tv Book Discussion on Lawless CSPAN January 17, 2016 4:45pm-6:16pm EST
example. we know that women entrepreneurs. women who own and run businesses, are absolutely critical accelerants to grow economies. sme, small and medium sized businesses, are what the world bank calls the missing middle. we need them to drive economic growth. if women entrepreneurs in the united states were a country, what they are providing to the economy would be almost comparable to japan -- to germany. that is significant, significant input into the economy. and i think there's so much role in that kind of space that would be milestones in terms of that kind of growth but women face obstacles. access to credit is a huge, huge obstacle. access to markets. the kind of training and
mentoring they need. so we devote time and space in the book to really look at what are some of the ways that those obstacles are now being dealt with, whether by government or by others in the private sector, to -- major companies today, coca-cola, walmart, major, major companies, have made huge investments in using their supply chains, for example, to buy for women-owned businesses or creating initiatives to create far more female entrepreneurs. they're not doing it for philanthropic reasons. >> they're doing it for the bottom line. >> it's a business investment but they now get that. but that business investment has huge spillovers in terms of shared value, as dr. porter called it. that shared value is lifting um women around the globe who are
touched by those programs. so, those are some of the kinds of things, when you look at progress into the future, those are some of the kind of things we need to measure and we need to understand what those outcomes have produced and how long are how long it's taking to produce them. >> i think a milestone is having a woman president. i would start with that. i do think we're ravedy for it. we need -- we're ready for and it we need it. whether it's hillary -- i'm alwaysly a big believer in hillary because i have seen north in front of the spotlight -- what she does and cares about. so i think we need a womanry. also think that there's two other things for me would be big milestones. i really believe that the whole world is going to be designed through technology and if with dough hasn't have women in technology in those fields, we're not going to be able to have input into the way the future is designed. not just about computer science. it's about the design of our future.
and so without women having -- very interesting when we were out in silicon valley, we had a small -- we addressed a whole bunch of people in different companies and there was one company, very profitable, very important company, that basically had a little lunch for us, and one of folks at the lunch was a gentleman who ran a very important division and he said i can't des).ka@ñ productss if we were women, as if we were diverse. i need women and diverse candidates in the design process or we'll lose and not be able to stay competitive. it's they switching of the mindset, about seeing this as a competitiveness issue. so amilestone would be more women in technology, and we have to -- there's a great toy to counter the barbie, math is hard, toy, called goldy blocks put out by a wrong woman entrepreneur, and for those who have not seen fast forward, 2015 goldy blocks video that was released last week, i commend
it. it's in the name of our black, fast forward, 2015 goldy blocks. you'll love it. shows all these young women and what they can be in the future. i think there is momentum and i think the other thing that is going to be a milestone is the next generation. these guys governor egg to do things we haven't not dreamed of. so i think the next generation keep mets hopeful. we're kind of stuck in our open way of thinking and have been thinking about things the same way for many, many years, but these guys are being challenged to invent the future. 40% of the work force will be free lance or entrepreneurs by 2020. people don't want regular jobs anymore. they don't want them. so, we can sort of redesign things and these guys can do it for us. i think my money is on them because i think they're thinking thing have what even thought of. there's a three-year-old kid i was baby-sitting for, she is literally studying the alphabet. by two she could read. so, it's what they -- the rate
of acceleration is so fast. we don't have any idea what coming but we have to infuse the right principles. >> it's interesting so many of the people we talk to, ceos in particular, mention the millenials, and how the millenials are coming in in terms of talking about whether or not they want to come to a company and take a job, a certain job, and they're asking questions that typically were never asked. what is the purpose of your company in addition to making the widgets you make? how else do you see yourself? how do you see diversity and inclusion, not just diversity, which obviously has tremendous impacts and outcomes, but how included the -- that diverse population works in a company and isn't just siloed by virtue of who they are.
>> or marginalized. >> fascinating sufficient. one ceo said we never confronted these kinds of questions and we know they're the talent pool of the future and if we don't, we will not be able to innovate and be the kind of driving force we want to be. so there is change. >> i think the other thing you mentioned about that is that they want purpose in their work, and it's no longer where people want to do good -- do well during the week and do good on the weekend. people want to have purpose in their work and we can again change the way we work and i think -- that's an important part of the book, which is this purpose, putting purpose at the center of what you're doing. it does change the equation and millenials are demanding that. they don't want to go work unless there's a purpose in their work. they're willing to give up the money for purpose and that a different equation than we have seen before. so i think you mentioned dr. porter of harvard, who talked about shared value him
started the concept of shareholder value, but now fast forward to today, talking about shared value. companies can't come beat unless they're -- compete unless they're making a social contribution. so the paradigm is shifting and we're right the cusp. >> exciting. next question. sorry. this side. >> hi, what is your advice on a woman working in a male dominant field? >> that's a good one,. >> you advice on a woman womaning in a male dominated field. >> well, obviously, we want her to do that, and who knows that field won't -- will be more diversified than it ills by virtue of her coming into it and succeeding at it. so, it shouldn't be a putoff. we talk in the book about issues like failure, fear, lack of confidence, and i think sometimes there are all of the above when it comes to a situation like you described.
