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tv   Public Affairs Events  CSPAN  December 21, 2016 12:14pm-2:15pm EST

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up in china, educated at harvard, stanford, u.s. citizen. is let me start with the election of donald trump. what impact do you think his election is going to have on u.s.-chinese relations. the most important relationship in the world today. he said some pretty menacing things. he said a lot of things. how worried are you about a sharp decline in the quality of the u.s.-chinese relationship? >> well, good morning, roger, thank you very much for your kind introduction and good morning, everyone. well, in terms of u.s.-china relations, clear ly there will e a lot of uncertainties. mr. trump said he would brand
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china a currency manipulator on day one. he also said he would impose a 45% tariff on chinese exports. so let's just look at the fundamental factors? to brand a country a currency manipulator there needs to be three conditions. number one, this company needs to run a large current account surplus in excess of 3% of gdp. number two, this country needs to have a very large bilateral trade surplus with the united states. and number three, this country would have to engage in constant one-sided foreign exchange intervention with the view to devalue the currency so china only fulfills one -- china still runs a very large trade surplus with the united states. on the other two measures, china
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actually doesn't really need the requirement so based on fundamental factors, china should not be named a currency manipulator. >> but do you think donald trump cares? >> well, you know, hopefully he does. hopefully he will behave in a more responsible way than just talking about it on the campaign trail. we know there has been a lot of rhetoric on the campaign trail but we need to remember the bilateral relationship between china and the united states the the single most important bilateral relationship in the world. remember, china also holds 1.1 trillion u.s. dollars of treasuries so it's actually been quite interesting. china is still a relatively poor country and the united states is the wealthiest nation in the world but the u.s. has come to rely on the poor country, china, to finance its deficits.
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so if china were named a currency manipulator, if 45% tariffs were put on chinese exports, china could retaliate in a very big way. >> penny pritzker this morning was saying she'd been speaking to china -- the commerce secretary said she'd been speaking to the chinese delegation said she would have no choice but to retaliate and saying that's the way of the world. >> well, it wouldn't be very productive if -- >> it would be very negative. >> it would be. >> and china has adopted a strategy of wait and respond. they haven't done anything, mr. trump hasn't done anything but we must also remember that china china has a lot of power in its tool kit. think about the tpp which has collaps
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collapsed. now that's been -- >> hasn't donald trump just handed again as penny pritzker was saying who has stepped into the vacuum created by the collapse of tpp china. so far from weakening china, hasn't the first thing donald trump said he would do on day one, hasn't he strengthened china? >> well, china is the largest trading nation in the world so tpp had 12 countries, not including china. so it seemed strange the chinese -- the transpacific trade partnership excluded the largest trading nation in the world. >> because it was strategic to offset china. >> well, u.s. and china are partners but competitors. we must remember that. so countries in the region including korea, australia,
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japan, the philippines which have been under the u.s. security umbrella perhaps have to rethink whether they can count on the same level of reassurance from the united states in terms of. >> that's created anxiety. >> well, they had to rebalance their relationship with china and the u.s. >> there's a global supply chain these days. couldn't china in the event of the trade war we've been talking about couldn't in effect stop production of the iphone tomorrow? >> it could, it would hurt apple first and foremost. you can imagine what that would do to inflation in the united states. what that would do to consumer sen sentiment. so many american companies have invested tens of billions of dollars in china and their production, their supply chain would be hurt first and
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foremos foremost. >> so you're saying china and the united states are simply condemned to get along? >> well, it's a symbiotic relationship. for the past years china had exported huge quantities of goods to america and china recycled all the winnings, earnings from exports into u.s. treasuries helping keep interest rates low so americans can buy more chinese goods so it's been, i suppose, a virtuous circle in a way but these imbalances cannot get too large because as we remember during the financial crises some of the imbalances got so large, then we had the implosion. this has been very interesting. as i travel around the world meeting with many of j.p. morgan's complaints, they're telling me that china at least in the near term is not a threat
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that's a big departure from a year ago when china was suffering from a major collapse in the stock market after the currency devaluation august 11 of last year. after that, china was cited at a near-term threat to global growth and people were really -- the leadership set growth target at between 6.5 and 7%. guess where we are at gdp growth these days? 6.7 for the first quarter, 6.7 in the second quarter and 6-.7 in the third quarter. so remarkably stable. >> so the economy has stabilized, turned around in some sense. >> well, the economy has stabilized because of the extraordinary fiscal and monetary stimulus.
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we also had a major recovery in the housing market. these days, the service sector accounts for 51.6% of gdp. in the past, manufacturing was much larger. over 50%. these days we have the manufacturing sector becoming less important while the service economy is powering ahead so that actually speaks very positive positive positively to the rising middle-class, rising affluence and the luxury goods industry in china as everyone knows has been booming. of course we had the slowdown in the recent two years but compared to five years ago or 10 years ago the trajectory has been very, very positive. >> don't china's leaders know that they need 7% growth in the end for survival? that if china went to 3% growth, 4% growth and with this ever-more sophisticated
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middle-class that the one-party system could look more fragile. >> that target is a moving target. it used to be 10%, now it's at 7%. so as china faces more demographic challenges, as the country's economic base gets larger i would say the growth rate would definitely slow so if you think about it today, let's put this in the global context. gdp in china today is $11 trillion, u.s. the u.s. gdp is $17 trillion but china is growing at 6.5%, the u.s. is growing at 2%. >> 3%. >> 3%. okay, hopefully. as mr. trump says, 4%, hopefully. but just looking at today's numbers, roger, we have -- china basically adding about $700 billion u.s. to global growth every year. how big is $700 billion? that's basically the size of the
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dutch economy. so every year china's adding $700 billion. >> adding one netherlands. >> every year. >> i hope there's nobody dutch in the audience, is there? >> so that's basically 35% of global growth. the u.s. is a bigger economy but it's growing 3% but it's adding about half of that. right? maybe 350% of gdp to global growth. >> jing, talk about luxury a moment. there have been warnings that maybe it's a period of very rapid growth. i remember last year at this conference in versailles there was concerns about the future of the luxury and fashion industries in china. how do you see the possibilities today and the outlook and where do you think the greatest potential lies.
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>> well, the chinese consumer developed a love affair with everything luxury. >> is that cultural? >> i think it's culture because when i left china in the '80s to harvard college that time i still remember china had only three colors -- every wore black, blue or gray. and everything was unisex. so men and women you couldn't tell. there was no cosmetics sold and certainly the luxury industry in china was -- is non-existent, basically. but in the last 15 years the chinese consumer, we don't talk about just mainland china, we talk about the traveling chinese consumer both in-country and outside, they account for at least 30% of the global luxury industry. so this industry broadly speaking globally is around 250 billion euros.
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now the chinese consumer accounts 20 or% of the market. the americans are the second-largest grouping. 24% followed by the europeans, maybe about 18%. >> so china is almost double the european. >> absolutely. just like china's contribution to global growth is more than u.s. and europe combined. so, of course, we always have to remember the chinese consumer travels so much these days, right? so in 2016 about 150 million chinese people would travel overseas and that compared to the peak in japan back in the 1980s when 16 million japanese people traveled overseas in the peak year, that's basically 10 times, right? and if you think about the numbers, it makes perfect sense because china's population is ten times larger than that of japan, 1.3 billion versus 120 million. and the chinese consumer, everywhere they go, whether it's paris, milan, london or new york, they spend more than any
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other visitor to these places. but the industry is rapidly shifting so if you could look at this decade, 2010 to 2020, i would divide the decade in two, in the first five years we have had rapid tremendous growth, some of the companies were growing 35% a year between 2010 to 2014. so now the industry is what we call the new normal. growth rates will be much lower in fact, bane cin consultant sa between twenty and 2020 the growth of the industry will be between 2% and 3% rather than 20% to 30%. of course the millennials in china are just like millennials anywhere else. they're tech savvy, sophisticated, they have discerning taste and they travel. and they are very much engaged with social media.
