argued that the views of the Constitution’s framers are today not only irrelevant, but unknowable. “What was the original meaning of liberty in a society where women couldn’t vote?” he asked. “I don’t know; we don’t know; we can’t know; and we shouldn’t pretend we can know. The executive branch today is something the founding fathers wouldn’t recognize.”

Tuan Samahon, a law professor at Villanova University, dug into modern examples that blur the lines between the executive, legislative, and judicial branches of government in ways that the framers did not foresee. He pointed to the 1991 Freytag case, which turned on the question of whether the U.S. tax court was an exercise of executive, legislative, or judicial powers. He also pointed to other ways in which the executive branch exercises quasi-judicial and quasi-legislative powers, such as Obama’s circumvention of Congress with his executive order on Deferred Action for Childhood Arrivals, or DACA.

“How should courts interpret administrative law?” Segall asked. “I don’t know, but I know going back to 1787 isn’t the answer.”

How should courts interpret administrative law? I don't know, but I know going back to 1787 isn't the answer.

Takeaway 3: Limits on the president’s ability to control or fire subordinates checks his power as the nation’s chief executive.

The Constitution grants the president the power to appoint high-level officials, but it is silent on the power to remove them. This asymmetry sometimes leads to disagreements. When President Andrew Johnson defied congressional objections and fired a Lincoln-appointed cabinet secretary, the House of Representatives responded with articles of impeachment. More recently, President Donald Trump’s dismissal of an FBI director prompted the Justice Department to appoint a special counsel that is reportedly looking into, among other issues, the legality of the dismissal.

During a panel talk, Aditya Bamzai, a professor at University of Virginia’s law school, gave a single-word answer to explain why the president’s ability to remove subordinates is important: control.

Congress, the courts, and the executive branch have tangled throughout our history over the president’s ability to fire, he said, pointing to debates over the Foreign Affairs Act of 1789 and court decisions in the 1930s that limited the president’s ability to remove executive officers with quasi-legislative or quasi-judicial functions.

Bamzai also mentioned a 2010 case involving a board created by Congress as part of the Sarbanes-Oxley Act, which regulates the accounting industry. Plaintiffs argued that the creation of the board and the appointment of its officers were illegal because members of the Securities and Exchange Commission, not the president, made the appointments. The court ruled unanimously on the board’s legality and method of making appointments, but it split 5-4 on whether the president could remove board members. Chief Justice John Roberts, writing for the majority, referred to Harry Truman’s line, “The buck stops here.” If the president were denied the power to remove subordinates, he “could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.” Justice Stephen Breyer read his dissent from the bench, arguing the holding was far too broad, “sweeping hundreds, perhaps thousands of high-level government officials within the scope of the court’s holding, putting their job security and their administrative actions and decisions constitutionally at risk.”

Breyer had in mind administrative law judges, military courts, and other courts not established under Article III of the Constitution, which establishes and defines the judicial branch. Hank Chambers, a Richmond Law professor who spoke on the panel with Bamzai, added the president’s supervision of the Justice Department to the list of concerns.

“So what do we do with prosecutorial discretion?” he asked. “Can a president engage in prosecutorial discretion — for example, [can he] decline to pursue marijuana cases? If so, can a president exercise granular decision-making in particular cases, as he does with pardons? If a president wants to end an investigation, can he?”

During the question-and-answer period, the discussion got even more specific and nuanced.

“Suppose the president said, ‘I’m going to pardon myself or tell prosecutors not to prosecute the sitting president under any circumstances’?” asked Jonathan Stubbs, another Richmond Law professor.

For the panelists, these were uncertain waters. “Whether a president can pardon himself or herself is a fundamentally interesting question,” Chambers observed.

Takeaway 4: Congress isn’t well-positioned to restrain presidents.

“Congress is not up to checking the president,” Neal Devins, a law professor at William and Mary, declared at the beginning of the day’s final panel.

The reasons he gave were largely structural. “By virtue of pursuing policy, the president is always pushing,” he said. “With Congress, there’s a prisoner’s dilemma. They all might benefit from collective action, but each individual has reasons [to pursue individual agendas]. There’s not much in it for them to assert congressional power.”

Polarization exacerbates these tendencies, he added, making Congress “unable to assert itself. … This creates opportunities for the president to fill the void.”

Fellow panelist Michael Gerhardt, a law professor at the University of North Carolina, offered his view that some constitutional structural features inherently impede presidential power: the separation of powers, for example, which he described as designed to make things difficult.

