Hudson Institute - Brigham McCown - Chevron SCOTUS Decision

Episode Transcript

(00:08):
Seven oh six here at fifty fiveKRCD Talk Station. A very happy Tuesday
too. Always a good day totalk to Brigham and Gown from the Hudson
Institute. And today Brigham is backin studio here at fifty five kr CD
Talk Station. Brigham, it's apleasure to have you here and I always
enjoy our conversations. Thanks Brian.And he has the resume that includes federal
regulators. So you understand the AdministrativeProcedures Act, sadly I do. Well.

(00:33):
That'll come into play here when wetalk about the Supreme Courts throwing finally
the final nail on the coffin onthe Chevron decision, which required courts to
defer to the behind the scenes administrativeagencies interpretation of ambiguously written laws. And
therein I emphasize that because that's theproblem. Congress writs a bunch of ambiguous

(00:53):
laws and then leaves it to theguys in the back room to craft a
bunch of rules and regulations go alongwith it. Up until yesterday, courts
were required to defer to those agencies, regardless of how wild and crazy their
interpretation is. So before we diveinto the details on that and how it
came to be. I understand theHudson Institute has an invitation out or the

(01:14):
speaker, Mike Johnson is going tobe speaking on the threat to US led
world order. That's right, He'llbe there Monday afternoon for a keynote address.
And this leads up to the NATOconference coming up next week in Washington,
d C. Spoiler alert. Ohwow, Well, you know real
quick here and I don't know whereyou are on that, but I talk
with Daniel Davis do the Deep Divewith Daniel Davis every Tuesday at eight thirty,

(01:38):
and today we're going to be talkingabout, you know, is Zelensky
dragging a distracted America into World Warthree? Talk to him before about this.
The idea of inviting Ukraine into NATO. Mean, that seems to me
to be absolutely crazy and really justa rubber stamp on us moving then into
war with Russia. Well, Ithink Russia does threaten democracy around the world,

(02:00):
but I think we also have toremember that Russia's GDP is equivalent to
Italy. They're no longer the superpowerthat they used to be. And you
know, for Ukrainians, the longerthe war goes on, the worse for
us the longer the war goes on, and or we can help them without

(02:22):
getting into World War three, We'rediminishing Russia's ability to do any further aggression.
But Brian, you know, thereal big issue is Europe are like
the adult kids that have been livingin our basements. Yeah, well past
the time, and they've been spendingon all of their social programs, not
spending on defense exactly. Yeah,during the seventies, the German army was
fantastic. It's an embarrassment today.And so you know what I've been telling

(02:46):
our European friends that are panicking orworried. I said, Look, America
has been defending Europe and getting involvedin European wars for a century. It's
time you guys grow up, andit's time you guys get out of the
basement. We love but when wewant success for you, so you know
what, to get your own acttogether, guys, right, Well,

(03:06):
one of the downsides of all thisthe the the the alignment of the various
you know, global powers seems tohave pushed our worst enemies together. Iran,
North Korea, Russia and China nowseem to be sort of aligning militarily,
You've got North Korea providing weapons anddrones. Iran is providing drones and

(03:27):
weapons systems to you know, obviouslythe terrorists, but also to the Russians
on the front in Ukraine. Sowe're creating this solidified alliance of the worst
actors in the world. And Idon't see that we benefit from that.
But regardless of how you feel aboutRussia and its economy, it's relative strength
to Ukraine or NATO. You're reallylooking at a potential war that is that

(03:51):
that is beyond Russia. And Igo back to inviting Ukraine into NATO.
That doesn't seem to make any sense, since that that goes along with a
defense obligation. We owe defense toour fellow NATO members. It does unless
they strike out Article five or makesomething conditioned upon the conclusion. But to
your point, yeah, the timing'snot right. And I know, of

(04:12):
course, if I were in Ukraine, i'd wanted NATO two. Too bad,
they didn't do it ten fifteen yearsago. Too bad, they gave
up their nukes. Too bad.They trusted Putin. He's not a nice
guy. Look, let's let's behonest. But you know, our hands
are getting somewhat full with China too. But to your point, this administration
has done everything they can to punishour friends and reward our enemies. The

(04:36):
foreign policy, the national security policyof this administration has been abysmal because they
think everyone acts in the best altruistically. Oh, if we just if we
just talked to a pirate, theywon't be a pirate. If we just
talked to the tear If we justgive it Ron five billion dollars when they're

