Judging Freedom - The Divided States of America | A Conversation with Jeff Deist & Tom Woods

Episode Date: January 13, 2022

Mises Institute President, Jeff Deist, and Tom Woods, author and host of the Tom Woods podcast, join Judge Napolitano to go in-depth on the state of America today.See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Hello there, everyone. Judge Napolitano here on Judging Freedom. Today is Thursday, January 13th, 2022. I'm happy to have with me two longtime friends, intellectual and ideological colleagues. Jeff Deist is the president of the Mises Institute. He's also a very fine and well-accomplished tax lawyer and a superb libertarian theoretician. How could you not be running the Mises Institute? Tom Woods is, quite frankly, one of the most extraordinary public intellectuals of our day, who is gifted and talented and educated in history, as well as in economics. Sometimes I'm afraid to talk to Tom about economics because he knows so much more about it than I do. But the three of us who have worked together in many, many different functions advancing the ideas of human liberty are happy to be here today.

So, gentlemen, welcome to Judging Freedom. Roberts cut the baby in half a compromise, invalidated the Department of Labor's mandate for vaccine or testing for all employers of 100 or more employees, but upheld the Department of Health and Human Services similar mandate of vaccine with no option for testing and no exemptions whatsoever for everybody who works in health care that is funded largely by the federal government. The opinion stopping Joe Biden in its tracks was terrific and basically was Justice Neil Gorsuch saying, who decides, the president or the Congress? Who writes the laws in this country, Tom? Well, I guess with the two cases, I guess the distinction that they were trying to make is whether or not the authority imposing the requirement had been granted some kind of statutory authority to do so. So the claim is that the Secretary, I guess, of Health and Human Services has long had

almost a plenary authority with regard to the administration of Medicare and Medicaid and attaching requirements to places that are receiving those types of money. So they upheld that for that reason. But they said that OSHA, by contrast, which, as you're indicating, Judge, should not be making general public health decisions for the entire country, has not been understood to have a sweeping mandate, so to speak, Judge, for people like the three of us here, this kind of nitpicking over who has the authority to say what when is a little bit less bracing than, say, a good old-fashioned decision saying it's not really ultimately just a question of who, but it's a question of what is being done. I don't frankly care that much about who orders me to do something against my will. It's the ordering of me to do something against my will that I care about primarily. And that is something I don't see constitutional authorization for. But even though the decision is not written the way I would ideally want it,

I think it's a major setback for the lizard people, which is what I call the ruling regime. and I'll take what I can get. Right, right. Jeff, there's some great language, no surprise, in Justice Thomas's dissent. It's almost like going back to constitutional law in law school. He's reminding the court, hey guys, health, safety, welfare, and morality is reserved to the states, not to the federal government. Tom just described very nicely what the chief justice thinks of the federal statutes that empower HHS. I'm more concerned than I think Justice Thomas was, and I suspect you are, Jeff, with what the Constitution says about it. Well, of course, sweeping police powers have always been

reserved to the states. The federal government nor the federal agencies have any sort of authority to be governing this sort of thing. I mean, I like Tom's point here, which is we don't really care about separation of powers, which are mostly thrown out by now. But what we do care about is federal authority. And if we're going to have the constitutional rubric of a compelling state interest in various tests, certainly this one, shutting down businesses of over 100 people, unless everyone gets a COVID vaccine, or a weekly test ought to fall under the kind of strict scrutiny test where the employer really has to show a compelling interest. I would argue there is no compelling state interest, certainly no compelling federal interest in this mandate

because I don't think the virus is that lethal. I don't think it's worth shutting down the world over. But, you know, all that said, what's so interesting, Judge, is that we look at the result. In other words, the legal reasoning, what the law actually says, what the administrative agency authorization really is, these are secondary concerns. We view the Supreme Court as results-oriented, winner-take-all, super legislature, and that's effectively what it is. I think that Justice Gorsuch, who probably is the most libertarian leaning of the nine, hit a very nice nail on the head, Tom, when he said, and he said this before,

there's no public health exceptions in the Constitution. And I think he's alluding to what you were talking about, which is there simply is no authority for anybody to tell you what to put in your body against your will. Right. So in his concurring opinion in the OSHA decision, he said, I have it actually up here on my screen. He says the federal, he's talking about the distinction between state and federal. We all remember Justice Sotomayor saying, I'm not sure I understand why the federal government might not have a power, but the states would. And well, in her world, the federal government is a general government that can legislate for anything. Right. Of course. But Gorsuch says the federal

government's powers are not general, but limited and divided. Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate this area or any other, it must also act consistently with the Constitution's separation of powers. So he's got that stuff in there in his concurring opinion. So that was refreshing to see. But as I say, I consider this mandate to be such an outrageous injustice that even if the court's way of arguing is not as robust as laws and use the state police and various other aspects of the state government to enforce it. Profound violation of separation of powers. Anyway, that expired on Monday. He begged them to extend it. It's a new legislature still controlled by the Democrats, but not as overwhelmingly as the one that ended on

Monday. They said no. He thumbed his nose at them and declared a state of emergency, which automatically extends his powers by another 45 days. Will this madness never end? Well, it's not perfect, but people can leave New Jersey a lot more easily than they can leave the United States. They don't have to learn a new language, they don't have to obtain a passport, and they're allowed to go back into New Jersey to visit their friends and family or loved ones or tend to their business or their property in a way that's harder to do on an international scale.

