Michael, a week or so ago, the Supreme Court handed down a ruling called West Virginia v. EPA. And at the time, you and I discussed that ruling and I said that that would have a more profound effect on our country in a positive way by reining in the bureaucracy of the federal government, which abuses the power that is given to it in the Constitution.
Well, Mayor Pete Buttigieg, who’s now Secretary of Transportation, is ignoring that ruling, and he’s trying to implement a program – and I’m going to just quote here from The Wall Street Journal just very quickly now, the Federal Highway Administration wants to make this abuse authority on the road.
It cites an obscure provision in a federal law that authorizes it to set national performance goals for the national highway system. It’s taking this to an extreme level, which is exactly what the EPA had done.
So this will probably be struck down by the first court that it goes to, which is a good thing, because I believe that ruling, West Virginia v. EPA was written in a very clear fashion so that the judges must adhere to the constitution.
But this raises the question that I’ve been bringing up for over a year, and that is that when public officials abuse their power, and I mean abuse it, should there be accountability for them individually?
And I still raise that question because the police officer who put his knee on the neck of George Floyd, resulting in George Floyd’s death, is in prison because he abused the authority of a police officer.
My question is, can a government bureaucrat who is creating tens of millions of dollars, maybe hundreds of millions, perhaps even billions of dollars of cost to average people, is there any accountability when they break the law?
We have the Supreme court ruling, and we now see this kind of throughout the Biden administration that when the courts rule in a way that is contrary to the goals of the Biden administration, they just simply ignore the court ruling and proceed as if it didn’t happen.
We will have to come up with a way of holding officials accountable who ignore the law and then try to impose their will on the people, which costs millions or billions of dollars. So we’re going to have to do something, and we’ll see what that is.
Leahy: We are delighted to welcome on our newsmaker line, one of my intellectual heroes. I’ve never had a chance to interview him. But Professor of law at Columbia Law School, Philip Hamburger. A leading intellectual in America today on issues of the Constitution. Welcome to The Tennessee Star Report Professor Hamburger.
Hamburger: Thank you. It’s a great pleasure to be here. Thank you so much.
Leahy: Well, look, we have talked often on this program about the overreach of the administrative state. And you’ve talked about administrative law. You’ve written about when administrative agencies regulate us, they exercise the legislative power that the Constitution gives to Congress un-elected bureaucrats, thus displace elected representatives.
This has been a dangerous trend. You’ve written about it extensively. Can you briefly describe what kind of difficulties this is cause for our constitutional Republic?
Hamburger: Well, there are so many. I don’t know. We can take the whole program listing the problems. (Chuckles) The real danger is that we are established as a Republic in which we elect our lawmakers.
We govern ourselves. Our laws are binding on us because we consent to them through elections. And we don’t always win the election. We don’t always get our way. But we know we participate in a process in which we get to elect those who make our laws.
And the problem, of course, is that much of the law-making, in fact, I’d say about 90 percent of it these days is not made by legislators who were elected but by unelected bureaucrats. And their tastes and their interests don’t coincide with ours and even if they did, they’re not terribly responsive to our needs. So that’s a disaster.
Leahy: It’s entirely a disaster. Professor Hamburger. Crom Carmichael, our original all-star panelist and another big fan of yours has a question for you.
Carmichael: Professor, the question that I have is this. Suppose an administration came into power and I would assume it would have to be a Republic administration but they haven’t done much better on the subject that you’re addressing. (Hamburger chuckles)
But suppose one did come into power that proclaimed during the inaugural address that under this person’s administration that the practice of administrative law will be believed to be unconstitutional on its face, and that any bureaucrat who presumes that they have the power of the legislature and tries to assert that power shall be terminated. Is that legal?
Hamburger: It certainly is up to the point of termination where there are some complicated questions. But I entirely agree with you. I think this is absolutely on point. You don’t have to wait for the Supreme Court.
