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<v Speaker 1>This special episode of the Three Whiskey Happy Hour is

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<v Speaker 1>coming to you from the Highlands of Sicily.

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<v Speaker 2>Well whiskey coming, take my pay the money.

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<v Speaker 1>Why think alone when you can drink it all In

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<v Speaker 1>with Ricochet's Three Whiskey Happy Hour, join your bartenders Steve Hayward,

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<v Speaker 1>John U and the International Woman of Mystery, Lucretia where.

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<v Speaker 3>They slapped it up David, ain't you easy on the

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<v Speaker 3>should chaps got it?

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<v Speaker 2>Give me.

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<v Speaker 4>So as threatened and the teaser. Lucretia and I are

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<v Speaker 4>in the Highlands of Sicily.

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<v Speaker 1>Awaiting the arrival of John Yu, who is late as always,

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<v Speaker 1>but we have a substitute for John who actually we've

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<v Speaker 1>been wanting to have one for a long time and

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<v Speaker 1>we just haven't gotten her act together.

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<v Speaker 4>And it's r J Pastrido, the.

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<v Speaker 1>Dean of Graduate Education at Hillsdale College.

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<v Speaker 2>R J. Welcome, Thank you, very good to be here.

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<v Speaker 1>Good it's been long overdue and hopefully first of many,

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<v Speaker 1>because you know, we have a rotation we want to

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<v Speaker 1>do now because we you know John sometimes we kick

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<v Speaker 1>him out after a while and pull on up, Michael

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<v Speaker 1>if you want to listen in we are podcasting and uh.

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<v Speaker 2>And yes, right yeah, something like that.

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<v Speaker 1>Right, So Archie, before we get into the main topic,

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<v Speaker 1>you're also a descendant of people from Sicily.

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<v Speaker 2>That's right, which I did not know.

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<v Speaker 4>So where and when and who and how and you know,

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<v Speaker 4>give us a little thumbnail bio.

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<v Speaker 2>Yeah, my grandparents are are all from southeastern Sicily, or

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<v Speaker 2>at least you know, from when they were very young.

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<v Speaker 2>And uh so we are not too far from where

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<v Speaker 2>all of my my people hail from. They were from

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<v Speaker 2>the small towns around Siakuza, Syracuse, right and now my

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<v Speaker 2>the relatives that I still see are actually in the

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<v Speaker 2>city now in Syracuse. So this is say, if this

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<v Speaker 2>is the first time I get to be on the

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<v Speaker 2>three Whiskey Happy Hour, I'm very pleased that this is

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<v Speaker 2>the location we chose for it.

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<v Speaker 1>Right, and listeners should know that while we don't have

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<v Speaker 1>our usual single multier in front of us while we're

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<v Speaker 1>taping the night, we are going out for dinner afterwards

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<v Speaker 1>here in Italy and where we will catch up we

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<v Speaker 1>will find them in every way imaginable. One more and

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<v Speaker 1>more detail. I'm just curious about so as your parents

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<v Speaker 1>came over grandparents.

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<v Speaker 2>To the state, the grandparents when they when they when

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<v Speaker 2>they were very young. Okay, you know, so really the

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<v Speaker 2>great grandparents were the ones that that that made the

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<v Speaker 2>move right. And then my name got changed slightly in

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<v Speaker 2>Els Island. So it's pees if you go here to

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<v Speaker 2>to Floridia, where the piece tritos are from, it's p

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<v Speaker 2>I s.

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<v Speaker 4>Oh, okay, oh interesting.

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<v Speaker 1>One reason I was curious is so the town of

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<v Speaker 1>Anna that we're in I learned when I was reading

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<v Speaker 1>the war history from World War Two, this was actually

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<v Speaker 1>the German military headquarters.

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<v Speaker 2>I did not know that. And it was overrun, you know.

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<v Speaker 1>By Patton and Bradley in you know, July of nineteen

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<v Speaker 1>forty three, and and so you know, I've sort of

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<v Speaker 1>read about it previously, but now that was in the area.

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<v Speaker 2>You know.

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<v Speaker 1>So Montgomery landed sort of north of Syracuse, and whereas

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<v Speaker 1>Patton's army landed on the south coast. I forget the long, long,

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<v Speaker 1>long beach, you know, fifteen or twenty miles of beach.

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<v Speaker 1>I forget the names of the towns now and let

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<v Speaker 1>north up the middle. And Montgomery was supposed to go

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<v Speaker 1>up the east through Catania to cut off everybody in Messina

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<v Speaker 1>and failed to do so.

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<v Speaker 4>And that's part of the drama of the movie and

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<v Speaker 4>all the rest of that.

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<v Speaker 1>So and it was fun to actually see the geography

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<v Speaker 1>and see But then I had never paid attention to

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<v Speaker 1>the fact that Anna was a primary target to decapitate

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<v Speaker 1>the German command. So here we are, and of course

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<v Speaker 1>an old city goes back to I guess Roman times

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<v Speaker 1>and so forth. In any case, all you most want

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<v Speaker 1>to talk about you, first of all, is your very

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<v Speaker 1>provocative paper.

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<v Speaker 3>Before you go there.

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<v Speaker 5>So I just want to say that of all the

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<v Speaker 5>famous people that I've had the fortune of meeting in

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<v Speaker 5>my relations with John you and you, the one I'm

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<v Speaker 5>as actually most excited about was meeting R. J, which

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<v Speaker 5>I did a year or so ago for the first time.

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<v Speaker 3>As I recall, because.

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<v Speaker 5>Even though I went to Claremont and all of those

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<v Speaker 5>other things, I never really quite understood progressivism, and still

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<v Speaker 5>until I started reading Margie right and then I, as

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<v Speaker 5>I mentioned earlier to him, I've used his class, his

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<v Speaker 5>excuse me, his text in my class for years to

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<v Speaker 5>teach progressivism.

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<v Speaker 3>To my students.

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<v Speaker 4>Which one in particular, I.

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<v Speaker 3>Mean, the American progressivism.

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<v Speaker 5>It's a it's a it's got his editorial comments on

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<v Speaker 5>the all of the different progressive thinkers, which is as

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<v Speaker 5>it's a three hundred level of American political thought class.

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<v Speaker 5>But I added that to my class after I read

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<v Speaker 5>your book.

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<v Speaker 2>Well, that's great to hear when that that that collection

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<v Speaker 2>came out of the early work that I did on

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<v Speaker 2>Wilson and the other progressives. And I when I wrote

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<v Speaker 2>that monograph on Wilson, I had all of this material,

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<v Speaker 2>and then when I wanted to teach it in class,

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<v Speaker 2>I had to compile, you know, pounds and pounds of photocopies,

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<v Speaker 2>and that's when I proposed making a reader out of it.

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<v Speaker 2>And so I use it for exactly say purpose. You

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<v Speaker 2>know that you do so, But that's very kind.

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<v Speaker 1>Of you to say, Well, that's why I asked which book,

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<v Speaker 1>because I think, what was it, Woodrow Wilson and the

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<v Speaker 1>Founding of a Modern what's the subtitle?

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<v Speaker 2>So the monitor the original monograph I wrote on the

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<v Speaker 2>topic of progressive it is called Woodrow Wilson and the

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<v Speaker 2>Roots of Modern Liberalists.

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<v Speaker 4>That's right, thank you.

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<v Speaker 2>And then a couple of read I had a reader

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<v Speaker 2>of works of Wilson specifically, and then a reader more

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<v Speaker 2>generally of progressive era works.

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<v Speaker 1>And I don't want to remind you that that we're

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<v Speaker 1>all getting older, but that book now is twenty years.

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<v Speaker 2>Old, twenty one to be exact.

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<v Speaker 1>And well, I mean that's the book that I think

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<v Speaker 1>first made you justly famous, right, I mean, that's the

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<v Speaker 1>book that what's.

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<v Speaker 4>His name on fox back?

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<v Speaker 1>I forgot about this, yes, But more seriously, I mean

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<v Speaker 1>there's been a lot of our friends had written a

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<v Speaker 1>lot of good insight, a good analysis of Wilson, but

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<v Speaker 1>you really put it all together in one place and

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<v Speaker 1>extended the arguments and I think really crystallized things better

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<v Speaker 1>than anybody had done before.

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<v Speaker 2>Well, that's very kind of you to say. I always

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<v Speaker 2>I like to explain it. You know, our good friend

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<v Speaker 2>Charles Kessler who is our teacher, and he pointed out

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<v Speaker 2>to us the importance of the progressives, right, and with

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<v Speaker 2>a lot of different things that Charles's students have written

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<v Speaker 2>over the years, we had sort of written the books

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<v Speaker 2>that kind of flow from things that the nuggets that Charles,

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<v Speaker 2>you know, taught us and pointed us to when we

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<v Speaker 2>when we were in graduate school. So that's that's how

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<v Speaker 2>that came out, and it continues to have relevance. Maybe

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<v Speaker 2>we'll get a chance to talk about it later. Here.

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<v Speaker 2>But you know the speech by Justice Thomas, pointing to Wilson.

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<v Speaker 2>You know, I've had people calling me even though the

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<v Speaker 2>book's twenty twenty some odd years old.

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<v Speaker 4>Oh that's right. He quoted the book in a speech,

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<v Speaker 4>didn't he.

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<v Speaker 2>I don't know that he quoted me in the speech.

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<v Speaker 2>I know that the hit on Thomas from Ruth Marcus

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<v Speaker 2>quoted me.

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<v Speaker 4>Well, congratulations for that.

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<v Speaker 2>I don't know if that's any distinction.

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<v Speaker 5>Before you forget, you should mention that in because I

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<v Speaker 5>think you linked to it that r J's piece is

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<v Speaker 5>also in the symposium that we all did all right

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<v Speaker 5>for cibas.

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<v Speaker 4>Thomas, it's hard to keep up. I mean there's almost

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<v Speaker 4>a book book. Well is it? I'll get your your

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<v Speaker 4>most recent piece in a moment.

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<v Speaker 1>But is it is it fair of me to say that,

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<v Speaker 1>you know, our prior teacher before that, Jaffa wasn't as

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<v Speaker 1>onto this as well?

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<v Speaker 4>Put it this way, the most famous book crisis of

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<v Speaker 4>the House Divide It.

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<v Speaker 1>He mentions Woodrow Wilson once in the briefest mention in

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<v Speaker 1>passing and seems to kind of approve of him maybe

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<v Speaker 1>a little bit orctually doesn't disapprove of him.

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<v Speaker 2>It doesn't, doesn't.

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<v Speaker 4>I think maybe Jaffa was not.

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<v Speaker 1>Alert to the way that Wilson had misused Lincoln completely

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<v Speaker 1>stripped out Lincoln's core teaching from is he has attempted

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<v Speaker 1>appropriation of Lincoln.

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<v Speaker 2>You put your finger right on it. Because the thing

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<v Speaker 2>that Jaffa really would not have liked about Wilson on

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<v Speaker 2>Lincoln would be that Wilson. Wilson hated the theoretical parts

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<v Speaker 2>of the Declaration of Independence, right, and he oddly thought

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<v Speaker 2>that Lincoln also didn't like those parts. And that's because

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<v Speaker 2>Wilson's very clear really didn't read anything Lincoln ever actually

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<v Speaker 2>wrote or said, right, And so he made that mistake.

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<v Speaker 2>But you're right about about doctor Jaffa. You know, he

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<v Speaker 2>had a soft spot for the New Deal, right, and

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<v Speaker 2>Wilson was an antecedent of the New Deal. I actually

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<v Speaker 2>was very, I must confess, very reluctant to show him

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<v Speaker 2>a lot of what I had written on Wilson because

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<v Speaker 2>I didn't know if he would like it very much, right,

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<v Speaker 2>And so I sort of stayed under his radar. Right.

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<v Speaker 6>Well, I think I think Marini and d and other people,

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<v Speaker 6>but I mean I studied with all three of those

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<v Speaker 6>people and he was not on till I read R.

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<v Speaker 5>Jay's work, But I began to understand the progressive names.

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<v Speaker 5>I've learned none of that even from from earlier.

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<v Speaker 2>Now.

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<v Speaker 5>Of course we discuss it all of the time, but

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<v Speaker 5>I think you really were sort of a pioneer and

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<v Speaker 5>all of that. Now, I didn't take any classes from

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<v Speaker 5>Charles Kessler.

