This is a rush transcript from "Journal Editorial Report," February 5, 2017. This copy may not be in its final form and may be updated.
(BEGIN VIDEO CLIP)
JUDGE NEIL GORSUCH, SUPREME COURT NOMINEE: I pledge that if I'm confirmed, I will do all my powers permit to be a faithful servant of the Constitution and laws of this great country.
It is the rule of judges to apply, not alter, the work of the people's representatives. A judge who likes every outcome he reaches is very likely a bad judge --
-- stretching for results he prefers rather than those the law demands.
(END VIDEO CLIP)
GIGOT: Welcome to the "Journal Editorial Report." I'm Paul Gigot.
President Donald Trump unveiled his pick to replace the late Justice Antonin Scalia on the Supreme Court this week, nominating Judge Neil Gorsuch of the tenth circuit court of appeals. Democrats wasting no time declaring their opposition in advancing the notion of a stolen Supreme Court seat.
(BEGIN VIDEO CLIP)
SEN. ELIZABETH WARREN, D-MASS.: Let's not mince words. The nomination of Judge Gorsuch is a huge gift to the giant corporations and wealthy individuals who have stolen a Supreme Court seat in order to make sure that the justice system works for them.
(END VIDEO CLIP)
GIGOT: Joining the panel this week, Wall Street Journal columnist and deputy editor, Dan Henninger; editorial board member, Colin Levy; editorial features editor, James Taranto; and Washington columnist, Kim Strassel.
So, Colin, I'm going to let our viewers or in on a secret -- you really wanted Judge Gorsuch to be the pick.
Why do you think his reception has been so good across the conservative Republican spectrum?
COLIN LEVY, EDITORIAL BOARD MEMBER: Yeah. He really threads the needle. He's got something that conservatives all like. You know, he has over 200 published opinions, so that's a long, long record that conservatives can look at and know that he is someone who's going to interpret the Constitution based on its original meaning. But he's also got credentials to show that he's really right in the legal mainstream. He's had about eight opinions go up to the Supreme Court. Of those, seven were upheld. So, for Democrats to come out and say, you know, he's kind of a wacky guy out on the right somewhere, it just doesn't hold water.
GIGOT: And a couple of good opinions on religious liberty in particular, right, Colin?
LEVY: Yes. He has great opinions on religious liberty. He also has great opinions on limiting the power of the administrative state. Those are things conservatives are very interested in because they get right to the power of the federal government.
And that point about the administrative state, Kim, is that he's -- there's a doctrine in the Supreme Court that regulator -- judges should show deference to regulators if the statute is ambiguous. There's a movement now, and Gorsuch is part of it, that says, you know what, regulators are taking advantage of that to rewrite laws without legislative permission.
KIM STRASSEL, WASHINGTON COLUMNIST: Yeah. This is known as the Chevron Deference. In one wonderful opinion that Judge Gorsuch wrote, he pointed out that allowing the very people who actually administer the law to also interpret it and say how it works is hugely problematic, and that this is, indeed, why we have courts and, therefore, we should be more skeptical of this sort of deference. That will cheer a lot of conservatives as well, too.
GIGOT: Yeah, that's interesting.
What about the process that was followed here, James, by Donald Trump? Tell us about the role of Leonard Leo in the Federalist Society.
JAMES TARANTO, EDITORIAL FEATURES EDITOR: Well, Leonard Leo, who runs the Federalist Society, as I understand it, Mr. Trump, as a candidate, came to Leonard and said would you give me a list, would you tell me who I should nominate. And Leonard came up with a list of about half a dozen names --
GIGOT: It was first eight.
TARANTOL: First eight. And he said, is that all you got?
In the end, there were two lists, and I think it was 21, 32 --
GIGOT: It was 21.
TARANTO: Gorsuch made it on the second list, because, a Leonard said, they looked at Gorsuch's record and they were more impressed the more they read.
GIGOT: The interesting thing here, Dan, is that Trump understood there'd be skepticism about him and his relatively recent, let's say, conversion to conservative judicial principles. So, he said I want that list, because this is going to show who -- this is going to show I'm serious, this is going to show I'm sincere. And he followed through by picking somebody from the list. Shrewd. And I think Trump recognizes that the court is one of the reasons that he won the election.
DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: Yeah. Well, Paul, it almost sounds like a model for Trump decision making, doesn't it?
We can hope.
HENNINGER: Because they have a path forward. They're taking him around to the Senate now, introducing him.
And as Colin said, this is an individual that has threaded the needle, you know? On executive authority, much less deferential than either Antonin Scalia or Merrick Garland, Barack Obama's pick. Much less deferential to, say, prosecutorial authority than Merrick Garland was.
