Speaker 1: I'm Josh Hammer, and this is the Josh Hammer Show.
Speaker 1: Mike Davis, the Viceroy, my colleague, got the Article three project,
Speaker 1: will join us later in the program for a deep dive,
Speaker 1: full ranging conversation about all the day's legal controversies. I'm
Speaker 1: sure we'll talk about Ice and the Insurrection Act and
Speaker 1: immigration more generally. Was to say about our nation's priorities
Speaker 1: that many Democrats are objecting so strongly to the most foundational,
Speaker 1: rudimentary notion that nation is only a nation because of
Speaker 1: the borders. It enforces. All that and much more of
Speaker 1: Mike Davis later on in this hour of The Josh
Speaker 1: A. Hammer Show. But for now, I'm wanting to flag your attention.
Speaker 1: While we're on the topic of the law, while we're
Speaker 1: on the issue of the courts, a big and I
Speaker 1: mean big oral argument is happening today Tuesday, January twentieth,
Speaker 1: at the US Corps Appeals for the Fifth Circuit in
Speaker 1: New Orleans, Louisiana. I know this court very well. Why
Speaker 1: because I clerked on it. Because I clerk for the
Speaker 1: Honorable Judge James C. Hoo, a Trump nominee to the
Speaker 1: Fifth Circuit. I was one of Judge hosts First four
Speaker 1: Law Clerks and the Fifth Circuit, which is historically and
Speaker 1: still is one of the more conservative constitutionalist originalists appellate
Speaker 1: courts in all of the federal juiciary. The Fifth Circuit,
Speaker 1: which covers three states, namely Texas, Louisiana, and Mississippi, they say,
Speaker 1: are hearing the consolidated oral argument out of two cases
Speaker 1: with very similar fat patterns. That's why they've been consolidated
Speaker 1: out of the states of Louisiana and Texas. Two of
Speaker 1: the three states that the Fifth covers the basic fat
Speaker 1: pattern in question is the state of Louisiana and then
Speaker 1: the state of Texas, which did so just this past year.
Speaker 1: In their twenty twenty five legislative session, they each passed
Speaker 1: a law requiring some variation of the Ten Commandments the
Speaker 1: Ten Commandment to be displayed in classrooms all throughout the state.
Speaker 1: Governor Jeff Landry of Louisiana signed that lawn to place
Speaker 1: in Louisiana in twenty twenty four, two years ago, and
Speaker 1: then Governor Greg Out of Texas signed a very similar
Speaker 1: statute into law just last year in twenty twenty five. Now,
Speaker 1: a lower court judge, a federal district court judge has
Speaker 1: no doubt you're familiar by now they blocked it. This
Speaker 1: notion of federal district judge is blocking these laws. We
Speaker 1: discussed that at length. That's going to be an evergreen
Speaker 1: topic for god knows how long here on the show.
Speaker 1: But in this particular litigation, a federal district judge blocked
Speaker 1: the Louisiana and Texas laws, respectively from coming into place.
Speaker 1: Three judges on the Fifth Circuit because normally appeals court
Speaker 1: sits with three judges, So a three judge panel left
Speaker 1: that flawed district court ruling in place. What followed then
Speaker 1: was the judges of the Fifth Circuit then voting to
Speaker 1: rehear this case in what is known as en banc fashion,
Speaker 1: meaning that all of the judges of the Fifth Circuit,
Speaker 1: which again is one of the more right of center
Speaker 1: courts in the country, they decided to hear all of
Speaker 1: them today this case. And sure enough, that is exactly
Speaker 1: what happened earlier today in New Orleans, Louisiana. Folks, this
Speaker 1: question gets to the very heart of who we are
Speaker 1: as a people. It cuts to the very core of
Speaker 1: what it means to be part of the rule of law.
Speaker 1: Of whether American constitutionalism is ethereal, whether it is clouds
Speaker 1: in the sky, whether it is tethered, whether it's anchored
Speaker 1: in something deeper, something more transcendental, more natural, more biblical,
Speaker 1: more godly. The argument that has been deployed by secularists
Speaker 1: and leftists for longer than I've been alive to object
Speaker 1: to public displays of things like the Ten Commandments is
Speaker 1: they say that is prohibited by so called separation of
Speaker 1: church and state. The problem, you will, no doubt notice,
Speaker 1: is that those of you who've read the First Amendment, no,
Speaker 1: and for those of who don't know, I will inform
Speaker 1: you know that particular verbiage is actually nowhere to be
Speaker 1: found in the First Amendment to the Constitution. The First Ments.
Speaker 1: The Constitution reads in relevant parts as follows, quote Congress
Speaker 1: shall make no law respecting an establishment of religion or
Speaker 1: prohibiting the free exercise thereof. Those two clauses, respectively, are
Speaker 1: typically referred to as the establishment clause and the free
Speaker 1: exercise clause. The establishing clause is where you have leftists
Speaker 1: and secularists who say that separation church and state is
Speaker 1: codified as a principle, except it isn't. The actual text
Speaker 1: says Congress shall make no law respecting an establishment of religion.
Speaker 1: The actual history of the establishing clause, as just as
Speaker 1: Clarence Thomas has explained in numerous Supreme Court opinions, and
Speaker 1: as various constitutional law scholars such as Philip Hamburger have
Speaker 1: explained as well in compelling and paints to makingly detailed
Speaker 1: the meticulous legal scholarship, the Estallusian clause was actually a
Speaker 1: federalism provision. In other words, it says that Congress shall
Speaker 1: make no law respecting the establishment of religions, that the
Speaker 1: states can do that, and sure enough they did. By
Speaker 1: the time of the American founding, many, perhaps most, of
Speaker 1: the colonies turned into nascent states, had established state churches.
