. in the second so we deal with situations where congress has chosen to remain silent. the distribution of power. in this congressional indifference or acquiescence and may be seen to invite independent measures of presidential responsibility. the motive, analysis it often depends upon the imperatives of events. zone three involves situations where the pres. president acts in the face of implicit rejection.

the power -- it can only be sustained if it falls within an exclusive exercise of power. enacting what later became the taft-hartley act. considered a version that would have authorized the president to seize domestic industries but the version ultimately enacted permitted to such language. further because further, because seizing american industries cannot be regarded as a preclusive power the seizure was constitutionally innocent. if so what does it yanks

down steel tell us? at first blush it seems like the options fallen herself. the unilateral cancellation of programs all explicitly prohibited by statute and certainly the powers to tax and spend our exclusive legislative powers. you're in town and its progeny teachers when multiple statutes bear upon the president's powers the scope of authority cannot be deemed by looking at a single law but must require careful consideration. i contend that viewed collectively the situation faced by the president would not fall within the three zones because each of the

three zones contemplate coherent congressional instructions. it can implicitly create the mediate the exercise of power. the debt ceiling standoff the president will be paradoxically faced with instructions. you must read these programs it would be absolutely impossible to comply. the president must choose allowed to break in order to save the other two two, and i would suggest this requires expensive taxonomy to include a fourth zone of power to deal with situations that have not happened before.

so what standards should apply in this? justice jackson himself acknowledged congressional acquiescence invites independent measures of presidential responsibility. this line of reasoning only applies in the zone of twilight. such a command comes without congressional discretion. when congress has issued inconsistent contradictory commands and has steadfastly refused to clarify or prioritize which command should precede the other. in my view that act

acquiescence invites independent measures on presidential responsibility. constitutionally which commands must be sacrificed. basically they assert the president is faced with this choice. must choose one of the three laws to sacrifice. i do not arise easily and argue that this sort of abdication is an existential threat to the long-term stability of our democracy. i wish i had more time to talk about it. and as the maxim goes

anything follows from a contradiction. having said that, i am not here suggesting the president should unilaterally raise taxes. i think that would be an act of political suicide. the application has authorized that extreme action. to to conclude i will leave you with words of warning. thinking of the crisis faced in the korean war, the power to legislate for emergencies belongs in the hands of congress. by engaging in standoffs

congress has allowed core legislative power to slip from its grasp by forcing the president to confront an emergency of congress is on creation. thank you. back next we have professor william marshall. >> thank you for coming out today. i actually thought it would be canceled. i read in the paper that mitch mcconnell has decided he wants to work with the president. so our era of congressional dysfunction is over.

we can get together and move on. the interesting thing about presidential power is people's ideas evolve and change. with presidential power you can pick the exact date where he changes. inauguration day a lot of people loved presidential power and a lot of people really hated it. and that is the kind of background we have to deal with when thinking about pres. obama's exercise of unilateral executive action. i happen to support immigration reform strongly and a lot of the other substantive goals, but

imagine a republican president who cannot get through a repeal of a capital gains tax and decides unilaterally to not enforce it. he makes the announcement that no one has to file a scheduled the end don't have to declare money from capital gains. would that be constitutional? we have so many other tax issues to enforce. so let's think abou something like that as background when we talk about it unilateral presidential action and the question of a part of this panel congressional dysfunction. what is congressional dysfunction can? what does that mean? maybe i am thinking back to seventh grade, but i thought the design of the constitution was to create

dysfunction, checks on things happening too quickly, friction, quick friction, the things should not happen to easily or quickly. if we if we take a look at history, from the very first congress opposition was immediately raised. martin van buren's administration buren's administration was met with folks who started off by saying we need to do everything that we can to make this presidency fail. this particular congress is one of the most irresponsible and history. mitch mcconnell starts off by saying he we will do everything imaginable to make sure the presidential agenda was not passed.

