tv Heritage Foundation Hosts Discussion on the 2016 Election CSPAN November 13, 2016 6:31pm-7:47pm EST
>> thank you for being part of "newsmakers." >> thank you. [captions copyright national cable satellite corp 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] priebus this chafr -- has been selected to serve as the chief-of-staff. previouslyrs old and served as general council for the rnc an chairman of the republican party of wisconsin. been rnc chair since 2011. elect trump also bannon -- that steve chief strategist and senior white house counselor. is blican donald trump elected as the next president of the united states. nd the nation elects a republican controlled u.s. house and senate. follow the transition of government on c-span. you to key events as
they happen without interruption. c-span.ve on demand" at c- -- cspan.org. administration including presidential orders and the supreme court. an 1:15.bout >> thank you, john. [applause] >> i want to thank all of you participating, all of our panelists. those who are joining us via c-span. what great event. and ed, john malcolm this preserve the constitution series that's gone on for great weeks now, with events, such as the event with justice thomas, the opportunity constitutionalur republic, and the things that make this country great, it's series.been a great today is the wrap-up and i'm
just kind of the warm up act for that. pretend to get into all the intellectual discussions panelistsistinguished will be talking about. but i did want to talk a little about a perspective that has been someone who in the house and senate with the purpose of applying principles to law making. think what just happened in this election may have preserved republic.tutional we know the intent of ms. clinton and she talked a lot it, and what her belief was about a constitution. know donald trump has talked about the importance of list oftitution and the supreme court justice that is he eleased gave us at least some positive indication that it was his intent to select justices actually carry out
intent of the constitution. there are a lot of ways to talk about the constitution and you a lot of that today. we look at what the constitution says, what it means, what it originally meant. discussion.portant you will hear a lot today about, okay, how do you take those ideas, those principles, and apply them to law making, to to civil society as a whole? but there is another layer of that i hope james will get into somewhat today. why do we need a constitution at all? need a thick set of principles, predetermined set of principles? this may seem so basic, and we assume it, but i can tell one of problems in our country today is that those who make the vote on those ho who make the laws do not
a fixed d the need for set of principles that drives a rule of law nation. of the great ironies of reedom is that you have to be willing to obey the rules in order to have it. a republico not have that's made up of a constituency the laws, ly follow no laws can constrain them. lawmakers who d understand the importance of operating from a fixed set of principles, particularly, in our case, where the constitution is the federal can do. i found a very disturbing house and the e senate, that our only oath of ffice when we come in is to protect and defend the constitution. to bring ake any oath oney back to our states, to do what's best for our states.
all we do is commit to defend that constitution. yet when you leave the room fter that original oath, it is rarely mentioned again. if you stand up even in a epublican conference and we're talking about a bill and you say, this is not constitutional. the enumerated powers. you're going to get people ooking at you like you're crazy. that shouldn't be. isour purpose of being there to act and defend that constitution itself. panelists, as they look at this new dministration, will talk about how we can use this teachable moment for our new president as a wholeur country o remind them why this country is based on a constitution that predetermined, allows us to willingly build a constitutional republic on those means.deas and what it how we can apply it in a new
administration, because i this is an opportunity of a lifetime for us to reassert importance and the need of a constitution in this country. so i challenge this panel, james, as you set about this -- not justnot just talk about what should be but the way things are and how do we things are in ay ongress in america, back to a constitutional republic that limits what the federal government can do. james, who ntroduce will be moderating. ames swanson, he's a senior legal scholar here at the heritage foundation. a senior o, he was fellow and the founding editor supreme court e review. he's an edgar award-winning author, "new york times" best manhunt, the 12 day chase for lincoln's killer which understand is being developed interest a nine part television
series. he's a graduate of the and the y of chicago, ucla school of law. during the administration of reagan he clerked on the u.s. court of appeals for the a legal uit, served as adviser to the chairman of the u.s. international trade served in the office of legal council at the u.s. department of justice, supreme courtd on nominations which we'll now.erately need thank you, thanks for again for, and thanks the panel. [applause] you, senator. our comments reminded me of something said by chief justice john marshall. opinions of the united states be understandable to the average educated american, and how many hundreds of years ago abandon that rule? perhaps they abandoned it at the outset. we have great all-star panel
today and i'll begin by introducing them. michael mckasich, served as the attorney general of the united states, which, law enforcement of the nation, an appointee of the bush. served from november 2007 to january 2009. oversaw g that time he domestic and international law and part of that, he practiced for 20 years and for four years he served as an attorney. u.s. from 1988 to 2006 he served as a strict judge on the united tates court of appeals for the southern district of new york, judge in 2000. he believed his b.a. from columbia. llb from yale. purists. are still some >> i want to make note that we
have another attorney general here. the presence of attorney the 75th general of the united states. [applause] the chief is political correspondent for the washington examiner, and a fox contributor. now finishing up coverage of the presidential race. he's written on nearly every of the obama administration and the presidential campaigns of 2016, 2000.2008, 2004 and enough? white house correspondent for the national review. his work has appeared in the wall street journal," "washington post," atlantic monthly, foreign affairs and republic. e's a graduate from the university of alabama and university of chicago and now washington, d.c. goldberg is a fellow with the
american enterprise institute and senior editor at national eview a best-selling author, his nationally syndicated column ppears regularly in over 100 newspapers across the united states. he's also a weekly columnist for he l.a. times and is a member of the board of contributors to the u.s. a today and a fox news contributor. also, on fox all-stars, on special report with bret bayer. a founding editor of national review online and atlantic monthly magazine him as one of the top 50 political commentators in america. named he awards he was the robert novak journalist of the year of the conservative political action conference. on politics, media, and culture for a wide variety has appearedns and on numerous tv and radio programs and he's the author of two "new york times" best sellers, the teary of cliches and liberal fascism. john -- is a prefs senior of law at the university of california visiting y, and a