A President who understood the problem could, I think, quite wisely, decide simply to instruct all federal officers not to pursue administrative power at all. And by the way, I think the President has a duty to do this.
The President has a duty to take care that the laws are faithfully enforced in the highest law of the Constitution. Although the question I think constitutionally, the President should be able to fire such officers, there would be a legal battle over that.
But the President, I think, could quite easily simply insist that administrative power not be exercised. It’s complicated but possible.
Carmichael: Well, then what I think I’m hearing you say is that the laws protecting government bureaucrats are a powerful law. But if a President did assert in the inaugural address and then a bureaucrat shortly after that, I’m sure somebody would test it.
And if he fired that person, that person would then have to sue to get their job back. And the court would then resolve whether or not a bureaucrat has a power greater than that of Congress.
Hamburger: That’s right. I must say I actually have proposed something like this in the past, and I think ideally it would be done in a proclamation followed up with executive orders.
I think one would have different orders and proclamations for different agencies because in some cases it would be a clearer path than others. But constitutionally, in the end, I think the President certainly has the power to do this. The real question is whether President would have the fortitude and the wisdom to do it.
Leahy: Absolutely. You started in 2017, the New Civil Liberties Alliance, and you’re using the courts to stop this administrative overreach by bureaucrats. How is that succeeding? And are you stopping this growing tide of bureaucratic power?
Hamburger: Well, as a friend told me, Rome was not burned in one night. (Leahy laughs)
Leahy: I love that line.
Hamburger: (Chuckles) Yes. I wish I had thought of it. But we are having some remarkable success with such a young organization. The New Civil Liberties Alliance now has about 20 employees who are litigating every day.
I’ll give you just one example of where I think we’re having a real effect on the ground. I just learned that the Security and Exchange Commission has greatly reduced the number of prosecutions it conducts in its own in-house administrative tribunals, these Kangaroo courts that are biased, that don’t give juries.
They now only have 12 of these proceedings. And I think that’s very much in response to our litigation against the Security Exchange Commission. Our goal is to have that effect across the administrative state.
And it’s actually very gratifying that already they’ve been forced to cut back so much at such a leading administrative agency. So I think we are having a very real effect, but we just want to keep on pushing and pushing until we restore constitutional covenants.
Leahy: We have a couple of our friends who are on the board of advisors at the New Civil Liberties Alliance, our good friend, Professor Randy Barnett from Georgetown University and Glenn Reynolds of Instapundit is on your advisory board. That’s a great lineup.
Hamburger: And we are honored to have them on board. And we actually also been gratified not only by our success but also the backing we’ve had from intellectual such as these.
Leahy: Is this a 501 (c) (3) and can people donate to it?
Hamburger: That’s right. It’s a 501 (c) (3) and we’ve had a remarkable outpouring of support, some very large donations, but also small donations, but also the people, all walks of life who really get it and who realize there’s a danger. And we have a chance to overcome it.
Leahy: It’s on the web at Nclalegal.org. You can go there and hit the donate button for it. And Professor Hamburger, I want to extend an invitation to you, if you’re interested. Every October for the past five years we’ve been hosting for secondary school students a National Constitution Bee here in Tennessee.
It’s open to any student around the country. Last year Alan Dershowitz addressed the group. The winner of the Bee gets a $10,000. educational scholarship and second and third also. I want to invite you down. Come down and be one of the judges in that event.
Hamburger: I would love to do that. I’ll have to consult my wife because she is the chief administrator of this agency. (Laughter)
Carmichael: She would enjoy coming to Nashville also.
Leahy: Have you been to Nashville?
Hamburger: I have not. I have driven through it but I wasn’t able to stop.
Leahy: We are going to give you a tour of Nashville.
Carmichael: And your wife will love it.
Leahy: By the way, I know you are at Columbia Law School and you are probably paying state and city income tax. (Hamburger chuckles) I don’t know if you know this, but in Tennessee, we have no state income taxes.
