Fox News
March 19, 2012

'The Real Obama': Ignoring the principles of our Founders

Guests: Jay Sekulow, Lanny Davis

This is a rush transcript from "Hannity," March 19, 2012. This copy may not be in its final form and may be updated.

SEAN HANNITY, HOST: Tonight, the vetting of the president continues as we bring you another edition of "The Real Obama." Now, in this installment, we shine the spotlight on an executive order that the White House was hoping that you would never learn about.

Now, the president signed the National Defense Resources Preparedness executive order late Friday afternoon. And since that time, now the measure has been virtually ignored by the mainstream media.

Now, to order essentially gives the president of the United States absolute power over any and all American resources during both times of peace and national crisis. Now, this includes, but is not limited to food and livestock, water, plants, energy, health resources, transportation and construction materials, and gives the government the ability to, quote, "control the general distribution of any material, including applicable services in this civilian market."

Now, White House Press Secretary Jay Carney laughed off a question about the document at today's briefing. Let's take a look.

(BEGIN VIDEO CLIP)

ED HENRY, FOX NEWS: There's been some online commentary suggests this gives the executive branch the power to allocate energy, food, water in either peace time or wartime. And there are some conservative blacks that are pushing the notion that suggests the White House preparing for war with Iran. Can you explain what this executive order was?

JAY CARNEY, WHITE HOUSE PRESS SECRETARY: Well, I cannot explain that reaction to it. I think it was a fairly standard and routine piece of business.

(END VIDEO CLIP)

HANNITY: Now, everybody is laughing about this executive order. In fact, some have suggested this would give the president of the United States the authority to declare basically Martial Law during times of peace. And to be sure, this is simply the latest string of actions taken by the administration that ignore the basic principles of our Constitution.

Joining me now in tonight's edition of "The Real Obama," Jay Sekulow, from the American Center for Law and Justice and FOX News contributor Lanny Davis. Guys, welcome back.

LANNY DAVIS, FOX NEWS CONTRIBUTOR: I'm laughing about it Sean, how are you?

HANNITY: Well, let's give a little history here. Jay, we will start with you. Because this was actually signed, a similar National Defense resources preparedness by Bill Clinton. You have similar executive orders signed by Dwight Eisenhower, George W. Bush, but there's a difference. There are some things that changed in this that I think has brought, I think legitimate criticism and concern. Can you go through that?

JAY SEKULOW, AMERICAN CENTER FOR LAW AND JUSTICE: Well, I think you are absolutely right. The idea of this act is nothing new. presidents have had this since the 1950s. But what is different about this one, different than any of the other ones, is the definition of national defense. It is incorporated what is called the Stafford (ph) Act, I don't not want to get overly technical. But this gives the president much more authority than any of the previous acts. In fact, Lanny may remember this. The previous acts didn't give incorporation of the Stafford Act, which is a civil situation where the president would have unlimited authority, subject, of course, to checks and balances. We can't ignore checks and balances here. But the definition of national defense is broader than it has ever been under any of these previous executive orders. And I think that's the most significant aspect of this.

And by the way, the president is getting flack from the left and the right. The left said, this is preparation for the war with Iran, that's why the president is doing this. A potential war in Iran and the concern about the energy resources of our country. And of course conservatives ever saying, this is unchecked power. There's a balance here, but the one thing that's very different, Sean, is the fact that the National Defense definition is different than it has ever been in much broader than it has ever been.

HANNITY: All right. Lanny, this very specific section, and Jay, correct me if I'm wrong, is 801J, if I recall.

SEKULOW: J, that's correct.

HANNITY: And why would the president change that definition? And Lanny, you are an expert in media, nobody is as good as you. If you want to release something that you don't want people to find when you are in the White House, when do you release it? Late on a Friday afternoon hoping nobody pays attention to it.

DAVIS: I used to release things at 10:00 on July 3rd. That was a really good --

HANNITY: Yes, that's a good time, I got it. I got it.

DAVIS: Nice to hear you, Jay, being your scholarly self.

SEKULOW: You too.

DAVIS: And I want to compliment Sean Hannity for the first time in a long time.

HANNITY: Oh, boy.

DAVIS: Of not being slanted and describing this as a bipartisan act that actually goes back to Franklin Roosevelt, Jay, and to Harry Truman.

