neurotics. >> people say, don't drik as much caffeine, but how are you supposed to survive? >> i'm taking you out. don't forget to set your dvrs so you never miss an episode of "the f out for you. good evening every, and welcome to "the kelly file" special on the presidential power grab. i'm megyn kelly. tonight, we investigate the growing concern over what critics are calling a lawless presidency with an executive branch ignoring the constitution and creating, editing or ignoring laws as the president sees fit. to be fair, mr. obama has not tried to hide what he is doing. >> we can't wait for an increasingly dysfunctional congress to do its job. i told my administration to keep looking every single day for

actions we can take without congress. with congress, or on my own. i've got a pen and i've got a phone and i can use that pen to sign executive orders and take executive actions, administrative actions that move the ball forward. now, i'm going to be working with congress where i can to accomplish this. but i'm also going to act on my own if congress is dead locked. i have a pen to take executive actions where congress wouldn't. and i've got a telephone to rally folks around the country on this mission. where congress is not acting i'll act on my own. i've got a pen and i've got a phone and that is all i need. so wherever and whenever i can take steps without legislation to expand opportunity for more american families that is what i'm going to do. >> wow, so you get the point. president obama made good on that pledge when he recently

re-wrote the obamacare law designed to affect the key mandate. critics argue he did it to help the democrats avoid paying a bigger political price in the 2014 mid-terms. but motive doesn't really matter. a deadline was clearly written in the law. it was written, the employer mandate shall kick in. and the president ordered the country to ignore it on his own without congressional approval or any legislative review. now, this is not the first time. in fact our research team says this is the 28th major change to obamacare that was simply ordered by the white house. and it is not just health care. the president recently declared a hike in the minimum wage for some federal workers. he unilaterally re-wrote the immigration law, very contentious issue, repeated through in recent years. and the white house is facing increasing challenge for appointments to the national labor relations board.

he claimed congress was not necessarily in recess. now, the claim is growing increasingly loud. listen to this. >> we have an increasingly lawless presidency. presidents don't write laws, congress does. >> what this president does is unprecedented. what this president has done is to repeatedly change laws, even laws he himself has pushed through congress for his own political benefit. >> the president seems to have an extra frustration, and he reacts to it through unilateral reactions that i think are counterproductive and in my opinion, in some instances, borderline unconstitutional. >> for the president to declare i'm going change this law that congress has passed is unconstitutional. he is outside the bounds of his article 2 limitation. >> the president says he has a pen and a cell phone but the american people have a constitution and the constitution doesn't give him the authority to unilaterally change the law.

he has to come to the congress to do that. >> this president and the nation, he chooses to enforce the laws he wants to enforce and ignore the laws he doesn't want to enforce. this is something the american people should not be required the tolerate. >> when the president says it is the law of the land, it is one of the reasons why there is so little trust of this white house. >> and the worry about the power grab is not just a republican talking point. two recent fox polls had similar results. nearly three quarters polled say this is not how government is supposed to work. there are a large number of democrats agreeing with that. 60% say they don't approve of executive orders to go around congress, 30% agree with it. and tonight, we'll compare to a much criticized bush white

house, and we'll look at how even the left is starting to raise questions about an absentee president. and tucker carlson is editor and chief of "the daily caller" and host of fox & friends on the weekend. i took you back to 2008. remember this man? >> but this is part of the whole theory of george bush, that he can make laws that he is going alone. i disagree with that, i taught the constitution for ten years, i believe in the constitution and will obey the constitution. >> chris, what happened to that barack obama? >> well, he got elected. what he was talking about were signing statements which is where the administration, president bush would say well, i'm signing the law but i think it would or wouldn't do this.

