Ep 149 | Want a Tyrannical King? The Left's Court-Packing Plot Ensures It | Mike Lee | The Glenn Beck Podcast

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Earlier this month, someone leaked Justice Samuel Alito's draft opinion to overturn Roe v.

Wade.

In the 233-year history of the Supreme Court, there have been a handful of leaks.

Not many, but some, including news about Roe versus Wade in 1973.

It was leaked about an hour before.

But this is the first time that a leak has included the draft decision.

In other words, this leak, unprecedented.

As a senator, today's guest has watched the collapse from the inside.

Before he was a senator, he served as a clerk for Justice Samuel Alito when Justice Alito was still a judge on the Third Circuit Court of Appeals.

In his latest book, Saving Nine, it is a must-read, the fight against the left's audacious plan to pack the Supreme Court and destroy American liberty.

This is probably the most perfectly timed book that I've ever seen.

It documents the left's mission to pack the Supreme Court, their latest attempt to politicize it

and destroy it.

But the Supreme Court isn't supposed to be political.

It's something you feel when you walk up those stairs, or should feel, as today's guest writes in Saving Nine, when climbing those stairs, you find yourself leaving the swamp of Washington and often the petty political conflicts that abound behind,

and you enter a higher plane of existence.

That's what you're supposed to feel.

But once again, politicians, activists on the left are making exceptions for themselves.

Today,

fascinating conversation on the Glen Beck podcast, Senator Mike Lee.

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My good friend Mike Lee,

how are you?

Doing great.

It's good to be with you.

Your book is

I think you have taken it and you can be at any level and read it.

Not know much about the Supreme Court, not know much about even our history and why

what's happened in the last hundred plus years.

Or you can be somebody like you and know a lot and still learn something.

I think

that's a lot because

the Supreme Court is so important right now.

And I don't think most people have any idea

what it's supposed to do or how our government even works.

That's right.

And it's important for us to understand what it is and what it isn't in order to comprehend it.

Especially because there are people on the streets protesting, you know, and I think it's only going to get worse.

And

we have to know what the facts are.

That's right.

And that's why I dedicated an entire chapter simply to explaining what the court is and what it isn't.

In chapter one of Saving 9, I talk about the fact that it has a limited role.

It operates in a rear view mirror sort of way.

Its job is to decide what the law says,

what the words enacted into law meant at the time they became law.

So let me ask you a couple of things on that.

It is the weakest.

It's not three equal branches, right?

It's weaker than the other two.

It's just a check on the other two.

By far the weakest of the three branches, just a check on the other two.

And really

even narrower than a check.

Its job is to resolve disputes.

If the law says X and we disagree about what X means and which way the law law cuts, you and I can have that resolved in court, ultimately, the Supreme Court, if it's federal law.

Okay.

So the Supreme Court is supposed to, you just said, supposed to look back at what these words meant when they were written.

Yes.

That is an originalist point of view.

Yes.

Then there's the contextualist, right?

Is that right?

Yeah, some would call them purposivists,

but people who would say, let's look at what the purpose of the law is.

Others still would, if they're looking at provisions of the Constitution, talk about a living Constitution,

one that ought to change what they mean by that, because the Constitution can change.

Article 5 of the Constitution provides the mechanism for doing that.

But that's

a men court.

That's an amendment.

That's an amendment.

Is this unusual?

As a nation, that we look to the meaning of what it originally meant?

No.

So the rest of the world does that as well.

Well, look, I don't concern myself with how other courts operate.

What I know is that our Supreme Court functions under our Constitution, and our Constitution places defined limits around judicial authority.

And so within the United States, we do and we always have sought to try to define what the statute means within our court system.

And what that means is you have to look at the original public meaning, the understanding of the public of what those words meant at the time they were drafted and put either into the law or into the Constitution.

All right, so let's use a real life example.

Because so many people today are saying, you know,

this is a democracy.

And how can the minority rule the majority?

Well, first of all, they're talking usually about the Senate.

You lost 51 to 49.

That's a majority.

You know what I mean?

And

we are not a majority rule kind of country, are we?

No, we're not.

And most of the time when people raise that argument about the Senate, that the Senate is anti-democratic, they're talking about the fundamental structure of the Constitution that they don't like.

What they're saying is theoretically, It's possible to secure a majority of the votes in the Senate without those states holding the majority in the Senate, representing a majority of the population of the United States.

Yeah, that was the whole idea.

That was the whole point.

We were going to have one

chamber of the legislative branch that would be allocated according to population.

We've got 435 seats currently.

Those are allocated according to population, revised every 10 years.

The Senate was always to be a place where each state would be represented equally.

In fact, if there's one kind of constitutional amendment that's preemptively unconstitutional, you can't change that feature of the Constitution that entitles each state to equal representation.

But they did change the Senate the way it was elected.

The way they're chosen, yes.

Because it was never meant to be a public election, right?

Your state house selected.

Yes.

Prior to 1913, 1913 was when the 17th Amendment was ratified.

And prior to that time, U.S.

senators were chosen by state legislatures.

Since 1913, with the ratification of the 17th Amendment, they've been elected popularly within each state.

So was that a good change, do you think?

Look,

it is water under the bridge.

I do think we lost something.

I think we also, importantly,

gained something if you look at it from a progressive view.

We gained a national

look instead of a local look.

The idea was

that person

is selected by the state and is just doing what's right for his or her state

and accountable, subject to being fired by the state lawmakers within that state.

Correct.

They were there to represent the states as such.

And so since then, we haven't had that.

Not coincidentally, we've seen a drift away from the Senate looking out for the interests of the states as states.

Okay.

So

everything began to change really in the progressive era.

And the one thing I think, Mike, I love about you is you hate Woodrow Wilson as much as I do.

And

FDR, no love loss for FDR, especially when it comes to the Supreme Court.

So

can you give us a brief, because you spent a lot of time on FDR and I And I want to get into that because I think it relates to today a great deal, as you point out.

Can you tell us who we were before the progressive era?

Like, I think the Supreme Court at the beginning met in a closet in the basement of the Capitol.

Pretty much.

Yeah, and it was FDR that changed that and gave them this big grand building, which changed people's perception of

the Supreme Court, right?

Yeah.

So to be clear,

the wheels were set in motion prior to FDR's presidency for them to have their own building.

