Speaker 1: This special episode of the Three Whiskey Happy Hour is
Speaker 1: coming to you from the Highlands of Sicily.
Speaker 2: Well whiskey coming, take my pay the money.
Speaker 1: Why think alone when you can drink it all In
Speaker 1: with Ricochet's Three Whiskey Happy Hour, join your bartenders Steve Hayward,
Speaker 1: John U and the International Woman of Mystery, Lucretia where.
Speaker 3: They slapped it up David, ain't you easy on the
Speaker 3: should chaps got it?
Speaker 2: Give me.
Speaker 4: So as threatened and the teaser. Lucretia and I are
Speaker 4: in the Highlands of Sicily.
Speaker 1: Awaiting the arrival of John Yu, who is late as always,
Speaker 1: but we have a substitute for John who actually we've
Speaker 1: been wanting to have one for a long time and
Speaker 1: we just haven't gotten her act together.
Speaker 4: And it's r J Pastrido, the.
Speaker 1: Dean of Graduate Education at Hillsdale College.
Speaker 2: R J. Welcome, Thank you, very good to be here.
Speaker 1: Good it's been long overdue and hopefully first of many,
Speaker 1: because you know, we have a rotation we want to
Speaker 1: do now because we you know John sometimes we kick
Speaker 1: him out after a while and pull on up, Michael
Speaker 1: if you want to listen in we are podcasting and uh.
Speaker 2: And yes, right yeah, something like that.
Speaker 1: Right, So Archie, before we get into the main topic,
Speaker 1: you're also a descendant of people from Sicily.
Speaker 2: That's right, which I did not know.
Speaker 4: So where and when and who and how and you know,
Speaker 4: give us a little thumbnail bio.
Speaker 2: Yeah, my grandparents are are all from southeastern Sicily, or
Speaker 2: at least you know, from when they were very young.
Speaker 2: And uh so we are not too far from where
Speaker 2: all of my my people hail from. They were from
Speaker 2: the small towns around Siakuza, Syracuse, right and now my
Speaker 2: the relatives that I still see are actually in the
Speaker 2: city now in Syracuse. So this is say, if this
Speaker 2: is the first time I get to be on the
Speaker 2: three Whiskey Happy Hour, I'm very pleased that this is
Speaker 2: the location we chose for it.
Speaker 1: Right, and listeners should know that while we don't have
Speaker 1: our usual single multier in front of us while we're
Speaker 1: taping the night, we are going out for dinner afterwards
Speaker 1: here in Italy and where we will catch up we
Speaker 1: will find them in every way imaginable. One more and
Speaker 1: more detail. I'm just curious about so as your parents
Speaker 1: came over grandparents.
Speaker 2: To the state, the grandparents when they when they when
Speaker 2: they were very young. Okay, you know, so really the
Speaker 2: great grandparents were the ones that that that made the
Speaker 2: move right. And then my name got changed slightly in
Speaker 2: Els Island. So it's pees if you go here to
Speaker 2: to Floridia, where the piece tritos are from, it's p
Speaker 2: I s.
Speaker 4: Oh, okay, oh interesting.
Speaker 1: One reason I was curious is so the town of
Speaker 1: Anna that we're in I learned when I was reading
Speaker 1: the war history from World War Two, this was actually
Speaker 1: the German military headquarters.
Speaker 2: I did not know that. And it was overrun, you know.
Speaker 1: By Patton and Bradley in you know, July of nineteen
Speaker 1: forty three, and and so you know, I've sort of
Speaker 1: read about it previously, but now that was in the area.
Speaker 2: You know.
Speaker 1: So Montgomery landed sort of north of Syracuse, and whereas
Speaker 1: Patton's army landed on the south coast. I forget the long, long,
Speaker 1: long beach, you know, fifteen or twenty miles of beach.
Speaker 1: I forget the names of the towns now and let
Speaker 1: north up the middle. And Montgomery was supposed to go
Speaker 1: up the east through Catania to cut off everybody in Messina
Speaker 1: and failed to do so.
Speaker 4: And that's part of the drama of the movie and
Speaker 4: all the rest of that.
Speaker 1: So and it was fun to actually see the geography
Speaker 1: and see But then I had never paid attention to
Speaker 1: the fact that Anna was a primary target to decapitate
Speaker 1: the German command. So here we are, and of course
Speaker 1: an old city goes back to I guess Roman times
Speaker 1: and so forth. In any case, all you most want
Speaker 1: to talk about you, first of all, is your very
Speaker 1: provocative paper.
Speaker 3: Before you go there.
Speaker 5: So I just want to say that of all the
Speaker 5: famous people that I've had the fortune of meeting in
Speaker 5: my relations with John you and you, the one I'm
Speaker 5: as actually most excited about was meeting R. J, which
Speaker 5: I did a year or so ago for the first time.
Speaker 3: As I recall, because.
Speaker 5: Even though I went to Claremont and all of those
Speaker 5: other things, I never really quite understood progressivism, and still
Speaker 5: until I started reading Margie right and then I, as
Speaker 5: I mentioned earlier to him, I've used his class, his
Speaker 5: excuse me, his text in my class for years to
Speaker 5: teach progressivism.
Speaker 3: To my students.
Speaker 4: Which one in particular, I.
Speaker 3: Mean, the American progressivism.
Speaker 5: It's a it's a it's got his editorial comments on
Speaker 5: the all of the different progressive thinkers, which is as
Speaker 5: it's a three hundred level of American political thought class.
Speaker 5: But I added that to my class after I read
Speaker 5: your book.
Speaker 2: Well, that's great to hear when that that that collection
Speaker 2: came out of the early work that I did on
Speaker 2: Wilson and the other progressives. And I when I wrote
Speaker 2: that monograph on Wilson, I had all of this material,
Speaker 2: and then when I wanted to teach it in class,
Speaker 2: I had to compile, you know, pounds and pounds of photocopies,
Speaker 2: and that's when I proposed making a reader out of it.
Speaker 2: And so I use it for exactly say purpose. You
Speaker 2: know that you do so, But that's very kind.
Speaker 1: Of you to say, Well, that's why I asked which book,
Speaker 1: because I think, what was it, Woodrow Wilson and the
Speaker 1: Founding of a Modern what's the subtitle?
Speaker 2: So the monitor the original monograph I wrote on the
Speaker 2: topic of progressive it is called Woodrow Wilson and the
Speaker 2: Roots of Modern Liberalists.
Speaker 4: That's right, thank you.
Speaker 2: And then a couple of read I had a reader
Speaker 2: of works of Wilson specifically, and then a reader more
Speaker 2: generally of progressive era works.
Speaker 1: And I don't want to remind you that that we're
Speaker 1: all getting older, but that book now is twenty years.
Speaker 2: Old, twenty one to be exact.
Speaker 1: And well, I mean that's the book that I think
Speaker 1: first made you justly famous, right, I mean, that's the
Speaker 1: book that what's.
Speaker 4: His name on fox back?
Speaker 1: I forgot about this, yes, But more seriously, I mean
Speaker 1: there's been a lot of our friends had written a
Speaker 1: lot of good insight, a good analysis of Wilson, but
Speaker 1: you really put it all together in one place and
Speaker 1: extended the arguments and I think really crystallized things better
Speaker 1: than anybody had done before.
