Transcripts For CSPAN3 Politics Public Policy Today 2014100

he said the time has finished, so i will have to finish. >> can you hear me? we're good to go? okay. i'm going to ask a few questions and engage in a bit of discussion here, and then turn it over for questions. sir, one thing that's allowed isis -- the islamic state to make gains in iraq have been the divisions in iraqi politics and iraqi society. there's been a lot that iraq is developing a more inclusive government, but your government doesn't have a minister of defense, it doesn't have a minister of interior, there's a plan to engage the sunni tribes but the plan has not yet been implemented. can iraq form a truly inclusive government now given all the failures of the past? why can it work this time when it hasn't worked before? tep interpr >> translator: before there werele many sensitivities between various iraqi groups. in iraq, we are still dealing as groupswere many sensitivities between various iraqi groups. in iraq, we are still dealing as groups who unfortunately citizenship has not been established yet. and this is normal. in the netherlands, upf fuuntile '70s, the dealing with iraq in the netherlands as groups. they gradually became the cities. in iraq we hope groups deal with each other based on citizenship. f forming the new government is a new important step. it's true, until today we don't have minister of defense and interior, but this goes back to a time of agreement between the various groups. there seems to be some understanding that the minister of defense should be sunni and the search is now for an independent sunni. the same for the minister of interior should be for shia and the search is now for an independent shia. even if he wasn't, even if he wasn't part of a political group, they could have connections or affiliations to this group but they don't have to be truly not independent given the situation today. we have the break. hopefully the government will be completed and the ministers can join the cabinet as well. >> following up that point, i'd like to ask you about the kurds. you're a kurd and you you're the president also of iraq. but the kurdish region seems to have're the president also of iraq. but the kurdish region seems to have one foot in the iraqi government and one foot out the door. they say they're committed to the government formation process but they're also talking about holding a national referendum on independence. how can the kurds be brought in to the government of iraq, and is it really wise for the kurdish region to proceed with a referendum on independence while it's tried to negotiate its way in the government in iraq and make all the power sharing arrangements. >> translator: i became the president of iraq through electi election, through the selection of all political -- kurdish political parties. there is a decision on -- from the kurdish leadership to stay in iraq. the idea is to hold a referendum for independence. it was at a time when the dispute was very high with the iraqi central government. when mr. maliki was the prime minister and there were many, many problems between the central government and between erbil. a referendum doesn't immediate that immediately after the ren ren dumb there will be the announcing of the kurdish state. forming a kurdish state needs -- it is a project and a project like this has to take into account regional and international countries. this process will take a very long time, and today there is no possibility to announce such state, and for are this the iraqi -- the kurdish leaders are taking part in the government and are taking part in the biggest institution in the country, the presidency. >> you mentioned syria and the role of the islamic state in syria. we had the bombing attacks this week against the isis targets in syria. can stability be brought to iraq without a solution for the fighting in syria, and can there be a solution to the civil war in syria as long as bashar al assad is in power? >> translator: there is a connection between iraq and syria. when disputes between the two regimes during the baath days, there were differences between iraq and syria. even in the new iraq, there were many differences with syria. but we believe that isis should be hit if the area, in the region, as a whole. the first area for hitting isis is iraq. but if isis managed to go to syria and build bases there, that means that they can easily come back. that's why hitting isis in syria is very important. but it should not become part of the problems of the internal syrian problems that is connected to the existing regime. so we should not confuse that hitting isis in syria may not mean that this is to support the regime or that these attacks should be seen as a beginning to overthrowing bashar al assad. that's why these attacks are limited, and they are limited to areas where isis exists. >> i'm going to ask one last question, ten open then open it for questions. what do you think the next step is for the islamic state inside iraq and internationally? what do you think their next military step is now that they've been hit if syria? >> translator: perhaps they have sleeper cells in other iraqi cities who will try to use them to attack key installations. that's why security officials and the people of iraq should be vigilant and aware. these days on daily basis we see operations, suicide attacks and sabotage attacks, and this needs a lot more work and effort, especially now that the government is reviewing security installations, security institution institutions. >> at this point i'm going to open up the discussion for questions from the audience and when you present a question, please stand, please identify yourself for the speaker here, and just a reminder, i think we all know this, but this is an on- on-the-record meeting. and if you can keep your questions concise, we can have more questions. who wants to ask the first question. >> thank you very much. barbara slaven from "the atlantic" website. welcome to new york. let me ask about relations between iraq and iran and the united states. what role are you playing, are the kurds and other iraqis, playing in coordinating military action against isis by the united states-led coalition and by the iranians, and what is your view about this relationship. going forward? do you see an improvement? do you see that this is going to be able to become a real area of cooperation without alienating the sunni states that are also fighting isis? thank you. >> translator: iraq has borders with iran. offense 1,000 kilometers with iran. we have old relations and ties, historic ties, with iran, as iraqis, or as iraq. relations go back in history. based on this, we deal with iran as a neighbor that we have common interests with. at the same time we deal with the united states as a country that has a role in the region and there is a strategic agreement between us and america. we don't look at america with iranian eyes and we don't look at iran with american eyes. we deal with iran through our joint interests. and same with the united states. there is flexibility today to understand the most complex issue between iran and the united states. that's the nuclear part. there seems to be an understanding or readiness to understand each other. in the meeting that took place between the two foreign ministers are encouraging. it is in our interest in iraq and in the region to see an understanding between the two states. >> just following up barbara's questions quickly, are there iranian advisors and iranian forces in iraq and what's their role? >> translator: the first country that provides its help for the refugees and those who were on top of mount sinjar was iran. iran provided aid to them and i have to admit, they also provided light weapons for the fighters who were in this mountain to defending themselves. >> and iranian advisors? are they in iraq? >> translator: i don't believe that there are advisors, but the nature of the place, the nature of the area, there are daily meetings that take place. they say, for example, that there's one of the iranian generals is in iraq and during this period i tried to -- i found out -- i haven't met him and i wanted to find out, and i said if he's around, let me see him. but he wasn't. i didn't -- i couldn't see him. they said that he was in iraq. there are political problems. but even if they were present to help against these people, it is a normal thing. there are many experts from other countries and we are asking -- we ask, we call for experts, military and security experts, to come and help us rebuild our security and military institutions. >> thank you. mr. president, my name is roland paul. i'm a lawyer. one of the groups we would be very interested to know is among the sunnis. how many, roughly, number of sunnis do you expect to create a military force against isis, either in the national guard or in local militias or in the iraqi armyarmy. how large will the sunni contingent be? >> translator: iraqi constitution stresses the need for a balance between the groups of the people of iraq and the iraqi army. at the same time in other institutions, we have to take care of the percentage, of the ratio, and we have to also be sure that those who are joining the army are able to conduct their duties, whether they are sunnis, shiites or kurds. and as for national guard, every government will have its own guard, its own national guard. that means they will be local people from the government itself and not brought in from other governments. >> mr. president, you said that the united states air strikes in syria should not be restricted to the islamic state but should hit the al nusra front which is the al qaeda affiliate there. there are demonstrations by syria against american air strikes on al nusra because they happen to be the most effective fighting force in the opposition beyond the islamic state against the assad regime. so how do you deal with that problem where you have opposition, non-isis opposition, who don't want the united states to be hitting their most effective fighting force? >> translator: this is syria. we do not interfere in the affairs. syria is an independent state. as far as isis is concerned, it is a big threat to the region nusra is also a terrorist organization. they have terrorist practices. there are various trends, various opinions and groups inside syria. one group may be against hitting this group. but if we strategically look at isis strategically and they should be attack every he where. but this should be with an international legitimacy. as a cover for attacking them. >> trudy ruben from "the "philadelphia inquirer."" mr. president, in order to deal with isis, sunnis both in syria and iraq need to be convinced that they should and that they are safe to oppose isis. so inside syria, will sunnis be willing to fight against isis if they feel the bombing