–Ryan Williams, President of the Claremont Institute

“I’m Matt Peterson, vice president of Education at the Claremont Institute and Editor of American Mind. Everyone knows that something is wrong with Congress, which is why it has lower approval ratings that either of the other two branches. In fact, as others have pointed out, Congress has a lower approval rating than hemorrhoids, Nickelback, traffic jams, cockroaches, root canals, and colonoscopies. But why, exactly, has Congress ceased to function as the founders intended? And what might be required to restore it back to health? In the following podcast, I explore these questions with three of the top minds on Congress in the nation. Dr. Matthew Spalding and Dr. Michael Uhlmann are Claremont Institute senior fellows with graduate degrees from Claremont University, and Dr. Joe Postell runs the annual panels the Claremont Institute sponsors at the American Political Science Association. In fact, this podcast was recorded with a few drinks in hand at the 2018 APSA Conference, after a panel entitled: ‘What’s the Matter with Congress?’ Enjoy.”

–Matthew Peterson, Vice President of the Claremont Institute

At the 6:05 minute mark, Dr. Eastman specifically evaluates the nomination in the context of the administrative state.

"One of the major fights in the Supreme Court right now, and my own Supreme Court litigation center has been on the forefront of this fight, is pushing back against unelected bureaucrats in administrative agencies that are basically ruling our lives, from morning to night, cradle to grave, without any legal authority.

"These administrative law doctrines that have developed over the last number of decades are finally being called into question. One of the things that stands out about Brett Kavanaugh’s career on the D.C. Circuit Court of Appeals is his willingness to question some of those doctrines as a violation of core constitutional separation of powers principles. That is where a very big fight is going on in the Supreme Court right now, and I think that may well have tilted the scale in his favor on the nomination."

• Does the president’s use of the National Guard in order to help patrol border violate the Posse Comitatus Act? Do governors have the authority to refuse to allow their states’ national guard to be called into such service by the president?

• Can the current president cancel the DACA program? Three lower courts have now held that he cannot, without first going through the notice and comment rulemaking procedures of the Administrative Procedures Act. This is despite that the fact that the prior president himself implemented the program without going through the notice and comment rulemaking procedures of the Administrative Procedures Act. Is the president’s promise to cancel the DACA program illegal, or are the lower court injunctions against him doing so an example of judicial overreach, even lawlessness?

The two also discuss a First Amendment case before the Supreme Court this term, Janus v. American Federation, which questions whether Abood v. Detroit Board of Education should be overruled. The issue before the Court is whether public employee unions may continue to garnish workers’ paychecks to fund the political act of collective bargaining for taxpayer funded wages and benefits. This case was argued on February 26, 2018.

 Dr. Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University Fowler School of Law. He served as a law clerk with Justice Clarence Thomas in 1996-97.

The panelists:

• John Fonte, Senior Fellow and Director, Center for American Common Culture at the Hudson Institute • Adam White, Research fellow, Hoover Institution; Director of the Center for the Study of the Administrative State at George Mason University's Antonin Scalia Law School • Charles Kesler, Editor, Claremont Review of Books; Senior Fellow, Claremont Institute; Professor of Government, Claremont McKenna College • Ryan Williams (moderator), President, Claremont Institute • Arthur Milikh (host), Associate Director, B. Kenneth Simon Center for Principles and Politics at The Heritage Foundation

Ryan Williams, President of the Claremont Institute, joins The Seth and Chris Show to discuss Burnham and the history of the conservative movement.

During this town hall, Eastman and his guests will discuss Husted v. A. Philip Randolph Institute, a case which addresses whether Ohio’s list-maintenance process violates the National Voter Registration Act of 1993 and the Help America Vote Act of 2002. The list-maintenance process in question sends a confirmation notice if a voter is inactive for two consecutive years. If the mail returns undelivered and four more years of inactivity pass, the voter is removed from the voting rolls. This case was argued on January 10, 2018.

