of the world. president obama though, this is unprecedented, he said that is not a real session. you say you are in session but i say you are not. i say that is not a real session but actually you are at recess thus i feel i have the power to make recess appointments that is what was going on during these particular three says appointments this is the first time a president has ever done that the

first-ever recess appointment during the time of the senate itself believed it was in session. the president claims the power to decide whether the senate is in session or not to override its own judgment whether or not it is in session despite clear contextual command that the senate is the master of its own rules with the constitution. i would say it is hard to imagine the government will win on that point. i would be very surprised. but for canning to win it has to be only one of these points but anyone of these points can persuade any of the justices. you could get the votes from any of these three points and i will predict that one of these will persuade all nine of them.

a reckless prediction this would be nine / zero. thank you. [applause] >> we now will hear from victor williams. >> i am glad to be here at kato it is a privilege to be in a place with hijacks name on cobol. co-sponsored by the federalist society that has done so much to promote the great strengths of ideas but also all across this country. it is a genuine precision and kudos to the federalist society for having promoted yvette of a free market of ideas the american constitution society has popped up to do exactly the

same thing. kudos. but it is an honor to discuss our constitution. i do with reverence and july and pride. i hope not with tim much enthusiasm. i will try to dial it back. [laughter] with the obama is recess support -- of claimants and all future presidents recess appointments president clinton all permanent and temporary constitutional authority. it will not be that long. to attempt first principles i think i have to go back to

our first constitution, the 1781 the ratification of the articles of confederation to remind myself under the articles there was no executive. no president. national judiciary. no separate branch to execute the obama to read mr. the government. congress and all the power and all the responsibility and failed that they. today we often hear about a dysfunctional government. let me tell you in the 17 eighties there was genuine dysfunction. dangerous dysfunction. the confederation of congress had failed miserably to legislate and administer the new republic with those committees. your congressional the appointed administrators

were able to execute the law for many reasons of the summer of 1787 we came to draft our second constitution. with a net addition the favors formally separated the executive authority of the congress being stripped of his executive responsibilities executive powers were transferred to a president a single individual. a chief executive, the chief administrator. congress was left but course

one president or one individual cannot do the job so the debate continued. the president needed help obviously. who would hire the help? who would hire a the high-level officers to execute the law? who with higher the folks for what was created under the new constitution? nanny when did with the assumption congress would continue to do that job to a point to officials and the new judges. added interesting thing about the founding era debate and discussion mattered.

in the summer of 1787 who would best philby's positions? who was the best person to choose these officers? minds were changed and at the end to grant a strong predominant authority. the president would choose a house had no rule that the senate was restricted to reconfirmation invoked there would give the advice and consent with the simple majority that was their advice the president could and usually does except their confirmation advice he

could actually signed a commission. the president signing the commission he has full authority and final authority. on the same summer day it is wrist it restricted advisory consent the question arose, what happens if the senate is not available? what happens to these offices? they are supposed to be important to a judgeship. do they wait until the senate returns? north carolina stepped up and said no. a simple solution is to

grant the president's unilateral authority when the senate is not available. the senate is gone the president has no need to make a formal nomination it has no need to wait under clause number three. it is not the exception, it is the capstone of presidential predominance of the delegates immediately in unanimously accepted this exclusive temporary appointment authority it prompted no additional debate and was in trouble to the design for executive appointment authority. the president's authority

would be for all purposes regardless said the attendance so all presidents beginning with george washington have used this to keep the government and judiciary working unlike the articles of confederation this constitution was going to work. and i wish my professors had been so clear. that was wonderful. i appreciated. but to call his commissions constitutional, of course, they were. the will get more into that with the discussion this sham pro-forma session is nothing more than that but

in 2007 and 2008 encourages bush to challenge the harry's reid in the las vegas those gm sessions do not change the fact the senate was unavailable it was on 20 daybreak it was gone and no quorum to be had for the constitution explicitly grants the executives to return in the senate and availability and the discretion to decide temporary commissions. clause three is intended to of the raise -- to authorize the president to make these appointments.

again, clause three has the president to make these appointments all make the executive has to don't read it is required. for article two, section three mandate he takes an oath that the law is faithfully executed and commission all officers of the united states only the executive knows that those temporary conditions are needed. with the d.c. circuit herodias reluctantly in the interest of time i have to

look at the solicitor general available through the web site there are briefs for every case on the court the brief is exhausting detail later why it could be exercised during the intersession break the solicitor general rises to the challenge meets man defeats the ruling on the original list grounds with the contemporary practices to support his analysis diagrams the sentences and the brief fully explains the purpose and historical function and yes the

appendix lists the names of hundreds of officials and judges whose intersession recession commission has been made. with military appointments the numbers go into the thousands. >> i support the position but i come forward to say i strongly believe the mistake was in the fact to make a pre-emptive argument. the commerce clause? taxation? sometimes it works out well. [laughter] the meet this brief to the washington d.c. circuits and argue with a dawn renewable

question some are committed by the constitution to the exclusive discretion. could it be that court does not have the last word? the john roberts court can improve its credentials to show a judicial restraint by the application dixon verses united states by the interest of time in the 1993 case of walter nixon the supreme court refused to review the shortcut impeachment trial process.

is he raising money and going on junkets to transform themselves to work for legislation 12 senators actually hear the evidence and 98 don't. then all 100 senators come together. thumbs down nixon was stripped as a federal judge so he sued sought to have the courts review the shortcut of this process.

knowing that peach removal exercises prudence would not even define the word try. here they should not even define the recess of what it may have been just as judges should not be the final arbiters the court should not have the final say or the final word of the temporary appointment to that it used to regulate the proposition to transform the courts demographics. let's be clear how they have produced for those that have come to the bench. the first female judges by recess appointment, the

first jewish judge or u.s. court of appeals african-american. judicial oversight of recess appointments the court should stay out of this political partisan issue leave it to the edges troops to fight out there were 25 opposing barack obama really? justice sotomayor used to in an argument just leave it to the elected political branches.

