Speaker 1: I love the way you've arrange your camera so we
see the enormous pile of books behind you it.
Speaker 2: I've even read some of them, but they look good.
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 with myself, James Lanvic and Cherlci
that we cooked. We're going to talk to John you
about seven and thirty two legal questions. So a lot
was a podcast.
Speaker 3: Well, look, a staffer wasn't responsible, and look, I take
full responsibility. I built the I built the group to
My job is to make sure everything's coordinated. Of course
I didn't see this loser in the group. It looked
like someone else. Now whether he did it deliberately or
it happened in some other technical means something we're trying
to figure out.
Speaker 2: Senator, I don't want to get into this.
Speaker 3: Man, Man, were you on You're not going to be
willing to conversation, So you're not are you denying?
Speaker 1: Matt?
Speaker 2: Will you answer my question? Ma'am?
Speaker 1: Welcome everybody. This is the Ricochet Podcast, number seven hundred
and thirty four. I'm James Lylex and cloudy, overcast, but
unusually warm Minnesota seventy two degrees today, snow tomorrow. And
I'm joined by cheneral Cook in the Florida, the flattest
state in the nation, and John You, who I presume
is in California, where everything interesting, baden, or good is happening. Hi, welcome, gentlemen.
Here is my Here's where I stand. Signal the thing,
the signal, the reporter, all the brew haha. I find
myself having the same reaction in nearly every single story
that comes out today. One, I don't believe most of
what the mainstream media says about it and frames it.
If the parties were reversed, the story would be Republicans pounce,
Republicans seizing on signal story. Two. While the administration and
its defenders may come back with a reasonable explanation, I
pretty much assume that seventeen percent of that is missing
the point or missing critical information. And three, I know
that if I get up to speed on it right away,
it doesn't matter because tomorrow Rfka Junior is going to
bad and Zagnut candy bars in airport grocery in airport stores.
I mean, it's just one after the other. I mean,
are we talking about all the Biden pardons being overturned? No,
that was that was you know, like forty years ago.
Am I wrong? Or is this a signal story? Does
this one actually have more legs in a centipede?
Speaker 4: I think it has legs because the administration didn't just say, okay,
Lesson learned, we won't do that again. But our attack
was really successful. You should like that. Joe Biden was weak.
Next question, The problem is they're trying to win this.
They can't win it because they did it. It was embarrassing.
They did accidentally invite Jeffrey Goldberg to be on the chain.
They weren't supposed to be doing it. They simultaneously said
that it happened and that it's a hoax, that it's
a problem, and that it's not because Jeffrey Goldberg is annoying,
which is and I think it's just tactical mistake. I
think it's really bad. But I also think the public
doesn't care. And I think if they had maneuvered themselves
into a position in which it looked like the press
was freaking out, then they could have said, you know,
we have a really successful foreign policy initiative. We make
one mistake along the way, and look at what the
New York Times says. But instead they're going to spend
a week litigating this because they just can't ever admit
that they screwed up.
Speaker 1: John, Welcome, Nice to have you back. What say you, Oh, thanks,
great to be back, guys. I live in the land
of California abundance.
Speaker 2: Have you heard of this new political theory of the
left that's come from my state, that we're so well
governed here, we're gonna make the lost of the country
like California.
Speaker 1: Wait a minute, abundance is actually sort of a buzzworthy theory.
I haven't necessarily put it with the left yet. Are
they trying to hijacket for me from the right?
Speaker 2: James, you're trapped in your little maga media universe. This
is the big thing emerging on the left. Charlie Suer
knows a little bit about this. This is the This
is their new political theory about how they're going to
win it all back. They made a mistake for being
against economic growth, for being in favor excessive regulation, And
what they're going to do is they're going to take
the lessons of California, which are about how government creates
abundance and bring it to the rest of the country.
But before I get to this on signal, the signal question. Look,
I worked in the government. I worked on classified information.
I mean to me, put aside the media store and
whether Jeffrey Goldberg's on this or not. You know, cabinet
officers involved in planning the details of an attack should
not be talking about it on unsecured systems. I can't.
I'm certain that the Chinese and Russians were able to
read this while this was going on, not just because
they were using signal, but they were using their own
personal phones. I guess right. These are not secure government phones,
and these are not Oh, should we do a B
or C. These You've seen the You've seen the texts.
They're detailed times of the tax and what kinds of
weapons are going to be used, who they're trying to hit.
I think there's a terrible, terrible breach of security. So
put aside the short term political who's going to win
or lose? I think this is identifies a long term
problem that the Trump administration and our government have to
fix or something worse is going to happen.
Speaker 1: Right, and for the people, say who were saying, you know,
all right, you megotypes. You know you're the ones who
are all about her private server and her emails. Well,
you know it's entirely possible to be unhappy with both.
Speaker 4: Yeah, she's so annoying with this, James. Every time someone
else does a bad thing, Hillary Clinton says, I too
did a bad thing. Yes, as if she's now inoculated
against the child. She has a piece in the New
York Times today that I actually did. When I read it,
I think was a parody that had been created by AI,
where she says, can you believe it?
Speaker 2: Can I believe what?
Speaker 4: That? You are awful and did awful things for years
and now someone else has done something bad. Yes, I
can't believe that she thinks this somehow vindicates her. It's aw.
Speaker 1: Yes, Well, I too would want to remain relevant and
the rest of it. And I think it is possible
to hold many ideas about many things in one's head.
