tv Book Discussion on Lawless CSPAN January 16, 2016 11:00pm-12:31am EST
>> good afternoon and welcome to the cato institute. then the director of the cato center for studies and your host for today's forum marking the publication of a new book, the obama administration unprecedented assault on the constitution and rule of law. this book in this forum could not be more timely. just yesterday as we all no we witnessed the president telling the nation that he was directing officials in his administration to expand the regulation of the second amendment rights of americans in several ways including apparently by expanding the definition of what it means to be a
business of selling firearms. and he did it now by going to congress but simply by his own authority. if congress will act i will. as many have noted the usurpations and diverted attention from a long list of domestic and foreign policy disasters and their service into a bedrock principle. as we canvas the many constitutional assaults of the past seven years. to do that we need to speak for about 30 minutes discussing several issues and then we will here opposing commentary on the
book and then open it for questions. i will introduce each of our speakers. a professor at the george mason university school of law where he has been teaching since 1995. he has written over 60 frequently cited scholarly articles, the author rehabilitating lochner defending individual rights against progressive reform which has come to all of you , especially those who are still on the persuasion. he is also the author of you can't say that they growing threat to civil liberties from antidiscrimination laws , the author of only one place of her dress, the
i am going to start with an overview of the problem and briefly run through highlights on the lights of the obama administration lawlessness and then delve deeply into the examples. i will spend some time on the progressive left in my view which includes president obama himself. as presidential power has grown over the last century or so so has the use of presidential power. even as the political divide continues to widen one thing unites, any party trying to
aggressively expand. the big reaction to this came in the 1970s after vietnam and the corruption of oregon china restrain the executive and bring more power. these have been largely ineffective. nevertheless until recently in most cases to try to obey the law but we seem to have reached a tipping. this administration has been aggressive about asserting presidential power and doing
so in an unusually wide range of areas. to use a word from the title of my book that the obama administration has accomplished, they came to see this not as something to be ashamed of. but this is a desirable way of governing, something to brag about. they cannot wait. inherent virtue. the separation of powers and the laws on the books in favor of presidential decree as a promoting ata promoting at the expense of law as a proper way to govern that is a matter of last resort but his supporters claim they
are alleged to refuse to cooperate. doesn't contain congress is a bunch of jerks. it just is not there. let me run down some of the examples. going to war in libya in blatant violation he was elected: the present went. and even more egregiously in violation of the war powers act. constitutionally mandated hearings.
modifying and ignoring various provisions of the law in violation of the law itself. the regulations for sexual assault on campus. not through formal regulation, ignoring hundred years of advice from the office of legal counsel, running general motors from the white house without any hint of authorization to do so the favor unsecured creditors, notably the oil workers union, imposing common core standards via administrative feedback and much more kemal laundry list
letlet me just talk about three of them in more detail. the 1st one is one that probably most of you have never heard of, i just mentioned it, but it is important because it is telling about the obama administration's attitude right from the beginning. april 2015 less than three months after inauguration day the administration decides to grant voting rights in the house of representatives. the constitution limits voting rights in congress to representatives of the states. especially designated federal district, not a state. fair or just, not my concern. don't like it, change the law. so you can support this law.
we have years of precedent, the administration all agree they are mostly civil servants and political appointees. mostly their own political appointments with means they bend over backward. therefore one of the very few checks on presidential authority, they tell me i can do something i shouldn't do. the attorney general went to the office and how they did
they can'tcan be a voting member of the house under the constitution. purely symbolic maneuver. pushing for more political power. purely symbolic. nevertheless they were willing to undermine the very few checks internally. and this i think reflected on the attitude that is forthcoming. nothing to do with the extemporaneous command time when democrats controlled the house by a large majority. what powers in libya. mediterranean executive authority.
secretly without congressional authorization. the law says that when hostilities are involved they inform congress 1st is not given explicit approval. some people think it is entirely unconstitutional and that is not the argument the obama administration makes. legally the help. instead president obama's claim that bombing libya, killing people is not hostilities and the meaning of the act. this is ridiculous.
people criticize the administration from the left or the right. as lawyers in the defense department, representing defense interests. you can do this. president obama went looking for some lawyer for some authority in the administration. they found a guy named harold koh former dean of yeah law school. he was known in the academic world for arguing the president cannot act unilaterally. even better, he argued that with president reagan bombing libya for 12 minutes that that implicated the war powers act.
and somehow came to the conclusion that bombing libya for months at a time did not constitute hostilities and therefore the president can go ahead and do it. >> kinetic military action. >> the argument call you only bombing them, not actually at risk unless they get hit by stray aircraft and antiaircraft missiles. one problem with that is that again the war powers act was largely meant to prevent cambodia from ever happening.