[applause] >> we will have five men and responses to each speaker then we will open it up to you. >> great. that was in interesting presentation i will speak that the good professor argued that the court should stay at of that but we argue that in a brief before the court and you heard him argue that five of the 80 minutes just now. that offers up a terrific and teachable a moment for the law students in the room. that is not the question of our debate. i will help you to

understand that by reading you the resolution. president obama recent recess appointments were unconstitutional. the question of constitutionality and the question of jews to she ability is quite different. i worked for years at the office of legal counsel aaron the answer of constitutional questions all the time which will never show up in court but what we argue scheerer is of the president violated the constitution quite regardless with our view the fed was violated we're not doing the court's view but our view was this unconstitutional or not? you can agree with the entire last five minutes that you heard it has nothing to do with your view how this debate should come

out we talk about constitutionality. people in moscow and, ma class's sometimes you might come to think the questions are the same. the court will not declared it unconstitutional but somehow it is. that is not so. there are questions they will stay out of the is before us to consider there maybe such a question. said kent, i heard the good professor say that capstone is not the exception? that is an odd for relation that a vast majority of the appointments are with the advice and consent of the senate. it is quite clear in "the

federalist papers", said the framers they debated atlantic how appointments were work -- would work andy poll of the recess appointments clause to say be after us something like that there was no talk about it all. this carefully mechanism for placements the quick recess appointments clause had no debate at all sure lead that suggest they thought it was the exception to the rule. even if the senate votes no? >> of course. so i will give you the primary claus again shall nominate by and with the consent of the senate, shall

appoint. but he says of the senate votes know the president can make the appointment any way. but nobody thinks that. nobody thinks that. that is not the conventional wisdom i don't think i have ever heard that before. so that is the unusual claim of a like to hear more about that. that is not a conventional wisdom but to call these sham micro sessions over pro-forma sessions during the senate could not possibly do any real business, the senate actually voted for it and passed a bill during one of these sessions only 10 days before these appointments. so we know for a fact of the senate can do business during these sessions and it did. says you cannot quite call

visa shechem session you can do business during them and the senate has. with all the questions i raised an opening presentation of the logic of the government's view, is a possible it includes a lunch break then where do you get the three days and why is it their recess is short but session means the entire year? the dog lead you do at the beginning in last two whole years? after that we heard no answer whatsoever except to refer you to the excellent brief that is the unusual way to get a debate but havel look -- have a look but i during question and answer ask professor williams does the lunch break count and why not? that helps to put a fine

point on this. the strongest point is the giant appendix with all the prior appointments that seems to be when a vacancy arose not during the recess or where the recess was it was intersession rather than intercession is a legitimate argument but how much does that matter? if you think by a matter of first principles i am right but is there so much water under the bridge that you can either believe something that yes, that is wrong but we should stick with it anyway because it is wrong wrong, or you to believe something like that along tradition actually changes the meaning of the constitution even though it was wrong before it has become right through tradition i don't believe either of those but it's

that is a legitimate thing to believe. >> your time is up by want to stop you before you give up too much more. [laughter] >> legitimate arguments? that'd is what we need for law school. [laughter] . .

>> it was challenged in the 1 # 1th sir cut, and it was that too, but at least in part, but, of course, it's constitutional. i mean, it reached a point where some things, and the united nations, nobody going to stand here and tell me that hefuls not constitutional.

tyrant small and large. and doing work of the united nations. what else can we say in talk more about -- it was in madison that and that don marshall first informed questions in their nature are political or which are by the constitution and the laws submitted to the executives can never be made by this court. the president has certain discretionary powers for which he is, quote, accountable only to his country in his political character and to his own cost. that's more than just disability. that's constitutional. that's what it means to have a president. another case just for your knowledge, water v. carter, court rejected challenge of the

congressional delegation lawsuit against president carter's decision to terminate the treaty with taiwan without point of hats in hand to the house and senate, can i do this? the associate justice wrote here, while the constitution is expressed to the manner in which the senate shall participate in the radification of the treaty. it is silent as to that body's participation in the ab gore gages, similarly with all the other recessed appointment challenges that had been ginned up all across this country. article 2 section 2 cause 2 is that stress adds to the manner that the senate participates in the confirmation of an ordinary permanent appointment. the next clause of the constitution, and we're talking the constitution here. it is a constitutional read that we -- the next clause any

negates the body's participation in the president's decision to sign a temporary commission. i argue this against harry reid when he started this childness, silliness in 2007. it is an embarrassment to the senate as an institution, it is a waste of taxpayers' money to light up the place and with deference to c-span to run their cameras. i have one minute to tell you that these pro forma sessions are in their latest development wasn't the senate. the senate is not objecting to the recessed appointments. that was a partisan minority of the senate colluding with the house majority refusing adjournment consent so the

senate was forced into the pro forma session. the house majority cliewdz with the senate minority for the jam session. shame on the house majority. shame on the senate minority. kudos to president obama for making his constitutional appointments. president rand paul, hillary clinton to run our government. thank you. [applause] wait for the microphone so everyone in the room and the audience and watching online can hear the question. please, for purposes of c-span, stand when you get the microphone, and give us your name and any affiliation you

have. try to make the question short and i've asked our speakers to give short answers as well. just send the microphone to the next so we save time there too. >> sam, retired navy lawyer on the appointment clause, the recessed apaintments clause, and i believe in every cabinet department, the line has been drawn assistant secretaries and above require senate con confirmation. deputies and below do not. how did that line come to be drawn, and is it a defensible line or where is the line between what requires senate confirmation and what does not.

>> who is that question for? well, the -- again, the advice and consent of california ambassadors, judges, supreme court, and officers of the united states whose appointments are not otherwise provided for and shall be established by law, but i don't think -- there's a line of tradition -- not quite a clear constitutional line about who requires senate consent and who does not as to that. >> of course the partisan instruction we've seen with the democrats and republicans lead us to want to reduce the number of officials that are subject to

senate confirmation, and in some ways, that's unfortunate that the senate can't perform its constitutional functions, but i have to agree at this point, we should reduce the number of subject to the torture process. yes mapp over there. >> david, washington, d.c.. even if it's not in the technical bounds of the debate topic, reply to the merits. >> well, actually, i believe that i believe that canning has a legitimate dispute, that is, i think, there's a real case or controversy involving this party, canning, and i think that separation of powers at its core is about individual liberty, so i don't think this is the kind

of thing that's left to the political branches to quite work out on their own. i think this is the sort of thing that the court ought to be in -- the court ought to take a crack out, and i think the court granted cert in the case, reach merits, a predictive matters, and i don't think courts say it's nonjudiciary, but this debate is not about that; right? we're trying to answer the constitutional question quite regardless of what the court ought to be involved. >> well, if it was not, it would fall by default tots president, would it not? >> well, no. you can believe the president was violating the constitution that there were other proper remedies. you can believe the impeachment was proper or a proper reason to

vote for the other party in the next election. you know, or to vote for the other party when you're voting for your senator. >> until those two remedies were available, the next election or impeachment, then the president would be de facto, successful in making the appointments and ignoring the separation of power. >> well, so, congress actually has withheld the pay of folks who were appointing them per some of the -- per either intrasession or when the vacancy didn't arise during recess, and actually a good bit of debate about the government who wants to say they aqee eased in the -- the senate a qee eased the people in the world, and canningments to say that's not acquiescing, but it's making the punishment the crime. it does not rise to the level of impeachable offense, but, you

know, the framers' idea was that for of the questions, if it is, the issues that get worked out is through various weapons each branch has, the various arrows in the quiver, and the big arrow the legislature has is the power of the purse so it's exactly what they expected would happen. >> hi, from australia, asking the full bench, what sort of precedent does this set if it is deemed constitutional? if the president can aid and determine when the senate is seeking, b, when these positions become or happen to be vacant, doesn't this create a situation where highly political appointments are made during these sham breaks or recesses in the future? is this where you want to head? >> i'll take that.

well, we could talk about the efficiencies of the recessed appointment process, and they are meeting, but let's talk about -- let me tell you, limitation recessed appointments is the termed limitations, and while up to two years is a pretty long term, it's certainly not the full presidential term or eight years presidential term, not the term of a rig story official nor the tenure of office and salary of the federal judge, so there's many reasons a president might not want to make recessed appointments, limentations to this alternative. i have to just point out for the record, the reserve, too much so for my taste, and actually, 32 recessed commission compared to 250 for the great ronald reagan, by william clinton, compared to, again, close to a couple hundred on george w. bush.

