[applause] [inaudible conversations] [inaudible conversations] good afternoon and welcome to the kid institute. Let me also welcome our cspan audience. Im roger pilon, the director of the Kansas Center for constitutional studies and your host for todays Forum Working the publication of a new book by professor David Bernstein, lawless the Obama Administrations unprecedented assault on the constitution and the rule of law. This book in this form could not be more timely. This yesterday as we all know we witness the president said he was directing officials in his administration to expand the regulation of the Second Amendment rights of americans in several ways these repeated usurpations have served to divert attention from a long list of domestic and Foreign Policy disasters, but theyve also serve fortunately to direct our attention to the constitution into what are its bedrock principles, separation of powers. That will be our focus today as we canvassed the many constitutional assault of the past seven years. To do that, professor bernstein speak for about 30 minutes discussing several of the issues the book covers, and then well hear opposing commentaries on the book and then opened the floor up to you folks are questions. I will introduce each of our speakers before you speak. David bernstein as a professor at George Mason University school of law in arlington, virginia, where he is been teaching since 1995. Hes written over 60 frequently cited scholarly articles, book chapters and studies. Hes the author of rehabilitating lochner, defending individual rights against progressive reform, which those of you who still are of that persuasion that lochner was wrongly decided. Hes also the author of you cant say that, the growing threat to Civil Liberties from antidiscrimination laws which was published in 2003. Ihe is the author of only one place of redress am africanamericans, labor regulations and the court from reconstruction to the new deal which Duke University press published in 2001. He is the coauthor of expert evidence which is a caselaw, and also a phantom risk, scientific inference and the law which the mit press published. He is a graduate of Yale Law School where he was a Senior Editor of ideal law journal and a fellow in law, economics and Public Policy. Please welcome David Bernstein. [applause] thank you, roger, for the kind introduction. Thanks also to illegal whose wife had a baby two basic approaches to the hospital. Ilya. She is handling the babies and put her i am handling the babies output speed and hopefully there will not be too much output while we are here. Im going to start with an overview of the problem in the briefly run through some of the highlights were a people lowlifes of Obama Administration lawlessness, then delved deeply into two examples and finally because nothing happens politically in a vacuum i will spend some time discussing the influences on the Progressive Left in my to diminish respect for the rule of law among liberal democrats, among the lawyers of the Obama Administration which includes of course president obama himself. Lets talk about the problem. The trend of an ever expanding executive is not doing goes back at least to the presidency of Theodore Roosevelt as president ial power has grown over the last century or so, so has not surprisingly the abuse of president ial power. Even as the political divide continues to widen, one thing that unites republican and democratic presidency, any party tries aggressively expand their own prerogatives at the expense of not only the other branches but of the constitution of the law itself. The big reaction to this came in the 1970s after the disasters of vietnam and the corruption of watergate, and congress enacted a series of measures to try to restrain the executive can bring more power back to itself and to curb the executive and restored to some degree the rule of law. These reforms have been largely ineffective. Until recently it seems president s felt constrained in most cases he tried to obey the law but a least to pretend they were doing so. Unfortunately, we seem to have reached the Tipping Point with the Obama Administration. This administration has been aggressive about asserting president ial power doing so in unusually wide range of areas. Moreover, this is really maybe the most unprecedented thing, the Obama Administration has accomplished that the president himself and his advisers seem to see this not as something to be ashamed of. We dont surreptitiously go around. This is something to brag about. We cant wait, says the president we cant wait for congress. Im going to take my pen out and signed things. Obama behaves as if theres some inherent virtue in ignoring the separation of powers and the loss on the statute books in favors of president ial decree and whim. Essay promoting Progressive Political ends at the expense of the rule of law as a proper to govern not sent as a matter of last resort in an emergency but as a matter of principle. When press asked for an expedition to support his claim congress are of alleged refused to cooperate with the president s agenda at a caucus supposedly dysfunctional some against the president extra powers beyond those provided by the constitution. Let me run down some of the examples. Im not going to summarize the whole book but let me run down some examples that lawless gives of the abuse of exercise that president ial authority. Going to war in libya in blatant violation of the precious own promise, and statements on the floor he was elected about when the president to go to war without congressional approval. Even more