the rules say you're not allowed to ask. past sexual history. so just to take an example let's say a video circulates around the college campus of a man and woman engaging and degrading sexual act. the woman gets embarrassed and humiliated. sexual assault. the university investigators, absurd to think this was voluntary. the defendant person who complained finds five other men on campus willing to swear the woman engaged in the exact same sexual act with them. not a single court in the us
that will prohibit evidence from being admitted. that is the only way that the person can defend themselves. through any kind of formal rulemaking process. for four years they maintain this was the legal standard until in october education department officials came to testify before congress and they had the capacity to ask where you're getting the legal authority. there is just a letter and they acknowledge there is no legal authority. so they had a footnote, this did not make any new law.
they still try to enforce it. those are just a few examples, and i am kind of surprised. we thought he came with tradition of liberalism, obama has been so unconcerned. i spent a lot of time thinking about this. researching it the big part of the problem is that they come from an intellectual tradition unlike that of the past, very skeptical of traditional notions of the rule of law. the constitutional fidelity front that they had taken to
president must painfully execute the law would agree upon are not. the rule of law the fundamental values, individual rights and liberties from a quality, access to justice, democracy, and the law which is given no more weight than abstract unattainable goals like genuine equality and if you are balancing them to try to promote genuine equality and help these people more.
in this didn't happen by accident, the result of long-standing ideological trends. the importance and coherence came under a series of attacks. first came in intellectual attack. they argued that they are so indeterminate they could mean whatever interpreters want. but in less crude versions it means extralegal considerations come into play far more ideology, class bias, other things influencing judges. okay. that kind of fell out of favor because it seemed nihilistic.
what intellectual history have? but it made a big come back in the 70s. and as law professor epa explained adherents argue that the rule of law was impossible in practice. let me read to you. an instrument of domination. so the rule of law is a bad thing because it helps the lead maintain power. the more general visibility can be summed up with the
mantra politics. if that is what you think of law is not terribly surprising. various groups pizza writer in the late 1980s. not coincidentally perhaps was barack obama. not coincidently that he was there are influenced by them they were a minority. most law professors were or remained traditional scholars. influence has been broadly felt and therefore has been influential in undermining commitment to rule of law. rule of law maintains a tenuous foothold in the liberal legal academy, but
it means something different. the neutrality and so forth but it has to come up with a non- ridiculous. this doesn't know constrictions because the law only been so far without breaking. and in fact if you are thinking to yourself with thing as the obama administration wanted to do that it has not done, even though there have been so many legal controversies. also when the bush administration pushed executive power there were quite a few lawyers who objected. and then bush pushed back.
shirley the most andhave been someone in the administration who should have been doing this. i did not see a single example. go ahead and do this. admittedly government officials stretching their power as far as they can, as i mentioned at the beginning of my talk obama asis the 1st one to brag about going around congress and acting unilaterally. in 2013 after he won reelection to give a big speech considering going to go around congress and not only to democrats not object
, all of them gave a standing ovation. each branch is power would counteract. meanwhile people often say there are all these problems the courts step in and the problem is there is a doctrine legal standing and in most cases there is no one to sue. you cannot see the president for bonding. one of the great ironies is
the issue of presidential lawlessness and around the summer of 2014 the president was asked and responded contemptuously so sue me. okay. you will waive any kind of standing issues and let us see you. ever since he said so sue me the pres.'s lawyers have presence lawyers have been spending all there time in court. ..
should we structure was as far as possible to do a weekend to make sure people have health insurance? the problem is this kind of end justifies the means reasoning is understandable to the extent there reflects the desire to help americans but the long-term damage undermines protecting the political agenda however worthy the agenda seems to be at the time. the idea of we had no choice but to seize power to help the people is exactly the rhetoric and reasoning used to justify tyranny. everyone has their agenda. right now this is thing to do but we have to look at the long-term and we were discussing
earlier before in the green room before we came out here how many people who think president obama should be able to structure the laws with congress corporate in. think it would be fine and dandy for president trumps do the same thing? do think obama should be a humanitarian gesture in letting these people stay here may be great policy but the next president is going to be president job in one of the odd things about the exercise of executive partner states is that much is informally to what presence the past become president but the supreme court has said in a context how do we know what the scope of executive power is? we look at what past presidents have done and what congress has been able to do to stop them.