Speaker 1: Think about it. Maryland was known as a place where
Speaker 1: Catholics go. Pennsylvania was known as a place where Quakers go,
Speaker 1: and on and on. Think about the Commonwealth of Massachusetts,
Speaker 1: which today is a leftist Bastian Senator Elizabeth Warren and
Speaker 1: all that Massachusetts had an established church. It was the
Speaker 1: Congregationalist Church. Well into the nineteenth century. It was eighteen
Speaker 1: thirty three Massachusetts finally got rid of its established church.
Speaker 1: You see, America was a pluralistic society. No, it was
Speaker 1: not a multicultural society. We'll get into the notion of
Speaker 1: Somali fraud in Minnesota and what it means for immigration.
Speaker 1: I'm sure we're against that with the Viceroy Mike Davis
Speaker 1: coming up shortly. But at the time of the founding
Speaker 1: America was pluralistic necessarily when it comes to Somali's when
Speaker 1: it comes to people from the Far East. Now, they're
Speaker 1: pluralistic in the confines of the Biblical religions. Within the
Speaker 1: confines above all Protestantism and to a lesser extent of
Speaker 1: Judaism and Catholicism, and the various Protestant sects in particular
Speaker 1: had to make sure that they were able to flourish
Speaker 1: at a state level, Folks, this is a federalism provision.
Speaker 1: So where you might ask does the notion of separation
Speaker 1: of church and state come from, It comes actually from
Speaker 1: a letter written by Thomas Jefferson when he was President
Speaker 1: of United States in eighteen oh two. Jefferson wrote a short,
Speaker 1: pithy letter two hundred and thirty three words in length,
Speaker 1: essentially the length of a long tweet, and he sent
Speaker 1: this letter to the Baptist convention in Danbury, Connecticut. Why
Speaker 1: it's actually a political letter. He was trying to make
Speaker 1: political inroads for his party, the Democratic Republicans of Jefferson
Speaker 1: and Madison, either trying to make inroads into the New
Speaker 1: England clergy, which at that time were a political bastion
Speaker 1: for the opposing party, the Federalist Party of Alexander Hamilton,
Speaker 1: John Adams, George Washington, and so forth. And it was
Speaker 1: in this letter, this tweet of sorts, that Jefferson first
Speaker 1: used the phrase separation of church and state, a wall
Speaker 1: of separation, he refers to it. But Jefferson wind no
Speaker 1: was in the First Amendment. He wasn't even there at
Speaker 1: the Consortors convention. He was gallavanting off in pre revolutionary France,
Speaker 1: palling around with the folks who soon will become the Jacobins,
Speaker 1: engaging in the Garen and the reign of terror. As
Speaker 1: William Ranquist persuasively put it in a nineteen eighties case
Speaker 1: called Jeffrey Tamas, Jarrison is not someone whose thoughts in
Speaker 1: the First Amendments seemed like particularly persuasive or compelling authority,
Speaker 1: and the notion of so called separationism, separation church of state,
Speaker 1: was not actually codified as a matter of Supreme Court
Speaker 1: case saw as being the effective, if not literal, language
Speaker 1: of the Assagian cause. It was not read into the
Speaker 1: clause until a somewhat obscure nineteen forty seven case called Everson,
Speaker 1: a case out of New Jersey. In an essay this
Speaker 1: past summer for the Harvard Journal lam Public Policy, my
Speaker 1: two co authors and I argued that Eversin must fall
Speaker 1: because Eversin versus Board of Education. This case that for
Speaker 1: the very first time read separated church of state as
Speaker 1: being incorporated to the states via the fourteenth Amendment. This
Speaker 1: case was wrongly decided because there's no such thing actually
Speaker 1: as so called separation. Sure, of course there's free exercise.
Speaker 1: I'm gonn observant Jew. I care quite a bit actually
Speaker 1: about the free exercise of religion. But the two religion
Speaker 1: clauses are complementary. They're not at loggerheads with one another.
Speaker 1: You could have various public facing forms of ecumenical geo
Speaker 1: Christian inheritance, biblical teachings, maxims, and so forth, and also
Speaker 1: protect private religion. They're not irreconcilable. They actually fit very
Speaker 1: nicely together articably. Even more importantly, though than the actual
Speaker 1: black letter law is this? What does it say about
Speaker 1: a country country like ours founded in the proposition that
Speaker 1: all men to create equal a Genesis one twenty seven principle.
Speaker 1: A country that prints in God we trust on our coinage.
Speaker 1: A country that founded by religious Christians, whose first president,
Speaker 1: George Washington wrote so compellingly in his Thanksgiving proclamation that
Speaker 1: Thanksgiving X this to thank Almighty God. What does it
Speaker 1: say about a country that has litigated for four to
Speaker 1: five six however, many decades now the notions to whether
Speaker 1: the Ten Commandments, the original ten Commandments Moses is setting
Speaker 1: from SINAI, Thou shall not murder, Thou shall not steal
Speaker 1: honor your parents. How do we get to a place
Speaker 1: where a nation as godly as ours is even debating
Speaker 1: whether or not a public display of the Ten Commandments
Speaker 1: violates a reading, or is the case that we hear
Speaker 1: a misreading of a certain constitutional amendment. It's absolutely grotesque.
