tv After Words CSPAN March 21, 2016 12:00am-1:01am EDT
it was a house in dupont circle in washington they would prop up his reputation and is about in the republic and and then it's been carried through yes he was wounded in battle three times. we hear the heroic stuff that's not some of racial decisions rejecting an that was so terrible that not only stop them from voting around for
years. what is the operation.? >> guest: i think that this is a very disturbing program in the and the federal government but one that exemplifies a love of the problems arising in other places and this is where the government is trying to prevent access to banking via the disfavored businesses and these are not businesses that are illegal. the one he focuses on our payday lenders and these are people who will give people an advanced loan before their paycheck comes. >> host: i want the viewers to know what these organizations are because it is listed right here. that's the agency then published
a list of high-risk industries in which such could be found and ammunition sales, lottery sales. i represented a bunch once before the irs and it was a regulatory issues and i bet these people that were so nice. they barely make a living but it requires them to spend $5 worth of paperwork and we had to get it changed but firearm sales, gun dealers, pharmaceutical sales, tobacco sales and the payday loans. >> guest: there is no statute that is passed going after the different businesses. congress could probably ban some of them out of thick systems but
they haven't. >> host: they perfectly allow payday loans. >> guest: the criminal law is not to be read to extinguish a whole line of business unless it says so. what happens is the administrators were in cahoots with the other agencies and the justice department and believed a law about the regulation of protecting the regulation of the banking industry. the idea originally is that you didn't want tanks risking reputation in a way that might harm the stability of the financial system. it's to protect the financial system and is a part of that might be what if these banks start lending to industries which are very high risk so people might doubt whether they are actually financially stable. that i'm not so sure if it's something the government should be regulating even if it is then the government through this
interpretation doesn't have any grounding in whatever the congress wanted to do and say we can stop things from regulating industries that we think of better reputations like gun sales, tobacco sales, the clean dealers. >> host: depositor is about a person limiting the bank's reputation. >> guest: but the thing that is troubling as you can see their reputation is the standard and it gives the regulators the freedom to pick and choose the people they don't like and that's been the story of the obama administration and other areas of selecting certain individuals or groups, businesses, points out via 40% tutorial treatment using the power of the government. >> host: tells techniques of the thinking people come how did they squeeze the banks to go along? >> guest: again this is just like what is going on in the areas i think the regulators
would prefer they never have to do anything formal. they use the regulatory process of reviewing bank's having to give them the necessary approvals they need to do their own business. you have these banking examiners it's almost like they nudge them without having to formally pursue the bank in any way to say you don't really want these people. they might have to look at you again. >> they might have some difficulty. >> guest: but there is no formal action. the obama administration, what they do is they threaten to cut off the funds or something serious, something on businesses to coerce them and persuade them they would probably say but to persuade them and what they want them to do.
>> host: so then we have the courts and we have congress. those are the only two places. congress hasn't done diddly squat so we have to go after the courts and that is with jack cooper is doing on behalf of the groups of the payday lenders and it is the district courts here in washington, d.c. come and it is going forward on the due process grounds. so i have a law school question you get here we go. [laughter] >> guest: i haven't done the reading yet like my students say. >> host: guess what industry isn't included on the list. marijuana. you would have thought, but it's not only not included on the list but the obama treasury department in 2014 issued guidance to enhance financial services for the marijuana growers. you can't really make this up. so that there be equal
protection? >> guest: it doesn't show the abuse of prosecutorial discretion because as you know the obama administration isn't enforcing the law prohibiting it in some states like california and colorado now where the states have by the state lost access marijuana usage eateries medicinally okay or just recreationally by federal law doesn't create the exception like that so i think this is an example of this administration apparently you are the expert criminal but it seems since the fever that you're using the operation chokepoint to get at the agencies they don't like like the gun sales and the payday lenders from industries that are illegal but which they somehow exchanged paper which is marijuana use. first whenever they write to congress here's the deal we are
changing the structure in the financial system that allows the fraudulent businesses they say we are checking them off of the care they need to survive. what is the government doing in that kind of a business class >> guest: i angry. again it goes to is to other agencies as well as that the government could they thought that they were illegal prosecute them directly but instead come it is using the burdens and the demands of the regulatory state which regulates any size to coerce people to get its way and it's not what they had in mind. just see how the courts treat the agencies and how the agencies to. and we discussed the executives
of the authority. how did we get here so let's follow up. washington, jackson. we talk about the executive power that expands during the two pure periods of crisis number four, emergency, but when the crisis was past the executive branch would shrink and woodrow wilson is the actual father figure of the kind of administrative states that we have today. he saw the expansion of agencies and government power during wartime and he wanted to make it permanent and last beyond. so he thought they came to admire the prussian system for the government administration.
