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tv   [untitled]    June 12, 2012 11:00pm-11:30pm EDT

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we don't even talk about the fact that most states have the line item veto. the executive is an aberration of one of the 52 constitutions of the united states. especially your weak law schools, the higher you go up in the pecking order, the less likely that the students or the professi professors are likely to know. i think it's extraordinarily important to integrate the little laboratories of experimentation and to see how different a lot of the states are, including i expect the structure of the administrative law and there might be something to learn from that rather than to repeat what are basically now roped arguments about how best to interpret, i think, the
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inevidently -- >> i would also like to thank the society for giving me a chance to leave the city of berkeley, and come to a more -- i don't think that the protesters outside playing darth vader, because, a, they know me too well, and number one i love all the star wars movies. it's like the jedis come through they're like judges, they don't fit into the constitution, they have robes, they have little clerks following them around doing their fitting. and they intervene in all levels of government. it's very interesting. someone's going to write a
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student note about this now i'm sure but the other reason is that if you're getting protested by darth vader, then you're one of the good guys. i think i'm going to be protested by a man in a curious george outfit. the last thing i would like to say is really a pleasure to be here, not just with my friends on the panel, i'm really glad to be on a panel that does not have richard epstein on it. so i am finally going to get a word in edge wise, because he's just not allowed to speak, until the question and answer period where he will rectify i'm sure. >> here he comes. >> no questions here. >> i just had one personal story, richard and i have this podcast that we do every two
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weeks and we happened to be in new york and i thought it would be fun to go a jewish deli in new york where rich instructed them on what the sandwiches should have on them. the scholarship in our field is moving in this direction, more about constitutional design rather than historical legitimacy or historic authenticity, i wanted to take what he had to say a little bit farther, i'm not convinced, even if we were to design a modern presidency, knowing what we know now, that we would design one that is that much different than the original presidency.
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there's a lot of duties which were not necessarily what the framers of 1789 wanted to do. so we have difficulty reconcile who we want as president. i think the attacks go well beyond the constitutional design. the other thing i thought was really fascinating, because of his talk, i'm going to go out and buy his book at lunchtime, but that doesn't mean you shoulden bshould n't buy mine too. it's about the good and bad presidents that would correlate with what he wanted. abraham lincoln would not have been a president we wanted to elect as president. we're talking about someone who was a loser, he became famous by losing a senate race. and he was everybody's second
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choice. you can't have predicted before hand that he would be good at the presidency, you might have wanted to elect george mcclellan during the civil war. he did run in 1864 and he lost. i was thinking what president in our time you might have thought on paper was most prepared for the domestic side of the presidency and surrounded himself with a lot of people. wiz richard nixon. think of who he had working with him, george schultz. i think part of the reason we have this problem is because i think the framers' design for the presidency is different than the one we expect. i think we focus on the american presidency at least at equal
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parts for its domestic program, where i think the framers actually had a much narrower view of the presidency in mind. i think the framers really expected the executive branch to be devoted to foreign affairs. and here i think we have seen in the last ten years of presidency. despite george w. bush's presidency, trying to actually buying themselves in foreign policy. so dmesic affairs, there's not a long discussion about the role of the president in domestic affairs. the framers would be surprised to see the kind of president we have today in this area. they thought the president would be a check on congress. some federalist number 70, alexander hamilton says a vigorous executive is necessary to protect against the irregular
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and high handed combinations which sometimes interrupt the ordinary course of justice, which emanate, from, quote, unquote, the humors of the legislature. tom and i worked in the legislature, and there's not a lot of humors there and that's why they rectified that andand it's not talked about this sort by the president to convince a congress to enact his or her program and it calls furnace an aadditional security against laws that would be unfriendly to the public good. so in one respect, i think the reason why we have this disjunction is because we have
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presidents who feel now today that it is their role to promote an active domestic policy and almost integrate themselves with the legislature and this is something that not only runs against the framers, i don't think it explains why president obama is getting so low -- obama care and the t.a.r.p. and the stimulus. and he gets blamed for all of those but they were actually written in congress. i love all the names like gatorade for florida, the cornhuskers in nebraska. all those deals, we all attribute them to obama. but they're not his doing, but because i think the president came too close to congress, too associated with the activity of passing legislation rather than trying to check congress, the
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president's opinion polls sort of start to track the very low opinion we have of members of congress. on the flip side, in foreign affairs, this is where i think the framers did expect the executive branch to come to the fore. it's the only reason why you have to have an independent executive that's separate from the legislature. we could have a parliamentary style of government where the president appoints -- but in foreign policy, the framers thought you ought to have something different because foreign policy has unique difficulties from domestic policy. there's more advantage to having one person act with what's called decision, skrees si and dispatch because the harm to the country might be greater so we might be willing to exchange
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more people to be able -- and that's why alexander hamilton said, war is the greatest challenge, war is that area of human life that is best suited to control by the executive. so i think the basic tradeoff between and i think the response is you could have a government by legislature, which we have seen a lot of european countries, parliamentary systems of government, they trade off, it's very hard for legislatures to act quickly. they may make less mistakes, the more people involved in a decision the less chance there's going to be a mistake. but our -- makes it harder for domestic policy to get passed. because there's no great harm in domestic affairs there,'s auld the states that can regulate. if the federal government
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doesn't do something, it's not like there's a lack of federal action. in foreign affairs, there is that kind of price for inaction. i'll just bring it back to you the actual talk of the panels. so i actually agree with sandy, i don't think czars are constitutionally problematic, i think as a matter of administration, they might be a bad idea as policy. but i think it's because presidents take it on themselveses to get so involved with the electric chur, so involved with the laws that they need more and more people to assist them. i don't think it raises any constitutional difficulty. libya, i think is a demonstration in the last few years president presidents who actually have been trying to bind themselves to reduce the kind of vigorous constitutional presidency that should operate a national security and foreign affairs, for example, what struck me about libya was the claim that libya was not a war.
