Please welcome to the Armstrong and Getty Show.
The Fabulous Tim Sanderfer, Tim Lawyer, vice president for Litigation with the Goldwater Institute.
Tim, how are you, sir?
I'm great? How are you guys?
Excellent?
I felt a little jiv and pretentious the other day I texted Tim about coming on the show, and I just said, Hey, would you like to come chat about sec versus A v.
Jercasy? And I'm not an attorney.
I don't throw around cases without a description of what they were. I just hope you didn't think I was trying to come off as too big for my britches.
Well, okay, I'll be honest. I immediately ran for Scotus blog to figure out what the heck you were talking about.
That's fine, that's perfect. No.
I mean, I'm glad that you guys are paying attention to this case and to similar cases, because this is one of a group of cases that's going to be addressing the limits of the so called administrative state, of these regulatory agencies that exercise power to write the law in the gate a leged infractions of the law and then hold hearings to determine whether you violated the rule. And the combining executive, judicial, and legislative powers all in one.
And then it's entirely overseen by bureaucrats instead of elected representatives. So you even the idea that you can somehow vote the bums out or something is inapplicable. And that's an issue that is of increasing importance. And that's what's that issue with this case and in these other cases.
What really grabbed me about the case was the Wall Street Journals headline in their opinion section, the Supreme Court considers the right to trial by jury.
That's a legit headline.
Yeah, that's exactly what's going on. So what happens here is so everybody knows that if you're accused of fraud, which is a crime, and the government charges you with that crime, you get a trial where you get a jury of your peers to determine whether you're guilty or not guilty. But instead, what happened here was that this bureaucracy, this agency, the SEC, they promulgated this rule that says, well,
you're not allowed to trade dishonestly by misleading people. And what they're doing is rephrasing the ordinary rule of fraud. But they're rephrasing it in bureaucrats speak. And then they say, and because this is a bureaucratic thing, this is an administrative thing, we don't have to follow the rules that apply in courts. We can just use our administrative process. And that's what they were arguing in the Supreme Court.
They were saying, well, it's basically up to us to choose whether to go to an ordinary court and give you a trial by jury, or whether to proceed in our administrative court, which is overseen by a judge who is being paid by the prosecutor. Honestly, in these agencies, right, so you're not going to win there, and you don't get a jury trial, and it's up to us, the government to decide whether or not to let you have this jury because we've decided to rephrase this as an administrative thing.
Go ahead, Jack, Sorry, I was going to say, I feel like at some point in this conversation maybe you should redo your famous to me, no bad things speecious so everybody fully understands how this whole agency thing works.
All right, let me let.
Me interject a question real quickly, and then we'll it's a Christmas tradition, but getting back to the idea that the government has decided whether I get a jury trial or just this administrative hearing. What are my rights? How do my rights as a defendant differ? Is that even the right word? What are the rules of evidence? I mean, what's the story with these hearings?
These hearings follow something similar. It looks very much like an ordinary trial. But that is not always the case, and particularly at the state level, because you know, we always talk at these federal bureaucracies and forget that states have their own bureaucraphies. Also in state bureaucracies, they very often do what they call a quote informal hearing end quote, and they try to make it sound like this is a good thing for you. Oh, we're just going to
have an informal hearing. We just get together to talk. You don't have to bring your lawyer, which of course should immediately set off the alarms alarm bells in your head, because it means that they don't follow the rules of evidence,
and they don't follow the rules of procedure. They can use hearsay against you, They can use all sorts of evidence that would be barred from a real court in these administrative hearings, and then when you appeal from that into a real court, the judge in the real court is not allowed to consider any other evidence except what was used against you in the administrative hearing. That's how a lot of these hearings work. It's totally unfair and in my view, totally unconstitution I'm.
Glad you made the point that yes, states have jails and the ability to find and confiscate too, so it's not just at the federal level. So in case people don't fully understand how we even got here, give us the Tim Sander for famous No Bad Things speech about how agencies can work.
