aggregate pretty sharply, and it's a trend that we miss. and so i would just finish with that means the sort of crisis go to waste point is is really imrtant here, that we need to understand that it's worse than you think in the labor market out there. sure, the unemployment rate is is really high, but the average wage has dropped a lot, too, and so o it's not clear that they're keeping up -- or they aren't keeping up with inflation. and so, and so that calls for changes in policy, frankly, and, again, you know, we have this paper that's subsequently been confirmed by a dozen other papers that shows the high corporate rate is squashing u.s. wages. it's not really rocket science, but it's clearly in the data. we have to do something about this. it it seems like -- this would be the final observation. the mood in washington has been

we've got all these crazy problems like broken fiscal situation and corporate taxes that are too high, and instead of fixing those problems, let's just try to jack up the economy with a keynesian stimulus, and soe'll keep these bad things but hope that this positive thing offsets those. if there's a hope for me about where we go from here, it's that that reasoning, those sort of larry summers' timely targeted and terrible is is probably the third t -- [laughter] that that's just off the table, and wages and unemployment are the fundamental reason why we can't play that game anymore. >> this okay. i think we have time for one more question. this gentleman's hand has been up for a while. thanks. one kind of expenditure that was not mentioned which i don't think how large the total is, but as agricultural subsidies would seem to me to be total waste now, unnecessary but significant and something to which the republicans seemery much wedded.

do you think there's any chance that the agricultural subsidies will be reduced? >> go ahead, robert. no. [laughter] i ink if you look at the co-chair's draft in the fiscal commission, they had some small reductions -- >> 10% or something. >> yeah. i think the size of those reductions in a plan that is otherwise pretty ambitious shows that bob's right. >> and then here's, i guess, a fun fact that will help put it in perspective for you. the agricultural land is the only real estate item that's continued to increase in price over the last few years, so it's -- like, there's even talk of a farm price bubble and so on. but it actually doesn't necessarily have to be a bubble because government policy keeps bringing up higher subsidies. >> [inaudible] >> i don't remember the total. >> i think it's something in the area of 18-20 billion a year total on agricultural commodity

support, so it's not the total farm bill which also includes food stamps and other programs like that. i mean, you know, i'm surprised there's so much pessimism. yo know, one of the things that the last time there was a republican wave election they were able to do was the freedom to farm bill that actually started to phase out subsidies, but then a couple years later a total reversal once crop prices went down -- >> that's why there's so much pessimism. [laughter] >> yep. okay, great. well, thank you so much to our >> this is starting thursday. jeff bridges talks about his work to reduce you concur. jane goodall on her love of nature and animals, chief justice john roberts and the role of the supreme court and later, lawyers discussed retired supreme court justice john paul stevens and former president bill clinton presents the

liberty medal to tony blair, thursday and cspan. >> our look at what steps congress may take to constitutional limit the size of government and the authority. this is an hourlong event. >> we will start the last panel now. i'd like to begin by thanking kate o'brien and arthur brooks of nria kei for convening this day's session. i've learned a lot already this morning, and am looking for to learning more from my fellow panelists in a moment. i met frank, a director of the william a. and carol g. center on religion in the constitution at the with us spent institute in new jersey. i am recently retired from teaching constitutional law and political philosophy at bradford university after 21 years.

and kate asked me to mention, i'm happy to mention that i have been blogging for the "national review online" since its inception, five and half years ago. i'm joined by three distinguished panelists today. we will g in the following order. i think we just agreed, first will be matthew spalding, director of the center for american studies at the heritage foundation. matt is a constitutional scholar co-author of political thought and religious liberty. author of we still hold these truths, just out in paper recently, i think. came out a year ago. next we will hear from michael greve, the scholar here at aei, authors among other things, real federalism. he cofounded and from 1989-2000 was director of the center for individual rights of public interest law firm. and finally we will hear from

mr. david mcintosh, former congressman of indiana's second district, served in congress for half a dozen years and was chairman of the subcommittee on regulatory relief. he also served in the reagan and first bush administrations, and when he was five years old or so, cofounded the federalist society, a very young organization. i will make a few quick remarks to set things up and then we will go to doctor spalding. brock of him as a cover something in his first two years as president. that bill clinton couldn't manage in his first two years. i don't mean the national passionate passage of national health care. i mean obama has prepared -- propelled countless americans to read instead and organized a political thought and action around a felt need to return to its principles. we see this in the invocation of a revolutionary forebears in the name tea party. for what happened in 1773 in