strikes are helping president assad? and in iraq, can you say specifically what the government can or will do to convince sunnis to turn against isis when sunni tribes feel they have been betrayed in the past when they turned against al qaeda. >> translator: isis did not defend the sunnis. isis occupied sunni areas. mosul is known to be a sunni city and it's the second-largest government in iraq. many of the people of mosul are refugees now. anybody who goes to erbil and find that a majority of these people went to erbil becauser erber erbil is close to mosul. isis does not represent the sunnis. isis occupied key areas of the sunnis as for syria, it is not sunnis or allawis or non-allawis. the situation is different in syria. we don't control syria. we don't. decide anything for the syrian people. the people of syria should be making their decision and their future. >> the woman in the fourth row there. right there. then we'll come to you. >> hi. sara lee whitson, human rights watch. i wanted to know what the iraq government plans are to disarm the shia militias that have been responsible for atrocities on par with isises' abuses. and also with a we can expect with vice president maliki whom we understand still has a number of shia militias directly reporting to him and how we'll avoid the situation like in yemen where former president still controls many many security reins. >> translator: militias should e end. in the past period, a group of militias emerged. some of these militias are fighting isis. but when we get rid of isis, no militia should stay, for as long as they exist, security apparatuses will not be able to conduct their duties, neither the army's. the people will not be in stability. >> sir, just a follow-up. you saying the ma shah should go, once isis is eliminated, as long as isis is a threat, the militias should play a role? >> translator: today, and the previous period when isis started to attack various areas, there was a call from the area from the grand ayatollah for people to be recruited and to volunteer to defend iraq. to protect iraq. this was a tactical move. it's normal, when your area is attack, you use anybody who is able to carry weapons. in iraq we don't have a reserve army to ask them to join. we don't have that. that's why we asked -- they asked people. we need today to gather everybody who is able to carry weapons and to be against isis. when we finish with isis, everything has to be back to normal. the army sudden -- the armies make up the security institutio institutions. security apparatuses are not able to conduct their duties and the previous army is unable to protect iraq. that's why militias have to end. >> mark engleson. some years ago, vice president biden and our former president gelb proposed a plan that ultimately was not taken up to divide iraq into three states -- one sunni, one shia, and one kurd, as you know. there are a number of people in foreign policy circles in the united states who are now looking at that proposal again as the ultimate outcome if the iraqi government is not able to hold things together. what do you think about that and would it be such a bad thing necessari necessarily. >> translator: as for the idea of mr. biden and especially if his recent statements he speaks about within the iraq state, so that means instead of iraq becoming a kurdish region and many other governments, this means that we could have a region for the kurds and two other regions in the arab areas of iraq. there are those who are thinking that -- there are those thinking we move from federalism to con-federalism but instead of iraq state remains. instead of having a federal system we have a confederal system. but petitioning iraq and turning it into three independent states, i think this is a bit farfetched. especially in today's situation. >> mr. president, yesterday your prime minister set off a frenzy in this country when he said that there was a plot uncovered to attack the subway stations here and in paris. i was wondering if you yourself had any information about that claim which was widely dismissed by u.s. intelligence and security officials here in this country. thank you. >> translator: personally, i don't have any information about this. i have not heard or seen exactly what he said. it could be that it's an expectation to -- of this to happen by sleeper cells and they retaliate. but they could resort to such thing. but as detailed, accurate information, i have not seen any information like this and i have only seen through the newspapers what you said. but the nature of the statement how it was made was not very clear and i tried to ask him but he's on his way to bag in the plane. that's why i could not get hold of him. >> carter page, global energy capital. i'd like to follow up on michael's question in terms of the internal political dynamics and you had mentioned in your comments about the psychology of soldiers and commanders in the iraqi army. in a lot of immediatings i meet with investors, in companies that are looking at iraq, there are options that changes the political dynamics right now. on the particularly in the oil sector, can you say a little bit in terms of your agenda there and where you see the direction of that going. and obviously the more balance with the near-term priorities, vis-a-vis the security situation. thank you. >> translator: as for the energy of oil and gas portfolio, we have a big problem in the country. we still do not have hydrocarbon for the new iraq and there are the old laws prevail. there are differences between the kurdistan region and the federal government. like the basic fact is that both sides agree that the constitution should be the arbitrator between the two. the problem is on powers of the center an for the regions. as for the oil policy of the country and how it should be this has to be revised. i believe that producing areas as governments or as regions should have representatives and a higher council for oil and gas policy that has representatives of all the governments and the region. i believe that the new minister of oil and gas -- of oil is a capable person and has good relations with all the political parties of iraq, with all the political people -- sides. and i hope that this complicated portfolio will be solved under this new minister. >> all the way in the back there. the woman right there. >> mr. president, thank you for being here. poppy harlow with cnn. following up on the question from nbc about your prime minister yesterday telling a group of reporters that there was a plot. he didn't know if it was imminent, but a plot that had not been thwarted to attack the subway systems in the united states and in paris. later in a meeting with u.s. officials, including vice president biden, he dialed that back saying he was speaking in general terms. my question to you -- are you concerned about the fact that this was said first to the press rather than to u.s. officials, given how closely these two governments need to work together now? and secondly, do you think that that at all harms u.s.-iraqi relations? >> translator: iraqi-american relations are strong relations. as for the ventiintervention of air strikes, it was based on the agreement of the iraqi government because there is a strategic agreement between the two countries and iraq's sovereignty was a threat. and again, i have to say that i did not attend this meeting in order to be able to compare. but i can tell you we are bound by these decisions and we are eager to have strong relations with the united states. and as i said, there is a strategic agreement. there are weapons that iraq is buying from the united states, and there are many advisors and experts when they went to iraq, they went to iraq with iraqi visas. they did not enter the country by force and we need these experts. >> stanley being a. very brief question. it's been said that the isis fighters are very effective, very disciplined, very effectively militarily trained, attributed to some extent to disaffected or former iraqi military officers. what percentage of isif is made up of disrespected. >> reporter: no longer happy or no longer loyal military officers? >> translator: the individuals of isis are suicidals. there is a big difference between a suicide attacker and between those who defend. for the suicide bomber, it's the same -- to kill or be killed -- for him. the iraqi soldier is known to be bra brave. when the soldier sees that their leaders have ran away, they lose their head. so this is wahat happened. iraqi soldiers are known to be brave fighters and strong soldiers. >> i think that the last question will go to the gentleman over there who thought he was going to ask the one before. right there. >> thank you. you did not speak about the role of turkey in this conflict. could you shed some light about turkey's stand vis-a-vis the isis, and also in regard to kurdistan. thank you. >> translator: today it is the front line between mosul and cud stand region for isis. there are joint borders. and in sinjar and these areas, the peshmergas are fighting. the real confrontation is there. using iraqi and american fighter jets and the french ones. the situation was tipped in favor of the kurds. in turkey, turkey had a number of hostages and they used to say they are unable to provide help openly because for kurdistan and for are iraq because of the number of the hostages that they have. after releasing the after releasing the hostages, turkey also is ready to present help. i met president errere erdogan expressed willingness to help and to check border areas and those who are coming from europe and america and under the pretext oftourism in their airports to be vetted. they should check that these people are really tourists or they are coming to the borders and then from there to slip into the borders to the isis areas. >> i'd like to thank you, president masum, for giving us your perspective and for taking questions from the members here on all these difficult subjects. let's give him a hand. thank you very much. >> translator: i also thank everybody and i am so happy to meet you, to meet this great crowd here. through your questions, i benefited a lot. this morning, louisiana governor bobby jindal discusses u.s. defense policy and offers his assessment of the obama administration's handling of foreign policy issues on russia and the middle east. this event is hosted by the american enterprise institute and we'll have it live at 11:00 a.m. eastern on c-span. later today on c-span2, a discussion on the visa waiver program which allows citizens of other countries to travel to the u.s. for up to 90 days without a visa. former homeland security secretary michael chertoff joins a discussion on security concerns raised by the program and whether it helps intelligence gathering efforts. hosted by the heritage foundation, that's live at 12:00 p.m. eastern on