But I'm still trying to get My brain is still
reeling from the California abundance bit. We can either talk
about signal again. I think we said what needs to
be said. Let's not have this happen again, and let's
dispatch with the hoo Thies. Thank you very much. But John,
going back to abundance, explain this in a little bit
greater detail, because, as I've said, I've heard people on
the right use the term and say that, you know,
the solution to a better America, more prosperous America, is
to get rid of the scarcity end of the world,
global warming, climate change sort of. You know, nineteen seventies
feel where we've just exhausted everything and we're just going
to be the world is running down and there's nothing
to be found. And then of course, you know, we
turn around and find fifteen trillion gallons of oil here
and a billion pounds of lithium there. I mean, in
America is astonishing place, and that we should embrace growth
and embrace all of these things and tell the nimbi's
to go pound sand and also take a lot of
sand out so we can use it for fracking, etc. Etc.
But it seems now that California progressives are believing that
they can use the example of California to produce abundance,
and we're not just talking about the increased revenue of
U haul going from there to Austin. Explain this a
little bit more so.
Speaker 2: The New York Times columnist and pundit who I'm sure
you'll invite on the show to browbeat Ezra Cline, has
a new book out, and he's going around the country.
He's being speaking to packed audiences. There's all kinds of
media about this, and the Times and the post in
the Journal about Their argument is after their loss, they're
proposing a new platform for the Democratic Party progressives, which
is they have to be pro abundance. That they've been
anti growth and excessively rightlating and all that their pro
government regulation approach to life has actually made the social
problems the left care is about worse. So they say
the big obvious problem is homelessness. They recognize now that
all these environmental reviews, all their zoning restrictions, all their
government planning bodies have made it impossible in California to
build any new housing. So they actually say California is
an example now because you now have pistoff cities like
my city at Berkeley. Berkeley actually got rid of zoning
entirely so that I'm allowed to I get tear down
my old house and put up an apartment building there
if I wanted to. So this is the interesting thing
is you have these people on the left saying, we
have been too favorable to government. We have to pull
the government back and we have to figure out a
way to let the market and the economy solve our problems.
The other two problems so that they point to not
great examples for them. So the other one they point
to is how can we can't build a high speed
rail from La to San Francisco when they can build
them all in China in the course of a few years.
And then the other example they have is, oh, nuclear power.
Suddenly they're in favor of nuclear power because they said,
it's so hard to get permits to build any kind
of infrastructure in the country, to build the energrey grid,
to develop non carbon fossil non carbon energy sources. We
ought to fix that too.
Speaker 1: Well, does anybody believe them, Charles No, No.
Speaker 4: I just think he's a fraud. I've always thought he's
a fraud. The arguments that he is making are partially correct,
and usually I would be pleased by that because I
think that Joanah Goldberg is correct when he says that
you win in politics by getting the other side to
say you're right, not by fighting them on everything forever,
but by convincing them that even if they don't like it,
they have to accept and pretend even that your ideas
are superior. That's what happened to some extent during the
Reagan administration and into the nineteen nineties. But I don't
believe this. I don't believe it because I don't see
any contrition involved. I see no acknowledgment that these ideas
are effectively Republican ideas from the Contract with America of
nineteen ninety four, especially on regulation, and they're from supply
side economics. So what he's ended up doing is while
attacking the right, which has now decided it's for scarcity,
it's another line he's selling. He is arguing for the
things that say National Review has been arguing for for
seventy years, as if they're his idea, and then pulling
them back a little bit from where they need to
be and presuming that they ought to be superintended by
him and his friends and his preferred government officials. It's
just annoying. And I think that the second that the
Democrats get back into power, which they will, the right
is insane to think that there is some generational shift
at play and the Left is vanquished forever, then all
of the special interest groups and rules and legal avenue
is that he's currently decrying will become useful to him again,
because that's how democrats get and hold powers, by sending
out checks to people who they like.
Speaker 1: Right. I mean, if it results in a party that
at its core believes a wholly new, different set of
ideas that will produce a more prosperous America, I'm not
going to complain. And it seems to me that some
sort of repudiation of your priors is in order here,
some sort of acknowledgment that the fundamental ideas that undergird
your entire party and movement were in error, That the
things that supposedly were sold as wise, technocratic, little you know,
gestures of a helping hand, we're not that in the beginning,
and turned into two hands clenched around your windpipe. In
many of these instances, you can't love the state and
worship its power and then just say, oh, but that
thing that is fundamental to us, never mind that we're
now in favor of putting the Wiathan back in the
cage and doing these other sweet things. I mean, if
you believe in these things, you'd be conservatives. You wouldn't
be liberals unless they can find with someway. I mean
what you said there, John, about homelessness. Yes, indeed, California,
the major cities could benefit by some sort of by
additional housing. From what I understand knew, some appropriated millions
of dollars, which has resulted in nothing. They're supposed to
have these little tiny houses where that people could go.
Speaker 2: Billions billions. We don't do anything in the millions here, James, billions.
Speaker 1: Billions, and none of it resulted in anything. I mean,
it resulted in money going to NGOs, which would then
go to another NGO, which would then go to a study,
which would then go to a pot program. I get
that if that's the intention of all the spending, and
then it was successful. But a lot of the reason
that you have the homelessness on the streets that you
have is not because of a lack necessarily of housing,
but because a nexus of drug abuse, mental illness caused
by drug abuse in many instances, and just sort of
a dispositional disinclination to go inside and live there. You
have to have a series of draconians. So what would
strike people is draconian social policies to accompany that. That
would result in more criminalization of drugs, which would result
in more people in prison, which would result in all
the things that they don't like to do because they
don't want to be mean to the people are homeless,
because they're just like you and me. So I mean
a lot of these things seem like half measures. And
while Charles is correct to point out that they'll probably
changing their tune once they get in power, the problem
isn't that they've spent all this money on lightrail that
goes nowhere. The problem is is that they haven't done
the light rail thing quick enough. Right. It's not as
if the train to nowhere isn't. They don't say it's unnecessary.
