Transcript
Speaker: Hello and welcome to s Sips and Substance, where we distill politics down to its essence. I'm Justin. We have Jonathan here. Hello. And we are going to do a deep dive into unitary executive theory.
Speaker: So what is that, right? And why are we going to do it? So a very loose definition of unitary executive theory is that all executive power trickles from the president and all the other branches need to stay in their lane.
Speaker: That's sort of like a 30,000 foot view. There's like a strong and a weak version. So like the strong version might be something like the president could fire, you know, the most junior employee is the social security administration for any reason that they want, because they are exercising executive authority.
Speaker: Whereas the weaker school of thought is more in line with something that Justice Scalia might have advocated for. Yeah, I think another way of of phrasing that is like a strong unitary executive theory is more or less the president. Once the Congress gives sets up agencies and sets up things in the government, the president can do whatever he wants with them because he's administrating And the Congress has nothing to say once things get set up.
Speaker: um And then the weaker theories say that Congress can still have some input. right And what we're going through now as a country is the court seeming seems to be leaning more and more toward the idea that, hey, once you've put this in front of the president, it's the president's to do with as he will.
Speaker: There are ramifications for that, right? We know that the pardon power is absolute based on the immunity decision, which is going to encourage people to do illegal things because they know that the president has their back.
Speaker: And you can't question the commander-in-chief's judgment either. So anything related to the military, well, can't question that. And this is why we're so concerned about the recent boat strikes on the alleged narco-terrorists.
Speaker: Yeah, I think that, again, from... I think probably both of our but both of our perspectives, this is going a lot further than we've ever seen before, right? The the Trump administration and President Trump are really pushing the boundaries of what a unit unitary executive theory means in practice. And this court seems to be letting him. um And what makes it worse is that the Republican Congress is not acting as any sort of check either. So what's going on with with both the courts and the administration is something that we need to take a look at because a lot of it is unchecked right now, um both by design from the court and by reality in terms of the Congress not doing anything.
Speaker: So this episode is going to be very philosophical. We're going to run through four major Supreme Court cases pertaining to removal power. And in order to get through that, we need a really strong drink. So Jonathan, what do you have? We have an appropriate one in any case. We haven't had a Russian River beer on in a while, and I know we were sort of short of our quota. So I happened to get one this week, and it's perfect. It's called Hopfather IPA. So it talks it's making allusions to the godfather, and so it talks about corruption and things like that, which is appropriate what we're talking about. But even better, if you look really closely...
Speaker: there's Fredo in the boat about to get shot. So when we're going to be talking about the boat strikes, it's inappropriate to have a violence on boat beer um from Russian river. And again, another one, it's a special edition IPA and this one uses a brewers, gold, Amarillo and Centennial hops.
Speaker: um So it's,
Speaker: Another very strong and in really good ah West Coast IPA from Russian River. its You can see it's clear. It's not hazy. um It's not sweet like some of the citra hop stuff can be if they put in too much. This is just a really easy drinking West Coast IPA.
Speaker: So hopefully it will carry me through our deep dive into Supreme Court cases because we all know how exciting that can be.
Speaker: All right. So Justin said, we're going to dive a little bit deeper into Unitary Executive and use that as our entry into what's kind of going on with the courts. um And the Unitary Executive, just ah we we mentioned briefly what it is, and just going a little bit deeper, it's the idea that the president is the only person that can exercise executive power.
Speaker: All the other branches can do is kind of set it up for him and then get out of his way, give some comments if things if the president goes too far. um But the president largely can determine what that is. Right. um And they they get there the the reasoning or the rationale for this from the vesting clause in the Constitution, which says the executive power shall be vested in a president of the United States of America.
Speaker: Yeah. Thanks, James Madison. That explains everything, right? Well, you know, as a lot of the the the crucial elements of the Constitution are really vague and leave us to interpret it. So that's what we're trying to do, right? Yeah.
Speaker: But in terms of what it really means, it's like they they control the personnel in the executive branch and they're in charge of the policy. And more or less the idea of when they're working in their own sphere, in the executive sphere, they get to tell you what the parameters are.
Speaker: Right. And you see that often with the courts. So when it comes to national security concerns, the courts are going to say hey, we're going to leave it up to the president. When it comes to a lot of foreign policy decisions, we're going to leave it up to the president. they We're not going to question the president's judgment.
Speaker: Now, we're starting to see a little bit of hesitation there because of some of these National Guard mobilizations. But for the most part, the courts have been very deferential to the president.
