Editor’s note: Below is the video of the panel discussion “The Assault on the Constitution,” featured at the David Horowitz Freedom Center’s 2013 West Coast Retreat. The event was held February 22nd-24th at the Terranea Resort in Palos Verdes, California. A transcript of the discussion follows.
Karen Lugo: I know as we’re together this weekend, we talk a lot about “we, the people.” And of course, that presumes that — our system of government has been structured such that it presumed that we would be — we, as the people, would be sovereigns, that we would self-govern, that we would understand our responsibility when it comes to self-rule. But that also presumes that we would have a structure and a Constitution that was based on an appropriate separation of powers, but also, within that structure, that there would be transparency and there would be accountability. And of course, the way our Founders set it up, as everything moves through the process, and as policy is developed, there are various points at which the voter is supposed to be able to inject some accountability and opinion and response to what’s happening.
But instead — implicitly the last term, and more explicitly this term — we have a President who has become the or-else President. If Congress, or if the people, will not do it, the or-else will be the EPA. Or the or-else will be — I will do it through the National Labor Relations Board. Or the or-else will be one of the other agencies or the executive orders or the recess appointment. Or, at this point, it is a matter of using the club of the taxpayers’ own money to tell us that if this sequester deal is not done, that we will feel the pain of having first-responders not available, we will wait longer in TSA lines.
So as we come to a point where it seems that the President is willing to stop at nothing to impose his will on us as the people who are supposed to be sovereign, we meet today with a group of constitutional experts to discuss what are the possibilities, and as I speak at various places around the area where I live. And the response often is — well, the President can’t do that.
Well, today we’re here to talk about, constitutionally, what the structure is, what the President — where those lines might’ve been that he crossed. And I’ve asked the panelists to focus specifically on what went wrong and what can be done about it.
Gail Heriot: I’ve got some bad news for the employers among you. Just about any method for hiring employees is illegal under current antidiscrimination laws. And I really wish I were exaggerating. The best thing for employers to do is keep their heads down and try not to get caught in the crosshairs of the bureaucrats who enforce antidiscrimination laws. And if that sounds utterly lawless to you, that’s because it is utterly lawless.
To be fair now, this was not all the Obama Administration’s doing. It has been building over time. But the Obama Administration has taken it to new heights, among other things, by aggressively pushing disparate impact theory, which is the subject of my remarks today. I could talk to you about a lot of other race and gender issues, but there’s only so much time here.
Of course, disparate impact theory itself isn’t new. It originated 40 years ago in the area of employment discrimination. But the Obama Administration is both ramping it up and spreading it to education, housing and lending discrimination as well. So now landlords, lenders and educators can have the same uncomfortable position as employers. Everything they do can be a violation.
But let me stick to employment law first. Because I believe it’s a tribute to the resilience of the American people that anybody gets hired today.
We all, of course, remember when Martin Luther King looked forward to the day that his children would be judged by the content of their character rather than the color of their skin. But the law today is actually just the opposite. Under the 1979 Supreme Court case of United Steelworkers versus Weber, employers can indeed discriminate in favor of minorities. Many of us are so used to this today that we forget how clearly and unequivocally it contradicts both the text and legislative history of Title VII.
On the other hand, under the new EEOC Disparate Impact Guidance issued last year, it is illegal, in most cases, for an employer to decline to hire an applicant because he has a criminal record. Let me just say that one more time. It is illegal, in most cases, for an employer to decline to hire an applicant because he has a criminal record.
In other words, considering race is fine. The EEOC actually encourages that. But considering the content of the applicant’s character as revealed by his criminal record is not allowed unless it can be justified by business necessity, a term that the EEOC has never quite defined, other than to say that it’s a very high standard. It’s not the employer’s judgment that matters in these things — perish the thought. It is the judgment of the EEOC that determines what is permissible.
Now, the weird thing is that the idea appears to have been to benefit young black males, who are more likely to have a criminal record than, say, elderly Asian females.
But that appears to be backfiring. There’s also, at this point, considerable empirical evidence that young black males may be worse off under the new guidelines. If an employer cannot check criminal background, he may err on the side of caution and decide not to hire from pools that he believes may be of higher risk. So the only people that actually benefit for sure are the federal employees who get to administer the law.
Some of you may be scratching your heads and wondering how it can be a violation of Title VII, which after all bans employment discrimination based on race, sex, religion and national origin. How can it be a violation to consider the job applicant’s criminal record? I hope, at least, that sounds odd to you. Because if it doesn’t, then we’re in very, very bad shape. If it’s not obvious that discretion should be in the hands of the employer and not in the EEOC, then all is lost.
But to those who support the new guidelines, they look at this and they see it’s just a — you know, they believe it’s a very ordinary application of Title VII. And the problem is they’re not entirely wrong on that. Once you accept the disparate impact theory as an appropriate theory of liability under Title VII, you can see how they get there. That’s the problem.
So let me say a little bit about disparate impact theory, for the non-lawyers here. Beginning in the 1960s, the EEOC took the very peculiar position that Title VII prohibits not just conscious discrimination, and not just unconscious discrimination, but also job qualifications that have a disparate impact that can’t be justified by business necessity. Intent to discriminate doesn’t matter under this theory. What matters is that some groups are affected by the requirement more than other groups are.
In the 1971 case, Griggs versus Duke Power Company, the Supreme Court tentatively accepted this analysis. And when they started thinking, wait, what are the ramifications of this, and they started to back away from it in the 1980s, Congress responded by amending Title VII to recognize the theory. So at least on the surface, that’s the law now. If you can’t prove that you have a business necessity for adopting a qualification that has a disparate impact on some group, then you can get yourself in a lot of trouble. And a lot of employers have gotten themselves into a lot of trouble.
The problem with all this is that all job qualifications have a disparate impact on some group. Lifting heavy weights — that’s going to have a disparate impact on women. Jobs that require fine handiwork — that’s going to have a disparate impact on men. Jobs requiring experience in the donut industry will benefit Cambodian Americans at the expense of other ethnic groups. Job qualifications requiring knowledge of spring wheat cultivation — Scandinavian Americans are going to have an advantage; the rest of us are in trouble. And that means, of course, that Lutherans will have an advantage.
