¶ Intro / Opening
Well whiskey, come and fame, my pain, the money, my way.
Why think alone when you can drink it all in with Ricochet's Three Whiskey Happy Hour. Join your bartenders, Steve Hayward, John You, and the International Woman of Mystery, Lucretia where the lapped it up?
And David, ain't you easy on the show? Tap out? Agive me and let that wyloone.
¶ Intro and Steve in Iceland
Welcome everybody to a globe spanning, worldwide edition of the Three Whiskey Happy Hour. Because we're not just located this weekend in California or wherever Lucretia hangs out. But today I think we have to inaugurate Steve Hayward's new title, the International Man of no Mystery. Because Steve, Steve.
Where are you? Where are you? You are?
You might be? This might be the farthest distance any member of the Three Whiskey Happy Hour has journeyed from civilization.
Oh well, that might be right. I'm going to say not the farthest away. I mean, we did do several episodes from Budapest the last couple of years. I am boy, I'm a pretty remote spot though. I am in what passes for the highlands of Iceland. I'm in this tiny little hamlet that looks like the set of the Icelandic version of High Planes Drifter that turns out to be the highest settled, little tiny town in all of Iceland.
It's really it looks ultimately like Mars from the Mars Rover or Nevada, except covered with moss and anyway, it's pretty interesting.
And Steve like, isn't this like the second or third time you have gone back to visit your Viking slash Norwegian Scandinavian four bears? Why do you keep going back to these Baronic paces?
He has no Viking four bears. My maiden name John is Norman, as in the Norman Conquest.
No, I had no idea, Yes, although somebody needs no. Actually, that's that's actually a great title, Lucretia the Norman. It's like, right, you know, well Barth the Death Dealer or something.
Well, yeah, I mean, by the way, we need to tell uh speaking of the Norman conquest, but we need to tell King Charles that England rests on the ancestral lands of the pre Normans. Whoever they were, right, was the Norman conquest England?
Right?
You saw that?
Right?
King Charles went to Canada this week and gave a land acknowledgment. I mean, what if you know, someone pointed out on Twitter, doesn't King Charles understand that his most fervent supporters in America are conservatives who like tradition and monarchy, and the people will be most defended by his never mind, it's it's I've never thought.
Okay, So, Lucretia, you as Lucretia the Norman. I bet you don't even take credit for King Charles because or some carpetbagging German family.
Right, yeah, exactly, anything after you know about ten sixty six doesn't count.
So Lucretia, how are you doing? And what do you make of Steve's strange journeys up North north Way North? Well?
¶ Intellectual Diversity and University Issues
I have to tell you so that this is going to be a bit obscure. Forgive me, but I got an email from a friend talking about that Atlantic article really quick that said the new DEI is conservatism and that you know, College's JOHNS Hopkins, I believe it was is looking to increase the intellectual diversity of its faculty by adding a couple of token conservatives, I guess to the faculty.
So I didn't bother to it is so stupid.
The whole point of DEI is that it was anything but intellectual diversity. But anyway, so this sends it to me and says Hopkins, Hopkins.
Here we come.
And I sent the quote that Steve had included in a sub stect the other day about feminist glaciology, and I said, oh, we could go back to this, because Steve had a wonderful little piece where he didn't he didn't even have to make a joke, he didn't have to be critical. He just let the stupidity of feminist glaciology speak for itself. Is that true, Steve?
Yep, that's right. I mean, the worst thing you can do to these radical academics is give their work wider exposure because it's so absurd. I mean, it makes it clear that luna. Our universities are filled with lunatics, and they get published and they make the most noise. And that's the problem. I maybe we'll get to Harvard John but that's the problem. And I did read the whole article actually Cretia, but we'll postpone that to another time because I know several of the people mentioned in it.
I've actually known it about the JOHNS Hoppin Initiative, which goes back several years. The president Daniels Ron Daniels, I think, said Daniels is the name of the president, and supposedly he was dismayed. Oh left out of that story is as I understand it, He's got a very large contribution, like you know, seven figures from somebody who said, look, you need more political diversity in your faculty, and Daniels said, I agree, and he had meetings apparently, you know, with
people we know. I'm not going to mention specific names right now. A couple are mentioned in the articles, but several that we know in respect or not. But that was three four years ago and nothing has happened. So I think it's all a farce so far, and you know, more to be said later.
¶ Trump's War on Harvard Begins
Great, So why don't we actually, why don't we dive in with the Harvard News first, and then we'll talk about what everyone's talking about today, which is tariff's and the decision of the Quarter of International Trade to stop the Trump tarras. But first, the war with Harvard continues.
The latest news this week just actually right before we started the podcast, news came out that a federal District judge in Boston, Massachusetts, has barred the Trump administration from its effort to I guess the way you explain it is to take away Harvard's right to give out visas to cross the border. And I think Harvard actually specifies that most of them have to go through Lucretia's backyard on the way to Cambridge, Massachusetts. So we'll want to
hear from her about this. They wouldn't, but just the background.
