In Garrity v. New Jersey (1967), one of the most remarkable decisions of the Warren Court, a 5–4 majority of justices said public employees cannot be found guilty of crimes based on their admissions in disciplinary interviews conducted as a condition of employment.

Justice Harlan, writing in dissent, said the majority had fundamentally misunderstood the nature of the constitutional right against compelled self-incrimination. The relevant scope of “involuntary as a matter of law,” in his view, should be seen to reach only situations of actual legal compulsion, not those in which the price you pay for declining to speak frankly about how you behaved on the job is that your employer might not want to keep you on its payroll.

Garrity has become a key element of legal weaponry for public employees and their unions seeking to minimize consequences for on-duty misbehavior. (Although the original setting was one involving police officers, the decision applies broadly to public employment generally.)

Aside from its momentous reading of employment relations as themselves a species of coercion, Garrity has been cited as a key breakthrough for the “New Property” ideas associated with the late Yale law professor Charles Reich. He had argued that the holding of a government job or the receipt of welfare benefits should be analogized to property and protected in similar fashion by vigorous judicial action.

The Garrity doctrine plays a key role in this stomach-churning new Reason cover story by C.J. Ciaramella about impunity for prison rape.

Internal Affairs [at the federal Bureau of Prisons] then forced the correctional officers to sit for sworn interviews. Once those officers confessed to sexual assault, the possibility of criminal prosecution evaporated [under Garrity]…

By compelling prison guards to admit to criminal conduct, BOP internal affairs investigators got enough dirt to kick them out of the agency but also shielded them from future criminal prosecution.

Although it would technically be possible for federal prosecutors to bring charges now, they would have to rely on other evidence and prove that nothing in their case was tainted by those interviews. Perversely, the more detailed and thorough the confession, the harder it is to prosecute—a feature that any BOP employee who screws up badly enough to get called in for a sworn interview understands.

Interviews held on a condition of non-prosecution are known as “Garrity interviews,” but they had a nickname:

A former correctional officer at [the problem institution] says they were called “queen for a day.” As in, “Did you hear that Smith got queen for a day?” The term is more commonly used in criminal law to refer to a proffer agreement between federal prosecutors and a potential defendant—basically, spill the beans in exchange for possible immunity—but it worked much the same way between BOP internal affairs investigators and correctional officers.

Garrity interviews also allowed the BOP to quietly remove problem officers without the media attention that criminal charges would bring.

It’s hard to escape the conclusion that the 1967 decision has had some gravely damaging consequences. As an error in constitutional interpretation, it cannot practically be revised or revisited by agencies themselves, by lawmakers, or by lower court judges. That leaves the high court itself. Is it wise or prudent for the U.S. Supreme Court to afford Garrity the eternal benefit of stare decisis?

The Constitution requires, as a default rule, that “Officers of the United States” must be nominated by the president and confirmed by the Senate. The Constitution allows only one potential exception to this default rule: If an officer is merely an “inferior officer,” Congress may waive Senate consent. But even if an officer is inferior, Congress is limited to only three choices for who may appoint that officer: “the President alone,” “the Heads of Departments,” and “the Courts of Law.”

The Federal Vacancies Reform Act (FVRA) is one such statute that vests appointments in “the President alone.” Specifically, it grants the president authority to unilaterally appoint temporary, time‐​limited “acting officers” to fill vacancies in positions that normally require Senate consent.

When President Trump took office in January 2017, the acting commissioner of the Social Security Administration (SSA) resigned. A new acting commissioner, Nancy Berryhill, then purportedly took office. But President Trump did not select Berryhill to be acting commissioner. Rather, Berryhill was elevated pursuant to a Succession Order issued by outgoing President Obama the previous month, which named and ranked positions (not people) within SSA to fill potential future vacancies in the office of commissioner.

Plaintiff Brian Dahle later challenged an action that Berryhill took as acting commissioner, arguing that Berryhill was not validly serving under the terms of the FVRA when she took the action. But the Eighth Circuit rejected Dahle’s statutory arguments, holding that Berryhill was validly appointed by former President Obama as acting commissioner under the terms of the Succession Order.

The panel held that even though Obama was not the president when Berryhill was elevated, “presidential orders without specific time limitations carry over from administration to administration” and “a new president does not have to take affirmative action to keep existing orders in place.”