SEKULOW: Right.

DAVIS: Not just the 1950s.

HANNITY: But he changed it. By the way, Lanny, we got to that part. You know, you are wasting valuable airtime. We got that now.

DAVIS: You don't like me complimenting you, Sean.

(CROSSTALK)

HANNITY: I know, during the show.

DAVIS: The second point I want to make, other than Sean Hannity being a good guy, is that this is really not a significant risk to America. I don't know why he made those changes, to answer your question, but there's no risk here because every president needs authority in times of emergency such as a nuclear attack or something that is another 9/11, and this authority has been on the books. And President Obama won't misuse it. The real question is, why are the extremes on the left and the right so quick to jump beyond the facts and look at the worst possible interpretation? It's almost lunacy if you look at some of these --

HANNITY: Because -- because of the way the president has acted. For example, we have a very specific process for recess appointments and -- with the National Labor Board appointments. The president, remember he didn't go through that process.

SEKULOW: That's right.

HANNITY: Conservatives like myself, Jay, I think would argue the health care mandate is not constitutional. The Cato Institute actually has the top t10 instances where the president is pretty much has thumbed his nose at the constitution. And so there is a suspicion, Jay.

SEKULOW: Yes, I think the biggest problem here is context. It isn't a document dump in the sense it comes late on a Friday evening. That's an interesting situation. Second is the context of the other situations you talk about. The attorney general, the "Fast and Furious" situation. Then the attorney general said he was concerned about what the NYPD was doing, which was clearly within the law and I think the Department of Justice has now backed off on that, wisely.

But you look at the context and then the definitional aspect. The definition is the problem. I don't believe, and I agree that the president can get away with this because, number one, you have a Congress, you have an active media, that's why we are here tonight. But you have to ask yourself why this overly broad definition of National Defense? Why incorporate the Stafford Act, which talks about foreign and national interests and tsunamis and situations, which the president would have control over under normal source. But why do you have to expand it in the form of the executive order? That's the concern. Of course executive orders have been challenged before in court. That's the thing here. I don't understand the National Defense issue. That's the biggest thing.

HANNITY: And I think what this is, you know, Woodrow Wilson progresses like yourself, Lanny, one thing we conservatives have a problem is is you guys believe in this concept that the Constitution is a living, breathing document. And so you can ignore issues like checks and balances and separation of powers like in the case of recess appointments.

So I think we are looking at this differently. And that is in this particular case, does it give a president pretty much impunity to do whatever they want? Why change the definition considering the president has thumbed his nose at the constitution in the past?

DAVIS: First of all, my point of view is he hasn't thumbed his nose and if the Affordable Care Act is unconstitutional, let the Supreme Court decide that, not Jay or Mr. Justice Hannity.

But most importantly, this is more reflective of the paranoia on the left and the right that is going on in America and polarizing this country so badly. Jay and I -- Jay is a conservative and myself as a liberal -- are able to exchange views in a civil way with Sean Hannity is a civil moderator. What's going on, on the Twitter and the Internet is lunacy. If you read some of these comments, it's not Jay analyzing this calmly, it's complete lunacy.

HANNITY: Why were you attacking people with a different view?

DAVIS: And nobody is mentioning Ronald Reagan. I'm only saying that it's the extreme interpretation that causes the polarization in this country, Sean, and we shouldn't be contributing to it.

HANNITY: And the president is never contributing to this by saying Republicans want dirty air and water and want kids with autism, Down syndrome fending for themselves. He's never contributed to this at all.

DAVIS: I don't like the rhetoric. I don't like the extreme rhetoric. Sometimes I think the president has gone too far and so has the Republican Congress. And when there was a Republican president, there were recess appointments, guys.

HANNITY: Not recess appointments while they were in session. That never happened until Obama.

(CROSSTALK)

DAVIS: This session was one senator. The senator was -- the session was one senator holding the floor.

HANNITY: Excuse me.

DAVIS: And that was an abuse.

SEKULOW: The Constitution says recess appointments only when they are in recess and they aren't in recess.

(CROSSTALK)

Content and Programming Copyright 2012 Fox News Network, LLC. ALL RIGHTS RESERVED. Copyright 2012 CQ-Roll Call, Inc. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of CQ-Roll Call. You may not alter or remove any trademark, copyright or other notice from copies of the content.

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