I would happily write a check for $1,000 to anyone in this room who can name any job qualification, one that actually will separate successful job applicants from unsuccessful job applicants, that won’t have a disparate impact on some religious, some ethnic, or some racial or gender group. It’s always going to be something.
So the upshot of this is that all employment qualifications are illegal, unless you can manage to convince the EEOC that they are necessary. And the EEOC, as I said, is deliberately vague about what constitutes business necessity, other than to say that it’s a really high standard.
So no employer who announces that they have any clear job qualifications can really feel safe. The result is that most employers must have unclear and amorphous qualifications. And if anybody ever figures out what those qualifications are, then they’re going to be in trouble for that one, too. If anyone thinks that this is good for American competitiveness — that virtually all things that an employer can do will get him in trouble — all I can do is urge them to think again about that.
Now, at one point, the EEOC, as well as Congress — the Congress that passed the 1991 amendments — responded to this by — don’t worry, you know, we’re really only concerned with disparate impacts that have negative impact on women, African Americans, and maybe Hispanics and a couple of other groups. Even with that limitation, however, every job qualification is going to have a disparate impact somewhere to one of these groups.
But more importantly, if that’s how the system works, then it’s unconstitutional, unless it can be justified under strict scrutiny, unless it can be shown to have a compelling purpose. And it’s not at all clear that Congress or the EEOC can demonstrate the various things needed in order to pass constitutionality for a law that has a deliberate racial impact to it.
In one of the most recent Supreme Court cases dealing with disparate impact, Ricci versus DeStefano, Justice Scalia writing in concurrence practically begged somebody to bring a case that would present this issue of disparate impact theory’s constitutionality. Nevertheless, promoting disparate impact theory has been a priority for the Obama Administration.
Take, for example, the Department of Education’s school discipline initiative. It is a fact, ladies and gentlemen, that African-American children are disciplined in school more often than white children. And it is also a fact that white children are disciplined in school more often than Asian children. Secretary of Education Arne Duncan believes this is discrimination.
In an emotional speech given on the 45th anniversary of Bloody Sunday in Selma, Alabama, he promised to aggressively combat it. But what his armies of Department of Education bureaucrats are really doing is mistaking aggregate rates of discipline for racism on the part of classroom teachers. And ultimately, the Department has had to rely upon disparate impact theory.
The Oakland, California School System has agreed, under pressure from the Department of Education, to targeted reductions in the overall use of student suspensions, targeted reductions in suspensions of African-American students in particular; also Latino students and students receiving special education services. These are discipline quotas plain and simple.
And the danger should be obvious. First of all, what if an important reason that African-American students are being disciplined more than white students, and white students are being disciplined more than Asian students, is that they are actually misbehaving more often?
Think about it. Study after study has shown that children who grow up in fatherless households are much more likely to misbehave in school. Out-of-wedlock birthrate is now about 75 percent for African Americans, more than 25 percent for whites, but only about 15 percent for Asians. For that not to have a profound effect on rates of discipline would take a miracle.
Second, what if the cost of failing to discipline these students is that they themselves will get a less good education, or that fellow African-American students, who are trying to learn good classroom behavior — they are going to be the ones who are victimized by this?
I’m told I have 30 seconds left, so I’d better hurry up. If how and when to discipline little Johnny when he acts up in class is not a local issue, then I don’t know what is. And you got to remember, when the Department of Education issues a rule that says hey, do not discipline African-American students unless you have good reason to do so, that is naturally going to be understood by the school districts of — don’t do it, unless you’re confident you can persuade some federal investigator, whose judgment you have no reason to trust, that you are going to have good reason when you do it. That in turn is communicated to the principals as — don’t do it unless you jump through the following procedural hoops designed to allow us to prove to that federal investigator that we did the right thing.
And when it gets to the classroom teacher, what is it? It’s from the principal — don’t do it. It will only get us in trouble. That’s the way bureaucracy works.
But my time is up. So you’re going to have to ask me questions about what we can do about this.
John Eastman: I’m going to start by talking about a decision by the District of Columbia Court of Appeals a couple weeks ago, holding that the President’s appointments to the National Labor Relations Board were unconstitutional. And I’m going to use that to set the ground on a broader problem that is being manifested in Washington by this administration, in part encouraged by some missteps by the last administration that gave them the opening to do that.
Here’s the language of the Constitution. I always like to go back to the actual language. Because unlike Georgetown professor Louis Seidman — who a couple weeks ago said our Constitution has become obsolete and we ought not to pay any attention to it anymore — I actually think it matters. And I think it still governs, and I think it still controls the powers of government.
Article 2 Section 2 Clause 3, very simple — says — “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Now, that language is fairly straightforward. People of ordinary means should be able to figure it out. Even people of extraordinary means, like the President of the United States ought to be able to figure that out.
It only applies to vacancies that happen during the recess. And it’s during the recess, not during any temporary adjournment.
Now, we’ve had a bit of mission creep over the years. Originally, this was understood as an emergency power. If we’re in the middle of a war, and the Senate’s not in session, and it’s going to take them months to get on their horses and get back into session; and the Secretary of War dies, I need to fill that vacancy pretty quickly. And so the President was given the power to avoid the confirmation process when a confirmation process could not occur, so that the continuity in government in critical positions would not be undermined. That’s all the power was the there for.
Over time, we started treating it as if — for vacancies that didn’t arise during the recess, but we hadn’t gotten around to nominating somebody until the Senate was out of recess, we could use it for that. And then, gradually, it wasn’t just the recess between the annual sessions of Congress, but any extended recess during a session of Congress. So they went out for a month in August, or three weeks at Easter time. That would be long enough for the President to fill a vacancy.
And then they started equating the recess not as a month or two intra-session but almost as if it was any three days, longer than three days. Because there’s another provision in the Constitution that says neither house can adjourn for more than three days without the permission of the other house. So we started treating a recess as anything longer than an adjournment of three days.
Now, when President Bush was in office, and the Senate was about to go out of session, or into a recess or a long adjournment over Christmas, Harry Reid decided he didn’t want the President making recess appointments. And so they came up with a mechanism to stay in session pro forma by meeting every third day. And the President looked at this and said — I don’t have constitutional authority to fill any vacancies because they are technically still in session.
