In this episode, Lisa discusses key legal issues with guest Ilya Shapiro, a senior fellow at the Manhattan Institute and author of "Lawless: The Miseducation of America's Elites." Topics include the origins and role of the Department of Government Efficiency (DOGE), legal challenges facing the Trump administration, and the Empowerment Control Act. Shapiro shares his experience of being investigated for a controversial tweet while at Georgetown Law, critiques the current state of higher education, and emphasizes the need for reform in legal education and respect for the rule of law. The Truth with Lisa Boothe is part of the Clay Travis & Buck Sexton Podcast Network - new episodes debut every Tuesday & Thursday.
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Episode Transcript
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Speaker 1 (00:01):
Did you know that doge was originally created under Obama
as the US Digital Service, So how did it become
today's Doge. We'll ask that question to our next guest. Also,
the Trump administration is facing something like over eighty lawsuits
ranging from issues like refugees to birthright citizenships to doge's
access to government databases? Will the left be able to
(00:23):
hold up his agenda in the courts? Also, what's the
Empowerment Control Act? I'm going to ask all these questions
to our next guest, who is a brilliant legal mind.
He is also the author of Lawless, The Miseducation of
America's Elites, and he knows something about it because when
he was at Georgetown Law he faced a four month
(00:44):
investigation over a tweet. So what was that tweet and
what was that investigation like? And what did he learn
about the miseducation of America's elites during that time? His
name is Ilia Shapiro. You've probably heard him, you see
on TV, you read something that he's written, because he
has written a lot. He's a brilliant legal mind and
(01:06):
currently the Senior Fellow at the Manhattan Institute and Director
of Constitutional Studies. You have read his work, You've seen
him on TV. The guy is brilliant. He's also done
something like filed more than five hundred Front of the
Court briefs in the Supreme Court, so he knows a
thing or two about the law. It's a fascinating conversation
with a fascinating guy. So stay tuned for Ilia Shapiro.
(01:34):
Ilia Shapiro, I really appreciate you making the time. Obviously,
there are a lot of lawsuits at the administration spacing
and a lot of a lot of legal issues to
get into, so I'm looking forward to having you break
this all down for us. So I really appreciate you
making the time my pleasure. So will you say something
that surprised me that DOGE was originally created under Obama
(01:56):
as the US Digital Service, So explain that, you know,
why was it created then, and then how is it
being used today as DOGE.
Speaker 2 (02:07):
Yeah, indeed, it was created under Obama as the US
Digital Service to help federal agencies with their websites and
other adaptations to big tech, to the Internet age. And
it was an agency within an office within the Executive
(02:28):
Office of the President, just like the White House Counsel's
Office or the Council of Economic Advisors, or the there's
an Office on Science and Technology, all of these things
that are not Senate confirmed. They're just appointed by the
president as staffers, aids, assistants on various issues. And what
(02:50):
Trump did was rename the US Digital Service, changed the
d from Digital to DOGE, and DOGE in turns stands
for Department of Government Offficiency, and hired a bunch of
people led by Elon Musk as special government employees. That's
a technical legal term from the relevant statute, which means
(03:11):
they're duly appointed to help with all sorts of digital
stuff and to look at data from different agencies, and
they're charged with cutting out waste, fraud, and abuse. So
they are fully legally authorized. This is not just you know,
Elon gave a bunch of money to Trump and therefore
(03:32):
now gets to be some shadowy, I don't know, resputant
figure with no legal authority. It's you know, certain things
that DOGE might be trying to do, such as firing
workers who have civil service protections, might run into legal heat.
But for the most part, the mission, the structure, the
authority of DOGE is not contestable.
Speaker 1 (03:55):
You know, and we have seen that legal heat. I
guess what limitation does doge face? You know, there have
been lawsuits, particularly with access to certain databases, certain government databases.
So are there limitations here or kind of walk us
through the legal angles of all of that.
Speaker 2 (04:14):
Yeah, And the most recently Dose has been winning a
series of judicial rulings. I think in the early stages,
it was just so new that judges didn't know what
to do with it, so they were issuing temporary restraining
orders for you know, ten or fourteen days. And then
they realized that it was improper to stop, say the
Department of the Treasury Secretary, the Senate confirmed Treasury secretary
(04:39):
or his agents from looking at payroll processing systems and
things like that. That the what Trump was doing was
wholly within What Musque was doing was wholly within the
executive branch, and it is up to the executive to
reorganize itself. There's some questions about, you know, are they
(05:02):
not fulfilling what Congress legislated. Congress appropriated x million for
you know, usaid, how can they not spend that that's
called impoundment and it's illegal. Well, I mean, there was
a pause and Congress didn't specify which specific contracts had
to be funded, you know, the twenty thousand dollars for
a transgender opera in Peru or something like that. The
(05:25):
Congress doesn't micromanage like that, and so as long as
the administration ends up spending the appropriated money by the
end of the fiscal year, they'd be okay. But simply say,
moving some functions of aid into the State department, closing
some contracts, this is all within kind of normal or
(05:48):
management of the executive branch. In fact, President Clinton probably
comes closest to what this might be with his Reinventing
Government project. You might recall thirty years ago Gore was
tasked with reinventing government. Part of that was offering buyouts
to federal employees, just like Doge has done, apparently netting
(06:08):
seventy five thousand early retirements something like that. Part of
it is streamlining agencies. So you know, there's very little
new under the sun, even if Elon Musk's kind of
larger than life figure and excitable character makes this look
like something unusual. And by the way, Lisa, I think
(06:30):
I'm still flabbergasted that Doge has become the lightning rod
for the resistance or the opposition to Trump this time
around in light of the seemingly more politically controversial issues
that the various other executive orders have touched.
Speaker 1 (06:46):
So you'd mentioned empowerment and we're worriedy hearing a lot
about it. We're going to be hearing a lot about
the Empowerment Control Act in nineteen seventy four law in
the coming or you know, throughout the Trump administration. Rather,
Trump believes that it's unconstitutional. You know, essentially for the audience,
Congress appropriates money, and what's in question about the Empowerment
(07:07):
Control Act is can the executive branch and the President say,
you know what, maybe I'm not going to give all
this money over here, or maybe use it for other purposes.
So that's sort of that issue. You'd be able to
explain that the legal angles of it, obviously more in
depth than I just did. Is it unconstitutional? You know
sort of what's your analysis of the Empowerment Control Act?
Speaker 2 (07:28):
Well, the president is supposed to enforce the laws that
Congress passes. He's not supposed to create new law, but
he can interpret existing laws as presidents always do, to say, well,
you know this, this part is unconstitutional. I can't enforce
it that way, or we're going to interpret this in
light of this other statute, and then there are lawsuits
(07:49):
about whether he's right in that interpretation and things like that.
The Empowerment Act has been it was a it was
a post Water Game reform in the seventies and always
had some controversy about whether, you know, if the if
the president in his judgment doesn't want to spend certain
money that he can accomplish the goal that Congress laid
(08:11):
out in in in a particular federal program. You know,
why should he just spend money for no particular reason. Uh.
If if you know the congressional the legislation has been fulfilled,
but it's never been litigated. Uh that you know, we
could be set for that. Again, it's not it's not right,
as lawyers say, right now, because you can't you can't
(08:34):
challenge a pause or you shouldn't be able to because
that's not a final action.
Speaker 1 (08:39):
Uh.
Speaker 2 (08:39):
And the president does have until the end of the
fiscal year in September to spend the money that that
that Congress has appropriated. That's when an Empowerment Act challenge
if if he decides not to spend it all when
that could be had, and it's and it's an interesting
point you I guess of course, would be looking at, uh,
has the President fulfilled his duty under the take care clause?
