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tv   Discussion on President Trump and the Constitution  CSPAN  September 1, 2019 3:25am-4:51am EDT

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professor amy wax on free expression on college campuses. in the conflicts surrounding an opinion piece she co-authored in the philadelphia inquirer. >> i think this is what ruffled a lot of people. not all cultures are a light. -- not all cultures are alike. cultures it to other which are not as functional. we gave some examples. and that immediately caused a firestorm. >> tonight at 8:00 eastern on c-span's q&a. on thursday, the american political science association held a discussion on constitutional issues in the trump administration and what that could mean for american democracy. a panel of legal scholars discuss the separation of powers, executive privilege, and
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the ability of congress to regulate the executive branch. this is one hour and 25 minutes. >> hello, everyone. panele to the 2019 apsa on prompt, constitutional crisis, and american democracy. have distinguished panel here for you and we will hear from them individually. we will talk amongst ourselves briefly and then we will take some questions from the large and growing audience. let me just quickly introduce the panel. represent and reflect a diverse expertise in different points of view. professor atwho is
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cornell law school visiting this year at georgetown. matt glassman is senior fellow at the governor institute at georgetown, formerly at the congressional research service. brick is the chancellor's professor at uc irvine. henry olson is a fellow at the ethics and public policy center and a columnist with the washington post. ilya -- and victoria nurse is a woodworth professor of law at georgetown. in the interest of saving time and making sure that we can hear from all of these distinguished people and some of you, i will not give a lengthy introduction.
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i will just turn over the microphone to our first speaker, professor josh changes -- professor josh chavez. >> thank you so much and thank you to all of you for coming. apologies to walter the stevens, my title today is three ways of looking at the trump presidency. in terms of three different frameworks. my goal is not to pick one of them out as right or best or more plausible. they each reveal something true about their subjects. -- problem is that they read they each counsel different postures with the administration. the first of these is the notion of donald trump as a norm shattering authoritarian.
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this is a widely held view. donald trump is uniquely destructive of the status quo. a constitutional norm flout or -- flouter par excellence. the sheer profusion of such panels and conferences, this is my fifth. as well as how it looks like democracies.. multiple new works on impeachment are all indications that many people view donald trump as sui generis. he is uniquely dangerous to opponents. and uniquely good to his supporters who see him as a bending politics as usual. to the extent that we buy into the first wave of thinking about donald trump, what implications
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might that have? is ourit the suggestion reaction should be as abnormal as a presidency itself. if there is a threat to the heart of our constitutional order, normal disagreements should be set aside. logic behind newly woke conservatives. that it ism argue their very conservatives them -- conservatism --. it has even caused several of them to oppose policy initiatives. on the other side of the aisle, this is the logic behind the democratic argument about health care, the environment, taxes and etc.. they should be put aside right now. combatingshould be on what makes donald trump
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exceptional. electorally, this seems to be the strongest raison d'etre. the second way of looking at him is that he is a logical continuation. on -- trump -- his view his question of the validity of elections. to deconstruct the administrative state harkens back to goldwater and reagan. his racism is a more overt manifestation of nixon's southern strategy and his misogyny is not surprising. moreover, his two primary accomplishments in office, a tax cut and judicial appointments are gop orthodoxy. what are the implications of this view of donald trump? is it just the politics of this era is politics as usual.
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donald trump views himself as more of a distraction. op-ed, toork times ophobia can be counterproductive. extent that you are inclined to this view, the problem is a modern gop. adherence to this view will be left inclined to seek alliances -- theythey will seek will see the republican party as the core of the problem. the seams largely to be the electoral strategy for people like elizabeth warren and bernie sanders. the third and final way of looking at donald trump that i want to look at is as a weak
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president. any 21st century president is powerful on an absolute scale ?ut how would he compare his approval rating has been underwater since the first week of his presidency. many think he is dishonest. majority described him as racist as well. the 2018 midterms are best interpreted as a severe rebuke to both donald trump and his party. -- he hasosition faced more than usual pushback from the bureaucracy. loss of his purportedly unilateral executive initiative --
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as noted above, he had two years of republican control of both houses and he only pushed through judges and a tax cut. on distinctly donald trump things whether it be funding for or his trashing of the american international alliances, he has found him elf repeatedly frustrated. this is not a president succeeding in persuading. this view would counsel patients. his incompetence is blunting a great deal of his malevolence. his opponents should keep doing what they are doing. in 2020, much if not all of his legacy can be erased. one might be more optimistic than this and suggest that his greatest legacy could turn out to be the backlash that he has inspired.
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might squints just right, -- one might see this reflected in the views of nancy and house democratic leadership. those are three different ways of looking at the trump presidency. there is a great deal to all of them. differentounsel responses. i wish i could end with a magic synthesis.
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maybe we will figure one out through discussion. [applause] >> i want to come at this from a different perspective from the view of separation of powers. i am a scholar of separation of powers. more importantly, i spent a decade on capitol hill dealing with separation of power issues. much to my chagrin, i did this from 2008 until 2017. and i was helping them fight president obama. we fought on all sorts of issues that might sound for mill your. committee subpoenas. rulemaking in statutory law.
