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Jan. 30, 2022 - The Ben Shapiro Show
01:04:46
Harmeet K. Dhillon | The Ben Shapiro Show Sunday Special Ep. 122
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We're always one or two votes away from tyranny in the court.
And if you tweak the facts a little bit, you might indeed get a situation where all of our lives are dictated by one or two justices.
A lawyer of 30 years, founder of the Dillon Law Group and the Center for Religious Liberty, and regular defender of the Constitution, is Harmeet K. Dillon.
Harmeet has landed on the national stage for several cases, privacy violations and defamations from the mainstream media, election law, and most recently, multiple lawsuits against COVID policies of the last two years, including the Daily Wire's own lawsuit against OSHA's tyrannical vaccine mandate, the very first litigation in the country filed against the mandate, which, if you hadn't heard, Together, we kick the government's ass.
We won.
It means we're still free.
When the Occupational Safety and Health Administration rolled out their COVID-19 vaccine and masking mandate across all businesses with 100 or more employees, the Dillon Law Group with Alliance Defending Freedom partnered with us over here at The Daily Wire.
Our mission was simple.
Take the fight to the federal government to stop their gross overreach or else forever lose control of the medical decisions for the entire American workforce.
Our case was ultimately sent to the Supreme Court for a decision, where the justices ruled to stop the mandate dead in its tracks, ruling that if this law were implemented, quote, declarations of emergencies would never end.
And just this week, OSHA has now officially withdrawn their emergency procedures for vaccination and masking in the workplace.
In this episode, Harmeet and I dive into the details on how this became our fight, just how close we came to losing our freedom, and how the Daily Wire and other businesses fought and were victorious against tyranny.
Hey, hey, and welcome.
This is the Ben Shapiro Show Sunday special.
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We're going to jump in with Harmeet in just a moment.
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Harmeet, thanks so much for joining the show.
Really appreciate it.
Thanks for having me today.
So first off, congratulations to you.
Congratulations to, I think, everybody who is fighting against the Biden-Vaxx mandate.
Why don't we start with where that case actually is right now?
Because it was remanded back to the Sixth Circuit Court of Appeals, but kind of no matter what the Sixth Circuit Court of Appeals does, it's essentially over for the Biden-Vaxx mandate.
Yeah, that's right.
The VAX mandate on large businesses has been enjoined by the Supreme Court.
And of course, the Sixth Circuit needs to do some further work, but we haven't gotten any kind of a briefing schedule or anything like that.
And so I think effectively it is over.
And in fact, by the time OSHA, if it were to Either seek some authority from Congress or start the rulemaking process and attempt to go through that normal process.
I think the vaccine and, sorry, the disease itself will have outrun the course of their ability to regulate the current variants.
What happens in the future under this Congress, you know, we may very well have a political solution that reaches a different result for Americans and then that'll trigger a whole new set of legal challenges.
So Hermie, why don't we start from the beginning here?
How did you guys decide that you were interested in taking on the case?
Obviously, we said day one that when they came down with the vaccine mandate, we would not comply.
And then we saw legal hell.
But how did you decide that you wanted to get involved?
Well, Ben, I have been doing civil rights litigation on behalf of Liberty Causes my entire career now.
This is my 29th year practicing law.
And so I've been looking at this issue very closely.
I also happen to be an employer in San Francisco and in other places.
We have law offices and we've been subject to some fairly onerous requirements throughout this COVID period.
And as an employer, I feel like the less I know about my employees' health and sort of challenges, the better for me as an employer because there's a liability associated with either dictating choices to your employees or frankly even knowing too much about their health situation because it impedes your ability to engage in sort of workplace Choices, discipline, et cetera, without liability exposure.
So from both perspectives, as a lawyer, as also as an employer, I've been thinking about this.
And when we saw this come down, I immediately thought that there were numerous ways that it could be challenged.
And it was gratifying to have many clients, including The Daily Wire, that wanted to challenge it.
And we were honored to be selected to help with that litigation for The Daily Wire.
So let's talk about the arguments that you made with regard to the OSHA vaccine mandate.
Those arguments were not the ones adopted by the court.
The court tends to take sort of the most moderate arguments that it could possibly take in a lot of these circumstances.
But the arguments that you were making, I think, were pretty different, more interesting, frankly, and somewhat more audacious in terms of what they were claiming about the nature of the scope of authority that had been exceeded here.
Yes, so you're absolutely right.
So in the Sixth Circuit where we filed our initial challenge, you know, we were the first to file there and throughout the United States different parties made different arguments.
But a lot of the arguments were the same, but actually the Daily Wire's filing was the only one to come in with expert testimony on our side.
So we started with legal arguments.
The legal arguments included the separation of powers and the fact that the police power in the United States resides almost exclusively with the states and local authorities, not with the federal government.
And by police power, I mean the power to make health and safety regulations. And throughout this COVID period, the courts have relied on some old authority dating back to the smallpox times.
And there's a famous case called Jacobson versus Massachusetts that allowed at the Supreme Court level a vaccine mandate to stand with a fine associated with it.
It was a state regulation and that's an important distinction that's been lost.
And so when you come to this mandate, you know, our position was even if a mandate were illegal, it would not be legal at the federal level.
It would only be legal at the state level due to this fundamental police power issue.
So that's a separation of powers argument.
But beyond that, the arguments would include the fact that Congress never delegated to OSHA the power to do this type of a sweeping healthcare regulation in a workplace setting.
So that's a very big, overarching legal argument.
Our arguments also included that even had that power been clearly delegated by Congress, which it was not, this particular way that OSHA did this regulation, an emergency regulation like this without the normal notice and comment period that administrative regulations are supposed to have, they did not do that.
