Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Aaron Ross Powell, editor of Libertarianism.org and a research fellow here at the Cato Institute. And I'm Trevor Burrus, a research fellow at the Cato Institute Center for Constitutional Studies. Our guest today is Timothy Sandifer. He's principal attorney at the Pacific Legal Foundation and heads the Foundation's Economic Liberty Project. He's the author of, among many books, The Right to Earn a Living, published by the Cato Institute. Is there a right to earn a living? I mean, we look at the Constitution and it mentions various rights that we're all familiar with, free speech and religion and so on and so forth, but we don't see the right to earn a living mentioned anywhere in it. That's true, but the Constitution protects the right to liberty and liberty, of course, is a very broad concept. It includes all sorts of freedoms and, among other things, it includes the right to use your skills in providing for yourself and for your family and earning a living, of course, is one of the rights that under the American and English common law traditions has been protected for centuries. The founding fathers were very familiar with legal precedents from British history that protected the right to earn a living. And, of course, another phrase in the Constitution, the privileges and immunities clause of both the Constitution itself and of the 14th Amendment, preserve the freedom to earn a living. So, yes, the right to earn a living is not just a constitutional right, but Justice William Douglas once called it the most precious liberty that man possesses. Well, this clearly doesn't mean that I can sell drugs or prostitution. It's not really describing that. It's not an absolute right. It just means that you have some protection from government encroaching on some things, but not everything. Well, I would dispute that it doesn't protect your right to sell drugs, but it protects your right traditionally. The right to earn a living has been held to protect your right to trade fairly for others consensually for what they're willing to pay you in exchange for what you're willing to sell, subject to regulations that are designed to protect the public health, safety, and welfare. And so you can't sell adulterated products with a fraudulent label, for example, or you can't sell dangerous products without warning people of it. You can't sell stolen items, things like that. But it does mean that you have the right to trade your labor to an employer or to make products and sell the fruits of your labor and keep the earnings that you make without unreasonable interference from the state. This right in my book, I go back in the common law history to really Shakespeare's day. The 17th century was really the time when this right really came to be articulated most explicitly in the English common law system. And what the common law judges, particularly Lord Edward Cook, who became Chief Justice under King James I, what Lord Cook and his colleagues were articulating was the right to be free from royal monopolies or from the interference of trade guilds that wouldn't allow you to practice a business without permission from that guild. So, for example, one of my favorite cases is the case of the upholsterers in which a man tried to practice a trade of upholstery without having the permission of the upholstery guild. And he was brought up on charges for it. And Lord Cook was presiding as Chief Justice at that time. And of course, he says to the guild, well, why do you have to have a license to practice upholstery? And of course, the guild doesn't say the real answer, which is we want to restrict the trade of upholstery so as to raise our prices and extract more money from consumers who have fewer choices. No, of course, what they said was, well, it protects the public. From what? Right? From bad upholstery. And so Lord Cook said, no skill there is in this for a man might learn it in seven hours. And then in one of my favorite lines from any court opinion, he said, unskillfulness is sufficient punishment. If you're bad at your job, that's punishment enough. There's no reason for the government to get involved. That opinion and many like it were the foundation of the anti-monopoly tradition of the 17th century that the founding fathers were familiar with. They grew up as law students reading the law, studying for the bar people like Thomas Jefferson and John Marshall. And they read Lord Cook's books about the law. And they learned about this tradition of the anti-monopoly tradition, which rested on the right of every British subject to earn a living with that unreasonable government interference. But okay, but all of us in this room are earning a living and most of the people that we know are earning a living. And the people who are not earning a living, if we look at why, it's because they're having trouble finding work. We don't see the government saying, no, you're not allowed to get a job. So how is this right being violated today if it is being violated? In fact, there are great many people who can't get a job because the government says they're not allowed to. And then particularly this is done through occupational licensing and other kinds of licensing requirements. So for example, you aren't allowed to, not just people think lawyers, doctors, that sort of thing. That's what they think of when they think occupational licensing. But in fact, something like two-thirds of the American workforce now needs the government's permission before they're allowed to practice their jobs. Everything from hairstylists to nail salons to pest control workers. And some of them are truly absurd, like the Louisiana law that requires you to have a license to practice the trade of being a florist, for example. Well, we've got to protect people from really bad flower arrangements. From ugly flower arrangements. Absolutely, yes. We're not kidding. That really is the law. The law said it was recently amended, although it's still on the books. But at the time that this case occurred in 2005, the law said in order to get a license as a florist, you had to pass a test where you were graded on the beauty of your floral design.  To protect the public? I mean, that's crazy. And yet, because courts have, for the past half-century or more, turned their backs on the importance of economic liberty as a constitutional right, those kinds of laws do bar a great many people from earning a living. And they do so in a number of ways. It's not just that people don't have the required training or experience. It's also to pass the test, you have to pay a fee to take the test. The tests are sometimes administered only once a year, or they're administered in inconvenient places. So if you're going to take the test to be a florist, you have to drive to the city where they're administering the exam, and you have to stay overnight in a hotel. Now, you know, you and I can afford that sort of thing, but the kind of person who's looking for an entry-level job as a florist, that's a significant chunk of change, you know. Plus, even worse, there are laws in the books to prohibit people who have been convicted of crimes from obtaining occupational licenses. Even when those crimes have nothing whatsoever to do with the business at hand. If you've been convicted of any felony, you are barred from businesses like, in some states, you're barred from running a moving company, or working for a moving company, if you have been convicted of any felony. Even if the felony was, I don't know, carrying a gun in a place you're not supposed to, or something like that, that has nothing to do with moving. Well, these entry-level jobs are the place where people with criminal records can go to have a second chance in life. And so we're pulling up the ladder for the people at the bottom rungs. So, yes, I think the government does often bar people from economic freedom. You mentioned that this is – we already talked about you for 100 years or so. You mentioned that they've been ignoring it. Let's go back a little bit to the founding era. Was it the case that – so we had cases like Dr. Bonham's case and things like this in the 17th century, but was it the case that there were right to earn a living cases being adjudicated in the 1820s, for example, where people suing about this? In the 1820s, you started seeing them, yeah. But before then – so the period of colonial history, there aren't a lot of cases that I found on the subject. And that's – there are a couple of reasons why. One was there was no guild system in the United States in the American colonies, where there was in England. And so these issues didn't arise very much. Secondly, these disputes during the revolutionary era, restrictions on economic liberty, liberty did play a central role. So, for example, Thomas Jefferson's summary view of the rights of British America, which was the pamphlet he published that got him the job of writing the Declaration of Independence. In the summary view, he complains, among other things, about English laws that prohibited the colonists from manufacturing retail items out of iron. The law said that the colonists could mine iron and then had to send it to Britain to be made into items for sale in the retail market. And he says in the summary view, he says this law is intended to support not men but machines in the island of Great Britain. And what he means by that is this law isn't to protect the public, this law exists to protect the jobs of those iron workers in Great Britain who didn't want to compete economically, didn't want to compete fairly against workers in the colonies. So yes, these issues were around at the time. And the first very really famous case on the issue of economic liberty, of course, is court field versus courier, all the decision by Justice Washington, which I believe was at 1829. 1828, I think. Yeah. And that was a question, the case is actually only tangentially. It touches on the right turn of living. But he goes off and... It has to do with fishing, right? Yeah, it was harvesting oysters. Harvesting oysters. And the question was whether a person in one state had a right to harvest oysters in another state. And this was Bushrod Washington who was George Washington's grand-nephew. Yeah, that's right. And was a justice on the Supreme Court, but he was riding circuit. So he was serving at a lower level at this point. Yeah, as a trial judge. Yeah. And he says, actually he ruled against a plaintiff. He said you don't have that right to fish in other waters. But he said in a very famous passage in that opinion, he says, what rights are protected by the privileges and immunities clause of the Constitution? It includes the rights, among other things, to economic freedom. And of course, the reason he said that was because the Articles of Confederation had also included a privileges and immunities clause, which was in turn based on the Magna Carta's protection of the right of tradesmen to cross boundaries. So you see this right of economic liberty is a traditional right that was time and time again asserted when constitutions and bills of rights were written. And then we get up to the Civil War and the passing of the 14th Amendment, which often remind people that slavery is many things, but one of the things it is is a systematic denying of your right to earn a living with other things to it, but that's a big part of it. And they try to fix slavery with the 14th Amendment and in other privileges or immunities clause. So you talk a little bit about what happened in the late 1860s. Well, nobody has more beautifully put this point than Frederick Douglass himself an escaped slave who in his memoirs writes about this beautiful passage, just amazing, where he talks about after he escaped from slavery into Rochester, New York, and he was looking for a job. He was walking down the street and he saw a bunch of coal that had been delivered by the coal delivery company.  