tv After Words CSPAN May 5, 2016 8:00pm-9:05pm EDT
>> host: john yoo welcome to "after words." i interview you with a rich legal history of five presidents and executive power. i read it again afterwards. after interview. >> guest: i hope you bought two copies. >> host: c-span called and said can you interview for the puck and i just jumped at it in the last i've found that you didn't write the book. legal essays by 26 legal scholars talking about various areas of the executive branch.
so liberties -- "liberty's nemesis" is really liberties downfall. >> guest: first thanks so much for the interview. you have renewed my desire to write more books faster so it's not once every six years and i will get a chance to see you on c-span. this book came together because it's something else to characterize the obama to mezrich are they last seven years that i wrote this book about foreign-policy crisis and command them presidential power draft of the national security and the growth of the presidency of the last 20 years. the stories of the obama administration has been an untrammeled expansion of the administrative state, the agencies, the federal government this whole only look at the media we see signs of here and
there will and lots of cases are collected in this book with the role story is how large the government has grown. read my sitting cases like the obamacare statute in me might see it in the bailouts but it's a story that's in every subject area where the federal government acts. >> host: how did you decide it would be. >> we go tried to look at each major agency and the federal regulatory power and take people who we thought were heavily involved in these agencies or have been the heads of those agencies over example criminal law where you are the expert in not me. we picked michael mckay c. attorney general. >> host: attorney general. >> guest: and former federal prosecutor.
or for gun rights. in a second amend it we asked bob r a former congressman and former libertarian party candidate. >> host: you talked about strong executives and we discussed how the founding fathers debated. one person decided on a stronger executive. so back in that time there weren't any agencies. there were no agencies and in fact george washington didn't even have a campaign. he was just kind of drafted so he didn't even have any cronies in government. >> guest: it was unbelievable like slam the whole federal government in washington is never larger than 300 people mostly customs collectors at the ports. most under the command of alexander hamilton.
there was a stray quote that thomas jefferson once said, gave it away john f. kennedy gave to the nobel prize winners had a dinner at the white house and he said never has so much brilliance and intelligence been brought to the white house since thomas jefferson died there by himself. never in our government has so much ability and capability and intelligence been brought to the demonstrations since alexander hamilton was in the treasury department. he was really what got the government up and running that washington was a general said he came into office and organize the presidency initially like a military command with four cabinet officers essentially, what we now call justice treasury. he had them reportedly to him and he gave orders directly to them. 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, this administrative state. >> host: i want to get to that little bit but if you could give viewers an example of some kind of agency misbehavior. i want to talk about operations chokepoint rated a very disturbing program and the federal government but one that exemplifies a lot of problems arising in other places. the federal government is trying to prevent access to banking by disfavored businesses. these are not businesses that are illegal, they are perfectly legal and the chapter talks about several that he focuses on better called payday lenders.