They just say, well, we need to build national grids
of high speed rail. We just need to be able
to do it like China. And again I'm questioning it priors.
We don't need a national passenger grid of high speed rail.
And I think that there are a lot of people
on their side who would would the blood would drain
from their face if you said that, because you know
what's the alternative, Well, the alternative is planes. What's the
matter with planes? Will planes cause global warming? They have
to give up global warming, they have to give up
their fictions about the homelessness. They have to give up
a lot of things in order to make this stick
and be believable, I think, in order to be intellectually,
you know, consistent. Am I expecting too much?
Speaker 2: I think it's just another version of the Democrats missing Obama.
This is exactly what Obama promised, right, I'm going to
have more more competent and more competent effective government. But
in reality, what did he do? He advanced their high
church ideology, which consists of bending the knee to diversity
and worshiping the environment above it everything else. And so, yeah,
you can make that government work better, as you say, James,
but if the goals of what you're using the government
for are still flawed and mistaken, could make things worse.
Maybe it's better to have a sluggish, dysfunctional government as
long as they if they're trying to use it for
the raw.
Speaker 1: Purposes one can hope, Charles anything on that. Before we
gallivant to another topic.
Speaker 4: I would just add that I think for an awful
lot of people who are involved in the process. The
purpose of the California High Speed Rail project is not
to build California high speed rail. It's to funnel money
around to unions and environmental groups and let them all
fights it out.
Speaker 1: They love that, I know, but you would think at
least that at some point in the process somebody would say,
while we're doing all of this funneling and slashing and
handing out and the rest of it, oughtn't we build
the train. I mean, good old American graft in the
past would at least result in a train we're not
getting on. And of course the people who talk but
the Chinese version forget how much money they spent on it,
and how much debt there is built into the system,
and how it's I mean, it's just it's it's not
a good thing for them. It just doesn't. Trains really,
I mean, I love them. I love to go to
Europe and right around and zip on the trains. I
really do. Whenever I go to England Anglia XP, you know,
mid Anglia, whatever the hell it is to get up
to Suffolk and it's two hours. But you know, I
take a look at the map of England and I
super impose it over Minnesota, and it's about the same,
and I think, yeah, I could have driven this, I
could have anyway. So on to legal things, because we've
got a legal expert here, John. The deportations or the
attempted deportations, or the beginning of the deportation efforts have
got people convinced that the Black Mariahs are pulling up
and throwing people on the back for no particular cause,
and there's no due process. This is all wrong, it's
anti constitutional. Let's have some clarity about this, because I'm
sure it differs from case to case. What we're talking
about here. Tell us your legal perspective on the deportation
of the of the students of the student visa people.
Speaker 2: Well, you already have a legal expert. You've got Charlie
on the podcast. I'm just here for the comic relief,
my friend. I mean, Charlie's a common law English trained
lawyer of my friend. We don't need any of our
American innovations. They got things pretty well right. This is
a this is a hard case. You know. This is
of course being raised by the deportation of aliens students
who've been participating in these pro Palestinian protests on college campuses.
You know that one of the high profile cases is
fellow Khalil, who's a Columbia graduate now who has a
green card. He's a permanent resident alien, and he was
grabbed by the government and in the process of being
removed from the country. So this is a This is
a hard case because if he were American citizen, there
would be no doubt he has a free First Amendment defense.
He could say, look, I'm being punished for my views.
All I was doing was I was showing up at
these protests and saying things. I have a right to
protest is recognized by the Supreme Court. The problem is,
this is a really hard part of it is aliens
may not have exactly the same rights as citizens, even
the ones in the country. For example, the government is
allowed to stop people from coming into the country based
on their beliefs. The government is allowed to say we
don't want someone to come into the country and get
a visa because we think they're harmful to our national
security and foreign policy. And this is not just the Constitution.
This Congress has written this in a statute. And one
example I like to give is I haven't seen it
mentioned in the media. But in the nineteen eighties, I
believe the Reagan administration refused to let Yasser Effact come
into the country even though who is coming to speak
at the UN because we said he's a terrorist. So
the government's allowed. And then the government, under this same law,
under the Immigration Act, is allowed to kick people out
of the country who are aliens who are thought to
be harmful to our national security and foreign policy. And
there were cases from the nineteen fifties and early sixties
where the government kicked out Communists who had gotten into
the country. So I personally would prefer not to see
the government kick out people just for showing up for protests.
I think the more trustworthy standard that will apply to
citizens as everyone else is there's a difference between conduct
and speech. If Khalil, if some of these other students
were doing more than just protesting, if they were engaged
in organizing efforts to target and harass Jewish students, if
they're engaged in moving money around, if they were essentially
aspiring to hurt the civil rights of Jewish, to commit violence,
to take over buildings. To me, that's not just speech,
that's conduct, and I think the government can punish you
for that. So I think that's a fine line. I
think that's the one we should try to observe, rather
than just kicking people out of the country if they're
only just engaged in speaking.
Speaker 4: Charles, I agree with that. The law that Senator now, well,
I'm still in that mood that Secretary of State Rubio
Adam rated in that clip that went viral with his
usual eloquence, I am told is a real law, and
that will probably prevail in court and maybe non justicable. Nevertheless,
but it does make me slightly nervous for the reasons
that John outlines. I mean, I would have no problem
whatsoever with, either through an administrative rule or through Congress
a set of stipulations being added to f visas and
j visas. For example, that said, ahead of time, you
can go into America and you can do your cultural exchange,
or you can do your student activities. But if you
interrupt speakers, if you occupy buildings, if you prevent others
from learning, if you are credibly accused of interfering with
civil rights, then you're out. That's fine. And of course
those people don't have the same rights as a Green
card holder, which is a US person or a citizen.