and democrats were very much up in arms about that. imagine if president bush had done that with the tax code. it would have been an even greater uproar. i think what happened is this president became unwilling to deal with republicans once they took over in the house and excused himself from the political battlefield, giving himself the out by saying i will just rule by executive order and wouldn't have to deal with those knuckleheads. >> the thing is, grid lock, the system was set up to work that way. >> and it was set up to work that way precisely because the framers were so concerned, about the tendency for the president to become an autocrat. the framers set up this legislative branch, the co-equal

branches. roosevelt tried to basically nullify the judicial branch. >> he put the japanese in camps during world war ii. you want to talk about executive power grab. >> what is so striking, with congress, the truth is just for example on the nsa spying business the congress does not have access. only 12 members on the intel committee have access. they're prohibited by law from sharing it with their colleagues. that is talk about an emas emasculation of the executive branch, i don't know why they stand for it, but it is really baffling. >> what is -- because the system was designed to work this way. it is a pain when you can't get your agenda through, but oh well, they're still there.

is this a massive cuff by him, not working with the people? >> he doesn't strike me as a president who enjoys the job. he complains about it. he doesn't like it. the cop-out is saying these republicans are particularly bad. they're extra mean, and really not patriotic. they hate me, is what he says, they hate really what this country is about or has become. and therefore, they're underneath my contempt as president. so i will just not deal with them. the problem that stems from it, however, is very serious, one is these executive powers are not adequate to govern the nation. they wouldn't fit the bill, and either the president has to become a tyrannical president, or change the bill -- >> does it have the effect on the republicans on capitol hill who have their own agenda, love it or hate it.

of not making him want to give them anything. he just -- whatever the law is, he is going to say what he th k thinks it is. >> well, it makes communication nearly impossible. there is a moral component to it. what chris said, it is absolutely right. the bigots who are opposed to him for rational reasons. and we're the ones we have been waiting for. there is a spiritual dimension. >> let me ask you that final question, and we'll get to that later as well. the left has been so silent about this, when they were so vocal when bush was in power. >> where are all the honest civil libertarian liberals i grow up with? i don't know if they moved to new zealand or what, but they should be speaking out right now. and some legal experts from

across the political spectrum have begun questioning the presidential power barack obamas. in december, the house judiciary committee called a series of witnesses to testify on this issue and here is a little that. >> i agree entirely that the president cannot simply refuse to apply or enforce a law for policy reasons. >> and the center of gravity is sheeting. and that makes it unstable. and within that center you have the rise of an uber-presidency. there can be no greater danger. >> if the people conclude that the president is no longer liable, and therefore they are not. >> if you find the president is willfully and repeatedly violating the constitution if he -- >> he is not simply posing a danger to the constitutional

system, he is becoming what the constitution has been designed to avoid. >> gentlemen, good to see you both. professor rosencrants, let me ask you, you suggested the president has gone beyond what president bush or at least what other presidents have done. where do you see this going? because i think a lot of our viewers are getting concerned because there won't be a check on the president's power. that he will just keep doing this over and over and that nobody is going to stand up. so have we now turned a corner that we can't go back around? >> well, megyn there is very good reason for people to be concerned. i think regardless of your view of the president's policies you need to take note of a fundamental change happening in

our government. i happen to agree with many of his policies. but we have a system that really it is more important sometimes how you do something than in what you do. and in this system, the framers designed to have three branches that excessed a type of orbit. they're held there by equal powers. when you have a concentration in one branch it creates a dangerous instability. and it is not just a danger to the authority of those branches. that separation of power was designed to protect the civil liberties. because when you have that kind of concentration, it brings authoritarianism. >> what did you think about that sound bite we played? he was a constitutional lawyer, if you take him at his word he was determined not to be this way. >> you know, it is a disappointment. i voted from barack obama, and i'm from chicago originally.

