Speaker 1: All media.
Speaker 2: This is it could happen here. I'm Garrison Davis. Last
Speaker 2: week I was working on an essay about how the
Speaker 2: Trump administration is trying to shut down the Department of Education.
Speaker 2: Now very quickly that project expanded to being about how
Speaker 2: Elon Musk is actually trying to internally coop the federal
Speaker 2: government and become the CEO of the United States. That
Speaker 2: article is now published on Shatterzone dot substack dot com
Speaker 2: and is also the previous episode of this podcast. But
Speaker 2: during my research I talked with law professor Derek Black
Speaker 2: about the Department of Education, the state of disunion in
Speaker 2: the country, and if we still have a democracy Already,
Speaker 2: some of the things we talked about have begun to happen,
Speaker 2: like Republicans introducing legislation to expanding executive power while Trump
Speaker 2: and Musk flirt with denying the authority of the courts.
Speaker 2: I decided to publish the full interview because I believe
Speaker 2: his perspective is still helpful and the conversational format alters
Speaker 2: the way we process information compared to me just reading
Speaker 2: a kind of depressing essay for forty minutes. So, without
Speaker 2: further ado, here is the interview.
Speaker 1: I'm Derek Black. I'm a professor of law at the
Speaker 1: University of South Carolina. My area focuses on education law
Speaker 1: and policy and really sort of how that relates to democracy.
Speaker 1: But I teach constitutional law and courses like that. Author
Speaker 1: of a couple of books Schoolhouse Burning, Public Education, and
Speaker 1: the Assault on American Democracy, and then more recently Dangerous
Speaker 1: Learning the South long War on Black literacy.
Speaker 2: Let's start by discussing what's going on at the Department
Speaker 2: of Education right now, and maybe let's actually start a
Speaker 2: little bit further back. Attacks on the Department of Education,
Speaker 2: like are not new. Reagan famously kind of pioneered the
Speaker 2: rights focus on this, but it's been something they've struggled
Speaker 2: to deal sizable blows against, especially in terms of wanting
Speaker 2: to abolish the organization. Could you talk about like the
Speaker 2: history of conservative attacks against the Department.
Speaker 1: Yeah, I mean, you know, there's always been this states
Speaker 1: rights issue that's been with America since its founding. Obviously
Speaker 1: was a big part of the Civil War, big part
Speaker 1: of the Civil rights movement, you know, a big part
Speaker 1: of the Affordable Healthcare Act debate. So you always have
Speaker 1: this stage rights argument going on, and at least amongst
Speaker 1: the folks that are worried about that public education comes
Speaker 1: up as being a target because there's this argument always that, well,
Speaker 1: education is not in the federal constitution, so what business
Speaker 1: does the federal government have to be involved? And so
Speaker 1: it's really more of a talking point as opposed to
Speaker 1: any particular substantive reason why they want to get rid
Speaker 1: of it. But that's really where it's come from. But
Speaker 1: you know, it's often been not that serious of a critique,
Speaker 1: but obviously it's gotten very serious here in the last
Speaker 1: couple of weeks.
Speaker 2: Yeah, that's the general overall feeling I'm having is that
Speaker 2: there's a lot of things going on that I would
Speaker 2: have previously thought are kind of like pipe dreams. Calls
Speaker 2: to abolish the Department of Education, even this rallying call
Speaker 2: from the new right in the past few years to
Speaker 2: like abolish the FBI, general claims of you know, like
Speaker 2: draining the swamp, these types of like old it's almost
Speaker 2: like stereotypical claims that now through musk they've been able
Speaker 2: to like weasel their way into actually dismantling like large,
Speaker 2: large systems that make the everyday functionality of the government possible.
Speaker 2: What should people know, right, now about the current attacks
Speaker 2: in the Department of Education. Trump is still allegedly drafting
Speaker 2: in executive order. He'll probably have to work through Congress,
Speaker 2: but we'll see the degree to which he even needs
Speaker 2: to do that. What are you worried about, like right now?
Speaker 2: And what do you think people should know about like
Speaker 2: the current the current attacks on the dewy.
