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tv   After Words  CSPAN  March 19, 2016 10:00pm-11:01pm EDT

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>> guest: fir, thanks to much for interviewing me again if. you renewed my desire to write more books faster. this book came together because i was trying to think about what characterized the obama administration over the last seven years, i wrote this book about foreign policy, crisis and command, and presidential power directed at national security threats, and maybe at the growth of the presidency over the last 200 years. i think the story of the obama
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administration has been the expansion of the administrative state, of the agencies, of the federal government as a whole, and when we look at the media, sometimes we see eruptions, tiny signs of it here and there lots of cases are collected in the book, but the real story is how large the government has grown over the last seven years. we might see it in cases like the obamacare statute, the bailouts, here and there, but it's a story that is in almost every subject area where the federal government acts today. >> host: how did you decide who was going to be part of the 26? we tried to look at each major agency, each area of federal regulatory power, and pick people who we thought were heavily involved with those agencies or even had been the heads of those agencies. for example, criminal law, where you're the expert, not me.
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you and your husband, some of the great criminal lawyers in our country right now. we picked michael mukasey, the former attorney general, and former federal judge and former federal prosecutor. couldn't think of a better person. or for gun rights and the second amendment we asked bob barr, form congressman, former libertarian. >> host: probably still libertarian. but let's look at "crisis in command. "you talked about strong executive and how the founding fathers debated. one person or multiple heads and they decided on a strong executive. so, back in that time there weren't any agencies. there were no agencies, in fact. george washington didn't even a have a campaign. he was just kind of drafted. and so he didn't even have any cronies to put into a government.
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how did he have the government. >> guest: unbelievable. the whole federal government in the washington administration was never larger than 300 people, mostly customs collectors at the ports, at the command of alexander hamilton. there was a great quote that thomas jefferson once said when -- i'm are so -- i gave i. away -- john f. kennedy gave to know pel prize winners, never has so much brilliance been brought into the white house since thomas jefferson died here. same for for hamilton. never has the government had so much capability and intelligence brought to administrations since alexander hamilton in the treasury department. he got the government up and running, but washington was a general so he came into office and organized the presidency initially like a military command, with -- he had four cabinet officers essentially, a
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state -- what we now call justice, treasury. he had them all report directly to him, and he gave orders directly to them, and they carried them out right away. and that structure was the one we basically had for much of our history, until the rise of this other kind of government, i would say, this new administrative state -- >> i want to get to this. we ought to give the viewers an example of some kind of agency misbehavior. i want to talk about operation choke point. that was written by chuck cooper. he actually had the case in this. that's why he knows about it. a brilliant supreme court advocate and happened to have been with me in the reagan justice department. so we go back many, many years. what is operation chokepoint? >> guest: according to chuck, this is a very disturbing program in the federal government but one that
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exemplifies problems arising in other places. this is an area where the federal government is trying to prevent access to banking by disfavored businesses. these are not businesses that are illegal. they're perfectly legal. in chuck's chapter he talks about several but the one he focuses on are called payday lenders. company, small businesses, that will give people an advance loan before their paycheck comes. >> host: let's-i want to start talking about payday lenders about i want the viewers to know what the list of the these bad organizations are. chuck says, lest there be any doubt as to message, the fdic, the agency, the federal deposit insurance corporation, then published a list of high-risk industries in which such disreputable merchants are to be found, and ammunition sales, lottery sales, coin dealers.
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i represented a bunch of coin dealers before the irs, may god forgive me i practiced tax law, but i did and it was a regulatory issue. these people are nice, mom and pops, they barely make ally and the irs had written a regulation that required them to spend $5 worth of paperwork for selling a dime. firearm sales, gun dealersle pharmaceutical sales, tobacco sales and the payday loans. >> guest: this is the disturbing thing about this and other areas of the regulatory state. there's no statute that congress ever passed going after these different businesses. congress could probably ban some of them out of existence if it wanted, to but congress hasn't. >> host: dodd-frank purpose live allowed payday loans. >> guest: generally, the criminal law is not be read to
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extinguish a lot of businesses. about the fdic and the justice department reads a very vague law about -- regulation about protecting the reputation of the banking industry. >> host: tell what reputation risk was originally. >> guest: the idea originally was you didn't want banks republicanning their reputation in a way that would harm the system. the whole idea is to protect the stability of the financial system. so part of that might be what if these banks start lending to industries which are very high risk and so people might doubt whether the banks are actually financially stable. that i'm not sure even something the government should be regulating. then the government, through this -- i think interpretation that doesn't really have any grounding in whatever congress wanted to do, says, we can stop banks from regulating to industries which we think have
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bad reputations, like gun sales, tobacco sales, local coin dealers. >> guest: in other words, the depositor is the bad person and ruining the bank's reputation. >> guest: yes, but borrowing money from them. reputation is the standard, it gives the regulators the freedom to pick a choose those they don't like. selecting certain individuals, groups, businesses, points of view, for disfavored and almost percent cuer to ya treatment using the power or the government. >> host: well, tell the techniques the banking people used against the banks. >> guest: i think the regulators would prefer they never have to do anything form ya. the use the regulatory process of reviewing banks, having to give them the necessary approvals they need to do their own business.
