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tv   Discussion on Executive Power the Constitution  CSPAN  August 7, 2020 12:43pm-1:48pm EDT

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hear the case live tuesday at 9:30 a.m. eastern on c-span and or listen live with the free c-span radio app. next, the heritage foundation and the federalist society hold a discussion on executive power and the constitution during the trump administration. legal scholars analyze some of the president's executive actions and how they compare to previous presidents. this is an hour. hour. >> my name is john malcolm, vice president of the institute for constitutional heritage foundation and we are cohosting this >> my name is john malcolm. we are co-hosting this event with the federalist society. in chief," mr. john yoo states, and i quote, if friends have
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told me january, 2017, i would write a book on donald trump, i would have questioned their sanity. indeed, a few months in, he wrote an op-ed in "the new york times" entitled executive power run amok. however, upon reflection, he writes boy was i wrong, the campaign, like a populist but governs like a conservative. there are others like harvard law professor who said gays into the trump presidency, i would say that he is crashing through it. the president's detractors have not changed their mind or their rhetoric instead. like yesterday on cnn representative clyburn compared
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donald trump to mussolini, puzzled constitutional scholars, but in terms of his actions, not his rhetoric had the president respected the constitution or trampled on it. we are very fortunate today to have with us analysts including john yoo to discuss the constitution has fared during the trump administration. they will give brief remarks followed by moderating and then there will be plenty of time for questions from the audience comes to please feel free to enter those into the tab section. first we'll hear from john yoo. the professor of law and director of the law center and
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california constitution center and the public program. he is also a visiting scholar at the american enterprise institute and a visiting fellow at the hoover institution. after graduating from harvard college and before attending law school, he worked as a reporter in washington, d.c. and after graduating law school, he clerked for john on the dc circuit and for justice thomas. he's previously served as general counsel on the senate judiciary committee as a deputy assistant attorney general in the office of legal counsel, where he worked on issues involving foreign affairs, national security and separation of powers. he's been a visiting scholar in several different law schools and the author of many books including one they are going to discuss today which is "defender in chief." david rivkin is on the
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international environmental team and serves as a cocreator in the practice. he has extensive experience in constitutional administration. he got his undergraduate and masters degree fromaster's degrn and his law degree from columbia. like john, david has held several significant positions in the government including deputy director of the office of policy development at the justice department, legal adviser in the office of the vice president, association at the department of energy, associate white house counsel, and as the associate executive director and general counsel of the presidents council on competitiveness. david has also published hundreds of articles, op-ed, book chapters on a variety of issues and publications across the country, and he's also a commentator. with that, i will rest my voice
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for a moment and john, turn it over to you. >> john, thank you very much. i am sorry to see that you are not doing well. i trust that it's because you've been doing lots of interviews about my new book. your voice sounds like minefields. i want to thank the heritage foundation for cosponsoring this event, and i'm thrilled to be here with john. john and i have known each other for almost 20 years now. we worked in the justice department together. it's great to be here with david rivkin, who i am and there is to say i've not even longer. we go back 30 years and sometimes have the pleasure of debating and sometimes beyond pleasure [inaudible] >> it is really good to talk about this i think as function sponsored by the heritage foundation and federalist society because this is all
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their fault. if you go back to the 2016 campaign, many conservatives have thoughts, including myself, about president trump and what he might do to the constitution. and a key moment in the primary -- when it was only trump and ted cruz left -- trump did a remarkable thing for the first time ever. as a candidate, he came out with a short list and said he would only pick a supreme court justice from the list of ten and later 20. and he put out broadly that he didn't know any of the people on the list. only people, john malcolm and the federalist society. so, it is all their fault. [laughter] they didn't put me on, i'm still ticked off about that, but they could rivkin on the list, so we
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have talking to do. [laughter] let me start by saying, that scene, however, about trump and the constitution has been won, and it's not just liberals that have been attacked. take president trump's recent tweet about whether the elections should be postponed because of widescale fraud with mail-in ballots. henry olson, a founder that cited the "washington post," quote, the single most anti-democratic statement any sitting president has ever made, end of quote. stephen, the conservative northwestern law professor, and also one of the cofounders of the federalist society quoted in an op-ed, the latest tweet is an impeachment ground. this is very similar. at least at frisson dissipates