And given the duration of this so-called vaccine issue and crisis, they could have done that if they had indeed at the time that vaccines came out decided that, okay, you know what, We may need to regulate this.
Let's propose a regulation and then let's invite effective parties to come in and give notice.
Let's hear some evidence.
Let's get some opinions from medical experts on both sides.
They did none of that.
Very abruptly, with very little notice, they simply issued this decree in early November And by a dint of now something that we're very familiar with, they just simply dump a giant stack of paper and say, this is our authority to do it, this is our backup, don't question it.
Well, on behalf of Daily Wire, we actually went and read that whole thing.
And we looked at their medical evidence that they purported to provide.
And it results, it relies on a couple of instances of people being sick who happen to have jobs.
It doesn't necessarily trace the illness to the workplace itself when you look at that evidence.
And so we actually brought in expert testimony to say that even if all of these hurdles had been met, if you actually look at the evidence, the evidence does not support the sweeping conclusion that OSHA has imposed here.
And then, of course, we made some policy arguments as well regarding the effects of this unconstitutional and ultra-virus order On employers, including but not limited to the uncertainty, the effect of eroding the employer-employee relationship, the excessive cost of compliance, and so forth.
And then some of the other arguments made were the fact that this regulation is a sledgehammer When, in fact, if a regulation were appropriate, it would be tailored to specific workplaces and specific risks, which this one was not.
And so, as you point out, the majority per curiam opinion of the court, 6-3, actually did go into a couple of these arguments, but the concurrence went into a couple more, and then nobody ever actually kind of looked at the science of these issues in the court ruling.
Yeah, Harmeet, one of the things that I was sort of hoping for was that maybe this case would actually trigger a review of Chevron deference.
So Chevron deference is the basic doctrine that courts don't want to look at administrative decisions, that when a power is delegated to the executive branch, executive branch agencies are the ones who are best placed to interpret the statute and use their expertise to decide what good policy looks like.
And people who have sued on the basis of saying, well, these experts are really bad at their jobs and courts should really look de novo at Why they're ruling this way.
Courts have typically said, we're not going to do that.
We're going to leave it to the experts.
There's not a lot of support on the court anymore for Chevron deference.
I was sort of hoping against hope that perhaps the court would take up that issue.
Well, it's a great question.
And in fact, if there were to be a fully developed record in a case like this, I think you could see it come back up to the court.
And so, for example, if OSHA were to continue to try to push this in the Sixth Circuit, or let's say they sought authority from Congress, let's say they even got authority from Congress, and then let's say that this, this pandemic or a different pandemic continues to Rage and they go through the normal rulemaking process.
I think you could very well see a Chevron type argument.
Justice Gorsuch, who authored the concurring opinion that incorporates some more of the reasoning of parties like Daily Wire, I think is the justice who has taken the most bleary eye towards the whole Chevron deference issue, but here because the court ruled on the very limited issue that Congress had not plainly delegated this authority to make this type of regulation in the workplace.
They didn't even reach those issues of whether the interpretation of the law or the rulemaking was entitled to any deference.
So, Harmeet, let's talk for a second about each one of the, there are three, essentially, essentially three opinions.
There was the court opinion, there was the concurrence, and then there was the dissent.
We'll save the dissent for last because that is the most troubling and it really spells doom for the country if we were to move in that particular direction.
But starting with the, the procurium opinion of the court. The basic argument is, as you mentioned there, is that the OSHA statute does not delegate this kind of power to the agency in the first place. That when it says occupational safety and work and health administration, it means occupational.
There has to be a particular occupational danger. It can't just be a danger that exists outside in the broad world and then also happens to exist at the workplace.
So we regulate it at the workplace.
The dissents seem to take a bizarre view that anything that happens at the workplace, even if the threat is predominantly outside the workplace, can also be regulated by OSHA, which is pretty wild.
What did you make of the majority opinion?
Why do you think it was so limited?
Well, and you know, that's a great question.
A lot of people in the public, including lawyers who aren't involved in the case, were kind of up in arms by the fact that the two lawyers who are representing the challengers, National Federation of Independent Business, and in this case, Ohio, on behalf of Attorneys General challenging the regulation, they did not get into some of the rhetorical and doctrinal issues that I mentioned earlier.
They did not sort of really push for a sweeping ruling on a constitutional 10th Amendment separation of powers type issue or Commerce Clause issues and you know people are puzzled by that but in fact going into this argument a good handicapper of the court would have realized that there were going to be several solid votes for enjoining the OSHA mandate.
There were going to be probably three solid votes for letting it ride, whatever it was.
And then you had to really aim to convince the couple of justices in the middle, the most recent justices and the chief justice, would have been sort of unknown at the beginning of the argument.
So I think the argument correctly focused on that middle ground.
And in a case like this, when there's a lot of national attention on this issue, the Chief Justice particularly has shown a great sensitivity to public opinion.
And so the, I think, tactic of trying to make sure that we sort of rest this on a narrow ground is also consistent with the fact that this was not the type of case that was fully briefed with a big record below.
But the type of case that during COVID, this court has actually resolved many times, including three cases that I've been involved in last year on the shadow docket.
In other words, issuing constitutionally based rulings without a hearing at all, simply on the papers.
So in order to avoid that criticism, the court did hold this hearing, but the rapidity with which they issued this briefing schedule and so forth suggested to court watchers that a lot of them had already made up their mind.
And so I think that's why they focused on this narrow ground.
And secondly, there's a longstanding doctrine of constitutional interpretation that suggests that if you have multiple grounds on which to issue a ruling, you typically do it on the narrowest ground possible.
If there's a statutory or a regulatory basis, you do that.
You only reach a constitutional issue if there is no other way to resolve this issue.
And so, in fact, that's what the court did really, of course, some of these doctrines one could argue are constitutional, but the court really rested its reasoning on the narrow ground that Congress had not plainly delegated this power.
