Speaker 1: Please welcome to the Armstrong and Getty Show.
Speaker 2: The Fabulous Tim Sanderfer, Tim Lawyer, vice president for Litigation
Speaker 2: with the Goldwater Institute.
Speaker 1: Tim, how are you, sir?
Speaker 3: I'm great? How are you guys?
Speaker 1: Excellent?
Speaker 2: I felt a little jiv and pretentious the other day
Speaker 2: I texted Tim about coming on the show, and I
Speaker 2: just said, Hey, would you like to come chat about
Speaker 2: sec versus A v.
Speaker 1: Jercasy? And I'm not an attorney.
Speaker 2: I don't throw around cases without a description of what
Speaker 2: they were. I just hope you didn't think I was
Speaker 2: trying to come off as too big for my britches.
Speaker 3: Well, okay, I'll be honest. I immediately ran for Scotus
Speaker 3: blog to figure out what the heck you were talking about.
Speaker 1: That's fine, that's perfect. No.
Speaker 3: I mean, I'm glad that you guys are paying attention
Speaker 3: to this case and to similar cases, because this is
Speaker 3: one of a group of cases that's going to be
Speaker 3: addressing the limits of the so called administrative state, of
Speaker 3: these regulatory agencies that exercise power to write the law
Speaker 3: in the gate a leged infractions of the law and
Speaker 3: then hold hearings to determine whether you violated the rule.
Speaker 3: And the combining executive, judicial, and legislative powers all in one.
Speaker 3: And then it's entirely overseen by bureaucrats instead of elected representatives.
Speaker 3: So you even the idea that you can somehow vote
Speaker 3: the bums out or something is inapplicable. And that's an
Speaker 3: issue that is of increasing importance. And that's what's that
Speaker 3: issue with this case and in these other cases.
Speaker 2: What really grabbed me about the case was the Wall
Speaker 2: Street Journals headline in their opinion section, the Supreme Court
Speaker 2: considers the right to trial by jury.
Speaker 1: That's a legit headline.
Speaker 3: Yeah, that's exactly what's going on. So what happens here
Speaker 3: is so everybody knows that if you're accused of fraud,
Speaker 3: which is a crime, and the government charges you with
Speaker 3: that crime, you get a trial where you get a
Speaker 3: jury of your peers to determine whether you're guilty or
Speaker 3: not guilty. But instead, what happened here was that this bureaucracy,
Speaker 3: this agency, the SEC, they promulgated this rule that says, well,
Speaker 3: you're not allowed to trade dishonestly by misleading people. And
Speaker 3: what they're doing is rephrasing the ordinary rule of fraud.
Speaker 3: But they're rephrasing it in bureaucrats speak. And then they say,
Speaker 3: and because this is a bureaucratic thing, this is an
Speaker 3: administrative thing, we don't have to follow the rules that
Speaker 3: apply in courts. We can just use our administrative process.
Speaker 3: And that's what they were arguing in the Supreme Court.
Speaker 3: They were saying, well, it's basically up to us to
Speaker 3: choose whether to go to an ordinary court and give
Speaker 3: you a trial by jury, or whether to proceed in
Speaker 3: our administrative court, which is overseen by a judge who
Speaker 3: is being paid by the prosecutor. Honestly, in these agencies, right,
Speaker 3: so you're not going to win there, and you don't
Speaker 3: get a jury trial, and it's up to us, the
Speaker 3: government to decide whether or not to let you have
Speaker 3: this jury because we've decided to rephrase this as an
Speaker 3: administrative thing.
Speaker 4: Go ahead, Jack, Sorry, I was going to say, I
Speaker 4: feel like at some point in this conversation maybe you
Speaker 4: should redo your famous to me, no bad things speecious
Speaker 4: so everybody fully understands how this whole agency thing works.
Speaker 1: All right, let me let.
Speaker 2: Me interject a question real quickly, and then we'll it's
Speaker 2: a Christmas tradition, but getting back to the idea that
Speaker 2: the government has decided whether I get a jury trial
Speaker 2: or just this administrative hearing. What are my rights? How
Speaker 2: do my rights as a defendant differ? Is that even
Speaker 2: the right word? What are the rules of evidence? I mean,
Speaker 2: what's the story with these hearings?
Speaker 3: These hearings follow something similar. It looks very much like
Speaker 3: an ordinary trial. But that is not always the case,
Speaker 3: and particularly at the state level, because you know, we
Speaker 3: always talk at these federal bureaucracies and forget that states
Speaker 3: have their own bureaucraphies. Also in state bureaucracies, they very
Speaker 3: often do what they call a quote informal hearing end quote,
Speaker 3: and they try to make it sound like this is
Speaker 3: a good thing for you. Oh, we're just going to
Speaker 3: have an informal hearing. We just get together to talk.
