Presidential Power in 2017 | UW School of Law

Presidential Power in 2017 | UW School of Law

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[MUSIC PLAYING] KATY SEWALL: Hello. Good evening, everyone. I’m Katy Sewall. I’m Town Hall’s
Program Director . And on behalf of
Town Hall, thank you for coming to tonight’s program
about presidential power. We’re so glad you’re all here. This event is part of
our civic series, which is brought to you with support
from Boeing, the True Brown Foundation, Real
Networks Foundation, and with the media
sponsorship from KUW-FM. [APPLAUSE] Please join me in welcoming
Dean Kellye Testy. [APPLAUSE] KELLYE Y. TESTY:
Well, good evening. And thank you, Katy, for
that kind introduction. And thank you for
inviting us to Town Hall. We also want to thank your
entire team, especially Ashley, for all the help in putting
this program together. And the University of
Washington School of Law couldn’t be any prouder
to be here tonight to talk about the rule of
law in our world right now. Our nation is one committed
to the rule of law, which is designed to promote
some stability during times of transition and change and
indeed, to support peaceful, a prosperous, and a
very just society. And that’s the goal
that we have as lawyers. And at UW law school,
we educate leaders for the global common good. That’s our mission. And while our reach is
certainly around the globe, our feet are firmly planted
in Washington state. And we aim to be of
service to this community and very much value our role
as a public law school devoted to assisting our community
with learning about issues that matter. So tonight, we’re very
pleased to be here to discuss a
nonpartisan issue that is the top of every
newscast and above the fold in every newspaper. And that topic is, what
is within the scope of the authority of a president? Now, I am as
interested as you are to hear from my distinguished
colleagues tonight. And so I want to
introduce them to you. To my immediate left is
Professor Lisa Manheim. And Professor Manheim will
be the moderator tonight and will join me at the
podium in just a moment. I want to let you know that she
is an expert in election law, so pretty on point for tonight. And in addition to
previously practicing law, Professor Manheim
served as a clerk to Justice Anthony Kennedy
of the United States Supreme Court. Moving down the row, I want
to introduce Professor Kathryn Watts, who holds the
Jack McDonald Endowed Chair at UW Law School, and
is one of our nation’s leading experts on presidential power
in the administrative state. She’s been a little busy
lately answering questions. Among many professional
activities and honors, I also want to let you know
that Professor Watts was also a clerk on the US Supreme Court,
serving for Justice John Paul Stevens. Next to her is Professor
Trevor Gardner. Following his graduation
from Harvard Law School, he worked as a trial attorney
for the District of Columbia public defender
service, and later obtained master’s
and doctoral degrees in sociology from UC Berkeley. He is an expert in
criminal justice, with a focus on policing. Next to Trevor is
Professor Angelica Cesario, a graduate of Columbia
Law School and an expert in immigration law. Professor Cesario previously
worked with the Northwest Immigrant Rights
Project in Seattle, and there, she specialized
in representing immigrant survivors of
violence and also representing farm workers. Next to her is
Professor Sally Sanford, an expert in health care law,
including the Affordable Care Act. Professor Sanford
began her career as a law clerk for
Judge Robert Beezer, of the US Court of Appeals
for the Ninth Circuit. She served then as an
assistant attorney general, representing the UW Medical
Center, Harborview Medical Center, and the UW’s
health sciences schools. And at the end of the line here,
last, but certainly not least, is my colleague,
Professor Bob Anderson. He is a professor at UW Law and
directs our Native American Law Center. He’s an expert in American
Indian law, natural resource law, and environmental law. Professor Anderson also
served in the Department of the Interior in
the ’90s and was co-chair of President
Obama’s transition team for the Interior in 2008. I will be back to
moderate the Q&A after our panel has
made their presentation. At this time, I’m delighted to
welcome to the podium Professor Lisa Manheim. Again, thank you. [APPLAUSE] LISA MANHEIM: So thank
you, Kellye, and thank you to everyone for coming. So here’s the question
I have for our panel. Why does it seem like
sometimes the president can’t get anything done,
but other times it seems like the president can
do anything he wants simply with a stroke of the pen? The answer lies in the
law of presidential power. And that law is confusing. That confusion, in turn, can
be frustrating for people, and particularly
for those who would like to get involved
in the process and have their voices heard. Today’s discussion is an attempt
to respond to that confusion. It’s an effort to help to
shed light on the question of presidential power by looking
more deeply into the question of what a president can do and
what a president cannot do. We hope to demystify
these sorts of laws and these sorts of
restrictions in an effort to better understand
what sort of constraints a president have. And we hope that this
discussion demonstrates the following point. While it is, in fact,
difficult to understand the legal limits on
a president’s power, that difficulty exists
because the relevant laws are complicated and not
because those laws are random or nonexistent. And as a result of these
complicated, but important restrictions, individuals really
can have influence in politics through various forms
of civic participation. So we’ll be sure to
leave a few minutes near the end of the program for
questions from the audience. And we’ll also be wrapping
things up no later than 9 o’clock. So as you think
about your questions, we would ask that you please
try to be succinct, no more than a couple of sentences. And the reason for
that is that we would love to hear from a number
of you, and also because we do have a lot to talk
about tonight. To that end, let’s
with Catherin, who is an expert in
presidential powers. Kathryn, President Trump
has been quite busy in his first two
weeks in office. Now, things that he says
to the news or things that he says on Twitter, that
does not have legal effect. But by contrast, when he
communicates through what are called executive
orders, that does have legal effect,
or at least it can. And one big recent
example of this is the executive order
that President Trump issued on Friday, which
imposed the travel ban. So this all leads to
the question, Kathryn, what is an executive order? And why is the president
allowed to issue them? KATHRYN WATTS: Sure. Thanks, Lisa. Yes, the president has
indeed been very busy signing a number
of orders, orders that touch on everything,
from building a wall, to putting a temporary freeze
on regulations in our country, to instituting the travel
ban that Lisa just mentioned, to freezing federal hiring. So what is an executive
order exactly, Lisa asked? Our government, it’s
divided into three branches, as we know. There’s the legislative
branch that makes law. There’s the judicial branch
that interprets the law, when deciding cases. And then there’s the
executive branch that enforces and executes the law. And sitting at the very top
of that executive branch is the president. He sits atop a pretty
massive executive branch. It has hundreds of
federal agencies in it. It has more than 2 million
federal employees within it. And about 4,000 of those
are political appointees. So at its essence, an executive
order is a communication tool. It’s a signed document
that the president can use to communicate
his wishes to those that work underneath him
within the executive branch. It’s a communication
tool to ask officers or to demand that
officers do something or stop doing something. At its heart, that’s what
an executive order is. And they’re not new. They’ve been issued throughout
our country’s history. All the way back to
President George Washington, we saw orders being issued. Most of them are
directed internally at internal government affairs
or at government officials, and they don’t have a direct
impact on external actors, on private individuals. A good example of that,
when President Clinton entered office,
President Clinton signed an order that put
into place various ethics standards to govern his
political appointees. And President Trump recently
signed a very similar ethics order that also put into
place ethics standards to govern his
executive officers. So these kinds of orders,
orders that govern and speak to executive officials
and their actions, they’re really commonplace. And for the most part, they’re
not terribly controversial. But much, much
more controversial are those orders that do have an
impact on private individuals’ lives, orders whose
impact spills over into the private sphere. One particularly
controversial example, a good example, I
think, of such an order, are memos that were issued
during the Obama administration in the immigration
arena, memos that tried to protect
undocumented parents and children from deportation. Another example of something
more on the controversial side is the travel ban that
Lisa, you just mentioned. And so another piece
of your question, Lisa, was not just what
executive orders are, but what gives the
president the power to issue these