Dahle is now asking the Supreme Court to take his case, and the Cato Institute has filed an amicus brief supporting his petition. In the brief, we point out that the Eighth Circuit’s statutory holding raises a serious constitutional problem: Berryhill’s elevation via Succession Order was not an “appointment” under the meaning of the Constitution.

In the Federalist Papers, Alexander Hamilton explained that because the president alone would be responsible for choosing nominees, “the blame of a bad nomination would fall upon the President singly and absolutely.” But if an appointment is made by contingency order rather than by name, then the accountability mandated by the Appointments Clause vanishes. The people cannot blame President Obama for Berryhill’s performance, because Obama did not choose Berryhill for the position. Indeed, the people cannot blame any single person for Berryhill’s accession to the position of acting commissioner, because her accession resulted from the combined actions and inactions of no fewer than four people. That is precisely the diffusion of accountability that the Appointments Clause forbids.

The Supreme Court should take this case to review the Eighth Circuit’s decision in light of the Appointments Clause. When there is no clear line of accountability for a nomination, political accountability suffers. Requiring the president to take accountability for federal officers by actually naming those officers is not too much to ask.

Virginia Tech has instituted a “bias‐​related incidents” policy, under which students may be referred to a “Bias Response Team.” Under the policy, students can be referred for violating a standard as vague as “words or actions that contradict the spirit of the Principles of Community.” Students can also run afoul of the policy for “unwelcome jokes” or for even being present when jokes are made and failing to report them.

Students are encouraged to report each other while speculating on the “bias” that may have motivated their peers’ opinions. The school has given itself jurisdiction over activities and speech both on and off campus, as well as on students’ social media and other digital platforms.

Speech First sued Virginia Tech on behalf of several current Tech students, arguing that this policy chilled their freedom to express sincere but controversial views and thus violated the First Amendment. Yet a federal district court declined to enjoin the policy, holding that the students did not suffer any First Amendment injury because the bias response teams could not themselves impose formal discipline.

The Fourth Circuit affirmed that holding, and Speech First has now asked the Supreme Court to take the case. Cato has joined the Liberty Justice Center in an amicus brief supporting Speech First’s petition.

In the brief, we recount the history of bias response teams on many campuses across the country and how such teams do in fact chill the free expression and exchange of ideas. Whether or not bias response teams can impose formal discipline, the imbalance of power inherent in their proceedings and the ability of such teams to potentially refer students for formal discipline unquestionably lead students to self‐​censor.

That is the case here: students at Virginia Tech have muffled their own controversial political and social views because they feared the very real consequences of being referred to the bias response teams. Students know that if they are referred, the university will log the allegation in its records, share the “biased” speech with others, call the students in for educational and restorative “interventions,” and possibly refer their case to disciplinary authorities.

Virginia Tech’s policy is strikingly reminiscent of a state law struck down by the Supreme Court in Bantam Books v. Sullivan (1963). In that case, Rhode Island had created a “Commission to Encourage Morality in Youth,” which investigated books deemed potentially obscene or indecent. If the Commission found a book to be “objectionable,” it mailed a notice to the publisher thanking it in advance for quashing the book. Although the Commission had no authority to actually punish a publisher, the Supreme Court held that it nonetheless suppressed speech and violated the First Amendment. As the Court noted, “people do not lightly disregard public officers’ thinly veiled threats.”

When Virginia Tech students find themselves called before a bias response team, they too face thinly‐​veiled pressure to stifle their expression. As Bantam Books explained, that is enough to establish a First Amendment injury. The Supreme Court should take the case, reverse the Fourth Circuit, and vindicate the speech rights of Virginia Tech students.

Yesterday at the Cato Institute we celebrated Constitution Day with our annual symposium, which coincides with the release of the Cato Supreme Court Review. This was the 22nd edition of the Review, and my first as editor in chief. Every article from the Review is now available for free on online. Here’s a rundown of what’s on offer:

First up is the Foreword, written by my colleague Anastasia Boden, Director of Cato’s Robert A. Levy Center for Constitutional Studies. Boden writes that despite what critics of the Supreme Court may say, the modern Court is far from “activist.” If anything, she writes, the Court is still too hesitant to strike down laws that violate constitutional rights.

Next we have last year’s annual B. Kenneth Simon Lecture. Professor Akhil Reed Amar of Yale Law School offers 18 arguments for 18-year term limits on the Supreme Court. Amar argues that term limits would have several beneficial effects, such as making presidential appointments of Supreme Court justices more regular and more predictable.