Speaker 3: You don't have to bring your lawyer, which of course
Speaker 3: should immediately set off the alarms alarm bells in your head,
Speaker 3: because it means that they don't follow the rules of evidence,
Speaker 3: and they don't follow the rules of procedure. They can
Speaker 3: use hearsay against you, They can use all sorts of
Speaker 3: evidence that would be barred from a real court in
Speaker 3: these administrative hearings, and then when you appeal from that
Speaker 3: into a real court, the judge in the real court
Speaker 3: is not allowed to consider any other evidence except what
Speaker 3: was used against you in the administrative hearing. That's how
Speaker 3: a lot of these hearings work. It's totally unfair and
Speaker 3: in my view, totally unconstitution I'm.
Speaker 4: Glad you made the point that yes, states have jails
Speaker 4: and the ability to find and confiscate too, so it's
Speaker 4: not just at the federal level. So in case people
Speaker 4: don't fully understand how we even got here, give us
Speaker 4: the Tim Sander for famous No Bad Things speech about
Speaker 4: how agencies can work.
Speaker 3: So let's say I'm running for Congress, right, and I'm
Speaker 3: my platform is I'm against bad things, And of course
Speaker 3: everybody's going to vote for me because you're also against
Speaker 3: bad things. I know you guys are against bad things.
Speaker 3: There's very f people who are, oh staunchly. So I
Speaker 3: get elected to office, right, and on my first day
Speaker 3: in office, sure enough, I'm true to my word. I
Speaker 3: fulfill my campaign promise. I sit down and I write
Speaker 3: a bill and No Bad Things Act of twenty twenty three,
Speaker 3: and it's two sentences long. It says one there shall
Speaker 3: be no more bad things.
Speaker 1: Two two.
Speaker 3: There shall now be a Federal Bad Things Agency, which
Speaker 3: shall define what is a bad thing, investigate alleged bad things,
Speaker 3: hold hearings about bad things, and then punish bad things.
Speaker 3: And then I see I've done it. My bill got passed.
Speaker 3: I can go home and I can tell all my
Speaker 3: constituents I look at what I did. I have banned
Speaker 3: bad things, and I can move on to the next thing. Meanwhile,
Speaker 3: the bureaucrats get to work. And not only do these
Speaker 3: bureaucrats operate without you have no control as a voter.
Speaker 3: You have no control over these bureaucrats. If they go
Speaker 3: and do something that is outrageous and it ends up
Speaker 3: in the newspaper and people get angry about it. I
Speaker 3: can now hold a hearing and drag the Secretary of
Speaker 3: Bad Things in front of me and say, shame on you.
Speaker 3: That's not what I meant when I passed my law. Well,
Speaker 3: and I again, I look like a good guy. It's
Speaker 3: a scheme where the actual law making gets done by
Speaker 3: these hired bureaucrats, and I, the elected official, can wash
Speaker 3: my hands of the responsibility but still take all of
Speaker 3: the credit.
Speaker 4: Yeah, and it's so hard to fight against.
Speaker 1: Because of that.
Speaker 4: So are both parties involved in the growing power of
Speaker 4: agencies like this.
Speaker 3: They absolutely are. It's you mean we often complain about
Speaker 3: these agencies like the EPA. The EPA was created by
Speaker 3: Richard Nixon. I mean, this is a Republican as much
Speaker 3: as a democratic problem. Now, the good thing is from
Speaker 3: this Jacrasy case that we're talking about in the oral argument,
Speaker 3: it looked like most of the justices had a real
Speaker 3: problem with this idea of prosecuting people in an administrative
Speaker 3: courts without a jury by just pretending that it's something
Speaker 3: other than a crime. But Justice Kagan seemed to be
Speaker 3: fine with it, but the rest of the justices had
Speaker 3: real problems with it. Justice Kagan, she's got this mindset that,
Speaker 3: you know, government should be run by experts and the
Speaker 3: ext of course are the brilliant geniuses who run these
Speaker 3: administrative agencies, and we should just let them do all
Speaker 3: the governing and then you know, obey them when they
Speaker 3: when they tell us what to do. That's a that's
Speaker 3: a mindset that is very deeply rooted in Washington, d c.
Speaker 3: And it's a real problem.
Speaker 1: Did she arrive via time machine from the nineteen thirties
Speaker 1: or something like that.
Speaker 2: Well lot out of your your wonderful book Freedom's Theories,
Speaker 2: which everybody should read.