these are companies and businesses that will give people an advance loan before their paycheck. >> host: i want to start talking about payday lending but i really want the viewers to know the list of these bad organizations. chuck says lest there be any doubt as to messaging. the fdic federal deposit insurance corporation then published a list of high-risk industries in which disreputable merchants were found and ammunition sales. lottery sales, according dealers i represented represent a bunch of coin dealers before the irs and god forgive me that i ever practiced tax and it was a regulatory issue. people are so nice, they are ma and pa stores barely making a living in the irs require them
to send $5 of paperwork. firearms sales, pharmaceutical sales, tobacco sales and the payday loans. >> guest: this is the disturbing thing about this and other areas of predatory state. there is no statute that congress never passed going after these different businesses. congress could probably ban some of the month of existence that they wanted to but congress hasn't. >> host: they purposefully allowed payday loans. >> guest: generally the criminal law is not to be extinguishing a whole line of business unless it clearly says so. instead what happened is the administrators the fdic and visits with some of the other agencies and ultimately the justice department reads a very vague law and regulation about protecting reputation. >> host: tell what the
reputation risk was originally. >> guest: the idea was we didn't want eggs risking the reputation the way that might harm the stability of the financial system. this whole idea is to protect the stability of the financial system so when these bank started lending to industries which are high-risk so people might doubt whether the banks or ask the financial stable, that i'm not sure that the government should be regulating. the government interpretation that doesn't have any grounding in whatever congress wanted to do said we can stop regulated industries which we think have bad reputations like gun sales, tobacco sales. >> host: in other words the depositor is running the bank's reputation. >> guest: yes by borrowing money from them but the thing that is troubling you can see reputation as the standard. he gives the regulators the freedom to pick and choose the
people that like great depth in the story of the obama administration and these other areas as of selecting certain individuals, groups businesses, points of view toward disfavored and almost prosecutorial treatment using the power of the government. >> host: well, tell the tech weeks though that the banking people used against the banks. how did being courage the banks to go along? >> guest: again this is just like what's going on in areas, think the regulators would prefer they'd never have to do anything formal but they use the preparatory process of reviewing banks, having to give them the necessary approvals that they need to do their business. bank examiners, it's almost like a nudge them without ever having to formally pursue the bank in any way. saying you don't really want these people. >> host: didn't they save you don't get rid of these payday people -- >> guest: we might have to let you again.
there is no formal action ever and that's a good thing the obama administration and administration, what they did was they threatened to cut off our funds or something serious. more regulatory views or something expensive to coerce them and persuade them. i think coerce them into what they wanted them to do. >> host: so, then we have the courts and that -- those are the only two places. we had to go to the court and that is what texas is doing on behalf of a group of payday lenders and its two the district court in washington d.c. and is going forward on due process grounds. >> guest: i haven't done the reading yet just like my students would say.
>> host: tell us what industry is not included on the bad boy list. marijuana. you would have thought since it's against federal law and it's not included on the list but the obama treasury department in 2014 issued guidance to enhance financial services for marijuana growers and sellers. you really can't make this up. >> guest: it really does show the abuse of prosecutorial discretion because wilson of the obama administration is not enforcing federal law prohibiting marijuana in some states like california and colorado where those states by state law said marijuana usage has been just used recreationally but the federal law creates an exception might doubt. this is an example of the administration and this administration seems strangely
pro-marijuana legalization. since they favor that they are using operation job point to get to the agencies they don't like like than sales of payday lenders but industries are illegal in favor of marijuana use. >> host: first of all whenever a congress they say payday lenders, they lump them together but here's the official been quoted saying we are changing the structure within the financial system that allows this fraudulent business and he said we are choking it off from the air they need to survive. what is government doing in that kind of business? >> guest: i agree and this again goes to other agencies as well. the government could if they thought they were illegal prosecute them directly but instead the expense, the burdens
and the demands of predatory state which regulates almost all businesses in the country of any size and using the threat of administrative action to coerce people to get its way. i think it's not what the framers had in mind. >> host: didn't mean diddly squat so just see how that court street agency somewhat agencies did and we discussed the executives authority. how did we really get here? to follow up on what you started earlier because washington, jackson. we don't have all these agencies. when did we start to have this? >> guest: it's interesting to me talk about crisis and command executive power c-span's during periods of crisis hence the name of the book, wars and
