Law Day Panel- The Separation of Powers: A Debate

Law Day Panel- The Separation of Powers: A Debate


>>Let me welcome everyone, my name Sonu Bedi, I’m an Assistant Professor here
in the Department of Government. I teach courses in Constitutional
Law and Political Theory. And I really have the honor of
basically doing nothing here in the Panel other than being a moderator. I mean I’m not — which basically means I’ll
point to people when they ask questions. I mean this is the real [inaudible]
take place to my left. So let me just introduce
the Panelists that we have. We have John Greabi who’s a Professor of
Law at the University of New Hampshire who will represent the judicial branch. We have the honorable Paul Hodes
who’s a former U.S. Congressman, who unsurprisingly will represent
the legislative branch. And then we have Donald Relyea who’s a
Solicitor General of the United States that will represent the executive branch. And let me say what this sort of panel is
about or sort of what the theory behind it is. That the separation of powers,
really is a crucial component of the United States Constitution
and I encourage all of you actually to read the United States Constitution if you
haven’t, it’s a short document [laughter]. It was actually written to be read by
those deciding whether to ratify it and if you start reading it after the preamble,
the very first three articles, Article One, Article Two and Article Three are
about each branch of government. Article One about the Executive Branch, Article
Two the Congress, the Legislative Branch and Article Three, the Judicial Branch
and so today, what we’re going to do is go in reverse order, I’m going to ask
Professor Greabi to go first and talk about the Judicial Branch and then the honorable
Paul Hodes to talk about the Legislative Branch and then finally General Verrilli,
although I’m told that it’s actual not — the general word there is actually
an adjective and not a noun, it’s really the General Solicitor. So — but [laughter] as we said
General Verrilli sounds a lot better. [Laughter] Had some sort of military
title [inaudible comment] students, okay so I’m going to have them speak for
about 10 minutes each so they can sort of lay out what they think is important in
thinking about separation of powers, and then the whole idea is to
open it to questions for you all. So I will leave it to Professor Greabi.>>Great, well thank you very
much and I’m really, really, really pleased to have been asked
to speak with you here today. I’m sorry to disappoint you, I am not a judge,
I’ve never played a judge on TV [laughter], judges tend to not to like to talk too
much about their underlying theories or at least Brikably [assumed spelling]
don’t like to and so I will serve as a proxy. I worked for six different federal judges within
the first circuit, the Federal First Circuit which encompasses New Hampshire,
Maine, Massachusetts, Rhode Island, and Puerto Rico for about 17 years, and so
I tend to think about Constitutional Law from the perspective of the judiciary,
having worked for that branch for so long. And I teach Constitutional Law at the
University of New Hampshire at a school of law, and I’d like to use as my point of departure a
line that General Verrilli paraphrased yesterday from Marbury versus Madison, which is
a case that everybody has heard of. Most of us attempt to study it
in high school in a civics class; I never understood it then certainly. I’m just now starting to feel like I have some
appreciation of what was going on in that case. But any — in — any — in any event the line
in question is it emphatically the province and duty of the judicial
department to say what the law is. Now this is one of the most cited
sentences in all of Constitutional Law. It is seen as summarizing the conclusion
that the judiciary is to have the last word, unconstitutional meaning, at least and so far
is there is disagreement between the judiciary and one of the coordinate federal
branches of the government. Or between the judiciary and the states,
since this is about separation of powers, we’ll just stay in that horizontal plane
and talk about disagreements among — or between the judiciary
and the other two branches. As an aside, Marbury — Marbury famously
established the power of judicial review, the power of the judiciary to strike down
is unconstitutional an act of congress. But it also and less famously established
the power of the federal judiciary to strike down the constitutionality of executive conduct. Not all executive conduct, but executive
conduct undertaken when the President acts as the executing agent for Congress. And so Marbury’s important
for both of those reasons. As another aside, neither
conclusion that the federal statute under examination was unconstitutional
or that the President’s agent had acted in unconstitutional way, neither of those conclusions was necessary
to the decision in Marbury. But that’s a story for another day. Hopefully for those of you who are in college,
for your first day of Con Law, in law school. [Background Sounds] But anyway back to this
question, what does this sentence mean? It is emphatically the province and duty of
the judicial department to say what the law is. The question of what this sentence means
and what this sentence should mean is one of the prominent themes in an
introductory constitutional law class. There are — they’re all sorts of views on
this, but I’ll just describe the two ends of the spectrum, maybe the two polar opposites. Should this statement be given a very, very
strong reading, does it mean in other words, that the judiciary has a special
confidence, and a special obligation, one not shared by officials of the coordinate
branches to determine constitutional meaning. That — as an alternative to that, one
