The Three Whisky Happy Hour: Time for Viking Justice?

Why think alone when you can drink it all in with Ricochet's Three Whiskey Happy Hour. Join your bartenders, Steve Hayward, John Yoo. and the international woman of mystery, Lucretia.

Welcome, everybody, to a globe-spanning worldwide edition of the Three Whiskey Happy Hour, because we are 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? 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 was going to say not the farthest away. I mean, we did do several episodes from Budapest the last couple of years. I am in 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 to the Icelandic version of High Plains Drifter that turns out to be the highest settled

little tiny town in all of iceland it's really it looks uh ultimately like mars from the mars rover or nevada except covered with moss and anyway it's it's pretty interesting and steve is like isn't this like the second or third time you have gone back to visit your viking slash norwegian scandinavian forebears why do you keep going back to these barren He has no Viking forebears. You know that my maiden name, John, is Norman, as in the Norman conquest. No, I had no idea. Yes.

yeah 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, speaking of the Norman conquest, we need to tell King Charles that England rests on the ancestral lands of the pre-Normans, whoever they were, right? It was the Norman conquest that gave them England, right?

You saw that, right? King Charles went to Canada this week and gave a land acknowledgement. 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 offended by his... Never mind. I've never thought of that. Stop with the Berkeyanism already. Okay. So Lucretia, as Lucretia the Norman, I bet you don't even take credit for King Charles because they're some carpet-bagging German family. Right. Exactly. Anything after, you know, about 1066 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, I have to tell you, 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 colleges uh johns hopkins i believe it was is looking to um increase the intellectual diversity of its uh faculty by adding a

a couple of token conservatives i guess to the faculty so i didn't bother to read it so stupid they the whole point of uh dei is that it was anything but intellectual diversity but anyway so this friend sends it to me and says Hopkins, here we come. And I sent the quote that Steve had included in a sub stack the other day about feminist glaciology. And I said, or we could go back to this. Because Steve had a wonderful little piece where he...

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, no, 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 clear that our universities are filled with lunatics.

And they get published and they make the most noise. And that's the problem. Maybe we'll get to Harvard, John, but that's the problem. And I did read the whole article, actually, Acrecia, but we'll postpone that to another time because I know several of the people mentioned in it. I've actually known a bit about the Johns Hopkins Initiative, which goes back several years.

The president, Daniels, Ron Daniels, I think is it. 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 seven figures from somebody who said, look, you need more political diversity in your faculty. And Daniel 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 and respect are not. But that was three, four years ago, and nothing has happened. So I think it's all a farce so far, and more to be said later. 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 tariffs and the decision of the Court of International Trade to stop the Trump tariffs. But first.

The war with Harvard continues. Latest news this week, just actually right before we started the podcast, news came out that a federal district judge in. Boston, Massachusetts, has sparred the Trump administration from its effort to, I guess the way to 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 their way to Cambridge, Massachusetts. So we'll want to hear from her about this. They wouldn't make it, but they did.

The teeth of that for the Trump administration. Yeah, let me give the background because I don't think we talked about it 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 is visiting researchers uh with not i would say not the closest review by the department of homeland security and uh 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 $3 billion 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 lucretia let's start with you what do you think about this continuing campaign against Harvard and these two battles, one over giving 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 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'd think of that would care, do or anything about that or care 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. 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 going to 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, he's, you know, starting with Harvard. I do want an aside. It has nothing to do with the fact that. Trump couldn't get into Harvard or Barron couldn't get into Harvard. First of all, you get into Harvard if you're a legacy.

or until very recently, if you were 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. so you know there's all this nonsense all this nonsense right one more little aside steve and i went to the same graduate school And I actually left that graduate school because it 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. It 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, a whole thing blew up.

The department is now gone. It's gone. And so this is not a new thing where rich foreigners pay the tuition of poor people like me.

I think it's great. I think it's absolutely wonderful. And I do want to point out to you guys, before we got on, we talked about Alison Burroughs, who was the judge who made his ruling. The ruling against her. against Trump today. Right. Thank you, Steve. Yes. She was also the judge who heard the Harvard case in the Students for Fair Admissions and, of course, decided in favor of Harvard. But I mentioned these guys that...

She made a really, first 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 of course 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. That was just a given. Just a couple of quick facts that are interesting to me and a speculation. I caught a note from Charles Murray. who said a Harvard class of 65, I think was Charles. And he looked at his entering class in 1961 or 60, whatever it was. He said it was 98% American. and less than 2% foreign students. And as recently I saw somewhere else as 1990.

the student body at Harvard was only about 10% foreign. So the fact that it's now 25% foreign, I think, by the way, you hint, John, that this is probably skewed to the graduate. program so it may be it may be in some of those programs you know 50 foreign or more uh i 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 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. A 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 Gannon family. She'd gone to fancy boarding schools in Switzerland.

