[inaudible conversations] if. >> welcome back. we were here six years ago when i interviewed you for a history of five presidents and their use of executive power i love reading it to prepare and interviewing you i even read it after the interview. >> great.

i hope he bought two copies. [laughter] >> that i did not do. so i asked if i could interview you and i jumped at it then i found you did not write the book. [laughter] but there is good news but it is the compilation of legal essays of 26 legal scholars talking about various areas of the executive bridge -- executive branch. that is pretty dire to put this together. >> thanks for interviewing me it is my desire to write books faster so it is sent once every six years. this book came together to

see what characterized the obama administration over the last seven years. with foreign policy crisis is in command one of national security threats. end of that administrative state and the federal government as a whole a and sometimes we see here and there but the real is how large it has grown over the last seven years. the data obamacare statute but it is the story that is almost in every subject area of the federal government today. >> we try to look at each

major agency when we thought were heavily involved or had been the head of those agencies where you are the expert, not me. so the former attorney general so to think of of better person were for gun rights we ask a former congressman and libertarian. >> looking at crisis and a command and we discussed how the founding fathers debated and then they finally

decided upon the strong executive. so george washington was drafted how did the house the government? >> most of the -- mostly customs collectors and there was the great quotation of thomas jefferson i'm sorry jfk of gave to a the nobel prize winners and he saved -- and said there's never been so much intelligence as thomas jefferson by himself. he had so much ability from his administration's from

hamilton in the treasury department. what she did was say general it came into office to recognize the presidency and the state of justice and to give orders and they carried them out right away. that structure is to the other kind of government. >> civic talk about operation in chokepoint. and they actually have a case. with a supreme court

advocate so then we go back. what is operation in chokepoint? >> of very disturbing program that are rising in other places where the federal government tries to prevent access to banking not that our illegal but perfectly legal in in the one he focus is on is the payday lenders and these are companies or small businesses give people the advance loan before their paycheck. >> host: i want to talk about that but first the list of these bad organizations because let there be any doubt to the of

messaging the fdic published a list of high-risk industries. lottery sales, the coin dealers i represented a coin dealer before in the ira's. and the people were so nice they were mom-and-pop it required them to spend $5 worth of paper work to sell the dineley had to get that change but pharmaceutical sales and that paid a loans. >> it is the disturbing about this there is no statute that congress ever passed going after these different businesses they

could probably be and that of existence if it wanted but it hasn't. >> that fits dodd/frank perfectly. >> generally the criminal law to extinguish ago whole brand unless it clearly says so what is says to the administrators in cahoots with the other agencies in the justice department with the very vague lot of protecting that regulation. >> originally they did not want the banks to risk their reputations and to harm the financial system so part of that is what is the bakes' start lending to the industries that our high risk so they would doubt if

they should be regulating but the government through this interpretation there really doesn't have any grounding the week is stop the banks from regulating the industries that have said -- bad reputations as the neck and then the depositor is the bad person. >> but what is troubling is reputation is the standard that gives regulators the freedom to pick and choose who they do not like. to select certain individuals or points of the you almost a purgatorial treatment using the power of the government. >> patel said techniques how do they squeeze those banks

to go along? >> added the regulators would prefer they never do anything formal like giving the necessary approval with the six theaters it is like a lead nejd them without having to formally pursue the day to prepare you don't really want these people. >> you may have trouble. >> ben no formal action ever. but they threaten the cutoff of funds of more regulatory review something more expensive to coerce them and persuade them that i think it is forcing them into what they want them to do.

>> host: so now we have to go to courts in here it is in district court in going forward on the due process grounds but i have a question. [laughter] guests what industry is not included in? marijuana. and not only included but the above a treasury department issued guidance to enhance financial services for the marijuana growers to sell its.

you cannot make this up so is there equal protection arguments? >> i think the abuse of prosecutorial discretion because it is said to enforcing federal law in some states like california and colorado where by state law say that marijuana usage is recreational league okay but it doesn't create an exception. this administration seems strangely. marijuana legalization. such use operation in chalk -- chokepoint and though setter actually illegal in some favor marijuana use. >>ost: i will end with this observation they say

payday lenders and pornography dealers. but here is the official that we change the structure within the financial system and we are choking them off from the very year that they need to survive. it is that kind of business. >> guest: i agree. that the government could prosecute with the experience and the burdens of the regulatory state issues saying the threat of the ministry of action to coerce people to get its way it is not what the framers had in mind. >> host: so let's go to the courts how they treat

agencies. so we discussed the executive authority. washington, a jackson, when does it start and how? >> talk about crisis in command and how they're really experienced during crisis. but when the crisis led past the executive branch would shrink. woodrow wilson is the intellectual father figure. he saw the expansion of the agency's 80 wanted to make it permanent and he felt that was sufficient where he

came to read my error the government administration it as a political scientist and then expanded by fdr. in the crisis of the great depression and he took wilson's ideas with his model and made it permanent. and then to be supercharged by lbj then obama is the last version of the great expansion from fdr and l. b. j. bennett now is like steroids. >>. >>.