Now, when President Obama had a couple of appointments he wanted to make to the National Labor Relations Board who were about the most radical, hard-line, pro-labor appointments you could imagine, and it was clear that they could not get through the confirmation process because they were so radical, he decided to make those appointments even though the Senate was technically in session. And his claim was — well, they’re not doing any work, because they’re only in pro forma session. But among the work they didn’t do was to pass a statute extending the payroll tax reduction that he signed.
So I don’t know how he could say with a straight face that — they’re not in session because they’re not doing any work, and yet they gave me a significant piece of legislation that I signed. One or the other of those is unconstitutional.
Now, the District of Columbia went back to the original language of the Constitution and said what the President did here is unconstitutional. And here’s the way the general counsel, or the National Labor Relations Board’s chairman responded to that court order the Friday after the court order came down. He said that the Board would not comply with it. It will not deter the Board from getting on with its work. Only with respect to that particular issue, that particular case, would they comply and not continue with the enforcement proceedings.
But the holding that their appointments were unconstitutional — that none of the work they’d been doing for the last year, therefore, was constitutional; that none of the enforcement actions were legal — didn’t matter to them. We’re just going to ignore the court order and proceed as if nothing happened.
Another agency, the Consumer Finance Protection Bureau, was appointed — the chairman of that was appointed exactly the same way on exactly the same day, and therefore exactly the same unconstitutionality in the appointment. And they said — well, that was a different agency, so that court ruling doesn’t apply to us at all. And they continue to operate as if the court has not spoken on what the Constitution requires.
Now, it’s just not those. I mean, this has become a mainstay of the administration. There’s a law, not just a recommendation or a request, but a law that requires the administration to submit a proposed budget by a specific day. They have never complied with that law.
Treasury nominee Jack Lew — when he was Budget Director, there was a law passed that said the Budget Director had to provide a report addressing the financial solvency of Medicare, to respond to the Trustee’s report that we are insolvent in Medicare. He refused to comply with that law.
In the fall of 2012 the Pentagon told defense contractors to ignore the law that required them to warn employees that — under the sequestration and the Fiscal Cliff stuff, they were obligated to warn of the potential likelihood that they would be furloughed or laid off. The Department of Defense told them that they would be prosecuted if they complied with the law, and that if anybody sued them for violating the warn act, that the Department of Defense would use taxpayer funds to pay for that litigation and any fines that were leveled against them.
This goes on and on and on. There’s a claim now that any state that chooses not to adopt a health exchange — that the federal government will come in and create one on its own. Well, there’s no provision of the 2,700-page healthcare law that allows that.
Now, I said that this kind of lawlessness that’s starting to pervade began a little bit in the Bush Administration. And we ought to make sure it never happens again. You remember the bailout, the TARP, the financial asset bailout program. And the Bush Administration decided they wanted to use some of those funds to bail out General Motors. But the law clearly did not allow for that. So the President proposed to amend the law and propose a piece of legislation in the House of Representatives that would do that. The House took that bill up, chose not to pass it; which meant that there was no legal authorization for the bailout of General Motors. The President went ahead and did it anyway.
So when we see the current President talking into the monitor or whatever — do this, do this right now, but if you don’t, I’ll do it myself — he had a bit of precedent for that. Now, it was minor precedent compared to what he’s (inaudible) with. But what happens is, when you demonstrate the disregard for the law, that takes root.
We’ve seen it elsewhere. We’ve seen it in the DREAM Act. The President has [used] his power not to prosecute — for the first time said — I’ll use that not just to prosecute individual cases of illegal immigration and deportation, but I will wholesale suspend the operation of that law. And then I will go the next step and give people legal status while they’re here. None of that is legally authored.
When he couldn’t get Cap and Trade through the Congress, he decided to allow his Environmental Protection Agency to give us exactly the same thing or worse over at EPA. And I’ll just give you an example of what they’ve been doing over there.
In fact, in Washington, DC, they now have a phrase for what happened in December over at EPA. They call it — I forgot what they call it — they call it Black December or something. I’ll find it here in my notes in a moment.
But over at EPA, they have come through with so many regulations that business is not able to keep up with everything that’s going on. There are 10 major new rules that have been proposed in just the last couple of months, that have either already been passed or look like they’re about to be passed. The Cross-State Air Pollution Rule, the Electric Utility Maximum Available Control Technology Standards for Hazardous Air Pollutants, the Industrial Boiler Maximum Available Control Technology Standards, the Portland Cement Kiln Maximum Available Control Technology Standards, the Cooling Water Intake Structure Rule, the Coal Combustion Residuals — on and on and on.
All told, these things are going to add about $1 trillion in compliance costs to our economy, costing us hundreds of thousands of jobs. The estimate — just four of those rules alone are going to cost us more than 80 gigawatts of electric power, or about eight percent of the entire generating capacity of the country.
Now, they couldn’t get Cap and Trade through the Congress, but they are now so over-regulating that they’re going to basically not even give you the option of buying the Cap and Trade credits to continue to produce; you’ll just be shut down altogether. And again, all without any act of Congress. This is being done by simple executive fiat at the administration.
Now, bad as these things are — and I share Gail’s sentiment about how bad they are on the arenas that she was talking about as well — in fact, she only talked about education; they’re doing the same thing in the housing arena.
Gail Heriot: I didn’t get to that.
John Eastman: Yeah. You can’t build a house right now, because you will be violating the new disparate impact rules that came out of the Housing and Urban Development Rule.
However bad each one of those things are standalone for the detriment to the economy, the destruction of liberty; I think there’s a pervasive problem that goes much deeper and is much more profound. And I want to close with talking about that.
Because Abraham Lincoln addressed this issue a century and a half ago, when he gave in 1837 one of his early speeches, the Lyceum Address, to the Young Men’s Lyceum. And he was criticizing some of the lawlessness around the land that was taking root as people were fighting over slavery and what have you. And however much an opponent of slavery he was, he said he counseled against the risk of developing a notion of lawlessness.
He says if we’re going to destroy ourselves — it’s never come to come from abroad — if destruction will be our lot, we must ourselves be its author. As a nation of free men, we must live through all time or die by suicide. He says — I hope I’m over-wary. But if I’m not, there is, even now, something of ill omen amongst us. I mean, the increasing disregard for law which pervades the country.
