WEBVTT - No Bad Things:  Tim Sandefur Talks To Armstrong & Getty

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<v Speaker 1>Please welcome to the Armstrong and Getty Show.

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<v Speaker 2>The Fabulous Tim Sanderfer, Tim Lawyer, vice president for Litigation

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<v Speaker 2>with the Goldwater Institute.

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<v Speaker 1>Tim, how are you, sir?

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<v Speaker 3>I'm great? How are you guys?

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<v Speaker 1>Excellent?

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<v Speaker 2>I felt a little jiv and pretentious the other day

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<v Speaker 2>I texted Tim about coming on the show, and I

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<v Speaker 2>just said, Hey, would you like to come chat about

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<v Speaker 2>sec versus A v.

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<v Speaker 1>Jercasy? And I'm not an attorney.

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<v Speaker 2>I don't throw around cases without a description of what

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<v Speaker 2>they were. I just hope you didn't think I was

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<v Speaker 2>trying to come off as too big for my britches.

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<v Speaker 3>Well, okay, I'll be honest. I immediately ran for Scotus

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<v Speaker 3>blog to figure out what the heck you were talking about.

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<v Speaker 1>That's fine, that's perfect. No.

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<v Speaker 3>I mean, I'm glad that you guys are paying attention

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<v Speaker 3>to this case and to similar cases, because this is

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<v Speaker 3>one of a group of cases that's going to be

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<v Speaker 3>addressing the limits of the so called administrative state, of

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<v Speaker 3>these regulatory agencies that exercise power to write the law

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<v Speaker 3>in the gate a leged infractions of the law and

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<v Speaker 3>then hold hearings to determine whether you violated the rule.

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<v Speaker 3>And the combining executive, judicial, and legislative powers all in one.

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<v Speaker 3>And then it's entirely overseen by bureaucrats instead of elected representatives.

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<v Speaker 3>So you even the idea that you can somehow vote

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<v Speaker 3>the bums out or something is inapplicable. And that's an

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<v Speaker 3>issue that is of increasing importance. And that's what's that

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<v Speaker 3>issue with this case and in these other cases.

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<v Speaker 2>What really grabbed me about the case was the Wall

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<v Speaker 2>Street Journals headline in their opinion section, the Supreme Court

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<v Speaker 2>considers the right to trial by jury.

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<v Speaker 1>That's a legit headline.

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<v Speaker 3>Yeah, that's exactly what's going on. So what happens here

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<v Speaker 3>is so everybody knows that if you're accused of fraud,

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<v Speaker 3>which is a crime, and the government charges you with

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<v Speaker 3>that crime, you get a trial where you get a

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<v Speaker 3>jury of your peers to determine whether you're guilty or

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<v Speaker 3>not guilty. But instead, what happened here was that this bureaucracy,

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<v Speaker 3>this agency, the SEC, they promulgated this rule that says, well,

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<v Speaker 3>you're not allowed to trade dishonestly by misleading people. And

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<v Speaker 3>what they're doing is rephrasing the ordinary rule of fraud.

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<v Speaker 3>But they're rephrasing it in bureaucrats speak. And then they say,

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<v Speaker 3>and because this is a bureaucratic thing, this is an

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<v Speaker 3>administrative thing, we don't have to follow the rules that

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<v Speaker 3>apply in courts. We can just use our administrative process.

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<v Speaker 3>And that's what they were arguing in the Supreme Court.

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<v Speaker 3>They were saying, well, it's basically up to us to

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<v Speaker 3>choose whether to go to an ordinary court and give

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<v Speaker 3>you a trial by jury, or whether to proceed in

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<v Speaker 3>our administrative court, which is overseen by a judge who

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<v Speaker 3>is being paid by the prosecutor. Honestly, in these agencies, right,

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<v Speaker 3>so you're not going to win there, and you don't

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<v Speaker 3>get a jury trial, and it's up to us, the

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<v Speaker 3>government to decide whether or not to let you have

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<v Speaker 3>this jury because we've decided to rephrase this as an

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<v Speaker 3>administrative thing.

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<v Speaker 4>Go ahead, Jack, Sorry, I was going to say, I

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<v Speaker 4>feel like at some point in this conversation maybe you

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<v Speaker 4>should redo your famous to me, no bad things speecious

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<v Speaker 4>so everybody fully understands how this whole agency thing works.

