The 4th Branch, Fossil Fuels, And More – On Foundations Of Freedom: How do we get rid of the unconstitutional power of the President, the “4th Branch” of government? Is the war on fossil fuel constitutional or rational? How can term limits for judges be instituted? Tune in to hear our answers to your questions and more on today’s Foundations of Freedom program!

Air Date: 09/22/2022

On-air Personalities: David Barton, Rick Green, and Tim Barton

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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith and the Culture

President Thomas Jefferson said, “I know no safe depository of the ultimate powers of the society, but the people themselves. And if we think they’re not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.” This is the true corrective of abuses of constitutional power.

Rick:

Welcome to the intersection of faith and the culture. It’s WallBuilders Live. We are impacting the culture with our faith. That’s right. 

Biblical citizens actually take their faith and they become salt and light in the community. We’re doing that here at WallBuilders Live, and we know that you’re doing that in your home, in your community. You’re probably the catalyst for the biblical principles being restored and the constitutional principles being restored in your community. 

And that’s why you’re listening to WallBuilders Live. So thanks for being a part of our program.

Be sure to visit the website wallbuilderslive.com today. That’s where you can make a one time or monthly contribution. And we greatly appreciate you coming alongside us, locking shields with us, financially supporting us. When you put fuel in the tank, we’re able to reach more people, we’re able to educate more people, work with more pastors and legislators, young people. All the different things we’re doing it’s because of your help. So thanks for being a part of the program.

My name is Rick Green. I’m a former Texas legislator and America’s Constitution coach. And it is my honor to work with the Bartons, David Barton, he’s America’s premiere historian and our founder of WallBuilders. Tim Barton, a national speaker and pastor and president of WallBuilders. You can learn about all three of us at our website, wallbuilderslive.com.

The 4th Branch

Alright, David and Tim, diving into those questions, we’ve got several good ones today to get to. Patricia Smith gets the first one. It’s about executive cabinet level department. She said, “With the current tyranny that we’re experiencing today through many of the executive departments, whether it’s OSHA, Justice, Health and Human Services, etc, she said, how can these be gotten rid of? 

The Constitution only allows the President certain powers under Article II, but it seems more and more he unconstitutionally expands his powers through the various departments, would the defunding of these departments be the constitutionally correct way for the Congress to get rid of them? Thank you.”

Alright, Patricia. Great question. David and Tim, there are definitely a lot of departments that we like to call the fourth branch, and they do often operate in areas outside of the Constitution. So what do we recommend to folks for how to get rid of those or at least rein them in?

David:

So actually, with this one, the Constitution gives us several tools that we can use. Defunding certainly is one of those. And we’ve heard from members of Congress that if they get control, that’s a tool they plan to use on a lot of different areas. A lot of the things that Democrats have passed, they don’t have the capability with what we’ve got right now to be able to pass a law to reverse that because the President likely is not going to sign it.

But what they can do is the power of the purse. The Constitution gave the power of the purse to the House of Representatives, and they can simply defund many things. So assuming they can defund it and not get in a position where the Senate forces them to have to make some compromise on some bill, and I say that because often the Democrats will tie funding to the military appropriations bill and they’ll say, well, we won’t fund the military if you won’t find our programs, and they end up getting pushed into it. But theoretically, you definitely have the ability to defund.

Student Loan Forgiveness

Tim:

And guys, to me, it makes me curious knowing that the power of the purse does belong to the House of Representatives. It makes me curious. Right now, we’ve seen President Biden do 99 executive orders with $1.5 trillion of an expense tag. It does make me curious if Congress can come in and say, hey, we’re not going to fund this anymore because even recently when President Biden maybe 60 Minutes his interview where he unintentionally acknowledged that he didn’t have the power to do the student loan forgiveness cancellation, the $10,000 and what looks like it could be $500 billion plus of an expense.

It would be very interesting if Congress before all of the expenses happened. Before it’s $1.5 trillion of a price tag of his executive orders came down, if Congress just said, yeah, we’re not going to fund those things, it would seem like a way to rein in even some of the executive orders, which is not just in the bureaucracy or these agencies.

