The Just Security Podcast

‘The National Security Constitution in the 21st Century’ Book Talk

• Just Security • Episode 99

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In the first quarter of the 21st century, U.S. presidential power has reached new heights in both domestic policy and foreign affairs. While the framers created a system of government defined by the separation of powers, the presidencies of George W. Bush, Barack Obama, Joe Biden, and Donald Trump reveal a vision, and a version, of unilateral executive power. 

What are some reforms that could restore the balance? 

Harold Hongju Koh has studied presidential power for decades both as a professor and the former Dean of Yale Law School, and in various government roles, including as the Legal Adviser at the U.S. State Department.  

His new book, The National Security Constitution in the 21st Century, argues for structural reforms to realign the balance of power among Congress, the courts, and the president. Harold joined us to discuss the book and Just Security’s recent symposium featuring expert analysis and discussion on some of its key ideas. 

This episode was co-hosted by Just Security’s Co-Editor-in-Chief, Tess Bridgeman. 

Show Notes: 

Paras Shah: In the first quarter of the 21st century, U.S. presidential power has reached new heights in both domestic policy and foreign affairs. While the framers created a system of government defined by the separation of powers, the presidencies of George W. Bush, Barack Obama, Joe Biden, and Donald Trump reveal a vision, and a version, of unilateral executive power. 

What are some reforms that could restore the balance? 

This is the Just Security podcast. I’m your host, Paras Shah. Co-hosting with me today is Just Security’s Co-Editor-in-Chief, Tess Bridgeman.  

Tess Bridgeman: Harold Hongju Koh has studied presidential power for decades both as a professor and the former Dean of Yale Law School, and has served in numerous senior government roles across multiple administrations, including as the Legal Adviser at the U.S. State Department (where, full disclosure, he was at one point my boss). 

His latest book, The National Security Constitution in the 21st Century, argues for structural reforms to realign the balance of power among Congress, the courts, and the president. Harold joined us on Friday afternoon, January 31 to discuss the book and Just Security’s recent symposium featuring expert analysis and discussion on some of its key ideas.  

Harold, welcome to the show. It's so good to have you here, especially in this moment, discussing your important recent book, as well as the Just Security symposium that we recently ran, discussing various of the themes and proposals in your book. Just to jump right in with both where we are today as a nation and also the main theme of your book, you write that the president may be today's biggest potential national security threat. And I want to be clear here, though, that you do not mean any particular president when you write that in the book. You are rather referring to the amassing of power in the office of the presidency that has come to be larger and larger over time, with fewer and fewer structural checks on that power. So, just to start us off, can you give us a brief overview of how, in your view, we got from, you know, the founders so consciously trying to avoid creating a new king in the Constitution that was designed when our nation was born, to the much-aggrandized vision of the presidency that we're seeing in practice today. 

Harold Hongju Koh: Sure. So, the theme of the book is, as you described, that the Constitution itself pretty clearly states that the power over foreign affairs and national security should be a shared power, but there has been constant tension with a different vision, a unilateralist executive vision of presidential power, which again verges on restoring the very king that we ousted. And in the book, in the first nine chapters, I tried to explain how these two visions did battle over the course of American history, from the founding to the rise of America, to regional power, to its rise as a global power, to the Cold War, post-Cold War period, and then how it took on a new dimension of urgency after September 11, when George W. Bush and the 9/11 attacks triggered just a new surge of shift of power to the president.  

It's a three-branch problem. The president acts unilaterally. Congress acquiesces and the courts defer. It takes all three to do it, but the pendulum swing has gone consistently toward presidential power, because some presidents grab power unilaterally and proactively, and then some, like Obama and Biden, while trying to push the pendulum back the other way, have such slim legislative majorities that, impelled to act, they seize power unilaterally for particular moments. So, whether it's reactive or proactive, the pendulum keeps moving to the right. There's irony for lawyers, because as a government lawyer, and you were a government lawyer with me, your impulse is consistently to try to protect the country against national security threats by giving the president more and more freedom, and when you amalgamate those decisions, thousands of those decisions, it gives the president extraordinary freedom. But what it does not account for is the possibility that the president would use that freedom in a way that's antithetical to U.S. national security.  