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<v Speaker 1>All right, let me let.

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<v Speaker 2>Me interject a question real quickly, and then we'll it's

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<v Speaker 2>a Christmas tradition, but getting back to the idea that

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<v Speaker 2>the government has decided whether I get a jury trial

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<v Speaker 2>or just this administrative hearing. What are my rights? How

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<v Speaker 2>do my rights as a defendant differ? Is that even

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<v Speaker 2>the right word? What are the rules of evidence? I mean,

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<v Speaker 2>what's the story with these hearings?

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<v Speaker 3>These hearings follow something similar. It looks very much like

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<v Speaker 3>an ordinary trial. But that is not always the case,

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<v Speaker 3>and particularly at the state level, because you know, we

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<v Speaker 3>always talk at these federal bureaucracies and forget that states

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<v Speaker 3>have their own bureaucraphies. Also in state bureaucracies, they very

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<v Speaker 3>often do what they call a quote informal hearing end quote,

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<v Speaker 3>and they try to make it sound like this is

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<v Speaker 3>a good thing for you. Oh, we're just going to

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<v Speaker 3>have an informal hearing. We just get together to talk.

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<v Speaker 3>You don't have to bring your lawyer, which of course

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<v Speaker 3>should immediately set off the alarms alarm bells in your head,

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<v Speaker 3>because it means that they don't follow the rules of evidence,

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<v Speaker 3>and they don't follow the rules of procedure. They can

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<v Speaker 3>use hearsay against you, They can use all sorts of

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<v Speaker 3>evidence that would be barred from a real court in

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<v Speaker 3>these administrative hearings, and then when you appeal from that

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<v Speaker 3>into a real court, the judge in the real court

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<v Speaker 3>is not allowed to consider any other evidence except what

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<v Speaker 3>was used against you in the administrative hearing. That's how

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<v Speaker 3>a lot of these hearings work. It's totally unfair and

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<v Speaker 3>in my view, totally unconstitution I'm.

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<v Speaker 4>Glad you made the point that yes, states have jails

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<v Speaker 4>and the ability to find and confiscate too, so it's

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<v Speaker 4>not just at the federal level. So in case people

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<v Speaker 4>don't fully understand how we even got here, give us

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<v Speaker 4>the Tim Sander for famous No Bad Things speech about

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<v Speaker 4>how agencies can work.

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<v Speaker 3>So let's say I'm running for Congress, right, and I'm

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<v Speaker 3>my platform is I'm against bad things, And of course

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<v Speaker 3>everybody's going to vote for me because you're also against

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<v Speaker 3>bad things. I know you guys are against bad things.

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<v Speaker 3>There's very f people who are, oh staunchly. So I

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<v Speaker 3>get elected to office, right, and on my first day

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<v Speaker 3>in office, sure enough, I'm true to my word. I

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<v Speaker 3>fulfill my campaign promise. I sit down and I write

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<v Speaker 3>a bill and No Bad Things Act of twenty twenty three,

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<v Speaker 3>and it's two sentences long. It says one there shall

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<v Speaker 3>be no more bad things.

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<v Speaker 1>Two two.

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<v Speaker 3>There shall now be a Federal Bad Things Agency, which

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<v Speaker 3>shall define what is a bad thing, investigate alleged bad things,

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<v Speaker 3>hold hearings about bad things, and then punish bad things.

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<v Speaker 3>And then I see I've done it. My bill got passed.

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<v Speaker 3>I can go home and I can tell all my

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<v Speaker 3>constituents I look at what I did. I have banned

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<v Speaker 3>bad things, and I can move on to the next thing. Meanwhile,

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<v Speaker 3>the bureaucrats get to work. And not only do these

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<v Speaker 3>bureaucrats operate without you have no control as a voter.

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<v Speaker 3>You have no control over these bureaucrats. If they go

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<v Speaker 3>and do something that is outrageous and it ends up

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<v Speaker 3>in the newspaper and people get angry about it. I

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<v Speaker 3>can now hold a hearing and drag the Secretary of

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<v Speaker 3>Bad Things in front of me and say, shame on you.