i'm astonished at how this has turned out. but frankly, president obama has always put programs ahead of principles in my view. he has good motivations, he really does believe in what he is trying to achieve. but how he is achieving it is what is important. he is not the first, you could say, that worked in the white house. but he has succeeded in many ways others does not. he succeeded in things that his predecessors tried and failed at. >> professor rosencrantz, we have 28 actions on controversial obamacare. he basically jumped into a civil war in libya without congressional approval. he decided doctors can ask their patients about whether or not they have guns at home. the list goes on and on, not to mention the fact that drones can

kill american citizens, i mean, at what point can it be clear to anybody that these actions need to stop? >> well, meaggyn, the clearest my mind on the obama extensions, he has repeatedly extended the deadlines in the statutory texts. you have the context, they wanted these delays. they have been saying delay the employer mandate, the individual mandate. so they're really not in the best position to turn around and say, what is he doing? in your view, what is the best remedy for people who have genuine and sincere objections to what is happening? >> well, first of all, i want to

applaud professor turley, the folks who like these policies should nevertheless be up in apartments about these constitutional violations. if you want obamacare to be suspended you should go to congress and ask them to suspend it or delay parts of it or whatever it is. the president can't do it unilaterally, and you should not sit by just because you like the program. >> what do you make of it professor turley? because you circulate in the circles of the progressive elite. i don't know that for a fact. i'm just guessing. what do they say to you, your colleagues? >> privately, i think civil libertarians are worried about this. on my blog you have a heavy libertarian group, and many can't give themselves the idea of opposing the president who

holds this iconic position in history. these powers will out last him. and the terrible thing about the constitutional authority is that once you lose it, you pay a heavy price to get it back. and i think people will loathe the day that they were silent in this type of face of the concentration of power. >> wow, if you want to check out his blog, i recommend it, excellent reading. also tonight. the biggest problem that we're facing right now had to do with george bush trying to bring more and more power into the executive branch. >> president obama promised he would bring humility to the white house, so how is that going? former attorney general michael mulcasey reacts. >> plus? >>. >>. he has uusurped the aflac.

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general holder, i respectfully but forcefully disagree with the assertion, when you look at the quality, not just the quantity of the executive orders he has issued, he has usurped an extraordinary amount of authority within the executive branch. this is not precedented. at a minimum, he owes us an explanation. >> well, that was senator mike lee grilling the president on the use of executive power. not satisfied with the

explanation that attorney general holder gave, they asked for more, seeking constitutional justification stating the separation of powers exist to prevent tyranny. as you are aware, we do not have a king. nor do we have unchecked power in any single branch of government. joining me now, republican congressman michael canckelly. now, you are pointing to that case law, saying the president can go as far as he has gone. first of all, has he responded to you? >> no, they have not responded yet. but as the senator just said, there is no precedent for this -- >> how is it -- >> pardon me? >> how is it so different? >> listen, we're talking about things that really have deep seated changes in the way our constitution was written. we all took the same oath when we came into office. protect and preserve and defend

our constitution. but when you go through the process, it is very difficult for congress to do this. it is very difficult to get answers from the department of justice, especially attorney general holder. this is the chief law enforcement officer in the country who doesn't answer the subpoenas. the department of justice doesn't hold him responsible for that when he is in contempt. if we can't get answers from these folks, definitive answers as to what has given this president the ability to leapfrog and go over the constitution, and the powers granted to the constitution, you can't just change laws. >> i don't know if they agree with you -- does he have an obligation to respond to you. does he really work for you? he works for us. does he have to respond when you give him a homework assignment, come back and give us justification for what the president has done. >> we've already seen this, delay, delay, delay, deny, deny, deny, listen, when you write a

letter i expect a response, will we get it? i don't know. number one, there are only certain things we can do. we can look at trying to do something as far as the law is concerned but would have to have the center on board where he could block funding. again, we would have to have the senate on board. we would have to have standing. i, as a member of congress would have had to have been adversely affected. megyn -- >> standing is a big problem in bringing some of these proposed laws. i want to ask you specifically about the latest -- >> sure. >> power grab. and that is this week the president delayed the employer mandate for smaller businesses, 50 to 99, saying it is not going to kick in for you. the requirement that you get for your insurers, it is not going to kick in until 2015. he then said by the way he haif

