Judicial Powers Within the Constitution

HUGH HEWITT: Morning glory, America, from the relieffactor.com studios inside the Beltway, home of the World Champion Washington Capitals if you care about hockey. I'm joined by Dr. Larry Arnn, president of Hillsdale College. All things Hillsdale are found at hillsdale.edu. This is the weekly Hillsdale Dialogue, which I do with Dr. Arnn or one of his colleagues every last radio hour of the week. The Hillsdale Dialogues are all collected from 2013 forward. I was about to say 1813 forward. It just feels that long to Larry-- 2013 forward at hughforhillsdale.com. It does feel like 205 years, Dr. Arnn.

LARRY ARNN: Well, that's because we've been dealing with more than 2,000 years.

HUGH HEWITT: That's it. We're just plodding along. However, last week we were talking about Article II of the Constitution and the pardon power, which came up again this week. It's also a great springboard to Article III, the judicial power. But can I ask you for a moment, since we're going to do the judicial power, to talk a little bit about Donald Trump and the use of pardons?

I went back and read Federalist 74, Alexander Hamilton on pardons, so that I got grounded not in the fetishism of how the pardon attorney at DOJ does this, and then this happens, and that has to happen, just actually what's in the document. And it's a very sweeping power. And it's intended to allow the president to bestow mercy.

LARRY ARNN: That's it. It's unrestrained relative to other powers, given both the president and the Congress, because it's a power of mercy. And we might have said this last time, but the exemption of that power of cases of impeachment is indicative because impeachment is the way you go about dealing with a constitutionally installed officer who can't be removed-- in the case of a judge, ever.

Impeachment is the solution when there's no good behavior-- and in the case of a president, only when elections come. So the point is, he can't mess with that. It's not to aggrandize him in relation to the other branches of government. It's to make him an agent of mercy of very broad powers.

HUGH HEWITT: And this, as such, I talked with John Cornyn this weekend, with James Clapper, about applying that mercy towards one General David Petraeus, former head of the CIA, but more importantly that leader in combat in Iraq where he saved our effort there and in Afghanistan, where he turned it around. Just a great American who had an unfortunate breach of judgment and serves a misdemeanor sentence as a result.

And I was thinking to myself, if he does that, and other messages like Jack Johnson, he's actually using the pardon power as the Framers and Hamilton outlined it, though not in the technical way where the Department of Justice has really fetishized the whole process and, as a result, has greatly limited it-- though not really, because the Constitution is the Constitution. It trumps the procedural manual at DOJ.

LARRY ARNN: That's right. And see, everything is bureaucratic now. Right? These pardons, because there's no process required, this president can pardon him. Write a note down, he's pardoned. And so what we want to do is we want to turn a very-- we want to create a very complex process, and then we want to focus on whether all the steps in the process were.

And that's part of the regulatory mindset which goes along with the regulatory way of governing we have today. Everything is a complex set of rules. And just think how that changes things. If your case about Petraeus is instructive-- Petraeus did something he shouldn't have done and, in a small way, violated a public trust. On the other hand, he did really great service.

So balance the one against the other. He's paid some penalty, serious penalty. But his honor is still serious. And so there's your argument. That's the whole argument. And you can look at it more than one way. But the president is given the power to look at it.

HUGH HEWITT: And this goes-- and the reason I've been pondering this is, of course, the media has decided to make of Donald Trump's pardons an issue about his judgment when, in fact, it's an issue about how he's conducting the presidency, which increasingly-- I think you made this argument first-- is more originalist than anything we have seen in a long period of time because they didn't have a bureaucracy when they began.

This fourth branch of government, this progressive-era cloning or growth that has come on to the body politic, was not intended when the Framers sat down. And so his use of the pardon, actually, is consistent with his brash and unsettling, but very original, originalism.

LARRY ARNN: Well, as regards the regulatory state, as regards the way laws get made, Trump has, as far as I can see, been consistent for a long time-- and as president. And I always add that "I can see" because it's very difficult to know everything. But I know that for a long time Trump has been concerned about the fact that the government-- according to rules that can't be understood by anybody outside the government and are understood by people inside the government in different ways, in different circumstances, that's not the rule of law.

