The Constitution on Today's Hottest Debates: From Campus Free Speech to Homeless Encampments

I feel pretty strongly about this issue of public homeless encampments, and it relates to the Constitution a lot in a way. You see these public encampments proliferate. You can't walk down your own street. So I first did something about it. In Phoenix, Arizona, there was an 800-person public homeless encampment called The Zone, and I represented homeowners, business owners, property owners in the area surrounding The Zone. So we got a judicial declaration that that was a public nuisance for which the city was liable, and the encampment's gone. The encampment's gone. Today we're joined once again by constitutional law scholar Ilan Werman, professor at the University of Minnesota Law School, and one of the leading voices on constitutional interpretation and the separation of powers. In this episode, we move from constitutional theory into today's biggest national debates, from free speech on college campuses and sanctuary cities, executive power, immigration enforcement, the Federal Reserve, homeless encampments, and more. Drawing on his scholarship in constitutional and administrative law, Ilan helped us examine how the Constitution applies to some of the most controversial issues shaping America today. This is Bay Area Innovators, and I'm your host, Steve Esposito. Professor Werman, welcome back to Bay Area Innovators. Good to be back. I enjoyed our last conversation, and I'm sure I'll enjoy this one. Yes. Well, thank you for coming back, and we'll continue our discussion about the Constitution, and what I'm thinking is we're going to go into almost like a speed round where we're going to bring up some hot topics, and we want to get your take of what you think the intent of the framers of the Constitution was with those topics. But before I go there, I want to ask you your thoughts about the fact if moral values have changed the way people interpret the Constitution along the years. So I think there's obviously a connection between morality and law, but they're not the same thing, right? So I remember when I was in high school, this takes me way back, my local assemblyman had this competition called, it ought to be a law. And you know, the laws are enacted in pursuance of certain normative moral values, and the Constitution was too. But the normative values that the Constitution was enacted to effectuate and to further, I think are the same normative values that we all would adhere to and value today. So when people say that the Constitution needs to be updated, because of its interpretation needs to be updated, because we have more contemporary moral sensibilities. Well, excuse me, I still like self-government. That's a moral normative value that the framers thought they were effectuating. I still like individual liberty. They were balancing self-government and liberty. They lived in a society in which the laws existed not only to coerce, but it had an educative function. I still think that's good and that's true. I think the Constitution gives room for human flourishing. It creates the conditions for human flourishing. That's all still good. So in what sense have we engaged in normative moral progress that makes somehow the interpretation of the Constitution or that it should change? We have progressed on certain issues, and so we have amended the Constitution along with it. We abolished slavery. We had to fight a war over that moral progress, by the way. We brought women fully into the regime with the 19th Amendment and so on. So we have progressed morally. I don't think that, in certain respects, I don't think that should alter the way we interpret the Constitution. And your question is a good one, because the 8th Amendment, which, again, my book on the Constitution of 1789 is not about the Bill of Rights, which was added two years later, but the 8th Amendment says cruel and unusual punishments are prohibited. And there's a famous case called, I believe it's called, Trapp against Dulles, where the Supreme Court says we have to interpret cruel and unusual punishments consistent with the evolving standards of decency that mark the progress of a maturing society. And I'm thinking, yeah, okay, sure, to the extent that we evolve, we should reflect that in amendments to the Constitution. To the extent we evolve, we should reflect that in the laws that are democratically enacted, because ultimately the Constitution leaves a lot to the democratic process. But why should a bunch of judges who went to Harvard and Yale get to impose their own modern sensibilities? When they say the evolving standards of decency, what they left out was that most states still had capital punishment. So how could the evolving standards of decency invalidate capital punishment for purposes of the 8th Amendment? What they meant by evolving standards of decency is as we have come to understand it in our elite circles. And so I certainly think that there was a time, to answer your question directly, where normative values were used to drive interpretations of the Constitution. But I think that is generally rejected by conservative legal theorists. That's not to say normative values have nothing to do with it. The Constitution had a normative vision and a moral vision. And I think it effectuated that moral vision about self-government and liberty and so forth. Okay, let's go on with what you think the intent of the framers of the Constitution was with some of the current issues that we see today in society. So let's start with the freedom of speech on university campuses. Please talk to us about that. So there's a foundation, FIRE, Foundation for Individual Rights and Expression, used to be the Foundation for Individual Rights in Education, which argues that revoking student visas, for example, based on pro-Hamas speech or anti-American speech, violates the freedom of speech. I think