What Gorsuch emphasizes is the freedom of the individual. Individual liberty against the government, against the state. And then he says I want to read into the textual -- what the text of the laws say or what the Constitution says. So, he is a judge who's very hard to oppose from the right or left unless you believe in judge-made law.
GIGOT: What about this idea, Colin, of a stolen election that Elizabeth Warren offered up? First of all, it's funny, she said let's not mince words. I don't know that Elizabeth Warren has ever minced words.
What about the idea of a stolen Supreme Court seat?
LEVY: Right, Paul. That's completely a myth. The whole idea that Republicans stole this seat by opposing Merrick Garland's nomination, not giving him a hearing, is an idea that was actually previously floated by Democrats. In 2007, Chuck Schumer said we shouldn't have hearings on any of Bush's nominees. Back in 1992, Joe Biden said, you know, if there are any nominees that come up in the last year of this presidency, we shouldn't hear them. If the president puts them forward, we should basically ignore it.
So, the idea that Democrats would have done anything different than Republicans did, other than let the people have a say and go forward from there, is just, I mean, it's sort of silly.
GIGOT: Let's hear what Chuck Schumer had to say, the Senate minority leader.
(BEGIN VIDEO CLIP)
SEN. CHUCK SCHUMER, D-N.Y., SENATE MINORITY LEADER: We Democrats will insist on a rigorous but fair process. There will be 60 votes for confirmation. Any one member can require it. Many Democrats already have. And it is the right thing to do.
(END VIDEO CLIP)
GIGOT: James, the 60-vote standard, is that him hinting at a filibuster or just trying to -- but not committing to it?
TARANTO: Yeah. And the reason he's not committing to it is because the Republicans have the majority. If the Republicans stick together, they could, as the Democrats did under Harry Reid in 2013, exercise what's called the nuclear option, which the Democrats left only for Supreme Court seats. I think both sides are reluctant to commit on that because Mitch McConnell isn't sure he can get all of his members together so he wants to wait until there's a real provocation. But I don't think Schumer is convinced he can uphold the filibuster either.
GIGOT: And, Kim, what do you think about the Democrats? It sounded to me like Schumer really doesn't want to do the filibuster if he doesn't have to, and there are about 10 Democrats who got elected in -- who are running in 2018 in states Trump won, and they're going to have a hard decision to make.
STRASSEL: Yeah. Five of them, in particular, in states that Trump just ran away with the election in their states, and that would be places like Montana, North Dakota, West Virginia, Indiana, but another five from swing states where Trump won. If the Democrats lose eight people who decide that they want to go ahead with an up-and-down vote, that's all the Republicans need to go forward. And there is some talk in the Democratic caucus about letting this one go because this is, in fact, a replacement for a conservative justice, Antonin Scalia, and that maybe if they're going to go down this road of a big filibuster, they should save it in case Trump gets another potential to nominate another judge --
STRASSEL: -- which might be far more controversial --
HENNINGER: But, you know --
STRASSEL: -- and truly change the court.
GIGOT: All right, Dan.
HENNINGER: Progressive activists are putting tremendous pressure on the Democrats to oppose Gorsuch. Demonstrations in front of Chuck Schumer's residence in Brooklyn twice this week.
GIGOT: That's fun.
All right, Dan, thank you.
When we come back, as the Trump administration gears up for a Supreme Court fight, we'll ask Judiciary Committee member, Lindsey Graham, how he thinks Neil Gorsuch will fare in the Senate.
(BEGIN VIDEO CLIP)
PRESIDENT DONALD TRUMP: If we end up with the same gridlock that they've had in Washington for the last -- longer than eight years, in all fairness to President Obama, a lot longer than eight years -- but if we end up with that gridlock, I would say, if you can, Mitch, go nuclear. Because that would be an absolute shame, if a man of this quality was caught up in the web.
(END VIDEO CLIP)
GIGOT: President Trump's Supreme Court nominee, Neil Gorsuch, made the rounds on Capitol Hill this week as the White House prepares for a confirmation fight with Democrats. President Trump urging Senate majority leader, Mitch McConnell, to go nuclear if necessary and abandon the 60-vote threshold for confirmation.
I spoke to South Carolina Senator and Judiciary Committee member, Lindsey Graham, earlier this week, and asked him how he thinks Gorsuch will fare in the Senate.
SEN. LINDSEY GRAHAM, R-S.C.: He's going to get approved. I could not think of a better pick if I were president myself. I think any Republican president would put him on top of their list. Outstanding choice, well qualified. Should be confirmed and, hopefully, without having to change the rules.