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<v Speaker 3>That's not what I meant when I passed my law. Well,

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<v Speaker 3>and I again, I look like a good guy. It's

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<v Speaker 3>a scheme where the actual law making gets done by

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<v Speaker 3>these hired bureaucrats, and I, the elected official, can wash

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<v Speaker 3>my hands of the responsibility but still take all of

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<v Speaker 3>the credit.

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<v Speaker 4>Yeah, and it's so hard to fight against.

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<v Speaker 1>Because of that.

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<v Speaker 4>So are both parties involved in the growing power of

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<v Speaker 4>agencies like this.

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<v Speaker 3>They absolutely are. It's you mean we often complain about

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<v Speaker 3>these agencies like the EPA. The EPA was created by

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<v Speaker 3>Richard Nixon. I mean, this is a Republican as much

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<v Speaker 3>as a democratic problem. Now, the good thing is from

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<v Speaker 3>this Jacrasy case that we're talking about in the oral argument,

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<v Speaker 3>it looked like most of the justices had a real

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<v Speaker 3>problem with this idea of prosecuting people in an administrative

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<v Speaker 3>courts without a jury by just pretending that it's something

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<v Speaker 3>other than a crime. But Justice Kagan seemed to be

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<v Speaker 3>fine with it, but the rest of the justices had

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<v Speaker 3>real problems with it. Justice Kagan, she's got this mindset that,

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<v Speaker 3>you know, government should be run by experts and the

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<v Speaker 3>ext of course are the brilliant geniuses who run these

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<v Speaker 3>administrative agencies, and we should just let them do all

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<v Speaker 3>the governing and then you know, obey them when they

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<v Speaker 3>when they tell us what to do. That's a that's

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<v Speaker 3>a mindset that is very deeply rooted in Washington, d c.

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<v Speaker 3>And it's a real problem.

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<v Speaker 1>Did she arrive via time machine from the nineteen thirties

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<v Speaker 1>or something like that.

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<v Speaker 2>Well lot out of your your wonderful book Freedom's Theories,

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<v Speaker 2>which everybody should read.

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<v Speaker 3>And a lot of these precedents, these legal precedents do

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<v Speaker 3>date back to the thirties when these giant administrative agencies

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<v Speaker 3>were adopted. Now, another case that's coming up very in January,

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<v Speaker 3>that will be arguing in January is this case called

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<v Speaker 3>Low or Bright that involves deference to administrative agencies. And

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<v Speaker 3>difference is this rule that says when an agency interprets

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<v Speaker 3>its own authority, like you know, the EPA has the

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<v Speaker 3>authority to prohibit pollution. Now it's okay, So now they're

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<v Speaker 3>going to define what is a pollutant. Right when they

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<v Speaker 3>do that, the judges are supposed to defer to them,

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<v Speaker 3>just rubber stamp what they say. And that's called Chevron deference.

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<v Speaker 3>And this is a terrible problem because of course, the

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<v Speaker 3>bureaucrats interpret their authority as broadly as possible to expand

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<v Speaker 3>their power, and that means that the ball is always

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<v Speaker 3>moving in the direction of more and more government control.

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<v Speaker 3>And it's pretty clear the writing is on the wall

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<v Speaker 3>that the Supreme Court doesn't like this anymore. And this

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<v Speaker 3>this case, this low or bright case is very likely

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<v Speaker 3>to scale back or pay perhaps even eliminate at least

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<v Speaker 3>that part of this of this problem.

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<v Speaker 2>So a request for one more bit of illumination of

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<v Speaker 2>the bigger problem we're talking about. I'm trying to remember

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<v Speaker 2>the name of the case. Those folks who are just

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<v Speaker 2>trying to build on their little subdivision lot and the

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<v Speaker 2>EPA claim that they're a wetland.

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<v Speaker 1>Can you give folks the uh?

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<v Speaker 4>I'll the case of right versus Wrong is.

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<v Speaker 3>This goes back to the case of finders versus keepers.

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<v Speaker 3>This is you're talking about a case called Sacket versus EPA,

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<v Speaker 3>which has been in the courts for over a decade now.