Lincoln understood that if we lose the respect for the rule of law, these other things that we’re losing, the other policy judgments are going to pale in comparison. The ability to rebuild, to restructure, to restore our constitutional order, are going to be thrown out the window because of these policy fights.
And Lincoln’s prescription — and I’ll close with this, because I’m now out of time — how do we fortify against it, he says? The answer is simple — let every American, every lover of liberty, every well-wisher to his posterity, swear by the blood of the Revolution never to violate in the last particular the laws of the country, and never to tolerate their violation by others.
Congress needs to impose on the Executive, through appropriation processes or what have you, that there will be sanctions — criminal, civil, impeachment or whatever — for every violation of the law in the least particular. We need to restore that sense of the rule of law if we’re going to restore our country to its greatness.
Thanks so much.
Manny Klausner: We’re talking about the assault on the Constitution. And it deserves more than a few minutes of our time. So I’m going to run real quickly over a couple of areas in terms of what we’ve done in the Center — through the Individual Rights Foundation, the legal arm of the Center — in the Obamacare litigation. The Individual Rights Foundation joined a brief — together with John’s Center for Constitutional Jurisprudence, with the Heritage Foundation, with the Reason Foundation and other groups — to file an amicus brief opposing the constitutionality of Obamacare. And I’ll tell you a little bit about that brief.
Both from the standpoint of what’s called the presumption of constitutionality — normally there’s a doctrine in constitutional law that if a law is duly passed by legislative body, if it’s challenged as unconstitutional, the law is given a presumption of constitutionality by the court. And the burden, then, is on the opponent of the law to knock it down. I’m going to talk a little bit about that in the context of Obamacare.
I’ll also talk about the history of other major landmark social legislation that was passed, where there was tremendous polarization, tremendous controversy; and the approach that was used to pass other major pieces of social legislation.
And then, I want to talk a little bit about where we go from here. Because Karen suggested to all of our panelists we have to go away giving you something positive. And the question is — what is there that’s positive? And I actually have a view that there’s something good that can happen very soon to our cause, to our movement, that’ll make us smile. And we don’t know if it’s going to happen. And I’m basically talking about the sequestration battle, which is really a manufactured crisis, and how President Obama is doing what John Fund just called — he’s going the full Alinsky, and he’s — [this parade of horrors], and the earth will collapse, and all these horrible things will happen if the sequester goes through, which — I think it’s likely to go through — and why that is potentially good news for us.
But let me start, just by way of a preface, mentioning one of the great — one of my favorite years in the history of the world was 1776. And the reason for that is that there were two historic events that occurred in 1776 that have a strong bearing on what we are all about as Americans and what brings us here today. And that is, in 1776 in Scotland, Adam Smith published “The Wealth of Nations.” It was really the first full-blown treatise on the free market, and how free exchange works for everybody’s benefit. You don’t enter into an agreement with somebody unless you think you’re going to benefit from that. And the same is true for the person that you’re entering into the agreement with.
And this is the advantage. It’s the harmony of interests in a free society where consent is the watchword, where people are asked — do you want to do something, do you want to sign something? And not — it’s the total opposite of coercion and government mandates.
The other thing that happened in 1776 was the Declaration of Independence. And it’s one of the great statements for personal liberty and against the idea that governments can act tyrannically in an unchecked and unfettered way. And the Declaration of Independence has had extraordinary impact throughout the world. But it still guides many of us in America; alas, not the ruling party these days.
But I wanted to mention here (technical difficulty) one of my favorite wines is Chateau Margaux, as one of the great Debordieus. The winemaker of Chateau Margaux — during the period when a lot of Americans were saying — I’m not going to drink French wine anymore, I’m going to spill it out in the gutter, in the sewer, and everything like that — I used to say — well, let me check it out first, and I’ll see what we ought to do with it.
Now, I’m not saying I’ll drink any wine. I choose wine for a lot of events. And I always like to say — we always are on a budget, we like to choose wine that’s a good wine and good value and that people enjoy. But it has to have some affinity if I’m doing it for an ideological group. Like the Federalist Society or the Reason Foundation — I don’t just choose any wine. As I like to say, no matter how good the wine, no matter how reasonable the cost, how great the value, (technical difficulty) —
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— in the media, in the churches —
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— the students are being indoctrinated. And instead of learning about limited government, we’re talking about limitless government, and how government can cure all sorts of ills. And so, you know, Gail and John mentioned this morning a litany of things that you just wonder — what’s a person to do — if you’re trying to follow the law and provide jobs, do things that earn money — what do you do without breaking the law these days? And this is — we have good lawyers here. A lot of the answers you get are not very comforting.
But we have this whole battle that unfortunately has broadened itself to the zenith. When FDR was President, he may have believed in government spending and Keynesian approaches to the Depression.
It turned out to be so brutally inappropriate and counterproductive that it developed (technical difficulty) panic or another depression during the ongoing business cycles that were bad in America and throughout the world, FDR, through his policies, turned his approach into what became called the Great Depression, because it lasted so long. And his Secretary of the Treasury said, in 1938 or ’39, when Hans Morgenthau was testifying before a committee of Congress, Morganthau said — listen, we tried everything we could come up with, everything we could think of, and nothing worked.
And Obama, when he ran for office the first time, said — my hero is FDR, and I’m going to be more FDR than FDR was. And that was actually a very kind [and] kind of duplicitous way of saying something. Because Obama is — as David Horowitz has taught us, he’s an acolyte of Saul Alinsky.
If you haven’t read David’s handbook on Saul Alinsky and Barack Obama, get it, spend 20, 30 minutes with it. It will open your eyes. For those of you that have read it, we are seeing, we are seeing in action, Obama using all the teachings from the Alinsky playbook.
So when you talk about rules of ethics, as Alinsky said — if you tell the people what you want — this is from Alinsky — like the Socialist Workers Party or the Black Panthers — you tell the people what you really want, you’ll never get it in America. People won’t give you that. So instead, what you have to do — because our cause is so important, and the end justifies the means, because we believe in a total transformation — those who have wealth and power have it illegitimately; it’s immoral. Those are the people Machiavelli spoke to in “The Prince,” how to keep your power and wealth. Saul Alinsky wrote his book, “Rules for Radicals,” to tell people how to get the wealth.
