More Cases...Less Government Control. Tim Sandefur Talks to A&G

Apparently the yacht wars are on among the super rich to have the coolest yacht out there. And if you've never been to San Diego and checked out what a yacht can be, because I didn't know what a yacht really could be until I saw the ones that pull up in in San Diego. The top of the top. The best ones have a helicopter. Yeah, they've got a freaking helicopter on their yacht. Just amazing. And usually they're

from some foreign land. What was the one super rich guy that we he's got like a yacht on his yacht. Take him to the helicopter or something that you can't remember got a bigger boat than you'll ever own in your life. On top of his giant boat that takes him to wherever with the helicopter. I don't know. I don't even know how it worked. Yeah, yeah, well please

welcome back to the Armstrong and Getty Show. Tim the lawyer Sanda for Tim is the Vice President for Litigation with the Goldwater Institute, adjunct scholar with Cato Institute, and the author of many fabulous books, including The Right Turn of Living, The Permission Society, and Cornerstone of Liberty, Property Rights in twenty Century America Again, among others. Tim, how are you, sir? H You know, man, I don't know how people are so rich. I still feel rich when

I go to Red Lobster for dinner. Yeah, I know, I know, I know. How was the kid? Red Lobster was too expensive? So nowadays, you know, I feel like big fancy lawyer man when I go in there. I have all about expectations, my friend. Yeah, and we're in what you grew up with? Um? Hey, did you watch Loki by the way? Are you and I know you're like a Star Trek guy. You're a Simpsons guy? Are you like a Marvel comics guy, did you watch Loki by any chance? No? I despise comic books and all

comic book movies. I cannot stand up. I'm perfectly comfortable with that that emotion. I just wondered if you had seen the Simpsons version of Loki. They did like a three minute short that is hilarious. It's on Disney. They are typically better than the original sources. Um. So I was reading this week, how it looks like this commission is actually gonna happen that the Biden administration put together to take a look at the Supreme Court and some

possible changes to the Supreme Court. How many justice in? You know? Immediately um, if you're if you're anti Biden or a tide Democrat, immediately go to he's trying to pack the court. But there is discussion of what's the right number. It hasn't always been nine? Um. Should they have term limits? Should you uh have rotating Supreme Court justices with other federal courts? Of a variety of things. What do you think is a sweet spot? What would if you were in charge, and you were put in

charge today of how to compose the Supreme Court? What would you do? I would leave it at nine. I don't think there's any reason to change it. And I think changing it, even if you really are just changing it for non ideological reasons, it nevertheless still opens the door changing it for ideological reasons down the road. So I just think it's a bad idea and and there's no reason to do it. What we really need is more.

We need the Supreme Court to take more cases, and we need the lower courts, we need more judges there. That that often gets ignored how important the intermediate courts, the circuit courts of appeal, those are really really important, and people don't really pay a lot of attention to that because you know, the Supreme Court is always on

the news. To me, the oddest thing that happens with the Supreme Court is that it's just a random how many justices any particular president our administration is going to a point and then it has such an influence. Trump got three, Biden might end up with zero in his first term. Is that Are you okay with the randomness

of that? Although although and to throw it one caveat, they regularly don't end up voting the way whatever president thought they were going to vote exactly and that's that's crucial, because the whole idea of the separation of powers and an independent judiciary is that these are questions that are supposed to be answered based on principles instead of political expediency. That's why we have lifetime tenure, so that the judges are not going to be swayed by temporary political arguments.

And when you boil it down, all these arguments about expanding the court and changing it are all about politics by people who don't accept the fact that there are right and wrong answers in the law. This isn't just the thing about popularity. There are things that are constitutional even though you think they're bad ideas, and there are things that are constitutional even though you think they're good ideas, And the judges are there to tell us just for

the sake of the argument. A twenty year term, wouldn't that have the same net benefit as a lifetime appointment, Yeah, or something along those lines, like an age limit across the board or something. People float those ideas, and I'm not totally against it. I think if people want to amend the Constitution just to accomplish goals like that, that's not necessarily a bad thing. I just don't see any

point to it. I I don't think we've ever I don't think we've had many problems with justices who stayed to the point where their minds went. I mean, there's been one or two, but it's never been a real problem like that, And so I don't I'm not really bothered by the lifetime tenure thing with the One of the problems with a twenty year term, of course, is then that means that when that person's term comes up, that's all anybody talks about at the presidential election. Nobody's

going to talk about the other issues. So it would have effects on politics. Not necessarily saying you can't do it, but it just seems like it's unnecessary. To me. The biggest problem, and we've talked about this with you before, is that the Supreme Court has to do so much that they have a lifting that Congress is supposed to do. And I was reading that might have been something you wrote, but I was reading something a while back on how it used to be believed in Congress that you would

