Rick Green

Welcome to the Intersection of Faith and Culture. It's the Wall Builders Show. We're taking on the hot topics of the day from a biblical, historical and constitutional perspective. I'm Rick Green, America's Constitution Coach, here with David Barton and Tim Barton. Tim's a national speaker and pastor and president of Wall Builders. David, of course, America's premier historian and our founder at WallBuilders, and you can spend some time with these guys.

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All right, guys, Philip Hamburger is our special guest. We'll be with us a little later. This organization, man, guys, I'm excited. I had no idea they even existed. I didn't know that they were out there fighting all of these legal battles on the fourth branch. And, David, I went and looked these guys up and I'm telling you, man, they're taking care of a lot of the problems that we talked about in Constitutional Live years and years ago in terms of the fourth branch and how they're making law on their own. People can't get into a courtroom. It's just. It's really remarkable and it just reminds me that there are a lot of groups out there fighting the good fight that we're not even familiar with.

Tim Barton

Okay, now just also curiosity question to clarify. So when you're saying fourth branch, I remember when AOC Alexandria Ocasio-Cortez was first elected he said you have the president and the house and the Senate. So that's three of the branches. What's the fourth branch?

Rick Green

Oh, this is good. It's the olive branch, Tim. Oh okay, yes, yes.

Tim Barton

So is that the one that, at Christmas time, you hang from the door?

Rick Green

We have new listeners today, somewhere in America for the first time, just happen to be driving, flipped over our station. They're, you know, maybe listening on BOT or one of the other stations and they're going. Man, these guys know nothing about history, do they Not? About the Constitution, yeah, so, first of all, to your point, Tim. We used to make fun of AOC all the time for saying that, and then I think, David, you were the one that found that study that, like three-fourths of Americans not just AOC, three-fourths of Americans cannot name the actual three branches of government.

David Barton

Here it is the numbers 62% of Americans cannot name the three branches of government and 48% of elected officials cannot name the three branches of government.

Rick Green

So they're in a branch of government.

David Barton

Well, she was too, and I guess she got three of the four. Wait a minute, is there five now? How many branches do we have?

Rick Green

Well, I probably should not have used that term. What was it 10 years ago, David, when we recorded Constitution Alive? I probably shouldn't have used it, but I didn't know AOC was going to make it such a bad thing. So for our brand new listeners, or for our young listeners that are out there, of course, normally when we refer to the three branches of government, we're talking about executive, legislative and judiciary, so the president, congress, and then the courts, and then, of course, as David points out in Constitutional Alive, that's a separation of powers, but there's also a separation of powers between federal, state and local, so it's really a lot of checks and balances that make the system work. The problem is we've got literally a fourth branch, that is, the bureaucracy that's not in the Constitution wasn't designed by the founding fathers. They're unaccountable. We don't get to vote for any of these people. And they get what do they call it where they can't be fired.

They get this civil protection and they just become powerful without ever having to answer to us and they're a real danger to our freedom. 

Tim Barton

And to clarify those would be some of the agencies, some of maybe the departments.

When you look in the federal government, when you're looking at, for example, the education department, when you're looking at health and human services things that are outside some of the scope and parameters of the US Constitution but if you back up under President Obama, when Obamacare as it became known, when that was passed, and first of all, it was outrageous what the length of the bill was included in the bill. But what's crazy is not just how large the Obamacare bill was. What's equally crazy is when Congress passes this and of course it goes to the US Supreme Court and Justice Roberts is the one who wrote the dissent and the opposition which levels of irony there, because he switched sides on his position. But what happens is that there weren't details for how this was actually going to happen in Obamacare.

So Obamacare passes, but what does it mean? How does it pass? And what happened is? Congress delegated their authority to go to these unelected bureaucrats, to as kind of you guys are titling, referencing this fourth branch and these unelected bureaucrats came up with and made law that. And of course, I can't make law because if you know the constitution, article one, it's only Congress that can make law. But the way this now operates in America, we have this fourth branch, these unelected bureaucrats that are able. Congress, unconstitutionally, quite arguably delegates authority to these bureaucrats. You guys figure out how this works and so they pass all kinds of stuff that carries the weight of law that you can be fined, penalized, arrested, jailed for violating. And this didn't come from Congress, it came from unelected bureaucrats.