In this case, it could be even with the President, which is an interesting thought. I don’t know if Congress will have the courage and backbone to do it. But it does seem like there’s even more power to stop some of this agenda than would, from the outside appearance at least give an occasion.

The EPA

David:

Well, we have other ways too that are very potential. We’ve already seen the courts help us with some of this. I mean, if we can’t get it defunded, the courts, Supreme Court in this last session took on the EPA and said, wait a minute, you’re not the legislature. You can’t just start throwing out regulations as if they’re laws and enforcing them and making penalties for them. And so the EPA got slapped down in a really big way by the Supreme Court, and they really sent a shot over the bow that look, previous courts have allowed legislation by regulation to go through without going through Congress.

But the Constitution is really clear, House and the Senate signed by the President, that’s what the law is. So the courts look like they’re willing to help, and we’ve already seen them jump into several areas. But that’s a good opportunity that if we can get something in the court, we may see it reversed as well. 

And then, of course, if we actually get surprised and I don’t know, maybe there is such a massive tsunami, people say there’s going to be a tsunami, and I hope they’re right, but let’s assume there is, and you actually pick up the Senate and you pick up the House by large margins, you may find the President pressured to do something like Bill Clinton was back in his term when he had such a massive repudiation of his policies that just to save face, he suddenly took credit for all the things the Republicans are doing in the House and the Senate.

And who knows? Maybe Biden has that same epiphany if there’s a real slap down and we don’t know if there’s going to be a slap down or not. And Biden certainly doesn’t appear to be as reasonable as Bill Clinton was, or at least as pragmatic. But there are some other options that might be out there.

Bill Clinton

Tim:

Well, to that end, I don’t think that Joe Biden is as smart of a politician as Bill Clinton was. Bill Clinton was smart enough to see the handwriting on the wall, so to speak, and said, you know what, we should do this economic reform. This is a great idea.

I’m glad I thought of out of you guys, and you just begin signing all of the legislation that they had a veto proof majority couldn’t have done anything. And to get a veto proof majority in this upcoming election would be significant. In fact, I don’t know that in the Senate that could even be pulled off.

But certainly, in the House, you get a massive majority. But nonetheless, it would be something that if there is a big enough repudiation, it would make sense for a good politician to say, okay, we’re going to change things. But Joe Biden does not strike me, especially at this point in his career as any kind of a good politician. He doesn’t seem to care that he is doing things that make him look good. He just cares the media makes him look good regardless of what he does.

Nonetheless, dad, to your point, there are definitely some things Congress can do to rein in some of this excessive spending that’s happening regardless of what agencies or the President might promote.

Rick:

Yeah, I had totally forgotten about that. Bill Clinton as an example, welfare to work, right, he vetoed it twice, if I remember right, and then he just finally had to sign it. I mean, it was just the political pressure was too big, the majorities were too good, and he was losing face. But I think you’re right, Tim. 

I can’t see Clinton was also surrounded by pragmatists, right. So he had even people like Naomi Wolf, who’s been a champion for common sense in the COVID crackdown era like that around him. And I don’t think Joe Biden has anybody like that around him. But who knows? We’ll see what happens. Of course, these agencies are way out of control.

Two Out of Three

And I remember, David, one time you say in fact, the funny thing is Newt Gingrich repeated to me what you had said about two out of three, that basically, it’s a two out of three things. If you can get the courts and Congress, then you can sometimes beat the president. If you have the President and Congress, you can sometimes beat the court. 

And so if we have Congress, if Congress is taking over in November and the courts continue to do what they did this summer where they’re actually doing constitutional decisions, they’re actually saying there are limitations on the power of government who knows, EPA may not be the only agency that they slap down. They may start slapping down a lot more. So we could be in for some really good things there.

Okay, next question. Let’s see, I don’t have a name on this one, guys, but here’s the question. “I am curious about a more current issue. Is the war on fossil fuel constitutional doing things like giving a tax incentive to people to buy an electric vehicle, is that constitutional? 