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the use of appropriations. war powers. virtually everything we see going on under president trump. for me, the trump presidency is both a continuity and a disjunction from past practice. i think a lot of people tend to see this as a disjunction. what has struck me is how much of this is a continuation of the empowerment of the modern privacy -- of the modern presidency. i want to start with a general point that i am not comfortable with the use of the term constitutional crisis. that leaves us throwing that -- ouround and leads us system depends on the actors fighting. there is a certain amount of public opinion and elite opinion
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that does not like conflict anymore. fightolitical actors using their powers between elections, it turns people off. it is part of the system. i had a grand point to make about president trump is that he has taken off the gloves and he is fighting in the separation of powers system but he is losing. he may be a threat to the system. i think he is a dangerous character. -- he plainly admires authoritarians. but that is ok. our separation of power system does not depend on the actors believing in the system. no difference in the free markets. political parties do not need to believe in
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democracy or separation of powers in order for the system to work. it might be better if they do what it is not necessary to the system. if the system is working, it will be self-correcting. as we see other actors rising to the challenge, that is uncomfortable. withict all over the place congress, the courts, the cabinet secretaries. with civil society and interest groups. president trump is provoking a lot of fights. but that is a sign of the madisonian system working in a positive way. it does lead to a lot of unknowns but i don't see it as fundamentally a harbinger of doom. this is mostly because i see donald trump is a weak president in a weak presidency in a very strong and stable system.
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our american presidency is very weak in our system. across presidential systems, you see presidents with more power to appoint judges, more power to enact law on their own. a general fusing of legislative and executive powers. we are in a case in the united states where it would take a much higher threshold to get us there. the presidency is very weak. i also happen to think that president trump is a particularly weak president. the point i would make here is a lot of people have chalked this up to the notion that he is an amateur. and i think that is right. he backtracks constantly and that creates an trust worthiness .- untrustworthiness
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he is impulsive. he does not understand policy. he is self-centered. things require another player in the system to engage with him. and to a large degree, they are. if you look at the president's relationship with congress, he had a disaster of a 115th congress. if you told me that you were going to have a unified presidency where your party controlled all of the elected chambers and the party in power would start an investigation of wouldn president and they completely ignore his agenda and substitute their own and that they would continually ignore his threats -- it is a picture of the president. if you do not include the border wall money, i'm not going to sign it. lo and behold, he signed it with his tail between his legs in that pathetic white house
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signing ceremony. saying i will never do this again. with the executive branch. it takes a certain skill to work in the exact -- and the executive branch. he does not seem interested in doing it. the key tools of control in the executive branch -- he has been very weak on. all sorts of political appointments are going unfilled. those he has filled he has put in acting secretaries. and the executive branch can do a lot of things now but not at the request of the white house. people ignore him. people push back against him. and the bureaucracy is moving in its own direction. we don't want pure across operating freelance. but if the white house is not
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going to be a source of power, that is what they are going to do. two other things. one is the historical time when the president has arrived in the system. presidencyodern since roosevelt. development and democracy -- in america. the development is being paired with a distinctive bright to partisanship. -- we have the highest levels of partisanship in the modern presidency. and the combination of this has led to me to one distinctive
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thing which is presidents are .ore easily able to exploit that is the attention of the trump administration. some see this as norm breaking but i see it as a natural consequence. the national emergency act will be pressed to their full possibilities. or that president obama is going to do things like pushing through the obamacare subsidies without appropriations. trying to stretch every bit of the law to wear executive decision-making can get to its natural conclusion. and congress is becoming aware of how sloppily they designed the modern presidency. i think this is a good thing. another part of the system is reevaluating their role.
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finally, the last thing i want to say is president trump has arrived within the system at a time when there is distinctive ambivalence on the left and right about our separation of power system in general. there is a tremendous number of people that before president trump were questioning the madisonian system itself. in this general rethinking of the system in which people long system, it has a lot of people will seeing donald trump as heading towards crisis by doing what they would like to do constitutionally. theou are in favor of wilsonian model of hollowing out the legislature, getting rid of the filibuster, that is the other side of the coin from what
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a lot of people are concerned about. there is a deep tension for people on the right and left. they are fearful of authoritarianism in a negative partisanship way that in favor of the disassembling of the separation of power system in general. [applause] >> good afternoon and thanks to david for including me on the panel. when i saw the title of the : constitutional crisis, it made me think about the potential constitutional theis that could come at time of our next elections. i have been working on a book entitled "election meltdown." i want to think about what donald trump is doing now that
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could affect the legitimacy and the ability to have acceptance of election results by the losers of the election. thatoing to make a claim donald trump has been unprecedented it least in what he says out loud about election integrity. i can't income another president -- donald trump made certain claims about election integrity that were unsupported by the facts and outlandish. after losing the popular vote by 3 million votes, he claimed millions of fraudulent votes were cast in the 2016 election saying every single one of them was cast for hillary clinton. he said there were millions of illegal votes cast. and that they were cast by noncitizens. he claims there were millions of these votes. in fact, there have been
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investigations about 30 votes. nothing on the scale of what we are talking about. people inid that states without strict voter identification laws were voting three or four times. he talked about a kind of fraud that social scientists believe is nonexistent because it is the kind of fraud that would be a stupid way to steal an election. a massive conspiracy. he told an all-white crowd in pennsylvania during the 2016 election that they need to go to the polls in the other areas and watch what they are doing. and he said "you know what i mean." it caused some of his supporters rogueout and engage in
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types of activities. he has said more recently that the only way the democrats could win the 2020 would be through some kind of cheating. it would have to be illegitimate. he has repeatedly joked about staying in office for more than two terms. as recently as last week. he talked about staying in office for 10 or 14 more years. and more portly, he set up a so-called election integrity commission. instead, he stacked it with are noted vote suppressors. those that claim there is a lot of election fraud. all of this has happened in the past. what will 2020 look like?