Speaker 1: The case law on this, where it's worth, has been
Speaker 1: all over the map. There was a case from two
Speaker 1: thousand and five called Van Orden versus Perry, also out
Speaker 1: of Texas. The carry there in question is former Governor
Speaker 1: Rick Perry there. The fat pattern involved a monument of
Speaker 1: the Ten Commandments. It's still there today. Actually, go to Austin, Texas,
Speaker 1: walk the state Capitol grounds. You'll see it. I've seen
Speaker 1: it many times in person. They're the Ten Commandments.
Speaker 2: One.
Speaker 1: Sometimes the Ten Commandments don't win. It's all hypocrisy. The
Speaker 1: Justice of the U Spreme Court have a freeze on
Speaker 1: the Wall of Moses with the Ten Commandments because he
Speaker 1: was the first lawgiver in the history of the Geo
Speaker 1: Christian Biblical tradition. The fifth crogate should do the right
Speaker 1: thing here and push as hard as they possibly can
Speaker 1: within the confines of Supreme Court presidents and the U
Speaker 1: Supreme Courts really ought to grant a rid of cercerari
Speaker 1: and hear this case. If it goes the wrong way,
Speaker 1: perhaps they'll find a way to take it, even if
Speaker 1: it goes the right way, because we have to make
Speaker 1: sure that generations hence know that this country stands for
Speaker 1: Godly values, Biblical values, and that our American Constitution is
Speaker 1: downstream of the Ten Commandments. Godspeed to the lawyer's argument
Speaker 1: that proposition in New Roleans today, I'm Josh Hammer. Stay
Speaker 1: with us to the break. Mike Davis on the other side. Well,
Speaker 1: as promise, it's now time for the viceroy. Let's bring
Speaker 1: on founder and president of the Article three Project, where
Speaker 1: he's also my colleague. You can check us out at
Speaker 1: Article three project dot org. It's the one only. Mike Davis,
Speaker 1: friend of Josh Hammer Show, joins us yet again. Mike,
Speaker 1: thank you, as always my friend for joining us. There's
Speaker 1: always no shortage of legal controversies and news the day
Speaker 1: happening there. I break it down when I can, but
Speaker 1: it's always fun to have a comrade in arms to
Speaker 1: join me in doing so as well.
Speaker 2: Mike.
Speaker 1: The big issue for the past week ish week and
Speaker 1: a half maybe at this point is the insurrection at
Speaker 1: you wrote a recent opbed on this for Fox News.
Speaker 1: We're talking here, of course, about the anarchy the insurrection
Speaker 1: happening in Minneapolis and the aftermath of the justified self
Speaker 1: defense shooting of Renee Good and the subsequent anarchy that
Speaker 1: is fun, these standoff altercations between these protesters and federal
Speaker 1: law enforcement. The insurrection out to eight two oh seven.
Speaker 1: Tell us about this law and tell us why it
Speaker 1: is a fit or not a fit. But I think
Speaker 1: it's a fit for situations exactly like this.
Speaker 2: Well, let's back up really fast here. Remember this that
Speaker 2: Congress are elected. Members of Congress exercise our sovereign power,
Speaker 2: as we the people, to control our border and to
Speaker 2: control our population, so they can pass immigration laws to
Speaker 2: control our border and population, which is our most crucial
Speaker 2: sovereign power as we the people. It's the president's job,
Speaker 2: as the commander in chief and the chief executive officer,
Speaker 2: to faithfully execute those laws. That is his constitutional and
Speaker 2: statutory duty. Right, we had an election. We had an
Speaker 2: election over immigration. We had two different paps. We had
Speaker 2: whether we were going to have come Paula Harris continued
Speaker 2: Joe Biden's path of the mass importation of third world
Speaker 2: trash into America, including Islamists who do not share our
Speaker 2: values and violent criminals, gangs MS thirteen, trendy Aragua, or
Speaker 2: we were going to go down the path that Trump proposed,
Speaker 2: which was securing our border and excelling illegal aliens starting
Speaker 2: with the worst of the worst, like Trendea arragua, like
Speaker 2: MS thirteen, like these Islamists who want to destroy our country.
Speaker 2: The American people, we the people, we the sovereign citizens
Speaker 2: of America, shows Donald Trump's path right. He won three
Speaker 2: and twelve electoral votes all seven Spring states. The popular
Speaker 2: vote kept the House, won the Senate. He has a
Speaker 2: father electfaw mandate to lead, and he is doing that.
Speaker 2: He is doing the unthinkable. He's doing what he promised
Speaker 2: American voters he would do by enforcing our immigration laws,
Speaker 2: his constitutional and statute forward duty. These Democrat activist pointiffs, attorneys,
Speaker 2: judges try to sabotage this immigration enforcement through the courts.
Speaker 2: They largely failed because the Supreme Court has largely stopped them,
Speaker 2: and now they are trying to sabotage the president on
Speaker 2: the streets, right, and that is completely unacceptable. You can protest,
Speaker 2: you can protest immigration enforcement, you can't obstruct it. You
Speaker 2: certainly cannot be violent. And if you look at the
Speaker 2: Insurrection Act, it deals with this specifically. If you are
Speaker 2: organizing violence to stop the federal government from enforcing federal laws,
Speaker 2: that is text book insurrection. That is text book seditious conspiracy.
Speaker 2: That is text book assault on federal law enforcement. That
Speaker 2: is textbook harboring illegal aliens. That is textbook general conspiracy.
Speaker 2: And I would say this to these Democrats who are
Speaker 2: doing this, like Tim Waltz, the governor of Minnesota, Jacob Prye,
Speaker 2: the Minneapolis mayor. You could very easily end up in prison,
Speaker 2: federal prison for these very serious federal crimes like insurrection,
Speaker 2: seditious conspiracy, assault, kidnapping, harboring, conspiracy, generally other very serious
Speaker 2: federal felonies. So tread lightly, guys, because I don't think
Speaker 2: President Trump and Attorney General Pambondi are messing around.