>> be persistent. >> we have a great partner book about fear of failure and that folks are in technology are illinois coming couraged to fail fast. if you can fail fast you can change course, and if you're afraid of failing you don't typically move ahead as quickly. and so that woman she mentioned, who started the organization, girls who code, encourages failure parties because we only seem to celebrate success but we really need to be able to fail to succeed you have to fail to succeed and that idea of not being afraid to fail and not being afraid of the word no. if you're afraid to hear no you won't ask for things. so that an important question and hopefully by the time you're ravedy to go into the work force there's more diversity in the work force and you won't face a completely male environment. however, if you, should you have to put yourself out there and you did just that by asking the question. >> so go for it. >> definitely. it's sad but it's 7:30, and we
kind of have to bring this to a close. we'll have copies of fast forward for you right outside for purchase, and they're happy to autograph your books. >> we can answer your questions there. [applause] >> thank you all. [music] [music] here's a look at books being published this week. in a passion for leadership, robert gates recalls his ten
years as head of the cia, texas a&m and the department of defense. former senators trent lott and tom daschle warn against the current partisanship in government and lay out recommendations for how to move forward in, crisis point. christian political activist, jim wallace, offers a critique of race relations in america and his fight against racism, which he calls america's original sin. american governor, downmist matt katz biography of chris christie. also being released, former democratic campaign manager maribeth rogers provides a blueprint for turning texas blue. in a rise and fall of violent crane in america, discusses why violent crime rose rapidly in the 1960s and what caused it to fall in recent decades.
also a look at the 1960s and how the conservatism or barry goldwater led to at the rise of the tea party in, why the right went wrong. in gangster war lords, a report on the crime wars taking place in central and south america as well as the caribbean. and staff writer for the new yorker, jane mayer, reports on the political and economic underpinnings of the conservative movement with a focus on the libertarian viewses of charles and david koch. locators fierce titles in back stores this week and watch for the authors on booktv. [inaudible conversations] [inaudible conversations]
>> good afternoon, welcome to the cato institute. let me also welcome our c-span audience. i'm roger pilan the director or cato center for constitutional studies and your host for today's forum, marking this publication of a new book by professor david bernstein, lawless, the obama administration's unprecedented assault on the constitution and the rule of law. this book and this forum could not be more timely, just yesterday, as we all know, we witnessed the president telling the nation that he was directing officials in his administration to expand the regulation of the second amendment rights of americans in several ways, including apparently by expanding the definition of what
it means to be in the business of selling firearms. and he did it as he so often has in the past, not by going to congress but simply by his own authority or alleged authority. if congress won't act, i will, he tells us, seemingly oblivious, if not indifferent, to the constitutional restraints on his power. as many have noted these repeated usir pacings have serve to divert attention from a long list of domestic and foreign policy disasters. but they've also served fortunately to direct our attention to the constitution and to one of it bedrock principles, she separation of powers. that will be our focus today as we canvas the many constitutionalists of the past seven years. to do that, prefer bern -- more bernstein will speak for 30
minutes discussing the issues the book covers and then hear opposing commentaries on the book and then open the floor up to you folks for questions. i'll introduce each of our speakers before he speaks. david bernstein is a professor at george mason university school of law in arlington, virginia, where he has been teaching since 1995. he has written over 60 frequently cited scholarly articles, book chapters and studies, he is the author of rehabilitating locker in, defending individual rights against progressive reform which has come into all of you, especially those who still are of the persuasion that lokner was wrongly decided. he is also the author of "you can't say that: the growing threat to civil liberties from antidiscrimination a laws which we here at cato published the 2003. the author of, only one place of
redress, african-americans, labor regulations and the court, reconstruction to the new deal, which the duke university press published in 2001. the co-author of the new -- expert evidence which is a case law, and also a phantom risk, scientific inference and the law which the m.i.t. press published. he was senior editor of the yale law journal. please welcome, david bernstein. >> thank you, roger. for the kind introduction. thanks to ilya, who is wife had a baby two days ago. she is still in the hospital and i'm sure he has given up major points in this marriage to come here today. >> we have an arrangement. she is handling the baby's
input. i'm handling the baby's output. >> hopefully went be too much output while we're here in that case. i'll start with overview of the problem, and then briefly run through some of the highlights or, if you will, low lights of the obama administration lawlessness. then i'll delve into few examples and finally because nothing happens politically in an intellectual vacuum, and -- among the lawyers of the obama administration which includes president obama himself. so let first talk about the problem. the trend of anker and-expand executive goes back to the presidency of head to door roosevelt. as presidential power pass grown, and even as the political
this is really may be the most unprecedented of things. that the obama administration has accomplished, the president himself and his advisor seemed to see there's nothing to be ashamed of. we don't go around congress but it is a way of governing, something to brag about. we can't wait says the president, we can't, we can't wait so i will just take my pen out sign it. obama believes there is some inherent virtue in the president ignoring the constitution's separation of power and the laws that are on the statue books in favor of presidential decree. as if promoting at the expense, the proper way to governor it is
a matter of principle. when asked for explanation his supporters say congress refuses to operate with the president's agenda in congress is dysfunctional, it somehow gives the president extra power beyond those provided by the constitution. the constitution doesn't contain so the power goes to the president, i blood several time. i'm not going to summarize the whole book for you let me look at some of the examples. going to war in libya, in blatant violation of the president's own promise, own statements before he was elected about when the president can go to war without congressional approval. even more egregiously in blatant violation of the war powers act.
appointing so-called czars to high-level government positions to evade constitution mandated confirmation hearings and also congressional oversight. modifying, delaying, and ignoring provisions of the law he signed with the affordable care act in violation of the law itself. attacking and slandering private individuals for engage in a constitutionally protected speech. issuing draconian regulations for sexual assault on campus. not through formal regulation but through an informal dear colleague letter that is not subject any legal proceedings or review. ignoring 100 years of advice from the legal counsel and arguing d.c. delegate could be granted voting rights in congress. running general motors from the white house without any hint of statutory authorization to do so, then rewriting the bankruptcy laws to favor unsecured creditors, notably the
auto workers union. imposing common core standards on the states by administrated feedback and much more. so there's a laundry list, there's even more the book. because there's a laundry list let me talk about three of them in more detail. the first one, one that most have never heard of, i just mentioned it other than the fact i just mentioned it. it's important because it is so telling about the obama administration attitude toward constitution of the role of the law. april 2015, less than three months after inauguration day, the industry shouldn't decide to push were allowed to grant d.c. delegate voting rights in the house of representatives. the constitution limits of voting rights in congress to representatives of the states. d.c. is a specially designated district, it is not a state. is it fair, is it just? not my it just?
