Leon Scioscia:  
Good afternoon, everyone.  For those of you who don't know me, my name is Leon Scioscia, and I am with the Law Library of Congress, and it's a pleasure to have all of you here today.  

We are filming this event for later broadcast on the Law Library's Web site.  

It is now my honor and privilege to introduce to you the Law Librarian of Congress, Dr. Rubens Medina.  Thank you.   

[ applause ] 

Rubens Medina: 
Thank you very much, Leon.  

Is this thing working well?  Everybody all right with it?  Very good.  

Let me join Leon in welcoming you to this, what we have decided to call Book Talk series.  We hope that more and more legally minded and sensitive people will come and share with us their thoughts, their ideas of law, the U.S. Constitution, our position around the world and in those areas that we are concerned so much in the area of law and justice.  

Today it'ss my very special pleasure and privilege to introduce to you a former representative from Oklahoma, Mickey Edwards.  Mr. Edwards who holds --  

[ applause ] 

Mr. Edwards holds a B.A. in Journalism from the University of Oklahoma and a J.D. from Oklahoma City University School of Law, served with distinction from 16 years on the House Budget and Appropriations Committees and was the ranking member of the Appropriation Subcommittee on Foreign Operations.  While in Congress, he was a member of the House Republican Leadership and served as the Chairman of the House Republican Policy Committee.  

Mr. Edwards was one of the three founding trustees of the Heritage Foundation and was the National Chairman of the American Conservative Union.  Along with former White House Counsel Lloyd Cutler, he served as co-chairman of Citizens for Independent Courts and co-chaired Citizens for the Constitution.  Mr. Edwards has also served as a co-chairman for the Brookings Institution/Council on Foreign Relations and is on the Board of Directors of the Constitution Project.  

He has taught at Harvard University's Kennedy School of Government at Harvard Law School, as a visiting Professor at Georgetown University and on the faculty of Princeton Woodrow Wilson School of Public and International Affairs.  He's also a Vice President of the Aspen Institute and Director of the Aspen Institute-Rodel Fellowships in Public Leadership.  

Mr. Edwards has been a regular commentator on NPR's All Things Considered, and his weekly newspaper columns have appeared in the Chicago Tribune and Los Angeles Times.  

Not only he is well-known public speaker on college campuses but also is well-known author of many articles and books, the latest being the topic of today's discussion.  I am convinced that as a thinker, teacher and author it is place a strong interest on the U.S. Constitution, and today we'll hear him touch upon those subjects within the context of his latest work.  With everything he does, I am not sure now how we were able to get Mr. Edwards to appear here today and offer us his very, very much interesting thoughts that are emerging out of his latest book.  Mr. Edwards, please.   

[ applause ] 

Mickey Edwards: 
Do I need to stand by this mic?  Well, the answer to your question, Dr. Medina, is that any time you or Leon, you know, ask me to come do anything, you know, I'm glad to do it because I really admire what you've done at the, at the Law Library and what you're trying to do, you know, at the Library of Congress.  

I am delighted to have the chance to be here because if I had outvoted the people at my publisher, it's Oxford University Press, and had I been able to win the wrestling match with them, the title of the book might have been a little different because we call it Reclaiming Conservatism because there is a piece of the book, and it's a significant piece, I grew up in conservative politics, and it's a piece of it about how over time the priorities and fundamental principles of the conservative movement have evolved and changed into something very different from what it once was.  I wanted to talk about the Constitution because I thought, you know, the problem with the change that is in place in my movement and my party is only -- and it's not only in my movement and not only in my party, this is something that's been pervasive in a large part of our society.  A disregard for the nature of the Constitution of this government and the kinds of unique protections that it gives.  

People talk about American exceptionalism and the -- there are people who, when they hear the phrase American exceptionalism are bothered by it.  They think that it means that Americans -- that we think Americans are brighter, you know, wiser.  You know, I've got a lot of people who can point to me as an example that that's not true.  But, but what the American exceptionalism is is a system of government that is deliberately broken up into parts where the branches are supposed to check each other.  

In fact, right before the 2006 elections, because I had been very critical of what I saw as the overreaching of the President, not the first President to overreach, but I have been very critical of that, a magazine, Washington Monthly, did a special issue that was entirely on -- it was entirely conservatives writing about why it was important for Republicans to lose the election.  And I said, you know, because of what they saw as the Presidential overreaching.  I said, "I'm not going to write that kind of an article."  Not because I was defending my party or didn't want to attack the other, it was because if it requires a Congress of one party to check the President of the another party, then James Madison failed because the system is supposed to be people who in the different branches who are going to stand up, you know, for the Constitutional framework of divided power.  