(09:04):
The duty to take care that the laws be faithfully executed?
You know? Does that mean he has to spend all
the money that Congress has appropriated if if the laws
are being faithfully executed. So that's fleshing out a little
bit where where the debate might be if it comes
to it.
Speaker 1 (09:25):
Now do you think this would make its way to
the Supreme Court? I mean we're going to see you know,
probably a lot of lawsuits. You know, New York City
is feral a federal lawsuit against the Trump administration for
eighty million dollars that they say FEMA funding should be
going to them, that is not going to them. You know,
does the city have standing in that? Like? Where do
you think this all?
Speaker 2 (09:46):
That's a different sort of different there. Yeah. Eric Adams
the mayor, and we can get into his particular foibles
in a moment, but he is in alignment with the
Trump administration in that they're trying to stop or clawback
monies that were going to migrant asylum programs and housing
(10:07):
and things like that under the Biden administration and arguing
that this is an improper use of FEMA funds. And
I think they're probably right. They have a very strong
case about what natural disaster funds are supposed to be
going to. But that's a separate sort of issue. I think,
you know, would be recipients of contracts that all of
(10:30):
a sudden are rescinded may have some sort of right
if they have reliance costs. You know, they were assured
that they got this contract and so they went ahead
and built out some infrastructure, what have you, and then
then that all got canceled. Potentially at least American recipients
might have some sort of standing there. We're not talking
(10:51):
about international development work. But beyond that, states have to
be harmed. As states. They can't be suing on behalf
of their of the on behalf of their citizens. Generally,
courts frowned on that. So if there are grants going
to states in some way that are now being stopped,
(11:12):
some states might want to sue over those. There are
separate lawsuits that certainly will put the federal and state
governments in against each other in court over sanctuary cities,
For example, whether state and local officials have to cooperate
and to what extent with ICE. They're not allowed to
(11:33):
interfere with ICE at least even if they're not required
to cooperate affirmatively. But what does interfere mean? So those
sorts of suits are certainly headed our way. The Supreme
Court inevitably every presidential term decides some conflicts about how
our challenges to how the executive branch implements the law.
(11:56):
I think the issue that's on the fact is tracked
to the Supreme Court is probably birthright citizenship. Not this term,
but I can imagine next term, So by the summer
of twenty twenty six, we'll have a ruling as to
whether the Trump administration's executive order that restricts citizenship only
(12:17):
to kids of citizens and permanent residents, whether that is lawful.
And here's a little preview of something that I've been
thinking in this vein. It could be that the media
and Justice, as Chief Justice Roberts and Brett Kavanaugh might say, well,
the Constitution isn't clear here and none of our precedents
(12:40):
provide a rule for decision, Which is true, But to
change so many decades of established practice it would require
an Act of Congress rather than a mere executive action.
That could be the middle way. They decide that we've got.
Speaker 1 (12:53):
More with Ilia in just a moment of first after
more than a year of war, terror in pain in Israel.
All of Israel is brokenhearted after learning of the tragic
deaths of the Beva's children who were held hostage in Gaza,
and so many are still herding throughout the Holy Land,
where the need for aid continues to grow. The International
Fellowship of Christians and Jews has supported and continues to
(13:15):
support the families of hostages and other victims of the
October seventh terror attacks. With your help, IFCJ has provided
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to those healing and rebuilding. They're broken homes and broken bodies,
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(13:36):
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eight for eight eight IFCJ. That's eight eight eight for
eight IFCJ. Regarding the sanctuary cities, I guess who was
(14:04):
standing in that? You know, where does that go? You know,
what are your thoughts on that?
Speaker 2 (14:10):
If the federal government tries to hold back or not award, say,
law enforcement funds, because state law enforcement isn't cooperating with ice,
there'll be the lawsuit over whether that restriction is germane,
whether it's constitutional. Have you already agreed to it? If
(14:32):
existing funds, existing contracts, or grants are in jeopardy, then
there's a question of whether that's the federal government commendeering
state officials. That is, under our constitution, federal authorities can't
tell state authorities what to do. They can't even tell
them to enforce federal law, but they the state authorities
can't interfere with federal enforcement of federal law. So, whether
(14:55):
that's with respect to marijuana, which is still illegal at
the federal level but legal in many many states, whether
it's with immigration enforcement, that's where the clash is. The
courts of Hell that states can have sanctuary policies, but
at what point does non cooperation become interference, you know, and.
Speaker 1 (15:17):
Of course in a lawsuits over firing federal employees, there
are a lot of protections there in some instances, I
know President Trump has done things before, like you know
a Schedule F reclassifying federals.
Speaker 2 (15:30):
Between them is yeah, there's a difference between civil servant
personnel changes where Schedule F comes in trying to designate
more people as political appointees or are having responsibility for
policy setting, in which case they have to be goes
(15:51):
the argument they have to be more accountable to the president, removable, replaceable,
et cetera. Whether certain civil service protections orublic sector union
contracts are unconstitutional because they hamstrung the executive and the
executive branch can't fulfill its duties and exercise its constitutional authority.
(16:15):
These are open questions. And then at the higher levels,
with say the head of the National Labor Relations Board
or the Federal Election Commission, all of these alphabet so
called independent agencies, removal authority over those Senate confirmed officials.
That is an issue that's definitely going to go to
(16:36):
the Supreme Court as well. The Acting Solicitor General of
the government's head lawyer before the Supreme Court has notified
the Senate, for example, that it will no longer be
defending the constitutionality or the removal protections for those officers,
and is questioning a ninety year old Supreme Court president
(16:59):
called Humphrey's Executor, which carved out from the normal rule
that the president can replace officers of the United States
because that's how constitutional accountability in the executive branch worked.
So that case, Humphrey's Executor said, well, certain officers exercise
(17:19):
sometimes quasi legislative, quasi judicial functions. So the Federal Trade
Commission adjudicates disputes of certain kinds or it promulgates regulations,
which is kind of like a legislative function. That's why
its leaders have certain protections. The Court found in that case.
I think the Humphrey's Executor is right for reconsideration, and
(17:42):
I think a majority of the current membership of the
Supreme Court is likely to side with the Trump administration
in enforcing more accountability. You can see that from a
handful of cases that have been decided in the last
ten to fifteen years.
Speaker 1 (17:58):
I mean, I do think the one, well, one big
benefit of President Trump is we've all learned a lot
more about how government works. It's all got a lot
more attention than it has in you know, administrations prior.
When it comes to reforming government. We're certainly seeing a
more muscular government from President Trump than you know, maybe
(18:20):
some Republicans in the past. When it comes to reforming government,
what can President Trump do on his own, you know, latterly,
and then what does he need Congress to do?
Speaker 2 (18:32):
The executive can't close the Department of Education, say or USAID.
They were created by Congress. It would take an Act
of Congress to shut them down. The executive could reorganize
certain functions like it could say, okay, the Office of
Civil Rights at Education, that's duplicative of what the Justice
(18:54):
Department is or should be doing. So we'll move all
of those functions into DOJ student loan administration. That's not
an educational function, that's a you know, economic financial piece.
What We're going to send that to the Treasury Department
to operate things like that, or you know, certain we're
(19:17):
going to cancel certain kinds of contracts that violate that
that implement DEI because we consider de I to be unconstitutional,
violation of civil rights, equal protection, things like that. But
it can't shut the entire structure down and just send
the funds back as block grants to the states. That
would take an Act of Congress.
Speaker 1 (19:38):
But could you roll us AID into the State Department,
for instance.
Speaker 2 (19:43):
I think most of its functions could be yes, And
I think that's what they're trying to do.
Speaker 1 (19:46):
And would that be constitutional? Then?