(04:56):
on the ropes, they'll love us. It's not even they're taking advantage of
that naivete. There's no question aboutit. All right, Well, let's
get back on track here with BrigaMcDonald of the Hudson Institute, who was
called in today to talk about theimpact of the Supreme Court overruling this Chevron
doctrine. Now this case and whata bad facts can end up making really

(05:20):
good law. And the facts werereally bad for the fisheries in this particular
case. These poor fishermen, whoare probably struggling to make a buck anyway,
were told by our government that theyhad to pay for the salary of
the federal government monitor on their boat. That guy's only job is to make
sure he's counting the fish, thatthe fishermen haven't exceeded their daily catch,

(05:43):
that they're not bringing in in endangeredspecies. Whatever. But the idea,
it's like me having to pay forthe cop down the street, me personally
having to pay for the policeman todeal with any criminal activity goes on in
my neighborhoods. Where did that rulecome from somebody sphincter, behind the behind
the scenes. Yeah, it camefrom the US Fisheries, from a bureaucrat
buried deep inside a government building inWashington, d C. Who probably has

(06:10):
never been on a fishing boat ora shrimp boat or any other type of
vessel. And that's the problem whenwe have a bureaucracy that has grown exponentially
and is so disconnected. You know, Brian, when I was leading a
federal agency, my first question iswhat real world experience does this person have
that you want to hire. Havethey ever been an industry, have they

(06:30):
ever been you know, fill outthe blank. But yeah, it's even
worse than that. It's like youhave to pay for your own police officer
to stand on your street to makesure you're not speeding when you come home.
Every night, and you have topay for it. It's crazy.
And sometimes the payment of the monitorsexceeded the cost of the entire daily catch,

(06:50):
totally out of control. And that'sbig government saying we can't trust you,
Brian, we can't trust you.Sorry. Well, they can say
they can't trust you, but thenagain, they can also pay for their
own monitors. If it's that bigof a deal and that important, then
it requires an allocation of federal taxdollars being spent to pay the salary for
the person on the boat, offshoringthat expense. Like you said, I'm

(07:12):
beging the cop to monitor my ownactivity. That's just it's against my interests.
And federal agencies do that all thetime whenever they can, especially when
when you're the overseer, you canforce companies to do all sorts of things.
And sometimes I'll say, well,that's not in the regulations, and
like, well, yeah it's not. But do you want to fish today

(07:34):
or not? Right? Well,And there are rules about that have been
passed by Congress involving fish apparently,and it was pursuing it was beneath these
laws. Generally, these rather ambiguouslaws that the behind the scenes fishery folks
decided they were going to force theseboats to pay for the inspectors. That
came out of nowhere, because thatwasn't a specifically pass provision in the world

(08:00):
law. In other words, Iguess Congress could pass the law saying listen,
if you have a fishing boat inyour commercial fisherman, you got to
pay for a monitor. If theysaid that in a law, there may
be some of their tax consequence.There's some of the reason that they could
go to court, but at leastthe provision and the power would have been
specifically identified by Congress. In thiscase, the rule came out of nowhere

(08:20):
and it wasn't connected with anything withinthat particular law. It wasn't and the
federal agency said, well, look, you know we've got to you know,
we feel like we have to dothese monitors. Congress didn't specifically appropriate
money, but you know, weassumed Congress meant they had to be paid
for by somebody, and we're interpretingthat to say, not us, not

(08:41):
coming out of our budget. Wewill just levy a fee, which is
also known as a tax on thefishermen, and we'll get them to pay
for it. But you're right.I mean, look, when we fly,
there's a nine to eleven post nineto eleven fee for security. That's
part of our you know, thetaxes on a plane ticket. But that

(09:03):
is the problem because you know,there is this kind of unwritten rule wink
wink between certain members of Congress andfederal agencies that we know we should write
specific laws, but instead we're goingto give you not a three page law,
We're going to give you a fivehundred and fifty page law with a

(09:24):
lot of loosey goosey language. Andyou know, you guys make the most
of it. It's a scam.That's how this has been happening right well.
And the decision said, no longerare courts required to give deference to
those administrative agencies, those behind thescenes folks creating these laws. There must
be a specific delegation of authority byCongress to engage to enact any specific provision.