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these bank examiners who look at -- almost like they nudge them without having to ever formally pursue the bank in any way to say you don't really want these people. >> host: they say, well, if you don't get rid of rid of these payday loan people we'll have -- >> guest: might have to look at you again. >> host: might have some difficulty approving your -- >> guest: no formal action. the obama administration has been -- they threaten to cut off funds or something serious. regular la tier revow, something expensive on businesses, to coerce them, persuade them, they would say, but i think coerce them into what they want them to do. >> host: so, then we have the court and we have congress. the only two places. congress hasn't done diddley squat so we have to go to the courts and that's what chuck cooper is doing on behalf of a
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group of payday lenders. and it's in district court here in washington, dc, and it's going forward on due process grounds. i have a law school question for you. >> guest: uh-oh. i haven't done the reading yet. just like what my students say. >> host: well, guess what industry is not included on the bad boy list? marijuana. my gosh. you would have thought, since it's against federal law, and it's not only not included on the list, but the obama treasury department in 2014 issued guidance to enhance financial services for marijuana growers and sellers. you can't make this up. so, wouldn't it -- equal protection. >> guest: does show the abuse of prosecutorial direction. the obama administration is not enforcing federal law prohibiting marijuana in some states like california and
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colorado now, where those states have, by state law, said that marijuana usage is medicinally okay or recreationally okay but the federal law doesn't create an exception like this. this admission apparently -- you're more the expert on criminal law butting this administration seems strangely pro mars mothers legalization, and so since they favor that, they're using operation chokepoint to get at agencies they don't like, like gun sales, or payday lenders, and not after industries that actually are illegal but which they have somehow received favor which is marijuana use. >> host: to show prejudice, end with this observation. first of all, whenever they write to congress they say payday lender and pornography dealers. here's the deal, we're changing the structure within the financial system that allows fraudulent businesses, and he says, we're choking them off from the very air they need to survive.
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i mean, what is government doing in that kind of business? >> guest: i agree. again, goes other agencies as well, is that the government could, if it thought they were illegal, prosecute them directly. but instead it's using the expense, the burdens, the demands of the regulatory state, which regulates almost all businesses now in the country of any size. it's using the threat of that. the threat of administrative action to coerce people to get its way. i think it's not what the framers had in mind. >> host: congress doesn't seem to have done diddley squat about it. so let's turn to the courts and see how the courts treat agencies and what agencies do. we discussed the executives authority. how did we really get here? follow up on what you started earlier.