boston was a protest of constitutionalists. we see it in the habitual references to the constitution made that many tea party gatherings. politicians got the message. think back to 1994, the contract with america, i looked it up again last night, contract with america the 1984 republican party contain no references to the constitution. not one. but they should both the pledge to america and the contract from america may be constitution thing one. the first pledged america saying we pledged to honor the constitution as constructed by its framers. and the second, the contract from america saying as its first concrete action item that each bill introduced in congress should quote, identify the specific provision of the constitution that gives congress the power to do what the bill does, end quote. such resort to basic principles cost additional as an is a welcome development, and a market change from the outgoing

speaker nancy pelosi who said are you serious? when asked what constitutional provision undergirded the new health care law. the new house majority appears to be quite safe. the most important task before the new congress is whether it can recapture a fully rounded sense of its own responsibility for the integrity of the constitution. losses are going forward against the health care legislation in michigan, virginia and florida before federal judges of bearing degrees of openness to such legal challenges. but i think it would be a mistake in principle and in practical politics for the new congress to rely upon the judges to vindicate the constitution. first, the judges reliability is seriously in question. does anyone really want to trust this to justice anthony kennedy? second, it is not the judge is constitution. it is not theirs, subject to periodic judicial amendment by five supreme court justices. it is our constitution, and it's

the fence rests ultimately with us. the people of iowa remembered as three weeks ago when the unseeded three state supreme court justices who had abused their trust in 2009 by inventing a right of same-sex marriage under the iowa constitution. makes one long for a similar opportunity at the federal level, alas. and the whole of america people seem to remember it as well, as many of them were by concerns about the size, cost and intrusiveness on our freedoms of a government that has slipped free of its anchor in the constitution. every branch of government seems to have exceeded its proper boundaries under the document. the congress itself, by acts of legislation, that cannot find a basis in the constitution. executive branch agencies that rest of asked powers on slender reeds of statutory authorization, think only of the environmental protection agency, for instance. and the judiciary, which claims

supremacy over constitutional questions, never intended by the founding generation. a remedy must begin somewhere. the natural starting point being, i think, the congress as the most electorally responsible branch, especially the people's house. somehow the members of congress must discipline themselves while also paying heed to the damage done and threatened to the constitution elsewhere as well. a tall order, i hope we'll have some sound advice for the new congress from our three panelists. begin with matthew spalding. >> thank you, matt. that set up the task very nicely. thank you, adi, especially for putting on this conversation. it's extremely important right now. i think we have entered what we call a moment, shall we say. what interests me about it goes over the course of the 20

century the general expansion of liberalism has always thought to be inevitable, unstoppable. and we finally got over love affair with the founders in a thing called the constitution, but it turns out that's not exactly right. something has been awakened. this debate between the founders, writ large aggressive have been fully engage in the public mind, not only were issues that were naturalized but the election was foundation allies in a very important way. you see this of course in the election outcomes. you have to go back to see a midterm president lose as much in congress, you have to go back to 1938, fdr's second midterm. to see a large enough example at the state level you have to go back to 1928, when calvin coolidge was president. there seems to be something afoot here. a monumental opportunity. let me put it in broader terms.

in 1938, that election stopped the core momentum of the new deal that after that the expansion of the new deal was over. but it was absorbed. in the 1940s you remember the 46 election, congress came in, they lost that in 48. in the 1960s, because a very savings, including kennedy's a fascination. larger national discussion of these matters that the 66 midterms, didn't discuss it that much. and as a result of the various waves of liberalism absorb, or shows that almost constitutionalize. but i wanted something different is happening this time. this seems a get that -- deep public, but here it seems to me is the challenge. a popular rejection of a broad agenda. is it possible to turn that into an embrace of conservative

constitutional? american seem to be ready to reembrace some sort of enforceable limits, but it's not at all clear how far they wish to go. they oppose to runway budgets, spending debt, living government takeover of health care paid by don't think it necessarily means that they want to scrap social security, or close down the department of education. what we have seen is that not accept that there are no limits, which is an extremely important thing. we must assume the rate of tting rid of every department. they are just not there. that is the task. now, you take the sentiments, which are extremely good, good instincts proved a lot of common sense, in deep and expanded how do you expand from a political moment, or momentary, short-lived come into a constitutional moment, which is lasting. is a plausible not only to stop the latest wave in its tracks,