But yeah, it gave them a sense of who they were and perhaps a sense of jealousy, not wanting to have their parade rained upon.

But yeah, prior to the Progressive Era,

you had a country in which we recognized top to bottom that the federal government was not a general-purpose national government.

This was one of the most fundamental principles of the American Revolution, and that was built into the Constitution.

And then guaranteed, or tried to guarantee, with the Bill of Rights.

Yes.

Culminating with the Tenth Amendment that made abundantly clear, made expressly clear what was implicit in the text of the original Constitution, which is that the federal government would have powers that James Madison described as few and defined.

And those reserved to the states were numerous and indefinite.

Most government power was not to be exercised in Washington, because this is why we fought the revolution.

We weren't just tired of singing God Save the King at the time.

We weren't just tired of having a monarchy.

It was much more than that.

It was about the fact that we were subject to a large, distant national government that knew no boundaries around its authority and didn't respect local autonomy.

So again, let's go back to what looks to be the verdict, maybe

the verdict on Roe versus Wade.

And I want to get into all of the details on that.

But

if I'm not mistaken, the walk away from me reading the decision is this is highly controversial, and different states and different populations have a very different look at it and it's not in the Constitution so it should be decided by the people

not a court of unelected men and women yes right that is exactly right okay a 10-year-old when properly informed

can answer that question and in fact I know that because as a 10-year-old the first conversation I remember having with my dad about Roe versus Wade

he seemed pleased when I said

that's kind of strange because it seems to me that this is a legislative decision, not a judicial one, and it ought to be state, not federal.

He was happy that

my kid's on the right track.

He'll never date, but he's on the right track.

Okay, so if I'm reading, am I reading it?

Explain how

I'm misinterpreting this.

It seems to me that they're saying this is not in the Constitution, so it's the 10th Amendment.

It's got to go back to the states, right?

Yeah.

But the first thing that people in Congress and the Senate did was try to make a federal law on it.

If it's not in the Constitution and it belongs with the 10th Amendment, can Congress on this or anything else pick that up and make it a federal law?

They shouldn't.

They shouldn't.

And they wouldn't be able to, but for the deviation away from the constitutional norm that we saw during the progressive era that we've been stuck with ever since.

So in theory, you could see Congress adopting a very aggressive reading of the Commerce Clause,

one that I talk about at some length in chapters 4 and 5 of Saving 9.

They could, in theory, address that.

They could also, Congress could adopt restrictions on abortion when it comes to federal funding of Planned Parenthood, federal funding of other programs within the United States and overseas, the so-called Hyde Amendment and Mexico City policy,

things like that are plainly within the federal government's jurisdiction.

But yeah, this was interesting because you have the Supreme Court saying, this now needs to be sent back to the people's elected lawmakers.

Typically, that's going to mean the states.

I mean, we've got general power over

U.S.

military installations, District of Columbia, and things like that.

But for the most part, This ought to be decided by state lawmakers, not federal ones.

The Democrats swoop in right after this opinion leaks, and they say, we're going to make this federal by statute.

We're going to reinstate Roe by statute.

And they tried to do that, but they went 10 steps further.

Their version of this was not just Roe-type protections.

It was any and every abortion up to the very moment of birth.

is now lawful and no restrictions, time, place, manner, proximity to hospital,

health and safety regulations, none of those can apply.

No bans on sex-selective abortions or abortions targeting Down syndrome babies.

You can't do any of that.

Fortunately, it failed.

But they think this is somehow the imperative

of the world to do this.

And I find that stunning.

By the way, they're substantially to the left of where the American people are.

Oh, they're way out of step.

And I hate to say way to the left.

They're just way out of step.

The American people, it's like 12%

of the nation is for that.

Right.

And, you know, I can get 12% of the population to agree that we never went to the moon.

That's right.

That's right.

Because most people intuitively understand, regardless of their own religious beliefs

about when life begins or their own other personal beliefs, Most people, even those who believe in abortion as something that they want to protect, will acknowledge that there comes a point as you get closer and closer to full term,

that this becomes indistinguishable from infanticide.

Some of us would draw that line a lot closer to the beginning than others, but almost all Americans will say there does come a point where you've got to protect that unborn human life because it is a human.

It is a person.

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Let's go back on how the government

and

we can either, can we start with the three musketeers and the four horsemen?

I don't think most people even know anything about that.

Yeah.

Look, it's very important, and I talk about this in

chapters 3, 4, and 5 of Saving 9,

about the fact that at the time that FDR, Franklin D.

Roosevelt, was president, as he was beginning his second term in office, he had suffered a series of setbacks.

Setbacks by the Supreme Court, because it was under FDR that we started expanding.

FDR said, look, I'm not content with having the federal government be a limited-purpose government.

I want it to have the power to solve all sorts of social problems.

I want it to regulate all kinds of markets.

Labor, manufacturing, agriculture, mining.

These are all things that have historically been regulated at the state level.

I don't want to do it anymore, that way anymore, because we're in a crisis, the Great Depression.

So in a crisis.

Before we say a crisis,

he defined it with emergency powers, right?

Yeah.

Then this, all of this stuff started with just

him seizing the power away from Congress under emergency powers.

Yeah, there was some of that, but a lot of this he did through statute

because the same framework wasn't in place as is now giving him power to just issue executive orders willy-nilly.

So all of this started with statutes where he was trying to regulate this and that, labor, manufacturing, agriculture, mining, all these things that, while economic, were not interstate commerce.

He got smacked down in case after case, cases like Carter v.

Carter Coal Company, Schechter Poultry, all these cases where the Supreme Court said, you've overreached, you can't do this.

He got tired of it.

By the beginning of his second term, he had had it.

So back to your question.

You had these,

loosely speaking, three camps.

on the Supreme Court.

You had his closest allies, who we call the three musketeers.

We have his archenemies, who we call the four four horsemen of the apocalypse.

My favorite of whom was George Sutherland, a Utah, the only Utah ever to serve on the Supreme Court and a graduate of Brigham Young University,

who had previously been a senator from Utah.

They were steadfast proponents of the Constitution, and they weren't about to let FDR just run over them.

And then you had two sort of

unaffiliated justices, those who were holding their cards close.

And

those two

were Charles Evans Hughes and Owen Roberts.