not my concern, that's what the constitution says. so attorneys and obama's office of legal counsel told him you cannot support this law, we have 100 years of legal counsel president saying that d.c. delegates campout. everyone agrees, i should point out two things about the legal counsel. one is that they're mostly political appointees by the president. part of the executive branch and mostly the president's own appointed. so they really bend over backwards to apply legal authority the way the president wants to. therefore, this this is a second key point, there was a very few checks on presidential authority and presence typically understand what they said is that they're trying to find a way they say no, it's basically
it instead of referring the attorney general went to the office of the solicitor general and asked them to review the issue. they did not ask the office because either he would say no but they asked to defend the government in court and they will defend any law that they can make a argument of in favor of this legality. so holder as the llc is it so observed that you cannot defend it in court? and he said knows no is not that absurd. then they did it. so let's review, what's at stake. really nothing in practice. how often does the house of representatives have tie votes? never basically. if there ever was an occasion for a tie vote broken by d.c. delegate it would be immediately challenged in court and certainly any judge would hear
the case would throw this out because d.c. delegate cannot be a voting member of the house under the constitution. this is a purely political symbolic movement of people who have been pushing for more power. nevertheless, the attorney general holder and by implication president obama himself would under man -- one of the very few checks on presidential authority at the beginning of the administration for basically no reason. to symbolism and politics. this reflected the the attitude that is worth coming later. there is nothing about republicans in congress that has to do with the separatist dysfunctional in congress, this was at a time when democrats controlled the house and senate by a large majority. another example of i want to spend more time war powers in
libya. the war powers act was passed in passed in 1975, it five, it is mentoring and executive authority after nixon bombed cambodia secretly without congressional authorization, killing several hundred thousand people. the law says that when hostilities are involved with foreign countries that the president has to inform congress and it has 90 days essentially to withdraw soldiers of congress doesn't give it explicit approval. now, some people think the war powers act is entirely unconstitutional and there's an argument to be made for that. the argument the obama administration made was to completely accept the war powers act was legally valid. instead, president obama's claim that bombing libya for months at a time, killing people and the overthrow of colonel qaddafi was
not after actually hostility and therefore the act was not implicated. this is ridiculous. i'm a law professor, were were trying to argue both sides. i'm not the only one who thought so. people criticize the administration from the left and right. more importantly obama zone lawyer said you can't do this. you have to go to congress. with the defense department these are folks that are representing defense interest, they said you can't do this. so president obama went around looking for some lawyer to say that you can do this. he found howard company who is former law school. howard was known in the academic world -- he even argued that president reagan bombed libya
for all 12 minutes in 1986 and that implicated the war powers act. somehow he came to the conclusion that bombing libya for months at a time time 15 years later did not constitute hostilities within the meaning of the act. therefore the president could go ahead and do it. the argument supposedly was that we are only bombing them and therefore american forces are not at risk unless they get hit by a straight aircraft missile. one problem with that is that the war powers act is largely meant to prevent cambodia from ever happening. cambodia was solely an air campaign. just looking at looking at the history of the law doesn't make sense. finally as far as examples, let
me give you an example of the dear colleague letter that forced every institution of -- this was the compass by dear colleague letter, got a letter from the department of education office of civil rights. i'll call ocr for short. there is no statutory language, no regulation, no case law that supported the ocr rule. they just announced it was just here the rules we want you to follow. even worse, the rules themselves completely stripped students accused of sexual assault of anything resembling due process protection. everyone who follows this nose that the standards of proof have to be now preponderance of the evidence, more than 50% more than clear and convincing which is what most schools use.
much more important, the guidance that was given severely discouraging any cross-examination of the plaintiff which is stripping away people's right to defend themselves if there is a he said, she said situation. more important, the role say that you are not allowed to ask the complaining individual about his or her past sexual history regardless of how relevant it might be. so just to take an example, let's save radio circulates from the college campus of a man and a woman engaging as what many would see a degrading sexual act for the woman. the woman gets in person humiliating and said it wasn't voluntary as a sexual assault and files a complaint with the university. she tells investigators that it was not voluntary and she would never degrade in a degrading sexual act of this nature. the defendant, the person complained about, finds five other men on campus willing to
swear that this woman exchange the same sexual act with them and some of them have it on videotape. there's not a single court in the united states, no, no matter how strict a rape shield rule is that would prohibit evidence from being admitted. that is the only way the person can defense himself and it's very persuasive. ocr says you cannot bring it in. not through any formal rulemaking process but solely from the letter. the ocr, for 40 years maintained this was a legal standard at all universities had to obey it until in october, two separate occasions education officials testified before congress and two senators asked where are you getting the legal authority to enforce against the university? it's just a letter. they acknowledge there's no legal authority for this. they just said it was general guidance would like you to do.