Speaker 2: Well, that's very kind of you to say. I always
Speaker 2: I like to explain it. You know, our good friend
Speaker 2: Charles Kessler who is our teacher, and he pointed out
Speaker 2: to us the importance of the progressives, right, and with
Speaker 2: a lot of different things that Charles's students have written
Speaker 2: over the years, we had sort of written the books
Speaker 2: that kind of flow from things that the nuggets that Charles,
Speaker 2: you know, taught us and pointed us to when we
Speaker 2: when we were in graduate school. So that's that's how
Speaker 2: that came out, and it continues to have relevance. Maybe
Speaker 2: we'll get a chance to talk about it later. Here.
Speaker 2: But you know the speech by Justice Thomas, pointing to Wilson.
Speaker 2: You know, I've had people calling me even though the
Speaker 2: book's twenty twenty some odd years old.
Speaker 4: Oh that's right. He quoted the book in a speech,
Speaker 4: didn't he.
Speaker 2: I don't know that he quoted me in the speech.
Speaker 2: I know that the hit on Thomas from Ruth Marcus
Speaker 2: quoted me.
Speaker 4: Well, congratulations for that.
Speaker 2: I don't know if that's any distinction.
Speaker 5: Before you forget, you should mention that in because I
Speaker 5: think you linked to it that r J's piece is
Speaker 5: also in the symposium that we all did all right
Speaker 5: for cibas.
Speaker 4: Thomas, it's hard to keep up. I mean there's almost
Speaker 4: a book book. Well is it? I'll get your your
Speaker 4: most recent piece in a moment.
Speaker 1: But is it is it fair of me to say that,
Speaker 1: you know, our prior teacher before that, Jaffa wasn't as
Speaker 1: onto this as well?
Speaker 4: Put it this way, the most famous book crisis of
Speaker 4: the House Divide It.
Speaker 1: He mentions Woodrow Wilson once in the briefest mention in
Speaker 1: passing and seems to kind of approve of him maybe
Speaker 1: a little bit orctually doesn't disapprove of him.
Speaker 2: It doesn't, doesn't.
Speaker 4: I think maybe Jaffa was not.
Speaker 1: Alert to the way that Wilson had misused Lincoln completely
Speaker 1: stripped out Lincoln's core teaching from is he has attempted
Speaker 1: appropriation of Lincoln.
Speaker 2: You put your finger right on it. Because the thing
Speaker 2: that Jaffa really would not have liked about Wilson on
Speaker 2: Lincoln would be that Wilson. Wilson hated the theoretical parts
Speaker 2: of the Declaration of Independence, right, and he oddly thought
Speaker 2: that Lincoln also didn't like those parts. And that's because
Speaker 2: Wilson's very clear really didn't read anything Lincoln ever actually
Speaker 2: wrote or said, right, And so he made that mistake.
Speaker 2: But you're right about about doctor Jaffa. You know, he
Speaker 2: had a soft spot for the New Deal, right, and
Speaker 2: Wilson was an antecedent of the New Deal. I actually
Speaker 2: was very, I must confess, very reluctant to show him
Speaker 2: a lot of what I had written on Wilson because
Speaker 2: I didn't know if he would like it very much, right,
Speaker 2: And so I sort of stayed under his radar. Right.
Speaker 6: Well, I think I think Marini and d and other people,
Speaker 6: but I mean I studied with all three of those
Speaker 6: people and he was not on till I read R.
Speaker 5: Jay's work, But I began to understand the progressive names.
Speaker 5: I've learned none of that even from from earlier.
Speaker 2: Now.
Speaker 5: Of course we discuss it all of the time, but
Speaker 5: I think you really were sort of a pioneer and
Speaker 5: all of that. Now, I didn't take any classes from
Speaker 5: Charles Kessler.
Speaker 3: He was barely had barely gotten.
Speaker 2: There when I was.
Speaker 4: He wasn't even unpacked.
Speaker 5: Yeah, and so so you know, I might have missed
Speaker 5: it from that point of view.
Speaker 3: So for me, you are the pioneer. I'm just going
Speaker 3: to leave it that.
Speaker 5: And I do believe if if if Jaffa understood the
Speaker 5: Progressives the way that you explained them, he would absolutely
Speaker 5: agree with everything you said.
Speaker 2: I Well, I like to think so, because Jaffa was
Speaker 2: so agreeable with with everybody.
Speaker 5: We no I know, but but but but there's the
Speaker 5: whole point of getting ahead of us. But the whole
Speaker 5: point of the progressives is their their fundamental denial of
Speaker 5: a fixed human nature, which was which was Jaffa's central
Speaker 5: point all.
Speaker 2: Yes, more seriously, I think I think you're you're exactly
Speaker 2: right about that. Uh, And it's appropriate to kind of
Speaker 2: be talking about these themes this year, in particular because
Speaker 2: everybody wants to celebrate the declaration, but I think many
Speaker 2: do not want to celebrate the actual principles of the time.
Speaker 3: I mentioned it last week in if you heard it
Speaker 3: about the.
Speaker 4: Hit your microphone? Uh, I've seen misbehaves every week.
Speaker 3: I don't mean too, I'm just anyway. I mentioned it
Speaker 3: last week.
Speaker 5: I'll mentioned again Katie tour Uh took Johnson Mike Johnson
Speaker 5: to task for the ridiculous notion that our rights come
Speaker 5: from God? And are we setting is Mike Johnson setting
Speaker 5: himself against the Declaration of Independence as if she'd never
Speaker 5: read it? So, so, you're right, It's the absolutely most
Speaker 5: important thing I think we could be talking about right now,
Speaker 5: because so many things follow from that basic understanding. Either
Speaker 5: there is a fixed human nature that we can know
Speaker 5: with reasonable certainty and devise a political system consistent with that,
Speaker 5: or you know, history is what decides what we should
Speaker 5: be and governments.
Speaker 3: Should tell us what to do.
Speaker 2: Well, as I started my latest piece that Steve mentioned
Speaker 2: briefly that I suppose we'll get into with a line
Speaker 2: from Senator Tim Kaine, who made who made lots of
Speaker 2: news not too long ago by in a Senate hearing,
Speaker 2: saying he really objected to the idea of natural rights
Speaker 2: because that meant that your rights came from God and
Speaker 2: not from government, and by his lights, they should come
Speaker 2: from the state.
Speaker 4: And that's what the Iranians were.
Speaker 3: Yeah, you didn't, you didn't. You didn't include that last pot.
Speaker 2: Yeah, I know. He was a little confused on that point,
Speaker 2: and poor Ted Cruz tried to straighten him out, but
Speaker 2: that was a lost mission. Well, let's linger a.
Speaker 1: Bit on the sort of students who are rethinking new
Speaker 1: vistas in the American political tradition.
Speaker 4: I think John.
Speaker 1: Weddergreen, who died at age forty three, passed away before
Speaker 1: you arrived in graduate school, so you probably never got
Speaker 1: to medium, that's right. But you know he had hung
Speaker 1: out in San Jose State with wedder Green and Marini,
Speaker 1: and I think Earler John Weddergreen.
Speaker 3: Yeah, you said he hung out with wedder Green.
Speaker 1: Oh, sorry, wet Green hung out with Marini and earlier
Speaker 1: up at Yeah, I just up at San Jose State
Speaker 1: in the late sixties, early seventies, and.
Speaker 3: Yeah he was he was a professor at San Jose.
Speaker 1: Right, but he I think the story was He was
Speaker 1: Jaffa's first graduate student way back at Ohio State in
Speaker 1: the late fifties early sixties, and so his great unfinished
Speaker 1: work that still circulates in Sammy's dad was, oddly enough.
Speaker 4: Really brilliant stuff.