could construe this sentence to mean simply that in cases that come before the judiciary,
the judiciary is to apply the Constitution as the supreme law of the land under
Article Six of the Constitution, but when it’s analyzing the constitutionality
of an act of Congress or a policy decision or act undertaken by the executive, that it
ought to exercise deference and restraint in evaluating the work of
the coordinate branches. Because the officials of those coordinate
branches themselves also swear oaths to uphold the Constitution, and the
assumption is that they take the meaning of the Constitution into account
as they engage in their work. Now theorists favoring this weaker
meaning, the latter meaning argue that courts should therefore employ
doctrines of judicial restraint to avoid whenever possible conflicts with the
coordinate branches of the federal government, and should reserve their use of judicial review
to circumstances where the challenged enactment or where the challenged conduct
is clearly unconstitutional. Or where the judiciary, for example sees a
need to intervene and protect a minority group, and thus ensure the proper functioning
of a representative democracy. A prominent example of the court employing a
weaker reading comes from a case called U.S. versus Nixon, which involved the impeachment
of a federal judge from Mississippi. He alleged that the way he was impeached and
removed from office and he alleged that the way in which the Senate conducted his
trial in removing him from office, did not comply with the meaning of the
Constitution and in particular in the meaning — with the meaning of the word “try”. And the Supreme Court said you know that’s
a political question, that’s the meaning of the word try is something that’s left for
the Senate to decide for itself what it means. So it’s — you know, it’s
a restrained view there. You know, it may be emphatically the
province and duty of the judiciary to say what the law means, but it doesn’t have to say what the law means every single time
there is a dispute about what the law means. I use U.S. versus Nixon as an example
of a case involving the weaker reading, because there’s also a case called United
States versus Nixon which is a great example of the court employing the stronger reading. This is the more famous U.S. versus Nixon case. This is the case involving of
course the Watergate Tapes, in which President Nixon had asserted an
executive privilege and an entitlement to decide for himself, or for the executive to decide
for itself whether it needed to comply with a subpoena seeking those tapes. And the Supreme Court of
course famously ruled and held that while there is an executive privilege,
it’s qualified and that it did not apply in that case, and that the President
was obliged to turn those tapes over. Now I say all this by means of
introduction simply to frame the debate, and to make the point that the debate
about the meaning of this one sentence; it’s a debate that has taken place in form
of a tug-of-war really over, you know, the 200 years since Marbury has been decided. And it’s a debate that likely
will be with us forever. And as I’m sure you appreciate, it’s a
debate that’s very, very close to the heart of the Nation’s conversation right now
about what the Supreme Court should be doing with the challenge to the affordable Care Act
that is currently under advisement at the court. In particular and there’s of course many, many
points of entry into thinking about and talking about that case, but one is simply
[background sound] to ask for those justices who are clearly troubled by the
constitutionality of the individual mandate, should that end the empery for them? If they believe that the individual
mandate is unconstitutional, are they obliged under the constitution
to struck it down — strike it down? Or is there some room for deference, for a thumb
to be placed on the scale, for those justices to say it may be unconstitutional, but it’s
not clearly so, and there are all sources of institutional reasons for us to defer to
the act of congress in this particular case. So I think I’ll just leave
it at that for right now.>>Okay great, and so we move
from Article Three to Article One. I think I have misspoken in setting those
Articles, so if that’s the case just edit that out [laughter] of your memories. Luckily there are fewer students here
so they can hold it against me in class. So we’re going to move to honorable Paul Hodes
is going to give us sort of his impression about — on the Congressional
or Legislative Branch.>>It’s delightful to be
in Hanover in the spring. The speakers are blasting on fraternity
row and everything is good [laughter]. So let’s fast forward from Marbury versus
Madison to some point about a month in the future on June 26th, the term of
the Supreme Court ends and it is likely that they will issue a decision
in the Affordable Care Act Case. Which General Verrilli, I love calling people
by titles like that [background sound]. General Verrilli argued an extraordinary case,
the signature legislative accomplishment, one might say of at least in recent memory. And I spent years as a lawyer, in which I
argued before whether it was trial courts or a pellet courts, about the law and what
it meant and how it ought to be applied and what the intent of legislative bodies was,
was a subject that I brought up quite often. Especially when it came to a pellet
argument and a pellet advocacy, I would go back into the records, if it was — whether it was a State Statute or a Federal
Statute, I argued often before the First Circuit in Boston when I was a prosecutor, the Attorney
General’s Office looking for legislative intent, and I’d dig into Congressional records
and the Congressional record I’d go back into committee hearings, and see what people had