that's wrong and actually ignores a very important doctrine in constitutional law called the Unconstitutional Conditions Doctrine. Now this is getting advanced. It really should be called the Constitutional Conditions Doctrine. And here's what I mean. The freedom of speech is a private right. But can that right be conditioned in some way in exchange for the receipt of a public privilege or a public benefit to which you are not otherwise entitled, like a social security benefit or a government job or a student visa? Okay, these are public privileges. They're public rights. They're supported by taxpayer dollars. There is no private right to these things. These things don't exist in the state of nature. Well, can you impose reasonable conditions on the receipt of public privileges, even if those conditions infringe or limit what otherwise would be sort of these autonomous choices that you have, including constitutional rights? And the answer, it turns out, is yes. The Supreme Court has upheld this all the time. Did you know that government employees are not allowed to engage in political speech on the job? There is cases where home welfare searches, which otherwise would violate the Fourth Amendment, were held to be perfectly legitimate as a condition on the receipt of welfare benefits, because the only consequence is, well, you give up the benefit. You don't have to let us in your home, right? But you lose your benefits. So as long as there's some germane, reasonable, rational connection between the condition and the privilege, historically, the Supreme Court has upheld those conditions. Well, is it reasonable to condition visas and immigration status and the right to learn at our universities, especially public universities, and condition that on not establishing barricades that prevent other students from attending classes? Is it a reasonable condition that if we're going to invite you into this country, the condition is you can't say really anti-Semitic things, or you can't say really anti-American things? Of course, those seem germane and rationally connected, okay? So that's the first thing I will say. The second thing I'll say about the freedom of speech, I am not a... Now I'm going to get in trouble. I told you. Unfortunately, I have tenure. I am not a free speech, academic freedom absolutist. I think academic freedom in campus speech is necessary and important because you need some birth, right? You need some range of opinions that allow you to contest your views, to challenge your views, ultimately in the pursuit of truth. But I think that is consistent with excluding some outrageous ideas that harm and undermine the search for truth itself. And quite frankly, I don't think there's some sort of academic freedom to advocate for the genocide of Jews, right? No matter how you couch it. So the problem with the last five, 10 years at universities isn't that they have been... It's not that they have been somehow not consistent with academic freedom or violating principles of academic freedom. It's that they've been suppressing true and good and legitimate speech that genuinely advances the search for truth, speech about like, are there two genders or not, right? They've been suppressing that kind of speech when they've been allowing speech like the pro-Hamas barricades, if you can even call that speech as opposed to conduct, and these anti-American screeds to exist on these college campuses. Again, you need some of this to exist in order to seek and pursue truth. But I believe that the search for truth can have boundaries. Without those boundaries, the whole purpose of searching truth would undermine the purpose of the university. The problem is they've been suppressing all the wrong speech and openly allowing to flourish all the wrong speech, right? Yeah. As you talk about this, I'm thinking of a joke that Ronald Reagan made around early 1980s. And it really talks about a double standard that exists in so many ways and how the authoritarian regimes take advantage of that because of our freedoms. And the joke goes, there was an American and a Russian talking to each other and the American would say, well, we have great freedom in our country. I can go to the White House and say, I don't like the way President Reagan is doing his job and he should be fired. The Russian says, oh, I can say that. I can do the same thing. I can go to the Kremlin and tell Gorbachev, hey, the American president is not doing a good job and he should be fired. So, you know, that's exactly the kind of double standard that people take advantage of. I absolutely love that joke, which also, by the way, the Soviet Union had a wonderful Bill of Rights. Wow. All the freedoms that it guaranteed. It didn't make that freedom real. Do you know what makes that freedom real? It's structure. It's the separation of powers. It's what we discussed last week on our previous episode, how the Constitution divides and separates power and enables each institution to exercise its power well. It's ambition counteracting ambition, as they said in the Federalist Papers. That's what guarantees freedom. As Justice Antonin Scalia once said, any tin pot dictator can have a Bill of Rights. So anyway, I love, I absolutely love the joke. I believe my late father told me that joke once. He was also an escapee from Eastern Europe, you know, and the Soviet Iron Curtain. So, of course, he would also know jokes that emerged from people who've experienced communist totalitarianism. Yes. Let's move on to the second topic, sanctuary cities. OK, lightning round. So here is fascinating. As you know, I although I'm in, as you mentioned last week, I'm in San Diego for my sabbatical. I am a normally live and work at the University of Minnesota. So I was in the heart of the Twin Cities when they, you know, the federal government engaged in what the locals call an occupation, which, you know, is a quite strong