project with enormous respect for how close the country was falling apart. and how much different people different opinions struggle to try and hold it together, how remarkable the document was that was written in philadelphia and, by how different it looked to them that it looks to us but as i say, this is not a document they thought they were writing expected ended up on playing cards at it would be a great surprise to all of us. >> let me also mention a couple things about the building. we have a place where you see a life-size model of the framers. so you'll see how short james madison was, which may be a real victory for short people. [laughter] but maybe most importantly mary's book will be on sale in the lobby outside as we'll. i really want to thank mary for take your time and sharing her expertise with us. >> thanks so much. i really enjoyed being here.

[applause] [inaudible conversations]

[inaudible conversations] >> good afternoon and welcome to the kid institute. let me also welcome our c-span audience. i'm roger pilon, the director of the kansas center for constitutional studies and your host for today's forum working the publication of a new book by professor david bernstein, "lawless: the obama administration's unprecedented assault on the constitution and the rule of law." this book in this form could not be more timely. this yesterday as we all know we witness the president said he was directing officials in his administration to expand the regulation of the second

amendment rights of americans in several ways these repeated usurpations have served to divert attention from a long list of domestic and foreign policy disasters, but they've also serve fortunately to direct our attention to the constitution into what are its bedrock principles, separation of powers. that will be our focus today as we canvassed the many constitutional assault of the past seven years. to do that, professor bernstein

speak for about 30 minutes discussing several of the issues the book covers, and then we'll hear opposing commentaries on the book and then opened the floor up to you folks are questions. i will introduce each of our speakers before you speak. david bernstein as a professor at george mason university school of law in arlington, virginia, where he is been teaching since 1995. he's written over 60 frequently cited scholarly articles, book chapters and studies. he's the author of rehabilitating lochner, defending individual rights against progressive reform, which those of you who still are of that persuasion that lochner was wrongly decided. he's also the author of you can't say that, the growing threat to civil liberties from

anti-discrimination laws which was published in 2003. ihe is the author of only one place of redress am african-americans, labor regulations and the court from reconstruction to the new deal which duke university press published in 2001. he is the co-author of expert evidence which is a caselaw, and also a phantom risk, scientific inference and the law which the mit press published. he is a graduate of yale law school where he was a senior editor of ideal law journal and a fellow in law, economics and public policy. please welcome david bernstein. [applause] >> thank you, roger, for the kind introduction. thanks also to illegal whose wife had a baby two basic approaches to the hospital.

-- ilya. >> she is handling the babies and put her i am handling the babies output speed and hopefully there will not be too much output while we are here. i'm going to start with an overview of the problem in the briefly run through some of the highlights were a people lowlifes of obama administration lawlessness, then delved deeply into two examples and finally because nothing happens politically in a vacuum i will spend some time discussing the influences on the progressive left in my to diminish respect for the rule of law among liberal democrats, among the lawyers of the obama administration which includes of course president obama himself. let's talk about the problem. the trend of an ever expanding executive is not doing goes back at least to the presidency of theodore roosevelt as presidential power has grown over the last century or so, so has not surprisingly the abuse

of presidential power. even as the political divide continues to widen, one thing that unites republican and democratic presidency, any party tries aggressively expand their own prerogatives at the expense of not only the other branches but of the constitution of the law itself. the big reaction to this came in the 1970s after the disasters of vietnam and the corruption of watergate, and congress enacted a series of measures to try to restrain the executive can bring more power back to itself and to curb the executive and restored to some degree the rule of law. these reforms have been largely ineffective. until recently it seems presidents felt constrained in most cases he tried to obey the law but a least to pretend they were doing so. unfortunately, we seem to have reached the tipping point with

the obama administration. this administration has been aggressive about asserting presidential power doing so in unusually wide range of areas. moreover, this is really maybe the most unprecedented thing, the obama administration has accomplished that the president himself and his advisers seem to see this not as something to be ashamed of. we don't surreptitiously go around. this is something to brag about. we can't wait, says the president we can't wait for congress. i'm going to take my pen out and signed things. obama behaves as if there's some inherent virtue in ignoring the separation of powers and the loss on the statute books in favors of presidential decree and whim. essay promoting progressive political ends at the expense of the rule of law as a proper to

govern not sent as a matter of last resort in an emergency but as a matter of principle. when press asked for an expedition to support his claim congress are of alleged refused to cooperate with the president's agenda at a caucus supposedly dysfunctional some against the president extra powers beyond those provided by the constitution. let me run down some of the examples. i'm not going to summarize the whole book but let me run down some examples that "lawless" gives of the abuse of exercise that presidential authority. going to war in libya in blatant violation of the precious own promise, and statements on the floor he was elected about when the president to go to war without congressional approval. even more egregiously in blatant violation of the war powers act.

appointing so-called czars, high level government positions to config mandated confirmation hearings and also congressional oversight. modifying, delaying and ignoring there is provisions of the law he himself signed, the affordable care act in violation of the law itself attack and slipping private individual for engaging in protected speech. issuing draconian regulations for sexual assault on campus. not through formal regulation but to an informal vote not subject to any normal proceedings or do. ignoring 100 years of advice from the office of legal counsel and arguing that d.c. delegates be granted voting rights in congress. running general motors in the white house with any have statutory authorization to do so and also rewriting the bankruptcy laws to favor unsecured creditors, notably the oil workers union, over the

secured creditors who are supposed to preference under the law. imposing common core standards on the states via administered feedback and much more. that's a laundry list this morning the book. let me talk about three of them in more detail. the first one is one that probably most of you have never heard of. i just mentioned it other than the fact that just mentioned it but it's important as it's so telling about the obama administration's attitude towards the constitution and rule of law from the beginning. april 2015, less than three months after inauguration day, the administration decides to push for a law that would grant the d.c. delegates voting rights in the house of representatives. the constitution limits voting rights in congress to representatives of the several states. d.c. is a special designated federal district. it's not a state. is that there are just? not my concern. that's what the constitution

says. don't like it, change the law. attorneys and obama's office of legal council told them you can't support this law. we have 100 years of precedent that says they can get about. administrations all agree. i should point out two things about the olc, office of legal council. when it's about they are mostly, they're some civil servants mostly political appointees by the president. they are mostly the president's own political appointments. that means they really bend over backwards to try to apply legal authority the way the president wants to do. therefore, there's a second key point, one of the few checks on presidential authority. president typically understand if the olc tilt i can do something, and my own lawyers are trying to find a way to let me do what i want to do, then i shouldn't do it. that's just the norm.