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in the -- washington, jackson, we don't have all these agencies 'when did it start and how? >> guest: it's really interesting inch "crisis in command pie executive power expand during times of crisis, wars, emergencies, but when those crises would pass, the executive branch would shrink and the government would shrink. woodrow wilson is intellectual father figure of the kinds of administrative state we have today. he saw the expansion of agencies and government power during wartime and wanted to make it last beyond wars help thought that was efficient government help got the ideas from germany, where he came to admire the prussian system of administration. really very influential political scientists before he
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was president, and this is his view. >> host: then expanded by? >> guest: by fdr. fdr made it permanent and the crisis of the great depression, he took wilson's ideas and wilson's model and made it permanent and those are the agencies we're still living with. then it got super charged by lbj and the great society programs, and then i would say president obama is the last version of the great expansion that we're living through right now, that builds on fdr and lbj and then it's now we're like on steroids. >> host: you might have noticed they're all democrats. did you notice that? >> guest: yes. that is one of the big -- >> host: what were the republicans doing? i grew up not hearing any kind of conservative philosophy. eisenhower was praised because they made government work. nixon gave us the epa. so, what were republicans just
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doing all this time as the liberals were expanding government? >> guest: i think it's good you point out eisenhower and nixon because they tried to make peace with the giant welfare state that fdr and lbj created. you don't get a president who really comes along to try to turn this back or stop it until ronald reagan. and reagan -- it's interesting. some of the theories have come back around, i think, to bite conservatives in the end because reagan came in and he wanted to deregulate. wanted regulations to be lifted by the agencies to allow the economy to grow faster, which i think happened, but in order to do that he had to demand that the other branches, congress and the president, give -- i'm sorry -- congress and the courts defer to what he was doing, to give him more of a free hand. so reagan and his lawyers, which you are one, made the claims in court -- you didn't make the claim but one of reagan's
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lawyers -- the reagan administration came with the chevron doctrine that says the cowers should defer to agencies. >> host: talk about the chevron case because it's within the '80s and reagan bureaucracy, so to speak. people in the epa that abidessed be reagan's philosophy, get busy and write a regulation, it's easier if your going to change your plant or build something new and the environmentists say you can't do that. you have to be tough. so that goes to court, and what does the court say. >> the clean air act give thursday epa the authority to issue regulations just to make the air cleaner consistent with economic growth and safety and so on, and so gives them huge investigation. when the epa started loosening some of the burdens of the
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regulation to allow faster economic groups, outside groups challenged and said your disregarding the statute by deregulating. so the court agreed with the reagan administration, in the chevron case and said we'll uphold the new epa delegator rule because, agencies are more expert than the courts and so we should defer to the agencies because they have more scientific expertise, and then, two, they said, the court said, we should defer to the agencies because they're part of the presidency, part of the elect branch, more accountable and responsible to the voters, whereas we in courts are not. we're not elected and we have our jobs for life and so there's no accountability for us making policy decisions of this nature. and so the chevron case and ever since the federal caughts have been at the margins but generally they defer to agency rules that are taken in this
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area where congress statutes are pretty much ambiguous or give a large amount of power from congress to the agencies. >> host: well, then law is clear. chevron says, we're not -- that's the end of the story. it's where it's muddy, where the law is unclear. you would think that would be the most vulnerable place. we don't need those -- leave those things to the agency and tell congress to get back with it. >> guest: you're quite right. chevron does not apply, the statute's plain meaning is keir and you have seen high profile cases lately where the courts have been willing to say we think the statute is clear. recently king vs. burwell which challenged some of the obamacare provisions. generally most of the big statutes expand the power of the federal government, like the securities market, the environment and so on, are quite
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ambiguous and vague and this is the yeah, if you think about where the agency does most of their work because they've heal lease challenge and less pushback from the courts. >> host: are we mad at congress for being willing to give up this power, and on the hill -- i always observed were the people saying i want dismiss the other side would say i want that. then you come together and write something and says you got this and that at the same time. >> guest: that's the deal. iyou see how legislation goes, and especially in the legislative history. each side tries to write what they think would pass, which is why the late justice scalia, look at legislative history, it doesn't mean anything. so the conservatives like chevron at the moment. >> guest: during the reagan years -- as you say, partially congress' fault because congress, are in the system our
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framers created they wanted it to be very hard to make law at all. that's while you have to get through the house and senate two separate bodies elect at different times with different systems of representation and over presidential presentment, and that system is difficult to get laws through. right now we have reverses that system. congress in the '30s and ' 60s and under the obama administration passed very vague, broad law delegating authorities to the agencies. those agencies are constantly making law all the time. now congress, to stop lawmaking, which was supposed to be the status quo under the framer system, congress has to good through hoops to pass a law to stop the agencies from imposing more and more burdennings and regulations. so it's a complete upside-down flipping upside-down of the framers' constitutional system. >> host: today conservatives
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would want to overrule chevron and say, court, you get into it and see whether this was -- >> guest: this is an interesting struggle in the conservative world of jurisprudence. there are some who i say would -- justice scalia, for example, was quite a loyal fan of chevron. judge bork was as well. the judge i clerked for, judge silverman on the d.c. circuit, one of the most administrative courts, but on the supreme court itself, justice clarence thomas, who i also clerks for, has been raising doubts about chevron and several opinions this last tomorrow, has questioned whether it -- asked maybe it should be overturned, and i suspect others -- >> host: scalia was having touts. >> guest: you get that feeling help was raising doubts bit. whether its applied to criminal law, raising doubts about whether it should apply or not
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in the king vs. burwell case or the role in warming case, massachusetts vs. epa. >> host: and the irs -- what the agencies can do doesn't necessarily get addressed by chevron weapon all know that nixon, the article for inpeople. for nixon was hey endeavored to get from ther is tax return's to. >> host: a discriminating way, but his irs commissioner said, no, not doing it. no doubt the obama administration used irs rules to thwart conservative groups, in other words, to thwart the political process, and i want to just give a little background because of many in politics, mother's milk, and we have had various -- throughout the years of rules about how you can contribute, but the big whammy was 2002, mccain feingold, and
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it was provision that 30 days before a primary, of days before a general election, certain people could not engage in political speech, and the certain people were corporations, nonprofits, and unions. huh? isn't this a town they're supposed to be doing it? it wasn't a rule about contributing to the client. -- or to the candidate. we still have that rule. these are third-party groups that want to speak out on an issue. so like planned parenthood could not do an add 30 days or 60 days before election. >> guest: flat through unconstitutional under the free speech clause. >> host: then what happened, like water always finds a level, money always finds a way to go, and those are political party things.