language, right? This ice surge, Operation Metro Surge. And here's my view about this. And this actually does relate to something in my book in the book on 1789, because they had debates about, again, the division of federal and state power. So the fascinating thing is the federalists, the ones who were pro-national power, they supported a large federal bureaucracy. They wanted the federal government to execute its own resolutions and its own laws. And it's the anti-federalists who wanted state officers to help enforce federal law, because state officers often, like a local sheriff, would be elected by the people locally, right? Unlike federal officers would be more attuned to the interests of the people and would be able to collect the taxes and execute the laws of the union in a sensible way, attuned to the circumstances and impulses of the people. It's the anti-federalists, the people who distrusted central government power, who wanted state officers to assist in the execution of federal law. Well, what's the problem in Minnesota circa 2020, early year this year, 2026? These sanctuary cities get it exactly backward. If you want to keep the federal officers at bay, then you should help enforce federal law. You should at least give the worst of the worst offenders back to the federal government. And in this way, you're interposing yourself between the people of your state and the federal officers. You can say, look, we're not going to be super aggressive with enforcing or helping enforce the laws, but we'll give you the worst of the worst, but please don't come into our state. But if you're not even going to give the worst of the worst, if you're going to give sanctuaries to these people, not only who are here illegally, but who have raped, murdered, done terrible, terrible things, gang members, well, you are inviting federal intervention. You're doing exactly what the anti-federalists didn't want to do. They wanted to help enforce federal law so that the federal swarm of officers, what they would often call a swarm of harpies, would be left at bay. So they have it exactly backward. You don't want, well, you had better start assisting at least somewhat in the enforcing of federal law rather than thwarting and impeding the execution of federal law. Now we talk about the National Guard in our last episode. So we invite the audience to see that one to hear our discussion. The next one I want to ask about is Maduro and Venezuela and the extraction that was performed of Venezuela's president. And again, what the framework, the intent was from the constitution framework to address this. Let me say a few things about this. The first is international law is mostly irrelevant to questions of constitutional power. If Congress wants to violate international law, if it wants to breach the national honor, it can do so. I mean, Congress can pass a law that says, we want to conquer Canada just for the heck of it because we want power and more territory. It might violate international law, but it wouldn't be unconstitutional in any respect. So this is important, Steve, because a lot of the commentary we heard around Maduro was all about international law, international law, international law. The real question is the constitutional distribution of power between Congress and the president and whether the president was allowed to do this unilaterally. Okay. So let me tell you about the framers intention. And then let me tell you about the modern framework, which was really crystallized by the Obama administration when they bombed Libya in 2011, leading to the death of Libyan leader Muammar Gaddafi. But before that, let's just go back to the original founding. The framers clearly intended and contemplated that the president would have some ability to engage in force on his own, but that Congress would otherwise be making most of the choices about commencing or authorizing or declaring war. So how do we know this? Well, there was a debate in the Constitutional Convention. The initial draft of Congress's powers said Congress shall have the power to make war. And there was a motion to change it to say Congress shall have the power to declare war. And part of the reason they changed it is because they all anticipated that the president would be required to make war occasionally without Congress. You couldn't always wait for Congress to declare war before war would be made. And they told us because the president would have to repel sudden invasions. So they understood that acting defensively would be a proper use of the commander-in-chief power. You don't have to wait for Congress to act defensively. George Washington, who attacked the Wabash tribes as part of the defense of the frontier, wrote to a governor and to several others, and he said offensive expeditions of importance must be authorized by Congress. I can only act defensively, which might require a little proportionate offense, okay, but ultimately it's up to Congress. So under the original conception of the Constitution of this division of power, the case against capturing Maduro is much weaker right now. It's not indefensible. It's not totally indefensible. The regime had been kidnapping Americans. The regime had expropriated American property. The regime was, of course, sending drug dealers and effectively military-age cartel members into the United States. Could that justify a kind of state of war that the president could deploy the military to defend against? Probably. I do think capturing a leader is probably an offensive expedition of importance. We're going to George Washington's language. Okay, but, but, and I know I'm filibustering, which I did on the last episode too. The modern framework is mostly given by the Office of Legal Counsel, OLC, and the Department of Justice, the executive branch's lawyers, so to speak, formal lawyers. They promulgated an opinion in 2011 to justify the bombing campaign