June 19, 2022 - Rubin Report - Dave Rubin
47:37
| 
| Speaker | Time | Text |
|---|---|---|
| Packing the Supreme Court isn't unconstitutional. | ||
| Congress does have that power. | ||
| But packing it with this intention in mind, under this circumstance, really is anti-constitutional. | ||
| It would undermine the separation of powers, not as a bug, but as a feature. | ||
| And that's what makes it so wrong. | ||
| Finally, welcome to the Rubin Report. | ||
| Thank you very much. | ||
| It's good to be with you. | ||
| Well, you have handed me an awful lot that I'm talking an awful lot about in the title of the new book, and I want to focus an awful lot on that. | ||
| But first, what is it like to be on the short list of what I would call sane people in the United States government right now? | ||
| Yeah, sort of like being one of the tallest buildings in Tooele, Utah, you might say. | ||
| There are a lot of tall buildings there. | ||
| I take it short buildings over there. | ||
| I mean, what is going on? | ||
| What is going on right now with the government and just the amount of people that seemingly are doing nothing or all of the wrong things? | ||
| Yeah, the problem is less about doing nothing and more about doing all the wrong things. | ||
| When people start to think that God is government, and when they start to think that all government needs to take place and transpire in Washington, D.C., that's a wicked combination. | ||
| A combination we've been living under for many decades, but it's reached a boiling point of late, and the left wants to make it a lot worse. | ||
| We're here to stop it. | ||
| So that really is, in many ways, what the book is about. | ||
| And one of the things that you talk about, and I've been trying to hit on for a while on the show, I have tried and I generally try not to impugn people's motives. | ||
| But as you know, the road to hell is paved with good intentions. | ||
| It seems to me at this point, what we are seeing out of the left and virtually the entire Democrat party is an intentional destruction of so many of the things that the founders had built and had created to allow us to all live free. | ||
| So before we get into the specifics, what do you think about the intentions part? | ||
| Do you think a lot of what's going on is intentional or do you think it's confusion or a misunderstanding of the documents or something else altogether? | ||
| You know, I tend to believe that most people on the left have at least convinced themselves that the place they want to take us is a good place, that that would be good for the country. | ||
| In the case of packing the Supreme Court, for example, I think they somehow believe that that would take us to a better place. | ||
| Now, I wrote Saving Nine in order to explain why the opposite is true. | ||
| But regardless of what their intention is, I have no ability to jump into someone else's mind, to read their mind, to know the inner thoughts and intentions of their heart and their soul and their mind. | ||
| But what I do know is certain things that history tells us. | ||
| And history tells us that there are some mistakes we ought not want to repeat. | ||
| As Mitch McConnell likes to say, there's no education in the second kick from the mule. | ||
| We've already been kicked by the court-packing mule once. | ||
| I described that at great length in Chapter 4 of Saving Nine. | ||
| We do not want the education that would come from the second kick of that same mule. | ||
| So when you hear your colleagues across the aisle talking about packing the court, and you're hearing it all the time now, I mean, it's virtually every day someone is saying it, do you ever try to pull them aside and say, hey, do you guys realize that if you pack the court this time, we'll just pack the court next time, or that perhaps this is a complete affront to the separation of powers, or a series of other things that you get into in the book, You kind of say to them, hey, do you realize what you're going to do here, even if you temporarily get what you want? | ||
| Of course. | ||
| Of course. | ||
| And, you know, for the time being, they're content with talking about it, but not really doing it, at least not yet. | ||
| I think they're waiting to do that, perhaps, until the Dobbs ruling is actually issued. | ||
| And maybe that's when they start through it in earnest. | ||
| Then it gets very, very serious. | ||
| I think you're right to point that out. | ||
| I don't think they really want to go where they're trying to take us either. | ||
| If they really think about it, and I hope they will read Saving Nine, because regardless of whether they agree with me on any other policy issue, they ought to be able to agree that the minute you rip off that band-aid, and for reasons I explain in the book, the minute you start to politicize the court formally as you would do by increasing the number of justices in order to achieve a desired political outcome. | ||
| There is no stopping it. | ||
| The Republicans, who in modern history have never attempted anything like this, would be compelled to do the same thing the next time the shoe is on the other foot. | ||
| That is, the next time the House and the Senate and the White House are all under the control of the same party, If the Democrats increase by four, you can see Republicans increasing it by four more. | ||
| Maybe it'll be six next time. | ||
| The result of that won't be pleasant for anyone. | ||
| The court, because of the lifetime appointment guarantee of Article 3 of the Constitution, this will be a one-way ratchet. | ||
| And the court will expand a lot faster than it could ever shrink. | ||
| Before long, it won't look like a court at all, but like a political body. | ||
| And a large one at that. | ||
| Eventually, it'd look like the Intergalactic Senate in the Star Wars movie series. | ||
| Believe it or not, I am a big fan of the prequels, and I think that they're looking better and better over time because of exactly that. | ||
| You know, how power just flips depending on who's in charge. | ||
| At what point do you think that packing the court is actually an assault on the Constitution itself? | ||
| In other words, that one branch of government would in essence be destroying another branch of government. | ||
