You're invited to take a deep dive into the founding principles of the United States. Join Mark Levin and Larry Arnn, the president of Hillsdale College, as they present Liberty and Learning.
Hello, America. This is Mark Levin, and I'm here with the president of Hillsdale College, my dear friend Larry Arnn. This is Liberty and Learning, our joint podcast between Westwood One and Hillsdale College, episode six already. And by the way, I want you to check out Hillsdale's website. They have all kinds of things going on in there, a lot of free things that you can do. Educate yourselves and family members. It's a lot of fun. It's very entertaining
and interesting. You go to Hillsdale.edu Hillsdale.edu Larry Arnn a lot going on these days, my friend, and a lot that requires your thinking and understanding of the Constitution. We have a lot of federal judges out there who think they run the executive branch. Everything from what language should be on a website to how many people can be removed and so forth and so on. So let's start
at the beginning. Let's start at the beginning. What are the powers of federal district judges, and are they even in the Constitution?
Yeah, the federal judges, the district judges are created by the Judiciary Act of 1789. John Marshall decision. So they're old and they're created by Congress. That's what the Constitution says. The Supreme Court and such lower courts. And they you know, they have intervened in the in the in the history of America. The second case ever declared unconstitutional by the Supreme Court was Dred Scott versus Sanford. The first was one part of that 1789 Judiciary Act. The Supreme Court
can do that because the Constitution is supreme. And if a statute is passed that violates it, they can't enforce it against an individual or a party. And that's the key power of the court's separation of powers means if the long arm of the law reaches out and gets you, you get hauled in front of somebody that can't be fired by the other branches. And he judges whether your punishment is lawful. That's the independent courts. It's fundamentally important.
And then an implication arises because of that, because that means that if the Supreme Court says this thing is unconstitutional, it's likely to say that again. And that gives it an authority over statute law. And that that is written in the system in the way of the system. It's not explicit in the Constitution, but it's a necessary implication.
And then what's arisen in its it's strictly modern. There's only one case in the 19th century or before, where a district judge declares an act of the executive nationwide unconstitutional. And that case is Roger Taney, who was the Supreme Chief Justice of the Supreme Court, acting as a circuit judge. So he was a very bad overreacher that guy. And after that, such cases are rare. There's one in about 1950. There's another one in about 1960. And now they've become common.
And so now the 677 federal district judges, each one feels empowered to disrupt the whole operation nationwide of the actions of an executive. And that's what's wrong. And that's what's happening. It's happened 4 or 5 times now to Trump in his first month.
Let's dig into this doctor Aaron. First of all, you have what are called, as you said, federal district judges. They're not federal national judges. Correct. So they they have rulings in historically, their rulings impact the district in which they're in. These districts are created by Congress, not the Constitution. These judges are created by Congress, not the Constitution. The
Constitution gives Congress the power to create both. So when a federal district judge issues, say, a temporary restraining order, a temporary injunction or a permanent injunction, and does that nationwide, they're really operating outside their lane, aren't they? They're grabbing power that a federal district judge does not have. Correct?
Yeah, it violates practice. But also obviously it violates common sense. Right. How can you do business if one of 677 guys becomes the national authority on some major national level of policy?
And so it's really going to take the US Supreme Court Itself to put this back in the box, isn't it? It's going to take the Roberts Court at some point. And Justice Clarence Thomas has raised concerns about it. Justice Gorsuch has raised concerns about it. Justice Alito has raised concerns about it, that it's really out of control. And unless these federal district judges and we get a ruling from down high on the Supreme Court are told, no, that's not your place. They're going to keep doing this,
aren't they? Because there's really no way to stop them.
That's right. And, you know, both Republican courts and Democratic courts have done this, Democratic courts more. But that's right. And see, Congress has powers here. Right. It could pass a law that says they may not do this. And what can it not do? Remember, judging is an awesome power. And district judges have an awesome power and they need it. And that is a bunch of parties show up in front of them. Let's take the case of these fired officials who got an injunction that they can't be fired
if they show up in court. A judge could rule that in their case, they can't be fired pending appeal. What they can't rule is that the president may not do such things. That has to go to the Supreme Court. So they need to get back in their lane. And you know, this guy in New York, Engelman, I think is his name.
Something like that.