against Muammar Gaddafi during the Libyan civil war, and the Obama administration, relying on antecedents, but I don't think they had a really fair reading of those antecedents, basically said the president can engage in military action anywhere in the world without Congress if the president believes it's in the national interest. So it doesn't have to even be an attack on America. What did the Libyan civil war have to do with America, right? It wasn't defensive. So they said as long as it's in the national interest, and if the duration, nature, and scope of the conflict is such that it doesn't amount to war in the constitutional sense, well, I guess a bombing campaign that led to the bombing of a convoy in which the Libyan leader was present, which then led to his capture and execution by If that's justified by this legal framework, which is totally unconstitutional as a historical matter, right? Again, where do you get the power in the constitution to just drop bombs on some random country, right, just because it's in the national interest? But if that was legally justified, Steve, my point is, well, the Maduro extraction was, in terms of the nature, scope, and duration, was even more precise. The 2011 legal framework, what kind of format is it in? It's not an amendment to the constitution, right? It's just a law that's been passed. It's not even a law. It is a memorandum that was written and issued by the executive branch under Obama by the office of legal counsel. It is not a law. It simply articulates the executive branch's view of the president's independent constitutional power. But it's not a law. It's not a law. And if you ask me, it's unconstitutional. So again, what can anybody do about it? I don't know how much we talked about it last time. I can't recall. But of course, it presumes a functioning Congress, right? It presumes that Congress will step in and say, no, you can't do that. Of course, Congress would have to pass a law that prohibits, say, the bombing of Libya, which reverses the inertia. Because historically, you couldn't bomb Libya without Congress first doing something. But at least Congress should be able to step in and say, you can't do that. This is too far. But anyway, so the point, yeah, the point is only that if Obama could do this, then I think Trump can do it too. So it's good for the goose. It's good for the gander. So the same would apply to the Iran operation, you would say? So the best justification under the modern framework is that the nature, scope, and duration of the conflict is such that it does not amount to war in the constitutional sense. Again, this is all preposterous as a matter of the original meaning of the Constitution. It's all hogwash, okay? There's every use of force. They told us this, by the way. Every engagement of public force between one nation and another nation is war. Just because it's not total war doesn't mean it's not war. It could be a limited war. It could be a partial war. If you authorize one Navy destroyer to go and attack one Iranian Navy destroyer, to them, that was war. That was public war. It was limited. It was partial. But it was war. So all of this is just a bunch of mumbo jumbo, okay? Now, having said that, under the Obama era Office of Legal Counsel framework, can the Trump administration justify its Iran actions on the ground that there are no ground troops? And therefore, the nature, scope, and duration, it's still in the national interest. It's still relatively defensive. There haven't been a tremendous risk to American lives and property. We've been doing precision strikes. Probably. I do think destroying the entire Navy is probably, historically, the kind of thing, again, offensive expeditions of importance. But look, there's the modern framework and there's the historical framework. The historical framework, is there a justification to go into Iran the way the Trump administration has done? I think so, in the sense that Iran has been engaged in war against the United States for 50 years. The hostages, the embassy, that was an act of war. The bombing of the Beirut barracks, that was an act of war. It's proxies in Iraq that led to several hundred U.S. soldier deaths, acts of war. So yes, I think we could act defensively. But under the historic analysis, offensive expeditions of importance would still require congressional approval. And we probably got to that stage, but then he pulled back a little, right? So the short answer is it's complicated. Now the next one would be ice raids. And we kind of talk about it as far as the sanctuary cities, but by itself, the ice raids, any thought about how the framers would envision that? Yeah, well, so what I can say is it does tie in a lot to the sanctuary city question and the question of federal officers versus state officers. But there's another point, if I may, which is the consequence of the ice raids is also often mandatory detention of people under the statutes who have been here potentially for 20 years, 30 years, five years. And this has created a bit of a controversy. And I can't remember if I plugged it last week, but if I may, I have my own podcast and I'll just say it once. It's called Rationally Based. I hope people follow it. We took a deep dive into this question, Steve. Where does it air? What platforms? All platforms. We've got YouTubes, we've got video, we've got Apple, Spotify, and so you can catch us anywhere just rationally based. It's a kind of a play on the rational basis test, which is a legal test. But also the young kids these days often call themselves based, which means edgy, unafraid to buck the conventional wisdom. And so it's sort of a play on that. But so we are a very, very conservative right-wing law professor plus non-lawyer podcast. And so it's a lot of fun, but we took a deep dive into this issue. A lot of people say that the Trump administration is violating longstanding, clearly