Speaker 1: Like Davis, the founder and president of the Arcle three project.
Speaker 1: Follow him on x at mrd DMIA, follow our work
Speaker 1: at a three P at arcle threeproject dot org. Mike,
Speaker 1: I think it's really important that you backed up like that.
Speaker 1: Immigration obviously is a federal legal imperative. Congress has an
Speaker 1: Article one, Section eight and numery power to prescribe a
Speaker 1: uniform rule of naturalization. The President has the take Care
Speaker 1: clause obligation to take care that the laws be faithfully executed.
Speaker 1: This clearly is a core bread and butter federal prerogative.
Speaker 1: And I think back in look at the recent lawsuit
Speaker 1: that was filed by the State of Minnesota and the
Speaker 1: Twin cities of Minneapolis and Saint Paul against DHSS. The
Speaker 1: whole Messecurity Department against the federal government generally. And Mike,
Speaker 1: I was watching Keith Ellison, the adel Brains, you know,
Speaker 1: you know, care connected attorney General of Minnesota, and he
Speaker 1: was reading the statements where he was like, it's our
Speaker 1: tenth Amendment States rights position. And I was looking at
Speaker 1: this and I was like, I'm sorry, but I read
Speaker 1: this in a history book ones and it came under
Speaker 1: the name of John C. Calhoun. And I've been saying
Speaker 1: this for years now that this whole notion of these
Speaker 1: sanctuary jurisdictions, of just trying to not just protest, but
Speaker 1: to obstruct and to undermine violate federal law. I mean
Speaker 1: this reeks of the anti Bellum Confederacy, to which Abraham
Speaker 1: Lincoln responded, among other things, with you guessed it the
Speaker 1: Insurrection Act, which he invoked just a few days after
Speaker 1: the Civil War began. So am I crazy? Or is
Speaker 1: this how you see it as well?
Speaker 2: Well? I mean it's you have Ellison who has become
Speaker 2: the Confederates for Somali pirates and warlords and other fraudsters
Speaker 2: in Minnesota. And you have to think about this is
Speaker 2: the problem with immigration. You mass import people who do
Speaker 2: not share our values, like Simolians, for example, who are
Speaker 2: some of the dumbest people on the planets, some of
Speaker 2: the most corrupt people on the planets, some of the
Speaker 2: most violent people on the planets. That's why their nation
Speaker 2: is failed because there are Somali pirates in warlords and
Speaker 2: have the IQs of IQs of sixty five to to
Speaker 2: seventy and we want to mass import them into the
Speaker 2: United States. And I guess I would say this to
Speaker 2: the Minnesota liberals. You managed to get duped and defraud
Speaker 2: its by some of the dumbest people on the planets.
Speaker 2: What the hell does that say about you as the
Speaker 2: people of Minnesota that you allowed this to happen, not
Speaker 2: just for a few weeks, not just for a few months,
Speaker 2: you allow this to happen for like twenty five years.
Speaker 2: You have been defrauded by the Somali warlords and pirates
Speaker 2: when they're driving around in their range ropers to their
Speaker 2: mansions and you have homeless US military veterans on your streets.
Speaker 2: It's shameful what Minnesota has allowed to happen. And this
Speaker 2: is why immigration is a federal concern determined by Congress,
Speaker 2: so we don't have bulcanized American states like Minnesota, they
Speaker 2: don't get to decide our population. That is, we the people,
Speaker 2: the sovereign citizens of America, get to decide this. This
Speaker 2: this idea that we're going to let the Third world
Speaker 2: come to Minnesota. We have to pay for it through
Speaker 2: federal medicaid, through federal grants that are being defrauded in
Speaker 2: the tune of tens of billions of dollars around the country,
Speaker 2: particularly in Minnesota. And then they're going to say, Okay,
Speaker 2: we we have we have We've created loogadishue in Minnesota,
Speaker 2: in Minneapolis, and if you try to stop the fraud,
Speaker 2: We're going to have a civil war with you. We're
Speaker 2: gonna We're going to encourage our law enforcement to arrest
Speaker 2: ICE agents, Like are you kidding me? Are you trying
Speaker 2: to get state and local law enforcement officers killed further
Speaker 2: unlawful arrest of ICE agents. What what is the endgame
Speaker 2: for Governor Tim Waltz and may Or Fred They they
Speaker 2: do they want an armed conflict with the federal governments
Speaker 2: so they can protect their fraud and corruption. How many
Speaker 2: campaign donations are these Somali warlords, pirates and other fraudsters
Speaker 2: giving to Tim Waltz to Jacob Pray, how many of
Speaker 2: their friends and allies are on this Somali fraud Peewell.
Speaker 2: I mean, this is shocking, it's sickening. It shows there's
Speaker 2: a lot at stake for these guys if they're willing
Speaker 2: to go to civil war with the federal government to
Speaker 2: protect these Somali warlords, pirates and other prodstras.
Speaker 1: It really does. And by the way, folks, for those
Speaker 1: of you who don't know Mike as well as I do,
Speaker 1: his ex handle is at Mr d d m i A.
Speaker 1: The DMIA, if not mistaken, stands for Des Moines, Iowa,
Speaker 1: which is where Mike from. I sense a little Hawkeye
Speaker 1: state chauvinism in this bashing of your northerly neighbors Minnesota.