¶ Debating Harvard's Foreign Student Policies
Just give the background, because I don't I give you for the Yeah, let me give the background, because I don't think we uh talked about on the podcast yet. But Lucretia probably works on this. I've worked on this at Berkeley. But people probably don't know that universities, A lot of universities have almost a proxy right from the federal government to give out visas to students that his
visiting researchers. I would say not. The closest review by the Department of Homeland Security and the Trump administration took this away from Harvard, said Harvard's no longer allowed to give out these visas, effectively preventing Harvard from having any foreign students and researchers next year. And one of the things I was shocked to learn is that something like one quarter of the Harvard student body comes from abroad. One quarter of the Harvard not undergraduates, all students, a
lot more a lot of graduate students. So that's one. Another thing that happened this week is that President Trump tweeted out that he was going to take away all of Harvard's grants, which he said were three billion dollars in amount, and then he toyed with the idea of sending them to vocational schools instead the money, causing a lot of discussion this week while Steve's been away. So Lucristiaan,
let's start with you. What do you think about this continuing campaign against Harvard and these two battles, one overgiving student visas, one about taking away Harvard's research grants.
So let me start with the first one, and let me say that at one point I was recruited by a certain agency to.
How should I.
Say this, keeping it very vague, try to discover which Chinese students were likely in Chinese graduate students were likely to be sending intellectual property, sensitive intellectual property back to China. Thinking that you know somebody who is sort of The last person you think of that would care do or anything about that or care it would be someone like me.
But anyway, that's been a problem for a long time, and you said it yourself, John, they have not been nearly as careful or they haven't used any anywhere near the care they should about just letting students in. That's obvious, and the reaction to the fact that we're saying, hey, if you don't like America, if you're gonna come here and try to undermine American values, we don't want you here.
Marco Rubio has been great about.
That, right, But because there's been no care taken over the many years other than let's worry about the Chinese stealing our secrets and solve the problem after it's already unsolvable. The government's been terrible. Trump is trying to turn that around, and of course you know he's starting with Harvard. I do want a aside. It has nothing to do with the fact that Trump couldn't get into Harvard or Bear
and couldn't get into Harvard. First of all, you get into Harvard if you are a legacy or until you know, very recently, if you are the right minority marginalized group. You certainly don't get into Harvard if you're a handsome Asian guy unless you're at least John's age and that. So, you know, there's all this nonsense, all this no right, one more little aside. Steve and I went to the same graduate school, and I actually left that graduate school
because it went into essentially went into receivership. And one of the things that they were doing, John is they were paying for poor students like me with the money of the tuition money from rich Saudi Arabian princes and whatnot, and bringing in a lot of rich Saudi Arabians.
Okay, that's great.
Did get me through graduate school there, and then they weren't leaving. That became the first problem. And then it turned out that they were actually paying other poor graduate students like me. I didn't to write their dissertations because of course they were too stupid to do any of that. Anyway, the whole thing blew up. They shut the department is now gone. It's gone, and so this is not a new thing where you know, rich foreigners pay the tuition of poor people like me. I think it's great. I
¶ Analyzing the Harvard Discrimination Ruling
think it's absolutely wonderful. And I do want to point out to you guys before we got on, we talked about Alison Burrows, who was the Dutch.
Judge judge judge the ruling against Harvard against Trump today. Right.
Yes, she was also the judge who heard the Harvard case in the Students for Fair Admissions, uh and and of course decided in favor of Harvard.
But I mentioned these guys.
That she made a really first dy. It was done with no jury trial, but she made a really dumb ruling, which was that she wasn't going to allow to be put into evidence a number of emails that had gone back and forth between like the dean and the enrollment counselors whatever, making fun of Asian students, and she she didn't allow that to go into evidence in the trial. And then she said there's no evidence of discrimination against
any Asian students at Harvard. And then of course it came out on appeal and made her look like an idiot, which she obviously is, but it didn't obviously hurt her career.
Well, everyone knew that a district court judge from Boston, based in Boston was going to rule in favor of Harvard. Right, that was just a given, just a couple quick facts that are interesting to me. And in a speculation, I caught a note from Charles Murray who said a Harvard class of sixty five I think was Charles, and he looked at his entering class in nineteen sixty one or sixty whatever it was. He said it was ninety eight
percent American in less than two percent foreign students. And as recently I saw somewhere else as nineteen ninety the student body at Harvard was only about ten percent foreign. So the fact that it's now twenty five percent for foreign and I think, by the way you hint, John, that this is probably skewed to the graduate program. So maybe it may be in some of those programs, you know, fifty percent foreign or more. I mentioned this once before in another context, but I think we may find it here.
I think what you'll find is a lot of those people admitted are for you know, the bean counting purposes. People of color. They may be quite able, you know, Indians and you know, I mentioned once before, I think that I had a research assistant from Ghana. Young lady had been to Middlebury and she was really good. She ended up going on to Princeton for graduate school. And it turned out she was from a rich gun In family.
She'd gone to you know, fancy boarding schools in Switzerland, right, so she's probably very able to do high level college work in America. And guess what that's that those universities gets to count them as black for their quota purposes. And some undergraduate colleges like Middlebury and Williams and elsewhere, this has become a complaint for the Black Lives Matters crowd. And of course the politicians do don't want to come
anywhere near this controversy. But if you actually disaggregated the foreign students and compared them to the American student in Midies and so forth, I'll bet it would be yet one more embarrassment for our elite colleges.
Christian, let me fill up on the second point. What do you think about President Trump cutting off all grants
¶ Trump Threatens Harvard's Federal Grants
to Harvard? Can he do that? Is this actually a good idea? So Harvard's response and they hired two very well known Republican lawyers to represent them, including one Robert Hurr.
Actually very clever, oh very clever.
Very clever of Harvard to do that. You know, they say in the president of Harvard sent out blast emails saying, this is going to ruin our ability to do medical research. Look at all the amazing discoveries by Harvard that have lengthened human life spans and done such good for the world. Chretia, what do you think about So.