| They're supposed to have checks and balances, but To me, it's almost a violation of the oath of office if your goal as a legislator is to override what the judiciary is supposed to be comprised of. | ||
| Yeah, no, that's exactly right. | ||
| And I think if you're doing it, the minute you're doing it, not because the court is short-staffed, I think in theory that could be a legitimate reason to do it. | ||
| If at some unknown point in the future there's widespread consensus that the human resources on the court have been outpaced by the caseload, you could consider an argument then. | ||
| Even then, you would want to be very careful about phasing in the increases. | ||
| But whereas here, they're just talking about a political outcome that they desire, they want to achieve, then this is an assault on that. | ||
| Here's the interesting thing about that. | ||
| It's kind of an irony built into it. | ||
| Packing the Supreme Court isn't unconstitutional. | ||
| Congress does have that power. | ||
| But packing it with this intention in mind, under this circumstance, really is anti-constitutional. | ||
| It would undermine the separation of powers, not as a bug, but as a feature, and that's what makes it so wrong. | ||
| But do you think it matters to them? | ||
| You know what I mean? | ||
| Their ends justify the means, so do you think it really matters, meaning that if they can go ahead and do it and get away with it, which seemingly you can get away with virtually anything these days, then why not go ahead and do it? | ||
| I know that's not your position, but from their perspective. | ||
| From their perspective, that often is a big motivator, and I think that is part of why they're doing it. | ||
| Notwithstanding some of these risks, is that they're looking at this saying, if we can do it, and it would please our base, why not do it? | ||
| Why not at least try? | ||
| Maybe we will swing and miss, but we'll at least draw a lot of great applause from our own base. | ||
| But for the reasons I explained in Chapter 4 of Saving Nine, Even when you swing and miss, even when you threaten to pack the court, you propose court packing and the legislation fails, it can leave an indelible mark, a mark that we're still paying for in the lengthy period of time that's elapsed since 1937 when they tried it last. | ||
| We're still suffering from what happened to the court, what it did to the court, all That many years ago. | ||
| 85 years later, and we're still paying for that mistake. | ||
| So you write about that pretty extensively, actually. | ||
| So can you just go into what happened those 85 years ago? | ||
| Yeah. | ||
| 85 years ago, you had a Supreme Court that was doing its job and was enforcing the outer limits on Congress's authority, especially its authority under the Commerce Clause, the part that gives Congress the power to regulate trade or commerce between the states and the foreign nations. | ||
| FDR, President Franklin D. Roosevelt, was frustrated at the fact that the Supreme Court was knocking down some of his signature pieces of legislation. | ||
| giving Congress and the federal government as a whole unprecedented power to deal with things in response to the Great Depression. | ||
| They wanted to be able to regulate things like agriculture and mining and labor and manufacturing, even though historically those had been regulated almost exclusively by the states and not the federal government. | ||
| Now, the Supreme Court, just interpreting the Constitution based on what it had always meant, was threatened by FDR. | ||
| Just two years after the court had moved into its new building, the building it now occupies, on April 12, 1937, the Supreme Court effectively rewrote the Constitution. | ||
| It rewrote the Commerce Clause to give the federal government the power to regulate anything that even affected interstate commerce. | ||
| Not just interstate commercial transactions or the corridors through which they take place, But anything that affects those things could now be regulated by Congress. | ||
| That meant labor, manufacturing, agriculture, mining, all the things that FDR wanted to be able to regulate comprehensively from Washington, D.C., they could now do. | ||
| This occurred as a result of one vote switching. | ||
| Associate Justice Owen Roberts, who had previously stood by others on the court who had acknowledged there were limits on the Congress's Commerce Clause authority, He switched his vote, he joined with the liberals on the court, and they rewrote the Constitution. | ||
| And it's a result of that that we're now dealing with a federal government that regulates every aspect of human existence, that imposes $2 trillion of regulatory compliance costs on the American economy, that requires Americans to work for months out of every year just to pay their federal taxes, and then tells them that even that's not enough because we're $31 trillion in debt. | ||
| All of that, and the fact that most of our laws at the federal level are now made by unelected, unaccountable bureaucrats, that can all be traced to this switch in time that saved nine, as I explain in Chapter 4 of Saving Nine. | ||
| So as a free market guy, as a capitalist guy, as a guy that believes in states' rights and you want the free exchange of goods, what should we be doing to maybe get more people, well, we can talk about it and get more people to know about it and you can write books about it, but what can we do to get that case to be looked at again, perhaps? | ||
| Well, yeah, first of all, we need to get people talking about federalism and separation of powers because that's what we lost the last time the Democrats tried to pack the court. | ||
| When we get people talking about that, we make it part of the national political discourse. | ||
| You shouldn't have anyone running, especially as a Republican, but really from either party, for the U.S. | ||
| House or the U.S. | ||
| Senate or the presidency of the United States, without them talking about where they stand on how to restore federalism. | ||
| The vertical protection that keeps most of the power at the state and local level, and how to restore separation of powers. | ||