Just contrast with this argument about Petraeus, we can make the whole argument for or against in 30 seconds. It's a simple question of commonsense justice. And you can differ about it. But it isn't technical. And so and that, by the way, is a condition of self-government. Things to the maximum extent possible have to be reduced to simple questions of commonsense judgment so everybody can understand them and think about them.

And that's one reason why you don't need complex-- you know, Madison says in the Federalist, if the laws are voluminous and changeable, it won't make any difference whether they're made by the right process or not. And remember, now they're not made by the right process. They still won't conform to the rule of law because nobody can follow them.

HUGH HEWITT: Now our move to Article III is timely because yesterday Jeffrey Sessions, the attorney general, sent a note, a letter, to the speaker of the House, Paul Ryan, about why in the case of Texas versus the United States the Department of Justice was not going to defend a portion of Obamacare.

Put simply, he is arguing that since you folks repealed the tax for not having insurance, and since Chief Justice Roberts' opinion depended upon it being a tax, therefore, we're consistent with the Supreme Court's opinion not defending those portions of the law connected to the tax. It's elegant. It's actually elegant. And I think it's a deathblow to Obamacare, Dr. Arnn.

LARRY ARNN: Well, it is clever. And just think about the point. We should stop and describe the very great importance of the judicial power and what it is. But this action by the attorney general leaves the ultimate decision to the judicial power where if it's the right kind of thing-- I have a great doubt whether this whole Obamacare decision thing was the right kind of thing for the Supreme Court to be doing.

But that's right. To make a much clearer case, the second time the Supreme Court ever struck down the law was Dred Scott versus Sandford. And Dred Scott was a slave who was taken into free territory and into a free state. And then later some of his former owners and others got behind him. They had changed their opinions about slavery and supported him in a lawsuit to say taking him into a free place made him free. And in a very convoluted, terrible Supreme Court opinion--

HUGH HEWITT: Worst decision in the history of the Supreme Court.

LARRY ARNN: Very much. Very much. And it would have destroyed the political party of Abraham Lincoln and the political platform of Abraham Lincoln. So it's a huge, consequential thing. And so Lincoln's opinion about that is very good. He says, you know, this is one decision in one case. And if that rules forever, then the people have ceased to be their own rulers.

On the other hand, Dred Scott has been ruled slave by the highest court in the land. And nobody can help him in his particular case. So in other words, if the courts decide cases between parties, when you get to the highest court, that's final. Their arguments about the meaning of the Constitution are important and, in particular cases, decisive. But they're not the only branch entitled to make those arguments.

HUGH HEWITT: And when we come back, I'm going to read all of Article III. And this is the week to do it because Masterpiece Cakeshop came down this week. And though it is limited on its facts to Jack Phillips and his bakery, it is actually a sweeping victory for free exercise rights. And everyone who is telling you it's technical and narrow doesn't want to confront the fact that Anthony Kennedy, who authored the Obergefell decision requiring that every court in the land recognize same-sex marriage-- and that is the law of the land-- nevertheless, in Masterpiece Cakeshop, he stands for free exercise rights quite clearly.

And the judicial power is the judicial power. And that's why Dr. Larry Arnn and I are going to talk about it for the rest of this hour. Don't go anywhere. You are listening to Hillsdale Dialogue with Dr. Larry Arnn, president of Hillsdale College, and me, Hugh Hewitt. I'll be right back. Stay tuned.

Welcome back, America. It's Hugh Hewitt from the relieffactor.com studios. Good morning to you. Dr. Larry Arnn is my guest today. It is the Hillsdale Dialogue. All things Hillsdale are available at hillsdale.edu, including your opportunity to subscribe to the monthly speech digest Imprimis, including all of their online courses on the Constitution, on Churchill, on progressivism, and all of our conversations with Dr. Arnn and his colleagues dating back to 2013, available at hughforhillsdale.com. You can binge listen.