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the 1980's until 2017, the republican was under a consent to create which prevented them from engaging in certain kinds of activity at the polling place. ballot integrity activities. minorityintimidate voters. keeping them from the polls. including sending off duty armed officers. they were for bidden from engaging in these at 70's. now, not only will the rnc be freed from that but donald trump taken control over of the rnc and i'm concerned about the kinds of activities that might happen in the lead up to the election. actions -- ithis is going to take the voting wars to a new level and make the election itself a campaign issue in 2020. this is a way to drive up turnout and fundraising but it
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undermines the kinds of things we take for granted about how our elections take place. we understate how norm based our roles are for peaceful transitions of power. so much is driven by convention rather than law and our rules for resolving close elections are underwritten. they leave a lot of room for discretion and the actors that exercise that discretion are often partisan actors. this time around, there are four factors i point to that i think in lead to a further decline in trust. a trust that the election results will not be affect -- accepted. the four factors. voter suppression in republican states.
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the more these laws are pushed, the more there is a lack of trust in the system. pockets of incompetence often in democratic cities and republican states. these jurisdictions are resource starved. not only brenda snipes in broward county and stories of her incompetence. to detroit,point michigan. in 2016, you may remember that jill stein try to have a recount conducted their and the recount reveals an incredible amount of incompetence, the way votes were counted in detroit. that recount was eventually
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abandoned and there was no findings of malfeasance, but plenty of findings of incompetence. when there is incompetence, it finds a base those distrustful of the election to believe the election is not fairly run. a poll this week from suffolk indicates the majority of democrats and republicans are concerned that if their side loses, there was some kind of wrong doing in how the election was run. the third issue, whether that is russian interference, which were copied by democrat operatives in the special election in alabama between doug jones and roy moore, or attorney general checks like the absentee ballot fraud like we saw in the ninth congressional district in carolina, lots of different ways trying to interfere with the election. whether or not the russians actually swing votes. a live it is about
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gerrymandering rhetoric from both sides. that kind of rhetoric further undermines things. imagine a situation where on election day in michigan, trump is ahead, but then after all the votes are counted in detroit, trump is behind. because we know with the provisional ballots are counted and the extra balance are tending to the democrats. both sides declare a winner. and the election comes down to looking at the state of michigan. i'm very concerned that we don't have good laws in place. we don't have good machinery in place. what we also don't have is any other authority that we can look to that can provide a definitive kind of resolution of this, whether that is the supreme court, which has become much more polarized with all the conservatives being appointed by republican presidents and all the liberals by democratic presidents, whether it is an
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appeal to elder states people. it seems there is no good short-term solution so what we really need to do is think about triage in the road up to 2020 because we could be facing a constitutional crisis as we face the next election. thank you. [applause] henry: so i would like to tell a story. a story about a leader who has divided his country roughly down the middle. this is a person who is accused of being a racist, for having made racist statement, and accused of attaching to suppress voter turnout among the nation's most largest and depressed minority. it is an aggressive nationalist, somebody who exudes toxic masculinity with his every statement and move. somebody who touts his close relationship with vladimir putin. somebody who is backed by orthodox religious leaders and orthodox religious political organizations who are trying to carve out special segments of the law in order to protect the religious freedom and their way
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of life. and it is somebody who is under investigation for lawbreaking. and somebody with multiple wives and has been accused of having multiple affairs outside of marriage. of course, i'm not talking about donald trump. i'm talking about benjamin netanyahu. what his opponents have done is make the same sort of arguments that we hear in our country and make the same conclusions, that netanyahu's reelection in a month threatens israeli democracy. that somehow even though this massive political freedom, political organization, free media, and the robust debate that makes america's rough-and-tumble politics look like a playground, that somehow democracy is in danger. i saw something today looking on the most recent article of israeli developers from "the new york times" of israel, which says -- it will not let me read the article because i'm not a paid subscriber, but it says to join the fight for israeli democracy. subscribe. my point in saying this is this is a global trend, that we have a global fight over values that
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seem to be nearly similar or nearly identical in many countries. and the argument from the displaced people on the center, left is almost at the foes are undemocratic. we hear this going on in great britain right now with despite the attempts to overturn the brexit referendum and a parliament revote in favor of the british withdrawal, somehow adding six days on to a constitutional prorogation or suspension of parliament is a constitutional crisis in britain. again, the argument, or a coup as some have said. taking are coming over values and translating them into argument over the very basic instance of freedom themselves is destabilizing of democracy.
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let's take a look at what president trump has done compared to authoritarian leaders. he has done a good job talking about the separation of powers. let's take a look at elections. authoritarians we know who want to seriously hate democracy, tend to do similar things. they tend to arrest, harass, or in some cases murder journalists who are looking into their affairs. it that happened in the united states? no. they tend to shut down opposition outlets or find ways to get their friends to buy the outlets out. suddenly they become more favorable. has that happened in the united states? i think anyone who turns on the television anytime of the day or read a newspaper can tell you that is not happening. i work for an institution in "the washington post" that is dedicated to freedom.