He actually ruled that the Department of Government Official Efficiency, which is a appointee of the president of the United States and acting on his authority, not only they their members cannot see the data of the Treasury Department. The appointed and confirmed Secretary of the Treasury may not see the data, and they he ordered them to destroy the data they had collected it. And that just directly cuts
off the president from management of. You know, one of the four departments of government that are actually named in the Constitution. There are way too many departments of government now, but the Treasury is one of the original ones. Alexander Hamilton was the first Secretary of Treasury. And so Scott Bessent is under court order not to supervise the operation of his department from a New York judge.
Well, let's get into this, because, you know, I wrote a book many years ago about the courts, and I indicated many of the things that these federal district judges do. They run federal prisons, they run school systems. And you go on and on and on and on. It was bad enough back then, 20 some years ago. But now there's a direct constitutional confrontation, isn't there? Not between Trump and the courts, but the courts against Trump. And that
is basic HR decisions, basic restructuring decisions. Basic employment number decisions. Judges now are intervening on what can and cannot be on the CDC's website. And as you point out, this judge and there's another one, too, telling Trump and his designees, you don't even get access to information to determine if there's waste, fraud and abuse. So my question to you is this. Let's let's start at the basics. What is the executive branch under the Constitution? Who runs the executive
branch under the Constitution? And aren't these the basic functions of the chief executive of the executive branch?
The reason politics are so interesting and promising right now is that the new administration has taken on the question of who is sovereign in America and their claim and their very explicit and clear about this is that when article two of the Constitution says the executive power shall be vested in a president. that's what it means. And the reason it's right for the for it to be vested in one person. There's a big argument about why that's better in the Federalist Papers is that he is
elected by us and we are sovereign. Right. And so the alternative claim is that this administrative state, which is purportedly in the executive branch, that they are sovereign, they are outside politics, above politics. That's one, you know, the progressives who invented this whole thing and has grown up
in our government over the last 100 years. They actually argued that take it out of the hubbub of politics, which means taking it away from the authority of the people, because the great thing about the president is not just that we elected him. We can also elect somebody in his place, and that means he must be responsible to us. And that's consent of the governed. It's the most fundamental thing.
And there's a question about that now. And what this judge in New York appears to think is that they. These officials, whoever they are, and by the way, they're innumerable. There's a. Scholars have been arguing for years how many independent agencies there are. And I once spoke to a high official in the Federal Bureau of Investigation and I. Know him a little. And I said to him, I hope you're not mixed up in all that mess. And
I meant, you know, them intervening in two elections. And he said, I'm just trying to keep the agency independent. And I said, independent of what? And he paused. He's a very good guy. Retired now. He said, I don't think I've ever been asked that question before. Isn't that interesting? And, you know, independent of you know, I commented, I said, do you have the authority to shoot me? And if you do, where'd you get it? You know, and that's
the question, isn't it? And, you know, consent of the governed means that for the massive monopoly power of government to do something to somebody, it has to have consent from that somebody. And that's what's at stake in this argument. And and the progressive arguments don't work. And, you know, they're they first of all, they've near bankrupted the country. And second of all, they've made it terribly inefficient. And third of all, we're not very good at fighting our
wars lately. And that's because bureaucracy, right. This divided this idea. It's not even really divided the idea that experts should rule instead of ordinary people.
When we come back, I want to pursue this and pursue, well, what do we do about it? Seems to me Donald Trump's trying to do a lot about it. What does Congress do about it? What are the courts do about it? What are we the people do about it? This is liberty and Learning episode six. I'm Mark Levin, he is Doctor Larry Arnn. It is a Westwood One Hillsdale College podcast partnership. On both of our networks. We'll be right back.
Welcome back America, this is Mark Levin, and I'm here with the president of Hillsdale College, my dear friend Larry Arnn. This is the Liberty and Learning Podcast episode six partnership with Westwood One and Hillsdale College, our podcast networks. Now, Doctor Arnn, I mean, Congress has a role too, other than sitting there and watching what's taking place between the executive branch and the courts, isn't that right?
Yeah, Congress has a role. Of course it has a role. This weekend I've started posting on X to give me something to do because I don't have any time, and also a whole new opportunity to make a fool of myself and And on the weekend, Mike Lee, a very good senator, came up with the idea that there should be a three judge panel with immediate appeal to the Supreme Court, and that would be better than what we've got, but much better than that, because that presents a danger to.