Speaker: Mm-hmm. And it's like a lot of the stuff that comes out of the Constitution, because it's kind of vague, a lot of the way that we go about running a successful country is based on norms. And so, you know, you have intentions. The intentions here aren't horrible. The idea is, hey, you know what? We'll have the president and the president will know the kind of things that they're supposed to do better than, say, the Congress will, and that's where the power is.
Speaker: But when you have a president... like our current president, who doesn't seem to care much about the norms, right, and just relies on the letter of the law for what he can and can't do, then we have some issues because the letter of the law, as I just read, is pretty vague.
Speaker: So what we want to do, if you've made it this far, is go through the major Supreme Court cases briefly, and then we're going to have a pretty lively discussion about the merits of unitary executive theory.
Speaker: but Interesting thing here is this is one of the things where I think we legitimately have some disagreements that aren't partisan because we're not wildly partisan, different in different directions from each other. So I think this is, as you were saying before, we're teeing people up, we're going to have an actual but theoretical political theory discussion about what to do here.
Speaker: So the first case is called the Myers case. So this was in 1926. It was a 6-3 decision. And the determination was that removal power is a core executive function.
Speaker: And Congress cannot put any restrictions on that. And the funny thing about this case is that it was William Howard Taft as chief justice who wrote the majority opinion.
Speaker: So what do we know about Taft besides the fact that he got stuck in a bathtub, which isn't actually true? He's from Ohio as well. yeah He was actually probably the most accomplished politician in the history of the United States. He was solicitor general.
Speaker: He was a circuit judge. He was secretary of war. He was president. And he was also chief justice of the United States. So, wow, quite a resume.
Speaker: And so basically what he did was he went through American history. And he determined that based on all the debates in 1789, that Congress, you don't have the ability to add restrictions to officers of the United States.
Speaker: In terms of firing, right? terms of firing. The the the big the big distinction I think it's worth making is they decided, you know, obviously Congress has a role in advice and consent for appointing people to these jobs. But then the president, once they're in the executive branch, the president gets is the sole person that gets to determine whether they can stay there or not.
Speaker: Yeah. And later on, we're going to actually discuss a lot of the arguments here because I think these arguments are really interesting. But we want to give a brief overview about the cases. Mm hmm. So nine years later, and you're probably gonna hear this a lot if you read legal adjacent news sources, it's called Humphrey's Executor.
Speaker: And this was just nine years later in 1935. It was a unanimous decision that basically says, well, if officers are in an independent agency,
Speaker: And because independent agencies are quasi legislative and quasi judicial, and they don't really exercise executive power. Well, you can't just fire them willy nilly.
Speaker: Because technically, even though the agency is part of the executive branch, it's not really doing executive functions. So the power of the executive isn't really being effective. And FDR was pretty pissed about that.
Speaker: And this is the case that actually caused him to threaten to pack the court. Well, sort of like the lat the the the the proverbial straw breaking the camel's back, because he was pretty annoyed with them as it was. But I think this is, in addition to this this case, this specific case we're talking about, this is a really good example of you know the part a partisan court doing stuff that kind of threatens its credibility. And I think... It's a a good lead in for what we're gonna finish off with. We talk about that at the end of end of this little session.
Speaker: Yeah. And the funny thing is about this particular case is that usually when a court makes a really big decision like this, they'll come up with a test. So you know think the lemon test or rational basis test.
Speaker: The court said, no we're not going to come up with the test. We're just going to take these agencies on a case by case basis. So in a way, the court gave itself quite a bit of power to make these determinations of whether or not something is constitutional when it comes to the removal power.
Speaker: And I'm guessing a lot of that had to do with their basic animosity toward FDR. Right. And hoping that he would kind of go away. Yeah. They didn't want to bind themselves into something that they didn't want to apply for the next president who wasn't FDR.
Speaker: Didn't really work out for them particularly well. But you can see, I think if you look back at what was going on there, I think you can see that. Yeah. The third case is called Morrison v. Olson.
Speaker: And this had to do with the independent counsel statute that was passed in response to the Nixon administration. And they basically came up with criteria where you have three types of people who serve in the executive branch. You have principal officers.
Speaker: So think someone like secretary of state. Then you have inferior officers and you just have the level staff. And as you move down the ladder, the more encumbered the president is when it comes to removal power. So you can't just fire some low level person working a social security administration just because they serve in the executive branch.
Speaker: And the holding of this court was that the independent counsel was an inferior officer because they answered to the attorney general and the attorney general is the one who's actually dictating the policy there.