scholar at the american enterprise institute. the enemy of my law school, ucla. team.had the better his most recent book "liberty's overexpansion of the state. his next book on military of nologies and the future war will be published in 2017. his other books include point of attack, globalization, confronting terror crisis, other means.y he's published numerous articles in america's top law journals regularly to s "wall street journal," "new york times," "washington post" and other newspapers. of served in all branches government. he was an official at the office of legal council at the u.s. department of justice. served as general council of the u.s. senate judiciary orrin ee under chairman hatch and a law clerk to justice clarence thomas on the supreme judge lawrence silver man on the u.s. court of appeals
for the d.c. circuit. yale law ated from school where he was articles journal. the yale law >> j.d. [laughter] > and from harvard with a degree in american history. so i'll pose this question. panel.'ll join the we've decided beforehand they aren't going to make five minute presentations. the going to get into conversation, so let's just set the stage for that. trump's victory represent a victory for the constitution? presidency l his mean for the rule of law with respect to federalism, civil criminal justice, environmental law, labor law, foreign affairs, and the president's war making powers? and what about the first amendment and free speech and of the administrative and regulatory state? hat will trump's presidency mean for the commerce clause of the constitution? liberal interpretation
causes a well stream of much of he power of the federal government and what will donald trump's presidency mean for the of the united states? 'm going to join the panel now and we'll start with that. if hillary clinton had won this election, her supporters hoped that her first appointment to the court would -- by replacing justice scalea she could have era to the conservative an end, to reverse severale heller, second amendment case, citizens united, the free speech case. victory puts an end to those plans but what can we expect? scalea he fill the vacancy? this?hould he approach his first appointment will not his s transformation ---
appointment will return the traditional 5-4 split. but how might he transform the additional t with appointments? can we expect liberal decisions? be overturned during the presidency? mukasey to general lead off what might happen under trump.ent >> i have one serious ccupational defect that mercifully is shared by everybody here. i have never been a supreme court justice so i can't tell to how it is they are going e deciding cases after the election of president trump. owever, i think it's pretty clear from the list of people that he -- he's already proffered, that we're going to future the foreseeable beyond, a s even
return to the notion of a constitution with a meaning, meaning, with the meaning that was put there originally. be scrapped ing to with the criticism, well, the constitution is old and short. therefore, you know, we have to get on with something else more e society is much complex now. the founders could never have envisioned the internet or jet television or any of the other wonderful things that we have. the real function of it pointed out before, is word, to formt its a more perfect union, to and to ensure ce tranquility. o that people can exercise the freedom that they have to
develop in their own way. lives.ing to their own i think we're going to see much more emphasis on that than we on a so-called living constitution that essentially a ns whatever it is that justice says it means because the riticism of constitution being old and short day.ies the >> janet? >> were you surprised at how much the constitution and the court figure in the election? have we seen a presidential election like this before where people were talking about the supreme court? delighted nk -- i'm to be here. [laughter] >> as an. guy, i'm always shocked at how rarely i get beaten up in athroom here and all of that kind of stuff. i think it never happens. -- >> we're going to take care of that for you. yeah, i've got to push back a
tiny bit. i absolutely agree that the sense of urt, in the the scalea seat, loomed very large, particularly on the right were skeptical of trump or even harsher, as i that the court -- the court overpowered all other onsiderations for a lot of people. whether that was always the intent of mitch mcconnell, to into a referendum on a court appointment or not, it worked out that way. nd, so in that sense, i think, great news.tion is and i think that at the very he, even i, who is very much a trump skeptic, is honor his hat he'll first promise to put the first appointment, as a conservative. has to do that all hell would break loose if he
didn't. on the broader question of whether or not this begins -- that bsolutely true hillary was a grave threat to the constitution, grave threat to the court. opposite, the opposite is not necessarily true about donald trump. commitment to the constitution rhetorically has of quite good as a matter campaign boiler plate. he also said there were 12 soicles of the constitution, i don't know that -- deeply text.red with the [laughter] >> he also has views on things like eminent domain that a lot people in this room are nervous about. he has views on the first a lot of but i think people in the room are either nervous about or should be nervous about. think the question before, among conservatives and constitutionalists isn't so much in donald trump's heart that remains to be seen. hat really matters is surrounding him and creating the
incentive structure whereby the information flow, the political ecision-making process, all point him in the right direction. nd this brings up sort of a larger point. i agree with him entirely, it is infuriating to me and maybe the here, i'm not a lawyer, or reasons out of deference to my eternal soul, but it me how we've come to the point where we think the supreme court is the only constitution.he it is a guardian of the and in tion, certainalistic, the last -- formal-istic. the citizens, from whom the constitution derives its are guardians of the constitution. and we've gotten to this place basically say,
anything goes unless the supreme ourt, like a hockey goalie, stopped it. and that's something that i think the conservative movement, laces like the heritage foundation, magazines like national review, could do a much in terms of , creating the structure for politicians. the whole point of the conservative movement did not reject electing politicians. understanding the issues so that interest totician's do the right thing. and i think that's the first trump, for the conservative movement, is to make sure that the arguments hat he's hearing and the incentives that he has push him in the right direction and i think he's open to it and i he's made promises that commit him to it. >> can you speak to that? first of all, i don't think this is something that donald trump has thought about a whole lot. big deal in his life. think, in inciple, i
he constitution that he really delved into was eminent domain because it played into his role developer.state his roots in his approach to this go back to the early days of republican primary, where trying to consolidate the sport of conservatives. got ted cruz, whose argued the ch of cases before supreme court. he's got governors. he has a lot of people who have lot of experience in government and the law running against him. is extremely sensitive to the reaction of audiences. rallies. the he really notices, do they go for this? go for this? everybody sat on their hands. saw, i think, the interest hat conservatives in a republican primary, not the eneral election, republican
primary, had in the supreme court. 4 saw the conservatives that about him. the way he consolidated report was to release his list of that he said,dges i'm going to appoint one of these people to the supreme court. it was uniformly well received. list.se it was a great and the objection of the never trumpers were, yeah, it's a not do st but he may this. i don't trust him to do this. remember thing to about trump and him not really about these issues through, is perhaps his key is senator jeff sessions. jeff sessions being the first senator who comes out in support of trump, kind of legitimizes sessions gn almost, has one of the great living well because, as a u.s.