but after change course? i think the answer is yes, but it's going to be very difficult and will take a lot of prudence. one thing it will take is a constitutional strategy, a pathway, if you will. something, somewhere like between what we might call a cold turkey strategy, which some people might prefer, hyper constitutional, if you will, and on the other end bruce his theory of constitutional moments which is to say that everything becomes constitutionalize. i would call legislative jurisprudence that i did want to talk about five areas where this kind of approach could be used and point at some particulars, and leave it at that. first area is in the area of congress isn't that congress needs to get control of its lawmaking process. the legislative function, if you will, in the name of responsibility. they need to learn how to write bills again. they need to make those bills public and writing in clear

english. there are all sorts of things having to do with getting control of programs and things that are automatically continued that they don't intend to continue, things that are not authorized but appropriated. the user legislative process function to make it more constitutionally responsible. in this area you have a question about the constitutional authority question, the pledge, the lynnwood in the pledge but noting legislative authority. a great idea and we want to encourage debate the question, think that that is actually enforced. how strictly enforced. i think the question is whether we can leave room for constitutional improvement. what do you do when the department of education is up for reauthorization, or some massive program that has been whittled down and put in every possible good you are, but the underlying vehicles us dubious?

you have to leave room for the question i think. we also need to be very creative in terms of how we identified. say, their marks and turn us into constitutionalebates as well. and more generally go after the big stuff. the biggest russian right has to do with health care, obamacare, largest in the constitution adobe an early vote to repeal the. over innocent, let them mess around with. precedent should pass on constitutional grounds. spending, all these large budgets have in the command it coming i think intimate into constitutional march that the secondary is the executive. i think this congress will do some series thinking about executive orders. and laying the ground, drawing lines about where they can be challenged, especially if there's underlying legislative behind them. but mainly this area touches on oversight. aggressive oversight, how things are actually operator a promise

of a lot of oversight -- oversight, we need to turn that around the congress needs to learn oversight as a front end mechanism. which points my third area which is the administrative state it so that the real problem here is its core branch of government called the administrative state. i think congress could use its legislative authority, he are very aggressively, fed by oversight to challenge regulations, the congressional review act. there's something called the reins act, regulations over 100 may, they have to come back to congress for approval for any regulation, so you don't go on and live forever. some of the congressional react as or they should you appropriations riders that is all legitimate tools congress has a hand to press these things in the right direction. keep in mind is much of the politics i think of the modern era is really a battle over who controls the administrative state.

the executive branch of the legislative branch? which is a? it's kind of muddled. why presidents have started to pick czars and things like that. congresses position would be to say it's exactly passionate its executive and if they don't like that, they should take back the authority, they should start drawing some lines. i will touch on include passing, and train to hear is really thinking about this much more than i have come is federalism. there's some wonderful new opportunities to aggressively pursue new avenues. new cooperative avenues with state governors and legislatures. and things that we might not think of on the face of the weather might be opt out, exemptions. thinking areas of transportation, education, homeland security, over criminalization. some areas where we might not think of normally which might allow some avenues for creative changes. and a fifth area is a structural

area. i think it's important and it's time to be think about structural changes further down the road that one thing i would emphasize is was going on now should be seen as an opening of a great, not closing. we should be thinking it. the legislative area we might be thinking about things like a legislative line-item veto. it was declared unconstitutional last time because is at a time in which the veto occurred. after the president cited. you could actually change the and push that again. may be questions about taxpayers a standings on some of these question. the questions about budget reform, or entitlements go. these are all constitutional question. the larger questions of course, things like constitutional amendments. here i just want to say something very brief, which is that constitution should be part of the strategy but we shouldn't overplay the hand that i think oftentimes there's a misunderstanding about that.

look at past five this moment, they did give rise to constitutional amendment. usually at first, but they should be seen as technical legal, but more as a way to constitutionalize your successful political victories. that is political, the politics comes before the constitutional a minute, we should be setting the groundwork for those things now and developing into what they ought to be. that's the way president reagan looked at in his second term. and we should be looking at it the same way. in general, i would just close in saying that i think we need to focus on also how to think constitutionally. i know dave mcintosh has been thinking about as well but we have to keep in mind the kinds of intellectual muscles we're talking about are extremely weak. we need to think strategically, step-by-step, baby steps in some cases. we need to avoid self-defeating votes in debates that get us