c-span2. congressman robert goodlad of virginia chairs the house judiciary committee. next he talks about president obama's use of executive orders arguing the president uses them to bypass congress. this is an hour and 15 minutes. good afternoon, welcome to the heritage foundation. our douglas and sara ellison auditorium. we welcome those who have joined us on our heritage.org website on all of these ecases. would ask everyone here in house if you'll check that cell phones have been turned off as last-minute courtesy. it is always appreciated. of course, our internet viewers are welcome to send questions or comments at any time. simply e-mailing speak speaker @heritage.org. we will post that to our home page for everyone's future reference. this is the fourth in our series of lectures this year on preserving the constitution. we are also taking the opportunity with this series to reintroduce and have a second edition of the heritage guide to the constitution. the first produced in 2005. this edition adds the last ten years of court cases and other citations. so many may find it of particular interest. during the period of our "preserve the constitution" series, we are offering it at a $20 fee for anybody that would like to purchase them. they will be available and we do hope you will take advantage of that. hosting our discussion this afternoon and introducing our initial speaker is elizabeth slattery. elizabeth is our senior legal policy analyst in the edwin meese iii center for legal and judicial studies. she researches on issues such as the scope of the constitution's commerce clause, equal protection, federal preemption, and election laws. she also studies and writes about the supreme court, judicial confirmations, the proper role of the courts and methods of judicial interpretation. please join me in welcoming elizabeth slattery. elizabeth? >> the constitution grants enumerated law making powers to congress and it assigns to the president the duty to take care that the laws be faithfully executed. the president does not have the power to make or suspend the law but time an again, that is precisely what president obama has done. when his policies fail in congress, he imposes laws by executive fiat. when he disagrees with a law or finds it politically expeed yebt not to enforce it, he ignores it, skirts it or makes dubious claims of prosecutorial discretion. to waving the work requirement of the '96 welfare reform law to implementing the dream act with the stroke of a pen, president obama has routine by by passed congress and violated the separation of powers enshrined in our constitution. pointing to inaction and dysfuncti dysfunction, president obama says where they won't act, i will. he's got a pen and a phone and he knows how to use them. to kick off our discussion this evening about the obama administration's view of executive power we're joined by congressman bob goodlatte. he's been an active member of the house judiciary committee since arriving in congress in 1993. he also serves on the agriculture committee, he's chairman of the house republican technology working group and co-chair of the congressional internet caucus and congressional international antipiracy caucus. as chairman of the house judiciary committee, he's been at the forefront of shining a light on president obama's executive overreach as well as conducting oversight of the administration on issues ranging from the irs' targeting of conservative take party organizations and assaults on religious liberty. please join me in welcoming congressman bob goodlatte. >> elizabeth, thank you for that very kind introduction and for setting the right note about what this symposium is about today. it is a pleasure to be here at heritage foundation. it is a remarkable organization that has done a tremendous amount of good work. i'm honored to be here. i have some prepared remarks to share with you. before i do, i must warn you, recently i spoke to a high school class. at the end of the class i asked the students if they had just one hour left to live what would they want to spend it doing. a lot of students raised their hands and had interesting ideas about places they'd like to go or things they'd like to do if they had just one hour left to live. finally, one young lady raised her hand, she said congressman goodlatte, if i had just one hour left to livid's want to spend it listening to you speak. you laugh, but i was flattered. i said, if you had just one hour left to live, you'd want to spend it listening to me speak. she said, oh, yes, because each moment seems like an eternity. so lest you feel like you're going to live forever, let pea get started with a quote from abraham lincoln. he's offer paraphrased as saying, "the best way to get a bad law repealed is to strictly enforce it." well, that paraphrase summarizes the gist of what lincoln was saying. the full text of his remark is worth repeating. in 1838, early in his career, abraham lincoln delivered an address to the young men of string fie stringfield, illinois, entitled "the perpetuation of our political institutions." in it, he said, "let every american, every lover of liberty, every well wisher to his posterity, swear by the blood revolution never to tolerate their violation by others. as the patriots of '76 did to the support of the declaration of independence, so to the support of the constitution and laws let every american pledge his life, his property, and his say kr secret honor. let every man remember that to violate the law is to trample on the blood of his father and to tear the character of his own and his children's liberty. let reverence for the laws be breathed by every american mother that the lisping babe that prattles on her lap. let it be taught in schools, if seminaries and colleges. let it be written in primers, spelling books and in almanacs. let it be preached from the pulpit proclaimed in legislative halls, and enforced in courts of justice. he went on to say, when i so pressingly urge a strict observance of all the laws, let me not be misunderstood as saying that there are no bad laws. but i mean to say that although bad laws, if they exist, should be repealed as soon as possible, still, while they continue in force, for the sake of example, they should be religiously observed. while lincoln refers to religiously observing the law for the sake of example, he is referring also to the example of the american republic itself as an example to the world. without enforcement of the law, there can not be a accountability under law and political accountability is essential to a functioning democracy. we in the house of respects, who face re-election every two years under the constitution, are perhaps reminded of that more often than others. and while there is at least one political branch willing to enforce the law, we cannot fail to act through whatever means we can successfully avail ourselves of. article 2, section constitution president to take care that the laws be faithfully executed. this clause, known as the take-care clause, requires the president to enforce all constitutionally valid acts of congress. regardless of his own administration's view of the wisdom or policy. the clause imposes a duty on the president. it does not confer a discretionary power. the take-care clause is a limit on the vesting clauses grant to the president of the executive power. the united states court of appeals for the d.c. circuit in an opinion handed down just last year striking down the president's assertion of authority to disregard a federal statute provided a succinct description of the president's obligations under the take-care clause as follows. under article 2 of the constitution, and relevant supreme court precedents, the president must follow statutory mandates so long as there is appropriated money available, and the president has no constitutional objection to the statute. so, too, the president must abide by statutory prohibitions unless the president has a constitutional objection to the prohibition. if the president has a constitutional objection to a statutory mandate, or prohibition, the president may decline to follow the law, unless and until a final court order dictates otherwise. but, the president may not decline to follow a statutory mandate or prohibition simply because of policy objections. of course, if congress appropriates no money for a statutorily mandated program, the executive obviously cannot move forward. but absent a lack of funds, or a claim of unconstitutionality, that has not been rejected by final court order. the executive must abide by statutory mandates and prohibitions. so says the d.c. circuit court. when the president fails to perform his constitutional duty that he take care that the law be faithfully executed, the congress has appropriations and other powers over the president. but none of those powers can be exercised if a senate, controlled by the president's own political party, refuses to exercise them. nor would the exercise of those powers solve the problem at hand, because they would not actually require the president to faithfully execute the laws. and, of course, the most powerful and always available means of solving the problem at hand is to vote out of office supporters of the president's abuses of power. which i hope the american people will do in november. in the mean time, however, the need to pursue the establishment of clear principles of political accountability is of the essence. as lincoln said, let reverence for the laws be enforced in courts of justice. it is the court's duty, too, to uphold reverence for the law. and it is the specific duty of the courts to call fouls when the lines of constitutional authority under the separation of powers established by the constitution have been breached. a lawsuit by the house of representatives would grant no additional powers to the judicial branch over legislation. indeed, what a statute says or does not say would remain unaffected. but it would be the appropriate task of the federal courts to determine whether or not, whatever a statute says, a president can ignore it under the constitution. and let's be clear. whatever the result of such a lawsuit, this president, and in all likelihood future presidents, will continue to nullify congress' legislative power in the absence of our seeking now the establishment, in court, of a clear principle to the contrary pop. the stakes for inaction are high. the lawsuit will challenge the president's failure to enforce key provisions of the law that has come to bear his name in the popular mind. and was largely drafted in the white house. unlike any other piece of major federal legislation enacted in at least 100 years, including the federal reserve act, the national labor relations act, the social security act, the civil rights act, the voting rights act, the national environmental policy act, the tax reform act, and all