so then in the footnotes it said it best and give you any new largest guidance. so schools try to enforce it even though there is no legal authority for it. these are just some examples. many of us with obama was running for president, whether we like to's policy or like most people at kato dislike his policies without he would enforce and it wasn't surprising that obama has been so unconcerned with these legal niceties. the question question is how do we explain it. i spent time thinking about this. i spent time researching it. i think a part of the problem is obama and many of his top lawyers come from a tradition that is unlike the past, very
skeptical of traditional notions of the rule of law. consider on the constitutional fidelity side that liberals and progressive have taken to arguing that the constitution has no objective meaning, that series of interpretations focusing on the original objective meeting our nonsense and the constitution living document must evolve with the times. meanwhile on the rule law front, there is a long-standing unease with the concept of the rule law as it traditionally is understood. the rule of law traditionally understood is maintained by following the law in ways which promote consistency and stability. everyone knows in advance what the law is going to be. ensuring equal to the parties, it requires judges and law-enforcement officers to enforce the law without abusing
their authorities. the rule of law is maintained by respecting the separation of powers and also by the idea that the president must faithfully execute the lot whether he agrees with them or not and whether it is politically convenient or not. the rule of law was a key element of liberal theories of justice, but no no more. consider for example the mission statement of the lee leading liberal organization. their message statement states, promotes the vitality of the u.s. constitution and the fundamental values that expresses, individual rights and liberties, genital equalities, access to justice, democracy to justice, democracy and the rule of law. so the rule of law is given no more weight than abstract, unattainable goals like gender equality. if you're balancing them, --
this did not happen by accident but as the result of long-standing ideological trends to the left. the importance and coherence of the concept of the rule of law came under a series of attack in the legal academy coming from the left in the mid- 70s. first came the cls switches on the fenton of the world war ii. says laws are so indeterminate that they could mean whatever interpreters wanted them to me. that is silly. but in less versions it means that legal considerations come into play far more than traditional allows. ideology, class bias may influence judges, not just illegal science.
okay, that was was in the 20s and 30s, fell out of favor in the liberals in the 40s and 50s because it seemed realistic. there's no rule of law, what do we do against the nazis and communists? but it came back in the 70s. cls also promoted -- cls adherence argued as a rule of law was both impossible in practice and in any event undesirable. let me redo read you the invitation from the first annual cls conference held in 1977. law is an instrument of social economic and political domination. both with furthering the dominators and in that of legitimating the existing order. so the rule of law if it existed
at all as a bad thing, it just just helps the elite maintain their power. the more general sensibility of all these movements, cls, cls, radical feminism, can be summed up with the mantra, laws politics. the various groups of critical legal scholars who influenced peaked around the late 1980s, i was in law school and so perhaps was brock obama. all of these critical scholars were a minority, even among the majority of left-leaning faculty, most law professors will remain traditional not critical legal scholars. their influence has been probably felt in the legal academy and therefore has been influential in undermining commitment to the role of law.
as it turns out, the rule of law maintains a continuous foothold on an important concept of the legal academy. it means something different. it's not the classic love neutrality and so forth,. if the government wants to do something in his to come up with a non- ridiculous theory why it's legal. so this is him but no constraints on the government because the law will only been so far without breaking, it just doesn't put much of a constraint on the government. in fact, if you're thinking to yourself what has the obama administration really wanted to do that they decided not to do because someone said it was illegal to do so, the list is not very long. when the bush administration pushed executive power to his limits and beyond there were a few lawyers who objected both
internally and summary threatened to resign if the administration went where wanted to go. then bush pushback. one interesting thing about the obama administration is despite all the legal controversies, julie there must be someone in the administration who says we should be doing this. i have scoured the literature, i cannot find an example that if you go ahead and do this, bomb libya in violation of the war powers act, i'm going to resign. no one has done that because the rule of law is less important than the politics. admittedly, government officials stretching their powers as far as they can without lately violating the law is hardly news. what i mentioned at the beginning of my talk is obama's the first president to my knowledge to brag about going around congress asking unilaterally. one of the telling moments of the obama administration was in 2013 after he won reelection at the state of the union address. he gave a speech where he said
i'm going to go around congress and do whatever i can do with just my piece of paper signing executive orders. not only did the democrats not object to the power, all democrats give him a standing ovation. you think that -- you would it turns out partisan is more important than the prerogative of each branch. meanwhile, the problem is that people often say there was problems with the president so why don't they just sue. the problem is without executive action there is a dr. called standing where you have to have a specific injury and that no one else has that is unique to you. in most cases when the executive behaves there's no one to sue. you can't sue anyone when the turnout general holder decides to pursue the d.c. delegates
voting rights. you can't can't see the president for bombing libya. so one of the great ironies is that when there is an issue of presidential law and executive power finally got traction in the summer 2014, the president, the president was asked about criticism from republicans it that he was overstepping his bounds, and he replied so sue me. so if we sue you you'll waive -- ever since president obama has said so sue me and congress took him up on that in a few cases, the present lawyers have been spending their time in court arguing that they can't sue him. so well if you think i'm acting unconstitutionally, not going to defend my self, let the courts decide. except you can't sue me. obama and his allies, sure they are goodhearted people, they want to accomplish good and sent they oppose the lemma of this
way. for example example in the context of illegal measures of the president for obama care. if we can find a way to ensure that millions of americans are not deprived of health insurance shouldn't we do so? if republicans won't operate with us, if they want to kill obama care, should we find, shall we stretch the laws first possible to do that we can to make sure people have health insurance. the problem is this kind of end justifies the means reasoning is understandable to the effect it represents a sincere desire to help americans, but the neglect and long-term damage of a political agenda. the idea that we had no choice except to seize power to help the people is exactly the rhetoric that has been used to justify tierney.
everyone has their agenda. right now this is a great thing to do but we have to look at the long-term. we were discussing earlier before we came out here how many people who think that it is great that president obama should be able to stretch the law seem to be just fine and dandy for president to do the same thing. do we want president trump to sign executive orders on immigration? but the next president and one of the are things about executive power in the united states is not just informally what presidents have done in the past become presidents but the supreme court has said how do we know that the exculpatory executive powers. we look at what past presidents have done and if congress have been able to stop them.