David Barton

And I think, going back to that Obamacare thing, Tim, I think that the bill itself, as I recall, created 187 new agencies.

Rick Green

 Do you remember that chart? Remember the color chart that I can't remember what congressman did it, but somebody brought it out on the floor. It was this massive poster and all of these lines and all I could hear in my head was Ronald Reagan. I'm from the government and I'm here to help the joke he used to always tell.

And what did you say? 100 and something, 

David Barton

187 agencies, which is now millions of employees, and they are not fireable because they're all got civil service contracts rights, congress. There's only 6% of the nation that's union, but 100% of DC essentially is union and you can't fire them. They're not accountable and they get the right to write the laws and that's what the law said is they will write the law, the agencies will write the law. So if you know the name, Mike Lee, he's a US senator out of Utah, one of the great Constitution guys in Congress. He for a number of years did this. I guess he still does it.

I saw it a couple of years ago but in his office, if you walk in, he has a couple of boxes on the floor in his office and one contains all the laws that have been passed by Congress in the constitutional manner. It went through the House, went through the Senate and the president signed it. It became law and I think over that two-year session of Congress I think there was 127 laws that became laws in the constitutional manner and there was about I don't know 18 inches high in the stack. Then, to the right of it, he has all the laws that were enacted by the bureaucracies that have the force of law. They can throw you in jail, they can punish you, they can prosecute you, but they're not done by any elected officials at all, and there was more than 14 feet of those laws. So the law is actually done by Congress. You're looking at 18 inches and there's 14 feet of these laws done by and that is the fourth branch of government. That's what we call the fourth branch. It is that administrative state and they have the power and the force of law.

As a matter of fact, there's now more than well the way I saw it in USA Today. They said if you can read the US Code and the US Code much is written by these agencies if you can read 700 pages a week, it'll take you 25,000 years to read the entire US Code, which is why we're seeing the J6, all the prosecution of the J6 folks. That's happening under a law that was passed 21 years ago to prevent you from shredding paper. If you're being pursued by the IRS, how do you go from shredding paper to using shredding paper to people in jail without any of their constitutional rights, habeas corpus, due process? It's because we have so many laws. You can twist them into anything you want them to be. And so Philip Hamburger, professor.

He was at University of Illinois, Chicago as I recall,

Rick Green

 and a constitutional law professor or scholar at Columbia Law. Now, yeah

David Barton

And so what they've done is they have taken on and they're bringing lawsuits against that fourth branch of government, that administrative state, and they're getting into the courts. And the courts are saying you're right, congress is the one that passes laws, not these guys. Congress is the one that sets penalties, not these guys. And so we have been winning a number of those cases over the last three to four years, and the same period of time that Trump was able to get justices on the court, that we started winning religious liberty and started winning 10th Amendment, et cetera, we've also started winning the paring down of government back into the three branches, not the fourth branch. So Phillip has got some great stuff. They are selectively choosing cases, they're getting in the courts, they're winning these cases. They're helping provide freedom for all of us and it's something that all of us need to be aware of.

And, by the way, I'm going to tell you, they're helping provide freedom for you by getting rid of these agency stuff. And I'll just tell you up front this is a group worth contributing to. If it's 10 bucks, if it's 15, if it's 20, what's your liberty worth? Not going to jail for somebody twisting a law out of shape is worth a lot and help these guys do this, because the more they win, the more liberties and freedoms you get. They're helping return the constitution to its original intent. They're very, very, very good at this.

Rick Green

NCLA Legal, so they call themselves the New Civil Liberties Alliance. This is new for me and I'm so excited about what they're doing New Civil Liberties Alliance, nclalegal.org and man, just very important, what they're doing. This is actually what I think is the deep state. When people talk about the deep state or the swamp, it's the fourth branch where you see most of that power, and it's not just at the federal level, it's even the local level. These are unelected engineers and other bureaucrats that tell you what to do with your land at the local level. I mean it's up and down the line at all levels of government. But what Philip's doing with the federal government is huge and can help turn the tide. So I agree with David Check him out.