That's a really interesting question, John, and kind of a bigger question. I was hoping we might get to discuss this week because I've seen it over and over Trump cutting off funds to NPR. We talked about it briefly when we talked about Trump deciding not to Trump's war on the law firms that had participated in prosecuting him before he became president. Again, I believe that you, if you're the president making those kinds of decisions, that you
have to do so in a way that's fair. You couldn't just discriminate against Harvard for no reason and say my kid didn't get in, so you're not getting any money, but to say that you have that Harvard discriminates against Jews, et cetera, and has not taken steps as they've been asked to do to curb anti Semitism at Harvard. And if you don't do that, we will stop, we will stop federal money going to you in research grants. That's been done before. It just went the other way, right,
it went the other way. Nobody questioned that the court could, for instance, excuse me, that the president could, for instance, an administration could say to I'll say Bob Jones University, but make up what they didn't do, which was if they discriminate against blacks and say we don't want any blacks in our university. Nobody would have even blinked an I if the administration at the time it said you're not getting any federal grants from us, then I mean they went.
Much much further.
No pelgrants, no student loans, etc. So what Trump is doing from a purely legal point of view is absolutely fine. It's the political fight that matters, right, and how he comes down on.
That well stee So I think there's a great irony
¶ Using Pressure to Change Universities
at work here if you go back in the record, as they say, to the late forties and early fifties, when you know Van ver Bush first set out our science strategy for the federal government and the involved spending research dollars through universities for science research right technical research, and then again with the Secondary Education Act whatever it was in nineteen five fifty eight, after the spot Nick crisis, Right,
we need more scientists. Around those years, the almost all of the presidents of Ivy League colleges said, we're not sure this is a good idea because federal funding will come with federal strings and maybe political domination from Washington, so we're not sure that. But on the other hand, the money was just too lucrative and the purpose was seemed so straightforward and sensible, right, more scientists, more scientific research, that they succummed and went with it. So now all
of a sudden, look where we are. I'll add one more thing here to bolster Lucreatia's point. Stephen Pinker, who is You know, he's some interesting guy. He's actually kind of a liberal, but he's descended from the left and resisted the left at Harvard. He had an article in The New York Times a few days ago saying this
is terrible what Trump is doing. But then he spent like three or four paragraphs saying, but I want to remind you, over the last six seven years, I've been fighting wokeriy at Harvard, and I've been saying we need more intellectual diversity. I've been fighting against quotas, this, this, and this, And when he got to the end of his litany about how Harvard's imperfect, I thought, and yes, what good has all that done? What changes have been made? None?
Harvard still gets an f from the Foundation for Individual Rights and Expression for being the worst campus in the country for free speech. And so the point is is that nothing is going to change until the universities get the metaphysical metaphorical equivalent of a two by four across the head. And that's what Trump is doing. I'm sure they're going to affect some useful medical research and other
scientific research. I'm sure if this spreads. By the way, John, you know, some of the best students that I've met at Berkeley Law have been some of these Raeli students who come over in the LLLM program, right, And they're usually really good and really sensible and sound, and it'd be a shame if they're excluded from our universities. But things are so bad with the universities that I agree completely little Cretia that you know, the time for maximum
pressure has arrived. And again the fact that the universities are fine the federal pressure when they agree with what the federal government wants him to do, so they really don't have much of a leg to stand on to complain. Now, it seems to me.
¶ More Arrows in Trump's Quiver
So quick in question before we move on to Tariff's Lucretia's favorite subject, mind you, but what else could Trump do? So I both of you say this is part of a almost like a cultural fight between Trump and the groups in society he represents and higher education inc. Right, what else could Trump? Do? You know that Trump does seem to have Harvard and other universities on the back foot,
but they are fighting. They are Harvard is fighting back, right, They've launched lawsuits, they've launched a I'm sure they're spending a lot of money on a big PR campaign. You're seeing Steve saying, you're seeing the effects and various you know where other students gonna go tapped me to Israeli students. What could Trump do next, Lucretia.
Well, remember that he's gotten Congress to increase the tax on endowments or potentially, I mean, he's not doing that on his own, but Congress would have never have decided to do such a thing had Trump not pushed this taxing tuition I mean, it's really all a matter of going after going after Harvard from the point of view of legitimate exercises of federal power, not all presidential power. But you know, again getting Congress to do some of
these things too. But Trump leading the way means that Congress, if Congress goes along with it, that does actually change the dynamic a little bit. I think that that Harvard will keep fighting. I saw on an article this morning, I think it was by Turley, Jonathan Turley, who said that this is a This is Trump is Grant and Harvard is the Confederacy, and basically Trump is likely even though he's likely to lose some just like Grant did.
This is a war of attrition, and from that point of view, Trump has considerably more resources at his disposal than Harvard does.
Uh.
Indeed, I mean, what about what other what are errors are in the Trump quiver waiting to be well?
I think, well, something that he's already doing apparently, but I think should be broadened is Trump has said we want to put a limit of fifteen percent on overhead for federal grants, which seems like reasonable fee to me, and so we know some are much higher than that. But I think it should be broadened and make an explicit war on administrative bloat. And I don't know what the legal grounds for that would be. I mean, my
other thought is you price controls on tuition increases. I don't think the president has authority to do that, and it would require an Act of Congress. But I still think that again, some threats about the absolutely undisplicant and profligate spending of the universities ought to be a major target. And by the way, there is a tribute to the
middle class. You know, it used to be that you could even you know, private university forty fifty years ago, if you worked hard at a summer job, you could pretty much pay your full year's tuition and room and board. Now it's not even remotely possible for someone who wants to do that, even with some financial aid. And that's the fault of the universities and the federal government subsidizing
your student loans and things like that. So I think maximum pressure on the university is to cut their straight bloat and cut their costs. But Mitch Daniels has proved it's not hard to do. You know, Purdue froze their tuition what fifteen years ago now and hasn't raised it once. It's not hard to do, it's just the other collologists won't do it, so make them do it.
