Dr. Ronald Pestritto
Appearances
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
Thanks for that welcome, Charlie. It's good to see you.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
Well, there's a little bit of recent history on this, actually. And to be honest, I think Republicans have to look in the mirror a little bit because back when we got the Obama administration came into office and was not able to get its program through the Congress, they decided to go very aggressive with administrative power.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
And the Republicans at that time, instead of using the powers constitutionally that Congress has, instead of fighting the Obama administration itself, especially through the budget process, the power of the purse, Instead, the Republicans ran from that and decided to go crying to the courts. So they took the Obama administration to the courts.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
Now that's been a practice in both Republican and Democratic administrations since then. been ramped up massively now that we have the second Trump presidency. But it's really a practice that unfortunately probably even Republicans have relied upon too much instead of using the Article I powers that they do have.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
No, he does not. And the federal courts have been, including the Supreme Court historically, have been very, very reluctant to involve themselves in any kind of question that might involve foreign policy or what one might say are even some of the core discretionary powers of the executive under Article II. And so that's why some of the...
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
taken by some of these district court judges, ordering the turning around of airplanes or instructing the Department of State to disperse funds even while they're just taking a pause, the $2 billion funding order that we had recently reviewed by the courts. These things are typically way out of bounds for federal courts. And I have to say, I do think that
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
A good amount of this will ultimately end up being reversed at the Supreme Court level or at the higher court level. But the question is, how long is that going to take and how much trouble and harm to our country is going to be done while we wait for the Supreme Court to get into the ring?
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
We heard Chief Justice Roberts come out just recently and make the case that, hey, the impeachment isn't appropriate kind of language to use. The appellate process is the way in which we handle potentially rogue district court judges. And in one sense, he's right about that. But if his own court is going to be so reluctant to police the lower courts, then he really is almost—
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
setting the situation up for this kind of rhetoric. And the other thing that I haven't heard mentioned very much is, of course, there's a layer of courts in between the district court level and the Supreme Court level, and these are the courts of appeal.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
And where most of these cases are being brought, and they're being brought here for obvious reason, they're being brought in the District of Columbia. And the appeals court in the District of Columbia, the federal appeals court, is the one that was notoriously stacked with Democrats by Harry Reid.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
And so it's not as if once these district court decisions get up to the appellate court level, there's not likely to be a terribly sympathetic hearing there either. And so these are really matters that should be in front of the Supreme Court. The Supreme Court should be policing this. You saw four justices in the case on the USAID funding. get really quite angry.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
Justice Alito was quite angry at the court for not intervening in that case sooner. So it'll be a matter of when the Supreme Court wants to get involved.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
Well, I think ultimately the most likely recourse is there being overturned by a higher court and especially by the Supreme Court. That's the most likely. Now, you know, we have heard talk of impeachment and I'm certainly not not opposed to impeachment for judges who knowingly betray their judicial duty. The problem is it's simply not a realistic remedy.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
Impeachment requires a supermajority vote in the Senate that is simply never going to happen. And so it's just, to my mind, not a very practical remedy. And the leftists know this. They know how to judge shop. Quite frankly, the Republican lawyers, when President Obama and President Biden were in office— they knew how to judge shop as well. It's very easy to do at the district court level.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
There are 90 some odd district courts and you only need to win in one of them, right? That's the great problem with a lot of these universal injunctions is you can go district court to district court to district court and lose, lose, lose. And then if you find just one district court judge who's willing to enjoin the government, then that's it. They only have to go for one out of 94, essentially.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
And it's not hard to do. It's like getting an indictment. You know, a prosecutor getting an indictment, you can indict a ham sandwich. And getting an injunction in district court, especially in D.C., if you can't do that and you're a Democratic attorney, you should consider a new line of work.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
You bet. And in one sense, it is illegal under existing Supreme Court precedent, under the Humphrey's executor precedent from 1935 that you just named. And of course,
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
The Trump administration knows that, and one has to guess that the very reason that they have decided to go after these officers from the FTC is they know that that will put the question squarely before the Supreme Court of the United States.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
The case of Humphrey's executor was about the question of whether or not Congress could create an agency like the FTC, but protect it from presidential control. And the way in which principally it is protected from presidential control is by the president not being allowed to remove the commissioners whenever he likes. And that was challenged in the 1930s.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
FDR tried to remove Mr. Humphreys, who was a pre-New Deal commissioner. And the court came in and said, no, Congress can, uh, when it wants to create independence for these agencies, it can carve out a special zone of protection from presidential control. And of course the obvious problem with that is, well, uh, where are they if they're not in the executive branch?