focus on things that action might take our attention away from the larger things at 10. they really are no silver bullets or easy solutions. technical argument did not necessarily always solve substantive constitutional questions. those will be setled in politics. and politics we must a member that nothing trumps argument and persuasion. this is a historic moment come in my opinion, a rare opportunity where the american people step back. that means what happens now should be seen as a setup for what comes next. the election 2012 in particular, which happens to be the anniversary of 1912. it would be a large-scale debate nationwide about where progressive liberals are taking the country. the possibility that in that debate, presidential level, possibly realigning election if you will is enormous. it puts a lot of burden on constitutional conservatives and a lot of responsibility that i think in and on other things,

constitutional statesmanship, which we are to think long and hard about. thanks. >> thank you, matt. we will train next to michael greve. >> i think there are a lot of bad things that the obama administration has done. i think the worst thing is done for the country is to collapse in 60 seconds flat, the way democratic government is supposed to work is that if one party gets wiped out, as republicans did in 2008, they will have time to regenerate themselves, rethink their program and the premises. we just haven't had time for that, and it shows, and it's nowhere more obvious than the federalism that i've been asked to talk about. the conventional view is something like well, conservatives ought to be in favor of federalism. limits of the federal government, government is closer to the people, devolution, decentralization. and that agenda is supposed to

have government, a lot of push and release on life with the latest election that i want to point out two problems with that view of the matter. the first thing is to notice that that agenda, federalism devolution and decentralization, splits the conservative coalition down the middle. what conservatives think of, social conservatives in particular, that means self-government. way businesses think of is trial lawyers. state attorneys general, hellhole jurisdiction, exploitation, 50 regulators, hounding you. and they are right to think about federalism that way. the second thing is as conservatives used to moan about, unfunded mandates, washington at patches all these strings to these limited funds, and that will ruin the state. so what's the response?

well, we should have funded non-mandates on also known as block grants. these things are fun, so long as governor thompson experiments our welfare reform, but that was almost 20 years ago now. what these programs now mean is that california and new york experiment on our money with programs that are unsustainable, known to be unsustainable, and experiment with those programs in hopes of a federal bailout. in they come as news to come we've already built out the state six times in a row now, with various programs under cover of them, they'realways called bailouts but that is what they are. i will have a few more remarks on that. now, under the surface these two problems have been sort of bubbling for some time under the bush administration conservatives have a fund of dealing with it, which was where in favor of federalist except

when we are against it. that will no longer do. what you now need is a federal formula that first unites conservative constituencies instead of dividing them. and second, a federalism formula that doesn't ruin the country and ideally offers a way out. we are nowhere near that. we have barely begun to grasp the problem. so now what do you do? there are a few constructive steps. there was a review of while ago called rogue states that have sort of seven concrete steps, things you might want to think about. that's a very good start. if you're being asked that's what concrete steps that i will give you two rules of thumb, and one concluding thought on this front that the first thing is, i want to construct a neon sign that says decentralization does not mean smaller government.

and i want to hang that sign over the office of every congressman in congress. look at the dodd-frank bill. what does it actually do? the answer is, before you even get to elizabeth warren and her fabulous commission, and this board and that board and the other 50 things they constructed at the federal level, this thing liberates state regulators to hound financial institutions that was in 1864 have been indian from federal compared to state interferences. that means more state power. that means more state regulatory authority. if that's your federalism model, then by all means, go ahead. or is your model the federal aviation act, which liberated the airline on the regulated the airline industry by adequately preempting any and all state law relating to the services,

routes, and so forth of air carriers. the lesson is this, if you manage to do anything at all for smaller government in washington, d.c., that doesn't mean the pro-regulatory constituents are get. they were just migrate to the state that if you want to make smaller government state, you must preempt the states and you must preempt that maneuver. to repeat, decentralization does not mean smaller government. i want to construct a second sign, and it should say when it comes to federalism, this into the states and then do the opposite of what they say. ..

>> and that is we should be begin drafting and introduce a bankruptcy code for states right now. to my mind, that's the only federalism problem that will really matter over the coming years because sooner or later, and i mean sooner rather than later, some state will default on its payment obligations. most likely illinois, california is next in line. they don't have liquidity problems in those states anymore. they have solvency problems. and the question is, how do you

deal with those kinds of coming defaults? and the choices are unpalatable. you want to bail them out? there isn't enough money to bail them out at least by the federal government, maybe the imf could do it. and plus you can't revent -- prevent a event. and as long as they stay on the books so that's not really an opposition. do you want -- the alternative is you could let the creditors suck it up. this is, in fact, what we used to do. we used to do it in the 1840s. we did it after the civil war. we did it during the new deal. the states went bust and municipalities and we just let the creditor suck it up. really we're going to do that again when the chinese show up and say, wait a minute, we bought california bonds.