They were sort of floating out there in the middle.

Nobody knew which way they were going to go.

So there was this constant tension.

A lot of these cases had been decided against FDR's interest

because of the fact that the two floaters, or some combination of them, joined with the four horsemen and they toppled

pieces of legislation that were, in fact, unconstitutional.

That's what led us to FDR's court packing plan.

That's why he did it.

He was tired of those people doing it.

So what did he do?

He started up by trying to delegitimize the court, certain members of the court in particular, especially the four horsemen.

He tried to denigrate the court as a whole as an institution.

And it culminated, of course, in his introduction and support for legislation that would give him the power to pack the court, appointing additional justices.

If we can go back in time, and you can read it in Time magazine, you can read it in

New York Times

of the era.

We try to go back and

we could say, oh, FDR is a fascist or whatever.

At that time, fascism and communism

didn't have the stigma that they have now because they were new.

They were modern.

Yeah, and hadn't killed everybody yet.

And so it wasn't a bad thing.

I give the some of the early progressives

some benefit of the doubt because it was new and it was scientific.

You know,

it's early algorithms, you know.

And

so they took this on.

He really thought, I think, that it was the new way to rule just through

a managerial process.

Before he gets in,

how much damage had been done?

Did we have these big

administrative arms?

No, no,

not at all.

It was anathema to the structure of the Constitution.

It didn't work.

That's why you had to do some

real

massive surgery and not therapeutic surgery, destructive surgery on the system in order to even allow this.

We did not have an administrative state.

What we had was a system that said,

you've got three branches of government.

I think they're best described as two pens and a sword.

You've got the legislative branch that says what shall be, what will be, going forward, sets the ground rules.

You've got the executive branch that wields the sword.

And then you've got the judicial branch that wields a different kind of pen, a backward-looking pen, to decide what the law meant as of the time it was put into law

and on that basis resolve disputes.

So the pen is veto?

Yeah, no, the

sword.

Yeah,

the sword is the veto, but so there's one feature of the legislative power that the president has, and that's the veto pen.

But aside from his veto pen, he does also wield that pen, the executive branch is the sword, meaning that's where the action is carried out.

It's the executive branch that has the power to enforce the law.

And so my point is this, all this administrative bureaucracy, it's all a creature

that lurks within the executive branch.

But

when Congress passes a law, it has the sole lawmaking power.

Article 1, Section 1, Clause 1, and Article 1, Section 7 make clear that you cannot pass a federal law.

You cannot make a federal law except it's through Congress.

And Article 1, Section 7 makes clear that the only way to do that is you have to pass the same proposed law, a bill, in the House and in the Senate, the same text.

That's got to be then submitted to the President for signature, veto, or acquiescence.

So unless you do that, there is no federal law.

Hey, hang on.

And it's my understanding that the veto is really

supposed to be exercised by the President if he feels it's unconstitutional.

It's not like I don't agree with any of this.

Right.

Right?

Right, exactly.

The president's job is supposed to be that.

A guard for the Constitution.

The first guard.

Right.

And until relatively, until the last few decades, it was understood that the president should independently assess constitutionality.

George Washington made an inquiry, I believe it was in 1793.

He wanted to find out prospectively whether some of the proposed actions within his administration were constitutional.

He reached out to the court seeking an answer.

I talk about this in

Chapter 1 of Saving 9.

They responded by pointing out, look, we can't do this.

That's an advisory opinion.

You're asking us to give an advisory opinion.

We can't do that.

We can only decide ripe cases and controversies between individuals after a government has acted in one way or another.

My point

there is simply to say that

because of that separation of powers, every officer within the federal government who's required to take an oath under the Constitution is expected to do this.

It's only in modern times that we've started to think of the Constitution as if it were a judicial document.

It's owned, it's defined in every instance by the nine lawyers wearing robes on the Supreme Court.

I don't mean to denigrate them or their role.

only to point out what the court is and what it isn't.

It's not there to decide what it says in every instance.

It's just just there to decide specific disputes.

All right.

So

when the court started to go awry,

it was disputes over things like coal companies

and

can we regulate them.

The Commerce Clause was forever changed, and I don't remember the case, but you talk about it, with a farmer, right?

Yes.

The wheat?

Yeah, Wickard versus Philburn.

Yeah, thank you.

A

horrible decision, but a decision that highlights the problem with this.

This is why we have OSHA and everything else in our lives, right?

Yes.

Okay.

That's what

it is.

Explain that.

Okay.

So

what is the Commerce Clause?

Yep.

And then how did it change?

The Commerce Clause, Article 1, Section 8, Clause 3, gives Congress the power to regulate trade or commerce between the states, with foreign nations, and with the Indian tribes.

It was always understood, it was understood at the time, as giving Congress the power to make sure that interstate commercial transactions could take place uninhibited by state authority.

It was there to protect against economic balkanization.

We didn't want states erecting trade barriers such that we couldn't function with a national authority.

Because

we were really 13 separate countries and at the time

before the Constitution there the federal government couldn't solve debates or

disputes between the states right yeah that's right right so after the revolution we won the war we put in place this document called the Articles of Confederation it was a very loose

almost a treaty between 13 nations and it didn't have

for instance the states had power to print their own currency, which was then also a trade problem.

That's why the Constitution says only the federal government can mint money.

Right, right.

And they were taxing each other's goods, which made them like 13 separate isolated economies.

We couldn't survive that way.

It's the principal reason why the Founding Fathers converged, convened in Philadelphia in the summer of 1787, was to deal with that very problem.

So they gave Congress this power.

For the next 150 years or so, it was understood that that gave Congress the power to regulate interstate commercial transactions and channels and instrumentalities of interstate commerce.

So what did that mean at the time, like to

regulate interstate transactions?

Mostly meant that it could get rid of, they could preempt out state laws that were erecting trade barriers against interstate commerce.

They could also regulate things like interstate canals or roadways to make sure that commerce didn't get stuck, that states weren't interfering with it that way.

And for the most part, it was just understood that that's what it meant.

And this is one of the things that kept the federal government within its lane, is that none of the enumerated powers in Article 1, Section 8 was expanded as being limitless.

Because the minute you have that, then the Tenth Amendment means nothing.

The minute you have that, you're no longer the limited-purpose federal government.

You're a general-purpose national government.

