The Ricochet Podcast - Serving Justice in the Land of Abundance

Episode Date: March 28, 2025

It's legal funtime hour with John Yoo calling in from the always optimistic Golden State. He, James and Charlie dig into the issues at root of the deportation fights between the executive and judicial branches. Considering everything from foreign thugs to Charlie's seditious past and our missed opportunity to conquer France in the early days of the Republic, the fellas turn up what powers they can for the president's effort to toss out the bad guys. Plus, Charlie bursts John's bubble about Ezra Klein's "new" pitch for abundance; James squints at the Ghibli Twitter takeover; and the gang is a bit puzzled by much of the Signalgate reaction. Sound clip from this week's open: National Security Advisor Michael Waltz talks the Signal snafu on Fox News while DNI Tulsi Gabbard gets grilled by Sen. Mark Warner (D - VA) in committee.

I love the way you've arranged your camera so we see the enormous pile of books behind you. I've even read some of them, but they look good. Ask not what your country can do for you. Ask what you can do for your country. Mr. Gorbachev, tear down this wall. It's the Ricochet Podcast with myself, James Lannox and Charles C.W. Cook. We're going to talk to John Yoo about 7,432 legal questions. So let's have ourselves a podcast.

Well look, a staffer wasn't responsible and look, I take full responsibility. I built the group. My job is to make sure everything's coordinated. Of course I didn't see this loser in the group. It looked like someone else. Now whether he did it deliberately or it happened in some other technical mean is something we're trying to figure out. Senator, I don't want to get into this.

Ma'am, were you on? You're not going to be willing to address it. Conversation. So you're not, are you denying? Matt, will you answer my question ma'am? Welcome everybody. This is the Ricochet Podcast number 734. I'm James Lilacs in cloudy overcast,

but unusually warm Minnesota, 72 degrees today, snow tomorrow, and I'm joined by Charles C.W. Cook in Florida, the flattest state in the nation, and John Yoo, who I presume is in California where everything interesting, bad, end, or good is happening. I welcome gentlemen. Here is my, here's where I stand. Signal, the thing, the signal, the reporter,

all the brouhaha. I find myself having the same reaction in nearly every single story that comes out today. One, I don't believe most of what the mainstream media says about it and frames it. If the parties were reversed, the story would be Republicans pounce, Republicans seizing on signal story.

Two, while the administration and its defenders republicans pounce republican ceasing on signal uh... story uh... while the administration and its defenders may come back with reasonable explanation i pretty much assumed seventeen percent of that is missing the point or missing critical information and three i know if i get up to speed on it right away it doesn't matter because tomorrow r f k jr is gonna ban zagnet candy bars in airport grocery in airport stores i mean it's just one after the other.

Are we talking about all the Biden pardons being overturned? No, that was like 40 years ago. Am I wrong or is this a signal story? Does this one actually have more legs than a centipede? I think it has legs because the administration didn't just say, okay, lesson learned, we won't do that again. But our attack was really successful. You should like that. Joe Biden was weak. Next question. The problem is they're trying to win this, they can't win it

because they did it. It was embarrassing. They did accidentally invite Jeffrey Goldberg to be on the chain. They weren't supposed to be doing it. They simultaneously said that it happened and that it's a hoax, that it's a problem and that it's not because Jeffrey Goldberg is annoying, which is and I think it's just tactical mistake. I think it's really bad, but I also think the public doesn't care. And I think if they had maneuvered themselves into a position in which it looked like the press was freaking out, then they could have said, you know, we have a really successful foreign policy initiative, we

make one mistake along the way and look at what the New York Times says, but instead, they're going to spend a week litigating this because they just can't ever admit that they screwed up. John, welcome. Nice to have you back. What say you? Oh, thanks. Great to be back, guys. I live in the land of California abundance. Have you heard of this new political theory of the left that's come from my state that we're so well governed here we're gonna make the rest of the country like California wait a minute abundance is actually sort of a buzzwordly theory I haven't

necessarily put it with the left yet are they trying to hijack it from the from the right color you're trapped in your little mega media universe. This is the big thing emerging on the left. Charlie sure knows a little bit about this. This is their new political theory about how they're gonna win it all back. They made a mistake for being against economic growth, for being in favor of excessive regulation.

And what they're gonna do is they're gonna take the lessons of California, which are about how government creates abundance and bring it to the rest of the country. But before we get to this, on the signal question, look, I worked in the government, I worked on classified information.

I mean, to me, put aside the media storm, whether Jeffrey Goldberg's on this or not, cabinet officers involved in planning the details of an attack should not be talking about it on unsecured systems. I'm certain that the Chinese and Russians were able to read this while this was going on, not just because they were using Signal,

but they were using their own personal phones, guess, right? These are not secure government phones. These are not, oh should we do a beer? See these, you've seen the text, their detailed times of the tax and what kinds of weapons are going to be used, who they're trying to hit. I think there's a terrible, terrible breach of security. So put aside the short-term political who's going to win or lose. I think this identifies a long-term problem that the Trump administration and our government have to fix or something worse is going to happen. Right. And for the people who were saying, all right, you megatypes, you were the ones who were all about her private server and her emails. And you know, it's entirely possible to be unhappy with both. Yeah. She's so annoying with this, James.