Or like California, they banned the sale of gas powered cars by 2035. That seems to interfere with free enterprise. I think telephones and cell phones, the government didn’t place mandates on people to buy iPhones and they didn’t give tax incentives for purchasing that product. It was gradual progression as technology improved. Same with computers and televisions.”

And he closes out the question by saying “I’m open minded about electric vehicles, but I don’t like the government telling me I have to drive an electric vehicle and I find it to be something that’s outside their jurisdiction.”

As we often say on here, guys, it really comes down to who decides. That two word question, who decides? And I think what this author is saying in their question to us is why is the government deciding to push electric vehicles on us instead of letting us decide, like with an iPhone, if it’s so good and so much better than what we had before, the market would take care of that and we would do it.

It Belongs to the States

David:

Well, this is one you can’t say here’s the original attendant founders on this because they didn’t have fossil fuel to deal with back then and the way we do. I mean, they do have a coal lamps and oil lamps and stuff. Yeah, granted.

But what they did make really clear on original intent is the only thing the federal government can mandate are those things that fall within the 17 categories the Constitution gives them. And certainly transportation is not within that category. And if you’re going to talk about fossil fuel now, you’re talking about transportation moving it.

And Rick, as you brought up, even the Commerce Clause, etc, those are things the Constitution does specify, that the government is not supposed to stop the free enterprise system from moving between the states. And so what you’ve seen here is you have all these mandates, but 17 different states, they now have passed mandates on this. 

So 17 states in the United States have jumped on the federal bandwagon saying, hey, we’re going to get rid of this. And now you’re seeing every car manufacturing company except one has said that by 2035, we will stop manufacturing fossil fuel cars, we’re not going to have combustible engines, etc.

So the federal government may have started something that’s getting picked up by private enterprise and by states, which changes the complexion of this. But for the federal government to simply mandate something for all 50 states that is not within those original 17 enumerated powers in the Constitution, if it’s not in the 17th, the 10th Amendment says anything not in the 17 belongs to the states. Alright, if you got 17 states that do it, now you’re looking at something that’s a little different.

So this one is kind of changing complexion, although I think it is definitely spurred by the federal government, and the federal government does not have the authority to do that constitutionally under the way the Constitution was designed: this belongs to the states. And the federal government is not to interfere with the free enterprise system or stop the movement of commerce or business between the States, which this certainly does.

The Market

Rick:

Yeah, we talk in Constitution Alive about this from the standpoint of science and the constitutional provision that gives the federal government the ability to protect a scientific invention, so it’s protecting your property, so it’s a property rights clause really. But when government starts picking the winners and losers and paying for the research or investing in companies to do those things, very much like the electric vehicle situation, it’s now creating what Milton Friedman would have called “friction in the market”.

And bottom line is the bureaucrats never going to get it right as fast as the market because it’s not their money. It’s like Bob McEwen always says, right, you’re taking money from one to spend on somebody else, and there’s always going to be inefficiencies in that. And people just won’t make good decisions, meaning the bureaucrats won’t make good decisions.

Tim:

And the practical title we saw in California where right after Gavin Newsom announced that they’re moving this direction of electric vehicles, maybe it’s 2030, they won’t sell anymore 2035, it’s all going to be electric, whatever the scenario was, and the next day he told people, please don’t charge your electric vehicles because we’re having power shortages.

This is the problem when the government gets involved because it’s not dictated by the market. If it’s dictated by the market, and the market is growing or shrinking based on supply and demand, then the other surrounding details will grow and shrink with it, the things that allow it to stabilize in the marketplace are growing and shrinking with it.

But when you have the government micromanaging forcing and compelling a certain direction, you don’t always have the stabilizers you need to be able to support and sustain things in the market, which is exactly what has been happening in California, which is now crazy that people are thinking this would be a good idea to implement all over the nation. And it really goes back to part of the wokeism of the ‘Great Reset’ and the ESG and the going green, that it’s promoting an agenda that is not being driven by consumers or by the market.