 They also discuss Encino Motorcars, LLC v. Navarro which concerns whether “service advisors” at car dealerships are exempt from the Fair Labor Standards Act’s overtime requirements. The broader issue in question is whether unelected bureaucrats in administrative agencies can unilaterally alter longstanding interpretations of the law. This case was argued on January 17, 2018.

Dr. Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University Fowler School of Law. He served as a law clerk with Justice Clarence Thomas in 1996-97.

During this town hall, Eastman and his guests will discuss one of the most important cases being heard by the Supreme Court this term, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which was argued on, December 5, 2017. The court must decide whether government can compel a U.S. citizen to participate in speech with which he or she fundamentally disagrees and that violates his or her sincerely held religious beliefs.

They also discuss the important case addressing some complicated federalism doctrines, Chris Christie v. NCAA, which was argued on, December 4, 2017.

Dr. Eastman is a Senior Fellow of the Claremont Institute and the Henry Salvatori Professor of Law & Community Service at Chapman University Fowler School of Law. He served as a law clerk with Justice Clarence Thomas in 1996-97.

The panelists:

- Charles Kesler, Editor, Claremont Review of Books; Senior Fellow, The Claremont Institute; Professor, Claremont McKenna College - Mark Lilla, Professor, Columbia University; Author, The Once and Future Liberal: After Identity Politics - Heather Mac Donald, Senior Fellow, Manhattan Institute; Author, The War on Cops: How the New Attack on Law and Order Makes Everyone Less Safe - Ryan Williams, President, The Claremont Institute (moderator)

They discuss free speech and how the new antifa left justifies violence. “Both the left and right are non-absolutists about free speech in particular, and inalienable rights in general,” Voegeli said.

To discuss Murr v. Wisconsin, Dr. Eastman is joined by Anastasia Boden, a 2015 John Marshall Fellow. Ms. Boden is an attorney at the Pacific Legal Foundation, working on the Economic Liberty Project where she challenges anti-competitive occupational licensing laws, and laws that restrict the freedom of speech. In this case, the Murr family is challenging a broad reading of the already-erroneous legal precedent established in Penn Central Transportation Co. v. City of New York in 1978, which made it nearly impossible for property owners to win compensation when state regulations take their property. This case was decided June 23, 2017.

Next, to discuss Matal v. Tam and Expressions Hair Design v. Schneiderman, we are joined by Michael Huston, a 2014 John Marshall Fellow, who is an associate at Gibson Dunn & Crutcher. Prior to joining the firm, Mr. Huston served as a law clerk to Chief Justice John Roberts. Matal v. Tam involves the U.S. Patent and Trademark Office’s denial of the trademark application of the Asian rock music group, “The Slants,” because their name was found to be disparaging. In Expressions Hair Design v. Schneiderman, merchants were forbidden to truthfully notify customers that use of a debit or credit card would result in a “surcharge.” The Court addressed whether the the First Amendment protects these types of speech.

And to discuss Trinity Lutheran Church v. Pauley, Dr. John Eastman is joined by Dr. Sohan Dasgupta, a 2016 John Marshall Fellow who is currently clerking for Judge David Faber of the the U.S. District Court for the Southern District of West Virginia and who will clerk for Judge Consuelo Callahan of the U.S. Court of Appeals for the Ninth Circuit. Dr. Dasgupta served as executive editor for the Berkeley Journal of International Law. In this case, the Missouri Department of Natural Resources denied a state grant to resurface a playground at a child learning center in Missouri solely because the center is operated by a church. In 2014 the district court ruled against Trinity Lutheran, as did the U.S. Court of Appeals of the Eighth Circuit. The case was argued before the Supreme Court on April 19, 2017.

This case was argued before the Supreme Court of the United States on April 19th. The issue before the Court involves the Missouri Department of Natural Resources denial of a state grant to resurface a playground at a child-learning center in Missouri solely because a church operates the center. The church argued that its exclusion from a state run program, whose purpose is to assist non-profit organizations with obtaining rubber playground surfaces, is a violation of the U.S. Constitution’s Equal Protection Clause by discriminating against religious institutions. Meanwhile, the state argued that there is no constitutional violation because the church can still run its learning center, and the state constitution forbids government aid to educational institutions that have a religious affiliation.  