GIGOT: OK. You were part of, a decade ago, a group of 14 Senators --
GIGOT: -- who tried to prevent a filibuster and approve judicial nominees. Now if -
GIGOT: -- and there's a lot of talk among the Democrats about a filibuster, would you be prepared to vote to break one?
GRAHAM: I don't think I'm going to have to do that, but I will do whatever's necessary to make sure this president is able to the choose a qualified nominee, and Neil Gorsuch is beyond qualified. I voted for Sotomayor and Kagan, not because I would have chosen them, because I thought they were qualified. The gang of 14 agreement said you should reserve filibusters unless there's an extraordinary circumstance.
GRAHAM: There's nothing extraordinary about this other than his qualifications.
GIGOT: So you don't expect the Democrats to filibuster?
GRAHAM: No, I think it'd be dumb politically. There's at least 10 Democrats in Trump states that would look like, not only did you lose the election, you lost your mind.
How can anybody say this man is not as qualified as much as Sotomayor and Kagan?
Schumer's got to tell the left to knock it off. Mitch McConnell kind of tamped the right down when we shut down the government to repeal Obamacare when Obama was still president. That was kind of crazy. What they're doing is crazy and, hopefully, they'll become more sane.
GIGOT: It's -- would you extend this crazy word to the opposition you're seeing to really across the board right now to the president's cabinet nominees? I mean, you know --
GIGOT: -- they're voting against them, not showing up for hearings. What's going on?
GRAHAM: I think they're making the Republican Party more viable by the day. This is what's wrong with Washington. Trump won. I didn't support him. He's president. He deserves a cabinet. I voted for Sotomayor and Kagan and almost all of Obama's nominees because I thought that was my job as Senator, to give the person a qualified cabinet and Supreme Court picks. What they're doing is they're acting like the election didn't happen. They're driven by their base. And I think they're going to hurt the institution and hurt themselves. And they're certainly not being fair to President Trump.
GIGOT: All right. Let's turn to some policies. You've been critical of the president's refugee order.
GIGOT: Now, presumably, they're going to go ahead with that anyway. They modified it a bit or at least explained it a bit better now. What's your advice going forward after the suspension period is over, just give it up and allow the refugees, allow more of them in?
GRAHAM: No. I actually support a timeout in terms of these seven countries. There's nothing unusual about a pause on failed states in terms of future flow of refugees. My problem was you need to think about these things. The interpreter is not the problem, he's the solution. And it's being perceived as a war on the faith rather than an attempt to make America safer. So, my problem is with the way it's been rolled out.
GIGOT: Now, you mean the interpreters that have helped us in Iraq and Afghanistan and elsewhere?
GIGOT: They are part of this suspension. And those people, in your view, they should be allowed into the United States if we're ever going to get anybody to help us again.
GRAHAM: I'd put them up on Mount Rushmore. We've got 8,000 soldiers in Iraq today. The way we treat these people is going to determine how we can win the war of the future.
And I've got a young lady who is a PhD graduate from Iran at Clemson, works for a start-up company, everybody loves her. Her name is Naz (ph). She got taken off a plane in Dubai. She had a legal visa. So, I think General Kelly will eventually get this right. You've got to give people who have a legal status a chance to make their case while they're still legal. You can't ban them if they've been given a visa. You can ask them more questions. Green card holders, you can't ban them but you can ask them more questions. Then maybe you can ban them if they're done something wrong. But It should be prospectively applied.
GIGOT: How do you -- you were critical of President Trump, then-Candidate Trump. I think I remember that.
What do you --
GRAHAM: You were the one listening.
GIGOT: What do you think about his - about how he's handling foreign policy here in the first bit of his administration?
GRAHAM: Pretty good. Rebuilding the military, check. Count me in. You're not going to be strong if you're weak militarily. So, he wants to rebuild the military.
On Russia, he scares the hell out of me. I hope he doesn't buy a deal in Syria that would put Damascus to Assad and the Iranians and put Russia in a prime spot --
GIGOT: What about --
GRAHAM: So the Russia problem bothers me.
GIGOT: What about the spats with Mexico, canceling the trip, and now you get one with the Australian prime minister, the phone conversation leaked where they were apparently clashing over --
-- taking 1250 refugees off Australia's hands? That's not a good look for allies, is it?
GRAHAM: No. I mean, you know, my dad served with an Australian unit in New Guinea in World War II. These are some of our best friends in the world. But a phone call's not going to break this relationship.