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so i think all these are changing the landscape of the luxury industry in china and also the chinese consumer as they travel are changing the travel -- changing the luxury industry. >> so with the anti-corruption campaign to wear a rolex or some beautiful chanel outfit, that's too conspicuous for president xi's china, isn't it? >> they used to call china the bling dynasty. i think bling is gone, reality has set in. >> it's not the bling dynasty anymore? >> no, i think people have a more subtle taste in what represents their new social status. i think people -- >> what's hip? what's cool? what do people want to show? >> well, in the olden days people had the label on their sleeve, they refused to cut it out just so everyone could see they're wearing a prada suit but
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these days people people are becoming more sophisticated in their taste. they want to wear a wonderful made to order suit. they want to feel the luxury of the fabric but they don't want anyone else to know what they're wearing. so i think the chinese consumer has gone from conspicuous consumption to self-reward. they used to buy for gifting to government officials. of course that's gone now. so the market has undergone a rapid shift away from gifting to self-consumption and the pricing points that people are willing to pay had come down. people are willing to equate price with quality. so the most expensive, the more expensive the item the better but these days people say look, i don't have to pay this much for a watch or handbag because they're using their own money to
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purchase these goods. but the other shift is that -- >> doesn't that mean profits will come down? >> well, profits have come down. >> and continue to come down? >> just ask executives in this room to. profits or profitability of the industry has peaked maybe two years ago so we have had a dramatic shift in terms of which brands are popular these days among consumers we also have had margins coming down although the industry is making huge sums of money compared to every other industry. i think the luxury city will is well positioned looking at net margins, they're still very hig high. >> is the rapid strengthening of the dollar, is that going to affect things a lot in your region in the dollar is strengthened much -- currency is in dramatic fashion, and people
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could continue through the next year or more. >> i think the luxury industry in many ways is about currency arbitrage. in the wake of the u.s. election that we have witnessed, a dramatic appreciation of the u.s. dollar against just about every currency, we have also witnessed -- >> why do you think that is? >> well, because mr. trump said america first. also we have had him talking about cutting taxes in america which would boost corporate profits, also if you see the curve in america has risen, right? inflation is picking up because he has pledged to spend $1 trillion on infrastructure so u.s. ten-year freshries, something i watch everyday, on election night was 1.7% so we're
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seeing money being pulled back to come back to the u.s. because with we're on the cusp of a u.s. fed rate hike in december, followed perhaps by more hikes in 2017 and then as u.s. interest rates rise people are, of course, taking money out of countries where interest rates are zero, putting money into the u.s. but also this means that asian currencies and emerging market currencies have taken a big tumble. if you look at the asian region, every currency from the japanese yen to the indonesian rupiah and the chinese yuan have taken a beating in recent days. >> that means these people, these travelers, when they go overseas they'll have less money to spend, particularly when they come to america. we have, we must -- in the china
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context we must remember we cannot be too fixated on the bilateral relationship between the chinese yuan and the u.s. dollar. we need to look at the trade-weighted basket. so there's an index cost which measures the yuan against 13 currencies, trade weighted. so against that currency -- against that basket, the chinese yuan hasn't depreciated so much. the euro has been weak against the dollar so more travelers will be headed for europe rather than the u.s. the pound has come down quite a lot against the dollar in the wake of brexit so, again everyone here can say for their own business perhaps their business in the last couple quarters have been very good in if uk because of the weakening british pound. japanese yen is an interesting case in point because earlier in the first half of 24 year it was very strong so we've seen a
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decisive move on the part of the chinese consumer to stay away from japan but now the yen is weakening from 101 on election night 1 to 113 today so people e saying perhaps it could head to 120. many chinese travelers will be heading back to japan in the coming few months so they go where the best bargains are and the chinese consumers are extremely astute in terms of not just analyzing products they wish to purchase but also the currencies of the country they're traveling to. >> let me throw this open in a minute. jing, how anxious are you about the global economy sitting in hong kong allocating these trillions, listening to your clients' anxieties and concerns, observing all the things that president-elect trump has said on the campaign trail.
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so how anxious are you and what kind of investment decisions, if that's not indiscreet, are you advising? >> well, even though there are lots of concerns and uncertainties, roger, i remain optimistic about the u.s. economy and the global economy. also people in the luxury industry they have to be optimist optimistic because you are selling a dream, you are setting heritage and a life-style. if you become all doom and bloom what would your consumers say? why would you buy -- why would they buy your brands or stay at your hotels, why would they travel with you? so in this industry if you're in the luxury industry you have to be inherently optimistic and i do think there are reasons for optimism. just taking china, as an
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example, even though gdp growth has come down, we have household income growing at 9% a year and that's pretty remarkable and you have people now being very aspirational, i end to compare the china today with the china i left over 30 years ago. it's night and day and chinese consumers even though their tastes are changing, evolving everyday their love for quality, for authenticity, for heritage will remain. so i think that really means this industry, the luxury industry broadly speaking from fashion to jewelry to hotels, hospitality, cars, there's a huge future for the industry. >> great, on that upbeat note, i'll throw it open to the optimists out there.
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who's got a question. yes, sir? >> some economists link inequality with the success of luxury markets do you think the recent downturn with the luxury market in china is somehow linked to anti-corruption and the efforts by the government to reduce inequality in china? >> well, you know, inequality in the world, income gaps, basically, have risen in the last many years, especially in the last five years, i would say, while in china you had the same situation, the income gaps between the haves and the have notes have really widen. so when president xi jinping came into office four years ago exactly he introduced the anti-corruption program which in fact has been very popular among
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chinese people. and he had to do it. basically he had to cleanse the system otherwise the system could collapse. so four years on we have a degree of success in the anti-corruption campaign. now, in the past for the luxury industry i would say maybe between 20% to 30% of the goods at that time sold were going towards gifting to officials and that shouldn't have happened in the first place, now we have the new normal for the luxury industry. people are buying for self-consumption, for self-use, and you still have lots of wealth being created in china everyday. and the country has more billionaires than any other country but america and the newly rich chinese still have huge aspirations to consume
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quality products, they enjoy quality experiences, they're staying at better hotels. that i buy thi-- they buy thing self-reward. so the initial anti-corruption campaign wasn't targeting the industry but the by-product of that campaign at that time could have hurt initially the luxury industry because the gifting was gone. now that the base has normalized i think the luxury industry in some cases you're seeing them getting rejuvenated. you should never blame the macro environment for the failure of a particular business. it's down to execution. even in challenging times some brands will do very well. so at the end of the day we need to look inwardly at the management, at your brands, at your creative designs to see whether you're cater iing to th
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business needs of today. no one should blame the environment if you're not doing well. it's down to the execution of your teams whether you're appealing to the new consumer of toda today. >> another question? >> in morning we heard about the u.s. needing china as an ally against north korea. could you comment on the chinese north korean relationship? >> well, north korea is dependent on china for food supply, energy. if china has a degree of influence over nk but i don't think anyone in the world has control over what north korea might do so that creates a sensitive geopolitical situation in north asia with south korea,
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japan right there near north korea china, of course, has a long border with north korea as we well. so this remains a geopolitical flash point so north korea keeps doing these missile test which is gets japan very nervous. >> what about china? >> well china as well but everyday if you look at the river that separates north korea from china's river, so there's a bridge that links the two countries and everyday if you're there you could just see trucks going to north korea carrying heavily loaded supplies from grains to food to coal to energy but the trucks come back empty everyday, they go full, come back empty so there's a huge amount of dependency north korea
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has on china. this situation, the stalemate, has lasted for some time. it will remain until the leadership changes in north korea, until the regime changes i'm afraid this situation will remain one of the biggest uncertainties in north asia. >> china could bring north korea to stop the trucks, it's all over. >> no, you can't. so the collapse of a north korea regime wouldn't be good for anyo anyone. it wouldn't be an accessible amalgamation like north korea and south korea getting together. >> why not? >> the cost gaps were enormous. >> they were in germany but people in east germany are free now. freedom counts, right? >> it does, of course, but i think given the leadership in north korea you wouldn't want o
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to. >> one more then we have to stop. >> i wonder if you could speak to intellectual property law in china and what you think the government is prepared to do. you spoke about authenticity and we know counterfeits, especially online, is a massive problem, especially at the luxury level and whether or not you think enforcement of intellectual property law could become a weapon in the back and forth if trump were to initiate policies that angered the government. thank you. >> well, intellectual property in china bh the past was a huge issue. it remains an issue but chinese companies are creating intellectual property. so they want to see their own ip protected. >> so that's why we've had a turning point in china's attitude towards protection of intellectual property. more and more chinese companies are fighting patents. they are creating brands. they don't want to see their
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products, their technology copied so i think this is improving also as you know also as you know alibaba is the largest marketplace for online shopping in china and they've been trying to clean up their web sites specially taobao which had a lot of fake products in the past and that issue is being resolved. but also i think china knows to become a responsible take holder in the world economy to be the second-largest economy in the world it needs to act responsibly towards intellectual property and there have been many lawsuits and wto action against counterfeit products, the situation is evolving and improving. it's better than five or ten years ago but consumers, the
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media, the brands will have to keep on -- keep pressure on the chinese government to continue their effort to protect intellectual property. the good thing is that chyna itself is a big creator so they want to see their own creations being protected. so as far as i can see the interests of governments, consumers and brands are more allied compare to before. >> thank you very much, jing, thank you everybody. [ applause ] jbs tonight on american history tv, programs from the emerging civil war blogs' conference on great attacks of the conflict, including the army of tennessee's assault at franklin, the federal break through at petersburg, virginia, and a separate program on foreign influential civil war wives. american history tv begins tonight at 8:00 on c-span 3.