That's what brings us to Trump 2.0. Just a couple things have happened in the last week. President Trump has launched an attack on America's preparedness, its global health preparedness, by withdrawing from the WHO, its climate preparedness by pulling out of the Paris climate agreement, its preparedness to deal with traditional threats by kicking people out of the career bureaucracy who are designed to protect problems, and then also inflaming international tensions by using dubious authorities to impose tariffs on close neighbors, et cetera. And the net result of that is that we are less safe than we were before because of the president’s unprecedented freedom. 

In the middle of all this, you have to add the fact that presidents of both parties end up taking certain actions, and the others build on it. For example, the combination of pardons by Biden at the end of his term and by Trump at the beginning of his term has created a new, dangerous pattern whereby various kinds of lawless acts that were encouraged by one president are forgiven, that presidents pardon their own family members. You can see where this is headed. Another area where we see one president building on another is in the area of immigration. Trump started certain trends in his first term. Biden largely retained those, and now Trump is taking it to new level by trying to deploy the U.S. military for immigration purposes, and even if that gets beaten back, you can easily see another president, even of a different party, continuing that trend. So that's the whole point, is that the pendulum swing doesn't go all the way back, and that lawyers have been part of the problem, and so have to be part of the solution too. 

Tess: Yeah, lots to unpack there. And I think let's start with some of the examples you already touched on. And of course, part of the difficulty here is that the law itself is layered. And you know, even for we former executive branch lawyers, you know, there are often constitutional statutory normative dimensions to these things that can be opaque to the outside world, because so much law is secret, which is one of the issues touched on in the symposium, but also simply malleable because of, in some instances, how little is written, or the few contexts in which it's been litigated, or in which actual statutory law has been enacted. 

So, let's try to make this concrete in a couple of cases, treaty withdrawal and withdrawing from international organizations, just a flavor of treaty withdrawal. So, President Trump, as you just noted, has already withdrawn the United States from the Paris agreement, or has submitted notice that will occur after the one-year mandatory waiting period, and also from the World Health Organization. And there were two really excellent symposium pieces on this topic, building on your work, Harold, one by Sean Murphy and Ed Swaine, and one by Catherine Amirfar and Ashika Singh, with their tailored-out approach that I think more closely resembles your mirror principle, but with some friendly modifications, I think, as they put it. But as you write, both sets of authors agree that the United States needs a more nuanced constitutional rule to govern withdrawal from international agreements. So, how do you think about the rather mushy state of the law on whether the president unilaterally may withdraw the United States from Senate and advice and consent treaties, and after we talk about the state of the law, I want to get your views on what to do about it. But let's just try to unpack where we actually are as a doctrinal matter first.

Harold: Yeah, so, just very simply, the text of the Constitution says the president shall make treaties with advice and consent of the Senate, and says nothing about how they shall be unmade. The only Supreme Court precedent got to Goldwater v. Carter and held it was non-justiciable, although subsequent case law, particularly the Zivotofsky case, suggested a future such case might well be justiciable. And then in that case, four justices, led by Rehnquist, said the words, different treaties might require different termination procedures. And then Justice Brennan, who was the fifth vote for termination, said, this one is permitted because of a particular subject matter, namely recognition and de-recognition. What you would take that to mean is that there were five justices for the proposition that how you withdraw is subject matters specific. Instead, some people have very over broadly read this to say the president has a unilateral power of treaty determination with regard to the thousands of agreements and international institutions to which we're a party. If that were so, Trump could remove us from every treaty to which we're a party with a single tweet. 

And the fact of the matter is that it may well be that in an area of sole presidential power, the president can enter the treaty alone, the agreement alone, and can exit alone. But why should that apply to the U.N. charter or NATO or the International Monetary Fund agreement or something like that? All of these things require a lot more input by Congress to enter, because they have such a direct democratic impact. So, you would think that there should be a comparable degree of congressional input to exit. 