And so people would get jobs shoveling the coal down the coal chute into your basement. So he saw this pile of coal and he knocked on the door and he asked the lady inside if he could, you know, shovel the coal into her basement and she said yes and he did it. And he says in his memoirs, he said, to understand the feeling which clutched my heart when I held the two silver half-dollars, realizing that it was mine, that my hands were my own and could earn more of the precious coin, one must have been in some sense himself a slave. And that reason I love that passage so much is it really articulates the deep connection between economic liberty and personal autonomy, the sense of freedom that he was trying to express, came in the form of having earned money to provide for his own food, for his own shelter and it was to protect that right that the Fourteenth Amendment's privileges or immunities clause was added. And I always want to emphasize this, the Fourteenth Amendment is one of the great achievements in human liberty. It's unfortunate that in recent years we've heard a large number of people complaining about the Fourteenth Amendment and saying that it was somehow an infringement on states' rights and so forth. The Fourteenth Amendment was a great accomplishment in freedom and one reason why is because it protects you against the power of your own state, which had not been done before, and among the rights that it was intended to protect was the right to earn a living. And that's – I always – Expressly referred to in the debates around writing and ratifying that amendment. Absolutely. Before the Fourth Amendment there was no floor to the states, right? It established a floor below that they didn't give themselves. They could have had their own bill of rights, but there was no floor that they couldn't go below. But what happens in the Slaughterhouse cases? Well, of course, the Slaughterhouse case was the first opinion from the Supreme Court interpreting the Fourteenth Amendment, 1873, and the court was asked to review a Louisiana statute that established a monopoly in the butchering trade. It said that if you wanted a slaughter cattle in New Orleans, Paris, you had to do it at a single privately owned slaughterhouse that just happened to be owned by members of the Louisiana State Legislature. What a coincidence. It's always Louisiana. They're nuts down there. Not much has changed. They also have the highest prison population. All those unlicensed butchers. Exactly. Well, of course, this law – an analogy would be if the State of California were to pass a law that said all automobiles in Los Angeles County have to be repaired at the Amco on Vine Street, right? And so it put hundreds of butchers out of business overnight. They filed a suit saying – Yeah, there's a ton of cases. 125, I think, put together by the time – Yeah, that's why it's the Slaughterhouse cases. Yeah, the entire list of them is huge. And it got up to the Supreme Court and the question was, we have a right protected by the Privileges or Immunities Clause of the 14th Amendment to earn a living without interference by unreasonable government monopolies. That right had been protected for, at that time, 275 years. And this state law established as such a monopoly it therefore violates the 14th Amendment. It's a pretty clear logical argument. And the Supreme Court said no. And the reason behind that was the Supreme Court said they could not imagine that the 14th Amendment was really intended to have the federal government protect civil rights against states. Therefore, that can't be the right interpretation of the 14th Amendment end of story. That was really what the Slaughterhouse says. It's an amazing opinion to read. They could have just gone and asked them. They could have just gone to Bingham and asked them, right? It was five years ago they had passed it. That's right. And there's no reference in the opinion to the debates about the 14th Amendment. Anyway, unfortunately, that case remains on the books today. And so the Privileges or Immunities Clause has essentially never been enforced. Out of curiosity, are you still limited in where you can slaughter cattle? In Louisiana. Well, probably. But there is actually an interesting footnote to that. About five years later, Louisiana held a constitutional convention and as part of that convention, they eliminated the Louisiana Slaughterhouse monopoly. And so the owners of the Slaughterhouse monopoly sued the state of Louisiana saying they were being deprived of their right to the monopoly that they had been given. And that went to the Supreme Court and my hero, Justice Stephen Field, the first Californian on the U.S. Supreme Court who wrote the lead dissent in the Slaughterhouse cases, took the opportunity of that case, which is called Butcher's Union versus Crescent City livestock landing in Slaughterhouse Company. He took the opportunity of that opinion to rail on again about how the Slaughterhouse cases had been wrongly decided. So no, actually, that Butcher monopoly was repealed shortly thereafter, but unfortunately it didn't overturn the legal precedent. And after that, so now the privileges are made to these clause is kind of a dead letter. It gives you some important rights, though, such as the right to navigate in federal waters. Here's an interesting thing about that. I think that most of the legal world is a little confused about the Slaughterhouse cases. The Slaughterhouse case has been overruled. It's just nobody realizes it yet. Slowly. No, it already has been. Yeah, you're right. Gradually it was overruled and people haven't realized it because what has happened was the Slaughterhouse court did not deny that the right to earn a living is a constitutional right. They admitted that. What they said was that federally protected civil rights are a very limited number of rights, such as the right to travel on the high seas and that federal civil rights had not been entrusted to the federal government for protection. Well, the Supreme Court has said otherwise not just with regard to equality rights or voting rights. The federal Supreme Court has over and over again said that economic liberty is a right that the federal courts will protect against state interference. They say that to this day. So that part of Slaughterhouse, which is really the important part, has actually been abrogated and it seems like nobody has realized it yet. I don't understand why. Well, I think that they just sort of bemoaned the fact that it could have been easier than doing a piecemeal with the due process clause over the course of many years. But the Slaughterhouse were in 1873 and then we get to working on creating this floor again for the states via the due process clause, which was not really the best way of doing it. But then we get to Lochner. Yeah. Now, briefly, I'll say a lot of people say that the due process clause was used as a substitute for the privileges or immunities clause in the years that followed. And I disagree with that. I think that first of all, the first substantive due process case was loan association versus Topeka, which was in 1874. So it was only a year after Slaughterhouse. You wouldn't say that Dred Scott was a substantive due process clause. Well, only in the sense that substantive due process is an inherent part of almost every judicial review case and that substantive due process has been around since the Magna Carta in 1215. The due process clause protects your right to be free from arbitrary deprivations of liberty, whether it's a procedural deprivation or a substantive deprivation. The idea of separating substantive and procedural due process is incorrect. They are the same thing. And what the courts did was it's true. They stopped enforcing the privileges or immunities clause and they laid more emphasis on due process. That's not – it wasn't a replacement. It's just that after Slaughterhouse they were left with nothing other than the due process clause and they correctly enforced the due process clause in cases like loan association. That's a little bit technical, though. What happened then was between the 1870s and 1900, the court started protecting more and more the right to freedom of contract against state interference. A lot of people say, the Supreme Court got so activist in those years. Well, that's because the 14th Amendment had just been added. So only now were the federal courts in the job of protecting people against their states. Anyway, in Lochner, that was a case in 1905 in which the Supreme Court said that the state of New York could not prohibit people from working 10 hours a day in a bakery if they so chose. The state had passed a law that said you weren't allowed to work 10 hours a day and this man named Amon Schmitter, he was a German immigrant who worked in a bakery in Utica, New York. He went to his boss Joseph Lochner and he said, I'd like to work more than 10 hours a day and Mr. Lochner said, I'd like to pay you to work more than 10 hours a day. So they shook their hands and there you go. That's it. Two grown adults who have the right to do with their own bodies what they please and it ain't nobody else's business if they do. And yet they were brought up on charges for this. Well, they also intended to break the law. Of course. And then went to say, go report me. He seemed like an interesting guy because he had been a sort of a bug to the annoyance to the unionized butchers for a while. Yeah. It's a very interesting case. For one thing, the lawyer who argued against the constitutionality of the Bake Shop law was a guy who had previously been a union activist who had been the leading proponent of the Bake Shop law. Anyway, in the Lochner case, the Supreme Court said no, people have the right to earn a living without unreasonable interference. The government can restrict that economic freedom in order to protect the public but there's no reason to believe that working more than 10 hours a day in a bakery is bad for the public or bad for bakers or bad for bread or anything like that. It really is just a meddlesome interference in a person's right to decide what kind of job to take, what kind of hours to work, what kind of wages to earn. And if the government's going to restrict that then it can get involved in every aspect of our economic freedom and that's intolerable. Therefore, you know, deny it. Which is exactly right. It's kind of like when you mentioned the imposterous case because there's another line in that opinion where he kind of says, well, this is just baking bread. He said it takes seven hours to learn. This is just baking bread because they had dealt with miners, right? M-I-N-E-R-S. And said the work hour restrictions on them was okay because this is mining. Which is dangerous work and hazardous to your health and so forth. So of course the court recognized that the government has a legitimate role in protecting people against dangerous or dishonest business practices. But if it's just an ordinary trade, then people have the right to decide for themselves. And another case that followed in those footsteps, one of my very favorite, is a case called Adkins v. Children's Hospital in the 1920s in which the court struck down a minimum wage law that applied only to women. And that was located here in District of Columbia. Now what's going to happen if you pass a minimum wage law that applies only to women? They're not going to get any jobs. Yeah, all the jobs are going to go to men. Which is why the male-dominated trade unions supported these kinds of laws. Willie Lyons, who ran an elevator in a Washington, D.C., hotel, liked her job, earned less than the minimum wage, lost her job because of the minimum wage law. She sued and said, hey, I have the right to earn a living how I choose. The government doesn't have any right to come in and tell me that I can't be employed at the wage that I'm willing to accept. And it went up to the Supreme Court. It's a very interesting case. It was written by Justice George Sutherland, who was an early advocate of female suffrage. And he based his