Speaker 1: We're still talking about trying to update and publish at
Speaker 1: Tom West and I have talked about this every few years,
Speaker 1: but it was very jaffa esque in this sense. It
Speaker 1: was a very pro New Deal and very pro Franklin Roosevelt.
Speaker 1: And we've argued about it some and you read some
Speaker 1: parts of it, and anyway, he didn't he skipped Royal
Speaker 1: The progress was straight from the New Deal and gave
Speaker 1: an argument kind of like Conrad Black's argument. And you know,
Speaker 1: I love Conrad, but he can be kind of adult
Speaker 1: sometimes about American politics.
Speaker 4: He recently said a declaration was a bunch of debtors
Speaker 4: trying to escape their debts. It was really stupid.
Speaker 1: It was very disappointing for a guy otherwise like a
Speaker 1: lot anyway, So there's that.
Speaker 5: I think if John had had lived and I had
Speaker 5: his untimely death, he would have come around to RJ's opinion.
Speaker 4: Too, I think.
Speaker 5: So I remember, for some reason the thing that I
Speaker 5: remember most about John water Green it is it is relevant,
Speaker 5: is him talking about the regulatory state and explaining that
Speaker 5: one of the outcomes of the of the regulatory.
Speaker 3: State was the saddle toilet seat.
Speaker 5: Yes, And I was a dumb kid, and I just
Speaker 5: looked up and I said, what does that even mean?
Speaker 5: What's a saddle? And he said, I'm not going to
Speaker 5: explain it to you, young lady. You'll just have to
Speaker 5: figure it out for yourself. But so my point is.
Speaker 3: Is he understood the dangers of.
Speaker 5: A regulation of bureaucratic exploitation of power.
Speaker 3: He understood all of those things.
Speaker 5: So I can't believe that ultimately, if he had finished
Speaker 5: the book, he would have come down on this side
Speaker 5: of the New Deal.
Speaker 4: Well this is a go ahead.
Speaker 2: Well no, So I do think today there's a tendency
Speaker 2: we actually see it a little bit more of some
Speaker 2: conservatives to have a kind of generous view of the
Speaker 2: New Deal and of kind of the turn to a
Speaker 2: more let's just say, you know, robust common enterprise. But
Speaker 2: that's partly because I think they tend to see the
Speaker 2: nineteenth century and the founding and a little bit too
Speaker 2: simplistic terms. They see very libertarian terms right, and so
Speaker 2: they think, well, if I don't like hyper individualism, if
Speaker 2: I don't like libertarianism, you know, it's sort of like
Speaker 2: the Founding in the nineteenth century, we're like a libertarian dreamland.
Speaker 2: And so well, gosh, now I'm a conservative who's more communitarian,
Speaker 2: and I gosh, maybe the progressors had something right, maybe
Speaker 2: the New Dealers had something right. And so they see
Speaker 2: this kind of black and white. And of course that's
Speaker 2: not the way to see either the Founding or the
Speaker 2: nineteenth century.
Speaker 1: That's the problem with that, right, Well, this is actually
Speaker 1: a good segue to your paper.
Speaker 3: You know.
Speaker 1: The working title of John Wettergreen's book was total Regulation.
Speaker 2: I remember the.
Speaker 4: First time I saw it.
Speaker 1: I was still a graduate student, still didn't know enough
Speaker 1: about anything, and what I thought it went was just
Speaker 1: bigger and bigger bureaucracy and you know, counterproductive economic regulation.
Speaker 2: And it's not that at all.
Speaker 4: It really was the sort of first cut.
Speaker 1: And a lot of what we Claire monsters have subsequently
Speaker 1: done about.
Speaker 4: No, this is not an economic issue. It's a constitutional issue.
Speaker 4: It's the form of rule by experts.
Speaker 1: And by the way, Lucreatia one of his other examples
Speaker 1: in the book is the National Highway Transportation Safety Board
Speaker 1: or one of those things. They wanted to invent a
Speaker 1: safer motorcycle, and so they had some government lab come
Speaker 1: up with this motorcycle that essentially it had training wheels
Speaker 1: and work fine and more stable, except that under thirty
Speaker 1: miles an hour it lost its stability, would fall over
Speaker 1: on you and break your leg, And John said, proving
Speaker 1: that the only safe.
Speaker 4: Motorcycle is a car.
Speaker 2: So why are they doing this?
Speaker 1: Right? But what makes the government think that they're the
Speaker 1: ones who could need to figure out this problem?
Speaker 2: Right?
Speaker 4: Anyway, But that brings us to what is now.
Speaker 1: I think much more fully fleshed out. The phrase administrative
Speaker 1: state was once the obscure, clunky term in the backwaters
Speaker 1: of political science, even though it goes back to the forties,
Speaker 1: and now it's just about on everyone's lips, including even
Speaker 1: the people who defend it.
Speaker 4: Right, they'll use that term.
Speaker 1: So victory of nomenclature for us, And of course your
Speaker 1: book described for us the philosophy of how we got here.
Speaker 4: So first of all, so three part three.
Speaker 1: Questions I want to work through, and Lucretia, you may
Speaker 1: have some The first is is just give it a
Speaker 1: thumbnail description of how you describe the administrative state to people.
Speaker 1: And then I'll ask about where we are now, what's
Speaker 1: happening at the current moment, it seems promising, And then
Speaker 1: I have a third question.
Speaker 2: But yeah, I mean, I think as as to the first,
Speaker 2: it's basically it's a question of what we mean by
Speaker 2: Republican government, and it's it's you know, there's this confusion
Speaker 2: about labels today because of course we're told that Donald
Speaker 2: Trump and the Republican Party are the great enemies of democracy.
Speaker 3: Our democracy trademark, our.
Speaker 2: Democracy trademark, and and and so they they think that
Speaker 2: it is an assault on democracy to take power away
Speaker 2: from unelected bureaucrats and to give it to elected officials
Speaker 2: like the president. That is framed as an assault on democracy.
Speaker 2: So when independent agencies who are accountable to nobody, who
Speaker 2: never have their administrators, don't have to run for election,
Speaker 2: when when they are brought to heal by an elected president,
Speaker 2: this is an assault on our democracy, we're told.
Speaker 3: Uh.
Speaker 2: And so I am hoping that at least all the
Speaker 2: current attention that you mentioned may help shine a little
Speaker 2: light on how observed that is. And so I tried
Speaker 2: to reset that for audiences when I talk about what's
Speaker 2: going on in the Trump administration and the administrative state,
Speaker 2: to say, well, first of all, before we get into
Speaker 2: the weeds, let's understand what's at stake here. You either
Speaker 2: govern yourselves laws you make, or laws that your elected
Speaker 2: representatives make, or other people that you cannot hold accountable
Speaker 2: govern you. And which do you want? And then we
Speaker 2: go from there.
Speaker 4: Right, Oh, that's good.
Speaker 3: You know.
Speaker 1: One of the examples I use with people, it's now
Speaker 1: fifteen years old, but I think it's a good one.
Speaker 1: I may use it here with our Italian friends, is
Speaker 1: back around twenty ten, I'll say Boeing Aircraft wanted to
Speaker 1: locate one of its manufacturing facilities in South Carolina, a
Speaker 1: non union state, right to work state, and the National
Speaker 1: Labor Relations Board jumped in and tried to stop them,
Speaker 1: now bowing I think ultimately prevailed in court. But still
Speaker 1: the point is is that I know of a CEO
Speaker 1: who was on one of those business councils with Obama,
Speaker 1: and he asked him, how can this what's happening here?