Every time someone else does a bad thing, Hillary Clinton says, I too did a bad thing. Yeah. As if this, as if she's now inoculated against the child. She has a piece in the New York Times today that I actually did when I read it, think was a parody that had been created by AI, where she says, Can you believe it? Can I believe what that you are awful and did awful things for years and now someone else has done something bad? Yes, I can't believe that she thinks this somehow vindicates her. It's bizarre. Yes, well, I do would want to remain relevant and the rest of it.

And I think it is possible to hold many ideas about many things in, in, in one's head, but I'm still trying to get, I'm, I'm, my brain is still reeling from the California abundance bit. Uh, we can either talk about signal again. I think they're, we've said what needs to be said. Let's not have this happen again. And let's dispatch with the Houthis. Thank you very much but John going back to abundance Explain this in a little bit greater detail because as I as I've said I've heard people on the right use the term and say that you know

We the solution to a better America more prosperous America is to get rid of the scarcity end of the world global warming climate change Sort of you know 1970s feel where we've just exhausted everything and we're good Just going to be the world is running down and there's nothing to be found and of course, you know We turn around and find 15 trillion gallons of oil here and a billion pounds of lithium there I mean America is astonishing place and that we should embrace growth and embrace all of these things and tell the NIMBYs to go pound sand and also take a lot of sand out so

we can use it for fracking etc etc but it seems now that that that California progressives are believing that they can use the example of California to produce abundance and we're not just talking about the increased revenue of U-Haul going from there to Austin. Explain this a little bit more. So the New York Times columnist and pundit, who I'm sure you'll invite on the show to browbeat, Ezra Klein has a new book out and he's going around the country. He's speaking to packed audiences.

There's all kinds of media about this and the Times and the Post and the Journal about their argument is after their loss, they're proposing a new platform for the Democratic Party progressives, which is they have to be pro-abundance, that they've been anti-growth and excessively regulating and all that their pro-government regulation approach to life has actually made the social problems the left cares about worse. So they say the big obvious problem is homelessness. They recognize now that all these environmental reviews, all their zoning restrictions, all their, you know, government planning bodies have made it impossible in California to build any new housing. planning bodies have made it impossible in California to build any new housing.

So they actually say California is an example now because you now have pissed off cities like my city of Berkeley. Berkeley actually got rid of zoning entirely so that I'm allowed to, I could tear down my old house and put up an apartment building there if I wanted to. So this is the interesting thing is you have these people on the left saying, we have been too favorable to government. We have to pull the government back, and we have to figure out a way to let the market and the economy solve our problems.

The other two problems though that they point to, not great examples for them. So the other one they point to is, how can we can't build a high speed rail from LA to San Francisco, when they can build them all in China in the course of a few years. And then the other example they have is,

oh, nuclear power. Suddenly they're in favor of nuclear power because they said, it's so hard to get permits to build any kind of infrastructure in the country, to build the energy grid, to develop non-carbon non carbon energy sources. We ought to fix that too. Well, does anybody believe them?

Charles? No, I just think he's a fraud. I've always thought he's a fraud. The arguments that he is making are partially correct. And usually I would be pleased by that because I think that Jonah Goldberg is correct when he says that you win in politics by getting the other side to say you're right. Not by fighting them on everything forever, but by convincing them that even if they don't like it, they have to accept and pretend even that your ideas are superior.

That's what happened to some extent during the Reagan administration and into the 1990s. But I don't believe this. I don't believe it because I don't see any contrition involved. I see no acknowledgement that these ideas are effectively Republican ideas. They're from the contract with America of 1994, especially on regulation, and they're from supply side economics. So what he's ended up doing is while attacking the right, which he's now decided is for scarcity. It's another line he's selling. He is arguing for the things that, say, National Review has been arguing for for 70 years, as if they're his idea, and then pulling them back a little bit from where they need to be, and presuming that they ought to be superintended by him and his friends and his preferred government officials. It's just annoying. And I think that the second, that the Democrats get back into power,

which they will, the right is insane to think that there is some generational shift at play and that the left is vanquished forever. Then all of the special interest groups and rules and legal avenues that he's currently decrying will become useful to him again, because that's how Democrats get and hold power is by sending out checks to people who they like. Right. I mean, if it results in a party that at its core believes a wholly new different set of ideas that will produce a more prosperous America, I'm not going to complain. It seems to me that some sort of repudiation of your priors is in order here, some sort of acknowledgement that the were not that in the beginning and turned into

two hands clenched around your windpipe in many of these instances. You can't love the state and worship its power and then just say, oh, but that thing that is fundamental to us, never mind that, we're now in favor of putting Leviathan back in the cage and doing these other sweet things. I mean, if you believe in these things, you'd be conservatives, you wouldn't be liberals. Unless they can find out some way.

I mean, what you said there, John, about homelessness, that yes, indeed, California, the major cities could benefit by some sort of, by additional housing. From what I understand, Newsom appropriated millions of dollars, which has resulted in nothing. They were supposed to have these little tiny houses where that people could go. Billions, billions. We don't do anything in the millions here, James. Billions. And none of it resulted in anything. I mean, it resulted in money going to NGOs, which would then go to another NGO,

which would then go to a study, which would then go to a pilot program. I get that if that's the intention of all the spending and then it was successful. But a lot of the reason that you have the homelessness on the streets that you have is not because of a lack necessarily of housing but because it made a nexus of drug abuse mental illness caused by drug abuse in many instances and it just sort of a dispositional disinclination to go inside and live there you have to have a series of draconian so what would