| The horizontal protection that says we're going to have one branch of government that makes the laws, Congress, the legislative branch, one branch of government headed by the president, the executive branch that enforces the laws, and another branch that interprets the laws headed by the Supreme Court. | ||
| Those need to become mainstream political conversation topics in America, again, especially for federal races. | ||
| That is really how we fix this. | ||
| But in the meantime, we've got to also counteract the clear and present threat that we face due to this now trending hashtag of hashtag expand the court, pioneered by Elizabeth Warren and others, who are trying overtly to attack the independence of the federal judiciary. | ||
| So I know we could bash the progressives and the left all day long, but it's obviously not just them that have, you know, expanded the size of government and the budgets and all of those things and sending money to all sorts of countries when we barely have a dime here. | ||
| What do you think the Republicans and conservatives could be doing better in terms of giving some of the power back to the states and in terms of reining in some of the budgets and that kind of stuff? | ||
| Yeah, no, it's a fair point you make. | ||
| I mean, look, this expansion of the size, scope, reach, and cost of the federal government, this has occurred under the direction of Houses of Representatives, of Senates, and of White Houses of every conceivable partisan combination. | ||
| The problem is that we've got the progressive mindset that permeates the entirety of the Democratic Party and a significant portion of the Republican Party. | ||
| And I think we have to focus on that as Republicans and say, look, we're not the party of progressives. | ||
| We're the party of liberty. | ||
| We're the party of free markets. | ||
| We're the party of civil society. | ||
| All those things atrophy when we excessively flex the federal muscle. | ||
| And that's what we've got to undo. | ||
| And in that respect, Saving Nine is about much, much more than just preserving the independence of the Supreme Court and prohibiting court packing. | ||
| It's about restoring federalism and separation of powers. | ||
| This book will teach you how to do that. | ||
| So you mentioned politics entering the court. | ||
| Obviously, at this point, because politics has become our national religion, it seems almost impossible not to. | ||
| I had Judge Napolitano from Fox on a couple weeks ago in the middle of the Kitanji-Brown-Jackson hearing, and his position was that basically The Senate should confirm a judge that is, you know, nominated by the President, barring something really off the charts, like really, really beyond unbelievable in a decision that they made. | ||
| That basically the decision should be left to the President, and short of something really catastrophic, the person should be confirmed. | ||
| Now we watch confirmation hearings, and on both sides, it's all sorts of, you know, dredging out all kinds of horrible things, or made-up things, in the case of Brett Kavanaugh. | ||
| Perhaps in Katonji Brown's case, the fact that she couldn't tell you what a woman was, maybe that was a catastrophic thing that would have qualified. | ||
| But what's your general position on when a president nominates someone, what the process should actually look like? | ||
| Look, I make no mystery about the fact that when there is a Democratic president in office, I understand that we're not going to get the same nominees as we would when there's a Republican holding the office of the presidency. | ||
| Still, it still matters. | ||
| And it still matters to me to review each candidate individually and figure out whether he or she understands, respects, appreciates, and will defiantly protect the independence of the judiciary. | ||
| And will understand that each case is to be decided on the basis of its own merits and on the basis of what the law says. | ||
| On the basis of the law as it was understood at the time of its enactment, if a statute, or at the time of its ratification, if it's a provision of the Constitution. | ||
| And so I'll vote yes for a nominee, even if that nominee doesn't share my political worldview, if I think that nominee is sufficiently committed to the judicial task. | ||
| If not, I won't. | ||
| So I don't know that that ought to ever mean blind deference to any president, whether that president is of your own political party or not. | ||
| It certainly doesn't mean that to me, and I don't think it should to anyone else either. | ||
| You mentioned the Dobbs case before, you know, it's kind of bizarre, you know, this leak happens, you know, now it's probably six weeks ago or so, and basically not only are we not talking about it anymore, but it doesn't seem like anyone's trying to track down the leaker. | ||
| Are you aware of anything that's going on that maybe we're not fully aware of through the media yet? | ||
| And what do you think that the leak itself has done to the integrity of the court? | ||
| You know, until fairly recently, I was convinced that they had identified the leaker and they just had made a strategic decision within the court not to announce the leaker's identity until after the Dobbs case was decided, which may not happen until the end of the court's term, which usually wraps up in the final days of the month of June. | ||
| But then a few days ago, news reports started to surface suggesting that the investigation is still ongoing, that they've asked law clerks, there are four for each justice, to submit their phone records and submit sworn affidavits about their conduct in this case, about what, if anything, they have done with copies of Supreme Court opinions. | ||
| So, it seems to be that the investigation is ongoing. | ||
| I do think they'll figure out who it is. | ||
| Because we're dealing with a fairly finite group of people, and it's not that hard to figure out. | ||
| I think we'll find out. | ||
| Whoever it is, if, as I suspect, it is a law clerk, they should never practice law again. | ||
| They should be disbarred for this. | ||
| Because this is handling sensitive information, information that was not theirs to release. | ||
| And you know, as a law clerk, they drill this into you. | ||