let's come to compromise when there was no strategy. but all of that as background does that mean congress did anything wrong? there is a reason why an out of the administration party would want to do everything to obstruct the party in power because they no the party in power will build on successes for the next election whether it is a reelection or to increase power, congressional authority or elect a new president. this is this is called the permanent campaign, the phenomenon we face are where each party consistently looks forward to the next election. the idea that an out of power party we will do everything that they can

take on some breakdown should not be unexpected. inappropriate? why should that party try to help the current party retain power? finally, there is another particular example out of place to suggest congress is trying to block an agenda because i thought legislation was supposedly the province of the congress first and not the president. there is a reversal. that that is a little bit of some of the reasons i am skeptical as to this notion that their can even be something called congressional dysfunction. acting somehow unconstitutionally when it does not enact or follow through.

there are areas i would support giving the president power. therefore when the president is elected news that he is invested with a power regional officers do not have david pozen has a brilliant article out saying that presidency should have the power of self-help. the president should be able to step in and transport congress is doing to be able to accomplish his agenda. in the short moments i have left, do we we want to add to presidential power? the president has already amassed five crazy power by a number of circumstances that is just a natural

evolution of the office. that has invested the power. the second is media. the focus is often on the white house because it is easier to take a look at one person as the embellishment of the nation as a whole. more more information at his or her disposal than the congress. enormous resources of the administrative state. the congress cannot even put other kind of limits on the president's ability to manage the estates for the political purposes. i will come back to this. there is a one-way ratchet. unless you deal with presidential power subject to judicial review that is

not often the case. often it depends upon what previous presidents have done which just keeps on increasing. whether we need need to create and test a presidency with more power than it has seems to be pretty controversial. what are the harms of suggesting th the president has extraordinary power? to say that when congress acts to obstruct the president should have additional power to overcome that. that is what it is all about. paul wellstone was going to do everything that he could before he died in a plane crash to stop the iraqi war.

that would have been congressional dysfunction or would have led to it that he succeeded. does that make it a improper, or is it exactly think we want to congress to do? second the interesting thing about congressional dysfunction and using that as a reason to advance presidential power actually encourages the president to short-circuit the political system. instead of going into all of the places that the states with which there is opposition that he can just say i need to take these doors on my own.

think about the predicaments. if congress opposes to strongly he can say at this. i can now just circumvent their opposition or if congress says, okay, i will give you some of what you want to do what i want to curb your enforcement power or authority the president can sign the law subject to a signing statement. this is a centering of continued power into the presidency that we should all be concerned about. we have we have a choice. one is between a dysfunctional federal government and the second is increased centralized power.

i think the structure of the constitution suggested that we should live with some of the former, the dysfunction in order to prevent too much power. power. let me go back to my beginning and talk about senator mcconnell and speaker bader. times change. adjusting constitutional law to deal with four or six years of history is not necessarily the best way to construct a constitutional law. thank you. [applauding] >> we have thousands of superman and associate professor at fort university school of law.

>> i will switch it up here. thank you. i will be talking about the presidents recently enacted programs. but. but i will be talking about it from a slightly different frame. unlike bill and chad i will i will not be talking about the horizontal separation of powers. i will not be thinking about a vertical separation of powers between the state and federal government the kind of things that, when we talk about state and local immigration enforcement policies. i will try a different frame.

think about vertical agency. not only from the top the pres. and cabinet officials but from the bottom and the middle and that these relationships provide an important set of checks and balances within the agency can also provide normative support for maybe not all but certainly some of the types of presidential actions we are talking about on this panel today. there are two core features of this kind of vertical agency relationships, what i call experimentation. not discretion at the top, the kind of discretion that lower-level officials with the cbp committee executive

office of immigration review, a day today enforcement. they do that. but instituting removal out of respect for the harms that the protection would cause to a particular individual where equities are especially strong and can do so for reasons that would eventually become policy bases across the board in and of themselves for categories of individuals. enforcement decisions are made with policy rationales in mind. when this happens time after time those policy choices