Now, let me -- there was a fundamental decision made at the time our country was formed.  Fundamentalist.  It's not -- these words are not in the Constitution in this form, but the decision was are we going to be subjects or citizens?  And historically in Europe, in Asia you had rulers and you had their subjects.  They said, in this country the difference is, you know, when you're -- when it was ruler and subject, the ruler makes the decisions and imposes them on the subject.  When you are a citizen you impose the rules on the government.  That's the kind of a system that we're going to have and they were so serious.  

I'm not going to -- I certainly don't diminish, and I know nobody in this room would diminish the very real kind of a threat that we face in this country today in terms of security, in terms of having a stateless enemy that wants to destroy us.  And it is a great threat.  And we have, unfortunately in the past, you know, and I'll mention this, we have had a tendency sometimes to overreact to threat.  We did it with the Alien and Sedition Act, you know, we did it with throwing Japanese Americans into internment camps.  You know, we do that from time to time, but as great as the threat is, as likely the possibility that some Americans may continue to lose their lives because of attack by Al-Qaeda, the attack, the threat to the United States as the United States is not as great today as it was when the Constitution was written and both Britain and France, had they decided to focus their attention on us, could have strangled this country in the crib.  And even with that threat, the ability of these two superpowers of the day to step in and destroy America in its infancy and George Washington, a unique character about to assume the Presidency, even in those conditions the founders said, nonetheless we are not going to give to the President of the United States the kinds of powers that have traditionally been in the hands of rulers overseas.  And that is why, you know, we have tried to constrain a Presidency that doesn't want to be constrained, a Presidency that historically has tried to get out of the, the limits on what it could do.  

So if you picked up this book and opened it to the very beginning, this wasn't the beginning of what I wrote, but I went back and changed the beginning to this particular example.  A while back I testified before the House Judiciary Committee and it was a hearing -- I walked in there knowing that here there would be unanimity.  There are lots of areas where you can expect partisan division, and I can talk about that because part of my book is about how we got to this point of partisan division, and I was there and I watched it happen.  But you can expect partisan division, you can expect liberals have one point of view and conservatives another about what we should do about spending on all sorts of areas.  

But I walked into that room and testified.  Honestly, truly, you can call me naive but truly believing that this was a time when there would be unanimity, that the members of Congress would be one kind.  And it was because it was a hearing called in response to the President's issuing of signing statement.  Now, historically, Presidents have issued signing statements.  George Washington did, and when they issue a signing statement what they say is either this is the greatest piece of legislation ever and I get full credit for it, it was my idea, dreamt it up in the middle of the night.  Or they say, this is a bad piece of legislation, I don't like it very much but I have no choice, I have to sign it.  

When a President signs a bill it becomes the law.  It is binding on every single American.  It is binding on you, it's binding on the people who fill your car with gasoline, it is binding on the people who come in and sweep out the building, it is binding on everybody, including the President.  But now there came into being a new kind of formulation which was a Presidential signing statement that said, as the interpreter of what my powers are I will take it upon myself to decide whether or not I am, in fact, you know, going to abide by the law I just signed.  

Now, the Constitution is vague in a lot of places.  It's vague, it's overlapping, it's contradictory but it is not in this area because Article 1, Section 7 says that when a President is presented a bill by Congress, he has two options.  He may sign it, which case it's the law binding on him and everybody else, or he may veto it.  When a President vetoes a bill he almost always wins.  It is virtually impossible because it takes two-thirds of both houses to overthrow a Presidential veto.  If, if a President vetoes a bill and the House votes 435 to nothing to override his veto and the Senate votes 66 to 34 to override his veto, the President still wins.  

But it does not give him the option.  So, so the odds are in his favor, but it does not give him the option of saying I will sign it but I don't have to obey it.  And by the way, this is not a partisan statement because the most famous of those signing statement problems was when Republican, now the Republican Presidential nominee, John McCain, you know, got the passage of legislation forbidding torture, and the President said I will decide whether I'm bound by that.  

Well, so I walked into the hearing -- back to the beginning of the book.  Walked into the hearing -- I may ramble, but I don't forget about the book, I promise.   