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the consistent theme that has been raised for about the trump presidency, also most notable by the liberal critics. he was impeached for violating the constitution. at the time, speaker pelosi, for example said, quote, if we allow one, any president no matter who, she or he to go down this path, we are saying goodbye to the republic and hello to a president king. mind you but th the same time, s today have a somewhat contradictory criticism of president trump. at the same time, people also i would say attacking president trump for not seeking the powers in response to the pandemic. people were demanding that he imposed a nationwide mask mandate or shut down and reopened all the businesses in the country. and so on. but it really is trump -- the main means that he spent
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violating the constitution, he is a proverbial ball in the china shop, and although i started with the same doubts come at the end of the four years of the first term in s. john quoted me, i was wrong. i think trump has actually been a more stout defender of the constitution as president that has critics. you wouldn't have thought so at first because he's a populist. trump appeals to a broad, popular basis. and the populist historically, if you look at andrew jackson or fdr, populist usually are people who are against it and want to overcome the constitution, and often are the sparks for a large-scale change for the constitution because they are so interested in achieving their mandates. trump is a different kind of creature i think. trump is a populist politically,
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but good governance and constitutional conservative. it's not trump, for example, that his critics that have discussed seriously getting rid of the electoral college. it was a large number of democratic presidential nominees who talked about increasing the size of the supreme court from nine to 15. there are trump critics today, at least one columnist in "the new york times" op-ed page who called the use of federal law enforcement in response to the recent disorders as an occupying trump army and declared it a time to call fascism yet. his critics want to have more permanent independent counsels. it concerns the political disputes into the
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law-enforcement matters who supported the rise of a permanent law enforcement and national security bureaucracy who believe they have more rights to say who should and should not be president than the voters of the country. his critics are calling for nationalization of the energy transportation sectors in order to achieve the goals of the pre- new deal. in contrast, i would say trump's achievement is not just from stopping all those things from happening, but also from the battles he's had to fight during his presidency. we get wrapped up i think in the day-to-day political trench warfare, the investigation, the impeachment. but if you take a step back and look at what was the broad constitutional media, i think i would argue it's an effort to
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restore the understanding of the constitution instead of the 20th century progressive vision of the constitution and i will explain what i mean by that. in the collusion investigation the market for we learn about it the more it looks like the investigation was baseless and essentially, i don't question if it was good motives or bad, but the headquarters staff at the fbi thought he posed a threat to national security. they thought as an independent theocracy they thought there should be an independent theocracy. they have the right. the constitution makes the president, the chief law enforcement officer of the
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country everybody in executive branch is an assistant that works for the president, the president trump wanted to use the favorite line you're fired. i would say the same thing is true of the impeachment fiasco. those that are in the foreign service side believe they have the right to decide how it could be conducted. lastly i would say the impeachment also reflected the ability to protect the right of any president to be independent of congress. people during the impeachment often complained about the fact
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that tenet had to vote by two thirds to remove and how somehow that was unfair or unjust but that was actually by the framers designed to make sure the congress couldn't the president under its thumb. they are specifically worried about the idea that subject to removal because they knew that the power to remove was the cover to direct. so of all these cases i would point out president trump pursuing no doubt his own personal political interest of self-preservation, survival, trying to be reelected. but it was set in the separation of power ambition must be made to counteract and they expected people to pursue their political thoughts and cursed.
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just as they expect in the congress and the judiciary. their idea of constant fighting you would have a broad constitutional good. that may never even intended to achieve or are aware of, which is the limitations of the government and maintenance of the individual freedom. where does trump said in the broad constitutional history? he has been disrupted into political marks of the office, not the constitutional marks. the disruption may or may not be appropriate lincoln, fdr, where we've had such an interested over powerful, yet at the same time obsolete bureaucracy and government to lead a revolution.