GRAHAM: He's off key. But here's what I want him to get right. I don't want him to do what Obama did, misjudge the Russians, misjudge the Iranians. Any deal that gives Damascus to Assad is never going to end the Syrian civil war, and it's going to help al-Qaeda and ISIL.
OK, now on Russia, Vladimir Putin ramping up the military operation in Ukraine right now, here at the onset of the Trump administration. How do you read the timing of this?
GRAHAM: I think Iran is testing Trump by test-firing the missiles and saying we're going to continue to do so. Russia is testing Trump. They're engaging on one hand, and trying to push forward in even Ukraine on the other. So, here's what I'm going to do in a bipartisan fashion. I'm going to introduce new sanctions on Russia for their interference in our election that go beyond what we have done for their seizing of the Crimea. It is not enough to punish them for what they did in the Ukraine. We have to also punish them for what they did in our own backyard. and I hope President Trump will embrace that.
GIGOT: We're going to be watching to see if he does.
Thank you for being here, Senator Graham.
GRAHAM: Thank you.
GIGOT: Since that interview, the Trump administration has said it will amend its visa ban to allow Iraqi interpreters and their families into the United States.
When we come back, as the fallout continues from President Trump's executive order on immigration, our panel looks at what went wrong with the rollout and how the administration can get back on track.
GIGOT: Continuing fallout this week from President Trump's executive order on immigration as protests continued in cities across the country. The White House fired Acting Attorney General Sally Yates Monday night for refusing to defend the controversial order, saying she had "betrayed" the Department of Justice.
We're back with Dan Henninger, James Taranto and Kim Strassel.
So, Dan, I'm going to suggest that we went from the best moment so far of the Trump presidency, the Supreme Court rollout, to what I think has been the worst, which is this immigration rollout. What happened on the immigration order?
HENNINGER: Well, it looks as though what happened, Paul, is that a policy that was known as extreme vetting wasn't thoroughly vetted itself, and it rolled out, and immediately up to three or four federal judges that weekend found holes in the order and issued stays. Not only that, but a lot of people didn't know what was coming. Obviously, much of the bureaucracy didn't know it was coming. Silicon Valley, which hires a lot of immigrants on visas coming into the United States, they didn't know this was coming. And so, it wasn't merely the people in the streets and at the airports marching. We know about them. They're always in the streets these days.
But they put in motion so many other forces out there against this order which came to be known as an Islamic ban, a Muslim ban, and the administration was really put on its back foot. They're still on their back foot. Now they have to come forth with a real policy that implements this order. And this just sort of showed a lack of preparation that made them unnecessarily under attack.
GIGOT: James, we know it was a very close hold on the White House. Steve Bannon and Steve Miller, two senior aides, very influential, kind of ran this operation. They didn't brief a lot of people. They said, oh, it might leak. It wasn't thoroughly vetted. It wasn't thoroughly informed by the Border Patrol, even the customs people, so you had confusion. Green holders, for example, were they under it, who were dual citizens, and were interpreters? It was a lot of confusion.
TARANTO: Yeah. And be there's some confusion about the confusion in that, for example, we heard that the Homeland Security secretary wasn't briefed, but then he said he was. So, it's -- it's all very confusing --
GIGOT: Briefed, but how much was he consulted?
TARANTO: Right. I don't think we quite know. And it's hard to argue this was anything other than the fiasco in terms of its administration.
GIGOT: What about the substance? Do you think you can defend the substance?
TARANTO: Well, I think the basic premise that a country has the right to decide whom to let in and under what circumstances is very defensible, and it is under attack by a lot of protesters. People say, you know, we're a nation of immigrants, this goes against that. Of course, it doesn't.
The specific substance, I think there's a lot to criticize --
GIGOT: Too sweeping? Too sweeping, the ban?
TARANTO: Perhaps too sweeps and not sweeping enough in other ways because it leaves out countries --
GIGOT: Like Pakistan --
TARANTO: Saudi Arabia and so forth.
GIGOT: And Saudi Arabia.
TARANTO: The countries that were chosen, by the way, were chosen on a, I think, politically smart basis. This was based on a law that was passed in 2015 and then additions were made by the Obama administration.
GIGOT: OK. Kim, what have we learned, what have you learned about the way the Trump administration makes decisions from this -- this episode?
STRASSEL: Well, it is a very close hold. You seem to have a group of very key advisers, folks like Steve Bannon, Steve Miller, who are around the president. Now, I would stress that from everything I understand, it is Donald Trump who makes the final call, so it's important not to suggest he's being run by a lot of people --
STRASSEL: -- in the White House.
