host: in the past, present and current antonin scalia chair and constitutional -- at the ethics and public policy center. remind viewers what the ppc is. ier think tank in d.c. dedicated to applying christian value to public policy. host: how long have you been there? guest: 20 years now. host: two weeks ago in "the national review," there was a column in which you called it " terrible anti-constitutional scheme of recess appointments." why is it a terrible and anti-constitutional scheme? guest: referring to the idea they talked about that donald trump would try to force the senate to adjourn, perhaps right on inauguration day, proceeding to make blanket recess appointments to top cabinet offices. i think that would be an outrageous upsetting of the constitutional scheme, contemplating that the senate will, especially on high offices. as hamilton explained in the federalist papers, this provision of the constitution that gives the senate authority to advise and consent on nominations is important to making sure that the president makes high-quality pix. absent that check, the president can

most recently, we know that justice anthony scalia was approved unanimously by the senate, justice ruth bader ginsburg, i think there were three "no" votes against her. those days are over and now the supreme court is just treated as another political prize by the two parties. we saw that after the death of scalia in 2016, when republicans wouldn't consider any nominee by president obama, and we saw that again more recently in 2020 when justice ginsburg died and republicans rushed to confirm amy coney barrett to her seat shortly before they lost control of both the white house and the senate. so, now, we have three justices who are in their 70s and both democratic and republican activists speculated that it would be an opportune time for them to find other hobbies, rather than judging our nation's laws. and immediately, it was liberals who talked about justice sonja soda mayor the member of the liberal walk of the court, seven years old appointed by barack obama in 2009, so if she were to step aside in theory, the democrats, president biden, could nominate a successor, democratic senate

i saw some folks at new york magazine saying, oh, well, scalia was right wing, and thus scalia would have ruled the way trump would have wanted. i think the record of all of trump's judges is that they call him as they see them, and they have ruled against trump and his interests plenty of times. but i think it's the irony that jack smith's cases were in some ways supposed to curb trump, or at least send a message to future presidents no man is above the law, et cetera.. >> ashley do you see what i'm getting at? and in the end, the legacy is actually coming to be something different. it is. >> and i understand, like joe biden is being the adult in the room. he he did what a president is supposed to do by having a peaceful transition of power, which donald trump did not do and i don't, just because these cases have been dismissed. and another reason why i don't think that joe biden should pardon him. we all sat and watched what happened on january 6th. i don't think behavior like that should be normalized now, please prove me wrong in 2028 when donald trump cannot run for president ag

[laughter] is a professor here at the scalia law school. he often challenges the conventional wisdom with prodigious research and sharp original analysis. you can tell this by some of the titles of some of his books. one of his favorite books -- my favorite book of his is "you can't say that," which is quite apropos for today's conversation. his most recent book is called "classified: the untold story of racial classification in america." he is the executive director of the liberty and law center, hosting this conversation today. to his left, can marcus is the founder and -- ken marcus is the founder of the louis brandeis center. he is the author of "the definition of anti-semitism," oxford university press. during his public service career, marcus has served as assistant u.s. secretary for education for civil rights, staff director at the u.s. commission on civil rights, and general deputy assistant for fair housing and equal opportunity. also has a george mason university connection. he is a member of the board of governors for george mas

scalia has a number of beliefs that trump could affiliate himself with.bly not his distaste for recess appointments. there is recent supreme court precedent that would cast some doubt on president-elect trump's ability to make recess appointments either with respect to executive branch appointments or with respect to the courts. but again i think we are increasingly have the mantra of break first and pay later, which means they may try something and then determine afterwards whether or not it's lawful. >> all right. thank you, guys. appreciate it. we are going to come back and talk a little bit more about the pick for treasury secretary and why the markets, as we were talking about a moment ago, are reacting positively to it. first, what we're learning about a possible ceasefire deal that would pause fighting between israel and hep. don't go anywhere. israel and hep don't go anywhere. impressive. impoundment ♪♪ wlap- ♪ wlap ♪♪ ♪ why use 10 buckets of water when you can use 1 fire extinguisher. and to fight heartburn, why take 10 antacids throughout the da

