Speaker 1: Ask not what your country can do for you, ask
what you can do for your country.
Speaker 2: Mister gorbachaw tear down this wall.
Speaker 1: It's the Ricochet Podcast. Well Steve Hayward hosting this week
along with Charles C. W. Cook and special guest Anny McCarthy,
breaking down all the unrest on the streets and in
the court room. Let's have ourselves a podcast.
Speaker 2: Look, it's very simple, not complicated.
Speaker 1: Iran cannot have a nuclear weapon.
Speaker 3: The increasing range of Iran's ballistic business would bring that
nuclear likement to the cities of Europe and eventually to America. Remember,
Iran calls Israel the small saple. It calls America the
great sagem. Long live Israel and long live America.
Speaker 1: Welcome to the Ricochet Podcast number seven hundred and forty five.
It's Steve Hayward sitting in the host chair today while
James is still away. Joined by and now one hundred
percent recovered Charles C. W. Cook at his outpost in Florida.
How are you today, Charles?
Speaker 4: I am.
Speaker 2: I'm doing well. Thankfully, There's nothing going on in the news,
so I've been able to ease back into it.
Speaker 1: Well, you know, I keep saying I've been saying for
a while now that things happen so fast in Trump
two that we're gonna need to measure in dog years.
And doesn't the Trump Musk divorce feel like two years
ago already?
Speaker 2: You know, I think to some extent reconcile. So we've
been through a divorce and maybe a remarriage. It's like
Richard Burton and Liz Taylor. I wonder how many times
it will happen.
Speaker 1: Well, I think it may follow that same epicycle. Yeah,
I'm actually still on holiday over in Europe, but so
not keeping up moment by moment by the news. But
like everyone else, I woke up early this morning here
i head of most of you in America, of course,
to see the news that Israel has, you know, dropped
the dime, so to speak, on Iran in a big way.
And I guess my first thought, Charles is you know,
the left was starting to taunt Trump here a few
weeks ago, saying he was what was the euphemism or
the acronym, he was a taco person attack Taco. I'm
guessing right now that Iran may have taken a Trump's
war aversion too seriously, but they won't be celebrating Taco
Tuesday this next week. Put it that way, right, Maybe
that's too glib, but the point is, I did wonder.
You know, there's ways of thinking that Trump didn't want
them to do this, and did they do it without
telling us? And you know these things have gone on.
But then he released that very strong statement on truth
social saying, look, I told him Ron that they had
sixty days and today would be six day sixty one.
That I meant it. And it looks to me like
Trump didn't chicken out this time. Of course, they're not
American forces committed to this, at least not yet.
Speaker 5: No.
Speaker 2: A few thoughts. The first is it was very odd
that the Democrats picked up on that line of argument,
given that they didn't want Trump to do the things
he was doing, so they were taunting him for taking
their position. Yeah, not a smart move in politics, especially
with Trump on this in particular, though, Trump is an
interesting figure in that there is a movement that has
been built up around Trump that often projects onto Trump
views that he doesn't actually hold and uses him to
claim changes on the right that have not happened.
Speaker 1: Now.
Speaker 2: There is a lot clearly that has changed with the
arrival of Trump into the Republican Party, which is now
a ten year phenomenon. But some of the time, for example,
on economics, the claims that are made just aren't true.
This idea that, wow, the Republican are no longer interested in,
say tax cuts, Trump's here, Well they are, and it
is never more pronounced than in the realm of foreign policy.
It is true that Trump criticized the Iraq War, but
there is a huge gap between the Iraq War and
the vast majority of things that American presidents have done
in the last thirty years. Iraq, in fact, is only
notable because it was an aberration from the foreign policy
that had surrounded it. And for some reason, some within
the so called or supposed Trump faction have decided that
he is an isolationist who would be opposed to ever
deploying American troops, ever exerting American force. Well, he hasn't actually,
in this case, had to do either of even those things.
He's just had to say, yeah, Israel, go deal with Iran.
Quite why there was this vehemence and assumption that he
would be opposed to this, It was never quite clear
to me. Clearly he is not. He has left some
wiggle room in his rhetoric. Marco Ruby was clear to
note that the Americans weren't involved. But this isn't out
of character for Trump if you look at his first term,
or if you look at the way that he sees
the world, supporting Israel, doing America a favor, and of
course doing Israel a great favor too. In taking out
some of Iran's nuclear capabilities is classic Trump, surely.
Speaker 1: Yeah, well, right, there was. I'm no expert on military capabilities,
but I always thought that there was some doubt as
to whether Israel could successfully attack Iran alone. I mean,
people kept saying they need American help, they need least
American intelligence and maybe a wax plans and I don't
know what other, you know, practical logistical support along the way.
Speaker 5: Uh.
Speaker 1: And it appears that they did not eat any need
any of that. They only needed our blessing. Uh. And
now we'll see weapons and weapons, right, and That'sump said that, right,
Look that we've got the best weapons, and we've given
them a lot of them to Israel, and we're going
to give them more. I mean, Trump sounds like he's
all in on backing Israel on this.
Speaker 2: Well, it's in our interests for Iran not to have
a nuke, and I think we can. I shouldn't assume
we've become so deranged by Iraq that now even indirect
help is cast us being a forever war. But surely
we can acknowledge that Iran not having a nuclear weapon
is good for America. Right, yeah, Well, we can debate
how we do that, whether we should do it ourselves,
whether we should support is, how much we should spend,
whether there are risks, those are totally reasonable questions, But
the goal, the end, the aim here of Iran not
having a nuclear weapon surely is presumptively good.