| It was made clear to me when I was a law clerk at the Supreme Court for Justice Alito, you don't take draft opinions out of the building, ever. | ||
| You don't take it to lunch. | ||
| You don't take it home. | ||
| It shouldn't even leave your office when you're finished with it. | ||
| You can't just throw it in the wastebasket. | ||
| You've got to put it in this special bag, a bag whose contents are retrieved at the end of every day. | ||
| They retrieve the contents. | ||
| They shred the documents, not just once but twice, turning it into a confetti. | ||
| And then they put it in an incinerator and burn it into this black powder. | ||
| And then they add a little bit of water to it and it creates this tar-like slurry structure before it ever leaves the custody of the Supreme Court of the United States. | ||
| That's how seriously they take the confidentiality of the opinion drafting process. | ||
| So whoever did this knows darn well what those procedures are and why they matter. | ||
| That's why that person should never be permitted to practice law again. | ||
| I do think they'll figure it out. | ||
| So assuming they do figure it out, or even if they don't, what do you think it's done just generally to the integrity of the court, the ability for the court to make a decision, hold a decision until the time is right for it to be released, and just the way the media reacts to all of it? | ||
| Because obviously this was leaked to Politico, they had their decision on whether to release it or not. | ||
| verify it in other ways from everything we understand it is legit but just the | ||
| general standing of the court which to me the left is constantly trying to | ||
| subvert anyway not just through packing but generally just assault all of the | ||
| decisions yeah I think it's devastating I think it's devastating look | ||
| The court has enjoyed a history in which this has not occurred. | ||
| Now, the left-wing media is fond of saying things like, oh, this isn't the first time this has happened, other leaks have happened. | ||
| Yeah, sure. | ||
| Every once in a while, maybe once or twice in a decade, word will leak out maybe an hour or two before an opinion is released. | ||
| Suggesting that the person knows what the answer is going to be, and most of the time it's a 50-50 guess anyway. | ||
| It's like betting on red or black at the roulette wheel. | ||
| You're going to be right on average half the time, and sometimes they get that right. | ||
| But they've never leaked an entire draft opinion. | ||
| This has never happened before. | ||
| There's been a network of trust within the court, and there's been unanimous support within the court and its support staff in | ||
| making sure this doesn't happen. | ||
| So I think we can stem the damage moving forward as long as the court takes additional security | ||
| steps to make sure this never happens again. But I think they're going to have to put | ||
| in place some sophisticated watermarks behind every draft opinion from now on that will identify | ||
| the person who had access to that watermark so that a leak like this can't happen. | ||
| And if it does happen, the person will be immediately found. | ||
| So you mentioned federalism earlier and states' rights, obviously. | ||
| As I mentioned to you right before we started, I spent the last eight years of my life in California. | ||
| I now live in the free state of Florida. | ||
| And as I've been saying on the show, I genuinely feel like I live in a different country, not in a different state, but in a different country. | ||
| I'm wondering, what do you see differently on the ground in terms of what your constituents want in Utah and the way that you feel that you can govern there? | ||
| Versus what goes on when you show up in D.C. | ||
| and what you have to deal with. | ||
| Yeah, that's a good question. | ||
| Look, most Americans, and it's true of Utahns, and I'm pretty sure it's true of Californians and people in Massachusetts, in Wyoming, or whatever state you want to identify, most Americans intuitively resonate with the concept of federalism. | ||
| And by the way, I refer to it by that title rather than as states' rights, because my belief is that a state is a unit of government. | ||
| Units of government don't have rights, they have authority. | ||
| Authority is almost the opposite of a right. | ||
| So it's recognizing the appropriate sphere of government authority. | ||
| That's what federalism is. | ||
| And most people understand that federalism makes sense because it allows for more Americans to gain access to more of the kind of government they want and less of the kind of government they don't want. | ||
| So, for instance, in Utah it's pretty well understood that we'd rather not have a government-funded, single-payer, healthcare system. | ||
| We have enough experiences going to the post office or the DMV to know that we don't want government being our doctor. | ||
| People in Vermont, I'm told, would much prefer a single-payer, government-funded, government-run healthcare system. | ||
| If we respected federalism more completely, then more states would be able to do exactly as they want. | ||
| Vermont would be able to go in that direction. | ||
| Utahns wouldn't do that. | ||
| That's what federalism is supposed to be all about. | ||
| That's why it's protected in the text of the original Constitution, doubled down on in the Tenth Amendment, but we've neglected it. | ||
| Federalism still has great potential. | ||
| We just have to allow it to be used. | ||
| And for that to happen, people in Congress have got to stop pretending that we are a general purpose legislative body. | ||
| We're supposed to be in charge of just a few basic things. | ||
| National defense, declaring war, weights and measures, trademarks, copyrights and patents, bankruptcy laws, regulating trade or commerce between the states with foreign nations and with the Indian tribes. | ||
| And that's about it. | ||
| There are a few others, but there's not much more than that. | ||
| Everything else is supposed to be reserved for the states and localities. | ||
| You know, it's funny because I asked you this already, but when I hear you say that and lay it out so cleanly and clearly and obviously, it's just like what the bell in my head goes off of, I just don't think any Democrat senators care about that. | ||