And so, again, being a law dork, a lot of us were discussing the fact that the sentence in question did not say that Congress plainly did not delegate.
So in other words, it wasn't like so super clear.
But the fact that Congress did not clearly or plainly delegated was the basis.
And so there everything flowed from that.
So the scary part of that is.
If that is the only basis for the ruling, Congress could clearly delegate it.
Now, I and others, the arguments we made in the Daily Wire case and briefing, would have suggested that, in fact, even if Congress had plainly delegated this power to OSHA, I don't believe OSHA would have constitutionally had that power in the first place.
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Alrighty, so let's talk about the concurrence in this particular case.
So Justice Gorsuch writes the concurrence.
It is joined by Alito and Thomas.
And the concurrence basically makes some of the arguments that you were making a moment ago, including the argument that even if OSHA had been given this authority under its Enabling Act by Congress.
Congress would not have had the authority to delegate this sort of stuff to OSHA in the first place.
If they wanted to pass a particular piece of legislation that created a VAX mandate for large employers, it's unclear whether they would have had that authority.
But certainly if they had clearly delegated something and said, you know, in times of pandemic, you can do whatever you want.
That still would not be good enough because then they've delegated so much authority to the executive branch that essentially the executive branch is writing the legislation.
That's absolutely right.
And then you're going back to the question you asked earlier about Chevron deference.
And in fact, Justice Scalia was when I was a law student back in the day, I had had a big impact from one of Justice Scalia's opinions about This issue of Congress effectively creating junior varsity congresses in the administrative agencies that, you know, the people elect their representatives to make the laws and we can hold them accountable, we can vote them out.
But how do you vote out the faceless bureaucrats in OSHA who produce thousands of pages of regulations and use that as a sort of a blunt object with which to bash American corporations.
It's really hard to hold anybody accountable in that situation.
And that's really the reason why I would argue and I think some of the justices would have agreed that no matter what notice comment or what have you that they had bothered to go through, they wouldn't have had the right to regulate the healthcare decisions of 84 million Americans with the simple stroke of a pen, which is what happened here.
And so, the Justice Gorsuch concurring opinion discusses a couple of judicially created doctrines that include the major questions doctrine and the non-delegation doctrine.
Some would argue there's, you know, overlapping aspects to those, but one is one that you mentioned, non-delegation.
And, you know, you should not imply a delegation by Congress to an administrative agency that isn't, you know, very plain and also circumscribed within the powers that Congress may grant.
I mean, it's a absolute Black letter aspect of the law that, you know, a legislative body or an executive agency or whoever is the source of a rule cannot delegate more authority than they have.
And in this case, we would argue that because the majority of the police power in the United States resides with the local authorities and state authorities, Congress never had the authority to give OSHA that power in the first place.
Another doctrine that was discussed in that concurring opinion in many of the briefs was this major questions doctrine.
A major questions doctrine is a bit of an amorphous doctrine created by the court, but basically as well, if there's some major question that an administrative agency has spoken on, you know, you really want to make sure that you're not simply implying that power and that in fact, you know, there be a very clear voice from the rulemaker, whoever that is, that in fact that authority has been granted.
And some of the other things that were talked about in these opinions included the fact that the OSHA regulation is not at all tailored.
It is sort of one-size-fits-all, whereas American workplaces are very much varied.
A meatpacking plant where people are standing very closely next to each other is very different than a law office, very different than a media entity.
And also the fact that there was no allowance made for different risks in the workplace and no, of course, natural immunity.
None of that was considered in the rulemaking.
So, Harmeet, one of the questions that I get a lot is, you know, I've got my local business, and my local business is forcing a vaccine mandate, or my locality is forcing a mask mandate, or a state is doing so.
And my usual response is, they have the power to do that, you don't have to like it, and you can try to vote those people out, but they don't have the power to do that.
People have a tough time accepting that because I think people You have a difficult time understanding sort of the basic tenets of federalism.
How do you explain to folks why it is that localities and states have powers the federal government doesn't have?
It's something, by the way, that Justice Sonia Sotomayor appears not to understand whatsoever.
She literally said in oral arguments that she doesn't understand why, if a state can pass a vaccine mandate, the federal government should not be able to.
Yeah, absolutely.
This is a question, if you get this question, I get the question, I'd say, dozens of times daily from people.
And even after the positive ruling that we got, a lot of people would write to me, even probably this morning, would write to me and say, my gosh, the Supreme Court enjoined this order, but my employer is still requiring this.
Can you help me?
Can you help me get an injunction?
And the answer is, no, I cannot help you.
Because not only has the authority to do this certainly already resided with the states.
This is a 1905 Jacobson versus Massachusetts ruling.
I think it is bad law because Jacobson preceded a whole body of constitutional law with tiered scrutiny that has not been applied by the court.
Even in the religion cases, they really didn't get into that.
It's not just, it's not just the constitutional separation of powers, it's also the fact that, you know, the United States and legislators have allowed Congress to regulate a lot of different areas and that includes occupational rules and the Equal Employment Opportunity Commission at the federal level has guidance that employers even before the COVID situation could mandate vaccination on their workers.
This is not something that I, even as an employment lawyer, I've had to come up with and grapple with over the years.
I mean, you don't hear about it up until this recent situation.
But in fact, at the federal level, Republicans and Democrats have, I would say, conspired with big business to allow a very free reign by employers to mandate a lot of things on their workers.
And then when you get down to the local level, indeed, health and safety regulations are absolutely allowed at that level.
And indeed, local and state laws regarding employment may also allow employers wide leeway to impose requirements regarding what they perceive as health and safety on their workers.
