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Territorial Courts ... Exactly, You Don't Know About Them Either · Conversations: Special Guests with Preston Scott

• 0:02
  Speaker 1: Third hour of the Morning Show with Preston Scott. Good morning,
• 0:06
  Speaker 1: he says, Hey, I'm Preston a show fifty three fifty
• 0:09
  Speaker 1: nice round number. Now in our twenty fourth year of
• 0:13
  Speaker 1: doing this silliness every morning, and it's April the third.
• 0:17
  Speaker 1: Joining us on the show a friend of the program
• 0:20
  Speaker 1: from the Heritage Foundation, a fellow Floridian, I might add,
• 0:25
  Speaker 1: even if he is a Florida Gator, he is Zach Smith.
• 0:27
  Speaker 2: Hi, Zach, good morning, Preston.
• 0:30
  Speaker 1: How are you terrific? My friend? Hey, our subject matter here.
• 0:35
  Speaker 1: I think you wrote an article and I'll just read
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  Speaker 1: to everybody the title article three in the Canal Zone
• 0:41
  Speaker 1: District Court. What does the Constitution require of territorial courts?
• 0:47
  Speaker 1: And I'm gonna guess that to most people listening right now,
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  Speaker 1: they just went, huh. So let's go with a brief history. Lesson,
• 0:57
  Speaker 1: take us back to the beginning of the twentieth century.
• 1:01
  Speaker 1: Where does this all start? Explain what you mean?
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  Speaker 2: Yeah, so I run about this president because of President
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  Speaker 2: Frumps pledged to take back the Panama Canal. And so
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  Speaker 2: many people don't realize at the beginning of the twentieth century,
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  Speaker 2: the United States actually ran a large swath of territory
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  Speaker 2: in Panama around the Panama Canal, and they had to
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  Speaker 2: administer justice in that area. And so what Congress did.
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  Speaker 2: They established a set of territorial courts in the Panama
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  Speaker 2: Canal zone to administer justice. And there's still territorial courts
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  Speaker 2: in existence today Puerto Rico, Guam, the Marianna Islands, others
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  Speaker 2: as well. And then of course there are also the
• 1:40
  Speaker 2: local courts in the District of Columbia. And so I thought,
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  Speaker 2: what does the Constitution require. Article three of the Constitution,
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  Speaker 2: which deals with federal courts, which deals with judges, has
• 1:52
  Speaker 2: certain requirements, for instance, that judges served during good behavior.
• 1:55
  Speaker 2: That's what we think of as life tenure. Article two
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  Speaker 2: of the Constitution requires the President nominates to certain individuals
• 2:02
  Speaker 2: to serve, and once they're confirmed by the Senate, they
• 2:05
  Speaker 2: then serve. And yet many of today's territorial courts, many
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  Speaker 2: of the District of Columbia's local courts, they don't comport
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  Speaker 2: with that appointment and confirmation and life tenure that the
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  Speaker 2: Constitution lays out for federal judges. And so my question
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  Speaker 2: was is that constitutional? And I think in some instances
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  Speaker 2: it is not.
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  Speaker 1: Let me give us some historical context of where or
• 2:31
  Speaker 1: how this court flexed its muscle along the way. I
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  Speaker 1: just sort of visually gave Jose this image of this
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  Speaker 1: swath of land. And so what you're telling me is
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  Speaker 1: there's almost this area in and around the Panama Canal
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  Speaker 1: that is sort of sovereign US territory for the administration
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  Speaker 1: of law.
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  Speaker 2: Formerly formerly, so that was the case for most of
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  Speaker 2: the twentieth century. Okay, So Jimmy Carter in the late
• 3:02
  Speaker 2: nineteen seventies struck a deal for that land to eventually
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  Speaker 2: be returned back to Panama. So the Panama Canal Zone
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  Speaker 2: no longer exists today, But for most of the twentieth
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  Speaker 2: century it was a ten mile wide swath of land
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  Speaker 2: in Panama's five miles on east side of the Panama
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  Speaker 2: Canal that was sovereign US territory for all practical purposes.
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  Speaker 2: And there was a good reason that was the case.
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  Speaker 2: It helped ease administration, it helped the United States as
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  Speaker 2: administered the Panama Canal itself. And yet that zone no
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  Speaker 2: longer exists because Jimmy Carter, when he was president, struck
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  Speaker 2: a deal to return not only that land but the
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  Speaker 2: Panama canw itself back to Panama.
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  Speaker 1: So what does that? I mean, on the surface, we'll
• 3:47
  Speaker 1: dig a little deeper. But on the surface, doesn't this
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  Speaker 1: all present a bit of a problem for Donald Trump
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  Speaker 1: in asserting that we're just going to take it back.
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  Speaker 2: Well, look, I think Donald Trump hasn't been exactly clear
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  Speaker 2: what he means when he says we're going to take
• 4:01
  Speaker 2: back the Panama Canal. I think we're already seeing some
• 4:05
  Speaker 2: progress being made in terms of Chinese companies that have
• 4:08
  Speaker 2: been charged with operating the canal being divested from those responsibilities.
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  Speaker 2: And so it's unclear that it means we're actually going
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  Speaker 2: to physically take back the Panama Canal or simply make
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  Speaker 2: sure that Panama is complying with its treaty obligations to
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  Speaker 2: make sure that everyone enjoys free and fair past. And
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  Speaker 2: it certainly seems strange to me Preston that the United States,
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  Speaker 2: particularly the United States Navy, are paying very high fees
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  Speaker 2: to pass through the Panama Canal, when in fact, it
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  Speaker 2: was the United States and American taxpayers that help to
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  Speaker 2: fund and create the Panama Canal itself.
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  Speaker 1: As side of the Panama Canal. That I'm guessing, like
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  Speaker 1: me none of you've thought about, and of course being
• 4:55
  Speaker 1: explored by Zach Smith from the Heritage Foundation. So if
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  Speaker 1: we look at the administration of the law during the
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  Speaker 1: US ownership, for lack of a better way of putting it,
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  Speaker 1: of the Panama Canal and now it's extinguished, where's the intrigue?
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  Speaker 1: What has you most fascinated Zach?
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  Speaker 2: Well, part of the reason I wrote about this press
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  Speaker 2: and there's a little bit of tongue in cheek, but
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  Speaker 2: to talk about the very real issue that's happening today.
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  Speaker 2: A lot of people don't realize a lot of adjudication
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  Speaker 2: resolution of disputes is taking place by government bureaucrats that
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  Speaker 2: are not appointed in and compliance with Article three of
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  Speaker 2: the Constitution. We've heard a lot about administrative proud judials,
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  Speaker 2: administrative judges, and this is a big problem in the
• 5:44
  Speaker 2: federal government today, with many of the alphabet soup agencies,
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  Speaker 2: the SEC, the CFTC, the FTC having essentially their own
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  Speaker 2: in house courts, and many people have been raising constitutional
• 5:56
  Speaker 2: concerns about those courts for many, many years. And you've
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  Speaker 2: even seen Supreme Court, the US Supreme Court strike down
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  Speaker 2: certain instances where those courts have resolved cases and so
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  Speaker 2: my marger question was, when, if ever, is it appropriate
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  Speaker 2: for judges and tribunals constituted not in compliance with Article
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  Speaker 2: three of the Constitution, which deals with federal courts and
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  Speaker 2: Article two of the Constitution, which deals with the President
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  Speaker 2: and his appointment power, when is it appropriate for those
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  Speaker 2: judges and those tribunals to hear cases? And largely my
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  Speaker 2: view is that is generally not appropriate for those entities
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  Speaker 2: to hear cases. And I think you're seeing the Supreme
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  Speaker 2: Court move in that same direction as well.
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  Speaker 1: It almost and I could be way off in my
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  Speaker 1: assertion here. I questioned last year why, for example, Jack
• 6:48
  Speaker 1: Smith was allowed to even argue anything in front of
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  Speaker 1: a judge because he wasn't appointed according to the United
• 6:56
  Speaker 1: States Constitution to do just that, and so he had
• 7:00
  Speaker 1: no more authority to walk into a courtroom and make
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  Speaker 1: arguments than me. Is this similar to what we're talking about.
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  Speaker 2: Here in some sense? Yes? Absolutely. Look, you're not often
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  Speaker 2: that assertion present. In fact, you have many legal scholars
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  Speaker 2: of making that same position. Former Attorney General Ed Mesa,
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  Speaker 2: who is the namesake of the Meet Center where our
• 7:20
  Speaker 2: work at the Heritage Foundation, took that same position, and
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  Speaker 2: a brief he filed with the court, and so, yes,
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  Speaker 2: the Constitution has these very important structural safeguards in place.
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  Speaker 2: There's certain procedures that have to be followed before someone
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  Speaker 2: or some entity can exercise certain types of power. And
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  Speaker 2: when those procedural safeguards are not followed, it creates very
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  Speaker 2: real issues and undermines the design that the frameworks of
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  Speaker 2: our constitution put in place to help make sure that
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  Speaker 2: at the end of the day, our rights are protected
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  Speaker 2: to the fullest extent possible.
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  Speaker 1: Okay, Now, I have looked at, for example, to just
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  Speaker 1: draw this and make a different kind of I have
• 8:01
  Speaker 1: looked at the work of doze as the work of
• 8:04
  Speaker 1: a contractor in a home that's been squatted in for
• 8:07
  Speaker 1: four years, just saying four years and ripping off the
• 8:11
  Speaker 1: drywall and exposing the damage to the house. So if
• 8:15
  Speaker 1: we are ripping off this particular piece of drywall, and
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  Speaker 1: we're seeing a conundrum with Article three of the Constitution, okay,
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  Speaker 1: now what.
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  Speaker 2: Well, I think Congress needs to step in and take
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  Speaker 2: actions and look if we step out again and look
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  Speaker 2: at some of the larger disputes taking place against about
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  Speaker 2: the federal judiciary today, we've heard a lot about nationwide
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  Speaker 2: in junctions. There are six hundred federal district court judges,
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  Speaker 2: over six hundred federal district court judges in the United States,
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  Speaker 2: and right now, any one of those federal district court
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  Speaker 2: judges could purport to stop and the action of the
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  Speaker 2: administration of Donald Trump from taking place anywhere against anyone
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  Speaker 2: at any time. That is a power that has been
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  Speaker 2: unknown for most of our nation's history, and was certainly
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  Speaker 2: unknown at the time of our founding. And so you're
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  Speaker 2: seeing actions by Congress. Mike Lee has a bill he's introduced,
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  Speaker 2: Chuck Grassley has a bill he's introduced to essentially pair
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  Speaker 2: back the jurisdiction and power of some of these federal
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  Speaker 2: district court judges. And so I think you're going to
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  Speaker 2: need to see Congress step in and take actions to
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  Speaker 2: correct many of these issues that have cropped up over
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  Speaker 2: the past several years, but particularly that' have cropped up
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  Speaker 2: over the last half century or so.
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  Speaker 1: All right, twenty one, almost twenty two minutes past the hours.
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  Speaker 1: Zach Smith with me from the Heritage Foundation, and we're
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  Speaker 1: talking about an article he's written relative to Article three
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  Speaker 1: and really the role of and the constitutionality of territorial courts,
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  Speaker 1: which extends beyond that. So I'm not just going redpill
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  Speaker 1: here in this segment. I'm putting the IV in our
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  Speaker 1: veins here, Zach, and we're going we're going to inject
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  Speaker 1: it straight to the veins. So you mentioned the district courts,
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  Speaker 1: and that has been a massive topic in the first
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  Speaker 1: couple of months of the Trump administration. So is there
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  Speaker 1: an argument to be made that some of these district
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  Speaker 1: courts are unconstitutional in that they've not been going through
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  Speaker 1: the right process. What's the baseline argument.
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  Speaker 2: No, I think it's very important is separated the two
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  Speaker 2: different things we're talking about, President one are the territorial
• 10:30
  Speaker 2: courts and the DC local courts. So what you colloquially
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  Speaker 2: would call the DC local courts. I think there are
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  Speaker 2: very real issues with the way those courts and those
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  Speaker 2: judges are constituted. Okay, what we hear about in the
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  Speaker 2: news so often is what we would think of as
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  Speaker 2: article pre federal district courts. There's not a constitutional issue
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  Speaker 2: with the way those courts have been constituted. Are the
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  Speaker 2: way those judges have been appointed, at least nominally, those
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  Speaker 2: judges have been nominated by the President, confirmed by the Senate,
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  Speaker 2: and then appointed once that constitutional process has been followed.
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  Speaker 2: When we talk about the Article three federal district courts,
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  Speaker 2: the issue that's been in the news so much lately
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  Speaker 2: is the power that many of these district court judges
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  Speaker 2: are asserting for themselves. It's a very broad power, a
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  Speaker 2: very vast power, a power that has been unknown for
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  Speaker 2: most of our nation's history. And so I think when
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  Speaker 2: it comes to actions Congress needs to take there. They
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  Speaker 2: certainly need to strip some of the jurisdiction of those
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  Speaker 2: federal district courts, and they need to clarify that those
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  Speaker 2: federal district court judges do not have the power to
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  Speaker 2: issue what's known as a nationwide injunction, where a single
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  Speaker 2: federal district court judge sitting anywhere in the country purports
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  Speaker 2: to stop an action of the current administration or any
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  Speaker 2: administration from being effective anywhere at any time against anyone
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  Speaker 2: in the United States. That's a broad power that the
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  Speaker 2: framers of our Constitution would have been utterly horrified by.