Speaker: And so there can be some protections. And funny enough, Scalia, Justice Scalia was the lone dissent in that. And he said that, yeah,
Speaker: They actually do have quite a bit of authority. And so they're a principal officer. And the irony here is that you had an independent counsel kind of run amok during the Clinton administration, just kept on pulling threads.
Speaker: And what did Janet Reno do? Hmm. Well, it but but again, it wasn't that she couldn't. She just thought it was politically expedient not to. Right. Right. So it's it's hard to say whether or not Scalia. I mean, Scalia was sort of right, but not completely right. It's not like it's not like I mean, if it were to happen today. Right.
Speaker: um I think you did like a tale of two attorney generals under Trump. um Right. His Jeff Sessions never fired Mueller. Right. But I'm pretty confident Pam Bondi would have.
Speaker: Yeah, and I bet Bill Barr would have as well. Good chance. Yep. And the the last case is CELA Law versus Consumer Finance Protection Bureau.
Speaker: And this was a fairly recent case. So the CFPB, they were created in response to the financial crisis. And the Supreme Court tried to thread the needle between Myers, where the holding was the president has solar removal power,
Speaker: And Humphrey's executor was said, well, independent agencies, you can have protections. And the Supreme Court said, well, the CFPB isn't really an independent agency because there's not this multi-member board. You have a single person, the head of the CFPB, and they actually exercise quite a bit of executive authority. So it's not just quasi-legislative and quasi-judicial.
Speaker: They actually have executive authority. And therefore, they have to answer to the president. And so the president can't fire them because they are a principal officer. And that that was a pretty controversial decision. It was a 5-4 decision. And I bet you can figure out how each of the justices landed there.
Speaker: And lastly, the reason why we're bringing this all up is because there is a case to be argued on Monday called Trump v. Slaughter. And this is about how Trump fired people at the FTC.
Speaker: And we have to remember that Humphrey's executor said that the FTC was an independent agency and that there are protections. But the caveat now is that the FTC is very different now than it was back then. They actually exercise quite a bit of executive authority.
Speaker: I think that we know the direction that this court is going to go, but it's going to really interesting to see how far they stretch these definitions. So I think, you know, before we jump into our discussion of this and and where this is going to go, i think it's just useful to just kind of sum up where we're at.
Speaker: Right. Basically. the current understanding of the law before we get to the slaughter case is the president can fire most people, right? It has to be really limited and really sort of sealed off and really minor impact on the executive power for the president, not for the Congress to be able to tell the president they can't fire somebody, right? And so I think you're right.
Speaker: I think we're looking at a case where this court is going to say, oh, of course the president can fire people over at the FTC. um and I'm not sure it's because they have, we have some rationale and then it's going to apply to this case.
Speaker: I'm kind of confident that it comes from, well, politically speaking, this is what we want to happen. So we'll figure out a way to justify it. um Again, I'm not particularly confident that this court is going to stay out of politics as much as they should. And I see that the the ideology is going to overwhelm any sort of real discussion of these issues. Now, I know you're not you're not necessarily as pessimistic about about the court as I am, but I think we both agree that 6-3 is probably pretty
Speaker: pretty reliable in terms of what's likely to happen um in this case. Yeah, for sure. And to me, like I like to distinguish partisanship from ideology. I think for someone to be partisan, they have to have some pretty naked contradictions in their rationale in order to get the results that they want. So for instance, if the court says, ah, you are violating the major questions doctrine and you have a democratic president,
Speaker: Okay, fine. You can believe that. But then if something very similar happens under Republican president, and you allow that, that's when it starts getting partisan as opposed to just being ideological.
Speaker: I can, I mean, i don't know that we we want the time for it now, but I think I can go through and make a lot of cases that they're doing exactly that. Sure, you might be able to. Every time Biden wanted to do something, major questions doctrine has come up. It hasn't really come up at all among Trump in the maid in the a the way that they're they're taking cases. In fact, just today, right, the Supreme Court agreed to hear ah trump's ah the Trump administration's appeal of um courts staying his executive order, a putting aside birthright citizenship.
Speaker: um If that's not a major question, I don't even understand what a major question would be. Well, I mean, I think to answer that, it's mainly about the powers that Congress is delegating.
Speaker: I think when it comes to constitutional questions, like you mentioned, that that's a very different thing. And yeah I would be shocked if the Court ruled against birthright citizenship. But you know what? I'm shocked that they made the immunity ruling. So, you know, we'll see what happens. I think anything can I'm prepared to be shocked. and But i I would also be shocked if this court says this is a major questions doctrine issue and we're going to refer that back to Congress because they haven't done it yet under Trump.