Speaker 1: Well, there's the sort of immediate worries and then there's
Speaker 1: the larger worries. The immediate worries I'll have to say,
Speaker 1: I'm not terribly worried about. I mean, if you look
Speaker 1: at the reporting that we've seen, it is interesting that
Speaker 1: the White House seems to distinguish between the things that
Speaker 1: it can do unilaterally right without Congress, and those things
Speaker 1: that would need Congress. And I mean, it's a weird
Speaker 1: silver lining, but that gives me like some like measure
Speaker 1: of comfortability in this weird, bizarre world, only because you know,
Speaker 1: two weeks ago the administration was willing to do things
Speaker 1: that it had no authority to do, right, just sort
Speaker 1: of his claiming authority to do everything. And so there
Speaker 1: is this at least recognition that there's not unbounded power.
Speaker 1: So that's sort of the immediate threat is not that
Speaker 1: huge because the White House, Trump's power over the Department
Speaker 1: or to close it up is relatively narrow, Like most
Speaker 1: of the department is established by statute, and he can't
Speaker 1: just dissolve things or move things around that are created
Speaker 1: by statute. He can't take money that's for poor kids
Speaker 1: and spend them on vouchers. Right, these things you know,
Speaker 1: the law dictates. And the fact that he's implicitly acknowledging,
Speaker 1: or rather his advisors or you know, implicitly acknowledging they
Speaker 1: need Congress has helped gives me a little bit of
Speaker 1: comfort because I think that getting rid of the Department
Speaker 1: is I'm not sure there's a majority in the House
Speaker 1: for that, but there's certainly not a filibuster, you know,
Speaker 1: sixty vote majority for that in the Senate. So that's
Speaker 1: short term. But I think there's something far more disturbing
Speaker 1: to me, and it's the long term, this sort of
Speaker 1: idea that there's something illegitimate about the federal role in education,
Speaker 1: that there's something illegitimate about public education itself. Those are
Speaker 1: very dangerous ideas. And I have a piece that just
Speaker 1: came out yesterday and Slate that says Look, you know,
Speaker 1: the federal role in public education predates the Constitution itself.
Speaker 1: You know, probably no one, not many listeners, probably familiar.
Speaker 1: I ever heard of the Northwest Ordinances of seventeen eighty
Speaker 1: five and seventeen eighty seven. But before we even had
Speaker 1: a United States Constitution, this foundational document laid out how
Speaker 1: are territory is going to become states, And without going
Speaker 1: through all the details, Congress embeds public education and the
Speaker 1: very fabric of what it means to be a state
Speaker 1: before we even have a constitution. And so that's very important.
Speaker 1: Is where we start. At the end of the Civil War,
Speaker 1: right where we almost lost our democracy. Congress, as a
Speaker 1: condition of readmitting Southern states into the Union, says that
Speaker 1: one of the terms of readmission is that you create
Speaker 1: public education system and you never take those rights away, right,
Speaker 1: forcing public education into the South in places where it
Speaker 1: never had been before. You know, people are more familiar
Speaker 1: with the civil rights movement. So I won't go through
Speaker 1: all that, but just to take one more pause, I mean,
Speaker 1: Congress created a Department of Education in eighteen sixty seven,
Speaker 1: right to get this public education project off the ground.
Speaker 1: So this isn't some wild new sort of fantasy of
Speaker 1: liberals or unions that we need a department so that
Speaker 1: we can hand over the spoils to teachers. This is
Speaker 1: an idea about what it means to have democracy in America,
Speaker 1: and public education is a centerpiece of that, and the
Speaker 1: federal government has been pushing it for two hundred and
Speaker 1: fifty years. It's a good thing. It's a good thing.
Speaker 2: How do you think that relates to the administration's attempts
Speaker 2: to centralize executive power? Though, Like, if you look at
Speaker 2: like what happened with you said, right, this agency that
Speaker 2: has been has been in tried in law that may
Speaker 2: not be legally abolished now, but they've been effectively abolished,
Speaker 2: Like all the employees are on leave, it's been hallowed out.
Speaker 2: It essentially no longer exists. I feel like they're trying to,
Speaker 2: at the very least test the bare limits of executive
Speaker 2: power and bypass Congress when they can. Part of my
Speaker 2: fear is like Congress is not willing to fight them
Speaker 2: on that. Seemingly like they're not willing to call them
Speaker 2: on that. They're almost willing to acquiesce their like appropriation's
Speaker 2: ability as well as you know, the ability to have
Speaker 2: actually have to like remove departments from existence or create
Speaker 2: new ones.