established law by detaining individuals who have been in the United States for 20 years. And the answer is actually the statute, I think strongly supports the Trump administration here. So the whole point of the immigration laws, I don't know if you were in the United States. Okay, I was in elementary school. Was I even in elementary school? Anyway, prior to the 1996 immigration reform, if you were able to sneak into the country, Steve, you had tremendous advantages. The only way, the only, the difference was if you were caught at the border, we could detain you and we could summarily kind of remove you. But if you snuck in, even for like a day, I mean, I think there was like more than two weeks. If you snuck in and evaded inspection for two weeks, the only way to remove you was to deport you the same way you deported lawful residents, lawful permanent residents or immigrants who became deportable. And so the whole point of the 1996 legislation was to collapse this distinction between aliens caught at the border and aliens who evaded inspection. You don't want to reward those people. And yet, nevertheless, people today say, well, the statute maybe collapsed this distinction, but not for purposes of mandatory detention. So you could mandatorily detain somebody caught at the border, they say, but you can't mandatorily detain somebody who snuck in a year ago. And I think that's crazy. Morally, normatively complex. If you've been here 20 years, can you just be mandatorily detained? Under the statute, I think so. Morally complex issue. But why should someone who snuck in a year ago get to be free and maybe they won't show up for their actual hearing? They shouldn't be advantaged this way over people who did not successfully manage to sneak in. So I'm very supportive, textually speaking, in terms of the statute of what the Trump administration has done in this respect with the ICE and immigration enforcement. Let's talk next about the 1619 project. I think this is also something you feel strongly about and we'd like to see your thoughts on it. The Constitution has a very complex relationship with slavery. And the 1619 project argues, effectively, that everything about America is rooted in slavery. Its foundation is slavery. It's based in slavery. All its economic prosperity is because of slavery. The American Revolution was fought to perpetuate slavery. The Constitution perpetuated slavery. These are generally preposterous ideas. But I also don't think, I don't remember if there's a 1776 project, but there are some attempts at competing against this. We don't want to sugarcoat it either. We don't want to say that the founders were unanimously and always anti-slavery, that the Constitution was anti-slavery, that slavery did not feature at all in American history. But that's also preposterous. But nobody, I think, argues it in exactly that way. The answer is, the Constitution is very complex. Its interaction with slavery was very complex. So let me say something about the Constitution and then let me say something about the founders. Because these are two different things, right? It could be that the founders believed something, that they believed that they were anti-slavery or doing something anti-slavery that perpetuated slavery, in fact. So we have to distinguish them. So first, let me say something about the Constitution. From every perspective, the Constitution was an improvement on the slavery question. Which, by the way, maybe it goes without saying to your audience, but slavery was not unique to America. Slavery had existed throughout human history. There's still slavery today. The Arab slave trade was arguably, in some respects, much worse than the transatlantic slave trade. There was the white European slave trade, again usually perpetuated by the Barbary states and the North African states. But that is not to gloss over the real sin of slavery in America. It's not to gloss that over, but just to put it in historical perspective. In every respect, the Constitution was an improvement with respect to what came before. So think about the Atlantic Slave Trade Clause. Under the Articles of Confederation, under the British Empire, there was no prohibition on bringing in slaves into America. It's true that the Atlantic Slave Trade Clause was delayed until 1808. It delayed Congress's ability to prohibit the slave trade until 1808, but they did as soon as 1808 happened. It was the best that could be accomplished at that time, and it allowed Congress to abolish the bringing in of new slaves, to prohibit the bringing in of new slaves. What about the territories? Under the Articles of Confederation, the central government had really no power over the territories. The Constitution has a territories clause that gives Congress power over the territories, and they created the Northwest Ordinance. Now it's true, the Northwest Ordinance came from the Articles, and they were kind of flubbing the textual basis for regulating the territories. But nobody doubted that under the new Constitution, Congress could abolish slavery in the territories. Nobody doubted it until the Dred Scott decision, by the way, which is why that eventually kind of led to the Civil War. What about abolition in the states? Half the states, all the northern states, more or less abolished slavery after the American Revolution, or set a timetable for abolition. Federalism means Congress can't touch those states, right, and bring slavery into all the states. These were all improvements. Now, there was, it's true, a Three-Fifths Clause. And the Three-Fifths Clause was bad, but not for the reason everybody thinks. I always get in trouble when I tell this in class, because someone's like, oh, Professor Werman says the Three-Fifths Clause was a good thing. No, no, no, no, no. It's bad, but not for the reason everyone thinks. The problem with the Three-Fifths Clause was that it gave representation