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11th circuit court judge william pryor who's on president-elect trump's list as a possible supreme court nominee leads a forum on the legacy of justice antonin scalia and his views on legislative intent and the decline of legislative history. is. >> all those who are coming in, please take your seats.
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we're going to get start ed i'm john baker filling in for john east man. john is on another panel in another room at this time. so at this point all i'm doing is welcoming you on behalf of the separation of powers and federalism group of lawyers within the federalist society and if any of you after hearing this are interested in joining our section please contact either professor john eastman or dean roiter. with that i'll ask the doors in the back be closed reuter so that we can start the program. it's my great pleasure to introduce william pryor of the 11th circuit.
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[ applause ] >> good evening, thank you very much. justice scalia's views on federalism were fairly well known. in 2008 he authored a forward to a similar suppose yum on the separation of powers as a safeguard of federalism and the notre dame law resume. it's forward the entitled the importance of structure and constitutional interpretation left no doubt about what his views were. i'd like to read a couple paragraphs of what justice scalia said in that forward. "in the days when i taught constitutional law, the
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university of chicago law school had two constitutional courses, one was entitled individual rights and liberties and focused primarily upon the guarantees of the bill of rights. the other, i forget the title of it, focused upon the structural provisions of the constitution. principally the separation of powers and federalism. that was the course i taught and i used to refer to it as real constitutional law. the distinctive function of a constitution after all is to constitute the political organs, the governing structure of a state. many of the personal protections against the state taught in constitutional law courses here restrictions upon unlawful serges and seizures for example used to be taught as administrative law. they were made part of our constitution, though most of
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them as an appendage to the original document. and that was no doubt desired. but it's a mistake to think that the bill of rights is the defining or even the most bill of rights is the defining or even the most important feature of american democracy. virtually all of the countries of the world today have bills of rights. you would not feel your freedom secure in most of them. consider, for example, the following sterling provisions of modern bill of rights. every citizen has the right to submit proposals to state bodies and public organizations for improving their activity and to criticize shortcomings in their work. persecution for criticism is prohibited. persons guilty of such persecution should be called to account. citizens are guaranteed freedom of speech, of the press and assembly. street processions and demonstrations.
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exercise of these political freedoms is ensured by putting public building, streets and squares at the disposal of the people and their organizations. by broad dissemination of information and by the opportunity to use the press, television and radio. finally, citizens are guaranteed freedom of conscience, that is the right to profess or not to profess any religion and to conduct religious worship or atheistic propaganda. incitement of hostility or hate on religious grounds is prohibited. justice scalia wrote, wonderful stuff. these were the provisions of the 1977 constitution of the union of soviet socialist republics. they were not worth the paper they were printed on. as are the human rights guarantees of a large number extent countries governed by presidents for life. they are what the framers of our constitution called parchment of
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guarantees because the real constitutions of the countries, the provisions that establish the institutions of government do not prevent the centralization of power in one man or one power, thus enabling the guarantees to be ignored. structure is everything. justice scalia often said that while he always tried to get the bill of rights cases correct, he cared most about the constitutional structure cases. once or twice each summer he even taught a course called separation of powers. his opinions on the structural issues of separation of powers and federalism often cited the federalist papers. he routinely urged law students and lawyers to read the whole of the federalist. this panel looks at justice scalia's federalist focus on the importance of separation of powers and federalism as structural protections of liberty. and as usual, the federalist society has assembled a terrific
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panel to discuss these issues. i will introduce each of the panelists in the order in which they will speak. they will each speak about eight minutes, and then we'll have some responses to each other and then we'll begin entertaining questions from the floor. our first speaker, very fittingly, is professor john baker. dr. baker has been a visiting professor at georgetown law school and is a visiting professor at peking university school of transnational law. he is professional emeritus of law at louisiana state university law school. he is also taught at a number of other law schools, i should note, including tulane. professor baker received his j.d. with honors at the university of michigan law school and his bachelor of arts magna cum laude from university of dallas. he also earned a ph.d. from the university of london. for several years professor
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baker taught the course for the federalist society on separation of powers with the late justice scalia. our second speaker is professor jonathan turley. it's going to be tulane day. jonathan turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. he began his teaching career at tulane law school and then joined the george washington university faculty in 1990. and in 1998 became the youngest chair professor in the school's history. he's the founder and executive director of the project for older prisoners. he has written more than three dozen academic articles that have appeared in a variety of leading law journals, including those of corneal, duke, georgetown, harvard and northwestern, among others.
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he most recently completed a three-part study of historical and constitutional evolution of the military system. he has served as a consultant on homeland security and constitutional issues and is a frequent witness before the house and senate. professor turley received his undergraduate degree from the university of chicago and his law degree from northwestern university. his first job out of law school was a law clerk on the united states court of appeals for the fifth circuit where yours truly was clerking for a judge that year as well. we go way back. luther strange is the attorney general of alabama. a high post in government. before his election, general strange practiced law in birmingham, alabama, and before establishing his own law firm
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was a partner with bradley bolt cummings. he is the chairman of the republican attorneys general association. he also served as the court-appointed coordinating counsel for the gulf coast states in the historic deepwater horizon oil spill litigation. general strange is well educated. he received both his undergraduate and law degrees from tulane. he was a scholarship basketball player while earning his undergraduate degree at tulane. in june of last year -- or this year, i'm sorry, he was inducted into tulane law school hall of fame. john beline is the founding director of cato center for constitutional studies, also the founding publisher of the cato supreme court review and inaugural holder of cato's b. kenneth simon in constitutional studies. before joining cato, he held
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several posts in reagan administration, including state and justice, and was a national fellow at stanford hoover institution. roger holds a b.a. from columbia university, m.a. and ph.d. from university of chicago, and a j.d. from the george washington university school of law. finally, congressman ron did he desantis. since being elected to united states house in 2012, congressman desantis has served on the judiciary, foreign affairs and oversight in government reform committees. he's the chairman of the oversight's committee national subcommittee and vice chairman of the judiciary committee's subcommittee on constitution and civil justice. he earned a bachelor of arts magna cum laude and baseball at varsity baseball team at yale, continuing the athletic theme. also graduated with honors from
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harvard law school. he earned a commission in united states navy as a j.a.g. officer. during his active duty navy service he served as a military prosecutor, supported operations at the terrorist detention center in guantanamo bay, cuba, and deployed to iraq during the 2007 troop surge as an adviser to a u.s. navy s.e.a.l. commander in support of counterinsurgency operations in iraq. he's also performed duties as a federal prosecutor, taught courses on military law and written on constitutional issues. he's currently a lieutenant commander in the u.s. navy reserve. thank you for your service. we will begin with professor baker. [ applause ] >> thank you, judge.