But when we are talking about viewpoint, I think that
goes a little bit far for a couple of reasons.
First off, I look back to when I was on
a j visa. I was pretty brutally critical of Barack
Obama's foreign policy. I also was a Second Amendment advocate
who could credibly at points have been accused of sedition
because I said that I think the Second Amendment protects
the right of the people to overthrow the government if
it becomes.
Speaker 2: Why did you say that in the past tense?
Speaker 4: No, I'm right, but I'm protected now. So I wonder
could Barack Obama have had me deported perhaps. So that's
the first thing is I look back and I think
if it's purely viewpoint that we're dealing with, then it
seems a bit of a slippery slope. The second reason
is that I just think that on the merits, the
idea that somebody who writes in ourp head, which is
one of the cases, or even this Khalil figure, is
practically damaging the foreign policy interest of the United States
is just silly. I mean, if you go back to,
for example, the case of Schenk in nineteen nineteen, which
is where the fire and a crowded theater line comes from.
It's since been overturned, really by Brandenburg. But if you
go back to that case at stake in that case
was a Jewish Russian immigrant who handed out leaflets in Yiddish,
and the Supreme Court said, well, this is this is
meaningfully hampering the US government's capacity to fight World War One.
And I think that's hyperbol that's true. So I look
at these guys and although I load them, and I'd
love to tighten up the system that brought them here
in the first place, or change the promises that they're
obliged to make before they come in, so then you
can deport them for violating that promise. I'm just not
persuaded that that law, even if it prevails, which you
probably would legally, is a good one.
Speaker 1: I agree with the actions not speech, because you're deporting
somebody for that. I mean, the definition of what is
is not can be wrong, think can be rather elastic
depending on whether or not you want to reward this
and punish this. So I agree with that. I'm just
telling one of the reasons that I think that something
inside of me says I'm less concerned about this than
perhaps that I should be. Is the idea of going
to another country, being let into another country, and then
going to a rally and shutting down anybody who disagreed
seems like a colossal active in gratitude if nothing else.
I mean, I just don't get that part. But anyway,
I suppose if you regard yourself as a member of
a transnational group of enlightened people who are world citizens,
that the idea of contravening the order of the country
that lets you in as irrelevant. What matters is doing
the right thing on every possible stage. But I think
Charlie's correct, and I think that's that. But that brings
us to the Alien and Enemies Act? Are we John
applying this correctly? The administration's justification has been that trend
which has replaced M thirteen as MX thirteen ORM three
or am I Mississippi Mississippi thirteen right, which is a
congressional district. It's replaced MS thirteen as the foreign violent,
hyperviolent drug dealing bugaboo. And they're bad, they're bad guys.
They ought not to be here. And the administration has
said that actually the reason that the aliens and Enemies
Act applies. Is because the government of Madora sent them
here to cause mischief and mayhem? Is that a tenuous
assertion justification? Does it really matter? Does the law apply?
Do we really care? Because what matters is seeing these
guys having their head shaved and stuck in an al
Salbado prison.
Speaker 2: This is again a tough question. I think you can
think about the tough questions here. John. You think about
the controversy in two ways. One is just based on
the facts. If you were deciding, do you think the
Alien Enemies Act applies? And then two, who in the
government is the right person to make the decision? So
this is a law right pass in seventeen ninety eight.
It was passed to address the quasi war with France.
You know, I thought we were on the right path
back then. We should have just continued the War of
France and finished them off, but we stopped, and I
think we could have gotten Great Britain on with us
at that time, fixed a lot of future problems in
world history. So the Alien Enemies Act is very interesting.
It's only been used three times in American history, War
eighteen twelve, World War One, and World War two, and
it says during a period of a declared war or
and this is the part of the statute that's never
been used till now, or during an evasion or predatory incursion.
You got to love the way people wrote laws in
the eighteenth century, right, No, you know, going across the border.
I love that predatory incursion by a hostile nation or government.
If that occurs, then the president is allowed to kick
out of the first not just detain and then kick
out of the country any citizen or native of that country,
of that hostile nation or government. So people don't know this,
but for example, in World War Two, Germans and Italian
citizens were rounded up all throughout the United States, actually
all throughout the western hemisphere under this law. And it's
actually part of a normal warpower. Right. If you go
to war with another country, you assume all the citizen
of that country are now your enemy. And it's a
classic part of war all the way back to the
eighteenth century to catch and hold the members of the
people you're fighting with. So the thing I'm not sure
about here and why I think this is shaky legally,
is the requirement that it be a hostile government or
nation that's working against you. I don't think you could
claim that trend de Aragua is a foreign government or nation.
So you'd have to be able to show in some
way that they are an arm of the Venezuelan government.
That's a hard one. And then you have to show
what they're actually doing rises to the level of an
invasion or predatory incursion. When everyone a miss you know,
these are bad people. They are engaging in terrible violence,
They're engaging in drug dealing, human trafficking. This was the
group that allegedly had taken over apartment buildings and see
I've seen the videos, and we've all seen the videos
of the violence they are engaged in is terrible. But
are they really doing enough to cross the line to
an invasion? Are they really doing enough to cross the
line into a predatory incursion by a hostile country? So
that's one. The second question, then, the one that we're
fighting over now in the courts, is who gets to
decide that the president in Congress or the judiciary. Traditionally
The fact, I would say traditionally, I don't think the
judiciary has ever in our history. Second guest, a decision
by the president and the Congress either or or both
that war or innovation has occurred. Doesn't happen very often
in our history, but the times they have, like the
Civil War, for example, or the War of eighteen twelve,
the courts said, say, that's up to the elected branches
to decide. So, you know, I personally don't see the
facts yet to say this is an invasion. I don't
see facts that it's a predatory incursion. But I'm not
convinced that's the courts that get to make that call.