orders that can have such significant impact
on people’s lives, with just the stroke of a pen? The answer, I guess not that
surprisingly, as it often is in the law, is it depends. Sometimes it’s the
Constitution that gives the president that
power, and sometimes it’s Congress via
statutory delegations of power, where Congress hands
away power to the president. But regardless, our
president in our country is not a king, right? He doesn’t have a magic
make it happen wand. Instead, all of his
executive orders, if they’re to have
a legal effect, they have to be grounded in
some sort of legal authority flowing from the Constitution
or flowing from statutes. And if they are based
in a legitimate source of legal authority, then
they’re legally binding. They can have the same
legal effect as statutes. LISA MANHEIM: So are you
saying that the president can, in effect,
change the law simply by signing a piece of paper? KATHRYN WATTS: Yeah, yes. In effect, even
though I just told you the legislative branch is
the branch that makes law, the president can make law, too,
when he’s been given the power to do that, when Congress
has handed him that power or when the Constitution
vests that type of power in the president. To make it a little
bit more concrete, maybe I could mention briefly
three concrete examples of orders that President
Trump has signed and show you how they’ll
have different effects. And the reason they
have different effects is because of the legal
authority that many of them are based on. So the three that I think
would be good examples– first, the order that directs
the building of a wall; second, an order
that tells agencies that, for every new regulation
they want to come in the door and be put on the books, they
need to take two existing regulations off the books;
and then the third contrasting example of the
temporary travel ban. So let’s talk briefly about
the first, president’s order directing the building
of a border wall. So does President Trump, does
he have the unilateral power to just, with the
stroke of a pen, commit our country to building
a wall along the entire border between the United
States and Mexico, which spans nearly 2,000 miles? No, he really doesn’t. And why not? Why doesn’t he have that power? Well, because building a
wall along the whole border would cost a whole lot of money. Estimates show somewhere between
8 billion and $25 billion. And under our
constitution, the president does not control
the purse strings. Who does? Congress controls
the purse strings. So years ago, Congress
did pass a statute that authorized the
building of some barriers along small portions
of the border. But if the President
wants to build a wall along the entire
border, then the president’s going to need money, and will
need money from Congress. Now, President Trump
and his advisers, they certainly know this. So as a result, if
you read the order, then you’ll see that
what it actually directs, it simply directs government
officials to try their best to identify funding
to find money and to develop budget requests
from Congress for money. So in the end, this
particular order, its legal impact is fairly
limited in terms of the wall. But it certainly has
significant communicative value, communicating to his
officers, telling them to start taking
steps, and also significant political effect. Because it sends a strong
signal to his supporters that he is following up
on a key campaign promise. Contrast that with President
Trump’s two out, one in order. This was an order that says to
federal agencies, agencies that regulate everything
from the environment, from the air we’re
all breathing right now, to the safety
of workplaces, tells federal agencies, if you
want to make a new regulation, then you need to
take two existing regulations off the books. So this order, this order
will have significant effect on federal executive agencies. Why? Because the heads
of those agencies, they work for the president. They can be fired
by the president. So they listen to the president. But does the order
itself actually undo regulations that protect
me and protect you and that impose obligations on all
of us and impose obligations on businesses? No, the executive order itself
doesn’t undo regulations, and it can’t undo
the regulations. Rather, under law,
taking away regulations, taking them off the books, that
has to be done by the agencies. And it has to be done through
a really lengthy and cumbersome process, one that we call
notice and comment rulemaking. Sounds fancy, but really all
it is a process that says, all of us, everyone,
has an opportunity to submit comments
to participate. And then the agency has
to justify its decision, based on the statute,
based on regulatory scheme, based on scientific
data, based on studies, and based on public comments. So in the end, the
two out, one in order, it, too, doesn’t
have a huge amount of immediate legal impact. Sure, it has political
value, communicative value. It tells his officers
to start the process of undoing regulations. But the order itself
doesn’t undo regulations, because the president doesn’t
have the power to do that. The law puts that
power elsewhere. Now, contrast that example
with the third, the travel ban. The travel ban,
which bans travelers coming from seven
predominantly Muslim countries, it obviously had immediate
impact, significant impact, many would say severe
impact on families, on children, people
across the globe. It resulted in
detention at individuals at airports across our country. So that order, it indeed did
much more than simply issue directions. It actually altered rates. President Trump believes
that both the Constitution and various statutes
give him the power to take that action in the
name of national security. Others believe that the
president exceeded his powers and acted in violation
of the Constitution. So not surprisingly,
given this dispute, lawsuits have already
emerged across our country, including one
actually that was just filed here in Seattle on Monday
by the State of Washington. [APPLAUSE] State of Washington took
the lead, quick to file. And we will see
how that unfolds. A hearing is taking
place on Friday. Also, earlier this
week, many of you probably saw in the news,
the acting attorney general Sally Yates, the head of
the Department of Justice at the time, she was fired
by President Trump, fired because she said that she would
not defend the order in court. So given all the controversy,
the legal controversy, around this order, I
expect that, with time, these legal issues, they’ll work
their way up to the US Supreme Court, much as President Obama’s
actions in the immigration arena worked themselves up to
the US Supreme Court last year. The issues of presidential
power here, they’re just– they’re that big. So hopefully, comparing
and contrasting those three examples
helps to show you that not all executive
orders are created equal, in terms of their impact– some, mainly service
communication tools or political tools, others have
real legal impact on the ground that you see immediately. And as Lisa said,
the reason for that, it’s not random or
haphazard, but rather it turns on the wording and
the scope of the order, and even more importantly,
on the legal authority that the president
is hanging his hat on when he signs that order
with the stroke of a pen. LISA MANHEIM:
Thank you, Kathryn. Now, when it comes to
whether the president has the legal authority
to do things, sometimes the president
disagrees with some other party or a person in the government. And a lawsuit will
arise out of that. And you mentioned that
Washington has filed a lawsuit along those lines. Now, that brings
up, for at least me, the question of the
announcement that President Trump made yesterday,
when he nominated Neil Gorsuch to the United
States Supreme Court. One thing that some
folks maybe– excuse me, may be wondering is, if
this judge is confirmed, will Judge Gorsuch– is he likely to just
sign off on anything that President Trump does,
for example, the travel ban? KATHRYN WATTS: Well, I
don’t have a crystal ball, so it’s impossible to predict
what Judge Gorsuch will or won’t do with respect to,
for example, the travel ban. But I can say that it’s safe
to say that Judge Gorsuch, just like other federal
judges, they don’t just do what the president says to do
just because the president told them so or just because the
president appointed them. That’s not how courts work. I remember watching
a debate with my kids this fall, a
presidential debate, where Trump, at the time,
said that if he were elected, Roe v Wade, involving
abortion, would be overturned automatically. And I remember
explaining to my kids that that’s not how it works. Presidents don’t get to overrule
Supreme Court precedents interpreting the Constitution. Only Supreme Court
justices get to do that. And when they do that, when
they interpret the Constitution, federal judges decide cases
based on their interpretation of the law, not the whims
of the presidential winds, not their own personal
policy preferences. Instead, they have to act
based on the rule of law. And I think really important
here to keep in mind is that our Constitution
does something, I think, quite brilliant. It insulates our federal judges. It gives them protection
from politics. It gives them lifetime
tenure, so job protection, and salary protections. And in giving them
those protections, it enables them to act
as an independent check on political actors. They can act as an
independent check without fearing that
