The Crack-Up of American Democracy

DAN KURTZ-PHELAN

Tino, thank you for joining me.

MARIANO-FLORENTINO CUÉLLAR

It’s my pleasure. I’m very glad to do this.

DAN KURTZ-PHELAN

Your work and your experience as a scholar and a sitting judge gets at the intersection of national security, the law, and democracy in a pretty unique way, and I suppose technology as well, I’d throw in there, but I’ll leave that one aside for the moment. So many of the central issues in both domestic and foreign policy at this moment in history are at that intersection, the one you’ve worked at. So, let me start with one that I think is pretty front of mind for many people in our world right now, and that’s the lethal strikes by the U.S. military on boats off the coast of South America, both in the Caribbean and the Pacific, suspected of smuggling drugs. These represent, I think, one of the more startling examples of [U.S. President Donald Trump’s] expansion of executive power since returning to the presidency earlier this year. Leaving aside for the moment the policy implications of the strikes, how are you processing the legal arguments and what this means for executive power more broadly as you’re watching these play out?

MARIANO-FLORENTINO CUÉLLAR

Well, Dan, you’re right that my experience pushes me to think a lot about the law and the role it plays in our governance and our decisions as a country, but also about how the country understands its relationship to the world. And these strikes implicate both issues. At the end of the day, nobody can expect an American president not to have front-and-center concern about how to protect the country, how to make sure that Americans are safe. But for many, many years, Americans have also generally understood that among the most important decisions that the framers of the Constitution made is that they didn’t want a president who was going to be treating the decision to start a war lightly. They didn’t even want a president who was going to treat the decision to start a war as the president’s own decision. It’s unambiguous in the Constitution that the process of starting a war, at the end of the day, formally speaking, lives with Congress.

Now over many years, the country has come to realize that the line between war and peace is not so much a line, but it’s a continuum. That’s true, that at the end of the day, there are many ways in which the U.S. military has to act to protect American interests and to protect America in lawful ways that might involve actions that some would consider warmongering. But the reality is whether you’re dealing with issues in our hemisphere as they’ve arisen in Central America, or the Caribbean, or the Middle East, or other parts of the world, the hardest judgment calls that presidents have to make is both, “How do I protect my country militarily and otherwise?” but also “How do I follow the law and make sure I don’t end up treating the decision to target a human life, or a particular boat, or a particular set of people, or a particular city as just my own without any constraints?”

So with all that as backdrop, I would say I think a lot about the question of how we live up to the Constitution’s commitment that Congress is central to this decision. The president can take some decisions around immediate action to protect American interests that are pretty unambiguously within the ambit of the law. This feels to me a little bit less clear, et al. And then the second issue is America spent a lot of time and energy building a framework and supporting a framework post–World War II that’s supposed to discipline countries and make it possible to defend their interests, but at the same time, not just make decisions that shoot from the hip about armed attacks and so on. So I also have my questions about how this fits under international law.

DAN KURTZ-PHELAN

I’m not sure the administration has articulated a particularly clear theory of the case for these strikes. They’ve talked about stopping drug flows, but as many critics have pointed out, this is not how fentanyl comes into the United States, and that’s of course the most damaging drug flow into this country. But one possible objective here, and I think one that some parts of the administration hold, is regime change in Venezuela—really overthrowing the Maduro government. Can you see these strikes expanding into that kind of action and do you see any checks on it? It’s been a long time, as you pointed out, since Congress has really decided to step up and put constraints on the executive, and it’s hard to imagine this Congress doing so.

MARIANO-FLORENTINO CUÉLLAR

Well, let’s be perfectly clear. The Maduro regime is in many ways an abomination. It’s treated its own people unfairly and brutally. It has not engaged in responsible conduct abroad. It has not respected its own people and their own democratic decisions. So that ought to be perfectly clear. And there are plenty of things that the United States can do and probably should do from the perspective of its own interests, including public diplomacy, economic sanctions, making sure we’re perfectly clear with our allies and other countries about where we stand on Maduro. That’s one thing.

But is it possible that the United States could expand these strikes into a more direct campaign and military action, including troops on the ground? Well, these days, one has to take seriously what the president says. And certainly there have been statements by this administration suggesting interest in going in that direction, potentially.

And then you have history, and history reflects more than just what we know as the Monroe Doctrine. It’s one thing to tell other powers, “Don’t mess with the Western Hemisphere. Respect sovereignty in the Western Hemisphere.” That’s not only in America’s interest; that’s in the world’s interest. We don’t want anybody to assume that the Western Hemisphere is open game for big-power politics. It’s another thing for the United States to be engaging in military action that can lead to war.

And I would say that historical record is not one that suggests this is an easy or straightforward benefit for America. There are times when we’ve intervened in places like Central America, the Caribbean, and perhaps, even though we want to support democracy, we end up giving rise to pretty brutal dictatorships there in ways that complicate our own hemispheric situation, in terms of what follows after an American military invasion.

So I think about the decision to engage in military action that can lead to wars, the most serious decision that any president can make, and that’s when it’s particularly incumbent on a president and the president’s advisors to think, “What are the unintended consequences? How does this affect the other countries in the region: Brazil, Colombia, countries that are vital to our interests?” If we’re interested in stopping the flow of migration to the United States, is creating a political and a military crisis there a good way to do that, right? So I would say there’s the question of, “What does this foreshadow, what does the president say?”, but then also the question of how one might hope and expect a responsible leader to think really hard about the consequences for America.