can begin to percolate within the agency and later become reflected in the kind of across-the-board directive we are talking about today in a number of different kind of ways. i will talk about of one or two. the first involves a situation that was space bar numerous binational same-sex couples in which you have a a us citizen and foreign national in a same-sex relationship with a worn-out eligible for traditional family-based family -based immigration benefits, kind that many routinely use. and the reason for this is the numerous states that do not reflect the rights of gay and lesbian couples to marry but for many years the issue of section three of the defense of marriage act. tiffany numerous couples from being able to use the

ordinary adjustment process. the position of the obama administration for many years while it was not defending the constitutionality was to do nothing. you can think of this as a horizontal issue. we will embarrass the obama administration. these couples as we see in the context of dreamers with respect to talk about. that would be a horizontal way of thinking about it. the vertical dimension you try to persuade individual officers to exercise favorable discretion. in removal cases you try to get an immigration judge to close or get a long continuance or maybe get a dhs attorney to drop the preceding or go to a us cia

as to prevent a removal proceeding. this actually worked. lawyers can do this where government trial attorneys agreed to exercise discretion by consenting to administrative disclosure. us benefit administrators agreed to defer action in cases in which the foreign national partner was not even in removal proceedings that. immigration judges willing to do the same. of one piece at a a time and slow going. while the larger lawsuits or still in their briefing we

were beginning to see a kind of culture time time after time administrative common-law decision-making among agency bureaucrats. eventually after enough cases have been decided we saw a directive directing lower-level officers to grant prosecutorial discretions long-term same-sex committed couples. that is the first feature. there are other examples of this as well. first i want to talk about the second feature, the separated and overlapping jurisdictions among the subunits of the executive branch. a lot of jurisdictional overlap. a foreign national may be caught up in a issue that you may not be able to get

solved by one agency. these are the kinds of internal checks and balances i am interested in. exercising a form of oversight. we saw this because often times is a dhs attorney was unwilling the immigration judge would agree to it. another example as to do with him to thesis in which the department of state and the legacy both share jurisdiction over interpreting the actual requirements developing interpretations and told one went out. another example has to do with mandatory detention program which light level officers refuse to comply with the idea should

mandatorily comply. these two features, positive redundancies within the agency helps us to see the change not just from te top but from the bottom as well and helps contextualize and provide normative support for some of the nd of broader prosecutorial discretion programs are talking about today. presidential presidential action is not about starting from scratch but rather trying to make policy that reflects what is already a long-term agen practice administrative common-law. this rectifies inconsistent behavior among various line officers .-dot trat like cases and like ways. replacing an absent judicial review because these

enforcement provisions. often different from the conventional story administrative constitutional style. the literature is the president as a designer in chief. empowering empowering those agencies to take on or different and greater action particular kind of lower-level agency discretionary power is hard to do that because it was not reported. it's often the attorneys on the ground to have the most amount of information. i am not saying the horizontal approach about the limits of presidential

power and the fit between the two is not the right starting., but i don't think it is the only frame. it is the interplay that can bring this important additional lens to the discussion to complement the frames we use. thank you. [applauding] >> thank you, professor. >> what i would like to do is open this session to questions and answers. they have given us rich food for thought and points of disagreement. i would start by posing one or two questions, and you are welcome to approach the microphone. i ask if you could begin by

identifying yourself by name and affiliation. my first question hearkens back to something that professor merkel said if you use on presidential power might change on inauguration day. to what extent procedural concerns are in fact, driven by substantive disagreements over controversial areas like immigration, same-sex marriage, and the budget. >> the first thing i say is there is a misconception among the public and the bar in general.

the body precedent that governs the relationship is promulgated by the court. very small fraction the president governs the different branches. the overwhelming majority comes from what has happened in the past and how tomorrow, in, in madison's words how the constitution liquidated. i share bills concerns and that is one of the things of my paper. in fact, power has accrued in the presidency that was never meant to be there. background suggests otherwise. the first ever unilateral presidential invitation of the united states.