removal, that being fired, that fear is hanging
over their head. They don’t have
that fear hanging over their head, the same
way that Sally Yates did, when she stepped forward
on Monday, and said, I will not defend this order. And it resulted in her firing. LISA MANHEIM: Great. So to be clear, then, although a
president– and here, President Trump– nominates
people to the courts, those judges and
justices are then protected from the
president at that point. KATHRYN WATTS:
Yeah, that’s right. LISA MANHEIM: OK. But of course, that’s not
true of many of the other– the president’s
other appointments, including appointments of
people to run a number of very important agencies– the State Department,
the Department of Homeland Security, the
Environmental Protection Agency. Those appointees generally
serve at the pleasure of the president, which
means that he has the power to fire them if he disagrees
with something they are doing. Now, one of the
most controversial of President Trump’s
recent appointments has been that of
Jeff Sessions to run the Department of Justice. Trevor, as our expert
on criminal law, what does the Department
of Justice do? And can you explain why
this particular appointment has been so controversial? TREVOR GARDNER: Sure. So let me start with
a brief description of the Department of Justice. As many of you know, the
Department of Justice, also known as DOJ,
is a federal agency. It’s principally charged with
investigating and prosecuting violations of the federal law. The Department of Justice
has about 60 subdivisions, including the Drug
Enforcement Agency, the DEA; the FBI; the US
Attorney’s Office; and the Civil Rights Division. Now, the second question
is a bit more complicated, speaking specifically about
the controversy around Senator Sessions’s appoint– or nomination. It might be helpful
to start by talking about the support
for Senator Sessions. He is a longtime
senator from Alabama. He served in that capacity
for several decades. He ran unopposed
in Alabama in 2014. He has a long track
record of public service. He used to be the US
Attorney for the Southern District of Alabama. But turning to the controversial
elements of his nomination, a lot of people have
questioned his ability to relate to minority
populations, his policies, his stances, with respect
to minority populations. Well, what am I talking
about specifically? If we go all the way back
to Senator Sessions’s tenure as US Attorney for the
Southern District of Alabama, he took a number of
controversial positions with respect to voting rights. He specifically prosecuted three
civil rights workers in 1986. And that prosecution has dogged
Senator Sessions’s career for several decades. I just want to give you a few
details about that prosecution. One of the civil rights
workers, one of the three, had been working for
decades to register African-American
voters in Alabama. The three of them were accused
of voter fraud, mail fraud. There were 29 counts
to the indictment. They went to trial. Many of the counts were thrown
out by the judge at trial. Other [INAUDIBLE]
went to the jury, and all three were acquitted. Senator Sessions
says that if he was to go back, if we could
turn back the clock, that he would again prosecute
each of these individuals. And that’s been very
concerning to his critics. Let’s fast forward to
the contemporary context. Why is Senator Sessions a
controversial candidate today? What has he done as Senator
to give people pause? Well, for one,
Senator Sessions has advocated for eliminating
police misconduct investigations by the Department of Justice. Senator Sessions has
called these investigations disrespectful. He’s called them offensive. And he says that
were, essentially, with these investigations by
the Department of Justice, specifically the
Civil Rights Division, undermining confidence
in our police officers. I think President Trump
shares that general sentiment. He’s essentially
described critiques of police, these reform efforts
at the federal and local levels, as being part
of a war on police. So again, that’s concerning. There’s an open question
as to whether these pattern and practice investigations,
investigations of police misconduct,
on the local level will continue in the
Trump administration. If we’re to talk about the
ability of Senator Sessions to eliminate or terminate
these pattern and practice investigations and the
content decrees that stem from these pattern and
practice investigations, it’s going to be a little bit
more difficult than I think he or his supporters suspect. For one thing, many of
these investigations resulted in consent decrees. The Obama
administration secured, I think, it’s 19 agreements
at the local level, with local governments,
with respect to criminal justice reform
and local police departments. 14 of these 19 agreements
were considered– or are consent decrees in which
a federal judge signed the decree, turning the
decree from a mere agreement to a judicial order. So for those 14, with respect
to those 14 consent decrees, there’s really very little
President Trump can do. The Department of Justice
cannot unilaterally terminate a judicial order. They can’t unilaterally
terminate these consent decrees. So I think we can
have confidence that, for people who support
the consent degrees, who support these federal efforts at
local criminal justice reform, we can have confidence
that these agreements will remain in place. However, for cities
like Baltimore, other cities around the country,
in which the investigations are open, in which the consent
decrees have not yet been signed, I think
it’s very likely that the tentative agreements
that have been forged will be terminated. I think it’s also very
likely that we will not, from this point forward
under a Trump administration, under Jeff Sessions’s
tenure at the DOJ, see additional investigations
of local police departments that have been found
to be violating local residents, civil rights,
in a systematic fashion. I want to put one more
issue on the table, one more issue with respect
to presidential power under a Trump administration,
under Jeff Sessions’s DOJ. And that’s the issue of the
federal marijuana prohibition. As many of you know–
some of you may know– Senator Sessions is
not a fan of marijuana. He’s made a number of remarkable
statements about marijuana. Among other things he’s said– well, back in his hearings,
back in the 1980s, he was appointed–
he was nominated, excuse me, to be a federal
judge by Ronald Reagan. There were a number
of witnesses who talked about racially
charged statements he had made when he was
operating in the Southern District of Alabama. But I think one of the more
interesting comments he was alleged to have made is
that he was OK with the KKK, until he found out
they smoked marijuana. And that’s testimony
on the record in Senator Sessions’s hearing. Now, he denies having
made that statement, but he has made some curious
statements about marijuana. He said, in a Senate– I think, I believe it was
the Judiciary Committee. He said that, in his
estimation, good people do not smoke marijuana. And he’s taken the Obama
administration to task. By name, he’s mentioned
President Obama. He’s mentioned attorney
generals Loretta Lynch and Eric Holder as well as the
FBI director James Comey, saying they all have abdicated
their responsibilities as part of the executive branch,
and specifically, in enforcing marijuana
decriminalization– excuse me, in failing to enforce the
federal marijuana prohibition in decriminalization states. So let me just
wind down by saying that I do think the federal
government, DOJ, Jeff Sessions, is going to be very aggressive
about prosecuting marijuana production, distribution,
and decriminalization states. And I think that’s important. There will be a clash between
the federal government and, I think, high profile
producers and distributors in decriminalization states. Let me add a few points to that. This is not going
to be an easy task for the federal government. Well, why is that? A couple of things. One, it’s important to note that
the federal government does not have the ability to direct
state and local police, right? It cannot issue
directives, commands, to state and local police. Well, why is that important? There are about 1.2 million
law enforcement agents across the country. Only 80,000 of them are
operating at the federal level. That means, in order for
the federal government to broadly and for something
like the federal marijuana prohibition, it
needs the cooperation of state and local police. It often comes in
on the back end after local police
have made arrests for marijuana production,
distribution, trafficking, and prosecutes. The DOJ will prosecute
on the back end, being our local police are
doing a lot of that work. So in the event that
Sessions, the DOJ, does not have that
cooperation, it’s going to be, again, difficult
for them to prosecute, enforce the federal marijuana
prohibition broadly in decriminalization states. So I want to make that point. I want to make the point that
local governments still matter. They matter quite a bit
in criminal enforcement, in federal criminal enforcement. And if local
governments matter, that means local democracies matter. That means every
person who participates in local governance matters,
because you eventually dictate exactly what your police
are going to be able to do, the extent to which
they can participate, in these criminal
enforcement initiatives at the federal level. And I think that’s important. And I’ll add one last point. The idea of public safety,