Bad Informations

And people that often are buying into it, they’ve been given very bad information, not recognizing that America is one of the cleanest, is one of the greenest of all of the major nations. In fact, we have gone down with all of our environmental pollution significantly over the last several decades and even the last several years. Whereas China and Russia and these other major players, they’re increasing their pollution in what they’re doing.

So we are putting ourselves at a significant disadvantage on lots of areas and avenues. And even as we look to this coming winter, it’s going to be worth watching what happens in Europe when right now so many European nations are getting their power, their energy from Russia, from these fossil fuels. It’s something that really is Americans, we better look and pay attention to and not let the government put us in a position that we’re going to have a hard time getting out of.

David:

One of the other interesting ironies and Tim, even as you mentioned, Newsom, says, hey, no more vehicles, by the way don’t charge your batteries. They have clearly not thought through how electricity is generated. They got all these plans, they have all these charging stations, long interstates and highways, etc. Where do you get electricity? The overwhelming majority does not come through natural sources. Only about 10% comes from wind and solar. And even wind and solar, that’s had to be federal government subsidized and it’s very inefficient. They’ve been unable to store it.

At our place in Texas, we’re surrounded with all sorts of wind stations from our ranch. You can look any of four directions and all you see on the rise the windmills that are just turning all the time trying to get stuff. But it’s a very small percentage.

And I was talking to a legislator who’s an expert in energy areas, and he said, now the coal plants that produce this electricity, they have such efficient scrubbers that you’re actually getting zero fossil emissions into the atmosphere; through the scrubbers, they stop at all. But these guys are determined that we’re not even going to have coal plants even if they have zero impact on the climate.

Nothing Substantiates the Claim

I totally do not agree with what they claim is the damage on climate. I mean, it’s debatable how much it is but they agree that they go, no, there’s nothing that substantiates what they claim. But even with that, they have not thought through if we were suddenly to wipe out all of this fossil fuel, where are you going to get your electricity?

Because so much of it now is generated by fossil fuel plants. Granted, there’s a little hydro in there. If you’re up on the Columbia River and Snake River in there, sure, you get some, but the overwhelming majority still comes from fossil fuels.

So even if you take the combustible engines off the road, you’ve got the electrical vehicles out there and they’re going to need energy to generate the electricity they need to charge it. So this is just an inconsistent policy these guys have come up with.

Rick:

I have to admit, guys, that when that came out, that California had said nothing but electric cars and by the way, don’t charge, I thought it was a Babylon bee skit. I didn’t think it was real. It turns out it was real. It was not a Babylon bee skit.

Alright, quick break, guys. We got more questions coming. The next was coming from someone in Texas, which means it’s obviously going to be a good question. And I say that because, yes, we’re obnoxious Texans, we just think that way. Stay with us, folks. We’re right back at the Foundations of Freedom Thursday. You’re listening to WallBuilders Live.

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Thomas Jefferson said, “The Constitution of most of our States and of the United States asserts that all power is inherent in the people that they may exercise it by themselves. That is their right and duty to be at all times armed, that they are entitled to freedom of person; freedom of religion; freedom of property and freedom of press.”

The AMERICAN STORY

Hey, guys, we want to let you know about a new resource we have at WallBuilders called The American Story. For so many years, people have asked us to do a history book to help tell more of the story that’s just not known or not told today.

And we would say very providentially in the midst of all of the new attacks coming out against America, whether it be from things like the 1619 project that say America is evil, and everything in America was built off slavery, which is certainly not true or things, like even the Black Lives Matter movement, the organization itself, not out the statement Black Lives Matter, but the organization that says we’re against everything that America was built on, and this is part of the Marxist ideology. There’s so many things attacking America.

Well, is America worth defending? What is the true story of America? We actually have written and told that story starting with Christopher Columbus, going roughly through Abraham Lincoln, we tell the story of America not as the story of a perfect nation of a perfect people. But the story of how God used these imperfect people and did great things through this nation. It’s a story you want to check out, wallbuilders.com, The American Story.