Speaker 2 (19:48):
I think so?
Speaker 1 (19:49):
I think.
Speaker 2 (19:50):
So, you know, there's very you know, Congress created the
agency and it specified certain things. So I haven't looked
at USA I d's organic statute, but you know, whatever
Congress specified has to be has to be done. And
and back to the Empownment Act, what you know what
what money it appropriated to implement certain programs. That money,
(20:12):
you know, if you take those functions into the State Department,
that money would go there and then have to be
spent or again you have this fight over whether the
UH the UH the law is being executed more cheaply
or what have you. So it's you know, there's there's
certainly a great area. It's sometimes it's hard to draw
the line between reorganization within the executive branch and dissolving
(20:37):
or or disabling UH an agency that that Congress created
and wants to exist. But that's the general outline.
Speaker 1 (20:46):
Yeah, and I know the Clinton administration also considered doing
that as well, rolling USA Idea into State Department. I
want to get to your book because that's really interesting
as well. Your book, Lawless, The Miseducation of America's Elite.
You talk about how in the past, you know, Columbia
Law School, for instance, produced leaders like Franklin Roosevelt or
(21:06):
Ruth Bader Ginsburg. Now it produces windows smashing activists. How
did that happen? Yeah? How did that happen?
Speaker 2 (21:16):
Yeah? So the book's called Lawless, The Miseducation of America's Elites.
It came out about a month ago, just over a
month ago, from HarperCollins Broadside Imprint, and it builds on
my so called lived experience at Georgetown Law three years
ago where I was investigated for a tweet and kind.
Speaker 1 (21:36):
Of a tweet no less a tweet, yeah, a tweet, yeah, tweet.
Speaker 2 (21:39):
Yeah. I got to see the kind of the dirty
underbelly of the failures of ideology, bureaucracy, and leadership to wit.
When I was in law school twenty years ago. You know,
we had debates between liberals and conservas, left and right, originalism,
(22:01):
living constitutionalism, what have you. But we took the law
or the legitimacy of American institutions as a given. Now,
there were these theories that considered legal institutions to be
illegitimate because hopelessly imbued with racism, sexism, you know, heteronormativity,
(22:22):
all of these different things. They have to be torn
down and rebuilt according to a different privileged hierarchy. Your
rights and freedoms depend on whether you're part of a
class deemed oppressor or oppressed, et cetera. Critical theory, critical
legal studies. We had thought that that was something from
the eighties and early nineties that had been relegated to
some you know, dusty corner of a philosophy or sociology
(22:46):
department or something. But the crits came roaring back in
the last in the last decade, and there's a lot
of that kind of undermining of respect for the rule
of law taught by law schools themselves, which is a
a big problem. Then you have the bureaucracy, which might
even be a bigger problem than the shift from in
(23:07):
the faculty, from education to that kind of activism that
I described. And it's remarkable how much non teaching staff
or administrators have grown relative to faculty, relative to student bodies.
All schools now have more non teaching staff than faculty,
(23:28):
and you know, that's part of why tuition is skyrocketed.
It's also part of why we've had, especially in the
last decade, especially in the last five years, the growth
of DEI because bureaucrats incentive always, whether in the public sector,
private sector, nonprofit, what have you, is to justify and
(23:49):
grow their authority and budget. So once you started having
these offices that were looking to inculcate students in a
culture of viewing issues through lenses of race and sex
and identity and what have you, they needed to manufacture
outrage and have things to investigate and adjudicate and and punish,
(24:13):
and and away we went. Uh So, so oftentimes, the
the bureaucracy, and especially now the DEI bureaucracy, is the
tail that wags the dog of the of the whole
educational project. Because this gets to the third major failure.
Uh Deans and presidents and provosts are not themselves woke radicals,
(24:37):
but they're spinalless cowards, and they counts how toward this
illiberal mob, whether coming from the students buttressed by the
the structures and dynamics put in place by the by
the non teaching staff, the bureaucrats. Uh and uh, you
know their careers, bureaucrats, and they're trying to climb the
greasy pool. And uh they they faci illitate the takeover,
(25:02):
this illiberal takeover. And I want to be clear, and
I'll end with this and let you ask the next
thing that this is not just the latest conservative lament
about decades of faculty bias or the hippies taking over
the faculty lounge. In fact, those hippies, the Berkeley free
speech movement of the nineteen sixties, would now be considered
(25:25):
retrograde white supremacists by these woke radicals. So all of
these failures combined is what's led to a very unhealthy
culture in higher education generally in law schools specifically. And
I focus on law schools not just because I'm a lawyer,
but because regardless of what happens in English or sociology departments,
that's unfortunate when they go crazy. Law schools graduate our
(25:50):
next generation of gatekeepers of our political and legal institutions.
Literally the foundations on which American prosperity and liberty rests
if that goes all a kilter.
Speaker 1 (26:03):
Well, and we've already seen how some of that has
played out with you know, some of the what Trump
was facing in the courts, particularly in d C. And
in Georgia, and also you know what a lot of
these January six ers faced and sort of the unfair
treatment that they received in the courts as well. So,
I mean, it is carried that these are the people
(26:24):
that are going to be shaping the law for you know,
for you know, years and years and years to come,
decades to come. So what was the tweet that was
subject to this four month investigation.
Speaker 2 (26:39):
So I had been at CATO, the Cato Institute for
nearly fifteen years and got an opportunity to take my
career in a different direction to become the executive director
of Georgetown Center for the Constitution. And the few days
before I was due to start that job was when
Justice Bryer's retirement announcement came. And so I was doing
(27:01):
a lot of media that day in January of twenty
twenty two because my previous book, Supreme Disorder, Judicial Nominations
in the Politics of America's highest Court was right on point,
and I was getting more and more upset with Joe Biden,
huewing to his campaign promise from twenty twenty to appoint
(27:24):
a black woman to the Supreme Court. Nothing wrong with
appointing a black woman, of course, but I wouldn't restrict
my candidate pool, whether for janitor, let alone justice by
race and sex. And so I late at night after
doom scrolling Twitter. Not a best practice I've done, offered up.
I offered up the hot take that if I were Biden,
(27:45):
or if I were a Democratic president, I would pick
the chief Judge of the d C Circuit, the second
most powerful court in the land, a man by the
name of Sri Srinovasan happens to also be an Indian
American immigrant. So check some demographic boxes, but alas not
the right ones under what I called today's privileged hierarchy
or hierarchy of intersectionality. And so, given Twitter's character limitation,
(28:10):
I said, if Biden maintains his promise, we will end
up with a quote lesser black woman. And it's those
three words, in artfully phrased, I clearly met less qualified
than the candidate that I was proposing as the best
pick that got me in trouble over, I hit send
on that went to bed, and overnight my ideological enemies
(28:33):
went for my head, and that led to what I
call four days of hell, as it wasn't clear whether
i'd be fired right there, then four months of purgatory
as I was onboarded but immediately suspended pending investigation into
whether I violated harassment and anti discrimination policies. And the
longer that so called investigation went, the more it seemed
(28:54):
like it was a farce. And when I finally was
reinstated on the technicality that I wasn't yet an employee
when I tweeted, so the policies didn't apply. This little
jurisdictional knit that some high powered lawyer found once the
students were off campus so they couldn't protest. But then
I got the fine print, this report from the Office
(29:17):
of Institutional Equity Diversity an affirmative action idea, and that
made clear that the next time that I offended someone
or otherwise transgressed progressive orthodoxy, I'd be creating a hostile
educational environment. And I realized I could not do the
job I was hired to do, so I had to quit,
(29:37):
and I did what lawyers call a noisy exit, publishing
my resignation letter in the Wall Street Journal, as one does,
and then announcing my move to the Manhattan Institute on
Fox News, and away we went after that. And I've
been trying to use this platform that I've been given
to shine a light on the rock in academia.