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<v Speaker 3>He was barely had barely gotten.

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<v Speaker 2>There when I was.

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<v Speaker 4>He wasn't even unpacked.

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<v Speaker 5>Yeah, and so so you know, I might have missed

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<v Speaker 5>it from that point of view.

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<v Speaker 3>So for me, you are the pioneer. I'm just going

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<v Speaker 3>to leave it that.

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<v Speaker 5>And I do believe if if if Jaffa understood the

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<v Speaker 5>Progressives the way that you explained them, he would absolutely

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<v Speaker 5>agree with everything you said.

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<v Speaker 2>I Well, I like to think so, because Jaffa was

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<v Speaker 2>so agreeable with with everybody.

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<v Speaker 5>We no I know, but but but but there's the

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<v Speaker 5>whole point of getting ahead of us. But the whole

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<v Speaker 5>point of the progressives is their their fundamental denial of

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<v Speaker 5>a fixed human nature, which was which was Jaffa's central

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<v Speaker 5>point all.

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<v Speaker 2>Yes, more seriously, I think I think you're you're exactly

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<v Speaker 2>right about that. Uh, And it's appropriate to kind of

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<v Speaker 2>be talking about these themes this year, in particular because

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<v Speaker 2>everybody wants to celebrate the declaration, but I think many

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<v Speaker 2>do not want to celebrate the actual principles of the time.

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<v Speaker 3>I mentioned it last week in if you heard it

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<v Speaker 3>about the.

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<v Speaker 4>Hit your microphone? Uh, I've seen misbehaves every week.

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<v Speaker 3>I don't mean too, I'm just anyway. I mentioned it

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<v Speaker 3>last week.

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<v Speaker 5>I'll mentioned again Katie tour Uh took Johnson Mike Johnson

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<v Speaker 5>to task for the ridiculous notion that our rights come

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<v Speaker 5>from God? And are we setting is Mike Johnson setting

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<v Speaker 5>himself against the Declaration of Independence as if she'd never

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<v Speaker 5>read it? So, so, you're right, It's the absolutely most

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<v Speaker 5>important thing I think we could be talking about right now,

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<v Speaker 5>because so many things follow from that basic understanding. Either

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<v Speaker 5>there is a fixed human nature that we can know

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<v Speaker 5>with reasonable certainty and devise a political system consistent with that,

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<v Speaker 5>or you know, history is what decides what we should

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<v Speaker 5>be and governments.

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<v Speaker 3>Should tell us what to do.

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<v Speaker 2>Well, as I started my latest piece that Steve mentioned

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<v Speaker 2>briefly that I suppose we'll get into with a line

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<v Speaker 2>from Senator Tim Kaine, who made who made lots of

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<v Speaker 2>news not too long ago by in a Senate hearing,

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<v Speaker 2>saying he really objected to the idea of natural rights

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<v Speaker 2>because that meant that your rights came from God and

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<v Speaker 2>not from government, and by his lights, they should come

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<v Speaker 2>from the state.

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<v Speaker 4>And that's what the Iranians were.

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<v Speaker 3>Yeah, you didn't, you didn't. You didn't include that last pot.

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<v Speaker 2>Yeah, I know. He was a little confused on that point,

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<v Speaker 2>and poor Ted Cruz tried to straighten him out, but

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<v Speaker 2>that was a lost mission. Well, let's linger a.

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<v Speaker 1>Bit on the sort of students who are rethinking new

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<v Speaker 1>vistas in the American political tradition.

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<v Speaker 4>I think John.

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<v Speaker 1>Weddergreen, who died at age forty three, passed away before

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<v Speaker 1>you arrived in graduate school, so you probably never got

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<v Speaker 1>to medium, that's right. But you know he had hung

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<v Speaker 1>out in San Jose State with wedder Green and Marini,

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<v Speaker 1>and I think Earler John Weddergreen.

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<v Speaker 3>Yeah, you said he hung out with wedder Green.

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<v Speaker 1>Oh, sorry, wet Green hung out with Marini and earlier

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<v Speaker 1>up at Yeah, I just up at San Jose State

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<v Speaker 1>in the late sixties, early seventies, and.

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<v Speaker 3>Yeah he was he was a professor at San Jose.

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<v Speaker 1>Right, but he I think the story was He was

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<v Speaker 1>Jaffa's first graduate student way back at Ohio State in

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<v Speaker 1>the late fifties early sixties, and so his great unfinished

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<v Speaker 1>work that still circulates in Sammy's dad was, oddly enough.

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<v Speaker 4>Really brilliant stuff.

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<v Speaker 1>We're still talking about trying to update and publish at

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<v Speaker 1>Tom West and I have talked about this every few years,

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<v Speaker 1>but it was very jaffa esque in this sense. It

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<v Speaker 1>was a very pro New Deal and very pro Franklin Roosevelt.

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<v Speaker 1>And we've argued about it some and you read some

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<v Speaker 1>parts of it, and anyway, he didn't he skipped Royal

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<v Speaker 1>The progress was straight from the New Deal and gave

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<v Speaker 1>an argument kind of like Conrad Black's argument. And you know,

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<v Speaker 1>I love Conrad, but he can be kind of adult

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<v Speaker 1>sometimes about American politics.

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<v Speaker 4>He recently said a declaration was a bunch of debtors

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<v Speaker 4>trying to escape their debts. It was really stupid.

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<v Speaker 1>It was very disappointing for a guy otherwise like a

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<v Speaker 1>lot anyway, So there's that.

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<v Speaker 5>I think if John had had lived and I had

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<v Speaker 5>his untimely death, he would have come around to RJ's opinion.

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<v Speaker 4>Too, I think.

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<v Speaker 5>So I remember, for some reason the thing that I

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<v Speaker 5>remember most about John water Green it is it is relevant,

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<v Speaker 5>is him talking about the regulatory state and explaining that

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<v Speaker 5>one of the outcomes of the of the regulatory.

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<v Speaker 3>State was the saddle toilet seat.

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<v Speaker 5>Yes, And I was a dumb kid, and I just

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<v Speaker 5>looked up and I said, what does that even mean?

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<v Speaker 5>What's a saddle? And he said, I'm not going to

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<v Speaker 5>explain it to you, young lady. You'll just have to

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<v Speaker 5>figure it out for yourself. But so my point is.

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<v Speaker 3>Is he understood the dangers of.

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<v Speaker 5>A regulation of bureaucratic exploitation of power.

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<v Speaker 3>He understood all of those things.

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<v Speaker 5>So I can't believe that ultimately, if he had finished

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<v Speaker 5>the book, he would have come down on this side

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<v Speaker 5>of the New Deal.

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<v Speaker 4>Well this is a go ahead.

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<v Speaker 2>Well no, So I do think today there's a tendency

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<v Speaker 2>we actually see it a little bit more of some

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<v Speaker 2>conservatives to have a kind of generous view of the

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<v Speaker 2>New Deal and of kind of the turn to a

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<v Speaker 2>more let's just say, you know, robust common enterprise. But

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<v Speaker 2>that's partly because I think they tend to see the

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<v Speaker 2>nineteenth century and the founding and a little bit too

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<v Speaker 2>simplistic terms. They see very libertarian terms right, and so

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<v Speaker 2>they think, well, if I don't like hyper individualism, if

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<v Speaker 2>I don't like libertarianism, you know, it's sort of like

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<v Speaker 2>the Founding in the nineteenth century, we're like a libertarian dreamland.

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<v Speaker 2>And so well, gosh, now I'm a conservative who's more communitarian,

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<v Speaker 2>and I gosh, maybe the progressors had something right, maybe

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<v Speaker 2>the New Dealers had something right. And so they see

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<v Speaker 2>this kind of black and white. And of course that's

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<v Speaker 2>not the way to see either the Founding or the

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<v Speaker 2>nineteenth century.

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<v Speaker 1>That's the problem with that, right, Well, this is actually

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<v Speaker 1>a good segue to your paper.

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<v Speaker 3>You know.

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<v Speaker 1>The working title of John Wettergreen's book was total Regulation.

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<v Speaker 2>I remember the.

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<v Speaker 4>First time I saw it.

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<v Speaker 1>I was still a graduate student, still didn't know enough

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<v Speaker 1>about anything, and what I thought it went was just

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<v Speaker 1>bigger and bigger bureaucracy and you know, counterproductive economic regulation.

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<v Speaker 2>And it's not that at all.

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<v Speaker 4>It really was the sort of first cut.

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<v Speaker 1>And a lot of what we Claire monsters have subsequently

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<v Speaker 1>done about.

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<v Speaker 4>No, this is not an economic issue. It's a constitutional issue.

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<v Speaker 4>It's the form of rule by experts.

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<v Speaker 1>And by the way, Lucreatia one of his other examples

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<v Speaker 1>in the book is the National Highway Transportation Safety Board

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<v Speaker 1>or one of those things. They wanted to invent a

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<v Speaker 1>safer motorcycle, and so they had some government lab come

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<v Speaker 1>up with this motorcycle that essentially it had training wheels

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<v Speaker 1>and work fine and more stable, except that under thirty

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<v Speaker 1>miles an hour it lost its stability, would fall over

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<v Speaker 1>on you and break your leg, And John said, proving

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<v Speaker 1>that the only safe.

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<v Speaker 4>Motorcycle is a car.

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<v Speaker 2>So why are they doing this?

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<v Speaker 1>Right? But what makes the government think that they're the

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<v Speaker 1>ones who could need to figure out this problem?

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<v Speaker 2>Right?

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<v Speaker 4>Anyway, But that brings us to what is now.

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<v Speaker 1>I think much more fully fleshed out. The phrase administrative

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<v Speaker 1>state was once the obscure, clunky term in the backwaters

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<v Speaker 1>of political science, even though it goes back to the forties,

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<v Speaker 1>and now it's just about on everyone's lips, including even

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<v Speaker 1>the people who defend it.

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<v Speaker 4>Right, they'll use that term.

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<v Speaker 1>So victory of nomenclature for us, And of course your

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<v Speaker 1>book described for us the philosophy of how we got here.

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<v Speaker 4>So first of all, so three part three.

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<v Speaker 1>Questions I want to work through, and Lucretia, you may

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<v Speaker 1>have some The first is is just give it a

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<v Speaker 1>thumbnail description of how you describe the administrative state to people.

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<v Speaker 1>And then I'll ask about where we are now, what's

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<v Speaker 1>happening at the current moment, it seems promising, And then

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<v Speaker 1>I have a third question.

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<v Speaker 2>But yeah, I mean, I think as as to the first,

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<v Speaker 2>it's basically it's a question of what we mean by

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<v Speaker 2>Republican government, and it's it's you know, there's this confusion

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<v Speaker 2>about labels today because of course we're told that Donald

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<v Speaker 2>Trump and the Republican Party are the great enemies of democracy.

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<v Speaker 3>Our democracy trademark, our.

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<v Speaker 2>Democracy trademark, and and and so they they think that

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<v Speaker 2>it is an assault on democracy to take power away

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<v Speaker 2>from unelected bureaucrats and to give it to elected officials

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<v Speaker 2>like the president. That is framed as an assault on democracy.

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<v Speaker 2>So when independent agencies who are accountable to nobody, who

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<v Speaker 2>never have their administrators, don't have to run for election,

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<v Speaker 2>when when they are brought to heal by an elected president,

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<v Speaker 2>this is an assault on our democracy, we're told.

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<v Speaker 3>Uh.

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<v Speaker 2>And so I am hoping that at least all the

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<v Speaker 2>current attention that you mentioned may help shine a little

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<v Speaker 2>light on how observed that is. And so I tried

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<v Speaker 2>to reset that for audiences when I talk about what's

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<v Speaker 2>going on in the Trump administration and the administrative state,

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<v Speaker 2>to say, well, first of all, before we get into

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<v Speaker 2>the weeds, let's understand what's at stake here. You either

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<v Speaker 2>govern yourselves laws you make, or laws that your elected

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<v Speaker 2>representatives make, or other people that you cannot hold accountable

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<v Speaker 2>govern you. And which do you want? And then we

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<v Speaker 2>go from there.

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<v Speaker 4>Right, Oh, that's good.

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<v Speaker 3>You know.

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<v Speaker 1>One of the examples I use with people, it's now

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<v Speaker 1>fifteen years old, but I think it's a good one.