| I think a certain amount of Republicans don't, but I honestly don't think that any Democrat, I cannot name one. | ||
| If you can name one, I'd love to hear it, but I just don't think they care about what you guys are supposed to do. | ||
| Yeah, I think that's right. | ||
| For two principal reasons, I don't. | ||
| Number one, if they can win, they can win bigly, as they might be inclined to put it. | ||
| Number two, they are winning in that they have federalized everything. | ||
| And this is the ultimate progressive dream, is to consolidate as much government power as possible, consolidate it in the national government. | ||
| That way, states won't even have the opportunity of experimenting with a lower profile system of government. | ||
| Even though they themselves might like certain aspects of federalism in these leftist states, they can't tolerate the thought of other states, states like mine, states like the state of Utah, doing it differently. | ||
| They don't want the competition, and they also think that in order to redeem us, in order to save us from ourselves, we've got to nationalize all of our lawmaking. | ||
| What does that get us? | ||
| Well, it gets us a whole lot of contention. | ||
| It gets us riots. | ||
| It causes us to create something akin to an imperial presidency. | ||
| I thought you were going to make a Palpatine reference there. | ||
| I felt it coming. | ||
| thinking that the bigger the government in question, the better off we all are, | ||
| reinforcing the progressive mindset. | ||
| I thought you were gonna make a Palpatine reference there. | ||
| I felt it coming. | ||
| It could have come, but yeah, I couldn't quite make it. | ||
| So on something like the 40 billion to Ukraine that the Senate just voted on, | ||
| obviously your counterpart there in Utah did vote for it, Mitt Romney did vote for it. | ||
| You know, from my audience's perspective, for the most part, it's like, man, we have so many things we could be fixing here if we even have this money in the first place, which we kind of don't have. | ||
| But we seemingly always have money for other people's problems, not for our own. | ||
| How do you kind of deal with that internal battle of, again, what you're dealing with in D.C. | ||
| and what kind of the machine wants versus what your own people want? | ||
| And for a guy like you, you actually care about budgets, and I have a suspicion you know that the $40 billion doesn't really exist. | ||
| Is that fair to say? | ||
| Yeah, so I looked at that legislation and went through it with a fine-tooth comb, and what I found were some significant problems. | ||
| Number one, we're dealing with rampant inflation in this country. | ||
| The people in Utah are paying an additional $751 each month, every month, for their basic living expenses, relative to what they were paying at the beginning of just last year. | ||
| This is a huge de facto tax increase that disproportionately harms the poor and middle class of my state. | ||
| And it's entirely foreseeable. | ||
| It is the natural consequence of excessive federal spending. | ||
| And so I thought that the Ukraine bill should have been paid for, should have been offset, and I introduced an amendment to that effect that would have done that. | ||
| Also in that same amendment was language that would have stripped out Title V of that bill. | ||
| Title V is where the worst spending abuses within the bill could be found. | ||
| We're talking a large amount of money. | ||
| about fifteen billion dollars or so that would have gone to activities in the state department uh... that are at best tangentially related to ukraine and in many instances have been linked by this administration itself to the administration's radical climate change fighting agenda So, when Rand Paul, for example, said, hey, we should at least be able to, you know, know where the money's going, or audit this thing, or get some receipts, and basically the entire media tried to destroy him as if, you know, he's in Putin's pocket, I'm guessing you were pretty sympathetic to what he was going through. | ||
| Absolutely, absolutely. | ||
| The same thing happened to me. | ||
| The changes Rand Paul proposed, let's have an inspector general over this, very reasonable. | ||
| In fact, it's hard for me to imagine that subset of Americans who wouldn't want something like that in place. | ||
| Likewise with my bill. | ||
| There's nothing that should be terribly objectionable about saying We should offset the spending so that we reduce the inflationary pressures that we're exerting on the economy. | ||
| And as long as we're passing a bill that's supposed to be about Ukraine, it shouldn't be about further entrenching the State Department and just flooding the State Department itself with additional funds. | ||
| So when you, not to, I'm not trying to create a fight with you and your counterpart, your other senator in Utah, but like, did you and Mitt discuss that? | ||
| And did he say, ah, I'm just kind of okay with it? | ||
| Or not even about him, but just generally when you spoke to some other Republican senators that just kind of signed it and were just like, ah, we're doing it. | ||
| What do people say? | ||
| Yeah, that's the problem. | ||
| That's one of my biggest frustrations with Washington is that people will sign on to what I refer to as the sort of bumper sticker effect of a particular bill. | ||
| And for many of my colleagues, they looked at this and said, look, Ukraine is important, Ukraine is a sympathetic victim to a vile menace to human civilization, who is Vladimir Putin. | ||
| And Vladimir Putin is in fact a vile menace, and Ukraine is a sympathetic victim here. | ||
| But to translate that into saying, because I like X, and X would be covered in one way or another by this bill, I must vote for this bill, Causes us to enact some very bad policies it causes us to spend way too much money And it's frankly one of the biggest reasons why we're 31 trillion dollars in debt | ||
| These people are afraid to be seen as voting against a sympathetic beneficiary, or combination thereof. | ||
| And that's how we get to this problem. | ||