everything press obama does is not going to be just what president obama does but do you want president cruz doing it and you want president trump doing it? at some point someone like him will be president do you want them to have those powers and is a it worth what everything president obama is achieving right now to risk the future? ultimately the obama administration's cavalier ads toward the rule of law can only be justified is law's politics by another name anyway. lott has done in value and therefore get what you can now i don't worry about it. if that's what obama and his appointees really believe may be the critical legal scholars have won after all. thank you very much. [applause] >> thank you david. if president trump does it, one
thing we know will be tremendous. all right we are going to now hear from ellie shapiro. i asked because as you heard italy as of late friday night is a first time, late monday night is a first-time father. [applause] i won't comment further on that. all right,. [laughter] we are going to hear from ilia who is a senior fellow in consciousness studies at cato and he is the editor-in-chief of the supreme court review. before joining cato he was a special assistant at pfizer to the multinational force in iraq
and on rule of law issues and he practiced at patton boggs and cleary gottlieb. he is the co-author of religious liberties for corporations, question mark hobby lobby the affordable care ads in the constitution which came out in 2014. he has contributed to a variety of academic popular and professional publications including "the wall street journal" the harvard journal of law and public policy, the "l.a. times," "usa today," we standard and so forth. the regular provides commentary on the major media from cbs 2 "fox news" to "cnn" to the cold air report npr and so forth. he has testified often before congress and state legislatures and is coordinated to ask amicus brief program has filed 150 front of the court briefs before the supreme court including one
that the green bag selected for its exemplary legal writing collection. he lectures regularly on behalf of the third or a society and as a member legal studies institute's board of visitors and the fund for american studies was an inaugural washington fellow at the national review institute and a lincoln fellow of the claremont institute and has been an adjunct professor at the george washington university law school 2015 national law journal named him on its list of 40 rising stars in the legal community. before entering private practice ilya clerked for judge e. grady jolly of the u.s. court of appeals for the fifth circuit pretty old's as being from princeton come his master degree from the london school of economics and his j.d. from the university of chicago law school. please welcome it we shapiro. [applause] >> thanks roger.
the reason i'm going second isn't because i have to get out of here immediately although i am monitoring my phone in case something happens but i figure i would let seide reply to both of us if he wants to end david can continue that conversation rather than me trying to rebut seide because it's really that david's project. as we enter this final year of the barack obama presidency there is much that the president can do to change people's opinion of him for better or worse. his legacy barring some extraordinary occurrence including an extraterrestrial one perhaps as the holiday ever sizing -- advertising blitz for the independence day movie reminds reminds us as they can to history presented beside executive action on which more shortly one of president obama's chief accomplishments has been too returned the constitution to a central place in our public discourse. unfortunately the president fomented this upswing in civic
interest not by talking on federalism or the separation of powers by pipe lately violating the strictures of our document. with his pen and his phone and hearkening to woodrow wilson's progressive view of government in david this is why i'm not surprised at all by the rule of law and violations of that recognize the incoming obama eyes were more about wilson and sawinski and revolutionary -- saul walinski rather than the 80s left or the postmodern left. so he has been taking out his frustrations with the checks and balances that inhibit his ability to fundamentally transform the country. a lack of congressional acquiescence has even as first-time demonstration lost if we can't -- launched to be can't initiative but didn't buy for explaining the congress on that this president will end when the
reelected president obama announced his second term agenda he explained quote i will not allow gridlock or willful indifference to get in our way. that sentiment lies in the face of one the of the biggest political changes that has occurred in the last decade roughly starting at the end of the bush years. that is lawmakers and citizens no longer consider simply whether a given bill or policy proposal is a good idea but whether it's constitutional. where does the government, where does a person get the power to do that? is a common rallying cry on the occupier left in the tea party right. that's a healthy development. for too long even in those rare moments when they were faced with constitutional concerns that have the attitude of nancy pelosi. you recall when asked about the authority for obama cures individual mandate she replied are you serious? the courses -- because of constitutional arguments that
has no good policy against it makes us a good thing americans are taking their founding documents seriously. after all the constitution is the font of all federal power. it's carefully structured carefully crafted structural provisions we learned about in grade school. i went to grade school in canada i do a job that native americans done enough defending the constitution. such is the separation of powers and checks and balances. these are not merely an application of political theory that his justice anthony kennedy wrote for a unanimous supreme supreme court in the 20 loving case of united states versus bond federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity to protect the liberty of individual from arbitrary power. the run-of-the-mill case of a paltry federalism and chemical weapons. a woman sprinkled some
garden-variety chemical powder on her erstwhile best friend post office box front door and car handle when she discovered the erstwhile best friend had been having an affair and was pregnant by her husband and rather than being charged for assault or attempted murder by state or local official the federal prosecutor went after her for violating the federal legislation implemented international convention on chemical weapons, a little bit of overkill in supreme court this came up in the supreme court twice. once the government lost unanimously in once the government lost a 2-1. 8-1. that resulted in the last terms case of yeats versus united states where the fishermen who was catching undersized grouper, clearly official wildlife violation both state and federal
was prosecuted and sentenced to a long time in jail for violating the anti-shredding provision of the sarbanes-oxley again federal overreach struck down by the supreme court. if the federal government acts outside of the scope of its delegated enumerated powers it's no better than an armed bomb. speaking of which that brings us to barack obama's lawlessness which david bernstein is covered in a magisterial book that everyone should read. i won't summarize david's analysis other than to note that while he can't hit everything which is a sad statement about where we are he doesn't excellent job of covering the waterfront from obamacare to do justice department corruption to the affordable care act to college speech codes to the aca to antidiscrimination law when i'm up to the patient protection and affordable care act and did i mention obamacare?