emergencies but when those crises would pass the executive branch which drink in the government would shrink. woodrow wilson i think isn't election will father figure of a the kind of administrative state we had today. he saw the expansion of agencies and government during wartime and he wanted to make it permanent. he wanted to make it last beyond wars. that was efficient government. i think he came to admire the person system of government administration. but really a very influential political scientist before he was president and this was his view. >> host: and extended by -- >> guest: fdr and fdr took wilson's ideas and wilson's model and made a permanent and those are the agencies we are still living with endemic that supercharged in the great
society programs. i would say president obama is sort of the last version of the great expansion that we are living through right now that builds on espaillat -- fdr and lbj but then even like now --. >> host: you may have noticed that there are democrats. >> guest: that is one of the big partisan things. >> host: i grew up not hearing any kind of conservative philosophy. i grew up eisenhower make government work. it wasn't a philosophy of government. in fact -- so what were republicans doing all this time and the liberals who work standing government? >> guest: is good you point out eisenhower nixon because they tried to make peace with their giant welfare state that fdr and lbj at creative. you don't get a president who comes along to try to turn this
back and stop it until ronald reagan. reagan comments interesting some of the theories have come back around i think the two conservatives in the end because he wanted to deregulate. he wanted regulations to be lifted by the agencies and to allow the economy to grow faster what i think happened but in order to do that yet to demand that the other branches of congress and the president, inside congress and the courts defer to what he was doing to give them more for freehand. reagan and his lawyers of which you are one who made claims in court. he did make the claim but the reagan administration called the chevron doctrine in the chevron doctrine said the court should defer to the agencies so reagan could deregulate. >> host: let's talk about the chevron case and the reagan brocker c. and the people in the
epa guided by reagan's philosophy. is there a regulation that says hey it's easier for your burned change of plans or built something i modify it? >> environment is that you can't do that, you've got to be tough and so that goes to court. >> guest: it's interesting to the clean air act essentially gives the epa the authority to issue regulations just to make the air cleaner consistent with economic growth and safety and so on so it gives the epa huge discretion so in the epa started lessening some of the burdens of regulation to allow common growth outside groups challenge and said you are disregarding the statute by deregulating so the court ended up agreeing with the reagan administration and said we are going to uphold this new epa deregulatory rule because a agencies are more
expert than the courts and so we should defer to the agencies and the more scientific expertise and two they said the court said we should defer to the agencies because they are part of the elective branch and there are more accountable and responsible in some way to the voters were as we in the courts are not. we are not elected and we have our jobs for life so there's no accountability for us making policy decisions of this nature. so this famous chevron case from the early 80s the federal courts generally will differ to agency rules taken in this area where congress is pretty much ambiguous or give a large amount powefrom congress to the agency. >> host: the law's clear chevron says. that's something the story. you would think that would be
the most vulnerable place. we don't leave those of agencies and tell congress to come back with it. >> guest: you are quite right so this chevron does not apply to the statues. you see hard profile cases lately where courts have been willing to say we think the statute is clear to most recent example is king versus burwell which challenge the obamacare subsidies individuals that didn't have a stage set up exchange but generally most of the statutes expand the power of the federal government and the securities markets and the environment are quite ambiguous. this is the area that if you think about what the agencies are going to do most of their work because that's where they will have the least push back from the courts. >> host: are you mad at congress for giving up this power and you have worked on the hill.
i've always observe people saying i want this and the other side says i want that and you get together and makes it look like you got this and that at the same time. especially in the legislative history. each side tries to write what they think is passed which is why the late justice scalia worked in the legislative district because it doesn't mean a thing. conservatives like chevron at the moment. >> guest: as you said it is partially congress is both because under this system are framers created they wanted to be part to make law at all that's why a house in the senate were two different bodies elected at different times with different systems of representation over presidential presentment which he can veto or sign it and court interpretation. that system is really difficult
to get laws through. think about what we have now which reverses that system. congress in the 30s and in the 60s and under the obama administration has these very broad laws delegating authority to the agencies. those are constantly making laws all the time. it was supposed to be the status quo under the framers system to stop lawmaking. congress has to go through all those hoops to pass a law to start the agencies -- stop the agencies from imposing burdensome regulations so it's a complete upside down, flipping upside down the framers constitutional system. >> host: today the conservatives want to overrule chevron in state court. did you get into it? >> guest: this is an interesting struggle in the conservative world of jurisprudence. there are some who i say, justice scalia for example was quite a loyal fan of chevron.