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<v Speaker 3>And this is a case where these people wanted to

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<v Speaker 3>build a house on their on their dry land in

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<v Speaker 3>a neighborhood in Idaho, and the Feds showed up and said,

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<v Speaker 3>guess what, it's a wetland and what is a wetland? Well,

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<v Speaker 3>it doesn't have to be wet and it doesn't have

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<v Speaker 3>to be land. It can be basically whatever the bureaucrat

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<v Speaker 3>says it is. And you can be fined seventy five

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<v Speaker 3>thousand dollars a day for doing anything that pollutes this

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<v Speaker 3>alleged wetland, and they said, we don't think it's a wetland.

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<v Speaker 3>We'd like to have a hearing where we can prove

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<v Speaker 3>it's not a wetland. And the EPA said, no, you're

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<v Speaker 3>not entitled to that, and that went up to the

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<v Speaker 3>Supreme Court ten years ago and the Supreme Court said no,

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<v Speaker 3>they get a right to have a hearing, and it

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<v Speaker 3>went back and it took another decade for them to

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<v Speaker 3>get back to the Supreme Court on the question of

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<v Speaker 3>what the definition of a wetland even is. Now I'm

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<v Speaker 3>glad to say that my friends at the Pacific Legal

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<v Speaker 3>Foundation won that case in this this past Supreme Court term,

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<v Speaker 3>and the Supreme Court unanimously said that the bureaucrats were

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<v Speaker 3>interpreting the term wetland far too broadly. But it's a

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<v Speaker 3>real indication of how hard it it is to fight

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<v Speaker 3>the administrative agency that it took a decade of litigation

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<v Speaker 3>to get to the point where every Supreme Court justice

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<v Speaker 3>said the bureaucrats were wrong. That's amazing And they could

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<v Speaker 3>not have been done except that our friends at Pacific

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<v Speaker 3>Legal Foundation represented them for free.

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<v Speaker 4>And it would be so frustrating if you were involved

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<v Speaker 4>in one of these things fighting it and you know

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<v Speaker 4>you're fined or whatever, your life ruined or whatever. On

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<v Speaker 4>hold you'd think, Am I in America or not? I

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<v Speaker 4>meant to be frustrating.

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<v Speaker 3>In fact, very question was asked at the Supreme Court.

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<v Speaker 3>Justice Alito interrupted at one point in the hearing and said,

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<v Speaker 3>how could this possibly occur in the United States?

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<v Speaker 4>Hey, before we let you go. And I don't know

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<v Speaker 4>how much you want to talk about this or not.

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<v Speaker 4>Although I follow your Twitter feed, which is also public,

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<v Speaker 4>you seem to be a pretty big believer that Ukraine

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<v Speaker 4>losing to Russia or Israel having to hold on to

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<v Speaker 4>a ceasefire against some massa is a pretty big event

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<v Speaker 4>in world history.

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<v Speaker 3>I do indeed, and I hope the good guys win

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<v Speaker 3>both of those wars.

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<v Speaker 1>Yeah, yeah, it is a big deal.

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<v Speaker 3>We have repeatedly in the past five or six years especially,

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<v Speaker 3>been backing away from defending freedom, and we do it

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<v Speaker 3>under this ridiculous slogan of oh, we can't fight endless wars.

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<v Speaker 3>The phrase endless wars is an idiot slogan. All wars

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<v Speaker 3>are endless until you win them. Life is an endless

0:11:22.960 --> 0:11:26.640
<v Speaker 3>war against death. Freedom is an endless war against tyranny,

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<v Speaker 3>and it's about about time we woke up to that.

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<v Speaker 1>That's really good.

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<v Speaker 3>Well, bullies, as we know from personal experience, bullies will

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<v Speaker 3>continue pushing until you push back. And Americans have become

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<v Speaker 3>increasingly reticent to defend the principles that protect their other

0:11:45.360 --> 0:11:49.000
<v Speaker 3>countries as well as ourselves, on this notion that, well,

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<v Speaker 3>we shouldn't be the world's policeman. Well, if you're not

0:11:51.280 --> 0:11:53.839
<v Speaker 3>going to be the world's policeman, somebody else is going

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<v Speaker 3>to be. It's not like if we stop doing it,

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<v Speaker 3>nobody's going to do it. It's if we stop doing it,

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<v Speaker 3>Vladimir Putin going to do it. If we stop doing it,

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<v Speaker 3>the Isaola is going to do it, and particularly the Iatola.