Speaker 1: Yeah, so you're picking up on a thread that's much
Speaker 1: bigger than a department. Right, So when Congress is willing
Speaker 1: to hand the keys over to the president, then we
Speaker 1: no longer really have have you know, a democracy, or
Speaker 1: at least the constitutional democracy that was created you know,
Speaker 1: a couple of centuries ago here in which the president
Speaker 1: executes the law. The president doesn't make the law right,
Speaker 1: Congress funds programs, not the executive. But if if ultimately
Speaker 1: Congress is going to shift all that authority over like that,
Speaker 1: that's a dangerous place for democracy to be. There are
Speaker 1: no checks anymore. So I think what you're raising up
Speaker 1: is the fear that there aren't any checks in place.
Speaker 1: You know, Fortunately, there still is a legal apparatus. I mean,
Speaker 1: even if Congress isn't standing up shouting and complaining, it's
Speaker 1: still the case the president can't just do whatever he wants,
Speaker 1: and hopefully the courts, you know, would would step in.
Speaker 1: I use the word hopefully. I think courts will step
Speaker 1: in to limit his ability to do things that go
Speaker 1: beyond to statutory power. So the bigger danger, I think
Speaker 1: is that through law itself, Congress seedes more and more
Speaker 1: power to the president with a new legislation. So if
Speaker 1: Congress were to pass new legislation giving the president more
Speaker 1: centralized power, well that would be a concerning thing to me.
Speaker 1: Let me just stop and we'll get to your next question.
Speaker 3: To go.
Speaker 1: But we have a larger phenomenon. It's just it's not
Speaker 1: just about Trump, and people don't necessarily realize this. I mean, look,
Speaker 1: I don't think that President Obama was a dictator or
Speaker 1: had authoritarian tendencies. I was part of the Obama Biden
Speaker 1: transition team, but I testified against Arnie Duncan in a
Speaker 1: case or against the United States Department of Education in
Speaker 1: twenty twelve or fourteen or something like that, because the
Speaker 1: department was taking power that it clearly did not have
Speaker 1: in regard to a no Child Left Behind waivers. And
Speaker 1: you know, I told the current administration, as much as
Speaker 1: I hate it, right, I wish we could just wipe
Speaker 1: away student debt. I feel bad for my students who
Speaker 1: have huge debt. But I said, it is beyond the
Speaker 1: president's power to just wipe away all this debt, and
Speaker 1: they did it. Anyway. The real point here is that
Speaker 1: both Democrats and Republicans have been asking things of their
Speaker 1: presidents that their presidents don't have the power to do,
Speaker 1: and their presidents are doing it any right, And it's
Speaker 1: because our Congress is broken. Our Congress isn't doing its job.
Speaker 1: So citizens are demanding that our presidents do things that
Speaker 1: they really don't have the power to do.
Speaker 2: And that's like the big thing that I'm concerned about
Speaker 2: is we talk about these things that presidents are not
Speaker 2: quote unquote like allowed to do. And I feel like
Speaker 2: like both Trump and Muskre now are are speed running
Speaker 2: like the limits of executive power, and they are willing
Speaker 2: to test the boundaries a little bit, a little bit
Speaker 2: more than previous presidents, and they're willing to break the
Speaker 2: government temporarily to like their goals be enacted. And at
Speaker 2: a certain point, it's really tricky when the thing that
Speaker 2: you always hear is, you know, like hopefully the courts
Speaker 2: will step in, hopefully they'll do something if things get
Speaker 2: really bad, who will like literally stop them in terms
Speaker 2: of like the courts told them to halt the funding freeze,
Speaker 2: and there is there's still grants that they are refusing
Speaker 2: to issue that were already approved legally need to be
Speaker 2: followed through on that they are still withholding and it's
Speaker 2: it's really frightening when it comes down to like basic
Speaker 2: level of like is there are people military police who
Speaker 2: will enforce this that things get really bad. That's something
Speaker 2: I don't have like complete confidence in anymore.