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mostly liberal groups were doing them because the rules were iffy and they weren't registering with the federal elections committee as they were supposed to do, and then citizens united comes along and what citizen is united was, was a movie about hillary clinton made during the 2008 campaign, and it said that about her because it was against her, and they went to the fec and said we went to know if we're going to be put in jail if we publish this and that's what the whole case was about. i have to point out the irony. when mccain ran for president do you know how much money he had available to spend? because he is a taxpayer and used public financing? >> guest: i'm sure it wasn't enough. >> host: $84 million. and barack obama, 745 million because he didn't take the tax-free money. so i'm giving this information to see how the political -- the
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republicans' political veins were exploding. we have to figure this out. now, i was at oral argument -- i have to tell you -- when the first time it was argued and here's scalia, and scalia says to the solicitor general, wait a minute. i don't know. if i write a book, 400 pages and on every page about hillary clinton i tell what happened in -- but on the last page if i say, don't vote for hillary, is that banned by this? and you know what the solicitor general said, yes, justice scalia, and scalia -- you know -- chair was rocking. >> guest: just fell out. >> host: turned purple and that's when they said, come back, ebrief and it we'll do something else. that's january 2010. so this citizens united comes down. >> guest: citizens united holds that money is speech and so the
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government, just like it can't regulate the speech of private people through different groups and politics-it can't regulate the donations to -- by private people or corporations or groups engaged in politics. always been puzzled why critics of citizens united get so upset because seems obvious to me the right anxious, just, example, we wouldn't say -- the government, for example, has to recognize its right to abortion, but we would never say congress could say, you can't spend any money on abortion. seems obvious that the government can't regulate the money that you would use to participate in a constitutional right. so, citizen united simply says, since you have a right to free speech, particularly as you said, in politics, during campaign when the framers really wanted to protect the right of speech. how can the government say but you can't spend money on using your constitutional right? if you other get away with that,
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think how you can hollow out odd of off constitutional rights. you can't spend money on using your right. >> host: but the democrats didn't like it because it was going to equal the playing field. >> guest: it's funny because the studies actually show that citizens united, in effect, would have a worse effect on the supporters of the democratic party because unions spend more money than corporations on this. i think they got such a burr under the saddle about the idea that corporations smooth be people, and the labor unions were people, too. >> host: including the president trashing the supreme court in the state of the union speech. claiming falsely that it was a law allowing corporations to spend without limit in elects, quote-unquote. >> guest: which is not actually true. >> host: that's when alito said, not true. that reminds me of henry ii, and thomas beckett. who willied me of this
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meddlesome priest, and shortly beckett was murdered, and obama said who will rid me of this medslesome citizens united and guess who heard him? the irs. talk about what happened there. >> guest: in this chapter we have an article by a lawyer named mitchell, former state legislator and she has been representing different groups which have been applying for nonprofit status for the irs so they can take donations and the irs had been denying them or slowing them down, without explanation. you should -- supposed to be routinely granted, supposed to be quick. some of them have taken years and years waiting, having to apply for more information, having to provide information which i think is unprecedented in terms of the requests from the irs. who are your supporters, what are you. >> host: what did you say at yours last meeting? >> guest: and so cleata and
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others in congress started to ask the irs, these groups seem be to singled out. are you singling them out or doing this to groups with different viewpoints. turned out, apparently, this is only being done to groups that seem to support conservative causes or the tea party groups and so on, and not, say, the clean water groups or union groups, and almost -- i think almost without exception, this is, i think, the fruition of the fear that was, as you listed, was behind the impeachment articles of president nixon. the irs has enorm mose discretion and enormous ability to ruin people's lives just by asking to do an audit or not give you nonprofit status or permission that you -- to undertake some activity. imagine what would happen if a president used those for partisan purposes? i think everybody on both sides of the aisle realize this would we terrible for our democracy,