olc says no, that's basically it. instead of deferring, attorney general eric holder went to the office of the solicitor general and asked of them to review the issue of whether d.c. delegate voting record holder did not ask if this is constitutional or not because he knew they would say no, and that's not their job. the solicitor general does is defending him in court and by tradition they will defend any law that they can make an argument in favor of its legality. holder past olc is this so absurd you couldn't defend in court? they said no, it's not that absurd. they went ahead and did. let's review. what was at stake? nothing really. because how often does the house of representatives ever have tied votes? never basically. if there ever was an occasion it was a tie vote that was broken by d.c. delegate it would almost

certainly have been challenged in court and certainly any judge which is the case would say we will throw this out because the d.c. delegate cast the deciding vote and the candy a voting member of the house under the constitution to do so securely political symbolic maneuver to satisfy liberal democratic constituencies who have been pushing for more political power. nevertheless attorney general holder and present obama was going to undermine the olc. one of the very few checks on presidential authority right at the beginning of the administration for basically no reason. just for symbolism and politics. there's i think reflected the attitude that was forthcoming later. another example of want to spend

more time on his war powers and libya. the war powers act was passed in 1935. 1935 the mediterranean executive authority after nixon bombed cambodia secretly without congressional authorization, killing a few hundred thousand people and helping to disasters in cambodia's future. the law says when hostilities are involved with foreign countries at the present has to inform congress fns 90 days essentially to deploy soldiers if congress doesn't give it explicit approval. some people think the war powers act is unconstitutional. that's not the argument the obama administration me. they accepted that the war powers act is legally valid. instead, president obama's claim that bombing libya for months at a time killing lots of people and leading to the overthrow of

gadhafi was not hostilities enemy attack and, therefore, the act wasn't implicated. this is ridiculous. i'm a law professor. we are trying to argue both sides but here's where i can say this is a ridiculous argument. people criticize the administration on the left and the right. obama's own lawyers the olc said you can do this. you have to go to congress. these are folks, they represent defense interest. president obama went trolling around looking for some lawyer with some authority to say you can do this. he found of all people a guy named harold koh who was former dean of the yale law school and was serving as a legal advisor. harold koh was known in the academic world for arguing that the president cannot act unilaterally. congress needs have more authority. harold koh had argued when

president reagan bombed libya for all of 12 minutes in 1986 that implicated the war powers act. but somehow he came to the conclusion that bombing libya for months at a time, 15 years later, did not constitute hostilities within the meaning of the act and, therefore, the president can go ahead and do it. spill wasn't it the case of the war hostilities rather kinetic military action? >> i don't know. the argument supposedly was we are only bombing them, american forces are not at risk and less big hit by a stray aircraft, antiaircraft missile. one problem with that is again, the war powers act was largely meant to prevent cambodia from ever happening again and cambodia was also solely an air

campaign. finally, as far as examples on delving into, let me give example of this dear colleague letter. this was accomplished by a dear colleague letter from the department of education's office of civil rights and endorsed also by the justice department. there is no statutory language, no regulations, no case law to support the imposition of the rules prodigious announced a. the dear colleagues, here's the rules want you to follow. that's bad enough. even worse, the rules themselves completely stripped students accused of sexual assault of anything assembling due process protection. everyone who follows up his nose that standard of proof had to be now preponderance of the evidence, more than 50%. that's the least of the trouble.

much more important, the guidance that was given severely discourages any cross-examination of the plaintiffs yesterday away people's rights to defend themselves if there is a decent she said situation. even more important, -- he said/she said. you're not allowed to ask individual by his or her past sexual history regardless of how relevant it might be. so just to take an example, let's say a video circulates about a college campus of the men and women engaging in what many would see as a degrading sexual act for the woman. the woman gets embarrassed, humiliated by this. she says it was a volunteer to go to sexual assault and files a complaint. she tells the university investigators that she would never engage in an act of this nature. the defendant, the person who was complained about, find five

other men on campus are willing to swear this young woman engage in exact same sexual act with them and two of them also have it on videotape. there is not a single court in the united states, no matter how strict a so-called rape shield rule to have to protect victims that would prohibit the evidence from being admitted. that is just the only way a person can defend themselves. and ocr says you're not allowed to bring this and. and again not to any will make and process but by solely 50 of the liver the ocr for four years maintain this was the legal standard at all universe had to abate until october in two separate occasions education department officials came to testify before congress. and two different senators have the capacity to ask where are you getting the legal authority to enforce it against universities? there's no federal register well, nothing. this is a little. they acknowledged there's no legal authority. this is just general guidance.

this is what we would like to duty. add a footnote saying this didn't make any new law. this is just give me guidance. of course, we expect you to open a. those are just a few examples. good ones. i'm kind of surprised if many of us knew obama was running for president, whether we like his policies or like most people at cato, severely dislike his policies would buy the game from the tradition liberalism that came from separation of powers and he would enforce that, it's kind of surprising that obama has been so unconcerned with these legal niceties. the question is how to explain it? i spent a lot of time thinking about this and researching it. i think a big part of the problem is that obama and many of his top lawyers come from a tradition that is unlike the

legal tradition of past, very skeptical of traditional notions of the rule of law and constitutional the daily. liberals and progressives have taken to arguing the lasso decades that the constitution has no objective meaning, that these interpretations focusing on the original objective meaning are nonsense. that the constitution is a living as a living document and must evolve with the times. meanwhile, rule of law fraud there is a long-standing progressive chinese the concept of the rule of law as it is traditionally been understood. the rule of law tradition understood is maintained by following the law in ways that promote insistence the instability of the windows invents it can be applied the same if you're black or white, rich or poor, et cetera, requires judges and law enforcement officers to impartially enforce the law

without abusing their authority. in our particular constitutional system the rule of law is maintained a respecting the separation of powers and also by the idea that the president must faithfully execute the laws whether he agrees with them or not and whether it is come politically convenient or not. the rule of law is a key element of liberal theories of justice but no more. consider the statement of the leading liberal, the liberal counterpart to the liberal federalist society. the fundamental values it expresses. individuals rights and liberties, access to justice, democracy and the rule of law. note of the rule of law is given no more weight than build abstract unattainable goals like genuine equality. if you're bouncing them, we can try to promote genuine equality

