Of many of you individually. It still is a pleasure to introduce senator mike lee, and ill introduce in this way. Not just asos one of the most thoughtful members of the United States senate, not just one of the patriots of our age, but someone who in spite of all of the challenges facing this great republic, remains steadfast in his cheerfulness. And so it is a wonderful privilege on behalf of all of us at the Heritage Foundation to introduce our friend senator mike lee. [applause] thank you. Senator good afternoon to you. Thank you. Yeah good to be here. Thanks. Thanks for being here. So were going to get into this wonderful book, which i told you earlier in the week. I had skimmed i have since read so i did my homework. And you can decide how well i did based on the questions. But before we get into the book, theres a lot going on in washington this week. I know you dont mind a question about that. Whats your assessment of whats happening in the country right now . Well a lots happening including the fact that weve got people who want to protest at the homes of Supreme Court justices. Weve got federal statute that makes that a felony offense and a president whos unwilling to condemn it or direct that his Law Enforcement personnel arrest people for doing that and thats creating other problems like those that we saw at the home of Justice Kavanaugh early yesterday morning. Weve also got a country thats responding to some tragedies. Understandably wanting to respond and not always responding in a way that is respectful of the procedures required by our constitution. Excellent segue for a man here to talk about his book regarding the institution of the Supreme Court. So i have a couple of passages all key in on and i know that you have some things you want to highlight for us in it, by the way, there are books available after this is over and we were going to get to your questions in time. But before that what what motivated you was was there a light bulb moment where you said, im gonna to write this book about saving this for it started in the fall of 2021. We saw the first debate between President Trump and then Vice President then former Vice President biden. A question was asked to joe biden. Will you pack the court . And i thought i assumed the answer would be no, of course not thats a terrible idea. Joe biden after all as i said senator had been very clear about this. He called it a bonehead idea. He said it was a bonehead idea back then it would be a bonehead idea to do it now, and i thought he would stick with that that has after all become the norm. Its become something that has United People along every point along the ideological spectrum quartz packing is bad. So when he equivocated, and uttered some barely intelligible sentence that sounded like i cant say yes, because if i say, yes, ill get criticized. So im just not going to speak to that that worried me. I hope that my concerns would be laid in the early months of his presidency. They were not instead. He created a commission to look at the idea of it. Thats so that was warning bell number two. And after warning bell number two, i realized nobodys really written a book about this. No one has explained comprehensively why Court Packing is so bad why it was universally condemned from the better part of the last 85 years since it was last attempted. And perhaps most importantly no one has ever told the story of the lasting and damaging impact that the last Court Packing attempt had not only on the Supreme Court itself. But on all of us on our system of government on the the separation of powers between the three branches and the distribution of power between the states and the federal government. Well, thanks for writing it and i remember sometime in that timeline of that debate and when it was apparent that president of the United States joe biden was serious about this that those of us, especially on the right, but across the political spectrum took for granted that we were always going to win the argument about keeping the Supreme Court at nine justices. So, let me let me read this statement from earlier in your book. These are your eloquent words senator. That consistency and stability are what give our system its reputation as the best in the world free from political influence. A reputation that has serious implications for the nations wider cultural and Economic Vitality you write. And you conclude this paragraph by saying . But if all roads in the federal judiciary lead to a political rubber stamp court for either party that reputation would erode and eventually disappear. Are we seeing that even or the prospects for that even without core packing . Yes. Yes. We are seeing it and its its no coincidence that were seeing that at the same time. Difficult to unravel the chicken from the egg at times and this is one of those moments theyre doing it because they want to pack the court and the reason they want to pack the court is because they want to do that. The problem here is that theyve created a monster they meaning the left. They have politicized the court by having the court take debatable matters of Public Policy and move them beyond debate. Bootstrapping them onto the constitution even though the constitution says nothing about them roe versus wade perfect example of this constitution says nothing. About abortion its not just that it doesnt contain the word, but it contains no language referring to the concept of abortion. And what that means is that its its up to the peoples elected lawmakers and typically thats going to mean at the state and local level to decide these things. But in 1973 seven of nine lawyers wearing black robes occupying