you have to make us whole. or when pimco stands there and says, wait a minute, our investors are going to go bust or when the banks show up and say we ended up with all these debts on our hands or with all these obligations. we're going to tell them to suck it up. i think it will end like europe, which did not really have a choice between bailing out greece or not bailing out greece. it only had a choice between bailing out greece or bailing out the french and german banks and that is an utterly unattractive choice so that brings me to the last option. you could have an orderly process to settle the accounts and to make people whole to the extent that you can. when a state goes bust it will be too late to design a process like that. it's really complicated. there's constitutional questions so i think starting that work now would be an act of federalism foresight and responsibility.

>> thank you, michael greve. david mcintosh? >> thank you, thank you, matt. what i wanted to share with you today were some observations about having served in both the executive and the congressional branches. the ability to move towards a more constitutional popularly branches. and i would posit the way to get to that political unity that michael referred to in addition to the -- on the question of federalism but on other issues is well is to design what i've referred to as constitutional conservatism. my experience in the executive branch was that we were very attuned to constitutional prerogatives of the president, i asserted them under reagan and first bush. and developed a theory for not only constitutional prerogatives

but constitutional limits on executive action. then shortly after that i was elected to congress and realized congress operates roughly on a british parliamentary system where there's a vague notion of a constitutional structure and we'll try to do our best based on the received wisdom from the senior members and the body about what we should and shouldn't be doing. very little thought actually on what powers were enumerated to the legislative branch. and as long as you did something similar to that which had been done before you, you were fine. and didn't have to think about it. so it's not surprising that nancy pelosi came back with that response. are you serious? she for all her time in congress had never had to think about what the constitutional limits would be on her prerogatives as a member of congress. i do remember that chris cox and i having both come out of that

executive branch experience would from time to time be sitting at the back of the room looking at each other as a republican congress started to vote some limitation on a democratic president, bill clinton, which we knew if we had been -- congress -- democratic congress had tried to do that for ronald reagan we would have been fighting becauset violated the notion of a unified executive. and ended up being the two lone no-votes in the republican house. having understood the perspective from both branches. that being said, what are some things that we should and can do? first, i think we need to pick up on the things that have been mentioned here by both matt and michael. and that is educate now a willing group of elected leaders about the constitution. and i just came from a federalist society conference all about constitution and the

modern era. and the obama agenda. and somebody drew the distinction which i think is very apt between the constitution and constitutional law. oftentimes constitutional law, as it's evolved in the courts ends up becoming technical, confusing and viewed as -- by congressmen as something that they are not an expert in. the constitution and the enumeration of powers for the legislative branch is something that they can and should become familiar with. and should strive to adhere to. that's the momentum from the tea party movement where 5 million copies of the constitution have been sent out across the country in the last two years. they want government to adhere to that notion that it has limited powers and that they are enumerated in that document. the flip side of that that there

is a part of our society that is outside of the government. we've taken that for granted. most of our lives. but, in fact, i think we have a governing coalition in the last two years led by president obama who believed he was responsible for every segment of our lives. whether it was government or private sector or free enterprise. he was the guy running the country. and, therefore, could have opinions on all sorts of things that go beyond any notion of what the federal government should do. so the flip side of educating people about enumerated powers and constitutional limits is also to educate them about the values and the benefits of keeping things out of government. what we refer to as the private sector or free enterprise but it also includes family, churches, community groups, institutions that exist and should do much of the building up of our country.

and then i have to come back to something michael really stressed. and i agree completely. we've got adopt an ethic of no bailouts because with the bailouts comes control or at least a myriad of regulations. but of those private institutions. but you also have the phenomenon that i think is the spoiled child syndrome where once somebody has received a bailout, their behavior in the future is going to continue to get worse. and so just as you were referring to with the states you hand them the money to bail them out of the current crisis without doing anything to change the structure and they'll be back in a dozen years with a bigger problem and more money, more request for money. what are some specific things -- so on the outside, i think particularly groups like our host today, we need to focus on ways of bringing to the discussion and helping the elected leaders who now have received the message from the