Hamburger: I’m jealous. I’m very very jealous. (Laughter)
Leahy: Hey, look, will you come on again? Because as I said, you have been an intellectual hero of mine for many years. I’m just delighted to get to meet you here.
Hamburger: I would love to join you anytime. It would be a pleasure. And thank you so much. The more the word gets out of this stuff, and you guys seem to be doing a great job on that, the more we can actually restore our own self-governance. Thank you very much.
Live from Music Row Friday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed the original all-star panelist Crom Carmichael to the studio to discuss how federal employees should be regulated to prevent an administrative abuse of power and in case of guilt should face jail time.
Leahy: We are joined in studio as we almost always are every Monday, Wednesday, and Friday Crom Carmichael. Crom, good morning Crom.
Carmichael: Good morning, Sir.
Leahy: Well, I understand that you found our conversation with the General Counsel for the Southeastern Legal Foundation of great interest.
Carmichael: Yes, I did. And here’s why. And here’s what concerns me when you have and this tends to happen more frequently when you have Democrat administrations than when you have Republican administrations.
But I’m not going to say it doesn’t happen with Republican administrations. I just can’t think of the issues. Officials at the EPA, these are human beings at the EPA, apparently did.
Leahy: Waters of the USA.
Carmichel: There was a bill passed in Congress.
Leahy: They promulgated a rule that twisted the law so that, in essence, the Environmental Protection Agency could come into anyone’s land and take it over if they had a creek on it, that they didn’t like the way that the water was flowing.
Leahy: In essence.
Carmichael: Right. And what did you say? Did you say a ranch or a farm?
Leahy: There was a particular case that had a guy who needed to put a pond up somewhere out West, and he did it. And the EPA went after him hammer and tong for about 10 years and almost destroyed him.
Carmichael: Here’s what I want to get at here. We now know that what they did was unconstitutional. What the EPA did. What the human beings that the EPA did.
Leahy: In the promulgation of that rule.
Carmichael: Yes. We know, therefore, what they did was against the law. If an individual who’s not part of government breaks the law and by doing so, destroys somebody’s property, and in this case, almost broke the guy, which is a form of breaking their properties.
It’s like stealing money. That a person goes to jail. If a government official does it, they have protections. I think we need to change that. I think back to when Nifong prosecuted the Duke lacrosse player…
Leahy: The county attorney who basically has subsequently been disbarred.
Carmichael: Yes. But he should have gone to jail because he broke the law. And in so doing, he tried to put young men behind bars for 30 years. When a government official uses a position knowingly and breaks the law. And there’s no question that Nifong knew that he was withholding information.
Leahy: He was also jailed for a period of time.
Carmichael: Okay, that’s a good thing. How long was he in jail? And what was the charge?
Leahy: On September 7, 2007, after already have been disbarred, he served a wait for it one-day jail sentence.
Carmichael: That’s meaningless. He was trying to put people in jail for 30 years. Prosecutors who abuse, and I’m talking about I’m not talking about just a judgment call here. I’m talking about where it’s clear that they abuse their position. They should go to jail for the length of time that they were trying to sentence the other person.
That’s what should be the penalty. And an EPA official or a government official abuses their position and tries to destroy the life of somebody else and then loses, that person should go to prison.
Leahy: No, I don’t disagree with you. However, Crom, I think you would be at the forefront of new interpretations of administrative law if you did that.
Carmichael: Of course I am.
Leahy: Of course!
Carmichael: Because otherwise, it would be happening already.
Leahy: I don’t disagree.
Carmichael: And this wouldn’t be administrative law. We should pass a law. We should pass a law that says that if a government official abuses their power, and you can put something like in doctors with malpractice. There are certain levels of malpractice that it has to rise to in order for it to be malpractice.
Leahy: This would be very interesting, and I think it’s worth pursuing Crom. And I think you would get it and I’ll tell you who’s been writing about this. What you’re getting at is the abuse of the Administrative Procedures Act.