And when you think about the fact that your employer can require your hours of employment, can require a lot of health and safety requirements in the workplace, particularly in workplaces that have industrial issues, you suddenly realize that the American worker has a lot less freedom than they knew about.
And this is something I do urge people if you do not like the fact that your employer is allowed wide leeway to require you to take a drug to keep your job, we need better legislators to make sure that that tyranny is not allowed in the future.
So in just one second, Harmony, I want to get to the dissent because this is the truly scary thing about where we are in the country.
We were basically one presidency away from the end of legislative rule in the United States at all.
We'll get to that in just one moment.
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Okay, so, Harmeet, the dissent was what really disturbed me here in this particular case.
So, listen, we were on tensorhooks over at Daily Wire.
We thought that we had a really strong case.
We thought the case against the VAX mandate was extremely strong.
Just generally speaking, whether it was us arguing it or somebody else arguing it, so we were fairly confident all the way through that the VAX mandate would be struck down because it was unprecedented, because it was a 600-page rule that, as you say, was just a blunderbuss that made no exceptions for things like natural immunity, did not change based on your workplace.
In fact, the vast majority of people who work outside for a living were still forced to VAX under the VAX mandate and all of the rest.
The dissent is what really disturbed the heck out of me because the reality is that we were one presidency away from having a couple of more Democrat justices on that court, right?
Donald Trump got to appoint three justices.
If those had all been Democrats on the court, then presumably we would have gotten a 6-3 ruling the other way.
And that 6-3 ruling the other way would have suggested that there are almost no limits on what the regulatory state can do, whether or not it has been delegated power, because public policy demands that in times of emergency, the government should be able to react pretty much how it wants.
You know, you are so right, and you may have been surprised by it.
I filed 17, I think, challenges in the first six months or nine months of COVID in 2020, and I had the longest losing streak in my career of winning a lot of cases on constitutional grounds.
Almost every judge I encountered at the district court level, actually every single judge at the district court level, Republican or Democrat, was, I think, in fear because of this terrible disease at that time and willing to Basically, give carte blanche to the government to do whatever it wanted, okay?
And so that has been sort of the baseline in COVID.
In most of those cases that reached the United States Supreme Court, even this court allowed most of these excessive regulations of shutdowns to persist.
And so that has been the default.
And so you really saw that in great, great detail in the questions that the three justices in the minority asked of the litigants in this case.
They asked some questions that were breathtaking about basically implying that OSHA had no limits and frankly divorcing any legal analysis from the facts of a pandemic.
Yes, it is a pandemic.
Yes, it has been deadly on Many Americans and around the world.
And yes, it is something that governments have a right to regulate at some level.
But they really skipped over the constitutional analysis of, you know, was this properly delegated?
And if it was properly delegated, was it properly implemented?
And if it were properly implemented, is it properly supported by the correct evidence to support this rule?
And are there any exceptions and so forth?
They just skipped over that and said, hey, people are dying.
OSHA exists.
People can get sick and also have jobs.
Therefore, we believe that we should allow the government to do whatever it wanted.
So it really was a shambles in terms of any kind of measured constitutional analysis.
And you're correct.
And it's not only one presidency away.
It could be within this current presidency that you could see that dynamic on the court change.
It would depend on The next justices that get confirmed with the court and when that happens, and the result could be totally different.
And it could be every American.
In this case, OSHA chose to regulate employers of 100 or more.
That affects 84 million Americans.
And indeed, out of the largest employers in the United States, a third of them already have vaccine mandates.
So those people are out of luck anyway.
But imagine if OSHA's brief was instead, we're going to regulate 50 or more or 10 or more Every employer in America, the three justices in the Supreme Court and the minority opinion would probably accept that.
And so that would be everybody being governed by Nancy Pelosi's crew.
Really a scary situation.
So that is why elections matter, and that is why we have to really focus on who the lawmakers are, because ultimately a lot of our freedom lives or dies on the basis of that.
And for those of us who are adherents of the Constitution, it's very puzzling and frustrating to read so much of the quasi-legal analysis or the stuff that passes for legal analysis from the left with regard to the court, with regard to cases like this.
If you read a lot of the commentariat before this case was actually decided, You'd have headlines that said, experts say this is constitutional.
You know, all the experts say this is constitutional.
And then after this happened, you'd get a bunch of people who would come out and say, all the experts say that this is going to get hundreds of thousands of people killed and that the court basically ruled this way because they're all Trumpy or whatever the case may be.
But when you actually watch the oral arguments, when you actually read the opinions, the dissent in this case really doesn't bother to cite the law in any serious way.
They just say that OSHA has authority and it wouldn't have mattered if Joe Biden had done this through OSHA or they had done it through the EPA or they had done it through the IRS.
It really would not have mattered whatsoever.
This was the same three-justice minority that tried to uphold the eviction moratorium, even after the court had said the eviction moratorium is unconstitutional.
Three justices wrote and said that the eviction moratorium could be extended indefinitely because of Delta, for example.
Any emergency seems sufficient.
Any three- to four-letter agency seems sufficient for them to just allow for complete regulatory fiat.
Absolutely right.
And one of the important lines out of the Gorsuch concurring opinion is really calling out the administration for effectively using the administrative agency, in this case OSHA, to affect a legislative workaround.
In this case, the Senate had even voted fairly recently against a delegation of authority in this nature. And in fact, so President Biden decided to simply work around that to impose a decree of this nature on half of the American workforce by fiat. But indeed, the very same court issued a different ruling that HHS had the authority to impose a
vaccine mandate on health care providers. And so, you know, yes, it is. We're always one or issued a different ruling that HHS had the authority to impose a vaccine mandate on healthcare providers.
And so, yes, it is, we're always one or two votes away from tyranny in the court, even in a court that ruled correctly six to three in this case.