So all of a sudden, FDR comes along, and he says things like labor, manufacturing, agriculture, mining, always subject to state regulation, not federal, except in rare instances where we're talking about one of those activities inside of the District of Columbia, for example.

But he said, I want to save America from the Great Depression.

To do that, I need these sweeping new powers.

Started pushing the limits of the Commerce Clause.

The court pushed back and said, no, that's not what it means.

And that's when FDR said, I'm going to pack the court.

I'm going to remake the court in my own image.

I'm going to give myself authority to appoint more justices, not because they're understaffed, but because I want to change the outcome for my own political purposes.

So that's where we get to this moment.

I pinpointed even before the 1942 case of Wickard v.

Philburn.

We can talk about that more in a minute.

The seeds for that case were planted

seven years earlier, five years earlier, in a case called NLRB versus Jones and Laughlin Steel Company.

Decided April 12, 1937.

Incidentally, right in the middle of the debate regarding FDR's court packing plan,

FDR wanted to delegitimize, denigrate, and ultimately change the court to its benefit.

And that's when

Associate Justice Owen Roberts flipped his vote.

He had previously been with the four horsemen and standing up for limits on federal power.

He switched his vote at the last minute and redefined the Commerce Clause to give Congress the power to regulate anything,

everything

that happens.

Not a surprise, his last name was Roberts.

Yeah, it happens.

Apparently these things are inherited.

Maybe they're related somehow.

Are they related?

Are those two?

I've never checked.

I'm going to look into this now.

We'll find out.

But regardless, history history doesn't repeat itself, but sometimes it rhymes.

And so then

in the case with the farmer years later,

that's a pushback.

Yeah.

In the case with the farmer, they pushed it so far.

This guy named Roscoe Philburn.

Roscoe Philburn

was a farmer in what's today a suburb of Dayton, Ohio.

He was fined many thousands of dollars, a lot of money in those days.

His offense against the federal government, he was not a kidnapper, not a bank robber, not a smuggler.

No, he grew too much wheat.

He grew more wheat than the experts in the U.S.

Department of Agriculture, using their authority under the Agricultural Adjustment Act of 1939,

thought was appropriate for any farmer to grow.

Too much wheat.

So they fined him thousands of dollars.

He had a good lawyer.

And he decided to challenge this law.

But he said, look,

the wheat that I I grew in excess of the federal grain production quota that you gave me

never entered interstate commerce.

In fact, it never entered commerce at all.

It never left my farm.

I used that wheat, the wheat that I grew in excess of the limit you gave me, to feed my family, my animals, to use the remainder as seed for the next season.

The Supreme Court, in this act of

Franklin D.

Roosevelt, induced post-court packing

consolidation of power mentality.

The Supreme Court said, ah, but by growing that wheat and using it on your farm, you still affected interstate commerce because you would have otherwise had to buy that on the open market.

And just like butterflies flapping their wings in the Amazon have an effect on wind currents in Florida,

so too, your failure to buy that incremental wheat on the open market is subject to Congress's control because it substantially affects interstate commerce.

What this shows is that since 1937, certainly since 1942, when that case was decided, but really since 1937, Congress can regulate basically anything as long as it can identify some impact on interstate commerce.

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So, let me go here.

This is a strange jump, but

the Supreme Court just a few days ago

sided with Biden on the

did I write it down?

The, yeah, the

social cost of carbon,

because of wildfires, sea rise, hurricanes, floods,

they say

there is

a real

social cost to carbon.

And so it's going to allow them to regulate everything,

everything.

Supreme Court, it was stopped in lower court.

And the Supreme Court just said, no, we agree with that.

What does that mean?

So I haven't read this particular case yet.

I assume it involves the EPA and its authorities under the Clean Air.

All of it.

This is the natural outgrowth of the cases we just discussed.

Because what happened, and this was all a feature, not a bug to FDR,

this was about consolidating power not just to Washington, but also to him personally, to the presidency directly.

Because once Congress had this virtually unlimited power to legislate on any topic they wanted, as long as they could connect it to interstate commerce, he knew, as turned out to be the case, that Congress couldn't handle all the ins and outs, all the painstaking line drawing that has to be done with legislation.

So Congress would, and ultimately did,

delegate these difficult decisions to executive branch agencies to the point where we now pass laws that say in effect, we shall have good law in Area X and we hereby delegate to Department Y in the executive branch the power to make, interpret, and enforce federal law.

That's what happened in that case you're describing.

I remember

reading Obamacare and page after page after page says

this will be defined and enforced by the Secretary of Health and Human Services.

I'm like, that's insane.

Yep, it is.

And

as I recall, it may have been, I think it was about a thousand times in the Affordable Care Act when they had delegated that out.

Right.

And it happens every day.

And that's why in our government, more and more, it seems,

you can't pin anybody down.

You can't blame anybody because

you don't know who did that.

Right.

It's some faceless bureaucrat.

Right.

And that's why in the case that you're describing, and again, I haven't read this one.

I assume it has something to do.

with the Clean Air Act and EPA's enforcement of the Clean Air Act.

But ineffective, it's a slight oversimplification, but what Congress has done is to say, we shall have clean air, something we all want.

We hereby declare as Congress that we shall have clean air.

We hereby delegate to the EPA the power to make and interpret and enforce rules that are in effect laws that tell us what clean air is, what pollution is, what amounts to a pollutant, what happens to polluters.

And at that point, everything is in their power.

Everything is in their discretion.

And then when people are harmed by this, if all of a sudden they adopt a radical view of what a pollutant is and they adopt some new definition, people come to members of Congress and complain.

Members of Congress, including some who may have voted for the law in question, will beat their chest and say, yeah, those barbarians at EPA, do you know what I'm going to do?

I'm going to write them a harshly worded letter as if that were our job.

But still, we continue to delegate.

fundamentally legislative power.

So that's why I explained in Saving 9 why this is so much

about so much more than court packing.

What they did the last time they tried to pack the Supreme Court allowed FDR to consolidate power in Washington and more power within the executive branch.

So when I say,

you know, I said to President Trump,

you'll only have four years.

If you win, you'll have four years.

You have to fire

and shut down all of this,

all these administrators, you know?

And he said, I can't can't do it.

I can't do it without with a Congress or I mean a Senate run by Mitch McConnell and Congressman like I had last time.