attorney in alabama, he was nominated to a u.s. district court position, and kindness of joe biden and ted kennedy, he was who d down by the senate accused him of being a racist. goes back to alabama, gets lected to the senate and takes his seat on the judiciary kennedy alongside ted biden.e >> trump also hired stephen aid of jeff sessions, his chief-of-staff, done a lot of nominating judges moves into the trump campaign. is think all of that probably very good news for conservatives who want to see him go in the right direction. for the supreme court, but for all of those circuit nominees, make a huge
difference. >> john, can you talk about this? >> yeah. want to also thank you and the senator for putting this and inviting me. i'm surprised there are so many people here because i thought veryone at hertage was working over at the transition headquarters already. in fact, there is a big when i got to the airport i asked the taxi cab river to take me to trump transition headquarters and he instead.e off here [laughter] >> it's also very nice to for a pate in a panel enter named after general neese, and it goes actually to byron's point,nd which is, it's not just supreme court justice who is are mportant it's also who the attorney general is. thousand trump administration is enforce interpret and federal law, in some ways, much more immediate importance about he constitution than who points to the court supreme
court. he ou remember the general, at tulane us speech law school. i did a study a few years ago to measure the effects of this speech. the general gave his speech, although there was wide criticism from my colleagues in academy and their colleagues in journalism, i don't want to are in eir colleagues journalism, and citations to the federalist papers at the supreme court. supreme court opinions, in the following five years went up 500%. before. hat's, in my mind, being just as consequential impact on the supreme court as being nominated. just want to recognize general neese for that and that's what we hope for from the administration. mra [applause]
year you >> his support monday constitutionalists, if i were a ate, picknot supreme court nominee before he takes office and i would pick someone who would be easily confirmed. agree, i know a lot of the judges who are on that list, irst 10, and then the 20, they would all be great justices, it how what a beep bench and much george bush and reagan cared, they seated the bench with all of these great lower judges but if he were, i think, paying attention to politics he would probably want nominate a senator because only one senator, i think, has ver been turned down for confirm nation for any job which was john tower, if you wanted to to the supreme
court now, i would imagine he would get readily confirmed. seat 't lose a republican in the senate, and he could keep his promise, essentially, to the conservative wing of the party.ican knits not going to change anything, just keep the status uo, you rightly said, jim the 5-4 decisions that conservatives have been losing abortion, obama care, go on and on, will still e there because of justice kennedy providing the fifth vote with the liberals so what you ave to look at is, who does president trump pick to be attorney general, white house ounsel, deputy white house counsel is in charge of judicial selection, because the real important fight is going to be the next justice retires. and if you look at the age lawyer, not an assurance actuarial scientist ages, you look at the justice ginsberg, i think, is 82. 80.tice kennedy is
justice breyer is 78 and you have to project out, how old they be in four years. going to ginsberg stay on the court until she's 86? 84, 82? i don't think so. trump will certainly have another pick and that one will be the big fight. f you care -- if you're a conservative and care about the constitution you want to see whoent trump will put into place to pick that seat, and there, we don't know. >> john, that leads to an question about the scalea pick.er the accused of ey plotting a coup by scheming to obstruct all nominations that clinton would have made to the supreme court. expect democratic senators to attempt the same of coup, to attempt to lock all supreme court
nominations by president trump? if that's attempted what will do about it?icans >> judge judge mukasey: i don't -- the democrats retained the filibuster for supreme court nominees, i think, against, just that possibility, although it is certainly not unprecedented for a nominee not to be voted on when there is a change of administration coming up, it is unusual, i think to the point of being unprecedented, for them to try to block any confirmation. and i think that would send -- that is a political loser from their standpoint. i do not think they would do it. that is the short answer. mr. yoo: you know, if you were president trump or a new attorney general, i think you would hope the democrats try to filibuster their appointment. i think we should also recognize senator mcconnell pulled off one of the great political maneuvers
of recent time in the senate by not confirming merrick garland. i think at the time, a lot of people thought this is low possibility success of working out, and instead he has really preserved the possibility, even, for us to have this discussion. >> john, i think you have to take into account democratic anger over this because the judicial wars had a ratcheting up affect. you kill five of hours, we will kill five of your spirit -- five of ours, we kill five of yours. and you have a situation where democrats felt they insulted the president. scalia dies in february, and the seat is still open. i would not be surprised if democrats were inclined to try to block something, at least for some period of time to get back
at this. if there's one thing that is true about the united states senate, it is what goes around comes around. mr. goldberg: i like the point about where senators get confirmed -- where i thought you appointingto go is ted cruz to the supreme court, and it would have an air of magnanimity, with his father having killed kennedy. [laughter] kid to getassassin's to the supreme court. mr. goldberg: there are a lot of senators that give good treatment in the senate, and there are a lot of senators that would like to get ted cruz out of the senate, and on the same principle that the only reason teddy roosevelt became vice president is because the new york political machines wanted him out of new york. you can see how democrats feel