[ laughter ] 

I walked into the hearing knowing that this was not a partisan issue.  This was an issue of the Congress standing up for -- by the way, not Congressional rights.  The Constitution does not give the Congress rights.  It gives the Congress obligations, responsibility, duty.  And I wrote an article once in which I stated that if the President was guilty of [ inaudible ], and you can certainly decide for yourself, you know, whether that was the case, that the Congress [ inaudible ] by not doing it's job of standing up to the executive branch.  

So I walked into the hearing and I found, and you can decide for yourself which side was out of line.  But they were not in agreement.  Half of the members of the committee thought there was nothing wrong with a President signing a bill and saying he was not bound to obey it.  One of the people who was there said to me, I actually name him in the book, but I won't here, but one of the members said to me, well, okay, but it's only rhetoric, right, it's hyperbole.  You know, how do we know that he's not going to obey it?  

So the General Accounting Office took the year of 2006 appropriation bills and picked at random 19 items in the [ inaudible ] in which the Congress had directed the executive branch to perform a certain act, and in one-third of those cases the executive branch had simply disobeyed.  Simply ignored the Congress.  And part of that was because you had two things coming together.  Number one, you had the issuing of the signing statements; and number two, a proclamation of the idea of a unitary executive which essentially said, "Not only do I decide what I am bound by but everybody in the executive branch of government works for me and you can't -- you, the Congress cannot tell them what to do.  You can appropriate the money, you can create the program, you can tell them this, this is what the program is designed to accomplish, and you can say, here's where you get in trouble, and you can say, and the department will report back to Congress on its findings or its, you know, what it has done, and that part that you don't have to do."  And the GAO found that, in fact, they were just ignoring the Congress.  I fault the executive; I fault the Congress which has been extremely timid, extremely weak about standing up and asserting its own Constitutional obligation.  

Another case came up more recently so that was kind -- now that's ancient history, right, a year ago, ancient history.  So let me jump to what has happened more recently.  Again, thankfully, we get some issues in this country that are not partisan.  The Justice Department dismissed a number of U.S. [ inaudible ].  The Congress, as is its Constitutional obligation, decided to have a hearing to find out whether or not there was anything untoward that act and set about doing it the way Congresses do which is to bring in witnesses and listen to them and get honest testimony about what happened.  And one of the people who was called was Harriet Miers who had been the President's legal counsel.  Another one had been Josh Bolton, who had been the President's Chief of Staff.  And politely, I think, I hope, issued them an invitation to come talk to us and tell us what happened.  They, they declined.  They were busy otherwise.  And so the Congress had no choice but to -- the committee, but to issue a subpoena.  

Now, you know, you all know the law.  I mean, that changes things, right?  There's a difference between, you know, if you don't mind would you come by?  You know, and here's a subpoena, you know, come here.  

Well, they ignore the subpoena.  And here were the grounds for the subpoena, for ignoring the subpoena.  Executive privilege.  Executive privilege is a valid, legal theory, which I have no problem.  It protects a President in his conversations with advisors to make sure that he is getting candid advice.  The problem here was both Miers and Bolton and the White House, as a general rule, said that there were no conversations between the President and these people about this issue.  So what now is happening was that executive privilege protecting the President was now expanded to say that any time a member of the White House staff talks with another member of the White House staff, you know, that that constitutes executive privilege or you can claim executive privilege.  

And so, I mean, here there are some lines that are so, you know, so clear.  So I knew, I was ready and I knew what was going to happen.  They were going to censure these people, you know, for failure to -- you know, issue contempt citations to contempt of Congress.  Nearly half the members of Congress walked out rather than participate in that debate.  

All right.  Why am I telling these individuals?  It's not to pick on one party or another.  As Dr. Medina pointed out, you know, I was in the Republican leadership, and I basically agree with most Republican political policy.  But we have reached a point here, and I don't have a great detail of confidence that this is going to change, you know, after November if we have a Democratic President and a Democratic Congress.  You know, I'm not trying to say it's one party against the other, but there has been a growing tendency on the Congress of the United States to defer to acquiesce to the Presidency on issues that are clearly within the purview of the Congress.  

Dana Milbank, you all read Dana Milbank, he's a great writer, the Washington Post, wrote a column in which he was discussing a trip that the President was getting ready to take overseas, and of course, when you -- when the President goes overseas, you know, he has whole new responsibilities of his negotiating in terms of his, showing the American flag, expressing a willingness to stand with a government or to oppose a government.  And so Milbank wrote that for this trip that the President was stepping out of his one role as the head of government to now function in his other role overseas as the head of state.  And, you know, then there was a discussion about what that meant.  Well, there's a problem with that, and it has nothing to do with what the President says overseas to anybody.  The President is not the head of government.  In this system of government the President is the head of one of the three branches of government, and that has been increasingly lost.  