david didn't really. i think that was a conscious choice. we here at cato have covered out a lot of course both legally and as a matter policy and indeed part of the reason you don't see a lot of interns flitting about the typically help out with these forms is because of obamacare. we like to pay your interns which i thought the left was in favor of benyette because we pay our interns we can't employ them for longer than three months and a certain number of hours per week without providing them full health care benefits. because we don't want to either provide that entire full catalog package or nothing we have to employ them for less time during the year hence no interns to help out. david also has an interesting chapter, well i'm just talking about the consequences why the rule of law is important.
that will be the next cato lawsuit once we finish the ones that are just -- well david has this interesting chapter on foreign policy which is tricky because the scope of executive power over foreign affairs is less clearly defined than it is over domestic affairs and while it's obvious president obama violated the war powers act i personally am not convinced that the war powers act itself is constitutional. that's a subject for another day. obama's actions in trying to comply with the war powers act says a lot more if you like -- unlike other prisons simply didn't say it's not constitutional. and yet here to sa said he has managed to violate the clearly established law. you want more examples read the three most successful offense of my career in terms of clips and that would be president obama's top 10 constitutional violations of 2011, 2013, 2015 respectively. we are talking hundreds of
thousands for the daily caller forbes and national review off-line. think about that for a second. it's a problem that is not hard at all to come up with these lists. for legal pundits like myself it's like shooting a gun while walking past the barrel to get a fish sandwich for lunch. actually each of those sections will probably subject you to federal prosecution seeing this week's executive actions on guns to think about obama hasn't started prosecuting thought crime. though he's getting awfully close with the so-called climate change deniers. as far as the supreme court is concerned that is my specialty. this administration is easily the worst performer of any before the court in modern times which is indicative again of its approach to the rule of law. of course it's more relevant
than benjamin harrison paid by do you look overall where obama is below 50% against the historical norm of 70% by the solicitor general's office or unanimous cases where he is a record average of about four or unanimous losses per term and more unanimous losses in its first five years of bush had in all eight. it's not a pretty picture and by the way the last three years cato in our amicus brief program has gone to 10-1 and 8-7 handily defeating the government is time. there are three basic reasons for this expansive executive action including overzealous prosecution, and below breaking not just pushing legal theories and the fact that regardless of his reasoning justice kennedy tends to it and act libertarian must cases. with some abysmal performance of years ' when you have a client who says he me crazy arguments
used -- cases predicted ministries wants to improve its standing before the court i humbly suggested a look cato sleep advocating positions and engaging in actions that are grounded in law and reinforce the constitutions law and securing liberty. or take it from gw law professor jonathan turley you voted for president obama at least once or maybe twice. at a 2013 house hearing on the president's duty to take care that the laws be faithfully executed where sub i've testified. yet he had this to say to port to professor turley quote why believe the white house has exceeded his turf in areas than on enforcement has risen periodically in history. the current controversy the white house has suggested an array of arguments citing the interpretation of the statutory text agency discretion or other rationales to mask what is clearly a circumvention of congress. it also appears to be relying on expectation that no one will be able to secure standing to
challenge such such decisions incorporate finally there's no question the president is allowed to set priorities of the and to determine the best way to enforce the law. people of good faith who clearly disagree on where the line is drawn over the failure to enforce federal laws that sample and given to a precedent setting priorities and enforcement of laws to the president is not required to force all us of us equally or dedicate the same resources to every federal program. even with this ample allowance however believe that barack obama has crossed the constitutional law in between enforcement and is finding federal law. congress has given the defining function of creating amending federal law. there is more to a turf fight than a vision of government to power designed to protect liberty by preventing the use of concentration of power. all citizens democratic or republican were then appended or independent.
alas in and policy after policy from the clean power act to obamacare implementations from daca the immigration expansion program which i support generally as a matter policy but have filed, continue to file briefs on behalf of people the support conference and immigration reform making a law that congress has failed to pass to com stat to net neutrality regulated internet in the first place and other illegal regulations the second of ranch under barack obama has irrigated to itself. this is the antithesis of the rule of law and i believe is the end lasting damage to the country. i have some questions for david which i hope you will respond to first of all the title of your book is "lawless" produced that
mean both constitutional and statutory violations or does it make a difference because when the executive branch does something excess of its powers that's inherently constitutional. second you really think that former constitutional law professor who barack obama's theory of executive powers the congress can do anything he wants as long as congress is deadlocked in his heart for someone to give standing to challenge it when that happens. sub by postsale presidents do this sort of thing. there is perhaps incremental ratcheting up with every regardless of party but otherwise there's nothing to see here. what is your response to back? forth what should we do? impeachment is safe political remedy and given the polarized nature of our it's not a feasible remedy unless the approval rating drops below 20%. is there anything else we can do? and finally we have seen an
incredible increase in state lawsuits against the federal government and a little bit from congress as well. is that the new normal? is that the response the breakdown causes other branches of vertically and horizontally to challenge the president court now finally in terms of criticisms i guess the only criticism i have a david's book is i should have been the one to write it but i suppose getting a blurb on the back of both former attorney general mckay c., that will have to do. we don't endorse candidates here at cato. we are a 501(c)(3). i do endorse this book. buy it, read it and tell people that you did so because of my blurb. in some estimation lives through barack obama's lame-duck year americans have much to ponder in what powers that successor will
use. hillary clinton sru pledged to take executive action on gun control even more than president obama did this week. i don't want to spend a lot of time talking about it. charlie cook from the national review had a very good -- i haven't been tracking it that closely given the events of my family. immigration apparently present above is too timid year according to hillary clinton. corporate versions and who knows what else and trigger warning of going to be more sensitive than david was. imagine what donald trump would do. happy new year and enjoy the presidential election. [applause] >> thank you sub four and now we are going to hear from a different perspective from simon lazarus who is a senior counsel at the constitutional accountability center.