everything president obama set does is not just -- it's gonna be do you want president cruz doing it, president rubio doing it, president chomped doing it? do you want them to have those powers. whatever you think president obama is achieving right now to risk that in the future. ultimately, the obama administration cavalier attitude toward the rule of law can only be justified with one thing that laws just politics by any other name anyway. law has no value so getaway can can now don't worry about it. that's what obama and his appointees believe, maybe the political leader scholars have one after all. thank you very much. [applause]. >> thank you david. are you going to? >> if president trump does it, 11 thing we know it will be
tremendous. okay will now hear from mr. shapiro. as you heard is a late friday night is a first time, late monday night is a first-time father [applause]. so we will hear from ilia who is a senior in constitutional studies here at cato. he is editor-in-chief of the cato supreme court review. before joining cato he was special assistant advisor to the multinational force in iraq and
on rule of law issues. he practiced at -- he is co-author of religious liberties for corporations? hobby lobby, the affordable care act and the constitution. and. and that came out in 2014. he has contributed to friday of academic and popular professional publications. he regularly provides commentary on the major media from cbs to fox news, to cnn, to colbert report, npr and so forth. he has forth. he has testified before congress and state legislatures and as a core native cato's program he filed more than 150 friend of friend of the court briefs before the supreme court. including one that the green bag
selected for exemplary legal writing collection. he lectures regularly on behalf of the federalist society, is a is a member of the legal studies institute, but for american studies, wasn't in our girl washington fellow at the national review institute and the lincoln fellow at the claremont institute. he has been an adjunct professor at the george washington university law school. in 2015 national law journal named him on his list of 40 rising stars in the legal community. before entering private practice he clerked for judge of the u.s. court of appeals to the vista circuit. he has a ba, and a jd from the university of chicago law school. please welcome ilia shapiro [applause]. >> thank you roger.
the reason i'm going second is that because i have to get out here immediately, although i am my phone in case something happens. i figure i would let's i reply to both of us if he wants to. and david david can continue that conversation rather than me trying to per rebut. this is really about david's project. as we enter this final year of the brock obama presidency, there is not much that the president can do to change people's opinion of him, for better or worse. his worse. his legacy, barring some extraordinary currents, including -- as a holiday advertising glitz for the new independence day reminded us is baked into history. setting aside legislation and executive action, one of president obama's chief accomplishments has been to return the constitution to a central place in our public discourse. unfortunately, the president fermented this up screwing in
interest not by talking up federalism or the separation of powers, but by blatantly violating the scriptures of our founding documents. with his pen and phone and harkening to woodrow wilson's progressive view of government, david this is why i'm not surprised by the rule of law violations. i recognize, i'm sure many people do, the did, the incoming obama was much more about wilson as revolutionary rather than the 80s. so he has been taking out his frustrations with the checks and balances that inhibit his ability to fundamentally transform the country. lack of congressional acquiescence has not stopped him. even in his first term, the the administration launched a we can't wait initiative with senior aid explaining that
quote. when congress won't act this president will. when the reelected president obama announced his second term agenda, he turned explained that he will not allowed gridlock or inaction to get in our way. that that sentiment flies in the face of one of the biggest political changes that has occurred in the last decade. roughly starting at the end of the bush years. that is, lawmakers and citizens no longer consider simply whether a given bill or policy persaud is a good idea, or but whether it's constitutional. where does the government president get the power to do that? that is a common rallying cry from the left and the right. that's a healthy development. for too long, even in those rare moments when politicians were faced with constitutional concerns, they have the attitude of nancy pelosi. you will recall when asked about the authority of obama cares mandate she replied, are you serious? of course, constitutional arguments are the last refuge of the scoundrel that has no good policy argument to make.
so it is a good thing that americans are taking their founding document seriously, after all the constitution is the front of all federal power. it is carefully structured, carefully crafted structural provision that we learned about in grade school. like most immigrants, i do a job that nativeborn americans don't, and, and that is defending the constitution. [laughter] such as the separation of powers and checks and balances. these are not merely an application of political theory. as justice anthony kennedy wrote, for a unanimous supreme court in the 2011 case of the united states versus bond, federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. it protects the liberty of the individual from arbitrary power. bond you will recall is a run-of-the-mill case of adultery, federalism, chemical weapons, where a woman sprinkled garden-variety chemical powder
on her, on her friends po box and car handle when she discovered that the friend was having an affair and pregnant by her husband. rather been charged by salter attempted murder by state or local officials, the federal prosecutor when after her for violating the federal legislation to implement the international convention on chemical weapons. a little bit of overkill. the supreme court it came up twice. once the once the government lost unanimously, once they lost eight-one. the prosecutor was then transferred to pennsylvania pennsylvania to the golf course in florida. that resulted in yates versus united states where fisherman who was catching undersize grouper, it's a problem clearly fish and wildlife violation, both state and federal, or was
prosecuted and sentenced to a long time in jail for violating the anti- shredding provision. a federal struck down by the supreme court. if the the federal government acts outside the scope of its powers it is no better than an armed mob. speaking of which, that brings that brings us to barack obama's lawlessness. david bernstein has covered in his book that everyone should read. i will not summarize david's analysis, other to note that while he cannot hit everything which is really sad statement about where we are, he doesn't excellent job of covering the waterfront of abuses. from obama care to justice department corrections, affordable carrot, college speech codes, aca, codes, aca, antidiscrimination law, patient protection and affordable care act, to rule by sars and did i mention obama care. david didn't really, think i
think that was a conscious choice. indeed, part of the reason you do not see a lot of interns flitting about that typically help out these forms is because of obama care. we like to pair interns which i thought the left was in favor of. yet, because we pay our interns, we can employ them for longer than three months at a certain number of hours per week etc., without providing full healthcare benefits. because we don't want to provide that in tire package or nothing, we have to employ them for less time during the year, hence no interns to help out. david also has an interesting chapter -- wives just talking but the consequences of why the role of laws important.