want to reduce your work force, you're going to have to certify to the irs, if we think you're lying you will be in serious trouble because you have to certify this with risk of perjury. this is crazy, he doesn't have the power to create new crimes in the white house. what can you and congress do about that? >> we can do investigations, we can expose, what we really need are the american people to be outraged about all of this. the real answer, it is not a republican agenda. if we can't get this back under control we are at risk of losing everything that this country has been about for several hundred years. why are we at this position? now, i don't know, long range where this president is trying to take us. it doesn't look good to me and it doesn't look good for members of congress.

it should not look good to any single american. >> the president thinks you guys are unwilling to work with him. we have a do-nothing congress, we can't have a congress sitting around getting nothing done. he says look, maybe i'm pressing it but i'm going to have to press it to help the american people have some sort of legislative achievements over the next four years. >> the division of powers is very clear. we don't need a tyrant, a king. the heavy debate takes place in the congress. >> how can he woo you? more outreach, parties on capitol hill? >> listen, i don't need to be charmed. listen, i need to know -- i live in pennsylvania, we protect the constitution for you and preserve it. megyn, what the president is doing is the unprecedented overreach of executive powers. people can't sit back and say i still like him. this has nothing to do with liking him, this has to do with

policy. if you don't like it, it is his way. we are the most admired country in the world in the history of the world. this is a government that works for the people. this is not a place where people work for the government. my goodness, if we can't see clearly if i don't get my way i'll tell you what i'll do. i'll disregard the law and go above it. i'll do what i have to do to get it done. i dare you, i sit with a lot of men and women right now on both sides of the aisle right away that are very, very concerned about this president. >> they're not saying much. i got to go -- >> i tell you what, listen -- >> all the best, see you soon. another issue when discussing the presidential power grabs is how the media is covering them. coming up, media analyst howard kurtz on that. plus, president obama promised he would be different than president bush. so how is what he is doing now not the exact same thing. ♪ ♪

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i take the constitution very seriously. the biggest problem that we're facing right now had to do with george bush trying to bring more and more power through the executive branch and not go through congress at all. and that is what i intend to

reverse when i'm president of the united states of america. >> one of the first thing i'm going to do is call my attorney general and say to him or her, i want you to review every executive order as it relates to george bush, whether it relates to wireless taps, or e-mails, whatever it is. i want you to go through every one of them and if they're unconstitutional, encroaching anything, we are going to review them. >> hard to believe that that same man would one day tell the american public he has a pen and a phone and intends to use them, the agenda with or without congress. joining me now, former attorney general michael mukasey. it was your administration they wanted to review because they

wanted to rein in the power grabs, let me ask you about that, because of that barack obama versus today's barack obama. >> i didn't believe barack obama when he said it then and i obviously don't believe it now. >> why not? why didn't you believe it then? >> because it was quite obvious he wanted to do things that would never get past congress. and it was not day one, it was actually day two when he started signing orders eliminating gitmo, it was obvious he was going to do that. and he proceeded along that road. if you take a look, there is an interesting youtube video of him signing executive orders on the second day of his administration. where he signs an executive order on gitmo, taking a look at it, he says do we have another place we're going to put these people? it is obvious he was making it up as he went along.

>> that is the case, every other week it seems we get an executive action on this law which was a hard-fought battle, which was very contentious. and you know, karl rove says that the election -- now suddenly that has been delayed for a year and he maintain this has been done for political reasons and that is a fact in karl's view. did president bush make executive orders or executive actions for political reasons? >> not in my experience. the only executive orders that i ever knew that he was criticized for was the ones following 9/11, the ones based on his constitutional authority. the eavesdropping, other

programs he believed he had the power to implement. and that by the time they were -- later, the subject of newspaper articles in fact had come under the control of congress and under the control of the courts. but that was the only criticism. he never tried to disregard a statute, or apply only the parts he wanted and not the parts that he didn't. >> if that was true, and the president really did delay this employer mandate for millions of businesses, to save the democrats come 2014. what does that say, i mean, many of the viewers are cynical, saying well, that is how it works. is that not how it works? >> yes, that is not the way it is supposed to work. and that is novant the way it works when somebody takes the oath that he took seriously. >> i don't know, did you actually witness this with president bush? were there things he could have taken advantage of that he didn't? i'm trying to buy it.