strike people as draconian social policies to accompany that, that would result in more criminalization of drugs, which would result in more people in prison, which would result in all the things they don't like to do because they don't want to be mean to the people who are homeless because they're just like you and me. So I mean a lot of these things seem like half measures and while Charles is correct to point out that they'll probably change their tune once they get in power, the problem isn't that they've spent all this money on light rail that goes nowhere the problem is that they

haven't done the light rail thing quick enough right it's not as if the train to nowhere isn't they don't say it's unnecessary they just say well we need to build national grids of high-speed rail we just need to be able to do it like China and again I'm questioning your priors we don't need a national passenger grid of high speed rail and I think that there are a lot of people on their side who would would the blood would drain from their face if you said that because you know what's the alternative well the alternative is planes what's the matter with planes well planes cause global warming they have to give up global

warming they have to give up their fictions about the homelessness. They have to give up a lot of things in order to make this stick and be believable, I think, in order to be intellectually consistent. Am I expecting too much? I think it's just another version of the Democrats missing Obama. This is exactly what Obama promised, right? I'm gonna have more competent, more competent, effective government. But in reality, what did he do? He advanced their high church ideology, which consists of bending the knee to diversity

and worshiping the environment above everything else. And so, yeah, you can make the government work better, as you say, James, but if the goals of what you're using the government for are still flawed and mistaken, it could make things worse. Maybe it's better to have a sluggish dysfunctional government as long as they're trying to do it, use it for the wrong purposes. One can hope. Charles, anything on that before we get Levant off to another topic. I would just add that I think for an awful lot of people who are involved in the process, the purpose of the California high speed rail project is not to build California high speed rail. It's to funnel money around to unions and environmental groups and let them all fight it out.

They love that. I know, but you would think at least that at some point in the process, somebody would say, while we're doing all of this funneling and sloshing and handing out and the rest of it, oughtn't we build the train? I mean, good old American graft in the past would at least result in a train. We're not getting one. And of course, the people who talk about the Chinese version forget how much money they spent on it and how much debt there is built into the system and how it's I mean it's just it's it's it's not

a good thing for them it just isn't trains trains really I mean I love them I'd love to go to Europe and ride around and zip on the trains I really do whenever I go to England Anglia you know mid Anglia whatever the hell it is to get up to Suffolk and it's two hours hours. But I take a look at the map of England and I superimpose it over Minnesota and it's about the same. And I think, yeah, I could have driven this. I could have. Anyway, so on to legal things

because we've got a legal expert here. John, the deportations or the attempted deportations or the beginning of the deportation efforts have got people convinced that the Black Mariahs are pulling up and throwing people in the back for no particular cause and there's no due process. This is all wrong. It's anti-constitutional. Let's have some clarity about this because I'm sure it differs from case to case what we're talking about here. Tell us your legal perspective on the deportation of the students, of the student visa people. Well, you already have a legal expert. You've got Charlie on the podcast. I'm just here for

the comic relief, my friend. I mean, Charlie's a common law English trained lawyer, my friend. We don't need any American innovations. They got things pretty well right. This is a hard case, you know, this is of course being raised by the deportation of alien students who've been participating in these pro-Palestinian protests on college campuses. One of the high-profile cases is fellow Khalil, who's a Columbia graduate now, who has a green card. He's a permanent resident alien, and he was grabbed by the government and in the process of being removed from the country. So this is a, this is a hard case because if he were American citizen, there would be no doubt he has a free First Amendment defense.

He could say, look, I'm being punished for my views. All I was doing was I was showing up at these protests and saying things. I have a right to protest as recognized by the Supreme Court. The problem is, this is a really hard part of it, is aliens may not have exactly the same rights as citizens, even the ones in the country. For example, the government is allowed to stop people from coming into the country based on their beliefs. The government is allowed to say, we don't want someone to come into the country and get a visa because we think they're harmful to our national security and foreign policy. And this is not just the Constitution. This Congress has written this in a statute.

And one example I like to give is, I haven't seen it mentioned in the media, but in the 1980s, I believe the Reagan administration refused to let Yasser Arafat come into the country, even though he was coming to speak at the UN, because we said he's a terrorist. So the government's allowed, and then the government under the same law, under the Immigration Act, is allowed to kick people out of the country who are aliens, who are thought to be harmful to our national security and foreign policy. And there were cases from the 1950s and early 60s where the government kicked out communists who had gotten into the

country. So I personally would prefer not to see the government kick out people just for showing up for protests. I think the more trustworthy standard that will apply to citizens as everyone else is, there's a difference between conduct and speech. If Khalil, if some of these other students were doing more than just protesting, if they were engaged in organizing efforts to target and harass Jewish students, if they're engaged in moving money around, if they were essentially conspiring to hurt the civil rights of Jewish students, to commit violence, to take over buildings. To me, that's not just speech, that's conduct. And I think the government can punish you for that.