like a come on the one hand he is healthy but on the other hand, i won't see him in the cafeteria anymore. the problem is i do nothing ted cruz wants it. mike lee might. he is great. >> the point on the filibuster , the democrats would think about invoking the filibuster, which is still left for supreme court nominees. if i were a republican senator, i would say we should overrule the filibuster for supreme court nominees for the same number of years that democrats overrule d the filibuster for judicial appointments. the exact same amount of time. otherwise, it is a ratcheting up effect. you will never stop this derogation of the rules of the senate, and you have to -- and the way to restore the filibuster is for both sides to show what would happen if it is not followed. the other points -- it already does not apply to lower court appointees. trump would be able to fill the bench not just the supreme court nominee, but a lot of the people too, who were also held.
but democrats were not making a big stink about that. >> and republicans would not want to go back on that. power give democrats the -- mr. swanson: the filibuster is not part of the constitution. it is just the senate rule. when the founders meant for there to be a super majority to make something happen, expel a member, pass a treaty, they specified a super majority. the rules of a nomination and confirmation are simple majority vote. so, is one question -- can a minority of the senate prevent a civil majority from consenting a judicial nomination? >> sure, they can. given the agenda the courts set for themselves with the complexity of the legislature i
think it is important to preserve that. time was, confirmation hearings lasted less than an hour. it was a long time ago, to be sure, but, i mean, it was considered insulting to put substantive questions to a nominee. all of that ended when the supreme court, again, with the active cooperation of the legislature, started expanding the range of cases, and the nature of cases that it would take to the point where political issues, instead of being resolved within the legislature through compromise and back-and-forth were handed off to the courts, the courts, of course, who would say bring us your biggest problems. we are here to solve everybody's problems. no case too big or too small, in by 9:00, out by 5:00.
that trend has continued, pretty much uninterrupted. given that, and affected be a long time before we pared back the scope of cases in the nature -- and the nature of cases the supreme court takes, it is going to matter who gets appointed, and as long as it matters who gets appointed, that decision, given how long they sit, has to be one that comes only after overcoming great obstacles, if necessary. mr. swanson: john, or anyone else? mr. goldberg: the point i would make about the filibuster -- why it is important for conservatives to still supports it is because --it is a symbol of how it is hardwired into the constitution. the way the senate -- it is not proportional representation. each state has two votes. the filibuster, in a way, is a symbol of that. it is taking it further. it is important to recognize
that donald trump would not be president or will not become president if it were not for federalism. the other place you see this is the electoral college. hillary clinton will win the popular vote. the only reason donald trump's president is because of the framers original design. the electoral college gives more of a say over the selection of the present than it would if we had a symbol majority election simultaneously throughout the country. it has been the liberal project for over 100 years to get rid of everything in the constitution that limits direct democracy -- they have been against filibusters, attacking the senate, the electoral college. i think conservatives -- the original design of the consultation was it was important not to have a direct democracy, we have a republican form of government, to slow down the ability of the government to act rashly. even though it may hurt us temporarily, picking supreme court nominee or lower court nominees, i think conservatives should be in favor of these
kinds of checks on direct democracy like the filibuster. i would return it back to lower court nominees and legislation after the same number of years that the democrats filibustered for this many years. [laughter] >> i would disagree. i would frame it a little differently. in terms of electoral issues, progressives have always wanted a more direct democracy. but that is a subset of the real approach to government, which is always to go wherever -- a carry the ball wherever the field is s open. so, when congress was the best vehicle for achieving progressive ends -- woodrow wilson talk about congress was important, and when he elect to be president, the presidency. the only reason i bring it up is because if you look at things which are stake in all of this, like the administrative state, there is nothing democratic about administration state -- it
is unaccountable come on constitutional government. it violates the fundamental principle that defines conservatism, which is opposition to arbitration to arbitrary power, and it is completely accountable. progressives have no problem building that out. their relationship to direct democracy is entirely an argument about expediency, the acquisition of power. and if direct democracy started working against them, they would stop being in favor of direct democracy. >> the last thing on this is that the judicial issue for trump politically brings the team together. just as it did in the primaries, i was talking about earlier. not every member of the house, not every member of the senate was that enthusiastic about donald trump, but when it turns into a fight with a judge with a nominee, the team is going to be on board, and obviously the house does not have a role in