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which i think would have surprised mr. gadhafi because we were trying to kill him during that conflict. but we delay it it for two to three weeks so we could get united nations approval. the administration thought it was more important to get approval from united nations than from the congress. i thought that was a remarkable thing -- tie tarrant county fate of our national policy to an organization that is not even part of our political system. thanks very much. >> thank you very much, i sal lewd barbara, michael, lon, gabe for arguing this conference.
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i also want to congratulate a lot of you for being in the audience, because there are a lot of other ways you could have spent your saturday morning. for those of us who are passionate on this topic could not imagine spending their saturday mornings any other way. my 7-year-old daughter said to me the other day when i asked her to take out the trash. she said papi, i think there's a problem with one of your doctrines, you didn't say when i should take it, how much i should take and how long i should take before i come back. i hope to make basically just two points. one point is to situate some of this discussion into a little bit of historical context and the other is to observe a little bit about how history is
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evolving. at least it further puts some of the scaffolding on the context of how we should think about some of these things. i want to start with the reagan administration because it's hard to think about a great deal of national discussion about the role of the presidency in foreign affairs and domestic affairs. reagan thought a vigorous -- important role in the country in both domestic affairs and international affairs. on the domestic side in particular, given john's very interesting comments, many of the leading cases that we talk about in administrative law today, are about the reagan administration. state farm, edf, v. thomas. these are cases where the white house is trying to reflect a particular philosophy, as to how the law should be implemented.
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as justice rehnquist says state farm reflects a degree of democratic legitimacy. as much as they're consistent with the law, with the statutes, in a different way. how, justice rehnquist asks could we not expect elections to matter. we still expect legitimacy to flow from the presidency. and that's not just something that goes back to the reagan administration. it also goes back in time. i just want to read a very little bit from some documents, circa is roosevelt administration, and then i'm going to briefly quote some testimony from the truman administration, that will show you what was afoot in the reagan administration was not that different at all. all of us have heard about the badless that the roosevelt administration had with congress, vis-a-vis a court
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pack. a parallel battle, just as intense in pitch at the time, probable comparable to the -- reflected the -- reorganizing the executive branch. roosevelt was clawing for authority to reorganize the executive branch. when congress slapped that down, just as it did the court packing plan, interestingly enough, the roosevelt administration did not take another run at cork packing, but it did take another look at executive reorganization. if you want to hear more about exactly what happened, you can read a book that i've written that's about to be published but is not on sale today. i want to draw your attention to something that was buried under stacks and stacks of paper in the roosevelt library. what the president was saying to the staff about the importance of reorganization. the guide to the timing of steps
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of reorganization, the following is suggested. do those things which when done will assist the president in discharging his spopts as the chief administrator of the government. second do those things which when done will advantage the work of those administrators who have been chosen by the president to assist him in the discharge of his duties, whose responsibility to the president is through the president. do those things which will advantage the heads of the departments in the discharge of their own responsibilities. it has a note at the bottom, and it says historical note. this is what i found interesting. roosevelt's aides were describing to the president the result of an effort that was undertaken -- this is what to the staff tells vooz roosevelt. it is an interesting fact that few -- in terms of the interest of the president or the presidency or the administration. but nearly always in terms of
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the immediate and particular interest of a department or a bureau. a couple of things to observe about this. number one is the extent to which roosevelt's staff understands the president to be the chief administrative office of the government. we can argue whether that's right or wrong. second it's interesting that the staff are concerned about how even hand picked, very loyal political lieutenants in agencies might actually have a diver negligent view, vis-a-vis the president. fast forward a little bit to the truman administration and here's one of truman's agency officials describe how long he views his role as a presidential appointee. the department his must be regarded as an extension of the president's personality. he's expected to carry out any basic instructions which a president may provide for his guidance. political attitude, which this
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appointee describes as an important role to bear in mind. beliefs about the scope and magnitude of government activities and the ends and means of government action. the truman administration reflects agency officials describing to congress their understanding of the role of agency heads as folks who have not only an expert technical role, but also a role of engaging in political judgment. there is what i want to observe, clearly you're talking here about a long running effort on the part of presidents from both parties to figure out how to make sense of their responsibilities vis-a-vis a very large government. a large government, that i might add, notwithstanding effort fos get laws enacted was almost entirely created by congress itself. that would mean to enlarge the executive office of the president. to create senior aides to the
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president who has the responsibility for dealing with cabinet officials. but i also want to note that this discussion within the executive branch was not happening with a judicial vacuum, if you look at the midwest oil case 1915, these cases are almost household names for law students. but by noting the passage of time matters and to the extent of presidential pa aial powers in nature, in part it's being driven by congress and in part it's being driven by the particular -- agencies and resulting in an executive branch that often involves agencies with overlapping jurisdictions of the these overlapping
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jurisdictions often place the president in a strange quasi-ajudicatory role. it's important for us to reck that courts have a very important and central role in our system. but when it comes to the issue of supervising and constraining executive power in particular, i submit that courts also face great constraints, some of these constraints are from standing constrain constraints. anding where that leads us should be in recognizing that the courts have an important role but further recognizing that the rule of law is in our own hands, and by that i mean in the hands of people who are appointed to executive agency who is always have a chance to say, this is not what i signed up for, this is not what it means to be loyal to the corporation so i'm leaving this job. thank you very much. >> thank you, professor.