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<v Speaker 1>I may use it here with our Italian friends, is

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<v Speaker 1>back around twenty ten, I'll say Boeing Aircraft wanted to

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<v Speaker 1>locate one of its manufacturing facilities in South Carolina, a

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<v Speaker 1>non union state, right to work state, and the National

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<v Speaker 1>Labor Relations Board jumped in and tried to stop them,

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<v Speaker 1>now bowing I think ultimately prevailed in court. But still

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<v Speaker 1>the point is is that I know of a CEO

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<v Speaker 1>who was on one of those business councils with Obama,

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<v Speaker 1>and he asked him, how can this what's happening here?

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<v Speaker 1>And Obama's answer, maybe you know it was, oh that

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<v Speaker 1>that's not me, that's the National Labor Relations Board and

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<v Speaker 1>they're independent in me, there's.

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<v Speaker 4>Nothing I can do about it. Just stop and say, really,

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<v Speaker 4>is that how our governments supposed to run?

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<v Speaker 1>And so you know, one of the cases pending, I think,

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<v Speaker 1>is whether Trump can remove someone from National Labor or

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<v Speaker 1>maybe he's already one that I've lost from that. So

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<v Speaker 1>the point is, you can you know, president should be

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<v Speaker 1>able to fire these people.

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<v Speaker 2>And that's right, Yeah, that's that's how. That's the only

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<v Speaker 2>way in which voters in which the people who are

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<v Speaker 2>sovereign in the country have any control over the bureaucrats

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<v Speaker 2>who largely govern us. It's it's the way I explain

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<v Speaker 2>it to people is to think of any any organization,

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<v Speaker 2>any any business. You know. The only I work at

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<v Speaker 2>Hillsdale College. The only reason that I have to listen

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<v Speaker 2>to what Larry Arne says and do you know run

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<v Speaker 2>the graduate program at Hillsdale like he wants me to,

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<v Speaker 2>is he'll fire me if I don't. Uh. And that's

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<v Speaker 2>that's very simple. And he could not be he could

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<v Speaker 2>not do his duty to his bosses, our trustees right

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<v Speaker 2>unless he had the ability to hire and fire his

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<v Speaker 2>subordinates in the workings of the and anyone who who's

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<v Speaker 2>ever had a job understands this concept very very straightforwardly. So, uh,

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<v Speaker 2>it's very convenient of Barack Obama to say, you know, hey,

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<v Speaker 2>I can't what can I do about the NLRB. I

431
00:20:24.839 --> 00:20:27.839
<v Speaker 2>think that's more reflection one of how good a politician

432
00:20:27.920 --> 00:20:31.920
<v Speaker 2>he was. But also, you know, we have to understand

433
00:20:31.920 --> 00:20:34.680
<v Speaker 2>that when we talk about the administrative state, it's really

434
00:20:34.720 --> 00:20:37.599
<v Speaker 2>hard to generalize because some parts of it are more

435
00:20:37.640 --> 00:20:40.920
<v Speaker 2>accountable to the president than others, so fully independent, they

436
00:20:40.960 --> 00:20:43.119
<v Speaker 2>are all kinds of different agencies, and so it is

437
00:20:43.359 --> 00:20:45.839
<v Speaker 2>we should maybe have that as a general caveat, you know,

438
00:20:45.960 --> 00:20:48.640
<v Speaker 2>for our audience and ourselves to say we're kind of

439
00:20:48.680 --> 00:20:51.519
<v Speaker 2>generalizing about some things where there are lots of different types.

440
00:20:51.440 --> 00:20:53.680
<v Speaker 1>Right, yeah, I mean the president can fire the administrator

441
00:20:53.720 --> 00:20:56.400
<v Speaker 1>of the EPA, for example, you bet, yeah.

442
00:20:56.480 --> 00:20:56.680
<v Speaker 2>Yeah.

443
00:20:56.799 --> 00:20:58.519
<v Speaker 5>One of the points you make very well in your

444
00:20:58.559 --> 00:21:01.319
<v Speaker 5>in your paper is that that really makes no sense

445
00:21:01.799 --> 00:21:06.599
<v Speaker 5>to have that distinction between an independent regulatory agency and

446
00:21:06.640 --> 00:21:09.920
<v Speaker 5>an otherwise executive agency, because, as you point out, they

447
00:21:10.000 --> 00:21:14.319
<v Speaker 5>all exercise executive power, and the Constitution clearly says that

448
00:21:14.759 --> 00:21:17.799
<v Speaker 5>executive power shall be vested in a president of the

449
00:21:17.960 --> 00:21:18.839
<v Speaker 5>United States.

450
00:21:19.400 --> 00:21:21.720
<v Speaker 3>It's nothing else I wanted to.

451
00:21:21.799 --> 00:21:24.319
<v Speaker 5>I actually wanted to do a little deep dive into

452
00:21:24.359 --> 00:21:28.119
<v Speaker 5>your article and and ask you about the what you

453
00:21:28.160 --> 00:21:31.759
<v Speaker 5>call the the hard.

454
00:21:32.000 --> 00:21:35.359
<v Speaker 3>I'm sorry, I lost it. Forgive me everyone.

455
00:21:35.440 --> 00:21:38.759
<v Speaker 5>You know, I'm even more inarticulate than use than usual

456
00:21:38.839 --> 00:21:39.400
<v Speaker 5>because of.

457
00:21:41.200 --> 00:21:41.960
<v Speaker 3>Hard look review.

458
00:21:42.440 --> 00:21:46.559
<v Speaker 5>So if an agency, if the president is trying to

459
00:21:46.559 --> 00:21:51.119
<v Speaker 5>reign in the bureaucracy, and he does so an agency,

460
00:21:51.240 --> 00:21:55.079
<v Speaker 5>he does so on using the argument that hey, I'm

461
00:21:55.079 --> 00:21:58.400
<v Speaker 5>the person who was elected by the American people to

462
00:21:58.480 --> 00:22:01.599
<v Speaker 5>run the executive branch, and that should be enough for

463
00:22:01.640 --> 00:22:05.519
<v Speaker 5>me to win in the courts to say, yes, I

464
00:22:05.519 --> 00:22:06.680
<v Speaker 5>should be able to do this.

465
00:22:07.240 --> 00:22:09.839
<v Speaker 3>Explain what the court is said about that.

466
00:22:10.200 --> 00:22:12.799
<v Speaker 2>Yeah, so I should say at first that this is

467
00:22:13.839 --> 00:22:16.279
<v Speaker 2>you know, I'm sure the audience understands, what a what

468
00:22:16.319 --> 00:22:18.640
<v Speaker 2>a what a powerful podcast this is because we go

469
00:22:18.720 --> 00:22:23.079
<v Speaker 2>from the the abstractions of you know, political philosophy down

470
00:22:23.119 --> 00:22:25.400
<v Speaker 2>to hard look review in a you know, kind of

471
00:22:25.400 --> 00:22:28.799
<v Speaker 2>an obscure concept and administrative law you know, all within

472
00:22:28.960 --> 00:22:31.720
<v Speaker 2>you know, two minutes. So this is great. No, it's

473
00:22:31.839 --> 00:22:35.039
<v Speaker 2>very important. Unfortunately, it's very important.

474
00:22:35.519 --> 00:22:35.640
<v Speaker 5>Uh.

475
00:22:35.880 --> 00:22:37.920
<v Speaker 2>And I guess I would, you know, without getting too

476
00:22:37.960 --> 00:22:40.319
<v Speaker 2>much into the weeds, I would say, the so called

477
00:22:40.359 --> 00:22:44.759
<v Speaker 2>hard look review a process is the term used when

478
00:22:44.880 --> 00:22:48.480
<v Speaker 2>courts use a part of the Administrative Procedure Act, which

479
00:22:48.519 --> 00:22:51.839
<v Speaker 2>is the law that governs how how agencies can do

480
00:22:51.880 --> 00:22:54.279
<v Speaker 2>what they do. When they use a part of that

481
00:22:54.960 --> 00:22:58.920
<v Speaker 2>to to sort of look at agency policy making and

482
00:22:58.920 --> 00:23:02.839
<v Speaker 2>and for it's a way for judges to insert themselves.

483
00:23:02.640 --> 00:23:08.240
<v Speaker 2>It basically is the Act basically is there. The purpose

484
00:23:08.279 --> 00:23:10.440
<v Speaker 2>of it was to try to make sure that agencies,

485
00:23:10.480 --> 00:23:12.720
<v Speaker 2>when they do what they do, that they have reasons

486
00:23:14.200 --> 00:23:18.279
<v Speaker 2>that they're not allowed to do things arbitrarily or capriciously.

487
00:23:18.799 --> 00:23:21.720
<v Speaker 2>And so when an administrative agency makes a rule, it

488
00:23:21.759 --> 00:23:24.279
<v Speaker 2>doesn't get to kind of do what like you might

489
00:23:24.319 --> 00:23:25.799
<v Speaker 2>do to a small child, you know, do what I

490
00:23:25.839 --> 00:23:28.880
<v Speaker 2>told you because I said so, And administrative agency can't

491
00:23:28.880 --> 00:23:31.160
<v Speaker 2>do that. It has to give reasons, and so the

492
00:23:31.160 --> 00:23:33.440
<v Speaker 2>court has to be able to go in and review

493
00:23:33.440 --> 00:23:36.880
<v Speaker 2>the reasoning of an agency. So that's all well and

494
00:23:36.920 --> 00:23:41.559
<v Speaker 2>good on paper, but the reality is that really since

495
00:23:41.680 --> 00:23:45.759
<v Speaker 2>the sixties and seventies, courts have used the hard loook

496
00:23:45.880 --> 00:23:49.319
<v Speaker 2>review process as a way to insert them basically the

497
00:23:49.359 --> 00:23:52.720
<v Speaker 2>second guess everything that the administrative state does. Now, this

498
00:23:54.319 --> 00:23:58.880
<v Speaker 2>has been kind of this has been a little bit

499
00:23:58.880 --> 00:24:03.559
<v Speaker 2>of a hard concept to understand because that insertion by

500
00:24:03.599 --> 00:24:07.119
<v Speaker 2>the judiciary sticking its nose in where it doesn't belong,

501
00:24:07.200 --> 00:24:10.160
<v Speaker 2>into the business of the executive itself led to a

502
00:24:10.200 --> 00:24:15.400
<v Speaker 2>reaction by conservative jurists like Antonin Scalia and others who

503
00:24:15.480 --> 00:24:19.519
<v Speaker 2>then set up other doctrines in administrative law which were

504
00:24:19.519 --> 00:24:22.119
<v Speaker 2>designed to keep the judiciary out of the business of

505
00:24:22.160 --> 00:24:24.480
<v Speaker 2>the bureaucracy. And that the infamous one here is the

506
00:24:24.559 --> 00:24:28.480
<v Speaker 2>Chevron deference. Well, this has also been a very bad

507
00:24:28.519 --> 00:24:31.200
<v Speaker 2>thing because it meant that agencies after that were then

508
00:24:31.279 --> 00:24:33.279
<v Speaker 2>left free to go do whatever the heck they wanted

509
00:24:33.279 --> 00:24:36.599
<v Speaker 2>to do, free from any kind of scrutiny. And so

510
00:24:37.160 --> 00:24:40.720
<v Speaker 2>we were sort of caught in this in this purgatory

511
00:24:41.400 --> 00:24:44.640
<v Speaker 2>where you know, well, who do you want these unaccountable

512
00:24:45.000 --> 00:24:49.119
<v Speaker 2>war in court era judges running policy or do you

513
00:24:49.279 --> 00:24:53.799
<v Speaker 2>want these administrators in the modern you know, the administrative

514
00:24:53.799 --> 00:24:56.720
<v Speaker 2>state running running policy. Well the answer is both neither,

515
00:24:57.039 --> 00:24:58.240
<v Speaker 2>and in the.

516
00:24:58.240 --> 00:25:01.319
<v Speaker 5>Latter case, not just running policy, but determining how far

517
00:25:01.400 --> 00:25:02.119
<v Speaker 5>their powers go.

518
00:25:02.599 --> 00:25:06.519
<v Speaker 2>Yes, that was one of the most pernicious parts of deference.