a political scientist and this was his view. then fdr was one who made him permanent in the great depression. he took wilson's ideas and models have made it permanent. those are the agencies we are still living with independent supercharged in the great society programs and then i would say president obama is sort of the last version of the great expansion that we are living through right now that is built on fdr and lbj but even then now it's like on steroids. >> host: you might have noticed they are all democrats. >> guest: that is one of the big partisan choices. >> host: i grew up not hearing
this a lot. eisenhower was praised because they need the government work. there wasn't a philosophy. in fact so what were republicans doing all this time as the liberals were expanding government clacks >> guest: it's good you think of eisenhower and nixon because they try to make peace with the giant welfare state that was created. you don't get a president that comes along to try to turn this back until ronald reagan. but it's interesting some of the theories have come back around i think to buy to the conservatives in the end because he came in and he wanted the regulations to be lifted by the agencies to allow the economy to grow faster which i think happened that he had to demand the other branches d. for what
he was doing to give more of a freehand so ronald reagan and his lawyers made the claims in court. he didn't make the claim that the administration came up with the chevron doctrine that said the court should basically defer to the agency so he could be regulated. >> host: let's see a couple of the facts of the chevron case because it is in the 80s and the bureaucracy for people in the epa that abided by the philosophy gets busy and start writing a regulation that says it's easier if you are going to change your plan and build something new and modify it. they said you can't do that. you've got to be tough. so then that goes to court. >> guest: it's interesting the clean air act essentially gives the authority to issue the regulations just to make the air
cleaner and consistent with economic growth and safety and so on so that gives a huge discretion. when i started loosening some of the burden of regulation to allow faster economic growth be challenged and said you are disregarding the statute of it regulating so the court actually ended up agreeing with the administration in the case and said the are going to uphold this new deregulatory rule because the agencies are more expert so we should deter to the agencies for more scientific expertise and number two the court said we should deter to the agencies because they are part of the branch and they are more accountable and responsible to the voters whereas we in the courts are not. we are not elected and we've had our jobs for life and so there's no accountability for there is no accountability for us making policy decisions in this nature.
so in this case from the early '80s and ever since they basic generally they will deter them to agency rules that are taken in this area where the congress statutes are pretty much ambiguous or give a get a large amount of power to the agencies. >> host: and it's clear chevron says that's the end of the story it's where its money however the law is unclear. you would think that would be the most vulnerable place. >> guest: it doesn't apply to the meaning and you have seen some high-profile cases lately where the chords have been willing to say we think the statute is clear. the most recent example challenged the obamacare subsidies. two individuals and states that didn't have a set of exchange.