DAN KURTZ-PHELAN

These strikes are one of the more startling, I think you could say, examples of an assertion of executive authority that we’ve seen in the Trump administration, but it’s of a piece with actions that have gone back to the early days of the second term. You wrote a piece about how to understand the risks of a constitutional crisis and a democratic crisis. Part of that piece was about urging people not to overreact to certain things that may be radical policy changes or even norm breaking, but not fundamental threats to that structure. But it was also about how to understand what did keep the structure in place and where to focus. What was the framework that you brought to those questions, which have become quite central to a whole host of debates these days, and what are the elements of the answer? What should we be focused on and not focused on?

MARIANO-FLORENTINO CUÉLLAR

Well, Dan, let’s take presidents that have a role in our history and are generally viewed in a benign light. [That] doesn’t mean that everything they did was positive, but you can talk about George Washington, Abraham Lincoln, Franklin Roosevelt, Ronald Reagan, some more recent ones, and all these presidents, they understood that the Constitution left some gaps and that those gaps would require a president to sometimes engage in judgment calls about how to execute the power that was given to the federal government through a statute, how to deal with some of these hard questions around line drawing of what’s military action that’s permissible, what isn’t. But my point in the piece was to assert faith in America and its framework by starting from the premise that we’ve dealt with questions of executive power for a long time, but we’ve dealt with them in part by relying on some qualities of our country that help keep things in balance.

The first is the courts. At the end of the day, it’s true that courts, in some respects, seem like what [U.S. constitutional scholar Alexander Bickel] once called the “least dangerous branch.” They don’t have a standing military. They don’t have a giant police force they can deploy. They’re supposed to decide things one case at a time. But it’s not by accident that so many Americans have come to care deeply about what a Supreme Court says and does. And by the way, as I pointed out in the piece, when you have a particularly conservative Supreme Court— nobody can argue the Supreme Court isn’t filled with jurists that have been chosen by Republicans in some cases—and as a judge, I can tell you this: you shed any partisan background when you get onto the court. But the point is, to the extent you can read the tea leaves, read the opinions, get a sense for where the Court is, this is not a Court that is not conservative, if I can put it that way.

But so, one point is when courts, including courts that you might be taken to assume to be in sync with the president, speak, they speak with the authority that is more moral, ethical, and symbolic than just, “Can they deploy a police force?” That’s point number one. And it’s not just the rank-and-file American public; it’s American business that cares about this. It’s our relationship with people around the world that view America’s rule of law as being a key element of the country.

Second, the country is a federation. At the end of the day, we have an enormously powerful tradition balancing the power of the federal government with the power of the states. It’s not an accident that states are front and center when it comes to elections. They’re front and center when it comes to the huge amounts of responsibility over people’s day-to-day lives, law enforcement, and so on. So even if you think about expanding the power of some federal law enforcement agencies or these troop deployments, the reality is the vast amount of law enforcement power and responsibility is—and I believe Americans want it to stay—at the state and local level. If you take spending and look at all government spending and take out debt service, the military, and entitlements, the vast majority of spending by any government in the United States is done by state and local governments.

And then number three, we have an independent media and ideas sector. So press, media organizations, ideas sector, places like the Council on Foreign Relations, the Carnegie Endowment for International Peace, and the Brookings Institution, they all play a role in making sure people have access to honest information. So the point I make in the piece is there are definitely reasons to be a little concerned about a shifting landscape and some more aggressive assertions of executive power. But let’s start by recognizing what these guardrails are so we can understand that what America provides folks is the opportunity to respond to things that might raise concerns for them. And then that plays out over some months and years.

DAN KURTZ-PHELAN

Just to focus on the courts, I think this has been a cause of some concern for many skeptics of the expansion of executive authority over the last several months. I think part of the way I read that piece at least was that you were urging people not to expect the courts to do too much, that there were limits to what they could do, not just, as you said, because they don’t have an independent enforcement authority, but also because they move slowly and tend to be small-c conservative. How do you assess the performance of the courts in these last eight months? What should we read from decisions we’ve seen about the Supreme Court, but also the federal judiciary more broadly?

MARIANO-FLORENTINO CUÉLLAR

Well, like you, I’m spending a lot of time trying to read these orders in emergency docket cases and trying to keep up with the courts of appeal or at least the coverage about these cases. And we could talk for hours about even one single case. I mean, that gives you a sense of how dense with action and movement and fact patterns that raise concerns just the last few months have been. The military deployments. You’ve got questions involving the treatment of people who are resident in the United States but who are not American, and where do the constitutional rights end. There are questions about the dismantling of whole agencies. So it’s interesting because for some people, in a way, this is part of a broader answer to your question. It might look like we’ve got a clock and the pendulum swings in one direction, then it swings back. And part of the point I’m making in the piece is there are things that pull the pendulum back a bit eventually. And it’s not just the courts, although the courts play a role.

But I have to acknowledge it for some other people, it feels like the clock’s been taken apart. The question of “does the pendulum swing back?” runs through bigger and broader questions about, well, “What does executive power look like in a couple of years? How do elections play into all this? What if we can’t assume that elections are going to work the same way that they’ve always worked, and so on?” And here, the point I’d make is I think there are legitimate questions about whether, for example, the Supreme Court is relying too much on the emergency dockets rather than giving opinions that get into why exactly they’re deciding something, and what the ultimate question is and how they’re ruling on it.