egregiously in blatant violation of the war powers act. Appointing socalled czars, high level government positions to config mandated confirmation hearings and also congressional oversight. Modifying, delaying and ignoring there is provisions of the law he himself signed, the Affordable Care act in violation of the law itself attack and slipping private individual for engaging in protected speech. Issuing draconian regulations for Sexual Assault on campus. Not through formal regulation but to an informal vote not subject to any normal proceedings or do. Ignoring 100 years of advice from the office of Legal Counsel and arguing that d. C. Delegates be granted Voting Rights in congress. Running General Motors in the white house with any have statutory authorization to do so and also rewriting the bankruptcy laws to favor unsecured creditors, notably the oil workers union, over the secured creditors who are supposed to preference under the law. Imposing common core standards on the states via administered feedback and much more. Thats a laundry list this morning the book. Let me talk about three of them in more detail. The first one is one that probably most of you have never heard of. I just mentioned it other than the fact that just mentioned it but its important as its so telling about the Obama Administrations attitude towards the constitution and rule of law from the beginning. April 2015, less than three months after inauguration day, the administration decides to push for a law that would grant the d. C. Delegates Voting Rights in the house of representatives. The constitution limits Voting Rights in congress to representatives of the several states. D. C. Is a special designated federal district. Its not a state. Is that there are just . Not my concern. Thats what the constitution says. Dont like it, change the law. Attorneys and obamas office of Legal Council told them you cant support this law. We have 100 years of precedent that says they can get about. Administrations all agree. I should point out two things about the olc, office of Legal Council. When its about they are mostly, theyre some Civil Servants mostly political appointees by the president. They are mostly the president s own political appointments. That means they really bend over backwards to try to apply Legal Authority the way the president wants to do. Therefore, theres a second key point, one of the few checks on president ial authority. President typically understand if the olc tilt i can do something, and my own lawyers are trying to find a way to let me do what i want to do, then i shouldnt do it. Thats just the norm. Olc says no, thats basically it. Instead of deferring, attorney general eric holder went to the office of the solicitor general and asked of them to review the issue of whether d. C. Delegate voting record holder did not ask if this is constitutional or not because he knew they would say no, and thats not their job. The solicitor general does is defending him in court and by tradition they will defend any law that they can make an argument in favor of its legality. Holder past olc is this so absurd you couldnt defend in court . They said no, its not that absurd. They went ahead and did. Lets review. What was at stake . Nothing really. Because how often does the house of representatives ever have tied votes . Never basically. If there ever was an occasion it was a tie vote that was broken by d. C. Delegate it would almost certainly have been challenged in court and certainly any judge which is the case would say we will throw this out because the d. C. Delegate cast the deciding vote and the candy a Voting Member of the house under the constitution to do so securely political symbolic maneuver to satisfy liberal democratic constituencies who have been pushing for more political power. Nevertheless attorney general holder and present obama was going to undermine the olc. One of the very few checks on president ial authority right at the beginning of the administration for basically no reason. Just for symbolism and politics. Theres i think reflected the attitude that was forthcoming later. Another example of want to spend more time on his war powers and libya. The war powers act was passed in 1935. 1935 the mediterranean executive authority after nixon bombed cambodia secretly without congressional authorization, killing a few hundred thousand people and helping to disasters in cambodias future. The law says when hostilities are involved with Foreign Countries at the present has to inform congress fns 90 days essentially to deploy soldiers if congress doesnt give it explicit approval. Some people think the war powers act is unconstitutional. Thats not the argument the Obama Administration me. They accepted that the war powers act is legally valid. Instead, president obamas claim that bombing libya for months at a time killing lots of people and leading to the overthrow of gadhafi was not hostilities enemy attack and, therefore, the act wasnt implicated. This is ridiculous. Im a law professor. We are trying to argue both sides but heres where i can say this is a ridiculous argument. People criticize the administration on the left and the right. Obamas own lawyers the olc said you can do this. You have to go to congress. These are folks, they represent defense interest. President obama went trolling around looking for some lawyer with some authority to say you can do this. He found of all people a guy named harold koh who was former dean of the Yale Law School and was serving as a legal advisor. Harold koh was known in the academic world for arguing that the president