it seems that anybody with that much power would say yes, i want more power, i'll do whatever i can do to get more power, and if i have a congress that has a low approval rating, lower than a cockroach, i'm going to take my pen and get it done? >> i can't think of a situation where it was even considered, where something considered bad for law that we would do anyway. or where we would take part of a statute and apply it but not the rest because the rest was inconvenient. >> what do you make about this push by the republican congressmen, and eric holder? >> good luck with that, i would be interested to see what the legal justification is. the fact is that it is not his justification. but the president's actions that really noticeed to be examined. >> and is this just a white house thing or does it go beyond a white house thing? >> well, it is principally a

white house thing but it goes beyond the white house. for instance, in the executive agencies, the environmental protection agency, is implementing regulations that any new coal-fired plant has to have a scrubber. that even the one plant that has it, even the one person running the plant says it is economically unfeasible. >> so it hobbles then. >> instead of putting in place an epa regulation, it can't be complied with. >> it is not just the president but the executive agencies that are part of the presidency. how has the media been covering these presidential power grabs? media critic howard kurtz takes a look. plus, the mid-term elections are just around the corner. will the

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. where is the mainstream media on this? where is the establishment on this? can you imagine? we say this all the time, you sometimes get tired of making the point. can you imagine if this were george w. bush? we would be talking about a presidential crisis, front page, splashed across the front. george bush, dictator president. it is a big deal when you change the laws. it should be treated as a big deal by the media. >> and steve hayes, tackling another issue that comes up when discussing these power grabs. the issue of how the media is covering them. and while we've seen issues from some republicans and some legal scholars, some have even

defended the president's use of the power. the washington's editorial page, obama's justifiable "power grab." and the rational response to an increasingly grid locked congress. and why obama's use of executive power is justified. howard kurtz with me now, and i'm sure that "the huffington post" would have defended george bush equally. >> had this happened when george bush was in office, they would have gone wild. now with a few exceptions on had you noti-- they're not even hav the debate. >> why? >> well, i think part of the

reason has to do with not because the media are in love with barack obama, for example, there has been critical treatment, i think of the botched rollout on obamacare, and the broken promises on you can keep your plan, you can keep your doctor. but i think generally journalists are more sympathetic to the goals of the administration, when on the issue of the aenlt terror tactics, i think in the dna of many of them, they were opposed. >> it is not just obamacare, however, as i mentioned in the program. it is i can kill an american with the drone. i can engage in the war in libya without congressional approval. i can do all sorts of things that relate to presidential power grab outside of domestic policy that the liberals should be objecting to. would normally be objecting to, but for the fact that it is their guy in the white house. >> i can't argue with that. you don't have to take my word that this would have been very

different if this was a republican sitting in the oval office. we did a little digging, and they said we have to reverse the unwise policies of bush and cheney. another one talked about bush's morally wrong detention policies. president obama says he is going to close gitmo. that has still not happened. he talked about george bush's contemptible decisions on the war. >> and we had two constitutional law professors on earlier, saying guess what? president obama doesn't stay in office forever. and there will be another president who comes after him and it may be a republican. and you can bet dollars to donuts any person who takes over this office is going to say oh, that is the new standard for what i can do. in the same barack obama ignored