| So it's a basic difference of opinion that I have with some of my colleagues, who will look at something and say, I agree with the overall objectives, so I'm willing to vote for it, even though this particular formulation has some serious problems with it. | ||
| So since you are a guy that cares about the actual rules and the way that we're supposed to be governed, I mean, in effect, it seems like we're at war right now. | ||
| I mean, we haven't declared war. | ||
| I know the president's supposed to declare war and it has to get authorized and everything else. | ||
| But I mean, when you're pouring tons of money into something, when you're giving people weapons, et cetera, et cetera, you in essence are at war. | ||
| I mean, at what point do we start looking at that and having Congress or the Senate go, boy, are we at war? | ||
| And how much money do you have to pour into something before you officially call it war? | ||
| And if you keep giving a guy weapons, maybe it is war. | ||
| Or again, is that just one of those things that it's just kind of, it is what it is, and the beat goes on? | ||
| Yeah, I think it's absolutely essential that before we take Any more steps in the direction of warfare? | ||
| We take into account our role as a Congress in declaring war. | ||
| Over many decades, Congress has gradually relinquished its declaration of war powers, as presidents of both political parties have asserted really broad powers attached to their inherent authority under Article 2 as Commander-in-Chief of the Armed Forces. | ||
| This is problematic because it was one of the distinguishing characteristics of the Constitution. | ||
| One of the things that made it very different than the English model. | ||
| The system that we had just broken away from allowed the Chief Executive, the King, to take us to war and then it was up to Parliament to figure out how to pay for it. | ||
| Under our system, Federalist 69 makes this very clear when Alexander Hamilton explains that it was with good reason we put the power to declare war in the first instance in the hands of Congress, because that's the branch most accountable to the people at the most regular intervals. | ||
| So I think if we're going to take any additional steps in this area, we really ought to have a conversation about whether and what way to what extent we want to be involved in a conflict with Russia. | ||
| Keep in mind, Ukraine spends less than $5 billion a year in defense. | ||
| Russia spends about $65 billion a year in defense. | ||
| If you add up the previous Ukraine bill, $14 billion, to this Ukraine bill, $40 billion, you're talking about more than 10 times what Ukraine spends on defense in an entire year. | ||
| is what we have devoted in the name of Ukraine defense and we're knocking on the door of what Russia spends on defense worldwide in an entire year. | ||
| Do you think we're in a bizarre situation as the last superpower that we're still expected to do everything, but maybe we kind of just can't in a certain respect? | ||
| I personally believe that. | ||
| I believe in American exceptionalism. | ||
| I believe the world is better when we're leading. | ||
| I believe in peace through strength, all of those things. | ||
| But that maybe right now, especially with the leadership that we have, that we just can't do that much good at the moment in these big international things. | ||
| Well yeah, look, I think this is where we get dangerously off course. | ||
| I think it is dangerous for any country, last standing superpower or not, to step into the mindset that says, if there is injustice in the world, we can be counted on as the presumptive police force. | ||
| No nation can do that. | ||
| No nation can withstand that. | ||
| Certainly we can't. | ||
| Our constitutional system should never allow that to happen. | ||
| What really needs to happen is that anytime we get involved militarily, we really ought to have Congress declaring war before we take any action in that direction. | ||
| And always the inquiry should be on, not on whether bad people are doing bad things in another part of the world, but on how that affects American national security. | ||
| The safety, security, the liberty of the American people at home. | ||
| If we can't connect it to that, We shouldn't be doing it, because there is no end to the threats that we will face, the battles we will have to fight, with no real corresponding ability to do all of those things. | ||
| If our only task is to go out there and find bad people doing bad things, we'll be very busy, so busy indeed, that we will leave the American people vulnerable in their own homeland. | ||
| So speaking of safety and liberty at home, you know, two years or two and a half years post COVID, are you... | ||
| Are you hopeful that more people have woken up to some of the state's rights stuff, some of the stuff related to the courts and mandates and all of the overreach that we saw? | ||
| I mean, my sense is that a lot of people really have woken up. | ||
| I don't know if they got scared again, if they would just drop all of their newfound ideas very quickly in the name of security, but I'm kind of hopeful at the moment. | ||
| Yeah. | ||
| As my wife Sharon would put it, all government overreach, all socialism and all other forms of government overreach, always starts out under the auspices of an emergency. | ||
| And I think that's the awful truth to which the American people have awakened over the last two years. | ||
| They've realized, oh my gosh, if they can call something an emergency, they can do anything they want, and when government can do anything it wants, and the people fear the government rather than the other way around, Horrible things happen. | ||
| So yeah, I think that has created a number of accidental conservatives and libertarians in this country, as they've seen the horrible abuses of government as it goes unquestioned, all under the auspices of, well, this is necessary because of an emergency. | ||
| What do we do about organizations like the CDC and the FDA? | ||
| I mean, they're not legislative bodies, but in essence, it seems like they legislate. | ||
| And then it seems like, well, you just turn on any corporate news and they're all sponsored by Pfizer, sponsored by Moderna, as they're doing stories on Pfizer, on Moderna. | ||