Speaker 1: But frankly, you know, frankly, the people in Minnesota, I
Speaker 1: grossly deserve it because they have brought this on themselves
Speaker 1: and they are acting frankly in Jefferson Davis John C.
Speaker 1: Calhoun style insurrections fashion. Stay with us with the break, folks.
Speaker 1: Mike Davis again is the founder and president of the
Speaker 1: ARG three Project. Follow us on the d Article three
Speaker 1: project dot org. We'll be right back after the break.
Speaker 1: With much more from the Viceroy himself. That's our friend
Speaker 1: Mike Davis. Welcome back. We're still joined by Mike Davis,
Speaker 1: who was the founder and president of the Article three projects.
Speaker 1: He's the Viceroy. Follow him on x at Mr d
Speaker 1: d M I A Mike. Lots of other stuff happening
Speaker 1: in the legal world as well. When it comes to
Speaker 1: not not just ice in Minneapolis. I want to get
Speaker 1: your take on the recent Maduro raid in Venezuela. So
Speaker 1: this happened, Mike, I keep the Jewish Sabbath, as you know,
Speaker 1: this happened actually over the Jewish Sabbath, and I throw
Speaker 1: my phone back on. I had like a million messages
Speaker 1: like is this legal? How is it legal? How's justified?
Speaker 1: And it makes a lot of sense to me. But
Speaker 1: I think there are a lot of folks, some even
Speaker 1: on our side on the right, who are struggling to
Speaker 1: see this for what it is. And to me, there's
Speaker 1: a lot of debate over the declare war clause and
Speaker 1: foreign affairs, but it's not a foreign affairs issue actually,
Speaker 1: properly speaking, it's really a law enforcement operation that happened
Speaker 1: in Caracas earlier this month, isn't it yeah.
Speaker 2: I mean, think about this. You had President Barack Obama
Speaker 2: who ordered the extra judicial drone strikes and killings of
Speaker 2: American citizens, including a minor, and we have no problem
Speaker 2: with that on the left. But now that President Trump
Speaker 2: is in office, when he went and executed an arrest
Speaker 2: warrant for a narco terrorist leader, Maduro and his wife, somehow,
Speaker 2: that is a constitutional crisis. Not only did President Trump
Speaker 2: have the constitutional and statutory power to do what he did,
Speaker 2: he had the duty. There was an outstanding arrest warrant,
Speaker 2: and it's the president's job to take care that our
Speaker 2: laws are faithfully executed. And that is exactly what he did.
Speaker 2: It's similar to what happened with Noriega and pan of Bob.
Speaker 2: This was not a war. This was execution of an
Speaker 2: arrest warrant. And now Ladureau is in Justice Department custody.
Speaker 2: He's in the Bureau of Federal Prisons, and you'll go
Speaker 2: through federal trial with a federal judge and the federal
Speaker 2: jury and the federal prosecution, and they'll decide his faith.
Speaker 1: Yeah, they will, and his fate, whatever it is, Frankie
Speaker 1: will be more than deserved because like many of these
Speaker 1: Narco terrorists. He has a lot of American blood on
Speaker 1: his hands, not necessarily in the form of shoot a
Speaker 1: point blank range murder, but in terms of drug overdoses,
Speaker 1: something that for to many American families know way, way,
Speaker 1: way too much about.
Speaker 2: Mike.
Speaker 1: Another thing that you and I do at the arg
Speaker 1: three project is we pay close attention as a name
Speaker 1: would apply to Article three to the courts. No shortage
Speaker 1: of big cases on the Supreme Court docket. This particular term,
Speaker 1: the one that I find to be most kind of
Speaker 1: attracted to on a personal level. It might not be
Speaker 1: the one that's getting most headlines is the birthright slaizenship case.
Speaker 1: So this is a big question kind of about Donald
Speaker 1: Trump's Day one executive order that says that the fourteenth
Speaker 1: Amendment does not require birthright citizenship for the children of
Speaker 1: legal aliens. Now, I buy this argument, hook, climent and Sinker.
Speaker 1: I've been arguing this since I was a law student
Speaker 1: over over a decade ago. I guess the question for you, Mike.
Speaker 1: Many can kind of briefly explain what the rationale is,
Speaker 1: but more than that, I'm curious is this going to succeed.
Speaker 1: I think a lot of folks look at the current
Speaker 1: court and they get very wildly trying to find five
Speaker 1: votes there. So do you think that that administration has
Speaker 1: a real chance of winning on this case?
Speaker 2: The trub administration's position of birthrights citizenship is legally one
Speaker 2: percent correct. And let's talk about that. We the people
Speaker 2: again are the sovereign citizens of America. Our most crucial
Speaker 2: sovereign power is to control our citizen is to control
Speaker 2: our border, to control our population. We never gave that away.
Speaker 2: After the Civil War, we had the Thirteenth Amendment to
Speaker 2: outlast slavery, the fourteenth amend by due process and equal
Speaker 2: protection to freed male slaves that was extended as women
Speaker 2: with the nineteenth Amendment of them voting rights under the
Speaker 2: fifteenth Amendment for the freed male slaves again extended under
Speaker 2: the nineteenth amendments. As part of the fourteenth Amendment, we
Speaker 2: had birthright citizenship for the freed slaves, for the children
Speaker 2: of the freed slaves. In that Fourteenth Amendment, it talks
Speaker 2: about persons born in the US subject to the jurisdiction
Speaker 2: of the United States get birthright citizenship subject to the
Speaker 2: jurisdiction is the key subject to the jurisdiction means that
Speaker 2: you're loyal to the United States. The children born in
Speaker 2: the United States to foreign ambassadors do not have birthright
Speaker 2: citizenship because they're not subject to the jurisdiction of the
Speaker 2: United States. They're subject to the jurisdiction of the foreign
Speaker 2: country from where they came. Americans Indians were not subject
Speaker 2: to the jurisdiction of the United States. Congress had to
Speaker 2: extend birth right citizenship to American Indians through statues. So
Speaker 2: ask this dispositive question, if American Indians do not have
Speaker 2: birthright citizenship under the fourteenth Amendment to the Constitution, how
Speaker 2: the hell would illegal aliens And the answer is clear,
Speaker 2: It's easy. They do not right. If Congress wants to
Speaker 2: give the children of illegal aliens birthright citizenship, Congress can
Speaker 2: do that through statute like it did for American Indians.