but generally most of the big statutes that expand the power in the federal government for things like the security market, the environment and so forth are quite ambiguous and this is the area if you think about where they will do most of their work because that's where they will have the challenge and push back from the courts. >> host: will be mad at congress for to give up this power? and what i have always observed with people saying i want this and the other side is saying i've wanted that and then you get something together and it's like you've got this and that at the same time. and especially in the legislative history each side tries to write what they think was past which is why the late justice scalia [inaudible]
so they like chevron at the moment. >> guest: it is the congress fault because under the system they wanted it to be harder to make it. that's why you have to get through the house and the senate at different times with different systems and representation and he could veto or prevented the court interpretation that system is difficult to get the law through. think about what we have now the to congress in the 30s and 60s and under the obama administration they passed these broad laws delegating authority to the agencies. they are constantly making it all the time and now to stop the wall making which is supposed to be the status quo under the system the congress has to go through all those hoops to stop the agencies from imposing more
burdens and regulations, so it is a complete flipping upside upside down of the constitutional system. >> host: today conservatives would want to overrule and say the court get into it. >> guest: this was an interesting struggle in the world of jurisprudence there are some who i say wide, justice scalia for example was quite loyal a fan of chevron. the judge was asked while on the dc circuit which i think is the most important in the country industry wedded to chevron but in the recent years you've seen justice clarence using justice clarence thomas who i also clerked for has been raising doubts and several opinions for last term has questioned and asked maybe that should be overturned -- >> host: beginning to have
doubts. >> guest: he also was someone raising doubts about the concord conferences are playing to criminal law committee was raising doubts whether it should apply or not into burwell case or the massachusetts versus epa. >> host: it doesn't always end up. with the agencies can do doesn't necessarily get addressed. we all know the difference to obtain confidential information and tax returns to use in a discriminating way that the commissioner said not doing it. there's there is no doubt that the obama administration used the irs rules to fork the conservative groups and the political process. and i want to give a little background because of the
politics we have had various limits throughout the years i've the rules of how you can contribute but then the big whammy was in 2002. there was a provision 30 days before the primary and 60 days before the election, certain people couldn't engage and the certain people for corporations, nonprofits. isn't this the time they are supposed to be doing it? it wasn't a rule of contributing to the client or the candidate. he still we still had about 2700 or so. these are third-party groups that want to speak out on an issue so planned parenthood could do an ad 30 or 60 days before an election. >> guest: that is slightly unconstitutional. >> host: and then what
happened how money always finds a way to go and 527 sprung up in the aftermath and those are political parties where you can see mostly liberal groups were doing them because the rules were kind of iffy and they were not registering what they were supposed to do and then citizens united comes along and with citizens united was was a movie about hillary clinton made during the 2008 campaign, and it said that about her because it was against her and they went to the fec into simply want to know if we are going to be put in jail if we published this and that's what the whole case was about and i have to point out the irony when mccain ran for president do you know how much he had available to spend because he was a tax payer and public financing? >> guest: i'm sure it wasn't enough.
>> host: $84 million. barack obama 745 million. so you can see i'm getting this information to see how the political come help of republican political danes were exploding like we've got to figure this out some way or another. now, i was at an oral argument i just have to tell you the first time that it was argued i was there for the second when the tube at the first one he was justice scalia and he says to the solicitor general to wait a minute i i want to know if i write a book 400 pages and every page i tell what happened in real life but on the last page if i say don't vote for hillary is that banned by this. and you know what the solicitor general said yes, justice leah, and [inaudible] he turned purple and that's when
the court said comeback. fast-forward to january 10. >> guest: it basically holds up the money is speech suggests like it can't regulate the speech of people through the different groups and politics it can't regulate the donations to private people and corporations in the groups. i've always been puzzled why citizens united gets upset because it seems obvious the right answer, for example if we say the government for example has to recognize the rights to abortion but we would never see congress can't fake you can't spend money on abortion it seems obvious the government can't regulate the money that he would you would use to participate in the constitutional light. citizens united is that since you have the right to free speech particularly as you said
in politics during the campaigns when they want to protect the right of speech then how can the government government say but you can't spend money on using your constitutional right and you can get away from that and think how you can hollow out all of the constitutional rights by saying you can't spend money on using the right. ..