| What do we do about that mess? | ||
| Yeah, it's a great point. | ||
| And by the way, I talk about this a fair amount in Saving Nine. | ||
| That's why I like to say Saving Nine is not just about the Supreme Court. | ||
| It's not just about court packing. | ||
| It explains all of the maladies that flow inevitably from cork packing and flowed from FDR's court-packing threat back in the 1930s. | ||
| As a result of that, we've got too much power that's been moved from the people to Washington, and within Washington, too much power that has been voluntarily relinquished by the people's elected lawmakers and handed out to unelected, unaccountable bureaucrats, people at the CDC and the FDA, or the two that you mentioned. | ||
| You notice, of late, it's been getting worse and worse. | ||
| As the Centers for Disease Control is a whole lot more about the control than the disease. | ||
| And the FDA, rather than just looking out for protecting the American people from unsafe products, is all about controlling them. | ||
| Controlling even the information to which they may gain access. | ||
| This is the predictable, foreseeable, and I believe avoidable result of Congress outsourcing the task of legislation. | ||
| We have for decades had a Congress that's in effect saying, we hereby declare that we shall have good law in Area X, and we hereby delegate to Commission or Department Y the power to make good law in that area. | ||
| And then they get to make the law and enforce it. | ||
| That's a recipe for tyranny. | ||
| So going on the assumption that there will be a COVID-2 or another version of something this, or as your wife would say, something else that will scare us in the future, what actual authority does the CDC have? | ||
| I think that was one of the things that really confused people, that every day someone from the CDC, Walensky, or one of these people would get up there, they would say something, and then people automatically felt, oh, that's what they said, we have to do it, but that's not exactly how this thing works, right? | ||
| It's not exactly how it works, but there, There's enough legislation on the books that gives these government agencies, including the CDC, at least a colorable claim to the authority to dictate how much of our economy runs, that they can get by the initial smell test. | ||
| And see, not everything gets litigated. | ||
| This is another point I make in Saving Nine. | ||
| Not every dispute, not every question about constitutionality Goes to the Supreme Court. | ||
| Most cases don't even get litigated. | ||
| A very small percentage of those that get litigated make their way off the way to the Supreme Court. | ||
| And it can take months or sometimes years to get to the bottom of some of these problems. | ||
| In the meantime, a lot of these disputes have become moot and the courts then start to lack jurisdiction over them. | ||
| That's why we need genuine, deep reform. | ||
| Where we withdraw the authority, the delegated authority, to make new law. | ||
| It's one of the reasons why I believe so strongly in the need to pass things like the REINS Act. | ||
| Look, if I were in charge of Congress and I had just one legislative measure that I could pick and guarantee passage of, it would be the REINS Act. | ||
| Their acronym is R-E-I-N-S, stands for Regulations from the Executive in Need of Scrutiny. | ||
| To make a long story short, it says that we're not going to allow unelected, unaccountable bureaucrats to make our laws anymore. | ||
| That will be done only by Congress. | ||
| And when an executive branch agency uses delegate authority to create what is in effect a new law, that will not be self-executing after the passage of the REINS Act. | ||
| It will require an affirmative vote by Congress to pass it into law. | ||
| You see, people can fire their elected lawmakers periodically. | ||
| You can't fire a government bureaucrat. | ||
| That's why we need the REINS Act. | ||
| Yeah, that's also sort of related to something else you said before about how our system is different than the British system, and yet in some ways we kind of yearn for more control. | ||
| It's a weird paradox that I think humans have. | ||
| I mean, you hear it all the time during presidential elections, what I'm going to do the first day in office, and it's like, well, wait a minute, you can't do that much. | ||
| You're not supposed to be able to do that much, but then they do everything by executive action. | ||
| I mean, I assume that's another one that you feel like has really just, we've let it out of the bag and now it's out of control, right? | ||
| Yes, it's not just that we've let it out of the bag. | ||
| Congress has now blessed it. | ||
| Congress has ordained this as a legitimate lawmaking exercise. | ||
| You know, I keep two stacks of documents in my office in the Senate. | ||
| One stack is short. | ||
| It's a few inches tall. | ||
| It's usually a few hundred, sometimes a few thousand pages long. | ||
| It's the laws passed by Congress during the previous year. | ||
| The other stack, currently 13 feet tall. | ||
| It's often approaching, if not exceeding, 100,000 pages. | ||
| And it's last year's Federal Register. | ||
| That's the cumulative annual index of federal regulations as they're proposed. | ||
| Measured by height, weight, volume, word count, economic impact, you name it. | ||
| The executive branch bureaucracies create more law every year than the people's elected lawmakers. | ||
| But my copy of the Constitution in Article 1, Section 1 and Article 1, Section 7 make really clear you're not supposed to be able to make a federal law without Congress. | ||
| So how do we clear out some of that? | ||
| How do we clear out some of that brush? | ||
| How do we get rid of that bureaucratic state or the deep state or whatever? | ||
| Or maybe not even get rid of it because some version of something for stability has to exist. | ||
| But how... It seems like it's just getting bigger, right? | ||
| We talked about draining the swamp. | ||
| Maybe there was some degree of it under Trump. | ||
| But it certainly seems like it's back and bigger than ever right now. | ||
| I mean, is there... Do you have any levers at this point? | ||