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and then as cleatus shows, officials and the irs did use their power for partisan purposes only to strike at groups they ideologically disagreed with because they were using the discretion and the enormous power of the administrative state to punish -- >> host: and didn't have nothing do with that. you can thwart things in the bureaucracy without a chevron test or rewriting regulation. >> guest: just like the operation chokepoint, the regulators can get a lot just by winks, nudges, being slow, asking for more information. they can degrade people's abilities to exercise their constitutional rights and it will never show up in a court and chevron will never come into the play. >> host: in the end, cleteus makes a expression every one of them is a recommendation for congress to act. >> guest: yes. i agree. we should be clear. both of us worked on he hill. a lot of the responsibility is with congress, not just in giving these agencies enormous
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power to start with, which congress, decades ago, people in congress now didn't pass then laws but the anymore congress now can pass laws to stop it, to take away the power, and to conduct oversight hearings and to hold people responsible and they're not. and part of the reason -- there's a lot of ropes d reasons why. part is perhaps the voters don't demand it. they worry more about the pork being brought home to the district instead of asking about, are you following up on the irs? some of the congressmen andwomen don't have an individual incentive because this is not going to help you get re-elected or help you raise money for your campaigns and some has to be the congressional leadership. they see the irs as an issue but they're not pursuing the issue after tissue pull it back. >> host: i don't think the runs know how to hold hearings. i don't. they're not tactful at it.
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the benghazi hearings were one of them. it was almost a disaster, and yet i had all kinds of information about -- real simple concepts leak the security personnel went from 38 to 9. you can take that one away and just pound on it the whole time, and they don't seem to know how to do it. >> guest: whoa do you think that is? they should be just as good at is as democrats but i agree, the bottom line is conservatives, republicans are very poor at running congress. >> host: different people come into the democrats, people that really are organized and they come from places like universities and unions and places where people work together as a group, maybe not so much -- >> guest: i don't work with anybody. let me put that on the record. >> host: that's great. republicans are independent business people and work -- a
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ranchers, in montana. fascinating different individualists so i think they come with different attitudes towards government. why that should keep the republicans from being able to conduct a hearing. i heard that they were looking at impeaching the commissioner of the irs. have you ever heard any more about that? >> guest: that's one thing that congress of either party can do to restrain thed a use. impeach power not at the presidential left but at the level of cabinet officers or even lower down. >> host: the head of the irs. there's so many documents. let's turn to criminal. my baby. have any criminal -- 5,000. >> guest: anyone actually know? >> host: i know -- the federal regulatory laws are mind boggling.
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300,000, according to -- i know he is a good researcher. when we were in law school we were told the criminal laws were supposed to be carefullycraft because of fairness, because a person should know what kind of conduct he is prohibited. so, let's talk about criminal law. a law professor will know this stuff. >> guest: hopefully you'll do more of the answering. >> give a primmer to the people listening. tell the difference between those. >> guest: so, there's some idea that there's some things which are just bad by nature,. >> like rape, robbery,. >> host: common law. awe societies will prohibit. then there's other things which you can think of as not obviously always bad but which society chooses to criminalize, and so that is actually going to bemer of our criminal lawed today. you say we start out as a common
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law system with a simple clear sit of criminal laws, mostly -- and now we have 300,000 criminal provisions in federal law alone, on top of the ones in state law? those are not all evil by nature, which all governments are going to prohibit. >> host: then talk about mens rea. that's another criminal law concept. >> guest: another thing where you see this huge expansion of the administrative state. used to be the idea that you had to have a certain state of mind, mens rea, a state of mind that you intended to carry out a crime. so, if you intended to kill someone, versus someone died because you had an accident, is the difference. then in the law, particularly in these regulatory areas, there's this idea of strict liability
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law, it doesn't matter. you'll be held guilty of a criminal act. another revolution in the law and one that is not the system we start out with but is a key underpin offering the regulatory state. >> host: there's one other factor in the criminal law and that is the doctrine of lenity. >> guest: yet. this has to be the criminal defense attorney, which you are now, favorite part of the law. >> host: maybe not so much. >> guest: this was the idea -- goes back to the idea you start out with, that the criminal laws were supposed to be few and clear and we -- as citizens we could understand what we could and couldn't do, and the rule of lenity meant that if law -- it's very -- criminal law shouldn't be vague. if the criminal law didn't really clearly tell you what was illegal, and you used -- it's ambiguous or was not clear what you could and couldn't do, then the courts, and also