Next, Brannon Denning of Samford University Cumberland School of Law writes on National Pork Producers v. Ross. Even though the Court rejected a challenge to a California pork regulation under the “dormant Commerce Clause doctrine,” Denning explains why the doctrine is here to stay.

Margaret Little of the New Civil Liberties Alliance then covers the consolidated cases of Axon v. FTC and SEC v. Cochran, the latter of which she had a front-row seat for as one of Cochran’s counsel. In both cases, the Court held that litigants can bring constitutional challenges to administrative agencies straight into federal court, without going through an agency proceeding first.

Next, Eric Franklin Amarante of the University of Tennessee College of Law writes on the term’s First Amendment overbreadth case, United States v. Hansen. Amarante criticizes the Court’s decision, which upheld the federal statute banning speech that encourages or induces violations of immigration law. Amarante argues that the majority opinion understated the harms caused by the “chilling effect” of a broadly worded law, harms that can’t be measured solely by counting the number of prosecutions under the law.

Christopher Green of the University of Mississippi School of Law then writes on 303 Creative v. Elenis. Most commentators have focused on the First Amendment aspects of this case, in which the Court held that a website designer may not be compelled by state law to design a custom site for a same-sex wedding. Green points out that there is another issue at play, however, which is the scope of the traditional power of the state to compel access to public accommodations.

Continuing with the Court’s speech cases, Clay Calvert of the University of Florida Levin College of Law writes on Counterman v. Colorado. The Court held that to convict someone for making a threat, the First Amendment requires that the speaker must have been at least reckless to the risk that the message would be understood as a threat. Calvert notes that this was a middle-ground position and that the Court could have required a higher mental standard or none at all—both positions that at least some on the Court espoused.

Next, David Bernstein of the Antonin Scalia Law School writes on the Term’s affirmative action cases, Students for Fair Admissions v. Harvard/​UNC. Bernstein focuses in particular on the Court’s discussion of the racial categories that were used by universities and how those particular categories came to be standardized. This history, of which Bernstein is the leading expert, shows just how arbitrary these categories are.

Timothy Sandefur of the Goldwater Institute then tackles the Court’s Indian Child Welfare Act case, Haaland v. Brackeen. Sandefur explains why the Supreme Court’s decision is most notable for what it did not decide—whether the law violates the Equal Protection Clause of the Constitution. As Sandefur notes, the constitutional concerns with ICWA will not go away and will remain a live controversy in the courts.

Next, Jed Handelsman Shugerman of Boston University School of Law writes on Biden v. Nebraska, the student loans case. Shugerman argues that the Court reached the right result, because the Biden administration did not explain how the relief it wished to offer was tailored to the COVID-19 emergency specifically. Shugerman suggests that going forward, courts should develop a doctrine to evaluate claims of emergency power to ensure that emergencies are not used as pretexts to enact long-term policy goals.

Moving to environmental law, Damien Schiff of Pacific Legal Foundation writes on Sackett v. EPA, a case he argued and won at the Supreme Court. Schiff relates the long history of the Clean Water Act and its mysterious statutory definition, “waters of the United States.” Multiple Supreme Court cases had considered what this definition means, but Sackett finally resulted in a majority of the Court setting out a clear test.

Next, Vikram David Amar of UC Davis School of Law tackles Moore v. Harper, the “independent state legislature doctrine” case. Amar argues that the Court’s rejection of the doctrine was clearly right as a matter of original constitutional meaning. Amar also explains the consequences that would have resulted if the Court had ruled the other way.

Wrapping up the articles on cases from this past Term, Gregory Dolin of the University of Baltimore School of Law covers Andy Warhol Foundation for the Visual Arts v. Goldsmith and Jack Daniel’s Properties v. VIP Products. In both cases, the Court narrowed the circumstances in which artists or parodists may adapt copyrighted or trademarked material without permission. Dolin argues that both cases were decided correctly and both can be understood as treating intellectual property similar to physical property.

Finally, Wen Fa of the Beacon Center of Tennessee authors our annual “Looking Ahead” article. Fa identifies several major cases to watch next term, on topics ranging from Chevron deference to an agency’s self-funding powers, to the original meaning of “income” in the Sixteenth Amendment. The Court will also consider the First Amendment implications of public officials “blocking” citizens on social media and the standing of ADA online “testers.” Even though this past Term was undoubtedly a blockbuster, Fa suggests the sequel may end up being just as exciting.