That said, I’m going to sound a little sympathetic to the Court here, having had to judge cases myself. Cases do take time sometimes, and the mismatch between how fast the public needs a decision and how long the court needs to hear argument, to get their ducks in a row has to be taken seriously. And to my mind here, it’s entirely possible that as part of what we’re going to see from the Supreme Court, there’s going to be an effort to get their ducks in a row, to reason through these things, and have cases decided. And maybe some of them will be 5-4, maybe some of them will be 6-3, but to at least have an opportunity to have full and fair discussion be central. And the problem then becomes, “Where is the status quo going to land in the meantime?” And I think here, maybe the Court’s been a little bit too solicitous to the arguments from the executive branch, that the president’s interests outweigh other interests in the interim period. But let’s not forget that those are interim decisions.

And look, let me just look ahead, right? So, phase one of all this is we argue about it. There are some court cases, there are some interim rulings, and people are trying to figure out what is actually going on. Phase two is the Court has to step up to the plate and make some clear decisions. And sometimes, to just be honest, I think it’s hard for me to imagine that there are five votes that would be totally willing to embrace some of what the administration is doing, on spending, for example, which is a clear congressional area of authority. Phase three is going to be how the country, governors, state attorneys general, business, civil society, the media, rank-and-file Americans respond to all that picture. I think it’s important to remember that our country ultimately gives space for those responses to occur, and we have to protect that space and give people a chance to respond.

DAN KURTZ-PHELAN

Many observers who are much less steeped in and experienced in this stuff than you are have watched the slow pace of the judicial process and seen cause for concern that the administration and others can move much more quickly than courts are willing or able to, and that, in some ways, takes the courts out of the game. Do you think that’s an unfair reading? Is that something that you think ultimately we’ll look back and [inaudible]?

MARIANO-FLORENTINO CUÉLLAR

I think many of us can legitimately disagree with the Court about where they’re landing in these emergency orders, particularly when massive numbers of federal employers are getting laid off, where questions about, “Does this money have to be spent?” and that money actually has very direct impacts on the lives of people, medical and otherwise, are at play. But it’s really important to remember that these are interim rulings. The Supreme Court is not finished with these cases. And like I said, it’s hard for me to imagine that the rule of law values that I expect have to live very powerfully in the courts will be easy to square with some of the arguments coming from the executive branch.

That said, I do look at some of the arguments that the executive branch has advanced, and they make me raise my eyebrows. I’ll say that in a very mild way. At the end of the day, the idea that the president is the same almost as the entire executive branch, it’s just hard for me to square with what the text of the Constitution says. Congress has the power to create offices. Congress ultimately is passing the laws. And certainly, the fact that the president has to take care that the laws be faithfully executed is not the same thing as a line-item veto, saying, “Oh, well, I take care that the laws are faithfully executed. This money’s supposed to be spent, but I don’t think it really needs to be spent.”

I’m waiting for the Court to fully work through those issues because we have precedent on the books, the Train v. City of New York case in the Nixon years, that make me feel like it’s pretty clear that you’ve got to keep Congress front and center on those spending issues. And I use the spending issues just as one example. There are other things afoot, right? But that’s one instance where I really do think in the end, the courts will probably reach a better place.

DAN KURTZ-PHELAN

So you write in that piece, and I’m quoting you here, “It is one thing for Vice President J.D. Vance to publicly warn that ‘judges aren’t allowed to control the executive’s legitimate power’ but quite another for the president to ignore an explicit, unambiguous decision from a court.” What would a full-fledged showdown between the branches look like, and where’s your level of concern as you look at dynamics so far?

MARIANO-FLORENTINO CUÉLLAR

Well, this administration seems perfectly willing to be bold in their statements sometimes. So it would be candor on their part to say, “You know what? We think the Court should do its thing, and we’re going to do our thing. And we don’t think the Supreme Court here has any bearing on the outcome of this case.” Even this particular, specific case, let alone like cases, “We’re just going to do our thing because we think we are the ultimate decider when it comes to executive power.”

I have a concerted hope that that’s not where this or any administration would go. That’s not a lot of respect for a coordinate branch of government that the framers treated as important enough to elevate to the level of Congress and the executive branch. And I think there are a lot of also political and practical reasons why you don’t want to raise questions about the rule of law in America or about whether a president believes that Article II somehow just has no limit on what power the president then has to do stuff.

Look, I think at the end of the day, Americans expect that the executive branch works in good faith. What does it mean to act in good faith? I think it means to take seriously that any action you take is about more than just the short-term policy impact on politics. It’s about safeguarding the trust that any of us who’s ever served in government I know felt, or should feel, that we are stewards, we’re fiduciaries for a country, and we have to hand it off in better shape than we got it. And that often involves accepting limits on what you might want to do in the short term. It’s the stuff we teach our kids, in a way. And I have enough faith in America that I don’t think we’ve lost that completely, but there’s a lot of rhetoric flying around that makes me a little more concerned about these things now.

DAN KURTZ-PHELAN

You mentioned some of the other guardrails that work in concert with the courts. One of them that you focus on in the piece is states and American federalism. I think we’re seeing a really interesting dynamic here, and I wonder whether you think that guardrail is working the way that you imagine. I mean, you both see the federal government using its own power much more aggressively, whether it’s restricting funds or deploying federal law enforcement to states and cities that explicitly do not welcome it. You see different states weaponizing federalism against other states in ways that have certainly surprised me. How do you see that guardrail holding up? And is that the way this is supposed to work, or is there something changing here?

MARIANO-FLORENTINO CUÉLLAR

There was always, I think, a sense, post the Civil War, that this question of federal and state power and its balance had been settled, in a way. I think if you look a little bit more closely, there was also probably, if you’re honest, an appreciation that some things had been settled. This is one nation. States don’t secede. But it’s also a nation founded up to and including in its very name, the core of it being about a federation and about a model of shared power and shared sovereignty.