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prosecutors, should use the rule of lenity to be generous, almost that ties or things that are close 0 should be counted in the defendant's fav. you shouldn't read the las to be expansive. we should be able to tell what we are and not allowed to do because criminal punishment and consequences are so severe and harsh. >> host: the complete opposite of chevron. >> guest: exactly. exactly. i think this is something that justice scalia and thomas have raised questions about. not clear to me that chevron should apply to criminal law at all. >> host: how could it possibly? how could it possibly? i have a dissent. he is going to be known later that the great dissenter. >> guest: the title is already taken. >> host: he did say, -- just gating tired of writing dissents. >> guest: justice -- it's terrible that he appeals but
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does give us a chance to appreciate him and greatest points -- i would say -- are dissents. i think he should have been proud of the dissents. the morrison versus olsen dissent where he said the independent counsel was unconstitutional. 8-1, or 7-1. he has the that great line, sometimes threats to separation of powers are wools in sheep's clothing and but this one is a wolf dressed like a wolf. he was so right. >> host: common words in his language but put them in a way -- no big words, all just very creative concepted. he says here the rule of lenity requires interpreters to resolve and -- in criminal law in favor of the defendants and he says, not to do so would turn their normal construction upside-down, replacing the doctrine of lenity with a doctrine of severity,
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which is a great quote. >> guest: i think he is right as a matter of the original reading of the law. chevron itself is not constitutionalry lieder. it's just a rule of judicial policy. the courts' good idea for themselves how to approach reading vague statutes. i totally agree with you, and i think with him, that makes no sense in criminal law where the idea is not that the courts should defer to agencies but there's another more important constitutional value, which is that due process requires a criminal defendant and citizens have the ability to tell what is illegal and legal. and the second point, goes back to the point you raised earlier there conservatives now questioning whether chevron was a good idea. and so in different areas they were -- like in the criminal law, trying to cord cordonoff areas they thought would be immune, and maybe justice scalia would have called for chevron to be overruled.
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>> host: should have been a no-brainer. i couldn't believe the court would think of giving chevron deference. >> guest: the other end is justice breyer. the person most on the eye side. he thinks of the administrative state as a super rational, efficient manager, and so congress, this meddlesome, untiedy, almost like a black box, thing goes in and things come out, who knows what happened in that black box and it's the agencies and the president, the executive branch of government that's going to make harmony out of everything and engage in efficient regulation. that could group would say you should have chevron deference for anything, even criminal laws. congress was' aing crazy things and one has to nights it out. they would say why should criminal law be different. but there's a constitutional principle of due process. >> host: let's see how it worked out some somebody named lawrence lewis.
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do you remember that case? grew up in the d.c. projects. started out as a janitor. worked his way up to be the chief engineer for norwood. i know norwood, near our house. a retirement home for military persons or spouses of military persons, a lot of elderly people there, of course, it's a retirement home, and diapers down the toilets whichs causing a problem, backing into their rooms, and so lawrence decided he should revote what he thought was a sewage drain which went to a sewage plant but did not. i went to raw creek and then the potomac, and the justice department went after him, charged him with a felony, and admitted he didn't know what he was doing. >> guest: unfortunately that case is probably like thousands of cases, where the government is overreacting. this i something that you should
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be able to solve by common sense. the government just says you made a mistake, stop it. just fix it. there's no -- you didn't intend to do it. instead the government comes down against this poor guy with criminal sanctions because they can, because they have that kind of discretion, because they know they're going to escape oversight because they expect to the courts to defer to them. the book is full of examples of cases like this. >> host: let's go to the lacy act. you want to -- >> guest: i like it better when you tell the story. >> host: okay. well, 1900, a guy named lacey, was a member of congress, and they passed a law to protect the wildlife in the united states. that sounds okay. all right. but then in 2008, guess who controlled congress in 2008 -- >> guest: yes. >> host: democratic congress. they expanded it to protecting plants, but not just protecting united states plants, but --
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>> guest: everybody's plants. >> host: everybody's plants around the world so you can't import something, a plant, that is in violation of some other country's law. and do you remember the story about the three men and women who were the -- >> guest: honduras -- >> host: that's a fascinating -- >> guest: well, it's interesting. has to do with what you can import certain kinds into the united states or not, and whether -- this was completely -- turned out to be legal under the law's honduras but this was according to the epa leg regulators illegal under american law so these poor people were prosecuted for importing the wrong kind of seafood. >> host: who knew. and evidently hondurans didn't know because the -- >> guest: they didn't care. >> host: a court in honduras said the law is not the issue.