So she's probably very able to do high-level college work in America. And guess what? Those universities get 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 Matter crowd.

And of course, the politicians 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 Mideast and so forth, I'll bet it would be yet one more embarrassment for our elite colleges. Well, look, Christian, let me follow up on the second point. What do you think about...

President Trump cutting off all 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 Herr. actually very clever oh very clever yes very clever of harvard to do that um

You know, they say and the president of Harvard sent out a blast email saying this is going to ruin our ability to do medical research. Look at all the amazing discoveries by Harvard that have lengthened human lifespans and done such good for the world. Lucretia, 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 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 antisemitism at Harvard. And if you don't do that, we will stop federal money going to you in research grants. And 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, or 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 eye if the... uh administration at the time it said you're not getting any federal grants from us then i mean they went much much further no no pell grants no uh 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...

Steve? So I think there's a great irony at work here. If you go back in the record, as they say, to the late 40s and early 50s. When, you know, Vannevar Bush first set out our science strategy for the federal government, it involved spending research dollars through universities for science research, right, technical research. And then again, with the Secondary Education Act, whatever it was in 1950. after the Sputnik crisis, right? We need more scientists.

Around those years, 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. But on the other hand, was just too lucrative and the purpose seemed so straightforward and sensible, right? More scientists, more scientific research that they succumbed and went with it. So now all of a sudden, look where we are.

I'll add one more thing here to bolster Lucretia's point. Steven Pinker, who's, you know, he's... 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, four paragraphs saying, but I want to remind you over the last six, seven years, I've been fighting wokery 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 that nothing is going to change. Until the universities get the 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 spread.

By the way, John, you know, some of the best students that I've met at Berkeley Law have been some of the Israeli students who come over in the LLM 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 university. But things are so bad with the universities that I agree completely with Lucretia that the time for maximum pressure has arrived. And again...

The fact that the universities are fine knuckling the federal pressure when they agree with what the federal government wants them to do. So they really don't have much of a leg to stand on to complain now, it seems to me.

So a quick question before we move on to tariffs, Lucretia's favorite subject, mind you. But what else could Trump do? So both of you say this is part of almost like a cultural fight. between Trump and the groups and society he represents and Higher Education Inc. What else could Trump do? You know, 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. 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 are other students going to go? What's happening to Israeli students? What can 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 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,

And that does actually change the dynamic a little bit. I think that Harvard will keep fighting. I saw an article this morning, I think it was by, 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. Steve, what other arrows are in the Trump quiver waiting to be? Well, I think something he's already doing, apparently, but I think should be broadened is...

Trump has said we want to put a limit of 15% on overhead for federal grants, which seems like a 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 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 undisputable than profligate spending of the universities ought to be a major target. And by the way, there is a tribune of the middle class. It used to be that you could, even a private university 40, 50 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 universities to cut their administrative bloat and cut their...

costs. But Mitch Daniels has proved it's not hard to do. You know, Purdue froze their tuition, what, 15 years ago now and hasn't raised it once. It's not hard to do. It's just the other colleges won't do it. So make them do it.

Well, 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 colleges had lots of money. the university's now $270 million in debt. $270 million because they're just idiots. But anyway, so I said, well, because this is a few months ago, I said, you know, the fact that you have to

all of those DEI vice provosts and assistant provosts and assistant deans and this and that. I said, that ought to save you a lot of money, shouldn't it? You know, no answer. And then... Of course, because what's happened, except in my college, is that all of those people got...

new jobs that are belonging and community oriented instead of D they don't have the EI 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. 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 another pocketbook issue, which is tariffs.

so just late yesterday uh 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's cheating you, in their imports and should get some kind of extra duty put on their products. You go to the court of international trader. You think your product's been misclassified and is in the wrong tariff schedule. You go to the court of international 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 III court, why these are lifetime federal judicial appointments. Wait, John, are they lifetime appointments or are they? That's another weird thing. These are Article 3 federal judges. You would have thought these people would be more like immigration judges or something. Well, let me ask a question just for information purposes.