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>> my presence here is an example of what you might call just in time logistics, as a result of some travel difficulties they don't want to tell you about, i arrived about 15 minutes before the panel was scheduled to start so i am here. and in the interest of last-minute adjustments and spontaneity, i'm going to substantially depart from what i was originally planning to say which was largely about war powers and a little bit about czars and instead talk more broadly about the topic we have been discussing and pick up some of the things that everybody else on the panel has already said. the first thing i want to talk about is the neutrality of the president, picks up something that the way that the truman administration after the
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roosevelt administration -- one of the things that the truman administration gave us is an almost certainly and potential disastrously -- this is an issue on which i suppose john, you and i would have strong feelings because the story is president truman overruled the legal counci council. >> from the president to the speaker of the house. then the president for pro tem of the senate, then through the cabinet. for a long period were the most recent changes which were done under the truman administration between 1945 to 1946, when the statute was reconsidered and revised in light essentially of modern warfare and in particular nuclear weapons.
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for the proceeding years the congressional officers had been taken out and the extension went almost entirely through the cabinet. which was a very good idea, both for policy reasons because it made it impossible to change the party controlled presidency by killing the president, which now can't be done again, if the congressional officers are in the line of succession. and better yet, and perhaps more importantly, it is at best highly doubtful whether it's permissible under the constitution for the congressional officers to be in the line of succession for the presidency. they are certainly not officer r officers. so imagine that something very, very bad happens to the president and the vps. the secretary of state being the
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president's party, the speaker let's assume being of the opposite party and they are bitterly divided on some major policy question. a and -- i don't even like to think about what might happen under those circumstances and it is harry truman's fault. and the point i want to make her ises, president truman happened to believe very strongly that it was very bad for someone who had never been elected to act as president. so when the statute was revised right after world war ii, he was adamant, even to the point of over -- he was adamant that somebody who had been elected ought to be in the line of succession, and despite the constitutional difficulties with the arrangement and despite the problem of changing party,
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president truman said, well, i'm the president and that's what we're going to do. and one reason we have that, and so much particular power in the president of the united states is of course we have a quite short, a quite spare constitution and one that is very, very hard to change. and put all of those things together and you have a great deal of authority invested in the president. i think the single most important change that may well be made, will be the constitutional creation of a federal central bank. as a consequence, the constitution is too hard to amend, think of state constitutions and they are much easier to amend and they adapt to the times much better. we still have the original
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constitution. quite short, quite brief, as, john, you said, designed for a presidency that does not necessarily fit with the modern presidential role and in particular the role of the president as domestic leader. i will say that the idea of the president as legislative leader began almost at the beginning. this is one of those topics where the plan went awry almost from the outset and jefferson was the leader of a political party and was immensely influential. having to -- for being so brief and being so brief in particular about executive power and hence putting all sorts of important decisions like the one about presidential succession, specifically in the hands of the president. i would say that if you wanted to justify the system we have, and wanted to say, what is the role of the president, and we're
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thinking about should the president be making detailed decisions about how to structure the bailout? should the president be deciding monetary policy? quite possibly no. but one powerful argument that can be made in favor of the quite brief and spare system we have that puts so much stress on the identity of the president is that it creates a role for the president that maybe somebody can do. and one of the things i think specialists separations of powers and specialists in executive powers tend to underrate the insight on which chief justice taft's opinion on the united states is built. the part of the problem is that the opinion is, i don't want to fake too much fun of chief justice taft. we'll just leave it at that. the fundamental -- if the president has the power to
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appoint and the power to remove, chief justice taft and the then president of the united states thought those two powers together were all the president needed and he might have been right. because if the president can decide in whom he has confidence. if the president can decides often in very technical areas, for example monetary policy, this is the sort of tendency that caused me to be elected should have in this role. and if the president can then take somebody out when he loses confidence in that person, even if he doesn't understand what has gone wrong. he know that something has gone wrong, all the people really need to act when they elect the president is not do you know anything about monetary policy, do you know anything about emergency management, do you know anything about nuclear disarmament. but one, what is your basic world

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