Dr. Arnn, Article III, Section 1, "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior and shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office."

Section 2, "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to the controversies between two or more states, between a state and citizens of another state, between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or a citizen thereof, and foreign states, citizens, or subjects.

In all cases affecting ambassadors, other public ministers and counsels, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court will have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the state where said crimes shall have been committed. But when not committed within any state, the trial shall be at such place or places as Congress may by law have directed."

Section 3, "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted."

That's it, Larry Arnn. All of the Supreme Court decisions, and all the courts in the land, and every judgment handed down comes from that 90-second reading.

LARRY ARNN: Yeah, that's right. And so think of the huge factors in it. First of all, it sets up judges as independent, that is to say, during good behavior. You can't fire them unless they misbehave. And that takes impeachment. Second, you can't change their salary. And that means that you can't threaten them with changing in their station. They are independent of these mighty forces that have the people behind them that are the legislative and executive branches. So the independence of the judiciary is a fundamental requirement of the rule of law.

The second thing in there is that all cases in law and equity shall come to them. In other words, the government can't punish anybody except through the courts. And that means the Congress passes a law, and it's a very consequential thing when they do that. They don't pass the right kind anymore, but law is very powerful.

And then the second thing is the executive, with the army behind it if it needs it, can reach out its arm and do things to you. And then when it grabs you, and it puts a case together, and it can confine you while it does it. Although, the writ of habeas corpus is difficult to suspend under the Constitution. And all that writ means is a judge, this independent guy, one person, girl, one person, can say bring me that person. And you've got to bring him. And that means you can't throw him in a dark hole forever.

And then, finally, when they've got their case together-- and along the way in the case, you can't do anything to that person until you've brought that person in front of an independent court. And then in an interesting thing, why is trial by jury important? The independence of judges is important for obvious reasons. But trial by jury-- a common law institution grew up in England, above all-- that means that the common sense of the community is involved in judging particular cases at law.

And so if you just read British history, where these institutions first took form, the great controversy was between two things-- the king and parliament on the one hand, and the ability of the king to control the courts on the other.

HUGH HEWITT: More on that when we come back, and more on the pardon power where the president is judge and jury. By the way, President Trump just said he may pardon deceased boxing great Muhammad Ali. That's the breaking news. We'll bring it right back with Dr. Larry Arnn on the Hillsdale Dialogue after this. Stay tuned.

Welcome back, America. It's Hugh Hewitt. It is the Hillsdale Dialogue from the relieffactor.com studios inside the Beltway, which will be deluged with rain again. The Washington Capitals are the champions of the Stanley Cup competition. And they're crazy downtown, so I'm staying far away from downtown for a while.

President Trump just departed for Quebec. As he did so, he called on the G7 to readmit Russia, make it the G8 again. And Russia, of course, is a bandit nation, something of an outlaw nation right now. But the president is used to breaking the windows and throwing bricks through glass. And he suggested he might pardon Muhammad Ali. I am joined by Dr. Larry Arnn, president of Hillsdale College.

How timely that we were talking about the pardon power and the judicial power before the president has said, mused out loud, about Muhammad Ali, which is not unlike David Petraeus-- a case of common sense and, if he exercises public mercy, a teaching moment, Dr. Arnn. And this is, by the way, where the president is in fact acting as a judge. It's the only time that the Article III power of the courts is transferred unilaterally and in total to someone other than the court.

LARRY ARNN: That's exactly right. And then you have the Muhammad Ali case. And that's a great case. So one of my great teachers-- and one of my two-- in life was Harry Jaffa. And he was a big boxing fan. He loved the story about Joe Lewis, the great boxer, who went and fought in the Second World War. And he was asked the question, how can you fight for America when it's treated people of your race so badly? And he said, "There's nothing wrong with America that Hitler can fix."

HUGH HEWITT: Ha, I've never heard that.

LARRY ARNN: Oh, it's really wonderful. I've heard that a million times from Mr. Jaffa. But then along comes Muhammad Ali, who wouldn't fight. And Professor Jaffa defended him. He said, he's just confused about that. But, heck, look at that guy. Ain't he great?