Speaker 1: Right, yes, I think so, I will say, I do know, well,
actually you know what, I will name names. You know,
we had Dan McCarthy on the show here several weeks ago,
and he was very stubborn. I mean, he did say,
Israel can do it themselves, they don't need any help
from us, and I thought, well, maybe that's true, but
I'm not sure how. I don't know that. I don't
know how you would know that. I like Dan, he's
a pal, but he and there are other people like him,
were very dug in that. Really it's none of our business.
If it Ron has a bomb, it's not really a
threat to us. And I think that there has been
this effort by people like Dan, who I repeat I
like very much, but I think is greatly mistaken here,
along with others who are saying the same thing. And
that's not even before you get into Tucker Carlson territory,
which I don't want to get into.
Speaker 2: You mean you don't want to get into the topic,
or you don't want to get into the territory he's occupied.
Speaker 1: Either one quarantine the non aggressor.
Speaker 4: Well.
Speaker 2: I think Dan is wrong. I like him too. I
do think it's important to us. I think as a
threshold question, it is important to the United States who
has nuclear weapons, and I don't think it matters where
they are in the world. You cannot get far enough
away and stay on Earth from nuclear weapons like it
obviously affects US Iran. It's not even where Australia is
in the world. You know, it's right next to a
whole bunch of countries that affect us, whether they're allies
or enemies, or we're just neutral towards them. We take
that perfect theoretical Washingtonian stance. It matters, So I just
I can't. I don't know if that is being used
as a proxy for it is better on balance for
us not to get involved, or it's better for them
to get a nuclear bomb than it is for us
to art or support a war. Sure, I can buy
the argument, although I don't agree with it, but not
to care. Come on, not to say it's not in
our interest that that ship has sailed. That is just
not There was a certain point in American history, I
think where this sort of view made perfect sense. I mean,
for example, although we weren't wholly unaffected by it, if
you were an American president in eighteen twenty, the movement
within the Habsburg Empire, they didn't actually matter that much, right,
I mean, you could say plausibly, we don't care, but
Iran nuclear weapons.
Speaker 1: Come on, yeah, yeah, that's right. Yes, And they showing
their question is well, let's switch gears here, back to
the scene at home, and okay, so what we've got
the resistance, the riots going on in Los Angeles and elsewhere,
sounds like they might spread. It sounds like maybe some
governors like Abbott will get out in front of it
and stop it from starting. And then we have this
crazy stunt with Senator Padilla in California. By the way,
my theory as a native Californian who's watched the state
slide into a one party socialist republic here in the
last twenty twenty five years. The problem with Padilla and
Kamala Harris and Newsom to some extent is they don't
affect They don't face much effective Republican opposition, they don't
face much serious media scrutiny, and so suddenly when things
are running against them, they behave in these ridiculous ways
like Senator Padia. Now we'll talk with Andy McCarthy in
a few minutes about some of the legal aspects of this,
But you and I are better at the politics of it.
And it seems to me this disastrous politics for the Democrats,
and I think some of their own polls are even
perhaps showing this. What Mayor Bass said, this is all terrible.
And then she declares a curfew. I think, you know,
faster you can say bad opinion poll, she put in
a curfew. So what's your sense of it from over
the other side of the country.
Speaker 2: Wowuck, It pains me to say this, because, as you know,
I'm a big lover of California. But your state's crazy. Yeah,
it's the most beautiful place in the world, run by
terrible people who seem to think that they have a
veto on federal law. And in any other context, Steve,
this would be compared to the nullifiers of the past.
They wouldn't be the heroes, they'd be the presumptive villains.
You just don't get to stand in the way of
legitimate federal functions because you don't like them any more
than Florida would. I think that it has become clear
within California that the view that I just outlined is
the majority in the country, and that there is a
great deal of downside to taking the stance that California has.
It is not the case that Donald Trump is wildly popular.
He's more popular than I thought he would be in
his second term, but he's not wildly popular. But he
is about twenty or thirty probably more popular than the Democrats,
and especially on the question of immigration. The party looks
absolutely crazy compared to Trump, and I think that some
of the rhetorical backtracking that we've seen we can get
to Perdilla separately, because he escalated, but from Mayor Bass
from Gavin Newsom is the product of that they've recognized,
and I've noticed a shift prior to that backtracking. Joe
Biden was disgraceful in his refusal to enforce federal immigration law,
an absolute historic disgrace, and he cost his party dearly.
But he always pretended he was doing it. He always said, no, no,
we are enforcing the border. And then later on he said,
you know whose fault it is that the border is open.
Republicans remember that stunt where they said that they needed
more power from Congress, and of course that was nonsense,
but Biden understood at least that he had to lie
about it, and for a while Bass and Knewsome and
Shift they didn't. They just came out openly said, look,
we just don't believe that we should be enforcing this. Lord,
it's terrible, we'll stop you. Paddia is still doing that,
those guys are, which is probably the product of a
shift in opinion. Pauling that United.
Speaker 1: Yeah, well, you know, my mind runs back now to
Biden's Secretary of Homeland Security, that despicable Mayorcus kept saying
over and over again in congressional hearings the border is secure.
I could not believe they thought they could say that
with a straight face, right right, and yet they did.