said and what they fought, because when I moved to Congress, it was my job to make law. I was charged with writing it, with reviewing
it, with talking about it in committees, with voting on it on [background
sound] the floor of the U.S. House. My job became to make law. And when I was asked to do the Panel,
I went looking for some of the — for some recent literature about the
relationship of Congress to Constitution to law making, and because I knew the General
was going to be here, I wanted to see what — how that might relate to
the Affordable Care Act. I came across a very interesting
article and I’ll share some — I want to share some of it with you
because it’s an article by Neal Devins at Northwestern University School of Law. It’s the second of two articles
in which he talks about the rise of Partisanship and Polarization in Congress. And the decline in the interest in what I
might term a responsible approach to thinking about the Constitutionality of
what it is that Congress does. You would think that in consideration
of Legislation and particularly in as significant a piece of
legislation as the Affordable Care Act, Congress would pay some real attention to what
were clearly going to be Constitutional issues. It is not far from anybody’s imagination to
think that the idea of requiring the people in this country purchase a product or a service,
insurance, in this case less they pay some sort of penalty or tax as the question may arise
would be an issue of Constitutional Moment. Devins article is entitled “Why Congress
Did Not Think About the Constitution When Enacting the Affordable Care Act”. And it’s interesting, last evening, last night
I was with now minority leader Nancy Pelosi, who I always think of as Madam Speaker. But the minority leader talked about
what she observed from her vantage point as a Partisan Democrat, as the Paradox that
prior to 2006 when democrats took the majority in the House, in 1994 there was a
huge spike in Constitutional hearings. Hearings about constitutionality that coincided
with the Republicans achieving a majority in the House of Representatives that
gradually withered away with occasional forays into complaining about judicial activism. And we then turned to recent history of a court
dominated by people who are called conservative, who I would postulate have been the most
activist court of any in American history, one only has to look at citizens united
to think about judicial activism taken to an entirely new level and who knows what
they’re going to do in the Affordable Care Act. Well to enable that judicial activism, what
Devins points out is that the 111th Congress, which I was a member, held 44 hearings about
the Affordable Care Act between January of ’09, when we were sworn in, and the March 2010
Enactment of the Affordable Care Act. He says however, “Lawmakers
did not hold any hearings to examine the bills constitutionality”. None, none, there was a question posed on
one of my committees by Dennis Kucinich, I served on Financial Services in Oversight
and Government Reform, he asked one question, at one hearing about — that might
have constitutional implications, there was a similar record in the Senate. What’s a poor solicitor General to do when
arguing before the Supreme Court to try to determine Congressional intent? What you have in the Congressional Record
is you have the minority taking to the floor of the House to put in the Congressional
records, their concern about Constitutionality, but nothing really of substance that
dealt with the constitutionality, and that is because Congress has really changed. We — people — the citizens of the country are
concerned about polarization and politicization, my observation is that the work has
moved from legislative to political, with the rise of partisanship,
and we won’t go into all of that. The focus of members of Congress and the
leadership especially, is how to use hearings, not necessarily to advance legislation, but
how to use hearings to send political messages. And what that has meant is that certainly
with respect to as important an act as the Affordable Care Act, a real durf of
the kind of thinking that Congress could do to give guideposts to those who will have to
interpret the law or argue about the law later in terms of saying what it’s based on, why
it is and what Congress is thinking was about the powers of taxation and how related
to what would happen with the mandate. The Commerce Clause and how
explicit Congress could have been, but was not about the connection between
the individual mandate an its implications for healthcare Nationally as it related
to the Commerce Clauses and on and on. You’ve got a Congress whose job it is to
make law [background sound], who should, in my judgment, be setting the guideposts
on [background sounds] which the judiciary and those whose work with the judiciary
can look and with this law in particular, it seems that Congress’ role was abdicated
and that’s partly because the Partisan fight over this law was so terrible, it
was all that Nancy Pelosi could do to corral the democrats to get it passed. The minority didn’t have
too much to say about it and that’s what’s happening in
Congress, in the modern day.>>[Background sounds] Great, okay
thank you very much Congressman Hodes, and we’re going to allow Solicitor General
Verrilli down to speak for the Executive Branch.>>Okay so a couple things to start, first I
am not speaking in official capacity today, I’m just here in my personal capacity, therefore I think we should drop the General
stuff [background laughter], Don would be fine, and that would help reinforce for everybody that
I’m not speaking in my official capacity here. [Background laughter] Second thing is,
Solicitors General in their official or personal capacity never, ever, ever talk
