I hope he bought two copies. [laughter] that i did not do. So i asked if i could interview you and i jumped at it then i found you did not write the book. [laughter] but there is good news but it is the compilation of legal essays of 26 legal scholars talking about various areas of the executive bridge executive branch. That is pretty dire to put this together. Thanks for interviewing me it is my desire to write books faster so it is sent once every six years. This book came together to see what characterized the Obama Administration over the last seven years. With Foreign Policy crisis is in command one of National Security threats. End of that Administrative State and the federal government as a whole a and sometimes we see here and there but the real is how large it has grown over the last seven years. The data obamacare statute but it is the story that is almost in every subject area of the federal government today. We try to look at each major agency when we thought were heavily involved or had been the head of those agencies where you are the expert, not me. So the former attorney general so to think of of better person were for gun rights we ask a former congressman and libertarian. Looking at crisis and a command and we discussed how the Founding Fathers debated and then they finally decided upon the strong executive. So George Washington was drafted how did the house the government . Most of the mostly customs collectors and there was the great quotation of Thomas Jefferson im sorry jfk of gave to a the nobel Prize Winners and he saved and said theres never been so much intelligence as Thomas Jefferson by himself. He had so much ability from his administrations from hamilton in the Treasury Department. What she did was say general it came into office to recognize the presidency and the state of justice and to give orders and they carried them out right away. That structure is to the other kind of government. Civic talk about operation in chokepoint. And they actually have a case. With a Supreme Court advocate so then we go back. What is operation in chokepoint . Of very disturbing program that are rising in other places where the federal government tries to prevent access to banking not that our illegal but perfectly legal in in the one he focus is on is the payday lenders and these are companies or Small Businesses give people the advance loan before their paycheck. Host i want to talk about that but first the list of these bad organizations because let there be any doubt to the of messaging the fdic published a list of highrisk industries. Lottery sales, the coin dealers i represented a coin dealer before in the iras. And the people were so nice they were momandpop it required them to spend 5 worth of paper work to sell the dineley had to get that change but pharmaceutical sales and that paid a loans. It is the disturbing about this there is no statute that congress ever passed going after these different businesses they could probably be and that of existence if it wanted but it hasnt. That fits dodd frank perfectly. Generally the criminal law to extinguish ago whole brand unless it clearly says so what is says to the administrators in cahoots with the other agencies in the Justice Department with the very vague lot of protecting that regulation. Originally they did not want the banks to risk their reputations and to harm the Financial System so part of that is what is the bakes start lending to the industries that our high risk so they would doubt if they should be regulating but the government through this interpretation there really doesnt have any grounding the week is stop the banks from regulating the industries that have said bad reputations as the neck and then the depositor is the bad person. But what is troubling is reputation is the standard that gives regulators the freedom to pick and choose who they do not like. To select certain individuals or points of the you almost a purgatorial treatment using the power of the government. Patel said techniques how do they squeeze those banks to go along . Added the regulators would prefer they never do anything formal like giving the necessary approval with the six theaters it is like a lead nejd them without having to formally pursue the day to prepare you dont really want these people. You may have trouble. Ben no formal action ever. But they threaten the cutoff of funds of more regulatory review something more expensive to coerce them and persuade them that i think it is forcing them into what they want them to do. Host so now we have to go to courts in here it is in District Court in Going Forward on the due process grounds but i have a question. [laughter] guests what industry is not included in . Marijuana. And not only included but the above a Treasury Department issued guidance to enhance Financial Services for the marijuana growers to sell its. You cannot make this up so is there equal protection arguments . I think the abuse of prosecutorial discretion because it is said to enforcing federal law in some states like california and colorado where by state law say that marijuana usage is Recreational League okay but it doesnt create an exception. This administration seems strangely. Marijuana legalization. Such use operation in chalk chokepoint and though setter actually illegal in some favor marijuana use. Ost i will end with this observation they say payday lenders and pornography dealers. But here is the official that we change the structure within the Financial System and we are choking them off from the very year that they need to survive. It is that kind of business. Guest i agree. That the government could prosecute with the experience and the burdens of the regulatory state issues saying the threat of the ministry of action to coerce people to get its way it