judge bork was as well and judge silverman of the d.c. circuit which is a think the most important minister that law court in our country also very wedded to chevron by the most recent years have seen justice clarence thomas who i also clerked for has been raising doubts about chevron and in his last term is questioned her and asked maybe they should be overturned but i suspect others. he also with someone who is raising doubts about concurrences and whether they apply to criminal law and raising doubts about whether it should apply or not to the global warming case massachusetts versus epa. >> host: shevrin doesn't always -- it doesn't necessarily get addressed so we all know that nixon endeavored to obtain
from the irs confidential information of tax returns to use in a discriminating way but the irs commissioner said no not doing it. the obama administration used irs rules are to thwart conservative groups, in other words to thwart the political process. and i wanted get a little background exist for many in politics throughout the years of rules about how you can contribute but 2002 was feingold. and it was a provision that 30 days before primary or 60 days before a general election certain people could not engage in political and certain corporations, non-profits and unions. but isn't this a sign -- it
wasn't -- we still have that rule. the 2700 or whatever, these are third-party groups that want us to get on issue. they couldn't do an it add 30 or 60 days before an election. >> guest: that sentence -- a unconstitutional under the free speech law. >> host: and then what happened? money eyes find a way to go. those are political party things but mostly liberal groups were doing them because the rules were kind of iffy and were registering with the federal elections committee like they were supposed to do and then citizens united comes along. with citizens united was was a movie about hillary clinton made during the 2008 campaign and it
was against her and they went to the fcc and said we want to know for your going to be put in jail and that's where it came about. when mccain ran for president do you know how much money he had available to spend because he is a taxpayer and use public financing? >> guest: i'm sure it wasn't enough. >> host: $84 million barack obama, 745 million so you can see i'm giving this information to see how the political you know the political veins were exploding. we have got to figure this out some way or another. i was an oral argument and the first time it was -- but here were scalia and scalia said the solicitor general wait a minute
i want to know if i write every page of hillary clinton and on the last page if i say don't vote for hillary is that back? and you know what the solicitor general said, yes it's bad and scalia he turned purple on that. now, fast-forward to january 20 against citizens united comes down. >> guest: citizens united holds that money is speech that the government just like you can't regulate the speech of the people through these different groups in politics it can't regulate donations by private people or corporations for these groups to be in politics. i've always been puzzled why
critics of the citizens united get so upset about because it seems obvious the right answer. just for example who wouldn't say the government for example that recognizes the right to abortion but we would never say congress can say you can't spend any money on abortion. it seems obvious that the government can't regulate the money that you would use to participate in a constitutional right so citizens united simply says you have a right to free speech particularly as you said that politics during campaigns when the framers really wanted free speech. how does the government say but you can't spend money on using your constitutional right. think how you could hollow out all of our constitutional rights and he can't spend money. hosted at them at -- the democrats didn't the democrats didn't like it is an equal the playing field. >> guest: study show that citizens united in effect would have a worse effect on the supporters of the democratic party because the units spend
more money than corporations on all of this. i think they just got upset about the idea that corporations might be people but labor unions are people. >> host: including the president trashing it in the state of the union speech. it would allow foreign corporations to spend without limit in elections quote unquote paid. >> guest: it's not actually true. >> host: it reminds me of thomas becket who will rid me of this -- and becket was murdered so there's obama saying who will rid me of this meddlesome citizens united and guess who heard it? the irs. talk about what happened there. >> guest: in this chapter we have an article by a lawyer who is a former state legislator and
she has been representing the groups that have been applying essentially for nonprofit status from the irs of it could take donations and use them for these kinds of purposes we have been talking about. iris had been denying them are slowing them down without explanation. these are routinely granted in this supposed to be quick some of them taking years and years having to apply for more information, having to provide information which i think is unprecedented and terms of various in terms of who are your supporters. who was there a end congress started to ask the irs these groups seem to be singled out. are you singling them out or are you also doing to the two groups that have different viewpoints? it turned out apparently this is only being done to groups who are in conservative clauses --
causes or the tea party group and so on and not say the clean water groups or union groups or whoever. i think almost without exception this is the fruition of the fear that was behind the impeachment article of president nixon. it has an enormous ability to ruin peoples lives just by asking asking to do an audit or to not give you nonprofit status or commission that undertakes it to betty. that's what would happen if a president use those for partisan purposes. i think everybody on both sides of the aisle realizes it would be terrible for our democracy and then as she shows officials at the irs did use their power for partisan purposes only to strike at groups that they ideologically disagreed with because they were using the discretion and enormous power of the mistreated state to punish.