Finally, some people say that there's a lot of historical practice for unilaterally withdrawing, but virtually all of those were uncontested. And as we all know, in the legislative veto context, Congress passed hundreds of legislative vetoes to which the president did not object, but when he did object, and the Chadha case, it was struck down. So, I don't think those precedents are controlling what matters is the next contested case. My guess is that the World Health Organization withdrawal will be contested in precisely this way. And let me go back to the point I made earlier. The main problem with withdrawing from the WHO is, it destroys our preparedness. How do you know what vaccine to take if you don't know which pandemics are spreading most urgently? Or as we speak, we're in the middle of a bird flu epidemic. It's just started human to human, or animal to human transmissions. And isn't that a moment where you want to know the prevalence of this and other parts of the world? That's the exact moment in which the administration is trying to cut off that source of knowledge. So, this informational injury is devastating. I mean, just imagine if you’re going for your COVID booster, which is based on what is the last strain, and they're giving you a booster shot for a different strain. It's not going to work. That's an injury to every American citizen.

Tess: So, I'm with you on the merits, Harold, and I'm also with you on your reading of the five justices for the proposition that there may be different termination procedures for different types of treaties and different subject matters of treaties. But I will note your use of the word past tense there. There were five justices. And of course, we have a different court today than we had then. We even have a different court than we had at the time of the Zivotofsky ruling that you just mentioned, that is kind of where you get the glimmer of hope that just justiciability might not be the failing of a case like this. So, talk to us just for a minute, and we'll get more into the court later on, but do you still think that the justiciability and merits hurdles, respectively, are ones that this court would be able to see their way through in order to get to yes on the kind of principle that you're talking about, even if it is the right reading of the five justices in the Goldwater case, in light of Trump v. United States, in light of where this court may be on justiciability, do you still think we get there?

Harold: Yeah, Zivotofsky was written by Chief Justice Roberts, and his main point was that the political question doctrine had been extended too far and should be cut back to its constitutional core. I also do not believe it's a political question. You know, if the president tries to terminate then, well, let's take the very concrete case we have. The World Health Organization was entered. There was no provision for withdrawal, but Congress passed the statute which the president signed, which said that the president can only withdraw with one year's notice and full payment of arrearages up to the date of the fiscal year in which the withdrawal occurs. So, if the president tries to withdraw contrary to those conditions, that's like trying to withdraw contrary to statutory conditions, and the president can't repeal a statute by himself. More than that, if the president sends a letter, the simple legal question is, has the United States withdrawn? Is the president's action sufficient? That's a legal question. It's not a political question.  

Finally, and I think this is a glaring thing about Goldwater, it came at a time when the court was so busy, there were 150 argued cases a year, they did not even have time for oral argument, and two of the justices who didn't vote, Brennan and — sorry,  Blackmun and White said, are you kidding? This is exactly the kind of case that deserves to be heard on plenary review. Now we have a court that hears only 60 cases a year. This would certainly be the most important case in international affairs that they've decided in generations, and it ought to be set for full and plenary review. 

Finally, we have precedents from other countries, and even though the justice is another part of my book, even though they say they don't look, 12 of the justices looked to foreign precedents in deciding such cases. Gorsuch, Alito and Kavanaugh all cited foreign precedents when they were doing the Dobbs case, even after saying they wouldn't look at these foreign precedents. Well, these foreign precedents would show that South African courts required parliamentary input to withdraw from the ICC, and that the British parliament required parliamentary input to withdraw from the Brexit. And I cite in the book 20 other countries, democratic countries, which have a parliamentary input into the exit rule. So, I think this is an issue which is very much worthy of discussion. You know, at this point we are, you know, should — Judge MacKinnon on the DC Circuit in Goldwater v. Carter said, can a single unreasoned president withdraw us from the world order with this signing of a pen? You know, we're at that moment now, and that was a very prescient statement made back in 1979.

Tess: I like your optimism that the courts will hold on this, on this issue, if litigated. And I suppose I would just say, let's watch this space, and we'll have you back on when this, when this?

Harold: Well, you know, let's just look at the recent decision about whether Trump sentencing should be postponed. It was five to four, and Roberts and Coney Barrett voted with the three dissenters. Coney Barrett, I think, is an unknown quantity. Roberts is also someone who is eager to stay in the middle. And I think the next few years will be about the reputation of the Roberts court, and that has his name on it. And I think the reputation of the Roberts court has been badly diminished, and he's going to have to think about what kind of positions he's going to take and whether they further devalue the name of the Roberts court. 