Speaker 1: Well, you know, I deal with this every year at
Speaker 1: the beginning of my constitutional law class. Right, this is
Speaker 1: not a new problem. It seems more real and frightening,
Speaker 1: but it's not a new problem. And so what I
Speaker 1: tell my constitutional law students is that the rule of
Speaker 1: law doesn't exist because of courts. Right, it doesn't exist
Speaker 1: because of police officers. Right, that the rule of law,
Speaker 1: when push comes to shove, exists in the hearts and
Speaker 1: minds of Americans, and if they don't believe in it,
Speaker 1: all is lost. Right. So, for when Brown versus Board
Speaker 1: of Education was decided, it was reportedly the case that
Speaker 1: the President said, you know, if the court wants to
Speaker 1: desegregate schools, let it do it itself. Because guess what,
Speaker 1: what's the Supreme Court. It's nine old people in one
Speaker 1: building with a handful of capitol police do anything. They
Speaker 1: don't have a power to do anything. Right, So our
Speaker 1: entire system really rests on good faith, or, as I
Speaker 1: tell my students, like what if due to something, you know,
Speaker 1: President Trump or Biden or whoever had done, the Federal
Speaker 1: District Court issued an order directing US Marshals to take
Speaker 1: President Trump into a custody. So that order goes out,
Speaker 1: the marshals receive it, they march over to the White House,
Speaker 1: they come in the door, and they say, we are
Speaker 1: here to take the president. Signed and it's already been
Speaker 1: fast tracked by Supreme Court, signed by the Supreme Court.
Speaker 1: The answer to whether we'll just use Biden, the answer
Speaker 1: to whether President Biden is escorted out of the White
Speaker 1: House by US marshals is not a function of military
Speaker 1: It's not a function of police power. It's a function
Speaker 1: of when that piece of paper is held up, does
Speaker 1: the secret Service member believe that the rule of law
Speaker 1: exceeds his loyalty to the man standing behind him. Yeah,
Speaker 1: that's where it's at, right, And so you know, it
Speaker 1: really is a good faith litmus test. And I think
Speaker 1: we used to live in an era when I think
Speaker 1: we all had maybe more faith in the idea that
Speaker 1: people put fidelity and commitment to the Constitution and the
Speaker 1: law above personal loyalty. But we increasingly live in a
Speaker 1: congress and in a world, in a situation when it
Speaker 1: seems that people put personal loyalty above the constitution at times.
Speaker 2: JD. Vance was interviewed on a far right podcast about
Speaker 2: like two or three years ago, and he expressed desire
Speaker 2: for what he called a quote unquote dewocification program. Jah like,
Speaker 2: sounds silly, but this is basically happening now. He extrapolated
Speaker 2: and said, quote, I think Trump is going to run
Speaker 2: again in twenty twenty four. I think what Trump should
Speaker 2: do if I was giving him one piece of advice,
Speaker 2: fire every single mid level bureaucrat, every civil servant in
Speaker 2: the administrative state. Replace them with our people. And when
Speaker 2: the courts stop, you stand before the country and say,
Speaker 2: the Chief Justice has made his ruling, now let him
Speaker 2: enforce it. And I feel like we're getting closer and
Speaker 2: closer to this scenario.
Speaker 1: I'm sorry, where did JD. Vance make this statement at
Speaker 1: what context?
Speaker 2: On Jack Murphy's podcast Jack Murphy is like a farret commentator.
Speaker 2: Vance is invoking the political philosophy of Curtis Jarvin, who's
Speaker 2: becoming increasingly popular in the new Right. While lots of
Speaker 2: what must and Trump, by extension, have been doing the
Speaker 2: past few weeks. Is taken pretty directly out of Curtis
Speaker 2: Yarvin's playbook for seizing executive power. And I feel like
Speaker 2: we're getting closer and closer to this, and so much
Speaker 2: of what's happening in various agencies it is about proving
Speaker 2: loyalty to Trump so that if there is some kind
Speaker 2: of constitutional confrontation, people side with him. Doge is basically
Speaker 2: installing loyalty tests and running through communications to like see
Speaker 2: what the loyalty to Trump is for different levels of
Speaker 2: administrative employees the FBI are negotiations to stay on but
Speaker 2: only if they can prove their loyalty to the president.
Speaker 2: And like, it's all of these scenarios that again, like
Speaker 2: originally would be kind of far fetched. When you're hearing
Speaker 2: someone like Jdvans talk about this a few years ago
Speaker 2: on some like right wing podcast. That's one thing to
Speaker 2: watch this like happen in real time. For people like
Speaker 2: me who study like this type of like more like
Speaker 2: esoteric far right political theory, it's kind of surreal to
Speaker 2: watch the type of thing that you've been like writing
Speaker 2: about and thinking about, like on background for years now happen.
Speaker 2: I just kind of rambled there. But do you have
Speaker 2: any like, I guess, thoughts on like this idea that
Speaker 2: like Vance is talking about in terms of like creating
Speaker 2: this constitutional crisis.