in the Electoral College and in Congress to the South for slaves, right? So every five slaves they had, that was as if they had three free people and they got representation accordingly. This increased their political power. From the South's perspective, Steve, they wanted a Five-Fifths Clause. They wanted a Five-Fifths Clause, right? Because you have this whole population that doesn't vote, but they get political power because of their presence. Did you know that Thomas Jefferson almost certainly would not have won the election of 1800 if representation and the Electoral College were apportioned only according to free people? If the Three-Fifths Bonus didn't exist, John Adams would have won. Can you imagine how different American history might have gone without this election of 1800? It's quite astonishing to think about. So yes, they thought they were compromising. They thought they were encouraging people to abolish slavery so that you get even more representation. For example, you could tax them. That was part of the compromise. But in practice, in effect, it's true. The Three-Fifths Clause, in fact, encouraged slavery in the sense of, it perpetuated it, I should say, in the sense of giving the South a choke on national government power, a chokehold, because of this bonus that they had for their enslaved population. So the answer is it's complicated. The Fugitive Slave Clause, it's true. South Carolina and some of the Southern governments were saying, we'll go our separate ways without the Fugitive Slave Clause, without the right to reclaim enslaved people who have fled to the North. Would a Southern Confederacy on its own, over which the North had no control, would that have led to the abolition of slavery any time earlier? It would have been a terrible arrangement. European powers would have sought to divide and conquer us. So in every respect, the Constitution was an improvement. Now, let me say one last thing, because again, I'm filibustering and I apologize. The founders themselves, I could quote to you George Washington, Thomas Jefferson, John Adams, Alexander Hamilton, Benjamin Franklin, but I'm going to quote to you instead. A senator from the state of Virginia on the eve of the Civil War in 1860, they admitted that they no longer believed what their founding fathers believed. They said, this is Senator Robert Hunter, 1860, floor of the United States Senate, we no longer believe what all the leading men of Virginia, George Washington, Thomas Jefferson, James Madison, James Monroe, we no longer believe what they believe, that slavery is an evil to be eliminated. We have shifted our ground. We now believe that slavery is a positive good. It is a good not only for the white man, but for the black man as well. They admitted that they had diverged from the founders' perspective on this. So the short answer is, it's complicated, but as a general matter, I think the founders were anti-slavery. I think the Constitution that they wrote was a dramatic improvement and was generally in furtherance of the anti-slavery cause with some complications. Wow, yeah, thanks for that update. And yeah, that indeed is complicated. It goes back so many years and really needs to be studied carefully to understand it from different perspectives. I think that's what's really crucial, to understand it from different perspectives and hopefully come to the best answer. Now let's come back to the modern times. The next question is, can the president fire the chairman of the Federal Reserve? I have a whole paper about this. Not about the Fed, but the implications are clear. So this goes back to something we talked a little bit about in the previous episode that we did, where I recall I was describing the relationship of the president to the principal officers. I said the president can fire the principal officers, but cannot actually control them, or does not have a right to control them in the exercise of their duties. Why is this significant? Because firing comes at a political cost. If you fire somebody, if you fire James Comey, remember Trump fired James Comey, which he had every right to do, but there are political costs. I mean, that led to the impaneling of, was that the Mueller investigation? I mean, I can't even remember those. Ten years ago now, nine years ago now, Richard Nixon, hugely controversial when two attorneys general, the Saturday Night Massacre, had to effectively resign because they wouldn't fire the special counsel. I mentioned on the last episode, Andrew Jackson had to fire two treasury secretaries, and there was a political cost to those things. But what's more, and this is really the fundamental point, the political cost goes up to the degree you believe it is improper for the president to attempt to interfere. So if your view of executive power, oh, it's the president has a right to do this. It's hard to get upset if the president removes somebody. But if your view is like my view, which is the president has a right to supervise and oversee, and the way he does that is through the removal power, but doesn't have a right to control every exercise of executive power, to control the duties of every officer in whom Congress vests duties, then the political cost goes up. If your view is that the president is removing someone because of an improper attempt at influencing them in a way that Congress did not intend, then the political cost of removing them goes up. Dare I say, to answer your question, this is why Jerome Powell has not been fired. Dare I say, because Trump understands that the political cost of firing the Fed chair would be different than the political cost of firing the head of the Department of War or Defense or whatever, which itself would be different than hiring a federal trade commissioner, right? If your view is that Congress intended the Fed to be special and insulated and exercise independent judgment and exercise their