the concept of public safety and public security, it’s
increasingly politically contested. Right? For several decades,
we assumed that there was solidarity with respect to
public security, public safety. That’s no longer the case. We look at immigrant sanctuary. If you look at marijuana
decriminalization, local governments,
local populations are increasingly rising up
and offering their own sense of what public safety
means, and as well as the means to public safety. And so I think we
should also take that to heart as we consider
our prosepts– prospects, excuse me, for the next
four to eight years. LISA MANHEIM: Thank you. So one thing I just
wanted to underscore, it sounds like
what you’re saying is that, even when we have
a strong federal government, state and local governments
still really matter. TREVOR GARDNER: They
absolutely matter. They matter because the
federal government, again, cannot control state
and local police. They matter because state
and local police outnumber federal law and federal
law enforcement agents by a ratio of about 10 to 1. All of those
elements, statistics, constitutional
provisions, jurispru– they’re all relevant, and
they make local populations, local governments,
local democracies, that much more important to
federal criminal enforcement. LISA MANHEIM: Thank you. So another place where
we see this interplay between the federal government
and state or local governments is with respect to what are
called sanctuary cities. So Angelica, you’re our
expert in immigration law. Can you explain what
is a sanctuary city. And is Seattle a sanctuary city? ANGELICA CHAZARO: I can try. LISA MANHEIM: Thank you. ANGELICA CHAZARO: So there’s
no legally settled definition of what constitutes
a sanctuary city. But the phrase has
been used to refer to cities that take a very wide
range of actions to protect immigrants, that
include declining to spend local resources
assisting with immigration enforcement, offering city
services without respect to immigration status,
refusing to detain immigrants for immigration
officials, prevent– protecting confidential records,
preventing local officials from asking about or
investigating immigration status, and even providing
access to legal counsel for immigrants
facing deportation. So Seattle is taking
several of these steps and considers
itself, or at least seems to consider itself,
a sanctuary city as of now. LISA MANHEIM: And
President Trump already has taken some steps to crack
down on sanctuary cities. So can you help
us understand what can President Trump do to
crack down on sanctuary cities? And how can he do it? ANGELICA CHAZARO: Sure. So first, it’s
important to point out that local jurisdictions
have no legal obligation to assist with civil
immigration enforcement, which is a responsibility of the
federal government, not of local governments. So a local decision
to offer resources to federal immigration
enforcement is completely voluntary. And in some sense,
it is actually lending local
resources to what’s really a federal
government responsibility. So non-cooperation with
the federal government, in this case, could be
critiqued on policy grounds. But it’s rarely a clear
violation of federal law. In fact, the opposite
has proven to be true. In terms of legal
violations, many jails that have detained
people and held them on the request of
immigration authorities have been held liable for
violating those people’s constitutional rights. , Nevertheless of course, we saw
in one of last week’s executive orders the president threatening
to cut funding for so-called sanctuary cities. However, the president’s move to
try to force local communities to carry out the work of federal
immigration authorities is likely to violate principles,
again, of local control, which say that the federal
government cannot order cities around directly. Also, the threat to
cut off the funding extends on pretty
shaky legal ground. The same Supreme Court
decisions that we saw on state and local
power, that red states relied to block democratic
initiatives, will be relied on now
by sanctuary cities and states to try to block
the Trump administration. So ironically, it’s
those decisions that might prove helpful now. If the Trump administration
tries to withdraw money from cities for refusing
to affirmatively help federal immigration authorities,
that withdrawal of funds, under current case
law, will have to be pretty limited in scope. And even then, it might
be unconstitutional. So as long as cities avoid
affirmative interference with federal immigration
enforcement activities, the national government
will probably be quite limited in the amount
of punishment it can dole out. One other limitation, of course,
will be the financial one. So Kathryn’s already
mentioned the cost of the wall and the difficulties
of actually carrying that out because of the finances. If President Trump
wanted to follow through with the sanctuary cities
and other immigration related orders he
signed last Wednesday, it would require
150,000 prison beds to house immigrant detainees. And that’s nearly
five times as many as are currently available now. And the estimated cost alone for
that would be about $8 billion. LISA MANHEIM: So
does all of this mean that individuals who
are in the country illegally can’t be deported, as long
as they’re in Seattle? ANGELICA CHAZARO:
No, definitely not. So first, it’s
important to understand that the simple fact
of being undocumented, under the immigration law, means
you’re subject to being placed in deportation proceedings, and
that many Seattle residents are already actively facing
deportation proceedings just about a mile away from here,
in the immigration court, here in Seattle. So the question
is, for those folks in Seattle who have not yet come
to the attention of immigration authorities, even
living in a city like Seattle, with
protections for immigrants, may not be sufficient from
them to stop from being in deportation proceeding,
or stop from ending up in deportation proceedings. The Trump administration has
very clear deportation goals that were laid out in one of
last week’s executive orders. The priority for
deportation is purportedly, quote unquote, “criminals.” But the executive order defines
this category so broadly, that, at least in my
opinion, pretty much all of the 11 million or so
undocumented people in the US are now priority
for deportation. So in a sense, there
are no priorities, because everyone
is now a priority. So the question then becomes,
how will undocumented people end up facing deportation? I see the executive
orders of this past week as a signal to immigration
officers on the grounds that pretty much any
tactics they want to pursue are now fair game. And so this new
executive order saying that every undocumented person
is a priority for deportation means that we’re likely to see
a broadening of immigration enforcement practices,
some of which had already been abandoned. So for example,
the workplace raids that the Obama administration
had basically stopped are likely to return. And we’ll see a
ramping up of raids that have been ongoing
throughout the Obama administration. So raids on people’s
homes and neighborhoods are likely to ramp up. And there may be limited
things that city officials can do to stop ICE officers
from going to people’s homes or to their workplaces. But again, despite or
maybe because of that, state and local
governments will continue to be incredibly
important, if they wish to be a line of
defense for immigrants. We already see this happening. So San Francisco
already filed a lawsuit, perhaps preemptively suing
the Trump administration for its threats against
sanctuary cities. Los Angeles, we saw, taking
a different tack yesterday– and again, all of this is
happening in real time– with its city council
announcing that it’s going to be decriminalizing
street vending, knowing that the misdemeanors
that immigrants street vendors get charged
with can make them vulnerable to deportation. So they’re taking a
decriminalizing tack. And locally here, just this
week, the Seattle City Council passed a welcoming
city resolution, which, among other things,
calls for the development of a strategy to create
and fund a legal defense fund for those Seattleites who
do end up facing deportation. So these innovative legal
and policy strategies will be more
important than ever. LISA MANHEIM: Thank you. So we’re starting
to see a theme here, which is that the president has
an enormous amount of power. But it’s not limitless. And this becomes clear
when we look to the role that state and local
governments play. And it also becomes clear
when we look to the role that Congress, out in
Washington DC, plays. As Kathryn explained,
for the president to act, he often needs Congress
to go along with him. Now, this brings us to Sallies,
our expert in health care law. And Sallie has
particular expertise in the ACA, which is
also known as Obamacare. So Sallie, let me ask you this. What the heck is going
on with Obamacare? [LAUGHTER] SALLIE THIEME SANFORD: What
is going on with Obamacare? What’s happening is that the
Republican majority in Congress is having a very, very difficult
time agreeing on a replacement for the Affordable Care Act. And the reasons are both
political and practical. So the Republicans in Congress
and the Trump administration have said that
they will not pull the rug out from under
the 20 million people who gained coverage in