The word “transformation” is a code word. Because you have to transform — this is massive redistribution on every scale. Americans would never go for it. Therefore, Alinsky said, truth is off the table when it comes to ethics. The end justifies the means (technical difficulty) the words of the opponents.
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— healthcare. But it was a crisis, they had no choice. You have this series of manufactured crises, government by crisis.
So what I’m saying is, the people are sucked into this because Obama is an extraordinarily good salesman for his bag of tricks. And a lot of people get deluded, even if they had learned the fundamentals of what makes a country prosperous and what the value of liberty is.
So I think we have a real hard task for us. I know because of the time limits I won’t get to say too much about sequestration. But I will tell you, if there’s nothing else you do about sequestration, enjoy it in advance. Because this manufactured panic is, I think potentially, going to begin to erode this extraordinary success that Obama has in snowing a lot of people.
So just quickly now — and how much time do I have at this point? Let me just summarize real quickly.
I talked about the presumption of liberty and the presumption of constitutionality. And we made the argument in our brief that we filed, in our amicus brief — this is a copy of the brief, a great document — wrote it particularly for Justice Kennedy because we thought he was going to be the swing vote. It turned out that Kennedy was totally solid as he voted. But we made the argument that there were certain procedural requirements that have to be engaged in — at a minimum, you should read the bill.
Famously, Nancy Pelosi told us — well, once we pass it, you can read it and find out what’s in it. And there were so many monstrous irregularities that were really — one of the interests we had was trying to get courts to refocus on the presumption of constitutionality, so when there are extreme irregularities — a 2,000-page bill — people don’t really have a chance to read it, it’s rushed through, with all kinds of games that are played — we argued, basically, it was not entitled, that [it] undermined the presumption of constitutionality.
In addition, we argued — and the legislature didn’t even consider the constitutional arguments that were raised before they passed the bill. In addition to the presumption of unconstitutionality, we felt that the whole legislative process was systematically flawed. There were special deals for different states — you know, the Nebraska compromise. And a lot of these things — we thought there was good authority that those alone should put a problem in there for the court to sustain the law.
I’m just going to mention real quick — there were — prior landmark social legislation were passed, ultimately with wide margins. They reflected a broad consensus, even though there was massive disagreement and controversy. That includes the Social Security Act, includes Medicare and Medicaid, it includes the Civil Rights Act, it includes the Voting Rights Act; and other major legislation — Americans with Disabilities Act. These went through the legislative process.
I’m not saying they’re good for those of us who believe in limited government. But what I am saying is that at least they were orderly. And when you had Social Security — instead of displacing what states were then doing to help people who were out of work or needed welfare, the legislation was crafted and molded during the process so that it didn’t supplant and it augmented what the states were doing. None of that happened in Obamacare.
My time is up. We’ll have time in the Q&As to say a little more. But I want you all to keep your eye on this sequestration battle. This will be fun.
John Yoo: I really came because I don’t really know what the hell just happened in November and what we’re supposed to do about it. So my mother, who is a psychiatrist — I had a wonderful childhood — both of my parents were psychiatrists —
— was on the National Review cruise with me in November. And so her diagnosis of the party — so she was in this profile the New York Magazine did of the whole cruise. Me and Ralph Reid were kind of the stars of it, but that was because Ralph took the reporter, I think, scuba diving and touching turtles with their feet.
And my mom was a psychiatrist. [This guy] really fixated on my mom. So my mom diagnosed our party. She said we’re going through the whatever stages of grief after you suffer a loss. So I don’t even know them, because I try not to know anything about psychiatry. But there was like denial — so she said we’re in grieving. And then she said, after six months, you come out of it. So she said — and six months from now, you’re all going to be very happy, especially if you take lots of Prozac —
— which I think is the usual diagnosis from all psychiatrists.
But I really don’t — and I was really struck — one of the things that David said during his remarks really struck me — I really don’t know what to do about Asians. I mean, if you talked about a group that should align so tightly with the Republican Party — evangelical, small business, conservatives, harmed by affirmative action — you would’ve thought Asians would still be — the last minority group would stick with the Republican Party. Yet they voted more than Hispanics for Obama. I really don’t understand that. And so I’m hoping to come here and learn, and hear all your reasons why my minority group in particular has lost its moorings.
Let me just use the substance of my remarks to try to put some of a bigger picture behind what we’re seeing with Obama’s presidency and tie together some of the things you just heard. Because I think if you — just a very quick way to understand the Obama presidency is to think about “Seinfeld,” through which all great American lessons can be learned.
I actually tell all the foreign students in my classes at Berkeley to watch “Seinfeld” for a quick primer on American society.
If you remember, there’s one episode, which I think was one of the funniest episodes I ever saw, where Jerry and his friends meet their exact opposites. Right? It’s called Bizarro Jerry instead of Jerry. There was a mirror-image opposite of each of the main characters, right? It was called Bizarro World, which is from Superman, where everything was the reverse. Sort of like the vision of the end of the world in “Ghostbusters,” where right is left, up is down, cats and dogs sleeping together —
— Yankees fans and Red Sox fans living in harmony, right? This is, in many ways, what the Obama presidency represents. It’s strange — it’s the exact opposite Bizarro World presidency than the one the framers intended.
Because the framers didn’t want a weak office in all dimensions. They wanted it to be very strong in foreign affairs, in national security. That was the President’s primary job. That’s the reason you would give all that power to one person. At the same time, when it came to domestic affairs, they expected the President’s main job was to execute the laws passed by Congress. The President clearly was supposed to play a secondary position in domestic affairs. The only power he really had was the veto. And it was [equalified] — one that could be overcome by two thirds of the House and Senate.
If you look at the Federalist Papers, which make for good reading — or, at least, I make my students read it — Federalist number 70 says energy in the Executive is the leading character of the definition of good government. And the Federalist Paper says — what does that mean? It says the President’s two jobs are the steady administration of the laws domestically and the protection of the community from foreign attacks.
And then, the Federalist Papers — Federalist number 74 went on to say — and peculiarly, the President’s job is the direction of war. Doesn’t say things about proposing the next reform bill for economic recession, overhauling healthcare, fiddling with employment policies, deciding how our labor law policy is going to be. If you think of — a lot of things you hear about what Obama has done is actually flip that upside-down by trying to perform the leading role in domestic affairs; in fact, to have a wartime mentality about domestic affairs. That’s why Manny’s quite right — you always need to have manufactured crises domestically, because you want to maintain this idea of imminent disaster, and then Obama uses that to invoke greater presidential power.