>> i just say that this is a dramatic shift in power sphrt senate to the president if upseld. what's the precedent, dramatic shift of power from the president. it's the exception following the rules, and they can get around the need for advice and concept by waiting for a little recess to do the appointments, but the exception swallowing the rule in a way that matters a lot as to appointments which is hugely important, hugely porpt executive power but matters beyond that too because everything happens in the shadow of the separation of powers provisions, and about obamacare, whatever it is, in the shadow is we night not confirm your next a.see if you don't go along with us.

this shifts the negotiations about everything, not just about appointments. it's a big deal. >> i had a question for professor williams, can you respond to what i consider the most devastating and historical evidence, and that's that george washington, when he was trying to appoint people, he tried to contact him first and confirm he wanted the appointment, but if he couldn't and the session was about to end, he asked the senate to appoint them anyway so that if they resigned during the recess that he could then appoint someone else. why do you consider that not to apply in this case or be relevant in this case as to whether or not he can appoint someone even if it arises before the end of the session? >> of course, we look to the entirety of the historical

record and the hundreds of thousands of recessed appointments, and for george washington, that particular case cost a -- george mason and bad lawyering. he had bad advice that is fulfilling this regarding the vacancy had to pop open in the spray session recess, the only types of positions that he could recess appoint so he was doing just the little bit, the great general of maneuvering. >> that's a rather extraordinary answer, isn't it? this is an argument that is built on history and tradition, so aopinion kicks is the heart of the argument so if you have to throw george washington under the bus to make your historical argument work -- >> no, just his lawyer. >> you have a bit of a problem, i think. that's a quite an extraordinary

claim. [laughter] >> david bernsteen. >> hi, george mason law school. in terms of presidential unilateralism in obama administration, it's small potatoes, but there's a related issue, not telling the rest of them, of these czars that president is increasingly appointing to high level positions that should be executive officers subject to confirmation, but, instead, it has calledded the director of regulatory policy, director of this and that, and it's -- bush did a lot, obama is doing more. the extraordinary thing that i saw, this goes to the discussion we had, that the senate and house passed legislation defunding in 20 # 11 a couple of the positions so bipartisan, at least enough bipartisan to get votes through, and the obama administration is signing statement, signs legislation as the broader package saying, yeah, but they can't fund positions because it's part of the executive authorities that

led to the point we want to. the question is any comment on the growth of the czars to avoid the appointment's plug completely and whether there's a plausible constitutional challenge that could arise to challenge some of these appointments? >> exordinary we adopted the word "czar" for these people. they sound important, but you get into the weeds on quite what authorities they have to the extent they are just giving advice to the president. to the extent they are like, you know, somebody in the white house that is just advising the president and not really sitting atop a structure. i generally think that they are okay, but i would want to get into the weeds on quite exactly what the authority of the folks are before i thought they knew the senate consent. >> i agree with that, and shame on the senate for not timely

offering advice, praise to the senate for getting rid of confirmation filibusters other than supreme court nominees that's coming. mitch mcconnell says it will come for the republicans. let it come. get to the constitution the framers intended, simple majority vote. the article of federation failed because it required soup majority vote, a unanimous vote among the states, and so praise to the senate for ending cop fir mages filibusters. >> okay. right here, please. >> wayne mary, american foreign policy council. we do a lot of things in this country based op tradition and practice that are not entirely constitutional. vice presidents to johnson succeeded to the presidency with no constitutional authority to do so until the 25th amendment in 1967. nobody argues retrospectively

the presidents were illegitimate or anything the presidents did was illegitimate. look at thousands of people appointed from washington to obama in intrasessional terms, aren't you opening and incredible question of retrospective negation of the enormous amount of what u.s. officials have done, and in particular, in foreign affairs, would this not just raise questions about what ambassadors by one's work conducted on the behalf of the united states drawing into question the legitimacy of the official status? >> so that's a great question. that's what i was starting to get at when roger cut me off from my own good. so tradition and practice matters, the extraordinary argument on the other side here. i think it shouldn't win the day

and probably won't win the day for a few different reasons so one is a traditional practice that starts in 1789, i think, is all but conclusive, really, but this didn't start in 1789, but nor in 1823 was the first time anyone suggested that it has to mean something other than a cur. the entire founding generation actually believed that happened means the cur, and, you know, it's -- it may sound -- i guess to me, that matters, and 1823 actually matters, if it's 1789, that tells me i might be wrong about what the text meant, the original meaning of the text, but if it's 1823, i'm comfortable saying that attorney general of 1823 was wrong, got it wrong, and the founding generation was right about this. to me, that matters.

second thing is there's no doctrine on this. we -- history has a lot of power in the early supreme court cases. we don't have any here. history has less power because we don't have doctrines, and, third, this is not quite settled. even though there's a giant appendix, the senate has pretty consistently resisted this, and expressed its concern that this was not actually consistent with the original meaning so it's not quite the political branches reaching and accommodation about this. the senate quite acquiesced in this. it's controversial, and the controversy flaired up in a number of ways throughout from 1823 on. it's not quite settled in the way that might carry the day, i think. >> yes, very important question. very important case. i actually tried to make this argument a bit to the court in the mixed brief.

if the court is not persuaded by its own precedent in history to avoid the partisan appointment fight, the less domesticated the per speckive of the late great bickle. he advised courts to consider the strangeness and all the issue, just the strange case that we have not seen before. he referenced the inner vulnerability, the self-doubt of an institution which is electorally responsible and has no earth to draw strength from. this is exactly that case. this is exactly the bickle extension case. our judiciary has no earth to draw strength from. stay out of the partisan mud fight of appointments. >> all right. up here.