Break

Rick Green

Welcome back to WallBuilders. Thanks for staying with us. Philip Hamburger is with us from the National make sure I get this right. New Civil Liberties Alliance and man Phil, I've been reading all the cases you guys are doing and I have found my people. Great work, you're on out there saving the Constitution.

Philip Hamburger

Well, thank you, it's fun to do and thanks for having me on.

Rick Green

Well, I was looking at several of these cases and even just the philosophy behind how you choose your cases and the fight against what I call the fourth branch. You know, we've been teaching this in our Constitution classes for over a decade. The abuses that are taking place over there and everything you guys are fighting against, we've been railing against with words, but you guys are fighting against it in the courts and winning, and so I'm just excited to find y'all. Thanks so much for doing the interview with us and so many things we could talk about today that you guys are dealing with. I almost want to just open it up. Whatever you think is the most important cases that you've got coming. But man, this expanding administrative state, the way that they have their own court system I mean there's just so many things that are being violated here.

Philip Hamberger

Right, they make their own laws and then they enforce them in their own little so-called court. Yeah, with no process, not due process, that's right.

Rick Green

That's right. I mean, it's almost everything that you know our nation was founded upon in terms of our justice system seems to be thrown out the window, and the Biden administration just continues to create more and more of this and ignore the constitution. So for you guys right now, I mean and you've got a huge team I didn't realize how big you were, you know, let's talk about a little bit of how you pick these battles. There's so many areas we need to fight. You know, as the CEO of this, you've got to choose which battles you go into. What do you, what guides you on that? It's whack-a-mole out there. So how do you choose?

Philip Hamberger

Right. So we want to approach this strategically. We can't defend everybody, unfortunately, so the goal is to go after, not agencies we have nothing against agencies or bureaucrats and not to defend any particular industry either. We rather look for types of power that are dangerous and that threaten civil liberties, and then we look for cases that will help us take down those types of power that come across agencies. It's the only efficient way to do this.

Rick Green

So it's process. You're looking at the processes that have been abused more than 

Philip Hamberger

So Chevron deference allows these agencies to make rules that bind us without statutory authorization and introduces bias into court proceedings. So in the Relentless case, for example, the Supreme Court we're going after Chevron deference and if we take that down, that has an effect across all the agencies, all across government. And another thing we do is we don't want to treat this just as separation of powers. It's a civil rights issue. The administrative state is the greatest threat to civil liberties in this country and we therefore want to go after this as a civil liberties issue. It's a matter of our rights, not just the separation of powers.

Rick Green

Yeah, I mean, we know the mantra from the founding era taxation without representation. We're living with regulation without representation right now, that's right and it's so strong and you know, just backing up to Chevron for a minute for our listeners to understand and just make sure I got this right my understanding is that it essentially gives the agencies the advantage and where we defer to their interpretation of a congressional act. So our elected representatives in Congress pass a law, they create some, some agency or regulatory scheme that they want to do, and then the agencies, these unelected people, go and create how that's going to be done and the courts, when we challenge and say, hey, wait a minute, congress didn't give them the authority to do that. The courts have deferred to the agency, which means, like you said, they come in with a bias where they're basically giving them the advantage in court.

Philip Hamberger

Even when Congress does not authorize rulemaking by agencies, but just has ambiguity or silence, the agencies will interpret that to give it meaning that Congress never intended, and then the courts will defer to the agency's interpretation. And that's really the scariest part, because judges are meant to be unbiased. I call it not Chevron deference, but Chevron bias, because the judges in these cases will always defer to the government and not to your legal position or mine, and that, I think, undermines the courts and their reputation.

I think the same court has to get rid of that, 

Rick Green

and so we had the EPA case West Virginia EPA case. What two years ago? What are the other cases coming that will help to finish the job here?