He said, I need people on the same track that will, because they have the power to fire

and close things down.

But you talk like that, and most Americans feel like you're a nut.

We have to have all of these administrators.

Yes.

They say we have to have the administrators because they have confidence in those administrators' expertise.

You see, this is part of the progressive vision.

The progressive vision is we're going to leave governing and governance decisions to the experts because we, the unwashed masses, are incapable of such action.

The problem is

their version of the law and of lawmaking is unconstitutional.

And we have to be prepared to call it out as such.

It is also

antithetical to,

I mean, one of the things that I loved about when we were constructing the jury trial is how Thomas Jefferson, there was, you know, a debate, should we get the experts to be the jurors?

And Thomas Jefferson said, no, I'd rather have farmers than scholars.

There's something about a man who has his hand in the dirt all the time that roots him into truth and common sense.

And that's true.

We had a,

I think it was,

I think it was Jefferson and then again Churchill that said,

you can always trust the American people to do the right thing.

After they've done the wrong thing, they wake up and go, ah, we'll do the right thing.

This new system

sees

people outside of government as flawed.

and idiots, but anybody in these positions is a genius.

Yes.

And in effect, we've now replicated the very type of system that we despised when our national government was based in London.

It's consolidated, relatively limitless, run by people who are experts, detached from the people, relatively unaccountable to the people.

And that's a problem.

When Venezuela packed the court,

I think they have now 42

judges.

What happens to countries that pack courts like that?

Their courts become a rubber stamp, a rubber stamp for the political authorities in charge.

And Venezuela is not the only example of this.

I mean, at the same time, FDR was experimenting with court packing here.

Other efforts, one way or another, to

give

military figures, dictators, control of their system of government in Italy and in Germany.

Hitler and Mussolini were doing their own things to try to throw off the objectivity, neutrality, and independence of their court system.

So this is just what you do if you regard yourself as having a mandate from God, a mandate from principles of whatever ambitions you have.

It's what you do.

You consolidate power.

because you're right and nobody else gets it.

That's what you have to do.

You can't have an independent, neutral judiciary and be a tyrant.

It doesn't work.

Which people would self-select.

Right now, I think our problem is,

especially the left, but there are those on the right too.

I'm going to force everybody to live my way and the way I want.

I'm going to force the people in Texas to live the way that California lives.

Well, I don't live in California California for a reason.

You know, it's got the greatest weather.

Who wouldn't live

in California if you could, if it wasn't insane?

Right.

And I don't mind Californians and San Francisco.

Do what you want.

Poop in the streets all you want.

I'm not going to come and visit and I won't live there.

You know what I mean?

But

that was kind of the

genius of this system, that

we're all little laboratories.

It's like I didn't have a problem with Mitt Romney's stupid healthcare up in Boston.

I mean, intellectually, I do, but I never spoke out against it for Massachusetts.

You want to do that?

Do that.

Right.

Except now we're on the hook for people.

Now, if you do a bad idea,

the federal government's going to come in and bail you out.

And I'm paying for that.

Well, I could have had the sunshine and the high taxes, you know, and just been part of California if I wanted it.

I wanted to live in a place that was sane and knew that this financially is going to be a wreck at some point.

That's right.

None of this works unless you adhere to the central promise of the Constitution, which is to say, we're going to allow you to govern yourselves on most issues locally.

We will join together.

We will have a unified government hitting with a closed fist at a national level, only with respect to those areas that we're going to define as national, which are narrow.

Trademarks, copyrights, and patents, interstate and foreign trade, military matters, granting letters of mark and reprisal, immigration laws, bankruptcy laws, that's about it.

You talk a lot about the Commerce Clause, but there's something else that you are working on.

Because I've been thinking we're seeing a lot of things change in the Supreme Court.

I mean, I'm seeing the Ninth Circuit Court of Appeals, and I think I've slipped through a wormhole.

When did they start making sense?

After four years of the Trump presidency, we got some really good nominees on that court.

People like my friend Ryan Nelson on the Ninth Circuit from Idaho,

champions of liberty,

and people who believe first and foremost in the Constitution and in their oath to it.

They believe that their job is to interpret the law based on what it says rather than what it means.

It's made a huge difference.

Huge difference.

Huge difference.

But it's causing

consternation with the left,

who has had the courts their way for quite some time

that will force everybody.

And now they're saying the courts have changed.

And they're saying, no, you don't have the right to

do that.

Can you explain

what a natural right is and how you don't have to believe in God for a right?

Yeah.

We believe fundamentally that our rights exist.

They exist in the abstract.

I believe, and I believe you believe, our rights come from God.

Whether you believe in God or not, there are certain rights that just exist because they are there, because we exist.

Those rights aren't given to us.

They're not a generous bestowal by government.

They just exist.

And so

one of the things the Constitution does is.

And explain what inalienable means.

Inalienable, something that can't be taken away.

And in this context, when we speak of rights, we should speak of rights in the sense that we're identifying things that the government can't do to you.

Not things the government must provide to you.

When we talk of those things as rights,

that's not it.

It's the things that nature's got or nature,

right?

Right.

So if it's happening in the animal kingdom, a bear can maul another animal or an animal that happens to be a man,

maul them to death in their cave because you walked in going, I want to pet the baby bear, right?

That's a natural right.

Well, that's a natural law if you walk in.

Yeah, a natural law, which gives us the natural right, correct?

Right.

And you don't need God to tell you or any politician.

Everybody knows.

Of course, you walk into that and they're going to maul you to death.

And if the bear knew how to make a gun and use a gun, he would have probably shot you.

Right.

And if you've got a weapon and the means by which to defend yourself, you have a natural right to defend yourself against a beast, against a machine, against other humans.

Right.

Okay, so that's what natural rights are.

Yep.

Okay.

So

now go back to what we were discussing on how you know what a how how you know what a right is.

For instance, everybody is saying, Roe versus Wade,

I have a right to an abortion.

And the Supreme Court said, that's not

anywhere in the Constitution.

We can't find that.

Right.

And if they can't find it, then it absolutely does belong to the state.

Yeah.

Yeah.

But it doesn't make it a right.

That's right.

That's right.

The fact that you like something, the fact that you want it to be available to people or that you think it it would be good policy for a given thing to be available, that's not a right.