| Does anyone that cares about this stuff have any levers to do anything? | ||
| Well, they do only insofar as the American people demand it. | ||
| And once they demand it, it will become inevitable that it will happen. | ||
| That's why I think the best single thing we could do, I think the agenda that Republicans ought to be running on, is passage of the REINS Act. | ||
| Because that would force a rebalancing of this balance of power between the executive and legislative branches. | ||
| Too much of the power has been given over to the executive branch. | ||
| That's why we become vulnerable to all this stuff. | ||
| I mean, let's take, for example, one of the worst abuses I have ever seen. | ||
| One of the worst abuses of executive power that's ever existed in the history of our republic. | ||
| And that was President Biden's vaccine mandates. | ||
| Perhaps the most egregious among them was the one that affected the most people, 100 million people or so, the so-called OSHA vaccine mandate, where they arbitrarily determined that any employer with more than 99 workers Had to require vaccination of all their employees. | ||
| And any that didn't would receive... Wait, Senator, are you telling me that's not science? | ||
| 95 and then to 99? | ||
| I'd have to look at the science here. | ||
| Are you telling me there was something not scientific? | ||
| There was nothing scientific about it. | ||
| The virus isn't that smart. | ||
| The virus doesn't have the ability to differentiate between workplaces with more than 99 workers and those without. | ||
| And the Biden administration wasn't smart enough to realize it's not within their constitutional power to do that. | ||
| But they laid claim based on this statute that created OSHA, you know, the executive branch bureaucracy in charge of occupational safety. | ||
| And OSHA promulgated using this broad statute giving OSHA the power to make workplaces safer. | ||
| This emergency temporary order saying we find this is necessary therefore make it so. | ||
| That's exactly the kind of thing that does violence to our constitutional system of government and separates the people from their own form of government. | ||
| Things like that have to be repealed and the best way to start that ball rolling is to enact the REINS Act Which again would make it so that any new substantive change to federal law would have to be affirmatively enacted into law by Congress. | ||
| Are you ever amazed that nobody gets fired from any of these organizations? | ||
| I mean, two years after COVID, as far as I know, no one really at the CDC got fired. | ||
| Nobody at the FDA got fired. | ||
| You know, nobody involved at the governmental level who were pushing mandates that either were illegal, you know, potentially illegal or at the very least immoral. | ||
| The series of other things, you know, they forced doctors out of work and then, you know, first they were essential, then they were out of work. | ||
| All of the nonsense that they did, but I don't know that anyone got fired. | ||
| I don't know of any other business that could operate this way. | ||
| Right, but why would they get fired? | ||
| I mean, this is a feature, not a bug. | ||
| This is exactly what progressives want. | ||
| Progressives want to empower and encourage that kind of thinking. | ||
| So, of course they didn't get fired. | ||
| Look, they won't get fired, they won't lose power until the people demand it, and Congress acting on the demands of the people relieves them of duty. | ||
| When Judge Mazel, I almost forgot her name for a second and everyone should know her name, the 35-year-old Trump-appointed federal judge in Tampa, when she reversed the airline mask mandate. | ||
| I had just started my book tour. | ||
| I was going on, like, two days later, so I was going to be on a lot of planes. | ||
| I was as thrilled as anybody. | ||
| And what was amazing to me was that the next day, virtually, I would say, 90% of people, if not more, ripped their masks off. | ||
| You know, a week before, Fauci had just said, oh, we're reviewing it again, but we're going to extend it. | ||
| He had just extended the airline mask mandate thing. | ||
| But meanwhile, there's been no outbreak of COVID, no new sudden surge or anything like that. | ||
| And all of the people, we ripped it off and everyone was smiling again and talking on planes and at airports, restaurants are packed again. | ||
| This is the type of thing that I think makes people crazy. | ||
| It's like, where was this one brave woman two years ago? | ||
| Did you talk to any judges and say, hey, somebody could do something about this? | ||
| I know you can't exert influence over them, but did you talk to anybody? | ||
| Over a scotch somewhere in D.C. | ||
| and say, hey, you could flip this thing. | ||
| Well, I talked at great length to the media, to my colleagues, to executive branch personnel over the last two years about the fact that it was wrong, about the fact that it was at best a stretch of federal law, and acting on a federal law that should never have existed to begin with. | ||
| But that's the thing about our judicial system. | ||
| They can't just go out and act. | ||
| It's one of the things that I explain in Chapter 1 of Saving Nine. | ||
| The courts aren't just a roving commission to smack down things they don't like. | ||
| They've got to wait until an actual, ripe controversy is brought before them, a dispute over the meaning of the law. | ||
| And it can take a significant amount of time to find the right plaintiff, for that plaintiff to come forward and present a case, and for the appropriate motions to be made. | ||
| And Judge Mizell happened to be the first one to act on one of those, and I applaud her for it. | ||
| It was a correct ruling. | ||
| The book is saving nine. | ||
| Senator Mike Lee, as I said at the beginning, you're on the short list of sane people over there, so I wish you luck. | ||
| Thank you. | ||
| My pleasure. | ||
| If you're looking for more honest and thoughtful conversations about politics instead of nonstop yelling, check out our politics playlist. | ||
| And if you want to watch full interviews on a variety of topics, watch our full episode playlist all right over here. |
Export Selection