Lawfare Archive: Julian Mortenson on 'The Executive Power'
The Lawfare Podcast
The Lawfare Institute
4.7 • 6.4K Ratings
🗓️ 13 July 2025
⏱️ 51 minutes
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Summary
From April 12, 2019: Julian Mortenson, Professor of Law at the University of Michigan, is the author of a remarkable new article entitled "Article II Vests Executive Power, Not the Royal Prerogative," forthcoming in the Columbia Law Review and available on SSRN.
Recently, Benjamin Wittes spoke with the professor about the article, which Mortenson has been working on for years—as long as the two have known each other. The article explores the history of exactly three words of the U.S. Constitution—the first three words of Article II, to be precise: "the executive power."
Huge claims about presidential power have rested on a conventional understanding of these three words. Julian argues that this conventional understanding is not just partially wrong, or mostly wrong, but completely wrong, as a matter of history. And, he tries to supplant it with a new understanding that he argues is actually a very old understanding of what those words mean.
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Transcript
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| 0:00.0 | The following podcast contains advertising. |
| 0:04.4 | To access an ad-free version of the Lawfare podcast, become a material supporter of Lawfare at |
| 0:11.5 | patreon.com slash lawfare. That's patreon.com slash lawfare. |
| 0:18.2 | Also, check out Lawfare's other podcast offerings, Rational Security, Chatter, |
| 0:25.2 | Lawfare No Bull, and The Aftermath. |
| 0:46.4 | I'm Mary Ford, intern at Lawfare, with an episode for the Lawfare Archive for July 13th, |
| 0:52.8 | 2025. On Monday, Kilmar-Abrego-Garcia appeared in federal court in Greenbelt, Maryland. The Salvadoran man, whose wrongful deportation |
| 0:56.3 | and unlawful detention in an infamous Salvadoran maximum security prison led to a federal court order |
| 1:01.9 | mandating his return, has been indicted on human smuggling charges. As discussed by Roger Parloff |
| 1:08.2 | in lawfare this week, the government's paramount goals in this |
| 1:11.3 | detention hearing, the criminal case it relates to, and Abrago's civil litigation, are the same, |
| 1:17.4 | advancing President Trump's political messaging. |
| 1:20.2 | For today's archive episode, I selected an episode from April 12, 2019, in which Lawfare |
| 1:26.4 | Editor-in-Chief Benjamin Wittes sat down with Julian |
| 1:29.6 | Davis-Mortensen to discuss the executive power, the conventional understanding of the |
| 1:34.6 | executive's authority, and more. |
| 1:51.2 | I'm Ben Wittes, and this is the Lawfare podcast. |
| 1:55.5 | Julian Mortensen is a professor of law at the University of Michigan. |
| 2:04.6 | He is also the author of a remarkable new article entitled Article 2 Vests Executive Power, Not the Royal prerogative. The article is forthcoming in the Columbia Law Review and is available online at the |
| 2:11.2 | SSRN website. I don't usually talk about law review articles on the Lawfare podcast, but I'm making an |
| 2:18.2 | exception this time because I found this article completely fascinating. Julian has been working |
| 2:24.0 | on it for years, literally as long as I've known him, and it is about the history of exactly |
... |
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