So I do think the great migration we're seeing throughout the various 50 states since all the new COVID regimes went into place is a good thing and a healthy thing. I think it's what the 10th Amendment prescribes for us. You know, I don't know a lot about Murphy other than he seems COVID crazed, and there are states like Thompson state of Florida where things are less crazed. So I think this is a fantastic experiment. I love it. I like to see these governors sniping each other. I like to see a little bit competition between states. And I'm all for it. Let's have it. Let's see who has, you know, bodies stacked up outside morgues and who doesn't. And it turns out that no matter what you do with masks or schools or vaccines is pretty much the same.

It really goes by age more than anything else. That's the greatest determining factor for COVID mortality. So, you know, if you're going to have the same fatalities either way, you might as well be open and free. So you're right. Uncle Ronnie Reagan used to say the beauty of our system is you can vote with your feet. Of course, when he said that, the feds, though bloated and expansive, weren't nearly as bloated and expansive as they are today. Before we get to another subject, I have to put this little footnote in. More people left New Jersey in 2021 and moved to another state than left any other state. I'm saying this to you while I'm in my home at the northwest tip of New Jersey, a state I was born in and raised in and for the most part of my life educated in and sat on the

bench in, but it's just, it's terrible. How much longer do you think the federal government can be around, Tom, when it can't pay its bills, when some states are beginning to engage in soft nullification, like the state of Texas nullifying Roe versus Wade and the Supreme Court allowing them to get away with it. And we know that numerous other states, Florida and South Dakota come to mind, are about to do nearly the same thing. Well, I'll tell you something, Judge. As a historian, all I have to do is be able to tell you what happened in the past. Predicting the future, I don't much care for because apparently I'm no good at it. When it came to March 2020, I thought, surely by the end of April, people are going to be up in arms about all this

for sure there'd be outrage i thought even hollywood actors you know would despite their their thirst for conformity would have to say something and man was i wrong so i i don't know exactly i can't give you a date but i can say that what you're describing is going to happen de facto is that people are we're we're seeing people living two different kinds of lifestyles i mean i i don't know what to say to people who are debating whether they should wear an n95 or a cloth mask or whatever they inhabit a completely different universe from me and in in terms of either whether it's the mask wearing or even at this stage, complying with demands that they not attend events with more than 50 people. For heaven's sake, you've done everything they've asked over and over and over repeatedly, and you're still facing these

restrictions. And as you say, Jeff, it doesn't really seem to do anything. I mean, I can understand why in March 2020, you might think that if we shut everything down and we do this or that, and we impose this or that requirement, that there'll be a noticeable difference, but whatever difference there is, doesn't seem to be particularly noticeable. And yet you're still complying with it. Every time you see a sporting event or a concert, I went to a concert in Columbus, Ohio a month and a half ago. 20,000 capacity place, didn't even require a negative test to get in. 20,000 people almost, nobody was wearing a mask, and we just had a great old time and nothing came of it. That would have been impossible in New Jersey.

No doubt, no doubt. But this is happening. That's the thing. There's an America where all this is happening right and they seem to be doing perfectly okay eventually it's just going to shake out who who cherishes life and wants to live well if that's you then unfortunately it may come to the the the result that you do have to uproot yourself from a place that may have tremendous sentimental value from you that you you you envisioned raising your kids and playing with your grandkids in that state. And you thought, you know, like Carol Markowitz from New York City, who had defended New York and said, yeah, it's a crazy, terrible political scene,

but it's such a wonderful place to live. Even she had to give up and move to Florida. It's a very, very sad thing. I miss New York City very much, but I couldn't possibly live there anymore. Yeah, it's time to make some hard decisions. Jeff, you and I have spoken together about the idea of reversing the flow of power, not to Washington, but from Washington. But Tom's point is scary because in certain parts of the country, the public has just bowed down and said, yes, Governor Murphy. Yes, President Biden. Yes, fill in the blank, bureaucrat. Keep me safe, even if it's an illusion of safety.

I'll give up my freedom. True. Absolutely true. But I think we'd like to isolate that wherever possible. And I think we'd like to give people options. And I do think a form of soft succession is happening. I think it was happening before COVID. But I think it's been greatly accelerated by this. I mean, people are choosing to move to climbs, which are more amenable to them, whether that's because of COVID restrictions, whether that's because of taxes or starting a business, whether that's because of weather, it hardly matters because this is happening.

It's happening without any design. We like that. It's happening just because people's demonstrated preferences are more important than their stated preferences. Let's just say what they actually do. And in this case, moving with their feet. And let's not forget, America today is largely an economic arrangement. It's barely a country. And it's certainly not much of a nation.