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this might be the possibility if there won't be a second term, to the new questions of the 21st century cannot keep defending a government that was designed in the new deal to handle the problems of the 20th century. thank you for the opportunity to talk about some of the things i look forward to hearing david's comments and john's questions. thank you very much. >> is a pleasure to be with you into read and comment on the excellent book. his comments pretty much covered all of the key issues, but they would spend a few minutes perhaps giving another emphasis. sometimes, unusual rhetoric,
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behavior was the case but obviously the political norms. pursuing the political interest because the way in which the framers designed to operate both his indeed own self-interest which of course is something that the critics have been emphasizing as somehow unforgivable sin. i remember the discussion during the impeachment process about how i think eventually became pretty clear that it doesn't matter. he had a constitutional right
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towards ukraine in a particular fashion begets delivery of a military aide or seeking to obtain enforcement information. that was all fine. and somehow the benefit which of course is a silly argument, and i think the framers it can't be an impeachable offense. if the elected officials were expected to act in ways that were in the self-interest. for the national survival and i hope that he would do the same but the political interests are constant because where you sit is where you stand.
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on the congressional side that impulse has dissipated so we see instances where members of congress both have the power and surrender power to. i would say not only has he not done anything wrong when it comes to exercising the office at echoing the point john made a
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key doesn't write his own briefs or deliver his own arguments, but what is good and again, virtuous, the framers didn't expect, they expect the person to exercise the constitution and listen to his advisors and i would say i've probably read every major case and it's not only that i agree with the positions they take. i'm quite honest i cannot think about an assertion of executive power that would be immigration, despite my criticism, the use of presidential emergency powers delegated or any other matter. i cannot think about anything else that i would find
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particularly objectionable in the administration. the i think the winds are blowing one is the notion there's nothing trump can do this right so it's a sort of never ending but it's dangerous in the short run. if not dangerous in the long run because it doesn't represent the philosophies to elevate into some kind of new body of doctrine. but what i think is more dangerous as john yoo mentioned is the more fundamental constitutional norms of equal representation in the electoral
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college of course. the federalism, which again the notion that somehow to exercise the powers i think to the extent the doctrine which i find quite objectionable is more on the left. i don't see any tendency on the right. let me stop here. hopefully there are some questions. i would love to hear what about this piece of legislation so we can get to some more granular examples. >> thank you both for your comment. john mentioned some of the threat to that of the electoral college acting in the supreme court.
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referring to the civil servants and we could have others for the ability to control whether to continue to pursue a prosecution and in the michael fuentes there are calls that he gave to roger stone. you met with the president last week. you talked about questioning the president's motivations on the case and we will also see that in the litigation including some cases which the supreme court or the majority of them, so you have the citizenship question and what are the motivations
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behind the program and we talked extensively about the fact they come in and implement something and the other president has to make sure so all of this questioning of motivation challenging the party may be a ticket for this train ride only because of the anchor but it did have ramifications that will extend well beyond the presidency. >> it is a very difficult wide-ranging question. let me start by saying one feature seems to run like this even though subject to changes.
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the opposition goes so far overboard in its claims and poses extreme constitutional arguments and as david was saying to make reasonable arguments based on the constitutional history, presidential practice and i'm afraid to say you do see they've shifted to some of these remarkable. i did go and meet with president trump last week and say here is this copy. but then i stuck around. one thing i will say is unlike others even george w. bush wave
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after wave questioning his legitimacy i would have expected the impression some people in the media think he did. i came away thinking he was energetic. he's a new yorker to his unfortunate credit. i didn't see this kind of negative pessimistic outlook that he is relishing in the return to the campaign. i would be exhausted after being president for one week in these last years. the second point is i think they
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do represent something new and they will either disable the jobs are it will be upon ticket for one train ride only. take the example you just gave of the presidential motivation was first raised as the means to attack a presidential decision at the travel ban litigation in 2017. never before have they fough tht they would go beyond an executive order then go behind it to search around for the animus in their decisions even though when trump versus hawaii they did uphold the travel ban it did suggest this mental state of the president. then beth continued interest in
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this case you just mentioned and you might even argue what was going on in this case but i found completely incomprehensible as a matter of separation of power to say that a president could render the enforcement of the law to basically zero work around 6 million or so cases without any congressional authority to. what he's doing is unconstitutional. so the supreme court had to come in and say they are in violation of the constitution as you understand it and that is incredible and the judicial supremacy of interpretation over
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the other branches. the other thing about this dynamic is people don't like it when president trump uses powers others have used in the past. so if he has this power, does it work to not enforce the law and if you don't enforce one thing here and there, you have a program all of a sudden i can't he do the exact same thing. his critics were so out to get him that they want to create this law to no other president before or after and that isn't what we think of.