That is a policy choice.

They are different things.

Do you have a right to your own body?

Yeah.

The best description, the best summary of natural law

derived from the writings of John Locke and others is in the Declaration of Independence itself.

Inalienable rights, life,

liberty, and the pursuit of happiness, elsewhere described in the due process clauses of the Fifth and Fourteenth Amendments, life, liberty, and property.

Government can't take those things away from you without due process of law.

It can't interfere with those, and ultimately it is the job of the government to protect life, liberty, property, and the pursuit of happiness.

So those are natural rights.

They exist because we exist.

Now in the Constitution, we have a number of rights that are spelled out in the Bill of Rights that say things that the government can't do to us.

Government can't tell you when, whether, how,

or how not you're going to worship or believe.

Can't tell you what to say or not say.

Can't take away your right to bear arms.

Can't subject you to unreasonable searches and seizures.

Can't do those things without a warrant.

Can't make you testify against yourself.

Can't try you without a jury unless you request it.

Exactly.

So

those are our rights that we've specifically protected in the Constitution.

And then the 14th, those are all protections as against Congress, as against the federal government.

Can states

violate those?

No.

See,

that's where this gets interesting.

The 14th Amendment comes along.

after the Civil War.

And the 14th Amendment also contains a due process clause.

You can't deprive someone of life, liberty, or property without due process of law.

It was later interpreted to mean that

most of the substantive protections in the Bill of Rights

are incorporated by the 14th Amendment and applied by the 14th Amendment as operating against the states, meaning it's not just the federal government that can't mess with your freedom of religion or your freedom of speech or of the press or your Second Amendment rights.

It's also the states.

And so, but in examining those, in examining how this works and how the states are prohibited, the court will look to whether a particular right is deeply rooted in our nation's history and traditional and whether they are essential to any scheme of ordered liberty.

And so in going through,

my former boss, Justice Alito, for whom I clerked twice, first when he was on the Third Circuit and later when he was on the Supreme Court, wonderful human being, a real role model and mentor to me, did a masterful job of outlining all of this in his draft opinion that was leaked.

And he explained, you know, going back through 700 years of Anglo-American legal jurisprudence, there's nothing in there.

that identifies this as deeply rooted in our nation's history and tradition or essential to any scheme of ordered liberty.

It doesn't meet any of those characteristics, nor is it even uttered or hinted at in any protection in the Bill of Rights or elsewhere in the Constitution.

All right, so I look at this as two separate human rights.

I believe the baby is a human, so those rights have to be protected no matter what the mom wants to do.

And the left tries to make it about my body my choice, which doesn't seem to apply when it's a vaccine.

My question is:

do you have a right to your body or can the government say you are putting this in your body?

Because if they can say you have to put it in your body, can't they say you absolutely have a right to take something out of your body?

Yeah.

You have rights that inhere in the protection of life, liberty, and property.

Those are liberty interests.

You take something into your body, you know that whatever that thing is, if it's not supposed to be in there, it could kill you.

That could take away your life.

If you just prefer not to have that thing in your body, it's a pretty substantial invasion of your personal liberty and autonomy.

And so

the government's going to have to make a pretty hefty showing as to why they need to be able to do that.

Did they do that for COVID, do you think?

No.

I mean, particularly with the COVID vaccine mandates.

Right.

It is one of the gravest usurpations of power I've ever seen.

To look at presidential abuses of power of this magnitude, we have to go back to 1952 to find an analog where Truman seized every steel mill in America to support the Korean war effort.

But even that doesn't even come close to how sweeping and dastardly this was.

By the way, President Biden, in ordering

tens of millions of Americans to be vaccinated against their will, he swept aside the vertical protection we call federalism that makes most government powers state rather than federal.

He swept aside the horizontal protection of separation of powers because he was exercising effectively legislative authority, not executive power.

He's not a legislator.

And he also violated

substantive protections in the Constitution, in the Bill of Rights, among others,

freedom of religion.

Many people have religious objections.

He swept all those aside and said, Look,

I just really want everyone to get this.

Right, because he declared an emergency, or Donald Trump declared an emergency, right?

Yeah.

And so he could do that under emergency orders.

The way he interpreted it.

Or so he claimed.

Yeah, right.

And

what he claimed was the emergency temporary order, the most sweeping among those vaccine mandates was by OSHA.

OSHA's enabling statute gives OSHA the power to issue these temporary emergency orders.

And it's another example of bad lawmaking brought about by bad jurisprudence and enabled by the Supreme Court's unwillingness to stand up to things like this.

So Congress passes a law saying OSHA will have the power to make good policy on safe workplaces.

And then they

run roughshod even over what scarce limitations can be found in that.

And the president directs OSHA, and OSHA dutifully complies by saying, look, if you're any company with more than 99 employees, you've got to fire everyone who hasn't been vaccinated.

And if you don't fire them, we're going to issue crippling fines, fines that would cripple literally any company, not just in America, but in the world.

We looked at those, and we had to make a decision as a business.

Well, it's Father's Day, and trust me, if you're going to get your dad's socks, all men want three things in socks.

Comfort, durability, and never having to worry about any of that stuff again.

It's kind of a life philosophy.

This year, dad's got enough on his plate.

He's got enough ties, flashlights.

Why not get him socks?

And I don't mean ordinary socks.

That's as bad as a flashlight or a tie.

I mean

grip six socks.

They're comfortable, they're durable, and best of all, they're made here in America.

This came as a surprise to me.

They're all wool.

I thought I knew what a wool sock was like, and I would never have said this because they're,

they are moisture wicking, I think is what they call.

I wear them all the time, but in the summer, I would never think put on a wool sock.

These are great, and they're knitted on special machines that make them thinner than traditional wool socks, and they're made from a fine micron wool, which means they don't itch.

They're really comfortable, lifetime guarantee.

Grip six, you can find them now.

Just go to grips.com slash beck.

Gripsix.com slash beck.

So let me go back to, you know, the one thing that Donald Trump told me.

He said,

I knew I would, you know, not be popular.

I knew I'd have to fight.

He said, but I didn't realize I was going to fight for my life and my family's life every day from every side.

Now, part of that is,

I mean, he likes confrontation, you know what I mean?

I think he lives on that, that he thrives on that.