[Former U.S. Supreme Court Justice Anthony Kennedy] likes to talk about how the framers split the atom of sovereignty, and that was one of their remarkable contributions into the sort of physics of our politics. [Former U.S. Supreme Court Justice William Rehnquist], both as an associate justice and as chief justice, made it a central plank of his jurisprudence to protect the role of the states, to assure that states were not going to be commandeered by the federal government and repurposed and just sort of told, “You’re just going to be a department of the federal government. You’re going to be a province just like you might be in any number of other countries around the world.”

Instead, states have an element of separate power and sovereignty and closeness to the day-to-day lives of people. And it feels to me like that naturally now is playing out as a set of arguments between governors and the federal government that are part of what the design of our system allows for and expects in some ways. And that was happening before Trump in [the Biden administration] and with [the Obama administration], and it’s happening now. I do think the courts, federal and state, have a role to play in shaping and arbiting that, but it’s also the decisions that elected politicians are playing about their own constituencies and what they need.

And I would just note that, to my mind, the work that Governor Spencer Cox is doing in Utah to highlight the need for governors and state officials to model productive disagreement is a powerful contribution to the country. I’ll also just note, [California Governor Gavin Newsom], after the very tragic killing of Charlie Kirk, made a powerful statement about the importance of peace and believing in the dialogue and disagreement that can come to college campuses with people like Charlie Kirk, and how awful it was that we are risking descending into real political violence sometimes. So those kinds of clear statements on behalf of what the American project is coming from governors make me feel very hopeful.

DAN KURTZ-PHELAN

You and Jenna Bednar wrote a fascinating piece in Foreign Affairs in 2022, I believe, about this shifting dynamic between states and federal governments. This piece, at any rate, it argues that federalism has been and can be a strength through the United States. It can also be a risk and a weakness. You can see fracture and dissension growing out of federalism, especially as that balance shifts. What would worry you in terms of that balance? Can you see fracture? Can you see kinds of dissension? This does not mean we need to get into civil war discourse, but the idea that this could become a source of weakness and disarray for the United States certainly doesn’t seem that far off right now. What might that look like?

MARIANO-FLORENTINO CUÉLLAR

Well, let’s go back to Congress, because I think at any moment in history that I can imagine, including periods in history that I’ve studied as an academic before the current moment, there have been good arguments made that Congress was performing not perfectly. In a way, Congress is sort of designed to represent so many different interests, voices, perspectives. It rarely acts with beautiful coherence. That said, I think right now, one of the real challenges with Congress is that, for all the disagreement that has to be part of the American experiment and project—about taxes, about foreign policy, about technology policy, and so on—you also hope and expect there’s going to be some commitment to working across divides sometimes on partisan projects that then become transpartisan and even bipartisan.

And you also expect that when people are thinking about gaming out their strategies—how it is, for example, that Congress might simply not even give a nominee of a president for the Supreme Court a hearing, an up or down vote—there’s always been—not always, but there’s long been—when there’s been a period of productive congressional activity, a sense that it’s not just the written law in the Constitution, but a set of norms and understanding about how you need to treat the opposition with a modicum of respect so that that can balance the natural partisan urges and pushes. That’s largely gone from Congress right now. I don’t think it’s completely disappeared, but I don’t think anybody could argue this is a moment where there’s a lot of that restraint and collaboration going on.

I think my concern on the state level is that I’ve already defended the idea that part of what we can expect from governors is to push back when they think that the president is acting without legal authority, to sue when they think the president is acting without legal authority, to make a case to the people of their state and even beyond, that there’s a need for a different kind of approach to American politics.

But there’s also such a thing of just not exercising restraint and going to the mat. I mean, here we can talk a little bit about the redistricting battles, but certainly it would look like a different country if every state official were just trying to maximize partisan advantage. And in particular, I would just note at the end of the day, free and fair elections in America are first and foremost a state responsibility and depend on the kind of restraint I’m talking about. And I can point to state officials on either party side that have been very responsible in trying to safeguard and protect that, in places like Arizona, in places like Georgia, in places like Michigan. So I do worry about eroding that muscle memory that allows us to sustain that. But like I said, I think that there are some good governors one could point to that are trying to protect that.

DAN KURTZ-PHELAN

Spencer Cox, whom you mentioned, the Republican governor of Utah, who’s been pretty explicit that he’s in favor of devolving more power to the states from the federal government, shifting the balance back to the states would, in his view, be good. Do you share that notion that at this point, for both American democracy and America’s role in the world, having states that can experiment more, that can drive policy in various ways, more than they have in recent decades, would be a good thing?

MARIANO-FLORENTINO CUÉLLAR

Yes is the short, unambiguous, and clear answer. It’s good to be clear about it. Absolutely, I do. This is one area, Dan, where the rhetoric about states as laboratories of democracy, states as critical to the story of America, is just unambiguously correct.

Let’s remember a couple of things. Number one, this country has a very diverse history. Not every American lives in a state that can trace its origins to the 13 colonies. At the end of the day, many kinds of life experiences from all over the world coexist in this beautiful and extraordinary country. We believe in one nation, but at the same time, we pursue that belief in different ways. And then we’ve got a continent-sized economy and geography that best works by allowing states to play around with ideas a little bit and figure out on the crucial matters that so daily affect people’s lives, ranging from education to law enforcement to land use. They have just a degree of latitude in making the democratic project succeed.

Now, at the end of the day, that does call for responsible behavior on the part of state officials, again, and it does also require us to remember that being one nation, having one U.S. Supreme Court, having one president, having ultimately one foreign policy does create a burden and a responsibility on the states as well.