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in this contention you will hear a number of references to justice scalia's lone dissent in the 1988 decision and independent counsel case, morrison v. olsen. that dissent went from being largely dismissed to being universally celebrated. ed whalen in a piece in the national review online last month, in september, chronicled the movement of linda greenhouse to a conversion. miss greenhouse now describes justice scalia's dissent being prescient, far seeing, prof equity. richard reeves used the same word in praising justice scalia's dissent in morrison back when ken starr was investigating as independent counsel president clinton. i think there was a connection there that caused some rethinking here. for the most part, however,
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liberal commentators have not praised justice scalia's opinions. most often detractors have used the word, uncompromising. in a negative way to describe the justice's opinions. of course, admirers, you heard from justice alito, use the word "uncompromising" in a praise worthy sense when talking about justice scalia. what the usual detractors do not understand is justice scalia was able to be prescient, far sighted, prophetic precisely because he was uncompromising in looking backwards. now, of course, virtually everyone knows that justice scalia looked back to the public meaning of the words of the constitution as understood at the time of the -- they were drafted. also most here in this convention will know that justice scalia's originalism was
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tied to constitutional structure, as judge pryor just talked about. but how many of you even here realize that his understanding of structure came largely from the federalist papers? that's what i want to discuss. i'll make three points. hopefully i'll get to the third one. the importance of justice scalia's place on the federalist papers to how justice scalia's understanding of the constitutional structure primarily separation of powers, as explained in the federalist, under gur his approach to the constitution. time-permitting i'll explain something about federalism. first on the importance of the federalist, as you've already heard, justice scalia would routinely ask students and lawyers in meetings or groupings, have you read "the federalist" and some hands would go up? and he would say, no, i mean the whole federalist? and hands would go down. his materials in the course we
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taught, that he taught as well every summer on separation of powers always began with federalist 47 and 48. those are the main ones on separation of powers, although separation of powers runs throughout the essays of the federalist. usually after we got done with that, then he would go into an attack on the progressives and their attack on separation of powers. often it was an attack on justice cardoza's reference to separation of powers as, quote, a fetish. last time he taught, it was a sustained dialogue, one might say diatribe, against woodrow wilson is and his attack on separation of powers as being terribly ad modum. early on in our relationship i asked him when was it he started to pay attention to the federalist? he said it was when he was head of olc because he said the questions we were dealing with,
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there was no case law. where would you turn? like the founders, like the first generation, like the marshall court, where do you turn? well, you turn to the text. but in many ways the text is like the building plan and it doesn't always explain exactly how things lock together when they could lock together in different ways. understanding that is really part of the context in which his originalism and context actualism must be understood. some of the examples, as many law professors have taught over the years, they've taught that marberry is great triumph of chief justice marshall very clefrlly figuring out how to get around jefferson. well, as lee otis has written, in class, before he was on the bench, then-professor scalia, would explain how this is really
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how the constitution, as supreme law, is supposed to work. now, this can give textualists problems because there's nothing in the text that says judicial review or what the court's power shall be. it says about the rule of law and says about its jurisdiction. but in our seminars he would be much more simple about it. he would just say, marshall plagiarized federalist 78. that simple. now, the fact is you can take most of the landmark opinions of the marshall court even though they did not cite the federalist, and they're straight out of the federalist. but this question of whether it is or isn't out of the federalist has to do with the legitimacy and limits of judging. think about it. there are many conservatives who believe that somehow judicial review is illegitimate. and if it's illegitimate, the
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question is, are you going to be slightly illegitimate and restrained or fully illegitimate? it's like being partially pregnant. it is just hard to restrain from going from partially to fully. and if, however, you understand separation of powers as he did, then there are times when you are forcefully uncompromisingly limiting the power of one of the other two branches. but that doesn't make you an activist. and he really didn't use that term. it is a question for him of following the text. but text is tied to the structure. two, his citations to the federalist were not just window dressing. there was an article in the william&mary law review in which a professor suggested every time a supreme court justice cites the federalist it's really much
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about nothing. that was not the case with the justice. you can see it if you read and analyze and compare, for instance, in morrison v. olson the majority opinion written by the chief justice and the dissent. so if you look at that, what you will see, first of all, what's remembered are all the great one-liners. and i heard it at lunch, and one of the things -- a wolf comes as a wolf. that's what people remember. and when he was hailing the demise, in a way of -- what's the -- anyway, he said -- he said, i'm glad to see that those who live live by the ibsidixit
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die by the the ipsidixit but he used those memorable phrase in order to get to you pay attention to what he was actually saying. what he wants you to do is look at the way he argues as compared to the way they argue. in many ways, the chief justice in that case was the text -- textualists because he starts out with the appointments clause. doesn't mention separation of powers. then he goes to the removal. there's no clause on removal. it goes back to a famous decision in 1789 in the congress. and then he goes through all the cases. and then at the very end, he says, well, what about separation of powers as a whole? justice scalia's dissent is the flip of that. he starts with the principle of separation of powers. then he works through it. completely different approach in terms of where you start. now, that can pose a problem for some textualists. you could say,
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where is separation of powers even in the constitution? there's no term there. that term appears in the 1780 constitution of massachusetts. it doesn't appear in our document because it's a blueprint. it's not an explanation. the federalist is the explanation of the blueprint. i wasn't going to spend much time on federalism anyway because although he got the federalism decisions right, he didn't much focus on them. why? well, as he said one time, the 17th amendment, direct election of senators, basically killed federalism. he also said, if the people won't preserve federalism, don't expect federal judges to preserve federalism. but more importantly, in a way, some of the important federalism cases are also separation of powers cases.
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think of the sovereign immunity 11th amendment cases. it's the states, it's the federal government, congress enacting something. think about obamacare. federalism is really the joinder of federalism and separation of powers. in conclusion, justice scalia's lone dissent in morrison against the dilution of presidential power as given in article 2 was ultimately vindicated. it will be interesting to see if the constitutional limit on expansion of presidential power will be vindicated. although justice scalia died before the 4-4 split in u.s. versus texas on the issue of president obama's order improperly allowed deferred action on illegal aliens, i don't think that there's much
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doubt about how he would have voted in that case. so i wouldn't be surprised to see justices who have taken, so far, a flexible approach to separation of powers suddenly become uncompromising about separation of powers as applied to limits on presidential power during the presidency of donald trump. thank you very much. [ applause ] >> first of all, i'd like to thank the federalist society again for the honor to speak with you today. it's a particular honor to appear with my former co-clerk, judge pryor. the only -- the strongest memory i actually have of him from when we clerked together on fifth circuit is my judge and his judge sat in the same panel. there was one case that was just unbelievably sexy constitutional case. and john minor wisdom was already senior status so my judge was technically the head of the panel, so i spent the
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entire week, as my judge would often defer, because he's a very, very nice guy. i said, you got to grab the case. you're both going to be on the same side. don't let wisdom get the case. for the love of god, please. i'm walking with him towards conference, just grab the case. say you'll grab the case. he'll let you grab the case. i come around the corner and there's pryor talking to wisdom, you know, feverishly. and pryor looked up with the most menacing look i've ever seen in my life and, sure enough, they wrote the opinion. and i've been bitter about it ever since. so thank you for this cathartic moment. >> purification. >> yeah. anyway, it's a great honor to speak about justice scalia. you know, scalia and i shared a sicilian heritage. i'm half sicilian and half irish, much like his kids, which i would remind him of when he made fun of me.
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when justice scalia passed away "the washington post" called and said, do you have any memories you would like to share? the only one that came to mind was we were at a dinner for a sicilian senator and we were standing by a window and justice scalia was holding forth on a story and the security guards kept trying to move us away from the window. scalia wouldn't move. and the security guards tried. finally this guy turns to me and says, why won't he move? we're afraid there's a hit team looking for the sicilian senator and we're afraid they're in danger at this reason. i said, the reason is justice scalia is telling a story. i'm pretty sure that he'd rather die than end the story, but i know he'd rather one of us die. but the fact is i thought about that story only because people have been trying to move scalia to the left or right his entire life.
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he never did. he was one of the few justices that could honestly say that he changed the court more than the court changed him. and the reason is because he came to the court with a very profound sense of the constitution and its history. one of the things i think gave him that foundation, that legacy, was that he based his opinions heavily steeped in the federalist papers. he also had a formalist approach to the constitution, which i'm going to mention in a second. i share that approach. i'm sort of in a minority among academics in believing in a formalist approach to separation of powers. most academics view that view as naive and simplistic. in fact, i just gave a speech at georgetown where one of the questions is, you do accept, right, that words have no objective meaning? and there was a time when a statement like that would have left me entirely confused. then i remembered i was at georgetown.
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so the fact is the original deal, those words did have meaning. while my colleagues view it as a lie, it was the original lie people were given. scalia saw it that way. it added a depth and coherence to his opinions. for me the really most indicative and profound opinion he wrote was in prince, a methodical decision. he famously said in that opinion, because there are no constitutional texts speaking to this precise question, the answer must the historic understanding and practice. when you look back at that statement, and you see what came after it, you realize how profound that was.