So I think that's a fine line. I think that's the one we should try to observe rather than just kicking people out of the country if they're only just engaged in speaking. Charles? I agree with that. The law that senators, now, well, I'm still in that mood that Secretary of State Rubio, Adam braided in that clip

that went viral with his usual eloquent, I'm told is a real law, and that will probably prevail in court and maybe non justiciable, nevertheless. But it does make me slightly nervous for the reasons that john outlines. And I would have no problem whatsoever with either through an administrative rule or

through Congress, a set of stipulations being added to F visas and J visas, for example, that said ahead of time, you can go into America and you can do your cultural exchange or you can do your student activities. But if you interrupt speakers, if you occupy buildings, if you prevent others from learning, if you are credibly accused of interfering with civil rights, then you're out. That's fine. And of course, those people don't have the same rights as a green card holder, which is a US person or as a citizen. But when we are talking about viewpoint, I think that goes a little bit far for a couple reasons. First off, I look back to when I was on a J visa. I was pretty brutally critical of Barack Obama's foreign policy. I also was a Second Amendment advocate who could credibly at points have been accused of seditioned,

because I said that I think the Second Amendment protects the right of the people to overthrow the government if it becomes... Charlie, why did you say that in the past tense? No, I'm right, but I'm protected now. So I wonder, could Barack Obama have had me deported, perhaps? So the first thing is I look back and I think if it's purely viewpoint that we're dealing with, then it seems a bit of a slippery slope. The second reason is that I just think that on the merits, the idea that somebody who writes an op-ed, which is one of the cases, or even this Khalil figure, is practically damaging the foreign policy interest of the United States.

It's just silly. And if you go back to, for example, the case of Schenck in 1919, which is where the fire in a crowded theater line comes from. It's since been overturned really by Brandenburg. But if you go back to that case, at stake in that case was a Jewish Russian immigrant who handed out leaflets in Yiddish. And the Supreme Court said, well, this is meaningfully hampering the US government's capacity to fight World War One. And I think that's hyperbolic.

That's true. So, so I look at these guys and although I loathe them and I'd love to tighten up the system that brought them here in the first place or change the promises that they're obliged to make before they come in, so then you can deport them for violating that promise, I'm just not persuaded that that law, even if it prevails, which you probably would legally is a good one I agree with the actions not speech because I Deporting somebody for that I mean the definition of what isn't is not can be wrong thing can be rather elastic depending on whether or not you want to

Reward this and punish this so I agree with that I'm just telling one of the reasons are that I think that it something inside of me says I'm less concerned about this than perhaps that I should be, is the idea of going to another country, being let into another country and then going to a rally and shouting down anybody who disagreed. Seems like a colossal act of ingratitude, if nothing else. I mean I, I, I just don't get that part but anyway i suppose if you guard yourself as a member of a transnational group of enlightened people who are world citizens that uh... idea of

contravening the order of the country that let you in is irrelevant what matters is doing the right thing on every possible stage but i think charlie's correct uh... and i think uh... it's that but that brings us to the alien and enemies act. Are we, John, applying this correctly? The administration's justification has been that Tren de Aragua, which has replaced M13 as their, you know, MX13 or M3 or MI. MS13.

Mississippi 13. Mississippi 13, right, which is a congressional district, it's replaced MS-13 as the foreign violent, hyper violent drug dealing bugaboo. And they're bad, they're bad guys. They ought not to be here. And the administration has said that actually the reason that the Aliens and Enemies Act applies is because the government of Madura sent them here to cause mischief and mayhem. Is that a tenuous assertion, justification?

Does it really matter? Does the law apply? Do we really care? Because what matters is seeing these guys having their head shaved and stuck in an El Salvador prison. This is again a tough question. I think you can think of the- What about the tough questions here, John? You think about the controversy in two ways. One is just based on the facts. If you were deciding, do you think the Alien Enemies Act applies? And then two, who in the government is the right person to make the decision? So this is a law right passed in 1798. It was passed to address the quasi-war with France. You know, I thought we were on the right path back then. We should have just

continued the war in France and finished them off, but we stopped. And I think we could have gotten Great Britain on with us at that time, fixed a lot of future problems in world history. So, the Alien Enemies Act is very interesting. It's only been used three times in American history, War of 1812, World War I, and World War II. And it says, during a period of a declared war, or, and this is a part of the statute that's never been used till now, or during an invasion or predatory incursion. You gotta love the way people wrote laws in the 18th century, right? No, you know, going across the border. I love that. Predatory incursion by a hostile nation or government. If that occurs, then the president is allowed to kick out of the first, not just get detained and then kick out of the country,

any citizen or native of that country of that hostile nation or government. So people don't know this, but for example, in World War II, Germans and Italian citizens were rounded up all throughout the United States, actually all throughout the Western Hemisphere under this law. And it's actually part of a normal war power, right? If you go to war with another country, you assume all the citizens of that country are now your enemy. And it's a classic part of war all the way back to the 18th century to catch and hold the members of the people you're fighting with. So the thing I'm not sure about here and why I think this is shaky legally is the requirement that it be a hostile government or nation that's working against you. I don't think you could

claim that Tren de Uruguay is a foreign government or nation. So you'd have to be able to show in some way that they are an arm of the Venezuelan government. That's a hard one. And then you have to show what they're actually doing rises to the level of an invasion or predatory incursion. When you know, every one of us, you know, these are bad people, they are engaging in terrible violence, they're engaging in drug dealing, human trafficking. This was the group that allegedly had taken over apartment buildings and we've seen, I've seen the videos and we've all seen the videos of the violence they're engaged in is terrible, but are they really doing enough to cross the line to an invasion? Are they really doing enough to cross the line into a predatory incursion by a hostile country? So that's one.

The second question then, the one that we're fighting over now in the courts is who gets to decide that, the president in Congress or the judiciary? Traditionally, the judge, in fact, I would say traditionally, I don't think the judiciary has ever in our history, second guessed a decision by the president and the Congress, either or both that war or invasion has occurred. Doesn't happen very often in our history, but the times they have, like the civil war, for example, or the war of 1812, the courts said, say that's up to the elected branches to decide. So I personally don't see the facts yet to say this is an invasion.