opinion on the 19th amendment. He said, maybe there was a time when women were too weak or dumb or incapable of making economic decisions for themselves. But with the ratification of the 19th amendment, we've recognized women as equals and they have the same right as men do to earn a living and make those kinds of decisions for themselves. Let me ask a question about Lochner's legacy because when we talked about it here and when you described it, it was like this case was, yeah, they just did the right thing. The court stuck down the silly law and we're good to go. But this case in – when I was in law school and when Trevor was in law school, you know, this case is perhaps second only to Korematsu, the case making it okay to lock up Japanese people doing that work, too. Maybe, but it might be tied, yeah. Maybe as far as just being despised by law professors, they think that there's like almost nothing more evil than the Lochner decision, which is quite a different reaction to it than you just had. So what's going on there? Before we get the answer to that, I want to – going back to the substance of the case, Aaron, when we were in law school together, had a line about Lochner that I think you said to your class and I use it when I talk about it now, which is I always say, you know, because you're always debating your classmates on this because they think it's so bad. And you say, you know who really needs a maximum work hour or weak law? Lawyers. I mean, everything about lawyer, like the drug abuse rates, the divorce rates, the health problems work in eight hours a week and every time you tell lawyers out, they say, well, no, no, we don't need protection, but bakers, of course do. That's a good point. And they hate Lochner so much. As he said, so why is the hatred so – Well, what happened in the Lochner era? Yeah, Lochner became a lightning rod for progressives who wanted to argue for a radical reinterpretation of how constitutional liberty ought to work. They argued against the concept of natural rights, rights are just permissions that the state gives to us instead. They argued against constitutionally limited government. Government ought to be in the business of adjusting our lives so as to make them better in basically every conceivable dimension, making them more moral and just and happy and full. And courts really shouldn't be in the business of restricting democracy. The democratic process should basically have its way across the board. And that means that the courts should stand back and whether the constitution allows it or not. The constitution is a living document. And so it should – it changes to meet the changing needs of the day. Well, Lochner stands obviously in opposition to all those things. It says that there are certain fundamental aspects of freedom that cannot be justly infringed by any legislature. And when the legislature does infringe those rights, it's depriving us of liberty without due process of law and the courts ought to intervene. So Lochner became very clear for that. But really the reason why Lochner became such a symbol was Holmes's dissenting opinion. Justice Oliver Wendell Holmes who said, all my life I have sneered at the natural rights of man. He really meant it. He did not believe that there was such a thing as justice. There was only force and basically random personal tastes about what is just and not just. And so in his opinion he argues that the idea of liberty – this is a quote – the idea of liberty is perverted when it is used to prevent the outcome of a dominant opinion. Now it's hard for me to imagine what the word liberty could otherwise mean other than to prevent the outcome of a dominant opinion. But Holmes – he viewed the democratic process as a process where people of, quote, fundamentally differing views and, quote, could hash out what is just and unjust. And therefore if the majority decides that bakers should work no more than 10 hours a day, it ain't nobody else's business if the democratic process restricts their freedom. And so he basically turned that opinion, which by the way – his dissenting opinion in Lochner is a masterpiece of dishonesty and falsehood. There's basically not a word in it that is correct. My favorite in there is when he says that a constitution is made for people of fundamentally differing views. That proposition flies in the face of every word of political philosophy written since Aristotle's day. You cannot have a constitution for people of fundamentally differing views. You have a constitution among people of fundamentally shared views who might differ on the particulars. But they agree on the fundamental precepts of justice and liberty, but not for Holmes. So Holmes' opinion in that case became a manifesto for people who wanted the state to grow far beyond what the constitution previously had allowed in order to accomplish the goals of social justice, as they called it, which is to say in order to restrict freedom to what the political elites thought was acceptable and appropriate. And so Lochner became famous for that reason rather than what it actually held, which is a relatively minor and rather routine opinion. And in fact, not even really symbolic of a consistent laissez-faire ideology on the court as David Bernstein has pointed out in his book. The courts at that time actually supported a large number of restrictions on economic liberty, particularly restrictions on the rights of women, which were overturned in the 1920s. Well, versus Oregon. Yeah. But wait three years after it, they unanimously, if I think, upheld Work Hours Law for women in Muller versus Oregon. So it was almost the exact same court. So everything about the Lochner era is highly overblown. The idea that they just struck down good social legislation left and right. I mean, some of the stuff they were striking down was, as Tim said, minimum wage hours just for women. And you often hear it said that during the Lochner era, the court protected economic liberty out of an economic ideology. Well, when you read those opinions, there's not a word of economics in there. I did the search. There's maybe one reference to Adam Smith in one of these opinions. But these cases are not about economic liberty. Justice Sutherland never – I mean, about economic ideology. There's not a word in Justice Sutherland's opinion in Adkins, for instance, about economics or supply and demand or anything like that, even though he could very well have made a good argument on those points. Instead, it's all about freedom and the freedom of choice. These are moral and political philosophical points. That's what it was about. It's about the liberties of the Declaration of Independence, not about supply and demand curves or anything like that. And when we get up to the New Deal and the end of the Lochner era, because the story gets into the point of how do we get economic liberty to be so disrespected? And now we get to New Deal. What happened there that put them on the back burner? And why do you think that is? That's the other thing, too. I mean, that's a disproportion. Why is it that economic liberty is disrespected? And what happened? Well, the New Deal era was the triumph of this political revolution that began slightly before the Lochner opinion was issued. So the Progressive Era – I think I would probably date the beginning of the Progressive Era to the publication of Edward Bellamy's book Looking Backward. 1887. Which was the novel that introduced the phrase cradle to grave. And it was incredibly popular, by the way. Bellamy clubs in every state in the country. And it was a hugely popular novel. Anyway, the Progressive Movement was reaching its adolescence at the time Lochner was decided. And it became sort of the target of everything they were against. And Progressive Ideology boiled and new ideas were being fostered until 1934 in Nebia versus New York when the Supreme Court created the concept of rational basis scrutiny. You had the long sleep of economic liberty as a constitutional right. What – you talk about rational basis scrutiny, which is part of this – there's these different levels of scrutiny that the court uses – that courts use to evaluate laws. Can you tell us what those are before we go into the specifics of the new rational basis? So these are the tests that courts use to determine whether a law violates the constitution or not. They ask these questions about that law. In a case involving strict scrutiny, the court will say, is this law narrowly tailored to advance a compelling government interest?  What it really means is the law has to be designed in such a way as to accomplish something really important and not do anything else if it's to satisfy this strict scrutiny standard. So no false positives and no false negatives. It has to do something crucial and do it well. A law that – subject to rational basis scrutiny on the other hand, in order to pass constitutional muster, such a law only has to be rationally related to a legitimate government interest. Again, we don't really know what that means. The court itself acknowledged in the 1987 opinion, our cases have not laid out the standards for determining what constitutes a legitimate government interest. So we don't even really know what it means, but it basically means if somebody might have thought it was a good idea, then it's okay. That's what the rational basis test means. It always struck me when we have these sliding scales of scrutiny that they seem weird in light of the language of the Constitution. Yes, they do. Because the Constitution doesn't say – This was really important. Yeah, like Congress shall make no law unless it's got a compelling reason. It says no, period. And so how did we even get to strict scrutiny much less rational basis? Well, the strict scrutiny standard comes from the Korematsu case you mentioned before about the Japanese internment camps. And what the court said was, well, when a law restricts the rights of a particular minority group that might be disenfranchised, we're going to be really skeptical about that law. It makes us really uncomfortable and will only allow it in really rare circumstances. You're right. The Constitution doesn't say constitutional violations are allowed in rare circumstances. In fact, in 1934, the same year as Nebia, there was another case called Home Loan Association vs. Blaisdell. And in that case, the court basically invalidated another important provision of the Constitution, the contracts clause. And in a dissenting opinion, the court, the justices said – In fact, it was just the Sutherland, the same one I mentioned before. It's a great opinion, too. He said, if we don't uphold the Constitution when it pinches as well as when it comforts, then we might as well throw it away. Yeah. And I think that the way I describe scrutiny is often – you always have to evaluate something about what you're trying to do. You can't just pick and whether or not it's accomplishing your goals. And the question is almost like, strict scrutiny says you have to use a scalpel, right, to do something. You have to approach it with a scalpel and say, I'm just going to – I need to take out this thing from this guy and I can only take out this thing. Rational basis says, oh, you can use a sledgehammer. Right. You can just hit the guy right across the chest and try what you do. And if you hurt all the other organs, it doesn't really matter because it's not a very important right. And as I've said, the whole question is confused by the fact that the court has never told us what it means, what a legitimate government interest is. There's been a few cases where they've said some things aren't legitimate government interests, but they've never told us how we even decide what a legitimate government interest is. So it's really, in many ways, a shell game, the entire tiers of scrutiny requirement. But what it means in practice is that if you're going to prove that a law violates the rational basis test, which is the test that the court's because of the Nebia case, that's the test that the court's applied to economic liberty. If you're going to win that case, you're going to prove that the law is irrational. You have to disprove every conceivable basis for the law, which, of course, is completely impossible. Not only is it impossible to prove a negative, but it's certainly impossible to prove an infinite series of possible negatives, but that is what a plaintiff has to do to win such a case. So what happened in Nebia was the court upheld a law that said you weren't allowed to sell milk for less than eight cents a quart. This, of course, was during the depths of the Great Depression. Unemployment was 25%, and the government says, well, here's our solution. We're going to make it illegal for poor mothers to buy cheap milk to feed to their babies. And the Supreme Court said, yeah, that's okay, because if the government wants to regulate the economy, they can do basically anything they want. And that's the law that we live under today. If it comes to certain kinds of preferred rights, the freedom of speech and stuff, strict scrutiny applies, but these freedoms like economic liberty or private property rights are subject to this anything-goes-rational-basis standard thanks to the 1934 Nebia case. So when you're not writing books and appearing on excellent podcasts, you're litigating these kinds of cases. And so have you won against a rational basis?  