STRASSEL: But this is a very small team. You can tell, by the way, not a lot of leaks out of this White House. Things come, and when they come, they are news. But not a lot of vetting, as a result, and not a lot of input from other agencies, which is typically and traditionally the way things happen in White Houses. They come up with an idea, they send it out to get everybody's thoughts, and it comes back. It's why White Houses traditionally move slowly. And that's not the imperative here for this White House. They want to move quickly, but you're going to have fiascoes like this when you do.
GIGOT: Kim, did President Trump have any choice other than to fire Sally Yates as acting attorney general?
STRASSEL: None whatsoever. And it was the absolute correct call. When you are the attorney general, your client is the president of the United States, and to enforce what they have put out there. Now, in very rare circumstances you can potentially make the case for why you wouldn't enforce a law or a directive, but the standard for that is, is it unconstitutional. That was not the standard she used. She said she didn't think this order was moral or just. She doesn't get to impose her own will on the law.
GIGOT: I guess one point I'd make, Dan, is a lot of corporate America here this week really didn't know what was going on.
GIGOT: And, I mean, we discussed it at our own executive meeting. Who's covered, who isn't? Do people have to leave the country, stay in the country if they're waiting for a green card? You just don't want this to happen if you're running a government.
HENNINGER: No, you don't. And now General Kelly and Homeland Security are going to quickly have to put some meat into the idea of extreme vetting. Either you want to make a policy or do it through court litigation.
There was a policy put in place by the Border Patrol under the Obama administration which asked people to voluntarily come into the country and fill out their user name, their websites visited and social media. That is the sort of thing General Kelly has in mind to do immediately.
GIGOT: All right.
Still ahead, Senate Republicans move aggressively to push through President Trump's cabinet nominees despite a boycott this week by Democrats. We'll look at the escalating showdown on Capitol Hill.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: A play that is being called by Chuck Schumer. I think it's a mistake. But it's in an effort to try to obstruct Donald Trump from getting a cabinet in place.
(END VIDEO CLIP)
GIGOT: Democratic opposition to Donald Trump reached new heights on Capitol Hill this week with Democrats boycotting no fewer than three of the president's cabinet nominees, leading Republicans to push them out of committee and onto the Senate floor without a single Democratic vote.
We're back with Dan Henninger, James Taranto and Kim Strassel.
So, James, what have we learned here in two weeks about the Democratic strategy of dealing with Donald Trump?
TARANTO: Well, they don't have a strategy because they don't have any power, because they basically turned the Senate into a majoritarian institution in 2013 under Harry Reid with the nuclear option --
GIGOT: At least regarding nominees.
TARANTO: Right. And they don't have a majority.
So, let's go back to the Supreme Court, because I love this example. Many Democratic Senators are now saying we won't even meet with Gorsuch. Why? Because that's what Republicans did with Merrick Garland. But what Republican did with Merrick Garland was a cold-blooded strategic decision. They decided weaver just going to hold firm, we have a majority, 54 votes, we're not going to let anyone through while Barack Obama's still president. The Democrats don't have the power to do that. They're going to lose. And so, they're just making a show of it because their progressive supporters, the people who are camped outside Chuck Schumer's house in Brooklyn, are demanding it. But --
GIGOT: So you think the boycotting is pure showmanship. It has no substance at all because they can't do anything real?
TARANTO: No. It's all emotion and no strategy.
GIGOT: Do you agree with that?
HENNINGER: Yeah, by and large. There's a question of whether it is in the interest of the Democratic Party. Progressives in the street out there yelling "Chuck grow a spine" and various chants that rhyme with Chuck --
They simply want the Democrats to fight, just like to the last man. But the Democratic Senators who are on the bubble, the 10 that are in states that Donald Trump won, do they really want them to be pushed that far left? And do they want the party to, at this point in time, sign on to a self- definition that is just basically the progressive left?
GIGOT: Kim, I want to ask you about President Obama. He's still on vacation, post-presidency, well-earned. And yet, he had his spokesman issue a statement saying, basically, claiming solidarity with the members of -- with the people who are protesting in the streets, saying he's heartened by that level of engagement taking place in communities around the country. And citizens exercising their constitutional right to assemble, organize, and have their voices heard by elected officials is exactly what we expect to see when American values are at stake. Why did the president get into this, at this moment, so early in Trump's term?
STRASSEL: You know, it's amusing, Paul. When he left, he said he was only going to weigh in at important moments. Well, this is Barack Obama, so I think we can assume we'll hear from him. In Barack Obama's mind, everything will be important. He'll talk all the time. We're not going to get the president we got with George W. Bush of respecting a successor, sitting back and letting them get on with it. Barack Obama is a young man. He might be done with elected office, but he does not view himself as done in the political movement. And he'll be out there as part of this resistance effort.