Additionally, Dr. Eastman was joined by Professor Anthony T. Caso to take a look at what Justice Neil Gorsuch’s confirmation to the Supreme Court may mean for our efforts to roll back the administrative state and restore the constitution’s limitations on executive power. Professor Caso is the Director of our Constitutional Jurisprudence Clinic at Chapman University’s Fowler School of Law.

Instead of focusing on what he sees as the country's disastrous condition, he touted improvements he says are coming. Now the question is whether Congress will agree with his plans. Right now, both sides are meeting on healthcare reform.

Charles Kesler, Dengler-Dykema Distinguished Professor of Government at Claremont McKenna College and editor of the Claremont Review of Books

Caroline Heldman, associate professor of politics at Occidental College and co-author of ‘Rethinking Madam President: Are We Ready for a Woman in the White House?’ (Lynne Rienner Pub, 2007)  

In Boumediene v. Bush (2008), the Supreme Court blurred the line that determines when Constitutional protections apply to an individual who is not physically located within the borders of the United States. The Court determined that Constitutional protections extend to individuals based on “objective factors and practical concerns, not formalism.” In Hernández v. Mesa, three teenage boys were found in the concrete culvert separating El Paso, Texas and Juarez, Mexico by U.S. Border Agent Jesus Mesa. He caught one of the boys while the other two ran for the Mexican side of the culvert. While standing on U.S. soil, Agent Mesa shot Hernández, who was on Mexican soil. The Court is asked to decide whether they want the courts below to apply a formal or a functional analysis to cases asking what Constitutional protections individuals like Hernández enjoy.

The national conversation regarding President Trump’s executive order (EO) suspending entry into the U.S. from seven countries with ties to terrorism raises similar questions. On January 27, the President issued his order, and on February 3, Judge James Robart issued a nation-wide temporary restraining order to halt its implementation. The Ninth Circuit allowed the temporary restraining order to stand. The case now has three paths: appeal to the Supreme Court, reconsideration by the full Ninth Circuit, or back to Judge Robart to consider the merits of the case.

Dr. Eastman is joined by Ilya Shapiro, senior fellow in constitutional studeis and editor-in-chief of the Cato Supreme Court Review, to discuss the boundaries of freedom of speech. Lee v. Tam involves the U.S. Patent and Trademark Office's denial of the trademark application of the Asian rock music group, "The Slants," because their name was found to be disparaging. In Expressions Hair Design v. Schneiderman, merchants were forbidden to truthfully notify customers that use of a debit or credit card would result in a "surcharge." The Court must decide if the First Amendment protects these types of speech.

To discuss Ziglar v. Abbasi and Lewis v. Clarke, Dr. Eastman is joined by Richard Samp, Chief Counsel for the Washington Legal Foundation. Both cases present a claim against government officials who are sued as individuals for harming a person in the course of their job. In Ziglar, the plaintiffs claim individuals within the Bush Administation violated their Fourth Amendment right against unreasonable searches and seizures by detaining them as potential terrorists in the days immediately following the 9/11 attacks. In Lewis, plaintiffs challenge whether an Indian tribe's sovereign immunity protects a tribal employee from personal liability for damages when sued for committing a tort during the course of his tribal employment.

Dr. Eastman and his guest first examine National Labor Relations Board v. SW General, which asks the Court to determine when the president may appoint an individual to an executive branch position in an acting capacity. 

They also discuss the results of the 2016 election. During the campaign, Donald Trump put forward a list of originalist judges he would consider appointing to the bench. With Trump capturing the presidency and Republicans holding the Senate, the election promises to have a major impact on the courts.

The framers of the U.S. Constitution created an elegant system of checks and balances in order to limit the power of the federal government. Key to their design was the division of Congress into two houses: a lower house, elected directly by the people, and an upper house, with its members selected by the state legislatures. But in 1913, the 17th Amendment turned this system on its head by providing for the direct election of senators and disenfranchising the sovereign states. Today, with Congress's approval at record lows and a central government that grows larger by the day, perhaps it is time to ask if this experiment has run its course. Perhaps it is time to consider repealing the 17th Amendment.