-- well okay they'll be the next cato lawsuit once we finish the ones -- david also has this interesting factor on foreign policy that he talked about which is tricky. the scope of executive power over foreign affairs is less clearly defined than it is over domestic affairs. while it is obvious president obama violated the war powers act, i personally i'm not convinced that the war powers act itself is constitutional, that is a subject for another day. obama's action the trying to comply with war powers act says a lot more. he'll make other presidents did not simply say the war powers act, i'm not complying with it because it's not constitutional. yet, he managed to violate clearly established law. if you more examples read the three most successful opposite my career, those would be, president obama's top ten constitutional top ten constitutional violations of 2011, 2013, 2015, respectively.
we're talking of hundreds of thousands of clicks for the daily caught caller a national review online. where these are published. think about that for a second. isn't it a problem that is is not hard at all to come up with these lists? for legal pundits like myself it is like shooting a gun while walking past a barrel to get a fish sandwich for lunch. actually, each of those actions were probably subject you to federal prosecution, see this week's executive action on guns. just think about them rather than doing them. obama has not started prosecuting stock crimes though he is getting close with respect to so-called climate change dashmac. a threat as the supreme court is concerned, that is my specialty. this administration is easily the worst performer of any before the court in modern times, which i think is indicative again of its approach to the rule of law.
in modern times, probably ever, though it's easier to compare obama to clinton or bush, if you look over all where obama is below 50% or just at unanimous cases where he has a record average of about four unanimous losses per term. more unanimous losses in his first five years the bush had in all eight. it is not a pretty picture. by the way, the last three years cato and our amnesty program has gone 15-three, ten-one, eight - seven beating the government each time. expansive expansive executive action including overzealous prosecution, envelope breaking, not just pushing legal theories, and the fact that regardless of his reasoning justice kennedy tends to act like a libertarian in most cases. as commented, when you have a crazy client that you make crazy
arguments you are going to lose some cases. if the administration wants to improve its standing before the court, i humbly suggest it follows cato's lee. advocating positions and engaging in actions that are grounded in law, those that reinforce the constitution for all. take it from gw law professor who voted for president obama at least once, maybe twice. at a 2013 house hearing at the president's duty to take care that the laws be faithfully executed where he also tested five, he had this to say. quote, while i believe the white house has clearly exceeded its brief in the series, this question of presidential nonenforcement has arisen periodically in our history. in the current controversy, the white house has suggested arguments citing the interpretation of statutory text, agency discretion, or other rationale to mask, or
other rationale to mask what is clearly a circumvention of congress. it also appears to be relying on the expectation that no one will be able to secure standing and challenge the decisions in court. finally there's no question that the president is allowed to set priorities of the administration and to determine the best way to enforce the law. people with good good faith can clearly disagree on where the line is strong, there is ample room given to the president setting priorities in the enforcement of laws, a president is not required to force allah's equally or dedicate the same resources to every federal program. even with the sample allowance however, i believe brock obama has crossed the constitutional line between discretionary and enforcement and defiance of federal law. congress is given the defining function of creating and amending federal law, there's more than a turf fight between politicians. it is designed to protect liberty pipe the concentration of power. all citizens, democrat, republican, or independent shooting, or independent should consider the danger presented by a president who can unilaterally suspend laws as part of a presidential
license. policy after policy, from doppler, the immigration expansion program which i support generally as a matter policy but have been filing briefs on behalf of people that support immigration reform saying you need a law that congress has shamefully failed to pass to accomplish that. to regulating the internet, and other illegal regulations, the executive branch under barack obama has given itself. this is the antithesis of the law and i believe has done lasting damage to the country. i have some questions for david which i hope you will respond to the context of rebutting sides response to his book. first of of all, the title of your book is lawless.
does that mean both constitutional and statutory violations? or doesn't even make a difference because when he is executive branch does something in excess of its power it is inherently a constitutional constitutional matter. second, do you really think that former constitutional law professors of barack obama's theory of executive power is that the president can do anything he wants as long as congress is deadlocked on that matter and it is hard for someone to stand to challenge it when that happens. sigh will say that all presidents to the sort of thing, there's perhaps an incremental ratcheting up of every administration regardless of party. otherwise there's nothing to see here, what is what is your response to that? fourth, what should we do. impeachment is a political remedy and giving the polarized nation of our party will never happen, it is not a feasible remedy unless the approval rating drops below 20%. is there anything else that we can do? finally, finally, we have seen an incredible increase
in state lawsuits against the state government and a little from congress as well. is that the new normal? is that the response, the breakdown causes other branches to challenge the president in court? now, finally in terms of criticisms, the only criticism i have a david's book is that i should have been the one to write it. i suppose getting a blurb on the back, above for maternal general mckenzie, i credit your for that. we don't endorse the candidates here at cato, were 5o1c3 and tried to follow the law. but i do endorse this book. by it, read it, tell people it, tell people you did so because of my blur.