is not what the framers had in mind. Host so lets go to the courts how they treat agencies. So we discussed the executive authority. Washington, a jackson, when does it start and how . Talk about crisis in command and how theyre really experienced during crisis. But when the crisis led past the executive branch would shrink. Woodrow wilson is the intellectual father figure. He saw the expansion of the agencys 80 wanted to make it permanent and he felt that was sufficient where he came to read my error the Government Administration it as a political scientist and then expanded by fdr. In the crisis of the Great Depression and he took wilsons ideas with his model and made it permanent. And then to be supercharged by lbj then obama is the last version of the great expansion from fdr and l. B. J. Bennett now is like steroids. In them praying to nixon because my . So what were they doing all this time . This. With eisenhower and nixon they try to keep peace with a giant welfare state that was created. If it tries to return this back to ronald reagan. Because these theories that come back around he wanted to do regulate to allow the economy to grow faster and debated that the other branch of congress and the courts to have more of a free hand give make the claim that the court came up with the chevron doctrine that said the courts should defer to the agencies so reagan could deregulate. Host with that chevron case in the epa that was invited by philosophy if you change or build or modify but then that goes to court. That cleanair act gives the epa to regulate to make the air cleaner consistent with Economic Growth than safety. With that burden in regulation with those outside groups to challenge so the court ended up agreeing with the registration and we should defer for the worse scientific expertise. And we should defer because of the elected branch and more accountable and responsible. Lend it were not elected and we have the jobs for life so there is no accountability for us to make policy decisions. With those agency rules with those statutes statutes. So that is the end of the story. The law isnt clear agent he would think it is the most vulnerable place. Kid to see other hard profile cases to say that is the statutes are clear when her weld challenged the obamacare subsidies to set the exchange. They are quite ambiguous said this is where agencies will do most of their work they have this pushed back from the courts. Are you mad at congress . But then. Especially with the al legislative history. And then with Justice Scalia. It does is to read anything. But in the 80s. It is partially congresss fault if they wanted it to be very hard to make a lot at all to issue the house and senate to a separate body selected different times that they could veto with interpretation that is really difficult to reverse that system under the Obama Administration to delegate authority to those agencies that is supposed to be the status quo congress has to go through those troops to stop the agencies from imposing more and more burdens. Is the complete upside down of the framers constitutional system. To overrule chevron to say. This is interesting struggle of jurisprudence there are some of like Justice Scalia was a loyal fan in judge bork was as well. Even the most Administrative Law clerk but most recently Justice Clarence thomas has been raising doubts about chevron and if it should be overturned. Host teethree they are beginning to have their doubts . Somebody that was raising doubts about concurrences of criminal law. So lets move on to the irs. That isnt necessarily addressed. Said he endeavored to of taking confidential information in a discriminating way. And i am not doing it that they used irs rules to thwart the political process. I just want to give some political background and we have had various limits of rules how to contribute but the case of fine gold it was a provision certain people to a batting cage that was corporations, nonprofits. Is this the time they are supposed to be . We still have that rule. These are Third Party Groups to speak on an issue. That is flatly unconstitutional civic then what happens . Like water always finds a level money finds a way to go . It is the aftermath. Were mostly liberal groups were doing them because the rules were iffy from the ftc federal Elections Committee and Citizens United there was a movie about Hillary Clinton made during the 2008 campaign and it was against her and we want to know if we are putting it in jail and that is what it was about and i have 2. 0 the irony. Du now how much money he had available because he is a taxpayer. Guest i am sure it was not enough. Host 840. The 740 million so you can see the republicans are exploiting that we have to figure this out. So now with the oral argument but scalia said to the solicitor general if i read a book, 400 pages that on the last page if i see dont vote for hillary is that bad . And they said yes. Said Justice Scalia i thought he would fall over and turn purple. [laughter] now. The government just like they can regulate speech of private people and vegetations by private people or corporations, i have always been puzzled why critics of Citizens United get so upset. So we would not say recognizing the right to abortion but we would never say you can spend money on abortion. Civics is in united say is said to have a right to free speech that is when theyre really wanted to protect that speech and of how we say you can spend money can you get away with that . Just like you cannot spend any. The democrats did not like this. Because the study showed that Citizens United would have a worse effect for support for the democrats because unions spend more money than corporations. They got such a burr under the idea but also labor unions. Host even