and help these people, or the rule of law, we'll talk about the rule of law later. that's going to happen. this didn't happen by accident but it is the result of long-standing ideological trends of the left. the importance and even coherence of a conflict of the rule of law came under a series of attacks in the legal academy coming from left in the mid 1970s. first came the critical legal studies movement during the world war ii. they argued laws are so independent that they could mean whatever interpreters want them to be. that's really silly actually. but in less crude aversions, it means extra legal considerations come into play far more than traditional legal analysis allows. ideology, class bias, also does other things may influence the judges but it's not just a legal

size. that was very influential in the '20s and '30s. it fell out of favor among liberals in the '40s and 50s. it seemed nearly state, i think that could aid and comfort the nazis and commerce and others who didn't respect the rule of law. if there's no love what weapons do hav we have against groups le the nazis anacondas? they come back in the '70s. as a law professor explained, clos adherence argued the rule of law was both impossibl imposn practice and even undesirable in theory. let me read to you the invitation of the first annual conference held in 1997. 1977. law is estimate of social economic and political domination vote in a sense of further the concrete interests of the dominators and then met up legitimate in the existing order. so the rule of law, if it

existed at all is a bad thing to get yourself the elite maintain their power. the more general sense of build up all these critical moments can be summed up with the mantra, law is politics. that's what you think of the law. it's not terribly surprising. the various groups of critical legal scholars who influence peaked right around the late 1980s when i was in law school and so not coincidentally perhaps with barack obama, not going to do with the idea peaked while he there and is influenced by them, all these critical scholars were always a minority even among the majority of left leaning faculty. most law professors work or remain traditional liberals. nevertheless, their influence has been broadly felt in the legal academy and, therefore, has been influential in undermining commitment to the

rule of law. as it turns out the rule of law maintains a tenuous foothold as an important concept in the liberal legal academy i do mean something different. it's not the classic rule of law of neutrality and so forth. it's through of law, if the government wants to do something it has to come up with a non-ridiculous theory as to why it's legal. this doesn't put no constriction on the government, because the law only been so far without breaking the it just doesn't put much of a constraint on the government. if you're thinking what thing has the obama administration wanted to do that they have decided not to be because so much of it would be illegal to do so? the list is a very long. also when the bush administration pushed executive power to its limits and beyond, there were quite a few lawyers in the bush administration who objected come internally and

some said they would resign if a position where it wanted to go. and then bush pushed back. one thing interesting about the obama administration, despite these controversies sure there must than someone who said we shouldn't be doing this. i have scoured, i have seen a single example of a if this is so important, if you go ahead and do this, whatever it is, bomb libya in violation, i'm going to resign. no one has done that because of the rule of law is less important than politics. admittedly government officials stretching to power as far as they can without blakely violating the laws is hardly news, but as i mentioned obama is the first president to my knowledge to brag about going around congress acting unilaterally. what other quit telling moments of the obama administration was in 2013 after he won reelection at his state of the union address. he gave a big speech at that

address what he said i'm going to go around congress and do whatever i can do with my pen and piece of paper and signed executive orders. and not only did democrats not an object in congress to this usurpation of power, all the democrats and elegant gave him a standing ovation. you think the framers hoped each branch -- it turns out artisanship is more important than preserving the prerogatives of each branch. meanwhile, the problem, people often say there's always problem with the president. why don't people just sue? why don't the steps -- the courts step in? there's a doctrine called standing objective legal standing to sue project have a specific injury that is unique to you. in most cases when executive behaves in lawless ways, there's no one to sue. you can't sue anyone when i turned job holder decides to

pursue the d.c. voting rights. .. >> except you can't sue me. so sue me, except you can't. obama and his allies, i mean, i'm sure they're good-hearted people. they want to accomplish good ends, and they probably pose the

dilemma this way, for example, in the context to have illegal measures the president's taken to prop up obamacare. if we could find a way to insure that millions of americans are not deprived of health insurance, shouldn't we do so? how could we, you know, the republicans won't cooperate with us, they just want to repeal obamacare. shouldn't we structure the law as far as possible to do what we can to make sure people have health insurance? the problem is this kind of ends justify the means reasoning is understandable to the extent it reflects a sincere desire to help needy americans, but it neglects the long-term damage and undermines the restraints of the president in -- [inaudible] however worthy that agenda seems to be at the time. the idea of we had no choice but to seize power to help the people is exactly the rhetoric and reasoning used by every dictator in the world to justify you are theny.

everyone has d tyranny. everyone has their agenda. we're discussing earlier before, in the green room before we came out here how many people who think that it's great that president obama should be able to stretch the law to achieve his agenda because congress isn't cooperating think it would be just fine and dandy for president trump to do the same thing? if you think obama should be signing executive orders because he's doing a great humanitarian gesture in letting people stay here, but the next president's going to be president trump x one of the odd things about the exercise of executive power is not just informally do what presidents have done in the past become precedent, but the supreme court has actually said in many contexts, how do we know what the scope of executive power is? everything president obama does is not just going to be this is what president obama did, and i

know president obama isn't that great, do you want president cruz doing it, president rubio doing it, president trump doing it? if they're not president in 2016 someone like them will be president, do you want them to have their powers, and is it worth whatever president obama's achieving right now to risk that in the future? ultimately, the cavalier attitude toward the rule of law can only justify that politics is law by another name and, therefore, just get what you can now, and don't worry about it. if that's what obama and his appointees really believe, maybe the critical legal scholars have won after all. thank you very much. [applause] >> well, thank you, david. at least if -- you're going next? you sure? okay, good enough. if president trump does it, one think we know, it'll be

tremendous. [laughter] all right. we're going to now here from ilya shapiro, and you're going -- [inaudible] oh, okay. well, i ask because as you heard, ilya's as of late friday night is a new, is a first-time -- >> late monday. >> is a first-time father, so he's got -- [applause] you get applause for being -- [laughter] well, i won't comment further on that. all right. >> i did my part. [laughter] >> that's what i meant. okay. we're going to then hear from ilya who is a senior fellow on constitutional studies here at cato and the editor-in-chief of the cato supreme court review. before joining cato, he was a special assistant advisor to the multi-national force in iraq and

on rule of law issues, and he practiced at patton, position and cleary/gottlieb. he is the co-author of hobby lobby, the affordable care act and the constitution which came out in 2014. he has contributed to a variety of academic and popular editions, the l.a. times, "usa today," weekly standard and so forth. he regularly provides commentary on the major media from cbs to fox news to cnn to colbert report, npr and so forth. he's testified often before congress and state legislatures, and as coordinator of cato's amicus brief program, he's filed more than 150 friend of the court briefs before the supreme court including one that the