>> in them praying to nixon because my? so what were they doing all this time? this. >> with eisenhower and nixon they try to keep peace with a giant welfare state that was created. if it tries to return this back to ronald reagan. because these theories that come back around he wanted to do regulate to allow the economy to grow faster and

debated that the other branch of congress and the courts to have more of a free hand give make the claim that the court came up with the chevron doctrine that said the court's should defer to the agencies so reagan could deregulate. >> host: with that chevron case in the epa that was invited by philosophy if you change or build or modify but then that goes to court.

>> that clean-air act gives the epa to regulate to make the air cleaner consistent with economic growth than safety. with that burden in regulation with those outside groups to challenge so the court ended up agreeing with the registration and we should defer for the worse scientific expertise. and we should defer because of the elected branch and more accountable and responsible. lend it we're not elected and we have the jobs for

life so there is no accountability for us to make policy decisions. with those agency rules with those statutes -- statutes. >> so that is the end of the story. the law isn't clear agent he would think it is the most vulnerable place. kid to see other hard profile cases to say that is the statutes are clear when her weld challenged the

obamacare subsidies to set the exchange. they are quite ambiguous said this is where agencies will do most of their work they have this pushed back from the courts. >> are you mad at congress? >> but then. >> especially with the al legislative history.

and then with justice scalia. it does is to read anything. but in the '80s. >> it is partially congress's fault if they wanted it to be very hard to make a lot at all to issue the house and senate to a separate body selected different times that they could veto with interpretation that is really difficult to reverse that system under the obama administration to delegate authority to those agencies that is supposed to be the status quo congress has to

go through those troops to stop the agencies from imposing more and more burdens. is the complete upside down of the framers constitutional system. >> to overrule chevron to say. >> this is interesting struggle of jurisprudence there are some of like justice scalia was a loyal fan in judge bork was as well. even the most administrative law clerk but most recently justice clarence thomas has been raising doubts about chevron and if it should be

overturned. >> host: teethree they are beginning to have their doubts? >> somebody that was raising doubts about concurrences of criminal law. >> so let's move on to the irs. that isn't necessarily addressed. >> said he endeavored to of taking confidential information in a discriminating way. and i am not doing it that they used irs rules to thwart the political process.

i just want to give some political background and we have had various limits of rules how to contribute but the case of fine gold it was a provision certain people to a batting cage that was corporations, nonprofits. is this the time they are supposed to be? we still have that rule. these are third party groups to speak on an issue. >> that is flatly unconstitutional civic then

what happens? >> like water always finds a level money finds a way to go? it is the aftermath. were mostly liberal groups were doing them because the rules were iffy from the ftc -- federal elections committee and citizens united there was a movie about hillary clinton made during the 2008 campaign and it was against her and we want to know if we are putting it in jail and that is what it was about and i have 2.0 the irony. du now how much money he had available because he is a taxpayer.

>> guest: i am sure it was not enough. >> host: $840. >> the 740 million so you can see the republicans are exploiting that we have to figure this out. so now with the oral argument but scalia said to the solicitor general if i read a book, 400 pages that on the last page if i see don't vote for hillary is that bad? and they said yes. said justice scalia i

thought he would fall over and turn purple. [laughter] now. >> the government just like they can regulate speech of private people and vegetations by private people or corporations, i have always been puzzled why critics of citizens united get so upset. so we would not say recognizing the right to abortion but we would never say you can spend money on abortion. civics is in united say is

said to have a right to free speech that is when they're really wanted to protect that speech and of how we say you can spend money can you get away with that? just like you cannot spend any. >> the democrats did not like this. >> because the study showed that citizens united would have a worse effect for support for the democrats because unions spend more money than corporations. they got such a burr under the idea but also labor unions. >> host: even though the president. >> to be allowed foreign corporations to spend

without limits. but who was with the? and becket was murdered so who will win the from citizens united? the irs. >> so we have an article by a lawyer for verse state legislator representing those for the nonprofit status from the irs for these kinds of purposes we're talking about. in to slow them down without explanation they were pretty routine.

to spend information that is unprecedented. . .