people we want you to pay to the constitution -- explaining what that means. but the legislative branch, democratically branch in our system can do right now to reassert greater attention to that constitution? and i thought of three different ways that i'll briefly describe and mention a couple of examples. but the first is support direct challenges in the judiciary to unconstitutional legislation. the greatest example right now is the health care bill that's being challenged by multiple states. it would be wonderful if this new congress passed a resolution saying we agree with the premise of these challenges that an individual mandate really isn't in the commerce clause or any other section of the constitution. you're seeing salami slices on mccain-feingold is well, if they

can muster the courage to actually express a constitutional view of the first amendment, that would be another area where they could be very helpful. second is legislative awareness or oversight that matt mentioned. i think in addition to looking at particular programs and the way they are operating and asking the constitutional questions which is critical and was delighted that matt included that on his list of suggestions for people, i think they should also hold some oversight or hearings on what are these constitutional provisions? what does it mean to have enumerated powers? what is federalism and our proper role in that? what is the commerce clause? and historically, overexpansion after the new deal and what should it be in modern america? what are limits on the spending power or the taxing power? to continue to bring to the fore in people's minds, these are important issues that we need to think about.

and then the third one is legislative action. i have two favorites. one of them is -- was mentioned earlier. it was the extension of the congressional review act that don nichols and i worked on in 1995. what we found is that that really only works when you've got a congress of one party and a president of another coming in. and the president of the same party coming in and reversing the decision by the previous administration as we saw in the ergonomics rule at the beginning of the bush administration. so the current proposal, it takes it to the next step and flips the presumption. and it's important to step back and realize the problem that's being addressed here, which is essentially one of violating the nondelegation doctrine. congress not being specific enough and clear enough in its delegation of a legislative authority is one symptom of that.

frankly, whether they should have delegated that is another issue that i think this addresses. the procedure it does is to say for important rules before they can actually be binding on the public, we're taking away the delegation. they have to come back and be approved by the -- by both houses and signed into law. so when you have the clean air act spelling out that there will be 100 different major regulations that have a huge impact on the economic system in our country, congress can't simply sit back and we'll toss all those issues to epa. the biggest impediment to that are the sophisticated groups in our society that have spent a lot of money lobbying the clean air act and have confidence in their ability to lobby the epa once they know they've gotten the deal that they can live with, they don't want another bite at the apple. either by their competitors or other interests. so they essentially don't want to have to defend the final rule

back in the legislative process. you're going to see that frankly with a lot of large corporations who invest a lot of money in having very good and sophisticated lobbying groups here being concerned if we've reached an agreement essentially with the government on how much regulation will that be done. my proposition to them and there should be another panel and another debate is that if we correct the nondelegation problem, you'll be just as well off as you are now because you're sophisticated about this and there will be less of a problem of overregulation by government. the second one is the funding limitation. those very important words, none of the funds appropriated in this act. and that is a way in which congress can very effectively assert its view of the constitutional proprietary of the program and maybe while they're going through a rewrite

of the underlying authorization bill. and so i would encourage members in this new congress to think about areas where there is a strong question of the constitutionality, an appropriatenesin of a program. use that spending power to put a break on it and then engage in the debate and fix the underlying law. with that, those were the things that i wanted to share with people. thank you. >> all right. thank you, david. i'm looking at the clock and thinking that given many people's interest in constitutional matters, this is the panel i think where everyone in the room can have some expertise. i'll just throw it open to questions. and we'll send the microphone arenas. -- around. yes, all the way in the back there. >> this is for michael greve, on the issue of municipal -- not municipal, state bankruptcy

legislation, i think that is an absolutely brilliant suggestion because it would really focus attention on the public sector unions and the different arrangements in the different states. and one thing i've learned recently looking at this, is in some states you have the benefits and the contracts are constitutionally mandated. whereas, in other states, they're not and they're actually trying to pack away at them. but so in the face of this enormous admiration to actually see that so that the creditors could understand what trouble they might be in if there were bankruptcy, i would like to know, number one, has anyone ever thought about that in congress? has there been any movement towards doing that? and i'd also be interested for one or two of the topic examples in which the states have already been bailed out from problems. >> thank you for the warm endorsement.