Tess: So, with that, let me pivot you to an area that I think is even less likely to get to litigation, at least on the merits, and at least anytime soon, seeing as it's almost only ever litigated when there's a detainee in U.S. custody somewhere where the courts have habeas jurisdiction. But that issue is war powers, and it's something you've worked on throughout your career. It's something that's been a focus for me as well, including when I worked for you, Harold, and you know, the allocation and exercise of war powers among the political branches. It seems to be an evergreen topic of controversy that is not going to go away anytime soon. 

About five years ago, Steve Pomper, another former government attorney colleague of ours, and I wrote in Just Security a piece with some reforms proposed to the War Powers Resolution, which was, of course, the statute enacted in the aftermath of the Vietnam War to try to right the balance of the allocation of war powers among Congress and the president, using statutory mechanisms to better realign us with our constitutional design. And we proposed sort of a basket of what we saw as the low hanging fruit, right? It was, define hostilities, which is the term of art in the statute that is nowhere defined and is incredibly important. Shorten the 60-day termination clock for when the president is using hostilities without congressional authorization, increase the quality and the quantity of reporting to enable better transparency and to enable Congress to be able to act more quickly. Add back in teeth, through more concrete funds, cut off — a lot of these proposals are familiar to you as ones that you discuss as well. And, you know, we've even seen bipartisan legislation introduced that would do many of these things and then some, right, that would have been really more of a wholesale overhaul of the War Powers resolution. 

But Congress just can't seem to agree across the aisle when it comes to actually getting something enacted, and that applies both to the War Powers Resolution itself, the framework statute governing all of these unauthorized uses of force, as well as the authorizations for use of military force that remain on the books decades after they have served their intended purpose, when they should be seen as a dead letter, but are laying around ripe for abuse. And in fact, as we have seen, have been abused, and even in those circumstances, we can't seem to see Congress vindicating Article I prerogatives, because they would, at the end of the day, rather protect their party, would rather protect the representative of their party in the office of the presidency, when their party is in power. So, what in the short term is realistic in terms of war powers reforms? And if the answer is not much, which would be understandable, what do you think is the groundwork that could be laid for more medium to long term reform efforts?

Harold: Yeah, what you asked is a great example of a phenomenon that I discuss in the latter part of the book.  I suggest three major congressional reforms. The first is a joint committee on national security, parallel to the Joint Committee on Taxation, which would have an expert group of congressmen on both sides. There's no reason for a Marjorie Taylor Greene to have decisive votes just because the speaker is someone who is so thinly supported in the tax area. They deliberately got away from this kind of partisan approach to an expert committee with an expert staff and which gets extremely high deference. And second, you have the need to have a congressional legal advisor who's putting out legal opinions in opposition to expansive legal opinions being put out by the executive branch. And third, in lieu of the legislative veto, fast track approval provisions, which allow limited authorizations to go through quickly without amendment. 

So, the broad set of proposals that you and Steve Pomper put forward are ones I very much endorse. It's been the discussion of the Forever War blog posts on Just Security, and I think that Tim Kaine and Young have come forward with national security reform legislation which proposes many of those elements. Obviously, that's a first best solution, but if that doesn't go through, how would you use the ideas that I suggested to get to a better place, so that we might not get the best, but we get something good? You know, first of all, Congress should get into business of whenever the executive branch puts out an outrageously expansive view of the authorizations of use of military force, to put out an opinion that says a different thing. And you know, there are enough senators on both sides of the aisle, you know, a Mike Lee along with a Tim Kaine, who care about these issues, and we should be pushing to get different kinds of interpretations out there, because so many of the interpretations being offered are absurd. You know, it can't be that the Iraq authorization for use of military force, which was designed to address Saddam Hussein's situation, currently justifies new action in Iraq. And so, if there was a claim made by Trump's OLC or State Department or Defense Department, that it did, there should be somebody putting forward an opinion to challenge it. 

Tess: Do you mean Iran, Harold, when you said that? 