Speaker 1 (29:57):
Well, I respect the noisy exit in that in that Redguard.
You know, we're saying, d I die. To a certain degree,
we've seen a lot of companies jump ship in recent months,
you know, particularly after President Trump's reelection as well as
the actions that he has taken with his administration. Are
(30:17):
we seeing that on some of these campuses? And you
know what do you think that impact will be at
you know, higher education and at some of these universities
across the country.
Speaker 2 (30:28):
In society more broadly, I'm optimistic. There's definitely been uh
you know what people call it, talk about a vibe
shift which was instantiated in the November election, But just
more broadly, whether in private enterprise and the culture, it
feels like a like a fever has broken in academia.
(30:49):
I'm not quite sure that the jury is still out.
There's not quite the same feedback mechanism. There isn't a
critical mass to push back on the excesses of this
let wing illiberalism. And there are so many vested stakeholders.
You know, the National Association of Higher Education Diversity Officers,
(31:10):
if you can believe that's an organization, has ten thousand members.
They're not going to be like, Okay, well, I guess
I'll learn to code now. You know, they're gonna they're
gonna resist. And and just like Brown v. Board didn't
overnight mean desegregation in the Jim Crow South, there is
massive resistance both to the Supreme Court's order not to
(31:31):
use racial preferences in admissions and to Trump's dei orders.
We'll see if the Education and Justice departments keep their
foot on the gas in these investigations, threatening to withhold
federal funding, research funding, and otherwise from recalcistron schools. There's
(31:52):
there's quite a battle that that's being set up. So
it's uh, you know, I'm I'm less pessimistic than than
I was when I left Georgetown nearly three years ago,
but the battle's been Joineday.
Speaker 1 (32:04):
What can can the Trump administration do anything to address
this miseducation?
Speaker 2 (32:10):
You know, they're trying. They're trying, I mean they're there.
Speaker 1 (32:12):
We would you get into those.
Speaker 2 (32:14):
Existing that there are existing strings on federal funds, which
is why the Education Department two weeks ago launch investigations
of half a dozen schools for anti semitism and free
speech violations and all these things like that. So yeah,
if you take federal money, there's there's strings attached to
(32:37):
everything from accounting standards to non discrimination rules to free
speech protections. And so hopefully something comes of it, because
the by administration was kind of shamed into opening some
investigations after October seventh, but then they quickly closed them
with less than a slap on the wrist at the
(33:00):
end of the of the Biden tern So hopefully there
is going to be teeth, investigatory oversight, teeth for these
executive actions. But of course you live by the executive action,
you died by the executive action, and hopefully some of
this will get codified as legislation.
Speaker 1 (33:18):
We've got to take a quick commercial break. More with
Ilia on the other side, Well, we also saw, you know,
alumni of some of these universities, particularly when we saw
the anti semitism happening across the country. You know, say hey, look,
you're not going to give you x amount. You know,
like these really really rich people being like, oh, we're
(33:39):
going to withhold funds, and so that led to you know,
some turnover with these university presidents. Is that sort of
you know, another plan of action that you know, people
should start taking more and kind of threatening their own
personal funding of some of these universities. Oh.
Speaker 2 (33:56):
Absolutely, Look, it's going to take in all of the
above push State legislators and governors can and are in
some cases acting to abolished de I bureaucracies, get rid
of diversity statement litmus tests for hiring, other kinds of
(34:17):
preferences for admissions. It's going to take private employers to
say that, look, we can't hire from your school because
there's no guarantee of quality there, and the kids show
up entitled, and you know, we don't want to deal
with that, let alone being a Hamas supporter or yelling
(34:38):
at federal judges we hope your daughters get raped and
things like this that has happened in the last few years.
It takes donors and trustees and alumni and universities, even
rich ones like Harvard with a sixty billion dollar endowment notices.
When there's a five percent decline either in overall amount
(35:01):
of giving or in the rate of giving the percentage
of alumni that donate, that's a that's a warning bell
for them. And so it's not you don't have to
be a multi millionaire donor to get the attention of
your alma mater. You know, get together with a bunch
of friends. Then there's there's free speech coalitions. There's all
sorts of kind of alumni groups that are have been
(35:23):
created in various schools, especially at the so called elite
ones where these sorts of problems are the most acute,
and so you can you can have an impact that way.
And alternate institutions. The University of Austin, for example, just
opened its doors to students this year, the first cohort
of I think ninety freshmen. I spoke there about a
(35:44):
month ago. It's a great example of a kind of
parallel institution. Some centers and institutes are being created within
existing schools. Arizona State unc University of Florida, Florida State.
Lots of different schools now have centers for excellence or
Civics or classics. All of these kinds of teachings that's
(36:07):
supposed to be the liberal arts mission of the broader university,
but has been forced into these college within a college
sort of thing. So yeah, we're in a time of flux,
and some institutions, no doubt, will fail or lose influence
and even more public confidence. Some might be might be righted.
Speaker 1 (36:31):
And we've seen judges too, you know, say, hey, look
like Judge James Hoe saying I'm not going to hire
you know, law students from Yale due to some of
this woke stuff. And you know, some judges stepping up
and kind of.
Speaker 2 (36:42):
And that's gotten Yale's attention. The dean there recognizes that
Yale has gotten some black eyes, and purely out of
personal self interest, because she, Heather Durkin, wants to be
the president of an Ivy League school at some point,
and she realizes that if her reign, her tenure at
Yale Law is seen as dysfunctional, that's not going to happen.
(37:04):
So yes, she's the boycott the publicity from these various scandals.
She's reassigned bureaucrats. She's hired a senior professor, Keith Whittington,
from Princeton and given him a bunch of money to
do civil discourse stuff. Hired a junior professor who had
clerked for Alito. So some of you know, more savvy
(37:24):
educational leaders I think can get the message from a
combination of alumni giving bad publicity. Yeah, judicial employer pressure,
all these different things.
Speaker 1 (37:37):
Is there anything else you'd like to get across about
the book?
Speaker 2 (37:40):
Before we go? I published for the first time anywhere
that report that I got from Georgetown's DEI office. And
it's funny the publisher, my publisher, you know, you go
through a legal review, of course, and they had no
problem with you know, the choice words that I had
for Georgetown and dean and administrators and what have you.
(38:02):
But they said, look, that report technically Georgetown might have
a copyright on it, and so we need to transform
the work from an intellectual property perspective. So they had
me put in some snide comments every couple of paragraphs.
So anyway, I'll leave that to your listeners to uh
to buy it on Kindle or audible or have the
(38:24):
hardcover book itself.
Speaker 1 (38:26):
That's a good tease, always going to leave everyone with
the teas. Elias Shapiro, really appreciate your time. Really interesting conversation.
I appreciate it so much, so thank you, thank you.
Speaker 2 (38:37):
And you know, Lisa, this this administration that Trump too,
is so much better lawyered than the last one was
so all of these things and you know, the shock
in awe and they really used their their transition time well,
and the lawyers are ready. So I think most of
this stuff that you know, it's hard to separate the
wheat from the chaff sometimes, but most of this stuff
(39:00):
I think we'll get upheld in court.
Speaker 1 (39:03):
Well, I'm actually glad you mentioned that because that is
one of the questions I was going to ask you
that I forgot too. So you're helping me cover all
the ground that I wanted to cover. So I wanted
to ask you about how his legal team is doing.
So I'm glad you got that in there. Thank you
so much. I really appreciate it. My pleasure was to
take care Itzilias Shapiro. Appreciate him for taking the time.