I'm glad to say yes. I've won cases under the rational basis test, and it ain't easy. Not long ago, had a judge come out, and before I started to argue, she said, before you start, I just want you to know you have filed more paper in this case than any case I have ever presided over, including patent cases. So, yes, it is not an easy job to overcome the rational basis test. In February of this year, I've won a case in Kentucky challenging that state's law that restricted the moving industry. You're not allowed to run a moving company in Kentucky until you first get permission from all of these states existing moving companies. And this is a law called the Certificate of Public Convenience and Necessity Law, which, unfortunately, is on the books of most states in one form or another. It applies to everything from moving companies and taxi companies to even hospitals have to get permission from other hospitals before they're allowed to open up. And so in order to win those cases, what I had to do was I had to get evidence about every single application for a moving license in the past five years and what had happened in all of those cases and show to the judge that every time a person had applied for a license and an existing company had objected, that person was denied a license. And that the state had even rejected applications from one guy who had been in the moving business for 35 years before he decided to start his own company. He was denied in a written opinion that said, you're fully qualified, but we just don't want more moving companies so denied. So that clearly deprives my client, Raleigh Bruner, a small business owner in Lexington, Kentucky, of his right to earn a living without unreasonable government interference. He's perfectly qualified. The government has no business depriving him of his freedom. And I'm glad to say we won that case in February of this year. Can you talk a little bit going back a little bit on litigating for liberty in that sense what Pacific Legal Foundation is, like how you work, how you find cases, what your strategy is going forward to try and bring those cases just in general for people who aren't maybe familiar with the strategy here. Sure. Well, there are lots of groups out there that litigate to accomplish constitutional goals. The most famous, of course, is the ACLU. Well, in 1973, then California Governor Ronald Reagan said, you know, there ought to be a group out there that does this sort of thing for those of us who believe in free markets and individual liberty. And so that year, Pacific Legal Foundation was founded by three of his staff members. And over the course of the next few years, several other similar organizations were founded across the country. There was Washington Legal Foundation, Mountain States Legal Foundation, various other foundations like that. In the 1990s, of course, there was sort of a second generation of these groups that was founded, including the Institute for Justice and various organizations that focus only on in a particular state or only on a particular issue. A lot of state-based think tanks like the Goldwater Institute in Phoenix and other organizations have lawyers who litigate cases for freedom in their state courts. So it has become really a massive and important part of the liberty movement in this country that we have in addition to the policy organizations, we have these litigation groups. And what PLF does is we have three main areas of focus. Private property rights, we litigate not only cases involving like eminent domain, but regulatory takings when the government prohibits you from using your property as you want to and therefore deprives you of the value of your property. We won a very famous case in 1987 called No One Versus California Coastal Commission, which really laid the groundwork for a lot of these cases. Our second area of focus is environmental law. We litigate a lot of Endangered Species Act, Clean Water Act, Clean Air Act cases, things like that. In fact, just this last month, we won a decision in a federal court in Utah that struck down the listing of the Utah Prairie Dog on the Endangered Species List. Now the Utah Prairie Dog exists only within one state and has absolutely no economic value. Nobody uses Prairie Dog pelts to make coats. Nobody eats Prairie Dog. Nobody does anything with Prairie Dogs. They have no economic value at all. And the district court judge held that because Congress cannot show that there's any effect on interstate commerce for the Prairie Dog that it had no authority to list the Prairie Dog on the Endangered Species List. That is the first case that has ever struck down the listing of a species on the Endangered Species List. Because that came up in the 90s with the what was it, the cave spiders? Oh yeah, there was the cave bugs. Yeah, there's various cases of species that exist only within one area. The Delta smelt is one that's been a big issue in California. It only exists in the Delta area of California. It has no economic value. And Congress only has power to regulate and with foreign nations and with the Indian tribes. And yet it claims to be able to control what anything that affects these species that have no interstate character and no commercial value. Anyway, so we do those environmental cases. And then we are involved in cases about race preferences, affirmative action programs and which violate not only the 14th amendment, but many state laws. California, for example, has a constitutional prohibition on race preferences and we are the only organization that enforces that. The state attorney general has consistently refused to enforce that provision of the state constitution since it was enacted in 1996 and we're the only organization that does so. Then we have certain smaller projects including my economic liberty project where, which is designed to protect the rights of business owners and entrepreneurs against these stupid kinds of occupational licensing laws and so forth. And we have one important case in various states trying to put some teeth back into this central aspect of constitutional liberty. The right to use your skills and your knowledge to provide for yourself and your family. And how do you find your clients? Well, it's not easy. That, in fact, is probably the hardest part of the job is finding clients because, you know, a lot of the time business owners are afraid to take on the powers to be and understandably so because, you know, their livelihoods are at risk. A lot of the time they don't have the resources to do it, which is why we represent people free of charge. But even though it's, you know, the courts system can be very slow and it can take a long time. You know, to ask a person who wants to start a small business to wait for a year, two years for a court opinion can be a hard thing to do. The upside to it is once we win those cases, it sets precedent that protects entrepreneurs for generations into the future. So it's very rewarding. But it is very hard to find cases. People call us or we search them out through, you know, the news stories and so forth. And you're looking for a specific type, he said a plant who is willing to take it all the way, who wants to litigate for principle, who's probably pretty sympathetic, probably helps, is not Donald Trump. Although that is true, I do want to emphasize, we always make it a point to say that although we do defend the rights of businesses and entrepreneurs who don't have the resources to protect their own economic liberty, the right of a rich person to earn a living and to keep the fruits of his labor is every bit as valuable and as important as the right of any poor person or starting out entrepreneur. Rich people and poor people alike have the right to the fruits of their labor and the government has no right to discriminate against people based on how much they earn or how hard they work in protecting some people's rights and then turning their backs on the rights of big businesses. That's wrong also. And as a litigator fighting against these are basically in the economic liberty context, just beating your head against the rational basis test all the time and deposing government bureaucrats asking them why did you do this and they just say do you have a favorite answer of why a government bureaucrat told you that they were doing something because you say why are you regulating the future of decorators? My favorite, I did a case gosh almost 10 years ago now in which my client ran a business a pest control business. He didn't use pesticides and he didn't deal with insects. He put spikes on buildings to keep pigeons from landing on them and put screens to keep squirrels out and things like that. Structural pest control that's called Well, in California you have to get a license. Branch 2 structural pest control operators license. I'm sure you know way too much about the regulations in California. Indeed, I have read the examination and I'm under a court order not to tell you what's on that examination. You have to pass a 200 question multiple choice exam to get a branch 2 license and here's an interesting bit. There's not a single question on there about pigeons and not a single question on there about spikes and it got better because the law only applied if you were dealing with pigeons. It specifically said if you dealt with any other kind, if you put the same spikes on the same building to keep seagulls away you didn't need any license at all. So your mental state really mattered. In fact in one of the depositions we asked how do you know whether the spikes are put on the building to keep pigeons away and not other kinds of animals and he said well we investigate. I said do you ask the person who puts the spikes on the building? No. Anyway, no my favorite part of that deposition was we deposed a state's expert witness who was an expert on pest control work and I said to him now this law requires 2 years of training to put spikes on a building to keep pigeons away. He said yeah, that's right. I said but no training at all to put the same spikes on the same building to keep seagulls away. He said yes, that's right. I said would you call this irrational? He said yes I would and the government's lawyer says can we take a break? He just admitted it right there. Comes back from the break he says verify what I said about irrational and he said what I meant to say was it might seem irrational but here's what happened originally you needed a license for all pest control work and then we said well some people were saying well if you're not using pesticides you're not a threat to the public so