¶ Administrative Bloat and University Costs
Well, I would never underestimate the amount of money that is spent on administrative bloat, not all of which is DEI, but much of it is. And I just want to tell you that I was meeting with my university CFO. And of course, you know, my college has had lots of money. The universities now two hundred and seventy million dollars in debt, two hundred and seventy million dollars.
Because they're just the idiots.
But anyway, so I said, well, because this is a few months ago, I said, you know the fact that you have to fire all of those DEI pro vice provos and assistant provos and assistant deans and this and that. I said, I want to save you a lot of money,
shouldn't it. You know, no, no answer. And then, of course, because what's happened except in my college, is that all of those all of those people got new jobs that are belonging in community oriented instead of they don't have DEI because those are the buzzwords that they search for on web pages and so on. But you know, they didn't get rid of any of those people when they could have, And so I don't feel sorry for him. I don't.
You know, it's ridiculous. I don't.
Okay, So Trump's going to continue you heard it here. First, Trump will continue hitting universities in the pocketbook, which is where they really really live. So let's move to an their pocketbook issue, which is tariffs. So just late yesterday,
¶ Court of International Trade Ruling on Tariffs
the Court of International Trade. Let me explain a very obscure but still federal court that exists to essentially rule only on trade issues. So, for example, if you think some country is cheating you in their imports and should get some kind of extra duty put on their products, you go to the Court of a national Trader. You think your product's been misclassified and is in the wrong tariff schedule, you go to the Court of in National Trade. I'm not sure why it's even a court. I don't
know why you need a court for this. I'm not sure why it's an Article three court. Why these are lifetime federal judicial appointments.
Wait, John, are they lifetime appointments or are they That's.
Another weird thing that's another weird thing. These are Article three federal judges. You would have thought these people would be more like immigration judges or something.
Well, let me ask a question here, just for information purposes, because I mean, I thought under Article three that the clause that Congress and create inferior courts, Man, there could be courts that weren't, you know, Article three lifetime tenures, for example, the court.
Of Yeah, that's a different power.
Well is that okay?
And it's a good conservative, Steve, it's a good conservative. Your instinct is right that why are there any of these non lifetime court federal courts at all? They seem unconstitutional?
Well, I think i'm.
They're generally Article one courts, right, is what they are.
Generally Article what we call Article one courts, and conservatives have long thought these things were unconstitutional.
Just another quick question is that the Court of Federal Claims, which is where you go most of the time, it's for contract disbuse with the federal government. If you have a contract with the federal government, you take it there. But it has been a quarter over the years that heard some takings claims back in the eighties that you know, under Lauren Smith when he was the chief judge. Is that an Article one court or an Article three court?
Yes, this is the weird thing. If you have a case where the government breaks a contract with you or takes your property, you go to a non Article three court, But if you have stupid trade dispute you go to an Article three court. It makes no sense. Okay, John, Before, can I just explain the larger constitution. This is a really interesting constitutional question that conservatives in general don't like
what Congress has done, although some like Renquists do. Actually, this might be a positivist versus natural law thing now they think about it. I never thought of it that way. So you could Steve point to the right power. The Constitution says Congress can create inferior tribunals. A conservative would say, then, I think, well, every time Congress creates one that's a
federal court and gets the judge gets lifetime protection. Can only be repoved through impeachment if they if they don't engage in you know, you say, they engage in un good behavior and bad behavior.
Right.
But in the late nineteenth century, this is a progressive era thing. Congress started creating courts, but they didn't give
¶ Constitutional Debate on Federal Courts
them the protections of Article three. These judges, So today the biggest one is immigration courts, but you also mentioned one to Steve, the Court of Federal Claims.
So they're maritime course.
No, they're not maritime court. There's a thing called maritime jurisdiction. But they're not special like they're prize There used to be prize courts, right. But so conservatives have long struggled with this. They've said, like, how can Congress create judges and courts but doesn't give them lifetime tenure like the Court of Federal Claims. Those judges have a set term of years, and so doesn't that mean those judges can be pressured and controlled by Congress and the president. Why
do they get to be called judges at all? So that's one thing. On the other hand, there are people like Renkquists who used to say, ah, this is great, because otherwise how would we process He said, every social security case right, every change in social security benefits is a federal right. And he said they'd be impossible to have enough federal judges to do that.
Sorry, so it's a kay.
No, I wasn't trying to interrupt.
I'm just trying to understand.
So the Article one power in Article one, Section eight is to constitute tribunals inferior to the Supreme Court. The Article three power is the judicial power of the United States. The judicial power of the United States shall be in vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and established. So I think what you were saying is is that
you shouldn't consider those two separate powers. That the definition of the judicial power is any any court that exercises judicial power would come under Article three. And it just makes it clear that it's Congress that is the one who creates those It says it twice basically, right.
As I say, Conservatives think about it is legal concerns would say, well, it's just like the executive power. Congress can create agencies, but once they're agencies, then the President controls them when they become executive in nature, and they have to run along the same they run in the same way, same with the provision Steve mentioned. Congress can create courts, but once they're courts, they have to operate
under Article three. And because of the progressive era, we have these bizarre courts, but they don't operate within Article three they operate, just however Congress chooses to tell them to operate.