other major federal legislation over the last century, the obamacare law did not garner significant bipartisan support. indeed, and uniquely, it had none. there was no bipartisan political compromise. what provisions of obamacare have been enforced have not proved popular. and what provisions the president has refused to enforce have been delayed until at least after the next federal elections. how convenient for the president. yet how devastating to accountability in our republic. imagine the future if this new, unconstitutional power of the president, is left to stand. presidents today and in the future would be able to treat the entire united states code as mere guidelines, and pick and choose among its provisions, which to enforce, and which to ignore. the current president has even created entirely new categories of businesses to which his unilaterally imposed exemptions would apply. in that future, in a president -- if a bill the president signed into law was later considered to be bad policy, and potentially harmful to the president's political party if enforced, accountability for signing that policy into law could be avoided by simply delaying enforcement until a more politically opportune time, if at all. no longer would presidential candidates running for re-election have to stand on their records, because their records could be edited at will. sign one bill into law, enforce another version of it in practice. rinse and repeat. until the accumulation of power in the presidency is complete. whatever the odds of preventing that nightmarish future through the reaffirming of constitutional principles in court, it would be our duty to pursue it. earlier this year, i joined with representative trey gowdy to introduce hr-4138, the enforce the law act, to put a procedure in place, including expedited court procedures, for congress to initiate litigation against the executive branch for its failure to faithfully execute the laws. but while that legislation passed the house with bipartisan support, the senate has failed to consider it. the house then considered and passed a resolution to authorize litigation by the house to restore political accountability and enforce the rule of law. the supreme court has squarely rejected the authority of the president to refuse to enforce constitutional laws. as early as the court's 1803 decision in marbury versus madison, the court recognized congress' authority to impose specific duties upon the executive branch officials by law. as well as the officials' corresponding obligation to execute the congressional directive. the supreme court articulated this principle again in an 1838 case. kendall versus united states. involving the president's refusal to comply with an act of congress. observing that to contend that the obligation imposed on the president to see the law is faithfully executed implies a power to forbid their execution is a novel construction of the constitution, and entirely inadmissible. the court further noted that permitting executive branch noncompliance with the statute would, quote, be vesting in the president a dispensing power which has no countenance for its support in any part of the constitution, and is asserting a principle, which if carried out in its results to all cases falling within it, would be clothing the president with a power to control the legislation of congress, and paralyze the administration of justice. a century later in what has become the seminal case on executive power youngstown sheet and tube company versus sawyer the court reasoned as follows. in the framework of our constitution the president's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. the constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise, and the vetoing of laws he thinks bad. and the constitution is neither silent nor equivocal about who shall make laws which the president is to execute. the constitution does not subject this law-making power of congress to presidential supervision or control. the founders of this nation entrusted the law-making power to the congress alone, in both good and bad times. and as the court stated just this past term in the case of utility air regulatory group versus epa the power of executing the laws does not include a power to revise clear statutory terms that turn out not to work in practice. while the constitutional case law regarding standing to bring a case can be murky, one thing is absolutely clear. the supreme court has never closed the door to the standing of the house of representatives as an institution. it has had the opportunity to do so many times in the past, and each time it has refused. individual members of congress often have difficulty establishing standing to allege an injury. but raines versus byrd the leading supreme court case on legislator standing, as it has been described by one federal district court judge, does not stand for the proposition that congress can never assert its institutional interests in court. indeed, as another federal district court judge recently pointed out, the supreme court's decision in raines was premised in part on the fact that the regg slaters in that case did not initiate their lawsuit on behalf of their respective legislative bodies. in fact, the supreme court noted in raines itself that it attached some importance to the fact that plaintiffs have not been authorized to represent their respective houses of congress in this action, and indeed, both houses actively oppose their suits. in other words, the supreme court's decision in raines was premised in part on the fact that the members in that case did not initiate the lawsuit on behalf of their respective house of congress. further, the courts routinely hear lawsuit involving the enforcement of subpoenas approved by federal legislative bodies. they do so because the subpoena power of each house of congress derives from its legislative powers under article one of the constitution, and if congress is to have the power to legislate, it must have the power to collect the information necessary to inform that legislative power. when the executive branch refuses to give a congressional body the information it requests, it impedes the legislative power, and the federal courts hear those cases. but today, the president is not only impeding the legislative power, he is negating it by failing to enforce clear, central provisions of major domestic legislation. and if the federal courts can hear cases in which congress' legislative power is hampered by the failure to comply with the subpoena, surely they should be able to hear cases in which its legislative power is completely nullified. finally, there is nothing unusual or inappropriate about federal courts weighing in on separation of powers disputes. as the supreme court has stated, our system of government requires that federal courts, on occasion, interpret the constitution in a manner at variance with the construction given the document by another branch. the alleged conflict that such an adjudication may cause cannot justify the court's avoiding their constitutional responsibility. the court has also stated that deciding whether a matter has in any measure been committed by the constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this court as ultimate interpreter of the constitution, end quote. the federal courts have a long history of resolving cases involving the allocation of power between the political branches, and addressing important separation of powers concerns. those cases include boucher versus sinar regarding the execution of the laws. ins versus chada regarding the legislative veto. hem fries executor versus united states, morrison versus olson and myers versus united states, regarding the removal of appointed officials. and nlrb versus noel canning in which the supreme court just last term unanimously rejected the president's recess appointments that occurred when the senate had announced it was in session. the house of representatives, the branch of our federal government closest to the people, has voted many times to repeal obamacare, which remains as unpopular as ever. but the senate and the president have ignored americans' dislike for the law. they have gotten away with ignoring it so far because the obverse of the paraphrase of lincoln, that the best way to get a bad law repealed is to enforce it strictly is true, as well. and aptly summarizes the current danger to democratic government posed by the current administration. that is, the best way to keep a bad law on the books is to allow its selective enforcement. the house of representatives will do everything it can to get bad laws off the books. we ask for your support in those efforts. thank you. >> so we have a few ground rules for questions. please wait for the microphone to come to you. please identify yourself, and please ask a question. don't give a speech. >> hi, my name is julie axelrod. i was wondering, since lawsuits are very slow, and the president has already announced he plans to do an executive amnesty right before the holidays, and the government funding runs out on december 11th, if there are any plans to use that as an opportunity to make sure he doesn't? >> well, when this issue began to build up during the course of this year, and i and the judiciary committee have been very active in advocating for an aggressive use of the courts to pursue the literally dozens of different areas, different federal statutes, if you will, that we think that the president has either rewritten the law or refused to enforce the law, immigration matters, and there are several, including the current deferred action for childhood arrival, was amongst the many considered. and we settled on one related to obamacare. but we also know that there are others, and we have by no means limited ourselves by choosing this one action as an appropriate place to start. i and many others have spoken out very consistently about the abuse that we think the president has taken with the concept of prosecutorial discretion, which is what he uses to put forward the deferred action for childhood arrival program. refusing to enforce the law, and taking it further, granting work authorization and other benefits to people using a exception in the law, a good exception for those really hard, tough cases where a prosecutor might not want to prosecute, and instead using that to swallow the law itself. and approving almost all the cases that people have applied for for this program. so, if the president were to take further action and to expand that, some say by tenfold or more, to cover 5 million, 6 million or more people who are not lawfully present in the united states, using that same theory of the law, i believe it would be very important for the congress to undertake a challenge to that. i would hope that we would even go to court very quickly and seek an injunction restraining the administration