HUGH HEWITT: Ain't he great? And you know, what he would do there-- we are in the middle of our periodic struggle with race. And it got much worse during President Obama's tenure for reasons which are diverse and complicated. And President Trump has been blamed for making it even worse. A pardon of Jack Johnson followed by one of Muhammad Ali, though, would go a long way actually to saying, look, this isn't really about race what's going on in this country.

You said, when Donald Trump began to run and you and I were living in the rhetorical Switzerland, that fundamental things are afoot. That's Larry Arnn's original and last quote that I can remember because he said, basically-- the other words are just insults directed at me that I remember. But fundamental things are afoot, and they remain afoot. And in fact, Angela Merkel lashing out at Donald Trump this morning, and Europe coming undone, and Boris Johnson claiming for Trump, and wouldn't he be great, that's all the same indication of fundamental things being afoot, Larry Arnn.

LARRY ARNN: That's right. And Trump's virtue-- he has his vices-- but his virtue is, as you say, he keeps breaking windows. And, you know, that lets in air.

HUGH HEWITT: It does, but we have today a very serious case. I want to transition because it's a judicial case as well. We have discovered that a 30-year staffer on the Senate Intelligence Committee-- he's probably working for your friend Cotton. He probably knows Cotton very well-- turns out to have had a lover for the last three years who has worked for BuzzFeed, and the New York Times, and a bunch of other newspapers.

And it turns out that this staffer stands accused this morning and arrested of leaking classified information to the reporter. And so the feds have gone and seized this reporter's telephone, which has got everyone in the Fourth Estate up in arms, even though I just pointed out Margaret Brennan, the host of Face the Nation. Reporters are just citizens. If you can take one citizen's phone, you can take a reporter's phone. That's the bottom line. That's the Constitution. And I don't know whether her phone ought to been taken or not. But she doesn't get to keep it because she's a reporter.

In any event, he's been leaking classified information to favored reporters. I don't know why. He might be a conservative. He might be a liberal. He might be trying to save the JCPOA. He might be part of the echo chamber that promoted the JCPOA. Here's what I know. You should not leak classified information from the Senate Intelligence Committee. And what has happened is an unelected group of people, elite Beltway journalists, have conspired with permanent bureaucrats to set up shop, to run things, and administrative agencies, to declare things. And that doesn't work in America.

LARRY ARNN: Well, classified, what does that mean? It means you can't tell anybody.

HUGH HEWITT: Exactly.

LARRY ARNN: I once had a famous journalist-- I won't say his name here-- he wanted information about the California Civil Rights Initiative, of which I was involved. He wrote a big book about it. I'm in it quite a lot. And he sat down to me one time. And it was like he had sort of taken the hand of an adolescent child. And he tried to tell me how the world works.

He said, you know, when people like me talk to people like you, people like you tell me things. And that's how you guarantee that your part of the story gets told. And I said, yes, I understand that. And he said, well, OK then. Why don't you tell me some things? And I said, well, I don't have anything to say. And he thought for a minute. He was pretty smart. And he said, that means you don't care if your part of the story gets told.

And I said, well, it means more than that. It does mean that. But, I said, the other thing is maybe I don't think I want it told by you. Maybe I think I could tell it myself when I get ready. And he just, you know-- but you see, the tone of that, I'll never forget it. The tone of that was like he was instructing a child in how the world actually works. And this man who's been arrested, never mind that he signed a document and endured a background check to make him trustworthy of secret information, if he then revealed that information, that ain't right.

HUGH HEWITT: OK. Now let me talk to you a little bit about my friend David Axelrod who has a tweet this morning, two minutes ago. "My God. Somehow the US is openly fighting with Canada and the Europeans and branding them national security threats while @POTUS talks about welcoming Kim Jong-un, the world's foremost human rights abuser and nuclear thug, to the White House."