if every member were to die of a smolt heart attack, could the president use the recess clause to refill the cabinet or wait for the states to send new senators? >> only at cato do you get a question like that. [laughter] >> i think i'm going to leave that one for you, roger. [laughter] >> he worked for me. i did not plan that with gabe, but -- >> oh, no, it's yours. [laughter] >> oh, no. gabe, i'll see you afterwards. [laughter] we have a question right here. >> gabe, library of congress, and i would like to ask a question to both of our speakers. do you think the remove power should have the same procedures of the appointment nomination because if we go back 200 years ago for the removal of the

president andrew johnson escaped impeachment. thank you. >> so the constitution has provisions about appointments that we have been talking about, but it actually doesn't say anything about removal, and so it was possible to believe that the things were supposed to be smet try call. you could believe if you needed senate concept to appoint, you needed senate consent to remove. that was a plausible thing to believe when there was no tax on this, and some smart people actually did believe that, but now the wisdom is the president gets to remove folks on his own motion even though they were -- unilaterally even those who were the senate had to consent to, and i think that's rights, by it's certainly as a matter of first principles, smart things to said op the other side. >> this ruling would limit the

president's discretion in terms of removal in the sense that if you take them as they were, there's a magic little time less than an hour between sessions, and so you would need to fire your foe during that hour and recess commission your foe in that same hour of an intersession recess. i want president rand paul or hillary clinton to fire when they need to, and i know hillary won't do it. [laughter] >> right up here. >> mark, cato institute, an economist, not a lawyer, i beg your indulgence to my ignorance of the law. first, professor williams has a couple occasions referenced the 51 vote. my read of the constitution is it seems to be quite silent in the senate, the own rules, and richard co rdray, got the senate vote, did not read 60, and i note the day before the recessed

appointments, his paperwork was returned to the white house, so the second question is as a former senate staffer who did a lot of paperwork, i consider the exchange of paperwork and messages between the executive branch and senate to be business, so my question would be are votes the only thing we consider business in the in the senate or what is senate business if not the exchange of the executive branch which, again, happened within 24 hours of the appointment? >> very interesting question. i didn't know that. i have to think about that a bit. the problem with the pro forma sessions since started in 2007-2008, we see the senate's business as monkey business, seen as child's play, but it's a good question. i'll have to do some thinking on that. >> didn't start with harry reid, did it? >> didn't start with harry reid, but -- >> [inaudible] [laughter] >> thousands of yours ago, depending on your view.

>> question right here. >> hi, i'm the immediate -- >> speak into the microphone, please. >> i'm wilma leedman, immediate past chairman of the national labor relations board. my leaving the agency in august 201 is created one of these vacancies filled by -- >> could you speak up, please. >> yeah. the -- professor williams talked about the fact that the difficulties in making these appointments were occasioned by the fact that the house of representatives was refusing to concept to a recess of the congress. constitution says that you need consent of both houses to have a recess. the constitution also says that the president can declare the congress in recess if the two houses cannot agree. ill the question is would

president obama be better served following that route, i think, during this period, the two routes were debated and studied, would he have been better because the congress -- the constitution expressly gives him that authority. >> interesting question. i have to think about that actually. yeah, it's a good question. >> there was a lot of encouragement for him to do just that on huffington post and other such wonderful sites in our new technology age. robert kennedy said the most important characteristic of a lawyer is courage meaning thinking outside the box and making unusual ideas. >> i'll get one other thing out

on the table as to that so it's important to note the 20th amendment says the congress shall assemble at least once in over year and every meetings shall begin at noon on the third day of january until they shall by law appoint a different day, and president obama believes that one of the pro forma session suffices for that clause, so counts, counts for purposes of the 20th amendment. the administrationments to take the position that these sessions are legit for some constitutional purposes, but not for others, and that's a bit awkward. now, if he disbanded congress, then i suppose -- depending on the dates, you might have risk running afoul of that provision, so i guess that's something he had to bear in mind at least.

i believe, and i don't know if there's a question on czars, had part of the inspirings about funding and congress power to fund positions and something happened along those lines; is that correct? was there a funding? questioning congress' power to fund or not fund? >> [inaudible] >> yes, if congress believes the president is violating the constitution, one of their remedies is to not fund favorite things, and there may be the salary of appointees and budget of certain agencies or whatever, and that's the way it's supposed to work. that was the idea. no.

>> john, georgetown law school. if the supreme court says that the senate doesn't really have its own power to decide when it's doing its own regions, what reason do they give for this and has the supreme court second guessed senate's rule making and own decision making power before? >> that's for you. >> again -- >> could you repeat the question. quick recite. >> has the supreme court ever said to the senate, no, this is not a recess, or we're going to contravene your power to decide what your own rules are? >> i don't -- perhaps they've come close in terms of removal cases, but i don't believe they have addressed this. i think that's one of the recent cases on court, but -- well, i think what the question is driving at is has the court ever second guessed the senate as to its own rules? i think the answer is no.

>> well, no, in the removal cases, they were affirmative in nots doing that. it's very interesting question. back to the budgetary question, that's right. that's right. you know, i come from arkansas. ways and means that congress can have interactions with the president. if they believe that intrasession recessed appointments are unconstitutional, gosh, 17th, 2006, maybe you should get back to the title and maybe treasury should fall back. >> he could afford it, but in any event -- [laughter] roger? >> yes. >> can i ask a question? >> i've been waiting for y'all to ask the question that i want the answer to, so, professor williams, how short is too short? do you believe a lunch break is a recess? >> i do not believe that the adjournment clause three days provision applies to this. in a time of national emergency,

i do not want to hand cuff the president in terms of the -- i would ask you a question. in intrasession recessed appointment of a -- i sigh it popped open in the last 45 minutes -- have the power to recess appointments? in an intrasession lasts 45 minutes, possession of a vacancn the 45 minutes. >> it happens, yeah. >> but, sorry, so your answer was lunch would count, yes? >> your answer was less than lunch. i don't -- i'm from arkansas, i don't do a 45-minute lunch. [laughter] that doesn't get past the roll. >> thank you. my question is with a little bit background in the question, i want to say first even if you cite a thousand unconstitutional actions by past presidents, that

doesn't support your position, say, that this president's unconstitutional action is constitutional. bad evidence will not help you, and the real thrust of what i want to ask is if all of this history still permits president obama to aggrandize power that isn't limited to president obama as you said, president rand paul, president hillary clinton would have that power, but the problem is that we have about, i would estimate, a hundred years of essentially the constitution being in advance, especially since 1937, but since 19 -- we have a continual gran diesment of the presidential power, and suspect it just one more step to where the president is taking more and more power away from the congress? that was to professor williams. >> well, again, i would just go back to -- it's a serious question, i think it's a serious question, in terms of barack

obama, barack hussein obama, he's been very, very restrained, only 3 it 2 recessed appoints, over 250 for ronald reagan. i accept the question. it's an important question. we need to think about that question. we need to go past article one and article two. we really need to go past article three. we need to go to article five. that's how we make constitutional change. if we're serious about a democratic republic, we go to article five. we amend the constitution if you're concerned about it. >> time for just one more question. david? >> david ray, the federal society. this is for the professor, but before that, quickly, maybe an applicable case that addresses whether or not the supreme court could ever involve itself in congress setting its own rules

might be the powell case, just to throw that out there. the question that was asked earlier that i didn't hear an answer to imagine that the supreme court does exactly what you predict, rules 9-0 in favor of canning, does that, then, potentially open up just an amazing cornucopia of challenges to just myriads of decisions made for decades and decades if the effect of the rulings is still felt by parties today? >> yeah, that's a great question, and it's -- it will be tricky for the court, so the first question is, on what grounds is the court going to dd? -- decide? i predict several justices decide on the narrowist ground which is pro forma sessions count. pro forma sessions count, and so as -- as these appointments, president obama's appointments, these are unprecedented.