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<v Speaker 3>The Iran has been at war with the United States

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<v Speaker 3>since nineteen seventy nine. And we like to try and

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<v Speaker 3>pretend otherwise, and we come up with all sorts of

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<v Speaker 3>ingenious schemes for pretending otherwise on the theory that, as

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<v Speaker 3>President Obama liked to say, we can end a war. Well,

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<v Speaker 3>once again, wars are never ended. There is no such

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<v Speaker 3>thing as ending a war. You either win a war,

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<v Speaker 3>or you lose a war, or you postpone a war.

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<v Speaker 3>Those are the only three options. Ending a war typically means,

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<v Speaker 3>as we saw in Afghanistan, typically means literally surrendering to

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<v Speaker 3>the Taliban, which is what the Trump administration did and

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<v Speaker 3>which the Biden administration followed through on. And there is

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<v Speaker 3>no question that that emboldened our enemies and taught them

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<v Speaker 3>that Americans are not willing to stand up for ourselves

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<v Speaker 3>or for Western civilization. And that's why Western civilization has

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<v Speaker 3>frankly been on the retreat in the past several years,

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<v Speaker 3>and it's going to continue until people finally insist on

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<v Speaker 3>putting a stock to it. Thank Heavens, Israel is finally

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<v Speaker 3>insisting on putting a stop to it, and we need

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<v Speaker 3>to let them win victory over Hamas. Anybody out there

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<v Speaker 3>who is concerned about the safety of innocent Palestinians, their

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<v Speaker 3>number one demand should be that Hamas surrender immediately. Hamas

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<v Speaker 3>is responsible for every single civilian death that occurs in

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<v Speaker 3>this war, and it's because they refuse to surrender and

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<v Speaker 3>insist on shielding themselves behind civilians. And moral clarity on

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<v Speaker 3>this point is absolutely essential, not only for Israel, but

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<v Speaker 3>for Western civilization as a whole. This isn't going to

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<v Speaker 3>defend itself. We've not been given any guarantees that Rome

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<v Speaker 3>and Egypt were not given in their day. And unless

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<v Speaker 3>we are willing to defend our principles of individual freedom, democracy,

0:13:52.000 --> 0:13:55.160
<v Speaker 3>human rights, the rights of women, those rights are going

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<v Speaker 3>to vanish under the fists of the strongest bully out

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<v Speaker 3>there for.

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<v Speaker 4>A thousand years.

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<v Speaker 2>And I think that's the exception of maybe, well, certainly

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<v Speaker 2>Ukraine and Poland, in a couple of other countries. I

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<v Speaker 2>think we've as a civilization forgotten that sometimes you have

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<v Speaker 2>to defend yourself to the death. We imagine that we're

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<v Speaker 2>living in a world that is post all of that ugliness.

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<v Speaker 2>Thirty seconds your summary, sir well.

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<v Speaker 3>I say thank god for the Baltic States when it

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<v Speaker 3>comes to Eastern Europe. Thank goodness for Lithuania, Latvia and Estonia,

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<v Speaker 3>who are clear eyed about this because they suffered from

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<v Speaker 3>the world refusing to come to their defense. And we

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<v Speaker 3>should be willing and ready to defend them and the

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<v Speaker 3>rest of Europe against against Putin's aggression, and to defend

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<v Speaker 3>the innocent people of Israel against the aggression of Hamas

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<v Speaker 3>and their Iranian bosses.

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<v Speaker 2>Tim sand for Tim, we appreciate the thoughts in the

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<v Speaker 2>time very much, and certainly we agree and also are

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<v Speaker 2>very very interested in countering the young progressive moral relatives

0:14:59.840 --> 0:15:02.240
<v Speaker 2>life lunatics running around on campuses these days.

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<v Speaker 3>Well, then then get people to watch my videos and

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<v Speaker 3>that'll solve that problem.

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<v Speaker 2>I tweet them out every time you make them. We'll

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<v Speaker 2>have the links at armstrong ee getty dot com, Armstrong

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<v Speaker 2>and Getty