not even introduce able that was unconstitutional. You would talk it over with your your colleagues as to whether or not this would fly constitutionally before you you get into the wrangling of a bill, because you swore an oath. All everybody in Congress swears an oath to the to the Constitution. Now, Congress regularly passes things that they know might be unconstitutional, but they don't care. Oh, they don't

care at all. And and to the extent that they do care, if they don't know, they don't have any real awareness of the of what the Constitution says or doesn't say. We all remember, now, is it ten years ago when when Nancy Pelosi was asked, where in the Constitution does it give the federal government to the authority to control our health care? And her answer was are you serious? Because she had no idea, And and of course that that's a major problem. And that touches on

another major problem. Everybody talks about the Supreme Court, all of the Supreme Court. We gotta be worried about judicial activism, all the courts going out beyond its mount. Nobody ever talks about how vastly more dangerous Congress is. Congress and the President violate your rights every single day of your life. The Court, at most, what the Supreme Court can really do is step in and shut down something that you

think is a good idea. Really, I mean, there are certainly examples of the Supreme Court or other courts going too far and crossing the line, but by comparison to the elected branches of government, the Supreme Court is angelic by comparison, and people never pay attention to that because they think, oh, well, politics, I vote for what I want. No, this is a constitutional problem. These people take oaths to obey and respect the Constitution of the United States, and

they typically thumb their noses at it. It's really unconstable. Or my favorite example is President Bush signing the Bipartisan Campaign Reformact years ago, saying that it was unconstitutional. Can right on said this is unconstitutional, but I'm going to sign it anyway because I'm going to trust that the Supreme Court will do my work for me and strike down the unconstitutional part. No, you take an oath to support and defend the Constitution. You have an obligation to

veto a law that you think is on constitutional. And Obama had one of those two where he regularly said, no, I can't do this, it's un constitutional, uneath and finally got enough pressure from his side to go ahead and do it with an executive order. Tim stand First, the vice president for Litigation for the gold Water Institute. Go ahead, Tim. The obvious example that is docca right the we I when he came out and said I can't just nullify the nation's immigration laws. And then a few months later,

I guess what, I'm just gonna sign this thing. So there's so many things I'd like to talk to you about, um, but in the limit of time we have, I don't know, can you hang around for another segment or what's your schedule look like? All right, Tom, Well, then I have another Supreme Court question. You alluded to the fact that the Supreme Court doesn't take com many cases. We ought

to pay more attention to the circuit courts. What percentages circuit court cases actually make their way to the Supreme Court. The US Supreme Court takes around eighty cases a year, and there is about eight thousand cases that they're asked to take. So they have a miniscule number of the cases that they're that they are as a take. Now, it's true, many of those are just you know, some prisoner who writes out some frivolous thing and sends it

in the mail. But these are a lot of these are crucial constitutional issues that the court ignores for sometimes for decades. There's an issue that I've been trying to get the Supreme Court to take for twenty years or so now and this and and the lower courts disagree on this issue. So you have what they call circuit split, where the lower courts are actually in conflict with one another and the Supreme Court just ignores it. Set the

designated hitter. If I knew what the designated hitter rule was, I would let you, Uh, Tim Sandiford with a Goldwater Institute, why don't we take a quick break and then come back. And I have so enjoyed our email conversation about socialism and George Orwell and the problems of socialism. It wasn't lost on my Tim, on me, Tim. And then in the same day you text Joe some complicated or Well versus socialism thing, but you send me an obscene Willie Nelson joke. So I see where you know? I understand

anyway more? With Tim the lawyer sander for Tim Sanderford's vice president for litigation with the Goldwater Institute, the author of many fine tombs, including uh cornerstone of liberty property rights in the twenty one century America, which I bring up, tim because I want to talk a little bit about economic freedom and in central planning and government distorting markets.