i would, i guess, and this is not a party affiliation. much more support policy wise but i worry very much that packs tht he may feel pressured to take may set precedents that future presidents would use. over time they may like the war power and how we engage in war might become the norm. >> i just want to add that this is actually -- we need

to be careful in terms of talking about separation of powers with too broad a brush. immigration law is exceptional in a lot of ways and i agree with a lot of the points that have been made. we need to be careful and not just change our separation of powers. when you look deeper into immigration law congress has given the president of a lot of discretion to enforce immigration law. we need to be careful because it may be in some substantive areas what the president is doing is not really extending presidential power as much as it might seem. >> additionally in the unique context of immigration, immigration, of the policies in general, you

held up his most recent memo i i am forgetting the exac phrase, but it is ne in a series of memoranda about exercisg vorable diretion. ths srgenhas obolyee me. sigy diert vehe aed ft tesofc pective i disagree that there is nothing new. if we want to focus on the ordinary we should recognize these look like the ones that have been issued his 70s and 80s. >> may have to lean over.

>> lets think of the filibuster. the democrats to not get rid of the filibuster. the pit around. they are not even embarrassed about it. one question i have is, did the president of the what he eventually did? and then when he could not get it through said well maybe we could just do it by unilateral executive action after all. >> i guess i will answer that first.

i feel like you said that your open question. first you try to use the ordinary mechanisms. congress will pass legislation. by referencing the article on self-help uk for us that argument. there are measures that can be the appropriate remedy for that kind of core constitutional dysfunction. >> i have a microphone down here. be careful. hopefully no one will get hurt. immigration law is complicated. the possibility that perhaps the president did not fully realize his own power when it came to immigration law. >> i i would like to invite anyone who would like to ask

questions first, on bill's point, in fairness to the president, he said that as a political matter. i urge everyone to read the opinion. it raises much more difficult queions if you start to think about the possibility the president exercises authority not to deport anybody. he simply did not have the

manpower and the money to do anything else. what should we think about these situations of presidential aggrandizement of power when in almost every one of these cases no one has standing to take the president to court and how should that have us think about aggrandizing presidential power as opposed to other situations someone could take them to court. >> the problem i dealt with, there is a possibility of judicial review, but that would be a long road. access to the ceiling. the bond would be radioactive. redemption occurs and there may be litigation and bond holders would have standing.

if the president raised taxes i am sure there would be a line of lawsuits. we clinton versus the city of new york. the the recipient of the program would litigate and have standing. the bigger problem with the my personal recommendation will not pick winners nd losers. it might be a long road. [inaudible question] >> part of the problem, it's a plausible argument

perfectly possible argument that it is not legal on the other side. i agree that the opinion is tempered, but i do think that the question you raise is a real one. what kind of checks are their. and that i think is a problem with presidential power and having the justice department be the final arbiter of that might work in some instances and might not work in others. some of those kinds of issues. >> next question.

>> a question from the perspective of those who do not no a lot about immigration law how is this different from the normal exercise whether he is within the boundaries of the normal exercise of delegated power. thinking of this as analogous to the epa exercise on climate change after congress refuse to pass legislation. it seemed reasonable to infer this was within the agency's power to decide the delegated power to act. >> i will just say, it is

not exactly like that. the founding constitutional law cases in immigration law, supreme court talks about a plumber a powerful lobbying to the the political branches over immigration law. as i alluded to in my talk trying to figure out when you talk about a plenary power how you divide that up. because immigration could be an issue of immigration tied to sovereignty, this ultra strong power. in the power you sort of necessarily need to include that discussion which would

be different from other areas. >> there are a number of people in this room right about and have addressed this. i would refer you to the opinion that has been mentioned. some of the articles and online pieces. with sweet doctrine. i i didn't know about the relationships with lower-level. but it is another way of not just looking at the head-to-head combat between

congress and the president. something that has long-term expertise built into it by the day-to-day activity. there is not a lot of judicial opinion upon this. >> thank you. i have also been sitting back in this energy law cluster trying to think about parallels. i wonder if we -- in the broader scheme of the symposium which is about executive authority which expands from what you are talking about the delegated authority under statute and this additional layer but a push and pull going on where speed and local government on both sides of the issue.