I mean, I thought under Article 3 that the clause that Congress can create inferior courts meant there could be courts that weren't Article 3 lifetime tenures. For example, the Court of Federal Claims. yeah that's a different power well is that okay and it's a good conservative steve as a good conservative your instinct is right that why are there any of these non-lifetime federal courts at all they seem unconstitutional

And they're generally Article I courts, right? Yes, they're generally what we call Article I courts, and conservatives have long thought these things were unconstitutional. Just another quick question, John. The Court of Federal Claims

which is where you go most of the time. It's for contract disputes with the federal government. If you have a contract with the federal government, you take it there. But it has been a court 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?

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 III court.

But if you have some stupid trade dispute, you go to an Article III court. It makes no sense. Can I just explain the larger constitution? This is a really interesting constitutional question that conservatives... um in general don't like what congress has done although some like rehnquist do actually this might be a positivist versus natural law thing now that i 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 the judge gets lifetime protection. can only be approved through impeachment if they don't engage in, how would you say it, they engage in ungood behavior or bad behavior. Right. But in the late 19th century, this is a progressive era thing. Congress.

started creating courts, but they didn't give them the protections of Article III, these judges. So today, the biggest one is immigration courts. But you also mentioned one too, Steve, the Court of Federal Claims. Maritime courts? Don't we have maritime courts also? No, they're not maritime courts.

I think called maritime jurisdiction, but they're not special. There used to be prize courts. Right. 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 RedQuest who used to say, ah, this is great because otherwise how would we process? he 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. It's okay. No, no, I wasn't trying to interrupt. I'm just trying to understand. So the article one power.

in article 1 section 8 is to constitute tribunals inferior to the supreme court the article 3 power is the judicial power of the United States. The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.

I think what you were saying is that you shouldn't consider those two separate powers, that the definition of the judicial power is any court that exercises judicial power would come under Article 3. And it just makes it clear that it's Congress that is the one who creates those. It says it twice, basically. Right. Oh, go ahead. I was going to say one way conservatives think about it is legal conservatives would say, well, it's just like the executive power. Congress can create agencies.

But once they're agencies, then the president controls them. They become executive in nature and they have to run along the same. uh 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 but because of the progressive era we have these bizarre uh courts

But they don't operate within Article 3. They operate just however Congress chooses to tell them to operate. But 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? Court of International Trade, the CIT. CIT. Then in fact, it should be an Article III court.

And isn't Congress's power over anything below the Supreme Court plenary in the sense that as long as it is, in fact, a... what the judicial power extends to in article three which is in section two all of those different um descriptions of the kinds of cases the court is allowed to hear it's just courts are allowed to hear

then Congress can do pretty much what it wants to. It's not necessarily held, for instance, to the judicial system created in the Judiciary Act of 1789 and 1801 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. I'm not necessarily saying it's a good idea. I'm just not saying it might not be possible. No, the judges on the federal Court of International Trade often teased about this because…

So 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. We seem to be at the point...

Sorry, we seem to be at the point where I expect any day now that Judge Wapner of the People's Court is going to hand down a ruling against Trump. That's the next point.

Then let me go one step. Last time we talked about this, and Steve actually almost cut the whole thing, but we didn't really get to finish. 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 case and 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 core. I mean, Lucretia, as 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 going to you know, how far could Congress go in?

um and could they do that to the supreme court too could they do it by saying uh there will be no appeals to the supreme court right in immigration cases well there's literally a whole course about this subject about how far can congress go in its control of the courts i tend to be a uh congress can like you said the creature has plenary power of those courts and so they can

So you can issue certain kinds of injunctions, but not others. You can hear certain kinds of cases, but not others. I would tell you 95, I think, percent, I would bet of. Most constitutional law professors believe, however, that there is something they call the essential functions thesis, that there's some essential function of the federal courts that cannot be taken away 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, the eye of the beholder. Go ahead, Patricia. Then we'll get to this. Yeah, I know. I'm sorry. I'm really taking off. 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 Halperin 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 uh universal injunctions uh yeah maybe they weren't such a great idea the left the left is um 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 etc etc and he made this really stupid argument talking about impeaching and other kinds of uh ways of fighting back against the court instead of just uh 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... 1800s about whether you had to um 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 on 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 uh 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 uh bad behavior include the idea of getting something deliberately wrong or really wrong or abusing your power so you there's a difference between

you know getting a hard question of law right and a judge you know seizing legislative power or something well it's perfectly fair yeah exactly but look it all goes back to that wily john marshall if he had found and and issued a writ of mandate as for Jefferson to deliver the commission that will be in Marbury.

maybe he would have been impeached. And the precedent wouldn't have been respect for judicial, complete judicial independence, but maybe we'd be impeaching judges left and right since the beginning. 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. Do you remember that?