Philip Hamberger

Right. Well, we have three of these cases now. In the Relentless case we have to get rid of Chevron, as we discussed. There's another, Garland v Cargill, which is a bump stock case. The ATS, the government, interpret the word machine gun, which is barred, to include bump stocks. But of course not that long ago they interpreted machine gun not to be bump stocks. So they're flipping back and forth about bump stocks, which allow a gun to shoot faster, but it isn't the gun itself, and so the agency there is actually just creating a rule, a regulation that burdens people, indeed criminalizes their conduct, without any statutory authorization, and that must be wrong. Even admirers of the administrative state shouldn't like that. And then there's one other case we have which is particularly sobering Murthy v Missouri, which is the lead censorship case. We have a lot of cases against censorship. There's a case seeking an injunction against the White House and FBI and others who have been instructing the social media companies to censor us. So we want to get an injunction against censorship.

Rick Green

Oh man, so, so huge. And of course, we saw absolute abuse of this throughout the COVID crackdowns and the insane-.

Philip Hamberger

Right and to shape elections. They're using censorship to shape elections.

Rick Green

yes, yeah, and and and so, and, in fact, let's drill down on that for just a second to to help you know, because people always say, well, um, you know, when is it? When is it uh, when? When is when is it government colluding with these, uh, private entities? And at that point it is a violation of free speech, like where do you draw the line on? You know a private platform? And of course we get into the. You know whether or not they fall under Section 270, all that good stuff, but in my mind it's always if the government's involved, if the White House is telling Facebook to do this or asking Facebook to do this, now we're talking a government violation of the First Amendment.

Philip Hamberger

The platforms have all sorts of rights of their own, but government is barred by the Constitution from abridging the freedom of speech, and I like the Constitution's word abridging. That means just reducing the freedom of speech. You don't have to have coercion. Any government action to reduce our freedom of speech is barred by the First Amendment, and they've gone far beyond that I like that, getting back to the original language, abridging I know that's not popular these days, but I I still like it yeah, 

Rick Green

oh, I think I think you're spot on.

I mean, I never thought about that actually. I mean, if we go back to that language, uh, it helps us to understand. They don't have to shut it down completely. If they're chilling free speech, if they're creating that environment where you're less and less likely to be able to express your opinion and your conscience, yeah, that's good. 

Philip Hamberger

They're even doing this with books.

They went to Amazon and said you know, take off books that are contrary to government policy, don't sell those books. And Amazon agreed. Because all these companies are really rather afraid of the government Biggest NAB. They have a lot to worry about. So when the government bears down on them, they say we'll, we'll, we'll, shut people up. it's quite depressing 

Rick Green

how can people help you? It is uh. Is this a a non-profit legal thing that people can donate to?

Philip Hamberger

can, yeah sure um, we, we have lots. We have lots of people who donate even just small amounts. We really appreciate it because we have a lot of lawyers we've got to support through this and it's a worthy cause. And I must say, just so you know, I'm probably the only head of a nonprofit litigation group who doesn't take a salary. I get no salary from this at all. The whole point is just to support the fight against the administrative state and with any luck, by the end of this term we'll have taken down the Chevron and taken a chunk out of the censorship too. So it's a worthy cause.

Rick Green

This is man, this is truly life's fortune sacred honor I mean to give of your time and your effort.

Philip Hamberger

Oh, no, no, no, no, it's fun we love it we all love doing this.

Rick Green

I love it.

Philip Hamberger

We love doing this. I love it. You're a lion man. I like finding other lions, not sheep. You're a lion man, you're running into the fight.

 It is fun fighting the administrative state because they are so incompetent and they have such bad constitutional arguments. It's really quite jolly. So join the fight. It's really pleasurable.

Rick Green

I love it.

Philip Hamberger

We like to stay positive too. We like to quote Jesus. We said something like love your enemies and break their toys right. We're very positive about all the individuals on the other side. We just want to take away their unconstitutional power.

Rick Green

Oh, that is great. I'm going to remember it. It's quite jolly, it's quite jolly, it's quite jolly to do this.

Philip Hamberger

We enjoy it. We enjoy it. 