GIGOT: You know, Dan, you said it may not be in the interest of the Democratic Party, but why not? Total opposition might just work. They're going to have an election in 2018. They'll say push back, push back in 2018. And if you make it difficult enough for any Democrats to cooperate with Trump on legislation, the tax reform, health care, anything else, you're going to limit his accomplishments that might have an impact of depressing Republican, so why not go all out?
HENNINGER: Well, I think -- I mean, there's that possibility. But, you know, most of this opposition is based in blue cities, like New York, Los Angeles, San Francisco, Berkeley. And -- but Tim Kaine, for instance, Senator from Virginia, has voted for virtually all of Donald Trump's nominees. He wasn't affected by this.
So, I think they're isolating themselves in these redoubts, the ones that they thought they could use to win the 2016 election, and still ignoring what people think in places like Pennsylvania, Michigan and Wisconsin.
GIGOT: But, Kim, you suggest -- you wrote this week you didn't think the Democrats would be wise in trying to replicate or imitate the Tea Party movement. The Tea Party worked pretty well for Republicans. I mean, what am I missing here?
STRASSEL: Well, what you're missing is that the problem for Democrats -- when the Republicans started or when the Tea Party movement came up, it was directed at getting better quality Republicans elected, and they tended to focus a lot of their attention on already conservative districts, doing primaries against lazy incumbents and in general trying to return the party to its principles. What the left is trying to do here, the progressive movement is trying to change the party overall by frightening and challenging all of these Democrats that operate in red states, in Trump states. If they go and primary them with an Elizabeth Warren-like candidate, if you think North Dakotans are going to elect an Elizabeth Warren, that's just not going to happen. They'll end up doing damage to their own party.
GIGOT: Briefly, James?
TARANTO: The big problem for Democrats is they have a brutal Senate map in 2018. They're defending 25 seats, eight for Republicans, and 10 of those are states that Trump carried.
GIGOT: All right, James.
Thank you all.
Still ahead, President Trump signs a two-for-one order on new regulations as Republicans in Congress move to scrap Mr. Obama-era rules. What the regulatory rollback could mean for the economy, next.
(BEGIN VIDEO CLIP)
TRUMP: This will be the largest, ever, cut, by far, in terms of regulation. If you have a regulation you want, number one, we're not going to approve it, because it's already been approved probably in 17 different forms. But if we do, the only way you have a chance is we have to knock out two regulations for every new regulation.
(END VIDEO CLIP)
GIGOT: That was President Donald Trump this week surrounded by small business owners as he signed an executive order requiring federal agencies to repeal two existing regulations for every new one issued. And this comes as Republicans in Congress begin the work of repealing a flurry of so-called midnight regulations passed by the Obama administration in its final months.
We're back with Dan Henninger, Colin Levy and Kim Strassel.
So, Kim, this is a big part of the Republican/Trump economic growth strategy.
STRASSEL: Yeah. And one of the smartest ones. The amount that the economy suffers under the regulatory regime that we have now, this was the biggest damage that Barack Obama did to the country. You can look at the health care law and Dodd-Frank and plenty of other things that were very hard on business. But overall, it was the regulatory burden. And the way that Trump is going about doing this as well is one of the quickest and most efficient ways to make sure the regulatory regime actually does get rolled back.
GIGOT: And, Colin, just the figures here, the Mercado Center did a study showing, if regulations had been frozen since 1980, the economy would be $4 trillion larger, about $13,000 per individual.
LEVY: Isn't it just astonishing, Paul? I mean, actually, since 1976, there have been over 180,000 regulations written. I mean, that number is just mind-spinning. And it is the small businesses that get hit. They're the ones that either don't start up or can't expand. And it just, you know, it continues year after year. So, what Donald Trump is really doing here is disrupting fundamentally what Washington does. I mean, it's just sort of what they do, they just write more regulations. It's really good to see him trying.
GIGOT: The two-for-one, Dan, rule is something of a gimmick in the sense it's going to be hard to see how you can necessarily do that. But what it will do is focus the attention of the administrative agencies and say, well, what can we -- look to see what can they repeal if they do want to issue a new regulation. So, it'll impose a discipline on regulators.
HENNINGER: Yeah. And it forces them to have a conversation and talk about these regulations in these terms if they're going to try to propose them.
We should make a couple of distinctions though. The order does not apply to independent agencies like the Securities and Exchange Commission or the National Labor Relations Board, which Trump is going to get control of. It does mainly apply to, say, the Department of Labor, which Andy Puzder is coming in to take over, and that is one of the great sources of --
GIGOT: But the Environmental Protection Agency.
HENNINGER: Yeah, the Environmental Protection Agency.
GIGOT: Yeah, which is a huge source of problems, Kim.
Now, what's going on in the House? They and the Senate are going to use something called the Congressional Review Act, which was something that was passed under the Gingrich Congress. Most Americans probably have no idea it exists, because before this year, it had only been used once before to repeal a regulation. And what it says that if you pass a majority vote in the House and the Senate and the president signs it, you can repeal a regulation.
STRASSEL: Yeah. As long as it was passed within the last 60 legislative days.
STRASSEL: Now, Barack Obama was quite busy with his last-minute regulations, midnight regulations as he was headed out of office. So, what you saw in the House this week was Republicans already taking aim at about six really important ones that were passed in the last 60 legislative days, voting to disapprove them, making them go away. And these are big things, like the blacklisting rule at the Labor Department, the streams rule, which was designed to shut down coal mining. There's now talk, too, turns out, one little quirk of the law, that 60-day calendar doesn't begin until legislation, there's a report filed with Congress about it. And some people are realizing that some Obama regulations never had the reports filed, so there's a potential to use the CRA and look backing to rules even from the beginning of the Obama administration.
GIGOT: Do you think they're going to take advantage of that and use it? Because that means a heck of a lot more regulations would be vulnerable to repeal.
STRASSEL: There is swelling grassroots pressure to do this, and it certainly has come to the attention of the Trump White House. And people are looking at different ways you could go forward. Like, for instance, maybe putting out an order simply requiring all the different agency heads to look and see which rules out there did have reports filed and which didn't and might be open for a disapproval vote.
GIGOT: So, Colin, you've written a lot about regulatory agencies for us, the NLRB, National Labor Relations Board, the Consumer Financial Protection Bureau. Should the president fire the head of the Consumer Financial Protection Bureau?
LEVY: Well, I mean, that certainly wouldn't do any harm, right?
LEVY: I mean, one of the things that we have to really realize here, Paul, is that not all regulations are created equal. That's something that they should also be looking at as they're reviewing them, because you have some that are really economically significant. You know, 15-20 a year that impose huge costs on the economy. And others that are just sort of sitting around on the books that no one really does much with and getting rid of them won't do as much. As they start to consider their options, I think they have to also look at the overall impact.
GIGOT: All right, thank you all.
When we come back, protests erupt on the Berkeley campus forcing the cancellation of a controversial speaker. A look at the free speech movement in the age of Trump, next.
GIGOT: Officials at the University of California, Berkeley, canceled the appearance of a controversial conservative speaker Wednesday night after protesters swarmed the campus, lighting fires and smashing windows. And 11 people were arrested Thursday at a New York University protest over another conservative speaker, invited to campus by college Republicans.
President Donald Trump reacted to this week's unrest in a tweet Friday saying, "Professional anarchists, thugs and paid protesters are proving the point of the millions of people who voted to make America great again.
We're back with Dan Henninger, James Taranto and Kim Strassel.
So, this has been with us a while now on campus, James, this boycotting of conservative speakers. But it's getting worse. What's going on? Is this Trump?
TARANTO: No, I don't think it's Trump. This has been with us at least since the 1980s, and I think it got worse during the Obama years. I think now that some of the violent reaction we've seen is of a piece with the sort of street riots we've seen in other Trump contexts. But, no, I don't think this is just Trump.
The tweet that Trump did that fascinated me was the one he did earlier in which he said, "If Berkeley can't protect its students' free speech rights" -- and then in all caps -- "no federal funds, question mark." Why not have the Department of Education investigate this and see what actually happened here and whether Berkeley fell short in protecting its students' constitutional rights?
GIGOT: Well, OK. But just because you have speech discrimination, you can't ban federal funds. In other words, you can't use viewpoint discrimination to ban -- to use as a tool of federal policy.
TARANTO: Well, there's certainly precedent for using federal -- withholding of federal funds to require universities to respect constitutional rights.
Let's see -- let's look into see what the law says. Maybe Congress can pass some legislation here.
GIGOT: Well, I don't know that I want to go down that route myself just because of the First Amendment implications. When conservatives do that, it leads to a precedent, I think, James, that then liberals take it even further.
TARANTO: Well, look, if we can get rid of the Department of Education, I'd be happy with that, too.
GIGOT: Fair enough.