And the danger is the Supreme Court will then become a standing body to judge everything that goes on in the executive branch, but the branches are co-equal. Lincoln makes the point in the Dred Scott in his speech about the Dred Scott decision, the second law ever overturned by the Supreme Court, that each branch takes an oath to the Constitution, and they must follow it as they understand it and not as somebody else understands it. And so conflict among the branches is bound to happen, and the
courts only decide them finally, in some cases. And that means we all have to have an opinion about the Constitution. And this conflict between the branches, as is going on now, is a clue to the people that they should pay attention and vote for the people they like who are on the right side of the conflict. That means we get to govern ourselves still. But anyway, Lee's opinion is
better than what we got. The best opinion I know is, of course, the very great Clarence Thomas, and what he says is the district courts should be confined to deciding the matter. For the people who are in the room, the ones before them, the parties to the case, they should decide that subject, of course, to appeal and then whatever they decide will be consequential and decisive for those people until an appeal. And then higher courts can get
involved and sort it out. And in the meantime, work can go on in the executive branch and the Congress can continue to legislate. I think it's true. You're the lawyer and you know more about this than I do. But I think it's true that Congress could pass a bill that said that, and that would because they defined the lower courts under the Constitution.
They could abolish the courts if they wanted to. But here's my question to you about the proposal as you explain it. I'm a little perplexed by this. Number one, Congress won't do it. Number two, it depends who's on this new court. So we're back at that again. And number three, how does that fix anything? In other words, I guess the argument is, well, at least the other courts aren't doing it. Well, then the other courts aren't doing it because somebody stepped in and told the other
courts not to do it. Why don't we just tell the other courts not to do it?
That would do just fine. And that it's better to write, in other words, the Supreme Court when it becomes a legislative body. It's not very good at it and it loses prestige. Whereas if what it does is outside politics, according to the law, strictly decide the cases that are in front of it. And then there are appeals up to the Supremes. And, you know, we have to remember
what the Dred Scott decision did is horrific, right? The Republican Party was born with a plan to forbid slavery expanding into any of the land not yet organized as states that I'm very proud to report and claim all the time. It's true that that idea was partially invented here at Hillsdale College in a building that still stands.
That's amazing.
Isn't it great? I just love that. And, and and, you know, it's one of the greatest acts of a political party in history because it devised a constitutional way to fight slavery without abolishing the authority of the states, all the new land, and that was most of the land of America in those days, would come in as free states, and slavery would be placed in the course
of ultimate extinction. And then in 1857, Dred Scott was a slave who'd been taken first into a federal territory where there was no slavery, and then into Illinois for a time when there was no slavery. Slavery. Then back to Missouri, where there was. And he sued that he should have his freedom. And Roger Taney, the aforementioned Supreme Court chief justice, ruled in a very divided court that the federal government had no power to regulate slavery, including
in the land not yet organized as states. And that's just a horrific decision. And then, you know, it just so happened Abraham Lincoln was alive, and he got to answer that. And his speech on the Dred Scott decision is one of the profoundest of his speeches and explains the rightful and great authority of the courts and the
limits on that authority. And his argument is that when the Supreme Court, these district court things are just crazy, by the way, and outside all practice for the first 150 years of America, he said, is it a consensus Opinion. Does it fit with the legal expectations that prevail at the time? Are the historical and factual claims that it makes true? Does it violate common sense? And if it does,
then it's worthy of great respect. But he says if it's not, if it doesn't meet those criteria and the people submit to it, quote, they shall have ceased to be their own rulers. So and now it's much worse than that horrific Dred Scott decision. Now, ordinary district judges 677 of them are doing it, and we can't govern the country that way.
Mhm. And who are these people? We don't even know who they are.
The guy in New York.
There are lawyers who who got lucky.
Yeah that's right. Got the guy in New York got appointed by Obama. Another lady I think another female judge, I think also an Obama appointee has taken over the case now and sustained it so far. So in at least four big cases, things that Trump has come in to do, like a whirlwind, are in suspension right now. And and you know he's and you know that's the tactic right. Delay let time pass hope for relief in the midterms right. And Trump was elected to do a
bunch of stuff. And Lord is he not sitting about it.
And I think people need to understand it's not just Trump's responsibility, which is I think what we're getting at here, it is a key responsibility of his. But this other elected entity, the United States Congress, I mean, they created these courts. The Senate has to give its rubber stamp on anybody that's going to serve in these courts. And they ought not just walk away from their responsibilities here. I mean, I don't even know if somebody put a
bill in the hopper that already says that. Excuse me, you don't get to issue nationwide anything. Whatever you do is in your district, period. And that would go a long way in curtailing a lot of this abuse of power. So why don't they just do that?