Speaker: And I'm not expecting it anytime soon. So let's talk about the pros and cons of unitary executive theory when it comes to the firings. So I think we can go back to Myers. And I think both sides made some really compelling arguments. So the majority and then the dissents.
Speaker: Well, so my my major problem with the idea that Congress can't put in parameters is that more or less any kind of legislative creation of an executive office is Congress giving some sort of some part of its power to the president. They're saying, hey, we've now created this. You can do this. This is something that we can create, and we've given you the power to do it.
Speaker: The idea of having a negotiation, and remember, the president has to sign off on these laws unless you get two-thirds of majority, which clearly doesn't happen in just about anything these days. So there is some sort of negotiation between the legislative legislative and the executive that come up with a proper way to situate things.
Speaker: And for the court to step in for a later president and say, actually, you know what? Congress can't do that. You can do it instead. it kind of upsets the balance that presumably a legislature and an executive at the time negotiated. Yeah. And I also think the most compelling argument is you can create a department that does something.
Speaker: So creating the State Department Congress can create the judiciary and organize the circuits, right? So they can do all these things, but you can't put restrictions on personnel. That seems very weird to me. and I think both of are both of our points kind of fit together, right?
Speaker: Yeah. And we even see this in the military. There's a law in the books that says you cannot be the captain of an aircraft carrier unless you're a Navy pilot. How does that square with the fact that the president is the commander in chief?
Speaker: Why shouldn't the commander in chief be able to appoint whoever he wants to be in charge of the aircraft carrier? And I bet someone who's like really intense about unitary executive theory and they are all in on the strong version, they would probably say, no this is a unconstitutional law.
Speaker: But yeah we have these laws for a reason. Pete Hegseth will probably appoint himself to be Captain Max. Yeah.
Speaker: Now, is why not I do think that Taft makes a pretty good argument that if you look at the historical precedent,
Speaker: And then the acquiescence for the next 70 years, that's a pretty good argument that it's an understood fact that removal power is a core executive function. I think that's a fairly strong argument. Now, I do think we need to be careful about falling into traps of originalism, that just because they agreed in something on in 1789, it's not it was unanimous.
Speaker: it's not like it was unanimous Well, yeah. A unanimous decision, right? I'm not a big fan of saying, well, because it was that way, we should continue it, right? Because there's a really glaring example in the Constitution that kind of gives the lie to that whole thing, and that would be slavery, right? um And so to say that everything the way it was was great and we should continue to do it because that's what the founders wanted – That's tough to square with that, right? um And yes, we put we some of these things, of the slavery stuff was so egregious that we did pass amendment pass you know amendments to get rid of it. But you know you're not going to pass amendments about, there's not going to be much public outcry for an amendment detailing the specific ways a president can or can't fire somebody, right? So I think you know the the history argument, the whole, I'm not a big fan of originalism in any case, but it just seems to me
Speaker: to be weak to say, well, we've always done it that way. That's why we should continue to do it. I don't buy that argument. Yeah, I think the argument for originalism in this sense is that, well, who better to understand the purpose of the Constitution than James Madison? James Madison was critical in passing the legislation to get the It was called the Office of Foreign Affairs back then, but he basically created the State Department. Right, and he wrote a large the most important documents in the Federalist Papers, and he did all that. yeah But he also was insistent that we need to have...
Speaker: the unbridled pardon power that the current president is abusing at ways that even this his predecessors abused it, but not in ways imaginable right now. So, I mean, I can't um i can't imagine if um if Madison was still alive, he'd be like, well, yeah, you know that's what we intended. We were hoping that the president would do this kind of stuff with the pardons.
Speaker: it Just nobody serious could really entertain that idea. Yeah. And also, it's not like this debate was cut and dry, right?
Speaker: They had a debate. Some people believed, some people in Congress believed that, no, Congress has the ability to dictate the terms of removal. Just because it didn't pass the law at that time doesn't mean that it wasn't considered in a very serious way. it was very deliberative.
Speaker: um And so I think we just got to be careful about these things being set in stone. Right. And I think, you know, coming back to sort of when you were talking about the rationale that they're probably going to use for slaughter, that the FTC is very different now back than it was back then. Well, I think that same argument applies to the country.