Speaker 1: Well, predatory incursion, right, I mean, you could say, and
we haven't seen any planeloads going to El Salvador in
the last couple of weeks, as far as I know
that the whole thing was done initially poor in courage
leis eltre as they say. I don't think there's anybody
in the trend that Aqua Clubhouse is sitting around saying, now,
this is not going to pass constitutional muster because we
do not meet the definition of a predatory incursion. I
think that, you know, you know, Laylow and Sciattle, which
is kind of the point, but you know, it's it's
it's amusing to think exactly whether or not this organization
here has any sort of structure to it or whether
or not I don't know. I mean, are any of
them getting orders from Maduro? Are any of them reporting
back to the home office about what may and they're causing,
or are they laying lower the rest of it? I
don't know. Do they have a structure at all? Do
they have an organization? Do they have an HR? I
guess that's what I'm really asking here, because HR boy,
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I almost stopped in the middle there to throw it
to Charles and ask him how he likes his sheets.
I Charles, Do you had something else to add to
the Aliens and Enemy Act or do you have another
legal thing that you would like to pitch towards.
Speaker 2: No.
Speaker 4: I do have a couple thoughts on this. The first
is political, not legal, and it exists independently of the law.
This is just my personal view. I don't like the
fact that the administration has invoked this law in an
attempt to execute these deportations without anyg process whatsoever. And
this is not because I don't want to deport lots
of illegal immigrants. I really do. And it's not because
I think that illegal immigrants should be given rounds and
rounds and rounds of due process and give the government
a run around as a result. It's that it seems
that in this particular case, the big criticism that's being
made is that there is a possibility here that we've
got the wrong person. Now, that is a problem in
and of itself, but it's especially a problem when you're
sending people to prisons in ol Salvador. I mean, if
you were to deport me, I would be very upset
about this, but I would also quite quickly be able
to go back to the border and say, actually, I'm
a US citizen, here's my passport. I can't do that
if I'm in a prison in ol Salvador. So I
do think the bare minimum that you should do, and
again I don't think that we owe a great deal
to illegal immigrants is to determine that they are illegal
immigrants in the first place, and that's a step seems
to have been skipped. That's all I would like to
see done. So when I and others say there's due
process problem, that's mainly what we're referring to. On the
legal question. I don't know what John thinks about this.
The claim that the administration is making is that the
Act of seventeen ninety eight is in toto non justiciable.
That is to say, the courts are just not allowed
to get involved. And that's not quite how I read
that Supreme Court decision, although perhaps I'm wrong. First off,
there's a footnote in there that says judges are allowed
to get involved in determining whether or not the Act
applies to individuals. That is, whether individuals are fourteen years
or older and whether they do belong to the group
that's been covered. But beyond that, the case from nineteen
forty eight, which I read last week, applies entirely to
instances in which a war has been declared, and that
is the only times that this Act has been used,
three times when wars have been declared by Congress. And
what the court ended up saying was, Okay, the war
is over in some sense, because it's nineteen forty eight
by the point it's litigated. But when you declare war
and when you wager war, there's lots of after sharks,
and determining when those after sharks disappear is an intrinsically
political question the judiciary can't get involved with. Also, the
Second World War, in Congress's eyes, actually didn't enter on
nineteen fifty one. Congress didn't repeal the war decoration till
nineteen fifty one. What we have here is a second
part of the Lauris John says, which is to do
with an invasion. Although the word is not declared, the
word is proclaimed in the law. And I just wonder
whether this might be more justiceable John, because the court
case that I read had nothing to do with the
invasion part, and all of the reasoning and the cited
text had to do with the declared war bits. So
is it possible this actually will be looked at by
the Supreme Court and they'll say, well, the courts can
get involved when it's to do with an invasion, or
do you think they'll come to the same conclusion.
Speaker 2: It's interesting. Well, first I should have made clear that
the most interesting thing about this is it has to
do with the movie The Godfather, because you may remember,
do you remember at the beginning of The Godfather, all
these people come in to see, you know, Don Corleone.
They're asking for favors. You might remember. One of them
is the baker, Enzo's future father in law, and he says,
you know, Enzo, he's taken prisoner. He's an Italian, and
he's brought into a paewcampy, United States, and he meets
my daughter. And you know what happens, Don Coroleono, can
you please use your great power to keep my future
son in law in America? Because what happened the case
Charlie's talking about ludy Kei Versus Watkins was after the
fighting stopped in nineteen forty five. The declared war didn't end,
as Charlie says, until we made the mistake of letting
Germany become a country again, and once we did, we
ended the war in the fifties, right, But during that period,
Truman kept kicking all the Germans and Italians out of
the country. He kept sending them back under the Alien
Enemies Act. And most of them didn't want to go
because they had been here in the United States. They
had actually been performing all the farm working jobs and
factory jobs that all the Americans who are fighting had
left behind. And so you had thousands and thousands of
Germans and Italians in the United States who sued to say,
I don't want to go back. The war is over.
So it's exactly as Charlie describes. So this is the
interesting thing I was gonna guess. I think, first of all,
the issues are exactly as Charlie describes. One, is it
a declared war or an invasion? Who gets to decide?
Are the courts going to step in? Then the second question,
where I think Charlie is right, is what kind of
due process are the courts going to require to kick
any of these people out, whether it's an Alien Enemies
Act or the immigration laws. I think he's right. The
courts have said you get some kind of due process.