about pending cases, and so I’m not going to talk about any pend — any pending cases,
including the pending case that the prior to presentations veered right at. [Background laughter] So I’m sorry
to disappoint you about that, but that’s the way merchants office is conducted
and that’s the way I’m going to approach it. In the Article Two of the Constitution,
the framers bested the executive authority in the President and also gave the
President the responsibility to care that the laws are faithfully executed. And all of us in Civics Class learned that
the Framer’s consciously designed this system of separation of powers in order to
create friction between the branches, in order to ensure [background
sound] that whatever judgments that the Federal Government ultimately made
and when Federal power’s ultimately exercised, it would have been only after a
difficult process had been gone through to decide what the position
of Federal Government would be. And I guess I appreciated that as a
theoretical matter when I was a student, but having been in the executive
branch now for the last three and a half years, I really get it. [Background laughter] I get the whole
friction thing, and in particular, it’s interesting a significant part of the
friction, you know, even given anything that was just said, a significant part of the
friction, in particular between the Congress and the Executive is actually
not always Partisan. There’s an institutional friction
there and that you actually see that the framers design does work
itself out in pretty much the way that thought it would 200 plus years ago, and that the Congress [background
sound] wants more authority over things that the President thinks the Constitution
has given the President authority over. And that’s sort of generally the way it
works on lots of issues and that can be true and it was true, I found, this is more in
my White House job than my current job, but it was certainly true when the Democrats
controlled the Congress during the first two years of this administration. More true after [laughing] the Democrats
lost the House of Representatives, but still significant degree of friction,
and that arose in such issues as the question of whether Guantanamo would be closed, the
question of whether the person detained on Guantanamo would be tried in the
United States in Federal Courts or instead on Guantanamo in Military
Commissions, as you know there’s a lot of friction between the branches there. And it does play into this issue that I talked
about in my lecture yesterday and so some of you were there and I apologize if I’m
recycling a little bit here, but the — it does play out in the role
that the Solicitor General has, and in the role that the Justice Department has, because there are times when
the Justice Department. The Solicitor General will actually do something
that might seem quite contrary to your notion of separation of powers and that the Executive
Branch will actually go into the Supreme Court and challenge laws that Congress
has enacted rather than defend them. And they challenged laws that Congress has
enacted when the Executive Branch believes that Congress is trying to take
authority that belongs to the President. And these issues are very difficult to resolve,
because they very seldom can be resolved on the basis of a clear command
in the text of the Constitution. What we’re often talking about, or typically
talking about are fundamental postulates that we understand because of
the structure of the Constitution that we have three separate branches, that
they each have a different role to play, and that figuring out exactly
where the border is between them is a challenging
thing [background sound]. We had this case that I argued in November
of this year, that Supreme Court decided — or just a few weeks ago, about a
statute that Congress enacted in 2002, which said that if you were an American citizen
born in Jerusalem, you could have Israel listed as your country of birth on your passport. President George Bush although he signed it
into law, refused to enforce that provision, and President Obama refused to enforce
that provision on the ground that each of the Presidents believe that to be an
impermissible intrusion by the Congress on a power that Article Two of the
Constitution gives exclusively to the President, which is the — as part of
Foreign Affairs Power, the power to decide what countries the
United States will recognize as legitimate and what borders of foreign countries the
United States will recognize as legitimate. And so the United States Executive Branch has
refused to put Israel as the country of birth on passports when people ask for
it, and the reason by the way is because the United States views Jerusalem, at
this point as a matter that has to be decided by the people who live in the Middle East
and that wants the status of Jerusalem as resolved conclusively, then the United
States will take a position about it. But since 1948 the United States
have said we’re not taking a position on whether Jerusalem is part of
Israel or part of another country. And that’s pretty consistent
across all Presidencies. So somebody brought a law suit saying
look there’s a statute says I get to have Israel listed as my country of birth on
my passport and the State Department’s refusing to do it, so I want an injunction that says make
the State Department put Israel on my passport. And this case worked its way up to the Courts
and it raises the separation of powers, friction point, it also raises another
[background sound] point that John addressed, which is the side they have political questions. One argument that the government made is
look, this is a fight between two branches of government about the power that we
think belongs exclusively to the President, and this is not something that