obamacare, maybe i can ignore it to the point where i actually gut it and hobble it. >> many on the right were not that outraged when george bush issued executive orders. >> but it is the scope. >> the scope and the magnitude is key here. particularly if you're on the left and you care about civil liberties and executive overreach and what used to be called the imperial -- >> here is my question, when i go out here and anchor on the program, the viewers are the only ones i care about, getting them the full story. and i read these articles that give the president a complete pass on these very controversial issues. and i think who are they working

for? what do you think? >> well, when i was told you wanted to talk about this i started to dig through the main stream media and thought i would see more full-throated defenses of what president obama was doing, i think the easy out is just not to pay attention to it, when clearly it would have been an issue under the bush administration. i do think circumstances change and every executive order is not created equal. but if you're just silent on these things then i think you're doing your readers a great disservice. >> howey, great to see you. you just heard about the reaction, we'll have a fair and balanced debate next. plus, the world knows him as president bush 41. but tonight you will get a rare look at the man from the people who know him next, a bush family

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the president's actions come as democrats are trying to hold onto the majority in the united states senate. but with so many americans saying the executive orders to bypass congress is not how the government is supposed to work, how will this play come november? dana lash is host of "dana," and a talk show host. great to see you both.

do you think voters are going to really care? do they care as a voter issue about executive power grabs? >> well, when you consider the context of it and how it is related to obamacare, absolutely they will. think about this, megyn, out of the 13 vulnerable seats, 13 of them are democrats. arkansas is not too happy about obamacare right now. mark prior was a champion, i don't see him getting reelected. let's look at how many times the president has modified obamacare. how many times has he modified this modification? every single delay, whatever he is doing, amending the law from the white house is admitting failure. people are asking questions, well, if this was so great how come you have to have so many waivers and how come you have to allocate the millions to help?

and this is going to define the obamacare going into the mid-terms and into 2016. >> ebony? >> yeah, megyn, the original question, i don't think voters will be concerned about recesses and appointments. they will be concerned that the job numbers continue to rise. they will be concerned about a senate that is willing to have the guts to address immigration reform. let's point out that president obama has used less executive orders than any president in 100 years. and to be fair, even though, nobody likes executive orders, megyn when it is not their guy sitting in the white house. i understand the frustration -- senator obama didn't like it and i'm sure given 2016, depending on the mid-chair, people may not like that either. but it is a constitutionally valid tool. >> but let's jump up to 2016 for a minute. dana, it does make you stop and

think, we better put somebody in the white house would we trust and who has humility, because the power is so great. >> it is not a constitutional tool to sit here and modify a law, by passing congress, that is congress's job. your legislating from the white house. from a constitutional law scholar, he should know that. when he was a senator he disapproved it when george bush did it. back to your point, megyn, we need somebody who is going to make things work without getting the bureaucracy involved in it. >> ebony, that is the risk because when you look like the sound bites of senator obama, it looks like a different guy. in 2016 you know we'll get two candidates that sound like senator obama, what is to stop

them from what is happening in the oval offers now from becoming a power grabber? >> absolutely, we all want to see somebody in the chair who exercises sound judgment. that is the risk we all take when we go to those polls. but at the end of the day, the threshold of executive power and overstepping it. we know there is no bright line rule for that. that is where the judgment becomes imperative, and that is what the checks and balances are for. >> but they're not doing any checking, they're just complaining. well, we would love to know what you think about all of this and you think about all of this and the [ female announcer hands were made for playing. ♪ legs, for crossing. ♪ et...splashing. better things than the joint pain and swelling of moderate to severe rheumatoid arthritis.

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good morning, everybody, it's saturday, february 15th. happy post valentine's day. i'm juliet huddy. a big loss for big labor overnight. automakers is saying no, no to unionizing. how it is sending shock waives across the country. >> the nation's debt is skyrocketing, so what's the nation's top priority? spending your money on climate change. hiking your utility bills in the name of junk science. good idea? we report. you decide. >> then he says he was protecting his sister from a bully but the school suspended straight a stupidity anyway. now his family is fighting back. does he