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i can tell you based on my experiences and what we put out, there is no threat from the president that is affecting anything that is going on at "the washington post." they tend to constrict the space for political organization, throwing candidates or political parties off the ballot, much as the vladimir putin's russia right now has thrown immense independent opposition off the council off the ballot. which is why they are having massive demonstrations right now. has that happened? no. we just went to an election with the largest turnout in a midterm election as a percentage of the potential eligible i believe since 1942, unless somebody who knows that better disputes that specific year. we saw a record high turnout compared to the previous presidential election. we saw a massive turnout by minorities. we saw a massive turnout by democrats. we saw largely a rejection of the republican party. certainly in the house of representing's and state legislative races and governor races. this is not the hallmark of an impending weak democracy. this is the hallmark of a strong democracy.
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so i would like to contend is that we should be very careful when we talk about political differences not as being fraught and important. they are. they always stir deep passions and emotions. we should be careful if we care about over democracy about turning political disputes into disputes about legitimacy because that in itself weakens the legitimacy of the system and can lead to a downward spiral that neither side really wants to engage in. [applause] ilya: i would like to thank david carol and apsa for organizing this event and all of you for coming. one of the accompaniments of the trump administration is they have made disputes over
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constitutional crisis great again. those of us who talk about these issues get more attention than perhaps in the past. in my talk, i would like to focus on two areas or two ways in which the trump administration has highlighted weaknesses in the american constitutional system, which definitely existed before but which have been exacerbated under trump and which perhaps have led to more severe consequences than in the past and may continue to do so in the future, even if trump as an individual is "sane." these are the areas of trade and immigration, which are two areas that trump has pushed the limits of power more than other areas. the two specific problems that are revealed by what he has done, although they certainly predated his administration, our first the exemption of immigration policy from many of the normal constitutional
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constraints that applied to virtually every other area of federal government policy. and second, the enormous delegation of power to the executive power of the constitutional design was originally supposed to be primarily in legislative hands but now the executive wheel has enormous discretion there and is greater in the immigration and trade field than in most other policy areas. first on the issue of immigration and its exemption from many normal constitutional constraints. we saw that on display last year in the travel ban decision when there was overwhelming evidence that the true motive for the travel ban was this clinician against muslims. trump himself said that was the motive on many different occasions. yet the supreme court upheld the policy, specifically citing the difference between immigration and other areas of policy to make the point even clearer. in that same term just a few weeks earlier, they decided the masterpiece cake shop case,
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another case about a seemingly neutral policy where there was evidence of religious discrimination but in a domestic context. they struck it down even though the evidence was somewhat weaker than in the travel ban case and the travel ban is just the most visible manifestation of this double standard. there are many other areas such as immigration detention versus other kinds of detention, reasons for deportation as opposed to reasons for other restrictions on people's freedom, and so forth. while certainly this double standard existed in the supreme court jurisprudence before trump, the trump administration has exploded this power more than any other administration in a long time. there are precedents for this in the early 20th century and the 19th century, relatively few are precedents for this kind of large-scale exploitation of this what has happened in the trump administration. the second broad problem the
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trump administration has highlighted in both its trade and imitation policies is the issue of delegation of enormous power to the executive, enormous discretion in areas at least originally that were supposed to be primarily determined by the legislature. trump, for example in the area of trade, has started multiple trade wars with canada, with the european union, with mexico, with china, to some extent elsewhere as well. and he has done so on the basis of delegation to statutory authority, which in some cases give him almost a limited power to impose tariffs and other restraints on trade. for example, the restrictions on imports from canada and mexico and part of the country based on the 1962 trade expansion act, which gives the president the authority to impose tariffs if there are types of foreign goods declared by him to be a threat
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to national security. nobody with real knowledge of the issue actually thinks the canadian steel imports are a threat to american national security, but at least it is currently written and understood. so far, the courts have been upholding this action build litigation over this and other trade action continues. there is a possible escalation of the trade war with china, which if it happens, the administration said it may base it on the 1977 international emergency economic powers act, which has an almost equally brought sort of delegation which says that the president can impose various trade restrictions if there is an unusual or extraordinary threat to among other things the economy of the united states. and in all of these areas, there is actually pretty broad consensus among experts that these trade wars are harmful to the economy. they are also harmful to our foreign relations.