(09:52):
Absolutely, and you and I bothknow from law school you don't need
that because there is the rule ofstatutory construction. You look on the face
of the law and say what doesit mean? And if it's ambiguous,
you can go to legislative history tohearing to report committee language. It's not
that hard to figure out what wasreally going on. And the real question

(10:16):
that will now have to be answeredis did Congress explicitly authorize it? Because
if not, then perhaps they can'tdo it any longer, which is a
good thing, and they can't forcethe boats to pay for the inspectors.
That's so say at the Supreme Courtin overruling that prior Chevron deference, spawls
will bring briging mc down from theHudson Institutes back. You can find them

(10:37):
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Eighty seven for the high Then rightnow it's fifty eight. Time for
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King bram On fifty five KR seethe talk station seven twenty one here fifty

(12:50):
five KR CD talk station Brian Thomaswith Brigg mcgawan from the Hudson in Studen
Studio. Spent a lot of timeworking for the administrat didn't you Administrative State?
Didn't you rigor I have and youknow what, I was supposed to
go back and be the associate DeputyAttorney General in sixteen and seventeen, but
decided I'd had enough too much ofWashington, DC. Too much. Well,

(13:15):
Brian, I mean, you know, here's the thing we were talking
about this. I think it isa wonderful public service. As you know.
I've got twenty five plus years inthe Navy as well, active and
reserved, and about five years infederal government service. But it's changed a
lot. And you know, federalagencies used to not be political. We

(13:39):
hired a lot of veterans after theend of World War Two that predominantly made
up federal service. The Chevron case, when it was first decided, right,
was considered too conservative. Oh yeah. The liberals were all been out
of shape when that came down becauseit was the Reagan administratives, administrative state.
We're going to defer to them.Oh my god, the horrors.
Yeah, and those people said,we're here to do a We're here to

(14:00):
carry out the orders of the peopleappointed over us. That's actually in the
military oath that we always say,and that is the job of the career
civil servant is not to have apolitical perspective. They're agnostic. They carry
out the wishes of the President.And you know, when I was there
talking to a lot of these people, I'm like, who do you work
for? They're like, I workfor the American people. I no,
you don't. You work for thesecretary. And by virtue of the secretary

(14:24):
works for the president, or youwork for the Sorry, you work for
me, the administrator, then thesecretary, then the president. You are
part of the executive branch. Youwork for the President of the United States.
And they hated that depending on who'sin power, who's in power there
you go, yeah, well,and then that takes us back to the
way Congress writes these laws. Ifthey want a for example, we all

(14:50):
kind of have the impression right now, correct me if I'm wrong. But
the administrator's state is filled with peoplewho want to control every component and aspect
of our lives. Religion is predominantin the Deep States. So anything they
can do by way of creating arule or regulation involving carbon output or environmentalism,
generally speaking, they're going to finda whole or an ambiguity in the

(15:13):
law and do just that. Sothere's no incentive by people who share that
ideology with the administrative state to maketightly written laws and have limitating language,
knowing full well that the guys inthe back room are on their side.
From that perspective, yeah, Ithink that's largely the case, especially at
certain agencies, EPA probably being thefirst of those. I mean, you

(15:35):
know, we don't have a lotof conservatives that say, I want to
work at the EPA. Now Ishould. I wish we did. But
you know, then there are someagencies, and some of the agencies I
was involved with that were purely safetyagencies. You did have a lot of
good people, but you always hadsomebody pushing an agenda also, And you

(15:56):
know, I think government service,Hey, it's a great deal. You
go down into the parking garage,these federal agencies, BMW's audies, Mercedes,
thirty days paid vacation, all ofyour medical, great retirement plan.
It's not bad. It's not bad, right, Yeah, Well, you
would know you work for it,and people want to stay there. And

(16:19):
I think a lot of the folksthat get attracted to federal service are people
that want to quote, do goodand make the world a better place.
Well, I'd like to believe that'sthe case, but I think it seems
to me more like a left wingtenured teacher job. Once you get in,
they're never going to be able tofire you. And you can accomplish
you know, you're indoctrination from behindthe scenes, comfortably knowing full well that

(16:44):
they're not going to require you todo much work. Yeah, and to
that point, it is almost impossibleto fire a federal employee. And the
last time it was done, I'mgoing to invoke Ronald Reagan, the allers.
Yeah, they all went on strike. He said, well, they're
all fired. And they're like,you can't do that. He goes,
I just did yep, and itworked, and it worked. It has
been done. There's precedent for thatone more bringing mc down from Hudson Institute