I say the other thing, that's funny you mentioned Mayor
Basta claric curfew. If Gavin knew some filing legal pleadings
about states rights and the Tenth Amendment. Trump has this
way of turning everybody on their heads.
Speaker 5: Annoying.
Speaker 2: It's so annoying because in every circumstance where the authority
of the states actually applies and the federal government is
overreaching in a way that would have been totally alien
to the founders and ready to everyone prior to the
New Deal, California is wrong, California. But the second that
it's something that is undisputably a federal function, there's suddenly
all about the Tenth Amendment. It's like they can't be
right even when they're trying right right.
Speaker 1: Well, I think the problem is that we're seeing in
California and other Blue states what I call the senescence
of modern liberalism. And we do have a cure for
sinessence of modern liberal well maybe not modern liberalism, but
least for us individuals. And it comes from our first
sponsor today, Qualitias Analytic quality. A synalytic is at the
frontier of what is currently possible in the science of
human aging. Synalytics are a science field revolutionizing human aging.
The big culprit behind that middle aged feeling can be
sinessence cells otherwise known as zombie cells, that linger in
your body after their useful function, wasting your energy and resources.
The accumulation of zombie cells can lead less energy, slower
workout recovery, joint discomfort, and basically just feeling old. Quality
of Synalytics as a groundbreaking, clinically tested supplement with nine
vegan plant derived compounds that help your body naturally eliminate
sinessence cells, helping you feel years younger in just months.
Here's how it works. You take it just two days
a month, helping your body naturally eliminate zombie cells to
age better at the cellular level. I know James has
tried it and loves it, and you too can experience
the science of feeling younger. Go to qualitylife dot com
slash ricochet for up to fifty percent off your purchase
and use code ricochet for additional fifteen percent. That's qualityolife
dot com. That's spelled qua A la l I f
equalitylife dot com slash Ricochet for an extra fifteen percent
off your purchase your older self. Well, thank you, and
we thank Qualitia for sponsoring this the Ricochet Podcast. And
now we welcome back to the podcast our great friend
Any McCarthy, Senior Fellow at National Review Institute, a National
Review contributing editor and author of Ball of Confusion, The
Plot to Reagan Election and Destroy Presidency. Welcome Andy. Gosh.
You know, as a lawyer, the Trump administration is keeping
you busy trying to keep up with things.
Speaker 4: Boy, it's all overwhelming.
Speaker 5: I wrote something like I want to say three four
days ago about the Khalil immigration case. I have a
three quarters finished, and I can't get to it because
it feels like every ten minutes something else happens and
just overwhelms the news cycle.
Speaker 1: Yeah. Well, now we want to ask you first about
the legal aspects of Trump calling up the California National Guard.
And I'm overseas actually, and I haven't kept up with
all the details, but I gather he's not yet invoked
the Insurrection Act, which I guess is maybe the most
clear statue to authorize that. But I think there are
other means of doing it. What do you make of
the scene so far of as Is there any problems
with it? Are the criticisms from people like Governor Newsom
have any validity? Or what's Anny McCarthy's always candid take
on what Trump does here?
Speaker 5: Well, it's hard from you know, I'm on the East Coast.
I'm watching the news just like everyone else's. I think
it's hard when you read the conflicting reports, and particularly
when you read Judge Briar's opinion in the California District Court,
which made a ruling yesterday that the Ninth Circuit has
suspended that Trump's invocation of the statute that he didn't folk,
which is twelve four h six, that that was unlawful.
We can get into why he said that, but one
of the what he basically argues is that there is
no rebellion and that there are you know, there's sporadic violence,
but that there isn't as much violence as the administration suggests.
And then, you know, you get a lot of pushback
from the other side that at least in the places
where the violence is happening, federal functions are not able
to go forward.
Speaker 4: And even though the.
Speaker 5: People who are resisting the Trump administration and the immigration authorities.
Even though they're not armed with firearms, there've been molotov cocktails,
they've thrown objects that could be lethally dangerous at the police,
they've boxed them in, they've made it impossible for them
to inform or some laws. So it's difficult to get
a read in part, I think, Steve, because Los Angeles
is also huge. We're talking about not just Los Angeles
the city, but Los Angeles County, which is just it's massive.
So you know, there are many people in Los Angeles,
I guess who can look out their windows and see
that everything's fine and there is no violence, and there
is no seemingly there's not a problem. But in the
places where there has been there have been uprisings, they've
been pretty intense. So there's that difficulty of getting a level,
you know, getting a read on how violent things are,
which I think is important because he's invoking rebellion and
I think, you know, it used to be prior to
January sixth if you threw around words like you know, sedition,
insurrection and rebellion, those words had and we actually thought that,
you know, you had to get to a certain level
of uprising before invoking those sorts of things. I think,
you know, the fact that they tagged a three and
a half hour riot where none of the security forces
were killed. There were a lot of injuries, but the
damage to the facility was so minimal that Congress was
able to reconvene that evening that nevertheless had to be
because of political reasons and insurrection, and I think it
kind of trivialized the concept, and now they want to
have an exacting definition of rebellion after, you know, after
we basically, you know, got rid of insurrections as something meaningful.
So that's a big part of Judge Brier's opinion as well.
But you do have to make a judgment about how
serious the violence is if you're going to throw words
like rebellion around, I still think that's true.