519
00:25:07.720 --> 00:25:11.519
<v Speaker 2>The doctrine that the courts had come up with, which

520
00:25:11.519 --> 00:25:15.000
<v Speaker 2>again was originally from some conservatives in the judiciary because

521
00:25:15.039 --> 00:25:17.039
<v Speaker 2>they didn't want the liberals and the war in court

522
00:25:17.119 --> 00:25:21.480
<v Speaker 2>second guessing executives in the Nixon administration and the Ford administration.

523
00:25:22.279 --> 00:25:27.599
<v Speaker 2>So basically, the Court said, look, the judiciary should defer

524
00:25:27.640 --> 00:25:31.519
<v Speaker 2>to agencies when agencies interpret laws, because they're the experts

525
00:25:31.519 --> 00:25:36.160
<v Speaker 2>on these things. The big problem with that is one

526
00:25:36.240 --> 00:25:39.240
<v Speaker 2>of the major questions that an agency comes across when

527
00:25:39.240 --> 00:25:42.720
<v Speaker 2>it looks at a law is how much power does

528
00:25:42.720 --> 00:25:46.720
<v Speaker 2>this law give us in our agency? And the insane

529
00:25:46.759 --> 00:25:49.839
<v Speaker 2>thing about Chevron deference, which has been killed off by

530
00:25:49.839 --> 00:25:51.680
<v Speaker 2>a Supreme Court a couple of years ago, thank god,

531
00:25:52.160 --> 00:25:56.680
<v Speaker 2>But the insane thing about Chevron defference was the doctrine said, well,

532
00:25:57.039 --> 00:25:59.480
<v Speaker 2>when an agency reads a statute to figure out how

533
00:25:59.519 --> 00:26:02.240
<v Speaker 2>much power it has, we defer to the agency. In

534
00:26:02.279 --> 00:26:04.880
<v Speaker 2>other words, it is it is the judge. It is

535
00:26:04.920 --> 00:26:07.519
<v Speaker 2>the best judge of the extent of its own power. Yeah,

536
00:26:07.599 --> 00:26:08.160
<v Speaker 2>all right.

537
00:26:08.200 --> 00:26:11.640
<v Speaker 1>Well, I used to joke that Joe, people who aren't

538
00:26:11.680 --> 00:26:12.839
<v Speaker 1>policy wonks or follow the.

539
00:26:12.839 --> 00:26:14.279
<v Speaker 4>Law, I'd say, look, I think of it this way.

540
00:26:14.799 --> 00:26:17.759
<v Speaker 4>You might, like me, have a Chevron gasoline credit card

541
00:26:17.759 --> 00:26:20.440
<v Speaker 4>that has a limit. It's just for gasoline. The Chevron

542
00:26:20.480 --> 00:26:22.839
<v Speaker 4>decision gives them a get out of jail free card

543
00:26:23.039 --> 00:26:24.559
<v Speaker 4>for regulations with no limit.

544
00:26:24.720 --> 00:26:24.920
<v Speaker 2>Right.

545
00:26:25.000 --> 00:26:27.839
<v Speaker 4>I mean, that's the hyperbole, but there's something to do that, right.

546
00:26:28.920 --> 00:26:31.200
<v Speaker 5>I want to just one one further point on this

547
00:26:31.240 --> 00:26:35.839
<v Speaker 5>whole idea of expert You know that we're told by everyone,

548
00:26:36.000 --> 00:26:38.799
<v Speaker 5>even you mentioned conservatives a little bit earlier, and I

549
00:26:38.880 --> 00:26:42.599
<v Speaker 5>was thinking, another thing that seems to drive many conservatives

550
00:26:42.720 --> 00:26:45.559
<v Speaker 5>is this idea. Is they take seriously the notion that

551
00:26:45.599 --> 00:26:51.160
<v Speaker 5>we have to have this massive bureaucratic state, administrative state,

552
00:26:51.240 --> 00:26:55.079
<v Speaker 5>because we're such a complex technological society, and so there's

553
00:26:55.119 --> 00:26:57.960
<v Speaker 5>no way to have good government without this huge because

554
00:26:57.960 --> 00:27:01.440
<v Speaker 5>we can't trust Congress to do it. And so I

555
00:27:01.519 --> 00:27:04.079
<v Speaker 5>just want to ask you leave that aside. I just

556
00:27:04.079 --> 00:27:07.319
<v Speaker 5>want to ask you if you think that things like

557
00:27:07.359 --> 00:27:16.480
<v Speaker 5>the Fauci situation and climate change, the latest nonsense about

558
00:27:16.680 --> 00:27:19.680
<v Speaker 5>all the everything we've been fed a bill of goods,

559
00:27:19.720 --> 00:27:24.759
<v Speaker 5>With fed a bill of goods, it makes a force

560
00:27:24.839 --> 00:27:29.559
<v Speaker 5>tonight that is there a possibility that that creates yet

561
00:27:29.599 --> 00:27:36.440
<v Speaker 5>another sort of opening for a pushback against the administrative

562
00:27:36.440 --> 00:27:39.160
<v Speaker 5>state Because people just don't believe in experts anymore. They

563
00:27:39.160 --> 00:27:42.240
<v Speaker 5>don't trust the CDC, they don't trust, you know, on.

564
00:27:42.119 --> 00:27:42.559
<v Speaker 3>And on and on.

565
00:27:42.680 --> 00:27:45.359
<v Speaker 2>Indeed, no, I mean, this was the silver lining of

566
00:27:45.400 --> 00:27:49.200
<v Speaker 2>COVID because for those of us who for decades have

567
00:27:49.319 --> 00:27:52.000
<v Speaker 2>been writing about the administrative state, I mean, and let's

568
00:27:52.000 --> 00:27:55.960
<v Speaker 2>face it, maybe even some listeners to your podcast their

569
00:27:56.000 --> 00:27:58.720
<v Speaker 2>eyes have already glazed over and we started talking about

570
00:27:58.759 --> 00:28:00.640
<v Speaker 2>the administrative state. But it's it was very hard to

571
00:28:01.559 --> 00:28:04.599
<v Speaker 2>get people to understand how impactful, how important this was.

572
00:28:04.640 --> 00:28:07.240
<v Speaker 2>And we could talk about climate change regulation and other

573
00:28:07.319 --> 00:28:10.400
<v Speaker 2>kinds of things, but it wasn't until COVID when people

574
00:28:10.559 --> 00:28:15.519
<v Speaker 2>had to live under the minute rule of alleged experts,

575
00:28:16.359 --> 00:28:23.319
<v Speaker 2>when that whole business got exposed for the scam Lucretia

576
00:28:23.440 --> 00:28:25.200
<v Speaker 2>mouth the word I'd all just say it out allowed

577
00:28:25.200 --> 00:28:28.680
<v Speaker 2>the scam that it was. And so now it's actually

578
00:28:28.759 --> 00:28:31.039
<v Speaker 2>much easier for me to go and talk to audiences

579
00:28:31.279 --> 00:28:36.440
<v Speaker 2>about the pretensions to expertise and how this actually infects

580
00:28:36.519 --> 00:28:39.480
<v Speaker 2>lots of different ways that were governed, because I could

581
00:28:39.480 --> 00:28:43.000
<v Speaker 2>always refer to the COVID experience, and you're right, there's

582
00:28:43.000 --> 00:28:43.599
<v Speaker 2>an opening now.

583
00:28:43.640 --> 00:28:44.960
<v Speaker 3>Before that, it was the DMV.

584
00:28:45.599 --> 00:28:48.039
<v Speaker 5>Yeah, just sort of you know, the idea that you

585
00:28:48.079 --> 00:28:50.720
<v Speaker 5>had to have expertise to work at the DMV just

586
00:28:51.119 --> 00:28:52.119
<v Speaker 5>left people anyway.

587
00:28:52.279 --> 00:28:54.759
<v Speaker 2>So or one of the famous examples that I would

588
00:28:54.920 --> 00:28:58.200
<v Speaker 2>teach an administrative law was, you know, this long debate

589
00:28:58.240 --> 00:29:00.160
<v Speaker 2>went on for years and years and years, many or

590
00:29:00.480 --> 00:29:03.240
<v Speaker 2>filings and everything else over whether peanut butter, in order

591
00:29:03.279 --> 00:29:05.319
<v Speaker 2>to be called peanut butter, had to have ninety percent

592
00:29:05.359 --> 00:29:09.240
<v Speaker 2>peanuts or could only be eighty seven percent, right, you know,

593
00:29:09.480 --> 00:29:11.279
<v Speaker 2>really exciting things like that. Right.

594
00:29:11.279 --> 00:29:14.200
<v Speaker 1>Well, the I mean I do think that well, general

595
00:29:14.240 --> 00:29:18.640
<v Speaker 1>proposition that undergird some of the recent cases that you've

596
00:29:18.640 --> 00:29:22.640
<v Speaker 1>mentioned is it does seem to me that the administrative

597
00:29:22.640 --> 00:29:23.880
<v Speaker 1>state is on its back foot, it's.

598
00:29:23.720 --> 00:29:26.920
<v Speaker 4>On the defensive. Right now. Partly COVID was a real blow,

599
00:29:26.960 --> 00:29:28.920
<v Speaker 4>but I think the case against it was building even

600
00:29:28.960 --> 00:29:29.440
<v Speaker 4>before then.

601
00:29:29.559 --> 00:29:32.279
<v Speaker 1>You were starting to see, you know, even Justice Scalia,

602
00:29:32.319 --> 00:29:35.000
<v Speaker 1>before he died, was changing his mind about Chevron, right

603
00:29:35.200 --> 00:29:35.759
<v Speaker 1>he supposed.

604
00:29:35.839 --> 00:29:38.279
<v Speaker 4>That's what you hear widely about it. And I think

605
00:29:38.319 --> 00:29:40.640
<v Speaker 4>he realized that it was a mistake because he defended

606
00:29:40.680 --> 00:29:41.200
<v Speaker 4>it for a long time.

607
00:29:41.279 --> 00:29:41.400
<v Speaker 7>Right.

608
00:29:42.000 --> 00:29:43.839
<v Speaker 1>I always though maybe've heard me say this, I'll say

609
00:29:43.839 --> 00:29:46.599
<v Speaker 1>it again, Lucreas is born. But the Chevron case in

610
00:29:46.640 --> 00:29:49.519
<v Speaker 1>nineteen eighty four was the case the Reagan administration one

611
00:29:50.200 --> 00:29:54.759
<v Speaker 1>and the environmentalists lost, and in the short run, maybe

612
00:29:54.759 --> 00:29:56.799
<v Speaker 1>it did help the Reagan administration, which this is something

613
00:29:56.839 --> 00:30:00.519
<v Speaker 1>Weddgreen pointed out. The reg administration failed earlier, really earlier.

614
00:30:00.519 --> 00:30:02.720
<v Speaker 1>They were not going to get serious regulatory reform because

615
00:30:02.720 --> 00:30:05.839
<v Speaker 1>Congress was against it and judges run sympathetic, I mean lobbings.

616
00:30:05.839 --> 00:30:08.279
<v Speaker 1>Trump is one on the Reagan people could never have

617
00:30:08.319 --> 00:30:10.160
<v Speaker 1>won on and the courts is then constituted.

618
00:30:10.640 --> 00:30:13.160
<v Speaker 4>So they thought, let's do regulatory.

619
00:30:12.640 --> 00:30:16.240
<v Speaker 1>Relief within the administrative latitude we have. They did a

620
00:30:16.240 --> 00:30:18.240
<v Speaker 1>lot of that, but of course that just gets swept

621
00:30:18.279 --> 00:30:20.880
<v Speaker 1>away the next time you have the administration's.

622
00:30:20.240 --> 00:30:21.640
<v Speaker 4>Changed in this case.

623
00:30:21.759 --> 00:30:24.440
<v Speaker 1>In the in the eighties and nineties, you didn't need

624
00:30:24.480 --> 00:30:26.839
<v Speaker 1>the other party takeover. You just needed somebody named President

625
00:30:26.839 --> 00:30:29.200
<v Speaker 1>Bush to increase regulation again.

626
00:30:29.359 --> 00:30:32.440
<v Speaker 2>Right, No, in fact, I'm sorry, I'm just sorry.

627
00:30:32.680 --> 00:30:33.440
<v Speaker 4>I'm going on too long.

628
00:30:33.519 --> 00:30:35.160
<v Speaker 1>The point is now it's on the defensive and we're

629
00:30:35.200 --> 00:30:37.319
<v Speaker 1>seeing these cases now.