Thank you to every author who contributed to another excellent edition of the Review. As in every edition, we hope it proves informative and illuminating for lawyers and non-lawyers alike who wish to understand the most important decisions from the highest Court in the land.

When the Supreme Court ruled 6–3 this June in 303 Creative LLC v. Elenis that Colorado could not force a website designer to create a customized client website that ran contrary to her personal beliefs, a wave of public criticism mounted almost at once that took many of us by surprise.

The criticism concerned not the merits of the ruling but its procedural underpinnings, and in particular Lorie Smith’s having been allowed into court at all to challenge the law.

To quote Neil Gorsuch’s majority opinion, Smith was “worried” that Colorado would penalize her over her speech, but (critics said) the state hadn’t taken any enforcement action against her yet, nor had she even had to turn away any business. Instead, she couched her action as what First Amendment lawyers call a pre-enforcement challenge. This made it, the critics said, not a real case or controversy, but maybe a “fake case,” a “made-up case.”

Such talk dominated much of the early popular discussion of the case. And yet courts have long accepted pre-enforcement challenges to restrictions on speech, as an exception to their usual refusal to entertain challenges to prohibitions until charges have been filed. The reasoning is that even a not-yet-enforced law banning expression may quite effectively chill someone’s speech, to the point that there might be no one left speaking to provide a court challenge.

In the 303 Creative case, all the appellate-level judges to hear the case, including the Supreme Court dissenters led by Justice Sonia Sotomayor, accepted that Smith had established the “credible threat” of enforcement needed to get into court under this test, even as they went on to divide on the merits of her case.

In a Cato Daily Podcast shortly thereafter with Caleb Brown, I noted the historical paradox involved in this kind of standing’s coming under fire from commentators on the legal left (passage starts around 2:40):

Now, ironically, of course, the development of pre-enforcement challenges … to prevent government violations of speech rights was something developed in large part by progressives, to the applause of groups that didn’t want to put [holders of] unpopular views in the position of “you have to risk going to jail before you find out how the courts rule on the law.…

If for some reason the courts listened and did away with, or sharply limited, pre-enforcement challenges, it is progressive objectives that would suffer most.

On this subject, I recommend as both thorough and useful a forthcoming article by Richard Re of the University of Virginia School of Law that he has excerpted in several posts at the Volokh Conspiracy. He makes a few simple points about the case at hand before drawing out some implications:

• Smith’s standing was a straightforward application of current doctrine regarding pre-enforcement standing, especially since Colorado essentially stipulated that Smith was right in perceiving a credible threat of enforcement against her speech. Nor is it surprising that justices like Sotomayor declined to pursue the standing angle. Contrary to implications from quarters like Vox, Slate, The New Republic, and Sen. Sheldon Whitehouse (D‑R.I.), “there is no procedural scandal here.”
• Nonetheless, the case stands as one of multiple data points — others include the student loan case and the U.S. v. Texas immigration case — suggesting that narrow views of standing might increasingly hold appeal for progressive legal advocates as a way of fending off challenges to the merits of government action. “Already, Justice Alito may be a more likely vote for standing than, say, Justice Kagan. However, most of the conservatives still tend to enforce vigorous standing rules.” (More from Clark Neily on standing here.)
• That, in turn, is part of yet a wider pattern, including issues that might seem a bit farther afield, such as the degree of deference courts should accord government actors. Many of these are subject to recurrent ideological cycles that depend, at least in part, on perceptions of which “side” has the upper hand in the courts (and among executive-branch government actors).

However these wider trends may play out, the result in 303 Creative suggests that the First Amendment still looms large enough in the thinking of senior judges that they aren’t actively looking for ways to foil pre-enforcement vindication of speech rights, even if doing so might please some voices on the outside. Let’s be glad of that.

Election reform does not appear among the 25 planks in Vivek Ramaswamy’s published policy plan. This makes it all the more surprising to learn that the GOP presidential candidate has a four-point plan to reform elections in the United States, absent the enactment of which he does not think former president Donald Trump should have been required to acknowledge defeat and leave office.

To make matters even worse, if that’s possible, the four-point plan is both unimpressive and heedless of the states’ historic role in elections.

For those coming in late to this controversy, on Meet the Press, Aug. 27, the biotech-entrepreneur-turned-presidential-candidate gave an astounding response to a question about Vice President Mike Pence’s options on Jan. 6. He said that, as Pence, he would have certified the election results only if Congress agreed to enact a package of national election reforms, including single-day voting, paper ballots, and the verification of voter identity through government ID. (Later clarification, with Andrea Mitchell on MSNBC, didn’t help.)