though the president. To be allowed Foreign Corporations to spend without limits. But who was with the . And becket was murdered so who will win the from Citizens United . The irs. So we have an article by a lawyer for verse state legislator representing those for the nonprofit status from the irs for these kinds of purposes were talking about. In to slow them down without explanation they were pretty routine. To spend information that is unprecedented. For partisan purposes . Guest everybody realizes it would be terrible for our democracy. And then as this shows officials and the irs did use their power for partisan purposes to strike at the groups they ideologically disagreed with because they were using the discussion discretion and enormous power of the Administrative State. Guest its just like you pointed out the regulators have asked for more information to exercise their Constitutional Rights and it will never show up in the court as it will never come up to play. Host but they make recommendations. Guest a lot of the responsibility is with congress not just giving them cover to start with which congress decades ago the people in congress melted and passed those laws but they can pass the law to stop it and take away the power and conduct hearings and hold people responsible. The voters dont demand it and sometimes know more about the profits being brought home to the constituents to the district instead of asking are you following up into some of the congress dont have the individual sector because this isnt going to help you get reelected and some of it has to be the congressional leadership. Host i dont think they know how to hold hearings. It is almost a was almost a disaster yet i had all kinds of information. This simple concept like the security personnel went from 38 9. They should be just as good at it as democrats but the bottom line is i think conservatives and republicans are very poor as a part of running congress. Host i said that they are organized into come from places like universities and unions and people Work Together as a group maybe not so much. Guest host but they tend to distance people and a rancher from montana there are fascinating definite individualists and so i think they come with different attitudes towards government and why that should keep the republicans from being able to conduct a hearing they were looking at in teaching the commissioner did you hear any more about that . Guest i hadnt but that is one thing either party can do and it would be to start using the power not at the president ial level to the level of the cabinet officers or lower down. The federal regulatory laws are 300,000. Thats about the criminal law. They are going to know this stuff. Lets get a printer and tell them the difference between those. Guest there is an idea that there are some things that are bad by nature. Host common law. Guest all societies will prohibit and theres other things you can think of as not obviously but they continue to criminalize. We start as a common law system with criminal law and there are 300,000 criminal provisions on top of the ones in the state law those are not always evil by nature all governments are going to prohibit. Host and that is another criminal law concept. Guest you see this huge expansion that used to be the idea that you have to have a certain state of mind that you intended to carry out a crime so if you intended to kill someone versus someone died because you had an accident, then in the law in these areas theres there is this idea of strict liability where it doesnt matter whether you had an intention or not. You are going to be held guilty of a criminal act. Thats another revolution and its not the system we started out with but its a key underpinning of the criminal law today. Host theres one other factor into that is the doctrine of inanity. Tell us about that. Just for this has this has to be the criminal defense attorney which you are now, the favorite part of the law. [laughter] host maybe not so much. Guest it goes back to the idea you start with that they are supposed to be few and clear and as citizens we could understand what it was we could and couldnt do and it meant the criminal law shouldnt be vague. If it didnt really tell you what was illegal and you know its ambiguous that but it isnt clear what you could or couldnt do, then the governments, the courts especially the prosecutors employ the remedy to be generous and its almost that things that were close should be counted in the defendant speed but they should read the law to be expansive and reach things that it clearly did because again we should be able to tell what we are and not allowed to do because criminal punishment and consequences are so severe and harsh. Host a complete opposite. Guest exactly. And i think this is something Justice Scalia and thomas raise questions about. It shouldnt apply at all. Host hes good to be known as the great defender. He did say that hes getting tired of writing that. Guest its terrible about the passing that it gives a chance to appreciate him and many of his greatest opinions the ones you render best. I think he should have been proud of the dissent where he said the independent counsel is unconstitutional. This 81 or 72 and he has that great line he says sometimes in the separation of power they are wolves in sheeps clothing but this one is a wolf dressed like a wolf. He was so right. Host in the language, but they put them in a way they were all just very Creative Concepts as he says here that requires interpreters to resolve in favor of defendants and he said not to do so would turn the normal construction upside down replacing the doctrine with the doctrine of severity which is a great quote. Guest and hes right as a matter in the law that is not constitutiona