Well, let's go back to your trade court for just a minute. Then I'm going to play Devil's advocate here. If that's the case, then a your trade court, what's it called again? International court?
What's it called Order of International Trade?
The cit see ida.
Then in fact it should be an Article three court. And isn't Congress's power over the anything below the Supreme Court plenary in the sense that as long as it is in fact a so what the judicial power extends to an Article three which is in section two, all of those different descriptions of the kinds of cases the court is allowed to hear, it's your courts are allowed to hear. Then then Congress can do pretty much what
it wants to. It's not necessarily held, for instance, to the judicial system created and the Judiciaryict of seventeen eighty nine and eighteen oh one, and on and on and on. Is that an unfair way of looking at it?
No, I mean, I think you're about to be hired as a clerk on the Court of International Trade. Not necessarily a good idea.
I'm just saying, I'm just kids.
No. The judges on the Federal Court of a nature often teased about this because I know one or two of them, and I always say to them, I don't understand why you're a court. I agree with you, Lucretia. If you're going to be a court, you should have lifetime tenure. You should be a federal court. Why do we need a court to adjust tariff schedules is beyond me, That's what I mean. There's no real federal rights at issue here.
It's not well, we seem to be.
We seem to be at the point.
Sorry, we've seing to be at the point where I expect any day now the judge Wattner, the People's Court is going to hand down a ruling against Trump.
Yeah, that's that's the next point. But then let me
¶ Congressional Power Over Courts and Impeachment
go one step for last time we talked about this, and Steve actually almost cut the whole thing, but we didn't really get to finish. If if Congress has plenary power over the district courts and the appellate courts, even though we have long traditions of them operating a certain way and being organized in a certain way, could not Congress pass a law completely or redefining a case in
controversy and parties before the court. In other words, couldn't Congress quite easily pass a law forbidding universal injunctions by district courts? I mean that is within their power?
Correct?
I would think so, But there is a whole court. I mean Lucretia's usual asks a very simple sounds like a very simple question, but it is not. There's a whole course on this question in law school called federal courts, because what they actually the harder issue is, suppose Congress just said the lower courts can't hear immigration cases. Right, We're gonna write, you know, how far could Congress go in? And could they do that to the Supreme Court too? Could they do it by saying there will be no
appeals to the Supreme Court right in immigration cases? There's literally a whole course about this subject about how far can Congress go and its control of the courts. I tend to be a congress can like you said, the creature has pleundary power of those courts, and so they can say you can issue certain kinds of injunctions but not others. You can hear certain kinds of cases but not others. I would tell you ninety five I think percent.
I would bet of constitutional law professors believe, however, that there is something they call the essential functions thesis, that there's some essential function of the federal course that cannot be taken way by Congress. Congress can create the court, but there's some right, some nub that Congress can't go and changing their central function. Now where that comes from and what it is is totally seems like, you know whatever, I the beholder, go ahead, the creature, then we'll get to this.
Yeah, I know, I'm sorry, I'm really taking this.
This is far. Let me tell listeners, this is far more interesting than the decision, believe me, But go ahead.
So the other day there was an article Steve and I discussed it briefly before you came on by Mark Mark Halprin in the Wall Street Journal, and one of the things he said, I wish I had the article in front of me. He said something really dumb, which was that after you know that, then all these universal injunctions, Yeah, maybe they weren't such a great idea.
The left.
The left is guilty of ignoring the Constitution. The right is guilty of ignoring the Constitution.
But then he.
Chastised, I'm not exactly sure whom I guess the right in general for talking about impeaching these federal judges who were issuing universal injunctions against the Trump administration even though the things were popular, etcetera, etcetera. And he made this really stupid argument, talking about impeaching and other kinds of ways of fighting back against the court instead of just upholding the Constitution and gracefully taking the loss. Something along
those lines. What a stupid thing to say. And it reminds me of the discussion you and I had about the exceptions clause. You may not want judges to be impeached every time they make an unpopular decision, but there's nothing in the Constitution that prevents that. It is a perfectly legitimate exercise of Congress, the power of Congress to impeach and convict a judge. We're not even sure why for bad behavior.
You know, that was the.
Whole debate way back in the early eighteen hundreds about whether you had to impeach a judge for high crimes and misdemeanors.
Or you could just do it because you didn't like his rulings.
And they decided I guess sort of in the favor of a more exacting standard, but it's not clear if the Constitution requires that. Impeachment seems to be one of those very important checks on the court that our founding fathers established, along with the exceptions clause, neither of which are used to check the court in any way, shape or form.
I mean, I think that's fair that the idea we don't impeach judges because we disagree with the decisions is not in the Constitution as much as it's just something that we've had since the Jefferson impeachments failed. And you know, that's more political norm than you know, claim the Constitution prohibits it. And there are people who've said, why doesn't bad behavior include the idea of getting something deliberately wrong
or really wrong or abusing your powers. So there's a difference between you know, getting a hard question of law right and a judge, you know, seizing legislative power. Well, it's executive power, perfectly fair, Yeah, exactly.
But look, it all goes back to that Wiley John Marshall. If he had found and and issued a rid of man damus for Jefferson to deliver the commission that will be in myberry. Maybe he would have been impeached and the president wouldn't have been respect for judicial complete juditional independence. But maybe we'd be impeaching judges left and right since.