Harold: No, no, Iraq, because of the, you know, the 2002 AUMF talks about the situation in Iraq, you know? So, right now, we're facing insecurity in Syria, Iraq, Yemen and Palestine, and we have a president with a very limited commitment to diplomacy and very limited experience. And what would make the most sense is, and I think if Kamala Harris had been elected president, to go to Congress and seek limited authorization for two years on a sunset basis, to do certain kinds of things of the kind you describe, that's put on a fast track, discharge from committee in 90 days with no possibility for amendment, and voted up and down in 90 days. That gives the president authority to operate in Youngstown category one, rather than having to rely on claims of inherent power. 

One of the things that I note is that the prevalence of what I call statutory Curtiss-Wright arguments, which is that the Curtiss-Wright case had two dimensions, and many people don't understand the difference between them. One is a constitutional claim, the presence of the nation in foreign affairs, which has been disproved as dicta, but the other is a kind of expansive canon of statutory construction that permits words to be stretched out of context to justify actions that the statute was never intended to justify, and the president is using that like a way in which he can find old statutes as basis for new national security power. So, in immigration, for example, they're trying to use the word invasion in the Alien Enemies Act to mean invasion of immigrants, which obviously was not the reason for which it was intended, or to use outmoded and obsolete AUMFs to authorize new action against new threats that are arising now. 

So, I think particularly in the war powers area in the Middle East, both the president needs to have a diplomatic strategy, but if it turns out that he's relying on a series of one-off military actions, like the killing of Soleimani that occurred last time, or endorsing military action by Netanyahu as a way out of this, there may be a bipartisan group in Congress that's worried enough about getting us involved in a world war three in the Middle East that they could start to frame some kind of statutory authorization on an expert basis, based on their reading of the law, which is put onto a fast track joint approval process, and offer that as an alternative to the president, just, you know, engaging his instincts on an ad hoc basis. You know, right now, we're in a very dangerous position, because we have a president who acts on impulse. He's not particularly interested in invading foreign countries, but he's also not afraid to use military force, even in extremely dangerous situations, as we saw with the Soleimani targeted killing back in 2020.

Tess: So, I tend to agree with you on most of these things, Harold, so I'll take it as my responsibility as moderator to try to play devil's advocate on a couple of them. I have to just agree that you're absolutely right when you say that the presidency has found ways to expand category one through broad readings of statutes, and that we also have the phenomenon of Congress even giving the president more power than he asked for in some of these situations, especially when it comes to war powers, I think there's a real danger there. And that brings up two things. One is the idea of the congressional legal advisors is the only one that I'll express some skepticism about, insofar as it's not clear to me you would necessarily find a person, the person, who would write reasoned opinions in opposition that actually speak for the body, the institution, given members are so used to speaking for themselves, given there is such a divergence of views on some of these very fundamental questions about the scope of presidential power and the scope of congressional authority on these issues. So, one kind of question mark is whether that would actually play out as intended, in terms of being a counterweight, or whether there could be situations where the ineffectiveness, in essence, of what would be a fledgling office acting in an untested way and trying to unify folks with very different views could potentially backfire in some situations. So, that's just one process reform that I would play devil's advocate on for a second. 

On the substantive perspective, and this is something that I'm not sure you disagree with, but it's just an additional layer that is different than the ones that you were just discussing, the issue that Ashley Deeks and Kristen Eichensehr write about in their piece. That's an overview of a forthcoming article of theirs on frictionless government, which is the pathology is attendant to the situation where there is not enough friction among the political branches. And they describe this as a phenomenon that occurs when there's an overwhelming bipartisan and bicameral consensus about a particular set of policies, as well as consensus between Congress and the president. And in these cases, right, there isn't partisan, inter-branch or necessarily inter-agency checks and balances that would normally be there. You can amplify cognitive biases, et cetera, decision-making can trend towards groupthink. And they cite U.S. policymaking with respect to China as one current example where that danger is lurking, and where the president, I would say, just to put my own words on it, might be given more power than even he asked for. 

And I think, you know, we've seen that in other circumstances as well, where there's a Democratic president in office, and if Congress is going to give him a statute authorizing military force, what's on the table ends up being much broader than what the president wants, and in fact, it's the executive branch that has to walk back the desire for new authority in those situations. So, what would you say — is there, in fact, this lurking danger of frictionless government on some of these issues, and what can be done to mitigate that, because it's really more outside of the realm of these inter branch checks and balances that you're focused on?