I am reminded-- not that Trump is in any way, shape, or form Winston Churchill-- but that Winston Churchill flew to Tehran and eventually to Russia to deal with Stalin when he had to and fought with de Gaulle like cats and dogs. That did not make him a friend of Stalin and an enemy of de Gaulle-- exactly the opposite. But what is it that we have to oversimplify everything with Trump?

LARRY ARNN: Well, first of all, Churchill was dealing with Stalin from a position of weakness in that the Soviet army was bigger than the American and the British army combined and was gobbling up Eastern Europe. And he was very worried about that. But also he needed them, the world needed them, to defeat the more urgent threat, Hitler. So that was that context.

This context is Trump has managed to recover the idea that we are dealing with North Korea from a position of strength, which in fact we are. And so if you start acting like it, that fact becomes obvious again. I mean, I am told by the aforementioned Tom Cotton, who probably has nothing to do with this guy who's been arrested today, that-- I said, if we have war in the South China Sea with China, would we win it? And he looked at me steadily, and he said, yes. And I said, huh, isn't that something?

Now, we need to make sure that remains the case. And they're building weapons and making them more sophisticated at a very fast rate. And they're doing a lot of things. But the truth is, right now, if we have a war with China and North Korea, we would win it. Rightly, we should act like that's the case. And, you know, to quail before this man, Trump has not done that.

And think about this negotiation. This guy astonished the world and gave Trump a big boost in the eyes of the world by proposing a summit. And then darned if a little later he didn't resume his threatening ways, and Trump canceled the meeting. So that's like how you act from a position of strength. And so I like that.

HUGH HEWITT: Now I want to go back to the judicial power. And again, it goes to what is the Article II power of the president, what is the Article III power of the courts. The president just said, on the South Lawn as he left for Quebec, "He's a very dishonest man. I think I did our country a really great favor when I fired him." He said that of James Comey.

James Comey is a favorite of the unelecteds and a favorite of the media. But he worked for Donald Trump in Article II. He did not work in Article III. President Trump can't fire Neil Gorsuch. He didn't like Gorsuch's decision, by the way, on immigration status a few weeks ago and mouthed something about that, said something about that. But Gorsuch is beyond him. But here's the point. He's in Article III, not Article II.

LARRY ARNN: That's right. And you can't-- yeah, that's right. You can't confuse-- we talked about this last time. If the officials in the Justice Department, a subset of which is the FBI-- and, remember, they do enforcement. And FBI does the kind that carries guns. They need to work for somebody elected, or else we'll have no way to control them. And that simple fact, which is right in the heart of everything about this controversy, we must not lose sight of that fact because the accountability of government itself depends on it.

HUGH HEWITT: And so if you begin with first principles, everybody who gets a federal paycheck is in Article I, Article II, or Article III. And there are people who run each of them. Although, the chief justice's power is more hortatory than it is decisive. And he needs four other members to make it decisive of a nine-member court.

But in Article II, there is only one person. Everybody else works for that one person. About this-- and, in fact, Hamilton in '74 said that-- quick exit to you-- he said that, in '74, about the pardon power, that there is only one person. And you've got to put the pardon power in the hands of one person, or it will be too timidly applied.

LARRY ARNN: That's right. And see, remember, that one person, that's deliberate in the case of the executive branch and the other branches are not like that. And it was made deliberate. The choice was justified in the Federalist, and in the ratification conventions, and then in the Constitutional Convention. It was justified because it would make it more accountable as well as more effective. We know who to blame.

HUGH HEWITT: We know who to blame. I'll be right back with Dr. Larry Arnn. We'll continue the conversation about what's gone wrong with the judicial power and what's gone right with it in just a moment. 

Welcome back, America. It's Hugh Hewitt. Dr. Larry Arnn is my guest. We've begun to consider Article III of the Constitution in this, the Hillsdale Dialogue, all of which are collected at hughforhillsdale.com. And we encourage you to read everything about Hillsdale at hillsdale.edu and sign up for Imprimis, the speech digest from the college, absolutely free. Millions of people get it every single month, hillsdale.edu. And the online courses are amazing.