the past three years. And they’ve promised to maintain
the preexisting condition protections, and
they’ve promised to reduce health care
costs that are borne by individuals and by families. And these are all
really popular promises. They are also extremely
tough to square with the commitment to
reducing federal regulation, reducing federal spending, and
turning to a more free market approach. Because the ACA is already a
very conservative, very free market oriented approach. So it would probably be
easier to meet these promises by moving towards more of a
single payer Medicare type system or towards actually more
regulation and more subsidies. So that said, there are
proposals out there. And there are two prominent ones
from representative Paul Ryan, who is the Speaker of the
House, and from Tom Price, who is the proposed nominee for
Secretary of Human Services. So these two proposals and
similar ones that are out there would have impacts throughout
the health care system, including employer provided
insurance and also Medicare. But I thought I’ll just
talk for a couple of minutes about a handful of key
provisions in these as they relate to Medicaid
and to the marketplaces. So first, both these proposals
would repeal the requirement that people have insurance. And they would repeal
the requirement that big businesses provide it. Secondly, they would
fundamentally change Medicaid. So they would cut
back on or entirely eliminate the Medicaid expansion
for working-age, low income people. And they would convert
the entire program to either a block grant
or a per capita cap, and with less federal spending. And in return, states
would get flexibility. But what they would
get flexibility to do, realistically, is to eliminate
the entitlement to Medicaid or cut back on who’s
covered or time limits, or cut back on coverage. I mean, this is a
really important deal. It’s a very big deal. There are about
75 million people who are covered by
Medicaid right now, and that includes some of
our most vulnerable citizens. It includes low income
people over age 65 and low income people
with disabilities. So that’s certainly
something to watch for, what happens with
the Medicaid program. Third, these proposals
would change the subsidies. So right now, if you purchase
insurance on the marketplaces, if you don’t get it
through an employer, you might be able to
get premium subsidies. And under the ACA,
these are sliding scale, and their income-based. And they max out at about
400% of the poverty level. So for an individual
who makes $50,000, they are not eligible for
any premium subsidies. About 80% of those who do
buy on the marketplaces do get premium subsidies. So how these proposals
would change that is to make them
age-based and flat. So a 50-year-old who
makes $300,000 a year would get the same
subsidy as a 50-year-old who makes $8,000 a year. So it would be flat. These proposals also do away
with another important type of subsidy, and that’s the
cost-sharing reductions. So as you might know,
the out-of-pocket costs can be very high on
any insurance plan, including these. The ACA has cost-sharing
reductions for people who are low to moderate income. And these proposals
would do away with those and substitute instead what
are known as health savings accounts. So in general, how
they would work is the federal government
would make, say, a one-time payment of $1,000
to your savings account, and then you could add
to it with pretax dollars and make it bigger. And the idea is
that people would have higher out-of-pocket
costs, but they could turn to these savings
accounts to help meet them. And the savings accounts
are tax favored, which, of course, is not that
useful if you’re in a low tax bracket or you don’t pay taxes. So we’ll hear a lot about
health savings accounts. The fourth thing I
wanted to mention is that the proposals
would bring back preexisting condition
consideration for some people. So instead of an individual
requirement to have insurance, the idea is you
would face the threat that, if you had
a gap in coverage, if you didn’t have
continuous coverage, then you could be charged more,
based on your health status, or have other consequences
to your coverage. And to help people who were
rated based on a preexisting health status, these plans
would encourage states to set up high-risk pools and would have
some kind of federal money to encourage states to do that. It’s really pretty unclear
how these would work or how much money they would
need from federal or state governments. So before the ACA, a
number of states had these. The high-risk pools were
generally quite small. I think I read that,
in the whole country, there were 200,000
people on them. And they were
expensive, and they tended to have wait-lists
to get into them. So and then one
last point I wanted to mention about these
various proposals we want to keep an eye out as
the plans go forward is that they would allow a
much wider variety of insurance plans to be sold. So the ACA requires
that all plans cover what are known as the
10 essential health benefits. It requires coverage
of preventative care without co-pay and
without co-insurance. And it requires
that the plans have a backstop for how
much money you’d have to pay any year
out-of-pocket for in network coverage, and a variety of
other patient protections. So instead, the
replacement proposals would probably require just
a basic catastrophic coverage or would just defer to whatever
the states wanted to require. So related to that, these
replacement proposals would allow a wider age band. And so what that
means in practice is that people in
their 20s would pay less than they
are now, and people in their 50s and early
60s, before Medicare, would pay more. So it stretches it out. And so all these
different variables, this is what underlies the
idea to allow purchasing insurance across state lines. Because the idea is some
states would lightly regulate. So you could buy a low coverage,
catastrophic, very high deductible plan from a
state that allowed that, and it would be
much less expensive than a state that had
required robust coverages and financial protections. So these are just a
few of the key issues to watch for as the replacement
debate unfolds in Congress. So overall, my sense
is these proposals would reduce federal
spending, and they would reduce federal regulation. They would shift costs
and responsibilities onto the states and onto
individuals and families. And compared to the ACA,
the repeal proposals would tend to be
better for those who are really good at
paperwork and better for those who are healthier,
and also better for those who are wealthier. LISA MANHEIM: Thank you, Sallie. [LAUGHTER] These repeal and
replace proposals that you’re talking about, these
all require Congress to act. SALLIE THIEME SANFORD: Yes,
everything I mentioned, Congress would have to act,
as the repeal and replace. LISA MANHEIM: And it’s
generally quite difficult to get legislation
through Congress, I mean, very, very difficult.
And this is true even if the same party
controls the Congress and the presidency. So this leads to the question,
what if Congress doesn’t act? What can President
Trump do on his own? SALLIE THIEME SANFORD: So a
Trump administration actually could throw some significant
sand in the ACA’s gears and could bring parts of
it to a near standstill. So your changing
the regulations, as Kathryn mentioned, is
time-consuming process. It could certainly be
some regulatory work, but that would take time. But the administration’s
management type strategies and their litigation choices
in some key pending lawsuits really could threaten enough
chaos and financial risks, that insurers could
leave some markets. And this has a pretty
quick time frame, because the insurers have
to submit their proposals, for what they’re going
to offer in 2018, they have to submit
those in April and May. So that’s a risk. And recall, there is no public
option on these marketplaces. These are all private
plans, and insurers do not have to participate. So that’s a real risk. And that would be related
to just the administration’s choices. LISA MANHEIM: So health care is
likely to change in some way. But it’s not at all
clear, at this point, how it’s going to change. So what can people do
to possibly influence how it changes? SALLIE THIEME SANFORD: So
I’ve been thinking about that. And one way that health reform
is a little bit different than some other policy
areas is that, I think, personal stories shared
with lawmakers really do have a big impact. So lawmakers at the
state and federal level frequently refer to
specific communications from their constituents about
the importance of having health coverage, about their
needs for health care, for chronic
conditions, or whatnot, and about the difficulties
in paying for it. So that is one way to engage. In addition, too,
there’s a lot of groups working on various
aspects of health reform. And if they align
with your views, those would be good to tap into. But personal stories
shared with lawmakers can be very big and impactful. LISA MANHEIM: So we’re
starting to see certain areas where public participation
really can matter– at the state and local level,
through political pressure, particularly when placed
on members of Congress, and of course, through
support of politicians and of interest
groups who are trying to rely on these same tools. But there’s another area
that Kathryn and others have brought up, and that’s
the role that litigation plays in all this. In other words, the