this is the only time a president purported to appoint folks when the senate, itself, believed that it was in session. deciding on that ground cast into doubt only appointments none of the other thousand, and i predict at least several justices decide on that narrow ground. even as to the narrow ground, there are tricky remedial questions, so is it everything done since that date? i think there's some tricky questions. i think the mlrb can probably go back and retroactively ratify most of what they've done, but maybe not all. there might be some things they have to do again. i think that's a tricky set of questions. it'll be tricky for the mlrb to handle that. >> justice thomas writes a concurrence. >> yeah, i think that's right. >> i think that's right. >> other than that, thank you so much. i can tell for being here and for loving our constitution the way i do and for all our folks

listening out there, we are, we the people, and i agree there. >> all right. it's time now to break for lunch. there are restrooms downstairs on this floor, and on the sec floor. we're going up to the george m. yager conference center up the spiral staircase for lunch. let me, again, thank the federalist society and its practice groups for co-sponsoring this event today with the cato institute. we have a good relationship with our friends over at the federalist society, in most cases. [laughter] in any event, let's conclude with a warm round of applause for our speakers. [applause] 00 on c-span

q&a. >> "washington journal" continues. host: i want to introduce you to paul butler. he is a professor at georgetown university. term policer the state, what do you think. is the u.s. a police state? guest: a lot of communities with think so. we have one african american president in one million african-american people in prison. the u.s. has five percent of the worlds population and 25% of the world inmates. we do not need that many people in prison to keep us safe. there are a lot of people from

all over the political spectrum who have concerns. if you are a civil libertarian, you think the government has way too much power. if you are a fiscal conservative, you do not think it is cost effective to spend $25,000 per year, multiply that by the people in prison. think what you could do with that money. we could use it for health care or jobs training or to improve public schools. faith-based conservatives think that people deserve a second chance. when you look at how long the sentences are, way longer than any other country. a lot of us think that we can do this better. we could still be safe and spend less money and we could make our communities whole. host: how did we get to the point that we have that many people in prison? guest: it is politics, mainly. it does not have to do with the crime rate. when crime goes up, we lock more people up. when the crime rate goes down,

we lock more people out. when the crime rate stays the same, we lock more people up. of policyresult incentives for the police to arrest more folks. they get more money from the federal government. it is also about the war on drugs. we are seeing this in places like colorado and washington. treatment works for tribune -- drug users who become addicts. we really need to tax and regulate that. the war on drugs and these very harsh draconian sentences for every crime have gotten us into the state. host: it is mainly drug laws? guest: drug laws is one big component. if we started using treatment rather than punishment -- if we thought it was a public health issue and not an issue that we can arrest and punish our way out of, we would have more

responsible policies. we would still have a lot of people in prison. start being smart on crime, rather than tough on crime. ask ourselves whether the struck only in sentences for every sentencesrack only in for every crime -- draconian crime arefor every right. we do not need big brother looking over our shoulders. host: in your book, you write that what you're not saying is that prison should be abolished and people should not be held accountable. you do not believe that people -- you do not believe that. -- you do not believe the society needs a way to punish the bad guys. if someone did the unthinkable, killed my love one, i would kill

him myself. systemminal justice gives a monopoly on that kind of retribution. it is legal hate. i am a former prosecutor. i became a prosecutor because i was the nerdy kid who got my lunch money stolen when i was going to school in chicago. i did not like bullies. it, as i hopemake i do, i will try to make a difference for my community. the way that i thought i could make a difference was to go in from the inside. i knew the prosecutors had issues and worked a lot with police. the police were not always my friends. i thought i could go in as this undercover person and make a difference that way. maybe i could police a few people. i'm also concerned about people

who are victims of fraud. i remember that my mom was driving up to our house and some guys robbed her and her car. after that, she was afraid to go inside the house. home, theyshe got had to watch her go inside the house. when folks are concerned about criminal justice reform, about it is because we do care about victims. not just the people who are going to prison. we want to make it safer people in the streets of hilum -- harlem. the way to do that is to stop locking up so many people. when you lock up 2.5 million people, a lot of the folks who are there are kids. they are nonviolent drug offenders. they are not nemesis to society. when you lock someone up for five years with thugs, he comes

out worse. he is not better. start sending him to finishing school. the way to get our community safer is to stop these sentences and and the failed war on drugs. int: you write that to live a free countries is to tolerate a minimum level of risk. we need to stop being so afraid. what do you say to your mom if she cannot walk into her house? guest: i say do you feel safe in this area now? we're locking up all these people. if you ask kids in chicago, they would say no. they are scared to walk to school every morning. clearly, locking up so many people is the way that we have been dealing with this problem. it does not work. we have to look at what makes people at risk for committing violent crimes. we know a lot of this.

you cannot separate them from the schools. that is why we're are so delighted to hear the president and the secretary of education talking about the school to prison pipeline. they understand that there is a connection between segregated, inferior, failing schools. myth thathis urban planners look at the number of black boys in third grade or it on that basis, they determine how may prisons they will need in 20 years. that is not true. it is one of the lies that gives us the truth. you can look and see what kids are messing up. what kids are not doing well. if we can do interventions and get them the kind of services that they need, at an early age, we would not have so many folks in prison. so many folks like my mom are afraid to walk in their own neighborhoods. host: how did you get from the southside of chicago to yale,

harvard, prosecutor and defendant? guest: shout out to my mom. she is the most important reason. shout out to the jesuits. i teach at georgetown. i also went to a jesuits: chicago. that got me steered in the right way. there's not anything different about me. i ended up at yale. some of my brothers, who i grew up with, and it up in jail. not literal brothers. they were not different from maine. i got some lucky great. -- rakes. i had a mom who had gone to college. she knew the importance of education. i have the services that i need. the important thing is that if we could get other kids, including men and women in chicago who are in dire straits now, if we could get them the same quality education that i had, they could end up in

college and law school and here on c-span. host: harvard law. and then prosecutor. guest: i work for a judge for one year. thisw school, i was brother who no one thought would be a prosecutor. they would have predicted i would've worked for a civil rights organization or for legal aid. the 90's, you could see this massive human rights issue coming. by massive human rights issue, i mean how many young black men were being punched. i knew both sides. i became a prosecutor because i hated bullies. i also stopped being a prosecutor because i hated bullies. every day, i would set up in the courtroom and say, ladies and gentlemen, i am paul butler and i represent the united states. i would use that awesome power

to put black men in prison. in d c we call it a chocolate city. most of the jurors were african-american. these men and women would be met mewhen i said -- beam at when i said i represented the united states. like, you make us proud. i didn't know if i should lock up summoning people. especially when it did not seem to make a difference. i stopped being a prosecutor also because i hated bullies. i had all of this power, but i was using it against people who were basically pawns in a criminal justice system that had spun out of control. host: does the prosecutor side have too much power? guest: they have way too much power. there is a supreme court case in which the prosecutor offered a plea bargain to the sky.