Speaker 1: And Obama's answer, maybe you know it was, oh that
Speaker 1: that's not me, that's the National Labor Relations Board and
Speaker 1: they're independent in me, there's.
Speaker 4: Nothing I can do about it. Just stop and say, really,
Speaker 4: is that how our governments supposed to run?
Speaker 1: And so you know, one of the cases pending, I think,
Speaker 1: is whether Trump can remove someone from National Labor or
Speaker 1: maybe he's already one that I've lost from that. So
Speaker 1: the point is, you can you know, president should be
Speaker 1: able to fire these people.
Speaker 2: And that's right, Yeah, that's that's how. That's the only
Speaker 2: way in which voters in which the people who are
Speaker 2: sovereign in the country have any control over the bureaucrats
Speaker 2: who largely govern us. It's it's the way I explain
Speaker 2: it to people is to think of any any organization,
Speaker 2: any any business. You know. The only I work at
Speaker 2: Hillsdale College. The only reason that I have to listen
Speaker 2: to what Larry Arne says and do you know run
Speaker 2: the graduate program at Hillsdale like he wants me to,
Speaker 2: is he'll fire me if I don't. Uh. And that's
Speaker 2: that's very simple. And he could not be he could
Speaker 2: not do his duty to his bosses, our trustees right
Speaker 2: unless he had the ability to hire and fire his
Speaker 2: subordinates in the workings of the and anyone who who's
Speaker 2: ever had a job understands this concept very very straightforwardly. So, uh,
Speaker 2: it's very convenient of Barack Obama to say, you know, hey,
Speaker 2: I can't what can I do about the NLRB. I
Speaker 2: think that's more reflection one of how good a politician
Speaker 2: he was. But also, you know, we have to understand
Speaker 2: that when we talk about the administrative state, it's really
Speaker 2: hard to generalize because some parts of it are more
Speaker 2: accountable to the president than others, so fully independent, they
Speaker 2: are all kinds of different agencies, and so it is
Speaker 2: we should maybe have that as a general caveat, you know,
Speaker 2: for our audience and ourselves to say we're kind of
Speaker 2: generalizing about some things where there are lots of different types.
Speaker 1: Right, yeah, I mean the president can fire the administrator
Speaker 1: of the EPA, for example, you bet, yeah.
Speaker 2: Yeah.
Speaker 5: One of the points you make very well in your
Speaker 5: in your paper is that that really makes no sense
Speaker 5: to have that distinction between an independent regulatory agency and
Speaker 5: an otherwise executive agency, because, as you point out, they
Speaker 5: all exercise executive power, and the Constitution clearly says that
Speaker 5: executive power shall be vested in a president of the
Speaker 5: United States.
Speaker 3: It's nothing else I wanted to.
Speaker 5: I actually wanted to do a little deep dive into
Speaker 5: your article and and ask you about the what you
Speaker 5: call the the hard.
Speaker 3: I'm sorry, I lost it. Forgive me everyone.
Speaker 5: You know, I'm even more inarticulate than use than usual
Speaker 5: because of.
Speaker 3: Hard look review.
Speaker 5: So if an agency, if the president is trying to
Speaker 5: reign in the bureaucracy, and he does so an agency,
Speaker 5: he does so on using the argument that hey, I'm
Speaker 5: the person who was elected by the American people to
Speaker 5: run the executive branch, and that should be enough for
Speaker 5: me to win in the courts to say, yes, I
Speaker 5: should be able to do this.
Speaker 3: Explain what the court is said about that.
Speaker 2: Yeah, so I should say at first that this is
Speaker 2: you know, I'm sure the audience understands, what a what
Speaker 2: a what a powerful podcast this is because we go
Speaker 2: from the the abstractions of you know, political philosophy down
Speaker 2: to hard look review in a you know, kind of
Speaker 2: an obscure concept and administrative law you know, all within
Speaker 2: you know, two minutes. So this is great. No, it's
Speaker 2: very important. Unfortunately, it's very important.
Speaker 5: Uh.
Speaker 2: And I guess I would, you know, without getting too
Speaker 2: much into the weeds, I would say, the so called
Speaker 2: hard look review a process is the term used when
Speaker 2: courts use a part of the Administrative Procedure Act, which
Speaker 2: is the law that governs how how agencies can do
Speaker 2: what they do. When they use a part of that
Speaker 2: to to sort of look at agency policy making and
Speaker 2: and for it's a way for judges to insert themselves.
Speaker 2: It basically is the Act basically is there. The purpose
Speaker 2: of it was to try to make sure that agencies,
Speaker 2: when they do what they do, that they have reasons
Speaker 2: that they're not allowed to do things arbitrarily or capriciously.
Speaker 2: And so when an administrative agency makes a rule, it
Speaker 2: doesn't get to kind of do what like you might
Speaker 2: do to a small child, you know, do what I
Speaker 2: told you because I said so, And administrative agency can't
Speaker 2: do that. It has to give reasons, and so the
Speaker 2: court has to be able to go in and review
Speaker 2: the reasoning of an agency. So that's all well and
Speaker 2: good on paper, but the reality is that really since
Speaker 2: the sixties and seventies, courts have used the hard loook
Speaker 2: review process as a way to insert them basically the
Speaker 2: second guess everything that the administrative state does. Now, this
Speaker 2: has been kind of this has been a little bit
Speaker 2: of a hard concept to understand because that insertion by
Speaker 2: the judiciary sticking its nose in where it doesn't belong,
Speaker 2: into the business of the executive itself led to a
Speaker 2: reaction by conservative jurists like Antonin Scalia and others who
Speaker 2: then set up other doctrines in administrative law which were
Speaker 2: designed to keep the judiciary out of the business of
Speaker 2: the bureaucracy. And that the infamous one here is the
Speaker 2: Chevron deference. Well, this has also been a very bad
Speaker 2: thing because it meant that agencies after that were then
Speaker 2: left free to go do whatever the heck they wanted
Speaker 2: to do, free from any kind of scrutiny. And so
Speaker 2: we were sort of caught in this in this purgatory
Speaker 2: where you know, well, who do you want these unaccountable
Speaker 2: war in court era judges running policy or do you
Speaker 2: want these administrators in the modern you know, the administrative
Speaker 2: state running running policy. Well the answer is both neither,
Speaker 2: and in the.
Speaker 5: Latter case, not just running policy, but determining how far
Speaker 5: their powers go.
Speaker 2: Yes, that was one of the most pernicious parts of deference.
Speaker 2: The doctrine that the courts had come up with, which
Speaker 2: again was originally from some conservatives in the judiciary because
Speaker 2: they didn't want the liberals and the war in court
Speaker 2: second guessing executives in the Nixon administration and the Ford administration.
Speaker 2: So basically, the Court said, look, the judiciary should defer
Speaker 2: to agencies when agencies interpret laws, because they're the experts
Speaker 2: on these things. The big problem with that is one
Speaker 2: of the major questions that an agency comes across when
Speaker 2: it looks at a law is how much power does
Speaker 2: this law give us in our agency? And the insane
Speaker 2: thing about Chevron deference, which has been killed off by
Speaker 2: a Supreme Court a couple of years ago, thank god,
Speaker 2: But the insane thing about Chevron defference was the doctrine said, well,
Speaker 2: when an agency reads a statute to figure out how
Speaker 2: much power it has, we defer to the agency. In
Speaker 2: other words, it is it is the judge. It is
Speaker 2: the best judge of the extent of its own power. Yeah,
Speaker 2: all right.
Speaker 1: Well, I used to joke that Joe, people who aren't
Speaker 1: policy wonks or follow the.