Think about the way he negotiates. It strikes me as irresponsible. You know, (inaudible) someone to study the presidency, I think it’s actually the first time this has happened. Or he negotiates by saying — unless you do what I want, I will do nothing and let the country come to ruin. Right? That is his argument about the debt ceiling, about sequestration.
Unless you cave — and think about immigration — unless you cave, I’m not going to deport any more immigrants. I’m just going to let everybody in, and I’m not going to deport anybody. I will win by doing nothing and let great harm — can you imagine a Lincoln or Eisenhower, or FDR, negotiating with Congress by threatening not to use their power to forestall some great harm to the country? It’s the exact opposite of what the framers had in mind.
And I think that’s where you can see the theme that links all of the last three presentations together — is President Obama is refusing to execute the laws. He’s refusing to stop the harms coming to the country domestically, which Congress has already prepared for and had passed laws to deal with. It’s really quite the opposite of what the framers had in mind. Instead, in the spaces he leaves open, he throws out his proposals. And then he takes action through administrative agencies which are quite contrary to what Congress had in mind when it delegated the powers to the Executive.
At the same time — I don’t think I can fill this in for [panelists] — think about what he’s done in foreign affairs, where the framers wanted the President to be the most energetic, right, the most in a leadership position. I would say — despite the one great achievement I think of in his presidency in foreign affairs was killing Osama bin Laden. In fact, what you’ve seen is a withdrawal of presidential leadership.
Congressman Bachmann’s speech yesterday was quite on point. If you took a step back and thought about all the things she had said that John Brennan had done — and I don’t think it’s just John Brennan. I think — he is the Deputy National Security Advisor to the President. It’s the President ultimately who’s responsible for all of those decisions.
What they are trying to do is to reduce the President’s leadership in national security affairs and hand it over to the courts. Right? Mirandizing Umar Abdulmutallab, who tried to blow up the airline — why is that so important? It’s so important because what the Obama Administration is trying to do is turn over the war on terror to the court system, make it like law enforcement, where we all know the rules, right? We all know the procedures of law enforcement system, because we all watch “Law and Order.” Because “Law and Order” is on some channel every hour of the day. Right?
But all Americans know — oh, you get arrested, then you get a lawyer — you get Mirandized, you get a lawyer, you get to see the judge. Then you have a trial. And so it’s very familiar and comfortable to turn things over to that system. But that is not the system we have ever used in our history in wartime, and it’s hard to imagine, at least for me, how a country could effectively fight an enemy as dangerous and intelligent and as lawless as al-Qaeda.
So I’ll just give you some examples. President Obama comes into office. He wants to close Guantanamo Bay, transfer all the prisoners to an unused state prison in Illinois. Only the Obama Administration would see terrorism as a Job Works program.
But nonetheless, what are they going to do? They’re trying to mainstream terrorism. Close military commissions, move all the prisoners to New York City for trial, where the annual security costs of those trials would’ve been more than it cost to operate and run and build the Guantanamo Bay prison.
And then the last step — the drone paper that we’ve all heard about. The thing that bothers me is not that our country uses drones. In fact, it’s not really any different legally, or as a policy matter, from the use of manned aircraft, shooting people using long-range missiles, even artillery, or even snipers. To me, it’s just a difference in the technology. But the ability to kill the enemy from afar should be a welcome development, not a feared development. The thing that bothers me so much about it is the effort to slip in all these law enforcement ideas into what should normally be the decision of the generals and the President, as it always has been in wartime.
So think about the White Paper just very briefly — President Obama’s leaked paper said we would use drones to attack members of the enemy abroad. I think domestically is a much more difficult and different question, but we use it abroad. And first we have to decide we aren’t able to capture them. And they have to be imminently about to harm Americans. And they get due process rights. Right? No American President in any war in the past has ever — no nation at war has ever thought in the past that their right to use force to kill members of the enemy has ever been limited by any of these characteristics.
When you join the enemy and fight against us, we can use force against you at any time in any place. Right? That’s why you can bomb the enemy behind the front lines. And you can bomb people who are working in the support areas of the enemy, not just wearing a uniform and carrying a gun. I hate to say it, but Radar O’Reilly in “Mash” is a fair target in wartime. That’s why snipers can shoot at great distance without trying to capture the enemy and read them their due process rights, and see — are you imminently about to hurt me? Those are all concepts that come from law enforcement. Those are the rules that govern police officers who walk the beat in downtown Los Angeles. It’s not the rules that have ever governed the military.
And I’ll close. The wrong — the effects of that will be — one, to slow down our military’s ability to react quickly and take advantage of intelligence — intelligence, I might add, that President Obama has used up these last four years and has not replenished because of his failure to capture any more al-Qaeda leaders. But it will also — it’s also an effort to limit future Presidents. That’s the dangerous thing in the longer term is that he has tried to push the presidency into the domestic role at the same time he’s trying to chain it down and limit it in a world, I’m afraid, that’s growing increasingly dangerous.
So to close — Karen actually said end with something optimistic, which actually has not been my experience with a lot of Horowitz conferences, I hate to say —
— which makes them charming and unique. Because, you know, I live in Berkeley, La-la Land, where if you just want something optimistic, there’s always something to smoke or to swallow which will help you that way.
So maybe there’s something for pessimism.
But I guess what I would close with saying is that I think what we can do is we can support the office of the presidency, not necessarily the person who is holding the office at any one time. And what we can focus on — I think it will also cohere with the good of the country — is to try to reinvigorate this idea of the presidency as limited at home but strong abroad, and will also have the effect of trying to channel what the presidency does in the right directions for the country, and not necessarily attack the man who happens to hold the office for just this four years.
So, thank you very much for bearing with me. I look forward to your questions.
Gail Heriot: There’s one thing that I’m very optimistic about, and that is litigation. I haven’t always been optimistic about litigation. I co-chaired the Prop 209 campaign here in California, many years ago at this point. At the time, I thought the best thing to do was, on issues of this, go to the voters. And I still believe that can be very important.