>> host: you can support things in the bureaucracy without a chevron test rewriting some revelation. >> guest: is just like a person joe point. although regulators canned out get a lot by winks and nudges asking for more information they can degrade a person's ability to exercise their constitutional rights and chevron will never come into play. >> host: at the end she makes recommendations or to do about it and every one of those is recommendation for congress to act. >> host: >> guest: we should be clear a lot of the responsibilities with congress not just in giving these agencies enormous power to start with which decades and decades ago the people who are in congress now didn't pass those laws but the people in congress now can pass laws to stop it, to take away the power and to conduct oversight hearings to hold people responsible. they are not.
there are a lot of reasons why. part of it is the voters don't demand it perhaps. voters sometimes worried more about the profits he brought home to the constituency to the district instead of asking about are you following up on the irs. some congressmen don't have an individual incentive oftentimes because this is not going to help me get reelected. it's not going to help you raise money for a campaigns and some of its got to be congressional leadership. they see the irs as an issue but they are not pursuing the issue to pull it back. >> host: don't think the republicans know how come i truly don't. the benghazi hearings or whatever was a disaster and had all kinds of information. it's real simple concept like the security of person i went from 30 to nine. you could take that away but
they don't seem to know how to do that. >> guest: why do you think that is? they should be just as good at it as democrats. he believed the bottom line is conservatives and republicans are very poor at this part of running congress. >> host: i don't know, advice for different people, the people that 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: and work with anybody. let me get that on the record. >> host: independent business people or a rancher like some of the ones in montana. these different individualists so i think they come with different attitudes towards government and why that should keep the republicans from being able to conduct a hearing. obviously they are looking at the commissioner of the irs.
have you heard any more about that? >> guest: i haven't but that's one thing that either party can do. they would start using impeachment power not at the presidential level let at the level of cabinet officers are even lower down. >> host: like the head of the irs. >> guest: does anyone actually know? husk of the federal regulatory laws are mind-boggling. granted thousand according to my folks. when we were in moscow were told that the criminal law is carefully crafted. because we should know what kind of conduct is prohibitive. let's talk a little bit about
criminal law. the law professors going to know this stuff. tell the difference between them. >> guest: there are some ideas that-somethings are just bad by nature. all societies will basically prohibit and there are the things they think of is not obviously always bad but with society chooses to criminalize so that's actually going to be more of our criminal law today. i think we start out as this common law system with a simple clear set of criminal laws and now we have got 300,000 criminal provisions on top of the ones in state law. those are not all evil by nature
that all governments are going to prohibit. >> host: talk about -- because that's another criminal law concept. >> guest: we have seen this huge administration expansive. used to be the idea that you had to have a certain state of mind. a state of mind that you intended to carry out the crime so if you attempted to kill someone versus someone died because you had an accident, then in the law particularly that in these regulatory areas there's this idea of strict liability criminal law word doesn't matter whether you have an intention not just the act you will be held at tilted the criminal act. that's another revolution in the law. it's not the system we started out with but a keen understanding of the rigo tory law today. let's go then there's one other factor in the criminal law and that is the doctrine of lemonade.
>> guest: this has to be the criminal defense attorney which you are now a favorite part of the law. this was the idea that goes back to the idea you start out with that criminal laws were supposed to be few and clear and as citizens we could understand what it was we could and couldn't do. the rule of levity is criminal law shouldn't be vague. the criminal law didn't tell you what was illegal and you know it's ambiguous or is not clear as to what you could or couldn't do then they courts especially but also prosecutor should employ what is called the rule of limiting -- limine that use shouldn't be expansive. this idea that we should be able to tell what we are and are not
allowed to do because criminal punishment and consequences are so severe and harsh. >> host: is the complete opposite of chevron. >> guest: exactly. i think this is something that justice scalia taught us. >> host: and i have a defense. he did say he's getting tired of writing dissents. >> gst: really? it does give us a chance to appreciate him and many of his greatest opinions are the ones you remember past. i think he should have been proud of the dissents. i think the martian versus nielsen dissent were the independent counsel is unconstitutional. room to that?