Foundations of Freedom

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Abraham Lincoln said “We the people are the rightful masters of both Congress and the courts; not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.”

Rick:

Welcome back to WallBuilders Live. Thank you for staying with us on this Foundation of Freedom Thursday. More of these questions and answers at our website today at wallbuilderslive.com, you can go into the archives and find some previous Thursdays.

This next question is coming from David and League City, Texas. “Howdy”, he said, obviously a Texas. Howdy, David, Rick, and Tim. I recently read about bills being introduced by Democrats in the House and Senate which would limit the terms of Supreme Court Justices. These bills seem to be another attempt to alter the makeup of the Court since the court packing attempts failed. 

My understanding of Article III, Section I, is that Congress can define the number of Supreme Court Justices and define the inferior courts. But I don’t see a constitutional provision for Congress to impose term limits on Supreme Court Justices or lower court Judges. Are these bills proposing blatantly unconstitutional measures?

Assuming they are voted on along party lines and they pass, what recourse do we have for repealing and unconstitutional law? I love the show and sincerely appreciate all you’ll”, there’s another sign he’s a Texan, “all you all do to educate the American people and preserve our constitutional republic.”

Term Limits for Judges

That’s David in League City. David, thanks so much for sending that in. David and Tim, of course, this is a congressional act, not a constitutional amendment, and we know the Constitution right there in that paragraph he’s talking about says that they’ll serve for good behavior, both the supreme and the inferior courts. So as much as I would love to see term limits for Judges, I’ve been calling for this for 15 years, I don’t see how you do it through legislation. What do you all think?

David:

No, I don’t think you can do it through legislation. He’s right. You can define all sorts of things about the courts. You can reduce it and say, we only want one justice on the Supreme Court, no more than one. Or you can say, we’re doing all this stuff with lower courts.

The thing you cannot change by definition is how long they serve. They serve for the duration of good behavior, and that could be lifetime. A lot of people say lifetime appointments. It’s not true. It’s good behavior. It’s lifetime if you’re doing the right thing and you’re not being an activist. But if you transgress that, that’s something else.

Tim:

Or it’s also lifetime if people no longer know how to define good behavior. That’s also the thing we use to name.

David:

Yeah, for sure, they don’t know how to define that. But you’re not going to be able to pass a statutory law that goes in and alters what the Constitution specifically sets forth. And granted, these guys don’t like having conservative Justices, and I’m not going to use the term they’re not conservative justices, they’re constitutional Judges. They’re guys that are reading the Constitution, and that’s neither conservative nor liberal. That is simply fulfilling your oath of office to uphold what the Constitution says.

Judges

And progressives certainly do not like being bound by Constitution, and so they would love to stick their guys in there and get the constitutionalist off the court so that they can have that living Constitution again. But I just don’t see a way that it can be done short of a constitutional amendment. And the fact that they are offering statutory language pretty much says they don’t read the Constitution much at all because if they were, that’s not a solution for the problem they have with having constitutional judges on the court.

Rick:

It’s really fun to watch, though, isn’t it, guys? We’ve been the ones for 30 years saying the Court shouldn’t be doing all these things. We need to limit the court’s power. We’ve talked about term limits for federal Judges and that they’d serve for a set time, even if it was 20 years, all these things. And now, all of a sudden, one summer of decisions that the Left doesn’t like, and now they’re the ones saying, hey, we should really get rid of these Judges a lot faster. 

And of course, they want to do the legislation, because the first one to come off the court is Clarence Thomas. He’s the longest serving Justice, so that’s what they’re after. But maybe we could get them to work together with us and actually propose a constitutional amendment to do this, but it doesn’t kick in for a while, and that way we get a few more good years of Clarence Thomas.

David:

And notice that the things that the left is reacting to is the Court upholding constitutional rights and the Court upholding inherent basic rights, like the right to liberty, right to life, right to religious expression. Those are constitutional rights. And now if the Court has started upholding what the Constitution actually says, it’s driving Left crazy. They’ve had Justices that have been violating that for years, and they just don’t like the Constitution.

