Law professors Michael Paulsen and Bruce Ackerman of Yale Law School went head to head over one of the most contentious legal issues facing America’s democracy.
Professor Michael Paulsen addresses the audience. (Credit: Jason Cao)
Jason Cao
Staff Writer, The Buckley Beacon
Last Thursday afternoon, law professors Michael Paulsen and Bruce Ackerman debated the resolution “The Executive Branch Belongs to the President” at the Buckley Institute’s second Firing Line Debate of the semester.
Michael Paulsen, a law professor at the University of St. Thomas School of Law, argued in the affirmative. Paulsen graduated from the Yale Law School in 1985. He served in the Department of Justice and as an attorney-advisor in the Office of Legal Counsel before becoming a professor. Paulsen is notable for his expansive reading of executive power, including contending that the president possesses coequal power in interpreting the Constitution.
Bruce Ackerman, a Sterling Professor of Law and Political Science at the Yale Law School, argued in the negative. Professor Ackerman is known for his three-volume treatise We The People, which outlines his judicial philosophy and interpretation of U.S. history. Ackerman is a notable proponent of the constitutional moment theory of living constitutionalism, arguing that landmark statutes which gain democratic support in key historical moments should be incorporated into the constitutional canon. This theory is widely contested by legal experts.
Paulsen began the debate by explaining that his support for a unitary executive does not imply support for the Trump Administration, which he intensely opposes. “I am a Ronald Reagan, George Bush, George W. Bush conservative, and so my first disclaimer is that I am not a Trumpian. Before I say anything else, I want you to know that nothing I say here in defense of a strong presidency should in any way be understood as supporting the current occupier of the office.”
“I think his election in 2024 is one of the great disasters in American history,” Paulsen continued. “His presidency poses a threat like none other in American history to the survival of America’s free constitutional republic.” In the past, Paulsen has argued that Section Three of the Fourteenth Amendment prohibits Trump from holding the office of the president on the grounds that the president engaged in an insurrection. This interpretation is widely contested.
Following the lengthy caveat, Professor Paulsen addressed the resolution directly. “I believe, as a constitutional scholar and a teacher of constitutional law, in a strong Hamiltonian conception of the constitutional powers of the presidency.” He cited the text of the Constitution, saying “Article Two of the Constitution, which describes the powers of the president, begins by saying ‘The executive power shall be vested in a President of the United States.’ Constitutionally, the president is not only the head of the executive branch; he is the executive branch.”
To defend this interpretation of executive power, commonly termed the unitary executive theory, Professor Paulsen cites The Federalist, a series of essays written by Alexander Hamilton, James Madison, and John Jay to support ratification of the Constitution. “Hamilton wrote of how crucial it is for the president to have adequate powers, to have independence, and unity, that the executive branch functions as one.”
To Paulsen, this includes the power to remove subordinate officers. “The president must be able to fire, to remove from office, persons who do not effectuate his policy, or whom he does not trust to effectuate his policies. This is an implied, but clearly proper, presidential power.” In the upcoming case Trump v. Slaughter, which deals with whether the president can remove Federal Trade Commissioners at will, Paulsen predicts that the Supreme Court will uphold the president’s removal powers.
By contrast, Ackerman emphasized that presidential control over the executive branch was not absolute historically, and that the constitutionality of independent agencies had been upheld through decades of laws and precedents.
He cited the unanimous decision in Humphrey’s Executor v. United States (1935), which deemed it unconstitutional for the president to remove an FTC commissioner at will. “Even though [Justice] Sutherland was the intellectual leader of the Lochnerian majority, escalating the campaign against the constitutionality of the New Deal, he made an exception, in this case, and reached out to his three progressive colleagues—Brandeis, Cardozo, and Stone—to write a unanimous opinion vindicating the constitutionality of independent agencies.”
Ackerman then highlighted that the history of independent agencies traces all the way to the Interstate Commerce Act of 1887 which created the Interstate Commerce Commission (ICC). “First, the statute provided the ICC with a democratic foundation—each commissioner was nominated by the president and confirmed by the senate. Second, the agency would be non-partisan, commissioners would come from different political parties and owe their appointments to different presidents.” To Ackerman, these features of Cleveland’s ICC support the idea that independent agencies have been a key part of American constitutional history, a contention that other constitutional scholars dispute.
Ackerman then made a functionalist argument for the necessity of independent agencies, which he believes Justice Amy Coney Barrett’s line of questioning in the Slaughter case embodied. “Nevertheless, this is the key question that she asked: wouldn’t the utter destruction of the fourth branch—which is what my colleague here is advocating—make it virtually impossible to resolve the challenges of technocratic government in the twenty-first century? That’s the question you should be asking yourself.”
For Ackerman, these independent agencies, dubbed “fourth branch” agencies because they exist outside the traditional branches of government, are necessary, and are not congressional violations of presidential power. He cites Justice Barrett’s comments in the oral arguments of Trump v. Slaughter. “She repeatedly responded to the assertion of a power grab by invoking Wilson’s success in convincing Americans that they could not hope to sustain founding principles of individual freedom in a social world that was shattered by a constant stream of scientific and economic revolutions without adding a fourth branch of government.”
Following their speeches, the professors discussed their disagreements. Paulsen contended that independent “fourth branch” institutions are not found in the text of the Constitution. “Where we disagree is this—I am fundamentally guided by the text of the Constitution and its original structure. Bruce Ackerman referred to this fourth branch of government—there is no fourth branch of government.”
The professors also disagreed over which texts judges should reference when interpreting the Constitution. Ackerman argued that The Federalist and James Madison’s notes are overemphasized.
By contrast, Paulsen saw value in all constitutionally contemporaneous sources. “I think The Federalist Papers and Madison’s notes are also excellent sources. They function in a different way. They display contemporaneous understanding of the words and concepts even though they were not specifically relied on to get people to ratify.”
After the event, Paulsen spoke to The Beacon to share his thoughts. “It was a wonderful audience, a lively event, and a great discussion. I’m honored to have been part of it with Professor Ackerman, and for us to have some grievances and some disagreements, and to be able to express our competing views respectfully.”