DAN KURTZ-PHELAN

So you stressed in that [April] piece, and again, quoting you here, “What usually matters most . . . is whether political representatives, key business leaders, career government officials, civil society, and the general public are prepared to act before an executive power grab saps them of influence.” We’ve seen lots of developments here that would’ve been unthinkable a couple of years ago over the last several months. I think about the treatment of law firms or deployment of federal law enforcement. What else has worried you or surprised you as you’ve watched what has played out since you wrote that piece?

MARIANO-FLORENTINO CUÉLLAR

Well, I’ll tell you something that concerns me, but also something that gives me a little bit of hope. We have to recognize that countries don’t always get along and have legitimately different interests on everything from the law of the sea, to their own international security, to what it is the economic model of the world should be. That said, if I think about the prosperity that has been achieved in America, relatively speaking—not always equally distributed, not always in every region, but where lives are better now than they were 50 years ago by a good long margin—I believe that that prosperity has depended, to some degree, on the way the country has understood that the well-being of Americans depended on winning the Cold War; that it depended on building relationships of international cooperation with allies abroad, places like South Korea and Japan; that it depended on building a robust global economy that would buy American products and services, welcome American technology at times.

The tariffs that are being imposed right now, taxes, effectively, on international trade—I’m not saying that everything was perfect in the global economy ten years ago, 15 years ago. But I do feel like it’s just important to realize that very little about how we understand economic life—the prices we pay, the ability of our farmers to sell their products—is disconnected from that idea of a web of economic relationships that can then strengthen America and protect its security, strengthen and increase its influence in places like Asia that are so crucial for the future of America. I have been concerned about how much the disruption in those patterns is going to leave a lasting effect that is going to go way beyond any trade deal that does or doesn’t happen with China in the next few days. It’s nice to hear [U.S. Treasury Secretary Scott Bessent] say, “Oh, we’ve got a framework for a deal with China.” It’s nice to hear the president’s optimism about this.

But questions that come up in my mind include, “What is the basic pattern going forward now? Are we going to have these explosions and ruptures in international relationships every 18 months, every two years, every three years, every five years? When and how? What kind of predictability does that create for the American business model, which is very much about being innovative and dynamic with our technology, our services, our people, and their talents?” So that concerns me.

Now what is encouraging to me is that this is one area where you do see coalitions that form, that cross political divides. There are people who might disagree about taxes, about environmental regulation, about the role of the federal government, about what makes for good international security policy, but they agree that the best way to read the International Emergency Economic Powers Act, IEEPA, is not to read it as giving the president zero constraints on imposing taxes on international trade whenever he feels like it. And that’s why conservative groups have joined some of those coalitions in the cases that are working their way up to the Supreme Court.

DAN KURTZ-PHELAN

And Trump, just to be clear, has used IEEPA as the basis for at least some of his tariffs at this point.

MARIANO-FLORENTINO CUÉLLAR

Yes. And by the way, let’s remember that it’s not like that’s the only law that is available. There are other laws Congress has enacted that does give the president some leeway in imposing temporary and other measures, but subject to constraints. The thing about the International Emergency Economic Powers Act is that the powers that it confers to act, when it allows action, are broader. But the question of when it allows action, what constitutes the kind of emergency that really allows you to go forward—I mean, here, it’s a different technical legal question than the troop deployments, but at core, it starts to sound very similar, Dan, which is, if there are statutory provisions that talk about when the president can do something, does that actually limit the president or does it just tell the world that the president can just activate those authorities whenever the president feels like it? And I think it’s not a conservative or liberal issue to say, “We live in a country of limited powers for the presidency.”

DAN KURTZ-PHELAN

Another driver, and arguably a more important one, of American economic success and innovation over the last several years is the technology and research base. And you can look at different parts of that. Many of these are very close to your heart and your experience. You taught at Stanford for a long time and spend a lot of your time, still, in Silicon Valley. There have been a number of moves in recent months that people within the tech community, especially, or the research community have seen as threats to that base, whether it’s the attacks on federal funding for research universities, or new restrictions on H-1B visas, the immigration crackdown, plenty of other concerns you could look at. To what extent do you have concerns about the sustainability of the American innovation ecosystem?

MARIANO-FLORENTINO CUÉLLAR

I have strong concerns, Dan, and I think in the end, to me, it’s so important to recognize that the lives that people are leading right now, with cleaner air and cleaner water; with access to extraordinary technology, supercomputers on their wrists and in their pockets; the ability we have to communicate information across divides and push the frontiers of science on the issues that matter so much to so many American families around healthcare for their loved ones—all those things depend on this giant and complex infrastructure, that the hub of which is in the United States, to be honest. This is not the only place where you have cutting-edge scientific and technical innovation, but it’s really the hub of that, and not just California; you see extraordinary breakthroughs in biotech in the Boston area and New York, you see amazing innovations, and whether it’s fintech, or edtech, all over the country.

We have to recognize that as these new technologies become more and more a part of our lives, of course there are always going to be interesting policy questions about how best to manage those technologies, how best to strike a balance between our autonomy and working together with some of the companies that develop these technologies and so on, the role of government.

But at the end of the day, those breakthroughs depend on an infrastructure of research funding for universities and independent research institutes; breakthroughs in the national labs; the free spread of ideas across our society; our ability to pull some of the most extraordinary talent either to work in some of our companies when they’ve been educated abroad or, very, very often, through student opportunities in our graduate schools, where in biology and physics, engineering departments, some of these students from abroad work alongside Americans, form companies in the future.