630
00:30:37.400 --> 00:30:39.799
<v Speaker 4>The just no, Actually, we are gonna.

631
00:30:40.720 --> 00:30:43.519
<v Speaker 1>Exercise the oversight of what instead of your powers and

632
00:30:43.599 --> 00:30:47.279
<v Speaker 1>other things happening and people saying Congress, the courts, in Congress,

633
00:30:47.319 --> 00:30:49.759
<v Speaker 1>you need to do your job, don't pass vague statutes.

634
00:30:50.720 --> 00:30:52.920
<v Speaker 1>You know, there used to be lots of little supreme

635
00:30:53.039 --> 00:30:57.160
<v Speaker 1>little cases, usually a criminal law about they would void

636
00:30:57.160 --> 00:30:58.839
<v Speaker 1>a conviction saying void for vagueness.

637
00:30:58.839 --> 00:30:59.799
<v Speaker 4>That's criminal statutes.

638
00:30:59.880 --> 00:31:02.400
<v Speaker 1>Just you big, I'm sorry, you go back to work

639
00:31:02.440 --> 00:31:03.720
<v Speaker 1>and write something more specific.

640
00:31:05.599 --> 00:31:07.680
<v Speaker 3>Because they don't know what they're doing. They're not excellent.

641
00:31:07.799 --> 00:31:10.160
<v Speaker 1>Well, I'm coming, well, I'm coming to well, I do

642
00:31:10.279 --> 00:31:11.359
<v Speaker 1>want to ask the Congress question.

643
00:31:11.440 --> 00:31:13.759
<v Speaker 4>But anyway, I don't know when you want to add

644
00:31:13.759 --> 00:31:14.200
<v Speaker 4>to all that.

645
00:31:15.039 --> 00:31:17.279
<v Speaker 2>I mean, I would just say that it's part of

646
00:31:17.319 --> 00:31:20.599
<v Speaker 2>the argument that I had made in the recent provocation,

647
00:31:21.799 --> 00:31:25.200
<v Speaker 2>the recent monograph that I wrote, was that that you're

648
00:31:25.279 --> 00:31:28.240
<v Speaker 2>quite correct that within the last ten to twenty years,

649
00:31:29.319 --> 00:31:32.640
<v Speaker 2>the environment in the courts, at the Supreme Court at least,

650
00:31:32.680 --> 00:31:37.759
<v Speaker 2>has been much more favorable to reconsidering the sort of

651
00:31:37.759 --> 00:31:40.880
<v Speaker 2>carte blanche that the administrative state has, and there had

652
00:31:40.960 --> 00:31:44.160
<v Speaker 2>been you know, rulings again very much kind of Robert's style.

653
00:31:44.200 --> 00:31:49.680
<v Speaker 2>I know he's a great object of Lucretia's credit, but

654
00:31:49.720 --> 00:31:52.599
<v Speaker 2>I mean, and by the way, I should say Lucretia,

655
00:31:52.599 --> 00:31:55.119
<v Speaker 2>it was it was Justice Roberts who said in the

656
00:31:55.119 --> 00:31:57.799
<v Speaker 2>City of Arlington case in twenty thirteen, he said, the

657
00:31:58.119 --> 00:32:00.720
<v Speaker 2>danger of the administrative state is is just you know,

658
00:32:01.400 --> 00:32:03.119
<v Speaker 2>he actually was like, you know, the scale cell from

659
00:32:03.119 --> 00:32:03.880
<v Speaker 2>his eyes or something.

660
00:32:03.920 --> 00:32:06.079
<v Speaker 3>But as you pointed out, sorry.

661
00:32:06.119 --> 00:32:09.240
<v Speaker 2>He's very increased, very incremental, very incremental. So but over

662
00:32:09.240 --> 00:32:12.400
<v Speaker 2>the last ten or twenty years, there's a better environment

663
00:32:12.400 --> 00:32:16.640
<v Speaker 2>in the courts. And clearly the folks in the Trump

664
00:32:16.960 --> 00:32:21.279
<v Speaker 2>in Trump world, especially during the interregnum, had been paying

665
00:32:21.440 --> 00:32:25.680
<v Speaker 2>very careful attention to this because the courts had sort

666
00:32:25.680 --> 00:32:28.240
<v Speaker 2>of set up this environment where they had teed up

667
00:32:28.279 --> 00:32:32.440
<v Speaker 2>several of these core long time precedents, and as soon

668
00:32:32.480 --> 00:32:35.759
<v Speaker 2>as the president came into the second term, it's why

669
00:32:36.160 --> 00:32:39.680
<v Speaker 2>you saw this just flooding the zone of going after

670
00:32:39.720 --> 00:32:42.240
<v Speaker 2>these agencies. That wasn't people like, oh, it's Trump just

671
00:32:42.279 --> 00:32:45.160
<v Speaker 2>going crazy and firing from the hip. Now. Actually it

672
00:32:45.279 --> 00:32:48.640
<v Speaker 2>was some really smart, observant people who were close to

673
00:32:48.720 --> 00:32:51.599
<v Speaker 2>him who had this stuff lined up. They knew exactly

674
00:32:51.920 --> 00:32:55.440
<v Speaker 2>what agencies to go after, exactly the arguments to use.

675
00:32:55.680 --> 00:32:58.119
<v Speaker 2>In a lot of the executive orders. If you read those,

676
00:32:58.559 --> 00:33:01.960
<v Speaker 2>they're using the language of the Supreme Court opinions from

677
00:33:02.240 --> 00:33:05.319
<v Speaker 2>the last ten years. So they knew exactly what they

678
00:33:05.319 --> 00:33:07.279
<v Speaker 2>were doing. And that's why I think we're kind of

679
00:33:07.440 --> 00:33:11.480
<v Speaker 2>on the verge right now, having some pretty major substantive

680
00:33:11.519 --> 00:33:15.440
<v Speaker 2>Supreme Court your rulings coming out in the next month

681
00:33:15.519 --> 00:33:15.799
<v Speaker 2>or so.

682
00:33:15.799 --> 00:33:18.759
<v Speaker 4>So they've really teed this up. They have, you know,

683
00:33:19.400 --> 00:33:20.640
<v Speaker 4>sort of a broader political point.

684
00:33:20.680 --> 00:33:24.400
<v Speaker 1>But the other day occurred to me that, you know, Trump,

685
00:33:24.599 --> 00:33:26.200
<v Speaker 1>by the time in these office will have been the

686
00:33:26.200 --> 00:33:28.559
<v Speaker 1>dominant political figure in the country and in the world

687
00:33:28.559 --> 00:33:29.279
<v Speaker 1>for twelve years.

688
00:33:29.799 --> 00:33:31.599
<v Speaker 4>That's almost as long as Roosevelt was.

689
00:33:32.160 --> 00:33:33.839
<v Speaker 1>What happened as you had Biden in the middle, it

690
00:33:33.839 --> 00:33:37.480
<v Speaker 1>increasingly looks like this misadventure and a mistake interrupting it.

691
00:33:37.559 --> 00:33:40.319
<v Speaker 1>But during that time, not only were some cases won,

692
00:33:40.480 --> 00:33:43.759
<v Speaker 1>like was a'n epa versus West Virginia, then that happened

693
00:33:43.799 --> 00:33:47.920
<v Speaker 1>during Biden or at least well the Harvard case anyway,

694
00:33:47.920 --> 00:33:50.519
<v Speaker 1>which is important to right that happened while Biden was president.

695
00:33:50.599 --> 00:33:52.799
<v Speaker 1>The point is, it looks like this irrelevant little side

696
00:33:52.799 --> 00:33:55.880
<v Speaker 1>show and detour, and it's starting to look more like

697
00:33:55.920 --> 00:33:58.880
<v Speaker 1>an era. But their point is that I think you've

698
00:33:58.880 --> 00:34:02.599
<v Speaker 1>alluded to this just now. The Trump people, the Trump team,

699
00:34:03.160 --> 00:34:06.160
<v Speaker 1>they spent those four years in exile, so to speak,

700
00:34:06.279 --> 00:34:07.799
<v Speaker 1>thinking it through what they were going to do, and

701
00:34:07.839 --> 00:34:09.599
<v Speaker 1>they really had a plan and learned a lot from

702
00:34:09.639 --> 00:34:11.800
<v Speaker 1>their first term and watched them anyway.

703
00:34:11.599 --> 00:34:14.239
<v Speaker 2>They did, and you know, quite honestly, in the first term,

704
00:34:14.239 --> 00:34:16.360
<v Speaker 2>and you know, they might not put it in these terms,

705
00:34:16.400 --> 00:34:19.079
<v Speaker 2>but they got their doors blown off in terms of

706
00:34:19.079 --> 00:34:22.159
<v Speaker 2>trying to do regulatory reform, and they smarted from that,

707
00:34:23.119 --> 00:34:27.239
<v Speaker 2>and they learned, and the second term has been very,

708
00:34:27.320 --> 00:34:30.199
<v Speaker 2>very different. And you know, there are lots of things

709
00:34:30.239 --> 00:34:32.880
<v Speaker 2>that those of us on the conservative side, you know,

710
00:34:32.679 --> 00:34:35.400
<v Speaker 2>you get frustrated with in terms of the first year

711
00:34:35.679 --> 00:34:39.159
<v Speaker 2>year and a half now of the Trump administration, opportunities

712
00:34:39.159 --> 00:34:42.360
<v Speaker 2>and things like that, some of the crazy district courts

713
00:34:42.400 --> 00:34:46.000
<v Speaker 2>and other problems. But this is the one area where

714
00:34:46.480 --> 00:34:50.519
<v Speaker 2>things have been i wouldn't say quietly, but almost quietly,

715
00:34:50.639 --> 00:34:55.320
<v Speaker 2>kind of humming along beneath the surface. These agencies really

716
00:34:55.519 --> 00:34:58.440
<v Speaker 2>have been I'm certainly not going to say turned around.

717
00:34:58.480 --> 00:35:01.719
<v Speaker 2>That'd be way too much to hope. But a lot

718
00:35:01.800 --> 00:35:05.559
<v Speaker 2>has been done very substantively, a little bit out of

719
00:35:05.559 --> 00:35:07.960
<v Speaker 2>the public eye, because let's face it, this topic is

720
00:35:08.000 --> 00:35:09.760
<v Speaker 2>kind of boring, which is a good thing, and I

721
00:35:09.760 --> 00:35:12.880
<v Speaker 2>think it's they'd much rather rule for you the immigrant

722
00:35:12.960 --> 00:35:17.800
<v Speaker 2>rights and things like that. That's sexier stuff, but the

723
00:35:17.840 --> 00:35:21.360
<v Speaker 2>administrative state. I hope they keep being quiet about that

724
00:35:21.400 --> 00:35:22.800
<v Speaker 2>because lots of goods being done right now.

725
00:35:22.880 --> 00:35:26.880
<v Speaker 5>So, at the risk of showing my hand entirely on

726
00:35:27.119 --> 00:35:29.519
<v Speaker 5>my conference paper, I do want to throw this at

727
00:35:29.559 --> 00:35:34.119
<v Speaker 5>you for a moment. So starting with Obama and the

728
00:35:34.159 --> 00:35:39.199
<v Speaker 5>IRS scandal. Do you remember that when Obama was confronted

729
00:35:39.440 --> 00:35:44.239
<v Speaker 5>on someone I think by Stephanopplis, somebody asked him about

730
00:35:44.280 --> 00:35:47.320
<v Speaker 5>it and he said, he said, I read it the

731
00:35:47.599 --> 00:35:52.119
<v Speaker 5>IRS scandal where the IRS was targeting conservative groups like

732
00:35:52.159 --> 00:35:55.599
<v Speaker 5>the Tea Party, not so much denying them because the

733
00:35:55.679 --> 00:35:58.440
<v Speaker 5>law had prevented that, but slow rolling and this kind

734
00:35:58.440 --> 00:35:58.760
<v Speaker 5>of thing.

735
00:35:59.320 --> 00:36:00.360
<v Speaker 3>And when it.

736
00:36:00.320 --> 00:36:04.000
<v Speaker 5>Became a big scandal, Obama was asked about it and

737
00:36:04.039 --> 00:36:06.679
<v Speaker 5>he said, I found out about it just like you

738
00:36:06.800 --> 00:36:07.719
<v Speaker 5>did in.