from being able to grant those kind of work authorizations that i don't think the law in any way provides for. and to the very important made by abraham lincoln 170 years ago this is exactly the problem with presidents acting on their own. most people believe that we need to have immigration reform. there's a great deal of disagreement about what that immigration reform should be. but when you're trying to bring legislative bodies together, 435 members in the house, the largest legislative body in the united states. or even 100 members in the senate, and you have to work out the differences, and in the middle of that, the president says, here's my list of things like all presidents bring to the stooun address, but at the end he says something different, he says if you don't do it, i will, and then later says i've got my pen and my phone and if you don't act, i will. those who agree with the president's policies can sit back and say well i don't need to enter into tough negotiations about what needs to be done to enforce the law, or to reform the law. and instead, i'll just wait for the president to act. and those who do not like what the president is proposing to do or in many instances has already undertaken, in those circumstances, they say, why would i enter into negotiations to change the law when i can't trust the president to even enforce the current laws as they exist. so, not only is it a good way to get bad laws changed to enforce those laws, but it is also a vitally important principle of our separation of powers. the president does not have the authority to act. we should challenge. [ inaudible ] >> the power of the purse is always on the table, as well. and we have on numerous occasions attempted to use that. sometimes successfully. but generally with smaller matters. and so, when you have one legislative body that's willing to act, and the other that is not, many of the powers that the congress has under the separation of powers doctrine, under what the constitution authorizes to do, are effectively nullified, if you will, by failure of the senate to act. would that change with a new senate? possibly so. and i certainly would hope that would be the case. i would hope that in order to uphold the constitution of the united states, both branches of the congress. and i would argue this should be the case no matter which part is in control of either branch of congress. when the president made the statements that he made in the state of the union address and members of his party stood up and gave him a standing ovation, i thought that was a sad day for our republic. when people were standing up and applauding the president, saying that he was going to reach out and with his pen and his cell phone, take away their powers, the powers they were elected by the people who they represent to take to washington, d.c., and to exercise under the constitution, and they were happy to cede those powers to the executor. any executive in the future of either party, of any party, could take that steps further, and the meaningful nature of truly having a representative democracy would be lost. >> congressman i guess my question is kind of pro twong and i apologize if it's taking us on a little bit of a tangent. it has to do with the defense of marriage act which the administration declines to defend in court and they did claim that they believe that that was unconstitutional and that was why they decided not to try to defend it. in your view, was this justi justifiable for them to decide not to defend it in court if they believed it unconstitutional, and additionally, do you believe that this could kind of bleed into the legal profession and create a certain culture, perhaps, if the head of a law firm says you lawyer on this case don't worry about giving this guy a vigorous defense, because he's probably guilty, so what does it matter, and maybe setting bad precedents where defendants aren't getting vigorous defenses because, well, the attorney general says we don't need to defend it if it's not good, so i'm a lawyer, i don't need to really worry about defending this client too well because he's no good. >> well, that obviously is something that you'd worry about with any individual family, business, law firm, the code of ethics of attorneys is to represent their clients zealously. and i would hope that our -- societal ethics would continue to demand that of attorneys. but with regard to the actions taken by the administration in not defending the defense of marriage act which i felt was, and still believe, is constitutional. but as you know the supreme court has now ruled conversely on that, you heard the quote that i gave you in my remarks from the d.c. circuit saying that if the -- if the president believes that a law is unconstitutional, that that is a basis for not enforcing the law. i think that is a -- a correct position to take. but i also think that presidents need to examine that very, very, very carefully. and because we did not think the president had done that, and was acting for more political reasons than what we felt was a cherished view of what the constitution provides for, the congress itself decided to defend the case. and we were allowed standing in that case because of the fact that the administration refused to defend that law. having lost the case, is obviously first of all very disappointing. but it is also, i think, a part of the problem that we have with the president being able to stand behind that. so the congress has one of its oversight powers, and one of its checks against an abuse of power is, i think, to step in and bring suits or defend suits that are involving laws that we believe are constitutional. and that the president is not upholding. and that pretty much brings us right back around to the lawsuit that we are getting ready to file now. and that is, there has been no allegation whatsoever by the president that this particular action that he's taking under this law is in any way unconstitutional. so, that's the -- that's the challenge that the congress always has, but we have tended to not utilize the courts as aggressively as i think we should. no guarantee that a court will agree with us. but it is an opportunity to involve another branch of government in trying to uphold what in my opinion right now is a very shaky status of the separation of powers doctrine. we do not stand up, and if we don't get the courts to join us, it is, you know, very concerning where we may be headed in terms of abuse of power by this president, and future presidents. >> i think we have time for maybe one more question. in the middle here? >> i'm joel handleman i filed one of the amicus briefs on behalf of your colleague trent franks. i wanted to ask you coming back to the dream act issue, doesn't your objection run in to or collide with the president's power to grant pardons which at least my understanding cannot be circumscribed by legislation, it's an absolute power, so what is to stop him from saying, well, i pardon everybody? or i pardon 6 million illegal aliens, and what happens to your -- >> there's two different things here. the president did not do that, first of all. the president basically used a provision in the law to say that it gave him the authority to draw distinctions. but let's assume that you push that aside, and say okay, that didn't work so we're going to pardon everybody. pardoning everybody pardons them for the commission of a crime. it does not confer upon them any kind of lawful status in the united states. doesn't make them a citizen. doesn't give them authority to work. all the other things that the statutory law says should be enforced under the laws of the land, and that we think the president is obligated to do. so, yes, he does have a very broad pardon power. but it's limited in terms of what remedy it would give to the people who are looking for a not just, you know, let me stay here. but, let me work, let me do other things, give me a legal status. that is a power that is only conferred upon the congress. i'll take another one. >> one more, sure. >> i'm at a very strong supporter of what you're trying to do, and i wish you every success. i note, however, that most of the emphasis seems to be on the health care law. there are numerous other areas, one i happen to be interested in is, is the -- in environmental area where there are some very strange things going on. and i'm wondering how you decide how -- where to put your priorities? >> well, excellent question. and there are a number of other areas. you've already mentioned immigration law, environmental law is another area. drug enforcement policies, where the attorney general has instructed the united states attorneys to not disclose the amount of drugs to the jury in cases thereby negating the mandatory minimum sentencing laws. so there are many, many areas where we could choose to take action. we tried to look for areas where it would be less likely that an individual would bring the lawsuit based upon their own harm. in other words, if a private individual has a cause of action, as many do in many of the environmental areas, lawsuits are being brought to challenge the -- the interpretation, if you will, of the obama administration of a number of our environmental laws, the clean air act, clean water act, and so on. and of course i support and encourage and have milled amicus briefs in some of those cases. but, our purpose here is not to pick every single one, because there are -- there are scores of them, and to bring a multitude of lawsuits. but rather to take this in a step by step process, including beginning with establishing that in this -- in this area a single body of the congress should have the standing, the court should recognize it, and then they should make a determination on whether the president has exceeded his authority or not. will it even happen? the bill that trey gaudy introduced that i mentioned in my remarks, that would have put an expedited process on that. we'd get a decision in five or six months. that's not the case. and we don't know how long the courts will take. sometimes they expedite things like this. but they may also have this drag out so it runs beyond the president's remainder of his term. but the principle is the main thing that we're trying to establish. once we establish that we can do additional work in this area. however, having said that, if there are immediate and major abuses of power, that i think calls out for an immediate response, and i would identify one of those would be the dramatic expansion of these immigration legalizations, unilateral legalizations i call them, that are not, in my opinion, allowed under the law, that would prompt that response. a number of variables have gone in to looking at which case could be the best one to bring. and there are lots of different opinions about that. but i am definitely content with the one that we are