“Usually, what you get from the lawmaking process is nothing,” he said — inaction that frustrates presidents as much as members of Congress.

“If you think of Congress as weak and ineffective, ask yourself why the president is so annoyed,” he said.

Impeachment is another process that “is supposed to be very hard,” Gerhardt said, pointing out that the House of Representatives has impeached only 19 people in its history, including three presidents. Bill Clinton, who was impeached but not removed from office, and Richard Nixon, who resigned when his impeachment was imminent, both faced charges of obstruction of justice. Based on publicly known facts, President Trump’s conduct in the Comey affair likely falls “between them,” he speculated. “The question is, which is he closer to?”

'The executive power shall be vested in a president'
Protest at John F. Kennedy International Airport, Terminal 4, in New York City, against President Donald Trump's executive order signed in January 2017 banning citizens of seven countries from traveling to the United States (photograph by Wikimedia user Rhododendrites, CC by-SA 4.0)

A senator’s view

A few days after the symposium, Virginia Sen. Tim Kaine came to campus to offer his thoughts on the Constitution. Kaine, who has taught intermittently at the law school since 2010, described Richmond Law as familiar turf and said some of his “most intense memories” were formed where he was speaking, in the moot courtroom. He recalled renting it during his years as a civil rights attorney to prepare for a nationally significant redlining case against Nationwide Insurance.

“Every time I turn into the parking lot, it feels good to be back here with friends,” he said.

Kaine has rare credentials for discussing our constitutional system. A former Richmond mayor and Virginia governor, he is one of just 30 Americans to have served at the local, state, and federal levels, he said. In his talk, billed as “The Constitution at 230,” Kaine focused his remarks on his impression that the current political landscape is testing the resiliency of our constitutional system.

He said that the country’s early leaders abandoned the Articles of Confederation to the Constitution at a time kings, emperors, sultans, and other strong executives ruled much of the global population.

“The chief thing they worried about was the prospect of an overreaching executive,” he said. “Today, we’re living through what the framers hoped they wouldn’t see.” He called the Trump presidency “basically a stress test to see if what they did worked.”

He began by highlighting checks built into the Constitution’s various articles, specifically Article 4, “which gives states and governors a lot of power” and the Bill of Rights, “which protected American citizens from abuse,” particularly freedoms the press is exercising under the First Amendment.

“The most exciting thing is what citizens are doing,” Kaine said, pointing to public protests like the Women’s March on Washington in January 2017 and the sharp increase in calls, letters, emails, and other messages to legislators as the very kinds of restraint mechanisms the founders envisioned.

“My favorite example was the airport protests,” he said, referring to demonstrations that arose after the president issued his first immigration-related executive order, which immediately barred entry to the U.S. of all people with immigrant and non-immigrant visas from seven countries for 90 days. “Those were spontaneous. That’s James Madison. That’s the right to peaceably assemble.”

My favorite example was the airport protests. ... Those were spontaneous. That's James Madison. That's the right to peaceably assemble.

His view of Congress was more mixed. Calling it “first among equals” because its powers are established in Article 1, he said, “We do more than you think, but, I have to acknowledge, less than we should, especially on the tough things.”

He argued that Congress spends too much time reacting to presidents rather than driving the legislative agenda.

“When was the last time Congress did something big and meaningful that was not driven by the president?” he asked. He cited the Americans with Disabilities Act of 1990 as the most recent example.

He also focused on the long-term sidelining of the legislative branch in matters of war. He criticized Presidents Obama and Trump for straining the meaning of the 2001 Authorization for the Use of Military Force, which approved military force “against those responsible for the recent attacks launched against the United States,” referring to the 9/11 attacks. Sixteen years later, “we’re using this authorization against groups that didn’t exist” at the time of the attacks, he said, adding that Congress shares the blame for not acting to assert its power.

The special counsel’s Russia investigation is raising more troubling questions, he said.

“We don’t know where it’s going to go,” he said, adding that it could raise “issues that only Congress can address.” If so, “it will pose existential questions of whether Congress is up to its constitutional duties.”

He described these responses, both strong and tepid, as a test of the mechanisms of checks and balances that the framers built into the Constitution when they adopted it in 1788.

“They did predict the moment we’re living through,” he said.

Matthew Dewald is editor of University of Richmond Magazine.