why should you have to get a license? So they were going to get rid of the licensing harm and those of us who already had licenses we didn't want to face competition against people like your client and so we said well why don't you divide up the market and we can keep the pigeons, the rats and the mice because they're the most common pests and those other people can deal with all the other ones and I'm like tell me more. So it's just pure protectionism. So we went to the court and we said to the judge your honor it's an undisputed fact in this case that this law is irrational and we lost because of the rational basis test what the judge said was I'm allowed under the rational basis test to make up my own justification for the law which is true and he said and my justification is well maybe you'd show up for a pigeon job and pesticides have been applied to the building by somebody else and so we would need to know about pesticides. Well okay but you could show up to work on a bat problem and you didn't need any license and all right so that didn't work. So we appealed that case to the Ninth Circuit and I'm glad to say we won at the Ninth Circuit the Court of Appeals struck that law down and it said that the rational basis test is violated by a law that is contrary to itself that is where a law says well we're doing one thing but we're going to provide all these exemptions for it that undermine the purpose of the law itself. I'm a pretty obvious proposition to you certainly seems like an obvious proposition to non-lawyers that a law that contradicts itself is not rational and yet I'm sorry to say that is one of the few court opinions that has ever explained what the rational basis test means that there is a category of things that violate the test and that is laws that are self-contradictory that was the first case to say that that's really remarkable that shows you how murky it is to litigate into the rational basis as my friend Clark Neely says there really is no such thing as the rational basis test there's judging or not judging and the judge can decide whether to judge the case or not to judge. Yeah we had him as a guest and yeah Oh yeah a great podcast and he's right that it's like litigating in the twilight zone it's like punching under water So far the cases that you've discussed that you were involved in have been victories you've told us about cases that you've won Those are the ones I prefer to remember I fear that that may give listeners a potentially more of a sense of hope about this than there actually is that things are better than they actually are and so I'm wondering if you could give us those less fun to talk about examples of just shock really shocking and ridiculous losses Well the most egregious one is the one I mentioned about Louisiana the florist law so the florist licensing requirement was challenged in a case in 2005 and the judge said that the law was constitutional and passed the rational basis test I want to emphasize I'm not making this up the judge said it was constitutional because it protected the public from scratching their fingers on the wires that florists use to hold their floral arrangements together in order to get a license you would be trained in how to use the wires and therefore you would be less likely to harm the consumer now of course there was no evidence at all that anybody could use the wire or had been harmed by being scratched by wire or that it was dangerous no evidence in the record at all but the judge said that he could imagine such a circumstance and therefore it was constitutional and unfortunately that precedent remains on the books When a judge writes an opinion like that it's hard to believe in the sense that like you have to think he's either an idiot and most judges probably are not idiots or he's corrupt or he doesn't care about economics or he doesn't care but even still like he would there just seems to be like is he lying through his teeth like what's the motivation here so every action intends some good and the reason why the judge does that is because he's the victim of a bad ideology and that bad ideology is progressivism writing that opinion is embarrassed by it knows how stupid it is but convinces himself that he's doing a better job because he believes in the virtue of judicial restraint so the nonsense concept of judicial restraint which is the idea that if the government wants to violate your rights courts should do nothing about it has been endorsed and embraced as if it were a positive good by a large number of conservative particularly but also liberal advocates and law professors and judges and so they have persuaded themselves that by showing restraint that's the term for restraint if you call your dereliction of duty restraint now it sounds like a positive virtue and so the judge persuades himself well I know this opinion is bad but it's for a higher good that higher good is judicial restraint I'm not interfering with the democratic process which of course is exactly the excuse that judges who issued decisions like Korematsu told themselves well I'm not going to interfere to protect the Japanese Americans from unjust internment but it's for the better it's for the greater good I also think it's important to note that if you look at the hierarchy of rights the kind of rights they get super strict scrutiny high protection such as free speech and then the ones that don't such as economic liberty they kind of mirror the rights that judges themselves like they probably haven't started a business they probably never really felt themselves tied to their economic life like being an entrepreneur we made this point before with a lot of modern like political philosophers the same sort of thing you read Rawls and he talks about the kinds of rights that are super important and they're all the kinds of rights that are super important for being a professor at Harvard Aristotle said that the idea of life is philosophy and the Winem's made their god a horse and in the same way if courts were presided over by carpenters there would be a lot of very well thought out very careful judicial opinions about carpentry and there would be some and then and the judges at that time would then say lawyers you can regulate them however you want look the other way we don't care and that's what you would get I think judges who pay attention to these issues let me say I think that there are lots of judges out there who know how bad the situation is with rational basis test the rational basis test but there's nothing they can do about it because it's the controlling precedent now there is something they can do about it they can at least write separate opinions that say I'm forced to do this even though I think it's wrong because the law is so bad that's what Judge Janice Brown did not long ago in a case that I worked on called Headinga that was a case in which dairy regulations in this country are completely irrational it's always milk, Debbie and milk terribly products milk and then yes milk again yeah in the Headinga case that Mr. Headinga had found that the law just the dairy regulations just didn't have having to not apply to his dairy operations and so that he was able to charge less than the minimum required by federal law for most other dairies so the dairies didn't like that so they got a law passed to single him out and shut him down so he sued and challenged that and his case was dismissed because the judge said I can imagine a rationale for the law therefore I won't even listen to the evidence and Judge Janice Brown upheld the dismissal but very reluctantly I wrote a wonderful separate opinion in that case saying this rational basis test just all it is is blinding the judge to the kinds of shenanigans that we would never tolerate if this were religious freedom or freedom of speech for example I mean she doesn't use this example but we would never say that the Catholics can say there's not allowed to be another Protestant church unless we give them permission and yet we have a law that says you can't run a moving company until all the other moving companies say it's okay the only reason is that the law has decided to treat religious freedom with more seriousness than economic freedom economic liberties, long pedigree and central role in the lives of all individuals I think also it's worth mentioning that when we try to get the heading of the case to the Supreme Court in the brief that you wrote the question that we asked the Supreme Court to review how absolutely minor that court we weren't even asking them to overturn the rational basis test all we asked in that case was we asked the court to say that we're allowed to introduce evidence before they roll the rational basis test as I mentioned said that the law will be upheld as constitutional as if there's any rational conception that might have concluded it was a good idea well you ought to be able to introduce evidence that that is not the case you know if I'm required which I am to disprove every possible basis for the law in order to win the rational basis case I ought to be allowed to introduce that evidence and what the heading of court did dismissed the case prior to fact-fighting without receiving any evidence because the judge said I can imagine a rational for the law and unfortunately the courts are kind of in disarray on this issue about whether they are required to allow a plaintiff in a rational basis case to even introduce evidence at all and I in fact just last month I published a law review article about this in the George Mason Civil Rights Law Journal about the relationship between the motion to dismiss and the rational basis test and it really is something that remains unsettled and it shouldn't because within the in fact the same year that the rational basis test was invented in 1934 the Supreme Court said it is only an evidentiary presumption you're allowed to introduce evidence to overcome it it is not a complete barrier to all constitutional challenge but courts today often treated as a complete barrier to all constitutional challenge and they say you're not allowed to you can't win this case unless you disprove the rationality of this law and we're not going to allow you to introduce evidence to disprove the rationality of this law so it seems kind of dismal in the economic liberty front litigating for liberty but what do we see coming next do we have any reason to be optimistic is there anything coming down that may fix this abysmal situation yeah no I honestly I really am actually quite optimistic in the long run in the short run I think things are going to get worse before they get better but I'm convinced things are getting better law students today are far more skeptical of the New Deal era cases than their predecessors were and take much more seriously the idea of economic liberty we've seen scholarship by people like David Bernstein, Randy Barnett David Mayer on economic liberty in the Constitution that didn't exist before and we've seen these cases that have really established at least the beginning of a real I think revival of judicial respect for economic liberty it's slow it's gradual but of course it was gradual for the progressives it took them 50 years so we shouldn't be surprised by that and there is something on the horizon that eventually will have to come to the Supreme Court and that's there's a circuit split on this question of whether mere economic protectionism is a legitimate interest under the 14th amendment so the 6th circuit the 5th circuit and the 9th circuit have all said that the government may not use its licensing laws simply to prohibit economic competition for the purpose of benefiting some chosen favorites meanwhile the 10th circuit has said just the opposite in a case called powers versus Harris which was 10 years ago now more than that I think the court said yes the government may use its licensing laws to prohibit competition simply because it wants to even if there's no connection at all to protecting public safety or health or anything like that that circuit split the Supreme Court has been asked to take it on at least two occasions I believe and they have declined to do so so far well eventually they're going to have to resolve that question and when they do I think the scholarship and the judicial precedent is there to show that economic liberty is a central component of what we conceive of as liberty the phrase that lawyers often use is they say that the liberty protected by the 14th amendment is freedom that is deeply rooted in the nation's history and tradition it's hard to imagine a right more deeply rooted in this nation's history and tradition than economic independence, economic freedom that's why we call it the American dream so I am convinced that the coming generation of lawyers, judges and law professors is going to restore real meaning to economic liberty as a constitutional right and that's why I am very optimistic about the right to earn a living thank you for listening to free thoughts if you have any questions or comments about today's show you can find us on twitter free thoughts pod that's free thoughts pod free thoughts is a project of libertarianism.org and the Cato Institute and is produced by Evan Banks to learn more about libertarianism visit us on the web at www.libertarianism.org