the judiciary should have any role under our constitution in resolving. That was an argument that actually the Court
of Appeals agreed with in that case and ruled against the party seeking to have
Israel listed on the passport, on the ground that the Courts just
shouldn’t get into this at all, it’s not part of the judicial power to do it. Case went to the Supreme Court and
I argued it in November, too — I argued both issues that it was a political
question that the judiciary should stay out of and that the extent it wasn’t a political
question, this was none of Congresses’ business and that it was the Executive
Branch’s decision what countries to recognize and what borders to recognize. And of course Congress has
a different view about that, Congresses’ viewers said look we’ve
always regulated what passports say, and this is just regulating what passports say
and since pre-court decided this case in March and what it ruled was that this case
wasn’t the kind of political question that the judiciary should stay out of. This was the classic kind of case in
which under Marbury against Madison, the judiciary should say what the law
is, because Congress passed a statute, and it’s a question of whether that
statute violates a separation of powers. That’s what the judiciary’s job is,
to decide those kinds of things. So the Supreme Court reached that issue,
ruled that the Courts should decide this, but then didn’t reach the fundamental
issue of the conflict between the Congress and the Executive over who had the power
to make these Foreign Relations decisions. It said that hasn’t been ruled on yet, so
I’m going to send it [background sound] to lower courts [inaudible] first and
then we’ll consider that again later. But it’s a pretty good example
actually of the friction, right? I mean there you have it all, you have
the Congress and the President fighting about who gets to make these judgments
about what foreign nations we’ll recognize and what foreign borders we’ll recognize, and
you have this question about is this the sort of thing under our system of government
the Courts should be involved in at all? And it turns out that working through these
separation of powers issues is an important part of the job I have now, and actually a very
interesting part of the job I have now, and one that is just going to be with
us as long as we have our constitution because the frictions built in there and
by design, there aren’t clear answers to these questions and they
need to be fought out over time. So with that I think->>Great okay, so we will open
— thank you Mr. Verrilli.>>Yeah good.>>[Laughter] I should say that
each of our Panelists here, the Congressmen is [inaudible]
Dartmouth Alum and the other two — one has his daughters already in the
class and Professor Greabi’s son is going to be a Dartmouth student,
so this is always good. So any questions and can we start off
with a question from a student all right? Don’t be shy.>>No tests.>>[Background laughter]
Yeah not going to be graded.>>[Inaudible background question]?>>Comment time on whether that
you find that that’s just say kind of an empty gesture whether they’re sticking
with that and whether that’s, you know, good for the Congress there or not.>>I didn’t find it surprising that when the
Republicans retook control after the 2010 sweep, that new efforts at Constitutional
questions would arise. I mean, you know, here in New
Hampshire, a similar sweep happened and there was a bill introduced to make sure that any bill introduced would
reference the Magna Carta, so I don’t [background sounds] know maybe
that was a little bit of a one upsmanship. I, you know, if you look at the Constitution,
there is nothing in the Constitution that says Congress shall have
the power to regulate health care for the citizenry of the country. And in fact, there’s much more that’s not in
the Constitution than is in the Constitution. So I think it is an absurd, empty gesture
and a political posturing to require that bills name Constitutional provisions. I just don’t think its — I don’t think it’s
necessary, and I think its political posturing.>>Good question. [Background sound] and I
have a microphone here so.>>I don’t need it [inaudible comment].>>Okay [background laughter].>>[Inaudible question]?>>Yep sure. The — there is this some notion that
the Solicitor General’s the 10th justice. I don’t think the other nine justices
[background laughter] work that way and the — and in fact that phrase while it has a kernel
of truth to it, which I’ll get to in a sec. In many ways it’s a phrase that obscures more
than it illuminates in that the reality is that the Solicitor General is an officer
in the Executive Branch of the Government, and the authority that the Solicitor General
exercises is authority that Congress is given to the Attorney General by law, and the
Attorney General then by regulation has given it to the Solicitor General to exercise. And so I’m responsible to the Attorney
General, and then ultimately to the President in the exercise of authority, but having said
that, and so I’m firmly in the Executive Branch, having said that the Solicitor General has
always been understood as having a different set of obligations maybe than anybody else in
the Executive Branch, but they come from sort of tradition and practical good
sense, as opposed to the — any separation of powers idea where
authority should be allocated. Like the notion of being the
10th Justice, I think comes — it’s a way of describing the kernel
of truth in it is that the — we represent the United States
before the Supreme Court. The Court hears 80 cases a year; the United States participates
in about 60 of those 80 cases. So we are there all the time. and it is therefore — and that means a lot of
things, one is that it’s especially important that the Supreme Court has complete confidence