You know, I don't know if there's a bill. There's a bunch of smart senators. Tom Cotton should do such a bill.
Yeah, he'd be great.
And, uh, I don't who's the chairman of the Judiciary Committee? But, uh, you really.
Want to know? I think it's Lindsey Graham.
Okay, well.
If I had to guess.
He's imaginative.
He could.
Do it.
That's a good way to put it. Yeah.
If, uh.
Yeah, they're.
Busy in Saudi Arabia these days. But anyway, go ahead. I'm listening.
And see, you know, the what's.
Happened in this building of the bureaucratic state. I was in the course of saying maybe didn't finish it, that forever. Scholars have debated. Are there 150 or more or fewer of these rule making agencies because it's hard to count them, right. And nobody can name them. You can't even count them? No. Well, the Doge has been saying lately that they have found 450, and that's plausible, right? Because they grow up over time, there's no central record of them. They pass these regulations.
They've got you know, we now know look at USAID, that they effectively have unlimited budgets. One of the things that Doge has reported is like, you know, Hillsdale College is a business and your radio show is a business, and Westwood One is a business. And that means that it goes through three simple steps. It decides what it's going to spend money on, and then people spend the money or apply to get a payment made. And then somebody checks to see if it fits with what's been decided.
Three steps. Apparently they don't do the third step in the federal government. As I say, their appropriations bills and the massive amounts of money. And if one of these agencies presents a bill to the Treasury, they just pay it. And that's one of the reasons why they've not been able to complete an audit of the Pentagon for five years because the records are not there. They don't keep them. That's why they're not there. So it's just limitless money
and it just flows. Right. And of course, the people who work under those conditions, that two things follow from that, by the way, being in an unaccountable position. The first is you. You treasure it. You like it. The second is it does not make you happy, right? Because where's the achievement? Where's the accomplishment? Right. If all you've got, there's no deadline. You just. I mean, what is it? I it's been in the papers that 6% of the
federal workforce shows up for work every day. That's amazing.
Crazy.
And check in by the month. Right. And we need to get some discipline over this, because we're $37 trillion in debt. For what? What do we get for it except interference? So that's that's the argument we're having today. And these district judges who've intervened, four or 5 or 6 of them. They're on the front lines of that. And they're exercising a power they ought not to have, do not rightfully have.
When we come back, ladies and gentlemen, Elon Musk. The Democrats keep saying he's unconstitutional. He doesn't have this power. He's unelected. What's all that mean? We'll be right back with Larry Arnn on Mark Levin on liberty and Learning. Episode six A partnership between Westwood One and Hillsdale College and our podcast networks. We'll be right back. Welcome back America. This is Liberty and Learning with Doctor Larry Arnn, president of Hillsdale. I'm Mark Levin here, the joint podcast of
Westwood One and Hillsdale College. We love this partnership. It's so important that we convey to you real constitutional notions and ideas about your rule of law. And that's the purpose of this program, among other things. Now, Larry Arnn, Elon Musk, the Democrats, who, by the way, despise the Constitution, they've spent years telling us they despise it, that it's too white, that it's too old, that the framers, their monuments, need to be torn down. And then they keep waving
the Constitution in front of us. Pretty, pretty pathetic. But they're telling us Elon Musk is unconstitutional. How do you reply to that?
Well, I would say that Elon Musk is in his role as the Doge is plainly and clearly constitutional, although as a personal figure, he transcends any document. He's an amazing guy. True enough. You know, he's going to Mars, but. And he made my Cybertruck and I really like it. Uh, well, it.
Drives it, you know.
Yeah. It does. Yeah. It drives itself. Amazing. Anyway, so that guy, you know, is not constrained by much of anything except in this role. And that is to say, he doesn't actually have any power except to find stuff out and report it. And only Donald Trump and his long established agents, key among them, a really great man named Russ Vought, who's the director of the Office of Management and Budget. Only they can do anything. And the Duchess comes in and finds out stuff, and they seem
to be really good at it. And, uh, you know, hee hee, the way it's like, it's it's fun to listen to the debate on both sides, by the way, because both sides are making fundamental points now. But what Musk does is compare it, what he sees to what a business is like. And it's just different as night and day and it's corrupt or unaccountable or both. They go together, those two things. And so like that thing about how they don't reconcile what's been approved with what's paid,
they don't take that step. And that's crazy that they don't. And it means they can't be audited. And that's unaccountable. Right. And and then, you know, the way he runs his company, I saw a really funny thing. Somebody, you know, they're saying it's Elizabeth Warren. I think the senator said, uh, it's dangerous to have a guy like Musk messing around with the air traffic controllers. And somebody replied, hey, the dude caught a rocket in midair.