in sum, as the nation limped through barack obama's lame duck year, americans have much to ponder regarding the example this president has set for his successor. what powers that successor will abuse. hillary clinton has pledged to take executive action on gun control, even more than president obama did this week which was rather key msa. i don't want to spend a lot of time talking about it. the national review had very good good hot today, i also haven't been tracking it that closely. campaign finance, immigration, because apparently president obama -- corporate versions and who knows what else. and, trigger warning here, imagine what donald trump would do? so happy happy new year, enjoy the presidential election. [applause]. >> think you really are, now we are going to hear from a different perspective from simon lazarus who is a senior counsel at the constitution accountability center. before joining the center he was
a public policy counsel to the national senior law center. he served as associate director of president jimmy carter's white house domestic policy staff and as partner in -- from 1981 until 2002. he was senior counsel to austin from 2002-2006. is a trustee of the center for law and social policy and a member of the administrative conference of the united states. his articles appeared in the atlantic, washington post, american prospect, the hill, daily beast, political, the new republic, huffington post, as well as reviews. right for the american constitution society blog and has published issue briefs
including mandatory health insurance, is a constitutional? that was released during senate health care reform debate in 2009. also the health and form lawsuits unraveling the century of law and the fabric of modern government. that was published in february, 2011. his event take article had been republished into anthologies, the best american political writing, 2003 and 2003 and principles and practice of american politics classic and contemporary readings also published in 2003. that was by cq press. david is a graduate of yale law school where he was in comment editor for the journal. please give him a welcome. [applause]. thank you roger. it is always a privilege to appear here at cato which i have
done on many occasions. the center where i serve as senior counsel works constantly with cato, frequently as an adversary and a respectful one. but not infrequently. as an ally. so it is in that spirit that i offer what are going to be substantially critical remarks, but not entirely about the work that professor bernstein has presented us with. i had to say that i think there is a schizophrenia about this book and perhaps also about professor bernstein's approach to the issue of executive power. on the one hand, there is a professorial side, there professor bernstein acknowledges
for example that the expansion of executive power, which certainly is an important phenomenon of our time and our ancestors time, is a very long-standing, structural developments and it has been exemplified by presidents of both political parties. he acknowledges that but then we have what i have to say is the propaganda side of the book which is the dominant side and appears most dramatically in the title. the fact that this expansion is such a structural and long-standing bipartisan phenomenon would seem to undermine the notion that such expansion as there may have been under president obama is unprecedented. it obviously as a general matter is not. i can't deal with every single example that professor bernstein
wants to marshal in trying to make the case that the obama administration is unprecedented and is an recidivist violation of the presidents constitutional duty to take care of the laws be faithfully executed. i can't take on one of all of these examples. that's focus on the big ones and was that and ones that professor bernstein himself highlights in his introduction. first of all, we have the old saw of the affordable care act. now he repeats, the notion that delays in the effective dates of various aspects of the affordable care act somehow constitute not only unlawful actions but illustrations of the failure on the part of the
president to carry out his constitutional duty to take care of the lawsuit faithfully executed. first of all, unprecedented, really? president george w. bush's bush secretary of hhs, michael leavitt, called the delay of the employer mandate which was the important of these delays, wise. one can understand why he thought that was wise because in implementing president bush's initiative, part d of medicare which created a prescription drug benefit under medicare which is a very complicated ball , secretary leavitt was obliged to delay a number of aspects of the rags that were mandated and statute for reasons that are completely the same as those which propel the temporary delays by president obama. sometimes you cannot just get it all done. we should note also that it has
been the law for close to 65 or 70 years under under the administrative procedure act that only unreasonable delays in implementing executive actions such as regulations are unlawful. so, certainly certainly they are not unconstitutional. in addition to that, when beating the poor affordable care act again, amazingly professor bernstein i guess cannot avoid, can't can't stop himself or delete relitigating an incredibly king beaver well. professor bernstein you lost those cases, i know you're disappointed about it i would've been enormously disappointed had i lost those cases. but. but you did. whether or not chief justice roberts and in the case of king
b burwell that the other justices were wrong and you did make arguments that they were wrong, the fact that the administrations actions that were being challenged were upheld certainly shows i think, that these are not really good examples that would support the contention that the obama administration is thumbing its nose at the constitution. i guess i would also like to note that sometime per professor bernstein's book, for whatever reason, has to beat horses that are not only dead, but but were not all really alive to begin with. one of those is an example that
professor bernstein highlighted in his own remarks and this is the notion that this administration has created all of these constitutional czars were running the government outside the appropriate constitutional legal structures. he has a chapter entitled more czars than romanoff, really? i have not heard too much about the czars for quite a while. i don't think they made a very large dent. however they were hiked by either the right or the left. in fact, i would say one thing. i think both the administration, here's here's a concession, both the administration and its opponents have an incentive to exaggerate the impact and significance of various executive actions he has taken. the president needs to be shown, seen as making a difference in the opponents need to say that these actions that the president is taken is not only things that we disagree with but are
unlawful, and evidence that he is a serial violator of his constitutional duties. but they are exaggerations, certainly bizarre charges, one of the funniest ones i have to note that professor bernstein in his book cites an article by my very close friend bruce ackerman who is a very prominent left libertarian and certainly a brilliant expert on the constitution. for the proposition that the czars that the president was supposedly creating at some point, early in the administration, are another milestone on the path to imperial presidency. in this article, bruce bruce cited the creation of a position in the white house for elizabeth warren before she became
basically before she had to run for office which turned out to be good thing for her. he says that making her a white house staff position men's secretary of treasury would be a mere rubberstamp for her. i think whatever per lyrical persuasion could chuckle at that notion. another dead horse that was always said as professor bernstein's curious elevation of the significance of the critical legal studies movement at harvard law school. somehow trying to say that this movement, which i must say always regarded as fairly laughable should be attributed
for which i work and the reason that we work so closely with cato so often missed indicated to existing that the loans are for constitutional interpretation must be the text and history. we often conclude with very good reason and i think that when one does that and a conscientious fashion, one often comes to find that the constitution supports progressive results. sometimes we disagree with conservatives about that, but as randy has said in a very gracious way, the fact that the make the framework for the discussion of the constitution actually says and what the framers of the provisions
including what they intended and the fact that we've made the discussion more civilized i have to say that the impact of stressing the original is on has been quite significant. if you look at the opinions of the progressive justices on the supreme court particularly justice kagan and to a lesser extent you would have to see that they are making the arguments for their physicians now so it's a little behind times for all progressives with within the living constitutionalism as evidence of
disrespect for the law. i do want to say there are parts of the book that show the professorial side that of professor bernstein and the distinguished career that he has had. as an aside, i did say that his book on rehabilitating water while i do not entirely agree with it certainly, certainly was a serious significant contribution to taking another look at that case. but that is an example of the useful scholarship and i think that his discussion for example of the ocr -ish you that he discussed above guidance to the
universities and about how to deal with allegations allegations of misconduct is a subject which i know nothing in particular but i am not at all familiar with the law or the policy of history but i do think that the discussion was a serious contribution. but as i said, and also what of the book particularly titled more of the propaganda side. and i have to point out one thing quickly. it plays last and loose with the fact and one that i have to call attention to is i have no other word for it is kind of a drive-by smear of officeholder
sites of the head of the office of legal counsel until a couple of years ago and what the professor says and what he wasn't thinking about is that she was selected because president obama could be sure that she would be a compliant vendor of whatever he wanted to do. i don't know who her predecessor was because the office had been vacant for two years because congress and the senate was filibustering and blocking her successor from being confirmed. virginia, who i know was and is now now once again is one of the top people in the super distinguished team of the litigators who if you don't is
one of the founders of the society for the distinguished litigators in the country and she had no ideological background that i know of and was purely selected because of her qualities on the merits and that's why she was confirmed by a voice vote. so the buck does not uniformly reflect the kind of scholarly values that the professor had shown in some of his other work. [inaudible] >> very briefly let me say this book is not an academic press book. i disagree on the facts that no one has found any factual errors or have a difference of opinion particularly the individual difference of opinion.