So Dr. Arnn, the court began-- I like to always point out with my Con Law students, and I teach them every year, that the first thing they get when they open their book is Marbury versus Madison, the date of which is 1803. And I always ask them, what was going on prior to 1803? And of course, the country had been around for 14 years before the Supreme Court issued-- why do we begin Con Law in 1803? And the answer, of course, is because that is in the interests of law professors to create a universe that begins in 1803. But it doesn't, does it?

LARRY ARNN: No, no. So Marbury is a really wonderful act of judicial statesmanship, one of the greatest. And the only time that the Supreme Court overturned a law of Congress until 1856, the Dred Scott decision. And so for a long time it didn't do it again. And for 14 years it hadn't done it. And what's it about?

Well, first of all, it's a showdown between-- the facts are delicious, right? John Marshall was the secretary of state under the last Federalist administration, John Adams. And he's got a bunch of midnight appointments to make. And one of them is this guy Marbury who is going to be a judge of some kind. And he doesn't make it.

And so then John Marshall goes to the Supreme Court of the United States, and James Madison becomes secretary of state. And Marbury sues Madison to get his appointment. And the chief justice of the Supreme Court is the guy who was supposed to give it and just didn't get round to it.

And Marshall's in a hell of a mess because if he issues a writ commanding Madison to do it, then Madison will ignore the writ. And there's no precedent for any of this. This is the first time. And then what's Marshall's going to do? And the Court's going to look stupid.

But here's the cool thing. You read Article III. And Article III divides the kinds of cases the Court hears into two groups-- the ones it hears originally, that's to say it starts at the Supreme Court level, and the ones it hears on appeal. Now, at the time of the Constitution there were no appellate courts in existence. But the Judiciary Act of 1789 created those courts.

So now, the Judiciary Act of 1789 also expanded the original jurisdiction of the Supreme Court, the original part. And if you just read Article III, they can't do that. It's just the way it's written. It doesn't let Congress do that. And this power to issue this writ of mandamus in the Marbury case is one of the expansions.

And so Marshall strikes down the law. And that means James Madison doesn't get to defy him. It is entirely up to the Supreme Court whether it agrees to hear additional cases as the original court. And it says we won't do that. And so it's really great. And one of the reasons it's so brilliant, apart from the fact that it's politically brilliant, is that it establishes again and reaffirms the independence of the courts from the popular branches of government.

HUGH HEWITT: It does. It does. It does. And I got to tell you, not many people agree with me. You don't agree with me. I think Chief Justice Roberts' opinion in Sebelius is Marbury v. Madison like in its reach, and breadth, and depth and will be proven so when they strike down the rest of Obamacare because Tom Cotton got rid of the mandate and took the pole on which the tent was stuck. And it's a long conversation. Maybe we'll do it next week. We'll talk about Sebelius. But it was-- sometimes you gain power by not seizing it.

LARRY ARNN: Yeah, and my objection to that case is that-- first of all, so I have some sympathy with Roberts this far. And that is these huge political controversies, it's not the job of the Supreme Court to settle them.

HUGH HEWITT: Exactly.

LARRY ARNN: And so I agree with that part of Roberts' thinking. It's just that the opinion is inconsistent with itself.

HUGH HEWITT: But you know in Marbury, John Marshall, all he needed to do was say, we cannot, oh, hear the case. He didn't have to write anything else. But he did, right?

LARRY ARNN: That's right. And see, one of the reasons it's politically so great is that James Madison and Thomas Jefferson did not like John Marshall--

HUGH HEWITT: At all.

LARRY ARNN: --and vice versa. And they were brilliant human beings. And they were crucial for the founding of the United States of America. In other words, this tremendous edifice that they conspired to help build, that was done by enemies. And did he not stick it to his enemies after they just stuck it to him by winning the election of 1800?

HUGH HEWITT: Exactly. It's so wonderful to consider the fact that they built the castle, and then they threw rocks at each other from different turrets for the next 30 years. Oh, my friend Dr. Larry Arnn will be back next week.