cannot act unilaterally. Congress needs have more authority. Harold koh had argued when president reagan bombed libya for all of 12 minutes in 1986 that implicated the war powers act. But somehow he came to the conclusion that bombing libya for months at a time, 15 years later, did not constitute hostilities within the meaning of the act and, therefore, the president can go ahead and do it. Spill wasnt it the case of the war hostilities rather kinetic military action . I dont know. The argument supposedly was we are only bombing them, American Forces are not at risk and less big hit by a stray aircraft, antiaircraft missile. One problem with that is again, the war powers act was largely meant to prevent cambodia from ever happening again and cambodia was also solely an air campaign. Finally, as far as examples on delving into, let me give example of this Dear Colleague letter. This was accomplished by a Dear Colleague letter from the department of educations office of civil rights and endorsed also by the Justice Department. There is no statutory language, no regulations, no case law to support the imposition of the rules prodigious announced a. The Dear Colleagues, heres the rules want you to follow. Thats bad enough. Even worse, the rules themselves completely stripped students accused of Sexual Assault of anything assembling due process protection. Everyone who follows up his nose that standard of proof had to be now preponderance of the evidence, more than 50 . Thats the least of the trouble. Much more important, the guidance that was given severely discourages any crossexamination of the plaintiffs yesterday away peoples rights to defend themselves if there is a decent she said situation. Even more important, he said she said. Youre not allowed to ask individual by his or her past sexual history regardless of how relevant it might be. So just to take an example, lets say a video circulates about a College Campus of the men and women engaging in what many would see as a degrading sexual act for the woman. The woman gets embarrassed, humiliated by this. She says it was a volunteer to go to Sexual Assault and files a complaint. She tells the University Investigators that she would never engage in an act of this nature. The defendant, the person who was complained about, find five other men on campus are willing to swear this young woman engage in exact same sexual act with them and two of them also have it on videotape. There is not a single court in the United States, no matter how strict a socalled rape shield rule to have to protect victims that would prohibit the evidence from being admitted. That is just the only way a person can defend themselves. And ocr says youre not allowed to bring this and. And again not to any will make and process but by solely 50 of the liver the ocr for four years maintain this was the Legal Standard at all universe had to abate until october in two separate occasions Education Department officials came to testify before congress. And two different senators have the capacity to ask where are you getting the Legal Authority to enforce it against universities . Theres no federal register well, nothing. This is a little. They acknowledged theres no Legal Authority. This is just general guidance. This is what we would like to duty. Add a footnote saying this didnt make any new law. This is just give me guidance. Of course, we expect you to open a. Those are just a few examples. Good ones. Im kind of surprised if many of us knew obama was running for president , whether we like his policies or like most people at cato, severely dislike his policies would buy the game from the tradition liberalism that came from separation of powers and he would enforce that, its kind of surprising that obama has been so unconcerned with these legal niceties. The question is how to explain it . I spent a lot of time thinking about this and researching it. I think a big part of the problem is that obama and many of his top lawyers come from a tradition that is unlike the legal tradition of past, very skeptical of traditional notions of the rule of law and constitutional the daily. Liberals and progressives have taken to arguing the lasso decades that the constitution has no objective meaning, that these interpretations focusing on the original objective meaning are nonsense. That the constitution is a living as a living document and must evolve with the times. Meanwhile, rule of law fraud there is a longstanding progressive chinese the concept of the rule of law as it is traditionally been understood. The rule of law tradition understood is maintained by following the law in ways that promote insistence the instability of the windows invents it can be applied the same if youre black or white, rich or poor, et cetera, requires judges and Law Enforcement officers to impartially enforce the law without abusing their authority. In our particular constitutional system the rule of law is maintained a respecting the separation of powers and also by the idea that the president must faithfully execute the laws whether he agrees with them or not and whether it is come politically convenient or not. The rule of law is a key element of liberal theories of justice but no more. Consider the statement of the leading liberal, the liberal counterpart to the liberal federalist society. The fundamental values it expresses. Individuals rights and liberties, access to justice, democracy and the rule of law. Note of the rule of law is given no more weight than build abstract unattainable goals like genuine equality. If youre bouncing them, we can try to promote genuine equal