duties independently based on their expertise, in my view, the president can absolutely fire the head of the Fed. Absolutely. But the political cost would be astronomical, precisely because everybody would understand that there's no constitutional right to control interest rates. There's no constitutional right to direct these officers in the exercise of their duties. You can only fire them, and that comes at a cost, which cost goes up higher to the extent you think it's an improper interference. And as I said, dare I say, that's probably why Jerome Powell hasn't been fired. In other words, isn't that exactly how the system is supposed to work? We're seeing it before our eyes, the founder system in action. Now, what's probably going to be the last question is, we're going to come very close to home here, UC Berkeley or the city of Berkeley. You're involved with a lawsuit against the city of Berkeley about the homeless encampment. And can you please tell us about it? Give us a bit of background. And again, it's close to home, so it's going to affect our immediate environment in some way. Well, I appreciate the question. So, I feel pretty strongly about this issue of public homeless encampments, and it relates to the Constitution along a way. I think it's a violation of the social compact. What is the social compact? The social compact is, we will get out of the state of nature, and we will agree to obey the sovereign, and we will give the sovereign allegiance. In exchange for the sovereign's protection of our rights, the sovereign's protecting our rights to life, liberty, and property, which are insecure in the state of nature. You see these public encampments proliferate. You can't walk down your own street. You have people defecating in your own front yard, which has happened to me, and it's happening to my clients and their businesses. How is that not a fundamental violation of the social compact, this total and utter breakdown of law and order? So, this is why I am passionate about this issue. So, I first did something about it. In Phoenix, Arizona, there was an 800-person public homeless encampment called The Zone, and I represented homeowners, business owners, property owners in the area surrounding The Zone. I believe it was the largest homeless encampment in the United States, possibly aside from, I don't know, San Francisco, one big homeless encampment. You tell me. I don't know if there's one encampment, but yeah. The whole city, I feel like, is a homeless encampment. Okay. So, at least the Tetraloid or what have you. And the theory that we deployed, it's very important, it's called public nuisance, public nuisance or private nuisance. Historically, it was this idea that you can exercise your own freedoms. You could exercise a business, only engage in a business, only insofar as it does not interfere with the freedom and liberty of others around you. And so, this is where a lot of tort law is based on this, but especially public nuisance. You want to build an asphalt plant, you can do that. But if you pollute, you have to compensate your neighbors. If you make noise pollution, you have to compensate your neighbors. You do not have an unfettered right to do whatever you want to do, irrespective of the effects downstream. Just to clarify a little bit of what actually happened there. So, there was this big homeless encampment in the city of Berkeley and the city was encouraging it or allowing it, or what was the actual part that you disagreed with? Depends who you ask. So, our theory was you cannot establish a nuisance, right? You cannot operate your business. You cannot operate your city streets in a way that interferes with the rights of others, either their private rights or their public rights. There's a public right to access the streets. So, there is a body of law in tort, in public nuisance law and private nuisance law that says a landowner is responsible for the nuisance creating activities of third parties on its lands if it knows of it and fails to take reasonable steps to prevent the nuisance or if it consents to their presence. And so, what we were able to show at trial was that the city of Phoenix basically said, oh, everything's voluntary. We can't force anybody. It's like, what do you mean? They're trespassing. They're engaging a nuisance. Of course, you can't arrest them if you really had to or you really wanted to. And so, we got a judicial declaration that that was a public nuisance for which the city was liable and the encampment's gone. The encampment's gone. 800 people cleaned up. And it turns out, the vast majority of them accepted shelter and services. You know why? Because these people, they're drug addicts and many of them are mentally ill, but they're not stupid. They understand that if they can live out in their own tent in relative freedom without being imprisoned, of course, they're going to do that. But the second that they know that they can't stay there anymore, that you will go to jail, so you must choose something else. All of a sudden, the decisional calculus changes. And so, they choose to go to shelter or sanctioned campsites or something like that. Okay. Well, Berkeley has a massive encampment along the Harrison Street corridor and has had it for many, many years. There are also some other encampments. And so, we brought a lawsuit. My two partners and I brought a lawsuit on behalf of homeowners and business owners there in the city of Berkeley with the same theory. The Alameda court judge, the Alameda County judge, okay, agreed that we stated a claim. She denied the city's motion to dispose. So, the whole thing was going to trial, but actually, the case has been delayed about three months. So, we were going to go to trial this August. It's now delayed a little bit. There's also a parallel federal lawsuit. So, we sue in state court, okay, under state common law public nuisance, state statutory public