Harold: Let me pick up three things from what you said. First, Nancy Pelosi, when she was speaker, hired Doug Letter, a very prominent executive branch lawyer, to be her counsel. And I think for a couple of years he operated de facto as a congressional legal advisor. So, you could just imagine right now, the ranking member of the Foreign Relations Committee of the Senate or of the Armed Services Committee, hiring a very distinguished legal figure to be their counsel who issues opinions on behalf of the committee and signs his or her name. 

Tess: But Harold, do you think the chair would agree those opinions? Do you think the chair would go along? 

Harold: They don't have to. Steve Breyer was a minority counsel on the Judiciary Committee. If he signs a letter Steve Breyer, then people have to decide whether they think that is a correct legal opinion or the one that was just given by Joe Nobody in the Office of Legal Counsel’s Justice Department. As you know, when I was legal advisor, I issued a number of opinions in my own name that people argued weren't cleared. Many of them are now in case books. And the fact of matter is, you just have to have someone who's serious putting forward fair legal opinions, doing detailed analysis, challenging other people's legal opinions, and then people can decide whether they're correct. And then blogs like Just Security exist to say whether these are correct or not. 

Point two goes to the frictionless government. I tried to respond to this in my summary blog post. Another kind of friction that can be created is friction among pieces of the Trump base. I don't think that Trump's coalition that elected him is composed of like-minded people, and the frictions between them, we're already seeing those who want to raise the debt ceiling versus those who want to cut spending. The biggest one is between those who have a MAGA agenda and those who essentially want to profit personally from the president's position in power. And you saw that debate between, say, JD Vance and others, over whether or how many people should be pardoned for January 6. Should the violent offenders be pardoned? In academia, this is known as Albert O. Hirschman’s competing passions group. You know, that you can have different groups, neither one of them with public spirited instincts, but fighting each other for various kinds of outcomes. 

And third, on the China issue, that's a very good example of how national security becomes a masquerade in all of this process. Look at what has happened with TikTok. You know, the Supreme Court concludes that data security is compelling state interest, and so they force the closure of TikTok just before inauguration. Trump comes in and says, I'm going to give 75 days, during which he's essentially saying there can be a forced or compelled negotiation about divestiture. He invites the head of TikTok to his own inauguration. He did it on the basis under the statute that serious negotiations were going on. He has freedom to do it again. My guess is that in 75 days, he'll extend it for another 75 days. What will probably end up being is a brokered sale to somebody like Elon Musk or Larry Ellison. But in 150 days, Tess, all the data that they're worried about will have been accessed by the Chinese. So, who's kidding who? That is a way of making a symbolic statement against China that actually does absolutely nothing to protect the security of American citizens.

So, I think that we should call this out, that a lot of the things that are being done are masquerades. Take yesterday's announcement, in the context of the signing of the Laken Riley Act, that the president will expand the number of people to be held on Guantanamo to 30,000. Now, that is unprecedented. They've never brought people from the United States to Guantanamo before. Secondly, it's delusional that this will actually be achieved. It's punitive. But most fundamentally, if they had the resources to do that, they would want to be devoting them at the border, not to bringing people to Guantanamo without an exit strategy. I've been to Guantanamo many times, as I know you've been there. And you know, the last time there were 30,000 people there was during the Cuban migration in 1994, you know, there were tents on all of the runways of Guantanamo, so it was unusable for other purposes. And that's going to be part of the — so, you know, NSC would regularly call for, you know, contingency planning. So, this was all about creating an illusion of a solution, which is actually something that I think will be abandoned pretty quickly as a practical solution to any kind of problem.

Paras: Yeah, thanks for that overview, Harold, and I want to turn back to the discussion that we had earlier in the episode about the Supreme Court and courts generally, and you mentioned the Roberts court and its legacy, but oftentimes especially on national security issues, we see the courts deferential to the executive branch. So where do you see courts? Do you see them becoming more willing to intervene and willing to reach the merits on some of these issues around national security? 

