The executive branch is treated across these episodes less as a single institution than as a site of constitutional drift. In the earliest of the four conversations, the founding design is described as deliberately enfeebled; in the later ones, the branch is described as having acquired powers the design withheld, at the expense of Congress, the courts, and the rule of law.
The founding design
Harlow Giles Unger told Bob Zadek that the framers wrote a Constitution making the President Commander in Chief of the armed forces, but only when Congress called those forces into action — which, he said, left the President Commander in Chief of nothing and no one. Unger listed the other presidential powers in the same register: the President could make treaties, but only with the advice and consent of the Senate; he could nominate judges and heads of executive departments, again only with the advice and consent of the Senate; and once the Senate put them into office, the President had no power to get rid of them. How Washington Invented the Presidency (2013) Unger added that the Constitution ordered the President to take care that the laws be faithfully executed but gave him no law enforcement arm or powers to arrest or punish violators. On his account, when Washington took office, he had no powers under the Constitution.
Congress’s retreat and the redistribution of power
Jeffrey Bergner framed his argument to Zadek by acknowledging it might seem incongruous to advocate that a branch of government be stronger rather than weaker. He told Zadek’s libertarian listeners that if Congress were the only institution in the federal government, a do-nothing Congress might be the best answer — but it is not, and when Congress does not act it cedes the field to the President, to the executive branch, to the independent regulatory agencies, and, in some ways worst of all, to the courts. Redefining the “Deep State” (2019) In Bergner’s account, strengthening Congress would not strengthen the overall power of the federal government but redistribute it back to where the framers intended it, the Article One branch. He said he would be more fearful of the incremental loss of liberties coming from the President, the executive branch and their thousands and thousands of pages of annual regulations, the independent regulatory agencies, and even the courts.
Zadek advanced a related reading of the Bill of Rights on that episode, telling listeners that the first ten amendments often use the phrase prohibiting Congress from doing — Congress from depriving us freedom of speech, freedom of assembly, freedom of the press — and that the Bill of Rights does not specifically limit the President or the courts. His conclusion was that power should reside in Congress, where it is specifically limited, rather than in the other branches. Bergner called this an excellent point and offered religious freedom as a case in which Congress has not passed restrictive laws; the restrictions people find troublesome, he said, come from the executive branch or from the courts.
Compliance, standing, and the TSA
In the 2015 conversation with Jim Bovard, Zadek stated that the executive branch, and the Obama administration particularly, has totally ignored what is called the rule of law, and that it discovered that if the executive branch simply ignores the law there is no individual or group of individuals or organization with standing to sue. Under that system, he said, there is no mechanism by which one can compel the executive branch to obey the law. Seeing Through TSA’s Security Theater With Jim Bovard (2015) He cited Obamacare and the EPA’s administrative processes as instances readers encounter, and described the situation as a constitutional failure in which agencies have discovered with more and more boldness that they are immune from the very laws that govern their behavior. Bob attributed this boldness to Obama more than to his predecessors, while allowing that it was probably true in the past.
Bovard’s contribution to the same episode concerned the TSA specifically. He said he favored abolishing the TSA and that people can go back and forth on what it should be replaced with; he recalled the metal detectors used before 9/11, which he said work about as well as the whole-body scanners but are far less intrusive. He argued that private security would respect the rights and dignity of travelers, whereas federal agencies staffed by federal agents, some of whom enjoy trampling the rights of other Americans, produce a worst-case scenario with poor security and violated rights. Bovard also described the TSA’s Visible Intermodal Prevention and Response teams, which he said sweep in to conduct random forceful searches on travelers coming off trains or going on buses, and which he called the ultimate security theater nonsense. Zadek observed that the Viper teams are random rather than universal, unlike airports, so no one could argue they make anybody safer, and characterized the approach as “don’t just stand there, do something.”
Zadek also raised the revolving door, asking Bovard whether a TSA director named Chertoff had later become one of the vendors of scanning machines to the agency he used to run. Bovard replied that Chertoff was involved in the lobbying or perhaps the management of one of those companies and was tied very closely to the whole-body scanners, which he said don’t work, are a huge intrusion, and which even the TSA has mothballed — especially the ones the TSA admitted radiate passengers, after what Bovard called a couple years of lies and cover-ups. Bovard also mentioned a court ruling, which he placed around 2013, that compelled the TSA to take public comments on its screening policy and the whole-body scanners; he said the agency received over 5,000 comments, overwhelmingly critical, and was obliged by the court to issue a statement in response, which he said it has not done.
Executive adjudication and asylum
The 2021 episode with Ilya Somin focused on a narrower institutional question: the executive branch performing judicial functions. Zadek asked Somin to explain how the executive branch taking over the judicial function violates first principles, specifically that the judicial system ought to be separate from the executive. Hard Questions About Asylum and Afghanistan (2021)
Somin explained that people subject to persecution on grounds such as race, religion, nationality or political views are eligible for asylum, but that exceptions apply even to those persecuted — one of them being the provision of what the statute calls material support for terrorism. He said Congress’s idea, when it adopted the law, was to keep out terrorists or members of terrorist groups or people who provided them support, which he called at least a reasonable policy on its face. The issue then arose, he said, in a decision of the Board of Immigration Appeals, which is part of the Justice Department — an executive branch agency making administrative rulings on immigration cases, including asylum cases. Somin said the Board absurdly held that the principle of excluding people for material support for terrorism applies where the person in question was a slave laborer for a terrorist organization. He placed the decision in 2018 and said he highly doubted it was what Congress intended.
Somin described the Board of Immigration Appeals as one of a number of administrative organizations in the executive branch that make what arguably are legal decisions — judicial-like decisions, but not part of the judiciary. Their decisions can sometimes be appealed to or reviewed by the courts, but in the first instance the Board gets to make these kinds of legal decisions. Asked how easily the line of reasoning could be overcome, Somin said the decision binds lower-level executive branch officials, including case officers who consider asylum requests in the first instance, but that under the statute establishing the Board’s powers the Attorney General can reverse its decisions at a mere stroke of his pen through what is called his certification power. He said the power was used a number of times in the Trump administration by Attorney General Jeff Sessions to reverse BIA rulings favorable to immigrants and asylum seekers, and that Attorney General Merrick Garland has used it in other cases already.
Somin added that if the system is bad because the Attorney General can change the law on his own say-so, the problem is in the statute authorizing it, and that he would be happy if Congress simply passed a law making clear that being a slave laborer is not material support for terrorism. Zadek, describing himself as a non-immigration specialist, proposed adding the word “voluntary” to the exclusion so that the line of cases dealing with the slave labor exception would disappear, reasoning that without intent, paying taxes to an autocratic terrorist government would itself count as providing material support.
Across episodes: no single arc
Four episodes over roughly eight years touch the executive branch, and they do not trace a developing argument so much as four separate angles on the same unease. Unger supplies the founding baseline of presidential weakness; Bovard and Zadek supply the agency-level account of non-compliance and security theater; Bergner supplies the congressional-side diagnosis of ceded power; Somin supplies the separation-of-powers objection to executive adjudication. The later episodes do not revise the earlier ones, and no guest in these excerpts responds to another’s claim.
What the sources do not cover
The excerpts do not state what the 2013 court ruling Bovard mentions was or which court issued it, and they do not give the name of any statute governing asylum or the Board of Immigration Appeals. They do not supply the text, number or date of any constitutional provision, nor the name of any bill that would address the issues raised. Chertoff’s exact title at the TSA is left unresolved in the exchange itself, and the excerpts do not state the outcome of the BIA case Somin discusses or whether Attorney General Garland acted on it.