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>> i will us would use the sames regarding the regional travel ban. i completely agree it is how disturbed the supreme court left the mode. there is a sliver of jurisprudence so in the establishment.
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it is an exercise in absurdity that it was designed to prevent them from coming here so you can disable it you don't particularly like the people you're sanctioning so it is and enormous enforcement.
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that is unfortunate to me if disruptive. people criticize trump all the time for example for expressing the positions but let's agree that it's public record that the
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notion if they say something on complimentary about a judge or justice that's what the last ten years is force it to be it is tremendously dangerous. >> a follow-up on one point. >> to talk about my treatment of judges, it is the subject suffis me again as a double standard because which president was it that actually threaten the independence of the courts, it was president obama and the democratic supporters. which senators were threatening this last term.
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i don't think that he tried to pressure the supreme court in the same way that the obama administration had. once a decision is out they are free like any other citizen to try to influence the court while it is considering the case he promised to try to orient the production in the lower courts, to back but in a traditional way which is you appoint new people along with your philosophy the
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critics and opponents talked about expanding the courts have talked about the number of justices. trump could have done that in the first two years of the presidency but they chose not to come of age they chose to use the traditional method is more respectful of the traditional. >> you could have had the beef that was filed by six senators in the second amendment case that implies a lot more urgency.
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[inaudible] when they do things right and in places like haiti and syria by saying that it requires a declaration of the war bu betwen the democratic presidents do the same thing, similarly on the left they criticized kenneth starr. i want to quote a "new york times" article entitled white house is all out and paying off with his help and in that article that said one official was born on these hostilities but when president trump
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criticized him on the other hand i'm wondering what you think about the double standard going on here and your comment on th that. >> it is a great reminder, your quote about "the new york times" and the study reminds you the difference not only is there a double standard being applied here where yes democrats used to be the independent counsel until it was used on president clinton and now there are several proposals during the mueller investigation to make him a permanent independent counsel. take a step back. what was really going on, what is fighting for the political survival, there's nothing wrong with that but what he was also doing is reclaiming the right of the president to control law enforcement in the country and the progressives, the bigger
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philosophical progressives who like the idea of having a large powerful government independent of political control as an idea that was introduced into the politics by woodrow wilson. the framers didn't expect after the track record of constitutional law professors i would say they are unconstitutional scholars. wilson introduced this idea but to beat technocratic government of people insulate insulated ine government surrendered every public public policy decision into the scientific and technical decisions. and you can see that in the report they never went to the lengths.
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if the people did to kenneth starr. all this fighting but i have a lot of respect for robert mueller and other times at the button finished his investigations. it will clear him and then we will put the russian collusion to bed and that is what happened. but the bigger picture is the restoration of political control over the bureaucracy but he was fighting for even if he might not have realized it. it's not just the use of force and contradictory opinions when he was using drones in afghanistan and force without
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congressional consent, going to syria without congressional consent even though he would never. what is the trump doctrine and sovereignty not just over immigration but nationstates pursuing its regular interest of borders and ms world that means the united states is withdrawing, not actively engaging and it looks like what do you know, the commander in chief actually has a lot of power to do that in the end. if, for example, pulling the troops out of syria in afghanistan he is terminated the treaties it shows this criticism was wrong all the time because
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if you thought congress has to give its say-so whenever the president makes an international agreement whether the president goes to war why can't they force trump to stay in all those places abroad or all of those treaties. she has the power to undo the deals, bargains and deployments and shows the president really does have the primary power in foreign affairs despite what they've said one republican presidents were in office. >> sorry to -- john and i would add a couple of points. the whole notion on professionalism and political control is not only wrong but unconstitutional and underpins the way the separation of powers is supposed to work.