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
The president has the executive power according to our constitution. And so if they're not controlled by the elected executive, then by whom are they controlled? And so for years, constitutionalists have really wanted to get the court to look anew at the Humphreys executive precedent. And the good news is it's pretty clear if you follow the jurisprudence over the last several years,
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
the court is pretty sympathetic with the so-called unitary understanding of the executive that I'm describing, that the president has this power under Article II. You can't limit his removal of executive branch officials this way.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
Humphrey's executor, I've said many times, perhaps other than Dred Scott, is probably the worst decision in the history of the Supreme Court in terms of its historical ignorance and constitutional incompetence. So I think there's going to be a sympathetic audience, quite frankly, at the Supreme Court. They've gone just up to the edge in thinking about repealing Humphreys in the past.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
And the Trump administration, they clearly know that. And so they are trying to tee this up as best they can, where even the more incrementalist justices on the court, they're going to have a hard time evading the issue, I think.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
Well, the book chronicles how we got to the place that that we currently are. So people might wonder, you know, we were we were talking about the the FTC and the Humphreys executive decision. People might wonder, well, why is it that Congress would have wanted to kind of wall off an agency and protect it and apparently make it make it unaccountable.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
And the story of how that happened and what an incredible departure that is from the original Republican vision of our founders really goes through the progressive era, the original progressive era, back to the likes of Woodrow Wilson, especially, and also folks like like Teddy Roosevelt.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
And so what I try to do in the book is to say, all right, all of this, all of these developments today, these rogue agencies, the fact that you have hundreds of thousands of people governing us and they go on doing it regardless of election, elections come and go and the administrative state just sort of chugs on. Well, that didn't just happen. It wasn't just in the last five years or 10 years.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
It's been a project underway in this country for a hundred years. It goes back even into the end of the 19th century. And so the book basically traces the very different arguments about the purpose of government, the great critique of the Constitution, the progressive argument that
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
hey, the time of the founding is past and we gotta get some new ideas here, traces that into what they did then to institutions in the 1930s and how the law changed and how we ended up here, you and I today talking about, why can't the president go ahead, he's elected after all by majority of the country, why can't he go ahead and control other people in the executive branch? How did we get here?
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
And so the short version is the book tries to tell that story.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
Well, what they did, Charlie, was they imported a philosophy of government that was a real novelty to America. American government, as you know very well, was founded on the principles of the Declaration of Independence. The point of government is to secure the God-given rights that individuals have. And government by consent of the governed is the only legitimate form of government. Well,
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
What the progressives argued was that that was perhaps an appropriate way of thinking for the late 18th century, but that we had now been presented with a whole new host of problems, economic problems, social problems. The old principles were inadequate for the crisis that they faced when they came on the scene in the latter part of the 19th century.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
And so the dominant philosophy, to get at your question, the dominant philosophy was that of the German state. Woodrow Wilson, for example, wrote very admiringly of the bureaucratic system of government in Bismarck's Prussia and wondered how we might bring that kind of government by expertise, not government by consent, but government by expertise. Consent gets in the way.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
Ordinary consent gets in the way. People have different opinions and they want their interests to be respected. Much better, the progressives argued, if we could just bring in a kind of scientific elite. And often when I – I've been doing this for longer than I want to admit –
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
And often when I used to bring it up, people's eyes would kind of glaze over, talking about the Germans and bureaucracy and state theory and so on. Until we got COVID, until we got told basically that, hey, elected people should get out of the way. We need the experts. We need to do whatever Tony Fauci and his minions tell us. And all of a sudden it became very real for people.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
And so that was a kind of renewed appreciation of what happens when you see too much of government by consent.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
Thanks for having me on, Charlie. Good to see you.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
For more on many of these stories and news you can trust, go to charliekirk.com.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
Charlie, what you've done is incredible here.
The Charlie Kirk Show
Another Promise Kept: Abolishing the Department of Education
I want you to know we are lucky to have Charlie Kirk.