Speaker: We're quite a bit different now than we were in 1789. And to understand that when you're looking at the FTC from early in the 20th century, but ignore it when you look at the state of the country,
Speaker: where the at the founder at the founding is, to me, just logically inconsistent. And to go off that point further, they added restrictions to removal power because of Andrew Johnson, right? And so if the facts on the ground change, where you have a Republican Congress and a Republican president, and then suddenly someone who's sympathetic to the Southern cause,
Speaker: you know I can understand why Congress wants to say, hey, whoa, you know we're going to make sure that you can't just mess everything up that we worked for. but And the same, ah ah lot of laws came out of the Watergate era. and We're like, hey, you know what? We could have a a corrupt president because we just did.
Speaker: We need to make sure that there are some guardrails in place. And there's guardrails, among other things, not just sort of firing power stuff, but all kinds of ways that Congress is trying to be a sort of a check and a balance. um And that You know, you might talk about the unitary executive and point back to Madison, but you should also think about the about the the checks and balances. Madison was a very large proponent of that.
Speaker: He would actually 100 percent certain, be very disappointed that Congress has abdicated as much of that as they have. I find it hard to believe that he would think that Congress putting in per parameters about firing at this point in our country's history would be a step too far.
Speaker: So it sounds like we agree quite a bit. so i'm going to change that right now. That's more fun. And even though you can it sounds reasonable to have restrictions, it's not like Congress doesn't have checks anyway.
Speaker: So they have a ton of tools at their disposal already. They can impeach. They have the power of the purse. They can have investigations. They have an immense amount of power. So to me, adding additional friction just seems kind of superfluous in a lot of ways.
Speaker: um And when you think of it like that, I think you can start getting to the pragmatic arguments of, Well, if it's going to hinder day-to-day operations, and Congress is already pretty freaking slow, I can understand how this just becomes like an unnecessary... Well, here's a question for you.
Speaker: Go ahead. Where was the friction in the previous administrations? was there any problem Did any of these previous administrations think it was a problem not to fire people just for the hell of it? So...
Speaker: Depends on the historical era, right? you know you get it In our recent time. Oh, in our recent times. Okay. the few presidents leading up to Trump, had and were they complaining about this? I think so. Under Biden, for instance, people are really pissed off that DeJoy was still the postmaster general.
Speaker: But he didn't fire him. He didn't fire him because Biden was someone who stuck to norms in a much better way than Trump did. but and i think he he He felt a lot of pressure.
Speaker: Sure. But I think that's the way – that's one way to look at this. if You could look at – you're saying – I can see the point. We don't want to make things worse. Yeah. Okay. Yeah. But are things worse because of these laws that have been around for a while? Or are things worse because this particular president is trying to get rid of these things that have been accepted norms for a long time?
Speaker: And I would argue that it's the latter. I would argue that it's not these laws that are oppressive and and causing problems. It's that the current administration could give a crap about the norms.
Speaker: Yeah. And I guess this goes to my philosophy of I don't know if it's the court's job to save us from ourselves. We already know that Congress has immense amounts of power.
Speaker: They're just not exercising it right now because they believe in everything that the Trump administration is doing, or they're just cowards. It's probably some combination of both, depending on who you ask. And so- Should the Supreme Court, I guess, give itself more power and make poor rulings just because of Trump being a bad faith actor? I mean, the court is supposed to be the most deliberative. They're supposed to think long term. Should they change their interpretation of historical precedent just because of Trump?
Speaker: And I think you could make an argument that, yeah, they should because Trump is such a unique threat. But I can also understand the argument that, you know what, there's going to an election in 2026.
Speaker: There's going to be an election in 2028. And the laws right now, it's like, yeah, they can be abused. But Congress has the ability to fix it in the future or now. if you really want to how i like I'm to counter that. It's like, first of all, right it's not like the court isn't overturning precedent, but they're overturning precedent in Trump's favor.
Speaker: i mean, this whole the slaughter case is basically they're going to overturn the precedent that we've had for the past, what, 90 years? and You can't that you can't do this and they're going to let him do it.
Speaker: Right. That's not overturning precedent to rein him in. That's overturning precedent to let him do whatever he wants. So that's not really a pragmatic adjustment to try to rein him in. um But even if they were so inclined, isn't that what the court is for? what What is the point of having a Supreme Court?
Speaker: I mean, yes, to administer adjudicate disputes between states and all that stuff. But a large part of the Supreme Court, in my understanding, is that, and my beliefs anyway, is that they're there to say, you know what, this runs afoul of the Constitution.
Speaker: right um And I think if they're not going to do that, There's not a lot of point in having a court. but Beyond that, if we rely on the on the Congress, right which again, you can go back to Madison. Madison relied a lot on the Congress.