Speaker 1: Well, I mean, look, I tend to be I tend
Speaker 1: to be the guy in the room that says, let's
Speaker 1: not let's not overreact, let's let's see what happens. You
Speaker 1: know that there's a lot of you know, institutional history,
Speaker 1: and there's a lot of Americans who I think the
Speaker 1: majority are good and decent people, and they don't they
Speaker 1: don't want authoritarianism. So this this is me right, this
Speaker 1: is my predisposition. But a week or so ago I
Speaker 1: had a huge crisis of confidence, shall we say. There
Speaker 1: were just a few events in the news that I
Speaker 1: was just like, I just never thought that this would
Speaker 1: happen in America. I never thought a governor would I mean,
Speaker 1: some of this was what governors were doing. I never
Speaker 1: thought a governor would do that. I never thought a
Speaker 1: president would do that. I just never thought, you know,
Speaker 1: never thought, never thought. And so I said to myself,
Speaker 1: you know, are any of my opinions or projections, you know,
Speaker 1: valid anymore? Because I'm the guy who never thought. And
Speaker 1: so that was that was you know, that was a
Speaker 1: tough twenty four hours for me. I'll have to say. So,
Speaker 1: you know, I don't know if like I just rebooted
Speaker 1: and for self sanity and move forward, or you know, know,
Speaker 1: whether there is still some truth and reason to believe
Speaker 1: in certain stability. And I mean, I will say this,
Speaker 1: you know, as we started this conversation, the fact that
Speaker 1: the White House is conceding that it can't do everything
Speaker 1: to the Department of Education that it wants to do
Speaker 1: without Congress is a good thing. If you read the
Speaker 1: five executive orders or for however many they've already issued there,
Speaker 1: it's a good thing that actually, if you read them carefully,
Speaker 1: it's mostly directing appointees to think about stuff, not actually
Speaker 1: do stuff, but to think about stuff. And of course
Speaker 1: the president can appoint them to think about stuff. If
Speaker 1: they do the stuff they're thinking about, that becomes a problem.
Speaker 1: But again, it is this sort of like can I
Speaker 1: grab a headline about what would sound like an awful
Speaker 1: you know, reality, But really all I've done is type
Speaker 1: of to think about that reality. You know, that gives
Speaker 1: me some faith, right, And notwithstanding the fact that this
Speaker 1: United States Supreme Court, you know, granted an immunity to
Speaker 1: all presidents that I never could have imagined. You know,
Speaker 1: this court does, you know, issue opinions that surprise us
Speaker 1: every single term, and they line up with the rule
Speaker 1: of law. It's just it's unpredictable to some extent which
Speaker 1: which opinions those are going to be. So I have
Speaker 1: this faith, you know, these sort of pieces of of
Speaker 1: the puzzle that still suggests we're still democracy and are
Speaker 1: going to remain one. But you know, I have I
Speaker 1: have my really bad days. I think, like you know,
Speaker 1: I think a lot of people have a bad day
Speaker 1: every day right now. It's you know, I just feel
Speaker 1: thankful minor mineor fewer and further between than others. And
Speaker 1: maybe that's just psychological coping. I don't know.
Speaker 2: Let's let's I guess close. We're talking about disunion and
Speaker 2: and how that relates to the general feeling I think
Speaker 2: a lot of people are experiencing around the country as
Speaker 2: well as you know, linking back again to the attacks
Speaker 2: on the Department of Education.
Speaker 1: Yeah, I spent a pretty good deal of time on
Speaker 1: this disunion question in my new book, Dangerous Learning, because
Speaker 1: I'm most of that book is focused on the three
Speaker 1: decades leading up to the Civil War, so that like
Speaker 1: the Civil War doesn't just happen overnight, it happens over
Speaker 1: the course of late eighteen twenties to the eighteen sixty
Speaker 1: with the South is saber rattling over and over again
Speaker 1: openly talking about disunion. Right, so that you had a
Speaker 1: South that actually was diverse in lots of ways in
Speaker 1: its opinions about various things. I'm not going to say
Speaker 1: that that there were a bunch of abolitionis, but there
Speaker 1: was a manumissioned society in North Carolina in eighteen twenty
Speaker 1: nine that had I think sixteen hundred members. Right. The
Speaker 1: very idea of sixteen hundred you know, anti slavery advocates
Speaker 1: in North Carolina the eighteen twenties is shocking to a
Speaker 1: lot of people, right, But ten years later, only twelve
Speaker 1: people show up to the final meeting, right, So you
Speaker 1: had something that changed there, right, And so you have
Speaker 1: this sort of period of escalating disunion and censorship and
Speaker 1: propaganda and sort of policing what is publicly you know,
Speaker 1: acceptable commentary in the South. All this stuff is happening
Speaker 1: sort of going in and you know, editing, their sort
Speaker 1: of censoring textbooks, you know, demanding that books only be
Speaker 1: written by Southerners, like, oh, I make it go on
Speaker 1: and on and on. We don't have time for it.