I don't see facts that it's a predatory incursion, but I'm not convinced that it's the courts that get to make that call. Well, predatory incursion, right. You could say, and we haven't seen any plane loads going to El Salvador in the last couple of weeks as far as I know, that the whole thing was done initially, pour encourager les autres, as they say. I don't think there's anybody in the trend, the aqua clubhouse is sitting around saying, no, this is not going to pass constitutional muster because we do not meet the definition of a predatory incursion. I think, you know, you know,

lay low and skedaddle, which is kind of the point. But, you know, you know lay low and then and skedaddle which is kind of the point but you know It's it's it's amusing to think exactly whether or not this organization here has any sort of structure to it or whether or not I don't know. I mean are any of them getting orders from Maduro? Are any of them reporting back to the home office about what may and they're causing or they laying low with the rest of it? I don't know. Do they have a structure at all? Do they have an organization? Do they have an HR? I guess that's what I'm really asking here because HR, boy, if they got HR, you know, just wait for a trend to just follow their own accord because HR is hard, right? Oh, you feel lost when you're doing HR. Okay. But that's all right if you're a small business person. HR is not what you do best. What you really do best is you find solutions.

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is easy. Reclaim your time and check out the free demo at bamboohr.com slash free demo and you can see for yourself all that bamboo HR can do and how truly affordable it can be as well. That's bamboohr.com slash free demo bamboohr.com slash free demo and we thank bamboohr for sponsoring this the ricochet podcast. I almost stopped in the middle there to throw it to Charles and ask him how he likes his sheets. Hi Charles do you have something else to add to the aliens and enemy act or do you have another legal thing that you would like to pitch toward? No, I do have a couple of thoughts on this. The first is political, not legal, and it exists independently of the law.

This is just my personal view. I don't like the fact that the administration has invoked this law in an attempt to execute these deportations without any due process whatsoever. And this is not because I don't want to deport lots of illegal immigrants. I really do. And it's not because I think that illegal immigrants should be given rounds and rounds and rounds of due process and give the government a run around as a result. It's that it seems that in this particular case, the big criticism that's being made is that there is a possibility here that we've got the wrong person. Now, that is a problem in and of itself, but it's especially a problem when you're sending people to prisons in El Salvador.

I mean, if you were to deport me, I would be very upset about this, but I would also quite quickly be able to go back to the border and say, actually, I'm a US citizen, here's my passport. I can't do that if I'm in a prison in El Salvador. So I do think the bare minimum that you should do, and again, I don't think that we owe a great deal to illegal immigrants, is to determine that they are illegal immigrants in the first place. And that step seems to have been skipped. That's all I would like to

see done. So when I and others say there's a due process problem, that's mainly what we're referring to. On the legal question, I don't know what john thinks about this. The claim that the administration is making is that the Act of 1798 is in total, non justiciable. That is to say, the courts are just not allowed to get involved. And that's not quite how I read that Supreme Court decision, although perhaps I'm wrong. First off, there's a footnote in there that says judges are allowed to get involved in determining whether or not the act applies to individuals. That is, whether individuals are 14 years or older and whether they do belong to the group that's been covered.

But beyond that, the case from 1948, which I read last week, applies entirely to instances in which a war has been declared. And that is the only times that this act has been used three times when wars have been declared by Congress. And what the court ended up saying was, OK, the war is over in some sense, because it's 1948 by the point it's litigated. But when you declare war and when you wage a war, there's lots of aftershocks. And determining when those aftershocks disappear is an intrinsically political question the judiciary can't get involved with. Also, the Second World War in Congress's eyes actually didn't end till 1951. Congress didn't repeal the war declaration till 1951.

What we have here is a second part of the law as John says, which is to do with an invasion. Although the word is not declared, the word is proclaimed in the law. And I just wonder whether this might be more justiciable, John, because the court case that I read had nothing to do with the invasion part and all of the reasoning And the cited text had to do with the declared war bit So is it possible this actually will be looked at by the supreme court and they'll say Well, the courts can get involved when it's to do with an invasion or do you think they'll come to the same conclusion? It's interesting. Uh charlotte. Well first I should have made clear

That the most interesting thing about this is it has to do with the movie The Godfather. Because you may remember, do you remember at the beginning of The Godfather, all these people come in to see, you know, Don Corleone, and they're asking for favors. You might remember one of them is the baker, Enzo's father, future father-in-law. And he says, you know, Enzo, he's taken prisoner. He's an Italian and he's brought into a POW camp in the United States. And he meets my daughter and you know what happens? Don Corleone, can you please use your great power to keep my future son-in-law in America? Because what happened, the case Charlie's talking about, Ludeky versus Watkins, was after the fighting

stopped in 1945, the declared war didn't end, as Charlie says, until we made the mistake of letting Germany become a country again. And once we did, we ended the war in the 50s, right? But during that period, Truman kept kicking all the Germans and Italians out of the country. He kept sending them back under the Alien Enemies Act, and most of them didn't wanna go because they had been here in the United States. They had actually been performing all the farm working jobs and factory jobs that all the Americans who were fighting

had left behind. And so you had thousands and thousands of Germans and Italians in the United States who sued to say, I don't wanna go back, the war is over. So it's exactly as Charlie describes. So this is the interesting thing. I was going to guess, I think first of all, the issues are exactly as Charlie describes. One, is it a declared war or an invasion? Who gets to decide? Are the courts going to step in? Then the second question, where I think Charlie is right, is what kind of due process are the courts going to require to kick any of these people out, whether it's the Alien Enemies Act or the immigration laws?