But at this point in time, I think that this is the season for litigation. Right now, pending before the Supreme Court is a petition for certiorari in a case called Mount Holly versus Mount Holly Association, or something like that. And it will present the issue of whether or not the Fair Housing Act can support disparate impact theory as a basis for going under that act.
And at the same time, the Department of Housing and Urban Development, as I think John mentioned, just issued rules on disparate impact in housing law. Today is the day to try to get the Supreme Court to go our way, to think about what sort of lawsuits can be carefully constructed. Because there’s nothing worse than a dumb lawsuit. What we need to do is to get our best lawyers together and try to decide what kind of cases can be shepherded through the court system. Because we have a good chance of winning there. And so that’s what I’m looking at right now.
Karen Lugo: Thank you.
I think the others kind of had a chance to frame their prescriptive solution and advice ideas a bit, and they can incorporate more into answers to questions. So we’re ready for questions.
Unidentified Audience Member: Hi, this is for Gail. Gail, this is a layup for you — are there any legal foundations that you’d recommend where people can go and contribute because they’re bringing those lawsuits we’re talking about? Or is there a lack of —
Gail Heriot: That’s actually a layup for John.
Unidentified Audience Member: Or are there a lack of them, and that’s what you’re saying is the problem?
Gail Heriot: You know, there are public interest law firms that are very much of the conservative bent. The Center — I can’t remember the initials here — CCJ. I have worked with CCJ. In fact, John and I put together quite a few amicus briefs in the last year or so. I’ve worked also with Tom Caso, who works with John. So they have done some fabulous work. I greatly recommend CCJ. There’s also the Center for Individual Rights in Washington, which has done some great work. There are a number of these firms. And I think we need to get them some business here, to help them out, decide what law suits ought to be brought.
You know, if you go back, during the big civil rights era — Thurgood Marshall and a number of the civil rights attorneys that worked on cases like Brown versus the Board of Education — they were very deliberate about what law suits should be brought, in what order. And we need to be able to do that as well. We need to sit down and say — okay, case number one, case number two, case number three, case number four. You know, those are the ones that need to be brought.
And I would think that a case that responds to Justice Scalia’s statement in Ricci versus DeStefano about his questions over the constitutionality of disparate impact under Title VII — I mean, he’s begging for it. Why has it taken — it’s already been, what, three, almost four, years since he made that statement. And we need to have law suits out there. We need to do it.
John Eastman: Can I pick up on that a little bit? Because Ed Meese, who’s retiring the end of this month from Heritage, has for the last 10 or 15 years brought the leaders of all of the conservative and libertarian public interest law firms together twice a year to coordinate strategy.
And so in the voting rights arena, for example, we laid out an agenda to take advantage of the court having questioned the ongoing constitutionality of Section 5 of the Voting Rights Act, which requires every jurisdiction to run and beg permission from the Department of Justice before they make any change in their voting policies. And it looks like this year, we will win that battle.
Last year, Justice Alito wrote an opinion questioning the constitutionality of the entire public union funding mechanism. We’re having people opt out of their mandatory dues going to politics rather than having to choose to opt in, and because of that success, teeing up a lot of litigation that will follow on Justice Alito’s holding in that case. So we’re being strategic.
But we are vastly outmanned and out-resourced. So anything you can do to help on those things will have a leveraging effect that will pay huge dividends.
John Eastman: I just wanted to make one more comment that I suppose is obvious at this point. And that is, we have a conservative majority on the Supreme Court. And they do in fact write opinions that seem to be sending us messages — bring us this kind of case. The Voting Rights Act case — you know, if you look at the most recent decision, they were begging for it, again. They made it very clear that they thought there was a serious constitutional issue here. And we need to spend more time looking at those opinions and responding to them.
Unidentified Audience Member: Having escaped from Communist Hungary many years ago, I love this country, and I love the freedom and the Constitution. And don’t know exact proper word to say — and maybe it’s a stupid question — but is there any way that we can sue people in Congress, and Nancy Pelosi and Harry Reid and Obama, in order to get rid of the lawlessness that has been pervading this country?
Karen Lugo: John Yoo, do you want to comment on that?
John Yoo: That’s just the thing — it’s not illegal to be stupid in the United States.
John Yoo: [Can’t sue them] because they’re not smart enough. I don’t — I mean, John might want to — you can’t sue the members of Congress for not adopting the policies that you would prefer, or for doing what your vision of the job is. I’m afraid that you would want to act through the political process. That doesn’t mean you can’t make arguments that are based in the Constitution. I mean, one thing I think we often forget — I was hoping to press home in my remarks — was that we shouldn’t associate everything with constitutional law having to do with litigation, although it’s very important we do litigation.
But you think about the Tea Party itself. I thought it was a wonderful movement because they were just recalling all of us to remember our basic constitutional principles and to force them through the electoral process, not through litigation.
And so I think you can make those arguments. But it’s not — the lawsuit is the wrong forum. Think about some of our great arguments about slavery, about the National Bank, and so on. Most of those took place in Congress, about what the Constitution meant first. And so I think that’s the more effective way to make that kind of argument than to run to court.
John Eastman: But I do think we need to put some teeth into this stuff. And here, the House of Representatives, which we hold, can do a lot more than it is. For example, yesterday, the Department of Justice filed a brief in the Defense of Marriage Act case siding with the plaintiffs, attacking the constitutionality of a statute that it was their obligation to defend; and that they did defend at the trial court. Now, how many of you lawyers in the room, halfway through a case, get up and walk over to the other side of the courtroom and start attacking the positions based on concessions you’d made when you were technically sitting on the other side of the case?
Now, I think the Supreme Court is going to hit them over the head with a two-by-four for that. But it seems to me that the House of Representatives could do something here as well, and would say something like — no funding, no appropriations shall be used —
— and make it a criminal violation for them to do so. The House has to start building a backbone here and start exercising the power that it does have, to keep a check on the Executive when it is acting lawlessly.
Unidentified Audience Member: Two things — we actually just got back from Israel. We were with a group called Shurat HaDin, which is the law center that stopped the flotilla movement. And they are suing — they’re representing clients in Israel, Americans living in Israel, suing Hillary Clinton and the State Department for funding taxpayer money to Hamas and other terrorist organizations.