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but trump has been able to do a great deal of damage in this area already with only modest pushback by congress. certainly not much in the way of effective pushback. there is a similar story to be told immigration policy, where for example the president has exploited the statute from the 1950's which gives the president the power to execute any aliens that he "finds to be detrimental to the interests of the united states." this is a statute that was cited to justify the travel ban. notice that he does not have to prove that these people actually are detrimental to the united states. he just has to assert that they are. in this case and some of the trade cases, there are serious arguments. in some instances, trump has exceeded even the very broad authority he has been granted that so far lower courts have ruled out for instance in some of the border ball cases, for example, which are about immigration, but even so, the very fact that there are
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possible arguments in many of these cases, that it is within the scope of delegated authority should itself be troubling and is a real breach in the system. the whole point of separation of power as some of the previous speakers described is to prevent any one person from wielding unconstrained power, particularly in broad areas of policy, like trade and immigration. that has been significantly breached. moreover, i think the problem here is unlikely to be limited to just one person, donald trump. as egregious as his personality may be in many ways, what is going on here is rooted in broader trends toward nationalist populism on the right. in the case of trade, at least also to the kind of anti-trade populism on the left. so the temptation to abuse these
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powers is unlikely to be limited to just one person. and the harm done is likely to be very significant. it has already been pretty great under trump. many many thousands of people have been either deported or excluded from the u.s. without any genuinely good justification, and that has caused enormous harm to those people. but it will also cause long-term damage to the u.s. economy. the same thing is true on the trade front, where there is a broad consensus among economists that the trade actions have already done great harm and a continuation of similar policies will do more. are there remedies for this? i think one obvious remedy on the immigration side is to overrule cases like the travel ban and other similar decisions, or at least limit that. i do nothing it is likely the supreme court will do this in the near future. however, it is a life and contestable issue. more than in the past, i think
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there is some prospect. on the delegation side, there is the possibility of a stronger nondelegation doctrine, which the court ironically in the content of the trump administration led by the conservative justices may be moving towards. also, in both the trade and immigration areas, ideally congress should reassert some of its power. but the are both institutional and political obstacles to do so. congress is reluctant to constrain the president when he is of the same party as the party that controls that house in congress. while ideally they should care about their institutional authority, they often don't. i wish there was a better quick fix for these issues. but i fear that it is going to be sometime before we can fully handle them. at least i hope more people will recognize that these are serious problems and that they do transcend this one particular administration. thank you. [applause] victoria: thanks for having me. david put together an expert in every panel because we are
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actually not repeating each other. i'm going to talk about the cases that are currently pending in the courts about president trump and congress. i'm going to talk about them because i think they are very important. and they have been to put it not particularly eloquently mushed together with other cases that really are much more evenhanded. the basic theme here is these cases are important. that eventually at least before the election, we will see a clash go to the supreme court between the president and the
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congress. and that the president's argument, the thing he is urging and pushing forward by his lawyers depend unfortunately in my view upon a theory that has never won supreme court acceptance so that it is despite my friend -- unprecedented, to borrow a word from someone, astounding. so i will talk about the legal arguments. without regards to whether presidents in general are weak or strong, that is the realm of political scientists, or whether it is the presidents that push the limit of power, when i was in the white house working for vespers and biden as his chief counsel, i explained to him i thought president obama would lose the immigration fight. why? he had no congressional authority. i also think president trump was easily going to win the travel ban cases. the court often differs in foreign relations to the president. and then there are cases that are new, like the emoluments case. the emoluments case we do not have an answer to because no one has pushed the norms so far. you cannot call it a lawbreaking case. and then there are true threats
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i believe to representative democracy. i was thrilled he could be here to talk about the because i have been speaking out about the separation of powers the last two years to put it into perspective. if there is a true threat here to our electoral system, watch out for our elections. in 2015, newspapers in this town reported the chinese and russians were hacking the white house. this has been going on for a long time. so every citizen, including all the trump voters, should worry about this. but now for something that is in my wheelhouse that may be a little bit less worrisome. but i think i would like to point out to you because i'm not sure that with all these cases, there are now nine cases out there according to "the new york times" and then two more cases where the president is seeking to join congress. what do they mean if they are important or not? i will not talk about the details of the cases. put bluntly, they are a lot more than about taxes. the president's lawyers are
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asserting an argument here that says congress has no legitimate purpose for a variety of documents. they have made the same argument a number of cases. that appears to be the law, but not quite. for a very long time, and i know the professor will back me up on this and so will many others, for over 100 years, the court has been very clear that congress has the power to subpoena the executive branch. i can tell you, having worked both in the senate as a lawyer and in the white house as a lawyer, this happens every single day in washington. and the rules are pretty clear. those rules generally require negotiation. and most presidents seek to negotiate. why? they don't want to appear to be stonewallers. things they don't want to reveal are important to them. that has been the case at least since nixon. here is the problem with the trump arguments that i have. we know that in the george bush ministration, the argument for the unitary executive, which has
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many connotations, some of them overblown, some not, led to torture. and a memo that was written by the office of legal counsel had to be withdrawn because they did not cite the leading case. jack will smith came down here from harvard. they said, yes, that was wrong. we got the separation of powers wrong. we forgot to cite the leading case. so i would think from that, that you would not pursue something that was analogous to that argument. i mean, the definition of folly is to repeat the same mistakes over and over again. but in fact, there are sort of unitary executive 2.0. i say this with great affection. appeared many times in their society. he was the originator of this theory. this theory goes back to a case called morrison versus olson. an justice scalia's dissent. steve and many members of the
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society reviewed that dissent. it is a lonely dissent. one person dissent. in that dissent, justice scalia says, "i'm going to talk about the text of the constitution." and then he repeats the text of the constitution. but actually what he says, he cannot cite the united states constitution because there is no separation of powers provision, and that was intentional. he cites the massachusetts constitution. and then he says, "the president has all executive power." well, pick up your little book with your constitution. that is not what it says. we were fighting a monarch, remember. the constitution says the president has executive power and then it goes on to say the president must faithfully execute the laws. justice scalia has done here and
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this is the most brave example of this but it happens all the time. something called gerrymandering the text. it happens with statutes, with the constitution, and basically, one seems like one is being very serious and rigorous by taking one little word and saying, what is the meaning of that word? but the real problem is it is taken out of context. we are not looking at congress's powers, the court's powers. we are looking at one word, executive. we draw a circle around it like gerrymandering a district. we pull it out of the constitution and add something to make the district come out one way. that addition in this case was old. it is a very significant one. that led to unitary executive 1.0. and now we have something called unitary executive 2.0. some of this is about whether the president can control the entire executive branch, whether we can have a federal reserve that is independent, nuclear
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regulatory commission, some of that is inside baseball because you can fix this to spy how the president appoints people. but the theory going on in the cases that are now being litigated over taxes is a little bit different. they are saying that congress has an improper purpose. by the way, they got nixon's tax returns under 6103 because they have to see whether the auditors were performing the president or not, so getting taxes is not unprecedented. but the bigger claim is the president -- i call it presidential exceptionalism, because the president is saying, you know what? congress has no power to regulate the executive office of the president. they cannot pass the ethics laws that require all the people within the president's office to sign financial forms. they cannot pass a variety of laws. that is the argument i'm talking about. in the bizarre case, the deutsche bank case.