This is the lesson of the Guantano Bay cases, which
I think the government the court incorrectly, but the Guantanma
Bay cases say it's wartime the court. That's another example
of the court as we accept the nine to eleven
attacks are war the President of Congress degree. But if
there are going to be enemy prisoners who are held
in the United States, and that's where I think they
were wrong. They said Guantanmos part of the United States,
but they're in the United States, they get due process,
and the power of the government there was much stronger
than it is here, I think, because there you got
a real war going on. So I think for sure
they're going to get due prositrolleys. Right, we don't know
what level of what kind of it's going to be,
but they will get something so that you could make
sure there's not an error, you know, that they're not
kicking someone out who's not a member of the gang
or who was in Venezuelan. The first question, though, that's
you know the US say. Historically the courts have said
it's a political question whether something's even in invasion not
under this statute. The only example we have is the
Civil War, and there's these great cases called the Prize cases,
where these people who owned Southern ships that were captured
by the Union right at the beginning of the war
went to the Supreme Court said give us our ships back.
There was no war going on, Congress wasn't in session,
they didn't declare any civil war, any rebellion, and the
court said there if the country's attacked, it is up
to the president to decide, and it's up to the
president to decide what kind of force to respond with,
and courts can't review that decision. Now, the president they're
talking about is someone named Abraham Lincoln and not Donald Trump.
I can see that. So you could see a court
these days being a little more skeptical. But you also worry,
how does a court know whether something's an invasion or not.
The DC Circuit, the Appeals Court here that just you know,
a day or two ago, upheld Judge Bosberg in junction.
Two of the judges there said, we can't judge whether
this is an invasion, and it's not. This is not military.
But do we How do courts really make that decision?
They need to have access to classified information and diplomatic
and national security information that's really not in their Ken's
and that's been why courts, I think historically have stayed
out of it.
Speaker 1: Well, well, seeah, this develops. I mean, basically, you got
a lot of people in this country eighty twenty I think,
who are pretty much in favor of guys who have
been shielded by a sanctuary city after committing X number
of crimes on people and children and the rest of it.
They are not particularly concerned about their fate. I'm not
saying that's a good thing or a bad thing. I
just think in general the electorate will regard this with
kind of sort of a shrug.
Speaker 4: Well, it's a great thing to deal with those people.
Of course, we do need to determine that they are
those people and some guy who runs a lone drevet.
Speaker 1: Yeah. No, you're absolutely right.
Speaker 2: And the one other point is these they're not getting out.
They're already in detention. And even if you can't hold
them under the Alien Enemies Act, you can still hold
them under the immigration laws, and they can still be
deported under the normal immigration laws. But as Charlie said,
it takes a lot longer. There's a lot of levels
of review. You got a right to go to court
to stop it, and I think there so I'm puzzled, actually,
why the administration wants to use the alien enemy setter.
What is the advantage you get. I think that first
they thought you could do it and not have to
go have any hearings at all. But I think they've
lost that one.
Speaker 1: Well, let's look at some court cases coming up. You know,
things are going to turn through. There's gonna be temporary restrained,
but there's some interesting and philosophically distinctive cases coming up. John,
why don't you tell or you know, tell us about
the Federal Communications Commissions the consumer's research, Because this has
to do with some sort of ancient tax that may
not actually be applicable or useful or necessary in the
modern world. You've got ninety seconds to tell the class
what it's all about. Go plastic.
Speaker 2: Example, the administrative state and Congress, not wanting to make
hard choices, Congress gave to the SCC the power to
basically impose a tax on everybody's telecommunication bills so that
they could build out the network for a universal service.
The FCC then turned around and gave the power to
get another body, which is made up of people who
work for the companies, Right it was basically made up
of corporate representatives of this industry. So this raises the
very important question of what's called the non delegation doctrine.
Is there a constitutional principle that says there's a limit
on how much power Congress can give away? Is there
a requirement under the Constitution that certain decisions have to
be made by Congress. So I always like to say,
because there's some people who say, in fact, I would
say most academics would say, no, there's no limit. If
Congress and think about like things like the Clean Air
Act that just says the EPA can do what's necessary
to make the air clean, and the course of upheld that,
even though it seems to me to give the entire
legislative power to the EPA. So I've always said, could
Congress say the IRS shall determine all taxes in the country.
They can set all the rates, It can decide what's text,
it can decide what's not text. And Congress just says,
just make sure you raise one hundred billion dollars to me.
That would violate this idea that there are limits on
how much power Congress can give to the agencies. But
the Supreme Court has really struggled. They have not struck
down a law on the non delegation doctrine since nineteen
thirty five, I think nineteen thirty four, before FDR threatened
to pack the courts. But this is the interesting thing.
Five of the conservative justices of the Supreme Court have
said in various cases, never all at once, never together,
but in various cases they all think there is such
a limit, but they can't figure out what the right
test is and how to apply it. So if you
do the if you figure out the chess board, I
think the Supreme Court is going to strike this down,
But I'm not sure how they're going to agree on
what the principle is going to be and how you're
going to say, Congress can give away some power, but
they can't give away all the power. By the way,
one of the most important could be one of the
most important decisions, much more important than things like what
we've talked about for Lope or Bright and Chevron. That's
just eating around the edges. But if the courts were
to say Congress can't give power to the administrative state,
that could be a real dagger in the heart of
progressive government.
Speaker 4: John, do you think it's going well. I was going
to ask whether you think that it's possible that instead
of reaching the key question of delegation, that the court
strikes down this delegation on really narrow grounds and says
you're not allowed to delegate delegated power to a private
institution and doesn't reach the difficult authorny stuff that I
love them too.