Speaker: But Madison was of a mind that Congress would be very jealous of its own power and would always be there to be a check against a president that tried to usurp too much of it. Well, the modern Congress is only that Congress if it's of a different party than the current president.
Speaker: and When we have a Democratic Congress and a Republican president or vice versa, we don't have to worry about congressional checks because they're there. But when we have the parties working to, you know the same party in both Congress and the White House, especially this Republican Congress, they're as...
Speaker: beholden and as acquiescent to Trump as any Congress I can recall. i Democrats do the same kind of thing, but to a different degree. I've never seen this kind of, i mean, no no Democratic president has ever urged his supporters to storm the Capitol and then the rest of the the rest of the party be like, yeah, sure, that's fine. right the The acquiescence of Congress sort of puts us in a position where if the courts don't step in, nobody's going to.
Speaker: Yeah, I think this is just whose responsibility it is, right? Is it the people or is it the courts or some combination of both, right? Like to me, I think that Congress is the body that is supposed to answer the people the most.
Speaker: Yes. We elect them every two years. And if they're not doing their job in terms of reining in a rogue administration, well, they're going held to pay.
Speaker: Hopefully. Otherwise – Are you confident that the people are going to elect a congress that's going to be like, you know what? This is too much. No, I'm not super confident. But at the same time, if the people are going to act like that, I think the people should get what they voted for.
Speaker: i mean – if they want to If they want to not just touch the stove, but lick it and put their face on it, then by all means. That's fine for the people that voted for Trump. There's millions and millions of Americans that did not. right And I don't like casting them to the wolves just because, hey, your other the rest of your population did. um Beyond that, though, If you want to go back to the original intent, right? The original intent was the Senate is supposed to be this sober body that's not going to be as fluctuating according to the whims of the people. And if the Congress decides to be too too responsive to people, the Senate's there to rein them in. yeah And to take it that a step further, back in the day, right, these senators weren't directly elected. They were appointed by governors of states, insulating them again from the whims of the people. yeah Well, we've gotten rid of that, yeah which again goes against our originalism. um And senators don't seem to be very much more inclined to be independent than congresspeople.
Speaker: A little bit, not a lot. Yeah. And I do think that even our Senate today... They have made some pretty grave mistakes, at evidenced by the fact that Pete Hegseth is Secretary of Defense.
Speaker: Don't even get me started on RFK. Yeah, RFK, yeah. Because I got a lot big rant I can give you just for today, and we don't want to do that because we get very off topic. We don't want to add another like hour to the episode.
Speaker: But even so, like i compared to like what Mike Johnson did, it's – Just like night and day. But even so, the the the Senate it is in a pretty bad state, too. And what's crazy is in my lifetime, it wasn't like this always.
Speaker: no You used to have an adversarial relationship within the same party. That was a normal thing. And also, Joe Biden led the confirmation hearings for Clarence Thomas. yeah The Democrats were in power in the Senate. There is simply zero possibility that a Democratic Senate would approve I think anybody for a Republican to be on the Supreme Court and the same thing for for Republicans. I'm guessing that we're going to get into a a time where unless you have your party control of the Senate, you are not going to get a Supreme Court nominee in.
Speaker: Yeah, i'm I think it's safe to say that. And you I don't like that, but I think it's a net it's an inevitability until we have some sort of Supreme Court reform. because right now it's a disaster. And I'm not saying that like each of the individuals on the Supreme Court are disasters. you know I actually think Amy Coney Barrett acts in good faith. I might disagree with Neil Gorstuch on a lot of things, but I think he has a judicial philosophy that's unique.
Speaker: And I think it's important to have- have number of disasters. Let's say that. Sure. You could make the argument for sure that Alito and Thomas are very partisan judges, and I wouldn't disagree with you there.
Speaker: um But I do think it's important for there to be diversity when it comes to judicial philosophy, because, again, these things aren't cut and dry. So to circle back to Myers, this was a 6-3 decision. You had nine justices go through the history, look at the facts on the ground, and then make a determination.
Speaker: And even though that the majority is the one that dictates the precedent, I do think that there's a lot of power in dissents. Because it shows that these issues aren't just cut and dry.
Speaker: Sure. um But again, you know, the impact, like you can talk about Roe in the same way, right? The overturning of Roe was six to three. All these justices pretended to go through all the motions and try to convince us that they were really weighing the...
Speaker: constitutionality. and and And to me, it was an obvious, this is what they want. It was like six characters. I mean, there's famous play from the Italian playwright Pirandello. I don't know if you're familiar with it. One of my favorite playwrights, Nobel Prize winner, by the way. Hopefully our president won't be able to say the same. But any case, famous play, six characters in search of an actor. I think we had six justices in search of a rationale.