that, but they will be voting -- rooting for it as well. this is one area -- obviously trump has said lots of things that kind of blew up conservative orthodoxy on things like trade, immigration, or foreign entanglements. this is one area where the team is together, and that will be useful for trump. mr. swanson: let's move on to a couple of other issues -- presidential power and the regulatory state. during the campaign, donald trump criticized president obama for abusing executive authority and ruling by fiat, often through executive orders. can we expect president trump to overturn many of obama's executive orders on his first day in office, and if he does, does that suggest he will be more sensitive and self restrained about using those powers of presidential power? >> those words are used all the time about him. [laughter]
mr. swanson: as a corollary to that, it has been said that congress on bended knee has surrendered to excessive presidential authority. do you think congress, not as to trump or rising up against trump, do you think that congress might reassert its equal role in our divided government? beeny to say, we have suppressed for eight years, we are back. first, the executive authority of the president, and what will trump do, and do you think congress will take this as an opportunity to reassert its role in government? judge mukasey: everybody who is going to be around the president in government? will have a list of executive orders -- in fact, i'm sure it is part of what the transition team is doing now, going through the presidential executive orders, drawing up a list of
those that will be written off on day one. it is going to be a long list. that said, i don't have any evidence -- i do not know of any evidence -- i would love to hear some from people who have covered this, that donald trump has thought on this issue -- the issue of presidential power, the issues that are presented by the administrative state -- at all. it is going to depend largely on who white house counsel is, who attorney general is, who essentially surrounds him for what we can expect later on. but as far as day one, executive orders -- those are going. i think that is fairly obvious. mr. swanson: john? mr. yoo: i agree with what judgment casey said. my proposal would be to reverse the presumption and not go to the executive orders to see
which ones to remove. issue aident could repeal all executive orders on january 1, 2009, and then go through them and see which ones you might keep, he could go further and say the president could say all regulations enacted by the federal agencies since january 1, 2009, are no longer to be enforced and we will return all regulations to be where they were during the bush administration. now, there would be a lot of people that would be upset about this, saying the president is not enforcing the law, overstepping his bounds, but i think president trump has to use executive power in the same amount president obama did just to restore us back to the proper path. the way i think about this is if you have someone that is driving and he takes to 10 miles into a ditch, you still need a car to get you back onto the road. i have no problems with a
president wanting to use executive power just to reverse the harm of the last eight years. one thing he could do that i think would be ok, which i think the president could do under executive powers, is to terminate the iran agreement on the first day of office. president obama made a mistake by not seeking congressional consent for the iran agreement. in fact, a majority of the house and senate were against the iran agreement, so president trump could say he is doing what congress wanted. he could also say i am restoring immigration enforcement back to the normal amount. he does not have to make a change from what it used to be. he just says i'm repealing the orders and restoring immigration informant to their normal priorities, which was focused on removing felons. i think he should restore normal criminal law enforcement, although i have this wild idea that he should pardon hillary the -- for crimes --
hillary clinton for the idea of being the past behind us, and also make clear that she committed crimes. [laughter] judge mukasey: interesting, if she did -- if he did pardon her, she would have to accept that. it would be president ford pardoning president nixon. i am deadly serious about that -- he would essentially have to acknowledge that crimes were committed. maybe if enough detail were recited in the pardon of what she was being pardoned for, it would save us all a lot of time and trouble that we might have to take to explore precisely what went on there. mr. swanson: jonah, byron, let's hear from you on that. mr. goldberg: on the pardon? mr. swanson: on any of it. [laughter] mr. goldberg: on the pardon bit , something trump does not have , he will do a special present you are on hillary clinton -- it depends on how bad you think the crimes hillary clinton committed actually were, and how intricate
-- how implicated in them barack obama is. but there is significance that it could force barack obama to pardoning hillary clinton so that we can move on. the pardon is a brand -- it is not quite walking through kings landing and saying shame -- sorry, "game of thrones" reference -- he would be a problem for you. politically, it would be kind of brilliant. in terms of the previous part about trump and the idea of his commitment to these issues -- again, look, i'm entirely open to giving donald trump the benefit of the doubt. the never trump thing is over by definition. [laughter] >> i do not know if it is over for him, though. mr. goldberg: that's true.
tell my wife i love her, if i suddenly disappear. [laughter] mr. goldberg: but the issue is you have to surround the guy with the right personnel, and most of these problems get solved that way. i still think -- i know this is moment for the right, but i was deeply troubled during the primaries during the debate where after months of donald trump talking about waterboarding and worse -- much worse -- and not for interrogation purposes, just as a sort of, we're going to punish these guys -- they are cutting off heads, so we will do bad things, too, which i did not think was an active -- an act of statesmanship, when confronted about the fact that he would be asking his military to commit war crimes that have no statute of limitations, his instinctive response was to say "oh, they will follow my orders." i do not like that instinct. i do not trust that instinct, and this gets us back to where i started.