Who’s Next in Line

Rick:

Alright, guys, another constitutional question. This one has to do with the succession for President. This one is from Tucson, Arizona. Thank you, Joanna, for sending this in. “If the president dies and the vice president becomes president, who becomes vice president?

When it happened to Kennedy, there was no replacement. If that were to happen, then, and they don’t replace the VP, who then would be the tiebreaker in the Senate?” So, really good fun question we get to run down the rabbit hole on, guys.

David:

Well, it’s interesting on vice president. Let’s just point out that five presidents serve their entire term without a vice president. So to have five presidents who have no backup, you don’t know auxiliary plan. That’s pretty well established. The Speaker of the House is now the way the secession order was given with the constitutional amendment.

But you look back and there are 18 of our 46 presidents that win a significant period of time with no vice president. As a matter of fact, James Madison served two terms, and in both terms he went a long time with no vice president. But you had five who didn’t even have a vice president. So that’s pretty different from the way we think today.

Tim:

It does bring up the question, though, who becomes the tie breaker in the Senate, right? Because if that’s the role of the vice president and it’s 50-50, is that just now a draw stalemate? Which is one question. Secondly, I think we probably have to point out who those five presidents were. Not because I don’t know, because obviously Rick and I know the answer to this, we could totally tell everybody right now, but you have the paper in front of you, it just makes more sense for you to read the list off the paper.

Trivia

Rick:

This so reminds me of years ago, one of our first shows, David’s going on and on about the Barbie Powers wars and 32 year war against radical Islamic terrorism. He looks at me and says, we fought a war on radical Islamic terrorism for 32 years, and that’s exactly what I did, Tim, I said, yeah, yeah, of course, David, why don’t you go and tell everybody about that?

Because I had no idea what he was talking about. But yeah, David, do who were the five that didn’t have a vice president?

David:

President John Tyler, President Millard Fillmore, President Andrew Johnson, President Chester Arthur and President Grover Cleveland, so there’s your five presidents.

Rick:

Okay, so if the president is removed either by the 25th or dies or whatever, and the vice president becomes president while waiting to have a new vice president? If they appoint someone to be vice president and the Senate has to vote on that, who breaks a tie? It’s the Senate pro tem, I think is technically who would break a tie at that point. And then the question becomes, do they get two votes? Do they get a vote as a senator?

David:

But the Senate pro tem is a member.

Rick:

Right. Because they’re a member, because they argued about that back on the impeachment hearing was, are you making someone the 800 pound gorilla because they get two votes and most people say because it’s never happened, right. So most people say, no, there’s no way anybody would be okay with that person getting two votes. So you wouldn’t have a tie breaker.

The 4th Branch, Fossil Fuels, And More – On Foundations Of Freedom

You couldn’t end in a tie. You’d have to get at least one person to switch sides if they still had a 50-50 Senate, but nobody really knows because that hasn’t happened yet.

And I’m guessing, David, those five that you mentioned, so they essentially were vice president, and the president died really early in the term, and they became president for pretty much a full term or even for their partial term. Like say Gerald Ford, what if he had not appointed someone to become vice president until he got elected, which he never did? 

So he’s the only guy that served as a president that was never elected president because he actually was appointed by Nixon to become his vice president whenever his vice president resigned. So, my goodness, there are so many trivia… We should do a presidential trivia show one day, and Tim and I would spend three months preparing so that we could maybe, maybe stop David once, maybe if we had three months to prepare for that show, that would be fun.

Anyway, great questions today, folks. A lot more that we’ll get to next week. And also, encourage you to take a Constitution class because we talk about some of this trivia in those classes, and we have a great time, and no, we aren’t able to stump David, but, yes, David stumps me quite often, so we have a great time in those classes. So check them out at wallbuilders.com.

Thanks for listening. You’ve been listening to WallBuilders Live. It’s been Foundations of Freedom.

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President Calvin Coolidge said, “The more I study the Constitution, the more I realize that no other document devised by the hand of man has brought so much progress and happiness to humanity. To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.”