that building just a few hundred yards from here decided that they could make it part of the constitution even though its not in there. And so they did. So what were seeing now is the predictable foreseeable result of that 49 years later. Weve realized that this is not a traditionally manageable standard. Weve realized that it finds no foothold in hundreds of years of angloamerican precedent leading up to the constitution is nothing in the constitution about it. Its and and its subject to these multifarious inconsistent applications. So none of these things suggest that this precedent can survive and the president is im happy to say on the verge of being jettisoned, but the left is furious about this because theyre not content to fight these particular battles in the court of Public Opinion or in legislative bodies, and thats why theyre pushing back sure. So well get into some of the contemporary debates even as we sit here, but you do a really good job in the book of tracing the history of this and i think if you were to pull people in this audience and those online we would immediately think about the 1930s and fdr, but what i really appreciated among other things about the book is you talk about wilsonian progressivism, which is really what were fighting in a lot of respects give the audience, you know, even if they may be familiar with that a sense of how important that foundation is. That is the era. Will sony and progressiveism to the contemporary debate. Yeah. Woodrow wilson whenever my my kids want to really hurt me they will come up with a a fake argument that i fall for every time that they have decided that Woodrow Wilson is one of their favorite president s. I have that really hurt. Somebody really hurts. Look Woodrow Wilson was the First American president to hold a phd. He was also the First American president to be openly contemptuous toward the constitution and he genuinely was he was he had a religious zeal for the progressive cause and as part of that he believed that we had to have experts unvarnished untainted experts to govern the unwashed masses and that the unwashed masses should be sort of kept away from the true Decision Making in government. Of course, this is an athama to the constitution. It didnt work within it. And so Woodrow Wilson was openly hostile toward it. He tried to move away. He was the first president to push aggressively toward a weakening of of the concept of federalism the Supreme Court was astute and alert enough to push back on them on that. It wasnt a perfect resistance, but it was an effective resistance against his efforts, but he planted the seeds and those seeds later found more fertile soil a couple of decades later under the administration of president Franklin D Roosevelt, they did and so walk us through if you dont mind senator that story i think probably again thinking about our smart. Well read audience here and online people could recount the highlights of that but one of the great parts of your book is that you get into the details of the attempt by fdr and his political allies to expand the court, but also why it failed, i think that that has some relevance to the conversation today. Okay, so in chapter 4 and chapter 5 of saving nine. I i walk through starting with chapter 4. Explaining what happened to president Franklin D Roosevelt during his first president ial term. He wanted to be kind of the savior of the American People during the great depression. He was going to you know, come into town on his white horse and save everybody and he was going to do it by dramatically expanding his role as president of the United States and the role of the federal government in general. With respect to the problems facing the American People during the great depression. This in his view required him to advance legislation aggressively giving the federal government a significant role in things like labor and manufacturing and agriculture and mining and a number of other activities that while economic in one way or another affecting commerce in one way or another. Or not themselves interstate commerce those things after all take place in one state. At one time but he nonetheless advanced this this aggressive argument under article one section 8 clause 3 the Commerce Clause that part of having the power to regulate. Commerce between the states encompasses necessarily the power to regulate things that affect interstate commerce. She prior to that time. For the first 150 years of the republic. That power had been understood to do essentially two things to give congress the power to regulate interstate commercial transactions if im in virginia, and im selling something to you. You live in maryland. Congress has the power to set up a system of laws that will govern that transaction should it choose to do so and to impose a negative power on state laws that would interfere. The other principal power thats derived from a power to regulate channels and instrumentalities of interstate commerce today. We would think of those as interstate airways airwaves waterways roadways canals and so forth. So this was really a new frontier that he was pushing for the Commerce Clause remember that perhaps the single most important element or one of them one of the most important elements of the constitution was that as these twin structural protections the vertical protection we call federalism that keeps most of the power close to the people the state and local level. Then theres the horizontal protection that we call separation of powers delineating the responsibilities of the branch that makes the Laws Congress the branch that enforces the laws the executive headed by the president and the branch