Speaker 1: What I point out, though, in my analysis of what's
Speaker 1: going on, you know right now over the last few
Speaker 1: years of education, is that there are a lot of
Speaker 1: policies that are attacking public education in the way that
Speaker 1: they previously had, And a lot of them are symbolic
Speaker 1: of disunion instincts, right, sort of just sort of anti government, right,
Speaker 1: anti sort of whatever the current culture is. And then
Speaker 1: there's actually policies that I argue are facilitating disunion. And
Speaker 1: one of those that I talk about is our public
Speaker 1: school voucher. I say, private school vouchers. You are so
Speaker 1: upset with you're so raging at the public school system
Speaker 1: that we need private school vouchers, right, and we are
Speaker 1: effectively paying, We're going to pay individuals to leave the
Speaker 1: public school system. And I call this a coded call
Speaker 1: for disunion, even if people don't think that's what they're doing.
Speaker 1: If we look back at where we started this conversation,
Speaker 1: which is institution of public education as something upon which
Speaker 1: American democracy has been built, of course it has lots
Speaker 1: of flaws and it wasn't perfect, but it's been part
Speaker 1: of how we build a democracy. It's always been a
Speaker 1: bipartisan project. Now becoming the thing that we rage against,
Speaker 1: now becoming the thing in which we are going to
Speaker 1: finance exit from right, This is a step towards disunion
Speaker 1: from a fundamental institution of American democracy. What happens to
Speaker 1: us if they actually execute on that plan. I shudder
Speaker 1: to think about where we might be, because it's not
Speaker 1: just some private school that's the equivalent of the public school.
Speaker 1: We're talking about people on the public dollar retreating into
Speaker 1: the religious silos, into their racial silos, into their culture silos.
Speaker 1: And if there's anything I think that we could all
Speaker 1: agree on, is listening to only the people that you
Speaker 1: like on Twitter or listening only to the people that
Speaker 1: you like for the evening news is what got us here.
Speaker 1: And if what we have is education that becomes the
Speaker 1: equivalent of MSNBC and Fox News and Newsmax and you
Speaker 1: know whatever else like that is a dangerous place. I
Speaker 1: don't know how we build democracy on such a system.
Speaker 2: What's the solution here? I mean, like beyond people diversifying,
Speaker 2: where they get their media from, and like for vast
Speaker 2: pats of the country, I think that that line's been
Speaker 2: crossed a long time ago if you look at the
Speaker 2: way like Twitter functions, the way that people just exist
Speaker 2: in their bubbles and are happy to like people don't
Speaker 2: want to hear anything else, and with the most hostility
Speaker 2: coming from like both extreme mends. Yeah, I don't know
Speaker 2: how to.
Speaker 1: Get this problem.
Speaker 2: This is something that you know, we've thought about a
Speaker 2: lot the past eight years, but certainly longer.
Speaker 1: Well, I'll say this, you know, public schools can't solve
Speaker 1: all of democracy's problem. You know, be a fool to
Speaker 1: say otherwise. But if what we're doing is talking about
Speaker 1: education itself, I think number one is that I think
Speaker 1: our leaders need to understand better understand the dangers of
Speaker 1: you know, vouchers for instance, Like right now and I'm
Speaker 1: writing about this, like they think it's just a policy dispute,
Speaker 1: and like, if you just look at the surface level,
Speaker 1: it's like, well, who cares if we give some more
Speaker 1: vouchers and that makes the most far reaches of our
Speaker 1: party happy. But like I think sort of really stepping
Speaker 1: back and appreciating how dangerous this is to our democracy
Speaker 1: is step one, and that's hard, right, I'm talking about
Speaker 1: teaching adults to see things differently than what they currently
Speaker 1: see them. But as to our schools, I mean, I've
Speaker 1: got a little bit of stiff medicine for both sides.
Speaker 1: I mean, I do think that in the push for
Speaker 1: more justice in our public schools, and I think we
Speaker 1: do need. I mean, that's what I've devoted my career to.