for partisan purposes? >> guest: everybody realizes it would be terrible for our democracy. and then as this shows officials and the irs did use their power for partisan purposes to strike at the groups they ideologically disagreed with because they were using the discussion discretion and enormous power of the administrative state. >> guest: it's just like you pointed out the regulators have asked for more information to exercise their constitutional rights and it will never show up in the court as it will never come up to play. >> host: but they make

recommendations. >> guest: a lot of the responsibility is with congress not just giving them cover to start with which congress decades ago the people in congress melted and passed those laws but they can pass the law to stop it and take away the power and conduct hearings and hold people responsible. the voters don't demand it and sometimes know more about the profits being brought home to the constituents to the district instead of asking are you following up into some of the congress don't have the individual sector because this isn't going to help you get reelected and some of it has to

be the congressional leadership. >> host: i don't think they know how to hold hearings. it is almost a was almost a disaster yet i had all kinds of information. this simple concept like the security personnel went from 38- 9. they should be just as good at it as democrats but the bottom line is i think conservatives and republicans are very poor as a part of running congress. >> host: i said that they are organized into come from places like universities and unions and people work together as a group maybe not so much.

>> guest: >> host: but they tend to distance people and a rancher from montana there are fascinating definite individualists and so i think they come with different attitudes towards government and why that should keep the republicans from being able to conduct a hearing they were looking at in teaching the commissioner did you hear any more about that? >> guest: i hadn't but that is one thing either party can do and it would be to start using the power not at the presidential level to the level of the cabinet officers or lower down.

the federal regulatory laws are 300,000. that's about the criminal law. they are going to know this stuff. let's get a printer and tell them the difference between those. >> guest: there is an idea that there are some things that are bad by nature. >> host: common law.

>> guest: all societies will prohibit and there's other things you can think of as not obviously but they continue to criminalize. we start as a common law system with criminal law and there are 300,000 criminal provisions on top of the ones in the state law those are not always evil by nature all governments are going to prohibit. >> host: and that is another criminal law concept. >> guest: you see this huge expansion that used to be the idea that you have to have a certain state of mind that you intended to carry out a crime so if you intended to kill someone versus someone died because you had an accident, then in the law

in these areas there's there is this idea of strict liability where it doesn't matter whether you had an intention or not. you are going to be held guilty of a criminal act. that's another revolution and its not the system we started out with but it's a key underpinning of the criminal law today. >> host: there's one other factor into that is the doctrine of inanity. tell us about that. just for this has this has to be the criminal defense attorney which you are now, the favorite part of the law. [laughter] >> host: maybe not so much. >> guest: it goes back to the idea you start with that they are supposed to be few and clear and as citizens we could understand what it was we could and couldn't do and it meant the criminal law shouldn't be vague.

if it didn't really tell you what was illegal and you know it's ambiguous that but it isn't clear what you could or couldn't do, then the governments, the courts especially the prosecutors employ the remedy to be generous and it's almost that things that were close should be counted in the defendant speed but they should read the law to be expansive and reach things that it clearly did because again we should be able to tell what we are and not allowed to do because criminal punishment and consequences are so severe and harsh. >> host: a complete opposite. >> guest: exactly. and i think this is something justice scalia and thomas raise questions about. it shouldn't apply at all. >> host: he's good to be known as the great defender.

he did say that he's getting tired of writing that. >> guest: it's terrible about the passing that it gives a chance to appreciate him and many of his greatest opinions the ones you render best. i think he should have been proud of the dissent where he said the independent counsel is unconstitutional. this 8-1 or 72: and he has that great line he says sometimes in the separation of power they are wolves in sheep's clothing but this one is a wolf dressed like a wolf. he was so right. >> host: in the language, but they put them in a way they were all just very creative concepts as he says here that requires interpreters to resolve in favor

of defendants and he said not to do so would turn the normal construction upside down replacing the doctrine with the doctrine of severity which is a great quote. >> guest: and he's right as a matter in the law that is not constitutionally required it's just a rule of traditional policies of a good idea for themselves about how to approach reading the statute the statutes i could only agree with you and i think with him that that makes no sense to air the criminal law where the idea is not that the court should defer to court should defer to agencies but there's another more important constitutional value that due process requires the criminal defendant citizens have the ability to tell what is a legal and it goes back to the point you raised earlier that there are conservatives now questioning whether it was a good idea so like in the

criminal law trying to corner off areas they thought would be immune and essentially justice scalia would have called for them entirely. >> host: i couldn't even believe the court would even give you to think of getting them deference. >> guest: the other end as justice breyer most of the other side of the point what he thinks of the administrative state as a sort of super rational and efficient managers of congress, it's almost like a black box things go in and come out and who knows what happened, and it's the agencies and the president and the executive branch and the government that's going to make harmony out of everything and engage in efficient regulation, so you should have chevron deference for everything they will make it all work out because the congress is passing all kinds of