Ramaswamy, whose ideas on the franchise include a role for the passage of civics tests, apparently thinks the vice president can coerce Congress into passing laws on threat of “otherwise we get to stay in power, see?” Confusion about the veep’s powers aside, it is the fantasy of a would-be caudillo to suspend the constitutional transition of power following an election held under the actually existing rules, in favor of a notional do-over held under other electoral rules imposed by threat of autocoup.

And all for what? What are the reforms so crucial that an election result obtained without them can be dismissed as illegitimate and not the lawful basis for a change in administrations?

To the three conditions for allowing democratic elections to proceed he recited on Meet the Press — paper ballots, voter ID, and same-day voting — Ramaswamy added a fourth in a tweet later Sunday, the designation of Election Day as a national holiday.

Let’s take the four one at a time.

* There are legitimate, well-taken security objections to the use of paperless ballot systems. Does Ramaswamy realize that the pro-security side won this debate some years back, and that only a few states, none of them swing, have yet to phase out the old paperless technology? Andy Craig points out (source) that the great majority of states have already stopped using the old systems, if they ever did, and that includes every presidential swing state and every state contested by Trump.

* Strict voter ID verification may be a good idea for other reasons such as administrative convenience, and progressive commentators have unfairly attacked its use. But as Cato readers know, a study in the Quarterly Journal of Economics found that“strict ID requirements have no effect on fraud, actual or perceived.” There is no evidence that toughening voter ID procedures in 2020 would have altered the outcome in any state.

* Ramaswamy soon retreated from his talk of abolishing all absentee and mail voting, since deployed military and the like need *some* way to vote. Note that he also demands the abolition of in-person early voting, which even paranoiacs don’t tend to view as a threat to election integrity. As a practical matter, most voters, including GOP-leaning retirees, value having some of the new options, which is one reason states have expanded them aside from the incentives created by the COVID-19 pandemic.

* Although unions and liberal elected officials often favor making Election Day a national holiday, many election administrators quietly oppose the idea, suspecting its effects on both turnout and smooth operation of the process will be other than advertised.

To sum up: Among Ramaswamy’s four election reform planks, one is years behind the times; one doesn’t have the advertised effect; one would take away convenience valued by the public; and one is a dubious wish list item of unions and liberal pols. All four, by imposing a uniform national standard, would override states’ discretion to adopt policies reflecting local preferences and circumstances, even though Article 2, Section 1 of the Constitution is careful to reserve almost entirely to the states the key steps in electing the president. There is no evidence that any of the four measures, or all four together, would have changed the result in the 2020 presidential election, or in any one state.

Let’s be frank about the politics here. Ramaswamy is obliged to humor the #StopTheSteal delusion because that’s where a large mass of GOP primary votes are. To the extent there are legitimate conservative reform ideas in the mix, they are sure to get lost in the shuffle.

As states and their governors have shown, there are definitely some legitimate conservative ideas about election reform in circulation, on topics from ballot privacy to speedy tabulation. I spoke with Caleb Brown in 2021 at the Cato podcast about how to disentangle these ideas from the stolen election nonsense. It has gotten no easier since then.

The Constitution literally made an appearance at the first Republican presidential debate last Wednesday. When Doug Burnham was asked whether he supported a federal abortion ban, the pro-life governor whipped out his pocket Constitution and waved it around in the air, noting that whatever his policy preferences, he believes enacting a federal ban is beyond Congress’s enumerated powers. This was the first of nearly two dozen times the candidates mentioned the Constitution.

But for all of their claims of fidelity to the Constitution, the candidates sure got a lot wrong about it. Vivek Ramaswamy, for instance, said in his closing remarks that the Constitution (ratified in 1788), is “what won us the American Revolution” (which ended 5 years earlier, in 1783). A slip of memory, perhaps, but it was notable given his suggestion that the voting age be raised to 25 for 18-to 24-year-olds that can’t pass a civics test. It’s also notable that such a voting requirement would violate the 26th Amendment.

For his part, Ron DeSantis emphasized Florida’s dedication to teaching constitutional history in schools, but many of his own measures have lost against constitutional challenges. The governor has garnered a reputation for reining in “wokeness,” but in furtherance of that goal some of his actions have sacrificed private businesses’ and individuals’ constitutional freedom to make their own choices. Courts have enjoined his ban on vaccination requirements as applied to private cruise lines, his ban on private social media companies’ ability to moderate user content, and provisions of the STOP WOKE Act that prohibit discussion of Critical Race Theory in universities and private businesses.