I think he's right. The courts have said you get some kind of due process. This is the lesson of the Guantanamo Bay cases, which I think the court decided incorrectly, but the Guantanamo Bay cases say it's wartime. That's another example where the court just said, we accept the 9-11 attacks are war, the president of Congress agree, but if there are going to be enemy prisoners who are held in the United States, and that's where I think they were wrong, they said Guantanamo is part of the United States, but then the United States, they get due process. And the power of the government there was much stronger than it is here, I think, because there you got a real war going on. So, I think for sure they're going to get due

process. Charlie's right, we don't know what level of what kind it's going to be, but they will get something so that you could make sure there's not an error, you know, that they're not kicking someone out who's not a member of the gang or who is in Venezuela. The first question, though, that's, you know, the, let's just say, historically the courts have said it's a political question whether something's even an invasion, not under this statute. The only example we have is the Civil War. And there's these great cases called the Prize Cases, where these people who own Southern ships that were captured by the Union right at the beginning of the war went to the Supreme Court and said, give us our ships back. There was no war going on.

Congress wasn't in session. They didn't declare any civil war, any rebellion. And the court said there, if the country's attacked, it is up to the president to decide, and it's up to the president to decide what kind of force to respond with and courts can't review that decision. Now, the president they're talking about is someone named Abraham Lincoln and not Donald Trump. I can see that. So, you could see a court these days being a little more skeptical. But you also worry, how does a court know whether something's an invasion or not? The D.C. Circuit, the appeals court here that just, you know, a day or two ago, upheld Judge Boesbergen Junction. The two of the judges there said, we can't judge

whether this is an invasion and it's not. This is not military. But do we, how do courts really make that decision? They need to have access to classified information and diplomatic and national security information that's really not in their ken. And that's been why courts I think historically have stayed out of it. Well, we'll see how this develops. I mean, basically you got a lot of people in this country, eighty, twenty, I think, who are pretty much in favor of guys who have been shielded by a sanctuary city after committing X number of crimes on

people and children and the rest of it, they are not particularly concerned about their fate. I'm not saying that's a good or a bad thing. I just think in general the electorate will regard this with kind of sort of a shrug. It's a great thing to deal with those people because we do need to determine that they are those people and not some guy who runs a laundrette. No, you're absolutely right. And one other point is they're not getting out.

They're already in detention. And even if you can't hold them under the Alien Enemies Act, you can still hold them under the immigration laws. And they can still be deported under the normal immigration laws. But as Charlie said, it takes a lot longer. There's a lot of levels of review. You got a right to go to court to stop it. And I think there, so I am puzzled actually

why the administration wants to use the alien enemies act. What is the advantage you get? I think that first they thought you could do it and not have to go have any hearings at all. But I think they've lost that one. Well, let's look at some court cases coming up. You know, things are gonna churn through, there's gonna be temporary restra restraining but there's some

interesting and philosophically distinctive cases coming up uh john why don't you tell or you know tell us about the federal communications commission's the consumers research because this has to do with some sort of ancient tax that may not actually be applicable or useful or necessary in the modern world. You've got 90 seconds to tell the class what it's all about, go. Classic example, the administrative state

and Congress not wanting to make hard choices. Congress gave to the FCC the power to basically impose a tax on everybody's telecommunication bills so that they could build out the network for universal service. The FCC then turned around and gave the power to get another body which is made up of people who work for the companies, right? This was basically made up of corporate representatives of this industry.

So this raises the very important question of what's called the non-delegation doctrine. Is there a constitutional principle that says there's a limit on how much power Congress can give away? Is there a requirement under the Constitution that certain decisions have to be made by Congress? So I always like to say, because there's some people who say, in fact, I would say most academics would say, no, there's no limit. If Congress, and think about like things like the Clean Air Act that just says the EPA can do what's necessary to make the air clean. And the courts have upheld that, even though it seems to me to give the entire legislative power to the EPA. So I've always said, could Congress say the IRS shall determine all taxes in the country. It can set all the rates.

It can decide what's taxed. It can decide what's not taxed. And Congress just says, just make sure you raise a hundred billion dollars. To me, that would violate this idea that there are limits on how much power Congress can give to the agencies. But the Supreme court has really struggled. They have not struck down a law on the non-delegation doctrine since 1935, I think 1934, before FDR threatened to pack the courts. But this is the interesting thing. Five of the conservative justices of the Supreme Court have

said in various cases, never all at once, never together, but in various cases, they all think there is such a limit, but they can't figure out what the right test is and how to apply it. So if you do the right, if you figure out the chessboard, I think the Supreme Court is going to strike this down, but I'm not sure how they're going to agree on what the principle is going to be and how you're going to say Congress can give away some power, but they can't give away all the power One of the advice by the way One of the most important could be one of the most important decisions much more important things like what we've talked about for Loper Bright and Chevron that's just you know eating around the edges But if the courts were to say Congress can't give power to the administrative state

That could be a real dagger in the heart of progressive government. Do you think it's gone? a real dagger in the heart of progressive government. John, do you think it's gone? Well, I was going to ask whether you think that it's possible that instead of reaching the key question of delegation, that the court strikes down this delegation on really narrow grounds and says you're not allowed to delegate delegated power to a private institution and doesn't reach the difficult thorny stuff that I love them to yeah There is that possibility they could raise some difficult problems for lots of important agencies nonetheless like not just Amtrak But the Federal Reserve