Speaker 1: Right, Well, one more quick question or point andy, before
I turn you over to the tender mercies of Charlie. Look,
I remember the Rodney King riots of nineteen ninety two,
which people like Maxine Waters still very much with us,
called a rebellion. I think she might even used the
term insurrection by the way she was for it, right,
I mean, at least the people who said January sixth
was an insurrection for people who didn't like it. Okay,
but it seems to me that again I've come up
this from a political point of view more than a
legal one. And one thing is is that, of course,
the Rodney King riots and actually one of my earliest
childhood memories growing up in Pasadena was seeing the distance
smoke from the Watts riots in nineteen sixty five. I
could go out in my front yard and see the
smoke from a long way away and what was I
nine years old or something, and thought, wow, this is
really kind of scary. The point is that it seems
to me there's an argument for saying, don't wait for
it to spread all over to the city or to
spread to five more places. You want to nip it
in the bud. And and I mean, that's why it
seems to me that at least the political logic and
the moral logic is entirely on Trump's side.
Speaker 5: You know, it's interesting that you mentioned that because I've
had occasion in the last couple of days Steve to
talk about when I was I think eleven or twelve,
Kent State happened and that's my powerful memory and it's
every time we have a situation like this where we
think about putting federal troops into a domestic situation, I
can't help but go back to that, because to me,
more than more than tet more than Tonkin Gulf, more
than almost anything that happened in those years. I think
the Kent State debacle in which four students were killed
created the mythos about the Vietnam War as we remember
it now. To me, because I was so young and impressionable,
that's like the most powerful memory of that incident. And
every time we have something like this happen, that's what
I find myself.
Speaker 2: Going back to Andy, I have two related questions for you,
and I hope you're sitting down because a very off
brand for me. Number One, does Trump need a law here?
Is there any inherent authority within the presidency to execute
federal law and to defend those who are executing federal
law from those who would resist? Two? Is this just disiible?
I mean, I am the everything's just dieable guy. I
tend to like courts. I tend to think in so
many cases where people say that's non just dieuble, there's
no real way of arbitrating unless you use the courts
even in core constitutional questions involving the political branches. But
this level of micromanagement surely at some point must become unsustainable.
Speaker 5: Both are great questions, and Judge Bryer wrestles with the
justice ability, I don't think very convincingly, but he wrestles
with it in his opinion. I think it's a useful
example for this, Charlie is the Alien Enemies Act invocation,
because a lot of that litigation has gone back to
an opinion that Justice Frankfurter wrote in about a year
after the actual shooting in the Second World War ended,
where the president had invoked President Truman had invoked the
Alien Enemies Act.
Speaker 4: It had been.
Speaker 5: Invoked throughout the war, but the people who brought the
lawsuit wanted to claim that there was no longer a
declared war, that the state of war no longer obtained.
And what frankfort basically said, and this gets the lines
very blurry, I think, is that the court owes a
lot of deference to presidential judgment because of the nature
of what was being litigated there, but that courts are
capable of interpreting statutory terms, and what the court there
decided was that because Congress and the political branches together,
Congress and the President had not acted in any way
to end the declaration of war, and we're taking the
position that the war was still ongoing even though it.
Speaker 4: Was nineteen forty six.
Speaker 5: The court was not going to.
Speaker 4: The second guess that.
Speaker 5: So they said that basically, they said, we have this
statutory term, you have to be able to show that
there is a declared war, but we're going to defer
a great deal to the political branches about whether the
declared war is still ongoing because they haven't attracted it.
And then they said there are other things like that
statue talks about aliens of the enemy force who are
below the age of eight of fourteen. So they said
that was something that a court can wrestle with because
it's a bright.
Speaker 4: Line, easy yeah.
Speaker 5: And the other things that weren't in the statue or
were not up for debate in that case was was
there an invasion or a predatory incursion? And it does
seem like in all of these cases and this controversy
raises the same issues. There are always two questions. One
is what's the objective test? That is, what is the
thing that's in the statute that has to be established.
And then secondly, who gets to decide? And I don't
think the courts have been consistent on that. I think
what they basically say is, since the statute is written
in an objective way, in the sense that it doesn't
say in the President's judgment, it just says, you know,
insurrection or rebellion, the first thing is, you know, objectively speaking,
is there reason to believe that that condition obtains? And
that I think is one threshold. And then the second
question becomes, if the president decides it obtains, then how
much are we going to subject that to scrutiny? And
one of interestingly, in the oral argument in California, one
of the questions that Judge Briar pressed the Trump Justice
Department on was what if President Trump, in order to
invoke twelve four h six, had decided there was a rebellion.
He had absolutely no evidence that there was a rebellion.
He just on his own, ifsay Dixon, it's a rebellion,
does a court have to accept that? The administration's position
is that the court has to accept it. Briar's position
is that the court doesn't have to accept it, so
it seems to me there's not a.
Speaker 4: Good answer to your question.