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he tended to run home. he tended to run home to federalist papers, run home to the text, the original meaning. in that decision, of course, you had this wonderful clash between scalia and souter over federalist papers. they debated the meaning of numbers 27, 36, 44 and 45. what was interesting, even suter acknowledged the meaning of the federalist papers should be given great weight in the analysis of the case. souter said the federalist papers should be given great weight in the analysis of the case. this case dealt with having state officials who would be required to carry out federal functions or duties. so what happened was this wonderful exchange. quite frankly scalia, in my view, got the better of the exchange as to what was meant by this structure. it was scalia who would often
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talk about the dual sovereignty of federalism. this concrete notion of the relationship of the federal government to the states. and that sense of clarity, that formalistic approach was also evident in morrison as just discussed. not going to discuss it further since it was just discussed by john. but in that case, simply note that once again when he answered the question, which he said that opinion was one of his most difficult, he went back to the federalist papers and quoted federalist 51, when said, the weight of legislative authority requires it should be thus divided, the weakness of the executive may require, on the other hand, that it be fortified. so he was very conscious of these lines. that's one of the reasons i like his work so much. i happen to believe that words do have meaning in the constitution, despite my own personal policies and interest. i think there are parts of the constitution that have static
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meaning. they must have static meaning. there's others that might be a little more fluid. when it comes to the separation of powers and federalism, those are static concepts that should not change through time. in that sense scalia was the rock that would bring us back to that original meaning. so scalia did, in fact, refuse to compromise, because he had principles. that's particularly why he will have a legacy. thereby mauling justices that came before him, and i'm afraid could follow, that will not be able to make that claim. he was coherent and consistent because he had principles. people often criticized him being dogmatic. but you're supposed to be dogmatic on principles. if you're not, you're what we call unprincipled. so when he passed, i felt like
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not only did we look a judicial icon, and also a wonderful human being -- i don't know anybody that ever knew scalia that didn't like him. he was remarkably likable. he would try to get into a fight with anybody over any subject because he really liked law students. if there was a pet in the room, he tried to argue with the pet. because he was vivacious, he was intellectually alive. that's what comes out of these opinions. he was a great believer in a formalist separation, not just separation of powers but in terms of federalism. when he left, i remember thinking about a wonderful quaker saying that said, quote, i shall pass this way but once. any good i can do or kindness, let me do it now. let me not defer or neglect it, for i shall not pass this way again. scalia didn't wait, didn't compromise, he did what he could and remained confident about it and committed to it.
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because of that, his light may not come this way to pass for some time. there are many people who do cherish the legacy he left, respect the principles he represented and will carry on those very same principles in the future, i believe. thank you very much. [ applause ] >> thank you, jonathan. i'm going to take the risk of standing up at this podium, although i'm pretty far away from it. i hope you can hear me all right. it's just an incredible honor to be here. i want to thank federalist society for inviting me and including me in this distinguished group of colleagues and friends and people i admire and people i've known for a long time. it's wonderful being attorney general in the state of alabama and this time in the nation's history to be conservative attorney general from any state. i get to follow in the footsteps in an office that was really formed by my close friend jeff
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sessions and my close friend bill pryor who set an example that i have tried to follow in my years in the office, the six years that i've been there, six very active years. i met bill many years ago. at the advice of jeff sessions, he said you need to encourage young conservatives that want to run for office and be involved in the debate. i didn't know what that meant. i volunteered for senator sessions when he pulled a great political upset in alabama. somehow or another, i guess nobody else would do it or could do it, i ended up being the chairman of bill's election campaign when he took jeff's place. i'll never forget walking the halls -- we stayed up all night on election night. the judge knows the exact total of his victory, but it was something like -- how many votes was it? >> 6,667.
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>> 6,667. >> 1.3 million. >> suffice it to say it was close. as a matter of fact ap hadn't called it. we were up literally all night walking the back room of the ballroom wringing our hands. we finally decided, the candidate did, we're going to go out and declare victory and make them prove we didn't win. of course he did win, and the rest is history. when bill was attorney general, not long ago, really, there were maybe six or seven, less than 10 attorneys general in the united states. now there are 29 after last tuesday's election. 29 conservative republican -- i was proud to be elected chairman of that group last weekend at our meeting in austin. two weeks ago, actually the thursday of the election, kim strassel who will be here saturday morning to sign her book, which i urge you to do, wrote an article in the "wall street journal," attorneys
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general of the united states are the last line of defense, protection of the constitution and rule of law. of course the world changed then. frankly my remarks today changed a little bit after that election. we're no longer the last line of defense, we're now the tip of the spear. the whole issue, i said it's a historic time to be ab attorney general, the oath we take, all elected officials take, is to uphold the constitution of the united states, the respective state, and uphold the rule of law. politicians come and go. some we'd like to go sooner than others but they all eventually come and go. it's what preserves our liberty, our freedoms, our rights, our opportunities, our economy, everything that we enjoy this country is the constitution and rule of law. the previous panel said it very nicely, we don't get to pick and choose the laws we like and don't like.
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there's a democracy set up for the purpose. it works extraordinarily well if we protect and preserve it. we're talking bowed federalism and we'll hear from congressman desantis and others about what we under about horizontal federalism, the balance of power in our country. one of the things i've hoped for quite some time now is that congress would reassert, find a way to reassert the proper role in the balance of power here in washington. a lot of power has been given away. that's led to a lot of problems we've had to address. i have great hope about that. there's also vertical separation, the states versus federal government. that's where we attorney generals have been very active in the last six years. i don't have the precise number. dozens have been filed against obama administration over the last number of years for violating the rule of law, for exceeding the powers that congress granted to them.
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we've studied and we've won. i mentioned the last line of defense. i'll just mention three cases that sort of illustrate the point. one has to do with bathrooms. i really never thought when i was elected attorney general i would be litigating in federal court about that but the department of education in its wisdom decided all schools should require all people, depending on their own definition of their sexual orientation to use the bathroom of their choice or face the loss of federal funds. that was done may 13th, 2016. may 25th, 11 states challenged that rule. in federal court. august 21st, a nationwide injunction secured three months after the initial action. i'll editorialize. i was curious when the issue was brought to my attention, i asked one of our school administrators, is this a problem? is this really a significant problem that requires a federal
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mandate. you might not be surprised if you live in the real world that this supervisor said, actually, it's not a problem at all. this occasionally happens in our school systems. we do something really revolutionary, we have the teachers and the parents and the students and administrators all sit down and see if we can work out an accommodation that works for everyone. that's exactly what we've done. it is not a problem. it is a problem for 99.9% of the other parents who don't understand this when the federal government mandates something like that. so regardless of that, we were successful. immigration, it was mentioned earlier. the president issued the order in november 2014 to legalize millions of immigrants in this country. less than two weeks later 17 states filed a lawsuit challenging that action. june 23rd of 2016, two years later, the supreme court put an end to the president's effort. the last i'll mention because it's particularly relevant to our discussion about justice scalia, the power plan rule tremendously important to my state, to many states in this
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country. the epa issued the rule in october 2015. on the same day 23 states filed a challenge to that ruling in federal court. on february 9th, the supreme court stated the clean power plant rule was quite extraordinary. that was the last vote official act of justice scalia. so it was critically important. we owe so much to his legacy. my final hope i'll express is the congress and new administration will find a person who will fill the role he's played in his shoes in the coming days, months, and as they deliberate that. we republican ags look forward to that because i'll get back to where i started. regardless of who is the president, or who is in congress, we will continue to take our role seriously, which
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is to uphold -- defend the constitution and uphold the law in this country. i appreciate the opportunity to be here and look forward to your questions and our discussion. thank you. [ applause ] >> i, too, want to thank the federalist society for inviting me here. when dean called me to see if i'd be interested speaking, he said he wanted some ballot panel. balance. i thought, well, you must have read my forward to new supreme court review which was titled "justice scalia's originalism: original or post new deal." so i think you know where that went. so i am going to bring a little balance. i'm going to be -- i hate to be the skunk at the garden party. actually i don't, now that i think about it.
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but i loved justice scalia. every time i ran into him we got into an argument. he loved to argue, just loved it. if you took one position, he'd take the other and then you'd flip around. it was great fun to argue with him. for our subject here today, which is federalism and structural protections, he was absolutely right that the structural protections for liberty are the main protections for liberty. he was correct also that the bill of rights was an afterthought, as he often said. unfortunately too often he ignored the changes the civil war amendments made to those structural protections because he too little regarded the theory that undergirds the constitution and that led him to place democracy over liberty. that undergirding theory, state of nature theory, can be seen in the preamble. before that in the declaration.