Speaker 2: But for this idea that the courts are just going
Speaker 2: to invent birthright citizenship for twenty million illegal alien aliens
Speaker 2: children is a It is the It is the biggest
Speaker 2: violation of our sovereign power, of our sovereign rights as
Speaker 2: we the people, the sovereign citizens of America that you
Speaker 2: can imagine that courts just hand out citizenship like this
Speaker 2: when it's not authorized by LAMB is a grave violation
Speaker 2: of we the people's sovereign power.
Speaker 1: This sactue that they're talking about is this Calvin Coolish
Speaker 1: era statue in nineteen twenty four of the Indian Citisens shipbats.
Speaker 1: I agree, that's totally despositive about the way. If if
Speaker 1: the children of American Indians were not subject to the
Speaker 1: jurisdiction in eighteen sixty eight when the Fourthy Moment was ratified,
Speaker 1: then I have no idea how to hack the children
Speaker 1: of those who legally are not even here. You know,
Speaker 1: they you know, they could be officially here, they could
Speaker 1: have residents, but legally illegal aliens are not actually here.
Speaker 1: So I have no idea, frankly, how this argument ever
Speaker 1: got accepted. God willing, the court will do the right thing.
Speaker 1: At least one final court case I want to get
Speaker 1: your take on, and that's the big tariff's case. I
Speaker 1: think a lot of folks are paying very close attention.
Speaker 1: What's the court going to do when it comes to
Speaker 1: Donald Trump's tariffs. The big question here is the perceived
Speaker 1: disonance between Article one, Section eight congressional power to levy
Speaker 1: duties impost taxes versus this late nineteen seventy statute for
Speaker 1: emergency economic powers that the administrations relying upon. How do
Speaker 1: you see this one breaking up?
Speaker 2: Well, that's a good question. The Congress definitely has the
Speaker 2: power over tariffs under the Constitution. That Congress also delegates
Speaker 2: a lot of this power to the president. If you
Speaker 2: look at the Youngstown Steel case, which is an old
Speaker 2: Supreme Court case, the president is at the apex of
Speaker 2: his power when these in foreign affairs, which tariffs are
Speaker 2: in foreign affairs, and you have a congressional delegation of power,
Speaker 2: which is exactly what you have here. So if the
Speaker 2: Supreme Court follows precedents, if they follow the Youngstown Steel
Speaker 2: President President Trump should win. If they don't follow President
Speaker 2: because they want to be a political activist because it's
Speaker 2: Trump instead of Biden, you could see you could.
Speaker 3: See President Trump loser. You could see some kind of
Speaker 3: split the baby thing where they have a tiered system,
Speaker 3: you know, some balancing tests, some weird tests that squishy
Speaker 3: lawless justices do when they want to be politicians in ropes.
Speaker 1: You know the Youngstown case. Actually that's a really nice example.
Speaker 1: This is the Harry Truman Steele Seize Your case and
Speaker 1: You're totally right that when the president is acting on
Speaker 1: delegate authority in foreign affairs, that really is the height
Speaker 1: of his power. I also make another argument as well,
Speaker 1: which is that President Trump, I think, views tariffs as
Speaker 1: an emergency issue because he cares a lot about the
Speaker 1: balance of trade, So he genuinely, subjectively, perhaps objective, but subjective,
Speaker 1: views trade as an economic emergency. So I think that
Speaker 1: on those grounds he's probably justified as well. Mike Bill
Speaker 1: could before I let you go again, follows folks at
Speaker 1: Article three project dot org. What is the number one
Speaker 1: priority that you would like to convey to this audience
Speaker 1: when it comes to what we at A three p
Speaker 1: are pushing right now? What is number one priority? And
Speaker 1: how can the listeners of viewers get involved.
Speaker 2: I think that this lawfare and judicial sabotage against the
Speaker 2: duly elected president of the United States is a direct
Speaker 2: assault on we the people, and it's unacceptable. This idea
Speaker 2: that judges can control our population, control our citizenship, controller
Speaker 2: of borders is completely totally unacceptable. We've been fighting that ferociously.
Speaker 2: We fought the lawfare before the election to help President
Speaker 2: Trump get back an office, and now we're fighting the
Speaker 2: judicial sabotage while he's in office. The judicial. We're winning
Speaker 2: in all these fronts again. Now Democrats are turning to
Speaker 2: violence on the street, so we need to push the
Speaker 2: Justice Department to start arresting these people for insurrection, for
Speaker 2: seditious conspiracy, for assault, kidnapping, conspiracy, harboring, many other federal felonies.
Speaker 2: And you can go to article three Projects dot org,
Speaker 2: article number three project dot org take action, donate all
Speaker 2: of us on social media, and Josh Hammer, you have
Speaker 2: been a warrior for us for many years, so I
Speaker 2: really appreciate that all that you do. Congrats. I'm making
Speaker 2: it big time. Now it's hammer time. It's your prime
Speaker 2: time hammer time, So congrats on all you do.