Speaker 5: There's a lot of blurriness here, and it seems to
me that there's there's again there's an initial threshold of
can we agree that there are enough facts that it's
at least plausible that the statutory term has been met,
and then if it has how much difference do we
of to the to the president to in terms of
invoking it. So that's not a very satisfying answer, but
I think that's where we're at in terms of whether
the president needs the law at all. I think it
depends on what it is the president wants to accomplish,
because you have this crash, which I think also leads
to some blurriness between the position that the Justice Department
and the Office of Legal Counsel have taken historically, which
I think is best articulated in this nineteen seventy one
memo which was written by William Rehnquist when he was
running OLC at the Justice Department, which talks about the
protective function of the meaning the president's authority to use
the military in order to carry out executive functions that
are his lawful, legitimate functions. In the executive branch, and
that crashes into POSI Coomatadis, which is enacted at the
end of the toward the end of the nineteenth century
and basically says that in the absence of a congressional
authorization or something clear in the constitution, the president cannot
use the military for domestic law enforcement functions. So it
seems clear that if what the president is calling the
military and to do is protect federal facilities like courthouses
or federal buildings, the military can do that because that's
not a law enforcement function. There's also authority for the
proposition that if people are blocking, say.
Speaker 4: Facilities and interstate.
Speaker 5: Commerce like railroads or highways, and that were to prevent
something like the mails from being delivered, the president could
dispatch the military to open up those facilities to make
sure that the mail could be delivered, and might in
fact even be able to use the military forces to
deliver the mail, because that's not a law enforcement function.
I think where it gets tricky, and Rich asked me
this yesterday about in the podcast. I'm less confident now
than I was when I gave that answer, because I've
looked a lot more into this since then. The question
is what if the president you have these disruptions of
the ability of the agents to enforce the immigration law,
people blocking the places where they want to go in
and do the raids, people trying to prevent the agents
from getting it, people they want to place under.
Speaker 4: Arrest, that sort of thing.
Speaker 5: Can the president dispatch the military to protect the federal
function of enforcing the immigration laws in a sanctuary city
where the local law enforcement they're not allowed to obstruct,
but they're not required to help the federal authorities, and
where people are clearly obstructing that function. If it gets
serious enough that the federal law enforcement people cannot carry
out their duties, can you send the military along to
protect them? And when does that evolve from a protective
mission where you're basically making sure the agents are safe
when they go about the duty of, say, arresting someone
or carrying out a raid, or are the military guys
actually doing law enforcement? Is that so close to the
actual execution of the law that in the absence of
congressional authorization, it's something that should be illegal. And I
don't think that's been resolved. The more I look into it,
the more I think it's a blurry line.
Speaker 1: Hey, I've got to interrupt here. Maybe you started your
business because it was your passion, but fell into HR
as your business got going. Nobody's an expert in all areas,
including HR. That's why we're excited about an all in
one solution that can give you your time back to do
what you love most, which is growing your business. Bamboo
HR is a powerful, yet flexible, all in one HR
solution for your growing business. Stop spending countless hours on payroll,
time tracking, benefits, performance management. With Bamboo HR, those hours
are shaved down to minutes. And it's why over thirty
four thousand companies trust Bamboo HR because it's an integrated
system that is designed to handle your current and upcoming
HR needs. Plus, bamboohr prides itself on being super easy,
easy to use, easy to learn, easy to implement, and
very easy to love. Bamboohr handles everything from hiring and
onboarding to payroll and benefits. When business owners switch to
Bamboo HR, the intuitive interface stands out Immediately take a
couple minutes check out the free demo and see how
nimble and affordable this valuable tool can be. HR is hard,
but Bamboo HR is easy. I can't recommend bamboo hr enough.
Check it out for yourself with a free demo at
bamboohr dot com slash free demo. That's bamboo hr dot
com slash free demo. And we thank bamboo hr for
sponsoring this the Recochet podcast. Well, this seems to me
a blurry line that a lot of modern trends have
brought us to. I mean, I repair to a few
simple things. First of all, curtis right case the president
is the sole organ of foreign policy. Now you say
this isn't a foreign policy question, except maybe it is
in a certain way that I mean, the left says
we should live in a world without borders. Well, guess
what that means foreign policy is different. I'm sure I'm
just using their argument against them for a moment. The
other one is you mentioned Frankfurter. Was he the one
who said the Constitution is not a suicide pact? Or
was that Jackson? I don't remember Jackson, Robert jack Jackson, Right, okay,
but that you know famous line of that same era
of cases that you were invoking, And I don't know, Andy,
I just get frustrated with trying to parse this out
in legal terms. I guess here I'm a strong executive
power man, and that the checks on him ultimately should
be political and popular. But popular, I mean a sentiment
of the American people and Congress is not without remedies
available to it. I mean they're difficult. Impeachment takes time
if you want to go to the most extreme one.
But I don't know, this seems like I see, I'm
I'm attacking your profession. I'm sorry, Andy, I can't help it.
But as a constitutionalist rather than as a lawyer, and
I know there's a blurred line there. I just get
very frustrated with the way this always ends up in court,
the way Topeville said all of our disputes we're gonna go.
Speaker 5: Yeah, there's a lot to that, you know. I always
what I've found over the years, especially after working on
national security cases instead of you know, my last ten
years as a prosecutor, I did much more national security
stuff than cops and robbers stuff. And what you really,
I think, what the impression you come away with in
a much more powerful way, is that we like to
think of ourselves as a rule of law society, but
we're a political society. The most important decisions that get
made are political ones, and I think we delude ourselves
sometimes into the actually they can't even with respect to
the most important decisions that we might have to make
for the protection of the country. You can't make antecedent
and Hamilton recognized us right, because the threats to a
country could be infinite. You can't make antecedent laws that
bind the government in a way that they might not be,
that the government might not be able to respond in
a meaningful way to kinds of threats that you haven't anticipated.