The most glaring misapprehension the candidates had about the Constitution was its limits on their own power should they become president. Take their remarks on the administrative state. Many candidates supported scaling back the myriad agencies that govern everything “from gas stoves to Greek yogurt” largely free of congressional (and sometimes even executive) oversight. Ramaswamy, for example, said “[t]he only war that I will declare as US President will be the war on the federal administrative state that is the source of those toxic regulations acting like a wet blanket on the economy.” Asa Hutchinson used similarly war-laden language, pledging “to reduce … 10 percent our federal nondefense workforce. That’s a specific pledge … that attacks the administrative state.”

Reducing the administrative state is a pro-Constitution sentiment. Federal agencies often unconstitutionally wield the powers of all three branches, making rules and regulations, enforcing them against violators, and adjudicating guilt before in-house judges. And when individuals go to court to challenge the agencies’ power, deference doctrines require judges to defer to the agencies’ interpretations of statutes and regulations—even if there’s an objectively better interpretation. In short, administrative agencies now act as judge, jury, and executioner, in violation of the Constitution’s promise of separation of powers.

But what can the president do about any of this? A few of the candidates seem to think they can simply get rid of entire departments with a snap of their fingers. Ramaswamy, DeSantis, Burgum, and Pence all vowed to abolish the Department of Education. But even assuming the DOE or other agencies are unconstitutional or a bad idea, there are limits on the president’s ability to scale them back. A president could refuse to make appointments, get rid of executive department-created boards, spend less than Congress has appropriated (through a process called “rescission”), or eradicate specific abusive practices, but they’ve historically sought authority to make more sweeping changes to agencies and departments via reorganization legislation.

In other words, eliminating DOE is going to require support from Congress. Maybe what the candidates mean is that they’d seek congressional authority to eliminate various departments. But form matters.

The candidates also seemed to misunderstand the scope of presidential power when they suggested they’d invade Mexico as a response to rising opioid abuse, which they blame on Mexican cartels. DeSantis said he’d “send troops” into Mexico to take out fentanyl labs and drug cartel operations. Pence referred to “partner[ing] with the Mexican military” to “hunt down and destroy the cartels.” And Ramaswamy, Hutchison, and Tim Scott all alluded to using military resources to stop the flow of fentanyl at the border.

The president can’t just invade other countries. Congress, not the president, has the power to make or declare war. As James Madison wrote, “In no part of the Constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.” This allocation of powers prevents the “temptation” that would arise for one person to make such a weighty decision. “War,” he concluded, is “the true nurse of executive aggrandizement.”

The president does, however, have the power to repel attacks. Perhaps that’s why some of the candidates used language suggesting that the flow of fentanyl constitutes an “invasion” of the United States. Ramaswamy alluded to “the invasion of our own southern border,” DeSantis said he would declare the situation a “national emergency,” and Chris Christie said China was engaging in “an act of war” by sending chemicals to Mexico to be used in creating fentanyl. This is the same rhetoric the state of Texas is using to justify putting buoy-barriers in the Rio Grande, potentially in violation of federal law and Mexican-American treaties. But as law professor (and Cato’s B. Kenneth Simon Chair) Ilya Somin argues, neither immigration nor drug smuggling are an “invasion” in the constitutional sense.

As Justice Robert Jackson famously said, emergency powers “tend to kindle emergencies.” If the last few years have taught us anything, it’s that we should take care before calling something a crisis that requires executive intervention. Since COVID, we’ve seen politicians suggest there’s a student loan crisis, a climate crisis, a gun violence crisis, a border crisis, and a drug crisis. The president, say the candidates, can save us from all of these problems.

This is just the demagoguery our Founders were worried about and it’s why they imagined an office that would resist the “transient impulse[s] of the people,” not one that would egg those impulses on by calling everything an emergency.

The candidates aren’t the only ones with an exaggerated sense of the president’s importance in our constitutional structure. One of the debate’s moderators asked each candidate how they’d “inspire us.” But as Federalist 69 notes, compared to English monarchs, American presidents have “no particle of spiritual jurisdiction.” That is, Americans don’t need a spiritual leader. We need a president who will respect the Constitution and the modest role it creates for the federal government—including the executive.