there have been discussions about this -- this step in the 1930s. well, since you asked, that led to what is now chapter 9 of bankruptcy code which governs municipalities, states. -- states were on the agenda but were exempted on account of unanticipated constitutional problems so i want to bring this up again. the reasons why i want to raise this now and bring it up now is, of course, precisely -- i mean, one of the reasons is the one you mentioned. short of bankruptcy, there isn't any way of getting out of the legacy costs. because the public union contracts are either constitutionally protected or protected by state supreme courts under ordinary contract principles you can't get out of

them unless these people make a concession sua sponte and what david mention creating a bailouts. one of the premises of the american federalism which is really unique, no other federal system in the world, is that we will not bail out states. it's a long story how we got to that point and created this credible commitment against bailouts. it comes out of the 1830s. it held through thick and thin through american history that i believe it's now gone. the bond markets -- if you look at the rates and the ray the bond markets behave, nobody believes that. we won't bail them out. why is it that illinois can borrow money at all, let alone at 7%. come on now. i mean, everybody is betting on the bailout, right? so rolling out sort of a

bankruptcy code for states in full regalia and saying, no, we're serious about this. that sends a signal to the bond markets, no, we actually are serious about our once upon a time commitment and to make these people a little more hazard than to drive the states more hesitant to drive themselves. into the ditches. as to the bailouts that we've already had, one of the reasons for obama-care is it's a -- it's one large bailout for states, right. they will shift it into the exchanges and be done with them. that yanks $500 billion of obligations off their books, hallelujah, that's one example. the american recovery act or whatever that was called, that's another one. $23 billion, they tossed out, you know, for another bailout, that's the third one. schip, when it was originally passed in 1996, whenever it was

under the clinton administration, right, that was a de facto bailout because you took kids off the medicare accounts and they put them under a more generous program. the increases on the fmap on the medicaid and those are additional examples and on and on it goes. >> next question, yes -- yes, back by the window. >> rick again. what do you think about -- i know there's this court case or court cases going on, on the ability to recall a senator using state law. can you comment on that? i think that in combination with instant runoff-type voting called rank choice voting or -- it's kind of like an elimination round type of approach. that would basically -- you know, you list your first candidate, your first candidate loses your second choice would

apply. your second choice loses and your third choice would apply. that's basically the way it happens in the private sector. you can recall a worker at any time. and then when you're hiring somebody, you don't just get one choice. you have several choices. if muhammad doesn't want the job, you give it to karen. karen doesn't want it and you give it to lorenzo, et cetera. >> any of you care to field one or both of those questions? >> i think -- actually, the recall -- on the recall question, i can say it just doesn't square with the constitution. there are three ways to get rid of a senator or representative. if you count death, it's a fourth. >> three constitutional. >> right, three constitutional ways. they retire, resign, they are defeated for re-election or they're expelled by super

majority of their respective houses. i can recall, oh, more than a decade ago a movement afoot on arizona to recall john mccain. it got nowhere and i think that -- that if the attempts were seriously made in any state, senator representative would be quite safe in ignoring it, no court would enforce it. the leadership of the houses of congress would simply ignore it is well. on the second question, i think that alterations in our traditional plurality voting system first past the "post." there are many alternatives that are proportional representation and so on that are perfectly constitutional, square with the constitution but would have serious effects on the two-party system. and we have to think hard about whether we want to jettison that. >> and i would add, as an

example thinking creatively in this moment. you're absolutely right with the recall not squaring with the constitution but i see no reason why and i would encourage state legislatures to actually subpoena members -- to come back and explain their votes and perhaps explaining what they've been doing. they would turn it down. they wouldn't do it. they are perfectly legitimate straight from the muscles so to speak of thinking constitutionally and not assuming which has been so long the case that these are merely legal questions. legislatures, at the state and federal level, i think, need to flex their muscles a bit. and even if they won't win the battles it shows they are thinking outside of the box. >> it's an interposition that even a federalist could get behind. [laughter] >> other questions? yes, here. >> jack park for michael greve, for the state bankruptcy receivers like jefferson county,

alabama. [inaudible] >> and the second question, one would think, you know, on a 2,000-page bill like the -- [inaudible] >> there wouldn't be a delegation problem. in fact, at last big -- nothing but delegation. and once the regulations come out, the standards for evaluating them, chevron, are not favorable to challenges. is there anything we can do to reinvigorate either, a, the nondelegation doctrine or -- [inaudible] >> the standards under chevron? >> you want to go first? >> i'll try to go first. this is precisely -- i mean, that's why i sort of caution -- i mean, this is one of the reasons why i said, look, let's think about this now. it's actually a horrifying thing at some level to think that a state could end up in receivership, in bankruptcy receivership, right? just like a municipality.