Speaker 3: And a lot of these precedents, these legal precedents do
Speaker 3: date back to the thirties when these giant administrative agencies
Speaker 3: were adopted. Now, another case that's coming up very in January,
Speaker 3: that will be arguing in January is this case called
Speaker 3: Low or Bright that involves deference to administrative agencies. And
Speaker 3: difference is this rule that says when an agency interprets
Speaker 3: its own authority, like you know, the EPA has the
Speaker 3: authority to prohibit pollution. Now it's okay, So now they're
Speaker 3: going to define what is a pollutant. Right when they
Speaker 3: do that, the judges are supposed to defer to them,
Speaker 3: just rubber stamp what they say. And that's called Chevron deference.
Speaker 3: And this is a terrible problem because of course, the
Speaker 3: bureaucrats interpret their authority as broadly as possible to expand
Speaker 3: their power, and that means that the ball is always
Speaker 3: moving in the direction of more and more government control.
Speaker 3: And it's pretty clear the writing is on the wall
Speaker 3: that the Supreme Court doesn't like this anymore. And this
Speaker 3: this case, this low or bright case is very likely
Speaker 3: to scale back or pay perhaps even eliminate at least
Speaker 3: that part of this of this problem.
Speaker 2: So a request for one more bit of illumination of
Speaker 2: the bigger problem we're talking about. I'm trying to remember
Speaker 2: the name of the case. Those folks who are just
Speaker 2: trying to build on their little subdivision lot and the
Speaker 2: EPA claim that they're a wetland.
Speaker 1: Can you give folks the uh?
Speaker 4: I'll the case of right versus Wrong is.
Speaker 3: This goes back to the case of finders versus keepers.
Speaker 3: This is you're talking about a case called Sacket versus EPA,
Speaker 3: which has been in the courts for over a decade now.
Speaker 3: And this is a case where these people wanted to
Speaker 3: build a house on their on their dry land in
Speaker 3: a neighborhood in Idaho, and the Feds showed up and said,
Speaker 3: guess what, it's a wetland and what is a wetland? Well,
Speaker 3: it doesn't have to be wet and it doesn't have
Speaker 3: to be land. It can be basically whatever the bureaucrat
Speaker 3: says it is. And you can be fined seventy five
Speaker 3: thousand dollars a day for doing anything that pollutes this
Speaker 3: alleged wetland, and they said, we don't think it's a wetland.
Speaker 3: We'd like to have a hearing where we can prove
Speaker 3: it's not a wetland. And the EPA said, no, you're
Speaker 3: not entitled to that, and that went up to the
Speaker 3: Supreme Court ten years ago and the Supreme Court said no,
Speaker 3: they get a right to have a hearing, and it
Speaker 3: went back and it took another decade for them to
Speaker 3: get back to the Supreme Court on the question of
Speaker 3: what the definition of a wetland even is. Now I'm
Speaker 3: glad to say that my friends at the Pacific Legal
Speaker 3: Foundation won that case in this this past Supreme Court term,
Speaker 3: and the Supreme Court unanimously said that the bureaucrats were
Speaker 3: interpreting the term wetland far too broadly. But it's a
Speaker 3: real indication of how hard it it is to fight
Speaker 3: the administrative agency that it took a decade of litigation
Speaker 3: to get to the point where every Supreme Court justice
Speaker 3: said the bureaucrats were wrong. That's amazing And they could
Speaker 3: not have been done except that our friends at Pacific
Speaker 3: Legal Foundation represented them for free.
Speaker 4: And it would be so frustrating if you were involved
Speaker 4: in one of these things fighting it and you know
Speaker 4: you're fined or whatever, your life ruined or whatever. On
Speaker 4: hold you'd think, Am I in America or not? I
Speaker 4: meant to be frustrating.
Speaker 3: In fact, very question was asked at the Supreme Court.
Speaker 3: Justice Alito interrupted at one point in the hearing and said,
Speaker 3: how could this possibly occur in the United States?
Speaker 4: Hey, before we let you go. And I don't know
Speaker 4: how much you want to talk about this or not.
Speaker 4: Although I follow your Twitter feed, which is also public,
Speaker 4: you seem to be a pretty big believer that Ukraine
Speaker 4: losing to Russia or Israel having to hold on to
Speaker 4: a ceasefire against some massa is a pretty big event
Speaker 4: in world history.
Speaker 3: I do indeed, and I hope the good guys win
Speaker 3: both of those wars.
Speaker 1: Yeah, yeah, it is a big deal.