So let's say I'm running for Congress, right, and I'm my platform is I'm against bad things, And of course everybody's going to vote for me because you're also against bad things. I know you guys are against bad things. There's very f people who are, oh staunchly. So I get elected to office, right, and on my first day in office, sure enough, I'm true to my word. I fulfill my campaign promise. I sit down and I write a bill and No Bad Things Act of twenty twenty three,
and it's two sentences long. It says one there shall be no more bad things.
Two two.
There shall now be a Federal Bad Things Agency, which shall define what is a bad thing, investigate alleged bad things, hold hearings about bad things, and then punish bad things. And then I see I've done it. My bill got passed. I can go home and I can tell all my constituents I look at what I did. I have banned bad things, and I can move on to the next thing. Meanwhile, the bureaucrats get to work. And not only do these bureaucrats operate without you have no control as a voter.
You have no control over these bureaucrats. If they go and do something that is outrageous and it ends up in the newspaper and people get angry about it. I can now hold a hearing and drag the Secretary of Bad Things in front of me and say, shame on you. That's not what I meant when I passed my law. Well,
and I again, I look like a good guy. It's a scheme where the actual law making gets done by these hired bureaucrats, and I, the elected official, can wash my hands of the responsibility but still take all of the credit.
Yeah, and it's so hard to fight against.
Because of that.
So are both parties involved in the growing power of agencies like this.
They absolutely are. It's you mean we often complain about these agencies like the EPA. The EPA was created by Richard Nixon. I mean, this is a Republican as much as a democratic problem. Now, the good thing is from this Jacrasy case that we're talking about in the oral argument, it looked like most of the justices had a real problem with this idea of prosecuting people in an administrative courts without a jury by just pretending that it's something
other than a crime. But Justice Kagan seemed to be fine with it, but the rest of the justices had real problems with it. Justice Kagan, she's got this mindset that, you know, government should be run by experts and the ext of course are the brilliant geniuses who run these administrative agencies, and we should just let them do all the governing and then you know, obey them when they
when they tell us what to do. That's a that's a mindset that is very deeply rooted in Washington, d c. And it's a real problem.
Did she arrive via time machine from the nineteen thirties or something like that.
Well lot out of your your wonderful book Freedom's Theories, which everybody should read.
And a lot of these precedents, these legal precedents do date back to the thirties when these giant administrative agencies were adopted. Now, another case that's coming up very in January, that will be arguing in January is this case called Low or Bright that involves deference to administrative agencies. And difference is this rule that says when an agency interprets its own authority, like you know, the EPA has the authority to prohibit pollution. Now it's okay, So now they're
going to define what is a pollutant. Right when they do that, the judges are supposed to defer to them, just rubber stamp what they say. And that's called Chevron deference. And this is a terrible problem because of course, the bureaucrats interpret their authority as broadly as possible to expand their power, and that means that the ball is always moving in the direction of more and more government control. And it's pretty clear the writing is on the wall
that the Supreme Court doesn't like this anymore. And this this case, this low or bright case is very likely to scale back or pay perhaps even eliminate at least that part of this of this problem.
So a request for one more bit of illumination of the bigger problem we're talking about. I'm trying to remember the name of the case. Those folks who are just trying to build on their little subdivision lot and the EPA claim that they're a wetland.
Can you give folks the uh?
I'll the case of right versus Wrong is.
This goes back to the case of finders versus keepers. This is you're talking about a case called Sacket versus EPA, which has been in the courts for over a decade now. And this is a case where these people wanted to build a house on their on their dry land in a neighborhood in Idaho, and the Feds showed up and said, guess what, it's a wetland and what is a wetland? Well, it doesn't have to be wet and it doesn't have to be land. It can be basically whatever the bureaucrat
says it is. And you can be fined seventy five thousand dollars a day for doing anything that pollutes this alleged wetland, and they said, we don't think it's a wetland. We'd like to have a hearing where we can prove
it's not a wetland. And the EPA said, no, you're not entitled to that, and that went up to the Supreme Court ten years ago and the Supreme Court said no, they get a right to have a hearing, and it went back and it took another decade for them to get back to the Supreme Court on the question of
what the definition of a wetland even is. Now I'm glad to say that my friends at the Pacific Legal Foundation won that case in this this past Supreme Court term, and the Supreme Court unanimously said that the bureaucrats were interpreting the term wetland far too broadly. But it's a real indication of how hard it it is to fight the administrative agency that it took a decade of litigation to get to the point where every Supreme Court justice
said the bureaucrats were wrong. That's amazing And they could not have been done except that our friends at Pacific Legal Foundation represented them for free.