739
00:36:08.559 --> 00:36:11.960
<v Speaker 3>I read it in the papers. So that was Obama

740
00:36:12.519 --> 00:36:15.800
<v Speaker 3>creating this, creating this sort of.

741
00:36:17.280 --> 00:36:20.480
<v Speaker 5>That's not my responsibilities, you pointed out, just with an

742
00:36:20.599 --> 00:36:27.000
<v Speaker 5>LRB case. And then jumping ahead quickly, Biden. We talked

743
00:36:27.039 --> 00:36:29.800
<v Speaker 5>about on this podcast an article I got to pull

744
00:36:29.840 --> 00:36:30.079
<v Speaker 5>it up.

745
00:36:30.119 --> 00:36:32.400
<v Speaker 3>I don't remember who wrote it, but it.

746
00:36:32.320 --> 00:36:37.360
<v Speaker 5>Was some liberal progressive hack who said, we don't care

747
00:36:37.480 --> 00:36:40.920
<v Speaker 5>if Biden is senile. We don't care at all that

748
00:36:40.960 --> 00:36:45.360
<v Speaker 5>Biden is seenw It doesn't matter because all of the

749
00:36:45.400 --> 00:36:49.360
<v Speaker 5>great things we progressives are doing in this Biden administration

750
00:36:50.039 --> 00:36:53.079
<v Speaker 5>can be done no matter what. And they're certainly not

751
00:36:53.079 --> 00:36:54.880
<v Speaker 5>going to be done if somebody else is, you know,

752
00:36:55.280 --> 00:36:59.599
<v Speaker 5>and and so you go from this, I didn't know

753
00:36:59.639 --> 00:37:01.519
<v Speaker 5>anything about it too well.

754
00:37:01.719 --> 00:37:07.760
<v Speaker 3>The administrative state has taken over. Trump is fighting against that.

755
00:37:07.800 --> 00:37:09.719
<v Speaker 2>He is, and and I think that I think what

756
00:37:09.800 --> 00:37:12.719
<v Speaker 2>you're the general concept you're, you're, you're you're pointing to

757
00:37:13.119 --> 00:37:17.840
<v Speaker 2>is the administrative state. The Left has come to understand

758
00:37:17.840 --> 00:37:21.679
<v Speaker 2>that the administrative the administrative state is its proxy. So

759
00:37:21.800 --> 00:37:24.320
<v Speaker 2>this is why I mean, for for example, if a

760
00:37:24.360 --> 00:37:28.840
<v Speaker 2>generation or so ago, uh an administrator had got gone

761
00:37:28.920 --> 00:37:32.360
<v Speaker 2>up before a Congressional committee and had you know, thumbed

762
00:37:32.400 --> 00:37:36.639
<v Speaker 2>his nose at the congressional committee as as you know

763
00:37:36.719 --> 00:37:39.719
<v Speaker 2>Lois Learner did, as as you know Coscina did, and

764
00:37:39.760 --> 00:37:41.400
<v Speaker 2>some of these other you know, I R S types.

765
00:37:42.280 --> 00:37:45.960
<v Speaker 2>You know that that all of Congress, both parties the

766
00:37:46.039 --> 00:37:49.920
<v Speaker 2>Institution would have circled the wagons and and would have

767
00:37:51.079 --> 00:37:54.400
<v Speaker 2>would have said no, no, no, hey, you better you better

768
00:37:54.679 --> 00:37:59.079
<v Speaker 2>behave yourself where Congress, we're your appropriators, we want some

769
00:37:59.159 --> 00:38:01.199
<v Speaker 2>institutional risks back. I mean, you know, if you had,

770
00:38:01.239 --> 00:38:03.079
<v Speaker 2>if you were a bureaucrat, you got called up in

771
00:38:03.079 --> 00:38:06.679
<v Speaker 2>front of Rostenkowski or John Dingle or what you know,

772
00:38:06.760 --> 00:38:10.880
<v Speaker 2>that was your worst nightmare. What we saw more recently

773
00:38:11.000 --> 00:38:15.039
<v Speaker 2>is the administrators know that the Democrats in Congress have

774
00:38:15.159 --> 00:38:18.599
<v Speaker 2>their back, and so the Democrats they don't want anything

775
00:38:18.639 --> 00:38:20.519
<v Speaker 2>done to the administrative state. They don't want to meddle

776
00:38:20.559 --> 00:38:23.679
<v Speaker 2>with the administrative state because they can go on in

777
00:38:23.719 --> 00:38:27.719
<v Speaker 2>the legislature just sort of signposting and you know, using

778
00:38:27.719 --> 00:38:30.559
<v Speaker 2>their positions as a media platform. And meanwhile, the really

779
00:38:30.719 --> 00:38:33.719
<v Speaker 2>the real work of advancing leftism in the country is

780
00:38:33.760 --> 00:38:38.440
<v Speaker 2>done by the administrators. And so the administrators know that

781
00:38:38.480 --> 00:38:41.000
<v Speaker 2>half of Congress is it's out. Well, let's be honest,

782
00:38:41.039 --> 00:38:45.119
<v Speaker 2>more than half of Congress is its ally and that's

783
00:38:45.159 --> 00:38:48.679
<v Speaker 2>a change in the last generation that Trump is really,

784
00:38:48.719 --> 00:38:51.960
<v Speaker 2>you're quite correct, it really trying to push back against it.

785
00:38:52.039 --> 00:38:53.840
<v Speaker 2>And it's why they're screaming bloody murder.

786
00:38:55.000 --> 00:38:57.159
<v Speaker 1>Marini was saying that John Mariney was saying this forty

787
00:38:57.239 --> 00:38:59.880
<v Speaker 1>years ago that the administrative state is the partisan inst

788
00:39:00.360 --> 00:39:03.519
<v Speaker 1>the Democratic Party. But Republicans will never say that they

789
00:39:03.559 --> 00:39:04.719
<v Speaker 1>just complain about big government.

790
00:39:05.559 --> 00:39:06.400
<v Speaker 2>Is a wise man.

791
00:39:10.239 --> 00:39:14.320
<v Speaker 5>To those conservatives that you're talking about. Uh, you you

792
00:39:14.440 --> 00:39:17.679
<v Speaker 5>really do have to understand that the Democratic Party, the

793
00:39:18.199 --> 00:39:20.400
<v Speaker 5>administrative state is a creature of the left or the

794
00:39:20.400 --> 00:39:25.400
<v Speaker 5>Democratic Party because of progressivism, because it advances everything that

795
00:39:25.440 --> 00:39:30.400
<v Speaker 5>they believe in. And if you are a conservative, uh,

796
00:39:31.320 --> 00:39:35.360
<v Speaker 5>a true conservative, and you understand that every exercise of

797
00:39:35.440 --> 00:39:40.760
<v Speaker 5>government power has to should be you know, absolutely defended,

798
00:39:40.920 --> 00:39:44.239
<v Speaker 5>and and and you know, be the minimalist possible all

799
00:39:44.239 --> 00:39:45.000
<v Speaker 5>those other things.

800
00:39:45.280 --> 00:39:48.599
<v Speaker 3>If you accept the premises of.

801
00:39:48.599 --> 00:39:51.280
<v Speaker 5>The New Deal, or those premises of the idea that

802
00:39:51.320 --> 00:39:55.440
<v Speaker 5>we have a vast technological commercial society that needs to

803
00:39:55.440 --> 00:39:57.960
<v Speaker 5>be regulated given.

804
00:39:57.880 --> 00:40:00.760
<v Speaker 2>It's baked in. So I'll tell you how explain this

805
00:40:00.840 --> 00:40:03.599
<v Speaker 2>to my students after the law student. And I hesitate

806
00:40:03.639 --> 00:40:07.320
<v Speaker 2>to do this or for audience. The great, the great uh,

807
00:40:07.360 --> 00:40:10.639
<v Speaker 2>Michael McConnell is is in earshot, so I hesitate to

808
00:40:10.639 --> 00:40:13.639
<v Speaker 2>say this in front of him. But you know, the

809
00:40:13.639 --> 00:40:17.320
<v Speaker 2>the the law follows the politics, not the other way around.

810
00:40:17.800 --> 00:40:20.199
<v Speaker 2>And so when I teach administrative law and the students

811
00:40:20.199 --> 00:40:22.159
<v Speaker 2>are trying to figure out, well, gosh here. For a

812
00:40:22.159 --> 00:40:25.599
<v Speaker 2>couple of decades, the courts seem to be really clamping

813
00:40:25.599 --> 00:40:28.280
<v Speaker 2>down on the administrators. And now then it changes and

814
00:40:28.280 --> 00:40:31.440
<v Speaker 2>for another couple of decades, the courts are really letting,

815
00:40:31.719 --> 00:40:35.760
<v Speaker 2>letting the agencies, you know, go wild. And I say, right,

816
00:40:35.840 --> 00:40:38.280
<v Speaker 2>that's true. The courts are kind of all over the place,

817
00:40:38.360 --> 00:40:42.199
<v Speaker 2>but the ideology is always in the same direction. So

818
00:40:42.639 --> 00:40:47.719
<v Speaker 2>if if letting the agencies go wild is conducive to

819
00:40:47.800 --> 00:40:51.000
<v Speaker 2>leftist ideology and policy, they're gonna let They're gonna let

820
00:40:51.039 --> 00:40:54.960
<v Speaker 2>the agencies go wild. If the agencies, uh need need

821
00:40:55.000 --> 00:40:57.679
<v Speaker 2>to be chastened by the courts, as they did in

822
00:40:57.719 --> 00:41:00.679
<v Speaker 2>the sixties and seventies, especially during the capture era, when

823
00:41:00.719 --> 00:41:03.880
<v Speaker 2>the idea was you know these out these environmental outfits

824
00:41:03.920 --> 00:41:05.599
<v Speaker 2>that you love so much them, you know, when they

825
00:41:05.599 --> 00:41:09.000
<v Speaker 2>were going into court and and the NRDC and the

826
00:41:09.039 --> 00:41:12.519
<v Speaker 2>Sierra Club and taking the the agencies to the court saying, hey,

827
00:41:12.519 --> 00:41:16.840
<v Speaker 2>you're not regulating zealously enough. Right, Uh, then the courts

828
00:41:16.840 --> 00:41:20.960
<v Speaker 2>are gonna use hard loook review un lucretia. To go

829
00:41:21.039 --> 00:41:25.480
<v Speaker 2>back to your earlier question, They're gonna use hard look

830
00:41:25.480 --> 00:41:27.559
<v Speaker 2>review to stick their nose in and and really make

831
00:41:27.599 --> 00:41:30.960
<v Speaker 2>the you know mastheus the e p A. H. During

832
00:41:30.960 --> 00:41:33.400
<v Speaker 2>the Bush administration is a very good example of this,

833
00:41:33.559 --> 00:41:36.199
<v Speaker 2>where where the court said, hey, Bush, E p A.

834
00:41:36.960 --> 00:41:40.159
<v Speaker 2>You're not regulating climate change aggressively enough, We're gonna make

835
00:41:40.159 --> 00:41:40.559
<v Speaker 2>you do it.

836
00:41:40.719 --> 00:41:42.679
<v Speaker 3>Okay, So let me ask you a question.

837
00:41:43.159 --> 00:41:47.280
<v Speaker 5>Will will Trump be any more successful at eliminating the

838
00:41:47.320 --> 00:41:50.519
<v Speaker 5>Department of Education than Reagan was?

839
00:41:51.920 --> 00:41:56.119
<v Speaker 2>Gosh, I don't know. I'm never right about making predictions.

840
00:41:56.440 --> 00:41:58.639
<v Speaker 2>I mean, look, I don't think it's going to be eliminated.

841
00:41:58.760 --> 00:42:01.000
<v Speaker 2>I don't see how that gets done because it needs Congress.

842
00:42:01.239 --> 00:42:03.239
<v Speaker 4>Oh well, I want to ask about Congress anyway, but

843
00:42:03.559 --> 00:42:04.519
<v Speaker 4>they say more if you want to.

844
00:42:04.599 --> 00:42:06.360
<v Speaker 2>No. I mean, that's that I think is the long

845
00:42:06.400 --> 00:42:08.119
<v Speaker 2>and the short of it. I know they're doing as

846
00:42:08.199 --> 00:42:10.280
<v Speaker 2>much as they can without the legislature.