Harold: The president has plenary powers, but in narrow areas. And one of the themes of the book, which was also captured in the blog post, is that under a Youngstown scheme, there are areas where the president wins because his power is at its height, because he's acting with approval of Congress. There are other areas where Congress hasn't spoken, and so it's a twilight zone, but it was that when the president was acting against congressional authority, as in Youngstown itself, he couldn't act. But the Supreme Court has created a new zone, which I call Youngstown category three cases, where the president is operating on sole authority against congressional opposition, and he wins anyway. And then on statutory grounds, the statutory Curtiss-Wright argument allows him to expansively construe whatever statute is lying around as further support for his position. And if the president can argue that Congress is acting against his Curtiss-Wright sole organ authority, then Youngstown category three is just like Youngstown category one. And if the president wins in category one, two and three, the president always wins. And if the president wins under every statute, then the president always wins. 

So, that is the general dilemma that we're facing with the way that the courts are construing this now. And what I argued in my blog post is that it's always been the case under Supreme Court doctrine that when Congress is acting against individual rights, there should be a clear statement that that's what they intended to do. That's the Kent v. Dulles principle, and that needs to be brought back and invoked. Now somebody like Gorsuch, who I think is an independent thinker, often quirky and hard to predict, but saying the Zubaydah case came forward on state secrets and joined in with Sotomayor, is someone who might well note this precedent again. So, you know there are three hardcore members on one side, Thomas, Alito and Kavanaugh. There are three on the other side, Kavanaugh — I’m sorry, Kagan, Ketanji Brown Jackson and Sotomayor. But at the end of the day, it's the ones in the middle, Roberts Gorsuch and Coney Barrett. And I do not believe that those are monolithic. I think they may shift back and forward depending on the context. After all, they upheld a couple of decisions of Biden, for example, with regard to DACA/DAPA. 

You know, the most recent decision on Trump immunity was obviously extremely disturbing because, you know, they essentially found zones of immunity ignoring the facts before them. So, you know, they're worried about enfeebling a future president, hypothetical president, and ignoring the lawless president that we just had and will have again. And among the zones of immunity, they declared were when the president talks to the Attorney-General. Well, you know, if you remember Watergate, that's the president talking to the Attorney-General. Those conversations were the basis of the conspiracy and the basis for an impeachable offense. 

Paras: Yeah, I mean, there's a lot to consider there, and I think a lot of this will play out as cases reach the court. Zooming out, of course, the United States isn't the only country that's facing these issues around democratic backsliding and tensions between different branches of government, and you note in your Just Security post and in the book that we can learn from the constitutional experiences of other countries. So, what are some of the lessons that we can glean from countries like South Korea, Venezuela and Hungary? 

Harold: Well, I'm Korean American. The reason I live in America at all is that my father served the democratic government of Korea, and it was overthrown by a military coup for a generation. And democracy was restored, and they have a vibrant democracy now and a vibrant civil society. You know, all you have to do is look and see that, you know, Korean culture is everywhere. Korean food is everywhere. Korean author just won the Nobel Prize in literature. 

And then just a few weeks ago, the president, you know, an autocrat at heart, who is being stymied by a recalcitrant parliamentary opposition, decides to declare martial law. And the difference between now and 60 years ago, when my father's government was overthrown, was the Korean people said, this is our democracy. You're not going to steal it from us. And within six hours, they had fought back, gone directly to the parliament, got a vote overturning his claim of martial law, and he's now been detained and is on trial for insurrection for committing martial law. And the question I had was, I was filled with relief and pride for the people of Korea, but also fear. Would the people of America respond to the exact same kind of situation so furiously and so fast? And there is a sense this time around among those who care about the rule of law in the United States of resignation or defeatism, at a time when I think the threat is greater than ever, and that's one reason I actually didn't expect when I wrote the book that Trump would be reelected. I thought I was going to have to persuade people why this would still be a problem if Joe Biden was in his second term. But in fact, it turns out I don't have to convince people that the president is a national security threat. What I do need to persuade people is that you need to do two things at the same time, namely, stop the flood and rebuild the dam, because if you don't do that, we're going to lose the national security constitution that we inherited, which is a national security constitution of shared powers.

Paras: Yeah, the book is definitely relevant. And bringing the discussion back home, you've been government-learned, you've served in many administrations in the executive branch. At bottom, what do you see the role of government lawyers in promoting and protecting the rule of law within our constitutional system, particularly when government lawyers are often asked to maximize presidential flexibility and defend presidential actions that are defensible if we have an expansive view of presidential authority, particularly in this moment? 