Speaker: They knew what they were going to do. yeah They had to figure out a way to to sell it. Right. um And so I think we see a lot of that. And that that doesn't help the court and the the progression of of our approach to constitutionality.
Speaker: So I want to conclude this um discussion regarding unitary executive theory. You know what? It's a fun philosophical discussion and everything, but are actual ramifications to this.
Speaker: Yes. The president is going to be able to have a much larger impact on policymaking. The president is much more nimble than Congress. And when you have a president that is exercising their power without any checks and balances, you are going to get things like the boat strikes. And so let let I want you to lead us into that right now.
Speaker: Sure. I mean, again, this this whole boat strike, again, if i can't imagine anybody isn't familiar with this, but if you haven't been paying attention, the Trump administration has decided that people bringing drugs to the country via boat from South America are narco-terrorists. And because they're narco-terrorists, we can kill them at our own discretion.
Speaker: um And that's to me, problematic in all kinds of ways. um It's just, again, if you talk about core constitutional powers, the power to declare war rests solely with the legislature.
Speaker: um But here, President Trump has said, we're these are a threat to our country, we're going to kill them. um And late I'm really kind of bothered by the fact that the Democrats kind of go along with this. I think a lot of that, they're making a lot of political decisions based on what they think people will are going to support versus if there's any sort of morality involved here. um But then...
Speaker: All of a sudden, there was this second strike, right? There was an ah an attack in September where we blew up a boat. It wasn't completely sunk after the first missile. There were a couple of survivors and we hit him again to kill him, right? Now Democrats are exercised about this. They think this is a horrible thing. um And morally speaking, yeah to to kill the injured and wounded impossible.
Speaker: I suppose, worse, right? We want use just ah a standard word. It's worse than an original an initial strike. mean, it's a war crime, right? We we have these rules reason. We're going to discuss that in a minute, right? because Because I think there's a lot of crime potential crimes involved here, right? But the idea, I think we we we came to an agreement we were talking beforehand that it kind of takes you from one circle of hell down a couple.
Speaker: thanks um and But I'm just very disappointed to see Pretty much most of the Democrats that that I've heard talk about this particular incident. right And we can get into the six people that that said don't obey illegal orders. The seditious six. The seditious six. But the Democrats that have talked directly about this second strike have more or less said, yeah, the first one was okay.
Speaker: um and And I think that that's just a real problem that I especially, I mean, one, constitutionally, but two, morally. I don't like the idea that we are basically acting as policemen here and deciding to kill people.
Speaker: In some ways, it's like policemen we'rere responding to a break-in or a robbery or whatever and just showing up and shooting the criminals, right? Well, they do do that sometimes, unfortunately. And they go to – they get in trouble for it, right? Sometimes.
Speaker: If there's not an an imminent threat, if they just arrested, you know, saw somebody and say, yeah, going to kill you for shoplifting, that would be bad. We wouldn't like that. um But when we're killing drug dealers, it's kind of popular. And it says a lot about who we are as a country. um But it also says a lot about where we're at constitutionally. Yes. So before we have more discussion, i do want to mention that this is an evolving story at the time of this recording.
Speaker: We have seen some disturbing things over the past couple months, though. So, for instance, the the operational commander of Southern Command resigned. That I was good. I'm disappointed that we don't see more resignations across the government for the things that are going on. So that's that's highly unusual, number one. yes um Number two is, again, the fact that we are...
Speaker: striking boats instead of using the coast guard to arrest people. To me, I thought it was very strange that we struck a boat. So this is like not the second strike. It's the second attack.
Speaker: We struck a boat. There were survivors. We took them aboard and then we didn't prosecute them. We sent them to their countries of origin. And I found that very, very weird. And I thought that was really disturbing. Especially in the wake, this is after the second strike. So somebody is like, hey, you know what? This isn't a good idea. right Obviously things changed and now that they don't want they want to pretend they did not.
Speaker: Yeah. So again, i don't think a lot of people have sympathy for drug dealers, which is why Democrats are kind of you know trying to tiptoe around this issue. But you can't declare someone an enemy combatant without reason.
Speaker: And I haven't seen the evidence for drug dealers being narco terrorists. And again, I haven't seen it either. because They do exist, right? mean, if you're a drug dealer and you assassinate judges and civilians and all that, like, yeah, yeah fine. Narco terrorists, but.