However,

he had no idea about the deep state, and this is all the administrative arms, and they don't care.

They don't care who's elected president.

And I thought, how are we going to get past all of this?

And I thought, first, commerce clause.

Can we get a good case in front of the Supreme Court?

But the Reigns Act is the way to do it.

The Reigns Act is the way to do it.

This is a legislative proposal that's very simple.

Its purpose is elegant.

Put lawmaking power back in the hands of elected representatives.

Because this is something in the Constitution.

The framers never...

They thought everybody would be so jealous of their power that no branch would give their power up, right?

Right, right.

They didn't foresee the day when the elected federal lawmaker would decide, you know, what I really want to do is skate through an easy next election.

And it's easier to get re-elected perpetually if you're not the one actually making many laws because laws are controversial.

So we'll just make other lawmakers instead of making laws.

They didn't foresee that.

That broke the circuit.

That got rid of the circuit breaker on the Congress protecting its own powers.

Because they're not using the power of the purse.

Exactly.

Which is the way to stop it because we don't have a budget anymore.

Right, right.

And then they're not having to make the laws.

So what the hell are we even hiring these people for?

It's an excellent question.

And that's why we need the Rains Act.

The Rains Act would say whenever these new executive branch regulations come out that are just federal laws, They shouldn't be self-executing.

They shouldn't take effect unless or until both houses of Congress have affirmatively enacted them into law.

But see, all these things, Glenn,

the erosion of our Bill of Rights, the creation of other rights that are not rights at all,

resulting in the taking of innocent human life, the erosion of federalism and separation of powers are rights.

They're all part of the same thing.

They are all the outgrowth.

They are all the consequences that we're living with from FDR's desire to pack the Supreme Court in 1937.

That effort failed.

And this is why I wrote Saving Nine.

It's about so much more than court packing.

I wrote Saving 9 because all of this ties back to that.

We're still living today with what happened then when he tried to pack the court.

He failed, but he succeeded in scaring Owen Roberts, Justice Owen Roberts, enough to change the Constitution.

Ever since then, we've been living with it.

Think of it this way.

$31 trillion in debt.

We have regulatory compliance costs that cost the American economy, hardworking Americans,

more than $2 trillion every year.

Everything you buy is more expensive because of those regs.

Most Americans work for many weeks, many cases, many months out of every year just to pay their federal taxes.

It's about half the year.

About half the year.

All of this is the result of FDR's failed court packing plan.

Failed legislatively, succeeded in every other way.

So really, Obamacare is the same failure, the court stopping that.

Yes.

Because John Roberts, we know, was afraid of tainting the court or having troubles or having people lose faith in the court.

That's right.

That he rewrote it himself, which is not their job.

John Roberts, and I was raised to always refer to them by their title, I should say Chief Justice Roberts.

But in this instance, he was not acting as Chief Justice, even while claiming to be.

He was acting as John Roberts, the guy, because he took lawmaking power.

He rewrote Obamacare, not once, but twice, in order to save it from two independently fatal constitutional abnormalities, either of which should have sunk it.

This is the same legacy that

really

is the constitutional.

Of the first

Roberts.

Exactly, exactly.

It's the same legacy.

They're more concerned about preserving what they view as the court's institutional reputation.

But the problem is, is nothing has a reputation anymore because no one stands for anything.

Mike, and you know what's so crazy is you're seeing this.

You see this in your own race.

You are the most rational, reasonable guy I know.

It's so easy to predict what you're going to be for and what you're going to be against because politics doesn't play a role with you.

Not that I've seen.

It doesn't play a role with you.

You know, oh, this one's going to cost me.

You know what I mean?

But you stick to the Constitution.

That's why I think you have a decent reputation.

Nobody else seems to be doing that.

And

you are under attack in Salt Lake like crazy

from

a media

that

is owned by the church, both of us go to

and they're calling you a radical and I don't know how

Mike

no offense you've never been a radical you at what was it nine you said to your dad wait a minute that should be a legislation that's not a radical no

I don't think that's radical to to try to support that document and those set of rules that have protected the American people for nearly two and a half centuries.

It's not radical.

But yeah, in many places, look, our media establishment in this country is run by the left.

In Utah, it's particularly acute because we're a pretty conservative state.

We're a state inhabited by between three and three and a half million people who love and revere this country and the Constitution.

And yet, with the exception of

two radio talk show hosts,

my friend Boyd Matheson and and our mutual friend Rod Arquette.

Two radio talk show hosts.

Other than that, our entire media establishment in Utah leans solidly to the left.

Trans

broadcast, television, radio, the whole bit.

Not just liberal, but solidly progressive.

And that

makes things tough.

That's why I'm glad you exist.

I'm glad there are a handful of people nationally who can still amplify the truth and are still willing to stand up for the Constitution, even when, especially when it's difficult.

Aaron Powell, I will tell you, though, that, I mean,

we need to be able to count on

somebody standing up in media.

And I don't know if it's, you know, you just keep going to the barrel for the new apples, the new journalists.

It's too late.

I'm working right now with some

people

just to

question: what are we doing?

You know, we are

the industry, the entertainment industry, keeps getting either the people who couldn't make it or had the spine to stand up, and that's few and far between, or the people who are really accomplished that don't have anything to lose anymore.

You know what I mean?

We have to go to the tree.

And we have to start training those people.

And I hear from people in the media all the time, Glenn, you got to hire the journalist.

Why?

Why?

If you know it's poison, why?

There are other people who can speak truth.

There are other people who know how to write who don't come from that tree.

And it's one of the advantages of these innovations in technology that we've seen in recent years.

There are now other ways of disseminating truth that don't necessarily require a printing press, that don't necessarily require all the things that you used to have in order to speak truth to the masses.

But it's one of the reasons why you've seen efforts by Google and Facebook and Twitter and other entities

to

sort of snuff out,

take out the oxygen from those entities.

But it's also why I'm so disappointed in organizations like the Deseret News.

You know better, A.

Your owners at least know better.

And

why aren't you

going to the tree?

Right, right.

And a lot of people don't question them because if they believe in their owner's ability to discern truth, they'll assume that that discernment transfers to the owned entity,

which it does not.

Okay.

Let's just go over a couple of things here before we wrap it up.

What's coming this summer.