in the presentations that we make to it, both in paper and in oral argument, that
there can be no doubt about the integrity of what we say, and the accuracy
of what we say, and whereas lawyers and private practice might be able to
put the pedal to the medal and argue that a case means a little bit more
than it really means as a precedent, we really have to be careful never
to do that, because our credibility with the court [background sound] given how
much we participate, is absolutely vital and so a huge part of our job is maintaining
our credibility with the court and being candid in the court with the court and forthright
with the court in a more wholesome way than private litigant’s would be. And then in addition, the — we play a
pretty significant gate-keeping role, because the Solicitor General has to decide what
cases the United States will ask the Supreme Court to hear, and so we’ve got
to exercise discretionary judgment and the Justices have occasionally described
the Solicitor General as a gate-keeper, that you know, if I say no petition for
search array, that case is not going to them. They don’t get a chance to decide
whether to hear it if I don’t take it up, and so exercising that authority to decide
what to — what cases go up that does you know, play a role in their ultimate
exercise of their authority. And then there’s a notion too, with respect
to the Congress that we have a responsibility to defend Federal Statutes in court unless they
fit into one of two categories, they either — unless they infringe on the Executive
Branches’ authority unless — or unless there’s no reasonable
argument to be made in their defense. So we have a set of responsibilities,
and then the Solicitor General’s supposed to exercise those responsibilities in a
manner that is independent in the sense that the Solicitor General looks out for the
long term interests of the United States. And now it’s not independence like a judge, Solicitor General doesn’t
have life tenure, you know. The Solicitor General can be —
serves his play to the President, but what the Solicitor General does is have
the power to persuade the Attorney General or the President that something that they may
— some position they may want to take is one that the law just doesn’t allow them to
take and ultimately, in an extreme case if the Solicitor General thinks
that the Attorney General or the President is doing
something that is illegitimate than the Solicitor General can
resign, it’s never happened, and — but that’s sort of where the Solicitor
General’s independence ultimately comes from. It’s not from any guarantee in the
Constitutional Structure, but from that sort of practical reality, now having said
that, I should just want to make clear that in my tenure, nothing remotely like that
has come [background laughter] up, but the — but I think that’s kind of the 10th Justice idea
is a way of finding a bumper sticker to describe that whole complex of things, but
as a bumper sticker, it’s really — it’s as I said it can be a bit obscure
more than it illuminates, you know.>>[Background sounds] I’m going to attempt
to use this just because then it records, but->>I have a question, and I’m picking
up of what the student said before, of course if the case does
come to the Court then Congress and the Executive Branch I
suppose together if it’s not a case of Congress overriding a Presidential veto, does give the Constitutional
Justification for a case. And I’m thinking of particularly of
an act the Violence Against Women Act, which of course was overthrown —
overruled in the U.S. versus Morrison, and I would like to get your thoughts
on the limits of the commerce clause, because that case of course showed some of the
limits, and also just your feeling of whether or not the administrations sometimes enacts with
Congress and a law that they have some questions as to the ultimate constitutionality of it,
but they enact it anyway for political reasons.>>So I’m assuming that you’re
asking Paul or John that question. [Background laughter] There’s no
possible way I’m going to answer it, so->>I would ask him if I were you.>>I would say that political concerns are
never far away from the thought process, what happens between the Executive
Branch and Congressional leaders when considering major — major legislation. Generally the attempt — I — certainly
thought to be to consider the questions of Constitutionality and the context of the law. When I authored — when I authored
bill’s, and I — by the way wouldn’t — members of Congress author bill’s,
they don’t take up the pen or sit there with computers generally, some
may and I certainly had a hand, but often bill’s are referred out to an
office of legal counsel and others who help in the drafting — the drafting of the bills. I don’t — I think it’s rare
the legislation would be — is put forward for purely for political
purposes, but clearly the political implications in legislation are considered
during the introduction — the drafting and the intro —
and the introduction of it.>>Congressman Hodes, you talked
about the fact that the what — or rather the lack of discussion
of the constitutionality when it came to the healthcare bill. I was wondering if you could talk
a little bit about the strategy — what strategy there may be about
making statements or creating some kind of the Congressional record for a bill before
it’s passed and to what extent, in general, there is thought about creating
the legal footprint or if it’s more of a political footprint when it comes
to floor speeches in this kind of thing?>>Yeah, I, my observation is
that certainly while I was there, politics were such an overriding concern for
both leadership and members that the work on committees was generally — by the
time members of Congress were sitting in committee asking people questions, it was