The Remember Marshall was so concerned about the possibility of setting the precedent of using impeachment to get rid of judges for political reasons that he was ready to give up entirely the appellate jurisdiction of the Supreme Court.
I don't remember that part, but I do know our late friend Michael Yulman, our late friend Michael Uman Yulman used to say, you know, marshall worship is out of hand or there's a contrary case to be made about him, and he liked to do that sort of thing. But I but, but, John, I mean.
I think it's more question of what's good government. And I think it is good that we don't impeach judges for bad decisions. Just it's good. Then the Federal I just think it's good the Federal Reserve Board is independent of political control, even though I don't think constitutionally it is. It's a yeah, but away, let me let's get to the substant decision.
We get interesting.
Issue, right, Yeah, you know, I am the og Neo kan as you said, and I was at the Neo con conclave. As Steve said, it's the only voting member left.
¶ Analyzing the Tariff Decision's Weakness
I think they're at the conclave.
So but let's let me let's let me describe the substance of the decision and get your thoughts because if you were I actually have to say, if you were a supporter of Trump, this is not such a bad decision because it's so badly done that his chances on appeal actually really could I'm very surprised by how, you know, weak this decision is. So the decision, says uh, And
it goes back to Nixon, Steve's favorite president. For a law that will not be named, but basically sad there was a law called the Trading with the Enemy Act of nineteen seventeen, classic Woodrow Wilson progressive law. It said basically that the president can impose almost any economic sanction or any economic measure in the event of war national emergency.
And what note that was the law years go ahead, Well, Roosevelt from Roosevelt invoked that law to do the bank holiday in nineteen thirty three.
What yes, so, yeah, presidents started saying national emergency. I can yes, go off the gold standard. See this was well, I was heavily abused by FDR when he took office. And so Nixon basically tried to impose tariffs under this law called the TUIA. It's called and so after and this is one of the Watergate reforms, the Congress passed the IEPA law, and that's the law it's issued today, the International Economic Emergency Powers Act AIPA of nineteen seventy seven.
Oh you know, that was going to be my sixth law of jurisprudence that we'd get to is that any law passed in the nineteen seventies is a bad laws. Just like yah, yeah, set it's too easy, Yeah, too easy, too easy. But you know, so this court held. So President Trump said, triggered, he said there's a national emergency
because of these. He actually issued two that irrelevant. One was the trafficking infentanyl and drugs and drug cartels and illegal aliens across our northern and southern borders through Canada, Mexico, and because of China. So that's one set of tariffs and then another set and those parts were just named a Canada Mexico and China. Then there was another set of tariffs, which the court calls worldwide tariffs, where right Trump triggered a national emergency. Said it was because of
the trade deficit. And if you remember, put tariffs on every country in the world, and you know, with different variations. So the court yesterday struck them both down and said, and here's the weird logic of it. It said, Uh, the ip A law could not possibly give Trump or any president this power, because it did, it would be too broad a power. And if it's this broad of power,
we don't think Congress would have done that. We don't think even though the law says the president is allowed to regulate any international transaction with a country that he specifies an event of an international emergency that he declares, so this is this is so that's what. Uh. And then the second thing, and it gets even worse. So the law says that the president's allowed to issue these kinds of orders in order to deal with an international emergency.
The court says, tariffs don't deal with the trade deficit. And I'm sorry, let me freeze that. Tariffs don't deal with the trafficking issues. Tariffs aren't going to reduce fentanyl. Tariffs aren't going to reduce the movement by drug cartels and terrorist groups across our borders. So the court actually said deals with an international emergency is not met here. This is the most bit. I actually think this is such a weak opinion when you when you hear the
actual logic of the court. And so that's another reason I was teasing when lucushe is saying, why are you saying these are bof of course, I was like, here's a good example. These are judges who spend all their dial time saying is this important? All like an educational product? Are they under the rife tariff schedules? They can't deal with these questions of fundamental importance?
Right?
This is a fundamental question of And Steve mentioned this when we were talking about this case earlier. Steve said, is this a non delegation doctrine case?
Right?
Is this like Scheckter and the sick Chicken case? It is, but this court totally missed it, and they totally there's and one last thing I'll shut up is the Supreme Court is set in a case called Curtis right that the non delegation doctrine does not apply in foreign affairs. This case is not mentioned in the decision at all. So that's why when I was starting this whole out thing out the Crucia, I was like, why is this thing a court? Who are these people who are on
this court? Why do we have judges, you know, looking at dolls and tariff schedules, hearing the most important constitutional questions of the day. Anyway, So Steve, why don't you go ahead? Since you, I think are going to be under AEPA sanctions soon and not allowed back into the country. But we're obviously an agent for some Norwegian Scandinavian power crossing our borders at will.
¶ Icelandic Exports and Tariff Implications
Yeah, I'm going to illegally import puffins. You know you can actually gets here and.
Actually, Steve, since you're there, Steve, since you're there, I got I got a trivic question. I'm curious what is Iceland's number one export to the United States?
I have no idea. Do you know what it is?
Really? No, you don't know. No, I don't know, but I'll find out in a second.
Okase, really cool?
Probably fish, I don't know it's the.
Export here, You're gonna laugh. The top export is aluminum.
Oh that that does not surprise me.
Number two, Number two, Number two, you're right, fish file at Yeah, and then number three this one. I really don't get this orthopedic appliances.
I don't get that either. Uh. The aluminum, so you know, they have tons of electricity here from geothermal and hydro. It's very cheap. And because aluminum needs so much electricity to smelt, this is one of the dominant producers. And I've drove driven by a couple of enormous aluminum factories, so that that that's boring stuff.