breyer and justice thomas concurring with judgment or descending but basically agreeing with the scalia, kennedy, i want to say steven and ginsburg. yes, i think that's right position. but in any point, so let me ask you, folks if you want to tell us stepping away from section 230 as such, what do you think is the optimal constitutionally sound solution to these questions. so one possibility to say there is very broad authority under the first amendment for punishing speech that is negligent in the sense that it -- that the jury concluded unreasonably leads to physical harm, speech that encourages suicide, anorexia, reckless self-harming behavior, encourages drug use. even when it's addressed to adults because after after, section 230 at least right now does not distinguish speech to adults from -- from a speech to children or maybe it should. so one possibility is basically we should apply negligence law to situations where there is physical harm that is caused, at least maybe set aside caused through political advocacy, just caused through -- through blackout challenges of the like ev

host: ed whelan is back at our desks, past president, current anthony scalia chair of constitutionalt the ethics and public policy center. remind viewers what epp is. >> we are a premier think tank in d.c. dedicated to applying christian value to public policy. host: how long have you been there? guest: 20 years now. host: two weeks ago in "the national review," there was a column in which you called it " terrible anti-constitutional scheme of recess appointments." why is it a terrible and anti-constitutional scheme? guest: referring to the idea they talked about that donald trump would try to force the senate to adjourn, perhaps right on inauguration day, proceeding to make blanket recess appointments to top cabinet offices. i think that would be an outrageous upsetting of the constitutional scheme, contemplating that the senate will, especially on high offices. as hamilton explained in the federalist papers, this provision of the constitution that gives the senate authority to advise and consent on nominations is important to making sure that the president makes high-quality pix. a

scalia and ginsburg famously did this and also scalia and justice breyer. who else is out there, do you think, really exemplifying the best parts of? who do we look to in this day and age for the civic model? who are the good role models? who should people be looking at now as embodying these lessons? >> absolutely, it is so meaningful when the justices join for those discussions. the chairs of the national constitution center, justices gorsuch and justice breyer have also joined together for discussions about texturism versus originalism, which is so important, showing that those discussions are differences of principle and philosophy, rather than of politics. helps citizens understand what the law actually is, which is not just a clash of personalities or politics, but of principle. and that is why at the constitution center, we are trying to teach the methodologies of constitutional interpretation to kids starting in middle school. it is kind of a radical idea, but it seems to be working. that when kids and learners of all ages can listen to the argument

the earliest and strongest supporter of chevron deference on this report was justice scalia. if 70 mentions him -- -- if somebody mentions him -- shhh. enhancing the definition of what constitutes banking services so banks can provide. you want to do it armored car service, that is a business of banking. it is like exemptive relief. giving some deference to agencies. the supreme court just watches a graph. neil gorsuch had this in his book. it is one of this exponential charts. it is like viral expedition log of mythic -- logarithmic growth. at one point they say enough. some of my friends that lean progressive in circle say we have got you now. there is no administrative deference when the republicans want to do exemptive rulemaking. we will challenge them and you will not get agency deference. here's the problem. . if it is clear, we don't need chevron deference. the exemptive authority is clear. we don't need any deference to understand the sec has wide except of authority. the only times i have seen except of a 30 challenge is when the sec says to continue using the exemp

i found it interesting that they were on an elephant that must have been scalia's idea. but um i, i think there's a long tradition of that that people can lean into. >> there are a number of questions about the policies that the president elect is proposing to make significant slashes in the federal workforce to potentially move agencies outside of washington. um and let me preface that by saying, you know, i think that there are very significant places where you could find spending savings, but many of the proposals that are being made seem to be unconnected to reality. but i want to ask you about, about the role that you see for congress and in particular, um there's been a subcomittee that's been set up in. uh and, and like, definitely it's guaranteed for success because marjorie taylor green is the chair of the subcomittee. but, but i'm interested in how you see that subcomittee working particularly as it relates to the appropriators, for example, their role in the constitutional responsibility to appropriate funds. but talk about the policies that are being proposed

awful would mean sort of gutting decisions like brown which was written by the late great antonin scalia. he says in the brown decision, that violent video games might be awful, in fact, they might have realistic simulation that are quite awful, but ultimately violent video games are constitutionally protected for both adults and for minors and so the proper outcome is for parents to make the decisions on behalf of their children not the government. i personally think that's a correct interpretation of the first amendment. i recognize that i think ashley would probably have brown overruled and that's also -- that's something that the supreme court one day does. i hope it doesn't come to that because i think we would see a lot of laws that show speech not just on behalf of minors but adults but, of course, the supreme court can always revisit its decision. >> so one issue that's come up here is what's the proper first amendment limitation on negligence liability for allege -- speech that alleged causes physical harm? and related question, well, to what extent should the law be more sensit