HENNINGER: You know, a lot of these universities have set up free speech zones, which means there are zones where free speech is protected. Outside those zones, you get subject to some of these college rules about hate speech and so forth, and students can get prosecuted.
There's an interesting idea out there by the Goldwater Institute and the Center for Ethics and Public Policy, which says that these public schools should commit themselves to enforcing free speech all over the campus, give people due process if they're caught up in some of these speech codes. And I think that would be a good idea. People do not appreciate the extent to which free speech is statutorily restricted on some of these public universities.
GIGOT: But, you don't want to restrict -- Kim, we don't want to restrict protesters from objecting to a speech of somebody who they really dislike. I mean, this fella who was speaking at Berkeley, he doesn't represent my notion of conservative ideas. I wouldn't have shown up to listen to him. But -- so they have the right to protest themselves.
STRASSEL: Of course, we don't want to stop protesters. But we also don't want university administrations that, at the drop of a hat, rescind invitations or shut down events because they're giving in to the will of a bunch of whiny, coddled, adult teenagers, in essence.
So, you know, I think more of -- this is actually there's a benefit to this, Paul, because we are finally given the point we've all understood for a long time about the hostility to conservative speakers and conservative academics on campus.
STRASSEL: But this is highlighting it for the entire country. And it's causing, for instance, donors who give money to universities to question what administrations are doing. Even some old-fashioned classical liberal professors on campus to worry about the lack of ideological diversity.
GIGOT: And college presidents and administrators really do need to take charge here, Dan.
HENNINGER: Well, to the extent they can. Upon this point, they've been fairly pushed back on this.
You mentioned the Education Department, James. The thing they've been dealing with is Title IX guidance on sexual abuse, and that came with the threat of withholding federal funds.
GIGOT: I don't agree with that.
HENNINGER: We don't agree with that. But they've become very timid to get involved in any of these kinds of controversies. And the result is the sort of thing we just saw at Berkeley.
TARANTO: I want to point out the mayor of Berkeley deserves a lot of the blame here. He tweeted at the beginning of the evening, "Free speech must not be used to silence marginalized voices." That is, he was egging on the rioters and claiming that the speaker was a threat to free speech. He then later put out a weak tweet saying, "Violence isn't the answer."
GIGOT: Well, that's good to know.
We have to take one more break. When we come back, "Hits and Misses" of the week.
GIGOT: Time now for our "Hits and Misses" of the week.
Colin, first to you.
LEVY: Paul, this is a miss to protesters who launched a boycott against car company, Uber, when that company sent cars to JFK Airport during a taxi driver strike against Trump's ban on travel from Muslim countries. Uber had already come out and said that the travel ban was against everything that company stood for. But the protesters didn't really relent until they actually backed out of Trump's advisory council. So, I'm all for the protesters standing up and fighting back against this travel ban, but their campaign against Uber is really a place of misplaced energy.
TARANTO: Paul, a miss to Eliot Spitzer, the former attorney general and briefly governor of New York state. Now that Republicans are in control in Washington, he is suddenly interested in vindicating states' rights. But he writes in "The Republican" there is a problem, and I quote, "How do we go back to all of these cases where we have been ordering for executive discretion --
-- and say, whoops, we did not mean it."
GIGOT: Excellent question, Mr. Spitzer.
All right, it is great to see them discovering federalism.
STRASSEL: This is a message to a Travis county judge, Sara Eckhart (ph), in Texas, who is shocked onlookers, when she showed up in her courtroom, wearing a pink hat, the one that is emblematic of the anti-Trump women's marchers. We have since found out that this is a post. She does not hear cases. But she was still sitting in a courtroom expressing solidarity with anti-Trump people. It is amazing to me that anyone can think that this is ever appropriate.
GIGOT: All right.
HENNINGER: Paul, since I am a veteran of many past campaigns to help my daughter sell Girl Scout cookies --
-- I am giving a really big hit to New Jersey Girl Scout Charlotte McCork (ph) who sold over 16,000 boxes of these cookies. How did she do this? She did it by putting up a review of the cookies. She said the Samoas are an amazing nine, but that the Toffeetastics (ph) are, quote, "flavorless as dirt." This went viral and everybody got word of it and thousands of orders started pouring in, no doubt, mostly for Samoas.
GIGOT: Yeah. Put her as commerce secretary in the Trump administration.
All right, and remember, if you have your own hit or miss, be sure to tweet it to us @JERonFNC.
That's it for this week's show. Thanks to my panel. Thanks to all of you for watching. I'm Paul Gigot. Hope to see you right here next week.
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