crazy things into someone has to smooth it out so they would say why should it be different but i agree there is a due process. >> host: let's see how it worked out for somebody named lawrence lewis. he grew up in the dc projects, started out as a janitor, worked himself up to be the chief engineer. it is a retirement home for the military or the spouses of military with lots of elderly people and they split the questions of diapers down the toilet that was causing a problem backing up into their rooms and so lawrence decided that he should should divert it to a sewage drain which he thought went to the plant but alas it did not. it went to the creek and then the potomac and the justice department went after him and

charged him with a felony and admitted that he didn't even know what he was doing. >> host: >> guest: unfortunately that is like thousands of other cases where the government is overreacting and this is something you should be up to solve by common sense the government saying you made a mistake. you didn't intend to do it. instead they come down against this guy with criminal sanctions because they can, because they have that discussion and debate of a wealthy escape oversight and they know the course that is the third 2,000. the book is full of good examples examples of cases like this. >> guest: i like it better when you tell. >> host: they passed the law to protect the wildlife, that

sounds okay. but then in 2008 guests who controlled congress in 2008 come , the democratic congress. they extended it to protecting plants but not just united states plans that any -- everybody around the world. so you can't import a plant that is in violation of another country's law. do you remember the story flex >> guest: yes. it's really interesting and has to do with whether you can import certain kinds into the united states or not and this completely turned out to be illegal under the law but this was according to the regulators illegal under the american law so these people were prosecuted for basically importing the wrong kind of seafood.

>> host: and evidently they didn't even know because later -- but they got six years and the woman got two years. >> guest: so you have to ask yourself why, this is the other thing there are so many problems in the country, so many things that demand government attention. why is the government sending prosecutors after people of course i live in berkeley whether you have paper or plastic seems to be one of the most important public policy questions. >> guest: we got used to carrying our bags into the drugstore places.

>> host: federal agents points to the plant in tennessee and said give me your word and guitars because the were in violation of the law. >> guest: it's from an indian church re- and it isn't even clear whether they knew where it was coming from and he said quite clearly if i knew they were in danger and the input was that i never would have used them. as of again why does the government have to use the power of criminal sanctions to destroy the business. it shows the government has so much power he can use it

arbitrarily that shows how out of control the state has become when this has become routine. >> host: they reached a deal a few years ago and they settled for $350,000 but that is cheap change. >> guest: i'm sure the government would have had to pay him. [laughter] >> host: not this government. but the cover materials back and you can still buy what from india. >> guest: so what was the point of it all. >> host: then i want to bring in a client of mine and a little story it wasn't a criminal case, it was a civil case but it was disastrous for them for a few years. do you know what compounding pharmacies are?

it's a really important niche in the drug business. they make them in different forms for people. not everybody is supposed to be taking medicine and the exact measure that they are sold to the masses so we need them to do special mixing if they left the old pharmacy. very important of course they mix controlled substances so they have to have the license for the controlled substance and that is all well and good. you have to name the patient and my compounding pharmacy was for veterinarians. if he hadn't written any rules for veterinarians and it's a whole different kind of business because they are kind of a

walking pharmacy and they see who's got a problem and instead of writing the name of the patient down, my client for the name as a debt and if we argued what were they supposed to write down. so they came in armed taking documents have. as a result the controlled substance license. in fact when we came in to the court of appeals do you know how we went back same time the story because it is interesting for people to understand they didn't say give them back their license. they said the dea that is kind of a problem, work it out. we were happy with the fact.

you are going to go through an administrative hearing and of course lots more money, $350,000 then after it took another year into the administrative judge still hadn't ruled for the agencies and we finally threatened them and guess what, our client got the license back when we drafted them and said we are filing this next week if you don't give the license. >> guest: it goes back to the famous case which the chief justice marshall found or inferred the right of the judicial review that it's an order by the courts to the government official saying kerry out your legal duty.