Yeah, you ever looked at how the federal looked at who's on the Federal Reserve and how they get there? It's like local bank, like regional banks get to appoint members of the Federal Reserve. I mean, they work for the industry effectively. Let's say this goes the right way and then you have Chevron as well. Do you think anything is actually going to happen? I mean, has anybody actually gone back

to these aspects of the administrative state where they promulgated regulations in excess of their authority, shall we say, and done anything about striking them down. I don't post Chevron. You thought this is how we get California abundance because I would say there is a set of laws that really burdens the economy, slows everything down. It's the environmental laws, right? Your usual partner in crime, Steve Hayward, I'm glad he's not here because otherwise he'd want to wax eloquently about the Clean Air and Clean Water Act and you don't want that on a family show. But he would, you look at what slows things down. I think those

are the laws that have the biggest delegations. I wasn't making it up. The Clean Air Act basically just says, EPA, make the air clean. You can do whatever is necessary in the public interest to make the air clean. Those laws are so's necessary in the public interest to make the air clean. Those laws are so vague. They give so much power to the environmental agencies. They interfere in so many aspects of our economy. That's what's slowing down all the infrastructure and investment and all the clean power projects

and all that, as well as things like roads and pipelines and construction projects and even just building houses. So I think if you could create something that actually said Congress can't get away by just dumping all this power of this amazing sweep of power on these agencies, you might have more accountable government and you might have more responsible decision making. Agreed. There's another one. We're going to do another Supreme Court case here coming up. Why don't you tell us about the United States versus a poor little pheasant.

One pheasant. Go on with that US v pheasant. I have no idea what that case is. You've got me stumped, James. I didn't know this was gonna be a lightning round. It's the BLM case. Charles, have you heard about this? I don't think so. Can you explain the outline? Well, as I understand it, based on the very brief praises that was handed to me minutes ago, the Bureau of Land Management, the suit regards their authority to make rules for federal lands, which is then delegated to states themselves. Oh, I thought you meant it was a case about a pheasant like a burk.

No, well, I... No, that's the guy's name. The guy who was driving the motorcycle, right? Riding a dirt bike on federal land without a taillight. And apparently this is now a federal issue. This is again, this is the same non-delegation doctrine case. And as you say, you described it accurately, he's claiming that the Congress gave too much authority

to the Bureau of Land Management. So again, I think this is the starting point where you could start to build a non-delegation doctrine. It's that Congress, if they can't, there's got to be some powers they can't give away. And you guys, one of them is the power to tax. The Constitution says the Congress has a power to tax and says, and gives special rules about how you pass laws about taxation. It would seem to me the other kind of law that Congress should not be able to delegate would be criminal law, laws that have punishments behind them for violating them. Because how are you supposed to know as a citizen whether what you're doing is illegal or not if it's just up to some agency that issues a regulation that it can change a monkey around with from year to year. So I think that this case could provide that other kind of basis for building a non-delegation doctrine for you to say

Congress also can't delegate this power to set crimes or to set fines that punish people because you have a right as a citizen to know. And it's such an important aspect, regulating the private rights and legal duties of citizens should be made by Congress, not by agencies. And I think that's the kind of thing the conservatives on the court could agree with. I think if you go back and like, you know,

I blame the English. I mean, I think they were right, but this idea of the non-delegation doctrine, I should say, comes from John Locke. There's a passage in Locke where he says, you delegate power, you know, the basic theory is, you know, we're citizens, we delegate power to the government. And then he says, you can't have a redelegation. It's actually, as Charlie said, you got key redelegate then from our agents, they can keep delegating endlessly and endlessly and Locke says no, it has some stopping point. And you would think that the right to make the criminal laws

and the right to pass taxes would be the kinds of things we would only want our direct representatives to be able to do. I have an even more radical hope for this one, James, if you'll permit me a couple of minutes. Yes, of course. This is not going to happen. But one of the arguments that the plaintiffs have made in this case is that the federal government does not have in the first place, any enumerated power

that allows it just to hold land. In other words, obviously, as part of the enumerated powers that the federal government does have, it has to be able to own and manage land. If you accept that the federal government has the power, for example, to run a military, then it's going to need to have ports and bases and airfields and so on. Likewise, if you accept that the federal government is going to have

Article 3 judges, then you need to have courthouses. But a lot of the land that is out there in the West in particular is just owned by the federal government. It's not that it's using it for something else that is listed in the Constitution. It just has it, it was never homesteaded. And one of the arguments that's been advanced is it's not allowed to do that. Now, the reason this isn't going to happen is firstly, it would be pretty radical for the Supreme Court at this point to say, by the way, you weren't allowed to do that.