And it would be so frustrating if you were involved in one of these things fighting it and you know you're fined or whatever, your life ruined or whatever. On hold you'd think, Am I in America or not? I meant to be frustrating.
In fact, very question was asked at the Supreme Court. Justice Alito interrupted at one point in the hearing and said, how could this possibly occur in the United States?
Hey, before we let you go. And I don't know how much you want to talk about this or not. Although I follow your Twitter feed, which is also public, you seem to be a pretty big believer that Ukraine losing to Russia or Israel having to hold on to a ceasefire against some massa is a pretty big event in world history.
I do indeed, and I hope the good guys win both of those wars.
Yeah, yeah, it is a big deal.
We have repeatedly in the past five or six years especially, been backing away from defending freedom, and we do it under this ridiculous slogan of oh, we can't fight endless wars. The phrase endless wars is an idiot slogan. All wars are endless until you win them. Life is an endless war against death. Freedom is an endless war against tyranny, and it's about about time we woke up to that.
That's really good.
Well, bullies, as we know from personal experience, bullies will continue pushing until you push back. And Americans have become increasingly reticent to defend the principles that protect their other countries as well as ourselves, on this notion that, well, we shouldn't be the world's policeman. Well, if you're not going to be the world's policeman, somebody else is going to be. It's not like if we stop doing it, nobody's going to do it. It's if we stop doing it,
Vladimir Putin going to do it. If we stop doing it, the Isaola is going to do it, and particularly the Iatola. The Iran has been at war with the United States since nineteen seventy nine. And we like to try and pretend otherwise, and we come up with all sorts of ingenious schemes for pretending otherwise on the theory that, as President Obama liked to say, we can end a war. Well, once again, wars are never ended. There is no such
thing as ending a war. You either win a war, or you lose a war, or you postpone a war. Those are the only three options. Ending a war typically means, as we saw in Afghanistan, typically means literally surrendering to the Taliban, which is what the Trump administration did and which the Biden administration followed through on. And there is no question that that emboldened our enemies and taught them that Americans are not willing to stand up for ourselves
or for Western civilization. And that's why Western civilization has frankly been on the retreat in the past several years, and it's going to continue until people finally insist on putting a stock to it. Thank Heavens, Israel is finally insisting on putting a stop to it, and we need to let them win victory over Hamas. Anybody out there who is concerned about the safety of innocent Palestinians, their
number one demand should be that Hamas surrender immediately. Hamas is responsible for every single civilian death that occurs in this war, and it's because they refuse to surrender and insist on shielding themselves behind civilians. And moral clarity on this point is absolutely essential, not only for Israel, but for Western civilization as a whole. This isn't going to defend itself. We've not been given any guarantees that Rome
and Egypt were not given in their day. And unless we are willing to defend our principles of individual freedom, democracy, human rights, the rights of women, those rights are going to vanish under the fists of the strongest bully out there for.
A thousand years.
And I think that's the exception of maybe, well, certainly Ukraine and Poland, in a couple of other countries. I think we've as a civilization forgotten that sometimes you have to defend yourself to the death. We imagine that we're living in a world that is post all of that ugliness. Thirty seconds your summary, sir well.
I say thank god for the Baltic States when it comes to Eastern Europe. Thank goodness for Lithuania, Latvia and Estonia, who are clear eyed about this because they suffered from the world refusing to come to their defense. And we should be willing and ready to defend them and the rest of Europe against against Putin's aggression, and to defend the innocent people of Israel against the aggression of Hamas and their Iranian bosses.
Tim sand for Tim, we appreciate the thoughts in the time very much, and certainly we agree and also are very very interested in countering the young progressive moral relatives life lunatics running around on campuses these days.
Well, then then get people to watch my videos and that'll solve that problem.
I tweet them out every time you make them. We'll have the links at armstrong ee getty dot com, Armstrong and Getty