Unidentified Audience Member: But that wasn’t my real question.
What was behind Ruth Bader Ginsberg’s trip to Egypt to talk down our Constitution?
Karen Hugo: John Eastman?
John Eastman: Yeah, look, she’s being honest on the progressive agenda for a century. They thought for a century that the Constitution was the problem, not the greatest governing document ever written in human history. And they have been systematically trying to undermine its value. Why? Because our founders recognize that you got to have a powerful government in order to provide for security. But if it’s too powerful, it can become the dangerous threat to security that you’re trying to provide against. And so they devised this Constitution that separates power, and checks and balances. That makes it hard to get things done.
Well, those that want to do all sorts of things with government find that those checks and balances are limiting and constraining. And they’ve been working a century to get rid of those checks and balances. And people like Justice Ginsberg and Professor [Mike] Seidman at Georgetown have now come out of the closet in saying we’re not going to comply with the Constitution anymore.
It seems to me that in there is an opportunity for us. Because that doesn’t sell well with most Americans today. I mean, they’ll think you run over their back yard, you know, their grass next to the sidewalk, they think you violated their constitutional rights. They’re wrong about that, but they think the first resort is to say something about the Constitution, because they love it so much.
And what Ginsberg did there, and what Professor Seidman did a couple weeks ago, a month ago; is a huge opportunity for us to re-craft the conversation and restore us to constitutional justice.
Karen Lugo: We’re going to try to fit in two more questions real quickly. John, did you have a quick comment on that?
John Yoo: Oh no, I’ll yield.
Karen Lugo: Okay. Okay, Jeff?
Unidentified Audience Member: Well, thank you. And you guys are all fabulous. It’s been a pleasure to listen to you.
I had a question to Gail. And perhaps, since we got such knowledgeable legal folks — I know there are a lot of my friends that say — you know, we lost control of the schools when prayer got kicked out. Well, the timing was around the same time. And I’m a firm believer in the power of prayer. But it also came at the same time we started losing discipline in the school. And you can look around the world. There are some very disciplined schools that do fantastic, but they’re basically a-religious.
So it seemed to me that’s where we started having problems. My mother was brilliant, she was an eighth grade teacher. My sister taught for 30 years, my wife’s taught. I’ve been around education. It seems like the bigger problem is losing discipline.
So a thought occurred to me when I got to Congress — you know, when I was a judge and chief justice, I had what’s called judicial immunity. You may not like my rulings, but if I’m doing my job, you can’t sue me. Well, I got sued a lot, but they all got thrown out.
So I got to thinking — why shouldn’t educators have that? If they never had to worry about being sued for doing their jobs, if it went back to the days like when I was growing up — where if you wanted a teacher fired, you didn’t file a lawsuit, you went to the school board meeting, and you tried to convince them — that kind of thing. And if you didn’t like what they did, you ran for the school board.
So I filed a bill, creating educational immunity for any teacher, any educator. I thought the NEA and other groups would jump onboard; that would help their union folks. And that might be one area where a conservative could have support from a group like that. They never got onboard, they never encouraged its passage. And without groups like that, you know, it wasn’t going anywhere. But it just seemed like if you could restore that power, where they don’t have to worry about lawsuits, unless there’s a crime committed, that it would really help.
But I’m curious — do you think it’s worth — I’ve only filed it in one of the four Congresses I’ve been in, because it got no support. What do you think of the idea?
Gail Heriot: Well, you are immune from lawsuits as a member of Congress, but you’re not immune from elections. And so there’s a mechanism for controlling your behavior, and that is that you can be voted out.
The problem with making individual teachers immune is that — what’s the mechanism for controlling them? And I agree with you entire —
Unidentified Audience Member: (Inaudible — microphone inaccessible)
Gail Heriot: Yeah, I agree with you entirely that suing teachers is really not an optimal idea. But the problem that we live with now is that teachers can’t be gotten rid of, even if they fail to teach. So there may, however, be some room for looking carefully at some of the crazy private rights of action under Title VI.
Title VI is the part of the Civil Rights Act of 1964 that bans race discrimination, et cetera, in organizations that receive federal funds. And, you know, quite a few years after that, courts decided that there was a private right of action under that. And I think that has not worked out really well. I don’t think it was originally planned. But it’s in the case law now. I would look to that kind of area to see if there’s not some situations where you can limit the ability to sue school districts. That might have some of the effect you’re looking for.
Because during the 1970s, there was a real structured, very careful effort on the part of left organizations to essentially own the schools through litigation. And they —
Unidentified Audience Member: (Inaudible — microphone inaccessible)
Gail Heriot: It’s still there, yeah. And that’s how a lot of schools were ruined. I mean, during —
Unidentified Audience Member: That’s why they don’t discipline.
Gail Heriot: Absolutely, it is.
Unidentified Audience Member: (Inaudible — microphone inaccessible)
Gail Heriot: Yeah. Yeah. And I think that’s where we need to look, and pinpoint that, and not a general sort of freedom from lawsuits for teachers, but rather look to the substantive areas that are the problem, and see if there’s not some way to do that.
Karen Lugo: Last question.
Unidentified Audience Member: Yes, this is for Professor Yoo. Short question — there has been talk, in quotes, that Obama has no intension of leaving the presidency and that he will at some point try to repeal — I don’t know what the number is, but the constitutional amendment that limits to two terms. What do you think the likelihood of that would be?
John Yoo: Oh, you know, he couldn’t stay in office another term unless we repealed the amendment limiting it to two terms. I can’t think there would be any support — certainly not two thirds of the Congress and three quarters of the states — to remove the two-term limit, although I remember — if you remember, in 1999 — I remember Bill Clinton was — or the Clinton White House talked about the idea. It would be fun, though, to have Obama around. Unfortunately, he’s going to be around a long time; he’s just not going to be President. I mean, it would kind of be fun to have him around. But I’m looking forward to Joe Biden being President.
I don’t think it’s fair that Obama should get all the fun, and we can’t just make — I mean, Biden’s going to be a lot of material for us. We should look forward to it, not run away from it.
Manny Klausner: This is occasion to form Common Cause with Hillary Clinton.
Karen Lugo: On that cheery note, thank you for attending and your input. And enjoy lunch.
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