Speaker: Well, we can argue about that. as we did before fun Sure. But This, it's just it just seems like someone wanted to flex and wanting create a ah disincentive to Smuggle drugs, which, OK, I mean, it's clearly not working because they keep doing it. yeahp So this is one of many ways that drugs get into the country.
Speaker: Right. If they stopped every boat, it wouldn't stop all the drugs. There are especially after the heat Trump just pardoned the former president of Honduras, who personally facilitated cocaine getting into this country.
Speaker: and we We're going to blow up. And this is where I think the Democrats are really letting anybody who's opposed to this down. It's like you can't politically make some hay out of the fact that we're killing these poor people, basically fishermen, boat pilots, things like people that have no prospects in life and get no no other prospects life. going no prospects in life. That's little dismissive. But no better prospects in life than piloting a boat for a small amount of money. They're not making a large sum out of this. We're killing them.
Speaker: We're letting the kingpins out of jail. And that ought to be something Democrats should be able to do something with. Yeah, I think Democrats in general are a little gun shy, for lack of a better word. Well, that's a bad one. When it comes to crime, you know, in the 2020s, you had the whole defund the police movement. And I legitimately think that they're scared to deal with the immigration issue as well as anything involving crime.
Speaker: And so I can understand the hesitancy. And I think that's why they selectively chose those six people who have either intelligence or military experience to just say, hey, do not follow illegal orders.
Speaker: And lo and behold, the FBI is investigating them for seditious conspiracy, which is... As you do for freedom of speech. That's wild, but... Especially since the Congress is explicitly protected for anything they say in their role as a Congressperson. But hey, who knows? And then threatening threatening to reinstate Mark Kelly into active duty service and court-martialing him. And Pete Hegseth will personally be doing the mil the uniform inspection.
Speaker: Can't forget that, too. I don't think Pete Hegseth could spell uniform, let alone do a uniform inspection. But maybe he'll home maybe he'll draft me to put me in front of ah a court martial board, too. Who knows? um But yeah, and I think, i mean, the the the real, the I think the troubling thing with the boat strikes and all this is just the courts don't seem to have any intention of reigning in the presidency.
Speaker: And the Congress is not willing on the Republican side and not capable on the Democratic side. um And we're kind of in a spot where the unitary executive is just going to do whatever he wants to do.
Speaker: And this is why we should really, really, really hope that um the the house flips in the midterm. So at least there'll be some sort of check. Now, I think the one thing that makes me a bit optimistic is usually it happens, but also the the the country oftentimes doesn't like when somebody has complete and total power with no responsibilities. So I'm hopeful that there's some sort of change just so these kind of decisions get debated.
Speaker: Right. I don't like this decision. I wouldn't like it in any case, but it would be better if the Congress had said if Congress had said, yes, we think this is a good idea. We authorize it. Go ahead. I would still disagree because I don't think the military should be in the role of policemen just killing people randomly because we suspect they're committing crimes. Right. But it would be better if we talked about it.
Speaker: Yeah. If you're only the constitutional order, if you have a discussion, you give them the authorization, but this implicit authorization by just, I can do whatever I want. Yeah. The whole, I can do whatever I want is just not,
Speaker: American, for lack of a better word. it's yeah That's why we have a constitution, to tell the the government what it can and can't do. right The government is not supposed to be able to do whatever it wants. It's supposed to do what is in the best interest of the American people.
Speaker: And I have a hard time believing that blowing up fishermen who pilot these boats for the people who are making a gazillion dollars is in the best interest of the American people.
Speaker: Well, I'm sure they would argue that they've saved billions of lives from all the fentanyl that we do. Oh, they do. every boat Isn't every boat that they blow up, you're saving 250,000 lives or something like that?
Speaker: Ridiculous. Anyways, ah if you made it this far, thank you for listening to us. Congratulations. You deserve a beer. these But I mean, these philosophical discussions may seem boring to a lot of people, but they matter. There are real ramifications to these discussions. And so just keep that in the back of your mind.
Speaker: Yes, I think as a country, the more of these that everybody has, the better off we are. Don't just take what what you know you see and like, oh, well well, the president says. Think about it.
Speaker: Think about what, you know, oh, the Democrats say. So i but think about it. Challenge them with your in with your with your own critical thinking, right? Don't take anybody's words. And your values. Exactly. if if if some If something feels wrong to you, it probably is. right Or at least it's worth talking about. And when when the current administration and the current Congress just want to brush it under the rug, that doesn't do anybody any good service.
Speaker: So anyways, make sure you like, subscribe, tell your friends about this podcast, and we'll see you next time.