moving forward on, because clearly the president does not have the authority to, except for lack of resources, or he simply can't get something going in the appropriate amount of time, delaying the imposition of the employer mandate under obamacare. but nowhere in the law does it say well employers above 100 employees, well you got to do it now, but if you're between 51 and 100 you don't have to do it now. that has nothing to do with lack of governmental resources, or necessary administrative time to put it into operation. it has to do with a political policy decision made by the administration and we should challenge that. thank you very much. [ applause ] now we'll be hearing from two experts to continue our discussion of the president's duty to faithfully execute the law. first up we'll hear from stuart gerson. he is a member of the firm epstein, becker green where he concentrates on complex criminal, civil and fraud cases, antitrust and securities cases and class actions. stuart has argued numerous cases before the federal courts of appeal, as well as the supreme court before entering private practice, stuart was head of the justice department's civil division, and then became acting attorney general of the united states at the beginning of the clinton administration. he has also served as an assistant u.s. attorney as well as a debate coach for george h.w. bush during the 1988 presidential election. stuart is a frequent commentator on cnbc, fox news, and other broadcast outlets, and his commentaries have appeared in "the wall street journal," and "the los angeles times," among others. stuart is a graduate of pennsylvania state university, and the georgetown university law center. and then next we'll hear from nicolas quinn rosenkranz who is a professor of law at the georgetown university law center where he teaches constitutional law and federal courts. knick has served and advised the federal government in a variety of capacities. he clerked for judge frank easterbrook on the u.s. court of appeals for the seventh circuit and for justice anthony kennedy at the supreme court. he served as an attorney adviser at the office of legal counsel in the department of justice during the bush administration and he has testified before congress numerous times, most recently before congressman goodlatte's judiciary committee in a hearing on the president's duty to faithfully execute the laws. he received both his bachelor and law degrees from yale university. i'll turn it over to stuart. >> thank you, elizabeth. i love these introductions, they have all the benefits of a wake without the one detriment. a few months ago an independent poll was conducted by quinnipiac university asking which of the 12 presidents since world war ii were the best and the worst. heritage will be glad to know, if it doesn't know already, that the winner on the best side was president reagan. but by a large margin, 33% of the vote, held that president obama was the worst president since world war ii. one question immediately came to my mind, which is have they really forgotten the jimmy carter administration? but the second question was this, is that discontent about the obama administration the product of a belief that he has exceeded his powers, that he arrogated powers that didn't belong to the executive or just that he's not very good at being an executive? i think that probably the bulk of the vote was to the latter, but maybe the more important question is the former, and that's what we're talking about today. i'm asked to compare this president with all the rest of the presidents. i'm not going to go one by one. but let me say that looking back over the history of the presidency, and in fairness to president obama, i think it's accurate to say that on the overall continuum of executive activism, obama likely falls within a large middle. even with respect to congressional and separation of powers relationships. but i'll tell you, to tip things off, there's a difference. i mean every president for example has issues about war powers. i'm less eager to have courts decide cases like this, perhaps, than the congressmen, because i know we're one vote away from a very bad supreme court, and i don't like judges who arrogate legislative power to themselves. i've argued lots of war powers cases. that said, every president has had a problem in this area. none has lost it. and that's really not what we're talking about here. we're talking about a narrower range of issues. if you want to talk about all of the presidents, perhaps our greatest president, abraham lincoln, arguably served as a virtual dictator. and actions like the emancipation proclamation, the suspension of habeas corpus find no parallel in any other administration, thank goodness. even thomas jefferson, who opposed the federalists and hamilton as to the powers of the presidency, took remarkable unilateral action in negotiating the louisiana purchase. for which he received great criticism at the time. having previously refused to appropriate funds for warships. i'll come back to the impoundment in a second because i think the definitive lesson we're going to learn about the take-care clause comes, in my view, from looking at impoundment cases. the new deal of the clause itself probably took its greatest beating, if you will, during the new deal. the creation of the or the vast expansion of the administrative state made it virtually impossible for any president to control the law and assure that what's nominally in the executive branch is well taken care of. so, you'd have to give president franklin roosevelt credit or blame or erosion there. and president truman's short-lived seizure of the steel industry, as the congressman pointed out, received probably the greatest and strongest slap ever administered to a sitting president by the supreme court. but, coming close is the resulting impoundment case as to president nixon. so, i don't think that president obama can be named the leading volume offender. but, in examining the take-care clause, or to me i like the other name of it better, the faithful execution clause, because i think that that really describes what we ought to be demanding of our chief executive. in terms of that, there's a difference about president obama. and i'll say this. i've read a lot of professor rosenkranz's writings on this subject. he is, i think, the leading scholar in this field. i note that the take-care clause or faithful execution clause is rarely mentioned in supreme court decisions. and when it has, it's generally in the context of assuring that the president has sufficient resources to execute the law. professor rosenkranz, and i, believe that there ought to be greater reference to the faithful execution clause, and while i am a strong believer in the political question doctrine that i think congressman goodlatte is i think that the faithful execution clause is an avenue to at least a limited range of cases in which the legislature effectively might regain some of the power that has withered away over the last century. so it's an important area. professor rosenkranz will speak more precisely about it. but let me tell you just briefly, where it is that i think that the obama administration, and why, runs particularly afoul of the take-care faithful execution clause. proposition 1. in order to take care that a law be faithfully executed there must be a law to execute. i mean that would seem to make logical sense. if you want to look for evidence of that fact you'd like to the youngstown sheet and tube case. that's the steel seizure case in which the court held -- there are a lot of opinions in that case, the majority opinion is rarely cited, the concurrence of justice jackson much more often is cited, but at the heart of it, the president lacks the power to seize private property or, indeed, to act constitutionally in the absence of either a specifically enumerated article 2 authorization, or statutory authority conferred on him by congress. president obama ran afoul of this tenet with respect to the dream act, another unilateral activities related to immigration, in an unprecedented way, because not only wasn't there a law to execute, but the congress had refused to pass such a law. so, that's a real difference. and if you worry about how a relatively unimportant president, and i can argue at length as to why that's the case with president obama, whose policies will be long forgotten in 50 years, including most of what constitutes obamacare, why he poses a danger, it's because of the bleed of that sort of thinking where you can, in essence, write your own law, create your own veto, if that represents something new. proposition 2 where there's a law subject to execution, the executive may exercise a certain level of discretion, but he may not contradict the stated specific intention of the legislature. the take-care clause is not absolute. i mean, there are all kinds of discretionary things that an administration can do. prosecutorial discretion is one of them. i'll show you in a second that there's a limit to it. indeed, that second has arrived. in train against the city of new york the congress held -- or the supreme court, rather, held that the president cannot frustrate the will of congress by killing a program. in that case through impoundment. that would be an unconstitutional veto. that's where it ends. i mean, the example of -- let's just, the gentleman asked the question about the pardon a little bit earlier and the answer that congressman goodlatte gave is the correct answer as to what the extent of the pardon power is. but i could even foresee a limitation if you view a conflict within the constitution between the pardon power and the take-care power. where would it apply? if the pardon power was used universally to void some other congressional mandate completely, i think that that's the lesson of the train case and i think that that's right. an example, though, of where there has been such a unilateral extension is the aca employer mandate, where the effective date for employers was extended, and the effective date for individuals was not, creating that discontinuity, essentially rewriting obamacare. the third proposition that i would argue about, or that i would propose, is that in the event that the executive is to act without reference to the execution of a law, it must be in conformity with an enumerated power. i take out of that mix war powers. although i look with jaundiced eye at arguments that i've made in the past now find an ally with respect to this administration in bruce ackerman of yale, who is arguing that president obama has exceeded his war powers authority by committing airplanes to bomb the hell out of isis. god bless them. i hope they continue to do that, and that i don't expect any case will reach the supreme court or any other court on that particular subject. but, the best example of an obama