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it's political accountability, the overriding check of the president and it doesn't work in the case of article three so by diluting the accountability from removal of good diplomacy is somehow delegated irrevocably to the mid-level officials. if there were true there would be no accountability. the president can always wash his hands of that cost of these profoundly anticonstitutional
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into the policy but necessarily produces the results because in some instances you go in where political opponents don't want to go in. you don't have the notion that the u.s. should be involved everywhere or nowhere. it's driven by how you see the national interest. you may disagree with that but under the trump doctrine it's a begin the framers would not have had a problem. >> i want to remind people to send in questions. what thelet me ask a couple thae received. one question about the executive orders and it seems to be
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growing to their importance and whether you see this as a symptom of the breakdown. >> having dealt with this issue before, executive orders to be honest john may look at the administration bush 43 was criticized quite robustly but not as much as this president in the classic elements. there was a lot of emphasis as we both no on the number i personally think this is fake news to use the term. the question is are you trying
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to do something that didn't have constitutional discretion. i'm not aware of any that are problematic in this administration. numbers wise, i'm not sure that the notion is kind of silly and reminds me of another debate whether he can issue a signing statement. >> i agree the number of executive orders was used as a criticism you can combine several if you don't have too many members and david i is what
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is important is the authority for the executive order. >> i had my doubts initially because of the first traveled and executive order. you might remember it had banned travel from muslim nations, several but after criticism, the trump administration quickly amended the travel ban. that's the response of people who care about the constitution. some past presidents don't try to modulate their positions or try to come into coherence with existing constitutional law and try to go through a different efficiency like andrew jackson or fdr but their positions as pointed out hasn't done that. there's a lot of things people are upset about this use of executive orders they are not
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the kind we should be worried about. what he's doing is exercising delegated power from congress. we are in an era as we know the president now can buy congress, by congress as to location, pause travel for many countries on national security grounds. nobody was claiming this was unconstitutional when it came time to shut down between china and arab. people don't like it. it's not trump's delegated cover that is the problem. whether congress should have given that power to the executives in the first place. it goes back to john's point are they imposing a double standard david was one of the leaders of the constitutional fight, the challenge to obamacare but huge
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delegations of authority. i don't remember our liberal friends complaining about that. but when trump tries to make the case, this is another example where he isn't a populist but a constitutional conservative using his executive orders to manage the branch to try to make it smaller and more modest. there is a huge key regulatory push going on. the heritage foundation has been an advisor to the white house about this and how many presidents do you know go around and say i want to stop regulating things. if you complete there is a role that for every one regulation they should have to repeal three. that is incredible. it's almost an abdication of power by the white house. i actually think regardless of the numbers we see him trying to
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reduce the overall effect of the power when it comes to domestic affairs. >> with youtubwhat you do when e comes january 3 to transmit the apportionment he's going to exclude illegal aliens not from the census baseline that there will be efforts to. for something obamor something d become for many months but it's interesting so i don't know if you agree that it's probably the
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most orders he's ever issued. i think it was like the 21st or 22nd of july. >> another order the travel ban and building the wall the way to the states. >> i've got some great audience questions. one is about going on in poland and whether the government can sue the local officials in portland. let me take that it can expand. let's talk about federalism in the trump administration. lots of push back in the states about travel bans and sanctuary cities and mail-in balloting.
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the administration challenging the restrictions as they pertain to religious institutions and now obviously what's going on with the protests in chicago and minneapolis and portland what does this say about the use of his authority in the long run healthy development? >> i think actually the trump administration has been respectful of federalism, sometimes in ways that have reduced its ability to get political goals and i think that is a good test of how committed any president is to the constitution. one was the pandemic response and there i think clearly president of trump would like to reopen the economy a lot faster than the state governors are.