Speaker 2: Yeah, there is that possibility. They could raise some difficult
problems for lots of important agencies. Nonetheless, not just Amtrak,
but the Federal Reserve. Have you ever looked at how
the federal Have you ever looked at who's on the
Federal Reserve and how they get there? Right, it's like
local banker, like regional banks get to appoint members of
the Federal Reserve and they work for the industry effectively.
Speaker 1: Let's say this goes the right way, and then you
have Chevron as well. Do you think anything is actually
going to happen? I mean, has anybody actually gone back
to these aspects of the administrative state where they promulgated
regulations in excess of their authorities, show we say and
done anything about striking them down. I don't you know,
post Chevron, you thought you there.
Speaker 2: This is how we get California abundance. Because I would say,
if there is a set of laws that really burdens
the economy, slows everything down, as the environmental laws, right,
your usual partner in crime, Steve Hayward. I'm glad he's
not here because otherwise he'd want to wax eloquently about
the clean air and clean water actions. You don't want
that on a family show. But he would say, you
look at what slows things that. I think those are
the laws that have the biggest delegations. I wasn't making
it up. The Cleaner Act basically just says, ep, hey
make the air clean. You can do whatever's necessary in
the public interest to make the air clean. Those laws
are so vague, they give so much power to the
environmental agencies. They interfer in so many aspects of our economy.
That's what's slowing down all the infrastructure and investment and
all the clean power projects and all that, as well
as things like roads and pipelines and construction projects and
even just building houses. So I think if you could
create something that actually said Congress can't get away by
just dumping all this power, all this amazing sweep of
power on these agencies. You might have more accountable government
and you might have more responsible decision making.
Speaker 1: Agreed, there's another one. We're going to do another Supreme
Court case. You're coming up. Why don't you tell us
about the United States versus a poor little pheasant, own pheasant.
Go on with that usv. Pheasant.
Speaker 2: I have no idea what that case is. You've got
me stumped, James. I didn't know this is going to
be a lightning round.
Speaker 1: It's the BLM case. Charles. Have you heard about this?
Speaker 4: I don't think so. Can you explain the outline.
Speaker 1: Well as I understand it, based on the very brief
preiseis that was handed to me minutes ago the Bureau
of Land Management. The suit regards their authority to make
rules for federal lands, which is then delegated to Saints himselves.
Speaker 2: So I thought you it was a case about a
pheasant like a bird.
Speaker 1: No, that's the guy's name, the guy who was driving
the motorcyclist right riding a dirt bike on federal land
without a tail light. And apparently this is you know,
this is not a federal issue.
Speaker 2: This is again, this is the same non delegation doctrine
case and as you say, you describe it accurately. He's
claiming that the Congress gave too much authority to the
bureau lammit. So again, I think this is the starting
point where you could start to build a non delegation doctrine.
It's the Congress. If they can't there's got to be
some powers they can't give away. And guess one of
them is the power to tax. The Institution says, the
Congress has the powered taxes, says, and give special rules
about how you pass laws about taxation. It would seem
to me the other kind of law that Congress should
not be able to delegate would be criminal law, laws
that have punishments behind them for violating them, Because how
are you supposed to know as a citizen whether what
you're doing is illegal or not if it's just up
to some agency that issues of regulation that it can
change a monkey around with from year to year. So
I think that's this case could provide that other kind
of basis for building a non delegation doctrine for you
to say, Congress also can't delegate this power to set
crimes or to set fines that punish people, because you
have a right as a citizen to know. And it's
such an important aspect regulating that private rights and legal
duties of citizens should be made by Congress, not by agencies.
And I think that's the kind of thing the conservatives
on the Court could agree with. I think if you
go back and look, you know, I blame the English.
I mean, I think they were right. But this idea
of the non delegation doctrine, I should say, comes from
John Locke. There's a passage in Locke where he says,
you delegate power. You know, the basic theory is, you know,
we're citizens, we delegate power to the government. And then
he says, you can't have a redelegation as actually as
Charlie said, key redelegate then from our agency. Can they
keep delegating endlessly and endlessly? And Locke says no, it
has some stopping point. And you would think that the
right to make the criminal laws and the right to
pass taxes would be the kinds of things we would
only want our direct representatives to be able to do.
Speaker 4: I have an even more radical hope for this one, James,
if you'll permit me a couple of minutes, Yes, of course,
this is not going to happen. But one of the
arguments that the plaintiffs have made in this case is
that the federal government does not have, in the first place,
any enumerated power that allows it just to hold land.
In other words, obviously, as part of the enumerated powers
that the federal government does have, it has to be
able to own and manage land. If you accept that
the federal government has the power, for example, to run
a military, then it's going to need to have ports
and bases and airfields and so on. Likewise, if you
accept that the federal government's going to have Article three judges,
then you need to have courthouses. But a lot of
the land that is out there in the West, in particular,
is just owned by the federal government. It's not that
it's using it for something else that is listed in
the Constitution. It just has it. It was never homesteaded.
And one of the arguments that's been advanced is it's
not allowed to do that.
Speaker 2: Now.
Speaker 4: The reason this isn't going to happen is, Firstly, it
would be pretty radical for the Supreme Court at this
point to say, by the way, you weren't allowed to
do that. Second, people love national parks and I also
like national parks. I think if you applied an originalist
lends to national parks, you might have trouble justify their constitutionality.