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i have never seen that argument before. in all the cases. they have gone up and down pennsylvania avenue. as far as i can tell, this is simply unitary executive 2.0. it will come as a shock once people realize that the president in the constitution, right, is not separate. you cannot just polar at the executive. you have to look at the whole document. it is not some vague holistic sense. it is in some sense of the fact that we have known for many years that they share powers, and that is obvious. that congress has since the first congress created the institutions of the executive. that they fund them all. they can defund the executive office of the president tomorrow if they can get it past the filibuster, which they can't of course. but in theory, they have the power. it is misleading simply to look at one part of the constitution.
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it is also misleading because in fact these briefs do not recognize that if you worked in the office of the president, you know how highly regulated you are. this is my presidents come in there and say i thought i had power, but not so much. pick up the phone. all the things about using personal phones. spent a lot of time on personal phones when i was in the white house. their presidential records. texts are presidential records. think about picking up the phone to have a conference call. uh oh, cannot do that. then you've got things like foya. uh oh, judicial law. they will repeat any email. cannot email anymore. then there are lobbying restrictions. there are also felonies. someone went to jail. and then congress had to pass a special law to make sure sexual discrimination and no sexual assault in the executive office with a president. but there are regulations. what disturbs me about this
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argument is there is really a rather lack of experience that shows in these briefs about how traditional this is so that the president's right about the tax returns, he is right that congress cannot regulate the executive office of the president. a lot of laws. my prediction is because the district court made a very quick ruling, there is a case in the d.c. circuit. those cases will be cited before the election. it is easy. not hard. travel ban, trump should have won. this is easy. the question will then be whether we see a clash between the president and the court. so watch your legal news. thank you for having me. [applause] david: i want to thank you all.
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i want to thank all of our speakers for some very stimulating and informative perspectives. i just want to ask them a few questions following up, and then we will have some time for questions from the floor and people who want to ask a question should go to the mic, one of the microphones. first thing, this is a kind of unimaginative literal minded question, but i think it is a necessary one. rick has talked about a looming crisis in the 2020 election possibly. henry has talked about things that authoritarians do and has argued that president trump is not doing those things. but can we agree on a definition of constitutional crisis? can we know when we are in one or when we are not? you want to take that?
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[laughter] josh: everyone is looking at me. i'm not sure why. i'm not sure there is a great all-purpose definition of constitutional crisis. i might favor a definition that suggests we are on the brink of constitutional collapse. there is a real risk that our system will fall apart. but then the second half of your cushion, can we know whether or not we are in one, i am not sure. it may be the sort of thing that is largely visible in retrospect so i am not sure that the language of constitutional crisis is entirely helpful, but others may have different views. ilya: there is a large academic literature on constitutional crises. i'm not going to try to summarize all, but it is used to distinguish between two kinds of crises. one is where the system itself is on the brick of collapse and might descend into authoritarianism or civil war, some other different system of
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government. a second might be the system is not at the book of collapse, but there are severe problems or severe holes in the system, which it is not addressing well and therefore some of the volumes of the system is supposed to be based on are being seriously violated. my own view is we are not in the first kind of constitutional crisis where the system is on the brink of collapse, say like we were on the brink of a world war, but we have element of the second type. i think the situation with trade and immigration represent egregious violations of the values the republic is supposed to be based on. and also holes in the system that were not originally intended but have developed. there might be other areas where
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we have similar erosion. an interesting question is, if you have enough erosion like this in enough different areas, could that be said to be a kind of slow motion collapse of the system even if there is no one big precipitating event? jack balkan of yale discovered the concept of constitutional rock. i think we may be having some of that, even if we don't have a crisis in the first sense of the word where the whole system is about to collapse. richard: one thing i say is a subset of constitutional crisis is where the president would defy the courts. one example of this recently was the case over adding the system over the question on the census. the supreme court narrowly said the question could not be added to the census. there was a question whether that opinion gave room for the government to try again. but there was a question which many people took seriously about whether the president would order the census department to
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include the question anyway. and he didn't. he backed down. he gave a speech in the rose garden where he declared victory and essentially folded his cards. i think that was an example where if he would have ordered a form to have been printed and distributed anyway despite the court, that kind of clash between the judiciary and the presidency would have been a constitutional crisis. victoria: i agree with professor hasen and on this. after the appellate courts come down and say you must give up your taxes, if he refuses to provide the financial information, that will come close to a constitutional crisis. not because the separation of powers have not worked because there is no answer at that point. the courts do not have an army, and we have seen this before in history. i think i would be a crisis. but i also think it would be a crisis if our election does not come to any conclusion and it would be a concern about the legitimacy of that election. generally i don't talk about constitutional crisis because again we will not know it probably until it blows up in
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our face like hanging chads in south florida. but i think the separation of powers under stress but it is a stable system. it is built to be stable. it causes problem with equality, but it is built to be stable. it is under stress, but it is not in crisis until these things happen. david: well, i want to weigh in on that. ok. i know the question. you often hear the distinction made that the united states has a constitution, a written constitution, i believe the oldest one still in force, and the u.k. the country we have the longest history with has an unwritten constitution. they are not doing so well right now. they have a lot of controversy that they are dealing with. but another view is the united states also has had an unwritten
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constitution in the form of norms of political behavior and that this has become highlighted by president trump and possibly even before him some previous actions that the violation of these norms has made them more visible, has made us think about things that we took for granted. to what extent does if we don't want to talk about constitutional crisis in one sense that we have not refused, rejected a court order, to what extent is this right? can we view norms is an unwritten part of the constitution? can there be a crisis of the extensive violation of norms? matthew: i don't think i would label that a crisis, but i would definitely label it bad. there are various states a democracy can exist in.