Appreciate you guys at home for listening every Tuesday and Thursday,
(39:26):
but of course you can listen throughout the week until
next time.
Did you know that doge was originally created under Obama
as the US Digital Service, So how did it become
today's Doge. We'll ask that question to our next guest. Also,
the Trump administration is facing something like over eighty lawsuits
ranging from issues like refugees to birthright citizenships to doge's
access to government databases? Will the left be able to
(00:23):
hold up his agenda in the courts? Also, what's the
Empowerment Control Act? I'm going to ask all these questions
to our next guest, who is a brilliant legal mind.
He is also the author of Lawless, The Miseducation of
America's Elites, and he knows something about it because when
he was at Georgetown Law he faced a four month
(00:44):
investigation over a tweet. So what was that tweet and
what was that investigation like? And what did he learn
about the miseducation of America's elites during that time? His
name is Ilia Shapiro. You've probably heard him, you see
on TV, you read something that he's written, because he
has written a lot. He's a brilliant legal mind and
(01:06):
currently the Senior Fellow at the Manhattan Institute and Director
of Constitutional Studies. You have read his work, You've seen
him on TV. The guy is brilliant. He's also done
something like filed more than five hundred Front of the
Court briefs in the Supreme Court, so he knows a
thing or two about the law. It's a fascinating conversation
with a fascinating guy. So stay tuned for Ilia Shapiro.
(01:34):
Ilia Shapiro, I really appreciate you making the time. Obviously,
there are a lot of lawsuits at the administration spacing
and a lot of a lot of legal issues to
get into, so I'm looking forward to having you break
this all down for us. So I really appreciate you
making the time my pleasure. So will you say something
that surprised me that DOGE was originally created under Obama
(01:56):
as the US Digital Service, So explain that, you know,
why was it created then, and then how is it
being used today as DOGE.
Speaker 2 (02:07):
Yeah, indeed, it was created under Obama as the US
Digital Service to help federal agencies with their websites and
other adaptations to big tech, to the Internet age. And
it was an agency within an office within the Executive
(02:28):
Office of the President, just like the White House Counsel's
Office or the Council of Economic Advisors, or the there's
an Office on Science and Technology, all of these things
that are not Senate confirmed. They're just appointed by the
president as staffers, aids, assistants on various issues. And what
(02:50):
Trump did was rename the US Digital Service, changed the
d from Digital to DOGE, and DOGE in turns stands
for Department of Government Offficiency, and hired a bunch of
people led by Elon Musk as special government employees. That's
a technical legal term from the relevant statute, which means
(03:11):
they're duly appointed to help with all sorts of digital
stuff and to look at data from different agencies, and
they're charged with cutting out waste, fraud, and abuse. So
they are fully legally authorized. This is not just you know,
Elon gave a bunch of money to Trump and therefore
(03:32):
now gets to be some shadowy, I don't know, resputant
figure with no legal authority. It's you know, certain things
that DOGE might be trying to do, such as firing
workers who have civil service protections, might run into legal heat.
But for the most part, the mission, the structure, the
authority of DOGE is not contestable.
Speaker 1 (03:55):
You know, and we have seen that legal heat. I
guess what limitation does doge face? You know, there have
been lawsuits, particularly with access to certain databases, certain government databases.
So are there limitations here or kind of walk us
through the legal angles of all of that.
Speaker 2 (04:14):
Yeah, And the most recently Dose has been winning a
series of judicial rulings. I think in the early stages,
it was just so new that judges didn't know what
to do with it, so they were issuing temporary restraining
orders for you know, ten or fourteen days. And then
they realized that it was improper to stop, say the
Department of the Treasury Secretary, the Senate confirmed Treasury secretary
(04:39):
or his agents from looking at payroll processing systems and
things like that. That the what Trump was doing was
wholly within What Musque was doing was wholly within the
executive branch, and it is up to the executive to
reorganize itself. There's some questions about, you know, are they
(05:02):
not fulfilling what Congress legislated. Congress appropriated x million for
you know, usaid, how can they not spend that that's
called impoundment and it's illegal. Well, I mean, there was
a pause and Congress didn't specify which specific contracts had
to be funded, you know, the twenty thousand dollars for
a transgender opera in Peru or something like that. The
(05:25):
Congress doesn't micromanage like that, and so as long as
the administration ends up spending the appropriated money by the
end of the fiscal year, they'd be okay. But simply say,
moving some functions of aid into the State department, closing
some contracts, this is all within kind of normal or
(05:48):
management of the executive branch. In fact, President Clinton probably
comes closest to what this might be with his Reinventing
Government project. You might recall thirty years ago Gore was
tasked with reinventing government. Part of that was offering buyouts
to federal employees, just like Doge has done, apparently netting
(06:08):
seventy five thousand early retirements something like that. Part of
it is streamlining agencies. So you know, there's very little
new under the sun, even if Elon Musk's kind of
larger than life figure and excitable character makes this look
like something unusual. And by the way, Lisa, I think
(06:30):
I'm still flabbergasted that Doge has become the lightning rod
for the resistance or the opposition to Trump this time
around in light of the seemingly more politically controversial issues
that the various other executive orders have touched.
Speaker 1 (06:46):
So you'd mentioned empowerment and we're worriedy hearing a lot
about it. We're going to be hearing a lot about
the Empowerment Control Act in nineteen seventy four law in
the coming or you know, throughout the Trump administration. Rather,
Trump believes that it's unconstitutional. You know, essentially for the audience,
Congress appropriates money, and what's in question about the Empowerment
(07:07):
Control Act is can the executive branch and the President say,
you know what, maybe I'm not going to give all
this money over here, or maybe use it for other purposes.
So that's sort of that issue. You'd be able to
explain that the legal angles of it, obviously more in
depth than I just did. Is it unconstitutional? You know
sort of what's your analysis of the Empowerment Control Act?
Speaker 2 (07:28):
Well, the president is supposed to enforce the laws that
Congress passes. He's not supposed to create new law, but
he can interpret existing laws as presidents always do, to say, well,
you know this, this part is unconstitutional. I can't enforce
it that way, or we're going to interpret this in
light of this other statute, and then there are lawsuits
(07:49):
about whether he's right in that interpretation and things like that.
The Empowerment Act has been it was a it was
a post Water Game reform in the seventies and always
had some controversy about whether, you know, if the if
the president in his judgment doesn't want to spend certain
money that he can accomplish the goal that Congress laid
(08:11):
out in in in a particular federal program. You know,
why should he just spend money for no particular reason. Uh.
If if you know the congressional the legislation has been fulfilled,
but it's never been litigated. Uh that you know, we
could be set for that. Again, it's not it's not right,
as lawyers say, right now, because you can't you can't
(08:34):
challenge a pause or you shouldn't be able to because
that's not a final action.
Speaker 1 (08:39):
Uh.
Speaker 2 (08:39):
And the president does have until the end of the
fiscal year in September to spend the money that that
that Congress has appropriated. That's when an Empowerment Act challenge
if if he decides not to spend it all when
that could be had, and it's and it's an interesting
point you I guess of course, would be looking at, uh,
has the President fulfilled his duty under the take care clause?
(09:04):
The duty to take care that the laws be faithfully executed?
You know? Does that mean he has to spend all
the money that Congress has appropriated if if the laws
are being faithfully executed. So that's fleshing out a little
bit where where the debate might be if it comes
to it.
Speaker 1 (09:25):
Now do you think this would make its way to
the Supreme Court? I mean we're going to see you know,
probably a lot of lawsuits. You know, New York City
is feral a federal lawsuit against the Trump administration for
eighty million dollars that they say FEMA funding should be
going to them, that is not going to them. You know,
does the city have standing in that? Like? Where do
you think this all?