847
00:42:10.440 --> 00:42:13.320
<v Speaker 5>And the only thing, the only thing I think argues

848
00:42:13.800 --> 00:42:17.079
<v Speaker 5>a little bit in Trump's favor, is simply the fact

849
00:42:17.079 --> 00:42:23.400
<v Speaker 5>that whole business about experts and elites. Every single time

850
00:42:23.480 --> 00:42:26.840
<v Speaker 5>someone talks about eliminating the Department of Education, they bring

851
00:42:26.880 --> 00:42:29.679
<v Speaker 5>out test scores that have done nothing, but after billions

852
00:42:29.719 --> 00:42:32.840
<v Speaker 5>of dollars, Title one, etcetera, etcetera, have done nothing.

853
00:42:32.840 --> 00:42:35.519
<v Speaker 3>But I mean, our students are stupid. They can't read anymore.

854
00:42:35.679 --> 00:42:36.519
<v Speaker 3>Public schools are a.

855
00:42:36.559 --> 00:42:38.199
<v Speaker 2>Nightmare except a Hillsdale College.

856
00:42:38.280 --> 00:42:42.159
<v Speaker 3>Except well, I'm talking, don't you have a charter school.

857
00:42:42.199 --> 00:42:44.599
<v Speaker 4>Then we've got them all over the country.

858
00:42:44.760 --> 00:42:46.599
<v Speaker 1>We have them all over the country. We have a

859
00:42:46.639 --> 00:42:51.360
<v Speaker 1>private classical academy. Okay the way, Sorry, I can't help it,

860
00:42:51.480 --> 00:42:53.880
<v Speaker 1>but it fits on. There was this article that other

861
00:42:53.960 --> 00:42:55.960
<v Speaker 1>day in the Wall Street Journal about why the falling

862
00:42:56.000 --> 00:42:59.719
<v Speaker 1>fertility rates everywhere? And the article is debunking all the theories,

863
00:42:59.760 --> 00:43:01.440
<v Speaker 1>and there's a little of that I thought they left

864
00:43:01.480 --> 00:43:01.920
<v Speaker 1>went out.

865
00:43:02.320 --> 00:43:05.039
<v Speaker 4>I think it was forty years ago. Jesse Helms said, look.

866
00:43:05.320 --> 00:43:08.199
<v Speaker 1>Clearly, we should teach sex education schools because then no

867
00:43:08.239 --> 00:43:09.280
<v Speaker 1>one would know how to do it.

868
00:43:10.119 --> 00:43:12.599
<v Speaker 4>And here we are now with falling fertility rates.

869
00:43:12.800 --> 00:43:15.239
<v Speaker 2>May is such a crazy Okay, I haven't heard that story.

870
00:43:15.360 --> 00:43:16.960
<v Speaker 2>That's a good one.

871
00:43:17.719 --> 00:43:19.599
<v Speaker 1>I want to ask about Congress because this was something

872
00:43:19.639 --> 00:43:21.760
<v Speaker 1>that again Marini and a bunch of our friends were

873
00:43:21.760 --> 00:43:23.480
<v Speaker 1>writing about in the eighties, which was it had been

874
00:43:23.599 --> 00:43:27.320
<v Speaker 1>enfeebled by the administrative state. The original case was a

875
00:43:27.320 --> 00:43:29.239
<v Speaker 1>little wasn't quite as worked out as it is now.

876
00:43:30.039 --> 00:43:33.239
<v Speaker 1>But one example he brought climate change. They were yelling

877
00:43:33.239 --> 00:43:36.320
<v Speaker 1>at Lee Zelden, saying, you've just made it impossible for

878
00:43:36.360 --> 00:43:39.400
<v Speaker 1>the government to fight climate change, and Zelden was very good.

879
00:43:40.079 --> 00:43:41.760
<v Speaker 4>That crazy woman from Connecticut.

880
00:43:41.360 --> 00:43:43.519
<v Speaker 2>Of Rosa Beloros used to be my representative.

881
00:43:43.559 --> 00:43:46.119
<v Speaker 1>I got to say, well, I thought he did miss

882
00:43:46.159 --> 00:43:48.719
<v Speaker 1>an opportunity saying no, the federal government has the power

883
00:43:48.800 --> 00:43:51.079
<v Speaker 1>to regulate climate change very aggressively, but has to come

884
00:43:51.079 --> 00:43:52.039
<v Speaker 1>from you directly.

885
00:43:52.400 --> 00:43:53.039
<v Speaker 4>You guys have a.

886
00:43:53.000 --> 00:43:54.639
<v Speaker 1>Job you can do so, you know, in the major

887
00:43:54.760 --> 00:43:56.840
<v Speaker 1>questions doctrine, and so, I don't know if you want

888
00:43:56.840 --> 00:43:58.599
<v Speaker 1>to say a little bit about is there any sign

889
00:43:58.639 --> 00:44:01.519
<v Speaker 1>that Congress is going to de and feeble itself.

890
00:44:02.159 --> 00:44:04.360
<v Speaker 4>I think they've lost their ability to legislate the way

891
00:44:04.360 --> 00:44:04.880
<v Speaker 4>they used to.

892
00:44:05.199 --> 00:44:08.840
<v Speaker 2>Yeah, I mean the difficulty is well, actually, let me

893
00:44:08.920 --> 00:44:12.039
<v Speaker 2>let me start differently. One piece of good news is

894
00:44:12.079 --> 00:44:14.599
<v Speaker 2>this is not hard to undo if we want to

895
00:44:14.679 --> 00:44:18.039
<v Speaker 2>undo it. The administrative state is not baked into the Constitution.

896
00:44:18.480 --> 00:44:20.360
<v Speaker 2>You don't have to go through all of that. Congress

897
00:44:20.400 --> 00:44:22.360
<v Speaker 2>created it with the stroke of a pen. It can

898
00:44:22.480 --> 00:44:25.880
<v Speaker 2>uncreate it with the stroke of a pen. It's ordinary legislation.

899
00:44:26.079 --> 00:44:31.599
<v Speaker 2>Congress willingly emasculated itself, and so it can undo that theoretically.

900
00:44:32.360 --> 00:44:36.239
<v Speaker 2>I do think, though, you know, the great difficulty now,

901
00:44:36.320 --> 00:44:39.719
<v Speaker 2>quite honestly, is the is really in the Republican Party,

902
00:44:40.679 --> 00:44:45.119
<v Speaker 2>Because that's President Trump's greatest, greatest difficulty, the reason why

903
00:44:46.480 --> 00:44:50.639
<v Speaker 2>you know, he controls not only the presidency but nominally

904
00:44:50.639 --> 00:44:54.400
<v Speaker 2>both houses of Congress, but he doesn't really have a

905
00:44:54.440 --> 00:44:58.039
<v Speaker 2>working majority in either house, and certainly not in the Senate.

906
00:44:59.360 --> 00:45:02.360
<v Speaker 2>And if people talk about getting rid of the filibuster,

907
00:45:02.440 --> 00:45:04.239
<v Speaker 2>because then you know, we could rule with fifty one

908
00:45:04.320 --> 00:45:06.360
<v Speaker 2>and we don't have fifty one. We don't have anybody

909
00:45:06.360 --> 00:45:09.480
<v Speaker 2>close to fifty one, and so there's a long row

910
00:45:09.519 --> 00:45:14.320
<v Speaker 2>to ho there. And I think the Democratic Party, by contrast,

911
00:45:14.400 --> 00:45:17.360
<v Speaker 2>is a little more willing to use their legislative power,

912
00:45:17.400 --> 00:45:20.280
<v Speaker 2>as we saw even in the minority. Right, so they

913
00:45:20.920 --> 00:45:24.159
<v Speaker 2>had this policy that the bureaucracy was pursuing, the the

914
00:45:24.719 --> 00:45:28.199
<v Speaker 2>ice policy, which many of us approve of under Trump. Well,

915
00:45:28.280 --> 00:45:32.119
<v Speaker 2>the legislators in Congress in the Democratic Party didn't approve

916
00:45:32.119 --> 00:45:34.719
<v Speaker 2>of that. So what did they do. They refused to

917
00:45:34.840 --> 00:45:38.079
<v Speaker 2>vote to fund it. They still have not right, and

918
00:45:38.159 --> 00:45:40.599
<v Speaker 2>you know what I say, good for them. I mean

919
00:45:40.679 --> 00:45:43.719
<v Speaker 2>I disagree with the policy, but good for them. They're

920
00:45:43.760 --> 00:45:47.679
<v Speaker 2>exercising their legislative power. Whereas if you reverse the situation,

921
00:45:47.800 --> 00:45:51.239
<v Speaker 2>how many times during the Obama administration were the Republicans

922
00:45:51.239 --> 00:45:54.679
<v Speaker 2>in the majority in the legislature and all they had

923
00:45:54.719 --> 00:45:58.360
<v Speaker 2>to do to stop funding Obamacare or any other thing

924
00:45:58.440 --> 00:46:00.880
<v Speaker 2>that Republicans don't refuse used to vote for. No, they

925
00:46:00.880 --> 00:46:03.599
<v Speaker 2>were afraid of the public debate. Democrats have not been

926
00:46:03.639 --> 00:46:06.239
<v Speaker 2>afraid of the public todate. No good, you know, good

927
00:46:06.280 --> 00:46:08.639
<v Speaker 2>for them. The Republicans need to start need to start

928
00:46:09.320 --> 00:46:11.519
<v Speaker 2>playing speak language.

929
00:46:11.800 --> 00:46:20.559
<v Speaker 5>So Schumer came in very good, it's very good. I

930
00:46:20.840 --> 00:46:22.960
<v Speaker 5>have no idea what day it is, but came out

931
00:46:23.079 --> 00:46:28.320
<v Speaker 5>very recently and said that he would filibuster an attempt

932
00:46:28.440 --> 00:46:32.920
<v Speaker 5>to pass to have the entire Senate vote on a

933
00:46:33.039 --> 00:46:36.920
<v Speaker 5>bill that would let me I'm probably going to get

934
00:46:37.000 --> 00:46:38.840
<v Speaker 5>the details of this a little bit wrong, but the

935
00:46:39.360 --> 00:46:45.039
<v Speaker 5>trans the public schools who don't tell parents that they

936
00:46:45.079 --> 00:46:49.559
<v Speaker 5>are socially transgendering that federal government.

937
00:46:49.920 --> 00:46:51.519
<v Speaker 3>Senate had a.

938
00:46:51.400 --> 00:46:55.559
<v Speaker 5>Bill to to make that illegal for public schools to do.

939
00:46:57.000 --> 00:47:00.840
<v Speaker 5>Chuck Schumer said, we will filibuster it before we let

940
00:47:00.840 --> 00:47:03.119
<v Speaker 5>this come to a vote on the on the floor,

941
00:47:03.159 --> 00:47:05.679
<v Speaker 5>because of course they don't want their members on an

942
00:47:05.719 --> 00:47:09.679
<v Speaker 5>eighty twenty issue having to vote as John Thune never

943
00:47:09.719 --> 00:47:12.719
<v Speaker 5>said that and let me ask you quickly because since

944
00:47:12.760 --> 00:47:14.920
<v Speaker 5>Steve's going to tell me you we have to go soon,

945
00:47:15.000 --> 00:47:17.960
<v Speaker 5>and I'm so excited about this conversation, I want to

946
00:47:17.960 --> 00:47:21.800
<v Speaker 5>go back. What do you think about the since we've

947
00:47:21.840 --> 00:47:24.960
<v Speaker 5>been here on a we're recording on a Wednesday yesterday

948
00:47:25.360 --> 00:47:29.559
<v Speaker 5>where the primary final races in Texas.

949
00:47:29.639 --> 00:47:32.639
<v Speaker 3>What do you so? So Trump has had some victories.

950
00:47:33.360 --> 00:47:35.760
<v Speaker 5>One of the things I've seen on social media sitting

951
00:47:36.000 --> 00:47:38.360
<v Speaker 5>doing nothing waiting for this or that, is that a

952
00:47:38.360 --> 00:47:42.039
<v Speaker 5>lot of people in social media, conservatives are saying that

953
00:47:42.119 --> 00:47:44.559
<v Speaker 5>this isn't about Trump, this is about the people have

954
00:47:45.199 --> 00:47:45.599
<v Speaker 5>had it.

955
00:47:45.880 --> 00:47:47.159
<v Speaker 3>Yeah with rhinos.