it was a drug case. they said if you plead guilty, we will ask for five years. use your constitutional right to go to trial and lose, we will throw the book at yale and go for life in prison. the guy thought, i have a constitutional right to a jury trial. i am innocent and i will take my chances. he lost and got life in prison. he goes to the supreme court. there is no way this can be fair. they give me either five years or life. the supreme court says that is constitutional. that is what prop -- prosecutors do. that is why 97% of folks plead guilty. they are scared to go to trial. if they lose, the cost is too high. the u.s. has five percent of the world population. 25% of its prisoners. people in65% more u.s. prisons than in the u.s. military.

california has more prisoners than france, great britain, germany, japan -- in baltimore, the population is 615,000. 115,000 people were arrested and one year. you can be sentenced to life imprisonment for a nonviolent marijuana offense. by 2011, the number of americans under criminal justice supervision will be nearly 8 million. in the u.s., one new person or jail opens every week. news is thatod we're getting better. and the last couple of years, we are locking up your people. we are locking up your african americans. slow gradual decline. to where the other industrialized nations are, back to where we were, you have to

let hundreds of thousands of people out of prison. we could do that. likeve sane jurisdictions california and new york actually let folks out. decreasingelligently their prison populations. crime went down. again, this is a former prosecutor in me. i want folks to be safe. i want people to be secure. part of the way that we do that is to get smart on crime. host: one of the stories that he tells is about his own arrest. if you want to hear about that, you can pick up the book. you can read about his own arrest and how that affected him. that politics plays a role in who prosecutors charged with crimes. about thisyone knows crack cocaine sentencing disparity.

it used to be that you got the same punishment for one unit of crack cocaine that you got for 100 units of powder cocaine. chemically, they are indistinguishable. the way you make crack cocaine is to get powder and baking soda. you put it in the microwave. why is there so much more punishment for crack? not because it is more dangerous. we do not know that. the senate has this hearing -- the house had a hearing where a basketball player was drafted by the celtics. he died. they thought because he was black that it was cracked. the speaker of the house said i will make this my issue. folks should get more punishment for crack grid it should be 25-1. republican said it is our issue. 50-1.

it was bid up to 100-1. there were no hearings on whether it is more dangerous. there were no serious about the about the theories effects of this kind of law. that is how policies are made. host: paul butler is our guest. the phone numbers are on your screen, divided by political affiliation. if you would like to get in the conversation, dial in now. if you have experience with the u.s. justice system, we would like to hear from you. we began with a call from paul in mississippi. you are on the air. go ahead. caller: good morning. -- governorto say chris christie was probably bullied all of his life. not, there is a big thing

on getting rid of bullies in high school. why do we put up with bullies and the political system? host: that was paul in mississippi. what about bullies? guest: we have to be smart about the way that we deal with issues in high school. one concern now is that these safety threats to school -- we respond by putting police officers in schools. what used to be things that we got sent to the principal's office for, now you get arrested for. it is not everybody. it is mainly african-american kids and kids with disabilities. this is one of the things that the attorney general pointed out yesterday. when the only tool that you have -- when the only tool you have is arresting folks, every problem looks like

a crime. bullying is a big issue. we have to be careful about how we deal with folks. you have to understand that there are better ways than locking them up to deal with those issues. host: carlos is calling on the republican line. caller: hello. thank you. -- iconcerned about status know a young man who is graduating from college. they made a lot of noise and smoke a little grass. there was a single shot wendy to in the house. he cannot get a job for the rest of his life. if you get one arrest for something and you are innocent, you can never get a job. you can never get a situation with benefits. these 40 million people that do

not have benefits are felons. population15% of the who have no economic status. this comes from the slaughterhouse cases. -- they arecourt 100 years behind the times. thank you. host: paul butler. guest: one of the unfortunate things about locking so many people up is that when they come out, they have records. as a consequence of these records, sometimes they cannot vote. they cannot serve on juries. they cannot participate in civil society. they cannot even support themselves often. guy, but progressive if i was the manager at the local coffee house and i had the choice between hiring a fresh faced kid from junior college or some guy who had a 10 year gap

because he served time, i would be tempted to go with the college kid. we can imagine how difficult it is for folks coming out. especially when we put all of these legal disabilities. nate, jobs, and housing. if they get those services, they will get out of this system that we have. half of the folks who get out are going to be right back in jail. that is not good for anybody. host: a file clerk tweets in, what do you think of the current apartment of justice? are they working enough to change the system? guest: i am very excited by air colder. he has been one of the most active persons in the obama administration. he is one of the rare prosecutors who does not use his to send folksely

to prison for as long as he can. i am excited by some of his initiatives. including telling prosecutors to go easy on certain kinds of nonviolent drug cases. lots of attorney general's have and insisting on mr. crony plea bargains. they require their lawyers to throw the book at prosecutors. that weder understands do not always have a problem with too much crime. we have a problem with too much punishment. that in somes communities, it is not only punishment has done the same thing. we have all of these folks come especially women and kids, who do time on the outside. it is important and powerful to have a chief law enforcement officer who understands that we

have to have some integrity. even a bit of grace. on thes that sign department of justice that the government wins its case whenever justice is done. he understands that it is not always about conviction. sometimes doing justice is doing something other than just fighting for someone getting locked up. int: an individual tweets that the federal government and bill of rights are designed to protect the individual from government bullying. anyway to return to the? guest: the supreme court has -- that ball is in their court. i have a friend here in d.c. who is a police officer. let me tell you about this game that he plays. --n i go on a ride along it is called pick a car.

it is designed to show how much power he has. he says, pick any car you want, paul, and i will stop it. i will go for a lexus or a mercedes. he is a good cop. he only stops if he has a reason. but everybody -- you can go two --cks without committing in a traffic offense. if you are black, you get the pat down and spread eagle and the whole thing. but he is confident with that power because he uses it in a fairway. if we look at how the supreme court has interpreted the building rights, the fourth amendment, a lot of people would say that my friend, the power he has as a cop to stop anybody that you want is inconsistent with what the framers of the bill is right intended. -- the bill of rights intended.

the title ofiscuss the book. it is erica baidu saying to her druggie boyfriend about what are you going to do when they come for you? i guess i will see you in the next lifetime. it is this idea of being laid down in tracks about how the criminal justice system really works. it is ground-level reporting of what chuck d called the black cnn to make people safety -- safer without locking up so many folks.

when i started teaching criminal at the same time i was listening to hip-hop, which i grew up and i heard these them.sations between i wanted to get them talking to each other. that is one of the reasons i wrote this book. they say, you should write about what you know. i said, nobody understands criminal justice philosophy, how it really works in the street. that has been my experience as a prosecutor, and as a black man, like i do. that is why i wrote the book. host: here is a tweet. guest: there are some crimes that african-americans commit disproportionately, and it is a big issue.