Speaker 2 (09:46):
That's a different sort of different there. Yeah. Eric Adams
the mayor, and we can get into his particular foibles
in a moment, but he is in alignment with the
Trump administration in that they're trying to stop or clawback
monies that were going to migrant asylum programs and housing
(10:07):
and things like that under the Biden administration and arguing
that this is an improper use of FEMA funds. And
I think they're probably right. They have a very strong
case about what natural disaster funds are supposed to be
going to. But that's a separate sort of issue. I think,
you know, would be recipients of contracts that all of
(10:30):
a sudden are rescinded may have some sort of right
if they have reliance costs. You know, they were assured
that they got this contract and so they went ahead
and built out some infrastructure, what have you, and then
then that all got canceled. Potentially at least American recipients
might have some sort of standing there. We're not talking
(10:51):
about international development work. But beyond that, states have to
be harmed. As states. They can't be suing on behalf
of their of the on behalf of their citizens. Generally,
courts frowned on that. So if there are grants going
to states in some way that are now being stopped,
(11:12):
some states might want to sue over those. There are
separate lawsuits that certainly will put the federal and state
governments in against each other in court over sanctuary cities,
For example, whether state and local officials have to cooperate
and to what extent with ICE. They're not allowed to
(11:33):
interfere with ICE at least even if they're not required
to cooperate affirmatively. But what does interfere mean? So those
sorts of suits are certainly headed our way. The Supreme
Court inevitably every presidential term decides some conflicts about how
our challenges to how the executive branch implements the law.
(11:56):
I think the issue that's on the fact is tracked
to the Supreme Court is probably birthright citizenship. Not this term,
but I can imagine next term, So by the summer
of twenty twenty six, we'll have a ruling as to
whether the Trump administration's executive order that restricts citizenship only
(12:17):
to kids of citizens and permanent residents, whether that is lawful.
And here's a little preview of something that I've been
thinking in this vein. It could be that the media
and Justice, as Chief Justice Roberts and Brett Kavanaugh might say, well,
the Constitution isn't clear here and none of our precedents
(12:40):
provide a rule for decision, Which is true, But to
change so many decades of established practice it would require
an Act of Congress rather than a mere executive action.
That could be the middle way. They decide that we've got.
Speaker 1 (12:53):
More with Ilia in just a moment of first after
more than a year of war, terror in pain in Israel.
All of Israel is brokenhearted after learning of the tragic
deaths of the Beva's children who were held hostage in Gaza,
and so many are still herding throughout the Holy Land,
where the need for aid continues to grow. The International
Fellowship of Christians and Jews has supported and continues to
(13:15):
support the families of hostages and other victims of the
October seventh terror attacks. With your help, IFCJ has provided
financial and emotional help to hostages in their families and
to those healing and rebuilding. They're broken homes and broken bodies,
but the real work is just beginning. Your gift will
help provide critically needed support to families in Israel whose
(13:36):
lives continue to be destroyed by terror and uncertainty as
Israel remains surrounded by enemies. Give a gift to bless
Israel and her people by visiting SUPPORTIFCJ dot org. That's
one word, support IFCJ dot org or call eight eight
eight for eight eight IFCJ. That's eight eight eight for
eight IFCJ. Regarding the sanctuary cities, I guess who was
(14:04):
standing in that? You know, where does that go? You know,
what are your thoughts on that?
Speaker 2 (14:10):
If the federal government tries to hold back or not award, say,
law enforcement funds, because state law enforcement isn't cooperating with ice,
there'll be the lawsuit over whether that restriction is germane,
whether it's constitutional. Have you already agreed to it? If
(14:32):
existing funds, existing contracts, or grants are in jeopardy, then
there's a question of whether that's the federal government commendeering
state officials. That is, under our constitution, federal authorities can't
tell state authorities what to do. They can't even tell
them to enforce federal law, but they the state authorities
can't interfere with federal enforcement of federal law. So, whether
(14:55):
that's with respect to marijuana, which is still illegal at
the federal level but legal in many many states, whether
it's with immigration enforcement, that's where the clash is. The
courts of Hell that states can have sanctuary policies, but
at what point does non cooperation become interference, you know, and.
Speaker 1 (15:17):
Of course in a lawsuits over firing federal employees, there
are a lot of protections there in some instances, I
know President Trump has done things before, like you know
a Schedule F reclassifying federals.
Speaker 2 (15:30):
Between them is yeah, there's a difference between civil servant
personnel changes where Schedule F comes in trying to designate
more people as political appointees or are having responsibility for
policy setting, in which case they have to be goes
(15:51):
the argument they have to be more accountable to the president, removable, replaceable,
et cetera. Whether certain civil service protections orublic sector union
contracts are unconstitutional because they hamstrung the executive and the
executive branch can't fulfill its duties and exercise its constitutional authority.
(16:15):
These are open questions. And then at the higher levels,
with say the head of the National Labor Relations Board
or the Federal Election Commission, all of these alphabet so
called independent agencies, removal authority over those Senate confirmed officials.
That is an issue that's definitely going to go to
(16:36):
the Supreme Court as well. The Acting Solicitor General of
the government's head lawyer before the Supreme Court has notified
the Senate, for example, that it will no longer be
defending the constitutionality or the removal protections for those officers,
and is questioning a ninety year old Supreme Court president
(16:59):
called Humphrey's Executor, which carved out from the normal rule
that the president can replace officers of the United States
because that's how constitutional accountability in the executive branch worked.
So that case, Humphrey's Executor said, well, certain officers exercise
(17:19):
sometimes quasi legislative, quasi judicial functions. So the Federal Trade
Commission adjudicates disputes of certain kinds or it promulgates regulations,
which is kind of like a legislative function. That's why
its leaders have certain protections. The Court found in that case.
I think the Humphrey's Executor is right for reconsideration, and
(17:42):
I think a majority of the current membership of the
Supreme Court is likely to side with the Trump administration
in enforcing more accountability. You can see that from a
handful of cases that have been decided in the last
ten to fifteen years.
Speaker 1 (17:58):
I mean, I do think the one, well, one big
benefit of President Trump is we've all learned a lot
more about how government works. It's all got a lot
more attention than it has in you know, administrations prior.
When it comes to reforming government. We're certainly seeing a
more muscular government from President Trump than you know, maybe
(18:20):
some Republicans in the past. When it comes to reforming government,
what can President Trump do on his own, you know, latterly,
and then what does he need Congress to do?
Speaker 2 (18:32):
The executive can't close the Department of Education, say or USAID.
They were created by Congress. It would take an Act
of Congress to shut them down. The executive could reorganize
certain functions like it could say, okay, the Office of
Civil Rights at Education, that's duplicative of what the Justice
(18:54):
Department is or should be doing. So we'll move all
of those functions into DOJ student loan administration. That's not
an educational function, that's a you know, economic financial piece.
What We're going to send that to the Treasury Department
to operate things like that, or you know, certain we're
(19:17):
going to cancel certain kinds of contracts that violate that
that implement DEI because we consider de I to be unconstitutional,
violation of civil rights, equal protection, things like that. But
it can't shut the entire structure down and just send
the funds back as block grants to the states. That
would take an Act of Congress.
Speaker 1 (19:38):
But could you roll us AID into the State Department,
for instance.
Speaker 2 (19:43):
I think most of its functions could be yes, And
I think that's what they're trying to do.
Speaker 1 (19:46):
And would that be constitutional? Then?
Speaker 2 (19:48):
I think so?
Speaker 1 (19:49):
I think.