I don't remember that part, but I do know our late friend Michael Ullman used to say, you know, martial worship is out of hand. There's a contrary case to be made about him. And he liked to do that sort of thing. I think it's more a question of what's good government. And I think it is good that we don't impeach judges for bad decisions. But what about the substance of this opinion? I just think it's good the Federal Reserve Board.

is independent of political control, even though I don't think constitutionally it is. Yeah. But anyway, let's get to the substance decision. Good positivists that you are. Interesting issue. Right. Yeah. You know, I am the OG neocon, as you said, and I was at the neocon conclave, as Steve said. I was the only voting member.

but let's let me let me describe the substance of the decision and get your thoughts because um 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 are actually really good. I'm very surprised by how 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 he says there was a law called the trading with the enemy act of 1917 classic woodrow wilson progressive law it said basically

that the president can impose almost any economic sanction or any economic measure. uh in the event of war a national emergency and so what note that was the law years go ahead well roosevelt from roosevelt invoked that law to do the bank holiday in 1933. what i mean there was no yeah so yeah

President started saying, national emergency, I can, yes, go off the gold standard. This was heavily abused by FDR when he took office. And so Nixon... basically try to impose tariffs under this law called the Tuya 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 that's issued today, the International Economic Emergency Powers Act, IEPA, of 1977.

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 1970s is a bad law. Oh, sure. 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 are relevant. One was.

the trafficking in fentanyl 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 tariffs were just aimed at Canada, Mexico, and China. Then there was another set of tariffs, which the court calls worldwide tariffs, where 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, different variations. So the court yesterday struck them both down and said, and here's the weird logic of it. The AIPA 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 a 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. And then the second thing, and it gets even worse. So the law says... that the president's allowed to, you know, issue these kinds of orders in order to deal with an international emergency. The court says tariffs don't deal with the trade deficit. Oh, no, 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 but i 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 lucrucia was saying why are you saying these are both of course i was like here's a good example these are judges who spend all their dial

time saying is this important at all like an educational product are they under the right 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? Is this like Schechter and the sick chicken case? It is, but this court totally missed it.

Totally. And one last thing I'll shut up is the Supreme Court has said in a case called Curtis Wright that the non-delegation doctrine does not apply in foreign affairs. Right. This case is not mentioned in the decision at all. So that's why when I was starting this whole thing out, Lucretia, I was like,

Why is this thing a court? Who are these people who are on this court? Why do we have judges 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 IEPA sanctions soon and not allowed back into the country, because you're obviously an agent for some Norwegian Scandinavian power crossing our borders at will.

Yeah, I'm going to illegally import puffins. You know, you can actually get roast puffin here. Actually, Steve, since you're there, Steve, since you're there, I have a trivia 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 oh really no you don't know no

Well, I don't know, but I'll find out in a second. I thought it was going to be something really cool. Probably fish. I don't know. It's the top export here. You're going to laugh. The top export is aluminum. oh that that does not surprise me you see they have number two number two number two you're right fish fillet yeah yeah and then number three this one i really don't get this orthopedic appliances

I don't get that either. The aluminum, so 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 driven by a couple of enormous aluminum factories. So that's boring stuff. Look, my first thought was... Can I just, one last amendment, last year... uh fish fillets did overtake aluminum so last year fish fillets were which kind of fish

They like Atlantic char. It's very popular here. I find fish an effeminate food to eat, so I don't eat it. So I don't distinguish between the kinds of fish. John, I've been with you when you've eaten fish. Now, John. So did you know? Scallops, fried. I mean, yeah, the McDonald's fish filet is not so bad. Well, see, while we're digressing, John, there are no McDonald's in Iceland. What?

I know. We can invade. We're ready to invade because we don't invade countries that have McDonald's. Right. There's rule number six. There are no mosquitoes here either. which I think is also kind of interesting.

Okay, so Steve, what do you think? You don't have to get into these decisions if you don't want to. What do you think about the bigger tariff issue 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.

he's winning on it well i think i think there's a chance he will never i won't get off on the sort of 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 it is such a

crazy opinion from this obscure court, because I think if, you know, our friend Phil Hamburgers group has brought a suit through regular federal court saying this is an improper delegation of power. And I think if 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 the filings and all the rest of that or that opinion, that this is Curtis Wright and Schechter 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 it you know congress that's an article one section eight power it can't be handed to the president uh and I think Congress should work harder on this, and I think they –

They don't like it to. But I think now if it gets to a federal district court, they're going to say, no, that power's fine and Trump wins. And so 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 happen when you have unlimited immigration. You made a comment. So I was telling Steve before you came on, I've been listening to some of our old podcasts. I'm actually listening for something specific, but you, you, in December 10th, I believe it was, you came on.

back 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, 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 realm they shouldn't be deciding this and this seems to me very much Along the same lines as, what does the trade court know about the dangers of fentanyl 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... 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 a court supposed to know what's a threat to national security and what's not? How do they judge? And the second question is how does a court know this is what the court really... hung its its decision on how does the court know what we'll deal with quote unquote the national security problem

Is it tariffs? I mean, does the court say, no, you have to send people to the border with guns? Then we would believe you. So that's the other question is how does a court know not just what's a threat, but the proper way to deal with it?