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before that in the second treatise of course. but scalia wouldn't go there. ever the positivist, he dismissed it as philosophizing, unlike what he called constitutions operative provisions. his method was textualism, protectionism all salutary, if you follow it, which he didn't always do. those tools are often insufficient, of course, when you get to broad or vague texts. at that point have you to have a theory of the matter. you have to know where you're going. you have to know in particular what the presumption is. a judge can't simply throw up his arms and say let the people decide unless the text clearly points that way. the constitution -- after all this constitution, which the judge takes a duty to uphold, was written not simply to empower officials but to limit them as well toward liberty, not simply toward power as the
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preamble and declaration make clear, the bedrock principle in short is liberty. reflecting the state of nature reasoning of the second treatise in the declaration, the preamble begins by recognizing sovereignty rests with the people. government doesn't give the people their rights. they create the government to secure their rights. toward that end, the framers structured powers, they divided powers between the federal and state governments leaving most of it with states and they separated powers functionally at the federal level pitting power against power as the federalist shows throughout. most important, though, they limited federal power through the enumeration of powers for a few national concerns. and to make that crystal clear when they added the bill of rights, they concluded with the ninth amendment which states plainly we retain all the rights we never surrendered and tenth
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amendment which makes it equally plain the federal government has only the power we gave it, in a nut shell constitution establishes a government delegated enumerated and thus limited powers, further limited by our rights both enumerated and unenumerated. for all its virtues, though, the original design was fatally flawed as we all know. civil war amendments fixed that by fundamentally changing federalism mainly through the 14th amendment's privileges or immunities clause. made rights against federal government including natural rights protected under ninth amendment, good against states as well save for those rights peculiarly related to distinct federal and state functions. we all know what happened to that clause and what happened six decades later when the new deal court turned that carefully wrought design on its
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head by eviscerating enumerated powers principle, bifurcating the bill of rights and the role of the court, judicial review and jettisoning nondelegation doctrine. rather than rehearse those developments here, i'll return to justice scalia's view. a textualist cannot ignore plain text but he does. i'll start with a few powers cases where he tends to be better their rights. in fact, start with an anecdote. i invited him over to cato in 1993 with the idea of going toe-to-toe with him on the issue of the demise of the doctrine of enumerated powers. before we got that, he said, where is wine? i said, this is lunch. he said so? so we had to send an intern out to get a bottle of wine. that loosened our respective tongues as if any of us needed
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that. we proceeded from there. i did say to him at one point, when are you going to revive doctrine of enumerated powers. roger, we lost that battle a long time ago. i said, thank you for that counsel of despair. two years later when lopez came down, he was on the right side as he was in morrison when that came down five years later. in prince, as john turley said, he wrote for the court in that case saying that the congress had no power to dragoon federal officials into carrying out state -- state officials into carrying out federal functions. but eight year later, in the california medical marijuana case, he read the commerce clause's power so broadly that madison in federalist 42 and marshall and gibbons would never have recognized it as justices thomas and o'connor made plain
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in their separate dissents. in sebelius and king, two big obama care cases he redeemed himself. albeit in dissent. even the correctly decided powers cases, however, only scratched the surface of enumerated powers doctrine. we're far down the road toward massive unconstitutional government. i'm the last to think that the court by itself is going to reverse that. in the rights cases, however, were more promising. except here scalia is all together uneven. in the interest of time i'll focus simply on the state police power cases where most of the confusion arises. consistent with the underlying theory of political legitimacy that i sketched earlier, the police power we enjoy in the state of nature locks executive power and then delegate to government is mainly there to secure rights. thus it's bounded by the rights there are to be secured. and the question, then, from
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lockner to lawrence, and in many cases in between, the question should be what rights the state is securing by a law criminalizing, say, the sale of contraceptives or marrying someone of another race. if the state can point to no such rights, that settles it. the judge doesn't have to discover any unenumerated rights, it's the state that has to identify rights to be protected under the police power. as with enumerated powers, then, where there is no power by implication there is a right. hamilton, wilson and others objected to adding a bill of rights because they saw it was impossible to enumerate all of our rights and dangerous to enumerate only some. the structural limits were meant to secure our liberty. power pitted against power. the enumeration of federal powers and later a narrow reading of the state police power consistent with the privileges or immunities we
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enjoyed as citizens of the united states. indeed, did we have no rights prior to adding a bill of rights, or lose rights when we added one? that's the implication if judges are to secure only enumerated rights as many conservatives today, including justice scalia, have argued. the ninth amendment written to dispel that reading. the textualist can hardly ignore it vis-a-vis the states with privileges or imunits clause 14th amendment. so why do so many conservatives indulge that reading? responding understandably to the perceived judicial activism of the war. berger courts, bickell, bork, scalia and others focused on the counter-majoritarian difficulty and the need accordingly for
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judges to oppose passive virtues. in so doing they ignored majoritarian difficulty which deeply concerned framers. framers stood for liberty first majoritarianism second. one means toward liberty. main means was structured including revised principle federalism. we tend to think of federalism as states protecting liberty vis-a-vis the federal government, but it cuts the other way, too, protecting against grassroots tyranny. that's what justice scalia too little appreciated. his work for securing originalism was invaluable and he will be long remembered for that. but let's secure the whole of originalism. thank you. [ applause ]
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good afternoon. it's great to be here. judge pryor came and visited harvard law campus back in my day. i don't think he was a judge yet. i think it was rumored or something. it was controversial. a lot of the harvard faculty thought he would commence a reign of terror on the bench. once i heard that, that was probably the best seal of approval i could possibly imagine short of an endorsement from justice scalia himself. sure enough he was proven to be a good judge. it's an honor to be with him. think of an anecdote, a constituent asked me about an issue with municipal trash cleanup in their neighborhood. i responded and said it's an important issue. i'm your federal representative in the u.s. congress. we deal with federal issues. she said, yeah, i know, i just thought i'd start at the bottom of the totem pole and work my way up. and the thing about that is there's a truth to that not because congress is a punching
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bag but i think congress stands today as the weakest of the three branches in our constitutional system. i think justice scalia was very, very articulate about identifying structural constitution as the number one protector of individual liberty that you would have these different branches and they would compete with one another. they would be zealous about guarding their power. that even more that the bill of rights is how we would preserve and protect individual liberty. it's interesting, the founders if you read madison and federalist, we hear about three co-equal branches of government. the founders didn't envision necessarily to be equal, i think they envision them to compete. madison said in republican government, the legislative authority necessarily predominates. in fact, although the revolution was a revolt against executive authority, the constitution, impulse of that was they saw runaway legislatures of the state at the time.
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they wanted a government of, by, and for the people, they didn't want it to be a tyranny of the majority. they knew that the congress would be powerful but they wanted to have other branches that would also check it. even with those checks, they just thought the branch closest to the people, at least the house, would have the most power. of course if you look at the original constitutional design, just look at congress's power. the power of the purse. obviously the power to legislate. you can prevent stocking with personnel by not confirming people. can you impeach civil officers. president, vice president, circumscribe jurisdiction of the court. you don't need to create lower courts, you can abolish them. they understood presidency in foreign affairs but really more of a check on the legislature is how they envisioned it. yes hamilton said executive can undertake extensive arduous enterprises for public benefit. if congress isn't providing funding for those enterprises, they are going to amount to
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nothing. the court, of course, hamilton said were incontestably the weakest of the three branches of government. an important role, absolutely, but you're not able to legislate from the bench. the current practice, i think, to me the executive by far is the most powerful. then i would say the courts. the courts probably have as much legislative authority as we do. certainly more power over the constitution. part of the reason the executive has gained so much power is through congressional neglect. congress will legislate and say, well, we really can't deal with thorny issues, beaurocracy you figure it out. beaurocracy legislates. the hobby lobby went to court. paved the way for administrative overreach. a statute is ambiguous or even a long statute that's been on the books for decades, the administrative agencies, executive branch going beyond
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that legislating vast new policies with tremendous effect on american society and american economy. i was my first state of the union when i got elected 2012, president obama came and said congress, i want you to do what i say. if you don't enact it, i'm going to do it on my own. we had just gotten sworn in a couple weeks ago. i was like, that's not exactly how it was written down in the constitution. the thing that bothered me the most about it, not that the president was asserting that authority, because the fountainers assumed each branch would try to exceed its constitutional limits. what bothered me, i looked to my left, every single democrat in that chamber stood and cheered him when he said that. so they were willing to put their personal, political viewpoints ahead of their duty to defend their own institution, which i think is defending the
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constitution. so it's a problem in both ways. the executive branch and congressional accountability, we did this with the irs in terms of dealing with the targeting, obviously the justice department was not going to do anything. we knew that from the beginning. at least conduct oversight, documents. they destroyed e-mails that were subpoenaed. the commissioner made multiple false statements. he admitted statements were false. they didn't do basic due diligence like look at lois lern lerner's blackberry. what happens? nothing. to me from congress's fecklessness, destroy the stuff. don't worry about it. nothing is going to happen to you, if the head of the executive branch concurs in kind of doing what you're doing. of course the courts have also helped the executive become more powerful by deferring to what the administrative agencies do. to me i think you should apply the law as it's written, not defer to the executive branch because that allows the
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administrative state to get bigger. so i think that justice scalia, nobody has been more influential for law students, for lawyers, judges, if you're on the center right. i just wish his wisdom would make its way more into the halls of the united states congress. because scalia understood that you have to defend your own turf. one of the things that frustrates me is some of my colleagues say if we're debating a bill, you know, is it constitutional? do we have power? does it conflict with the bill? we'll let the courts figure that out. we do whatever -- we vote for whatever we think is good unless and until the courts stop us. the problem with that is the courts can only decide cases or controversies. basically anything that would not lead to a lawsuit, you're basically saying there's not going to be anyone that's going to stand up for the constitution. our duty is to defend the constitution and act in confo
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conformance with the constitution. i always said if there's a bill not constitutional, my duty is to vote against it regardless of what the courts may or may not do. it's not just congress. president bush when he signed mccain feingold said i think it's unconstitutional but let the courts figure it out. that's not the way to do it. if you think it's unconstitutional you've got to air on the side of exercising your authority with the constitution. i think justice scalia would really -- i think he was really frustrated with congress. our big way to defend our powers, the obama care program took funding that really was never appropriated. that's our core power, the power of the purse. what we did was file a lawsuit to try to vindicate that interest. we were able to move the ball forward. i think scalia would look at that and say why are you running to the courts to do that? you guys should defend it yourself. you have the power, the power of the purse, to not confirm
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people, impeach, why don't you use powers rather than running for the court. i think at the end of the day we're in this budget problem where we do these big omnibuses where we're not willing to solve that. we're not willing to take political risk to defend our turf is the thing, so it ends up going let's file a lawsuit and let's do it. so it's an honor to be here. justice scalia really was the man for all seasons. he was one of the few people to really make an indelible mark not only on the law but on political philosophy. i just wish everything that's been discussed on this panel and this conference could make its way into the halls of the congress and we'll reclaim our constitutional authority and get the constitutional system back into its proper form. thank you guys. [ applause ] >> okay. i want to first invite our panelist to respond to each other. from your seat, hopefully your mics are now live for you to do
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that. i would expect perhaps professor baker has some things to say in response. >> roger thinks i'm going to attack him. roger and i debate every year but i didn't find much to attack. i want to follow up what jonathan said about prince. it was really important what you did, jonathan. i want to add if you look at the separate opinion by justice briar, the amazing thing is justice briar says, i don't see why the federal government can't order local officials to do it. it's more efficient. if you read the federalist, you will know the crux of the whole problem and why we changed from a confederation is, in fact, federalist 15, the whole point, you can't have one government telling another government what to do because eventually it won't work.