And even those of us who watched those hearings, we were handicapping it, and there was no unanimity on the conservative right about how that was going to come out, whether it was going to be five-four or, you know, God forbid, four-five.
So that was a pleasing outcome as to OSHA, but a different result as to a different agency.
And so you can imagine if you tweak the facts a little bit, you might indeed get a situation where all of our lives, you know, are dictated by one or two justices.
So let's talk for a second about the second case that came down the same day as the private sector OSHA mandate.
There is also a second mandate that's been put down by the Biden administration with regard to CMS, with regard to Medicare and Medicaid.
And the basic idea is that we can attach any strings that we want to Medicare and Medicaid funding for hospitals.
If they don't put down a vaccine mandate, we'll just strip their funding from them.
Real statutory authority to do this.
There are 15 separate statutes, I guess, that were cited by the by the court in its decision to uphold this sort of stuff.
And it seems like they almost did a Roe versus Wade emanations and Penumbra's thing where they're like, well, there are all these specific provisions and none of them specifically say that you can attach this sort of activity to Medicare or Medicaid.
But if you read them in the totality and then you look at them sort of sideways through your bifocals, then maybe it sort of looks like we can do this via CMS.
You know, this is an example of results-oriented jurisprudence, I think, to put it mildly.
And we've seen a couple of examples like this out of the Roberts Court.
I think the strained interpretation of the right to uphold the Obamacare mandate is another example of finding your answer in a place that actually the Logical reading of what is before you does not appear.
And so that's what happened here.
In fact, you know, I don't think even the government would claim that they had any specific broad mandate here.
They admitted that this is basically something you have to infer from this pastiche of 15 different places and regulations and the court, I think, probably straining To appear balanced, something that the court never used to care about very much, but very much seems to care about in the Roberts Court era, came out with this bastardized ruling that reaches the opposite result with not that different of a background.
So here I think they seized on the fact that, oh, well, HHS, Health and Human Services, well that's the name of the agency and this is about health.
I do think it is a fair distinction, if you're being fair about federalism, that the federal government is paying for a lot of this work.
Even so, that would enable Congress, I think, to create a rule that tied the money to specific authority.
They didn't do that.
Congress never said, we're going to let HHS, Health and Human Services, Make up rules that condition federal funding on a specific drug being taken by healthcare workers, a drug that, frankly, anybody paying attention, even at the time of the argument, but right now, would know.
has limited efficacy, a drug that even the CDC has now said has relatively limited efficacy compared to natural immunity.
And yet, natural immunity is not part of this rule.
So, it was a very disappointing outcome for healthcare workers, for those of us who might need healthcare.
Any of us who've had to have a relative visit a hospital recently can tell you that there are man-made shortages in the hospitals that flow from this poor reasoning and rulemaking.
So, Harmeet, in just one second, I want to ask you about what all of this tells us about the court and its future rulings.
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Okay, so let's talk for a moment here about the Supreme Court, the state of the judiciary at this point.
So President Trump was able to appoint an enormous number of judges.
President Biden actually has appointed a similarly enormous number of judges.
I believe he's appointed about 150 judges thus far.
The Supreme Court, however, is about to decide on abortion.
We have this case of Mississippi that is essentially going to determine the future of Roe v. Wade in the country.
And it seems like both sides arguing in the Roe v. Wade case, this Mississippi health care case, it seems like both sides in that case have basically said that either Roe stays or Roe goes.
There's no middle ground here.
You can't actually uphold Roe and somehow allow the statute, which bans abortion past, I believe, week 15.
You can't actually allow that statute to stand if you're going to uphold Roe.
And similarly, if you're going to uphold the statute, you're going to have to strike down Roe.
So either way, there's not really an in-between.
And Planned Parenthood versus Casey and its undue burden standard is not clear because viability is not the line here.
Now, we've moved Before viability, there's a lot of speculation out there about what the court is going to do.
My tendency is always to think that they find some way to, in this point, I guess literally split the baby.
But it's hard to see how exactly they split the baby and what line they would draw if it's not going to be the trimester system and it's not going to be viability.
Do they draw it at the heartbeat?
Do you think they just make up some sort of arbitrary standard that creates mass confusion?
What do you think they do?
Well, I think the latter is the most likely outcome, the mass confusion, arbitrary standard method of judicial rulemaking.
Whatever you think about abortion, and I'm on record as a trial lawyer who's gone into court to defend the rights of the unborn, you have a situation where courts made up a doctrine out of whole cloth, found rights that are not clearly enumerated in the Constitution, And have effectively, you know, imposed that and caused the deaths of millions of Americans over the years.
And so that's what's at stake here.
And I don't think that the court, the Roberts court, as we've just discussed, is necessarily going to strike out, certainly with his vote, in a courageous direction to strike down the rule very clearly.
I think if there is a positive ruling for the pro-life side here, it's going to be in the form of Some kind of a new rule that also does not find its feet in the text of the Constitution, which creates more confusion, more litigation, certainly more hysteria, when in fact, even if the rule were to be struck down, what you would have is a regime where the individual states would have the ability, you know, under current jurisprudence
until that changes, to pass laws that affect this issue in different ways in different states.
And so I think I'm not looking for some major ruling out of the court that sets a very clear rule in favor of the unborn.
So Harmeet, this does raise some philosophical questions for the right.
So the entire sort of conservative legal movement in this country has been largely directed at overturning Roe.
It's been, you know, in the ascendancy in the conservative movement since really the 1980s, the idea of originalism and the offshoots including textualism.
That idea was predicated on the idea that if you actually got a majority of the court that was appointed by Republicans, at some point, you would actually be able to overturn unconstitutional and textually unbased decisions like Roe versus Wade.