Speaker 1: I do think that, well, I don't think our schools
Speaker 1: did any of the any of the awful stuff that
Speaker 1: you know that the right has said, but I do
Speaker 1: think that they maybe were not as open to people
Speaker 1: disagreeing with them as they should have been. And what
Speaker 1: I really mean is in the push for justice, I
Speaker 1: think there was a bit of shutting down conversation, not
Speaker 1: teaching children to reach their own conclusions, but giving them
Speaker 1: conclusions and expecting them to reach them. And so one
Speaker 1: of the things I'm working on my new book is that, like,
Speaker 1: I really think we have to rethink how we teach history,
Speaker 1: you know, how we teach literature. Maybe not so much literature.
Speaker 1: I think our literature teachers are pretty good, but rethink
Speaker 1: how we teach those things such that we are not
Speaker 1: committed to our children reaching particular conclusions. What we're committed
Speaker 1: to is our children engaging in free and open thought
Speaker 1: amongst themselves, right with hopefully an adult in the room
Speaker 1: that can you establish some guidelines. But I think, you know,
Speaker 1: public education didn't do that very well five years ago,
Speaker 1: ten years ago, go thirty years ago when I was there.
Speaker 1: But I think in this moment of cultural fracture, we
Speaker 1: do really have to commit to free speech, open debate, inquiry,
Speaker 1: listening harder, thinking harder, right, not just bullet points, not
Speaker 1: just bullet points.
Speaker 2: What would cross the rubicon for you? People throw around
Speaker 2: the term constitutional crisis? What would actually happen that would
Speaker 2: make that something that you that you would be like
Speaker 2: this like it, like like it is happening? What is
Speaker 2: that like make or break moment?
Speaker 1: You wanted me to imagine a realistic one or just
Speaker 1: sort of give you some sort of example that makes sense.
Speaker 2: No, like like, what what would that be like for you?
Speaker 2: Because like, I think everyone has their own personal rubric
Speaker 2: for like like what is too far in my mind?
Speaker 2: Like what is something that's like this is this is
Speaker 2: completely unacceptable? And for some people this this may have
Speaker 2: already happened but like in terms of like legitimate like
Speaker 2: constitutional crisis, what is that for you?
Speaker 1: Well, let's just rewind and this is I guess an
Speaker 1: example of why you know, someone still got their finger
Speaker 1: in the dam, holding back holding it together. You know,
Speaker 1: the President of the United States asserted unilateral authority over
Speaker 1: the entire federal budget when he came into office, right,
Speaker 1: he does not have that power. Federal district court and
Speaker 1: joined it. He then backed down from that. Right, but
Speaker 1: let's say he didn't back down. It's like, well, okay,
Speaker 1: you know maybe you know as a district court, but
Speaker 1: if the United States Supreme Court or Court of Appeals
Speaker 1: told the president you lack the authority to to quest
Speaker 1: of those funds, and he still did it. So just
Speaker 1: the budget, that's it. Just the budget, you know, just
Speaker 1: the belief that the president can spend our money however
Speaker 1: he wants, with no with no constraint, and that would
Speaker 1: be crossing the rubicon. Now, I'll tell you. And this
Speaker 1: is why you know you had to kind of be
Speaker 1: like constant a law professor, or well, you don't have
Speaker 1: to be a constitutional law professor, but you've been following it.
Speaker 1: It's like, you know, I have been alarmed, And this
Speaker 1: goes back, this isn't just a Trump problem, Like I
Speaker 1: was alarmed with the NCLB waivers. Probably nobody in this
Speaker 1: even knows what I'm talking about, right, like, you know,
Speaker 1: a decade ago, not that like President Obama was like
Speaker 1: going to take over the country, but alarmed that somehow
Speaker 1: another he thinks he can do this, Like why is
Speaker 1: he even testing the boundaries this way?
Speaker 2: Like executive power has been steadily expanding certainly.
Speaker 1: Yeah, and so but I was like, you know, you
Speaker 1: can kind of get it. There was some gray area
Speaker 1: this where he kind of need to be a constitutional
Speaker 1: law professor to kind of figure out why that was
Speaker 1: such a big deal. But when Biden, I mean think back,
Speaker 1: and again I don't begrudge people needing their debts relief,
Speaker 1: but when President Biden effectively asserted the power to allocate
Speaker 1: federal dollars to pay off debts, that was like, you know,
Speaker 1: half of the discretionary funds of the entire federal government,
Speaker 1: Like that's a big move to just yeah, I can
Speaker 1: commit this nation to a fifty percent increase it's in
Speaker 1: its fiscal outlays tomorrow. That's not constitutional democracy. But now right,
Speaker 1: we have a present going even further than that. But
Speaker 1: he liked Biden at least thus far, stepped back at
Speaker 1: least from the district court right when the court said can't.