role that the courts play in checking what the rest
of the government is doing. And Bob, you’re an expert
in natural resources law and environmental law. And there are always a lot
of lawsuits in that area. Now– it’s good for the lawyers. Now, you’ve personally
worked on both sides of any of these disputes. You’ve worked for the
Department of Interior, which is the department of
the federal government that’s responsible for managing federal
lands and natural resources. And you’ve also worked
on behalf of groups, for example, Indian
tribes and NGOs, that have sued the
Department of the Interior. So can you help us
understand, how does this all tend to play out in the courts? When somebody sues
the federal government over an environmental
issue, what are they seeking to accomplish? ROBERT ANDERSON:
Well, thank you, Lisa, and all of you for coming. Well, I’m going to try to
get at this through two big conservation
statutes or provisions that President Obama invoked
late in his administration, over the last couple of years. One is the Federal
Antiquities Act, and the other one is the Outer
Continental Shelf Leasing Act. And they both have
provisions that are very much geared
towards conservation of our public lands. And one third of our lands
within the United States are federal public lands
and have waters preserved that are associated
with those lands. And so Congress has
the primary role in deciding how those
lands should be used. But as others have
mentioned, it’s very difficult for
Congress to make up its mind on every specific
action that ought to be taken. And so the first
statute I’ll talk about is the Antiquities Act, that
was passed in 1906, largely to deal with the
problem of pot hunters in the southwest of
the United States going into Native
American burial grounds and destroying structures,
of absconding with artifacts, off of federal lands. And the Antiquities
Act was passed to allow the president,
in his own discretion, to set aside federal
lands that have– or that contain objects or
of historic, scientific, or cultural value. And it’s up to the president
to decide what those lands are and what the values are
that need to be protected. And nearly every
president since 1906 has exercised his authority
under the Antiquities Act to protect federal lands
for various purposes. And what these proclamations
that reserve or withdraw these federal lands
do is they take away the ability of individuals
like you or I to go out and prospect for gold or
other valuable minerals. They’re not available for
grazing by cows or sheep or other creatures
that rely on forage. They’re also not allowed–
unless they’re wild, of course. And they also allow the
president to withdraw the lands from operation of
off-road vehicles or other destructive
activities that might harm the resources on those lands. And so President Obama was
very active in establishing or increasing the size of
about 30 national monuments throughout the United States. And they vary in size,
from about 1,000 acres in our own San Juan Islands,
at 75 different sites that were set aside– lighthouses, and things
of that nature that are important to our history
in the Pacific Northwest and important to
the whole country. On the other hand, his last
monument that was established was the Bears Ears
National Monument in Utah. It’s 1.3 million acres. In each one of these
cases, the advocacy for the establishment
of the monument came from local interest
groups, whether they are historical societies and
conservation oriented groups in the San Juans or, in the
case of the Bears Ears in Utah, it was Indian tribes that are
concerned about protecting sacred sites, and
environmental groups that wanted to protect
areas from exploitation under the Mineral Leasing Act,
in terms of uranium mining, gold, and other
valuable resources that are found on those lands. And so when President Obama
issued these proclamations establishing or increasing
these Antiquities Act monuments, he exercised authority
delegated to him by Congress. So he’s clearly got
the power to do this, but it’s one-way
authority, or at least that’s what we all think. Because no president
has ever abolished a monument established
by a prior president. And I can cite to you one 1938
attorney general’s opinion on this point, but
there’s nothing else in terms of the law. So it makes a fantastic exam
question for any one of us as to whether the
president could abolish a monument or not. But the fact is
that presidents have complained about
their predecessor’s use of the Antiquities Act. But then when they’ve gotten
into that chair in the White House, they’ve
said, well, maybe I would like to create a
few monuments myself, both Republicans and Democrats. And to that vein, maybe I won’t
try to revoke these monuments, as the lawyers tell me
it’s very complicated and will end up in litigation. So the monuments tend
to stay unless Congress steps in and changes the
boundaries or, in a few cases, has abolished national
monuments, a total of about 11 over years. But that’s Congress’s
power, and there’s no doubt that Congress has
the authority to do that. And so what we see,
especially with the Bears Ears Monument in Utah, is an
outcry from the House of Representatives chairman
of the Natural Resources Committee, Rob Bishop, who
wants President Trump to revoke that Bears Ears
National Monument. If he does, there’s certain to
be a huge amount of litigation. And so you’ll see the Native
American Rights Fund, which represents Indian tribes,
Earth’s Justice, the NRDC, jump in to support the theory
that the monument may not be disestablished. We don’t know what the
Justice Department will do. The new attorney
general could say, well, we think the president
has the authority to disestablish the monument. And that will leave the NGOs
to represent the point of view on behalf of their constituents
that that statute is a one-way statute. It does not allow
a new president to revoke a prior president’s
action setting aside these public lands for
conservation purposes, that only Congress can do it. And so I mean, there will
be a huge fight over this if President Trump decides
to revoke these monuments. There are bills that have
already been introduced for Congress to do it. We’ll see how it plays out. Part of me says, well,
you know, if somebody got to President Trump and said,
well, you take this position, you’re undermining your power. You want to give up power. Something tells me,
maybe not, to what end? But we’ll see what happens. And so that will be an issue
to really watch very closely, and it will play
out and be litigated unless Congress steps in. The other statute that has
been used by President Obama– and hadn’t really
been used by anyone except President Eisenhower
before and President Nixon– and it is the Outer
Continental Shelf Leasing Act, which is the statute that
allows the federal government to lease offshore areas
for oil and gas production. And it’s a very
complicated statute, but there’s an obscure section–
it’s called section 12(a)– that gives the
president the authority to withdraw areas from
oil and gas leasing. And it doesn’t say for how long. And some presidents– or some
of the earlier uses by President Eisenhower did it for
only seven or eight years, and then it expired. President Obama issued
five different withdrawals under OCSLA, that withdraw
permanently the area from oil and gas drilling. Nobody knows, again,
whether or not a president has the authority
to undo that withdrawal. Many think that it’s
like the Antiquities Act. It’s a one-way authority and
that the president doesn’t have the ability to
take away that withdrawn status by executive action. And again, if he does take
away one of these withdrawals– four of them are up
in Alaska offshore– there is certain
to be litigation. And I’m not giving
away any secrets to let you know that
there are many people who are strategizing about what
the appropriate vehicle will be for a lawsuit to
challenge any withdrawal, and how you deal with all
of the technicalities, the important
technicalities, like who has standing to challenge
these withdrawals, and things of that nature. But again, it will be a very
important set of litigation. And it’s interesting, because
Catherine was talking about how the president takes actions. And some of these
withdrawals took place in simple presidential
memoranda, that say, under Section 12(a),
I hereby withdraw– and he describes a vast area. In others, he issued a
formal executive order that withdraws an area and
then sets out other management directives for the agencies
to take within the area to limit bottom
trawling, for example, or other environmental
activities that might be destructive
of fish and wildlife and marine mammal habitat. And so again, the president
has a lot of authority. Can one president retract what
a prior president has done? We don’t know. And there’ll be a lot
of litigation about it. There’s no Supreme
Court precedent on point, no federal district
court precedent on point. So it’s open field
running for the lawyers. [LAUGHTER] Now one other item that’s
been in the news a lot is the Dakota Access
Pipeline litigation. And this is the pipeline–
it’s an oil pipeline, to run from Northwestern
North Dakota to Illinois. It’s about 1,000 miles long. There’s very little
opportunity for federal control over this pipeline. It’s not like natural
gas pipelines, that are subject to the
authority of the Federal Energy Regulatory Commission. If the company is careful,
like the Dakota Access Pipeline folks were, they can