Then you've seen another school of thought from the right that essentially says that conservatives on courts should be judicial activists in the same way that liberals on courts have been judicial activists.
Liberals are results-oriented.
They don't seem to care very much about the text of the Constitution.
If they want to reach a result, they will just go for it.
And the idea from some of these conservative thinkers is the originalism and textualism that pledged to hem the judiciary into its traditional role, but also pledged to strike down laws in violation of the Constitution and not to make up new rights in the Constitution that don't exist, that that movement has failed because the textualists and the constitutionalists are so all consumed with the quote-unquote legitimacy of the judiciary, John Roberts style, that they're unwilling to strike out in new and bold directions.
And the solution to that would be to appoint just plainly, openly conservative and Republican justices who don't actually bother with the Constitution.
They just sort of rule how we think they ought to politically rule.
It seems to me that if John Roberts and the Roberts court don't strike down Roe, that case is going to get a serious boost in the arm.
I think you're absolutely right.
I'm in the old-school school of thought that says that judges should not be activists, even activists for my cause.
They should call balls and strikes.
That's an old-fashioned view now.
As you say, the entire edifice of Almost lobbying, if you will, that has grown up around the conservative movement around judicial appointments has really been focused on results-oriented in our own way, which I think is dangerous because these judges are unelected.
You have seen the political process just now.
You mentioned in the space of really just a little bit over a year.
Republicans in the Senate, based on some old Marcus of Queensberry rules that don't exist on the other side, effectively rubber stamping some extremely radical judges with lifetime appointments, and they're young, some of them.
And so we're allowing the other side to enshrine judicial activists on the bench who are going to wreak havoc on the Constitution.
And on our side, the argument that that the judicial activists on the right are making is that we have to fight fire with fire.
That's what's there. And so we have to fight fire with higher fire. And when we get the chance, push our own judicial activists on the bench to make up the laws because they didn't want to run for Congress and the Senate, or they didn't want to run for president and go through those hard steps. So the problem with that is that you can't argue against the illegitimacy of the activists left if that's your position.
You have no moral high ground from which to argue that.
And so I don't know where that leaves us.
I think that certainly we're not going to see Justice Roberts Come out with some kind of, you know, ruling that would be consistent with a limited view of the judiciary.
I think if they are going to get out of this and uphold the new law, it's going to be by crafting a new rule that does not really find a footing in the Constitution.
It's a political expedient that is done to protect the quote-unquote legitimacy of the court, such as it is.
Harmey, why do you think it is that so many Republican appointees go weak-kneed?
Is it that they were always weak-kneed?
Is it that in order to even get anybody past the Senate at this point, you have to find somebody who's a bit of a cipher?
You can't just get somebody who has a long, clear judiciary record, a record of ruling on controversial issues.
And so you have to sort of pick people who you think might be good, but also you're not really sure.
Because we've had a series of justices appointed by Republicans And really the only one who has been truly solid all the way through from a constitutionalist point of view is Alito.
We've had Justice Roberts, who has been what I think is almost a full-scale disaster of a pick.
I thought that he was a bad pick even when he was selected back in 2005.
I think I wrote an entire column on it, making me one of the only people in America on the right side of the aisle to oppose the pick.
And then we saw it with Justice Gorsuch, that he ruled absurdly that the Civil Rights Act of 1965 was designed In order to protect transgender rights, which is just an absurdity of a ruling.
And he was supposed to be a hardcore textualist.
I thought he was a good pick.
In many cases, he's ruled correctly as in this OSHA mandate case.
But on that case, he was a full scale disaster.
We've seen very little so far from Amy Coney Barrett, but nothing to suggest that she is taking a hard line on a lot of issues.
And the same thing with Brett Kavanaugh.
Why is it so hard for Republican presidents to select Well, I'm probably going to get in trouble with various friends and constituents by saying this, but I think that the way we pick our judges and justices is somewhat flawed.
We have a caste system inside the Beltway in D.C. that advises presidents and makes these decisions.
And, you know, I'm a member of the Federalist Society's free speech and election law steering committee.
I participate in those groups as well.
But when you have a particular worldview by a particular handful of people who are calling who are these candidates going to be and rubber stamping them, and they have a particular It's not the worldview of people in the Midwest or Texas or even California.
It's a very specific worldview and it's a specific set of credentials and it's a specific blank slate bland nondescript, you know, history that somebody has to have to jump through all the hoops.
That's one level.
And then you have the second level, which is the brutality of the confirmation process itself.
You know, I've actually never been a member of the American Bar Association in my own silent protest against how Judge Bork was treated by that caste system of the, you know, sort of the solons of the whole, you know, legal movement who decide who's fit and who's not fit for the bench.
And so you might have very good people So, Miguel Estrada is an example of somebody who is extremely qualified and yet did not make it through that brutal gauntlet.
And then you look at who are the judges, if you will, of that process.
The members of the United States Senate who themselves are not exactly, you know, paragons in many ways and are disgraced, some of the questions that are asked.
Our vice president is guilty of that, Kamala Harris, asking some absolutely absurd and outrageous questions.
And so those are some of the factors that result in judges who are fairly anodyne in terms of their history and their background making it through that dual process.
And so we would have to change that process, in my opinion, to get different judges.
We would have to have a president who's a Republican, who perhaps has a legal background and has his own views about who would be a fit judge and a fit justice, and is willing to lead on that issue as opposed to delegate it to The, you know, the priests of the right who make these decisions for us instead.
And I think those changes would need to be made.
And then finally, we'd have to have a United States Senate that is constituted with thoughtful people on both sides who are not simply viewing the judicial confirmation process as yet another scorched earth battleground for political outcomes.
So with all of those factors there currently, I don't see a different outcome until we change some of those inputs into that machine.