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but the three guys got six years, and the woman got two years. >> guest: incredible. you have to ask yourself -- this is the other thing. so many problems in our country, so many things that do demand government attention, why is the government sending its prosecutors after people just because they're doing things in the wrong way -- >> host: in the wrong containers. >> guest: not living in berkeley where whether you have paper bags or plastic bags which is important. >> host: in maryland you have to buy a bag. so gotten used to carrying our bags into the drug store and places. federal agents threaten to -- gibson guitar plant in tennessee, and said, give me your wood and your guitars because you are using wood in some of your guitars in violation of madagascar and
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india law. >> guest: from april endangered tree. not even clear whether he even knew -- i'm sorry -- the guitars knew where the wood was coming from and said, if i knew these trees were in dangered and import was banned i never would have used them to construct -- making custom guitars. again, why does the government have to use the power of criminal sanctions, essentially destroying the business, and jobs in the united states, which were supposed to be in favor of, this administration -- >> host: in 2008 -- >> guest: shows that government has so much power that they can use it flagrantry, arbitrarily almost, but in ways that are so against common sense, shows how out of control the administrative state has become, when this is routine. >> host: you know the what happened? >> guest: what happened to the poor guy? >> host: they reached a deal,
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and gibson guitar settled for $350,000, but -- that's cheap change for gibson guitar knife you were representing them i'm sure the government would have had to pay him. >> host: not this guy. but they got the materials back, got the wood back and continue to buy the wood from india, so you scratch your head. >> guest: what was the point? >> host: why did we do this? i want to bring in a client of mine. very similar but not a criminal case. it was a civil case but it was disastrous for them for a few years. compounding pharmacies. you know what those are? sunny hope never to know what they are. >> host: no no. >> guest: sound like they're bad. >> host: really important niche in the drug business because some people can't take big pills and they make them in different forms for people, or not everybody is supposed to be
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taking medicine in the exact measure that they're sold to the masses. so, really need compounders to do special mixing and they're like the old pharmacy. >> guest: i see. >> host: so, very important -- well, of course they mix controlled substances so they have to have a dea license. and that's all well and good. the dea wrote rules for it. you have to name the patient, sounds reasonable. except my compounding pharmacy was for veterinarians. and dea had not written any rules for veterinarians and it's a whole different kind of business because veterinarian are a walking pharmacy and they see whoa has a problem and instead of writing the name of the patient down, they wrote -- my client wrote the name of the vet, and as we argued in one
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place, what were they supposed to write down, nelly, seabiscuit? and so dea came in armed, taking documents, showing the records that showed they were only naming the veterinarian and not the person -- not the patient. revoked the controlled substance license. we went -- that's when we came in. we go through the court of appeals, and the court ofs he appeales we win because -- i'm telling the story because it's interesting for people to understand. the court didn't say, give them back their license. the courts don't do that. say said dea, that's kind of a problem. work it out. accomplish we were happy with that. can we work it out? no, go pound sand. you're going through an administrative hearing which took another three or four months and that's more money. $350,000.
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and then after the administrative law hearing it took another year and the administrative judge has not ruled and the administrative judges are like that a lot. they just suck up to the agencies. >> guest: cases in the supreme court about this. >> host: and we finally thenned a mandamus, and our client got the license back,; tell everyboy what mandamus is. >> guest: goes back to the original famous case of mar berry versus pettis in which chief justice marshall infederal the right of judicial review. essentially an order by the court to a government official saying carry out your legal duty. so at some point the dea realized that you are in the right and they were just giving you hard time, as we saw in other cases, slowing things
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down, punishing people they may not like without formally doing anything. in this case they were supposed to give the license, and they decided to take their time and doing it, and which every day you don't gate license like that is a day you can't -- your client can't work. >> host: the thing is you can't go to the court -- can't go crying to mommy and daddy until it reaches such a time period that it really looks -- >> guest: your client is unusual. many people would not have the fortitude or the resources to hire a criminal defense mother and fight until court. might just say please tell me whatever i have to do to keep my business going, which means for every case like yours, there's dozens of cases of people that never see the light of day 0, who suffer from liberties nemesis, great example of the title of the book and cannot just carry united states -- perform their business as they want. to it's not harming anybody but which doesn't fit the priorities of the government. >> host: , i think i forgot to mention that this client of
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mine, the pharmacy, had advertised opposing the government on some issue prior to all of this. >> guest: oh, i was wondering why they give these guy such a hard time. >> host: oh, my, isn't that scary. end the criminal conversation with something about scalia. i think the image in the american people, he is a conservative judge, means he will send everybody to jail. it wasn't. he was a textualist, and he looked at the constitution and stayed, this is what it says. i don't like to burn the flag but people are going to burn the flag, and he told me that one of his proudest cases war crawford vs. washington. a criminal case. and it is a requirement that there has to be cross-examination of somebody -- an out of court statement. >> guest: oh,ey. >> host: you can't bring an out of court statement.