makeve to work on ways to folks who are at risk of violent appropriates have interventions. i'm not one of these folks who says that nobody, including black people,, belongs in prison. i'm very concerned about victims. segregated in this country. for white people, you are more likely to be victimized by a white person. but there are drug laws that are law enforcement against african-americans. i teach on college campuses. i know that lots of kids out there are indulging. and according to the government, the national institute of health, blackstone use drugs more than anybody else. but if you go down the street to the department of justice asked

blacks don't use drugs more than anybody else. but if you go down to the street to the department of justice, they are 60% of the people that do the time. been wageddrugs has in in unfair and biased way. host: the report for december has just come out. the unemployment rate has dropped to 6.7%. 74,000 jobs added in the month of december. can you correlate prison incarceration and crimes with economics? guest: it is not a perfect correlation. almost always, the african- american unemployment rate is about twice that of the overall rate. but obviously, there are connections. folks think that if you listen to some of those rappers, they --nk you are going to be you're going to have all those

gold chains. drugs,ail sellers of they make about the minimum wage, and it is dangerous work. for those works that -- those folks that get jobs that pay living wages, they would love to get off the street. you don't have to have a college degree. you don't have to have gone to an ivy league school to get out of risk of going to prison. all you have to do is graduate from high school. some extremely important intervention here, to have ways to help our young men and women graduate from high school. if they get that high school degree, their chances of getting locked up dramatically decrease. call for professor paul butler comes from becky and stan, michigan. -- in stanton, michigan. caller: good morning.

this is an issue that has been bothering me for years and years. and i'myears old now really thankful that things are a little better, but they are not better enough. personally -- not a lot, you know, my daughter has dated some black boys. andways make them sit down answer all my silly questions. [laughs] i asked them first. what do you ask them? caller: i ask them about issues like this. you know, is it true that you get pulled over just for being black? and the one boy told me that when he goes to pick up a date, .he drives he doesn't dare drive, because

he got stopped once. he didn't have anything in the .ar or, you know these are the same people that have just said, officer, can you please tell it what i've done, and they get accused of harassing a policeman. host: i think we have enough to work with there. professor butler? guest: so many young black men have stories like that. pre-much, everyone -- pretty much, everyone. and in some areas like new york city, it is even worse. there has been a lot of 10 -- attention paid to the stop and frisk policy by police here. the effect on young black and latino men of the constant negative attention by police is corrosive. it ends up making a lot of folks literally hate the police.

they have some of the most dangerous jobs in the world. you could not pay me a million dollars to do what they do, because i'm not that brave. but we really don't want folks hating the members of the community we are supposed to protect -- who are supposed to protect and serve. but the police grab you and touch her body, and it makes you feel small, like you have no --ht, like the government and it is not only a human rights issue, but it is a public safety issue. they go from one place to another place talking to folks. if you are scared you're going to be stopped for no reason you are not likely to cooperate with the police.

you are not going to want to help them because you are scared of them and you really don't like them. when we asked elyse to be respectful of citizens and to treat them nicer, and not to stop people just because -- when we asked elyse to be respectful of citizens and to treat them nicer, and not to stop evil just because you are black, that helps to make communities safer. hans in massachusetts. good morning. caller: thank you for taking my call. congratulations on the book. i've actually been using it in the last couple of years in an economics course that i teach. guest: thank you. host: explain that. the comments that have been made, let's see if we can deepen them.

in areas like detroit and cleveland and elsewhere, the economic conditions are such that it is depression like circumstances, 30% unemployment. those conditions are playing into the criminal behavior that we have a cousin of the lack of opportunities. and professor butler mentioned education is important. although we can appreciate attorney general holder and what he understands and so on and so , we are still going to have the same problems emerge over and over. and as to your books subtitle, you already interest -- addressed it in an interesting talk about you could

your experience, especially jury notification. the economic piece is so important. in new york city, they have these blocks that are called million-dollar blocks, because if you look at just how much money the government is spending on this one block to lock folks up, it's $1 million. a lot of people say, what if we spend that money on job training, on improving schools, to provide people with treatment when they have problems with drugs? would not go a lot further than just spending the money to lock people up? urban economics, absolutely. because there is an economic cost, a huge cost, to locking up 2.5 million people come a big opportunity cost. i do have a chapter in the book about this concept called and

jury notification. that is an idea that i learned about as a prosecutor from the jurors and the district of columbia. most of the jurors at this time were african-american, and i got schooled by the experienced prosecutors when i was a rookie. if i had a drug case and the defendant was a young black man and it was a nonviolent drug case, the jurors were not going to send that boy to jail, no matter how well i prove my case. the reason was, they didn't want to send another black man to prison. if you go to superior court, criminal court in d.c. today, just like back then, you would think that white people don't commit crimes, why people don't use drugs, they don't get into fights, they don't steal from their offices. because they are utterly absent from criminal court in d.c. and a lot of the jurors knew that is not really how the world works. the way they were protesting that was when he was a nonviolent, victimless crime,

like a drug offense, sometimes they would quit. a law professor, that was the first have wanted to study. they found out that what were doing acquitting people, because they didn't like the law or thought that the law was unfairly applied, that is actually a constitutional power that jurors have. it was part of this system of checks and balances that the framers set up. they were scared to death of a government that had gotten too powerful, too out of control. based on their experience with the british crown. they wanted ordinary student citizens toinary have a say about whether someone gets locked up. controversial,he provocative chapter of the book. i want to let folks know what i think about this idea. for some nonviolent drug offenders, even if you think they are guilty, you can use

your power to just say no to this failed war on drugs. you don't have to lock up everybody just because the prosecutor tells you you do. at the metro stop where jurors get off, there is a song that can liesyou think you locking up too many people for nonviolent offenses, for drug crimes, then vote no if you are a juror. i am a former prosecutor and a lot of people don't like that. but i think what of the reasons is that -- reasons that it's ok is that jurors have good sense. that a jury would acquit a murderer or rapist if they thought that he did it. reasonable doubt, they would acquit. but for lots of these young people that are getting caught up in his criminal justice system for making dumb mistakes, sometimes jurors are willing to

give them a second chance. host: next call for paul butler comes from george in baltimore. george, good morning. morning, professor. i was calling because earlier caseere talking about the of being arrested in baltimore. i live in baltimore. you've probably noticed that some people don't ever really leave. some people don't go to different states, different cities. all they know is what they see here. what you are talking about, about police things, things of that nature, a lot of times here, people fear the police, or they have a certain distaste for and that is because of the powers that you were saying given to your friend, they just abuse it. you lock me up today for just hanging out with my friends.