yeah, there are serious constitutional problems. but i wouldn't -- i mean, let me put it another way. i believe that we will renegotiate the american federalism bargain as a result of this crisis in a fundamental way. i do not know what federalism will look like when we're done with it. but it will look nothing like what we're used to. we will have to do some and contemplate some very, very dramatic changes. i'd be happy to elaborate on that. there's only one aspect of it. but if we just sit there and say, oh, no, we can't do that because of states rights, yeah, well, then you're back -- what's your alternative? they ran you back to the unpalatable alternative of, you know, bailing out banks, you know. in a made-up proceeding where the only certainty is that the guys from goldman sachs will sit on all sides of the table

because they always do. but everything else is up for grabs, that's not a good thing to do. you know, or, you know, create some real chaos out there so let's think about what an orderly process bankruptcy life would actually look like. on the delegation issue, i wouldn't look for that for a resurrection of that doctrine anytime soon. i will, however, say this. i'm not an expert on 2400 pages of obama-care or however many pages that was or for that matter, i will say this. there are dozens and dozens of agencies, boards with very poorly defined authority, bizarre appointment procedures. >> more than dozens and dozens. >> more than dozens and dozens fair enough. i didn't want to exaggerate here, okay?

i don't think it's out of the question at all that in some of these big enactments, there are real viable sort of separation of powers and appointments, challenges lurking. there are certainly some in dodd-frank. that i'm confident of. obama-care -- i just don't know sort of how that beast works. well enough to answer, to give you any specifics. but that rather than the pure delegation challenge is what in legal terms i would look to. >> let me just add to that a couple additional thoughts. one, obama-care is an interesting and unusual example in that it was passed and signed into law without consensus among the american people that it was good policy. and that failure to adopt has continued. and we saw that expressed in the most recent election.

so you now have a congress that at least in part no longer supports the policy and a president who does -- part of the answer will be the next election. will it continue to be something the american people are rejecting and want their leaders to reverse. the other part -- i think we have to be careful as we look at mechanisms like the she hachevr doctrine and where it causes problems in other context. so the one i favor and it may not be expect as they've written it but it's a good start is this reins act that says congress is going to -- four different regulatory processes bring them back for a legislative -- basically affirmation, basically

an up or down vote where basically the agencies would have the force of law. and i think that's a good way and in other applications so i'm not troubled by it having momentum simply in the health care context. >> a quick point, matt? >> yes, i want to make a quick point. i agree with what's been said especially michael with the death of the doctrine of delegation. i would just keep in mind that's in sync with a legal doctrine and a political doctrine. which is to say right now the political argument about delegation is alive and well but they don't call it and there was a rejection of the notion of these bureaucrats are running our lives and we didn't vote for them. i think congress has a huge opening here to act legislatively and put things in motion like the rens act that actually force some responsibility and openness and transparency into that system. that is a revive -- that's kind of a political revival that i'm

talking about that i'm talking about that some day might have some legal implications. >> i think we can take one more quick question. >> the hard question. >> i think it's so refreshing to hear a discussion of the constitution that's not all about the supreme court. but i'm going to ask about the supreme court. i don't have people suggested the justice sotomayor in her conference hearings had to ape regimentalist remarks and what has that suggest that they won the public debate about the constitution? >> i think it does suggest that, david? >> yeah, i would agree and actually it's become such an issue that there's polling been done as you described the regionalist position or limited judiciary position. as obama's view of judges doing what is just and between the particular parties.

and it's 2-1 in favor of the originalist and limited judiciary. now, the courts are set up to be insulated from popular opinion. so whether justice sotomayor having expressed it in her confirmation hearings will actually lead to decisions based on that is another question. [laughter] >> every kind of encouragement would be good. perhaps she can be invited to keynote next year's federalist society my colleague. -- meeting>>. we've had some interesting debates. it would be great to have her. >> it's good to have been reminded today that our constitution creates not only a limited government but a government energetic within its limits. and i thank all our panelists. i thank again a >> here are some programs from thursday. jeff bridges talks about his work to reduce youth under, jane

goodall on her love of nature and animals, chief justice john roberts and the role of the supreme court, and later lawyers discussed so john paul stevens and former president bill clinton presents the liberty award metal to tony blair. thanksgiving day and cspan. >> and a few moments, today's headlines and phone calls live on "washington journal." later, a forum on the future of social security. that is live at 2:00 p.m. eastern. and we will talk with david malpass, one of the group of republican economist opposed to the federal reserve plan of buying $600 billion of treasury bonds. then we will be joined by ivo daalder, u.s. ambassador to nato. and a look at the cost of higher education with richard vedder, education with richard vedder, director for