Speaker 2 (19:50):
So, you know, there's very you know, Congress created the
agency and it specified certain things. So I haven't looked
at USA I d's organic statute, but you know, whatever
Congress specified has to be has to be done. And
and back to the Empownment Act, what you know what
what money it appropriated to implement certain programs. That money,
(20:12):
you know, if you take those functions into the State Department,
that money would go there and then have to be
spent or again you have this fight over whether the
UH the UH the law is being executed more cheaply
or what have you. So it's you know, there's there's
certainly a great area. It's sometimes it's hard to draw
the line between reorganization within the executive branch and dissolving
(20:37):
or or disabling UH an agency that that Congress created
and wants to exist. But that's the general outline.
Speaker 1 (20:46):
Yeah, and I know the Clinton administration also considered doing
that as well, rolling USA Idea into State Department. I
want to get to your book because that's really interesting
as well. Your book, Lawless, The Miseducation of America's Elite.
You talk about how in the past, you know, Columbia
Law School, for instance, produced leaders like Franklin Roosevelt or
(21:06):
Ruth Bader Ginsburg. Now it produces windows smashing activists. How
did that happen? Yeah? How did that happen?
Speaker 2 (21:16):
Yeah? So the book's called Lawless, The Miseducation of America's Elites.
It came out about a month ago, just over a
month ago, from HarperCollins Broadside Imprint, and it builds on
my so called lived experience at Georgetown Law three years
ago where I was investigated for a tweet and kind.
Speaker 1 (21:36):
Of a tweet no less a tweet, yeah, a tweet, yeah, tweet.
Speaker 2 (21:39):
Yeah. I got to see the kind of the dirty
underbelly of the failures of ideology, bureaucracy, and leadership to wit.
When I was in law school twenty years ago. You know,
we had debates between liberals and conservas, left and right, originalism,
(22:01):
living constitutionalism, what have you. But we took the law
or the legitimacy of American institutions as a given. Now,
there were these theories that considered legal institutions to be
illegitimate because hopelessly imbued with racism, sexism, you know, heteronormativity,
(22:22):
all of these different things. They have to be torn
down and rebuilt according to a different privileged hierarchy. Your
rights and freedoms depend on whether you're part of a
class deemed oppressor or oppressed, et cetera. Critical theory, critical
legal studies. We had thought that that was something from
the eighties and early nineties that had been relegated to
some you know, dusty corner of a philosophy or sociology
(22:46):
department or something. But the crits came roaring back in
the last in the last decade, and there's a lot
of that kind of undermining of respect for the rule
of law taught by law schools themselves, which is a
a big problem. Then you have the bureaucracy, which might
even be a bigger problem than the shift from in
(23:07):
the faculty, from education to that kind of activism that
I described. And it's remarkable how much non teaching staff
or administrators have grown relative to faculty, relative to student bodies.
All schools now have more non teaching staff than faculty,
(23:28):
and you know, that's part of why tuition is skyrocketed.
It's also part of why we've had, especially in the
last decade, especially in the last five years, the growth
of DEI because bureaucrats incentive always, whether in the public sector,
private sector, nonprofit, what have you, is to justify and
(23:49):
grow their authority and budget. So once you started having
these offices that were looking to inculcate students in a
culture of viewing issues through lenses of race and sex
and identity and what have you, they needed to manufacture
outrage and have things to investigate and adjudicate and and punish,
(24:13):
and and away we went. Uh So, so oftentimes, the
the bureaucracy, and especially now the DEI bureaucracy, is the
tail that wags the dog of the of the whole
educational project. Because this gets to the third major failure.
Uh Deans and presidents and provosts are not themselves woke radicals,
(24:37):
but they're spinalless cowards, and they counts how toward this
illiberal mob, whether coming from the students buttressed by the
the structures and dynamics put in place by the by
the non teaching staff, the bureaucrats. Uh and uh, you
know their careers, bureaucrats, and they're trying to climb the
greasy pool. And uh they they faci illitate the takeover,
(25:02):
this illiberal takeover. And I want to be clear, and
I'll end with this and let you ask the next
thing that this is not just the latest conservative lament
about decades of faculty bias or the hippies taking over
the faculty lounge. In fact, those hippies, the Berkeley free
speech movement of the nineteen sixties, would now be considered
(25:25):
retrograde white supremacists by these woke radicals. So all of
these failures combined is what's led to a very unhealthy
culture in higher education generally in law schools specifically. And
I focus on law schools not just because I'm a lawyer,
but because regardless of what happens in English or sociology departments,
that's unfortunate when they go crazy. Law schools graduate our
(25:50):
next generation of gatekeepers of our political and legal institutions.
Literally the foundations on which American prosperity and liberty rests
if that goes all a kilter.
Speaker 1 (26:03):
Well, and we've already seen how some of that has
played out with you know, some of the what Trump
was facing in the courts, particularly in d C. And
in Georgia, and also you know what a lot of
these January six ers faced and sort of the unfair
treatment that they received in the courts as well. So,
I mean, it is carried that these are the people
(26:24):
that are going to be shaping the law for you know,
for you know, years and years and years to come,
decades to come. So what was the tweet that was
subject to this four month investigation.
Speaker 2 (26:39):
So I had been at CATO, the Cato Institute for
nearly fifteen years and got an opportunity to take my
career in a different direction to become the executive director
of Georgetown Center for the Constitution. And the few days
before I was due to start that job was when
Justice Bryer's retirement announcement came. And so I was doing
(27:01):
a lot of media that day in January of twenty
twenty two because my previous book, Supreme Disorder, Judicial Nominations
in the Politics of America's highest Court was right on point,
and I was getting more and more upset with Joe Biden,
huewing to his campaign promise from twenty twenty to appoint
(27:24):
a black woman to the Supreme Court. Nothing wrong with
appointing a black woman, of course, but I wouldn't restrict
my candidate pool, whether for janitor, let alone justice by
race and sex. And so I late at night after
doom scrolling Twitter. Not a best practice I've done, offered up.
I offered up the hot take that if I were Biden,
(27:45):
or if I were a Democratic president, I would pick
the chief Judge of the d C Circuit, the second
most powerful court in the land, a man by the
name of Sri Srinovasan happens to also be an Indian
American immigrant. So check some demographic boxes, but alas not
the right ones under what I called today's privileged hierarchy
or hierarchy of intersectionality. And so, given Twitter's character limitation,
(28:10):
I said, if Biden maintains his promise, we will end
up with a quote lesser black woman. And it's those
three words, in artfully phrased, I clearly met less qualified
than the candidate that I was proposing as the best
pick that got me in trouble over, I hit send
on that went to bed, and overnight my ideological enemies
(28:33):
went for my head, and that led to what I
call four days of hell, as it wasn't clear whether
i'd be fired right there, then four months of purgatory
as I was onboarded but immediately suspended pending investigation into
whether I violated harassment and anti discrimination policies. And the
longer that so called investigation went, the more it seemed
(28:54):
like it was a farce. And when I finally was
reinstated on the technicality that I wasn't yet an employee
when I tweeted, so the policies didn't apply. This little
jurisdictional knit that some high powered lawyer found once the
students were off campus so they couldn't protest. But then
I got the fine print, this report from the Office
(29:17):
of Institutional Equity Diversity an affirmative action idea, and that
made clear that the next time that I offended someone
or otherwise transgressed progressive orthodoxy, I'd be creating a hostile
educational environment. And I realized I could not do the
job I was hired to do, so I had to quit,
(29:37):
and I did what lawyers call a noisy exit, publishing
my resignation letter in the Wall Street Journal, as one does,
and then announcing my move to the Manhattan Institute on
Fox News, and away we went after that. And I've
been trying to use this platform that I've been given
to shine a light on the rock in academia.