that interprets the laws when necessary to do so to resolve a dispute as to the laws meeting in particular case. He didnt like. Particularly federalism because it was going to serve as an impediment. For him to be the savior of the American People that are during the great depression. So he pushed this aggressive interpretation saying look, youve got to interpret the Commerce Clause is Given Congress the power to regulate anything that affects interstate commerce. And pretty much everything affects interstate commerce. Its like the butterfly effect the concept that a butterfly or swarm thereof flapping wings in the amazon somewhere in brazil will affect wind currents and weather patterns in florida. The Supreme Court thankfully had already rejected similar arguments that were presented during Woodrow Wilsons time in office culminating in a case called ham murphy dagen heart that dealt with a a specific type of child labor when fdr came along they stayed pretty close to that precedent. And they pushed back up. They invalidated a lot of fdrs legislative agenda. This happened in slow motion over the course of about four years. He got tired of losing and by the time he won reelection of the fall of 1936. He said thats it. Im im going to show them whos boss now. So thats when he started. He had for some time been trying to demonize and delegitimize the court denigrating individual justices who were opposed to him. Most notably the the combination of four justices whom he deemed the four horsemen the four horsemen of the apocalypse is what he called and and the one i regard as the intellectual leader among them was got him George Sutherland the only Supreme Court justice ever to come from utah himself a byu graduate and the appeals. Yeah. Yeah, very handsome man. That could lead to a question from the audience by the way miles it could it could okay my my dad wants. Helberg sutherland professorship of law at byu. Okay. Anyway, he hated the four horsemen hated them with a white hot passion, especially because they were winning. Because most of the time the four horsemen could get at least one of the of the moderates in the court. Up to join with the four horsemen including an especially associate Justice Owen Roberts and they joined with them and theyre in their interpretation of the Commerce Clause in some cases. It was unanimous or nearly unanimous and theyre pushing back on fdrs intrusion into federalism. So we got tired of this so we started demonizing demonizing the court especially the four horsemen. Saying there were too old. Theyre out of touch. Theyre lame. They listen to nickelback. I dont know what it accusation. Yeah, its fighting words. Really. And is reached this crescendo to the point where he was ready to push in 1937 legislation giving himself the authority to appoint as many justices potentially bringing the court up to 15. It was this. Byzantine labyrinth of complicated formulas that it created including giving him the power to appoint one new justice for each justice having attained or exceeded the age of 70 on the existing court. It was really weird. He found as his lead sponsor for that guy named joe robinson. Joe robinson was a us senator from arkansas serving at the time as the Senate Majority leader. And he was also on the judiciary committee. He asked joe robinson to run the legislation joe agreed. And he was determined to tear this down. Heres the problem. While the legislation ultimately failed it failed in a way in part because it succeeded in intimidating and bullying the court. The court had after all just moved into its new chambers it moved in on april 12th. 1935. This beautiful marble palace that they occupied they didnt want their parade reigned upon and apparently owen roberts was persuaded and bullied and intimidated because in a case decided two years to the date after they had moved in april 12 1937. Is switched his vote in a case thats rarely discussed in civics classes rarely discussed in college or not disgusting very much even in law schools. Name of the cases nlrb versus jones and Laughlin Steel Company in that case owen roberts buckled to president ial intimidation. To switch his vote joined the free musketeers those loyal to the president on the court. Along with chief Justice Hughes in rewriting the Commerce Clause reinterpreting it to mean that congress can regulate any act every activity that went in the aggregate has a significant effect on interstate commerce from that moment forward. We went from being a limited purpose. Federal government to a general purpose National Government that in turn led to congress choking on the volume of its own power. Youve got to make all these line drawing decisions when you can legislate that broadly and all of a sudden youre in charge of a huge expanse the skys the limit. So congress stopped really making law started delegating the lawmaking power to unelected on accountable bureaucrats and that in a nutshell is why were 31 trillion dollars in debt today. Thats why today most of our laws measured by weight volume word length Economic Impact are made by unelected on accountable bureaucrats. Its why we work several months out of every year just to pay our federal taxes only to be its not nearly enough. So all of these things came about as a result of fdrs dastardly courtpacking plan, which failed legislatively but succeeded by bullying an intimidating the court and disubision. Thanks for that explanation. So i have other questions, but i know the audience will have even smarter ones. So if you have a question, raise your hand and one of my colleagues will come to you with a microphone, please wait for the microphone so that everyone can h