the easiest lawyers in dc and academics and have a back and forth while the people that say this or that. there is a breezy tone in the academic that means also it's an understandable comprehensible person still going fully accurate. to see if they've said anything inaccurate i may not discuss every legal theory in as much detail.
with regards to the legal studies, let me reiterate i'm not saying that all progressives are clinical scholars in fact most people confuse mainstream liberals in their own way just as they have had a significant influence of the studies on the way other people and organizations have said you libertarians out there on the federal bench or the republican circles there have been some influence on them and that is true to take an example of the book they are not clinical scholars that over the last ten or 15 years they've advocated restrictions and said those are constitutional and it was unconstitutional and that wouldn't have been in the tradition 34 years ago but is in the position of the scholars of
influence and they argued in the supreme court not mentioning in their brief that churches and other institutions have no right to choose their own clergy which is contrary to what every court had held and every single circuit have actually ruled on this. that's an idea that came out of the radical legal feminism that argued the catholic church should be required to have female priests and the religion clauses of the constitution shouldn't prevent it and that is indeed somewhere again where you can see the influence. that doesn't mean that there is no influence. with regards to the affordable care act to write a book about the constitution of the obama administration without addressing the case as everyone knows about as the most famous
constitutional controversy of the obama administration and what we call the evidence race talking about how the obama administration came to be and over the supreme court is a way of giving the underlining background to what became that it was lawless and unconstitutionally in the way that i interpreted and would never say the delays, delay is, modifications from obamacare are in fact ball less and wallace and they made the argument here and elsewhere no one actually believes that and the best piece on this he supports obamacare, he was against the challenges and he says i have the obama administration policy based which they are supposed to go into effect. they were afraid of the consequence they would have in
the 2,014th election and there were several provisions in the "washington post" reporting that were supposed to go into effect between 2012 and 2014 and the other context because the democrats begged them to. you shouldn't own and force others until after the elections that's what the bush administration did. i cite my friend and it's not an academic discussion i published in the style that all the academics were cited. last thing, question about the title in the obama administration is unprecedented and goes to something that i was asked what it is unprecedented about it. it's been growing substantially over the decades. there's a few things. first obama made some promises
when he was running for office and others had constitutional promises. i am a law professor. i'm going to obey the constitution. president bush problem he had his aggregating more and more power to the executive branch. when a president makes problems not only does he not fulfill them come about about it really undermines the culture and the constitution and that is unprecedented. bragging about how he is going to go around congress i don't think any other president has undermined that. bruce ackerman has been upset about it for a good reason. the increasing executive power and the dramatic emergencies in the depression, world war i, world war ii, the cold war there's been no emergencies that justifies these things, just pure politics instead of trying julia king we are just going to do whatever we want and finally we have another aspect that
pushed executive powers and one specific area i-india thought or other examples to come up with. so i thought thought of it more as the academic style in the power and i became convinced. i thought that it was exaggerated propaganda. i thought i should alert the public about it but i'm not really concerned obama is gone but what is more important i wrote this book in part for people that were concerned but think about what happened and think about the danger that is created and not go along with event. he's out the door.
thank you. [applause] >> i am concerned about president obama because we have one more year to go. let's take your questions. please wait for the microphone to come and identify your self and of any affiliation you might have. this gentleman right here with his hand up. go ahead. this is a historical question. you talked about the concept of institutional loyalty being trumped by the part of the congress which prevents congress from overwriting any veto in an attempt to push back on some of the lawlessness.
i wonder on the congressional side, historically whether this is more pronounced now than it has been in the past in the party loyalty over the institutional loyalty or whether that has been historical given as well. >> that is a great question. not being a political scientist i'm not the most qualified to answer that but what i learned from writing this book is that there does seem to have been a decline especially recently in the willingness of congressional leaders to oppose a congressional authority when the president is of the same party and i think that's one reason that one reason for that is that we've just become more and more partisan and the parties have decided more ideologically. they used to be wonderful in each house and we don't have that so much anymore.
the congressmen and women and senators are less interested in the institutional prerogatives. there's always the case. and all of a sudden it's unconstitutional. for example in the early years of the obama administration there was pushback from senator kohl, senator feingold and senator robert byrd and they all got defeated. a the few senators that wanted to pushback by the -- i'm not sure i have the four answers of why