Dr. Eastman moderates the discussion alongside his fellow Claremont Fellowship faculty member, John Yoo. Professor Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley School of Law and a visiting scholar at the American Enterprise Institute. Prior to teaching, he served as a law clerk for Justice Clarence Thomas, general counsel for the U.S. Senate Judiciary Committee, and assistant attorney general in the Office of Legal Counsel. He has authored several books, most recently the edited volume, Liberty's Nemesis: The Overexpansion of the State.

Dr. Eastman and Professor Yoo are joined by three of our distinguished Fellowship alumni. William Haun, a 2013 John Marshall Fellow, is an associate at Hunton & Williams LLP. He will serve as a law clerk to Judge Janice Rogers Brown in the D.C. Circuit for the 2016-17 term. Marcella Burke, a 2014 John Marshall Fellow, is an associate at Akin Gump Strauss Hauer & Feld LLP. She recently served as a law clerk to Justice Don Willett on the Supreme Court of Texas. And Michael Huston, also a 2014 John Marshall Fellow, is an associate at Gibson Dunn & Crutcher. Prior to joining the firm, he served as a law clerk to Chief Justice John Roberts.

Whatever decision individual conservatives make come November, the time has come for the Right to reckon with what has happened. What can conservatives learn from Trump and from this episode? What is at stake for the Right should Trump prevail in November? If conservatives are to succeed in turning the nation back toward the principles of the American Founding, they will need to find answers to these questions and begin charting a path forward.

To discuss Encino Motorcars, L.L.C. v. Navarro, Dr. Eastman is joined by seasoned litigator Jeffrey Harris. They analyze whether the Department of Labor has the authority to write regulations that unilaterally extend the overtime requirements of the FLSA to a new category of employees. 

To discuss United States v. Texas, Dr. Eastman is joined by John Miano of the Center for Immigration Studies. In this case, Texas is joined by 25 other states in arguing that the President’s executive action extending amnesty to millions of illegal immigrants is a clear violation of the separation of powers. Though the merits of the case are still being considered in federal district court in Texas, the Court will consider whether Texas has standing to bring the suit against the Department of Homeland Security. 

You can read our brief in this case here.

This type of abuse raises serious questions about the First Amendment, the power of the administrative state, and the very nature of our government. How can courageous nonprofits fight back against harassment? Will the Courts step in to protect citizens’ right to engage in political activism? How can we resist this kind of administrative tyranny?

How should justices address this tension in their decisions and opinions? Can the Court return to a narrower vision of its judicial duty? If not, what judicial philosophy best fits the reality of the Court's role in a self-governing republic?

Claremont's John Eastman joins an expert panel at the American Enterprise Institute to answer these questions and more. (Dr. Eastman's presentation begins at 65:09.)

Professor Anthony T. Caso—who authored the Center’s amicus brief in  U.S. Army Corps of Engineers v. Hawkes—joins Dr. Eastman to discuss this latest instance of executive overreach in which the executive attempts to determine when its decisions are subject to judicial review. 

Next Ilya Shapiro joins Dr. Eastman for our conversation on the seven cases consolidated under Zubik v. Burwell. The Court is asked to decide whether the contraception mandate in the Affordable Care Act violates the Religious Freedom Restoration Act by requiring religious nonprofits to provide contraception and abortifacients in violation of their beliefs. Our brief focuses on whether HHS has the legislative authority to institute the contraception mandate. Mr. Shapiro is the senior fellow in constitutional studies at the Cato Institute,editor-in-chief of the Cato Supreme Court Review, and a Claremont Institute Lincoln Fellow. 

In Fisher, the Court considers whether affirmative action in higher education can be maintained in its current form, or if it should finally be abandoned. The petitioners in Evenwel challenge the way most states calculate population when drawing political districts. 

Dr. Eastman is joined by Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute.