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Judge Napolitano - A Secret Act of Judicial Tyranny · Brian Thomas

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  Speaker 1: North Bend seventy five. That's a slow go out of
• 0:03
  Speaker 1: Rolinger into downtown. Today is Nasal Baseball Day with the Yankees,
• 0:08
  Speaker 1: and Red's doing so well. Let's play two with our
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  Speaker 1: next guest, Chuck Ingram fifty five KOC the talk station.
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  Speaker 2: A thirty two. If you have kc detalk station, it's
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  Speaker 2: always a great day on Wednesday because we get the
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  Speaker 2: benefit and privilege of Judge Enda Poulton. Was a thoughtful,
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  Speaker 2: insightful analysis. Every week, I'm looking enough to get a
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  Speaker 2: column early. It comes out at midnight. Iran's roach modewn.
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  Speaker 2: I'm sorry. That was Jack Allaman's coming. A secret act
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  Speaker 2: of judicial tyranny. It's the shadow Dot and welcome back
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  Speaker 2: Judge Enda Poulton. I love having you on the show.
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  Speaker 3: My friend, pleasure Brian, thank you very much. And I
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  Speaker 3: guess and a deference to Ingram, the Reds and the
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  Speaker 3: Yankees have the two best records in baseball my understanding.
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  Speaker 2: Yeah, how does that happen?
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  Speaker 3: It would be that would be a great series Cincinnati
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  Speaker 3: against the Yankees.
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  Speaker 2: Oh can you imagine? And can you imagine you? And
• 1:02
  Speaker 2: and and and and.
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  Speaker 3: I will Cincinnati. You get me a ticket and I'll
• 1:07
  Speaker 3: get you a ticket in Yankee Stadium.
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  Speaker 2: That's a promise that would be so great, probably a
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  Speaker 2: lot cheaper to go to the World Series a game
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  Speaker 2: or a playoff game between the Yankees and the Reds
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  Speaker 2: that it would be to get a FIFA ticket. Don't
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  Speaker 2: go down that road, your honor. I just am pulled
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  Speaker 2: at the pricing on that stuff. Hey, real quick before
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  Speaker 2: we talk about this shadow and I appreciate your enlightening
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  Speaker 2: me on where this shadow docket came from, because I
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  Speaker 2: was not aware of the of the of the grounds
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  Speaker 2: behind it. We'll get to that just a moment. But
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  Speaker 2: I saw this op ed piece in the Wall Street
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  Speaker 2: Journal distilling down the commerce clause from this this Monday,
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  Speaker 2: and they write about this Fifth Circuit Court of Appeals
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  Speaker 2: case on the Dispilled Distilled Spirits Plan dwelling at eighteen
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  Speaker 2: sixty Wall eighteen sixty eight law, which says basically, you
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  Speaker 2: aren't allowed to distill spirits in your home. Well, the
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  Speaker 2: court overruled that they didn't get to the commerce clause
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  Speaker 2: argument because interestingly enough, the one of the party the
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  Speaker 2: parties didn't raise it by as the journal points out,
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  Speaker 2: the commerce clause going back to Wickered versus Philburn You're
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  Speaker 2: in my favorite not case. When the District Court in
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  Speaker 2: this case ruled a couple of years ago on this
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  Speaker 2: law they were analyzing, the judge said that the ban
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  Speaker 2: on home distilling couldn't be saved by the commerce clause.
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  Speaker 2: Why because Wickered upheld a national effort to prop up
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  Speaker 2: weat prices, while the distilling rule isn't part of a
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  Speaker 2: comprehensive scheme to regulate liquor supply and demand. What does
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  Speaker 2: the Fifth Circuit think? Well, as Judge Jones explains, the
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  Speaker 2: government does not challenge the District Court's commerce clause analysis
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  Speaker 2: on appeal, but there's another one that's been cueued up
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  Speaker 2: along the same lines that did. Now, I know this
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  Speaker 2: may be a little esoteric or we dwelling for non lawyers,
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  Speaker 2: but you and I hate the Wickered versus Philbroom. It
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  Speaker 2: is a ridiculous overreach. No, you cannot buy or grow
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  Speaker 2: wheat on your own property for your own sole consumption
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  Speaker 2: because it has an impact nationally. That has been the
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  Speaker 2: insane decision behind basically all of the government and overreach
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  Speaker 2: that we have to contend with each and every day.
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  Speaker 2: If the Supreme Court, I'm asking you to read tea
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  Speaker 2: leaves gets this teed up under this other case, and
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  Speaker 2: they do have to revisit Wickered versus Philburn. Do you
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  Speaker 2: think the current makeup this Supreme Court and its very
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  Speaker 2: conservative viewpoint of the Constitution would go the same route
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  Speaker 2: as Wicked versus Philburn Judge Thepolitano, I.
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  Speaker 3: Think the current Supreme Court would overrule Wicked against Philburn's
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  Speaker 3: court for your audience's benefit. Roscoe Philburn was a farmer
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  Speaker 3: in Ohio who grew wheat in his backyard, which Missus
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  Speaker 3: Philburn ground into flour and baked into bread. They didn't
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  Speaker 3: sell it, they didn't distribute it. They consumed one of
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  Speaker 3: the product on their property. The Agricultural Adjustment Act, this
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  Speaker 3: is FDR ERA, prohibited them growing this much wheat. Court said, well,
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  Speaker 3: what you're doing is immeasurable on the interstate commerce scale,
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  Speaker 3: but if we add up all the potential immeasurables in
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  Speaker 3: the aggregate, there'd be an effect. So if we let
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  Speaker 3: you do this, millions of others will do it, and
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  Speaker 3: they'll buy fewer products, and that will affect interstate commerce.
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  Speaker 3: There's also a line. I don't know which way the
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  Speaker 3: Ohio River flows east or west. But there's also a
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  Speaker 3: line that the water that Roscolle Philburn was using came
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  Speaker 3: from another state and therefore there was an impact in
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  Speaker 3: interstate commerce.
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  Speaker 1: This is the.
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  Speaker 3: Ridiculous links to which courts have gone in order to
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  Speaker 3: justify congressional regulation based on interstate commerce. I wrote a
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  Speaker 3: piece that The Wall Street Journal published arguing that to Madison,
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  Speaker 3: all did was look up the history of the word
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  Speaker 3: regulate interstate commerce. To Madison, the word regulate meant to
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  Speaker 3: keep regular, not to control, but to make sure it flows. Yeah,
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  Speaker 3: that's what I'm waiting for the Supreme Court to return to.
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  Speaker 3: That will remove a tremendous weapon in the hands of
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  Speaker 3: the liberals that have control and big government types that
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  Speaker 3: have controlled Congress since the FDR years.
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  Speaker 2: Well, the case we need you and I need to
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  Speaker 2: look for with that hope in mind. Rem versus us
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  Speaker 2: Department of Treasure Treasury. This realm guy seeking to engage
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  Speaker 2: in a hobby, well, which is the same thing as
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  Speaker 2: the other case home distilling. His filing says he wants
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  Speaker 2: to make small quantities of whiskey solely for his and
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  Speaker 2: his wife's personal consumption. And in this case, the District
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  Speaker 2: Court held that he didn't have standing, but the Appeals
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  Speaker 2: A panel has asked for briefing on the merits, suggesting
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  Speaker 2: it may have legs to move forward if he gets standing.
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  Speaker 2: We're going to have this issue back in for of
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  Speaker 2: the Supreme Court at some juncture, I imagine.
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  Speaker 3: Justice the late Justice Scalia told me that one of
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  Speaker 3: the arguments that he hoped the Court would use in
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  Speaker 3: invalidating the Affordable Care Act. Of course, we know what happened.
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  Speaker 3: Chief Justice changed his mind and five to four against
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  Speaker 3: became five to four in favor. But one of the
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  Speaker 3: arguments that they were going to use in the majority
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  Speaker 3: opinion was to invalidate, to repeal Wickard versus Philbrin. This
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  Speaker 3: was a lifelong goal of his, and I am convinced
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  Speaker 3: it is a goal of the conservatives on the Court.
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  Speaker 2: All right, which gives the nice pivot point. And I'm
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  Speaker 2: sorry to take it down that road, but I got excited.
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  Speaker 3: Oh no, no, this is fascinating to me. This is
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  Speaker 3: meat and potatoes for me.
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  Speaker 2: And I figured you wouldn't have any problem going back
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  Speaker 2: to Wickard because you and I feel the same way
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  Speaker 2: about it. Now pivoting over to a secret act of
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  Speaker 2: judicial tyranny. The column you wrote that comes out of Midnight.
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  Speaker 2: Justice Clea's name does come up. But the whole idea
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  Speaker 2: of the shadow docket, Supreme Court not really having formal
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  Speaker 2: cases in front of it and yet ruling on them,
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  Speaker 2: I didn't well the shaftoe.
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  Speaker 3: It began with an act of subterfuse during a Supreme
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  Speaker 3: Court vacation where the Chief Justice had a policy objection
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  Speaker 3: to the Clean Power Act. The Clean Power Act was
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  Speaker 3: never adopted by Congress, but it was enacted by the EPA.
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  Speaker 3: The EPA, as you know, the Environmental Protection Agency, enacts
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  Speaker 3: all kinds of regulations that Congress doesn't have the fortitude
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  Speaker 3: to say yes or no on. This regulation would have
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  Speaker 3: gradually removed coal as a source for power in the
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  Speaker 3: United States and moved it toward solar and non non
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  Speaker 3: fossil fuels. The Chief Justice was furious at this, believing
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  Speaker 3: it should have been enacted by Congress. So when this
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  Speaker 3: regulation was challenged in the Court of Appeals, agency regulations
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  Speaker 3: are not challenged in the trial court. They're challenged in
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  Speaker 3: the court of appeals.
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  Speaker 2: The long story auristion, it's crazy going.
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  Speaker 3: Back to Woodrow Wilson. While the case was in the
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  Speaker 3: Court of Appeals and before the Court of Appeals ruled
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  Speaker 3: on it, the Supreme Court violated its own rules and
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  Speaker 3: violated the Constitution by taking the case away from the
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  Speaker 3: court and having the Supreme Court vote by writing letters
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  Speaker 3: that were delivered from their vacation places to the Chief Justice,
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  Speaker 3: and as soon as he got five yeses, the shadow
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  Speaker 3: docket began. The shadow docket is where the Supreme Court
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  Speaker 3: says yes, no stop go without briefing, without oral argument,
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  Speaker 3: without meaningful discussion amongst the judges, and without an opinion issued.
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  Speaker 3: So the legal community knows how the hell they got.
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  Speaker 2: There, and that I think probably one of the most
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  Speaker 2: problematic elements about it is that you don't get their
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  Speaker 2: interpretation behind the ruling. How much benefit is that on
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  Speaker 2: a going forward basis?
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  Speaker 3: Correct? Correct? You don't understand why they did, but they did. Look,
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  Speaker 3: they did one of these yes no stop goes earlier
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  Speaker 3: this year, and Justice Kavanaugh wrote a concurrence. The case
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  Speaker 3: had to do with whether or not ice can stop
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  Speaker 3: immigrants on the streets, and the Supreme Court just said yes.
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  Speaker 3: In Kavanaugh's concurrence, he said, I know some Americans have
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  Speaker 3: been stopped. Big deal, Just carry a passport with you
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  Speaker 3: to stop is brief, and he's been excoriated for that,
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  Speaker 3: including by one of his own colleagues, Justice Soda mi Yor.
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  Speaker 3: As recently as last week. She apologized for it. She
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  Speaker 3: was very rough on him, in my view, rightly so.