green bag selected for its exemplary legal writing collection. he lectures regularly on behalf of the federalist society, is a member of the legal study students' board of visitors, was an inaugural washington fellow at the national review institute and a lincoln fellow at the claremont institute, and he's been an adjunct professor at the george washington university law school. in 2015 national law journal named him on its list of 40 rising stars in the legal community. before entering private practice, ilya clerked for judge e. grady jolly of the u.s. court of appeals for the fifth circuit. he holds his ba from princeton, his master's from the london school of economics and his jd from the university of chicago law school. please welcome ilya shapiro. [applause] >> thanks, roger. yeah, the reason i'm going

second is isn't because i have to get out of here immediately, although i ammon to having my phone in case something happens, but i figure i'd let simon reply to both of us, and then david can continue that conversation, because this is really about david's project. as we enter this final year of the barack obama's presidency, there isn't much that the president can do to change people's opinion of him for better or worse. his legacy, barring some extraordinary occurrence including an extraterrestrial one perhaps as the holiday advertising blitz for the new independence day movie i reminded us, is baked into history. setting aside legislation and executive action, one of president obama's chief accomplishments has been to return to -- the constitution to a public place in your

discourse. of course, he fomented it not by talking up the separation of powers, but by violating the strictures of our founding document. with his pen and his phone -- and, david, this is why i'm not surprised at all by the rule of law violations, i recognized -- i'm sure many people did -- that the incoming obama were much more about wilson and saul olin sky and revolutionary rather than kind of the '60s left or the '80s left, whatever you want to, the postmold earn left. so he's been taking out his frustrations with the checks and balances that inhibit his ability to fundamentally transform the country. but lack of congress toal acquiescence hasn't stopped him. even in his first term, the administration launched a we can't wait initiative with senior aid dan pfeiffer explaining, quote, when congress won't act, this president is

will. and when the reelected obama announced his second term agenda, he announced i will not let grid lock get in our way. that flies in the face of one of the biggest political changes that's occurred roughly starting at the end of the bush years. that is, lawmakers and citizens no longer consider simply whether a given bill or policy proposal is a good idea, but whether it's constitutional. where does the government, where does the president get the power to do that? is a common rallying cry on both the occupy left and the tea party right. that's a healthy development. for too long even in those rare moments when politicians were faced with constitutional concerns, they've had the attitude of nancy pelosi. you'll recall that when asked about the authority for obamacare's individual mandate, she replied, "are you serious?" no good policy arguments to

make. so it's a good thing that americans are taking their founding document seriously. after all, the constitution is the font of all federal power. it's carefully structured, carefully-crafted structural provisions that we learned about in grade school. or at least that y'all learned about, i went to grade school in canada. like most immigrants, i do a job that native-born americans don't, and that's defending the constitution. [laughter] such is the separation of powers and checks and balances. these are not merely an application of political theory. as justice kennedy wrote in the 2010 case of united states v. bond, federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. it protects the liberty of an individual from arbitrary power. bond, you'll recall, was the run of the mill case of adultery, federalism and chemical weapons where this woman sprinkled some forward

garden variety chemical power on herrest best friend's -- erstwhile best friend's post office box when she discovered she had been having an affair, and indeed, was pregnant by her husband. rather than being charged by state or local officials, the federal prosecutor -- this was in suburb ban pennsylvania -- went after her for violateing the international convention on chemical weapons. a little bit of overkill. this came up to the supreme court twice. and once the government lost unanimously, and once they lost 8-1. that was on the melters. that prosecutor, by the way, was then transferred from pennsylvania to the gulf coast of florida, and that resulted in last term's case of yates v. united states where the fisherman who was catching undersized grouper or -- a problem, clearly a fish and wildlife violation, both state and federal -- was prosecuted

and sentenced to a long time in jail for violating the anti-shredding provision of sarbanes-oxley, again, a federal overreach struck down by the supreme court. well, if the federal government acts outside the scope of its delegated and carefully enumerated powers, it's no matter than an armed mob. speaking of which, that brings us to barack obama's lawlessness which david bernstein has covered in a magisterial but brisk book that everyone should read. i won't summarize david's analysis other than to note that while he can't hit everything -- which is really a sad statement about where we are -- he does an excellent job of covering the waterfront of abuse withs. from obamacare to justice department corruption to the affordable care act to college speech codes to the aca to antidiscrimination law run amok to the patient protection and affordable care act, and did i mention obamacare? david didn't really -- i think that was a conscious choice, we

here at cato have covered that a lot, of course, both legally and as a matter of policy. and indeed, part of the reason why you don't see a lot of interns flitting about that typically help out with these forums is because of obamacare. we like to pay our southwesterns -- interns, which i thought that the left was in fave of. and yet because we pay our intenser, we can't employ them for longer than three months at certain numbers of hours per week without providing full health care benefits. and because we don't want to either provide that full cadillac package or nothing, we have to employ them for less time during the year, hence no inalternatives to help out here. inalternatives to help out here. >> [inaudible] >> i'm just talking about the consequences -- >> [inaudible] >> well, okay. well, that's -- yeah. that'll with the next cato lawsuit once we finish the ones

that are just -- okay. well, david has this interesting chapter on foreign policy that he talked about which is tricky because the scope of executive power over foreign affairs is less clearly defined than it is over domestic affairs. while it's obvious that president obama violated the war powers act, i personally am not convinced that the war powers act itself is constitutional. but that's a subject for another day. obama's actions in trying to comply with the war powers act says a lot more. he, unlike other presidents, did not simply say i'm not complying with it because it's not constitutional. and yet here, too, as i said, he's managed to violate cheerily established law. if -- clearly established law. read what are probably the most successful op-eds in terms of my clear in terms of clicks, and those would be president obama's top ten constitutional violations of 2011, 2013, 2015 respectively. we're talking hundreds of thousands of clicks for the daily caller, "forbes" and

national review online respectively where these were published. think about that for a second. isn't it a problem that it's not hard at all to come up with these lists? i mean, for legal pundits like myself, it's like shooting a gun while walking past a barrel to get a fish sandwich for lunch. [laughter] actually, each of those actions will probably subject you to federal prosecution, see this week's executive action on guns. so just think about them rather than doing them. obama hasn't started prosecuting thought crime, though he's getting awfully close with respect to so-called climate change deniers. and as far as the supreme court is concerned, that is my specialty. this administration is easily the worst performer of any before the court in modern times which i think is indicative, again, of its approach to the rule of law. in modern times -- well, probably ever, though, of course, it's more relevant to