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norms help buffer those very estates from being good or bad. if you think about a comment analogy people use, a work to rule scenario, that is going to be harmful for the company. the same would be true as a nation turning away from norms to government or enforce powers to rule a scenario. in the new york state legislator, most of the norms of washington don't exist and the legislature carries on just fine at a basic structural level. i think the norms are helpful and watching them he wrote is bad but i do not think it is a crisis. the norms of the constitutional hardball that has a ways existed. in gerrymandering, that has always been the case. i do not think the sum total of these norms is good democracy and then constitutional collapse. henry: the most important norm that i think underwrites any liberal democracy is the idea of the position, that is the idea
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that is unique to liberal democracy that you can be strongly opposed to the existing government and engage in what and other days would have been considered sedition, but yet you are loyal to something higher, which is the idea of the nation. what erodes that is the sense that the opposition is not legitimate. that in some way, the viewpoints or the arguments advanced are so beyond the pail that they cannot be permitted to win. i think that is something that has been happening in this country for a long time. we have data that shows the share of partisans who say they hate the other side has risen dramatically. it is roughly equivalent between democrats and republicans. the share of people who say that if the other side wins, it is not just bad for the country, but a threat to the survival of the country has risen.
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it is roughly symmetrical, according to the pew data. that is certainly not something that's certainly not something donald trump has helped. ut some preexisted him and that's the norm i am most concerned with. if both sides see the other as ill legitimate it doesn't matter how technical your elections are, sound they are, the outcome themselves will be viewed as ill legitimate over time. >> i think the erosion of norms is not itself a constitutional crisis but can create the conditions for it.
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focused on the presidency. so it creates the conditions where a constitutional crisis can occur. >> i like the way this discussion has proceeded because people are talking about specific norms. i think it's important to remember that norms can be evil and destructive. the political theorist said that democracy is an ongoing process of norm erosion. for example a norm that has eroded at least somewhat, in say the last year or so, is that there used to be a norm that in politics you didn't call people racist unless they
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are almost wearing a clan hood. you didn't call them racist because it was an insult and that was inappropriate. i think we've slowly started to break down that norm and that has been a good thing. now there are other norms that are breaking down as well and i think those are bad things. i think the key is to focus on not norms in the abstract but whether we like those or not. >> i certainly agree not all norms are good and we think of norms that have diminished or broken down. like the norm of male dominance in the household or the norm of white supremacy. but now we diminish. at the same time there is a link between them and breakdown of formal constitutional rule and protections for liberal and democracy because those forms
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of rules themselves don't depend on norms and trump's rhett orkle attacks on these norms, freedom of the press, separation of powers, and so forth are important because able to take re action even though if he himself doesn't take the action, even perhaps if he doesn't always mean what he says. even if he doesn't take himself seriously, i think he does mostly mean what he says. t p even if he doesn't his followers do. and if somebody can become president and say these sorts of things and then perhaps be reelected and continue to say them that makes it more likely that somebody in the future, will take these course of action. -- not all leaders share
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that, he could be seceded by somebody who wants to do these but is more skilled. >> a small point from experience. there is a set of precedence of memos handed down. typically think when they're in a legal no-man's land they will rely on this. one who has that experience becomes very worried about that system because generally you insulate yourself from attack if another president has done that. they find out oh that's the norm you're operating on in this circumstance. for those who know something about those norms we've been somewhat astonished. i'll echo what others have said. i'm much more worried about the wall situation than i am the
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norm. a real clash between the institutions rather than the fact that maybe in some cases they're not going to follow what obama did in a gray area. one point of view is no longer an effective part of the constitution in a practical sense as long as the president has 4 or more copartners in the senate that impeachment is an mpty ritual.
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in israel the prime minister can be indicted and the previous prime minister went to prison. but we have an opinion from the office of legal counsel that the president cannot be indicted while in office so we may have legislative checks in a policy sense but are people -- do people feel that the system in this sense works and that the checks and balances in the ultimate sense are still there?