Ladies and gentlemen, the President of the United States. Thank you. Thank you very much. Oh, please. Please. Who's ten to the store? Well, I appreciate this opportunity for us to be together. First and foremost, I want to offer each of you my deep and sincere thanks for your hard work and the professionalism of these last few months. With all that's been going on, it's taken real pros to meet our responsibilities and get the job done. As far as I can see, you haven't missed a beat, and I'm grateful. Looking around, I can't help but think about the story of another gathering of clergymen. Ministers and priests from all over town came to hear lectures on management techniques and such. One morning was set aside for the conference to break up into groups of three, so the clergymen would be able to speak candidly about their personal problems. Well, in one trail, a minister spoke up about his secret burden.  I end up on a binge, and my congregation doesn't even know where I am. The second minister then admitted that he had a problem too. With me, he said, it's the collection plate. When the congregation's gone, I'm left there with all that cash. The temptation's just too great. And I take $50 or $100 off the top and spend it on a wild time. The third minister then stepped forward, and he says, I've got a problem too. I'm the biggest gossip in town, and I can't wait to get out of here. Well, I think one of the greatest strengths of any administration is its spirit of camaraderie, its sense of shared purpose. And I know that this is true of us as well. So don't let anyone tell you that in these next two years, we're going to be running a caretaker operation, that the window of opportunity is closed. What we accomplished in the next 22 months will go a long way in determining how the United States of America fares in the 21st century. Let's always bear in mind that we're not passive observers of history. We're making history and shaping the future. What we do or don't do, for example, will set the course for Central America and the security of our southern border. Soviet bloc has poured over a billion dollars' worth of military aid into Nicaragua. Terrorist groups and eastern bloc personnel are as thick as flies down there. And you can bet they aren't part of a people's hygiene program. We face nothing less than a strategic maneuver aimed at exploiting what our adversaries perceive as an area of American vulnerability, and we can't afford to waver. In the months ahead, while the freedom fighters are slugging it out in the Central American jungles, our political battle in Washington will be just as vital. The outcome has yet to be determined, and so many brave souls are counting on us. If we stand by our friends, if we take our case to the American people and let them know what the stakes are, it'll be democracy, not communism, that is the wave of the future in Central America, and yes, even the world. And you know, it's as simple as that. The simple truth, and we can't evade it, and some people would like to evade it can't, but if anyone is opposed to trying to help the freedom fighters there, whether they like it or not, they are then on the side of a godless, communist, totalitarian state that has already taken over. It can't, there can't be any neutrality in there. Well, that's challenge number one, and just ahead we've got the battle of the economy. Our success or lack of success in a series of individual firefights involving a variety of seemingly unconnected issues will decide whether or not our economy will grow, whether our country will prosper or sink in decline. Graham Rudman Hollings' amendment was a giant step forward, and we cannot afford to permit Congress to retreat from this commitment. Last year's tax reform was also a great accomplishment, and again we cannot and will not permit Congress to move backward. Those who speak loudly about raising taxes as a solution to federal deficit spending have no solution. Raising taxes in the long run will not increase revenue if it knocks the legs out from under growth. And let's bring that point home time and again. We're committed to bringing down the deficit, and that is why we cannot afford to raise taxes. That's why we must hold the line on spending. We've provided the American people with 52 months of stability and growth. Some liberal economists still can't believe how far we've come. You know, economists, I can't tell ethnic jokes anymore of any kind in this job, but I can talk about certain things like economists because my degree was in economics. They're the only people I know who see something working in practice and wonder if it also works in theory. There's a story about that too that I can't resist telling, and that is that there were three gentlemen up at St. Peter's Gate, and St. Peter said there was only room for one at the time, and therefore they were going to take the one that was practicing the oldest line of work. Well, one spoke, broke up and said, well, I guess that's me. I'm a surgeon. He said we know that the Lord made Adam and took a rib from Adam and made Eve, and that required surgery. Before he could move, the second one said, oh, wait a minute, wait a minute. He said for six days before the Lord did that, all was chaos, and the Lord worked six days to clear the chaos. That took engineering. I'm an engineer. Before he could move, the third one spoke up and said, I'm an economist. Where do you think they got all that chaos? Well, the economy has been vigorous, and inflation has remained low, and the doors of opportunity have opened as never before. Some 13 million new jobs have been created since the recovery began. And don't let anyone tell you these are all dead-end jobs. This morning you know the figures on unemployment for February were given. I can't keep up with the statisticians. There are something like 35,000 more people at work than there were last month. But the rate of unemployment stayed the same in spite of the fact that you know what the potential labor pool is supposed to be. It is every man and woman in the United States from 16 years of age all the way up as long as they're breathing. That is the potential employment pool. And as a result of this morning's news, today the percentage of that pool employed is the highest ever in our history, 61.6 percent. And yet the unemployment rate is still 6.6 percent as it was last month. And I don't know how they figure that out, but anyway, the better things get, sometimes they stay the same. Well, I know that we've been making progress in that, and the Bureau of Labor Statistics data suggests that many of these jobs are in the better paying categories. And even lower echelon jobs pay off on the job learning. What will not create jobs, however, is low paying or high paying is protectionism. I kind of stumbled over that one for a minute there. The best thing that we can do for our economy and the world economy is to keep commerce and trade flowing. And I don't have to tell you, this too will be an area of political confrontation. And in these next two years, we have an opportunity to work with the states and with Congress to revolutionize America's welfare system to do tremendous service to our country's less fortunate citizens. Today, as never before in the last two decades, a consensus is emerging. The role of family in breaking the cycle of poverty is no longer being ignored. And I still remember when as governor of California, I first proposed requiring welfare recipients to work in return for their welfare grants. I was called about every bad name you can imagine. Today it's almost universally accepted that work requirements must be part of meaningful welfare reform. Back on the foreign front, we've stood firm in our dealings with the Soviets, as in the case with the Intermediate Range Missile Deployment, and our tenacity may now be paying off. There's a real chance for dramatic progress. For the first time, we're within striking distance of an agreement, not just to control nuclear weapons, but to reduce their number. The watchword for this effort is realism, and that's what got us this far. And that's what will win the prize of a more peaceful and secure world, if that prize is to be won. And I think it can be. So you see, this is not a time for standing still. This is an exciting, energetic moment in this administration, and each of you is an indispensable member of the team. I know you've already met them, but I'd like to introduce you to two new star players. First is our new chief of staff, Senator Howard Baker, whom you've just heard. And Howard actually applied as White House photographer, but I had had something better in mind. And Howard, we worked well together, and we got a lot done when you were majority leader of the Senate. And we're going to be wowing them again. Another new member of the team is, and you've met him, is our new national security advisor, Frank Carlucci. And Frank is a renowned public servant, having been a key player in saving Portugal from communism, and long ago in saving legal services from me. The bottom line is, it's always better to have Frank on your side. But finally, let me just note that over the history of this great republic, presidents Jefferson, Lincoln, Roosevelt, both Teddy and Franklin, huddled with their staffs. When you stop and think about it, putting aside the meetings and phone calls that are so much a part of our hour-by-hour existence here, who cannot be haunted by a sense of history that surrounds us? One need only think of Jefferson, agonizing over sending a naval force to combat the Barbary pirates, or Lincoln discussing with his staff those monumental decisions that saved the Union. Mr. Presidents may well listen for our voices and remind their staffs that at a pivotal moment, we charted a course that ensured the peace and prosperity of generations to come. And let's never forget that's why we're here, and that would be our greatest legacy. Well, we've got our work set out for us, and together with the American people, we're going to achieve great things in the times ahead, and I'm proud to be going forward in the fourth quarter with a team like all of you. And now, I'm going to recall what the first week I was here, I received some letters from school children that told me what I should do, and you'd be surprised how familiar they were with the basic problems. Maybe they'd heard their parents talking at the table or something, but one that I always remembered was a little 11-year-old girl wrote me with all these things that I should straighten out and get straightened out and then wound up with the line now get back to the Oval Office and get to work. Thank you again and God bless you all.