it was 8-1 or 7-1. he is a great line he said sometimes threats to the separation of powers are wolves in sheep's clothing but this is a wolf dressed like a wolf. he was so right. >> guest: to use language and put them in a way, no big words just these point concepts. he says here the rule of lenity requires to resolve in favor of the defendant and he said not to do so would turn their normal construction upside down for placing the doctrine of lenity but the doctrine of sergei which is a great quote. >> guest: chevron itself is not constitutionally required. just a rule of judicial policies that courts could have for themselves about how to approach reading fake statues. i truly agree with you and i
think with him that makes no sense in criminal law where they idea is not for the court should defer to agencies that but there's a more important constitutional value which is due process requires a criminal defendant that citizens have the ability to tell what's illegal and legal. it goes back to a point raised earlier that there are conservatives questioning whether chevron was a good idea. in different areas there was criminal law trying to cordon off areas they thought would be immune from chevron and eventually justice scalia protocol for chevron entirely to be over with. >> host: i can believe that courts would think of giving chevron deference. >> guest: the other is justice breyer is the person most on the other side at this point that he thinks that the administrator status is sort of super rational efficient manager so congress,
this meddlesome untidy almost like a black box. things go in and things come out and who knows what happened in that black box. the executive branch is going to make harmony and engage in efficient regulations. that would say you should have chevron deference for everything. they will make it all work out. someone has to smooth it all out and make it work in harmony so they would say why should criminal law be different? i agree there's a constitutional due process. >> host: let's see what works out for someone named lawrence lewis. do you remember that case? screw up in the d.c. projects, started out as a janitor worked his way up to be the chief engineer for no way. i haven't no noel went. by her house. it is spouses would military
persons. flushing diapers down the toilet which is causing a problem and are room. he decided he should defer to it to what he thought was a sewer that went to a sewage plant but alas it did not. went to rock creek and the justice department went after him and charged him with a felony and admitted that he didn't know what he was doing. >> guest: unfortunately that case is like thousands of cases where the government is overreacting in this something you should be over salt by common sense. he made a mistake, just fix fix. there is no did you intend to do a? and said 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 are going to escape oversight because they expect the courts should defer to them so unfortunately the book is full of examples of cases like this. >> guest: let's go to the -- act. 1900 guy named lacy was a member of congress and they pass a law to protect the wildlife in united states. that sounds okay but in 2008 and guess who controls congress in 2008? it was a democratic congress. they were protecting plants but not just united states plans but everybody's plants around the world. he can import something. do you remember the story of the three men and women -- that was
a really fascinating. >> guest: at really has to do with whether you can import certain kinds into united states are not in this was completely, turned out to be illegal under the laws of honduras that this was according to the epa -- epa regulators illegal under american law so these poor people are prosecuted for basically importing the wrong kind of seafood. >> host: bayern bags and set up boxes. who knew? evidently hondurans didn't know because the courts say it later it's illegal. >> guest: you have to ask yourself, this is another thing, there are so many things that do demand government attention. why is the government sending its prosecutors after people just because they are doing it
the wrong way. whether you have paper bags or plastic bag seems to be one of the most important policies to face mankind. >> host: in montgomery, you have to buy a bag. >> guest: another incredible case. >> host: the federal agents were had a qatar plant in tennessee and said give me your wood in your guitars because you are using wood and its in violation of madagascar and india law. >> guest: is an endangered tree. started in clear whether he the new, new with the wood was coming from and he said quite clearly if i knew these trees were endangered and the import was that i never would have used
them. he was making custom guitars essentially so again why does the government have to use the power of criminal sanctions and destroying somebody's business. chop the united states -- again it shows the government has so much power that they can use it flagrantly arbitrarily almost put in ways that are so against common sense and shows how out of control the mistreated state has become prey this is become routine. what happened to the poor guy -. >> host: they reached a deal three years ago and settled for three to $50,000 but that steve changed. >> guest: with you representing him i'm through the government would have had to pay him.