You know, the irony of success sometimes, Dan, is that when people experience it and begin to take it for granted, they stop [thinking] about all the intricate ways in which that ecosystem has to be supported and cherished and protected. So to my mind, we just have a lot of work to do. And frankly, some of that work does include making a compelling case to so many folks in Middle America who may not be thinking about this or may not realize how much their own families, their own health-care, might be affected by these breakthroughs, that they’re also part of this process, that their own kids and families are part of that ecosystem and making that a real promise.

DAN KURTZ-PHELAN

To what extent does the immigration crackdown present a kind of acute threat to that in the medium term?

MARIANO-FLORENTINO CUÉLLAR

I think it interacts with these issues, and there are sort of three questions to my mind that come from that kind of crackdown. The first one is: What is it that we [are] really trying to accomplish? And I do note, in the long history of American immigration policy, it’s a pretty clear pattern, particularly I would say from the 1960s and 1970s onward, that in order to get Americans to believe that the system is working, you have to hold the line and be somewhat able to show a degree of order in the process. And that includes action in appropriate measure at the border. It includes thinking hard about how to make sure that other countries understand the role they have to play, for example, in hemispheric migration. I note the [Los Angeles Declaration on Migration and Protection], which is something the previous administration worked on, to get countries like Colombia, countries in Central America, and others, to be part of a process where migrants stay in the countries that they’re in, rather than having them effectively use those countries as transit points to get to the United States. So there’s all of that. So what are we trying to accomplish and what role does that crackdown play in it productively? Second, who else is being affected? Are there Americans being affected? Are there American families being affected? And then third is the question of: What is the proper balance and set of priorities for the federal government? I worry, for example, about how the law enforcement priorities that might be set right now might affect broader strategic goals that we might have for law enforcement to target drug trafficking or national security–related matters.

So I think there’s all of that, but then the backdrop also is, at the end of the day, it’s not rocket science. If we want to make sure that Americans who come here lawfully to be part of our talent economy, feel like they’re welcome and engaged, we have to make sure that there isn’t some sense that folks are not welcome in this country simply because they weren’t born here.

DAN KURTZ-PHELAN

Universities are an incredibly important part of that ecosystem. You are on, effectively, the board of Harvard University. I know you’re not going to talk about the negotiations between the federal government and Harvard, but you have spent a lot of time in universities and understand what it takes to ensure their continued success and their continued role in that economy. What would worry you when it comes to the future viability of America’s leading universities? We’ve seen major drops in the number of foreign students, and certainly that’s become at least a financial cause for concern in the near term, but there are plenty of other issues to worry about. Where would you focus that concern?

MARIANO-FLORENTINO CUÉLLAR

Well, Dan, I’ve been around universities quite a bit, and I wouldn’t use the word “would.” I’m going to use the word “does” worry me, at the end of the day, because I think that the reckoning has arrived in a couple of ways. Let me start by acknowledging that no university, not even the most sophisticated, most innovative, most dynamic research powerhouses are perfect. And to my mind, there are issues that the university sector has to work on seriously. Affordability—we don’t want Americans priced out of a great university education, which is the right path for many Americans, maybe not all Americans. Two, we need to make sure that universities are vibrant places where different ideas are accepted and warmly welcomed—different ideas, expressed in good faith, rooted in knowledge and facts, and in honest engagement with others.

But at the same time, it’s very clear to me that the enormous benefits that our research enterprise has generated, the spinoffs that go into startups, the breakthroughs that fuel the drug trials, the medical devices that result from the extraordinary breakthroughs in engineering, and biomedical engineering, and so on, but also the ideas, our ability to understand our society, our economics, our social dynamics, the psychological challenges that sometimes face particular organizations or people and so on—all of that is dependent on big investments in research and also on the ability to attract and retain talent from all over America and from all over the world.

So we’ve got some work to do here. And I think part of what that conversation might entail right now, when there are restrictions in funding that are being imposed and cuts in funding for [the National Institutes of Health] and [the National Science Foundation], is a broader conversation ideally to do two things. One is to put the financial model of universities on a more secure footing, to think, again going back to your point about Jenna’s and my article, to the states. What role do the states play even for private universities? How can they help support what then in turn returns benefits to their own populations and beyond? How can the private sector play its role but still keep the independence of universities intact? And then the other piece is making sure that more Americans feel like this whole university sector really does have a connection to them, that they can send their kids there, that they can afford it, that their ideas from all backgrounds that are being discussed, that no matter what your background as an American is, that you can feel welcome there.

DAN KURTZ-PHELAN

I would point people to trenchant pieces that Rafael Reif, the former president of MIT and Amy Zegart, a scholar at Stanford, have done for Foreign Affairs in recent months.

On another dimension of the critical set of tech questions right now, it’s how we think about AI. There was a period after, I don’t know, probably in late 2023 after the initial release of ChatGPT, when there was a lot of discussion of putting guardrails on AI and looking at risks and regulation in pretty focused ways. I think it’s fair to say that over the last year or two, we’ve shifted to a much more accelerationist mode. Some of that is driven by the sense that there’s a race between the United States and China, and that we need to get rid of any restraints that might restrict the ability of American companies to engage in that race. I think some of this is also aligned with the policy changes in this administration. How do you understand where we are both globally, when we think about the competitive aspects of this, but also when it comes to risks, risks that were quite central to conversation a couple of years ago, but have fallen out of that to a considerable degree?