Speaker 1: Mike, Mike, we love you, man the Viceroy. Follow him
Speaker 1: on x at mrd DMIA. I'm Josh Hammer. We'll be
Speaker 1: right back after a short commercial break. Make sure to
Speaker 1: stay with.
Speaker 3: Us, folks.
Speaker 1: I'm Josh Hammer. Welcome back, Mike Davis, great friend of
Speaker 1: the show. Also again my colleague at the article three projects.
Speaker 1: I'm very proud of the work that we do at
Speaker 1: a three P as we call it. Make sure again
Speaker 1: check us out Article three project dot org. There's plenty
Speaker 1: of big cases at the US Supreme Court going on
Speaker 1: right now. I want to briefly elaborate for now on
Speaker 1: the tariff case that Mike and I were discussing. So,
Speaker 1: the statutory basis that Donald Trump invoked to justify his
Speaker 1: reciprocal tariffs, which he first introduced in so called Liberation
Speaker 1: Day at the Rosegarn the White House last April, was
Speaker 1: this late nineteen seventies era emergency economic statue that comes
Speaker 1: from the Jimmy Carter presidency, and the argument that his
Speaker 1: administration has made is that the use of tariffs are
Speaker 1: in emergency power, that they can be justified here as
Speaker 1: an emergency economic use. Mike made a very clever argument.
Speaker 1: It's really kind of out of a con law one
Speaker 1: oh one class during law school, which is this case
Speaker 1: from President Harry Truman in the early nineteen fifties called
Speaker 1: the steel Seizure case, where in the context of trying
Speaker 1: to get supplies for the Korean War, President Truman went
Speaker 1: ahead and, acting on congressionally delegated power that was debated,
Speaker 1: but acting nominally on that kind of power, went ahead
Speaker 1: and seized some steel mass. And the court does have
Speaker 1: this famous reasoning where they say that the president sometimes
Speaker 1: acts at the lowest ebb of his power, the highest point.
Speaker 1: When Congress delegates power, that's when the president acts at
Speaker 1: its highest point. The real question here is whether or
Speaker 1: not this is a clear enough delegation. The folks on
Speaker 1: the other side say they like to cite Anthony Scalia,
Speaker 1: who Longo said the Congress does not hide elephants in
Speaker 1: mouse houls, that when Congress wants to delegate a big thing,
Speaker 1: for instance, they would argue, like tariffs, then they have
Speaker 1: to articulate that a little more clearly and crisply. You
Speaker 1: can't just subsume tariffs into emergency. The other side that argument,
Speaker 1: as I said to Mike, is that at least for
Speaker 1: this president, tariffs really are an emergency. Why. Because Donald
Speaker 1: Trump is a big mercantilist. He's a big balance of
Speaker 1: trade guy. You might love that, you might hate that.
Speaker 1: It might be a hardcore las a fair free trader,
Speaker 1: which typically means that you don't really care about the
Speaker 1: balance of trade. So it means that you you support
Speaker 1: in an export based economy, not an import based economy.
Speaker 1: So probably you hate you hate tariffs. Doesn't matter because
Speaker 1: Donald Trump does not view it that way. Donald Trump
Speaker 1: views mercantilism bounces of trade as being sound economic theory. Again,
Speaker 1: I don't really care what you think, telling you how
Speaker 1: Donald Trum approaches this. So for him, the notion that
Speaker 1: America runs gargantuan trade deficits, or at least did for
Speaker 1: years and years and years, decades, decades, a decadees, especially
Speaker 1: as the post Cold War neoliberal order really took off.
Speaker 1: He views that as a big problem as dare I say,
Speaker 1: an emergency, thereby requiring some sort of emergency power. So
Speaker 1: to me, that is one of the more compelling arguments
Speaker 1: why I think the court might uphold the tariffs. But
Speaker 1: I don't necessarily know that they're gonna do it. I
Speaker 1: think it's gonna be a very close call. I generally
Speaker 1: hesitate to make a prediction on the tariff case. We'll see.
Speaker 1: I certainly hope though, that Secretary Bessends and the other
Speaker 1: ECONO policy makers they're in the administration, so they have
Speaker 1: a backup plan in place when it comes to trying
Speaker 1: to know what to do with this if the tariff
Speaker 1: case does indeed go the wrong way and the administration loses,
Speaker 1: I'm sure they have something in mind. I don't pretend
Speaker 1: to know exactly exactly what that is. Perhaps the even
Speaker 1: broader question, though, which Mike was gonna add towards the
Speaker 1: end of our conversation, is his notion of judicial sabotage
Speaker 1: and judicial insurrection. More generally, it's been an issue plaguing
Speaker 1: Donald Trump since his very first days in office. During
Speaker 1: the first Donald Trump term, the very first term, he
Speaker 1: faced more so called nationwide injunctions than the first forty
Speaker 1: four presidents combined, somewhere between sixty and seventy by a
Speaker 1: rough count, and thus far just in the first year.
Speaker 1: It's now year to the day on the first year
Speaker 1: to the day of this second administration, depending on how
Speaker 1: you count, that he's faced just as many, potentially even
Speaker 1: more than he faced his entire first term. This is
Speaker 1: in spite, by the way, in spite of the Supreme
Speaker 1: Courts fairly clear ruling not crystal clear, but fairly clear
Speaker 1: ruling last summer in the Casa case, a case that
Speaker 1: was initially litigated as a birthrights Isn't Your case, but
Speaker 1: had its procedure changed throughout the litigation. It became a
Speaker 1: case about the legitimacy or lack thereof of so called
Speaker 1: nationwide universal injunctions, and there any Cony Barrett, writing for
Speaker 1: the Court, wrote pretty clearly that with some very very
Speaker 1: very very very tiny exceptions dispensations from the rule niche Wie,
Speaker 1: injunctions are bumpkin their garbage. They offend our constitutional tradition.