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>> i don't think impeachment is completely useless. it is effective. where a president contemplates doing something where there's broad political consensus that is unacceptable. that's what happened to president nixon, he was forced out. at the same time i do worry about there is a lot of stuff that is violative in both the
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laws and norms. presidents have gotten away of doing with little or no threat of impeachment. i think there have been several troubling examples in both the obama and trump administration. for example starting a war without congressional authorization in libya, his office of legal counsel said it was illegal and he did it anyway. i won't go through all the incidents but one that should be particularly troubling is he didn't disoh bay the court i would argue one he did. the court ruled family separation policy was illegal and the separated children have to be reunited were almost a year after that. many hundreds have not been. the administration doesn't formally claim disoh baying, they're saying it's difficult or hard and hard work to undo
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what we did. but it is defiance of a judicial judgment and an important one. talking about children abused and separated. not talking about some minor technical issue. not only no impeachment but not even talking about impeachment nor is it clear trump suffered political damage. so i do worry in situations where the president's base sticks by him as obama over libya, here over family separation, many illegal, harmful, and immoral actions can be gotten away with. > impeachment can be tremendously powerful even in the absence of any thought that it might lead to conviction.
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this is even -- i think there's evidence this is stronger when those investigations are framed as impeachment. if you look at the polling during the nixon investigation the two sort of sharpest drops began n right after it the hearings on impeachment. so i think the way that impeachment hearings sort of focuses public attention combined with the natural tendencies, are a real thing that the process does even if there's no hope or thought of getting a conviction. >> i think that the -- if donald trump did exactly the same things now than 20 years
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ago he would have been impeached and could well have been convicted. this idea that we have this separation of parties not powers. in an era of hyper partisanship it's much more important that the president has allies in congress of the same party than thinking about this as a fight between congress and the presidency. t may take some erosion of the hyper partisan nature before impeachment becomes a stronger tool. >> the ultimate check is elections because that's the choice that pelosi has. that's why i emphasized that's why i'm most worried about the nature of the next election. we know impeachment being a preemptive threat but the norms have eroded and they will because part of jerry
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mannedering has been amplified the only check that's left is the election. >> thank you. let's turn it over for a few quick questions to people who have been waiting. >> i just want to address the separation of powers issue and to look at two examples. on the one hand in terms of separation of powers issue a he ident at one time said would govern with a phone and a pen. if president trump would have used that terminology what the reaction would have been. on the other side a president who nominated a supreme court
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justice and the senate majority leader refused to take it up and an entire year went by and nothing was done and now the narrative is if it does come up with an election year we'll do it. from a separation of powers point of view just to look at the contrasting examples and maybe to just examine that a little because there was some discussion about norms of behavior and other things and just to put the politics and the reality of politics. hanks. >> i think that the separation of power system thinks about the relative power of the actors but ultimately how the ublic's sphere responds to things. so certainly when lonl was not bringing up the supreme court
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nomination in the senate he was making a gam bit in a democracy that the public would not punish them as much as it was worth to them. it's not that surprising to me. i don't think you can think about the players simply fighting against each other sort of using the tools they have. what could president obama have done? i don't know. but what about mcconnell? i don't know. mcconnell was correct in predicting that president obama and the democrats were not able to generate the immediate public support to make that harmful. i think downstream maybe the democrats have actually won in a long term by villifying mcconnell and the judicial strategy. it may pay off in the longer game. but it's important to remember that separation of powers don't occur in a vacuum but resting upon a public sphere.
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>> i think this is an area where it's useful to distinguished between constitutional rules and norms. although there's a few people who have argued otherwise there's very little doubt to what senator mcconnell did was constitutional in the sense that the senate has the authority to reject presidential nominees, the authority to come them through to vote no less than barack obama said that when he tried to filibuster alito in the bush administration. i also think there's no constitutional requirement that the senate hold hearings on judicial nominees. indeed, i believe until 1916 or 17 there weren't herings on zwrirble nominees. so on the on the other hand hand you could argue that by refusing to hold hearings that connell was bi violating a
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longstanding norm and you could reasonably argue whether it was a good or bad norm. he could point out that the democrats blocked the holding of hearings on lower court nominees in the bush administration but maybe it's a more serious thing and worse to not hold hearings. this is an area where the norm is somewhat contestable and i can understand some of the outrage that democrats felt even though republican ks respond what democrats in a time said that they might they similarly if control the senate and a republican got to nominate a supreme court justice. but there is a difference between saying you might do something like this and actually doing it which mcconnell did. so it's a norm violation than constitutional rule. >> i agree but i do think what you have to understand is since the early 2000s it's norms of
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coment because part of jerry man terg have disappeared. without that hearing about that your institution and you're just carrying about the party there's really nothing -- there's no reason for mcconnell not to play hard ball if he thinks he can get away. the only thing we know about separation of powers is not having to define the power constitutionally. congress has got a place for it. they just don't work. what we know is that these actors have different constituencies. >> i think one really brief question. i wish we had time for more. >> what are the chances that the constitutional crisis comes more in the form of social
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disorder somewhere in the country where the president has to make a hard call about restoring social ord center what are the mager institutions you think about there? 350 million guns, a lot of anger. what if it happens there and not in washington, d.c.? >> i have one word. federalism. state. national guard. we have a federalist system. and when we see attorney generals fighting against obama, against trump. so the russians might have attempted to sow disorder in maryland, in baltimore. they have targeted people. you have to be prepared for that. and it's sad. i never thought i would be saying that, i've studied this for 25 years. but i do think -- look we have
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local politicians running for president. there are governors capable of doing stuff. they control the national guard independently. so there are back stops and we know from the movements involving sanctuary cities that cities, localities, governors, mayors, they're executives and they have power and even regents now have regional power like the west for example. so that's where i would look for a push back. >> on that note i would like to thank our panelists for a stimulating discussion and our audience for their patience and couple questions. thank you all for coming. [applause]
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