>> host: they got their materials back and they still continue to buy wood from india so you have to scratch her head. why did they do this. it wasn't a criminal case, it was a civil case that it was disastrous for them. compounding pharmacies. do you know what compounding pharmacies are? >> guest: i hope you never know what they are. >> host: it's a really important niche business because some people make them in different forms for people. not everybody is supposed to be taking medicine in the exact measured that they are sold to the masses so we need calm powders to do special mixing. of course they mix controlled substances that they have to have the dea license for controlled substance.
that's all well and good. the dea were rules for it. my compounding pharmacy was as a veterinarian and the dea had not written any rules for veterinarians. it's a whole different kind of business because veterinarians are kind of a walking pharmacy. instead of writing the name of the patient down the road my -- and as we argued what were we supposed to write down? the dea came down on armed taking documents. >> guest: showing the records.
>> host: we were both there controlled substance license. we came in we went to the court of appeals and the court of appeals would win. i'm telling the story because it was interesting to people understand. the dea says this is kind of a problem, work it out. they were happy with that. you will go through an administrative hearing. of course it costs more money. printed a thousand dollars. and then after the mistreated law took another year and a bit circuit judge who still have not ruled an administrative judge -- and ott we finally threatened a mandate and guess what our
client got their license back. we said we are filing this next week if you don't give us their license back. >> guest: i'm in damon goes back to the famous case of marbury versus -- which chief justice marshall found or an further regular judiciary review. it's essentially an order by a court saying carry out your legal duties. the dea realized that you were in the right and they were just giving you a hard time. as we saw in other cases, slowing things down with that ever formally doing anything. in this case they were supposed to -- and they decided to take her time and doing it. the thing is you can't go to the court. you can't go to mommy and daddy.
it reaches such a time period -- just so many people would not have the fortitude of their resources to find a well-known criminal attorney. whatever you do keep my business going which means every case like yours there are dozens of people who never see the light of day who suffer from liberty. they will perform the business if they want to but it's not harming anybody but doesn't fit the priorities. >> host: i forgot to mention that a client of mine the pharmacy had advertised opposing government on some issue prior to this happening. >> guest: i was wondering why they gave this guy such a hard time. plus i i want and that this conversation was something about scalia if i can get through it.
the image to the american people is that they are going to send everyone to jail. she was a textualists. she looked at the best of the constitution said this is what it says. i may not like burning the flag but i have to allow people to burn the flag and he told me one of his proudest cases was crawford versus washington area do you know the case? it's a criminal case and it's a requirement that there has to be cross-examination of somebody in a court statement. the lab technician this is its cocaine that lab technician was in court for cross-examination. >> guest: you and the defendants have the right to see your accuser and the witnesses and sometimes that meant he wasn't willing to go along with putting up shields and for the
people even if they were kids are vulnerable people. he said the constitution says -- i was going to say another great line of cases the right thing just a scalia justice thomas too went along with the more libertarian view of criminal law , the idea even though these cases i think it's called booker where juries have to be able to make a decision on all facts that have to do with the conviction of somebody for a crime and judges can 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 have their cases stopped on appeal and go back to trial because judges were getting too involved and too controlling of the criminal justice. i don't know what you think about the apple fbi site but justice scalia and several other
conservatives are favorable of privacy rights in the face of new technologies that many people might have expected. the two cases i would point to are a police officer with the heat detection device to try to find marijuana. >> host: that's legal now. >> guest: now we know they can raise a lot of money and justice scalia said that the search even though he never entered the house and usually it was the interest of the house that was seen as the fourth amendment protected space but not we could see from my public's -- and the other was the gps tracking case with the police have put a gps tracker on someone's car and even though you could have physically bound the current person that wouldn't been considered a -- justice scalia joined with other justices to
say the previous track on the car was an invasion of privacy so you nice you said and liberals are on the other side of this case of the idea that liberals are in the side of conservatives like scalia or thomas and they were the government is not true and definitely not true in this new world of privacy. i don't know how he would have come out on the apple case for example. i could see him, i could easily have seen justice scalia voting on apple's side are you personally would think the fbi has a better argument here. >> host: you're not getting too far off on that but it amazes me when the phone belonged to the county and the county saying hey, take it to that understand why it's such a big issue. i would think it would be better handled on another set of facts. they are going after full force. one last area, immigration.