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  Speaker 1: So do you think the next course of action then,
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  Speaker 1: for all of these different cases on that issue, is
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  Speaker 1: it going to be a Supreme Court action or is
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  Speaker 1: the Supreme Court likely to say, well, you know, it's
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  Speaker 1: the way it is until Congress acts. Where is this
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  Speaker 1: butck going to stop?
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  Speaker 2: Yeah, I suspect the Supreme Court is going to have
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  Speaker 2: to address this issue at some point. So far, they
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  Speaker 2: have declined to do so, although you've heard some rumblings
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  Speaker 2: from some of the justices like Justice Samuel Alito Justice
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  Speaker 2: Clarence Thomas. They've both written to some extent that they
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  Speaker 2: are troubled by this practice, and so I would be
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  Speaker 2: hopeful that a majority of their colleagues on the Supreme
• 12:41
  Speaker 2: Court would agree with them if and when the Supreme
• 12:44
  Speaker 2: Court takes up this issue of nationwide injunctions. But I think,
• 12:47
  Speaker 2: similarly on the same track, at the same time those
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  Speaker 2: cases are making their way up to the Supreme Court,
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  Speaker 2: you're also going to see Congress stepping in and at
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  Speaker 2: least making rumblings about passing legislation. And again, as I mentioned,
• 13:00
  Speaker 2: Grasty has introduced legislation, Senator Mike Lee has introduced legislation.
• 13:05
  Speaker 2: All they try to address specifically the issue of nationwide injunctions,
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  Speaker 2: but also the issue of these federal district court judges
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  Speaker 2: taking such an expanse is such an aggressive view of
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  Speaker 2: their own power.
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  Speaker 1: I know I'm asking you to read legal tea leaves
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  Speaker 1: that might not even be in the water yet. But
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  Speaker 1: if we arrive at some return of control of the
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  Speaker 1: Panama Canal beyond Blackrock going in and buying a couple
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  Speaker 1: of the ports in essence to run them, do you
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  Speaker 1: see a return of a territorial court to that area,
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  Speaker 1: and if so, does it get constituted as it has
• 13:42
  Speaker 1: been and is in other areas, or is there some
• 13:45
  Speaker 1: nuanced difference that we'll see.
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  Speaker 2: Well, I suspect we are many many levels removed from
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  Speaker 2: having to make that decision. Protest, and look again, when
• 13:55
  Speaker 2: the President says he wants to take back control of
• 13:57
  Speaker 2: the Panama Canal zone, I think it's to be determined
• 14:00
  Speaker 2: exactly what he means by that. But look, if we
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  Speaker 2: were to get there, a new territorial court would need
• 14:06
  Speaker 2: to be established. I think Congress needs to look very
• 14:09
  Speaker 2: hard at whether the former model that was in place
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  Speaker 2: once again complied with Article two, the President's appointment power
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  Speaker 2: and Article three of the Constitution, which required that judges
• 14:20
  Speaker 2: served during good behavior. Because I think there are very
• 14:22
  Speaker 2: good arguments that those are very real, very open questions,
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  Speaker 2: and of course, the better course of action would be
• 14:29
  Speaker 2: to simply follow what the Constitution requires in those two regards.
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  Speaker 1: Okay, I've got to ask you. In closing. You said
• 14:35
  Speaker 1: good behavior, and I know what that means. But I'm
• 14:38
  Speaker 1: thinking nearly every single person listening has no clue good behavior.
• 14:43
  Speaker 1: That must mean they're acting properly in their job. But
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  Speaker 1: it's not, is it.
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  Speaker 2: It's not. If only that were true, Pressent, the Constitution
• 14:51
  Speaker 2: says the judges, federal judges served during good behavior, and
• 14:55
  Speaker 2: today that's what we would colloquially call life. Judges serve
• 14:58
  Speaker 2: for life unless say something really really bad and end
• 15:02
  Speaker 2: up getting impeached by the House of Representatives and removed
• 15:05
  Speaker 2: from office by the US Senate. That's something that's rarely
• 15:09
  Speaker 2: happened throughout most of our nation's history. But that is
• 15:12
  Speaker 2: what I mean, and the Constitution means when it talks
• 15:15
  Speaker 2: about a judge or another official serving during good behavior.
• 15:20
  Speaker 1: Zach, As always, I appreciate your time and insight.
• 15:22
  Speaker 2: Thanks for it, of course, thanks for having me on
• 15:24
  Speaker 2: the show today.
• 15:25
  Speaker 1: My pleasure. Zach Smith with the Heritage Foundation, my guest
• 15:27
  Speaker 1: here on the Morning Show with Preston Scott