Federal criminalization and the House Judiciary Committee
In a February 2015 episode, Brian Walsh told Bob Zadek that a number of organizations—including the Heritage Foundation, where Walsh had worked, and the National Association of Criminal Defense Lawyers—had been working for about a dozen years on Capitol Hill to get Congress to act in a more principled and circumspect manner when it creates new criminal laws. Walsh described the positive development as a rules change adopted by the new House of Representatives, one his coalition had proposed about eight years earlier, making it more likely that the House Judiciary Committee would oversee all new criminalization. Previously, he said, new and modified criminal laws in almost every bill had been floating through every committee, making oversight by a single committee very difficult. “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015)
Walsh framed the problem in sweeping terms: federal criminal law is out of control and has exploded over the past 40 to 50 years in particular, and Congress is well past time when it should rein it in and make it more understandable for the average person. Zadek opened the segment by noting that the federal government now has not one but hundreds of various federal police forces, even though the founders envisioned a federal government with no police force whatsoever, and asked how we got here and how we get out. “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015)
Judicial deference and judicial engagement
In a May 2016 episode, Ilya Shapiro described the judiciary as one of three supposedly co-equal branches, supposed to check the excesses of the others, with federal judges holding life tenure once confirmed and reviewing cases brought before them rather than reaching out to declare a law illegal or unconstitutional or to change precedent. He said it is very hard to have a litmus test because a judge or candidate who says ahead of time how he would rule on a case would have to be recused if that case came up, since he would not be going into it with an open mind. Ilya Shapiro on the Supreme Court in the Balance (2016)
Shapiro traced the doctrine to the New Deal, which he said is where legal historians trace the change to 1937. Before then, he said, the court thought its job was to decide cases without applying a thumb to the scale on either side, though he noted it did not always get it right, citing Dred Scott v. Sandford and Plessy v. Ferguson. After the late 1930s, the court began allowing the federal government under President Roosevelt to impose regulations and national programs in ways it had not before, and it bifurcated rights so that certain rights were treated as more fundamental than others. The result, he said, was a presumption of constitutionality: between 1937 and 1995, no piece of federal legislation was struck down by the Supreme Court as exceeding the enumerated powers of the Constitution, while states could legislate in ways that infringed on property rights, the right to earn a living, and occupational licensing, so long as the legislation did not touch speech or discriminate based on race or certain other protected things. Ilya Shapiro on the Supreme Court in the Balance (2016)
Shapiro argued that the battle between activism and restraint is a faux battle: activism these days really just means that the person criticizing the judge or decision does not like that judge or decision, and nobody on either side says judges should never strike down laws. What judges should be doing, he said, is being engaged—scrutinizing closely what the other branches are doing, striking down what goes beyond the statutory text or constitutional provision, and upholding what does not. He named Robert Bork, Antonin Scalia, and John Roberts as judges of the school that judges should defer as much as possible, until the breaking point, to Congress or executive agencies, a conservative judicial passivism he called the opposite of activism and said neither one is good. Ilya Shapiro on the Supreme Court in the Balance (2016)
Zadek put the question in terms of the confirmation process: a nominee who said his job was to make sure the Senate and the House do not overstep their bounds, or that part of his mission was to restrain presidential power, would hardly be confirmed or nominated, so the process itself mitigates against an engaged judiciary. Shapiro responded that the real issue is that constitutional law has deviated so much from the actual Constitution, so that politicians responding to incentives treat judicial confirmation battles like examining candidates for political office rather than judicial office, and that this constitutional corruption has led to ideological litmus tests and the poisoning of the process. He noted that the first confirmation hearings for a Supreme Court justice were in 1916, because the nominee was Jewish—anti-Semitism against Louis Brandeis—that the first nominee to testify at his own confirmation hearing was Byron White, nominated by President Kennedy in 1962, and that the poisoned, politicized, brutal, long slog began in the 1980s with Robert Bork, when Ted Kennedy attacked Bork on the Senate floor. Ilya Shapiro on the Supreme Court in the Balance (2016)
Shapiro also described the areas of legal theory a president’s appointees implicate: approach to the First Amendment, the scope of congressional power under the Commerce Clause, and when courts should limit executive discretion. He cited the first Obamacare case, NFIB v. Sebelius, and the question whether it goes beyond Congress’s authority under the Constitution to require people to buy a commercial product, with the operative clause being the congressional power under Article I, Section 8 to regulate interstate commerce. He also cited a then-pending Supreme Court lawsuit over President Obama’s executive actions on immigration, examining whether the executive branch went beyond the immigration laws and, if it fit within the law, whether Congress delegated too much legislative power to the executive. Ilya Shapiro on the Supreme Court in the Balance (2016)
Obstruction of Congress and the judiciary
In a December 2019 episode, Gene Healy told Zadek that the second article of impeachment the House had just passed against Trump was obstruction of Congress, based on an article of impeachment the House Judiciary Committee passed against Nixon in 1974. Healy said the third article against Nixon was also obstruction of Congress, resting on the idea that in an impeachment inquiry the House’s entitlement to information from the president is at its height and the president cannot just decide for himself what he will provide. Healy called it certainly the most controversial of the three articles the Judiciary Committee passed against Nixon, getting the fewest votes and only one Republican vote. Which Impeachment Movie Are You Watching? (2019)
Healy said Trump’s behavior had been more sweeping and categorical than Nixon’s: Nixon partially complied, released edited transcripts of the tapes Congress wanted, and tried to do as little as possible, whereas Trump from the very beginning of the impeachment inquiries said he thought the House was biased and the inquiry illegitimate and that he was not giving anything. Healy said the Trump article based on obstruction of Congress is pretty well-grounded, while allowing that your mileage may vary. Which Impeachment Movie Are You Watching? (2019)
Across episodes: the judiciary as a check
The February 2015 and May 2016 episodes both treat the judiciary as an institution whose vigor in checking the other branches is the central question, but they approach it from different directions: Walsh’s episode concerns the House Judiciary Committee’s oversight of new criminal laws, while Shapiro’s concerns the Supreme Court’s posture toward Congress and the executive and the confirmation process that produces its members. The December 2019 episode adds a third setting, the House Judiciary Committee’s role in impeaching Nixon and Trump, with Healy comparing the two presidents’ cooperation. The excerpts show no development of a single argument across the three; each episode takes up the judiciary in a different institutional context.
What the sources do not cover
The excerpts do not state the state or city in which any proceeding occurred, the names of the bills or rules changes beyond the House rules change Walsh describes, or the full holdings of the cases named. Several passages break off mid-sentence—Walsh’s segment ends after Zadek’s question about inherently wrongful conduct versus regulatory crimes, and Shapiro’s ends mid-word—so the arguments made after those points are not available here. The excerpts also do not give the outcome of the immigration lawsuit Shapiro mentions or the Senate’s disposition of the impeachment articles Healy discusses.