[laughter] is a professor here at the scalia law school. challenges the conventional wisdom with prodigious research and sharp original analysis. you can tell this by some of the titles of some of his books. one of his favorite books -- my favorite book of his is "you can't say that," which is quite apropos for today's conversation. his most recent book is called "classified: the untold story of racial classification in america." he is the executive director of the liberty and law center, hosting this conversation today. to his left, can marcus is the founder and -- ken marcus is the founder of the louis brandeis center. he is the author of "the definition of anti-semitism," oxford university press. during his public service career, marcus has served as assistant u.s. secretary for education for civil rights, staff director at the u.s. commission on civil rights, and general deputy assistant for fair housing and equal opportunity. also has a george mason university connection. he is a member of the board of governors for george mason univer

appointment case, justices thomas and alito and the chief justice joined a separate writing by then justice scaliae the power to fill vacancies that did not themselves arise during the recess. >> that is an obama appointment, as i right? >> yes exactly. so there the republican justices would've limited and democratic presidents ability to use an appointment power i am not at all confident that they would restrain donald trump's effort to try to test the scope of the recess appointment power and experiment with whether you can force the senate into recess and thereby circumvent the consent process in general as well as his own party, it is a republican senate by going into adjournment, i think it's very possible. donald trump is basically asking the party to bend the knee and testing how far they will let him go to take away their powers, if the senate let them do this, there is a possibility that the supreme court would as well. >> all right, thank you so much for those insights. coming up next, president biden policy shift, he is now allowing ukraine to use u.s. arms to strike inside russia. that

mcconnell, when he was majority leader , he made sure that the opening created by the death of justice scalia not failed for almost 10 months, and then when justice ginsburg died , he made sure that vacancy was filled within days a nomination was made and then within weeks it was filled. it depends a great deal who is in charge of the senate. the senate will be in republican hands for the next two years and if you look at the -- if you look at who is up, the likelihood is that the republicans will continue control of the senate, at least that is the way it looks tentatively for now for a great deal can change. >> what you make of this big dream a mayor retiring and replacing her with a much younger justice in this limited amount of time they have yet before trump takes over? >> never say never, but i wouldn't bet the farm on it. i wouldn't bet a $10 bill on it. >> fair enough. >> i actually spent a fair amount of time before the election trying to figure out what would happen if either side, when, whether it was harris or trump , and i spent a lot of time talking to conservatives who our frie

they joined a separate writing by then-justice scalia, that said presidents cooperate use the recesscies to fill -- >> that was an obama appointment. is that right? >> yes, exactly. that was an obama appointment. there, they would have limited to use the recess power -- i am not restraining donald trump's power. and whether he can force the senate into recess. and thereby circumvent the process. if the republican senate allows donald trump to get away this by going into adjournment. i think it's possible the numbers of the supreme court would do so as well. donald trump is basically asking his party to bend the knee. and testing how far they will let him go, to take away their powers and aggregate them to himself. the senate -- i think there's a possibility the supreme court would as well. >> leah litman. thank you for those insights. >>> coming up next. president biden's policy shift. he's now using ukraine to strike inside russia. that's up next. [coughing] copd isn't pretty. i'm out of breath, and often out of the picture. but this is my story. ( ♪♪ ) and with once-daily trelegy,

joining the chris landau former law clerk for justice scalia and thomas law clerk an investor to presidentn mexico. the aclu trying to get their hands on the records how i.c.e.o immigratiorcn customs enforcemet error operations expanded to carry out deportations. so assuming they get that information which trump is notou eate tn in office yet, what legl roadblocks do you think they can utilize to slow down or even>> stop these deportation flights? >> well what do i think there it a distinction between the onesea they can try and the ones that can succeed. ngthey will tr awally to throwp everything at the wall to see what sticks.y po we see that in the first trumpn administration. basically every policy administration rolled out was n court. t i and i think the goodhi thing is trump 2.0 knows how to deal with that. knows how to get things uption through the legal process a lot more quickly to get resolution. but is not just the aclu, democratic governors and mayors have announced campaign of e resistance to federalns attempts to enforce immigration law, which of courseib is one of the core