Speaker 1 (29:57):
Well, I respect the noisy exit in that in that Redguard.
You know, we're saying, d I die. To a certain degree,
we've seen a lot of companies jump ship in recent months,
you know, particularly after President Trump's reelection as well as
the actions that he has taken with his administration. Are
(30:17):
we seeing that on some of these campuses? And you
know what do you think that impact will be at
you know, higher education and at some of these universities
across the country.
Speaker 2 (30:28):
In society more broadly, I'm optimistic. There's definitely been uh
you know what people call it, talk about a vibe
shift which was instantiated in the November election, But just
more broadly, whether in private enterprise and the culture, it
feels like a like a fever has broken in academia.
(30:49):
I'm not quite sure that the jury is still out.
There's not quite the same feedback mechanism. There isn't a
critical mass to push back on the excesses of this
let wing illiberalism. And there are so many vested stakeholders.
You know, the National Association of Higher Education Diversity Officers,
(31:10):
if you can believe that's an organization, has ten thousand members.
They're not going to be like, Okay, well, I guess
I'll learn to code now. You know, they're gonna they're
gonna resist. And and just like Brown v. Board didn't
overnight mean desegregation in the Jim Crow South, there is
massive resistance both to the Supreme Court's order not to
(31:31):
use racial preferences in admissions and to Trump's dei orders.
We'll see if the Education and Justice departments keep their
foot on the gas in these investigations, threatening to withhold
federal funding, research funding, and otherwise from recalcistron schools. There's
(31:52):
there's quite a battle that that's being set up. So
it's uh, you know, I'm I'm less pessimistic than than
I was when I left Georgetown nearly three years ago,
but the battle's been Joineday.
Speaker 1 (32:04):
What can can the Trump administration do anything to address
this miseducation?
Speaker 2 (32:10):
You know, they're trying. They're trying, I mean they're there.
Speaker 1 (32:12):
We would you get into those.
Speaker 2 (32:14):
Existing that there are existing strings on federal funds, which
is why the Education Department two weeks ago launch investigations
of half a dozen schools for anti semitism and free
speech violations and all these things like that. So yeah,
if you take federal money, there's there's strings attached to
(32:37):
everything from accounting standards to non discrimination rules to free
speech protections. And so hopefully something comes of it, because
the by administration was kind of shamed into opening some
investigations after October seventh, but then they quickly closed them
with less than a slap on the wrist at the
(33:00):
end of the of the Biden tern So hopefully there
is going to be teeth, investigatory oversight, teeth for these
executive actions. But of course you live by the executive action,
you died by the executive action, and hopefully some of
this will get codified as legislation.
Speaker 1 (33:18):
We've got to take a quick commercial break. More with
Ilia on the other side, Well, we also saw, you know,
alumni of some of these universities, particularly when we saw
the anti semitism happening across the country. You know, say hey, look,
you're not going to give you x amount. You know,
like these really really rich people being like, oh, we're
(33:39):
going to withhold funds, and so that led to you know,
some turnover with these university presidents. Is that sort of
you know, another plan of action that you know, people
should start taking more and kind of threatening their own
personal funding of some of these universities. Oh.
Speaker 2 (33:56):
Absolutely, Look, it's going to take in all of the
above push State legislators and governors can and are in
some cases acting to abolished de I bureaucracies, get rid
of diversity statement litmus tests for hiring, other kinds of
(34:17):
preferences for admissions. It's going to take private employers to
say that, look, we can't hire from your school because
there's no guarantee of quality there, and the kids show
up entitled, and you know, we don't want to deal
with that, let alone being a Hamas supporter or yelling
(34:38):
at federal judges we hope your daughters get raped and
things like this that has happened in the last few years.
It takes donors and trustees and alumni and universities, even
rich ones like Harvard with a sixty billion dollar endowment notices.
When there's a five percent decline either in overall amount
(35:01):
of giving or in the rate of giving the percentage
of alumni that donate, that's a that's a warning bell
for them. And so it's not you don't have to
be a multi millionaire donor to get the attention of
your alma mater. You know, get together with a bunch
of friends. Then there's there's free speech coalitions. There's all
sorts of kind of alumni groups that are have been
(35:23):
created in various schools, especially at the so called elite
ones where these sorts of problems are the most acute,
and so you can you can have an impact that way.
And alternate institutions. The University of Austin, for example, just
opened its doors to students this year, the first cohort
of I think ninety freshmen. I spoke there about a
(35:44):
month ago. It's a great example of a kind of
parallel institution. Some centers and institutes are being created within
existing schools. Arizona State unc University of Florida, Florida State.
Lots of different schools now have centers for excellence or
Civics or classics. All of these kinds of teachings that's
(36:07):
supposed to be the liberal arts mission of the broader university,
but has been forced into these college within a college
sort of thing. So yeah, we're in a time of flux,
and some institutions, no doubt, will fail or lose influence
and even more public confidence. Some might be might be righted.
Speaker 1 (36:31):
And we've seen judges too, you know, say, hey, look
like Judge James Hoe saying I'm not going to hire
you know, law students from Yale due to some of
this woke stuff. And you know, some judges stepping up
and kind of.
Speaker 2 (36:42):
And that's gotten Yale's attention. The dean there recognizes that
Yale has gotten some black eyes, and purely out of
personal self interest, because she, Heather Durkin, wants to be
the president of an Ivy League school at some point,
and she realizes that if her reign, her tenure at
Yale Law is seen as dysfunctional, that's not going to happen.
(37:04):
So yes, she's the boycott the publicity from these various scandals.
She's reassigned bureaucrats. She's hired a senior professor, Keith Whittington,
from Princeton and given him a bunch of money to
do civil discourse stuff. Hired a junior professor who had
clerked for Alito. So some of you know, more savvy
(37:24):
educational leaders I think can get the message from a
combination of alumni giving bad publicity. Yeah, judicial employer pressure,
all these different things.
Speaker 1 (37:37):
Is there anything else you'd like to get across about
the book?
Speaker 2 (37:40):
Before we go? I published for the first time anywhere
that report that I got from Georgetown's DEI office. And
it's funny the publisher, my publisher, you know, you go
through a legal review, of course, and they had no
problem with you know, the choice words that I had
for Georgetown and dean and administrators and what have you.
(38:02):
But they said, look, that report technically Georgetown might have
a copyright on it, and so we need to transform
the work from an intellectual property perspective. So they had
me put in some snide comments every couple of paragraphs.
So anyway, I'll leave that to your listeners to uh
to buy it on Kindle or audible or have the
(38:24):
hardcover book itself.
Speaker 1 (38:26):
That's a good tease, always going to leave everyone with
the teas. Elias Shapiro, really appreciate your time. Really interesting conversation.
I appreciate it so much, so thank you, thank you.
Speaker 2 (38:37):
And you know, Lisa, this this administration that Trump too,
is so much better lawyered than the last one was
so all of these things and you know, the shock
in awe and they really used their their transition time well,
and the lawyers are ready. So I think most of
this stuff that you know, it's hard to separate the
wheat from the chaff sometimes, but most of this stuff
(39:00):
I think we'll get upheld in court.
Speaker 1 (39:03):
Well, I'm actually glad you mentioned that because that is
one of the questions I was going to ask you
that I forgot too. So you're helping me cover all
the ground that I wanted to cover. So I wanted
to ask you about how his legal team is doing.
So I'm glad you got that in there. Thank you
so much. I really appreciate it. My pleasure was to
take care Itzilias Shapiro. Appreciate him for taking the time.
Appreciate you guys at home for listening every Tuesday and Thursday,
(39:26):
but of course you can listen throughout the week until
next time.
Host
Lisa Boothe
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