compare obama to bush and clinton than, say, benjamin harrison. where obama is below 50% by the solicitor general's office or just unanimous cases where he has more man yous losses in his first five years than bush had in all eight, it's not a pretty picture. cato, in our amicus brief program, has gone 15-3, 10-1, 8-7, handily beating the government each time. expansive executive action including overzealous prosecution, i mentioned a coup of those cases, envelope breaking -- not just pushing legal theories -- and the fact that regard he is of his reasoning justice kennedy tends to act like a libertarian in close cases. as miguel estrada commented, quote: when you have a crazy client who insists you make crazy arguments, you're going to

lose some cases. if the administration wants to improve its standing before the court, i humbly suggest it advocate positions and engaging in alaskas that are grounded in law and that reinforce the constitution's role in securing and protecting liberty. or take it from xw law professor jonathan turley who voted for obama at least once, maybe twice. at a 2013 house hearing on the president's duty to take care that the laws be faithfully executed where si also testified. quote, while i believe the white house has clearly exceeded its brief in these area ares, this has arisen periodically in our history. the white house has suggested an array of arguments citing the interpretation of statutory text, agency discretion or other rationales to mask what is clearly a circumvention of congress. it also appears to be relying on the expectationation that no one will be able to secure standing to challenge those decisions in

court. david mentioned this. finally, there's no question that the president as chief executive is allowed to set priorities of the administration and to determine the best way to enenforce the law. people of good faith can clearly disagree where the line is drawn over the failure to fully enforce laws. there's amping room given -- ample room given in the enforcement of laws. a president is not required to dedicate the same resources to every federal program. even with this ample allowance, however, i believe that barack obama has crossed the constitutional line between discretionary enforcement and defiance of federal law. congress has given the defining function of creating and amending law, there is more than a turf fight between politicians. the division of governmental power is designed to protect liberty by protecting the abuse of power. all citizens should consider the inherent danger presented by a president who can unilaterally suspend laws as a matter of presidential license.

alas, in policy after policy from the clean power act to obamacare implementation, from dapa, the immigration expansion program which i support generally as a matter of policying but i have been filing and will continue filing briefs on behalf of people that support comprehensive immigration reform saying that you neat a law that congress has shamefully failed to pass to accomplish that, the executive branch has iowa gated to itself the power to rewrite, ignore and suspend laws. this is the antithesis of the rule of law and, i believe, has done lasting damage to the country. i have some questions for david which i hope he will respond to in the context of rebutting si's response to his book. first of all, the title of your book is "lawless." does that mean both constitutional and statutory

violations, or does it even make a difference? because when the executive branch does something in excess of its powers, that's inherently a constitutional matter. second, do you really think that former constitutional law professor barack obama's theory of executive power is that the president can do whatever he wants so long as congress deadlocked on the matter or that he somehow gets more power on that context in si, -- the thir, sing i will say all prime ministers do this kind of thing -- all prime ministers do this kind of thing. what's your response to that? fourth, what should we do? impeachment is a political remedy, and given the polar used nature of our -- polarized nature of our polity, will never happen unless the approval rating drops below about 20%. that's what the econ ma traditions say. is there anything else we can do in and finally, we've seen an

incredible increase in state lawsuits against the federal government and a little bit from congress as well. is that the new normal? is that the response, the breakdown causes other branches both vertically and horizontally to challenge the president in court? now finally, in terms of criticisms, i guess the only criticism i really have of david's book is that i should have been the one to write it. laugh -- [laughter] but i suppose getting a blurb on the back above former attorney general knew crazy, i credit -- mukasey, i credit your publisher for that. we don't endorse candidates here, we're a 501(c)(3), we try to follow the law, but i do endorse the book. buy it, read it, and tell people you did so because of my blurb. in sum, as the nation limps through barack obama's lame duck year, americans have much to ponder regarding the example this president has set for his successor and what powers that successor will abuse.

hillary clinton has already pledged to take executive action on gun control even more than president obama did this week, which was rather tepid, i must say. i don't want to spend a lot of time talking about it. charlie cook, for the national review, had a very good hot take. i also haven't been tracking that closely given the events in my family the last couple of days. campaign finance, immigration because, apparently, president obama is too timid here as well according to hillary clinton. corporation inversions and who knows what else. and trigger warning here, i'm going to be more sensitive than david was, trig arer warning. imagine what donald trump would do. so happy new year and enjoy the presidential election. [applause] >> thank you, ilya. and now we're going to hear from a different perspective, from simon lazarus who is senior counsel at the constitutional accountability center. before joining the center, he

was a public policy counsel to the national senior citizen law center. he served as associate director of president jimmy carter's white house domestic policy staff and as partner in powell goldstein frazier and murphy from 1981 to 2002. he was senior counsel to sidney austin from 2002 to 2006, and he is a trustee of the center for law and social policy and a member of the administrative conference of the united states. his articles have appeared in the atlantic, "the washington post," american prospect, roll call, slate, the hill, daily beast, politico, the new republic, huffington post as well as haw reviews. law reviews. he writes frequently for the american constitution society's blog and las published several briefs including mandatory health insurance: is it constitutional, which was released during the senate health care reform debate in

december 2009, and the health reform lawsuits: unreallying a century of constitutional law and the fabric of modern government, published in february 2011. the most dangerous branch, question mark, has been republished in the best american political writing 2003 and principles and practice of american politics, contemporary readings, also published in 2003 by cq press. he, like david, is a graduate of the yale law school where he was note and comment editor for the yale law general. please welcome si lazarus. [applause] >> thanks very much, roger. it's always a privilege to appear here at cato, which i

have done on many occasions. the constitutional accountability center where i serve as a senior counsel works constantly with cato, frequently as an adversary and a respectful one, but not infrequently as an ally. and so it's in that spirit that i offer what are going to be substantially critical remarkings but not entirely about -- remarks but not entirely about the work that professor bernstein has presented us with. i have to say i think that there is a kind of schizophrenia about book, and perhaps also about professor bernstein's approach to the issue of executive power. on the one hand, there's the professorial side, and there professor bernstein acknowledges, for example, that

the expansion of executive power -- which certainly is an important phenomenon of our time and of our ancestors' time -- is a very longstanding, structural development, and it has been exemplified by presidents of both political parties. he acknowledges that, but then we have what i have to say is really the propaganda side which is the dominant side and appears most dramatically in the title. the fact that this expansion is such a structural and longstanding and bipartisan phenomenon would seem to undermine the notion that such expansion as there may have been under president obama is unprecedented. it obviously is, as a general matter, is not. i can't deal with every single example that professor bernstein