and out's is treated as a prize against the political parties, and we saw that after the death of scalia016 when republicans would not consider any nominee by president obama, we sell that again more recently in 2020 when justice ginsburg died and republicans rushed to confirm amy coney barrett to her seat before they lost control of the white house and senate. now, we have three justices who are in their 70's, and both, craddick and republican activists speculated it would be an opportune time for them to find others rather than judging our nations laws. immediately, it was liberals who talked about justice sotomayor, the eldest member of the liberal block, now diminished, 70 years old, appointed i president obama in 2009, and if she were to step aside, in theory, the democrats, president biden could nominate a successor, the democratic senate could confirm her before they turned over the senate to republicans in january. similarly, republicans, knowing that they do not want to have habits of their ideological allies, what happened to the liberals when justice duesberg died, -- justice

and it is factual knowledge and public information justice thomas and justice scalia a little older but work on the court. the nation is well served to have them continue to serve. ultimately, it will be theirough call not a lot of political pressure what should be for a personal decision and the two justices who serve the country so admirably. josephine went all right, tom, i am a lawyer so i get one more. give us the idea attorney general. what characteristics wouldok f u look for should the g president look for ienn that perfect attorney general?foun >> i think you want someone who is profoundly committed to the rule of law. someone who will apply the lawti fairly without partisan influence. and someone who takes the constitution seriously.just i think we can see what happens when the justice department gets infected with political bias. it is not d noa good look and a restoring confidence in the administration just assumes the united states with a strong attorney general and the head of the department of justice. >> trey: i couldn't agree more. the lady wears a blindfold for a reaso

so, chris newman is an associate professor at the antonin scalia school of law. his scholarship focuses on property, theory and copyright law with an emphasis on property doctrine and the relationship between tangible and intellectual property. his areas of teaching include civil procedure, copyright, trademark, entertainment law and free speech. he currently serves as an associate reporter for the american law institute's restatement of property project. chris graduated from the university of michigan law school and hold as b.a. in classical liberal arts from st. john's college in annapolis. after law school, chris clerked for judge alex kazinski on the ninth circuit u.s. court of appeals, josh, for this project, his written a really interesting paper on religious minorities and secular rights and really looking at how gentleman hoaivea's witnesses in particular, although a small percent of the population in the u.s., have really had an outsized impact on freedom of speech in particular. for those of us who teach free speech law, we actually know many of the sem

of this panel, i am also the executive director of the liberty of law center here at the antonin scaliaaw school which is a sponsor for the liberty initiative. i want to welcome everyone both here in person and who are watching lives. live via streaming or c-span or watching in the recorded session. this particular panel is based on a paper by a professor who be joining us via zoom in the background, spewing hate and speaking tolerance. i will give you a brief biography of the speakers, but i do not want to take up too much time. they are all very distinguished. if i went through their biographies it would take up a good part of our session. scott, distinguished chair i've free enterprise and professor of economics for the center of economic education at the university of tennessee chattanooga. her main interests lie at economic development and political economy. a combination of consent and knowledge arguments. our first commentator is a colleague at george mason university, a professor of economics and professor for the study of capitalism. among other accomplishments, professor jones

on february 13, 2016, when justice scalia passed away, senator mcconnell said, and i quote, "this vacancy filled until we have a new president." >> jon: and so amy coney barrett was forced to head back to her homestead, never to be heard from -- oh, they didn't give a [bleep]? oh, right, i forgot! they didn't give a [bleep]! look, let this show be the utterly ineffective hypocrisy-finders. i can tell you from experience, it does nothing! you guys be the loophole guys that figure out how to get shit done. because they don't give a [bleep] about your norms! they will exploit any loophole, even if they have to go through clearly closed windows to do it. you would think after trump's presidency, democrats would have learned. but they doubled down. when biden tried to get immigration reform into the inflation reduction act, and the senate parliamentarian told him he couldn't, did he respond to the rule with a loophole or did he... >> that's for the parliamentarian to decide, though -- not for joe biden to decide. >> jon: no! that's for -- you take the parliamentarian and you put them in a lock