Speaker 4: Law, I'd say, look, I think of it this way.
Speaker 4: You might, like me, have a Chevron gasoline credit card
Speaker 4: that has a limit. It's just for gasoline. The Chevron
Speaker 4: decision gives them a get out of jail free card
Speaker 4: for regulations with no limit.
Speaker 2: Right.
Speaker 4: I mean, that's the hyperbole, but there's something to do that, right.
Speaker 5: I want to just one one further point on this
Speaker 5: whole idea of expert You know that we're told by everyone,
Speaker 5: even you mentioned conservatives a little bit earlier, and I
Speaker 5: was thinking, another thing that seems to drive many conservatives
Speaker 5: is this idea. Is they take seriously the notion that
Speaker 5: we have to have this massive bureaucratic state, administrative state,
Speaker 5: because we're such a complex technological society, and so there's
Speaker 5: no way to have good government without this huge because
Speaker 5: we can't trust Congress to do it. And so I
Speaker 5: just want to ask you leave that aside. I just
Speaker 5: want to ask you if you think that things like
Speaker 5: the Fauci situation and climate change, the latest nonsense about
Speaker 5: all the everything we've been fed a bill of goods,
Speaker 5: With fed a bill of goods, it makes a force
Speaker 5: tonight that is there a possibility that that creates yet
Speaker 5: another sort of opening for a pushback against the administrative
Speaker 5: state Because people just don't believe in experts anymore. They
Speaker 5: don't trust the CDC, they don't trust, you know, on.
Speaker 3: And on and on.
Speaker 2: Indeed, no, I mean, this was the silver lining of
Speaker 2: COVID because for those of us who for decades have
Speaker 2: been writing about the administrative state, I mean, and let's
Speaker 2: face it, maybe even some listeners to your podcast their
Speaker 2: eyes have already glazed over and we started talking about
Speaker 2: the administrative state. But it's it was very hard to
Speaker 2: get people to understand how impactful, how important this was.
Speaker 2: And we could talk about climate change regulation and other
Speaker 2: kinds of things, but it wasn't until COVID when people
Speaker 2: had to live under the minute rule of alleged experts,
Speaker 2: when that whole business got exposed for the scam Lucretia
Speaker 2: mouth the word I'd all just say it out allowed
Speaker 2: the scam that it was. And so now it's actually
Speaker 2: much easier for me to go and talk to audiences
Speaker 2: about the pretensions to expertise and how this actually infects
Speaker 2: lots of different ways that were governed, because I could
Speaker 2: always refer to the COVID experience, and you're right, there's
Speaker 2: an opening now.
Speaker 3: Before that, it was the DMV.
Speaker 5: Yeah, just sort of you know, the idea that you
Speaker 5: had to have expertise to work at the DMV just
Speaker 5: left people anyway.
Speaker 2: So or one of the famous examples that I would
Speaker 2: teach an administrative law was, you know, this long debate
Speaker 2: went on for years and years and years, many or
Speaker 2: filings and everything else over whether peanut butter, in order
Speaker 2: to be called peanut butter, had to have ninety percent
Speaker 2: peanuts or could only be eighty seven percent, right, you know,
Speaker 2: really exciting things like that. Right.
Speaker 1: Well, the I mean I do think that well, general
Speaker 1: proposition that undergird some of the recent cases that you've
Speaker 1: mentioned is it does seem to me that the administrative
Speaker 1: state is on its back foot, it's.
Speaker 4: On the defensive. Right now. Partly COVID was a real blow,
Speaker 4: but I think the case against it was building even
Speaker 4: before then.
Speaker 1: You were starting to see, you know, even Justice Scalia,
Speaker 1: before he died, was changing his mind about Chevron, right
Speaker 1: he supposed.
Speaker 4: That's what you hear widely about it. And I think
Speaker 4: he realized that it was a mistake because he defended
Speaker 4: it for a long time.
Speaker 7: Right.
Speaker 1: I always though maybe've heard me say this, I'll say
Speaker 1: it again, Lucreas is born. But the Chevron case in
Speaker 1: nineteen eighty four was the case the Reagan administration one
Speaker 1: and the environmentalists lost, and in the short run, maybe
Speaker 1: it did help the Reagan administration, which this is something
Speaker 1: Weddgreen pointed out. The reg administration failed earlier, really earlier.
Speaker 1: They were not going to get serious regulatory reform because
Speaker 1: Congress was against it and judges run sympathetic, I mean lobbings.
Speaker 1: Trump is one on the Reagan people could never have
Speaker 1: won on and the courts is then constituted.
Speaker 4: So they thought, let's do regulatory.
Speaker 1: Relief within the administrative latitude we have. They did a
Speaker 1: lot of that, but of course that just gets swept
Speaker 1: away the next time you have the administration's.
Speaker 4: Changed in this case.
Speaker 1: In the in the eighties and nineties, you didn't need
Speaker 1: the other party takeover. You just needed somebody named President
Speaker 1: Bush to increase regulation again.
Speaker 2: Right, No, in fact, I'm sorry, I'm just sorry.
Speaker 4: I'm going on too long.
Speaker 1: The point is now it's on the defensive and we're
Speaker 1: seeing these cases now.
Speaker 4: The just no, Actually, we are gonna.
Speaker 1: Exercise the oversight of what instead of your powers and
Speaker 1: other things happening and people saying Congress, the courts, in Congress,
Speaker 1: you need to do your job, don't pass vague statutes.
Speaker 1: You know, there used to be lots of little supreme
Speaker 1: little cases, usually a criminal law about they would void
Speaker 1: a conviction saying void for vagueness.
Speaker 4: That's criminal statutes.
Speaker 1: Just you big, I'm sorry, you go back to work
Speaker 1: and write something more specific.
Speaker 3: Because they don't know what they're doing. They're not excellent.
Speaker 1: Well, I'm coming, well, I'm coming to well, I do
Speaker 1: want to ask the Congress question.
Speaker 4: But anyway, I don't know when you want to add
Speaker 4: to all that.
Speaker 2: I mean, I would just say that it's part of
Speaker 2: the argument that I had made in the recent provocation,
Speaker 2: the recent monograph that I wrote, was that that you're
Speaker 2: quite correct that within the last ten to twenty years,
Speaker 2: the environment in the courts, at the Supreme Court at least,
Speaker 2: has been much more favorable to reconsidering the sort of
Speaker 2: carte blanche that the administrative state has, and there had
Speaker 2: been you know, rulings again very much kind of Robert's style.
Speaker 2: I know he's a great object of Lucretia's credit, but
Speaker 2: I mean, and by the way, I should say Lucretia,
Speaker 2: it was it was Justice Roberts who said in the
Speaker 2: City of Arlington case in twenty thirteen, he said, the
Speaker 2: danger of the administrative state is is just you know,
Speaker 2: he actually was like, you know, the scale cell from
Speaker 2: his eyes or something.
Speaker 3: But as you pointed out, sorry.
Speaker 2: He's very increased, very incremental, very incremental. So but over
Speaker 2: the last ten or twenty years, there's a better environment
Speaker 2: in the courts. And clearly the folks in the Trump
Speaker 2: in Trump world, especially during the interregnum, had been paying
Speaker 2: very careful attention to this because the courts had sort
Speaker 2: of set up this environment where they had teed up
Speaker 2: several of these core long time precedents, and as soon
Speaker 2: as the president came into the second term, it's why
Speaker 2: you saw this just flooding the zone of going after
Speaker 2: these agencies. That wasn't people like, oh, it's Trump just
Speaker 2: going crazy and firing from the hip. Now. Actually it
Speaker 2: was some really smart, observant people who were close to
Speaker 2: him who had this stuff lined up. They knew exactly
Speaker 2: what agencies to go after, exactly the arguments to use.