before joining the center he was in public policy counsel to the national citizen law center. he served as associate director of president jimmy carter's white house domestic policy staff and his partner and powell goldstein frazer and murphy from 1981 to 2002. he was senior counsel to sidley austin in 2002 to 2006 and he is a trustee of the center for law and social policy in the member of the misrata conference of the united states. his articles have appeared in the atlantic, the "washington post," american prospect roll call, sleep until "the daily beast" "politico" the new republic "huffington post" as well as law reviews. he writes frequently for the american constitution society's blog and has published several acs issue briefs including mandatory health insurance isn't
constitutional which was released during the senate health care reform debate in december 2009 and the health reform lawsuits unraveling a century of constitutional law and the falling fabric of modern government published in february 2011. his atlantic article the most dangerous branch question mark has been republished in two anthologies the best american political writing in 2003 and principles and practice of american politics contemporary readings have also published in 2003 by cq press. he liked david is a graduate of the yellow school where he was comment editor for the yale law journal. please welcome sy lazarus. [applause] >> thanks very much roger. it's always a privilege to
appear here at cato which i have done on many occasions. the constitutional accountability center where i served as a senior counsel works constantly with cato, frequently as an adversary in a respectful one but not infrequently as an ally. and so it's in that spirit that i offer what are going to be substantially critical remarks about the work that professor bernstein has presented us with. i have to say i think there is a kind of schizophrenia about this book and perhaps also about professor bernstein's approach to the issue of executive power. on the one hand there is the professorial side and their
professor bernstein acknowledges for example that the expansion of executive power which certainly is an important phenomenon of our time and of our ancestors time is a very long-standing structural development and it has been exemplified by presidents of both political parties. he acknowledges that the then we have what i have to say is really the propaganda side of this book which is the dominant side and appears most dramatically in the title. the fact that this expansion is such a structural long-standing bipartisan phenomenon would seem to undermine the notion that such expansionism may have been under president obama is unprecedented. it obviously is a general matter is not. i can't deal with every single
example that professor bernstein wants to marshall and trying to make the case that the obama administration is unprecedented and its insider recidivist violation of the president's constitutional duty to take care of it was he faithfully executed. i can't take on everyone of these these examples. let's focus on the big ones and the ones that professor bernstein himself highlights in his introduction. first of all we have the affordable care act. now he repeats i guess the endlessly repeated notion that delays in the affected dates of various aspects of the affordable care act somehow constitute not only unlawful actions but illustrations of the failure on the part of the
president to carry out his constitutional duty to take care of the laws he faithfully executed. first of all unprecedented, really? president george w. bush's secretary of hhs michael levin called the delay of the employer mandate which was the most important of these delays wise and you can understand why he thought that was wise, because in implementing president bush's initiative part b of medicare which created a prescription drug benefit under medicare which is another very complicated law, secretary leavitt was up elijah to delay a number of aspects of the regulations mandated by the statute for reasons that are completely the same as those which propelled these temporary delays by a president obama. sometimes you just can't get it all done.