Two organizations, the ETSI which is a regional organization and 3GPP which is a global organization have significantly contributed to the shape of NGN as we see today. In this module we'd see what has been their role with regards to NGN recommendations in the Y-Series. First we understand that ETSI tasked its own specialized technical committee called TSPAN which is the Telecommunications and Internet Converse Services and Protocols for Advanced Networking. Now, TSPAN on behalf of ETSI started working in collaboration with ITUT and this activity resulted in three releases from the ETSI community. TSPAN recommendations include the IMS, the IP Multimedia Subsystem which is nothing but it's a fixed voice over IP equivalent to replace the public switch telephone networks which were based on the circuit switching. Now the first release actually was taken up by the third generation partnership project group which was again collaborating with the ITUT. And now we see that in NGN there is one common IP Multimedia Subsystem standard for all networks and services across wide and wireless domains. This beauty or beautiful contribution from the TSPAN community is central to the collaboration that resulted between the ETSI and 3GPP. Now the first release was primarily for voice which was based on the session initiation protocol based applications which is equivalent to the SS7 signaling standard 7 used as in PSTNs and PLMNs. The second release of TSPAN addresses both non-IMS-based and IMS-based IP television. It addresses the broadcast TV over the internet. Consequently, TSPAN releases have contributed to the triple-play services if you recall our voice, video and data services over the internet stack. There's another dimension to the TSPAN specifications that it quadruple play. Quadruple includes an additional play which is when we include quality of service based high-end video which is transmitted along with tele-text service. Now when TSPAN and 3GPP started working together through their collaborative efforts, the TSPAN NGN release 1 specifications were mapped on to the release 7 specifications provided by the 3GPP group. Likewise, the TSPAN specifications number released 2 specifications were mapped on to the release 8 of the 3GPP. In this way, these organizations while being distinct have collaborated in the evolution of NGN documentation. 3GPP per se as an individual organization has played an important role in NGN standardization by number one adopting the IMS specifications as given by TSPAN. The same release that is release 8 also standardized the long-term evolution which is an advanced form of the after 3GVC 4G in the radioexercite called RAN radio access network. So this means the IP based migration of the 3GPP into the evolved UMTS Terrestrial Radio Access Network and the SAE which is basically the architecture for the LTE are all based on IP. Now this simultaneously helped 3GPP to be a more significant player because while on one end it contributed the IMS for the mobile networks and at the same time it based its core network functionality as in EUTRAN and SAE on IP. As far as the LTE is concerned because in Pakistan we are used to of seeing LTE and LTEA also known as the 4G networks it is interesting that while 3GPP was working on the standardization activity of NGN 4G was released. So 4G is essentially NGN an interesting analogy is sometimes from the ITUT standard perspective 4G is also called 3.9G not exactly 4G because it is a little short on the ITUT NGN recommendations. One unique attribute of 4G is as per the ITUT NGN guidelines the functionalities which were carried out in band sometimes and were shared by the network elements. Now there is a dedicated network infrastructure also called the overlay network that we discussed earlier once we were discussing SS7. Now we have in LTE separate transport and service stratum it means the services are offered on a different network elements and the traffic is actually carried on different network elements. And LTE also utilizes SIP for signaling on the IP multimedia subsystem. So LTE by all standards is NGN.


I don't think there are a lot of conservative or Republican Georgia voters who think any differently of him now. In fact, I'm hearing, at least according to his campaign director, his fundraising surged in the light of these accusations and allegations. And I'm not hearing anyone in the party, Republican leaders, denouncing it. They're standing by him. So we might be alarmed by it, I think, rightly so. But I don't think this will shake loose a lot of voters. He might not win, but I don't think it's going to be because Republican voters in Georgia decided, well, this, this is too far. All right, look, so I mean, part of this obviously is that the bar for a Herschel walker couldn't be any lower. But still, I think the Daily Beast reporting is surprising to the extent that on the same day he's saying, I don't have a clue who this woman is. They say actually it's a woman you had a previously undisclosed child out of wedlock with. So that doesn't track. Look, in defense of Georgia voters, Georgia Republican voters, in 2020, they proved that swing voters were still alive. They split the ticket between folks. And that's one of the reasons Joe Biden won, is Republicans, particularly in the suburbs in Georgia said, you know what, I can't deal with Donald Trump again, I'm going Biden. The problem is I think a lot of Republican operatives have been saying out loud in commentators, you know what, it doesn't matter. It doesn't matter to the hypocrite on abortion. All we want is this seat. History doesn't matter. Competence doesn't matter. Truth. Telling doesn't matter. And that is, I think, a really dangerous thing. That's about not being post-history, but potentially post-truth when it comes to this stuff. But what we're seeing is that character and ethics are really not a qualifying factor for elected officials anymore. People are looking past a lot of that. And it's unfortunate, but it is actual reality. And here's what we're going to see. October surprises are just as common as we saw the leaves changing in death and taxes. People expect that. But in my conversations with people in my home state of Georgia, they are not concerned with what Herschel Walker did in 2009. They're looking at what he is promising to do as a U.S. senator. He's not promising to do anything else. Let's be honest about this. What we're saying is character doesn't count in a Senate seat. What we're saying is competence doesn't count. Because nobody's voting right. And that's what's really dangerous, because if you go down that slippery slope and you say that character doesn't count, competence doesn't count, telling the truth doesn't count. What you're really saying is party above country, power above everything. And that's antithetical to the idea of the Senate and to the ideals that our democracy actually depends upon, which is some people, enough people saying the person over the party. But they don't even know what people are focusing on are the policies. They look at what... What policies? There's no policy here. His policies with regard to fighting crime with... What policies is Herschel Walker? He's against it? He certainly wants that. Is Raphael Wannick for it? I mean, you've got a reverend here. You're a person of faith. You've got an actual reverend or someone who lies about getting an abortion while being anti-abortion on the surface. Isn't that as... To the extent that faith impacts political decisions, I'm not clear why some Georgia voters who are people of faith wouldn't say, given the overturning of Roe, you know what? The actual reverend might be a better end to serve your faith. I hate to do this, but I have to give credit to SCCUP and John Avalon, because the points that they were making there were phenomenal. And the clip is much longer, so I'll link to that down below if you want to watch the full thing. But the way that that GOP operative tried to rationalize this is just laughable. You can't pretend as if GOP voters are voting on substance in 2020 to America. That's just not what they're doing anymore. They're very clearly not voting on substance because you have so many candidates who aren't running on substance. They're either trying to, you know, galvanize people to vote for them based on hysteria, CRT or grooming, or they're just hate-mongering about immigrants and other people who are marginalized minorities. So you can't tell me that the GOP base is concerned with policy. And we'll get to that here in a moment, because we have some interviews from Herschel Walker supporters that I think are fascinating as well. So she tries to rationalize it by saying, well, look, I don't think that voters are concerned with what Herschel Walker did in 2009. They're concerned with what he's going to do policy-wise as a senator, which is when they chime in and say, he's not looking to do anything. He doesn't have an agenda. Has anyone heard Herschel Walker talk about policy? It rarely happens. But when it does, it's comical. He makes a fool of himself, which is why he's probably coached to stick to platitudes because when he talks about substance or tries to talk about substance, it does not go well for him. And she later said that people are focused on policies. They responded by saying what policies. And she says, well, policies with regard to crime. And then John Avalon chimes in saying, well, what policies in particular is Herschel Walker promoting that will reduce the level of crime? Is he just saying he's against crime? That's that's just such a devastating point, because this is the problem with the modern day GOP. And to be fair, this has been an issue for a very long time. They fear monger about the crime. They fear monger about high gas prices. Inflation, geopolitical issues, but they never propose any solutions ever. They just say what Joe Biden is doing is bad. But they don't say, here's how I would do things differently. They never follow up with that point. Logically, if you see a problem and you're running for a political office where you will be in a position of massive power and you have some political authority, will you have to follow up with the policy prescription? You can't just say, I don't like this. I don't like that. And then leave it at that. You have to say, OK, gas prices are high. Here's what I do. But we see House GOP, Senate GOP, they don't try to be part of the solution. We've seen this year how they voted against capping the cost of insulin voted against reigning in oil and gas companies who are price gouging. Time and again, they vote against things that they complain about. They vote to not be the solution. They just want to complain because they don't want to give Joe Biden or Democrats a dub. So they just complain. So you can't claim with a straight face that the base at this point in time, when they know what the GOP has been doing is policy focused because they're just not. Now, HuffPost went to a particular area in Georgia, which is going to kind of be, to my understanding, a determining factor, a determining county in who gets elected in the Georgia Senate race.  Some of them were kind of split. They were voting for the Libertarian Party. But a lot of these Republicans, they just don't care. They're unfazed by the revelations that we've learned about with regard to Herschel Walker, quote, we're all sinners. Wanda Bettis, a part-time cook, told HuffPost on Wednesday as she strolled into a Walmart in the suburbs north of Atlanta, a critical battleground in the state. We've all done some things we're not proud of. I'm sure he's done some things he's not proud of. You can't blame him always for things he's done in the past. She added another Republican voter who identified himself only as Jimmy said he is sticking by Walker, even though he considers him a dishonest person. I'm not crazy about him, but he's better than the alternative, said Jimmy, who is a retired caregiver from coming. Is Walker my favorite candidate? You've got two choices. You pick the best of what you got. Cynthia Burglund, a dental hygienist from Milton said she had a hard time believing somebody that kept receipts from that long, referring to the former girlfriend. She also wasn't convinced by the angry tweets and videos posted by Walker's son, suggesting Walker's ex-wife may be responsible for turning her son against his father. Of course, Walter Pajanowski, a retired engineer from Marietta, told HuffPost he wasn't crazy about Walker, but felt he was a better choice than voting for a Democrat. So think about this.  If you're a family values person, this man does not have a shred of family values in him whatsoever. He leaves his family members, he has kids, doesn't raise them, and he has destroyed lives. He has been violent. So this is not somebody who is a good representative for somebody who cares about family values and they still don't care. They just don't care. We're in the situation where evangelicals who vote Republican, they would rather support a serial adulterer who is violent, who has had multiple kids with multiple mothers who paid for an abortion over a literal reverend in Raphael Warnock simply because he's a Democrat. That's where we're at. So this is why people don't take evangelicals seriously, because all these things that they purported to support over the years, family values, pro-life values, they tossed that out the window, which goes to show you that they're not serious about the things that they say. Remember, supposed pro-life people, i.e. forced brothers, they claim that abortion is tantamount to murder. Herschel Walker paid for an abortion.  And they're like, eh, don't really care, at least he's not a Democrat.  What do you say about that? It shows you that these people are they're unwinnable, they're too far gone.  It's just it's genuinely astonishing. But this is the modern GOP. This is what we're working with, where you can't win them over by making policy appeals.  It's just it's toxic. But this is the GOP in twenty twenty two, folks. I don't talk like a politician. I don't talk like a politician. I don't talk like a politician. I build success with chicken business. I don't talk like a politician. I don't talk like a politician. I don't talk like a politician. I build success with chicken business. I don't talk like a politician.