wants to martial in trying to make the case that the obama administration is unprecedented and is in sort of recidivist violation of the president's constitutional duty to take care that the laws be faithfully executed. i can't take on every one of these examples. let's focus on the big ones and the ones that professor bernstein himself highlights in his introduction. first of all, we have the old saw of the affordable care act. now, he repeated, i guess, the endlessly repeated notion that delays in the effective dates of various aspects of the affordable care act somehow constitute not only unlawful actions, but a failure of the

president to take care that the laws be fatefully executed. first of all, unprecedented? really? president george w. bush's secretary of hhs, michael leavitt, called the delay of the employer mandate -- which was the most important of these delays -- wise. and one can understand why he thought that was wise. because in implementing president bush's initiative, part d of medicare which created a prescription drug benefit under medicare which is another very complicated law, secretary leavitt was obliged to delay a number of aspects of the regs that were mandated by the statute for reasons that are completely the same as those which propelled these temporary delays by president obama. sometimes you just can't get it all done.

we should note also that it has been the law f i guess close to 65 or 70 years under the administrative procedure act that only unreasonable delays in implementing executive action such as regulations are unlawful. and so, certainly, they're not unconstitutional. in addition to that in beating the poor affordable care act again, amazingingly professor bernstein, i guess, can't avoid, can't stop himself from relitigating nfib v. integ yous and, incredibly, king v. burwell. i know you're disappointed about having lost those cases, but you did. and whether or not chief justice roberts and in the case of king v. burwell and justice ken admit and the progressive -- kennedy

and the progressive justices were wrong, and one can, and you did make arguments that they were wrong, the fact that the administration's actions that were being challenged were upheld certainly shows, i think, that these are not really good examples that would support the contention that the obama administration is thumbing its nose at the constitution. and i guess i'd also like to note that sometimes professor bernstein's book, for whatever reasons, has to beat horses that are not only dead, but or were never really alive to begin with. one of those is an example that professor bernstein highlighted in his own remarks, and this is the notion that this administration has created all of these unconstitutional czars who are running the government

outside of the appropriate constitutional and legal structures. he has a chapter entitled "more czars than the roam novembers -- roam novembers." really? i haven't heard about these czars for quite a while. i don't think they made a large dent however they were hyped by either the right or the left. and, in fact, i would say one thing. i think that both the administration -- here's a concession. both the administration and its opponents have an incentive to exaggerate the impact and significance of various executive actions that he's taken. the president needs to be shown as seen as making a difference, and his opponents need to say that these actions that the president has taken are not only

things we disagree with, but are unlawful and evidence that he is a serial violater of his constitutional duties. but they are exaggerations. and, certainly, the czar charge is one of the funniest ones. i have to note that professor bernstein in his book cites an article by my very close friend, bruce ackerman, who is a very prominent left libertarian and, certainly, a brilliant expert on the constitution. for the proposition that these czars that the president was supposedly creating at some point early in the administration are another milestone on the path to an imperial presidency. in this article bruce cited the creation of a position in the white house for elizabeth warren before she became a senator, before she was basically found no place in the administration

and was forced to run for office which turned out to be a pretty good thing for her. and he says, bruce said in this article that making her a white house -- giving her a white house staff position meant that secretary of the treasury tim geithner was, would be a mere rubber stamp for her. i think we can all, whatever our political persuasion, chuckle at that notion. and another dead horse that was always dead is professor bernstein's curious elevation of the significance of the critical legal studies movement at harvard law school and somehow trying to say that this movement, which i must say i always regarded as fairly laughable, should be attributed

to all progressives, all progressive legal thinkers and to president obama? you even, unfortunately, said he was -- president obama was influenced by that movement because when he went to harvard law school, it had not yet been completely extinguished. you can't say that, professor bernstein. we really don't, you know, there's no basis for saying that. if you've read anything that he wrote before he became president about his views on law, and he did write about it, you would have to say that cls was not at the center of his thinking. and specific -- and then in addition to that, i think i must say here that trying to blame living constitutionalism, trying to attribute that to all progressives and to the administration particularly right now is a little galling,

frankly, because the organization for which i work and the reason that we work so closely with cato so often is dedicated to insisting that the lode star for constitutional interpretation must be the text and history of the document. now, we often conclude with very good reason, i think, that when one does that in a conscientious fashion, one actually often comes to find that the constitution supports progressive results. sometimes we disagree with cato and with conservatives about that, but as randy barnett has said and, as a matter of fact, as ilya has said in a very gracious way the fact that we make the framework for the discussion what the constitution actually says and what the framers of those provisions --

including the amendments -- actually intended, the fact that we make that has head the discussion -- we make that has made the discussion more civilized. and i have to say the impact of stressing progressive originalism, i think, has been quite significant. if you look at the opinions of the progressive justices on the supreme court, particularly justice kagan and justice ginsburg and justice breyer too although perhaps to a somewhat lesserrer extent, you would -- lesser extent, you would have to see that they are making textualist, text and history arguments for their positions now. so i think it's a little behind times, professor bernstein, to be just tarring all progressives and this progressive president with the living constitutionalism brush as

evidence of disrespect for law. have i went over my time? >> that's fine. >> well, okay. i feel -- and i do want to say that i think there are parts of this book that show the professorial side of professor bernstein and the distinguished career that he has had. as an aside, i would say that his book on locker in, on rehabilitating lockner while i don't entirely agree with it, certainly, certainly was a serious and significant contribution to taking another look at that case. i could go into more detail about that, but i'm not going to do so. but that is an example of, you know, very useful scholarship on his part. and i think that his discussion, for example, of the ocr issue that he discussed about guidance

to universities about how to deal with allegations of sexual misconduct, that's a subject about which i know nothing in particular, but i also know really i'm not at all familiar with the law or the policy history. but i did think that his discussion of it certainly was a serious, a serious contribution. but as i said, an awful lot of this book, unfortunately -- particularly the title -- is more on the propaganda side. and i have to just point out one thing quickly. i think that there are areas where the book is, plays fast and loose with facts, a lot of them. and one i just have to call attention to. there's a sort of, i have no other word for it, a kind of drive-by smear of an administration office holder,

virginia zeitz, who was the held of the office of legal counsel up until a couple of years ago. and what he, what professor bernstein says -- and perhaps he just wasn't really thinking about it -- was she was selected because president obama could be sure that she would be a compliant defender of whatever he wanted to do. the fact is, virginia zeitz -- and would be more so than her predecessor. i don't know who her predecessor was, because the office had been vacant for two years because congress was -- the senate was filibustering and blocking her successor from being confirmed. virginia zeitz, who i know, was and now once again is one of the top people in sidley austin's distinguished, super-distinguished team of appellate litigators. this is headed up by carter