chavez the syndicated columnist, major issue. it was a major issue in the 2012 campaign and of course again but here is the political context and i really want you to comment about what president obama did. you spent years saying you know i am not the emperor. both respect to the notion that i could suspend deportation by executive order, not the case and he said that two dozen times. and then in 2013 there was a democratic senate and republican house. the democratic's senate passed a conference of immigration bill and the republicans got it in the house i think they said we think we are going to get a better senate so we are not going to deal with it. we don't like it.
in 2014 when they did get a republican senate so anything just the republicans are going to work out together would not pass the white house. so by the very situation republicans and democrats than have to negotiate for something. you get a little, i get a little more maybe but president obama got the pen writer for those midterm elections and didn't even get the senate and the house to a chance work on legislation. >> guest: a lot of the stories in this book are when the president is just reached the agencies and isn't really monitoring them. the agencies are going off in her op-ed as you said this is a different kind of case. this is a case where is -- this is the present the top of this is going to be as constitutional legacy. it may not be the one he wanted but i think it will be his major
i would like it to be a more generous immigration policy. what you can do is for the president to just say, i'm going to achieve it by saying i want more people in the country, so i'm going to remove people who are here illegally because i disagree withi disagree with it. even richard nixon did not go that far. pres. lincoln,president lincoln, the most expensive user of presidential power never went that far. i think that is an unprecedented affect that pres.president obama will leave on the constitution that will have ripple effects going forward because think about what would happen if the shoe were on the other foot. i want to be a 20 percent flat tax. i'm not going to prosecute anyone who does not pay their taxes. the 40 percent bracket and you don't pay it.
think about what presidents can do. rewrite the law, preferred us code. >> am not going to force that one. the exact opposite. i think immigration area, president obama has gone so far out on a limb for someone like me who is a great supporter of presidential power, i can't go that far with it. >> he did not issue an executive order. he told the secretary not to. >> executive power decorated in a formal order. recently told the person, the cabinet secretary to cut down on removals. the number has dropped tremendously. president obama remove more aliens from the country than
any president ever have before because congress is pouring resources into it. the house is dropped enormously. >> two big ones. the one group is the children brought here by parents. any other are the parents that come here illegally and have aa child. the parents are illegal and the child was american. >> millions and millions of people. it sounds like there might be ten to 12 illegal aliens in the country, and this is a huge proportion of them, millions and millions of them. the problem, the statutes written by congress don't make exceptions for either class. my wish that people on both classes were allowed to stay
it is not the president's job to decide who gets to stay in the country and who doesn't. >> six years ago when i was talking about prices and demand, we were about a year into the obama administration, and i handed it by saying, what will you be writing about obama ten years from now. it is not ten years. at six, that you are pretty close to him at that time. >> guest: i was. >> host: i went back and reviewed it and said, i am concerned about his mystic policy. then you said, giving a lot of his executive power to the court. did not like that. >> well, he has done even more of that by turning over electronic surveillance approval to the courts. what worried me was to me in
crisis in command, the point of the presidency was tacked vigorously and decisively with speed in the face of foreign threats come in the face of things that congress and legislation could not anticipate. that is why you have a president. that purpose is not important for domestic affairs. the states are there. you can write laws to anticipate. things arise and you can rewrite law. there is no harm in acting deliberately and slowly. that is why you use a legislature rather than one person. toperson. to me, the story at the end of the obama administration is that original framework that the framers set up has been turned upside down. the president withdraws even more his constitutional powers for leading country, deferring to courts,