offense to the proposition that i've just laid out are the recess appointments, where, in essence, no law out there, and the administration decided that it would define for congress when congress is in recess. i mean that's -- again, an unprecedented case, as the noel canning court held. let me say one thing about that. noel canning case and most of the other cases cited here have been brought by individual human beings. people with undoubted standing, noel canning was an employer who -- it's a canning company, who was affected by a variety of national labor relations board policies. definitely had standing. there are cases that are challenging obamacare now that are being brought by people who are standing. the one exception to that, and the one place where if i were a supreme court justice, and thinking of not applying the political question doctrine, because i don't want to arrogate to myself legislative authority, i want the political branches to fight those things out, and not reach the what justice jackson in his concurrence in youngstown sheet and tube called the loggerheads where the supreme court would hear a case and from time to time the supreme court does hear a case involving disputes between the political branches, but the one place where i would yield are these cases related to immigration. and amnesty. because i don't know of any human being who has standing to challenge it. and there it would seem that an individual legislator is really being frustrated in terms of policy, and likely would have standing. so i would have greater hope for that kind of a suit. i've taken enough time. i can answer some questions. let me pass the ball to professor rosenkranz. >> great, thank you. i'm delighted to be here. and i'll try to be brief. i know you all have been promised an open bar after i'm done. so, i agree with a lot of what's been said. but, let me try to put this in, we're going to kind to bring this back to constitutional text. i'm a textualist so i always try to wring as much meaning as i can out of the actual words. so let's start with the clause that we're talking about here, the president shall take care that the laws be faithfully executed. i'll just draw a few things to your attention about that clause. so, first, and the congressman referenced this, notice that this is a duty. this is a duty. this is a requirement. the president is obliged to do this. it's not a grant of power. he shall take care. okay. so that's point one. second, note that the duty is personal. it's a personal obligation of the president. president shall take care that the laws be faithfully executed. actually execution of the laws is delegatable and of course the president delegates the actual execution. it's impossible to execute all the laws himself. but the duty to take care that they be faithfully executed that's not delegatable. the president actually has to do that personally. and third, to be fair, notice this is not the duty to take care that the laws be completely executed. couldn't be, right? couldn't be because that would be impossible. it would require infinite resources, and so instead, it's requires that they be faithfully executed, and so that's our deep interpretive problem. what does the word faithfully mean. what does that entail? and the one other observation i'll make as a historical observation, bear in mind historical context for this clause english kings had claimed the power to suspend laws unilaterally. that was the context in which they were writing this clause, the framers were going to reject that practice expressly and require that the executive take care that the laws be faithfully executed. that's some text and historical context for us. with that in mind we'll cirquing back to a few of the examples that have been discussed already. my first example is the obamacare suspension which you heard discussed. again this is crystal clear. so on july 2nd, 2013, just before the long weekend, the obama administration announces via blog posts, that the president would unilaterally suspend the employer mandate of obamacare, notwithstanding the unambiguous command of the law, and again i want to say, the statute is perfectly clear. this is not about filling in gaps, not about ambiguities, the statute provides these provisions become effective on january 1st, 2014. that's as clear as a statute can get. and this blog post is written under the breezy orwellian title quote, continuing to implement the aca in a careful, thoughtful manner, close quote, and it makes no mention of the statutory mandate. now, i want to say, faithfully poses some deep interpretive problem. it's a deeply difficult constitutional interpretation problem. but whatever it might mean, it simply cannot mean declining to execute a law at all. and that's what's happening here. so the law is supposed to kick in on a particular date. president says i'm not going to enforce it on that date. that's the clearest possible case as far as i'm concerned. now, and as if that suspension is not enough, his, the president's comments about this, i think, add sort of constitutional insult to injury. the president said that the normal thing that he would prefer to do is seek a change to the law. that's what the conference revved. seek a change to the law. in fact he wishes that he could quote simply call up the speaker of the house to request a change to the law. that's the normal thing that he would like to do. president obama said. but the truth as the president knows full well, is that he actually wouldn't have had to pick up the phone, because the house had already passed a bill that would do that exact thing. that is, suspend this provision of this -- the employer mandate provision for the amount of time the president wanted to suspend it. yet, far from embracing this legislative change, the president actually had threatened to veto it. this is kind of startling. here this is the president almost preferring to flout the written law rather than get the legislative change that would have achieved the policy result that he wanted. so this is kind of a shock being example, i think, in a way. my second example is the immigration story. it's been discussed before so i won't say too much more about it. but again what's startling here is congress had -- this is almost a mirror, in a way, of the obamacare example. here is the president actually enforcing a piece of legislation meticulously. the only problem is, this one didn't become law. this one wasn't a law. so, in the obamacare context we have a law. the president is not enforcing. here we have something which is not law, which the president is treating as though it is law. congress repeatedly considered the dream act and declined to pass it. once again, and the president simply announces 2012 that he's not going to enforce the ina against the exact category of aliens described in the dream act. he announced in effect that he would behave as though the dream act were law. as though the dream act were law. right? so, you know, once again i want to say, president has broad prosecutorial discretion, faithfully, maybe gives him a lot of discretion. but it cannot be discretion to enforce things which are not law. to put it another way, and bring us back to constitutional text, president shall take care that the laws, capital "l," be faithfully executed not those bills which fail to become law. here we have a law on the books, the immigration naturalization act, and something which failed to become law, the dream act, the president prefers the unenacted bill to the supreme law of the land. and i'll just give you the president himself, on this question, 20 months before, quote, america's a nation of laws which means i, as the president, am obligated to enforce the law. with respect to the notion that i can just suspend deportations through executive order, that's just not the case, because there are laws on the books that congress has passed, there are enough laws on the books by congress that are very clear in terms of how we have to enforce our immigration system, that for me to simply, through executive order, ignore those congressional mandates would not conform with my appropriate law as president, close quote. that's president obama. that's president obama. so i hope you're going to hear that quote over and over again as the president consider s further immigration decisions. okay. i'll give you two minutes on one other example. you don't often hear this example in this context, but i want to say the irs targeting actually fits within this constitutional discussion as well. the reason is this. again, take care that the laws be faithfully executed. quite what does faithfully mean? i want to say at its core, what it means is nondiscriminatoryly. that's maybe the most important idea here for faithful execution. the president can say you know, i can't enforce this law against all bank robbers, because i don't have enough resources. and so i'll only prosecute the big bank robbers, or violent bank robbers, the repeat bank robbers, something like that. i think the president does get to say that. but he cannot say i'm only going to enforce this against the catholic bank robbers. i think he's not allowed to say that. and moreover i think that example would horrify the framers. the idea of discriminating on the basis of religion in the enforcement of the law. but i want to say, there's an example that would have horrified the framers even more than that example, which is discriminating on the basis of politics in the enforcement of the law. just saying i'm not going to enforce this bankruptcy -- this bank robbery statute against, say, the republican bank robbers or the democratic bank robbers. the reason is this. if the president can, through discriminatory enforcement of the law put a thumb on the political scale, the scale of the electoral process, he casts doubt on everything that follows. because if you can't trust the results of the -- so if the president can suppress the voices of those who disagree with him by selective enforcement of the law, then you're going to not trust your elections after that. and it's going to cast doubt on everything that follows. i want to say the single most corrosive thing that can happen in a democracy is for incumbents to use the levers of power to stifle their critics, and entrench themselves, and that that's in effect what this story of irs targeting is. now, admittedly, there's no evidence that president obama himself personally gave this order. but i want to remind you all again, this duty is the duty to take care that the laws be faithfully executed is personal, and supervisory. take care. so in a sense, the -- what the president knew and when he knew it is kind of beside the point. the point is, he should have known. he should have known. he should have been supervising his irs. so, those are my three examples. again, this is a very tough clause to get