Second, people love national parks. And I also like national parks. I think if you applied an originalist lens to national parks, you might have trouble justifying their constitutionality. And there's just no way that's going to happen. But I would love to see a ruling that limited the federal government's capacity just to have this land because once you have land under

federal control, the federal government has plenary power to do whatever it wants on it, set whatever rules. Now, of course, John's totally right. The problem in this case is that this is done bureaucratically rather than by Congress. But Congress could also do whatever it wanted on that land. So if you live, for example, in Idaho or in Nevada, two states that are full of federal land, you may think that you are governed by your state legislature and your governor, but in most of the space in those

two states, you're actually not. You are governed by the Bureau of Land Management and that presents its own problem independently of where the power lies relative to the legislature and the executive. That presents its own problem in terms of federalism because you've got this state that is mostly run and administered from Washington. There you go committing sedition again, Charlie. Yeah, he gets all of his right papers and then he turns into a complete radical, I tell you. That's a wonderful transformation. Enough law, enough politics,

enough of all of this stuff. We'll end with what the internet did this week and went crazy. OpenAI opened up, released a module, a program, an app, I don't even know what you would call it, Colin, I don't care, that let anybody, Studio Gilby themselves. I actually have had access to that through my own AI generating program for uh... studio gilby themselves uh... i actually have had access to that through my own a i generating program for an awful long time it was very good and it was calling the ghibli twiltered filter but uh... everybody was running every single picture that has been taken every

iconic i hate to use that word i'm sorry i did picture through this filter and some of them were kind of amusing and within about six or seven hours or so we were all completely and utterly sick of it. I don't know if either you guys did that to yourself or what your approach is but I was seeing by the end of the day a lot of pieces saying that AI art is essentially fascistic and that this just proved it and that frankly it's disrespectful and horrible to our cultural history to use this fascist tool

to generate images which the right wing loves. And I was unaware necessarily of a political distinction between this, but apparently AI art is now fascist coded. You guys get that vibe? That hadn't occurred to me. Okay. Well, it's true Charles, because I read a piece on a tech website about it.

Maybe even a box. Is it that style? You say it's called Ghibli. I was wondering how to pronounce that. Ghibli. Ghibli. I'm sorry. You know, Japanese anime movies.

Yeah. Why you would want to make a picture of yourself looking like that is beyond me. But why is it fascist? Sorry, is it fascist or is the use of it fascist? Oh, the use of it is fascist. The image itself isn't because everybody loves this studio because they watched the movies when they were growing up and they have great memories for them.

And all because the Japanese culture. Because like Google and Microsoft and Facebook are well-known fascist companies. And they're out thereknown fascist companies. Oh, no, that's one of the articles says. Zook is code and fashion now. Absolutely. They were using the example of... But, James, this reminds me, wasn't there like a year ago when you could say,

show me a picture of the Queens of England, and it generated all the, AI just generated all these PC versions. That was Gemini. That was Gemini. That was, that was who the Gemini. These are the best ones. The best ones that work. Yeah, like the best one with those was if you put in,

you know, show me a union, a Confederate soldier, then they were, the Confederate soldier would be black or a Nazi and it'd be Jewish. And it was just cause they were picking ethnicities and religious views at random, assigning them to people. Cause that's what AI is, right? Is you have to have representation in all spaces. It wasn't necessarily at random. There were some parts of it that were actually forcing that, as you say,

because you had to have representation. They didn't want a biased AI. No, it's because people like, uh, you know, the Argentinian president and their own administration have and Nazis in general, the return type, the traditionalists, the trad bros, they love to use AI to generate these images of an idyllic white America that never existed. They use it to generate sort of Facebook AI slot pictures of Donald Trump crossing the Delaware by walking on the water, all of that stuff. So the very fact that people with very limited imaginations and not a great deal of artistic ability are using this to create

political images means the whole thing is now fasc. So, you know, everybody's a Nazi. Well, look, it's great, isn't it? There's so much now that's fascist, and I'm just glad that this gets its moment in the sun. Exactly. I would think, actually, that giving to the people a tool which allows them to create art of whatever style, variety, and message that they like, that if that is fascism, then I'm not exactly sure what word you use to describe a state-directed effort that

constrains the expression of any cultural idea and forces it to conform to the ideas of the state and glorify the state. That seems to me to be your more fasc thing and the open-ended tool that everybody can use over here doesn't seem to be that Nazi-esque, but what do I know? That brings to mind just this funny little story. Oh, can I just tell this weird little tidbit about being in California, which is you go to a shooting range in California, which is not easy to do these days, and you pick targets. You're allowed to pick it. You're not allowed in California. I don't know if there's a range owners or the there's a law but it's very hard now

to find a kind of image that you're allowed to shoot at because you want to shoot at something you hate. You're not allowed to hate anybody anymore. So you don't have like a picture of a deer, you don't have criminals because you know criminal suspects could be bad, you could have you know racially insensitive drawings. So the only kind of target that's agreed on by everyone is okay to shoot at Nazi zombies. Okay. That's life in the land of abundance. Yes, well, when the culture is, I mean,

and this is a culture that used to sell Hitler and Mussolini decals for urinals. So men could improve their aim back in the back back in the days. Ah, yes. Well, listen, if you have an HR property, you know where to go. Bamboo HR support them for supporting us. If you have a desire for a free swinging, free ranging conversation about all sorts of matters from cultural to sports, arts and Politics and the rest of it, you know where to go ricochet comm and if you are already there and you're already a member Thank you. If you're not give it a look it's cheap and oh you get the sort of community You've been looking for all your life on the web. It's not Twitter. It's not Facebook. It's not blue sky

It's its own style and its own place and you're gonna love it. Give us five stars wherever you can. Can't hurt, what, you know, does it cost you anything? No, it does not, so do it. Maybe Stephen will be back next week, maybe he won't. Maybe Charles will be here, maybe he won't, I will. John, it's been fun and great and we got to half the legal questions we'd like to pose to you

but it's always a pleasure to have you on. Go forth and shamrock, shake your way through the weekend, enjoy yourself and we will see Charles, bye we'll see everybody in the comments at Ricochet 4.0 and we'll see you next week. Ricochet. Join the conversation.