Kabuki Theatre, that was highly scripted, the staff had done much, if not most of the
work, the often provided scripts to members to elicit [background sounds] answers
from witnesses that were — in a pre — you know, pre — pre-determined,
members of Congress used the — and this is not new, used
committee hearings as forum to — for to make speeches with the hint toward
glint of a question a — question attached. And generally the purposes where
political, because we’ve in — the current atmosphere where the leadership — the political leadership of the parties
is focused on a re-election campaigns, raising money, serving constituents, having
talking points, and scoring talking points as opposed to let’s say a higher level of
statesmanship at which the good of the country and legislation that would effectively
serve the good of the country is — might be seen as the ultimate object,
I think things have gotten to a place where politics rule more than the kind of
thoughtful legislating that breeds compromise, and gives a safe place to ask
questions [background sound] and examine the constitutionality of bills. Now what’s happened is the — the questions
of constitutionality have been left largely in both houses to the judiciary committees. It used to be more widespread in the past,
now let’s say 70% of hearings that are held that have to do with constitutionality
are held in the judiciary committees, and they’re not immune from the kind of
political polarization that Devins talks about in his article that — and that
we’ve — that we have all observed.>>[Background sound] Thank
you to this great session. I came here when Jimmy Carter was President,
and by the way I do have Israel in my passport. And one thing that I admire,
and I thought a great deal about is will the founding fathers went through
to put this whole wonderful experiment together. And at this day and age the one thing that
I often think about was the adaptability, both in the [background sound] three
branches given the powerful media influence, the powerful corporate influence. Do you gentlemen honestly believe
that what we have today is capable to adapt in — to all these influences? You know, I just wonder about that. I see the Supreme Court acting pretty much
pretty conservative is just the way I see the Congress carrying on and the Executive Branch
doing their thing, politics or otherwise, but from the adaptable point of view
and the way things look globally shift and changing dramatically, are we gonna shake?>>[Background laughter] Want to take some time?>>Well to the first question, the
Constitution has adapted itself to change to just an absolutely remarkable
degree, right over 230 years now. And I don’t see any reason why that could
not continue, that’s not to say that there’s, you know, no reason for re-visitation of
aspects of it or amendments to the document. There will never be a consensus about the extent to which the Constitution
should be a flexible document. You know, there’s many believe that it
should be read as sort of a super-statute, and that its original meaning quote unquote,
ought to be ascertained and that ought to be the beginning and end of
constitutional interpretation. Many others disagree with that and I
imagine that’ll always be the case. The fact is that it’s survived
tremendously troubled times, through, you know, a succession and a civil war. It’s survived through, you know, horrific group
tortes such as slavery and other, you know, the partite that followed slavery. Just me speaking, I don’t see why it cannot. You asleep [ laughter ] ?>>Congress oppose or Verrilli
did you want to take that on?>>So the all I would add to that very
eloquent statement is that if you read Hamilton or read Madison, I think they [background sound]
understood that what they were trying to do was to give the National Government enough
authority and enough flexibility that it could adapt itself to
the crises that they understood that they could never even foresee, because they
wanted this constitution to endure for the ages. And I think so long as we
approach the fundamental questions with that spirit in mind, then I’m optimistic. [ Background Sounds ]>>This is a hypothetical so I’m hoping
Mr. Verrilli can answer the question. [Background laughter]>>I’m very good at dodging those.>>Suppose Congress had done — had the
time to do and went through a normal process in passing the ACA and suppose Congress had
done just what Mr. Hood’s [assumed spelling] had anticipated, and really spelled out
yes we’re using our commerce power in passing the ACA here, and we think
it’s squarely within the Constitution. What should or what could the judiciary
do with that statement from Congress?>>Hmm [Background sounds].>>That — so the justice of factual matter,
actually there are findings at the beginning of the Affordable Care Act that say
it’s an exercise of the Congress Power, so those are that — that does exist now->>[Background question]?>>[Background laughter] So you know, I
think that because of the quote from Marbury against Madison it’s, you know, it’s ultimately
up to the Court to decide what the law is and what the Constitution means, and
it’s been the law for a very long time that Congress doesn’t have to identify the
source of its constitutional authority, and without talking about any
specific case, it seems like that has to be what the right understanding
of the Constitution because otherwise the judiciary’s going to be —
I mean what sense does it make to say that a law that would be perfectly within
the power of Congress to enact, is invalid because then the judiciary can strike
it down because Congress didn’t say that — it didn’t identify the specific
source of power that made it valid. If it’s valid, it’s valid and so the court