phillips and keither ciezler who, if you don't know, was one of the founders of the federalist society, and both of them are among the most distinguished fellow litigators in the country as is she. she had no ideological background that i know of and was purely selected because of her unchallengeable qualities on the melters. and that's -- merits. and that's why she was confirmed by a voice vote. i think there, unfortunately, this book does not uniformly reflect the kind of scholarly values that professor bernstein has shown in some of his other, in some of his other work. >> okay, thank you very much. david is going to take about three or four minutes to respond, very briefly, then we're going to open it up to your questions. >> well, first, let me just say that this book is not an academic press book. i think i disagree that there, i play fast and loose with the facts. no one has found any factual errors, we can have a difference

of opinion about it, particularly individual. it's well footnoted and to forth, but i wanted this book because the constitutional depredations of the obama administration have become such a public issue, i didn't want the discussion to be limited to elite lawyers in d.c. and academics and have a back and forth, well, some people say this, some people say that. have a discussion of all the legal theories. that's important, i do that in my academic life, but this book was written for the educated lay reader, and it has a more breeze is city tone to it than an academic book, but hopefully it means also it's more understandable and comprehensive to the average person. there's nothing in this book that was written a few months ago with all the discussion that's been had in reviews and blog posts where someone has said anything is inaccurate. i may not discuss every legal theory in as much detail as if i

was writing it for academic press -- >> i was disappointed, the tonnage clause -- >> yeah, so that sort of thing. anyway, with regard to really briefly go through a few points, let me reiterate i actually said this in my talk and my book, i am not saying all progressives are critical scholars. in fact, i say most people continue to be mainstream liberals in their own way, it's just there has been a significant influence of critical legal studies on liberal academia just a the way i think, si, other organizations, his and others, you know, there are very few libertarians out this, but there's been some influence of them. that's true. just to ache an example -- take an example. people like cass sunstein and others who are not critical legal scholars, but over the last 10, 15 years they've advocated restrictions on hate speech. that would not have been a mainstream liberal position 30,

40 years ago but is widely adopted and has significant influence. going into the obama administration itself, the obama administration argued in a brief to the supreme court -- sorry, they argued it before the supreme court after not mentioning it in their brief that churches and other religious institutions have no right to choose their own clergy, which was contrary to what every single district and appellate court. every single circuit had actually ruled on this. that is an idea that came out of radical legal feminism which argued, for example, the catholic church should be required to have female priests if that would otherwise discrimination laws, the religion clauses of the constitution shouldn't prevent it. and that is, indeed, somewhere, engen, where you can see the influence. that doesn't mean it's no influence. with regards to the affordable care act, it would be very difficult to write a book about the constitution of the obama administration without addressing the cases that everyone knows about as the most famous constitutional

controversy of the obama administration. and it's actually what we call, i teach evidence also, we talk about how the obama administration came to be and the lawsuits over it that the supreme court is a way of giving the underlying background to what became the later constitutional deprivations. i never say that the aca was lawless, although i do think it was unconstitutional. i would never say it's a lawless, example of executive lawless action. i would say that the president's delays, modifications, exemptions from obamacare are, in fact, lawless. si has made the argument here and elsewhere, oh, this is what all presidents do. no one actually does believes that. begley, a liberal law professor, he supports obamacare, he says i have in the book the obama administration's policy-based anxiety at the pace of which the aca was supposed to go in effect. it wasn't they wouldn't do it,

they were just afraid of the consequences in the 2014 elections. there's been washington post reporting and all sorts of regulations that were supposed to go into effect before 2012 and 2014, and the administration delayed them because the democrats begged them too. you shouldn't enforce unpopular laws until after the elections. that has nothing to to do with t bush administration did. i cite begley there, i cite professor zachary price of fordham, i right my friend josh black. it's not an act them cantic discussion in that style, but all the academics are cited. last thing, a question about the title, whether what the obama administration has done was unprecedented which also goes to something ilya asked me about it. what is unprecedented about it? i think there are a few things. first of all obama actually made

some very explicit promises when he was running for offices, constitutional offices. i am a law professor, i know the constitution. i'm going to obey the constitution. president bush, the biggest problem he's had, is advocating more and more -- [inaudible] now he doesn't fulfill them but does the reverse, it really undermines the constitution, and that is unprecedented. bragging about how he's going to go around congress. i don't think any other president has done that. undermined the olc as explicitly as the president and eric holder did, bruce ackerman has been very upset about it and for good reason. the increase in executive power, often dramatic increase, the depression, world war i, world war ii, the cold war, there's been no emergencies that justify these things, it's just pure politics. instead of triangulating like clinton did and trying to compromise, we're just going to

go ahead and do whatever he wants. and usually when the president has pushed executive powers in one specific area like the nixon administration and vietnam or other examples you come up with, but not broadly in so many different areas, in so many different parts of the law the way the obama administration has done. so that's why when i started to write this book, i sought a more academic style, and i became convinced -- i thought all this stuff was exaggerated, right-wing propaganda, and i got upset about this not just as a law professor, but as a citizen. i thought i should alert the public about it in a book with. more important, i'm not really concerned. obama's gone pretty much, like ilya said. it's more important to warn people for the future. i wrote this book in part for people who are concerned whether we have a president trump, president cruz or president clinton, let's think about the dangers that this has created and not go along with them. i don't care about obama, he's

out the door in a year, i'm much more concerned about the future. thank you. [applause] >> well, i am concerned about pram -- president obama, because we've got one more year to go. all right. let's take your questions. please wait for the microphone to come and identify yourself in any affiliation that you may have. there's a gentleman right here with his hand up. did i see one up here? go ahead. >> this is a question for professor bernstein. my name's theodore gephardt, i'm a retired attorney and economist. and it's a historical question. you talked about the concept of institutional loyalty being trumped by party loyalty on the part of the congress which prevents congress from overriding any veto and any attempt to push back on some of

this lawlessness. i'm wondering whether on the congressional side historically whether this is more pronounced now than it has been in the past, this party loyalty over institutional loyalty or whether that has been a historical given as well. >> that's actually a really great question. and not being a political scientist, i'm not the most qualified person to answer that. but my, what i learned from writing this book is that there does seem to have been a decline especially recently in the willingness of congressional leaders to oppose presidential authority, to protect congressional authority when the president is of their same party. and i think one reason for that is that we've just become more and more partisan. i think the parties have divided more ideologically. there used to be liberal republicans and conservative democrats in each house, and we don't have that so much anymore, so people have partisan and

ideological loyalties. i think there's also a sense that just the new generation -- younger generation of congressmen and women and senators are just less interested in institutional prerogatives. i'm not 100% sure why it is. when republicans were in office, oh, the president wants to bomb panama, that's great. oh, and clinton does it to bosnia, all of a sudden it's unconstitutional. there's always been some example of that. in the early years of the obama administration there was some pushback from senator robert byrd, senator feingold, and they all god defeated. iron -- got defeated. byrd retired, actually. the few senators who wanted to push back all retired, but there's another generation replacing them. and i'm not -- i gave you my theory as to why the increased partisanship and polar ideological -- [inaudible] i'm not sure as to the answer to why.