956
00:47:47.480 --> 00:47:49.679
<v Speaker 2>Yeah, do you know, I mean, I think that's right.

957
00:47:49.760 --> 00:47:52.440
<v Speaker 2>I think that the so there's there's a sort of

958
00:47:52.440 --> 00:47:54.840
<v Speaker 2>a long term and an immediate and a shorter term

959
00:47:54.920 --> 00:47:58.119
<v Speaker 2>question to go to what I think you're getting at

960
00:47:58.840 --> 00:48:02.000
<v Speaker 2>the situation that I just spent two minutes ranting about

961
00:48:02.719 --> 00:48:06.599
<v Speaker 2>in Congress. That's not going to change with the likes

962
00:48:06.679 --> 00:48:10.000
<v Speaker 2>of Senator Cassidy or Senator Cornan in positions of power

963
00:48:10.039 --> 00:48:12.039
<v Speaker 2>in the Republican Party in the Senate. It's just not.

964
00:48:14.039 --> 00:48:17.840
<v Speaker 2>And so I think long term, until the Republican Party

965
00:48:18.599 --> 00:48:23.639
<v Speaker 2>genuinely becomes the Party of Constitutionalism, the party that wants

966
00:48:23.679 --> 00:48:29.079
<v Speaker 2>to restore true Republican government. This is going to go on.

967
00:48:29.360 --> 00:48:32.920
<v Speaker 2>I mean, this is a kind of a nice period

968
00:48:32.960 --> 00:48:35.239
<v Speaker 2>for Republicans and controlling the executive branch with a guy

969
00:48:35.239 --> 00:48:38.920
<v Speaker 2>who's pretty darn aggressive. But by and large, this is

970
00:48:39.000 --> 00:48:43.079
<v Speaker 2>kind of rearranging the deck chairs if the party legislatively

971
00:48:43.679 --> 00:48:48.159
<v Speaker 2>doesn't get its act together. So well, just before everyone

972
00:48:48.199 --> 00:48:49.880
<v Speaker 2>starts screaming, you know, well, we're going to lose a

973
00:48:49.920 --> 00:48:52.000
<v Speaker 2>Senate because of course that may you know, I am

974
00:48:52.039 --> 00:48:53.960
<v Speaker 2>concerned about this. Steve and I were talking about this

975
00:48:53.960 --> 00:48:56.800
<v Speaker 2>before we went on air. You know, I do think

976
00:48:56.840 --> 00:48:58.599
<v Speaker 2>you have to be prudent and you got to calculate,

977
00:48:58.639 --> 00:49:01.000
<v Speaker 2>And yeah, I'm glad to see the John Cornyns of

978
00:49:01.000 --> 00:49:03.440
<v Speaker 2>the world get kicked out of the Senate, but gosh,

979
00:49:03.639 --> 00:49:06.679
<v Speaker 2>I hope we don't have to spend one hundred million

980
00:49:06.679 --> 00:49:08.880
<v Speaker 2>bucks and maybe lose that seat. You know, so we

981
00:49:08.920 --> 00:49:10.039
<v Speaker 2>do have through practical.

982
00:49:10.119 --> 00:49:13.239
<v Speaker 4>Let's least my exit question for this time, ten.

983
00:49:13.199 --> 00:49:15.440
<v Speaker 3>One hundred million dollars for him to lose the seat.

984
00:49:17.199 --> 00:49:21.800
<v Speaker 3>She can always find the silver lining, would I agree

985
00:49:21.800 --> 00:49:22.000
<v Speaker 3>on it?

986
00:49:22.000 --> 00:49:24.039
<v Speaker 1>She always finds the dark cloud around a silver lining.

987
00:49:24.400 --> 00:49:26.880
<v Speaker 1>The next question is this, So we've laid out that

988
00:49:27.280 --> 00:49:31.800
<v Speaker 1>take a note of intellectual changes, court decisions, an aggressive

989
00:49:31.840 --> 00:49:35.400
<v Speaker 1>executive and so on a scale of one to ten,

990
00:49:35.599 --> 00:49:39.480
<v Speaker 1>ten being best, where would you place sort of the

991
00:49:39.639 --> 00:49:42.639
<v Speaker 1>progress towards a constitutional.

992
00:49:42.000 --> 00:49:44.239
<v Speaker 4>Restoration that you think we need to be the goal?

993
00:49:44.679 --> 00:49:48.320
<v Speaker 1>Yeah, I mean I would do letter Grave that we

994
00:49:48.360 --> 00:49:50.360
<v Speaker 1>have great inflation, so I'll put.

995
00:49:50.239 --> 00:49:54.079
<v Speaker 2>It above five. I will say this, I never thought

996
00:49:54.159 --> 00:49:58.280
<v Speaker 2>I would be alive to see some of the reform

997
00:49:58.320 --> 00:50:01.480
<v Speaker 2>that we have already seen. And I think that, you know,

998
00:50:01.679 --> 00:50:04.199
<v Speaker 2>for all the things people don't like about Trump and

999
00:50:04.239 --> 00:50:07.079
<v Speaker 2>I and you know, I get it. You know, we

1000
00:50:07.239 --> 00:50:09.119
<v Speaker 2>all have our little things that we could could name,

1001
00:50:09.679 --> 00:50:14.239
<v Speaker 2>but for any serious conservative to reflect and to think

1002
00:50:14.280 --> 00:50:17.800
<v Speaker 2>about things that have happened that that we never thought

1003
00:50:18.119 --> 00:50:22.079
<v Speaker 2>we would see. Uh. And I have, you know, many

1004
00:50:22.159 --> 00:50:25.079
<v Speaker 2>many friends in the conservative legal establishment who really don't

1005
00:50:25.159 --> 00:50:27.400
<v Speaker 2>like Trump. And one of the things I always say

1006
00:50:27.400 --> 00:50:29.039
<v Speaker 2>to them is, look, you know, one of these days

1007
00:50:29.079 --> 00:50:31.000
<v Speaker 2>you're going to be in front of a judge, maybe

1008
00:50:31.000 --> 00:50:32.719
<v Speaker 2>in front of the Supreme Court. You're going to have

1009
00:50:32.760 --> 00:50:36.480
<v Speaker 2>an opportunity to argue a case for real constitutional reform

1010
00:50:36.519 --> 00:50:39.239
<v Speaker 2>that you believe in. And the reason why you're going

1011
00:50:39.320 --> 00:50:42.679
<v Speaker 2>to have a chance at winning that case is because

1012
00:50:42.719 --> 00:50:46.039
<v Speaker 2>Donald Trump was president, right, and if you don't get that,

1013
00:50:46.559 --> 00:50:49.840
<v Speaker 2>you don't understand anything about politics. Yeah, I mean that.

1014
00:50:49.960 --> 00:50:51.440
<v Speaker 1>I mean it was like I was totally wrong, but

1015
00:50:51.559 --> 00:50:53.440
<v Speaker 1>everything you know, I don't like it. Every elected he

1016
00:50:53.480 --> 00:50:54.079
<v Speaker 1>would tell, you.

1017
00:50:54.119 --> 00:50:58.000
<v Speaker 3>Know, okay, but you're still my friend. I know.

1018
00:50:58.239 --> 00:51:00.679
<v Speaker 1>One of my favorite, one of my favorite me recently.

1019
00:51:01.079 --> 00:51:02.880
<v Speaker 1>It's on a whole different domain, but it makes the

1020
00:51:02.920 --> 00:51:05.159
<v Speaker 1>point you're making. It showed the sort of the Bush

1021
00:51:05.239 --> 00:51:07.679
<v Speaker 1>national security team, you know, the little picture they all have,

1022
00:51:07.840 --> 00:51:10.400
<v Speaker 1>very fancy and I said, imagine telling these people that

1023
00:51:10.400 --> 00:51:14.440
<v Speaker 1>the president of baumb Dubron was the host of The Apprentice.

1024
00:51:15.679 --> 00:51:16.079
<v Speaker 4>You can't.

1025
00:51:16.119 --> 00:51:18.239
<v Speaker 1>You couldn't if he took the script to Hollywood and

1026
00:51:18.480 --> 00:51:20.199
<v Speaker 1>projected right, you couldn't see it coming.

1027
00:51:20.239 --> 00:51:20.639
<v Speaker 2>That's right.

1028
00:51:21.000 --> 00:51:24.960
<v Speaker 5>I don't know that he understands well. I remember John

1029
00:51:25.039 --> 00:51:26.000
<v Speaker 5>is the expert on this.

1030
00:51:26.119 --> 00:51:27.960
<v Speaker 3>I wish for this part, I wish John was.

1031
00:51:28.280 --> 00:51:34.159
<v Speaker 5>You know, it's hard to believe that Donald Trump understands

1032
00:51:34.320 --> 00:51:37.320
<v Speaker 5>these things that we've been talking about at this level.

1033
00:51:37.400 --> 00:51:40.280
<v Speaker 5>I don't know that he does, but he has amazing

1034
00:51:40.519 --> 00:51:45.559
<v Speaker 5>instincts for doing the right thing constitutionally he has amazing

1035
00:51:45.679 --> 00:51:50.559
<v Speaker 5>instincts for finding in the Constitution and in his executive

1036
00:51:50.679 --> 00:51:53.280
<v Speaker 5>powers the ability to do the right thing.

1037
00:51:53.320 --> 00:51:55.199
<v Speaker 4>I just wish he didn't find of an article twelve.

1038
00:51:57.760 --> 00:51:59.480
<v Speaker 4>Now we do have to go to it and do

1039
00:51:59.519 --> 00:51:59.880
<v Speaker 4>you have some.

1040
00:52:01.960 --> 00:52:03.480
<v Speaker 1>Just to give us a couple here, because we are

1041
00:52:03.599 --> 00:52:05.400
<v Speaker 1>we're supposed to muster here in a few minutes to go.

1042
00:52:05.840 --> 00:52:08.800
<v Speaker 5>I would have said that, you know, nobody's saying that

1043
00:52:09.440 --> 00:52:13.360
<v Speaker 5>Democrats who vote for Platiner as opposed to Democrats anyways,

1044
00:52:13.400 --> 00:52:17.760
<v Speaker 5>never mind, Platiner smooth things over with Democrats by covering

1045
00:52:17.880 --> 00:52:20.559
<v Speaker 5>nets Nazi tattoo with hammer and sickle.

1046
00:52:23.639 --> 00:52:26.880
<v Speaker 3>It's not even funny. It's not funny media to just

1047
00:52:27.039 --> 00:52:31.400
<v Speaker 3>start reporting when Trump wasn't shot at We don't even.

1048
00:52:31.239 --> 00:52:36.239
<v Speaker 5>Talk about it on the on on our podcast anymore.

1049
00:52:36.360 --> 00:52:38.440
<v Speaker 3>Yeah, I mean, we don't see it even worse.

1050
00:52:38.639 --> 00:52:43.639
<v Speaker 5>Yeah, d n C twenty twenty four election autopsy just

1051
00:52:44.239 --> 00:52:49.480
<v Speaker 5>Joe Biden's actual autopsy.

1052
00:52:48.480 --> 00:52:54.480
<v Speaker 1>Okay, all right, Well, our credo is buy more books,

1053
00:52:54.480 --> 00:52:55.360
<v Speaker 1>always drink your whiskey.

1054
00:52:55.440 --> 00:52:55.639
<v Speaker 2>Meat.

1055
00:52:56.039 --> 00:52:58.639
<v Speaker 1>You've been listening to the three Whiskey Happy Hour sponsored

1056
00:52:58.639 --> 00:53:03.599
<v Speaker 1>by the Cibaitas Institute, produced and hosted by ricochet dot com.

1057
00:53:03.639 --> 00:53:06.159
<v Speaker 4>And we'll be back next week. Oh and coming to

1058
00:53:06.239 --> 00:53:08.400
<v Speaker 4>you this week from Enna, Italy.

1059
00:53:08.480 --> 00:53:10.280
<v Speaker 1>And we'll be back next week from who knows where.

1060
00:53:10.440 --> 00:53:12.679
<v Speaker 1>But for now, Bye bye, everybody, don't go what thank you?

1061
00:53:12.800 --> 00:53:44.599
<v Speaker 7>R J yeah

1062
00:53:48.159 --> 00:53:51.400
<v Speaker 2>Ricochet Join the conversation