>> >> and so there is obama the tuesday who will read me of this nettlesome? ended is the irs says talked-about what happened there. >> with this chapter we have an article who is a former state legislator it she has been representing the groups that have applied for the nonprofit status from the irs so they could take donations and use them for those purposes. they would deny them or slowdown without explanation. some have taken years in in years having applied for
more information which i think his unprecedented from the request who were your supporters so congress and others started to ask the irs why are these groups singled out are you or is this to groups with different viewpoints? it turns out it was only done to conservative causes or the teapartier group's and not the clean water or union groups and almost without exception, of the fruition of the fear looking at behind president nixon in the iris has enormous discretion to ruin people's
lives just by asking them to do an audit or to give nonprofit status to undertake activity imagine what would happen if that was used for partisan purposes? and betty realizes this is terrible for the democracy. but then officials and the irs would only strike at groups they would end this disagree with because they use the enormous power of the administrative state to punish. >> you can distort without the chevron test. >> just like operation and chokepoint the regulators can get a lot from mot being candid nejd to be strong asking for more information and degrade people's abilities to exercise their constitutional rights that will never show up in court
and. >> and every recommendation list to congress. >> we should be clear we both worked on the hill a lot of the responsibility is with congress not just to give them the enormous power to start with but those who are in congress now passed those laws but they could pass laws to stop that are take away the power to conduct oversight hearings and old people responsible but they are not to. fifth part of it is the voters don't demand it with their profits being brought home to the constituency to instead of asking if you falling upon the irs some don't have the individual incentive to space help you raise money for your
campaign so it has to be the congressional leadership. >> battle think the republicans know how to hold hearings i truly don't they are truly bad that it. like that benghazi hearings one of them was the disaster. but the security with a personal letter from 38 down at nine? but they don't seem to know. >> why a is that? they should be just as good as democrats but i do agree is a that is part of running congress stick mikhail is a different people covering democrats? when they come from places like universities a and the unions that people work
together as the group? [laughter] >> guest: i'd work with anybody let me get that on the record. >> but with those independent business people like a rancher in montana. so i think they come with different attitudes towards government to keep republicans from conducting a hearing. and looking at impeaching the commissioner of the irs. there was a bill. >> that is what any party can do with that impeachment power that will level of cabinet officers. >> they still now that documented.
to know how many criminals there are? 5,000. >> but the federal regulatory laws when we were in moscow will we were told the law was so carefully cracked bone dash crafted to know which conduct is prohibited so the law professor will notice that give the driver to the people listening tell the difference. >> there is some idea some things are bad by nature murder and robbery never a
society should prohibit. then other things the you to think of not obviously always bad but what society chooses to criminalize. and we start off with a simple set of criminal laws in now we have 300,000 positions on top of a state law that is not evil by nature that all governments will prohibit. >> this is another thing with a huge expansion with the ada you have a certain state of mind men's area that you would carry out a crime if someone died
because of that isn't a difference there is a strict interpretation doesn't matter if you have the intention but just an act you will be held guilty of a criminal act that is another revolution but a key underpinning of the regulatory state civic iran that doctors and? >> this is the criminal defense attorney that is now the favorite part. [laughter] and it goes back seat to the idea that criminal law was supposed to be few in clear and understanding the we
could or could not do. if they didn't tell you clearly lung was ill legal hough and you know, it is ambiguous. click it was close it should be in the defendant's favor and shouldn't be expensive because it is the idea that we've shifted five we are not allowed to you because criminal punishment and consequences are so severe and harsh. >> host: the complete opposite of chevron. this is what has been raised questions. >> how could they possibly?