Harold: Why, I think Tess would agree from her time in the government, where she did an extraordinary job you never, as a government lawyer, take an oath to serve a particular president. You serve the Constitution and laws of the United States of America, and so you cannot authorize illegal acts, and your job is to construe with the Constitution fairly. Now, you know in close situations, executive branch lawyers always give their client the benefit of the doubt, but if the president is asking you to do something like torture people and giving a legal justification to do so, or to eliminate birthright citizenship when it's in the first line of the 14th Amendment, the job of the government lawyer is to say that's illegal. And somewhere, I'm sure there's a memo that says, if you issue an order, executive order on birthright citizenship, eliminating it, then you would have taken the oath of office at noon and immediately signed an executive order breaking the Constitution. And as we saw, a federal judge appointed by Reagan, Judge Coughenour, said it's blatantly unconstitutional, and suits were immediately filed in four different courts. And as that plays out, I expect that that obvious conclusion will be reaffirmed. 

Paras: You know, this is a difficult moment for law students, especially who are dealing with potentially rescinded offers from government agencies and other folks who are in government. Do you have any message for folks who are facing those types of situations and debating what to do or how to think about their role?

Harold: Yeah, so I would say, welcome to living in the world where these kinds of rule of law violations have real consequences for you. That may mean that you need to stay on the outside for a while, and it ought to be a reason why, as people committed to the rule of law, you joined the fight to uphold the rule of law from outside the government. That's certainly message I've been trying to spread to students as I go around talking about this book. It's, this is not an abstract issue. You know, if they're going to be wars fought, illegal wars fought over the next few years, they're not going to be fought by guys my age. They're going to be fought by the students that we have now, and the impact on that will affect their lives forever. You know, if we have a series of pandemics, because our preparedness has been destroyed, that's going to affect them. Look at the three people who were confirmations here and were held in the last couple of days. One, a candidate to be Director of National Intelligence, who spreads misinformation and would destroy the intelligence apparatus. Another to be Director of the FBI, who wants to dismantle the FBI, and the third, a person to lead our health preparedness effort who spreads information and disinformation about those efforts. That is harming our security, health security, you know, international security. One person could not even say that someone who had released national security classified information is committing a national security violation. So, that ought to raise a question about why this serves anybody's purpose and confirms the fact that we're now facing a time where bad presidential appointments can be one of the greatest national security threats we can face.

Paras: This has been such a great discussion, and we're running short on time. But is there anything else that we haven't touched on yet that you'd like to mention 

Harold: Yeah, I've been in academic life for 43 years, but I've also been in the government four times in five decades, for more than 10 years. And one reason I wrote this book was I thought, you know, we now live in a world where practitioners and academics live in their own bubbles, and it may well be that there won't be another person who will have this blend of experiences and can talk to both audiences. And I was acutely aware that if I was a student and I was seeing what we're facing today, I would say, why didn't somebody analyze this problem and tell us how it developed, and why didn't somebody tell us how to approach the problem of solving it? And that's why I wrote the book, you know. It's called the National Security Constitution for the 21st Century, because there are 75 years left, and we have to figure out a better way to live those 75 years as Americans first, not just talking about America first, and that's why I hope this book is a helpful contribution to that effort.

Tess: Well, few people can bring those worlds together in the way that you do, Harold, with such rich experience from both perspectives and with such clarity of purpose to make us a better version of ourselves, which is, after all, what the Constitution strives for at its heart. So, tremendous thanks, both for your service, for your writing, for your teaching, of the next generation, and for talking through all of it with us today. We hope to have you on soon again as some of these issues that we touched upon develop and perhaps make their way into the courts as we were discussing. But for now, a tremendous thanks, and we really appreciated the conversation. 

Paras: Thanks again.  

Harold: Thank you, and I'll keep reading and contributing to Just Security.

Paras: This episode was co-hosted and produced by me, Paras Shah, and Tess Bridgeman with help from Clara Apt. 

Special thanks to Harold Hongju Koh. You can read all of Just Security’s coverage of the executive branch, Congress, and the courts, including the symposium on Harold’s book, on our website. If you enjoyed this episode, please give us a five-star rating on Apple Podcasts or wherever you listen.

 

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