Look my first and I just one one one cemiment. Last year fish filets did overtake aluminum. So last year fish filets.
Were which kind of fish they like?
Atlantic char is very popular here.
I find I find fish and effeminate food to eat, so I don't eat it.
So I don't distinguish between the kinds of fish.
John, So, did you knowallops?
Yeah? I mean yeah, the McDonald's fish fillet is not so bad.
Well, see, while we're digressing, John, Uh, there are no McDonald's in Iceland. What I don't we invade.
We're ready to invade, because we don't invade countries that have McDonald's.
Right, and there's there's a rule number six.
Yeah, well that's the there are no mosquitos here either, which I think is also kind of interesting.
So uh okay, So Steve, what do you think you think you don't have to get into these decisions if you don't want to. What do you think about the tariff fish altogether? Too?
Well, first of all, I mean, I don't care for tariffs, although I'm, again like other people, willing to give Trump some leeway on this because it's just interesting.
Because he's winning on it.
Well, I think that I think there's a chance that we will never I won't get off on this general field theory I have these days. But my thought is, ironically this make it may make it more likely that Trump's tariff powers survive, because this is such a crazy opinion from this obscure court. Because I think, if you know, our friend fil Hamburger's group has brought a suit through regular federal court saying this is an improper delegation of power.
And I think if a a federal court or even the Supreme Court said yeah, Congress can't delegate those kind of broad powers of regulating foreign commerce, and I first thought of immediately without getting into you know, the filings and all the rest of that, or that opinion that this is Curtis right and Scheckter all over again. And I think it is too broad a power for a president to have if we want massive tariffs or some
sort of schedule to try and shake things up. I do think, you know, Congress, that's an Article one, section eight power. It can't be handed to the president. And I think, you know, Congress should work harder on this, and I think they they don't don't like it to but I think now if it gets to a federal district court, they're gonna say no, that power's fine, and Trump wins, and I think they've just set themselves up for a real thumping, which I like.
So I want to go back to something John said about the court deciding that this was not an appropriate exercise of executive power. For Trump to be not a delegation, but for Trump to be deciding that terrorists were the way to handle fentanyl and the other the other bad things that happened when you have an unlimited immigration You made a comment, So I was telling Steve before he came on. I've been listening to some of our old podcasts I'm actually listening for something specific, but you in
December tenth, I believe it was. You came on back
¶ Court Expertise in National Security
in the day before it was the genuine three whiskey happy hour, and one of the arguments you made was a very good one, was that there are lots of things that the court, in this case, the Supreme Court decides that they just simply do not have the expertise to be deciding, and that generally speaking political issues, that's
not their round. They shouldn't be deciding this. And this seems to me very much along the same lines as what does the Trade Court, the Trade Court know about the dangers of fentanel crossing the border due to illegal immigration, and whether or not that is something that Trump has the judgment to be able to say, yeah, I consider this an emergency. That would seem to me to be also an area of criticism.
For the court.
Then that's not their area of expertise.
Right Am? I making any sense?
John?
No? I think that's the major reason why courts have been so reluctant to ever interfere in foreign affairs questions, And again you see very little respect for that in this judicial decision. How is the court supposed to know what's a threat to national security and what's not. How do they get well, but even the second question is
how does a court know? This is what the court really hung its it's decision on how does the court know what we'll deal with quote unquote the national security problem? Is it tariff's I mean, does a court say, no, you have to send people to the border with guns? That would mean when we would believe you. So that's the other question is how does a court know not just what's the threat, but the proper way to deal with it. Let's go ahead, see start.
Well, look, I mean, you know Alexander Hamilton and Marshall would Bill snort at this opinion for just that reason. I mean, what's the Hamilton's great lines in the Federalists and elsewhere about. You know, when you have a legitimate end, then the means follow to it. And so to say, well, you know you can declare that fentanyls a national emergency seems to me a court can't say no, it's not, but they said instead was. But tariffs aren't the effective
means for dealing with that. That is not a decision under the purview of a court. If we're going to say the president can determine a national emergency, then I think any means available, a lawful means to the president, no court can get in the way of It's the separate question, I think is whether tariffs as an economic policy or as a regulation of commercial policy, can be delegated to the president. And I'm not sure I think about that. I mean, Curtis Right and Scheckter are kind
of separate questions. They both involve commerce. Curtis Right for listeners who don't know it, and I always have to refresh my memory. Involved an embargo that Congress enacted but delegated discretion to the president about how to enforce an arms embargo against Uruguay or somebody who's having a war, and Curtis Right sued saying Congress can't delegate that kind of commercial regulatory power to president. The court said, oh, yes you can, because the president is, that famous phrase,
the sole organ of foreign policy. So let's take it back and restate it. If tariffs are a matter of foreign policy, then I think Trump's on very solid ground. If it's a matter of economic policy and purely trade policy, I think less so. But I think this decision as bad as this has made it likely that Trump's going to win the legal battle over this ago. I'm not sure I would have said that.
¶ Is the Tariff War a Winning Issue?
Can I ask you both before we turn to our last subject, which is a special treat for listeners, which is going to theory at all? Oh, we ran out of time. I ask you both. Is this a winning is this still? Does this still continue? I mean continue might be the wrong word. Is this a winning issue for Trump? This whole tariff war? Because one thing people uh so already the stories are appearing saying, oh this actually this decision gives Trump a back door out of
a losing political battle. Because I think one thing that decision would say, and I actually I think people could not complain about this from either side, is if you said, at the very least, I allows to allows you to target a single country, and so what if this all turns into a tariff war with China? Right? And that?