massachusetts, epa undercutting the clean air act on climate change actually has state attorney general's on both sides pushing. i guess what i would ask -- and it may not hold as well in the plenary power context, but if you take the broader context across a number of substantive issues , to what extent does that leave the concerns being raised not so much for the immigration context but offers. because there is so much push and pull going on among the three branches and different levels of government perhaps that helps to balance out over time and prevents the seismic shifting.

>> had me until the end. what it does by repeating am repeating what i said before. talking about how the administration can use the military is safe for political purposes is becoming a blueprint. becoming more and more sophisticated with their own political purposes and and i do not see congress. an effective check. >> thank you. our next question. >> this is directed primarily at chad. like the framework and you are clearly right that when congress is equivocal that as to decrease power.

i want to push. the fourth zone looks like a variation of the first. the bus process takes some completely different argument. maybe we can make a constitutional argument. the less violent. the president president raising taxes makes us insane. >> i think so.

i do not see the constitution as limiting it so much from a practical standpoint. ignore the death ceiling because the other two options involve picking winners and losers. it will be hard without being accused of having political bias. if you raise taxes, taxes, where you raise them who you impose them on. you do the least violence by unilaterally raising the ceiling. in terms of lack of good standards and rules to govern what happens i think that same criticism applied to. there is not the imperative of events.

justice jackson is a hero of mine but but i wonder if he got that out of a fortune cookie. what i would say in this situation is that congress has the -- the president's discretion is limited by what congress has already ne. if he did see politically unthinkable and unilaterally raise taxes and cannot do it beyond what was minimally necessary to pay the tab. the constitution creates priorities. judicial salaries cannot be cut. payments required to be made good on takings cannot be cut. beyond that congress has issued contradictory instructions.

the only inference you could draw is, is, you have to figure this out. and the last thing -- and i am probably going over my time. when you are dealing with this it simultaneously resides in all three at the same time. when congress gives the president a command, a command, by definition carries with it all authority necessary. well, in an appropriation statute how can that not include lawful access of the funds necessary to appropriate ad paid bill. in the sense congress has implicitly authorized the president to access funds to pay for these things but they have also negated the act. it occurs simultaneously.

you know i think the answer to that, the problem, the situation is basically one where congress needs to clean up its act. i am probably taking too much time. >> thank you. our next question. >> it follows what you were saying. i just wanted to.out quickly , if you are talking about spending money there is no judicial review. i think before you jump to the conclusion you want to think about the fact it has been pretty much an understanding that there is no power allowed. a long

common and state law tradition. i want to push -- my main question, and you started answering it. i thought it is the most overrated opinion for the exact reason you said. the twilight zone well that it we will be politics and practicalities. it seems to me what he is saying is it is a political question and the court should not get involved. i am wondering if involved. i am wondering if you could say a similar thing and zone for. the the resident can be free to pick whatever he wants to do. again, that is basically -- jackson said it is a political question, not a legal question. >> we have an opinion from the court, a unanimous one involving situations. what i would say from a normative standpoint is the consequence of default would

be calamitous. it will it we will be a situation that the court cannot resolve and this would be kindling for trashcan fire skipping is warm at night. you know, it seems like the -- what we will have to happen, the president will have to act quickly and to something, and it will probably be -- it probably will not be a court therapies were limited it will be the next election. >> we have about ten minutes left. >> you are fine. >> richard leedy, university of kansas. i was i was interested that none of the people in all of the discussion of congressional dysfunction, no one talked about congressional dysfunction.

it seems to be a pretty significant connection between what happens and what congress can get away with doing or not doing. i would be interested in your comment on the extent to which the problems we find ourselves in be traced back to the inability of the electorate or the electoral dysfunction that does not discipline behavior by anybody. thanks. ..

