In Federalist 51, James Madison famously observed that in constructing a government, “the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” The entire structure of the U.S. Constitution is an effort to solve this riddle. The complicated arrangement of checks and balances and shared power is designed to give government actors the authority they need to govern effectively while limiting that authority so as to minimize its abuse. One aspect of this arrangement is creation of an Executive that will exhibit energy, dispatch, and vigor without turning into what the framers most feared, a monarchy. The early weeks of the Trump Administration have brought delight in some quarters and distress in others; supporters would say the President is energetic, opponents that he is out of control. Both should be interested in what constraints the Constitution imposes.

Constitutional constraints on the President are of two types. One set is structural, or indirect, and derives from the separation of powers and the fact that many governmental tasks are shared or allocated to actors other than the President. Those are fundamentally important, but not our topic. This panel concerns, instead, direct constraints: prohibitions on what the President can do and mechanisms for relieving him of his duties. In particular, we will address three provisions that have received a great deal of recent attention:

• the Foreign Emoluments Clause, which prohibits officials to “accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without the consent of Congress, and is the basis of a pending lawsuit against the President;

• the Impeachment Clause, under which the President can be removed from office by Congress for “Treason, Bribery, or other High Crimes and Misdemeanors”;

• the 25th Amendment, which creates a thus far never-used mechanism under which the Cabinet and ultimately Congress can remove the President from office on a determination that he “is unable to discharge the powers and duties of his office.”
  

Our panelists will address the scope, meaning, and potential application of these provisions.

We are delighted to welcome:

John D. Feerick, Norris Professor of Law and Former Dean, Fordham University School of Law

Deepak Gupta, Founding Principal, Gupta Wessler PLLC; Attorney for the Plaintiff in Citizens for Responsibility and Ethics in Washington v. Trump

Michael Herz, Arthur Kaplan Professor of Law, Cardozo School of Law

Richard Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School; former Associate Counsel to the President

Michael Waldman, President, Brennan Center for Justice

Kate Shaw (Moderator), Associate Professor, Cardozo School of Law

This event is free and open to the public, but registration (click on the green "register" button) is required.

CLE Credit: This program is approved for 1.5 transitional/non-transitional New York State Continuing Legal Education credits in the category "Areas of Professional Practice."

Reception to follow.