MARIANO-FLORENTINO CUÉLLAR

Dan, it’s useful to remember that part of what has been achieved with the AI sector is breakthroughs that were hard to imagine even five years ago. And the weird thing about our relationship to technology is that once it begins to be a little bit ubiquitous, you stop thinking about it even as technology or really advanced technology. It just gets priced into how we think about the world. And I think now, it’s basic, the conventional wisdom among American policymakers, and rightly so, that a major goal of the United States should be to be the place that is at the frontier of this technology, for two reasons.

One of them goes back to your point about safety and risk. Point number one is that democracies work differently than other kinds of countries. I’m not suggesting that every country should have the same form of government, but I do think democracy is a powerful and important contribution to the conversation about governance and how the world is run. And the fact that democracies have not only technological and military power, but economic might, makes the world different, even in nondemocracies. So staying at the frontier of AI means that democratic forms of government will be at the fore as we work through, What does the world do with these breakthroughs?

Second, the technology has, to my mind, enormous potential to make expertise and analytical insight available to billions of people in ways that previously was really restricted to folks who could pay for a sophisticated doctor, lawyer, et cetera. And I think that is likely to provide room for real improvements in human welfare around education, healthcare, even legal services, all kinds of other domains, agriculture. But it’s hard for me to imagine that you can have all those benefits and not also face some risks that come from having these models enable behavior that is malicious: cyber exploits, for example, possibly the development of biological weapons in some settings. But also, that maybe just complicates governance and complicates collective action among people, complicates diplomacy, complicates international security. So it does feel to me like it’s a better world if America stays at the frontier there, too, on these risk issues.

Now, I think we’ve seen some folks voice the concern that if there’s any effort, any move toward governing some aspects of the technology by just trying to provide a middle-of-the-road, trust-but-verify kind of approach to guardrails, asking companies, “Well, what have you done to at least test your technology? Can you be transparent about your overall responsible scaling plan?”, that that would somehow limit America’s ability to be at the frontier? I’m not persuaded. I think, at the end of the day, responsible governance that does take seriously the need for further innovation is going to land us in a good place and might even end up being an advantage when it comes to competition.

DAN KURTZ-PHELAN

As you hear those of us in the foreign policy and national security world talking about AI, as you take part in that conversation and listen to that conversation, do you think that we understand the effects of AI correctly or is there something about that conversation that you think misses the core concerns here?

MARIANO-FLORENTINO CUÉLLAR

I think that one place where it feels to me like even fairly technically oriented people fail to fully capture or understand how the technology works has to do with its ability to basically be creative. Let me note the following argument, which I think is pretty familiar. This technology exists in its current form, at least foundation models that lead to generative AI and are instantiated, and primarily models involving language, those are the ones that have gotten the most attention, but increasingly also generate video, sound, et cetera. But they’re trained on a giant corpus of existing words, of articles that you and I have written, of blog posts, of endless Quora queries, and so on. And at the end of the day, how can it do anything that different from simply scraping that data and serving as a kind of glorified web search?

First of all, I think the technology we’re now dealing with, which involves models that are, yes, pretrained, but that also do inference-time reasoning already transcends that paradigm quite a bit. You can particularly see it in the increases in mathematical abilities. But second, I think that misapprehends the relationship between knowledge and intelligence. And here, I don’t mean to suggest that every brain works the same or that we even fully understand the human brain, but it would surely be false to assume that because the human brain certainly begins with a corpus of knowledge that we absorb, that we ourselves don’t end up being creative and come up with sometimes just fundamentally new ideas. And I think whether you call it synthetic data or something else, at the end of the day, what all that knowledge enables, either an artificial or natural intelligence, can be genuinely creative. And particularly, I think, as the models evolve and are less constrained by the current commercial imperative, at least that was felt earlier, to make the same model effectively useful for a thousand or a million different things, and instead to create more specialized models—you kind of can get at this a little bit with different prompting strategies. 

But all that is going to make people understand that whatever else we think are limitations in these technologies, even under the current paradigm of technology, there’s not a lack of creativity there. And that cuts both ways, obviously. That’s an enormously enabling thing. We are creating a new kind of intelligence that can be creative, to my mind, but it also means it can behave in ways that we don’t expect.

DAN KURTZ-PHELAN

How will that change geopolitics and our national security?

MARIANO-FLORENTINO CUÉLLAR

Because we’re likely moving to a world where the decisions around major diplomatic initiatives, but particularly around military activity, when, for example, to not only deploy a particular vehicle or squad of drones, but increasingly how to think about the benefits and costs of doing a military exercise with another country will increasingly be advised by these technologies and perhaps even just decided. And I think even if the hardcore of diplomacy remains very much in human hands, having diplomats who understand the technology, how it can work well, how it can go badly, how, for example, AI agents that are able eventually to modify themselves will interact with each other and develop properties that are going to be hard for their human users and overseers to fully understand how that will be in real time affecting our diplomatic judgments.

I’ll give you the analogy to financial markets at the end of the day. Nobody could reasonably argue in the pages of Foreign Affairs that you can have a diplomatic strategy that’s divorced from economics, that you can just not think about what the stock market will do, what the bond market will do, or what sanctions a country might impose and still have a good diplomatic strategy. I think in the same way, there will be no diplomacy that isn’t accompanied by a tech strategy, in effect. I mean, already, we see some beginnings of that around the way information is transmitted and consumed across borders, but I think that will become a more severe and interesting part of the picture.

DAN KURTZ-PHELAN

I would note that I’m not sure the entirety of the Carnegie team that works on this, but much of it is made up of former Foreign Affairs editors, two of whom, Nikita Lalwani and Sam Winter-Levy, wrote a great piece for us recently on the intersection of nuclear strategy and nuclear deterrence in AI, which was trenchant and a little disconcerting.