we are all guardians of the constitution. i do not like it when george w. bush said he thought parts of mccain-feingold were unconstitutional, but he signed it anyway. i thought that was a violation of his oath. he said the supreme court would work it out. it depends which donald trump shows up, but at some point this is a guy that trust his judgment and instincts over everything else, and his commitment to constitutional norms, i think -- the most generous i'm willing to say is they are notional. that is going to require some strong will from people around him to stand up for principles that they believe in, even when the commander in chief is telling them something else. i hope it does not come to that. but i think a lot of the other stuff can be fixed through the bureaucracy, the staff -- he has told people he will not be a hands-on, day to day guy, but he will delegate and build a team. that is all great, but there will come a time or his commitment to these kinds of
things will be tested, and it will require men and women of good will to do the right thing, and how that plays out, i don't know. but i think it will happen, and we should be on guard for it. mr. york: well, the nature of campaigning for president is not really consistent with the idea of limited executive because the candidate says i'm going to do this stuff -- do this, do this, do this, and there is not talk about if congress lets us do this, if i can get over a filibuster in the senate, blah blah blah. with trump, that is another issue because he has actually been an executive in the business sense of executive. and there was a group of liberal billionaires who got together during the bush years to try to create a new liberal group to funnel money into fighting bush, and they fired the newly hired executive director because she told a billionaire joke at the
ir first meeting -- the joke being, what is the difference between a terrorist and a billionaire? the punchline was you can negotiate with a terrorist. [laughter] mr. york: so, if you are a billionaire, you are not used to having people tell you you cannot do this, you can do that. on the one hand, you have that with trump. on the other, a lot of the things he has pledged to do are entirely consistent with republican doctrine on these things. he talks a lot about the on the other, a lot of the over-regulation of business, and he is talking to audiences, talking about small businesses -- not his own, but small businesses. if you -- he talks a lot about judges that will respect the constitution. he talks a lot about obamacare, and the burdens that it has placed on business.
so, i think that what jonah says about what he says -- a lot of what he says is quite right, and we have gotten an idea nudges idea from people around him, that he realizes he has to work congress, and after his win, which was a shock to many republicans, they will get on board, and working with congress will not be as hard. i think the fact you saw paul ryan come out yesterday and say the name donald trump repeatedly -- something that almost never passed his lips before -- indicates that trump will come to washington as president with a lot of republicans who will be willing to vote for his agenda, in other words, to do with the -- to do it the right, constitutional way. mr. swanson: does anyone else want to pinpoint any other constitutional issues under the trump presidency that are of interest to you, or think we
should look out for or talk about? john? mr. yoo: parden hillary, terminate iran agreement, restore immigration enforcement. i think the other issue, his relationship with congress. it would not be a bad thing for president trump to let congress take the lead on how to repeal and restore the health care markets in our country. i think that is the original constitutional design -- if you look at me with the constitution is designed, it does put the president in the place of the initiative on foreign policy, but on domestic policy, the president's real role is to have a qualified veto over legislation. and so, the constitution designed congress to the initiator and primary weight of gravity in our system for the passage of domestic law. so, why not -- a president trump could actually be quite
magnanimous, and also restore the constitutional balance by saying i will let paul ryan's plan be the blueprint for obamacare -- which i believe is a national healthcare voucher for everyone, or block grants to states, but let congress -- it would allow him to look at the whole thing after the sausage is made on health care -- he could do that with a lot of other areas. well for reform, education reform, infrastructure bill, cutting taxes. as a president, it would be wise to let congress to the messy job of making the compromises, and then toward the end of the progress that process, since the president and the congress are on the same party, he could then intervene. i think there would also be important because it could potentially allow the states to restore them to their proper constitutional role, especially as the ryan plan -- the
framework they put out during the election were to be followed looks to turn a lot of federal programs and to block grants for the states, which would allow president trump to get out of the messy business of saying health reform has to have these five things. let the states decide, and let the constitution be restored to allowing the constitution -- the states be the laboratory of democracy. judge mukasey: one area where i did nothing he will be able to leave it to congress has to do with electronic surveillance program and terrorism measures. there, i think leadership will have to come from the executive, and i have not heard a whole lot from him about what he intends to do. have -- our interrogation program is limited to the army field manual, and we have stripped away a good deal of authority and will probably strip away more from the nsa,
which i think was a mistake. mr. goldberg: i think the 30,000-foot approach that john was talking about, also just fits trump's approach to things. he is not thought deeply about reforming health care. i think in the second debate -- he talked about obamacare, and the lines between the states -- something he used in republican debates, and it is kind of clear that his understanding of it had not really deepened since the republican debates. so, it had been months, and he is preparing for a general election debate. obamacare was a big deal, and he still had not. the question is what his actual inclination is once he finally is the president. if you read "the art of the deal" he talks about in detail what kind of marble he would use here, what kind of metal used here, the windows in another
building. he was actually quite detail-oriented and a lot of these things. i cannot tell you what his approach is going to be because he will be approaching issues he never dealt with as a private citizen, and of course a lot of presidents are the same way -- they never dealt with this issue before they became president. mr. goldberg: byron raises a good point that touches on the constitutional issues, but a lot of the issues. you have to go to marcus earliest -- what is in his nature? one of the few things we know about donald trump is he likes to build really big things, put his name on them, and take credit for them, even when other people build them. and he likes to make deals. one of my concerns from the very beginning has always been -- you look at the infrastructure thing, which i think is going to be the equivalent of his no child left behind -- he has talked to pelosi, schumer -- it
is a deal he can do that shows he is bipartisan, all the rest, gets people working, and build lots of things he can put his name on. and i worry -- i do not think it is going to happen for the first supreme court justice, but i have always worried that down the pike, chuck schumer says you want another $1 trillion for roads and bridges and airports, and we will name the new airport the trump international airport, and we use the best marble, and -- [laughter] mr. goldberg: and all you have to do is meet us a little ways on the next supreme court justice -- it does not have to be a liberal, but david souter -- and since he does not care about these issues, and everything is a negotiation, the -- and everything's the potential for a deal, i worry about his reliability on these things. and i hope to god i am proven wrong, but that is -- he is a lifelong democrat from new york who likes to cut deals.