I would argue that there are many, many nations within the United States. I live in SEC football nation, for example. That's as good of a cultural marker as any other, right, to describe where I live. I live in an Italian-American nation, Tom. Yeah, absolutely. You live in Boston, America. But, you know, I think we should celebrate this. I think regionalism is what we've got going for us now in this country. And I think 330 million people essentially ruled by a few thousand people in Washington DC or sometimes four or five Supreme Court justices it's just a recipe for dysfunction and disaster so I think we're going to break off do you think we're going to break off Jeff into uh separate semi-autonomous uh countries

I don't in the short when the feds can't pay their bills and they can't employ people anymore i well i think i think when an economic shock comes that would be the impetus in other words in 1984 if you'd been sitting in the former soviet union saying hey i think in five years we're going to break up without a single shot fired and let latvia lithuania estonia go uh people would have said you were crazy. And I think they would have been right. You were crazy in 1984. In 1989, you weren't. And so I think the same thing applies to the United States. As long as we're economically viable, as long as our dollars are relatively strong, as long as our distribution systems and

food and all these and energy and transportation and all these sort of blocking and tackling things work pretty well, then no, I think we won't. But that day is going to come. So, Tom, put your economist hat on. Are places like Florida, where you are, Texas, which thumbs its nose at the federal government, are they economically self-sufficient or potentially economically self-sufficient? Could they really sustain themselves without the rest of the country or with just treating the rest of the country as a trading partner? Well, I think they would still want to trade with the rest of the country, but there's some statistic where Florida recently had 25% of the new jobs created in the entire United States were all in Florida. And that's an astonishing number.

And what's more, I think if we're going to talk about the economy, we have to think about what are some of these blue cities doing to their economies. a temporary vaccine passport system where my understanding is that if you can't show proof of vaccination because you're under age five, you have to have a negative test. So your two-year-old has to have a negative test to go into a restaurant with you. That's not sustainable. No one's going to visit a place like that. That's going to hurt them economically. Obviously, New York City, the Broadway shows that we're all familiar with, cannot survive on New York traffic alone. They can't survive on domestic traffic alone. They require international traffic. And most of these places do not have vaccination for five-year-olds. So they are all destroying themselves little by little. And I know there are some dopes in New York who think, well, I'm glad we don't have so many tourists around. It's not as crowded. Well, nice for you, but not nice for everybody whose business relies on that kind of

traffic. So I think they're shooting themselves in the foot and there's likely to be a renaissance in the red cities. So our dear friend and mentor to the three of us, the great Lou Rockwell, channeling his best James Madison, has argued that the president should just be a figurehead who makes sure that the wheels of a small federal government work. He shouldn't be telling us how to live and telling us what to wear and telling us where to go and expressing an opinion on everything under the sun. He shouldn't be able to spend money on his own. Is that a pipe dream, Jeff? It is now because of the 20th century. The unitary executive is now firmly in place. I would love to live in an America where Congress, the makeup of Congress mattered far more than who the president was or who the members of the Supreme Court were. I would love to live in an America where Congress, the makeup of Congress mattered far more than who the president was or who the members of the Supreme Court were.

I would love that. And that's what the framers expected as well. Absolutely. These are the people most accountable to us every two years in the House anyway. And so I think they ought to be declaring war. I think they ought to be setting policy. I think presidents should campaign not on their policies. They're not supposed to have policies. They should campaign not on their policies. They're not supposed to have

policies. They should campaign on simply their managerial competence. I guess I'll have to live a while to see that day, though. Tom, is this a pipe dream or is it going to happen whether three of us are alive? Well, I'm older than both of you combined, but. Well, what could happen is that the president, because these people, they're all narcissists, they can't keep their opinions to themselves, but maybe they utter their opinions and nobody cares. So, for example, you'll recall earlier, early in 2021, Joe Biden was saying that maybe by Independence Day, vaccinated families might be able to have small gatherings at their homes. Meanwhile, the rest of the country is planning big 4th of July barbecues. It didn't mean anything to them.

So he's yapping away, but it didn't mean anything. But what Jeff says about the 20th century is correct. The very beginning of the 20th century, in 1903, Teddy Roosevelt, who is beloved by Democrats and Republicans, which is how you can tell he's a bad guy. If Mitt Romney likes him and Bill Clinton likes him, he's got to be a bad guy. And John McCain's hero, right? Right, yeah. He's Bill Clinton's favorite Republican president, he said.

Well, he had a summit. It might seem like a small thing, but he had a summit at the White House to deal with the question of college football being too rough and there are too many injuries occurring. I forget where that's in the constitution, Tom. Right. Of course. Now, of course he's entitled to his personal opinion on that matter, but it would never have occurred to James Madison that he has to, to stick his nose in anything like that. But this led into this expectation that the president is this larger than life

celebrity figure with opinions on everything. And we need to know what his golf handicap is and all this weird superstition, you know, about, and this leads to these days, people saying, this is, don't you disobey my president. Thomas Jefferson did not want you talking like that. You know, that's the way a slave talks. Right, right. Gentlemen, we can do this all afternoon. Thank you very much for your time.

Those watching should know the three of us are the best of friends, and it's a joy for me to work with both of you. We'll do it again soon on Judging Freedom. All the best. Thank you, Judge.