Okay.  So that's one of the themes in my book.  That's one of the things I talk about in the book.  Very quickly -- I told Leon, you know, when, when it's time for me to shut up and, you know, go to the Q and A he's supposed to go, you know, like nod gently and just let me shut up.  

But another of the themes, something that concerns me a lot, and maybe I'm sappy, and I may be sappy, but I mean, I really love the Congress of the United States.  The day I was sworn in, you know, coming from a family of immigrants, you know, we, we had no money, we didn't know anybody with money, nobody with connections.  And the day I was sworn in, you know, my mother said, "Well, who are we to have a Congressman in our family?"  And I thought, you know, that's what's great about America is that if you knock on enough doors, you know, you talk to enough people and you [ inaudibkle ] believe in, you can become one of the people who writes the laws of the country.  So every single day, every day for 16 years when I would come to the Hill and I would walk up the steps to the Capitol, I would be so proud.  So for the Congress mean that much to me.  And something was different there.  I mean, you know, I hope this doesn't mean I've just become really, really old, you know, where I'm at the point where all I talk about is how much better it was in the good old days.   

[ laughter ] 

But I don't know, and some of you I'm sure know David Obey, David Obey, Chairman of the House Appropriations Committee, liberal Democratic, really irascible, cantankerous, you know.  Well, you know [ unintelligible ], you know.  But Dave was my friend, he was the chairman, and I was the ranking member of the subcommittee, and we worked together, and we'd sit in his office or in my office, and we would work things out, and that's the way it was done in those days.  And what's happened, the Congress depends on individuals the day the polls close saying, "I was a candidate, now I'm a Congressman, and the job changes from partisan warfare to governing the country."  

And that transition no longer happens.  What happens now is members go from candidate to candidate.  And not merely their own reelection but to defeat the other party by any means, you know, whether it's pressuring K Street -- I don't know why they say that, but the lobbyists are on K Street, but you know, pressuring K Street, you know, to kick in more money to knock off people in the other party, bringing wedge issues to the House floor in order to force a vote that has no chance of passage but only has one purpose, and that is to cause a particular vulnerable member to cast the vote that will get him in trouble, or her in trouble with voters.  

And, and we have now got -- so I talk about this in the book, too, and I'm not going to go into detail unless there are questions about it but I describe exactly where that happened, how it happened.  I was there in Washington.  

And the Congress is beginning to lose its role in American government.  Both because it's [ inaudible ] and people [ inaudible ] and because it's no longer willing to stand up and do it's duty in terms of limitation on executive [ inaudible ].  In the book Great Lion of God Joseph says to Paul is there another Chinese [ inaudible ] that is more to be feared than a tiger?  Well, government out of control, government of some ruler proclaiming authority beyond the limits of the Constitution is to be feared.  It is to be feared.  And even if, if you were a Republican as I am and you tended to agree with the policies of this President, there would be the danger, there would be the danger you agree with the policies of this President.  You know, the next President with the same powers, you know, might do something very different.  

I don't know how many of you remember Richard Neustadt, who was [ inaudible ] Harvard who talked about Presidential power, Presidential leadership, and he talked about the need for a strong President.  And I in my book talk about the need for a strong President.  But there's a difference between a strong President and a strong [ inaudible ], and the difference is President is who inspires, who leads, who encourages, who rallies, who unites as opposed to one who just claims powers that were not given to him.  S

o I wrote this book because I think we're at a point of crisis.  We're -- and it's not a crisis of bombs coming over from Al-Qaeda.  It's a crisis of whether in order to stop that from happening we are willing to stop being America as America.  Continuing to [ inaudible ] but no longer be the kind of a society we were meant to be.  That escalating problem is why I wrote the book.  And it is the love, the reverence for our Constitutional system of government that has [ inaudible ] to reclaim.  

I call it Reclaiming Conservatism because we're not going to get there until we reclaim on the conservative side a reference for the Constitutional principles.  I'm going to leave it to those of you who are Democrat to write the book, you know, Reclaiming Liberalism, you know, which also needs to be written, and I'm not qualified to do it.  

[ end of transcript ]

LOC - 080503law1300	7	4/28/2010