I mean, just one second, I want to ask you about some of the other work you do, because you've done heavy work on election law.
So obviously that is a hot topic these days.
We'll get to that in just one moment.
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Okay, so, Harmeet, one of the things that your law firm works a lot on is the state of election law across the country.
Obviously, this has become a real hot potato issue.
President Trump had problems with a lot of the voting procedures in 2020, and now Joe Biden has suggested that if he doesn't federalize a huge swath of voting procedure across the country, that future elections will be illegitimate.
So, apparently we can never believe any election that happens from here on in, depending on who wins, is, I guess, the formula right now.
So, in your opinion, what is the state of election law in the various states across the country?
How much should we be worried on the one side about voter suppression, which is what Democrats claim it on, On the other side, how much should we be deeply worried about heavy levels of voter fraud?
Not occasional voter fraud, which of course is going to occur in a country with hundreds of millions of voters, but really heavy, election-shifting voter fraud.
Right, so the place to start that conversation is the fact that the United States Constitution reserves for the states The time, place, and manner of elections are meant to be determined by state legislatures, not state attorneys general, not state Supreme Court justices, but only legislatures.
So that's the basic bedrock principle around which all of these decisions must flow.
So, everything that is happening in Congress right now to try to federalize our elections, unfortunately, both parties have gone along with some aspects of that already.
We already do have two federal election laws, National Voting Rights Act and Help America Vote Act, well-meaning laws that, in fact, are either ignored or simply are funding mechanisms for some of the disasters that we saw in the 2020 election.
So in terms of your question about is there widespread voter fraud in the United States, there is voter fraud.
The question is, is it of a sufficient degree to change the outcome of an election?
And I certainly I think we've seen at the local level and in some states as some of the practices that we saw in the 2020 election were truly outrageous and they included but are not limited to Without the legislative input, changing the rules for submitting absentee ballots in states like Wisconsin, which have some specific regulations about that, just simply ignoring those and allowing people to submit ballots who are not entitled to under state law.
Concealing from observers what happened in the counting rooms, creating doubt in the public whether the outcome was actually affected by that or not, but undermining the confidence of the public in those types of situations.
The biggest aspect of what I would call voter fraud right now is the failure to purge the voter rolls in our states and the fact that people are freely allowed to, because of lack of enforcement, register in multiple states.
Are people voting in multiple states?
We actually do have instances of that.
Are there instances of that at the level that would change the outcome of the 2020 election?
I can't say that.
But, you know, if you had the outcome changed in six states, you would have a different outcome of this election.
So there is voter fraud.
We have to guard against it.
We have to stop federalizing our elections for starters.
And we have to have activism in the states to make sure that stronger voter laws are passed at the state level that protect against this.
And that litigation, like the left deploys as a tool, is also deployed by the right to protect those laws, to challenge laws on the left that seek to undermine constitutional or procedural norms or even norms that are even at a local level.
On the other side, the left is trying to tell us that voter suppression is a current issue in 2022 in this country.
And I'm an immigrant to this country, and I can tell you that this country has the freest Access to the vote for people of all colors and backgrounds and even places of origin, like myself, of any country in the world.
And so that is true of people in Georgia.
That is true of people in any place in the South.
That is true of people in minority communities in California.
I would say it is because of the fact that we don't monitor our voter rolls very well.
It is almost too free to vote.
Much more legitimate to require some form of ID, as many states do legally.
We don't have that, so it is all too free to be allowed to vote in this country.
And so the myth of voter suppression, or race-based voter suppression in this country, or voter suppression because partisan activists cannot give out gifts in the line to vote, This is a foul lie being pushed by the left that is truly shocking, and the people who are saying it know better.
Now, those of us who are following this from a political side—I'm a member of the Republican National Committee, I represent California at the Republican National Committee—Republicans have been asleep at the wheel.
on the issue of how lawyers and so-called non-profits have been used to decrease voter integrity in this country.
We were asleep about it in 2020.
A few of us, I raised my hand before that election, screamed about it loudly, but people were not paying attention.
People are paying attention now.
The question is, are donors, are our political organizations going to be willing to invest what the left has invested over the last decades?
This did not happen overnight.
It happened stealthily and came to our attention in the 2020 election, but it has been years During which time the left has been funding lawyers like Mark Elias to the tune of tens of millions of dollars, has been funding hundreds of non-profits, and I use air quotes around that, to be engaging in efforts that, for example, the Zuckerberg two organizations did during the election last year.
And that continues to happen throughout the United States, so if we are not prepared to invest A huge amount of money and political capital in ensuring the integrity of our elections in terms of who is voting, then we are going to continue down this path.
I mean, literally, over this past year, I and other Republicans have been praying for the good health of two Democrats and the sound mind of two Democrats, because it is only Joe Manchin and Kyrsten Sinema who stood between, so far, Our election law is being pretty much flushed down the toilet at the state and local levels.
And that is very scary.
That keeps me up at night as much as an activist court, as much as COVID run amok and the fact that the source of that is not being held accountable.
These are the things that keep me as an election lawyer up at night.
Are we going to have the political will and the spending to meet what the left is doing very effectively, dollar for dollar, lawyer for lawyer, and battleground for battleground?
So Hermie, you're obviously at the top of the legal industry, and the legal industry, I think, for folks who don't know it very well, we tend to think of the legal industry as a bunch of people in suits who make very good livings.
So shouldn't it be somewhat politically even?
For those of us who actually have dealt in the legal industry, we know that The lawyers in this country, they vote overwhelmingly, certainly on the coast and at all the major law firms, overwhelmingly to the left.
And they are activists in extraordinary ways.
I remember when I interviewed for law firms after going to Harvard Law, some of the questions that I received, because I was openly conservative on my resume, were absolutely mind-bending.