Speaker 2: In a lot of the executive orders. If you read those,
Speaker 2: they're using the language of the Supreme Court opinions from
Speaker 2: the last ten years. So they knew exactly what they
Speaker 2: were doing. And that's why I think we're kind of
Speaker 2: on the verge right now, having some pretty major substantive
Speaker 2: Supreme Court your rulings coming out in the next month
Speaker 2: or so.
Speaker 4: So they've really teed this up. They have, you know,
Speaker 4: sort of a broader political point.
Speaker 1: But the other day occurred to me that, you know, Trump,
Speaker 1: by the time in these office will have been the
Speaker 1: dominant political figure in the country and in the world
Speaker 1: for twelve years.
Speaker 4: That's almost as long as Roosevelt was.
Speaker 1: What happened as you had Biden in the middle, it
Speaker 1: increasingly looks like this misadventure and a mistake interrupting it.
Speaker 1: But during that time, not only were some cases won,
Speaker 1: like was a'n epa versus West Virginia, then that happened
Speaker 1: during Biden or at least well the Harvard case anyway,
Speaker 1: which is important to right that happened while Biden was president.
Speaker 1: The point is, it looks like this irrelevant little side
Speaker 1: show and detour, and it's starting to look more like
Speaker 1: an era. But their point is that I think you've
Speaker 1: alluded to this just now. The Trump people, the Trump team,
Speaker 1: they spent those four years in exile, so to speak,
Speaker 1: thinking it through what they were going to do, and
Speaker 1: they really had a plan and learned a lot from
Speaker 1: their first term and watched them anyway.
Speaker 2: They did, and you know, quite honestly, in the first term,
Speaker 2: and you know, they might not put it in these terms,
Speaker 2: but they got their doors blown off in terms of
Speaker 2: trying to do regulatory reform, and they smarted from that,
Speaker 2: and they learned, and the second term has been very,
Speaker 2: very different. And you know, there are lots of things
Speaker 2: that those of us on the conservative side, you know,
Speaker 2: you get frustrated with in terms of the first year
Speaker 2: year and a half now of the Trump administration, opportunities
Speaker 2: and things like that, some of the crazy district courts
Speaker 2: and other problems. But this is the one area where
Speaker 2: things have been i wouldn't say quietly, but almost quietly,
Speaker 2: kind of humming along beneath the surface. These agencies really
Speaker 2: have been I'm certainly not going to say turned around.
Speaker 2: That'd be way too much to hope. But a lot
Speaker 2: has been done very substantively, a little bit out of
Speaker 2: the public eye, because let's face it, this topic is
Speaker 2: kind of boring, which is a good thing, and I
Speaker 2: think it's they'd much rather rule for you the immigrant
Speaker 2: rights and things like that. That's sexier stuff, but the
Speaker 2: administrative state. I hope they keep being quiet about that
Speaker 2: because lots of goods being done right now.
Speaker 5: So, at the risk of showing my hand entirely on
Speaker 5: my conference paper, I do want to throw this at
Speaker 5: you for a moment. So starting with Obama and the
Speaker 5: IRS scandal. Do you remember that when Obama was confronted
Speaker 5: on someone I think by Stephanopplis, somebody asked him about
Speaker 5: it and he said, he said, I read it the
Speaker 5: IRS scandal where the IRS was targeting conservative groups like
Speaker 5: the Tea Party, not so much denying them because the
Speaker 5: law had prevented that, but slow rolling and this kind
Speaker 5: of thing.
Speaker 3: And when it.
Speaker 5: Became a big scandal, Obama was asked about it and
Speaker 5: he said, I found out about it just like you
Speaker 5: did in.
Speaker 3: I read it in the papers. So that was Obama
Speaker 3: creating this, creating this sort of.
Speaker 5: That's not my responsibilities, you pointed out, just with an
Speaker 5: LRB case. And then jumping ahead quickly, Biden. We talked
Speaker 5: about on this podcast an article I got to pull
Speaker 5: it up.
Speaker 3: I don't remember who wrote it, but it.
Speaker 5: Was some liberal progressive hack who said, we don't care
Speaker 5: if Biden is senile. We don't care at all that
Speaker 5: Biden is seenw It doesn't matter because all of the
Speaker 5: great things we progressives are doing in this Biden administration
Speaker 5: can be done no matter what. And they're certainly not
Speaker 5: going to be done if somebody else is, you know,
Speaker 5: and and so you go from this, I didn't know
Speaker 5: anything about it too well.
Speaker 3: The administrative state has taken over. Trump is fighting against that.
Speaker 2: He is, and and I think that I think what
Speaker 2: you're the general concept you're, you're, you're you're pointing to
Speaker 2: is the administrative state. The Left has come to understand
Speaker 2: that the administrative the administrative state is its proxy. So
Speaker 2: this is why I mean, for for example, if a
Speaker 2: generation or so ago, uh an administrator had got gone
Speaker 2: up before a Congressional committee and had you know, thumbed
Speaker 2: his nose at the congressional committee as as you know
Speaker 2: Lois Learner did, as as you know Coscina did, and
Speaker 2: some of these other you know, I R S types.
Speaker 2: You know that that all of Congress, both parties the
Speaker 2: Institution would have circled the wagons and and would have
Speaker 2: would have said no, no, no, hey, you better you better
Speaker 2: behave yourself where Congress, we're your appropriators, we want some
Speaker 2: institutional risks back. I mean, you know, if you had,
Speaker 2: if you were a bureaucrat, you got called up in
Speaker 2: front of Rostenkowski or John Dingle or what you know,
Speaker 2: that was your worst nightmare. What we saw more recently
Speaker 2: is the administrators know that the Democrats in Congress have
Speaker 2: their back, and so the Democrats they don't want anything
Speaker 2: done to the administrative state. They don't want to meddle
Speaker 2: with the administrative state because they can go on in
Speaker 2: the legislature just sort of signposting and you know, using
Speaker 2: their positions as a media platform. And meanwhile, the really
Speaker 2: the real work of advancing leftism in the country is
Speaker 2: done by the administrators. And so the administrators know that
Speaker 2: half of Congress is it's out. Well, let's be honest,
Speaker 2: more than half of Congress is its ally and that's
Speaker 2: a change in the last generation that Trump is really,
Speaker 2: you're quite correct, it really trying to push back against it.
Speaker 2: And it's why they're screaming bloody murder.
Speaker 1: Marini was saying that John Mariney was saying this forty
Speaker 1: years ago that the administrative state is the partisan inst
Speaker 1: the Democratic Party. But Republicans will never say that they
Speaker 1: just complain about big government.
Speaker 2: Is a wise man.
Speaker 5: To those conservatives that you're talking about. Uh, you you
Speaker 5: really do have to understand that the Democratic Party, the
Speaker 5: administrative state is a creature of the left or the
Speaker 5: Democratic Party because of progressivism, because it advances everything that
Speaker 5: they believe in. And if you are a conservative, uh,
Speaker 5: a true conservative, and you understand that every exercise of
Speaker 5: government power has to should be you know, absolutely defended,
Speaker 5: and and and you know, be the minimalist possible all
Speaker 5: those other things.
Speaker 3: If you accept the premises of.