>> fellow right here. anybody over here? >> hi there. phil -- [inaudible] from the brookings institution. thank position the nice wireless access cato's providing me here on their nice web site, i can tell you eight years ago cato was holding an event on bush's law: the remaking of american justice, and ten years ago had a paper, power surge: the constitutional record of george w. bush. sixteen years ago they had arrogance of power reborn: the empiral presidency of the clinton years. and i'd just like to get the panelists' take is a pretty sure thing that eight years from now, four years from now we're going to be looking at the next president's record no matter which party and lamenting the new sort of constitution aloes to which they've taken us? and if that is the case, i sort of wonder how much work the ideological explanations are

doing. >> i hope not, but i don't have great confidence. one of the reviewers on amazon counted, i have 22 references to the bush administration in the book, i think it was, all negative. so i'm not here to apologize for republicans or just create site republicans, and i certainly don't have -- the way the campaign is shaping up on the republican side, i've been disappointed. one of my hopes was not just this book, but the general objection republicans have had to the prime minister's actions would have led to -- to the president's actions would have led to the executive power being a real issue the way it was, ironically, in 2007-2008 among the democrats, and that hasn't happened yet. i'm hoping it will. i'm hoping there'll be some public pushback. i'm hoping the supreme court will loosen standing a little bit precisely because congress doesn't seem inclined anymore to defend its own institutional prerogatives. maybe congress could also get its act together and actually pass budges in a coherent way

where they're not coming up with one huge $3 trillion bill at the end of the session, and it could either be vetoed or not so every issue that comes up is either shut down the government or have smaller bills like they're supposed to. none of these things are things that give me any confidence. i'm afraid we're probably on the long road to perdition. >> as the cato panelist, i want to ask who's "we," chemosaab by. i'm sure rocialger can talk more about cato institutionally if you like, but the preceding president, bush, most if not all of the constitutional criticism that he faced related to foreign policy or national security-related aspects of domestic enforcement like the

patriot act. the one, the biggest exception i can think of to that is the bailout at the very end which, of course, obama expanded upon and that was, you know, subverting capitalism to save it and subverting the rule of law to save it, and that really is, to my mind, no less dark a moment of the bush years than anything else. and i think that's, that's important because as i said in my remarks, the foreign powers, foreign policy-related powers of the president are not as explicitly outlined in the constitution as the domestic powers are. >> si, did you want -- >> i'll just say something brief and just on the general question that you raised about the continued or apart expansion of -- apparent expansion of presidential authority over all of these decades. that's a subject worthy of serious discussion. you can't have a serious

discussion if all it involves is throwing darts at whichever administration it is for trying to aggrandize its powers. you can't have that discussion if you don't also include the problem of congress progressively abdicating its responsibilities. the president, any president, bush or obama or the next president, somebody has to be responsible for making the country run and work and defend itself. >> yeah. that's called civil society, not the government. congress does not have a responsibility to pass laws. >> okay. ilya, you had your shot, old boy. [laughter] and so to take the most obvious example which is foreign affairs, and there are serious, there have been serious issues in both kinds of administrations

that have been debated by very thoughtful people about whether what the president was doing was appropriate and lawful and so forth. but the fact is congress, when is the last time congress declared war? this president has actually asked congress to fashion a law and pass it with regard to american intervention b in syria and iraq, and they won't do it because they don't want to be responsible. they would rather sit back, let the president take the risks and then be free to say this was a great idea or it was a bad idea. and this is true on both sides of the aisle. but from an institutional standpoint, congress is just simply not performing the way the constitution is written or the framers intended. now, on the domestic side, ilya, things seem to have improved somewhat in this last year.

congress is, there are times when congress is actually trying to work and pass legislation, can that's all to the good. but the fact is congress is still basically just saying, no. it has refused to confirm presidential nominees with the result that throughout the administration the administration has been seriously understaffed at senior levels which really impedes the ability of the government to function. i think, frankly -- i guess this is a partisan point of view, but the refusal of house republicans in the last congress to allow speaker boehner even to put the senate's immigration reform bill to a vote on the house floor where it probably would have

passed is an abuse, an abuse by a minority. and thwarting the need of the ability of the government to deal with a huge and significant problem. and there are many other examples. so the dysfunctionalty of congress is a big part of this equation, and you can't -- >> to puck up on -- to pick up on ilya's invitation to me and to respond to the question, probably in four or eight years we will, indeed, be holding another forum. whoever gets into the white house. we are an equal opportunity basher here at cato -- [laughter] and the reason we are is because we think that the zeitgeist today with respect to the constitution is so far removed from what the constitution is itself that there's no chance that whether it's a republican or a democrat, that the administration will be living up to our conception of a limited

constitution. and so that affords us ample opportunity to hold forums as far as the eye can see until the zeitgeist changes, which is why we exist, to help it to change. let's -- we have time for just one more question. that's okay? okay. this gentleman right here in the front. did you have a question in you could wait for the microphone, please. here it -- >> frank manheim, george mason university. i think you can make an argument that jimmy carter and ronald reagan violated the spirit of the laws, but when would you begin to, or would you tell us about the first presidents in the postwar period who may have set in motioning a trend to take it ease i on the constitution -- easy on the constitution and the

laws? >> well, you've limited it to the postwar period when, in fact, it should be much earlier than that. teddy roosevelt is the exhibit a, i believe, of departure from a constitution of limited government. president cleveland vetoed a bill in 1887,100 years after the constitution was written, that provided the sum of $10,000 for the relief of texas farmers who were suffering from a brought to buy them seeds. and he said in his veto message that he could find no authority for this expenditure under the constitution. ..