What's up, everyone? My name is Alex. I'm one of the co-founders of MyInvestingClub.com, and I want to let you guys know about something special we're doing for our viewers on YouTube. So the most common question we get asked is, you know, how do I start day trading? So what me and my mentor about it is we create a free two-hour mentorship course for the brand-new trader. It's going to be available at MyInvestingClub.co. The link is going to be right here. This is a free webinar that reveals our 12 secrets that every single brand-new day trader should know before they start. I also want to let you guys know about something that's very unique to MIC. So if you have any questions about trading or you're curious about trading, or you don't know if MIC is the right fit for you, now you can text our head mentor, Tosh, whose number is going to be right here, and he'll answer all the questions that you have in less than 24 hours. Thank you and enjoy the video. Good morning, guys. It's Tom Diesel here. Today, I just want to do a quick video explaining how you can spot a deathline trap while you're trading. And so let's get on to it. I'm going to pull up the chart here. I have here the example for, I think this is a good example, the best I could think of, which is VVUS. As you can see, the daily chart here, this is pretty bid-in chart. And like really straight turd, you can put, yeah, this is turd, basically.  But it doesn't mean that, you know, you could short anywhere, right? So that's, you know, when shorting, you have to focus on timing. I mean, timing, it's probably timing and a good entry is probably the most crucial part or like the most important thing when you're shorting a stock.  So you have to be really precise with your entries and so on. Because with good entries, you can work, you know, with size, and it reduces, you know, a lot of emotions from trading. So yeah, so on this particular setup, in the morning, the deadline to me in the morning was at two. And then, you know, as this was a pre-market and when it pops back here, put another support here. So that to me, you know, I'm just looking at the major support as the stock is going up. And this is another one as stocks, you know, opens and put a new high here. So, but the key point I'm trying to make here is that as the stock forms, like as the chart, you know, forms during the day, right?  This is to me, it's the last line, all like the major key support. And when I think it's, you know, it's far from view app. And when I think it's broke under the longs, you know, underwater, you know, to me, this is clear. Like if you long, you have to get out here, no matter what.  The thesis is no longer valid for me, right? The major support is breaking. That's been one of the strategy that I might see preaching about daily, the death line set up. So I'm just going to quickly go over this on how to treat them and how to manage them if things get out of hand, right? Or like when the death line is not working. So the way that we teach here is that when you draw a death line like this 3.2 and you put a five minute, you know, candle stick and it closes below, it closes below this line on the five minute candle. That's the confirmation, right? And now what you're going to do is you want to short back into that part or back into that, you know, death line, which is, I think it's pretty good here. That's just a halfway of the death candle or like whatever you want to call it. So you want to short back into bounce. And the best thing here is that when stop broke this death line, right? Usually it has like, usually what it does is have a one good bounce back and then it continue to fade out. And that's pretty much it for the death line. And, you know, that's the best way or like that's the way that I like it for it to, you know, break through this line.  But in this case, the stock, you know, broke through this line, put a support here, support like bounce just a little bit, you know, here and then cracks again. But it, instead of continuing to fade down, it reclaimed, right? It reclaimed this line. This is the high and reclaimed. And then this is pretty much another line reclaimed that to this one reclaimed that to and, you know, bounce all the way back to that. I mean, you could be patient. I mean, the thesis is still like the thesis is still valid, right? Like if you didn't short here, all right, you know, don't mind. You want to short back into that line. This one right here. Yeah, that's okay. You know, nothing wrong with that. Like the overall picture, the big picture is still valid. The stock is still under the deadline, which is 3.2. And you want to short back on that bounce. Yes. So you enter here, right? And stock dips and you're not covering anything yet because you think, all right, this is a good probability that stock is going to go down further. But instead, it didn't, right? Just based off from three and then rips through. So what your risk management here should be is that you short back into this line and you have to put a stop above that candle. That's how I would approach it. That's the only way I would do because it shouldn't break that high anymore.  Or when you short back at 3.2, you want to put a stop, maybe like 10 cents or 15 cents above that because the stock shouldn't act that way. When it pops back to that deadline, it should have fell and then continue to fade down. But instead, it put a new base here and rips through that. So what I'm trying to say is, whenever you see a deadline set up like this, the stock should never base off the deadline. Like broke through that and base off. I mean, look at this. It's like this area, it's where it base like here 3.2 and right here, it's just based off from this line. I mean, this is the big red flag. You don't want for the deadline set up to break the deadline like this and then continue to hold. This is the big red flag for me, the big sign for me. I have to get out.  And it just, you know, it's just not working. And you can draw a trend line here. You can see from this to this. That's the trend right there, right? I mean, it should have been like this. But, you know, instead it was like grinding high lows, low highs, like this.  It should have been like that and continue to fade down. So that's my thought on that. And you know how, how you can spot, you know, a trap. Like I always have a hard stop. So it really what it comes down to like risk management in the long term. And you have to, you have to kind of be disciplined on that. And that's, I think the only way how you can profitable in the long term having a plan and trade your plan. So yeah, guys. So this is how you can spot a, you know, a deathline trap. You can see here and you know, look at this trend. It's like so intact, right? Broke, you know, this, this resistance broke this too. I mean, that's a big red flag. That's where you shouldn't get in. And also this one has some, yeah, I'm not expert in, in, in, in fundies. But I saw this one has as three, like probably last year. So also the thesis is kind of light up for me. So since they want to close higher to raising, you know, next morning. Yeah. But again, I'm not expert on that. But that's just my, my, my, my, my, my thought on it. And when I look at those filing and say, all right, what it does here, like broke the 3.2 and the filing is kind of weird for me since I'm probably they're going to want to close it higher to dumb in the next morning. And which exactly what it did. You want to close this one above like stock trying to break down, but it couldn't like someone is holding it from here. Right. That's the big red flag right here. And you know, it should never broke this resistance. It should continue to fade down. This is the major point to me. This is more clear than a 3.2. All right, guys. So I hope you enjoyed the video and I'm just going to keep it, you know, really short today. And I hope this is, you know, helpful. Have a weekend, guys. And I'll see you back next time. Take care. Thank you so much for watching our video. If you want to see more of our videos, please subscribe to our YouTube channel by clicking the button here. We do our best to post a new video every single day. If you have any questions about MIC or any general training questions, please text Tosh using the number here. Also, stay up to date by watching some of our most recent videos right over here.