So I think the thing that's challenging about Trump's presidency,
and I think this might be best seen in the
in the immunity the argument, which you know, as time
goes by, I actually think Charlie you noted, I think
at the time when the when the Supreme Court made
their decision about whether the president had immunity from criminal
prosecution or not, which of course is not in the Constitution.
But at the same time, I think everybody common sense
wise knows that the president has to carry out certain
particular executive functions and he can't be stopped from carrying
them out by criminal statutes. So that's the that's the tension,
and I think looking back on it, Justice Barrett has
a much more modest take on that than the rest
of the majority did. But the broader point I wanted
to make about Trump is that we went two hundred
and thirty years without having to have that sketched out
in an apidictic way, because everybody kind of knew that
there were these norms. You know that the president has
to make very hard decisions and some of them are
going to be legally dubious, and we can't have a
situation where the next administration is going to come in
and prosecute the president or what he did in the
last administration unless it's so blatantly criminal that it can't
be that its criminality can't be ignored, because you can't
have a function in government that way. Right If the
president has to worry about being prosecuted or civilly sued
while he's making these decisions that are of great consequence
of the country, the government can't function. We went two
hundred and thirty years without a court having to to
describe what the parameters are or at least grapple with them,
because you know, we still don't really know exactly what
the lines are even after that decision. But the thing
is everything, there's a number of things Steve you talked about,
you know, politics rather than law, and a lot of
the important stuff that goes on and government is covered
by norms more than laws because once people get into
these once you get into an important government position, your
bad calls are not going to be subject to criminal
prosecution or civil suit. So what controls you to stay
within the four corners of your authority is more norms
than law. And I think we function that way fine
for a very long time. But Trump, I think more
than any of his predecessors. And this isn't to say
he invented this. I just think he pushes it harder
than the rest. But he finds the loose joints in
the system and he pushes them. And I think, you know,
I've had this argument with people who say he wants
to be a dictator. You know, he's accumulating power to himself.
I don't think he's got I don't think he's got
a realistic idea that he's going to be president forever.
I think he knows he's going to be president for
four years. And I think in the current very paralyzed system,
that we're in, he's basically got two years to get
stuff done. He has no prayer of getting much statutory
stuff done. And what he's trying to do is identify
all the things that he can do unilaterally and push
as hard as he can in the directions that he
wants to take the country. And a lot of it
looks like, you know, Charlie and I both talked about,
you know, the pretextual use of emergencies in order to
you know, to do things that a president shouldn't be
able to do, essentially legislate. He's looking for all the
things that he can do unilaterally, even if he needs
a pretext to do it. And I don't know that
we've ever had a president. I mean, we're only six
months in and I feel exhausted trying to, you know,
to watch him every day. But I don't know that
we've ever had a president who tries to to push
the outer limits of his authority so hard, so fast,
to the point where now courts are being called in
to try to draw lines, just like they did with
the with the immunity. I think that's the stress on
the system.
Speaker 2: Well, yes, but to what extent, andy is that stress
also being created by the left, and I'm thinking the
immunity case, the immunity case was created by law fair right.
And then in this case. One of the problems here
is that you have the governor of California is trying
to subvert immigration law, or at least is on the
side of those who are and maybe then Trump pushes
it too far. But it seems that we have a
perfect storm where you have one side pushes everything over
and then Trump says, oh, well, I'm going to push
it over in the other direction, and then we expect
the courts to fix this Or Am I just being
two partisan?
Speaker 5: No?
Speaker 4: I don't think so.
Speaker 5: I think, you know, law fair is complicated because the
most preposterous case or cases are like the New York cases,
you know, Bragg's case. I don't think, you know, I
looked at this very closely for a long time. I
didn't agree with Jack Smith's, especially the J six case,
because I think he was stretching statutes to the limit
to try to criminalize what Trump did. But you know,
I was in the Justice Department for a long time.
There's no way that an attack on the capital of
the kind that happened on January sixth would not have
been investigated as a as a criminal event. And even
if we quibble of whether the statutes that were stretched
the way they were applied to what Trump did, there's
no question that Trump did appalling things on January sixth
and the run up to it, which would have justified
at least investigating him, right. And then the Florida thing,
I think that was you know, you can argue about
whether they should have brought it criminally or not, but
that's there was definitely conduct that was involved there. You know,
did they overdo it, Yes, they overdid it. And was
there a coordinated strategy in order to bring cases at
a particular time that would hit in the run up
to the election. There absolutely was, But it's just it's complicated.
I think the sanctuary city stuff is much more on
point for what we're talking about, because, you know, if
you look at what Judge Bryer wrote, he wrote a
thirty six page opinion, which means he must have he
had to start writing at the minute he got the case.
But you know, there's nothing in that opinion about sanctuary
cities or sanctuary policies or the fact that the federal
government has the right and the power and the authority to,
you know, to enforce the immigration laws, and that the
states are effectively obstructing the enforcement of the immigration laws.
So the whole opinion is kind of it's artificial in
the sense that what you're talking about is like, there's
violence in the streets and is it enough of an
impediment on the federal agents And we're not really talking
about why there's a problem and that whole.
Speaker 2: And I'll finish with this, but that's the part of
this that's making me crazy because I am a very
big fan of the decision of the Supreme Court in Princeville,
United States, which was from nineteen ninety seven, which is
the justification for sanctuary cities insofar as jurisdictions in America
are not obliged to help the federal government. That case
was a gun case. It was a case that came
about after the Brady Act because the Brady Act initially
required the states to enforce certain portions of federal law.