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so the lab technician that says it was cocaine, that lab technician has to be in court for cross-examination, and -- >> guest: the confrontation clause that you as a defendant have the right to see your accuser and the witnesses, and times that meant he wasn't willing to go along with put upping shields in front of people even if they were kids or vulnerable people. the said the constitution says or the constitution -- i was going to say another great line of cases where i think justice scalia and i think justice thomas, too also went along with a more libertarian view of criminal law, the idea -- these cases come -- called booker, where juries have to make the decision on all fact that have to 2005 the conviction of somebody for a crime and judges can't do it for them. this had the effect of essentially, potentially, meaning that thousands of people who could have been convicted under laws would now have to be retried or they would have to
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have their cases stopped on appeal and go back to trial because judges were getting too involved and too control overing the criminal justice process. i think -- i don't know what you think about the apple fbi fight, but justice scalia, and several of the conservatives, were much more favorable about privacy rights in the face of new technologies that many people might have expected, and probably than i would have been. so the few cases i would point to is the police officer who is going around the neighborhood with a heat detection device to try to find marijuana being grown. >> host: that's legal now. >> guest: now we know they can gate lot of money, raise a lot of money from banks for it. and justice scalia said that's a search, even though you never entered the house. and usually was -- the entrance of the house that was seen as the fourth amendment protected space but not the -- what you can see from a public street.
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and then the other one was the gps tracking case, where police had put a gps tracker on someone's car, and even though you could have physically followed the car in person and that would not be considered a violation of privacy for the -- to follow a suspect, justice scalia joined the other justices to say the gps tracker on the car was an invasion of privacy. liberals, some of them are on the other side of the cases so the idea that liberals are in favor of criminal defendants and scalia and tom was war in favor of the government, not true. ...
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written by linda chavez, syndicated columnist. it is a major issue and was in the 2012 campaign. but the political context -- and i really want you to comment about what president obama did. but saying, you know, i am not the answer. with respect to the notion i can just change by executive order, not the case. and he said that, like,
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2,000 times. past the comprehensive immigration bill command the republicans got it. we are not going to deal with this. zero and 2014, the republican senate, but not 66 votes. anything that would work out together. so from that very situation republicans and democrats had to negotiate. you get a little, i get a little more. president obama did that right after the midterm election and did not give the senate or house a chance to look on it.
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>> guest: a lot of stories when the president has unleashed agencies -- in our stories of agency abuse. this is a different kind of case where it is the president at the top. his constitutional legacy. it may not be the one he wanted, but it will be his major effect which is his claim that he has the right not to enforce the law when he disagrees with it. i do not like the immigration quotas, the priorities. not to say the law is unconstitutional. presidents has struggled about whether or not they think the law is unconstitutional.
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this is different. no one says it is unconstitutional. congress has the power and get set how many people stay in the country, the criteria for removal and president obama said, i do not agree with the statute as written. i want a more generous immigration policy. personally i would like that. but the way you cannot do it is for the pres. to say, i'm going to achieve it by saying i want more people in the country. that is unprecedented. unprecedented. even richard nixon did not go that far. president lincoln come of the most expensive user of presidential power never went that far. that is an unprecedented affect that pres. obama will president obama will leave on the constitution that will have ripple effects going forward.
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he could say ii want there to be a 20 percent flat tax. congress does not do it. ii won't prosecute anyone who does not pay their taxes above 30 percent. think about what presidents can do. rewrite the law even if congress will not pass it. he could enforce the exact opposite. so president obama has gone so far out on a limb for someone like me, i can't go that far with it. >> well, he just told the secretary of homeland security not to the port. what is the difference? >> guest: he used

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