And that's really something you can do in Darie. But Trump could say, Okay, well, I'm just going to keep tariffs on China high, and keep them high on the European Union, and I have to drop them on everybody else, you know, Senegal and the Puffins in Iceland or whatever. Find theo's aren't that important?
Right?
Hasn't that been the point all along? Is if there is a grand strategy behind this, it's not necessarily to punish every ally and sub ally or whatever you want to call it across the world, but actually to get everybody on the same page regarding China. And you know, I mean, I actually think that Trump has been doing pretty well in this whole tariff thing lately, that they're
coming closer and closer. So the stock market fell drastically on Liberation excuse me, Liberation Day, and then every time Trump, even somebody from the Trump administration even talks to a European ally or something like that about easing the tariffs, the stock market goes crazy. So you know, it's I don't see Trump ever having lost anything on this whole tariff matter. I think he's going to come out on top regardless. But I think his goal is China.
I think it's high risk but high reward. Let's sort of step back a man. And by the way, I think there's a parallel here with our first topic about Harvard trying to play nice on trade for what the last forty to fifty years hasn't worked very well. We try to play nice and we make very little progress on it. And so Trump is doing to the world trading system what he's doing to Harvard a two by four across the head. Now, I say it's high risk,
and it's creating a lot of volatility. Volatility is usually bad. On the other hand, here again, I'm going to go back to one of my grand historical analogies just to annoy Lucretia. You know, if you go back to Roosevelt the New Deal, a lot of his measures are struck down.
We've already mentioned the Checkter case with a National Recovery Act and other cases like that, and his policies were inconsistent, incoherent, unstable, unsound, counterproductive by the way, right, I mean, I think the increasing opinion of economic historians that most of the New Deal lengthened the depression. On the other hand, what was the result of that, The New Deal Coalition was more popular than ever and was cemented in place for years.
That's where I'm sitting here, thinking that, you know, Trump may be onto something here. It may be a roller coaster ride, but at the end of all this, I think he may succeed in reshaping the political economy of our own country in the world. China's just one part of that, I think, Lucretia, I think it's a I think there's a broader game of foot here that's actually
more coherent, although unorthodox and unpredictable. And by the way, that's why I also think to put a political point that Republicans may not pay a price in the elections next year, just as Roosevelt in nineteen thirty four, the Democrats had big gains in the off year election, one of the rare times that's ever happened, and that's because people said, well, we don't know what's going on, but there's something different here, and we kind of like the
looks of things and that vibe, a vibe shift. I love the way we sail that right. More can we said about all that? But we're we're getting close to
¶ Concluding Remarks and Humor
the end of our time.
I think, yes, I listen, loyal listeners, if you made it to the end, I'm sorry. Our actual original game plans, we were going to spend half the episode talking about Steve and Lucretia's view that there's no such thing as political theory, which I would love to talk about. Hopefully we're going to talk about next episode or one of our summer episodes, but for now we have actually hit an hour just talking about beating up on Harvard and
beating up on China. I mean, we could spend hours at that, or or testing Steve's knowledge of exports to the United States from other obscure, tiny, you know, North Atlantic countries.
We didn't even talk about how the Democratic Party is going to woo you masculine men, you too, I know, yes, by this incredibly big fat Mexican lesbian, bisexual, asexual woman is leading the charge.
She knows men.
It's worse than that, John, I can't believe I missed the story. Save it for next week.
We'll save it.
But when it does, allow me to make a few Babylon be headlines.
Yes, go ahead, the creature Babylon b headlines.
So California unveil's massive new escape room called California.
You gotta like that one. We didn't talk about this either.
Biden Macrone team up to form support group for battered and abused world leaders didn't.
I did not get that until I looked up what I was talking about and I saw that video. Of his wife punching him in the face. That was unbelievable.
Yeah, yeah, yeah, who knows that whole relationship, That whole thing is just as weird as it comes. I'm sorry, she's what twenty five years older.
Than he is.
I don't know if it's that sposed to have a good right jab Yeah, yeah, this.
One's for you.
John, South African president says skulls of murdered white farmers just Halloween decorations.
The Christian I have been having an exchange the South African ambush. We should post it maybe, I don't know. It's been fun.
If we got a little more serious about it, it might be fun. Okay, I almost done. American students unsure who to cheat off of after Trump revokes Chinese student visas.
I love that's pretty good.
I thought you wouldn't so I could use that since I brought it up. It's a picture of Pete Booty whatever his name is, uh with a beard, and it says DEM's unveiled plan to win back men by having gay guy grow a beard. Finally, how how Swarming House because Steve loves these how Swarming Party kicks off with land acknowledgement for the Johnson's who had lived there since twenty nineteen. Oh yeah, you have to think that one through. Sorry, Okay, I'm done.
Great, Well, let me close the show with always Drink your Whiskey, Meat and Steve, what is the latest Ai hallucinogenic home Haikou?
¶ AI Generated Norse Epic Poem
Well? I asked Ai first because of where I am for some Norse epic poetry versions, and boy did I get some great ones. So here's just one stanza of what it's going to be weeks of great material, and it goes as follows, harken ye hall dwellers, to horns filled with fire, as I sing of three warriors, bold in desire, not for blood, not for blade, nor for Odin's dread mte, but for whiskey and laughter and podcasting.
Right, that was pretty that.
Ricochet join the conversation