>> i know that this point is probably controversial, but the real problem that we have in those systems, and we really compare our system to those who have adopted a constitution similar to ours, again they are the same on paper but liquidated

differently in practice, but i think that the big difference is that there is one that is coming to life now in that those countries have multiple existence. and so when you have multiple parties in of extremist parties and in our system, we have liquidated historically where you almost had to parties, one ride, one left they are both very close to the middle in the area of disagreement and anyone viewed, the disagreement between bill clinton and bob dole, which seems so substantial back in the '90s wasn't really that great. what we are looking at now with the tea party phenomenon, i think, is a situation where we might be getting extremist tight partisan in to the system, and i have some fear that perhaps we are sort of breaking down into a multiparty system. historically our type of government has a function that has and function well in those systems and this might be the result of that and i don't know.

on the other hand this is entirely responsible looking at something like deferred action for childhood arrival, by nature this is not the electorate the dreamers don't though, but the mobilization not just among themselves but also mobilizing individual members of congress to push the administration on their behalf, you could say that it was a failure and that the dream act and pass after many tries, but it's a huge success that they were able to mobilize and away to bring about this presidential policy and not just mobilize as a single contained protest movement but mobilize by pulling all kinds of interesting and important things that are part of the process. so in that sense it is not about electoral dysfunction but learning from the very successful case study of well functioning social movements.

>> it is all about electoral electoral dysfunction, at least a part of it is come part of that is increased because of the rise in media and because of campaign finance and because of the situation that that leads to. but i think the that we are shortsighted or saying that this is going to last forever, things do change in political climates do change. >> i have a foundational question. let's assume that they put in place a policy that is the law of the land that declares this

is a policy. the president doesn't like it, so the president and he prefers this or put in place a separate policy. and he does so on a programmatic basic. not for reasons typically attendant to prosecutorial discretion and adminitrative finance and things of that sort. and he really does it because he disagrees with that policy that is in place and my question is a simple one. does the purpose that underlies the president's action there on the constitutionality of that action, or is it relevant or is it determinative? >> i guess that i will just say that from my perspective the immigration situation doesn't share the same foundation as a hypothetical that you just propose because what congress has said is here are some guidelines and oh, by the way discretion written into the

statute a million times and then here we are we will only give you enough money to deport a small percentage of the number of people who are here without permission. so in this context i don't think you need to get to the purpose because i think it's just fundamentally a different framework. >> your question in a sense came out great because in a way the other fame of a number of the earlier questions of folks were asking about this standard chevron, you asked the kind of foundational question about constitutional enforcement and i want to try to be responsive to this, but i also agree that it's hard to think about that question so much in the abstract, which i guess answers your question by saying that the purpose may matter.

as joe just said there are discretions built into the soul of the place. there are massive constraints as we know and there is a prosecutorial arm of the executive branch that has resources o deport about 4% of those at effectuate importable. but there is a framework for thinking about this. there is a whole debate about presidential -- and within that functionalist frame, one of the questions you can contrast this, if you will end it was not defended with the idea that if court to have the final say. as we established, the court doesn't have the final say, but that is a better frame to some degree for thinking about this horizontally, trying to ask nonenforcement and i think that

the underlying purpose for policy reasons really does matter and really is part of that broader functionalist analysis. >> go ahead. >> with the efficiency, one ick question and answer. >> part of the answer the question they come for the president has refused to enforce the congressional statute and we have a sending of a political question that has been ruled out. they say we have passed the statute and so it matters and it is not a question of money or anything else. we can't make you do it. we will find out what they said. >> thank you. we have a 15 minute break. thank you and please join me in thanking our panelists for this discussion.

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