And Scalia writes this opinion and he says, no, you're
not allowed to do that. That's commandeering. So whenever people
complain about sanctuary cities, I always jump in and say, hey,
oh yeah, terrible politically, but legally, we actually like some
of the principles that are in play here. But California,
in its rhetoric and in its actions, has gone so
much further than Prince and it really annoys me because
in any other circumstance it would be very obvious that
they are behaving like George Wallace. They're the ones who
are redolent of the Confederacy and of the massive resistance,
not Trump. And yet somehow in the press this gets
cast as he's breaking norms. Well, he might be pushing
it to the edges. But we had this fight, right,
We had this fight over and over again. Are you
allowed to nullify federal law? No, you're bloody well not.
I've sent my piece.
Speaker 4: Well.
Speaker 5: I do want to say though, that it's this is
an interesting area, and it's been a kind of a
bugaboo of mine for a long time because when the
Constitution was ratified, the thing that was certain was that
the states had authority over who was lawfully in their territory,
and what wasn't clear was whether there was a federal
enforcement role. The Supreme Court over about a century's time,
beginning in the early twentieth century, probably late nineteenth century,
derived a federal role out of basically two things. One
the notion that the national government is sovereign and has
to protect the borders and is in charge of foreign policy,
is in charge of protecting Americans who are abroad, So
that that was one part of it. And then the
other part is Congress's the constitutional assignment to Congress an
Article one of naturalization authority, you know, setting the terms
of naturalization. From those two things, the court derived a
federal responsibility over immigration enforcement. And then I think what
happened is probably what invariably happens, which is, once the
federal courts invent a federal responsibility, it swallows up the
state responsibility. But for a long time we went along
and this arrangement worked because federal statutory authority in terms
of enforcement of immigration is very strong. It's very pro
law enforcement. Charlie, you've had to deal with it in
a way that you know that Steve and I happened.
But I mean, they're, you know, they're pretty formidable laws.
So you could tolerate a system where the states had
the authority to enforce immigration only in so far as
it was consistent with federal law. But then what happened
was Obama comes along and he says, no, no, no,
you don't have to use States don't have to comport
with federal statutory law. You have to comport with Obama
administration immigration policy, which is to not enforce the law,
the federal laws. And I think Scalia rightly said that
if you know, if it was presented to the States
at the convention in Philadelphia in seventeen eighty seven, that
you can't protect yourself immigration wise, because that's going to
be a federal responsibility, and if they decide to not
enforce their own laws, you can't. Then nobody would have
joined this compact. The Constitution wouldn't have been ratified.
Speaker 1: Right Well, Andy, I you know, I kept thinking that
if nothing else, this is kind of glib at kind
of serious point. If nothing else, Trump has taken the
gridlock in Congress and moved it to the judiciary. I mean,
we're just jamming up the courts with all these problems,
right But one reason we love to want to have
you back over and over again, Andy, is there's no
gridlock when we have you here. You sort out a
lot of these problems for us and a lot more
always to be said, but we'll have to have you
back soon for the sequels, of which I'm sure there
are going to be many.
Speaker 4: Probably sooner than later. But great to talk to you guys.
Speaker 1: Thanks Andy, we'll see you soon. See you well, all right, Charlie.
You know our listeners can't see that wonderful, splashy blue
flower print shirt you're wearing. It just screams Florida. And
also you're obviously back in full fitness after your belt
with the plague whatever it was. And I'm guessing it's
because of the sheets you've been using.
Speaker 2: Oh absolutely, And of course I used my sheets more
than ever when I was sick, and they were luxurious
to lie on because they're made by Cozy Earth. So
Cozy Earth not only keeps me cool in what is
now the full fledged Florida summer, but it nursed me
back to hell. So thank you Cozy Earth for that.
And that's because Cozy Earth uses the best fabrics and
textiles that provide the ultimate ingredient for luxurious softness that
lets me sleep like a baby. And here's the thing.
They're not just soft.
Speaker 4: There.
Speaker 2: Weave fabric is enhanced for a durability that won't pull
and best of all, Cozy Earth bedding products have a
one hundred night sleep trial and a ten year warranty.
That's a whole decade of cool quality sleep. What is that?
Three years perhaps of sleeping, maybe more, depends how much
you sleep. If you have small children like me, you
sleep less than you shared, which means you don't get
to spend as much time on the cozy air sheets
as you want. But what you do spend is terrific.
Luxury should not be out of reach. So you can
go to cozyer dot com and use code ricochet obviously
r I C O C H E T, and if
you do, you will get up to forty percent off
cozyerth's best selling temperature regulating sheets, apparel and more. Trust me,
you will feel the dis Trust me, you will feel
the difference the very first night. That's cozy earth dot com.
The code is ricochet, Sleep Cooler, lounge lighter, and stay cozy.
Speaker 1: All right, Charles, let's get out today with a little
cultural news. Boy. I got a reminder of how old
I'm getting when the news came of the death of
Brian Wilson of the Beach Boys, at the age of
eighty two, i'd lost trap. Of course, everyone's getting to
be a ja two from that old rocker generation of
the sixties. But you know, I grew up with the
beach boys in California. Was a beach Gord, Laguna Beach, Malibu,
all the places they used to sing about.