a call at loring. you can stand on the corner of a neighborhood. -- they call it loitering. you can stand on the corner of a neighborhood. and then you build up a record and then i come before someone like you and they try to give me three years, four years. you have to just take it. you don't have money to really fight the case. you get a public defender who will not really support you like you need. takehen you have to either this two years, or take probation, which is still a conviction. it is crazy here in baltimore. george, are you talking from personal experience? , and: personal experiences friends. i've been arrested for things -- like loitering. i got arrested for trespassing in my neighborhood just because it was a gated community. it was not a gated community

that i had to enter a password. i walked through. i parked my car and walked when i came back through i got arrested. places like this where there -- not in new york or california. our small voices need to be heard. host: george, thank you. paul butler e guest: if you watch -- paul butler? guest: if you watch shows like see his, you can experience. i heard the pain in that young man's voice. one of the ways you can make them safe is to have a good relationship with the police. one of the earlier collars mentioned the concern about snitching that we here in hip- hop. , thatctually started

movement against snitching, started in baltimore. it is this issue of harming people that get arrested. the police were going to folks and because people weren't willing to talk to them voluntarily, they were saying, if you help me make a case against her neighbor, then i'm going to give you a break in your case. if you tell me what joe is doing, then maybe for your case, you will not have to serve some much time. and that was an incentive for a lot of folks to lie about your neighbors. every family in baltimore has someone who's caught up in the system. one of the concerns about snitching is that it leads to inaccurate testimony. o'neill is calling from brooklyn. go ahead. .aller: good morning the law became interesting to me

in new york. before i went to africa, i was arrested twice. and since then, i am in the eastern district of new york. if not the constitution, what do african people go by ? because the dred scott case that i've been reading says that the constitution doesn't apply to africans. i am going to go buy your book. what i saw in africa, i know it is not just an american issue. it is a global issue.

i'm pretty sure you have first- hand experience in terms of your prosecution work and you came out of that to educate those that need assistance. ist: did you say your case pro se? se, currentlyro in the eastern district of new york. doesn'that means he have a lawyer. i cannot give legal advice other than to say it is always a good idea to have a lawyer. if it is a criminal case, you have the constitutional right to a lawyer. that dredould know scott has been overruled by the supreme court. constitution absolutely applies to african-americans, including the fourth american -- fourth amendment that says they cannot be stopped for no reason. and the fifth -- the sixth amendment, which says that if

you cannot afford a lawyer, the government will provide a lawyer for you in a criminal case. stoppedt if he has been for stop and frisk or for search, is that a criminal case? guest: no, that is how the police make criminal cases. literally 99% of folks who get especially young black men in new york, the police are not able to make a case. they have not committed any crime. if he is concerned about that, there is a lot of effort underway to address that issue. there is a civil case in new that case,s in including a young black medical student who had been stopped many times by the police for no reason. and they won. that is good news. the united states constitution absolutely applies to african-

americans. he is certainly entitled to bring his case for individual relief, but there is also an important community social justice movement to make the police more accountable. host: you are writing a second book. guest: i am. one of the things i'm looking at is his relationship between the police and black masculinity. part of what stop and frisk was about was degradation. it was almost about sexual harassment if you look at the way folks were touched. a lot of people experience it as an invasion of your body. black masculinity is something some folks find threatening in the united states. the caller is right, there are some crimes that african- american men do commit disproportionately, especially violent crimes. ist my next book is about about black masculinity and its relationship to criminal justice. host: david, inglewood, new jersey, you're on the line with

georgetown professor, paul butler. caller: i have two questions in one quick statement. is, it is so easy for people to talk about -- like the professor talking about all of these people being let go. i grew up in chicago right near saint ignatius. i grew up on the south side of chicago. it is so easy for him to talk about letting these people out of jail, but they are not going .o go into his neighborhood i think he would have a different view if they were right around the corner from him. the second thing is, part of the , people like him, liberals, never want people to so they arechools, all against school vouchers. which would give people the opportunity to go to the kind of school that he went to. i'm very familiar with that

school. my last is a statement. problem of the whole with black crime and the problems and economic woes is the breakdown of the family. down andally broken there are no fathers in these households, even where i grew up , and i'm 58 years old. everybody, from the worst people in the neighborhood to the snowe who were like driven , no fathers in the house. and now there are no fathers in his household and the liberals keep ignoring the 800 pound gorilla in the room. host: david, are you african- american? caller: yes. guest: it is not like the fathers disappeared, they went somewhere. and a lot of them went to prison.

it is true if you have a two parent household, you're much less likely to go to prison than if you only have one parent in the house. that is another reason why we have to be smarter on crime and think carefully about whether it makes sense to lock up all of these people who are parents. about 60% of people in prison, men and women, do have kids. one of the things that makes kids at risk of going to prison themselves is having a parent in prison. it is a vicious cycle, and the caller is absolutely right that schools make a difference. we want every kid to have the opportunity to go to a great school, like i went to, and like david went to. and again, he's right that it is all related. when we talk about human rights issues and civil rights issues, we are also talking about prison stoptions, ways to have to so many people making it to prison. a lot of this is through schools.

is aboutargue that it privatizing education, by vouchers, but all of that is outside my area of expertise. i do know that great schools will present -- prevent many kids from ending up in jail. aheadshawn, please go with your question or comment for paul butler. caller: i am from baltimore, maryland. i'm a recovering addict. forve abstain from drugs the past 20 years, and i have found it difficult to navigate my way through corporate society . i have worked for ups for 15 years. i wanted to speak to you about how african-americans commit more crimes. based on the statistics that were reported. during my time, i was trying to

create a record for african american employees as opposed to providing them with no incidents. it created an easier outlet to fire or get rid of these employees. my question is, in today's society, how do you create an environment where you can actually get these men back in? we have a group here in baltimore, called mobile men of action, and we are trying to create some kind of liaison with the baltimore government to help ex offenders get back into work and create economic development. i'm also an economic development student. shawn sound like a real success story. he is someone who had did his time -- who did his time and

came out and he was actually able to improve his life. more power to you, sean. in terms of policies that help people, other folks have those outcomes. folks can get jobs when they come out. and that is something where the president can make a difference. are thinking about african- american unemployment now, how it is persistently twice what white and employment is. one big reason for that is that lots of african-american folks have records. if you are targeted in your incentives to employers to hire people to take a chance -- and it is not much of a chance, because the people have a good job with a living wage, they will be doing the right thing. they will be motivated, like that caller is, to turn around their lives. we hope in this recovery that people like sean are not left out. interestedld be very

-- thomas jefferson eight tweets this in. i will be very interested in hearing your opinion of the trayvon martin case. guest: i was disappointed in the verdict, i said i think -- as i think a lot of of african americans were. the idea is that there could be this big guy was basically stocking this skinny black teenager who doesn't have a this skinnylking black teenager who doesn't have a weapon. the big guy has begun. they get into it -- has a gun. they get into a fight and he gets off on self-defense. i think that made a lot of folks have doubts about our criminal justice system and whether it really respectful lives of all of our citizens. respects the lives of all of our citizens. one of your callers engine earlier the dred scott case, that the black man has no rights that the white man is bound to respect.