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see brexit. >> i was going to add i don't disagree, roger and i agree on most things anyway, so that's not a surprise. the one area of scalia's legacy which i do find problematic was his support for chevron. it was sort of anomalous, he continued to support the idea of chevron even as we had this rise of the fourth branch, rise in administrative state. certainly indicated some misgivings about chevron. but that's always one part of his legacy most sharply discordant to his views of formalism.
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that's what i would add in terms of criticism. >> i would just say on that, justice alito said he was actually changing on that, one. two, roger mentioned post new deal originalism. although he didn't specifically articulate it this way, once you have the 7th amendment, it changes. the senate is no longer a protector of the states. that's what built the administrator of the state. he's trying to figure out how do you deal with this? how do you draw lines? will the courts then end up replacing the administrative agencies and running everything? what most people don't understand, especially populists is that that was a real structural protection. it is the driver behind the administrative state and the uncontrollable budgets. that is just not widely known. he understood that. with that, it is very difficult to reverse the dynamic. he didn't think the courts were in the business of reversing that dynamic. >> roger.
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>> yes. [ inaudible ] [ inaudible ] [ inaudible ] >> this is breaking down fast. i think we'll start with questions from the floor. i'll begin with my usual admonition. these are the panelists, they were invited to be our speakers. we appreciate your presence here. we love to have your questions but you weren't asked to be speakers today. so i want to ask for questions. you can introduce it with a little bit but please keep it as a question.
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>> from the cato institute. to the extent you enjoyed roger's essay on scalia, i had to edit it. so you're welcome. just kidding. i had to introduce a couple of come commas. >> i think it was his failure to agree with justice thomas on how properly to read the commerce clause. >> or was it -- >> both of them. i think that goes back to what i said, the new deal is a watershed but it affects not only the interpretation per se, it affects the dynamic. i think he felt there was no way to undo that.
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when we would bring this up at sessions, he would say, well, that's water under the bridge. look, he fought more battles than anybody else. i think there were just some battles that he didn't. early on when we would cover flast, those this morning heard justice alito and how justice scalia excoriated him for not saying it should be overruled. early on when we were teaching, i said, why don't you overall flast? he said my colleagues won't. he wasn't arguing for it over time. he changed oefrd time and he was starting to argue for it. it comes down to the votes on the court. if there aren't votes to do something, it's not going to get done. one time i had a case up there and he said i could ask him afterwards why they didn't take it. you know, the votes weren't there is what it came down to.
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[ inaudible ] >> it's hard to know what motivated scalia. if the federalist is one of the central topics on this panel, if you're talking about general welfare clause, commerce clause and necessary improper clause, which are the three clauses which we have gotten -- you can do no better than federalist 41, 42 and 44 respectively and you'll find exactly what madison thought those clauses were all about. they weren't about allowing a decision like came out. >> not just people on the left but overwhelmingly people on the right do not understand our structure. the latest vote -- latest poll on the electoral college is the vast majority of american people wan to throw it out. they have no idea what that will do.
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[ inaudible ] [ laughter ] >> they don't know what it did. >> we're going to take a question from the right -- this side that's to my right. >> from scalia law school. if you know me, i will show restraint and not ask about 17th amendment. but i will ask about, though, i was struck by congressman's remarks on federalist and thinking about federalist 62 where they made the argument for bicameralism based on the idea legislature is the real threat and remedy for this is to break the legislature into two parts and use bicameralism. i'd just be curious about the panel's reflexes on bicameralism in the modern age as perhaps it relates to federalist 62. it's not a well formulated question. maybe you can do something interesting with it. >> at least it was a question.
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>> i've seen has been different that how manson madison and hamilton thought -- they really thought you would side with your institution. but in some of the budget fights we had congress passed unified budget for the first time in 15 years, last year, 2015. we started appropriation bills in the house. it got to the senate. harry reid would filibuster the bill brought up. basically no agencies funded. go all the way to the deadline and force some kind of omnibus or continued resolution. what they were doing, you had a minority in the senate siding with the executive branch over a core power. i think we weren't able -- weren't able to figure that one out. that is not, i think, what we should have been doing. they should have been standing with the house to try to reign in the president i think is how it was originally designed. >> i would add -- i'm a
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madisonian scholar. it's hard for me to say he got anything wrong. the one thing i think he would have been astonished by is the state of the union the congressman was talking about. as a scholar, i was in disbelief the president said because you have not carried out my reforms, i've decided to circumvent you and make you non-entity and got rapturous applause from half the chamber. i think madison believed institutional interest would overcome political alliances in that sense. representing the house of representatives in the aca lawsuit. i have to say i was surprised to see the level of democratic opposition. we were fighting over the power of the purse, the defining power of congress. so there is a strange thing going on that i think that madison did not anticipate with regard to who the members are and how they have changed. i think that is different. i went to congress when i was a 14-year-old page and there were
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people there, giants, who fought for the institution. not just people like bird and for the institutional integrity of both chambers. that's what's missing today. i hear that in -- >> let's wait two months. i guarantee you'll have democrats much more receptive to these arguments. it's an open question how republicans are going to respond, if there are similar actions taken are we going to defend the institution when the politically easy thing to do is probably fall in line behind the president. hopefully the rubber doesn't meet the road on that and the president conducts himself. i think it will be interesting to see how it shakes out. >> i would just say i'm so encouraged to hear the congressman's comments about reclaiming the lost power of the legislative branch in this country. you know, i talked about the dozens of lawsuits we filed.