Speaker 3: We have repeatedly in the past five or six years especially,
Speaker 3: been backing away from defending freedom, and we do it
Speaker 3: under this ridiculous slogan of oh, we can't fight endless wars.
Speaker 3: The phrase endless wars is an idiot slogan. All wars
Speaker 3: are endless until you win them. Life is an endless
Speaker 3: war against death. Freedom is an endless war against tyranny,
Speaker 3: and it's about about time we woke up to that.
Speaker 1: That's really good.
Speaker 3: Well, bullies, as we know from personal experience, bullies will
Speaker 3: continue pushing until you push back. And Americans have become
Speaker 3: increasingly reticent to defend the principles that protect their other
Speaker 3: countries as well as ourselves, on this notion that, well,
Speaker 3: we shouldn't be the world's policeman. Well, if you're not
Speaker 3: going to be the world's policeman, somebody else is going
Speaker 3: to be. It's not like if we stop doing it,
Speaker 3: nobody's going to do it. It's if we stop doing it,
Speaker 3: Vladimir Putin going to do it. If we stop doing it,
Speaker 3: the Isaola is going to do it, and particularly the Iatola.
Speaker 3: The Iran has been at war with the United States
Speaker 3: since nineteen seventy nine. And we like to try and
Speaker 3: pretend otherwise, and we come up with all sorts of
Speaker 3: ingenious schemes for pretending otherwise on the theory that, as
Speaker 3: President Obama liked to say, we can end a war. Well,
Speaker 3: once again, wars are never ended. There is no such
Speaker 3: thing as ending a war. You either win a war,
Speaker 3: or you lose a war, or you postpone a war.
Speaker 3: Those are the only three options. Ending a war typically means,
Speaker 3: as we saw in Afghanistan, typically means literally surrendering to
Speaker 3: the Taliban, which is what the Trump administration did and
Speaker 3: which the Biden administration followed through on. And there is
Speaker 3: no question that that emboldened our enemies and taught them
Speaker 3: that Americans are not willing to stand up for ourselves
Speaker 3: or for Western civilization. And that's why Western civilization has
Speaker 3: frankly been on the retreat in the past several years,
Speaker 3: and it's going to continue until people finally insist on
Speaker 3: putting a stock to it. Thank Heavens, Israel is finally
Speaker 3: insisting on putting a stop to it, and we need
Speaker 3: to let them win victory over Hamas. Anybody out there
Speaker 3: who is concerned about the safety of innocent Palestinians, their
Speaker 3: number one demand should be that Hamas surrender immediately. Hamas
Speaker 3: is responsible for every single civilian death that occurs in
Speaker 3: this war, and it's because they refuse to surrender and
Speaker 3: insist on shielding themselves behind civilians. And moral clarity on
Speaker 3: this point is absolutely essential, not only for Israel, but
Speaker 3: for Western civilization as a whole. This isn't going to
Speaker 3: defend itself. We've not been given any guarantees that Rome
Speaker 3: and Egypt were not given in their day. And unless
Speaker 3: we are willing to defend our principles of individual freedom, democracy,
Speaker 3: human rights, the rights of women, those rights are going
Speaker 3: to vanish under the fists of the strongest bully out
Speaker 3: there for.
Speaker 4: A thousand years.
Speaker 2: And I think that's the exception of maybe, well, certainly
Speaker 2: Ukraine and Poland, in a couple of other countries. I
Speaker 2: think we've as a civilization forgotten that sometimes you have
Speaker 2: to defend yourself to the death. We imagine that we're
Speaker 2: living in a world that is post all of that ugliness.
Speaker 2: Thirty seconds your summary, sir well.
Speaker 3: I say thank god for the Baltic States when it
Speaker 3: comes to Eastern Europe. Thank goodness for Lithuania, Latvia and Estonia,
Speaker 3: who are clear eyed about this because they suffered from
Speaker 3: the world refusing to come to their defense. And we
Speaker 3: should be willing and ready to defend them and the
Speaker 3: rest of Europe against against Putin's aggression, and to defend
Speaker 3: the innocent people of Israel against the aggression of Hamas
Speaker 3: and their Iranian bosses.
Speaker 2: Tim sand for Tim, we appreciate the thoughts in the
Speaker 2: time very much, and certainly we agree and also are
Speaker 2: very very interested in countering the young progressive moral relatives
Speaker 2: life lunatics running around on campuses these days.
Speaker 3: Well, then then get people to watch my videos and
Speaker 3: that'll solve that problem.
Speaker 2: I tweet them out every time you make them. We'll
Speaker 2: have the links at armstrong ee getty dot com, Armstrong
Speaker 2: and Getty