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Special Report

All-Star Panel: Separation of powers takes center stage in Washington

This is a rush transcript from "Special Report," March 13, 2014. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

PRESIDENT BARACK OBAMA: I'm directing Tom Perez, my secretary of labor, to restore the commonsense principle behind overtime. If you go above and beyond to help your employer and your economy succeed, then you should share a little bit in that success. We're going to do this the right way. We're going to consult with both workers and businesses as we update our overtime rules.

SEN. RAND PAUL, R - KY: The number one question I get when I go home or when I'm out and traveling around the country is how can the president amend legislation? How can he do this without the permission of Congress, because he seems to be writing his own laws whenever he feels like it?

(END VIDEO CLIP)

BRET BAIER, ANCHOR: How can the president do this? We're back with the panel. George, a lot of people write in, e-mail in, tweet, this administration seems like it does a lot of things, not to say that other administrations don't have executive orders and haven't done executive orders, but it seems like they have done a lot of things unilaterally without Congress.

GEORGE WILL, SYNDICATED COLUMNIST: Often in the name of enforcement discretion, and it will be interesting when next there's a Republican president who says, you know, the capital gains tax is just not in the national interest and I'm not just going to collect it. I'm just not going to enforce that provision of the law. This argument is older than the republic. Modern conservatism was born in reaction against two strong executives, Lyndon Johnson and before that Roosevelt.

But that said, Republican presidents, too, have abused this with signing statements. They will sign a bill, a law -- a bill into law and they will say, yes, but this provision and that provision I don't agree with, and they will say that not on constitutional grounds but on policy grounds, which is, again, an example of executive overreach.

BAIER: Candidate Obama said he wasn't going to do signing statements, if you remember, running in the race in 2007. What do you think, Juan? I mean, do you think that there has been an executive overreach in this administration?

JUAN WILLIAMS, SENIOR EDITOR, THE HILL: Well, I just look at the hard numbers, as George said. You see Republicans and Democrats do it, and if you look at the analysis you would see that President Obama in fact doesn't even come close to what George W. Bush did in terms of executive orders and certainly not what Bill Clinton did. I don't think he has half of the executive order issues that Bill Clinton did. So the bigger point here is I think you're in a unique moment where the Republicans have had a successful strategy of obstruction. They just don't want to work with the guy. They stop everything. I think it's a do-nothing Congress. The question is, should this president then cede his power because they have undermined him, or should he in fact show some gumption to say I'm trying to get something done? I think that's what you're seeing here.

JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Historically I agree with George. My favorite president Thomas Jefferson said I won't even enforce the Alien and Sedition Act. Of course they eventually expire, so presidents have done this traditionally. Since World War II -- it's totally out of hand. Now I profoundly disagree with Juan. It is not the number of executive orders signed by the president. It's those executive orders which intrude into the province of the law-making branch which is the Congress. The president of the United States said to 11 million illegal immigrants, hey, do, a, b, c, d, and e, and I won't deport you. Where did he get a, b, c, d, and e from? He made it up. So instead of enforcing the law, he's telling 11 million people how to avoid obeying the law.

I think we reached the tipping point this week, if I could, with Senator Feinstein of California, the dramatic change on enough is enough with the spying will cause the Congress, I believe, to begin to take back power that it has been ceding to presidents since the New Deal.

WILL: That's precisely it. The Congress is at fault here.

NAPOLITANO: Yes, for doing nothing.

WILL: For letting its power be leached away. You hero Jefferson's boon companion was my hero James Madison who said in Federalist 51 "We seek throughout our system the policy of supplying by opposite and rival interest the defect of better motives," that is, no matter what the motives are, each institution is supposed to defend itself. They are supposed to be rivals. And the Congress has been a weak rival of the executive, and it's time to stand up on its hind legs.

BAIER: Well, here is Congressman Trey Gowdy doing his best defense.

(BEGIN VIDEO CLIP)

REP. TREY GOWDY, R - SC: This bill simply gives us standing when our votes are nullified. This bill allows us to petition the judicial branch for an order requiring the executive branch to faithfully execute the law. Mr. Speaker, we are not held in high public esteem right now. Maybe members of Congress would be respected more if we respected ourselves enough to require that when we pass something, it be treated as law.

(APPLAUSE)

(END VIDEO CLIP)

BAIER: To your point, George.

WILL: I had breakfast with Trey Gowdy, who is not crazy about Congress, frankly, because he sees how much they have been marginalized, and like a good citizen may become a citizen legislator and then go home.

NAPOLITANO: The courts are not going to get involved, even if this legislation miraculously were to pass the Senate and the president would override his veto because they would say it's a political issue. It's a dispute between the other two branches.

But the essence of what he's saying needs to be said. Congress is to blame here for letting presidents get away with it. And when courts do review the extra-constitutional behavior of the presidents, the first thing they look at is, did Congress approve this? Did Congress look the other way? Did Congress remain silent?

BAIER: Is there an understanding in the voting public about this issue? Is there a knowledge about it? Do most people think this is a do-nothing Congress and the president is up against a wall and, therefore, he needs to use his pen and his phone, and they stand with him, or is this an executive branch out of control? I mean, where do you think the mindset of the country is?

WILLIAMS: It's -- in this environment we are so polarized, Bret. You can't get an honest answer. What you get is Republicans -- and I think that's what we see from Congressman Gowdy --  is grandstanding. He's playing to the base and ginning up to the Republican base heading towards the midterms and he's building a narrative we've got king Obama out here acting as a monarch, ignoring the other branch of government and violating our basic American principles. And you saw the reaction from his fellow members of Congress. They were shouting and cheering. We get the mob.

BAIER: I get, but I'm asking you where is America?

WILLIAMS: I think America -- you know where America comes into this, on war powers, because there, to pick up on George's point, the Congress abandons its responsibilities – because they don't want their fingerprints oftentimes on an act of war, so they will back off and say, oh, you go ahead, Mr. President. But that has a real consequence then as you go farther down the line and away from such issues. That's where the American people pay attention. Right now this is a lot of static back and forth. It plays politically well for the base on the GOP side, and on the Democratic side it has little resonance

BAIER: It will play I bet in the election. It will come up.

NAPOLITANO: Agreed.

BAIER: Next up, the hunt for that missing Malaysian jet. What's the panel think of that?

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