And I don't think people understand just how insanely biased the legal industry is against Lawyers who are coming up who want to be conservative or conservatives who are coming up who want to be lawyers.
How do we create more of an infrastructure for young conservatives who want to go into the law and use the law to actually change the way the country works?
Well, that's a great question, Ben.
And like I said, in my 29th year, I've done a lot of those jobs.
I spent 10 years in big law and experienced exactly what you experienced.
I had all the credentials, managed to get hired.
But I can tell you that unless you're very comfortable Defending some fairly atrocious things day in and day out in exchange for your big salary, you're not going to be a good fit necessarily if you're a conservative for those organizations, particularly if you care about the types of litigation and cases that we've been talking about today.
The best-funded, most prestigious law firms don't engage in it on the right.
They do engage in it on the other side.
They engage in it pro bono.
For example, when I've been doing pro-life litigation, it's been big law.
of the type that I used to work for on the other side doing these cases for free for the National Abortion Federation and Planned Parenthood.
They can consider that to be their pro bono in giving back to the community, helping to shred the constitutional rights of the unborn.
And I can give you 100 other examples in election litigation as well.
And I can give you 100 other examples in election litigation as well.
It is just not only the paid work by firms like Perkins Coie and Mark Elias' firm now, but many other firms.
It is just not only the paid work by firms like Perkins Coie and Mark Elias's firm now, but many other firms.
So how do we change that?
So how do we change that?
Well, sort of people who are corporate owners who want to make choices consciously with their hiring, they can choose not to hire law firms who push values that are inconsistent with their corporate values or their individual values as business owners.
That's one thing we can do consciously in every choice that we make.
If we don't believe that we should be dependent on China, we shouldn't buy products that are made in China.
You know, there are choices that all of us can make on a daily basis that change our lives.
So for myself, after 10 years of big law and being very unhappy in what I was doing every day when I got up and put my suit on and my high-heeled shoes on, I decided to chart my own path and started my own law firm.
Today we're 17 lawyers, soon to be more in a couple of months, and we do this type of litigation that we've been discussing almost exclusively.
And there are a few other boutique law firms like ours who do this kind of work as well.
I'm really happy to see that.
That didn't exist even five years ago.
And so I think that's how we do it.
And if you are a young lawyer, you should—and a law student, this is a lecture I give to people who are interviewing with me all the time.
So, make those conscious choices.
What we see in the legal press is, oh, you know, such and such firm is giving extra bonuses.
Such and such firm is doing this, that, or the other.
You know, read the fine print.
Ask questions.
What is coming along with those golden handcuffs?
You know, nothing is free in this world.
You don't get something for nothing.
And if you're being paid very highly to do something fairly repulsive, think about what that effect is going to be on your moral character years into that.
Today, in 2022, there are many more choices for young lawyers than there were even when you or I were in law school, and I think that that's a great thing.
And I encourage people to think about the effect of what they do every day, 8 or 10 or 12 hours a day, in some cases 16 hours a day during COVID, or some of the hours that I've worked.
You know, do you feel good about that when you go to sleep?
Did you do the right thing today?
And there are many choices to do that today.
So, Harmeet, to go back to the COVID case and the OSHA mandate case, do you think that the American people are aware of just how close we came to disaster and how impactful that decision the Supreme Court just made is?
Or do you think it's already kind of fading away?
Because I think that unless people actually realize how consequential that decision was and how close we came to going the other way, we can find ourselves in that situation right quick, very fast.
We could find ourselves in that situation later this year or next year as far as I'm concerned.
This administration has been such a frankly shocking disaster in terms of its ability to shred our norms with abandon that I think it could happen at any time.
So, no, I don't think people are fully aware.
But one of the issues, the reasons why they're not fully aware of it is because for many, for millions of Americans, it's actually too late because their employers have imposed vaccine mandates already.
And every day, and that includes many, most governments in the United States, that includes many large employers, have already mandated on their workers that in order to feed their families, pay their mortgages in times when they may not have a lot of choices, they must take a drug that they do not wish to take.
That includes healthcare workers who are pregnant.
I have friends who are pregnant healthcare workers who may have already survived COVID, by the way, who do not wish to take a drug with unknown side effects on their unborn child.
They're forced to do that to be able to feed their soon-to-be family and pay their mortgages.
I think this is evil and unfortunate, and I think that we really need to look at—my only answer for those people is elections matter.
Do not come after the election and tell me, well, I didn't like how that guy tweeted or I didn't like what that guy did, so I didn't vote at all or I voted for the other guy.
You own that.
So our political choices must be tailored towards the fact that while I'm happy with the ruling of the Supreme Court in this case, I do not wish for my fortunes and my decisions and my choices in life to reside in the hands of a couple of elder There are elderly people in some cases who are completely divorced from reality in terms of the questions they asked.
You know, questions they've asked in other cases show no bearing of reality in terms of how do people get elected in this country?
How are campaign finance laws made?
You know, I'm talking about that as well.
And how are decisions made in a workplace?
They're not employers.
They've never had to make those decisions themselves.
And while they are very smart people, all of them, I don't wish my life to be dictated by some judges.
I want to ask you a few final questions, starting with your lawsuit against Google on behalf of James Damore.
And then I also want to ask about how conservatives should view lawfare.
Is it good to file lawsuits or sort of bad?
And then kind of a general wrap up on just how much this OSHA mandate mattered and why the ruling matters so much.
If you'd like to hear Harmey Dillon's answers, you have to be a Daily Wire member.
Go to dailywire.com, click join, you can hear the rest of our conversation there.
Well, Harmey Dillon, we really appreciate everything that you do for the country and obviously what you did with us here at Daily Wire.
Thanks so much for joining the Ben Shapiro Show Sunday Special.
Thanks for having me.
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