(17:07):
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(19:19):
On fifty five KRC, the talkstation seven thirty fifty five krc DE talk
station. No music here. Itis one more here with bringing m Galn
from the Hudson Institute, we weretalking about the Supreme Court cases. We
dealt with the case that overruled theold Chevron deference doctrine. That was good

(19:42):
news for us. Also, youwanted to talk about Ohio versus EPA.
This is the dumplow pollutants into mystate law that they had on the books
or reg Yeah. The the EPAcalls it the good Neighbor regulation. I
call it the ozone particulate to nowhererule. And you know, we Brian,

(20:07):
we have the cleanest air on record. Yeah, and China doesn't.
Yet. We all live in thesame globes. Whatever China has blows in
our direction at some point. Sothis all is an exercise in futility.
It is just like trying to cutour carbon and greenhouse gas emissions by ourselves.
Yeah, we know that. Youknow, the US and Europe combined

(20:27):
amid the developed world em it's lessthan China or India. Uh, and
it's getting worse. So Ohio versuse PA was another example of a federal
agency overreach and Ohio, the OhioAttorney General, Indiana Attorney General, West

(20:48):
Virginia, Virginia, and a fewothers sued on the rule that said,
hey, Congress did not authorize this. Uh, you know, there's a
there's a theme here along the samelines. What we're just talking about is
a theme. And there are awhole host of cases that have come out
this term. And the Supreme Courtthat said, well, wait a minute,
and thank goodness, and you know, the Court shouldn't have to play

(21:10):
referee, but when people get outof control, they have to. They
have to step in because that's oursystem of checks and balances. And in
this the Supreme Court said, notso fast. We're not sure that Congress
has grant you the authority to makethese rules that go beyond the state implementation
plans for reducing pollutants. So we'regoing to kick this back to the lower

(21:33):
courts with constructions, with instructions,thank you. So we had that,
you know, we had a theLNG pause, which some call a man
export pause, was just paused.Yeah, Executive pen Biden just out of
nowhere says we're just stopping new LNGexports. And despite of the fact the

(21:56):
world has its hands out looking formore liquid natural gas, and they're going
to an environmental review which is goingto take more than a year. Yeah,
and you mentioned this, I thinklat black flash our right, And
how you know, the Natural GasAct is quite clear. It says that
EPA shall I'm sorry, DOE shallapprove these permits. Well, the funny
thing is this has already been studyingtwenty fifteen and twenty sixteen the Department of

(22:18):
Energy and their technical labs, theDOE labs came out and said, oh,
yeah, you know, exporting LNG, even if it's across the ocean,
that's far better for the planet thanburning other things, right, And
the administration said, well, look, this is not going to stop anything
that's currently in the works. Andyou know, it was five years ago.

(22:40):
Except what they forgot to tell everybody. What they still haven't told people,
according to my sources, is DOEdid look at this in the last
two years and the answer wasn't tothe liking, and they said, go
back and try again. Uh,they didn't get the result they wanted.
No, And the LNG pause cameon the heat of the last cop Environmental

(23:02):
conference. And so look, it'sthe left is upset that American energy is
being provided to our allies and friendsaround the world and superb politics. They'd
rather come from the Russians and theIranians perhaps, Yeah, the Iranians and

(23:26):
share the largest natural gas deposits alongwith the Kataris and so yeah, and
both are making plans to ship more. If you ban American lergy exports,
it's not like the world's going togo Okay, I guess we can't get
that. I'll have a solar panelplease. Yeah, that doesn't happen.

(23:47):
No, They're going to either revertto whatever they can come up with,
or they're going to buy it fromsomebody else. And that's what typically happens.
And look eve in spite of allthe sanctions in quote unquote bands on
dealing with Russian oil and patroleum,they're selling more now than they ever have
anyhow. And China is busily buyingup all the hole in the world and
putting it out into the belching itout into the global environment, negating anything

(24:11):
that you and I are doing.We're banging our head against the wall.
Bring mcgalland Hudson Institute find on myline at Hudson dot org. It's always
a pleasure to have in you onand always even more pleasureable to have you
in studio break. I'll look forwardto talking with you again real soon.
Thanks Brian, happy forth, Thanksto you as well. Coming up,
Scott scar the host of Deprogramming withGrace's Dad podcast, sorry about a terrible

(24:33):
medical malpractice situation involving his daughter.We'll get to that coming up next after
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