to the bottom of. but there are at least a few clean lines. it's a broad range of discretion but you can't suspend laws altogether. that's got to be rule one. you can't favor unenacted bills over duly enacted laws, it's got to be right. and third you can't discriminate on the base of politics in the enforcement of the laws, it's got to be rule three. and i think this president has crossed all three of those lines. i think i'll abate there, maybe. >> i just would note one thing. you're on particularly strong grounds when you're talking about selective prosecution, because in the criminal area the supreme court has spoken to that very issue. so we know that that's the law. that prosecutorial discretion is generally held unreviewable with the one exception being discrimination. >> exactly. >> and that's an old, old case. in addition, the court has also held that the government has to keep its word. >> hmm. >> so, in the plea bargaining context. which again is a fairness -- is a fairness argument. so you're on very strong ground there. i would note you point out, in the lois lerner case what's the hardest job for any president, somebody said, i guess the congressman cited humphries executor a little bit earlier on and what a problem it, and chevron, and the like of that, creates for a president. because agencies accrue so much power that it really is difficult for a president to truly to take care that agencies are effectively administering the law. where that has to occur is in the appointment process. but also, and here i've litigated this before, in the removal, as well. and of course, the law's equivocal on the president's power to remove certain kinds of appointees. but i just thought you were -- i mean we're citing the same examples so we tend to agree. i would just make one additional point. all of what professor rosenkranz has said in my view finds supreme court vindication in the the impoundment case because there, the court goes through the history of impoundment. i mean it started with jefferson. roosevelt did it a lot. using discretion to time the expenditures of appropriated moneys. and that's not why nixon lost the impoundment case. nixon lost the impoundment case because what russell train, the secretary of epa, was attempting to do, was viciate an entire effort by the state of new york to wipe out a legislative mandate completely. so again we know that that's the law. and so, while i don't tend to favor rampant suits brought by legislators, because i don't want the court making legislative decisions in most cases, i think, and my experience as a litigator is such that you generally can find human beings who are affected by this kind of thing, not to say the congressmen aren't, but i mean individual private citizens who clearly have article three standing, and that it doesn't take a legislator to vindicate a position under the take-care or faithful execution clause. >> yes, so to be clear, the constitutional question of whether a president is behaving consistently with this clause is quite different from the question of whether a court should intervene. whether a court should answer this question. so i'm speaking to the pure constitutional question. the question of standing, question of whether the congressman's lawsuit is a good idea or likely to be sustained in court. it's quite a different question, i think stuart and i are more skeptical about. >> so, before we open it up for questions from the audience, i have one. so we've identified the problem. but what's the solution? do you think this, you know, lawsuit that we've been talking about would help restore the balance between congress and the administration? >> i -- well, i'd say i'm skeptical of this lawsuit and skeptical of its prospects for success. in the courts, you know, i think your remedy for a president that is violating the take-care clause is primarily electoral. and this should actually be an election issue. it should be -- so i think heritage is doing a very useful thing by having this panel. i think the house judiciary committee is doing a very useful thing by having these hearings. this is a things on which people should campaign. a thing on which people should campaign really. >> albert the alligator aptly has met the enemy and he is us. we need a more responsible electorate. i think the proflessor and i agree. in the range of cases that could be brought that are different from the status quo, what he's advocated in his writings and i think with sufficient intellectual force that it ought to be adopted is that the courts ought to pay more attention to the take care clause. it's very rarely referenced. you almost never see it. youngstown sheet and tube is such a case. it gets watered down a lot before remember youngstown sheet and tube was a 6-3 decision and there are five opinions in the case. the one that gets cited is not just tiice black opinion. anecdo anecdote. president truman owas so upset y that, that justice black decided to have a party his house, to bring the administration back in harmony with the court. and truman showed up at the party and justice black asked him are things better now. and truman said i'm still angry at that court, but tbourbon is good. >> let's see if we have a few questions. this is from one of our online viewers. it was for representative goodlatte, so i'll ask you. why is no one talking seriously about impeachment? >> i don't know the answer to that. high crimes and misdemeanors is an illusive term. i really don't know the answer. virtually every president is threatened with impeachment at one time or another. i don't know that it's answerable. i would say this. i said earlier, i don't view the obama administration as particularly consequential. if we were going to have this discussion 50 years from now, i think president obama will be remembered as the first president of his race. i think that's appropriate. it's a good thing. his singular production and members of his administration would say to is the affordable care act, but it doesn't solve two of the three major problems with the respect to the delivery of health care. it's a program that will evolve and won't look anything like it does today. this administration just hasn't done that much. in the forward moving sense. terrible job in terms of the execution of the foreign affairs power, commander in chief power, bad policies, terrible appointme appointments. that said, we live in dog years. it's close to an election cycle. there are plenty of people on both sides lining up and the answer may lie in that. >> high crimes of misdemeanors is and should be a very high standard. so what i would want to see is a real pattern of lawlessness and i'd also want to see some evidence of willfulness. so a willful pattern of violation of law. and that's i think quite a high standard. so i think that's the leg legal reason why you haven't heard that many people talking about impeachment. the political reason is that nobody on either side of the aisle wants to see a president biden. >> any other questions? >> thank you. i'm a member of the federation for american immigration reform board of advisers. and i guess the question i would have for you is, is what you have described this president doing an example of les magess eflt. and i'd like you to address, i mean, for example, one of the bills of particulars that you objected to is the dream act that he sort of enacted by policy. yet he did so just before the election and the general run of the pun dent's consensus is that this won more votes than it lost him. so how are you -- how would you propose to parlay a political response to an abuse of power that seems to have won him votes rather than losing him votes? >> constitutional law is not made jor tearian. i think the answer lays in that. while obama -- if someone can article article iii standing, and as i said, it's difficult in these immigration cases, maybe the congressional standing is the answer, the constitution will and should be applied irrespective of how something might fair at the polls. and that's true up and down the constitution. so to me, that's the answer. >> i'd say it's a matter of political and constitutional rhetoric. the important thing is to separate out these questions and say, look, you may like will policy result, but you cannot approve of this method of achieving that result. and the way to drive that home to people who don't agree with you about policy is to offer them the alternative policy hypothetical. so offer them president cruz suspending the estate tax or whatever it is that will trigger the in-stristincts on the other of the and i wiisle. >> please join me in thanking our panel. [ applause ] coming up next, summit on national security and intelligence includes, topics include cyber security and the balance between privacy and security. and then the future of newspapers. following this, national security. this afternoon watch c-span's 2014 campaign coverage from arkansas. bill clinton attends a rally for mark pryor oi. the two term senator is rucnnin in a race that is listed as a toss up. live coverage at 1:30 p.m. on c-span. tonight on the communicators, jeremy grant whose agent promotes more internet security talks about ways to increase data protection with alternatives to passwords and bafrg security. >> the government is not looking to endorse any particular solution, but, rather, ascribe at a high level the attributes of what the shruolutions should look like. let that then be the bit of a guidepost to start developing solutions around it. so just looking at the pilots we have, some are looking at smartphone based apps. which will basically be used in in lieu of a password to log this. others are by moiometrics finge print, voice recognition. >> tonight on c-span2. next fbi director jamgs compa james comey talks about the bureau's priorities and combatting isis and other extremist groups. he spoke for an hour tat a recet conference. it is my profound pleasure and great pleasure to introduce our final plenary speaker, james comey. i would say you can read his bio, but his career to me embodies the public/private partnership in service to the nation that is the core of each of us as professionals who have served the nation in many capacities. in the government, you're looking at a deputy twice, twice deputy u.s. attorney. what may be less known to you is while in the eastern district of new york, he was the lead prosecutor on the you towers bombing. i think that is less known about our esteemed speaker. you're also look at a former deputy attorney general, that was when i had the personal privilege of working with director comey when we were at the early stages of building the intelligence intra structure for the fbi. director comey is no stranger to industry. he served as lockheed martin for five years as a senior vice president and general

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