and that, again -- i know i am a broken record on this -- requires very good signaling from the right about the deals he can get away with and the deals that he cannot. the relationship that the conservatives have now with donald trump is much more reminiscent of the nixon administration, which is fitting, because he is surrounded with a lot of nixonion language. solid majority, and the rest. richard nixon hated the right wing. i read this a lot. we also knew he had to deal with them. honeymoon isce the over, conservatives need to be set up in a situation where he has to deal with us to get our approval on the important things. that will leave it at because we saved some time for audience questions.
we'll do about 10 minutes of that. if anyone has questions, we have microphones. they will come to you. let me emphasize this -- you must ask a question. if you choose to make a statement, i will move to the next person who really wants to ask a question. wait for the microphone. >> hi, my name is joshua. general mukasey, professor, you both spoke about the value of a filibuster for supreme court nominations going forward, even if it hurts us in the short term. that presumes the democrats are even in place. harry reid was saying before the election, if the democrats took the senate, they would get rid of it. i have zero confidence and i don't know anyone with confidence that the democrats will leave it in place, so what is the value of that? >> i want to be clear, i was in favor of repealing the filibuster for supreme court nominees.
i just want to do it for the exact number of years the democrats would do it for lower court nominees. i actually would like to get back to a state where there was a filibuster. general mukasey said the senate has its own internal rules. the only way to get changes in the senate is tit-for-tat reciprocity. until you get the democrats to see what the world will look like when the republicans have a non-filibustered senate, they will never be persuaded to go back to how it was. maybe byron is right, in the end, republicans like having a non-filibuster world so much they never go back to it, too. in the longer run it, it is better for our republic to have a filibuster rule in the senate. mr. mukasey: until the democrats get a dose of their own medicine, they will not learn a lesson. but i think wiser heads may prevail. >> other questions?
>> thanks. there was some discussion about the electoral college. and of course, president-elect trump will not be president-elect until the official vote on december 19. -- electoral vote on december 19. there is a petition going around about electorates changing their vote for hillary clinton and the penalty is a small fine in each state and the clinton people would be glad to pay those fines. [laughter] my question to you is besides the unlikelihood of that happening, what do you think about that in terms of the structural place of the electoral college, to allow that to happen, and also the fact that donald trump himself in 2012 said the electoral college would be abolished when the romney the election was going on? >> i will jump on the grenade. [laughter] as a matter of conservative nostalgia, i long for the day for more robust, small r
republican institutions. i would be happy to get rid of the direct election of senators. we do go down a long list. -- we could go down a long less. as a person who actually lives in the 21st century, this particular political climate and context, where we have had a populist president running on the claim that the system is rigged, to have a bunch of rent-seeking corrupt machine party hacks and bribed into stealing the electoral college from donald trump seems like you would hear a deafening click on the safeties of rifles across the country. it seems ill-advised. [laughter] [applause] >> i'd like to follow up on a point that general mukasey made , and it's about our national
security, which is one of the places in the constitution where the president is clearly in charge of that, with or without congress, except in treaties, and so forth. but my question is -- our national security is kind of a mess right now. the military is in trouble. our foreign affairs in the middle east are in my view, a mess. where, in your view, does donald trump go in this area, the security of our country, the security of our people? counterterrorism is clearly an important part of it. >> can i intersect? i have written books that no one has read about this. [laughter] the one thing that i think historians will say is remarkable about the obama years is that of a lot of the things that he thinks will be his legacy are so quickly reversed. that is because he chose not to work with congress.
you're quite right, the president has the initiative in foreign affairs but it does not stick unless congress agrees. the first day in office he said he is closing guantanamo bay. it will be open -- from what donald trump has said -- will be open, and he may franchise it to france and other countries, put his name on it. [laughter] >> i think it is going to be a casino. [laughter] mr. yoo: a lot of these powers are in the president's hands to start with, but even with surveillance, it took congress and these amendments in 2007, 2008 to put them on firmer footing. you will see a lot of presidential power will be used -- because he did not act with congress. his major legacy is going to be the effort to make peace with iran. president trump could even reverse president obama's choice to recognize cuba.