Speaker 5: The New Deal, or those premises of the idea that
Speaker 5: we have a vast technological commercial society that needs to
Speaker 5: be regulated given.
Speaker 2: It's baked in. So I'll tell you how explain this
Speaker 2: to my students after the law student. And I hesitate
Speaker 2: to do this or for audience. The great, the great uh,
Speaker 2: Michael McConnell is is in earshot, so I hesitate to
Speaker 2: say this in front of him. But you know, the
Speaker 2: the the law follows the politics, not the other way around.
Speaker 2: And so when I teach administrative law and the students
Speaker 2: are trying to figure out, well, gosh here. For a
Speaker 2: couple of decades, the courts seem to be really clamping
Speaker 2: down on the administrators. And now then it changes and
Speaker 2: for another couple of decades, the courts are really letting,
Speaker 2: letting the agencies, you know, go wild. And I say, right,
Speaker 2: that's true. The courts are kind of all over the place,
Speaker 2: but the ideology is always in the same direction. So
Speaker 2: if if letting the agencies go wild is conducive to
Speaker 2: leftist ideology and policy, they're gonna let They're gonna let
Speaker 2: the agencies go wild. If the agencies, uh need need
Speaker 2: to be chastened by the courts, as they did in
Speaker 2: the sixties and seventies, especially during the capture era, when
Speaker 2: the idea was you know these out these environmental outfits
Speaker 2: that you love so much them, you know, when they
Speaker 2: were going into court and and the NRDC and the
Speaker 2: Sierra Club and taking the the agencies to the court saying, hey,
Speaker 2: you're not regulating zealously enough. Right, Uh, then the courts
Speaker 2: are gonna use hard loook review un lucretia. To go
Speaker 2: back to your earlier question, They're gonna use hard look
Speaker 2: review to stick their nose in and and really make
Speaker 2: the you know mastheus the e p A. H. During
Speaker 2: the Bush administration is a very good example of this,
Speaker 2: where where the court said, hey, Bush, E p A.
Speaker 2: You're not regulating climate change aggressively enough, We're gonna make
Speaker 2: you do it.
Speaker 3: Okay, So let me ask you a question.
Speaker 5: Will will Trump be any more successful at eliminating the
Speaker 5: Department of Education than Reagan was?
Speaker 2: Gosh, I don't know. I'm never right about making predictions.
Speaker 2: I mean, look, I don't think it's going to be eliminated.
Speaker 2: I don't see how that gets done because it needs Congress.
Speaker 4: Oh well, I want to ask about Congress anyway, but
Speaker 4: they say more if you want to.
Speaker 2: No. I mean, that's that I think is the long
Speaker 2: and the short of it. I know they're doing as
Speaker 2: much as they can without the legislature.
Speaker 5: And the only thing, the only thing I think argues
Speaker 5: a little bit in Trump's favor, is simply the fact
Speaker 5: that whole business about experts and elites. Every single time
Speaker 5: someone talks about eliminating the Department of Education, they bring
Speaker 5: out test scores that have done nothing, but after billions
Speaker 5: of dollars, Title one, etcetera, etcetera, have done nothing.
Speaker 3: But I mean, our students are stupid. They can't read anymore.
Speaker 3: Public schools are a.
Speaker 2: Nightmare except a Hillsdale College.
Speaker 3: Except well, I'm talking, don't you have a charter school.
Speaker 4: Then we've got them all over the country.
Speaker 1: We have them all over the country. We have a
Speaker 1: private classical academy. Okay the way, Sorry, I can't help it,
Speaker 1: but it fits on. There was this article that other
Speaker 1: day in the Wall Street Journal about why the falling
Speaker 1: fertility rates everywhere? And the article is debunking all the theories,
Speaker 1: and there's a little of that I thought they left
Speaker 1: went out.
Speaker 4: I think it was forty years ago. Jesse Helms said, look.
Speaker 1: Clearly, we should teach sex education schools because then no
Speaker 1: one would know how to do it.
Speaker 4: And here we are now with falling fertility rates.
Speaker 2: May is such a crazy Okay, I haven't heard that story.
Speaker 2: That's a good one.
Speaker 1: I want to ask about Congress because this was something
Speaker 1: that again Marini and a bunch of our friends were
Speaker 1: writing about in the eighties, which was it had been
Speaker 1: enfeebled by the administrative state. The original case was a
Speaker 1: little wasn't quite as worked out as it is now.
Speaker 1: But one example he brought climate change. They were yelling
Speaker 1: at Lee Zelden, saying, you've just made it impossible for
Speaker 1: the government to fight climate change, and Zelden was very good.
Speaker 4: That crazy woman from Connecticut.
Speaker 2: Of Rosa Beloros used to be my representative.
Speaker 1: I got to say, well, I thought he did miss
Speaker 1: an opportunity saying no, the federal government has the power
Speaker 1: to regulate climate change very aggressively, but has to come
Speaker 1: from you directly.
Speaker 4: You guys have a.
Speaker 1: Job you can do so, you know, in the major
Speaker 1: questions doctrine, and so, I don't know if you want
Speaker 1: to say a little bit about is there any sign
Speaker 1: that Congress is going to de and feeble itself.
Speaker 4: I think they've lost their ability to legislate the way
Speaker 4: they used to.
Speaker 2: Yeah, I mean the difficulty is well, actually, let me
Speaker 2: let me start differently. One piece of good news is
Speaker 2: this is not hard to undo if we want to
Speaker 2: undo it. The administrative state is not baked into the Constitution.
Speaker 2: You don't have to go through all of that. Congress
Speaker 2: created it with the stroke of a pen. It can
Speaker 2: uncreate it with the stroke of a pen. It's ordinary legislation.
Speaker 2: Congress willingly emasculated itself, and so it can undo that theoretically.
Speaker 2: I do think, though, you know, the great difficulty now,
Speaker 2: quite honestly, is the is really in the Republican Party,
Speaker 2: Because that's President Trump's greatest, greatest difficulty, the reason why
Speaker 2: you know, he controls not only the presidency but nominally
Speaker 2: both houses of Congress, but he doesn't really have a
Speaker 2: working majority in either house, and certainly not in the Senate.
Speaker 2: And if people talk about getting rid of the filibuster,
Speaker 2: because then you know, we could rule with fifty one
Speaker 2: and we don't have fifty one. We don't have anybody
Speaker 2: close to fifty one, and so there's a long row
Speaker 2: to ho there. And I think the Democratic Party, by contrast,
Speaker 2: is a little more willing to use their legislative power,
Speaker 2: as we saw even in the minority. Right, so they
Speaker 2: had this policy that the bureaucracy was pursuing, the the
Speaker 2: ice policy, which many of us approve of under Trump. Well,
Speaker 2: the legislators in Congress in the Democratic Party didn't approve
Speaker 2: of that. So what did they do. They refused to
Speaker 2: vote to fund it. They still have not right, and
Speaker 2: you know what I say, good for them. I mean
Speaker 2: I disagree with the policy, but good for them. They're
Speaker 2: exercising their legislative power. Whereas if you reverse the situation,
Speaker 2: how many times during the Obama administration were the Republicans
Speaker 2: in the majority in the legislature and all they had
Speaker 2: to do to stop funding Obamacare or any other thing
Speaker 2: that Republicans don't refuse used to vote for. No, they
Speaker 2: were afraid of the public debate. Democrats have not been
Speaker 2: afraid of the public todate. No good, you know, good
Speaker 2: for them. The Republicans need to start need to start
Speaker 2: playing speak language.