Rick Green

Oh, man, and I just saw on your website you actually do some CLEs, so I'm taking my next CLE with you, brother, this is fantastic. Well, God bless you for what you're doing. We'll certainly get people going and they can sign up, I guess, for an email to get notified of different things you've got coming out.

Philip Hamberger

You can also get emails about what's going on in the administrative state and the fight against it.

Rick Green

All right, nclalegal.org All right, good stuff. Hey, thank you so much for coming on, man. We look forward to connecting with you guys more my pleasure. All right, stay with us folks, we'll be right back with David and Tim Barton.

Break

Rick Green

We're back on Wall Builders. Thanks for staying with us. And again, new Civil Liberties Alliance is the name of the organization. The website is nclalegal.org. Nclalegal.org. David, before we went to the interview, you had mentioned donating, helping them. I mean, this guy is top, top level, a great constitutional scholar, did you hear? He doesn't even get paid, so he does all of this.

Now I'm sure they have to pay the other attorneys, because not many people can afford to do that and it's just difficult. So he's got to. And I was looking on the website. I mean, they've got an army of attorneys and an incredible team, so I'm thrilled we found these. I think you're the one that sent me the email about them. I'm so glad you found these guys.

David Barton

Yeah, they're a really strong group and I tell you, I love common sense, but even common idioms. Love your enemies and break their toys. What a great idiom that was. Yeah, exactly right. Love your enemies but break their toys. Stop their ability to be able to damage you. That they're doing.

I love the fact we're told in the scriptures that a wise man attacks the city of the mighty. Philip has gone on the offense with this. He is offensively minded, he is going after them, he's attacking them in their stronghold and he's winning. And I can't tell you how much this means for all of our freedoms, because so many of us don't understand how much freedom we've lost to these agencies and these bureaucracies and these guys just writing law and I mean that literally writing law. It has the force of law, the power of law, the effect of law, but the courts are taking that away, but they're not elected. I mean this is just not the way the founders wanted it. So contributing to these guys is a really good idea. You know, 10 bucks a month or 10 bucks total, whatever it is, it's all going to help them. It's really significant.

Rick Green

I was also thinking, David. I was looking at their website and one of the articles Philip has on there, just the headline. I haven't read the whole thing yet, but the headline gave me good feelings. It says Supreme Court must rely on the First Amendment, not its own precedent, when deciding government censorship cases. And of course we talk a lot about that in Constitutional Alive the whole idea of stare decisis and the judges always looking back at their own decisions, pontificating about what some other judge said instead of looking at the Constitution. And Clarence Thomas has been trying to tear that down and get back to looking at the Constitution and not just previous decisions for a long time. So that right there, even just seeing that headline and that description, tells you they're fighting from the right philosophy as well.

David Barton

Well, I love you know. Sun Tzu says you need to know your enemies, and I love the way he characterized it. He said it's fun fighting the administrative state because they're so incompetent, and in that sense they have a lot of power but they are incompetent.

They're really not that far, 

Rick Green

and he had a joy about it, right? You could just tell he loves what he's doing.

David Barton

He loves what he's doing. Man, this is a guy, you know. We're told in the scriptures that it's a gift of the Lord when a man enjoys his work, and he enjoys his work and he enjoys getting freedom for the rest of us. He enjoys taking on the tigers and lions and the bears oh no and going back to Wichita. I mean, that's the kind of stuff he loves attacking. So this is I'm just really encouraged to hear all they're doing, and they have won a number of cases. They're not insignificant cases and, as he told you, Rick, they're just not looking for any case. They pick and choose their cases to have the most impact and the most precedent setting, and that's really a smart way to do it. You don't go fight every battle that comes out in front of you. You fight the battles that are the most significant, the battles that are most crucial to helping win the overall war, and that's what these guys are doing.

Rick Green

Well, folks, be sure to go to the website today. You definitely want to follow these guys. Get on their email list, donate, help them do this good work. It's going to affect your life and our lives. New Civil Liberties Alliance is the name of the organization. New Civil Liberties Alliance NCLALegal.org NCLALegal.org. Thanks so much for listening. You've been listening to The WallBuilder Show.