has always, I think, understood that it’s — what findings can be helpful and the
court has said findings can be helpful to illuminate what Congress
thought it was doing. [Background sound] But the absence of
findings can’t be a reason to declare that something is unconstitutional. And I think it has to be that way, otherwise,
you’re superintending the process of making laws in a way that there isn’t any
constitutional justification, so. In fact for 70 years, it’s fair to say
that the court has shown great deference to the acts of Congress, great deference. So you know, in that context, because I — I
don’t have to tread as lightly as Don does…>>I wasn’t treading.>>…I mean in terms of actual cases. If we’re the Court in this day, you know, in
this case to strike the mandate, it would be, you know, a fairly monumental
break at least with precedent and the way the court has
approached acts of Congress. [ Background Sounds ]>>While the Separation of Powers
is obviously with three branches that you’ve represented very nicely. We have another separation of powers which is
between the States and the Federal Government, which is sometimes I think a very relevant
issue, and a kind of fifth branch of Government in a way is Academia, [inaudible] law schools,
for example, but where there are another group of people who are sometimes
thinking of ideas that get in the environment and get at a decisions. And I want to give an example of each of them. First of all the States, a lot of discussion
about in the Healthcare Act about the mandate, to buy insurance, every one of the 50 States
has a mandate to buy automobile insurance. Those mandates to my knowledge
have never been overturned by law. The question is, does a settled practice at the
State level, have any influence on the principal of a law establishing a mandate to buy
insurance for everybody who has a particular, you know, residence in the State? Secondly, I — just another point for instance
a Congressman Hodes says what wasn’t clear about Constitionality, say this is a tax. Article Eight, Section One says
Congress can enact X sizes tax impose — there’s a funny feeling of four different
words for the way of getting money, you don’t say mandate, but just about
anything else, for the general welfare. Health is part of general welfare because there
are such things as diseases that can spread across State lines because
actually they’re oh my as — the I find it interesting that all the
discussions of health had to do with a thing like broken arms and not contagious diseases. Very curious, I only say that because as
somebody in academia who works in things like consulting at the Government
Level, I find that I am sometimes asked in the consulting work I do, for special
advice that will have a real affect, in this case in the Department of Defense,
but it’s an Executive, [background sound] and I think that we forget that academics also
have a huge responsibility in imputing ideas about what the three branches will
do, and the States do as well. I wonder what your reactions to those points.>>Well let me just comment
that I think certainly one of the central questions throughout
our history is and will remain, the relationship between the power of the
Federal Government and that of the States, and it plays out both in a political
context obviously repeatedly, and certainly is on the minds and in my
judgment, at the core of many of the arguments around the validity of the act that we’ve
been — that we’ve been talking about. It’s just — it’s a central theme in
our fragile experiment in Democracy. The Federalists papers are all over,
and we continue to be a lively subject. That’s why we have such an adaptable
system, because the question in what is never going to be resolved. [ Background Sounds ]>>If you could make one Constitutional tweak to improve the interplay among the
three branches, what would it be? I mean, I’m just sort of thinking to myself
why not have a President run for six years and that be it instead of these long
election processes, but I’d just be curious to see what you would do
to tweak the Constitution to make our Government and Country work better?>>That’s not one I can answer sorry. [Background laughter]>>I don’t really — I don’t have one
either really off the top of my head.>>I would amend the constitution to make sure that the citizens united decision was
done away with and could never come back. I think it’s poisonous to our democracy in
a very fundamental way, and I think it needs to be overturned and if it needs to be done
with a constitutional amendment of some sort. I proposed one — I suggested
it’s the right thing to do because right now I’m afraid
our democracy is for sale.>>Our next question?>>Mr. Verrilli you talked about
the friction between the branches, even the institutional friction between
them, and in your experience does the tension between those branches ever surpass the
point of ambition counteracting ambition in the Madisonian conception to the
point of inefficiency or un-productivity, and if so, do you have an example of that?>>So I think Madison’s point was that the
ambition counteracting ambition was supposed to make the Government somewhat inefficient. [Background laughter] I think
that was the idea behind it. That decisions wouldn’t get made and
implemented to quickly and without — sustained enough sense that this
was an important enough thing to do. Having said that, but and without
offering any specific examples, which I don’t think I should do, yeah you
know, there is a difference between friction and gridlock and I think it’s certainly
reasonable to reach the conclusion that we’re sometimes at least, closer
to the latter than the former so.>>Great well why don’t we leave it at that
[background applause] and thank our Panelists.

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