I mean, there have been a couple of obvious examples, whether you know, protecting people who are delinquent on the rent, which you might be in favor of, you might not uh to subsidized housing too, in particular paying people lots of money to stay home, the way that's distorted the labor market. Any comments on the the enhance sut unemployment benefits of the effects of it, it has had. No Yeah, it's a terrible, terrible circumstance that the government has put

us in economically. Every day you drive past rest all these fast fud restaurants that have all these help wanted signs out you business is closed because they don't have any employees. My wife and I went to a restaurant a while back and they told us how straight out we were, sorry, we can't see you because we don't have any any waiters or anything. So the businesses are are ready to get the engine of economics moving again, and instead the government is paying people to to not

to not work. It's a disastrous idea. Well, you shared with me something from I think it was the road to serve them by hiek about what's wrong with say, I don't know poor people need butter. Butter is expensive. We're gonna impose a price cap on butter. Why isn't that a good idea? So in in if you're going to control the market the price of one good, that inevitably forces you to control the rices or the market

for any other good. So if you try to put price controls in place for butter, dairy farmers are going to say, well, we'll find that I'm just gonna make cheese instead. So now you have to put restrictions in place on cheese in order to make sure that people get enough butter. So now you put a restriction on cheese, and the dairy farmer says, well, okay, I'm gonna sell

milk instead. Meanwhile, people who use butter or cheese in their products, you know, cookie makers for instance, they're gonna you know, you're gonna have they're gonna have a problem because they can't get any butter, So their prices are

gonna go way up. Well, now you have to control the prices of cookies on the market, and and then the people who depend on cookies, like coffee shops, they can't get any cookies because there's just shortage now, so their prices are gonna go way up, and they have to control that too. So inevitably, because the market is so interconnected, any effort to control one area of the

market requires you to control the entire market. That's the economic reason why socialism or government controls of any sort inevitably tend toward totalitarian is um. It's not just that there's some that they're as bad guys out there who take over and oh, well, this isn't real socialism, and oh it was just because Stalin was a bad guy, or it's just because Hugo Chavis is a bad guy.

But otherwise, you know, it would have worked in theory. No, in theory, these kinds of government controls do not work as a matter of economic law. And then how does it turn into cautioning descent and and what would seem to be non economic behavior. Well, because necessarily people are going to turn to the black market if they can't get the products and services that they need in the marketplace. They're going to turn to the black market, and you're

going to have to control them. You're gonna have to control what they say, because they're going to tell each other, Hey, you know you, I know where you can get some butter off the market for cheap, you know, So you have to control what they say. And that's even putting aside ideological questions and enemies of the state and the and or the the evil motives of bad guys who

get into power and that sort of thing. Even if you put those things aside, and those are overwhelming concerns in any kind of society like that, you still tend towards totalitarianism because in order to control economic behavior, you have to control speech. You have to troll religious freedom of people who depend on goods and services. You know, if you're gonna if you're gonna prohibit alcohol, for instance, what about Catholics use wine in the mass, for example.

So you're going to have to inevitably control every aspect of individual behavior if you are really going to have government plan your economy. So a lot of things happened during the pandemic, and you know, to be fair, and I think you've talked about this too, there are some pretty tough calls to be made during the pandemic. It was an unusual situation. But I've been talking about this

long form article I read about um. The pandemic was the greatest transfer of wealth from small business to large business. So many small businesses all across the country were forced to shut their doors completely or at least severely restrict while Walmart, Target, and Amazon made the biggest profits they've ever made in their history selling a lot of the same stuff. Well, this is I see two points here.

So the first one is if if the cost of doing business necessarily goes up due to circumstances be on anyone's control, such as a natural disaster, some businesses are more able to absorb that cost, or deal with that cost, or provide people with the things they need at prices, are willing to pay more than others, and those that can't should fail economically, and those that can should succeed economically.

On the other hand, when government comes in with a one size fits all top down we, we bureaucrats, know how to run things better than everybody else does. Problem, then you don't allow the businesses to come up with you in the interesting, unique, unusual ideas for solving the problem that you might not have thought of otherwise. That's the great genius of capitalism is it allows businesses to come up with new ways of solving and addressing problems.

But when the government comes and says no, no, every business in the in the in the county have to shut down at ten pm or something like that, you deprive entrepreneurs of the opportunity to come up with ways of treating their customers safely but still getting them the goods and services they need. Yeah. Imagine if instead of government men dates, we'd unleashed the creativity and passions of the American people to solve these problems in whatever industry,

whatever business. That would have been a wonderful thing to behold. Instead, we got bureaucrats who are monomaniacally focused on COVID nineteen to the exclusion of every single other human concern. Uh. Tim sander Ford, Vice President for Litigation to the Goldwater Institute. It's always so interesting, Tim, Thanks so much for your time, Thanks for having me, guys. Absolutely yeah, that's absolutely right.

There's a big difference between a store of voluntarily closing down because they say, you know, we just don't have enough customers to justify having employees here and having our lights on. Then the government making them close down, and they didn't even have a shot at trying to see if they could serve their customers well. And instead of what that look like, say you've got two weeks to figure this out, how are you going to keep your

people safe? And then watch American creativity flourish. That would have been wonderful instead of awful.