we should note also that it has been the law for a guest close to 65 or 70 years under the ministry to procedure act that only unreasonable delays in implementing executive action such as regulations are unlawful and so certainly they are not unconstitutional. in addition to that, and beating the poor affordable care act again amazingly professor bernstein i guess can't avoid, can't stop himself from the litigating sebelius and incredibly king bee burwell. professor bernstein, i knows you are disappointed about it. i would have been enormous we disappointed had i lost those cases but you did and whether or not chief justice roberts and in
the case of king bee burwell and justice kennedy and the rest of the justices were wrong and one can make andy did make arguments that they were wrong the fact that the administration's actions were being challenged were upheld certainly shows i think that these are not really good examples that would support the contention that the obama administration is thumbing its nose at the constitution. and i guess i would also like to note that sometimes professor bernstein's book for whatever reasons have to be forces that are not only dead but will -- were never alive to begin with. one of those is an example that professor bernstein highlighted in his own remarks and this is the notion that this
administration has created all of these unconstitutional czars who are running the government outside of the appropriate constitutional legal structures. he has a chapter entitled more czars than romanoff? really? i haven't heard too much about the czars for quite a while. i don't think that they have made a very large dent, however they were hyped by either the right or the left and in fact i would say one thing. i think that both the administration and its opponents have an incentive to exaggerate the impact and significance of various executive actions that he is taking. the president needs to be shown, seen as making a difference and his opponents need to say these
actions at the present are taking are not only things we disagree with but are unlawful and evidence that he is a serial violator of his constitutional duties but they are exaggerations and certainly bizarre charges one of the funniest ones. i have to note that professor bernstein in his book sites an article by my very close friend bruce ackerman who is a very prominent left libertarian and certainly a brilliant expert on the constitution for the proposition that the czars the president was supposedly creating at some point early in the administration are another milestone on the path to an imperial presidency. in this article bruce cited the creation of a position on the white house for good elizabeth warren before she was basically
found no place in the administration was forced to run for office which turned out to be a pretty good ring for her, and he says, bruce says in his article that making her, giving her white house staff position demands that the secretary of the treasury tim geithner would be a mere rubber stamp for her. i think we can always wear political persuasion can chuckle at that notion. another dead horse that is always dead is professor bernstein's curious elevation of the surveillance of the critical legal studies movement at harvard law school and somehow trying to say that this movement , which i must say i always regarded as fairly
laughable, should be attributed to all progressives, all progressive legal thinkers and president obama. you even unfortunately said president obama was influenced by that movement because he went to harvard law school it had not yet been completely extinguished. you can't say that professor bernstein. there's no basis for saying that. if you have read anything that he wrote before he came -- became president about his views on the law and he did write about it you have to say cls was not at the center of this thinking. and in addition to that i think i must say here that trying to blame living constitutionalism trying to attribute that to all progressives and to the administration particularly right now is a little galling
frankly because the organization for which i work and the reason we work so closely with cato so often is dedicated to existing that you loan star for constitutional interpretation must be the text and history of the document. now we often conclude with very good reason i think that when one does that in a conscientious fashion, one actually often comes to find that the constitution supports progressive results. sometimes we disagree with cato and conservatives about that but as randy barnett has said and as a matter of fact sub board is set in a very gracious way the fact that we make the framework for the discussion, what the constitution actually says and
what the framers of those provisions including the amendments actually intended, the fact that we make that has made the discussion more civilized and i have to say the impact of stressing progressive originalism i think it's been quite significant. if you look at the up pinions of the progressive justices on the supreme court particularly justice kagan and justice ginsburg and justice breyer too all votes is lesser extent you would have to see that they are making textualists text and history arguments for their positions now. i think it's a little behind times professor bernstein just tarring all progressives and this progressive president of
the living constitutionalism brush as evidence of disrespect for law. have i run over my time? i do want to say that i think there are parts of this book that show the professorial side of professor bernstein and his distinguished career that he has had. as an aside i would say his book on lochner on rehabilitating lochner while i don't entirely agree with that certainly, certainly was a serious significant contribution to taking another look at that case i could go into more detail about that but i'm not going to do so. that is an example of useful scholarship on his part. and i think his discussion for example of the ocr issue that he
discussed about guidance to universities about how to deal with allegations of sexual misconduct, that's a subject about which i know nothing in particular but i also am not at all familiar with the law of the policy history but i did think that his discussion of that certainly was a serious contribution. but as i said an awful lot of this book unfortunately particularly the title is more on the propaganda side. i have to point out one thing quickly. i think there are areas where the book plays fast and loose with facts, lot of them and when i have to call attention to. there is a sort of, had no other word for it a try i smear of an
administration officeholder virginia sykes who was the head of the office of legal counsel up until a couple of years ago and put professor bernstein says that perhaps he wasn't thinking about it was that she was selected because president obama could be sure that she would be a compliant defender of whatever he wanted to do. the fact is virginia sykes and more so than her predecessor and i don't know who her predecessor was because the office had been vacant for two years, because congress, the senate was filibustering blocking her successor from being confirmed, virginia sites do i know was an al once again is one of the top people in sidley austin's distinguished, super distinguished team of appellate litigators headed up by carter
phillips and peter keisler do if you don't know was one of the founders of the federalist society and one of the most distinguished appellate litigators in the country as a she. she had no ideological background that i know of in sheerly selected cuts of her unchallengeable qualities on the merits and that's why she was confirmed by a voice vote. i think unfortunately this book does not uniformly reflect the kind of scholarly values that professor bernstein has shown in some of his other work. >> thank you very much. david is willing to take three or four minutes to respond very briefly and we will bring it up for your questions. >> first look media say that this book is not an academic press book. i've disagree that i've played fast and loose with the facts. no one has found any factual