>> and he is really just getting tired of. >> it is terrible but it gives us a chance to appreciate. but that dissent with the independent counsel was deemed unconstitutional. and he has a great line that says the threat to the separation of power is a wolf in sheep's clothing but this is a wolf dressed like a wolf. [laughter] with those creative concepts
but the rule of levity requires your interpreters to resolve in favor of the dependence. ince return than normal construction upside-down with a doctrine of severity. >> a inky is right that chevron itself is not constitutionally required it is just policy with the good idea how to approach reading vague statutes and i agree the makes no sense with criminal law were the idea is not the issue deferred to agencies that due process requires a criminal defendant if it is illegal. >> there are conservatives now questioning in chevron
potomac and the justice department went after him as a felony and admitted he did not know when he was doing. >> that case is like thousands where the government is overreacting to something that you should solve with common sense the government doesn't just say you made a mistake. he did not intend it to do that. instead they come down with criminal sanctions because they can and they have that type of discretion and to know that they will escape oversight in the courts will defer to them so it is full of examples like this. >> host: look at the lovely c act. >> guest: o no. [laughter] >> as a guide named lacey
wanted to protect the wildlife that sounds okay but then in 2008 is to control congress? it was democrats they say they need to protect plants not just united states plans but every buddies around the world see you cannot import to a plant in violation of another country's law this is about the three men and women from honduras. >> it is interesting that has to do if you can import certain kinds into the united states and this was complete the legal under the laws of honduras but according to the epa regulators illegal under american law. so the poor people were prosecuted for basically importing the wrong kind of
seafood. [laughter] >> favor in bags instead of boxes or something and evidently hondurans did not know because it was sent in issue. >> so the woman got two years. >> it is incredible. this is another thing that there are so many problems in our country why is the government sending as prosecutors after people just because? because they use the wrong container? >> we have paper and plastic bags that seems to be were the most important public policy of mankind. >> with our government if you have to buy a bag now to carry the interco -- then
in. >>. >> it is from the endangered jury indicted is even clearer if if the maker of the guitars knew where it was coming from he said if i knew they were endangered plan never would have used them he was making custom guitars. so why does the government have to use the power of criminal sanctions? with jobs in the united states. >> but it shows to have so much power to use zaph
are? -- compounding pharmacies? >> it is important because they can make different forms not everybody can take medicine with the exact measures sold to the messages so we do need compounders they are like a pharmacy. of course, they mix controlled substances they need the day a license. that is good. you have to name the patient except my compound the pharmacy was for veterinarians. [laughter] so the dea had not written rules for veterinarians it is a whole different type of
business so they are the walking pharmacy and instead of breaking down the name of the patient they would write the name of the veteran what were they supposed to write down? the name of the pet? sea biscuit? [laughter] so dea came in alarmed taking documents showing the records it was only the veterinarian and revoked the controlled substance. that is when we came in to go to the court of appeals i tell the story because it is interesting the court did not say give them back their license and is a problem
working out and we were happy with that. now you go to any administrative hearing which is another four months. after the administrative layer it took another year than the judge had not ruled because administrative judges are like that and they will suck up we finally threatened and the client got the license back in recent years filing this next week. >> so goes back to marbury vs. madison which chief justice marshall found or inferred the right but to be ordered tuesday carrier your
legal duty said he realized -- dea realized right to soak the -- slow things down without formally ever doing anything. there were supposed to get the license and it was clear so they would take their time. >> you cannot go crying to mommy or daddy. it is such a time period. expect able not have the fortitude nor the resources to hire the criminal defense corps in gsa just tell me what i have to do to keep the business going so there are dozens of cases that never see the light of day
and he told me it was crawford vs. washington and their requirement that there has to be a cross examination with the out-of-court statement. so a the lab technician that says it was cocaine they have to be heated court for. >> guest: that confrontation clause you have the right to see your accuser. another great line of cases and justice scalia went along with a ruler criminal law was the idea where juries have to make ted decision of facts with the
conviction and that judges cannot do a. in the thousands it could have been convicted and then stop on appeal they were getting to controlling and know what you think about the apple fbi fight but justice scalia it is much more favorable to privacy rights of more than what i would have been with the heat detection device.
>> now we know they raised a lot of money. [laughter] and now they say they never entered the house and it was the interest of the house to see from the public street in the gps tracking where they put the tracker on somebody's car even the you could follow them that is it considered a violation he found those other justices' that liberals are with those the are not true and i don't know how he would come amount on the apple case. i concede the of the 13th
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