of litigation, the pacific legal foundation is joined by professor eric claeys of antonin antonin scalia law at george mason university. if you'd like to learn more about today's moderator or speaker, their full bios be viewed on our website, booktv dot org. at the end of the program, we will turn to the audience for questions. if you have question, please enter into the q&a function the bottom of your zoom window and. we will do our best to answer as many as we. finally, i'll note that as always, all expressions of opinion today are those of our guest speakers, not the society with professor claes. thank you for joining us today and i'll hand things over to you. thank you for those introductions, edith, and thank you for asking me to moderate and thank you, jim, and congratulations for writing such an interesting book. why don't we start at least like to ask you to tell the audience what's the main was the main change you want to have the book convince people to follow? i think the main thing i would like people to understand is that we need less government, not more government, fewer g

there was a supreme court case where three -- actually, four at the time, scalia was one of them, butaid that the president's ability to make recess appointments is highly limited. highly limited. >> it's limited, but with cooperation from the senate, the president has the power, but here's the thing. forget that for a minute. he's going to get most of these -- 90% of these nominees anyway. these are not going to be nominees, i don't believe, that are going to be rejected by the republican senate. >> that's why he should go through the process. there's a number of these nominees that are actually quite good. doug burgum, i've known him for a long time. he will do a solid job as -- >> senator of -- >> north dakota. he'll do a really solid job there. i think brooke rollins will do a good job of agriculture. >> jonathan: bessent? >> i don't know him, but he's a mainstream type of choice. he's a wall street guy who's being put in by a republican president. so part of this, jon, too, is there's an over -- there's too much hysteria about all of them, and i think that's going to be a mistake

the supreme court has ruled in a case about 10, 15 years ago that i think it was justice scalia was the lead on the court that this should only take place in an intercession, between the times the senate ends a term and begins a new term. and that's simply whenever they decide to take off. president trump has asked the senate leaders, candidates in the senate leader who was ch chosen, mr. thune, all said they would do it when mr. trump asked them to do it to have a period where he could appoint, have his appointments for cabinet to come forward and be approved because of lack of action by the senate in what's called a recess appointment. that's a dereliction of the constitution and anybody that goes along with it should be questioned. the senate is to act as a check and balance on the president and his nominations and appointments of cabinet members. the senate meets, has hearings, votes to confirm or not confirm nominees. to not have hearings and to not have votes because some of his cabinet recommendations are so abhorrent that they would scare the american people and have a spectacle

scaliand ginsburg famously did this and also scalia and justice breyer. o else is out there, do you think, really exemplifng the best parts of? who do we look to in this day and age for the civic model? who are the good role models? who should people be looking at now as embodying these lessons? >> absolutel it is so meaningful when the justices join for thoseiscussions. the chairs of the national constitution center, justices gorsh and justice breyer have also joined together for discussions about texturism rsus originalism, which is so important, showing that those discussions are differences of principle and philosophy, rather than o politics. helps citizens understand what the law actually is, which is not just a clash of personalities or politics, but of principle. and that is why at the constitution center, we are trying to teach the methodologies of constitutional interpretation to kids starting in middle school. it is kind of a radical idea, but it seems to be working. that when kids and learners of all ages can listen to the arguments on both sid

bui'd respectfully point the court to castleman and as well as justice scalia's current -- concurrenceman, which both point out that where you actually have physical injury, it must have been used by physical force. justice jackso but castleman was dealinwith a different question, like how much force? what is force? is putting the poison in the ink enough to be physical force? i'm talking about a situation in which a person does nothing. mr. feigin: okay. the second point i'd make, your honor, and i've been trying to make it this morning, and i take as part of your question you've kind of rejected this, but i do think it fits squarely within the dictionary definitions. again, if my car is just rolling down, you know, a hill and i see some -- my enemy walk in front of me and i let the car keep going and just don't do anything, i think we'd all say i used physical force. now maybe i got in the car and turned the key and started the car, but i certainly didn't have the intent to use physical force against the person of another. i only had it at the point i stopped doing something. and the