I want to close by going back to where we started, and one thing that was really striking to me about the strikes on boats, the lethal strikes on boats in the Caribbean Pacific in recent months, is that it went back to a warning that you made in that piece in [April]. I’ll read a passage from it. You wrote, “Consider a scenario in which the administration sets out to consolidate power more incrementally. It might begin by using legal channels to gradually neutralize constraints on executive power, building on, say, its use of the 1798 Alien Enemies Act to deport Venezuelan migrants to El Salvador. It could [then] advance expansive interpretations of executive privilege or national security authority through actions that initially involve unpopular targets such as immigrants from countries considered dangerous or allegedly affiliated with violent gangs.” That’s been much of what we’ve seen over recent months. How do you know when you’re in a genuine constitutional crisis? What would a crisis look like, as you see these dynamics playing out, and what, to your mind, is overreaction?

MARIANO-FLORENTINO CUÉLLAR

It’s a good question, and in a way, the point I was trying to make there is that the most acute kind of crisis might misleadingly end up—or ironically end up—being a little bit easier to deal with because it so clearly calls into question: What would it look like if there were an actual confrontation between the U.S. Supreme Court and the administration? And the defining feature of it, I mean—and this is the word “actual” is doing the work—is there’d at least be honesty on the part of the administration. They’d say, “Whatever you think the Supreme Court does, it has really no power to command us,” like, “Let them enforce it. Whatever. We’re going to go all out to. . .” And [former U.S. President Andrew Jackson], by the way, did not act that way, but he’s sometimes portrayed as having acted that way. But just, “We’re going to go hardcore, the stereotype of Andrew Jackson, to just say we just think you’re irrelevant to us.”

The more insidious challenge is where a set of constitutional decisions are a little ambiguous. They’re not taken on directly, but meanwhile, the consolidation is happening behind the scenes with a whole set of actions that, at the trial court and appellate court level, are creating just a cloud of uncertainty, both because the decisions are not super clear, what the Supreme Court might do is not super clear, the administration’s broader compliance is not super clear. And that cloud of uncertainty, I think, can be exploited.

And I think America is sort of big and good enough to avoid the worst of those scenarios, which is that, increasingly, court decisions are sort of followed but irrelevant. But if you were to ask me to assess what would help the country give appropriate room to the executive branch to act and appropriate room for them to pursue policies that are different from what the previous administration did, which is part of what democracy is about, when you legitimately win an election, which that occurred, but at the same time, to protect the country, I would say number one, lawsuits are very important, and lots of them, potentially, at the end of the day. There are times when litigation does not solve a problem, but there are times when, yes, bringing the administration back to court or anyone back to court, private-sector entities saying, “You promised to do X, and you’re not doing it. Court, can you please get involved?”, that is not a bad thing.

Two, I would say forming coalitions across divides of ideology, in particular, and recognizing that there are common interests, and making sure that, yes, we have a vigorous presidency, but not one that can decide to just sort of declare a particular statute means whatever the president wants it to mean, full stop. And I think that cross-ideology thing is so important because this is not just ordinary politics. It’s really about macropolitics of protecting what the country’s about, first and foremost, so that we can have all the other political conversations about taxes or regulation or infrastructure, and so on.

Number three, I think it’s important for us to recognize that what truly makes a society vulnerable and corroded and corrosive is political violence and the fear that can permeate when you begin to see an uptick in political violence. So even if you don’t actually have so much violence, if you start to get judges, state legislators, even just private citizens who speak out in conversations online to feel fear, that’s not good for civil society, and it also can make people feel like the point of investing in peaceful, law-bound mechanisms for public security and for dispute resolution is not worth it. That’s really problematic. And so calling out political violence no matter who it comes from, and also being quite thoughtful and clear about pushing back on people who start to use loose rhetoric to target judges or to suggest that they deserve X, Y, or Z thing, it’s a very American thing to protect those structures because that, in the end, is part of what’ll enable us to secure the full promise of America.

DAN KURTZ-PHELAN

I have to say, I know enough people who are either in elected office or public commentators who watched the murders of the state legislators in Minnesota or Charlie Kirk’s killing in Utah and are worried about that kind of violence, which makes me concerned about the kind of scenario you’re laying out.

MARIANO-FLORENTINO CUÉLLAR

And I just want to build on that for a moment. The truth is that we live in a country that is truly extraordinary, and I feel lucky every single day. That’s not a figure of speech or not literally true. It is literally true that I’m an American. But a great power our country has is the power to improve ourselves constantly, to create a more perfect union, to build a more inclusive and effective America, to build an America that is more able to provide its promise to more people.

And the risk of living in a country that in so many ways, however imperfect, has been this successful is that we take for granted some things that we have not faced as much. And you travel outside the United States to any number of countries, including ones that are right next to us, and that nearly pervasive sense of fear and feeling threatened is just a very big reality of public life, particularly for people in public life, but also for regular citizens who just publish an op-ed or do their part to make sure their business is not entangled with corruption. And I think as Americans, we have a giant responsibility not to be ignorant about that special trust we have in keeping at bay, I think, our worst impulses, and disagreeing with each other productively, and protecting our institutions and our public officials, and trying to build a more perfect union.

DAN KURTZ-PHELAN

I want to end on that note. You have written for Foreign Affairs and others about a much wider range of topics, including everything from nonproliferation most recently to the role of the Supreme Court in American foreign policy. All of that’s worth reading. But for now, Tino, thank you so much for all of those pieces and for doing this today.

MARIANO-FLORENTINO CUÉLLAR

Thank you, Dan, and thank you for what you do.