that is also within presidential power. but he still needs congress' cooperation. we longer-term problem is that the obama years saw a dramatic cut in spending on the defense and the readiness of the military. but president trump cannot just order the military to get bigger. the constitution gives the power solely to congress to determine the size of the military. even if president trump wants to restore our defenses, he needs the republican congress to boost defense spending. >> [inaudible] >> that had to be thought through. i think it is still on youtube. take a look at president obama in his first day in office signing the order closing guantanamo. he staggers through it, reading it -- by the powers invested in
me, blah blah blah. and he signs with a great flourish. then he says, greg, a reference to his white house counsel -- do we have another order saying what we're going to do with these people? [laughter] this is for real. a voice off-camera says, we will have procedures. he lets very earnestly at the camera and says, we will have procedures. you need to think it through real careful. >> question over here. you did -- you. >> my question involves regulations that carry criminal penalties. as you know, over criminalization is a hot topic now. do you see a trump administration rolling back some federal regulations that carry criminal penalties, specifically
epa regulations? >> that is bound to be at the top of the list of anybody was gotten to be close enough to be around him. i think lots of those are going to go. >> i think one point that was made earlier that was quite right, we can talk about restoring republican government and so on, but the big aberration of our constitutional system is the administrative state. what we have had for the last eight years is a president who doesn't want to control it. what we saw in the obama years was a president who let the administration run wild. even president clinton -- the real one -- actually saw in his all actual interest to keep some limits and control in the administrative state. one thing that a president trump can and should do, as reagan did in 1981, is to come into office and say regulations are choking
off economic growth. go back and look, it is almost like an emergency measure. i am going to call a halt on regulations and i will subject them all to a rigorous cost analysis in the white house. liberals went nuts when he did this. they said he was overthrowing constitutional government but that is a key thing that president trump has to do. say all of these regulations we are halting enforcement until we can get a handle on which ones make sense. i will subject all of them to a tough, cost-benefit review. and easing criminal penalties goes way beyond what is the -- what is beyond the pale. an administrative agency can define criminal law and the penalties as a violation of the original constitution. i think it is also in trump's electoral interests. if he was elected by people not
experiencing economic growth, cutting regulations is a great way to try to jump start the economy. >> what you describe is consistent with what he says on the stump. that is what he says he will do. >> did you want to add to that? >> no. >> did i see somebody in the back? there was somebody in the last row, in the corner. >> going back to the topic of supreme court nominations, wondering if any of you could comment on the possibility that republican senators would invoke the nuclear option to bypass the filibuster, and any ramifications that may come from that? >> first, you have to have a filibuster that actually works. not clear to me that democrats would do it. they would get 41 senators to do it, they will only have 48.
it is not clear to me that they would actually do that. as i said before, i think they will want some measure of revenge for the merrick garland thing. i don't know what form that would take. so, to me it is unclear, but i do think that getting the trump nominee, the scalia seat nominee onto the court, could take awhile because democrats will be in no hurry. >> anyone else on that? >> is a net electoral early that elect- isn't dangerouslectorially for democrats? with so many seats coming up in the senate, if you are a republican politician, would you be glad if they tried to filibuster? this could be like 2002. >> there are 23 seats up in 2018. on the other hand, this vacancy is already there. it has been stewing for a while.
the next election is not until two years from now. so, i think a lot of democrats would think they can do this and it will not be a big problem. >> i saw someone on the back wall. i think this will be the last question. >> back on the regulatory front, given that the democrats are so apocalyptic about president trump, do you think they will actually work with the republicans in the congress? the judiciary committee and others passed legislation. do you think the democrats actually might work with republicans in congress to pass these things, to reign in the executive? two, are we sure president trump would sign a bill to rein in the executive authorities in independent agencies? >> the smart answer is i don't know.
but i think he would sign it. i think of congress put together a serious thing, particularly one that has democratic buy-in. why the hell wouldn't he sign it? but at the beginning of your question, you raised an important point that touches on byron's answer about the supreme court fight. we have already seen it in the last 24 hours, and it will get worse. i am trying my best to say we only have one president at a time. if bernie sanders, hillary clinton, and barack obama can give donald trump a chance, so can i. that's my view on this. i hope i'm wrong about everything, and that would be great. i thought his victory speech was a nice start. but we should prepare ourselves for the fact that the left is going to lose its mind about donald trump. [laughter]
like, in the last 24, 72 hours -- there is a school on the upper west side of manhattan where all the kids are mandatorily singing "we shall overcome." there is gnashing of teeth and rending of claws, people looking to see if the hudson is going to turn to blood. and so, the idea that the left may, in fact, create an incentive structure for democrats to just oppose trump on every single thing, and that includes the supreme court justices. and so, there is going to be a popular culture fight about donald trump, where hollywood and the left are going to try to make it seem like this is 1932, and he must be stopped. at all costs. i think it is, a, dangerous, and, b, profoundly hypocritical.
it is amazing how -- i was told the last eight years that any opposition to the present was racist. i've been told in the last two weeks that any talk about saying how the results of the election are unfair or should be contested was like, disinterring the founding fathers. now we have people openly going on a nightly news saying, he is not my president, he is not the president of the united states of america, hillary clinton won the popular vote. and it seems like you are allowed to be questioning these things as long as you're questioning it about a republican. anyway, get ready for a madhouse or a while. how that plays out in the senate fights and all the rest, whether he signs bills, whether it gets to donald trump's head and he has to move to the center to placate people, i don't know. >> it will just unite republicans more. we can say that. the national review will be
lame-duck congress that returns this week. now that the elections are over, congress returns next week for its lame-duck session. we are joined by scott wong, senior staff writer with "the hill.". you covered donald trump on capitol hill and the headline of your current piece says trump and ryan signal new chapter in their relationship. how does this play into next week's elections for speaker? how does this bolster paul ryan's chances in the house? mr. wong: i think it does. before the election, the hillary -- the conventional wisdom was hillary was going to win the race. donald trump had been threatening to make life miserable for paul ryan. that