Speaker 1: Why because the judgment power, the judicial power of which
Speaker 1: Article three of the Constitutions be speaking in theudiciary is
Speaker 1: the power of a court to bind the named litigants
Speaker 1: to a certain lawsuit no one else. And yet they
Speaker 1: keep on going, don't they? How many so called sweeping
Speaker 1: injunctions to bind not just the parts of the case.
Speaker 1: Have we seen just since the Casta case last June,
Speaker 1: whether it's Judge Michelle Boardman, Judge Jeb Bosburg, Judge McConnell
Speaker 1: up in New England, a guy who was trying to
Speaker 1: hold trumdministrators visuals in contempt a contempt of court last year.
Speaker 1: The chutzba of these lower courts robes tyrants. Have they
Speaker 1: not read Alexander Hamilton in the Federal seventy eight? Have
Speaker 1: they not read Hamilton explaining explicating quite clearly that the
Speaker 1: justiciary is quote the least dangerous, the least dangerous of
Speaker 1: the branches because it has neither force nor will, but
Speaker 1: merely judgment. Hamilton explains this, I think extremely clearly. Kiashu
Speaker 1: goes on to say that this is because they depend
Speaker 1: that to say, the judges depend upon the efficacy of
Speaker 1: the executive branch even for the enforcement of their own judgment.
Speaker 1: In other words, they don't even judges can't even enforce
Speaker 1: their own judgments to this day, they rely on the
Speaker 1: US marshals in theory to do that. We are the
Speaker 1: US marshals institutionally bureaucratically housed. Are they part of Article
Speaker 1: three the courts? No, they're actually part of articles too,
Speaker 1: the doja at the executive branch. So to this day
Speaker 1: Hamilton's warning is true. Another man who ordered a warning
Speaker 1: on this, a great man, is Antonin Scalia. We just
Speaker 1: mentioned a few minutes ago in the context of his
Speaker 1: famous adage about Congress not hiding elephants and nousols. He
Speaker 1: was talking there about how to interpret its statutes. Here
Speaker 1: I want to read for you the final paragraph of
Speaker 1: Antony Scalia's vociferous descent, as he was known to do.
Speaker 1: In the same sex marriage case O Bergfeld versus Hodges,
Speaker 1: the case that erroneously constitutionalized same sex marriage in twenty fifteen,
Speaker 1: in a wild naked act of pure judicial usurpation of
Speaker 1: the ability of the people to define what is and
Speaker 1: what is not a marriage. Here was antonin Scalia concluding
Speaker 1: his quite quite amusing and enjoyable descent. Hubris is sometimes
Speaker 1: defined as overweening pride, and pride we know goes before
Speaker 1: a fall. The judiciary is the least dangerous to the
Speaker 1: federal branches because it has neither force nor will, but
Speaker 1: merely judgment, and must ultimately depend upon the aid of
Speaker 1: the executive arm and the States even for the efficacy
Speaker 1: of its judgments. With each decision of ours that takes
Speaker 1: from the people a question properly left to them, With
Speaker 1: each decision that is unabashedly based not on law, but
Speaker 1: on the reason judgment of a bare majority of this court,
Speaker 1: we move one step closer to being reminded of our
Speaker 1: own impact. I think he had it right with every
Speaker 1: act of judicial usurpation. Every time that Jeb Bosberg tells
Speaker 1: a plane to turn around when the plane is transporting
Speaker 1: legal aliens out of the country, any judge that says stop,
Speaker 1: you can't end TPS temporary protective status has become an
Speaker 1: amnancy program for Honduran small these lots of others. That
Speaker 1: judge is overstepping his or her legitimate boundaries of his
Speaker 1: proper Article three federal jurisdiction and beyond the confines. What
Speaker 1: the jugital power of Article three, Section one, Clause one
Speaker 1: properly means. The onus at this point is on the
Speaker 1: Congress and the Executive branch to go even further than
Speaker 1: they already have to actually remind the courts, as sclea
Speaker 1: pudd It of their own impotence. Ideally, that requires Congress
Speaker 1: to act. There's only so much the executive branch can
Speaker 1: do of its own accord. Congress should start defunding judges.
Speaker 1: Chip roy On the House User Committe's been proposing exactly that.
Speaker 1: When it comes to judges Bosberg Andenbornment, defund them, strip
Speaker 1: them of jurisdiction, impeach them. There's lots of things you
Speaker 1: can do. Congress has more power than they care to
Speaker 1: utilize in this area. It's been one years that's Trump
Speaker 1: was sworn in, and the audital insurrection, as its gust
Speaker 1: of Mike Davis is still raging. One of my wishes
Speaker 1: for year two, the Trump presidency is to see this
Speaker 1: digital insurrection quashed, just like the insurrection that's been underway
Speaker 1: in Minneapolis after the Renee Good shooting. I'm Josh Hammer
Speaker 1: who hoping that you have enjoyed today's episode of The
Speaker 1: Josh Hammer Show. Make sure to watch the subscribe wherever
Speaker 1: you get your podcast, watch us in the Sale news channel.
Speaker 1: We'll be right back tomorrow.
Speaker 2: The Josh Hammer Show is a member of the Trust Project.