Leahy: Passed by Congress and 1950s. And there is it’s a funny last name, but I think you can get some support Crom from an academic Professor at wait for it…Columbia University. His funny last name, Philip Hamburger. He’s been writing about this for, like, 20 years.
Carmichael: Okay, well, hot dog! (Laughter)
Leahy: That is good. (Laughter)
Carmichael: But let me say this, Michael. One thing I love about you is it doesn’t take much to make you laugh, (Leahy laughs) so that makes me feel even better.
Leahy: But you’re funny. Our listeners come and tell me and say, that Crom is funny.
Carmichael: Well, thank you. I have a son who does everything he can to not laugh at any of my jokes. And he does a really good job. He just stares at me. But this goes to the point of Biden’s nominee for the ATF, David Chipman. I want to read this here. This article says that law-abiding ‘gun owners’ can potentially become violent, so further restrictions on all gun owners are necessary.
Leahy: This is ludicrous.
Carmichael: Well, it is ludicrous, but it’s worse than ludicrous. And that is that no human being should be able to use a position of government to break the law. They shouldn’t be able to. They should be able to decide what they think is the law and just break it.
If he can’t go to Congress and get Congress to pass a law that says that law-abiding citizens can’t own guns and then get that upheld by the courts, then he has no business taking away people’s guns from law abiding citizens.
He has no business doing that. And it should be a criminal offense for him to do that. I’m not saying we need to pass a law to make it criminal. He ought to be arrested. If an ATF person came to Tennessee and tried to take away somebody’s gun in the state of Tennessee, the state of Tennessee should arrest that person.
And the state of Tennessee should put that person in jail and indict that person and try that person in a court of law and see if a jury in Tennessee believes that a federal employee, whether or not a federal employee should be held criminally responsible for essentially stealing someone’s lawfully owned firearm.
Leahy: Good point.
Carmichael: Because what else can they steal? If they can steal my lawfully owned firearm can they steal my car because it has gasoline and because it’s an SUV? Can some administrative person decide that what I’m doing is destroying the planet on their own and then come in and steal my car?
Can they do that? Can they come in and tear down my house because they think my carbon footprint is too large? Can they do that? And these are questions that are legitimate questions because when you look at what the left has been advocating for 20 or 30 years ago, some of the things they advocated, I thought were ridiculous. Well, they’re here now.
Leahy: They are.
Carmichael: And they’re here now because they advocated and advocated and advocated. Now let me read a great quote. This is from and I sent this to you from an organization called CrimethInc.
Here’s what they wrote. And they’re Antifa related group. Here’s what they wrote. And they’ve got a website with all kinds of doctrine on the website. ‘You put yourself in a weaker bargaining position by spelling out from the beginning the least it would take to appease you.
No shrewd negotiator begins by making concessions. It’s smarter to appear implacable. So you want terms, make us an offer. In the meantime, we’ll be here blocking the freeways and setting things on fire.’
Now that’s what they do. Now, let me say this. The 9-11 January sixth thing, how much damage was done to the capital?
Leahy: Not a lot.
Carmichael: Not a lot. Was there a fire?
Carmichael: Was there anybody who was killed there by any of the so-called insurgents?
Leahy: Not by the insurgents?
Carmichael: No. Not one. Not one person by the so-called insurgents, by the so called. That’s why I said by the so-called insurgents. And so what you have here is you’re going to have this commission that essentially labels anybody who even supports the notion that Trump was cheated out of the election, is somehow a bad person, and might even have criminal sanctions imposed against them certainly should be canceled.
Certainly should be canceled. Should lose their job, blah, blah, blah. All of these different things. And so this is what I’m saying is. And this is how these people act. They act with impunity and they do whatever it is that they want to do, and they don’t negotiate. Well, the question is, are they, terrorists? Are people who act like that terrorists?