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it was really a cause. we were forced to file those lawsuits because it was very clear that the executive branch had overstepped its authority. when the president stands up and says i literally have a pen and a phone and i'm going to do what i want to do and he's being applauded by congress. it's really disturbing. so i really -- if you don't get anything accomplished the next two years, we're looking for candidate for ag in florida 2018. you'll enjoy that job. >> i will say, though, i think part was political. we saw with the election outcome, some people were shocked. they thought democrats would never lose the white house again so i think that was part of it. hey, republicans aren't going to be in that spot. us doing this is not really setting bad precedents. what happens? you support bad precedent and who ends up president? donald trump who many of them are concerned about. so be careful. never invest power into a person who you would not be comfortable if your greatest enemy exercised that power. >> on that point i want to add
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professor turley was the one who warned liberals before a house committee that if you don't stop this president, you're going to get a republican in here one day who is going to do the same thing. >> question. >> thank you, your honor. i want to -- i want to reassure professor baker that idaho loves the electoral college. we don't want to give it up. with a million and a half citizens, we have a problem with overregulation. we have 722 sets of regulations in idaho. that's pretty much strangling us. so without the senatorial check and the case got rid of legislative veto for unicameral, idaho passed an amendment to have a bicameral legislative veto. since we lost -- got the 17th amendment is the legislative veto viable at the federal level
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on a bicameral basis and i'm also wondering what roger and professor baker in particular have to say about that. >> you want a legislative veto, two houses? >> i would love to have it myself. no. yeah, the two houses together kwo get rid of executive branch rules. >> here is the problem with many people on the left and the right. they see a particular problem and they look only at that problem. they come up with a solution for that problem without thinking about the consequences the new problems they are creating. you have to look at the whole body together and figure out what you're doing. remember, the 17th amendment was passed with virtually no opposition by populists on the right and left except the populists on the left knew what they were doing. they were out to destroy separation of powers. nobody made the argument,
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structural arguments. they made the same arguments that are today being made for term limiting members of congress. okay? they thought they would bring senators closer to the people. nothing could be further from the truth. so you have to know something about the constitution before you keep changing things in it. it's a matter of looking at what worked and why it will work. or to borrow a phrase, what really did make us a great country? >> justice scalia often said 16th and 17th amendments both passed in 1913 at the height of the progressive era were the key to understanding the emergency -- however, neither of those expanded the power of congress. congress didn't have a bit more
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power afterward than it had before except as a practical matter, a political matter, that is to say, now you've got political forces calling for the demise of the number rated powers doctrine but it fell finally to the court in 1937 to expunge, eviscerate the doctrine. >> but they would never have done it if senators were still protecting states, because they wouldn't have put up with it. >> political point -- >> no. but it changes the dynamic of power. what the federalists explain is human nature and what motivates people. today we think policy. well, wait a minute. policies are executed by human beings. what are their motives? >> take another question. >> thank you. i used to be chief of federal litigation for miami-dade county. i'm now a state attorney. >> what's your name? >> craig -- one issue i say related to federalism, i wanted to ask you about it and justice scalia thought about it.
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in the early 1900s, there was a case in the city of pittsburgh that talked about how state really have authority over their local governments. what's occurred to me and many of my students when i teach them about state and local government, federal government exercises a lot of authority over counties and cities. both through 42 usc-section 1983, through a number of other acts and statues and through the administrative agencies, which i'm not making judgment on this but i find it interesting. if you truly have federalism but the federal government is the one, for example, regulating city police departments or county police departments not the state, do you really have federalism? >> you do. because as i said in my formal remarks, federalism cuts both ways. it's not simply the federal government has limited power and the states have the balance of
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power, federalist 45, it's rather that the civil war amendments change that arrangement fundamentally. now you've got federal power essentially to negate state actions that are in violation of their own citizens. that's all together different from federal power to give us obama care, what not. it's federal power to negate states that are running amok. that's the other side of federalism that the civil war amendments brought into being. that's the side that so many conservatives find uncomfortable because they think of it as empowering the court to find enumerated rights. what i tried to argue was that, no, it empowers the court to tell the state what right is this police power protecting.
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when you look at everything from lockner to pierce, society of sisters, meyer v. nebraska, griswald, lawrence, you find these are moral arguments, not defense of rights of individuals. >> thank you, judge. my name is justin pearson, an attorney at institute of justice. >> okay. could you speak a little closer to the microphone so we can hear you better. >> my question is directed at congressman desantis. i appreciate what you said about the duty of elected officials to not support unconstitutional legislation. my question to you, congressman, whether you think that is mutually exclusive with the role of courts to use the constitution to serve as additional bulwark against legislative encroachments as hamilton promised in federalist 78 when elected officials fail to fulfill that duty. >> no. absolutely.
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i think justice scalia would say this, the idea of review is not policy questions, this is a lawyer's job. you have a constitutional text. you have a statutory text. if they are harmonious, then fine. if there's a conflict, your job is to identify the conflict and prefer fundamental laws representing constitution over transient impulses of the people as represented in the statute. that is absolutely legitimate. but this is something that these cases are brought to them. they can't go out and do it. they can't go beyond what the case is. i would also say that just because a court has found something to be constitutional if you honestly as a legislator believe that it is not constitutional, that the court got it wrong, to me, i still think you have a duty to vote against the statute. many say the court ruled i'm fine, you won't be criticized for that. but courts don't always get it right. we have to render our own
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judgment. doesn't mean you don't follow court decisions. but at the same time we're not under obligation to vote for statutes we honestly don't believe are constitutional. >> i would just add a lot of times people don't realize you can have two separate viewpoints all together between the congress and the court. that is when the court rules on something as to whether it's necessary and proper, they are ruling as to whether the congress could find this necessary and proper. it doesn't mean as a member of congress you have to say it's necessary and proper, and that is a constitutional issue. >> next question. >> with madison coalition. 25 years ago i was newt gingrich's committee council, we thought congress could fix everything. i would be interested in the opinion of the panel about an effort now going on coming up from the states. there are 900 state legislators and six governors and 19 state legislative chambers and the
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republican national committee's unanimous endorsement and language in the platform, republican platform, for a constitutional version of the rains act that almost every house republican voted for that would require congress to approve major new federal regulations. the idea is in the same way that states we're able to force congress to propose the bill of rights without a convention. more recently the 17th amendment and presidential term limits. pressure from the states could persuade congress to do what's in its own interest and reclaim executive branch power, article 1 power stolen by executive branch. your thoughts on regulation freedom amendment and strategy. >> i'm generally against amending on issues like the reins act, because i think that it's important to use the constitution for suv we cannot achieve legislatively. congress asking them again to bring up the reins act. i think it's a useful tool to get congress back in the business of governing.
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there's a not so noble lie that congress is actually governing, when most -- 99% of the agency decisions are not being reviewed. they're being increasingly done independently. i think that is a serious danger for a democratic system. more and more of our decisions are being decided by this insulated group of agency officials the public has no intersection with them and doesn't know who they are. even trivial thing like unknown office declaring that the redskins can't use the redskins name. this is a raging debate. i'm not involved. i'm a bears fan. but the fact is, you had this unknown office step in and say, all right, we're going to settle the question. you don't have trademark protections. you can't use that name. it's an example of what we talked about with the fourth branch. largely that's insulated from congress. congress doesn't have the
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ability, staff to look at agencies. that would change with something like reins act, you pass the act rather than support and amend the constitution. >> i would support a constitution of four words, "and we mean it." [ laughter ] >> next question. >> i'm warren belmar, i'm a recovering attorney with one question. is there any vitality left to to shekter poltry? and if not, why not? >> according to justice scalia there wasn't. >> vitality to -- >> he used to say companion case in which they applied that and that wouldn't be applied again, but that's before he started rethinking chevron. >> only limit we had on delegation of executive branch. something that might still have some vitality.
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>> let me read this first. buses to the gaylord for the annual dinner can be boarded on the desale street of the hotel. you can access desale street by existing the door outside by the gift shop. please ask staff member, they will direct you. buses leave for the gaylord from now until 6:00 p.m. for the return trip, buses will depart at the conclusion of the dinner and then every half hour with the last bus loading at 11:30 p.m. so will you please join me in thanking this panel? [ applause ]
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tonight on american history tv, programs from the emerging civil war blogs conference on great attacks of the conflict. including the army of tennessee's assault at franklin, the federal breakthrough at petersburg, virginia, and a separate program on four influential civil war wives. american history tv begins
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tonight at 8:00 on c-span3. tonight at 8:00, dick cheney and leon panetta on the future of the defense department under president-elect trump. >> i think the challenges are very great. and i think we have unfortunately over the course of the last many years done serious damage to our capabilities to be able to meet those threats. >> we're living in that period where there are a lot of flash points. a new administration is going to have to look at that kind of world. and obviously define policy that we need in order to deal with that. but then develop the defense policy to confront that kind of world. >> thursday at 8:00 p.m. eastern, a look at the career of mike pence. >> amidst the shifting sands, we
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have stood without apology for the sanctity of life, the importance of marriage and the freedom of religion. >> on friday night beginning at 8:00, farewell speeches and tributes to several outgoing senators, including harry reid, barbara boxer, kelly ayotte and dan coats. this week in prime time on c-span. we have more from this recent conference on foreign policy and defense with national security experts talking about innovation and cyber security challenges. welcome back. my name, again, is chris griffin, executive director at the foreign policy initiative. i ask that you kindly make your way back to your seats. once again, as a courtesy i ask that please make sure you put your cellphones in silmo


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