route this pipeline on private or state
land and pretty much avoid any federal oversight. And so 97% of that pipeline is
on private land or state land and not subject to
federal authority. But when they
cross a river, they got to get permission from
the Corps of Engineers. And there’s two statutes
that deal with that. They’ve gotten permission
under one statute to use federal lands, but
they don’t have an easement. They got to have an easement. Just like if you want to
use your neighbor’s land, you’ve got to have an
easement to get across it. And they don’t have it. And so at the end of the Obama
administration, last December, there was a
directive issued that said, we should
really carefully look at all of the effects of
issuing this easement, and because it was triggered
by the protests that were out there, that
you’ve all heard about. And so the Army
Corps of Engineers announced a process for an
environmental impact statement, which will take a year or
a year and a half to do, before they can take
action on this easement. And President Obama
promised to undo it. And so he issued a presidential
memorandum that did nothing. It says, gee, look at
what Obama’s people did, and see if there’s any way
that we can expedite this. But make sure you comply
with all existing laws, which include the environmental
laws that require this review. And so if they’re
going to undo this now, they’re already in court over
the other related issues. Again, this will be a
hotbed of litigation. You’ll have property
rights groups jumping in on one side or the other,
environmental groups and the tribe up there
jumping in as well. And you’ll have
this drama play out in the executive
branch, the courts, and of course, Congress
can always step in as well. LISA MANHEIM: Thank you. And this discussion
of courts brings us back to what we talked
about at the beginning of the program, which is to
say that the Constitution is designed to give judges
protections against what the other branches are doing. So when this all gets
played out in the courts, it’s not clear how
it’s going to come out. So what we’d like to do now is
just take a few minutes, now that it’s near the
end of the program, for questions from the audience. And I will actually step over
here and have a Dean Testy come and moderate this discussion. [APPLAUSE] KELLYE Y. TESTY:
Can you even imagine how much fun I have working
with these amazing colleagues and about 100 more like them. Wow, [APPLAUSE] Wow, wow, wow. Yeah, thank you so much. As we begin our questions,
let me just remind you of a couple of things. One is that
unfortunately, we’re not able to give specific legal
advice to you as the clients tonight. I do want to let you know
that, on your way out, we have a lot of information
about the School of Law. And we do want to be helpful
to our community in any way. And so you’ll have a lot of
opportunity for handouts there that will help you contact us
if we can be of assistance. Also remember please
that we are taking just short questions, not statements,
just very short questions. And I made sure that we
have the Husky football team out there with linebackers,
in case that doesn’t happen. So let me begin over here
and ask for a first question. SPEAKER 1: Yes, thank you for
your insightful information provided today. I think a lot of your
comments presuppose that the executive will
abide by court orders, Yet, I think we’ve seen,
from just this past weekend’s federal court order
and subsequent actions by immigration
officers, they are not abiding by those orders. What happens in an instance
where this continues? LISA MANHEIM: So [APPLAUSE] So if we have a situation where
the judicial branch has been called on to opine on the
legality of what the executive branch is doing, and
the judicial branch– by which I mean the courts– tell the executive, yet– excuse
me, the executive branch– by which I mean the president– if they tell the president,
what you’re doing is illegal and unconstitutional
and you have to stop doing it, and then the response of
the president is to say, I’m not going to stop doing it. I’m going to keep doing it. What we have then is
at least the potential for what a lot of people refer
to as a constitutional crisis. And the way I think of defining
a constitutional crisis is that it’s a very
big problem that’s facing the country that the
Constitution doesn’t tell you how to resolve. So you just got to work it out. So if that comes to pass, that’s
going to be a huge problem. And it’s not clear how
it will work itself out. That being said, I have
seen some of these same news reports. And we are not there
yet, and we’re not there yet for a couple of reasons. We’re not there
because, first, there’s a difference between lower
level agents or officers of the executive branch
refusing to obey court orders and a refusal of
a high-ranking member of the branch to
refuse court orders. And the reason why, look,
both are very problematic, and it’s a problem. But when it’s lower-ranking
officers doing it, the Constitution
has answers to that. There’s ways within the current
legal regime to handle that. So it’s possible that right
now, what we’re seeing is lower level. The second reason
we’re not there yet is because, you
have to remember, this stuff is happening
really quickly. Lawyers are drafting
things quickly. Courts are drafting
things quickly. And right now,
reasonable minds can disagree as to what some
of these orders are saying. And if the interpretation of the
executive branch is reasonable, then again, we need to work it
out if there’s a disagreement. But it’s not a
constitutional crisis. KELLYE Y. TESTY:
Thank you, Lisa. I’m going to switch
back and forth. Quick question here. SPEAKER 2: Maybe when I went
to the bathroom I missed this. But nobody’s mentioned
the word fascism, as far as I’m concerned. And that’s obviously what we
have, a regime that’s fascist. And they are fast
implementing a fascist thing, terrorizing Muslims especially. So you guys are all
involved with the law, which they’re just going to say,
screw this Constitution. That’s what happens
under fascism. The rule of law is thrown out. It’s just an open terror. So how do you see
yourself, along with what that says there, what
all of us are facing now, to stop this fascist
regime and drive them out? Because they can be
driven out, but we’re not going to go through the
usual processes to do that. So how as lawyers, you’re
caught with this legal stuff, what are you guys going
to do about fascism? KELLYE Y. TESTY: Who would
like to solve fascism for us? [LAUGHTER AND APPLAUSE] Is that– is that, is that mine? Is that mine? [LAUGHTER] SPEAKER 3: [INAUDIBLE] No, absolutely, it’s not funny. And I know that this is a
deep concern that people have, and for good reason. And I understand your concern. SPEAKER 3: [INAUDIBLE] Absolutely. We do, absolutely. What we’re going to do is keep
working for the rule of law and keep doing what we do. And I want to say that
one of the things I’ve been very proud to see is that
the way that people have put themselves at some personal risk
to stand up for what’s right, and to stand up for
the rule of law. So you can count on our law
school continuing to do that. Yes, sir? [APPLAUSE] SPEAKER 4: Good evening. The public interest
group Citizens for Responsibility and
Ethics in Washington has filed a lawsuit claiming
that President Obama has violated the emoluments clause. While I know you guys don’t– I’m sorry. Oh, did I say? Force of habit, force of habit. Trump, wow. All right. Yeah. So while I know that you don’t– KELLYE Y. TESTY: Maybe
that was [INAUDIBLE], too. SPEAKER 4: While I know you
don’t have a crystal ball, what do you anticipate the prospects
are of a summary judgment motion for lack of standing? And if they make it
past summary judgment and get into discovery,
do you believe that President Trump’s tax
returns would be produced through discovery,
and would they be produced only under seal? KELLYE Y. TESTY:
One of the things our students would love
to see is their professors on the hot seat. They’re going to really like– SPEAKER 4: UW Law,
class of 2010. KELLYE Y. TESTY: I thought so. I thought so. [LAUGHTER AND APPLAUSE] KATHRYN WATTS: That
is a great question. On the first part of your
question, I can feel bad. He asked, will there
be standing to sue? So standing, for
those of you that aren’t lawyers in the room,
that aren’t quite sure what that term means in
the legal world, it means who’s the right
plaintiff to bring suit? To bring suit in
federal court, you have to show that you have
a specific injury to you. You have to show some
causation, and you have to show redressability. The You have to show that
your injury will be fixed, will be redressed, in some
way by the court decision. And so this particular suit that
was referenced in the question is one that raises a
lot of threshold issues, not just standing questions,
but potentially, there’s other questions, like
political question doctrine is one of these doctrines that
our first-year students get to learn about, where
sometimes the courts say, we don’t want to
decide this question. This is a political question. It needs to be answered
in the political arena. It doesn’t really have
a good legal answer. So whether this case will
ever get to the merits, I think that’s a really,
really good question. It’s hard to know. But those threshold
issues are tricky. If they do get past the merits– I’m not sure the answer to
your question about discovery– but what I will opine on
is that, on the merits, one of the tricky