And there's just no way that's going to happen. But
I would love to see a ruling that limited the
federal government's capacity just to have this land, because once
you have land under federal control, the federal government has
plenary power to do whatever it wants on it, set
whatever rules. Now, of course John's totally right. The problem
in this case is that this is done bureaucratically rather
than by Congress. But Congress could also do whatever it
wanted on that land. So if you live, for example,
in Idaho or in Nevada, two states that are full
of federal land, you may think that you are governed
by your state legislature and your governor. But in most
of the space in those two states, you're actually not.
You are governed by the Bureau of Land Management, and
that presents its own problem independently of where the power
lives relative to the legislature and the executive. That presents
its own problem in terms of federalism, because you've got
this state that is mostly run and administered from Washington.
Speaker 1: There you go, committing sedition again, Charlie. Yeah, he gets
all of his right papers and then he turns into
a complete radical. I tell you that's a wonderful transformation.
Enough law, enough politics, enough of all of this stuff.
We'll end with what the Internet did this week and
went crazy. Open AI opened up, released a module, a program,
an app. I don't even call it, call it, I
don't care that. Let anybody studio gilby themselves. I actually
have had access to that through my own AI generating
program for an awful long time. It wasn't very good.
I mean, it was called a ghibli Twilter filter, but
everybody was running every single picture that has been taken,
every iconic and I hate to use it. I'm sorry.
I did picture through this filter and some of them
were kind of amusing, and within about six or seven
hours or so, we were all completely and utterly sick
of it. I don't know if either you guys did
that to yourself or what your approach is, but I
was seen by the end of the day a lot
of pieces saying that AI art is essentially fascististic and
that this just proved it, and that frankly, it's disrespectful
and horrible to our cultural history to use this fascist
tool to generate images which which the right wing love.
And I was unaware necessarily of a political distinction between this.
But apparently AI art is now fascist coded. You guys
get that vibe that hadn't occurred to me. Okay, well
it's true, Charles, because I read a piece on a
tech website about it.
Speaker 4: Is it that that style? You said it's called ghibli.
I was wondering how to pronounce that gimbli gimbly.
Speaker 2: You know, Japanese anime movie. Yeah, why you would want
to make a picture yourself looking like that is beyond me.
Speaker 4: But why is it fascist? Sorry? Is it fascist? Or
is the use of it fascist?
Speaker 3: Oh?
Speaker 1: The use of it is fascist. The image itself isn't
because everybody loves the studio because they watched the movies
when they were growing up in the great memories for them.
Speaker 2: Because the company, because like Google and Microsoft and Facebook
are well known fascist companies.
Speaker 3: And.
Speaker 1: That's one of the the article says, zuk is Zuchus
code and fashion. Now, absolutely they were using the example.
Speaker 2: But James, this reminds you, wasn't there like a year
ago when you you could say, show me a picture
of the Queens of England and it generated all the
AI just generated all these PC versions.
Speaker 4: That was Gemini.
Speaker 1: That was Gemini. That was that was work.
Speaker 4: Yeah, Like the best moment does was if you put in,
you know, show me a union a Confederate soldier, then
they were the Confederate. I thought it would be black
or Nazi, and it'd be Jewish. And just because they
were picking ethnicities and religious views at random assigning them
to people because that's whatever the I is, right, you
have to have representation in all spaces.
Speaker 1: So it wasn't necessarily at random that there were some
parts of it that were actually forcing that, as you say,
because you had to have representation. They didn't want to
biased AI. No, it's because people like you know, the
Argentinian president and their own administration, and Nazis in general,
the return type, the traditionalists, the trad bros. They love
to use AI to generate these images of an idyllic
white America that never existed. They use it to generate,
you know, sort of Facebook AI slot pictures of Donald
Trump crossing the Delaware by walking on the water, all
of that stuff. So the very fact that people with
very limited imaginations are not a great deal of artistic ability,
are using this decree political images means the whole thing
is now fash So you know, you know, everybody's a Nazi.
Speaker 4: It's great, isn't it. There's so much now that's fascist,
And I'm just glad that this gets its moment in
the sun.
Speaker 1: Exactly. I would think actually that giving to the people
a tool which allows them to create art of whatever
style of variety and message that they like, that that
if that is fascism, then I'm not exactly sure what
you word you use to describe a state directed effort
that constrains the expression of any cultural idea and forces
it to conform to the ideas of the state and
glorify the state. That seems to me to be your
more FASc thing. And the open ended tool that everybody
can use over here doesn't seem to be that nazisque.
But what do I know that.
Speaker 2: Brings to mind just this funny little stary Oh, can
I just tell us weird lot, this little tidbit about
being in California, which is, you go to a shooting
range in California, which is not easy to do these days.
And you pick targets, you know you're allowed to pick it.
You're not a out in California, I don't either this's
the range owners or the there's a law. But it's
very hard now to find a kind of image that
you're allowed to shoot at because you want to shoot
at something you hate. You're not allowed to hate anybody anymore.
So you don't have like a picture of a deer.
You don't have criminals, because you know, criminal suspects could
be bad. You could have you know, racially insensitive drawings.
So the only kind of target that's agreed on by
everyone as okay to shoot at Nazi zombies. Okay, that's
life in that's life in the land of abundance.
Speaker 1: Yes, well when the culture I mean, and this is
a culture that used to sell Hitler and Mussolini decals
for urinals. Some men could improve their aim back in
the back and back in the days.
Speaker 2: Ah.
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So do it. Maybe Stephen will be back next week,
maybe he won't. Maybe Charles will be here, maybe he won't.
I will John. It's been fun and great and you know,
we got to have the legal questions we'd like to
post you, but it's always a pleasure to have you on.
Go forth and shamrock, shake your way through the weekend
and enjoy yourself and we will in Charles by. We'll
see everybody in the comments at Ricochet four point oh,
any of them see you next week Ricochet. Yeah, join
the conversation.