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  Speaker 3: But this is now known as the Kavanaugh stop and
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  Speaker 3: it is a derisive reference to his profound misunderstanding of
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  Speaker 3: the Constitution, written in a concurrence to an opinion that
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  Speaker 3: doesn't exist. There was no majority opinion, there was nothing
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  Speaker 3: to concur to, but he wrote it any way, and
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  Speaker 3: it's out there.
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  Speaker 2: Yeah, this isn't a question whose ox is being Gord.
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  Speaker 2: That is the best point you can make about this.
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  Speaker 2: You know, I don't care how you feel about the
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  Speaker 2: decision and what the decision resulted in the point is
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  Speaker 2: you don't have any interpretation. You don't have any you know,
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  Speaker 2: anything you can use by way of you know, story
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  Speaker 2: decisive is let the decision say, and there's the president.
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  Speaker 2: I'm going to cite that in a brief. How do
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  Speaker 2: you cite a shadow docket opinion in a brief? What
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  Speaker 2: does it stand for? Right?
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  Speaker 3: You can't. This is a creation of Chief Justice John Roberts.
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  Speaker 3: This stop, go yes, no. And in the in the
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  Speaker 3: case of the Power Plan, the Obama power Plan, in
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  Speaker 3: my opinion, the plan was horrific, and in my opinion,
• 10:45
  Speaker 3: the EPA doesn't have the authority to do this, but
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  Speaker 3: put a signe major question right personal opinion on that
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  Speaker 3: the Supreme Court does not have original jurisdiction except in
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  Speaker 3: three narrow areas that had nothing to do with this.
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  Speaker 3: It cannot create original jurisdiction for itself. How do we
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  Speaker 3: know that?
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  Speaker 2: Marbury against Madison, which as allows me to ask the
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  Speaker 2: crazy question, well, can the shadow docket as a concept
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  Speaker 2: or as a practice be challenged in court?
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  Speaker 3: I wish somebody would, I guess somebody whose ox is gored.
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  Speaker 3: But you're going to be challenging procedure, not substances. The
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  Speaker 3: very definition of a shadow docket is they don't give
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  Speaker 3: you a reason why they've ruled. I mean, this would
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  Speaker 3: turn liberals like Earl Warren and conservatives like Felix Frankfurter
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  Speaker 3: and institutionalists like John Marshall over in their graves that
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  Speaker 3: the court, which they protected, forget about the outcome, we're
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  Speaker 3: just talking about the procedure is being abused by John
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  Speaker 3: Roberts like this. And this is not ideological. This is
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  Speaker 3: not a conservative or liberal, Republican or democrat, progressive or libertarian.
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  Speaker 3: This is a question jen of fairness. How do we
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  Speaker 3: know what the court meant when it simply says yes, no,
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  Speaker 3: stop go at.
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  Speaker 2: I salute that summary. Judgenita Paula Tano, Judging Freedom is
• 12:11
  Speaker 2: your podcast? Are you gonna be talking with today so
• 12:13
  Speaker 2: we can be tuning?
• 12:14
  Speaker 3: Oh boy, I have two heavy hitters today. I have
• 12:16
  Speaker 3: Professor Mohammed Mirandi born in Alexandria, Virginia, now at the
• 12:20
  Speaker 3: University of Tehran, who comes on with me once a
• 12:23
  Speaker 3: week to tell me what's going on with Tehran. And
• 12:26
  Speaker 3: just as important, at eleven o'clock this morning, I have
• 12:29
  Speaker 3: the former Director of counter Intelligence of the United States
• 12:34
  Speaker 3: who resigned saying to the President, Iran is not a
• 12:38
  Speaker 3: threat to the US and you know it, mister President.
• 12:41
  Speaker 3: Joe Kent live on Judging Freedom, Judging Freedom.
• 12:45
  Speaker 2: Get it where you get your podcasts and tune in
• 12:47
  Speaker 2: every week at a thirty here on the fifty five
• 12:49
  Speaker 2: Kersey Morning should get this brilliant analysis. Judgent to Paula
• 12:51
  Speaker 2: town a god