errors. that's a difference of opinion. it is well footnoted and so forth but i wanted this book because of the constitutional depredations of the obama administration i wanted the discussion to be limited to elite lawyers and academics and have a back-and-forth some people say this and some people say that and have a discussion of the legal theories. i do that in my academic life but this book was written for the lay leader inches than the issues and it has a morbid greasy tone to it than the academic book but it hopefully means that some more understandable to the average person and all the discussion that has been added and review some blog posts where i would say i've said anything that's inaccurate. i may not discuss every legal
theory and as much detail as i was writing it for an academic press but that is a choice. anyway, with regard to briefly go through points with regard to critical studies, said this in my talk in my book i'm not saying all progressives are critical scholars. in fact i say explicitly that most particular mainstream liberals in their own way there has been a significant influence of critical legal studies on liberal academia just the way i think seide -- sy say there are few libertarians on the bench but there have been some influence on them. that is true. to take an example outside the scope of the book people like frank michelman cass sunstein and others who are not critical of legal scholars but over the last 10 or 15 years that advocated restrictions on hate speech. i would not have been a mainstream liberal possession 30
or 40 years ago but is the position adopted by critical scholars. the obama administration argued in a briefing before the supreme court that churches and other religious institutions have no right choose their own clergy which was contrary to what every federal to state and appellate court had held. that is an idea that came out of radical legal feminism which argued for example the catholic church should be required to have female priests that would otherwise violate discrimination laws and the constitution should prevent it made that is indeed begin where we see the influence that i'm not saying they are all critical scholars but that does mean there's no buzz. with regard to the affordable care act and would be difficult to write a book about the constitution of the obama stray shower without addressing the cases and everyone knows about
the most famous constitutional controversy of the obama administration is what we call evidence -- talking about how the obama administration came to be in the lawsuits over it is a way of giving the underlying background to why it became the later constitution never say in the book the aca was lawless although i do think it was unconstitutional and the way i interpret the constitution. i would say that the presence delays modifications and exemptions from obamacare are lawless. sy made the argument here. no one believes that. nicholas bailey wrote the best piece on this. he supports obamacare and he was against the congress clause challenge to the medicaid challenge and he says i have in the book via bob obama administration's policy based anxiety the pace at which the adc was abuzz going to affect.
they were afraid of the consequences it would have been the elections. they were simple professions like that the "washington post" reported all sorts of regulations to go into effect before 2012 and 2014 and evisceration delayed them. baca -- they should and for popular lessons left of the elections. this has nothing to do with what the bush administration dead and talking about the commentary and for making remarks by site professor zachary price. it's not an academic discussion that i publish in the lower deal in that style but all the academics are saying it. the last thing, question about the title whether what the obama association is done as unprecedented and something that ilya asked. after all the executive branch has been growing substantially over the decades that but i
think there are a few things. first of all obama actually made some very explicit, 20 was running for office. i am a law professor i know the constitution. president bush the greatest problem is that is aggregating more power to the executive executive branch i'm going to reverse that. when the president makes an cost of -- it undermines their constitutional culture and that is unprecedented. bringing about how he's going to go run congress i don't think any other president has done it. undermining the oic as the president and they their cold in the beginning of the frustration. ackerman has been upset about that and for good reason. the increase in executive power often dramatic increase in emergencies depression world war i, world war ii the cold war. there've been no emergency to justify these things. instead of trying like clinton did to compromise republicans he
will do whatever he wants and finally usually when a president has pushed executive power in one specific area like the nixon administration in vietnam to come up with but not broadly in so many different areas and parts of the law the way the obama administration is done. when i wrote this book i will want to write a history of executive power and i became convinced. when i started researching the book i got upset about this not just as a law professor bart as a citizen. more portnow not considering obama's gone like ilya said. i wrote this book in part for people who are concerned whether we have a president trump or president chris becker president clinton lets figure out what happened during the obama
administration. i am much more concerned about the future. thank you. [applause] >> i am concerned about president obama because we have one more year to go. let's take your questions. please wait for the microphone to come and identify yourself and any affiliation you may have. there's a gentleman right here with his hand up. >> this is a question for professor bernstein. i am a retired attorney and economist. it's a historical question. you talk about the concept of institutional toilet seat by trump loyalty on the part of the congress which prevents congress from overwriting any veto and any attempt to push back on some
of this lawlessness. i'm wondering whether on the congressional side historically whether this is more pronounced now than it has been in the past , this party loyalty over institutional loyalty or whether that has been a historical given as well? >> that's really actually great question and not being a political scientist i'm not the most qualified person to answer that but what i learned from writing this book is that there does seem to have been a decline especially recently and the willingness of congressional leaders to oppose presidential authority when the president is out there same party. i think one reason for that, i think the parties have divided more ideologically. they used to be more republicans and conservative democrats and we don't have as much anymore so
people have partisan and ideological loyalties but there's also a sense that just the other generation of congressmen and women and senators are less interested in institutional prerogatives. i'm not 100% sure why this. it's isaac is when republicans are in office the president wants to bomb kenema and clinton clinton does it also said it's unconstitutional. in the earlier years of the obama administration there was pushed back from senator cole, senator russ feingold especially senator robert byrd and they all got defeated. ironically the few democrats that pushback that were retired actually a few senators that pushback were retired. it doesn't seem to be a generation or placing them and i will give you my very peered i'm not sure that completely explains it and i'm not shy of a full answer as to why.