Speaker 5: Uh.
Speaker 1: And it's very emblematic of California in those days, you know,
the whole story of the Wilson and the the Mike
Love and all the families involved in it, as they
were sort of working class people who'd come to southern
California where you could buy a home for quite cheaply
not far from the beach, in places like Long Beach
and Huntington Beach and Santa Monica, unlike today. And so
that's just a side from the music. There's sort of
a cultural connection there too, and I don't know, you know,
that's sort of one of those totems. By the way,
Paul McCartney once said that God Only Knows was the
greatest rock and roll song ever written, which I thought
was high praise, and I think it was George Martin
who said that it was in fact, pet sounds really
great out the greatest dabble of the Beach Boys that
inspired the Beatles to excel and Sergeant Pepper. Sergeant Pepper
was the Beatles answer to the Beach Boys because they
thought the Beach Boys were their competition.
Speaker 2: Well, and they were. I think, really, if you look
back at the sixties and seventies, there are three people
who stand out to me as deserving the label genius.
One is Paul McCartney, another is Paul Simon, and then
you have Brian Wilson. The thing about Brian Wilson that's
so interesting is he was crazy. He was not supposed
to reach eighty two. Now I don't say that disparagingly,
but he was quite genuinely afflicted by mental illness. He
had a form of schizophrenia and he had auditory hallucinations,
and I think the auditory hallucinations helped him. We overplay
in our culture the tortured genius. Being mentally ill is
not fun in movies. They often make it look glamorous
being an alcoholic. But he derived his ability to do
the work that he did from the same source as
tormented him for so much of his life, and it
really did tormenting me. He had to drop out in
the mid sixties from the Beach Boys tours, just as
they hit peak popularity, and that allowed him to produce
Pet Sounds, which was basically a Brian Wilson project, and
then everyone thought, well, here we go. We're going to
see the sort of second half of the Beach Boys
career that you saw in the Beatles, where from nineteen
sixty six on which the Beatles just went super and over,
but Brian Wilson couldn't do it. You get good vibrations
and then he falls apart, and he spent the rest
of his life falling apart. He couldn't work for most
of it. He had rare flashes of genius. He spent
years trying to produce one record. He was setting fire
to things in the recording studio, putting his feet in sand.
But undoubtedly one of the great songwriters of all time.
And if you had told his family in nineteen sixty
six that he would live till eighty two, I think
they would have been shocked, especially given his drug use
and his alcohol use. But he did, which is a
happy ending of sorts.
Speaker 1: Yeah, so you mentioned sort of the mania that goes
along with somebody of various degrees of spectral mental health.
I've always been struck by the astounding fact that maybe
the most famous song, or one of them, Good Vibrations,
it took eighty hours in the studio to record that song.
And I mean, if I've been one of the other musicians,
I'd have been going out of my mind, I think.
But he was such a perfectionist.
Speaker 2: You can.
Speaker 1: By the way, here's some outtakes of that process in
the collection of records that I think. It was one
of the things that always Wilson wanted to do after
Pet Sounds, but had to abandon. But finally a few
years ago someone came out with what they call the
Smile Sessions. It's big, long collection, and you have in
there some of the outtakes of early cuts of Good
Vibrations and some of the narration, and you get some
appreciation for how painsticking and demanding and Perfectioncy was, but
also wanting to do something new and different that just
had a sound that nobody else could come close to.
I mentioned to somebody recently that you know, the other
imitating imitators the Beach Boys in those years was jan
and Deine. And the only reason I remember Janetine is
their great. One of their great hit was The Little
Old Lady from Pasadena, and since I lived in the
Pasadena area, I sort of remember that. But they weren't
even close, of course. I mean they can kind of
imitate a little bit of the sound. But nobody remembers
Jan and Deine today. But we're gonna remember Brian Wilson
and the Beach Boys for a long time, I think.
Speaker 2: I think that's right. And by the way, McCartney was
completely correct when he said that God Only Knows is
the greatest pop song ever written. It's an astonishing work
that really is more classical in its chord structure than
most pop music. You got the explosion in the seventies
of so called baroque en roll, but that was the
first example of it and the best example of it.
I like that song so much, Steve, that I actually
played it at my wedding. It was our first dance song. Well,
I'm a horrible dancer. I'm a very good musician, but
for some reason, my sense of which I do have
in my hands when I play instruments, just doesn't translate
to the rest of my body. So I end up
looking like some sort of stick insect, having a stroke,
but my wife still.
Speaker 1: Oh, I want to get some AI generated version of
that to show I'll be deported, got stripped of your citizenship?
Speaker 5: Right?
Speaker 1: Can a chance to get into all those questions with
ay or anybody else, But I think that'll do it
for us this week, Listeners, This podcast was brought to
you by Quality of Synalytic, Cozy Earth, and Bamboo hr.
Please support them for supporting us, And as James likes
to say, please join ricochet dot com, the best place
for civil center right conversation on the web. And as
James also likes to say, and I will like to
say it too, please take a minute to leave a
five star review on Apple Podcasts or Spotify or wherever
you source your favorite podcast material. Your reviews help us
get more listeners, and that keeps the show going. And
so we will see you in the comments. Everybody on Ricochet,
what are we up to? Four point oh?
Speaker 2: I've losed a town of things. Four point oh?
Speaker 1: All right, bye bye everybody, See you next week.