Speaker 1: So it's really that sort of defying of the court
Speaker 1: at that point. Yeah, they've all been pushing the boundaries.
Speaker 1: He's pushed them further thus far. They've all complied with
Speaker 1: judicial orders, but it would be the refusal to comply
Speaker 1: with judicial order.
Speaker 2: I mean, I guess the main difference there for me
Speaker 2: relates back to what you said about acting in good faith.
Speaker 2: Something that people on the left I think get mad
Speaker 2: about sometimes is Democrats seeming a complete commitment to acting
Speaker 2: in good faith sometimes. And it certainly appears that that
Speaker 2: Trump is willing to push a little bit farther, especially
Speaker 2: in terms of like tests for loyalty. And it's at
Speaker 2: a certain point, like if he does something really bad
Speaker 2: at least for these next two years, like I don't
Speaker 2: see a way that he'll get like impeached or removed
Speaker 2: from office, Like certainly not with this to send it,
Speaker 2: not with this Congress, like that check and balance just
Speaker 2: no longer is viable due to the last election, and
Speaker 2: acting with that popular mandate has I think given them
Speaker 2: a bit more courage on their side to go, you know,
Speaker 2: a little bit further, play, a little bit more fast
Speaker 2: and loose some of these like checks and balances than
Speaker 2: what we've like previously seen. But this is certainly still
Speaker 2: still developing.
Speaker 1: Well, the thing that really sort of jumps out at me,
Speaker 1: and I was telling some you know, several reporters, is
Speaker 1: that you're right, he's pushing it further. It looks scarier.
Speaker 1: But part of why it's scarier, to be quite honest, well,
Speaker 1: I think it's scarier is that he's doing it out
Speaker 1: in the open. I mean, on some level, some of
Speaker 1: this stuff like telling people to cook up crazy plans
Speaker 1: to do this that like presidents have been doing that,
Speaker 1: like you know, Nixon was, Yeah, Nixon was paranoid. He
Speaker 1: was like, like, this is what presidents do, but it's
Speaker 1: not appropriate to do it in public, right, you do
Speaker 1: it behind closed doors. You know, offer some plausible rational
Speaker 1: rationalization for what you're doing, and you know, you minimize it,
Speaker 1: act like it's no big deal. What's startling here is
Speaker 1: that he is out in the open expressing his designs
Speaker 1: to us, giving us the sort of thoughts, and that's
Speaker 1: very unusual, and it does show that what's acceptable from
Speaker 1: public officials is much different now because had, you know,
Speaker 1: had Nixon shared his designs with the American public, he
Speaker 1: wouldn't have made it as long as he did, you know,
Speaker 1: and probably true of a lot of other presidents, they
Speaker 1: would have been gone. So what's actually acceptable as public
Speaker 1: behavior has clearly changed, what's acceptable as a policy agenda
Speaker 1: has clearly changed. And so he's just putting it out there.
Speaker 1: He's putting his dirty laundry out there, and people are like, oh,
Speaker 1: this is normal.
Speaker 2: Unless you have anything else to add. Do you want
Speaker 2: to talk about where people can find you and your writing?
Speaker 1: Yeah, I mean I'm on Blue Sky more recently, still
Speaker 1: on on Twitter, I sort of have, you know, just
Speaker 1: lots of friends on there, so I'm still there. But
Speaker 1: to me too, yeah, you know, I'm not on there
Speaker 1: as often as I used to be. You know, I
Speaker 1: give up blogging a long time ago, so, you know,
Speaker 1: as we drink out of a fire hydrant, you know,
Speaker 1: I spent a lot of time just trying to explain
Speaker 1: basic things about public education to reporters. But you can
Speaker 1: find me there. I'm a professor of law at the
Speaker 1: University of South Carolina, and like I said, you know,
Speaker 1: dangerous learning just came out, you know, a week or
Speaker 1: so ago, really helping us, I think, helping us to
Speaker 1: see this current moment through a long lens of war
Speaker 1: on black equality, black freedom, and to be quite honest,
Speaker 1: just free and open debate. We've had those wars before
Speaker 1: and and we scarily are having them again.
Speaker 3: All right, thank as much, Thank you. It Could Happen
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