Speaker 5: So Schumer came in very good, it's very good. I
Speaker 5: have no idea what day it is, but came out
Speaker 5: very recently and said that he would filibuster an attempt
Speaker 5: to pass to have the entire Senate vote on a
Speaker 5: bill that would let me I'm probably going to get
Speaker 5: the details of this a little bit wrong, but the
Speaker 5: trans the public schools who don't tell parents that they
Speaker 5: are socially transgendering that federal government.
Speaker 3: Senate had a.
Speaker 5: Bill to to make that illegal for public schools to do.
Speaker 5: Chuck Schumer said, we will filibuster it before we let
Speaker 5: this come to a vote on the on the floor,
Speaker 5: because of course they don't want their members on an
Speaker 5: eighty twenty issue having to vote as John Thune never
Speaker 5: said that and let me ask you quickly because since
Speaker 5: Steve's going to tell me you we have to go soon,
Speaker 5: and I'm so excited about this conversation, I want to
Speaker 5: go back. What do you think about the since we've
Speaker 5: been here on a we're recording on a Wednesday yesterday
Speaker 5: where the primary final races in Texas.
Speaker 3: What do you so? So Trump has had some victories.
Speaker 5: One of the things I've seen on social media sitting
Speaker 5: doing nothing waiting for this or that, is that a
Speaker 5: lot of people in social media, conservatives are saying that
Speaker 5: this isn't about Trump, this is about the people have
Speaker 5: had it.
Speaker 3: Yeah with rhinos.
Speaker 2: Yeah, do you know, I mean, I think that's right.
Speaker 2: I think that the so there's there's a sort of
Speaker 2: a long term and an immediate and a shorter term
Speaker 2: question to go to what I think you're getting at
Speaker 2: the situation that I just spent two minutes ranting about
Speaker 2: in Congress. That's not going to change with the likes
Speaker 2: of Senator Cassidy or Senator Cornan in positions of power
Speaker 2: in the Republican Party in the Senate. It's just not.
Speaker 2: And so I think long term, until the Republican Party
Speaker 2: genuinely becomes the Party of Constitutionalism, the party that wants
Speaker 2: to restore true Republican government. This is going to go on.
Speaker 2: I mean, this is a kind of a nice period
Speaker 2: for Republicans and controlling the executive branch with a guy
Speaker 2: who's pretty darn aggressive. But by and large, this is
Speaker 2: kind of rearranging the deck chairs if the party legislatively
Speaker 2: doesn't get its act together. So well, just before everyone
Speaker 2: starts screaming, you know, well, we're going to lose a
Speaker 2: Senate because of course that may you know, I am
Speaker 2: concerned about this. Steve and I were talking about this
Speaker 2: before we went on air. You know, I do think
Speaker 2: you have to be prudent and you got to calculate,
Speaker 2: And yeah, I'm glad to see the John Cornyns of
Speaker 2: the world get kicked out of the Senate, but gosh,
Speaker 2: I hope we don't have to spend one hundred million
Speaker 2: bucks and maybe lose that seat. You know, so we
Speaker 2: do have through practical.
Speaker 4: Let's least my exit question for this time, ten.
Speaker 3: One hundred million dollars for him to lose the seat.
Speaker 3: She can always find the silver lining, would I agree
Speaker 3: on it?
Speaker 1: She always finds the dark cloud around a silver lining.
Speaker 1: The next question is this, So we've laid out that
Speaker 1: take a note of intellectual changes, court decisions, an aggressive
Speaker 1: executive and so on a scale of one to ten,
Speaker 1: ten being best, where would you place sort of the
Speaker 1: progress towards a constitutional.
Speaker 4: Restoration that you think we need to be the goal?
Speaker 1: Yeah, I mean I would do letter Grave that we
Speaker 1: have great inflation, so I'll put.
Speaker 2: It above five. I will say this, I never thought
Speaker 2: I would be alive to see some of the reform
Speaker 2: that we have already seen. And I think that, you know,
Speaker 2: for all the things people don't like about Trump and
Speaker 2: I and you know, I get it. You know, we
Speaker 2: all have our little things that we could could name,
Speaker 2: but for any serious conservative to reflect and to think
Speaker 2: about things that have happened that that we never thought
Speaker 2: we would see. Uh. And I have, you know, many
Speaker 2: many friends in the conservative legal establishment who really don't
Speaker 2: like Trump. And one of the things I always say
Speaker 2: to them is, look, you know, one of these days
Speaker 2: you're going to be in front of a judge, maybe
Speaker 2: in front of the Supreme Court. You're going to have
Speaker 2: an opportunity to argue a case for real constitutional reform
Speaker 2: that you believe in. And the reason why you're going
Speaker 2: to have a chance at winning that case is because
Speaker 2: Donald Trump was president, right, and if you don't get that,
Speaker 2: you don't understand anything about politics. Yeah, I mean that.
Speaker 1: I mean it was like I was totally wrong, but
Speaker 1: everything you know, I don't like it. Every elected he
Speaker 1: would tell, you.
Speaker 3: Know, okay, but you're still my friend. I know.
Speaker 1: One of my favorite, one of my favorite me recently.
Speaker 1: It's on a whole different domain, but it makes the
Speaker 1: point you're making. It showed the sort of the Bush
Speaker 1: national security team, you know, the little picture they all have,
Speaker 1: very fancy and I said, imagine telling these people that
Speaker 1: the president of baumb Dubron was the host of The Apprentice.
Speaker 4: You can't.
Speaker 1: You couldn't if he took the script to Hollywood and
Speaker 1: projected right, you couldn't see it coming.
Speaker 2: That's right.
Speaker 5: I don't know that he understands well. I remember John
Speaker 5: is the expert on this.
Speaker 3: I wish for this part, I wish John was.
Speaker 5: You know, it's hard to believe that Donald Trump understands
Speaker 5: these things that we've been talking about at this level.
Speaker 5: I don't know that he does, but he has amazing
Speaker 5: instincts for doing the right thing constitutionally he has amazing
Speaker 5: instincts for finding in the Constitution and in his executive
Speaker 5: powers the ability to do the right thing.
Speaker 4: I just wish he didn't find of an article twelve.
Speaker 4: Now we do have to go to it and do
Speaker 4: you have some.
Speaker 1: Just to give us a couple here, because we are
Speaker 1: we're supposed to muster here in a few minutes to go.
Speaker 5: I would have said that, you know, nobody's saying that
Speaker 5: Democrats who vote for Platiner as opposed to Democrats anyways,
Speaker 5: never mind, Platiner smooth things over with Democrats by covering
Speaker 5: nets Nazi tattoo with hammer and sickle.
Speaker 3: It's not even funny. It's not funny media to just
Speaker 3: start reporting when Trump wasn't shot at We don't even.
Speaker 5: Talk about it on the on on our podcast anymore.
Speaker 3: Yeah, I mean, we don't see it even worse.
Speaker 5: Yeah, d n C twenty twenty four election autopsy just
Speaker 5: Joe Biden's actual autopsy.
Speaker 1: Okay, all right, Well, our credo is buy more books,
Speaker 1: always drink your whiskey.
Speaker 2: Meat.
Speaker 1: You've been listening to the three Whiskey Happy Hour sponsored
Speaker 1: by the Cibaitas Institute, produced and hosted by ricochet dot com.
Speaker 4: And we'll be back next week. Oh and coming to
Speaker 4: you this week from Enna, Italy.
Speaker 1: And we'll be back next week from who knows where.
Speaker 1: But for now, Bye bye, everybody, don't go what thank you?
Speaker 7: R J yeah
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