Let's go ahead and see if it's starting. Well, look, I mean, you know, Alexander Hamilton and Marshall would both snort at this opinion for just that reason. I mean, what's Hamilton's great lines in The Federalist 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 fentanyl is a national emergency. It seems to me a court can't say, no, it's not. What they said instead was, but tariffs aren't the effective means for dealing with that. That is not a decision under the purview of...

court. If we're going to say the president can determine a national emergency, then any means available, lawful means to the president, no court can get in the way of. It's the separate question, I think, is whether terror... as an economic policy or as a regulation of commercial policy can be delegated to the president. And I'm not sure what I think about that. I mean, you know, Curtis Wright and Schechter are kind of separate questions. They both involve commerce.

Curtis Wright, 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 Wright...

sued, saying Congress can't delegate that kind of commercial regulatory power to a 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. 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. A week ago, I'm not sure I would have said that.

Can I ask you both, before we turn to our last subject, which is a special treat for listeners, which is going to be, why do we have political theory at all? Oh, we ran out of time? Yeah, that's all right. I was going to 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, so already the stories are appearing saying, oh, this actually, this decision gives Trump. a backdoor out of a losing political battle. Because I think one thing the decision would say, and I actually think people could not complain about this from either side, is if you said,

At the very least, AIIP allows you to target a single country. And so what if this all turns into a tariff war with China? And that's really something you can do under EPA. So Trump could say, okay, well, I'm just going to keep tariffs on China high. But hasn't that been the point? I'm going to 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. Fine, those aren't that important, right? Hasn't that been the point all along? 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.

You know, I mean, I actually think that Trump has been doing pretty well on this whole tariff thing lately. 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 about

easing the tariffs, the stock market goes crazy. So, you know, 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 minute. 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 40, 50 years hasn't worked very well. We try to play nice and we make very little progress on it.

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 were struck down. We've already mentioned, you know, the Schechter case with the 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 was cemented in place for years. That's where I'm sitting here thinking that 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 and the world. China's just one part of that, I think, Lucretia. I think there's a broader game afoot here that's actually more coherent. Although... unorthodox and unpredictable and by the way that's why i also think uh the political point that republicans may not pay a price in the elections next year just as roosevelt in 1934 the democrats had big gains in

in the off year election, one of the rare times it'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 I'm getting that vibe, a vibe shift. I love the way we say all that, right? More can be said about.

that but uh we're getting close to the end of our time i think yes i listen loyal listeners if you made it to the end i'm sorry uh 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 our federal judges about that or or testing steve's knowledge of exports to the united states from other obscure tiny uh you know north atlantic countries We didn't even talk about how the Democratic Party is going to woo you masculine men, you two. Oh, I know. I know. That was a great amusement. Yes. By using this incredibly big, fat Mexican lesbian. bisexual, asexual woman is leading the charge. She knows men.

It's even worse than that, John. I can't believe you missed this story. I miss this entirely. We'll save it for next week. We'll save it. But it does allow me to make a few... Babylon Bee headlines. Yes, go ahead, Lucretia, Babylon Bee headlines. So California unveils massive new escape room called California. You got to like that one. We didn't talk about this either. Biden, Macron team up to form support group for battered and abused world leaders.

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, 25 years older than he is? I don't know if it's that much. She seems 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.

Lucretia and I have been having an exchange about 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, almost done. American students unsure who to cheat off of after Trump revokes Chinese student visas. Oh, I love that one. That's pretty good. I thought you would. And so I could use, since I brought it up, it's a picture of Pete Buttigieg, whatever his name is.

with a beard and it says Dems unveil plan to win back men by having gay guy grow a beard finally housewarming House, because Steve loves these, House Warming Party kicks off with land acknowledgement for the Johnsons who had lived there since 2019. Oh, boy. 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 neat. And Steve, what is the latest AI hallucinogenic poem? Haiku.

Well, I asked AI 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 is going to be weeks of great material. And it goes as follows. hearken 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 might but for whisky and laughter and podcasting right. Wow, that was pretty good. Ricochet. Join the conversation.