First of all, we will see a decision by the Supreme Court in the Dobbs case, an abortion ruling, between now and the end of June.

I personally wish that the court had issued its ruling immediately.

I don't think the sun should have gone down the next day

before they issued at least a percurium unsigned order saying, here's the result, Rose overturned, full opinions to follow later.

Your guess?

My guess is June 30th.

Because decisions like these tend to be drawn out until the last weekday in the month of June.

The court court adjourns.

That way they can get out of town.

That way they can get out of town.

But the really controversial ones are always drawn out because the way the court works, you know, you don't issue an opinion until every justice is comfortable signing on to whatever opinion he or she will sign on to at the end of the day.

Your gut tells you which direction.

Five to four, possibly six to three, in support of Justice Alito's opinion.

Six to three.

Chief Justice Roberts could end up joining it.

I hope that he will.

I think that he certainly should.

Justice Alito's opinion is correct.

Well, I hope that I can get together a flying monkey army like the witch did in Wizard of Oz, but that doesn't mean it's going to happen.

It could happen.

You look at the questions that Chief Justice Roberts asked at World Argument on December 1st of last year in the Dobbs case.

They indicate, along with other things we've seen from him, he does know the difference between legitimate constitutional analysis and made-up policy agenda

material that was sort of passed off as constitutional jurisprudence.

Okay, so they issue it.

Are we going to find out?

Are they going to punish the person that leaks?

Because I believe, and I think you believe, absolutely they know.

By now, they have to know.

I think they know.

And I think they haven't told us yet, in part because they don't want to

shine too much of a spotlight on the right.

I think they have to do that.

I think we haven't told anybody in the inside with the trust.

I heard Justice Thomas the other day.

He said, we are forever changed changed because we don't have trust now.

Oh, yeah.

Look,

this is going to have lasting consequences and not pleasant ones.

There's always an air of trust.

When I clerked at the Supreme Court, there was an air of trust between the justices with the law clerks' free flow of information and exchange of ideas.

It was good.

It was a good thing.

Not everyone always agreed, but it got to better outcomes, better opinions that were sharper because of that dialogue.

This will be harmed by that.

Some of the other cases that are coming out, ones on guns, dramatic case on guns, right?

Right.

Bigger than the Heller case?

I think it could end up being as big as, possibly bigger than the Heller case,

at least in the sense that it

has the potential to be a case that, if decided the way I think the court will decide it,

will allow the Heller case to finally have its full impact.

In other words, in this case that's pending in front of the Supreme Court,

New York State Rifle and Pistol Association versus Bruhn,

the state of New York tried to take the Second Amendment right to bear arms and limit it to those people whom the state deemed sufficiently in need of guns to justify it.

giving the state sweeping subjective discretionary powers to decide, okay, Glenn, you may have a gun.

Yeah,

people don't like you, and

so we can have a gun.

But he might turn to Stu or Pat, the same state official in New York, and say, no, you don't really need it that much.

You're not as well known.

Just

be careful and try to wear a helmet when you're outside.

That's the kind of sweeping power they gave him.

Now, I, along with a number of my colleagues, submitted a friend of the court or Amicus Curie brief written by a fantastic lawyer named Gene Scher, a mentor of mine, making the case that

the Second Amendment doesn't give that discretion to a state.

In fact, the whole point of the Second Amendment was to make a deal.

So the Second Amendment, as incorporated against the states by the 14th Amendment, says that that negotiation, that balancing of interest has already been struck.

The Founding Fathers knew when they wrote this, when they wrote the Second Amendment, and when they ratified the 14th Amendment a long time later, they knew that there are safety interests, that this is a balancing of interests.

That, yes, some bad things will happen if we let people have guns, but that on balance, it's better if you let them have guns.

I think the court is going to amplify these sentiments, it's going to embrace them, and it's going to ultimately empower the Heller decision.

When you look at

the state of the world,

the power of

the public-private partnership now that we're in, ESG,

the Federal Reserve, the idea of a Fed coin,

all of these things that are really, truly at our doorstep, people who aren't paying attention think that it's, oh, yeah, well, that's no, it's here.

And

if, God forbid, we go into an emergency on food, energy, or war, which all are at least

maybe not likely, but

very well could happen.

How do we brace for this, Mike?

How do we get past an emergency like this intact?

First of all, we have to remember the risks of emergencies.

My wife has two fundamental tenets that I believe in.

My wife, Sharon, is very wise.

All socialism starts out as emergency socialism, and socialism is never for the socialist.

We have to be aware of these grave risks that we face if we run headlong into that.

Next, we have to remember that sometimes the only thing standing between us and the dangers

associated with the excessive accumulation of power in the hands of the few and all the things you just described, these emergency sweeping actions in response to this or that crisis, they all have that in common.

The best bulwark we have against that is sometimes the courts, the Supreme Court in particular.

And

in order to exercise those powers, to be that control rod that steps in and says, no, we're not going to let this proceed because this violates about 10 different features of our Constitution, you've got to have an independent federal judiciary.

This is not merely an academic exercise.

This is one of the reasons why we've been the biggest economic powerhouse the world has ever known.

We have an independent court system.

Right.

And it's also why our Constitution, the average length of a Constitution for any country is 17 years.

Right.

Right.

Not ours.

235 years.

Yeah.

And it's worked.

And regardless of whether you believe, like I do, that it was written by wise men raised up by God to that very purpose, it works.

So, but in order for it to continue working, we have to have an independent federal judiciary.

The court-packing plan that the left is pushing, President Biden, many of my Democratic colleagues in the Senate, most of them in fact, and their counterparts in the House,

it is there to destroy that and to consolidate power.

We can't let that happen.

Even if it fails legislatively, this time as it did with FDR in 1937, it will leave another lasting mark.

one that could saddle us with something else horrible, just as it did last time when FDR tried this, and that's why I wrote Saving 9.

But always we have to keep in the front of our minds that we shouldn't trust government.

Government is not a deity, it doesn't have eyes with which to see you, arms with which to embrace you, or a heart to love you.

Government is just power, it's just force, and it's got to be controlled.

That's why these separation of powers, that's why these all these protections in the Constitution matter, and they're not just academic.

Mike Lee, thank you.

Thank you.

Just a reminder, I'd love you to rate and subscribe to the podcast and pass this on to a friend so it can be discovered by other people.

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