>> hi phil wallach from the brookings institution. thanks to the nice wireless access to kill us providing in their nice web site. eight years years ago cato is holding an event on bush's father remaking of the american justice and 10 years ago at a paper power search the constitutional record of george w. bush. 16 years ago they had arrogance of power reborn the imperials presidency and the foreign-policy of the clinton years. i would just like to get the panelists take on whether come is it a sure thing that eight years from now or four years from now we are going to be sitting looking at the next president record no matter which party they are from and lamenting the new constitutional lows to which they have taken us? if that is the case i sort of wonder how much work the ideological explanations are
due. >> i hope not but i don't have great confidence. one of the reviewers on amazon counted by a 22 references to the push a minister then the book, all negative so i'm not here to apologize to republicans or criticize democrats and i certainly don't, the way the campaigns are shaping shaping up in the public inside i'm disappointed. one of my hopes was not just this book but in general objection republicans have had to the constitutional scope of the state of power being an issue in the republican primaries the way it was in 2007 at 2008. that just hasn't happened yet. i'm hoping it will be published book -- public pushback that i'm hoping the supreme court will loosen standing said that because congress doesn't seem to be inclined to defend its institutional prerogatives. maybe we need to rebalance the standing rules. maybe congress can get its act
together and actually pass budgets and a coherent way with their not coming up with one huge 3 trillion-dollar bill at the end of the session. every issue of constitutionality and action that they come up with either shut down the government has said that have smaller bills and they are supposed to. none of these are things that get many compliments. i'm afraid we are on the low road to perdition. >> as the cato panelists, want to ask who it is we came up sophie? i'm sure cato will have a panel like this one talking about it uses because abuses happen and david has argued that obama is qualitatively different than predecessors. the preceding president bush most if not all of the constitutional criticism that the face related to warn policy or national security related
aspects from a domestic enforcement like the patriot act. to biggest exception i can think of to that is the bailout at the very end which obama expanded upon and that was subverting capitalism and subverting -- subverting the rule of law to save it and that is to my mind no less stark moment of the bush years than anything else. i think that is important because as i said in my remarks, that foreign powers, foreign-policy related powers of the president are not as explicitly outlined in the constitution is the domestic powers. >> i just want to say something brief and just on the general question that you raised about the continued or apparent expansion of presidential authority over all of these decades. that is a subject worthy of a
serious discussion. you can't have a serious discussion if all that is, involves his throwing darts at whichever the administration it is for trying to aggrandize its powers. you can't have that discussion if you don't also include the problem of congress progressively advocating its responsibilities. the president, any president, bush or obama or the next president somebody has to be responsible for making the country run and work can defend itself. >> that's called civil society. congress does not have the responsibility to pass laws. >> ilya come you had your shot. oh boy. so just to take the most obvious example which is foreign affairs and there are, there have been serious issues in both
administrations have been debated i very thoughtful people about whether what the president was doing was appropriate and lawful and so forth but the fact is congress when was the last time congress declared war? this president has actually asked congress to fashion a law and passage with regard to american intervention in syria and iraq. and they won't do it because they don't want to be responsible. they would rather sit back with the president take the risks and then be free to say this was a great idea or this was a bad idea. this is true on both sides of the aisle but from an institutional standpoint congress is simply not performing the way the constitution as written or the framers intended. on the domestic side ilya things seem to have improved somewhat in this last year.
congress, there are times when congress has actually tried to work and pass legislation and that is all to the good but the fact is congress is still basically just saying no. it has refused to confirm presidential nominees which resulted throughout the administration the administration has been seriously understaffed at senior levels which really in peds the ability of the government to function. i think frankly and i guess this is a partisan point of view but the refusal of the house republicans in the last congress to allow speaker boehner even to put the senate's immigration reform bill to a vote on the house floor where publicly would
have passed is an abuse, and abuse by a minority and thwarting the need of the ability of the government to deal with a huge and significant problem. >> dysfunctionality of congress is a big part of the question and you can't have a serious discussion. >> to pick up on ilya's invitation to me and to respond to the question probably for eight years we will indeed be holding another forum. whoever gets into the white house. we aren't equal opportunity basher here at cato and the reason we are is because we think the zeitgeist today with respect to the constitution is so far removed from what the constitution is itself that there is no chance whether it's a republican or democrat that the administration will be
living up to our conception of a limited constitution. so that affords us ample opportunity to hold forums as far as the eye can see until the zeitgeist changes which is why we exist to help it to change. we have time for just one more question if that's okay. this gentleman right here in the front. if you could wait for the microphone please. >> frank from george mason university. i think you could make an argument that jimmy carter and ronald reagan violated the spirit of the laws but one would you begin to or would you tell us about the first presidents in the post-war period who may have set in motion a trend to take it easy on the constitution and the