nuisance theory. And again, this has worked elsewhere. But then the advocates, the progressive advocates and the NGOs sue on behalf of the homeless people in federal court, okay, to try to thwart the city from cleaning up. Or even if we won in state court, right, the city could say, oh, well, there's a separate federal order that says, you know, we can't clean it up. Why? Why? Oh, because it violates the Americans with Disabilities Act. What? Are you crazy? If anything, it's the encampments that violate the Americans with Disability Act. What if people want to use the sidewalks? The whole theory is crazy of the federal lawsuit. It's this idea that the Americans with Disabilities Act gives you an accommodation, an exemption from a generally applicable legal prohibition. Like, you don't get to commit murder because you're disabled, okay? You don't get to rob a bank because you're disabled. And you don't get to pitch a tent and live on the sidewalks because you're disabled. That's not what the Americans with Disabilities Act is about, right? So, the whole thing is crazy. It is, we're in the throes of all this litigation in federal court, in state court. If your listeners are interested in this because they're in the Bay Area, we could always use support of all kinds, whether media support, financial support, you know, they don't have their own money for this too, right? They're small, like, it's like a small winery and it's a small, you know, a bagel shop, you know. And so, we could always use that kind of support. So, if there is interest in the Bay Area on this, I hope they reach out to me. Now, you know, that reminds me, you mentioned about the nuisance, public nuisance, and I can't help but thinking of, in San Francisco, there's many times graffiti being, you know, people's houses or fences or whatever are graffiti sprayed. The city comes to the owners of those places and they're going to give them a ticket and they have to clean the graffiti and if not, they get fined or whatever. Oh, yeah. If you're a private landowner and if you try to set up a homeless shelter on your house without a proper permit, without the right zoning, oh, you would be sued to high heaven by the city of Berkeley. But no, if you just pitch a tent on the street, you could effectively create an outdoor homeless encampment, totally contrary to the zoning laws, totally contrary to the, you know, permitting requirements, no problem, no problem. The whole thing is, it's literally two-tiered system. If you are a law-abiding citizen, we will screw you as much as we can. But if you are a drug addict who's violent, who's out on the street and creates a public encampment that's a nuisance that interferes with other people's rights, oh, we can't do anything about that. It's utter insanity what has happened. It's a violation of the social compact and you can tell I feel quite passionately about this issue. Well, one last thing to ask you is, what is your goal with your book and your podcast and what's next for you? Wow, thank you so much for that question. So, I wrote the book because, you know, I think we talked also a little bit about this on the last episode, that like I really think we should venerate and admire the Constitution and I think we're covering its original meaning will help that. But also just more prosaically, more pedestrian reason actually, is that there just wasn't an introduction to the Constitution that covered from an originalist, textualist, conservative perspective. What is legislative power? What is executive power? Who has the foreign affairs and the war powers and so on? And so my goal was to supply that introduction. And so I hope it will be used by law students, college students, generally educated lay readers, people like your audience, I really think would benefit from it and would really gain an understanding of what our system is all about. As for my podcast, Rationally Based, there are lots of legal podcasts out there, but they're all deficient in some respects. So there's a podcast, a lot of people know, that's two prominent right-of-center individuals, but that's quite squishy and they're not law professors. There is a legal podcast with two law professors who are on opposite sides of the spectrum. It's called Divided Argument, right? But one's libertarian, one's progressive. I'm hardcore conservative, you know. You have a progressive podcast with three progressive law professors. There wasn't a legal podcast from a really genuinely conservative, generally MAGA-aligned, right? I'm not a knee-jerk MAGA supporter, right? I don't think everything they do is defensible, but I do think there is a lot behind the MAGA agenda that requires explanation and has some justification to it. And having a conservative law professor provide that intellectual grounding and underpinning and explanation and often defenses of what a lot on the right are feeling, I thought was very important. And of course, I have a non-lawyer co-host. She's young and she's not a lawyer, and she says what all the young people are thinking, right? She's based, if you will, which is again a play on words here, what the young kids call based. So the objective is also to be explanatory and accessible to the general public. And so that's the goal. I think we've generally been successful over our first four months or so. So I really enjoy it and I hope people tune in to Rationally Based if they're looking for another podcast. Absolutely. Well, Ilan, we thank you so much. We appreciate your time. It's been fascinating. A lot of amazing things we talked about. We appreciate it and we'll hope to see you next time on our show. Thanks so much. Thank you for watching another episode of Bay Area Innovators. If you enjoyed this episode and you know someone who should be on our show, please send us an email at sfbay.epochtimes.com. We would love to hear from you. Thank you and see you next week.