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Kelly File

Turley: Democrats creating 'dangerous' Obama 'uber presidency'

This is a rush transcript from "The Kelly File," November 14, 2014. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Constitutional lawyer Jonathan Turley who is a liberal has been warning against the dangers of executive overreach for over a year now even testifying before Congress. Watch.  

(BEGIN VIDEO CLIPS)

JONATHAN TURLEY, CONSTITUTIONAL ATTORNEY, DEC. 3, 2013: You have the rise of an uber presidency. There could be no greater danger for individual liberty. And I really think that the framers would be horrified.          

TURLEY, FEB. 26: I believe we are now in a constitutional tipping point in our system. It's a dangerous point for our system to be in.         

TURLEY, JULY 16: He has said that he's going to resolve the deadlock in Congress, the division with Congress, by ordering changes on his own terms as a majority of one. That's what makes it dangerous.

(END VIDEO CLIPS)

KELLY: Joining me now, Jonathan Turley, constitutional attorney and professor at George Washington University. Good to see you again, Professor.

And so, you have spoken out about this through President Bush's years and now through President Obama's years and talked about the rise of an uber presidency. Is the president in your view about to violate the separation of powers if he goes ahead and does this?

TURLEY: Well, Megyn, we're waiting for the details, but what I'm hearing certainly causes great concern that he will again violate separation of powers. Supreme Court has already ruled that this president has violated the separation of powers. They just took another case a week ago in the ACA ObamaCare area about whether he had another violation in that area.

And this certainly raises the same profile. The president's expressing frustration that Congress is not doing what he thinks Congress has to do. But of course he's a different branch.  And we have three branches in this system. And no president can take on the powers of all three branches. And that's what he seems to be doing.  He certainly seems to be taking on legislative authority. He isn't being particularly coy about this. You know, he says this is what I wanted to get out of legislation. And I'm going to do it on my own. And that does become a government of one.  

KELLY: Right. I mean, he had control, the democrats of the House and Senate, he didn't prioritize this. He didn't push for it. And when the Democrats lost the House, years after he decided to push for it and he couldn't get it through. It's not like he's never believed that this is within Congress' authority. He tried. Congress said, no. And who are these congressmen? Not just some random people who I don't know how they wound up in Washington. They're the people's representatives. They get a vote. Their vote was no. And now he's just so irritated, he said, well, too bad. I'm going to do it on my own. How can that be? How can that be allowed?

TURLEY: Well, it's a very sad moment. But it's becoming a particularly dangerous moment if the president is going to go forward particularly after this election to defy the will of Congress yet again. I can understand the frustration. These are obviously two parties that are not getting along. But as you said we do have a Democratic process. We have a Congress that is coming in with the full voice of the American people behind them. That's what an election is. Now, you may disagree with the outcome, but you have to respect the outcome.

What the president's suggesting is tearing at the very fabric of the Constitution.  We have a separation of powers that gives us balance. And that doesn't protect the branches. It's not there to protect the executive branch or legislative branch. It's to protect liberty. It's to keep any branch from assuming so much control that they become a threat to liberty. And I'm afraid -- go ahead. I'm sorry.  

KELLY: Right. This isn't about how you feel about what should be done about the 11 million illegal immigrants living in this country. You can very much want a path to legalization for them. You could be behind the president's, you know, original plan submitted to Congress that was passed by the Senate. What this is about is what a president gets to do when an elected branch says, no to his agenda. And the framers decided that a long time ago.

TURLEY: Well, I think that's right. And I think what I tell a lot of my friends on the Democratic side is that we will rule the day that you help create this uber presidency. It's been developing a long time. But is reaching a very dangerous point. This will not be our last president.  And you may not agree with the next one. But what the Democrats are creating is something very, very dangerous. They're creating a president who can go it alone. And to go it alone is something that is a very danger that the framers sought to avoid in our Constitution.  

KELLY: Yes. I said last night to Charles Krauthammer, how will they like it if they get a Republican president in there who says, you know what, I don't like these laws that prevent protests outside of abortion clinics, so I'm just going to use my discretion not to pursue any prosecutions against those people. And protest against abortion clinics grow so loud and so big that nobody can go into these clinics and get an abortion, well, so be it because that's a matter of my discretion.

I mean, you have to be very careful what you wish for when empowering the executive.

I want to ask you one other thing which is, what should Republicans, or Democrats for that matter, who object to what he is likely about to do, do in response?

TURLEY: Well, it does sound like Congress is going to aggressively assert its authority through legislation and other means. What Congress and what the American people have to insist on from this president is a limiting principle. What the president is saying lacks a limiting principle. He's basically saying if these reports are correct that he can claim discretion to simply not enforce a federal law. Well, that comes very close if doesn't cross the line of legislation. If a president can do that, as you've said, he can do that with environmental laws or anti-discrimination laws. The American people have got to force this issue and say, look, we may agree with you on what you're trying to do. But we don't agree how you're trying to do it.  

KELLY: Right. That's not the point. Agreement on the underlying principle.

And so, you know, if he goes ahead and does it, I mean, obviously the next president could undo it. That might cause all sorts of logistical problems. But, what, I mean, right now Senator Jeff Sessions, who is going to take over as the budget committee chief, says, I'm going to try to deny the funding. I'm going to try to sort of take away his ability to issue temporary worker cards to anybody. But there's been some questions about whether that could work. There's a lawsuit already pending against him. There's a question whether that is feckless. Some people have talked about impeaching the president. The Republicans seem to feel that's too politically dangerous. So as a practical matter, is he just probably going to get away with it?

TURLEY: Well, I hope that he does not get away with it if what we're talking about is a circumvention of the separation of powers. Because that is the very thumping heart of our constitutional system.

As for what Congress can do, they have to use every resource available. You know, the president has made a mockery of the power of the purse. You can't just rely on that. It's like running a nuclear reactor with an on/off switch.  It doesn't really do what people think it does. It's very hard to use appropriations to control a president who is engaging an overreach.

But you have a great array of option. And the Congress appears to be exploring that. I think impeachment is the one that I would caution people not to look to in favor of some of these other options. I testified in the Clinton impeachment, I represented the last judge impeached, it's not a road you want to go down unless there's any other option.  

KELLY: I'm almost out of time. I've got to get this in quickly. To those who say many presidents have issued executive orders on immigration, none near this sweeping, what say you?

TURLEY: Oh, this would be unprecedented and I think it would be an unprecedented threat to the balance of powers within our system.  

KELLY: Jonathan Turley, great to see you, sir.  

TURLEY: Thank you, Megyn.  

KELLY: All the best, Professor.

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