so they realized that you were in the right and they were just giving you a hard time, slowing things down, punishing people without doing anything. they were supposed to give the license but they decided to take the time and doing it such every day you don't get a license like that is this every day that your client can't work. >> host: you can't go cry to mommy and daddy until it reaches such a tying [cheering] >> guest: many people will not have the fortitude and the resources to hire the well-known criminal defense lawyers they might just say tell me whatever i have to do to keep my business going for chance for every case like yours there's dozens of people that never see the light of day that suffer from this

great example they can't just carry out the businesses. it's not harming anybody but it doesn't fit the priority of the government. >> host: i think i forgot to mention this client of mine have advertising in the government on some issue. i want to end this conversation with something about justice scalia if i can get through it. i think the image and he will send everybody to jail because that's what conservatives do but it wasn't. he was a textual list and he looked at the text of the constitution and said this is what it says. i have to allow people to. and he told me that one of the cases was crawford versus

washington. do you know the case of? it is a requirement that there has to be cross-examination of somebody in the out-of-court statements so in other words the lab technician but said it was cocaine, that lab technician has to be in court for cross-examination. >> guest: the defendant has the right to see the accuser and the witnesses and sometimes that meant he wasn't willing to go along with putting up shields in front of people even if they were kids are vulnerable people because the constitution. i was going to say another great case where i think justice scalia and justice thomas to went along with a libertarian view the libertarian view of the criminal law in the idea that even though the case where that juries have to be able to make the decision on all facts that have to do with the conviction

of somebody and they can't do it for them and this had the effect of potentially needing the thousands of people that could have been convicted without have to be tried or have their cases stomped on the appeal and go back to the trial because the judges were getting controlling of the criminal justice process. and one more, talking about this i don't know what you think about the apple fbi fight, that justice scalia and several other conservatives are much more favorable about privacy rights in the face of new technologies many people might have expected. the cases i would point to is the police officer that goes around the neighborhood with the heat detection device to try to find marijuana. now we know they can get a lot of money.

and the justice said that the search even though they never entered the house and usually the entrance of the house was seen as the fourth amendment protected space but not what you could see from a public street and then the other one was the gps tracking case where the police have put a tracker on someone's car and even though you could have physically followed the car in person and that wouldn't be considered a violation of privacy, justice scalia joined with other justices to say we are putting a track on the car as an innovation of privacy so as you said, liberals i think on the other side of the case so the idea that the liberals favor criminal defendants and those like thomas are in favor of the government are definitely not true in this new world of privacy. i don't know how he would have come out on the case for example i could see him voting on apple

's side although i think that they have the better argument here. >> host: we are not too far off on that but it amazes me if the county is saying take it i don't understand why it's such a big issue. i think it would be better handled on another set of facts. they've gone out there for. one last area, immigration written by the syndicated columnist. it's a major issue. it was a major issue in the 2012 campaign and now of course it is coming again but here is this context, and they really want you to comment about with president obama did because he spent years saying i'm not the emperor.

with respect to the notion i can suspend deportation by executive order and he said it like two dozen times and then in 2013 is versus a democratic senate and the house and senate passed a comprehensive immigration bill and then the republicans caught it in the house so there was a sort of we are going to get a better senate and in 2014 we are not going to deal with this. and 2014 they did get the republican senate if not 66 votes so anything they were going to work out together wasn't going to pass. so the republicans into democrats are then had to negotiate for something. you get a little, i get a little more maybe. but president obama did the guy

have to tend right after and didn't even give the senate and the house the chance to work on the legislation. >> guest: a lot of them are where the president unleashed the agency come isn't monitoring them because the agencies are going off on their own. as you said this is a different kind of case where this really is the president of the top. this is going to be his constitutional legacy. it may not be the one he wanted but i think it will be his major effect on the separation of powers and the constitution and that is the claim that he is the right not to enforce the law when he disagrees with it. i don't like the immigration quotas were the priorities that are set out. he isn't saying that it's unconstitutional although when we talk about the command presidents often struggled about

if it is unconstitutional they might not enforce it and it goes back to thomas jefferson. this is different. no one says they are unconstitutional. everyone at its have the power and they get to decide the criteria for the removal as the legal term. president obama just came and said i don't agree with how the statute is written. i want there to be more generous policy and personally i would like there to be a more generous policy. i think linda chavez wants to have a more decent immigration policy but you can't do it for the president to just say i'm going to achieve it by saying i want more people in the country so i'm not going to remove people that are here illegally because i disagree with it, that is unprecedented. even richard nixon didn't go that far and president lincoln who i think is the most expensive user of presidential power never went that far so i think that is really an

unprecedented effect but president obama will leave on the constitution that will have a ripple effect going forward. think about what happened if ted cruz comes into office and he could say i want there to be 20% flat tax. if congress doesn't do it i'm not going to prosecute anyone who doesn't pay their taxes about 20%. if you were in the 34% bracket you just pay 20% you get a free pass, okay by me. think about what presidents can do with the power to just rewrite the law. even if congress wants pass it, i'm not going to enforce that when combined going to enforce that one. he could do opposite of what they want. so i think in the immigration area president obama has gone so far out on a land someone like me me as a great supporter of presidential power, i can't go that far with it.