Yeah, yeah.
So so that was pretty good. I think he's a historic human being, and he really knows how to run a business, and he seems to really know how to analyze one. And so I think just the transparency of all of this. My friend Roger Kimball keeps writing, and I may have said it to him first. Maybe this whole state is like vampires. They die in the sunlight. And I hope so.
Mhm. Mhm. Now, how is it possible that a GS 13, a mid-level bureaucrat in the Department of fill in the blank, has all kinds of powers to make decisions about employment funding policies and so forth. But his boss, the president of the United States, as you note, who was actually in the Constitution does not.
That's that's the thing, right? I mean, you have to go back to the early days. So progressivism comes into America in the late 19th and early 20th century, and it comes into America by a bunch of people who were very influenced by German thought, German historicism. And they thought, you know, Woodrow Wilson is the most successful politically of them. He was president of Princeton before he was president. And he writes in the most telling essay that the Constitution
was written in a time accountable to Isaac Newton. And they thought of it as a mechanism. But now we have Darwin, and we know that everything must evolve. Government
must be a living and changing thing. And he and John Dewey and Frank Goodenough and those guys, Herbert Croly, you can read about them all in the Constitution, reader of the Hillsdale College, what they thought was, we're going to build a new kind of state run by experts, and it will still be under the authority of the people, but it will propose everything, and the people can veto it. And the president becomes a national spokesman for what the
bureaucracy recommends. And that's laid out in their early writings. And now it has come to be. And there's a man named James Landis who's an important author, and he writes that you won't need separation of powers anymore because these people will have guaranteed tenure and guaranteed salaries, and so they won't have any interest against the public interest. And you just have to put that statement against the best statement in the Federalist Papers, to my mind, written
by James Madison. You have to have controls on the government because men are not angels, and angels do not govern men. If you just compare those two claims by Lantis and Madison, then you can decide which side you're on.
Mhm. Where do you see this going? I think at some point the Supreme Court is not going to allow this judicial chaos to go on under it. It's not going to allow these federal district judges to act like rogue individuals, Supreme Court type justices, who can just make these decisions for everybody. I mean, at some point, I think Roberts and the majority of the court are going to have to step in. Don't you?
I do. I predict that they will, but who knows? I think we know how 4 or 5 of them are going to vote, maybe six, probably because they're on record about this. Four of them at least. And you know, it's a it's a it's a very important thing. It can't ultimately depend on them. I like to say in a crisis like that, like the like the Civil War, this is like the Civil War crisis, right? In the Civil War. It was very difficult to think that we'd be able to get rid of slavery, and it was
very difficult to think that it could continue. Both were hard. It's very difficult to think that we can overcome this massive mess, and it's very difficult to think that it can continue and that we won't overcome it. And so right now, we're at a moment of crisis, which means turning point, right? One thing or the other. And we have to we have to choose now to. That's another thing.
One of the things that caused the Civil War was that it really couldn't go on anymore, because we were trying to settle the Western lands and, you know, Kansas and Nebraska was the big there was an actual war in those places. The little mini civil war, a lot of big body count. Because are you going to take your slaves there or not? Right. And so finally, something had to be done. And this is like that. Uh, we are apparently generating $1 trillion in deficit every hundred days,
and the pace is quickening. Something's got to be done. And and so because something has to be done, probably finally, at last, something will be done. And one can hope a restoration of constitutional government is what's possible.
All right. Fantastic. We can go on hour after hour after hour. But time is limiting. I want to thank you, doctor Larry Arnn, president of Hillsdale College, as usual, for your incredible insight. I enjoy just listening to it. Um, and you folks, you're listening to Liberty and Learning. This is episode six. If you want to learn more about Hillsdale College, it's actually quite simple. Go to hillsdale.edu. They have a fantastic website, hillsdale.edu. They have over 40 courses
that are available to you for free. They're absolutely fascinating and a whole lot of information in there right at your fingertips. And they take the time and put the resources in collecting all this information and bringing the sort of the brilliant constitutional scholars and others to you. It's the only college I know that does this sort of thing. So it's very, very important. Hillsdale.edu. Doctor Larry Arnn, until next time. God bless you and be safe, my brother.
Thank you very much. You're a great man.
Take care and see you next time.