things in that case is, what would the relief be? And what does it get? I’ve heard from many people
in the community say, Oh, I’ve heard that there’s this lawsuit
saying that President Trump is acting in an unconstitutional
way that’ll get him impeached. Well, the courts don’t
impeach a president. So the relief in this
might actually, in the end, even if the suit is
successful on the merits, be something as simple as some
kind of an order that involves having to restructure
businesses, sell off portions of business,
rather than something much grander and bigger than that. KELLYE Y. TESTY:
Thank you, Kathryn. Yes? SPEAKER 5: Yes, my question
is about the dreamers. I realize their legal status
is, well, questionable. What’s the possibility of
the Justice Department, led by Jeff Sessions, to simply
around them up and deport them because of their legal status? ANGELICA CHAZARO:
That’s a good question. So far right now, we
have the executive orders that have already been
released, and then we have some leaked
executive orders that we don’t know if they’re
actually going to ever be signed by President Trump. If an executive order was signed
by President Trump rescinding the status of those who got
deferred action for Childhood Arrivals, so young people who
got temporary permission to be here, then at that point,
they would be in the same boat as everyone else in terms of
being a target for detention or deportation. They did, by putting
themselves forward and filing for that application,
give their addresses, give their locations,
to the Department of Homeland Security. And so in theory,
that information could be used to find them. However, that would be a wildly
politically unpopular move. And it seems, at least for
now, that the way that Trump is moving forward is to
try to go after people who he considers criminals. Of course, as I said
before, his priorities are so broad, that he might
even define DACA recipients as criminals. And so that’s, I think, a
moment where the sorts of legal defenses that we’re seeing,
the sorts of uprisings we’re seeing– for example, at
the airports this past weekend, where people are
showing up in droves– that sort of defense, that
is not just a legal defense, but also a defense
of the people. It could be helpful
in protecting. [APPLAUSE] KELLYE Y. TESTY:
Thank you so much. Yes, ma’am? SPEAKER 6: Yes. Maybe taking the Antiquities
Act as an example– this is sort of a
broader question now– with something like that,
where it said the president has this power, and
it didn’t specify if it was one way, if the
general opinion of judges and lawyers has, up
to a certain point, been that it was just one
way, does that carry weight? And if so, how much? ROBERT ANDERSON: Well,
it’s been very important in the public lands arena. And so there is a
1916 case called Midwest Oil, in which
the president had used his authority that he
said, because I’m the president, I can withdraw lands
from oil and gas leasing. And the Supreme Court– without any congressional
authorization. And the Supreme Court looked at
that action and said, you know, this has been going
on for 100 years. The president has been creating
out of the public lands Indian reservations,
wildlife refuges, and other categories
of protected land for various purposes. And the Supreme
Court said, Congress acquiesced in this for
so long, that we’re going to uphold the
president’s authority. And Congress has cabined
that and shaped it. But that still is
the underlying power that the president has when
he exercises his authority under these statutes. So that’s a backdrop
that supports the notion that he’s got this authority
and that, if Congress wants to take it away, they
need to do so explicitly, as they have in a
number of statutes, but not in the Antiquities Act
or in the Outer Continental Shelf Leasing Act. KELLYE Y. TESTY: Thank you, Bob. Yes, ma’am? SPEAKER 7: So tonight,
I’m realizing even more so how much power
the Supreme Court has in terms of long-term
direction of the country. And so I was watching
a little video of Nina Totenberg
talking about how we’re getting this new justice soon. And there’s a very
good likelihood, because a few of
the other justices are very old, that in
the next few years, we could be facing
one or two more judges with a very conservative
bent, which would threaten Roe v Wade, for
example, and some of these other very
progressive rulings. And so what I’m
wondering is, looking at the overall structure
of our democracy, if fair and balance is such
an important part of it, why is the Supreme Court
shaped the way it is, to where we have– why isn’t it, by rule
of law, guaranteed that it’s evenly split
always between this side and that side? And how would you change that? Because right now and
in the next few years, it looks like we would have
a completely lopsided power structure. KELLYE Y. TESTY: Kathryn,
Lisa, you both write a lot about the court. You want to take? KATHRYN WATTS: I have
one thought on that. And then Lisa can probably
add something to it. So if we had structured
our constitutional system differently, so that we did
have an even split politically and that that was constitutional
and legal for us to have, I think, in some
ways, it presupposes that judges are going to
act in a way that matches their political ideology. And that’s something that
actually we push back on a bit, I think, in the legal field. And let me give you
an example of why. So I clerked for
a justice who was appointed by a Republican
president, Justice John Paul Stevens. Justice Stevens did
not end up being one of the strong conservative
members of the bench. He ended up being
what many would call much more on the
liberal side of the bench. So that’s an example
of where somebody who’s appointing
president’s ideology did not match the direction
that the judge went. And personally, I think that’s
something to welcome and really embrace in our
judicial system, is one area where we can say
that political labels are not automatically going to
lead in certain directions in a way that’s as
entrenched as we see it in our political branches. Lisa, do you have
anything to add there? LISA MANHEIM: I guess
I would just follow up by saying that the way our
constitution is designed, it’s very, very
hard to amend it. We only have 27 amendments
to the Constitution, even though it was composed and
ratified over 200 years ago. And so I know that often
people get frustrated with what the Supreme Court
is doing, and they propose amendments
to overturn rulings or to change the structure. And as a political matter,
for what it’s worth, it’s very, very hard to
get an amendment through. KELLYE Y. TESTY: Thank you. I just got the sign that we’re
almost out of time already. So I’m going to do one more
question to Mr. [? Guyton. ?] And then I hope maybe you
can all talk a little bit as we end our program tonight. So last question tonight. SPEAKER 8: Well,
thank you, Dean Testy, for putting on this wonderful
program, and members of the faculty. You really do
honor our community and honor our law school by
your presence here tonight. So thank you for your
study and your work. KELLYE Y. TESTY: Thank you. [APPLAUSE] KELLYE Y. TESTY: I
really appreciate that. SPEAKER 8: My question is
a little bit different. And nobody’s
touched on this yet, but I think about it
periodically, almost every day. And it has to do
with the button. Our president, I am
told, has the ability to initiate a nuclear
war in the event that he feels it’s appropriate
and in our national interest. I’m wondering what restrictions
are there on our president’s ability to do that? Is there an appeal? Is there someone
else that he must talk to to get
permission to do this? Do you have any sense
of what those limits are on executive power? KELLYE Y. TESTY: I’m going to
invite any of my colleagues that want to jump in to jump in. But I’m going to say that it
might be wishful thinking, but I think the answer is that
it takes more than one person. So we were talking a little
bit about this ourselves and understand that there’s
a bit of a protocol, and that’s it’s, of
course, not known, because if it were known,
it could be disrupted. And it’s a security issue. So our belief is that
there is a protocol that takes a few steps, but
we don’t know what it is. So one of the things
we were hoping is maybe we’ll all come
back together and do a little national security
for Town Hall number two. SPEAKER 8: God bless. KELLYE Y. TESTY: And it
might be a good topic, so thanks for asking that. [APPLAUSE] I want to ask you
to join me in giving one more round of applause to
the panel, and then I want to– [APPLAUSE AND CHEERS] Thank you so much. Thank you. Wow, thank you. [APPLAUSE] We are in this together. And I want to just let you
know that we’ll do all– we’ll keep doing all we can. Professor Mannheim, any
closing word from you? You were the great moderator. You organized this. And we’re in your gratitude. LISA MANHEIM: I just
wanted to say thank you so much for participating. Just one quick
sentence for you– civic participation, you can
feel a little bit like voting, which is to say
that, when you vote, it can feel like a
drop in the bucket. But when everyone votes,
it makes a big difference. And you have a panel
of lawyers right here, talking about federal executive
power, 9:00 PM on a Wednesday. So there’s a lot of interest
and energy out there right now. KELLYE Y. TESTY:
Thank you, everybody. Thank you so much. [APPLAUSE] [MUSIC PLAYING]

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