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in a weird way the fate of the economy is tied to the decisions of a lot of blue state governors are happy, happy might be the wrong word but to clamp down much longer than they should. i could see him trying to override them trump hasn't. he said the government play a normal constitutional role which is the public health and safety is a primary job of state governments and federal government supports with technical expertise and resources are ultimately could step in if the states fail. that's pretty much what he's done to great criticism. they would like him to be a
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pandemic dictator and that is the same thing with what you are seeing in the civil disorder. portland, seattle, chicago, "the wall street journal" published a report they are up b there up bs in half of the largest cities still does the job of state and local police and the federal government is there to handle the aspects of crime and disorder, but only if the states and cities failed or request help. other than protecting federal property, federal buildings comfortable personnel and enforcing criminal laws like drugs or get if they fail to protect civil rights, it is the constitutional rights of people in these neighborhoods the federal government has a role to
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see the accusation he's somehow sending and occupy army these are not strange posts they are columnists making these accusations to get this dynamic way or trump is acting within the normal presidential practice going back to george washington. andrew jackson in the notification abraham lincoln protecting fort sumter and you have these critics that make outrageous claims relying on traditional understandings and practices. >> let me emphasize one point as a stress test but of course both of you know has been appointed to examine how banks would deal with these times. the kind of crisis we are facing
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is a kind of test for our constitutional system and i would say it applies to the blue states and some have done the same. to say they've become a little bit drunk on power issuing orders that have nothing to do with the constitutional authority and penalizing churches and others. one of my favorite examples is the governor of michigan at one point of time had a band on boating but not sailing which whatever way you look at if we are talking about different carbon implications of coronavirus response and the
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same thing now with regards to law and order. whatever you say about this administration, they haven't done anything resembling this. if we had a different president who would be tempted to say all right, i'm going to have a federal assertion of federal power to wear debate could make people wear masks. i think we would agree it's a way to anchor a mandate to wear masks and any power the congress has following litigating the challenge but i wonder how many would say ultimately it would look good or be challenged by somebody. this administration has emerged
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with the rising tide of unrest. that is not true of the state and municipal level. >> your book does an excellent job of laying out the constitutional and historical basis for the executive power. ..
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>> >> so i would not to turn into e 2 branch officials robots, but i certainly do not enjoy watching the mass disobedience. i guess the president dating back to 2016.
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it's too much. >> we are at the end of the hour, i'm not arguing against the foreign policy bureaucracy as david is suggesting. you need to have to enforce the laws. it's who gets to control it. and i think the distortion of the constitution was the idea and obama y f.d.r. was that bureaucracy should be independent of political control. that's the difference between the idea of an independent counsel and what president trump was trying to do. the other thing i would mention task ing is i think the of the presidency in 2020 and 2024 may well be none of these questions. trump was defending his
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constitution, he was on the defensive. the constitution was a huge shield because of these unrelenting attacks. the forward-looking agenda is how the government going to have to change to face the threats we are facing in the 21st century. the pandemic is a good example. terrorism is a good example. the kinds of fighting and challenging us internationally that don't look like nation- state wars and how does the government manage in this new kind of economy? we have a government that was designed for the industrial revolution and came to its fruition during periods when you were part of the organization. that seems so obsolete and could
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tell by the hearings last week with the c.e.o.'s of the top tech companies. they don't have a clue how to regulate google, facebook, twitter and microsoft. and i think that is going to be a task whoever wins the 2020 election and whether it is biden or trump, you want to have the kind of powers in the executive and what i try to defend in this book. >> i'm sorry but thank for calling in. i apologize for my voice haven't but thank you very much for joining us and buy john's book. it's really terrific. captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit >> watch book tv. saturday evenings at 8:00 p.m. watch several hours of your favorite authors. saturday --
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>> sunday night, manhattan institute president examines the question on whether another exodus is ahead for u.s. cities due to the pandemic. >> my fear is you are going to see a period from 1980 to 2020 when you saw this tremendous prosperity in a number of major urban centers and that 2020 beyond, if we don't approach this in a thoughtful careful way could represent a reversal in which that economic activity,
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that talent that flooded into our cities starts to flood out of our cities. .> sunday night at 8:00 eastern >> week nights this month, we are featuring american history programs as a preview of what is available every weekend. on monday night, a look at the uus indianapolis. two japanese torpedos sunk it in shark-infested waters. they were not rescued for several days. on the 75th anniversary congress awarded the consal gold medal. watch monday night beginning at 8:00 eastern and enjoy american history tv this week. on tuesday, the full u.s. court of appeals for the d.c. circuit
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will hear argument must dismiss the perjury case against michael flynn. am. coverage at 9:30 >> bernie sanders hosts a virtual forum with rachida tlaib and jamal brown to discuss their movement for the progressive movement. from earlier this week, this is about an hour.


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