Welcome to Cato Audio for April, May, 2025. I'm Caleb Brown. In this offering, Caleb Trotter of the Pacific Legal Foundation details a decade of change since the Supreme Court found a state licensing board was acting like a monopolist. Mark Clifford tells the heroic story of Jimmy Lai in The Troublemaker. Brian Doherty discusses the key people and institutions animating modern libertarianism. Cato's Jeff Singer discusses his new book, Your Body, Your Health Care. First up, our latest Cato Roundtable.
I've heard this or maybe I said it or something, but it's a darn shame that any time a president or a legislature does something weird that we call it a constitutional crisis when all it's really calling for is just a close, careful reading of the Constitution itself. And then I think, well, maybe requiring a close reading of the Constitution among lawmakers and members of the executive branch actually is a constitutional crisis. But the Trump administration has challenged a lot of... You know, pretty normal, regular institutional thinking with respect to how branches operate, the powers of the president with respect to managing the affairs of the executive branch. And a lot of these are very questionable. Joining me to talk about that, Walter Olson, a senior fellow at the Cato Institute, and Tommy Berry, director of the Robert A. Levy Center for Constitutional Studies. So, Walter, if you don't mind, walk us through.
some of the many areas where this president has issued challenges with respect to presidential authority, with respect to how laws are created. and execute it. Practically his first day in office, President Trump made an announcement about TikTok, which was that he was effectively suspending the law that Congress had recently passed and not just suspending prosecutions under the law, which is a more traditional thing that a president might order doing, but also he said that the law just isn't going to apply to private parties, even in cases that others might bring against them. And now the fact is presidents cannot suspend duly passed laws in that way. So that got everyone's attention. Within a few days, he was impounding money.
technical word for refusing to spend money, sometimes which Congress had specifically said in appropriations bills had to be spent on that subject. He was addressing a lot of situations from the Paris Accords on Climate to the firing of Inspector General and the agencies in ways that ignored required delays. You had to wait 30 days to do this, or you had to give 60 days notice for that. And instead, he would just announce, no, it's done. And it wasn't going to go through those periods of delay specified in various laws for those things. Then when he turned to the doings of the administration,
after Doge began picking up speed, seemed to ignore rules about, for example, the organization of agencies, the U.S. Agency for International Development. It was the subject of a particular law to keep it from being folded into the State Department unless certain types of consultation were done with congressional committees. Elon Musk, in his memorable phrase, fed USAID into the woodshipper without, I believe, going through those consultations. And on down through management of federal personnel and many, many other areas, the administration did things that certainly looked on the surface to be illegal under what people thought was the existing state of the law. Tommy,
The president can't suspend duly past loss. The president can't refuse to spend duly appropriated funds. You have to delay the firing of inspectors general, at least announce it well in advance. Ignoring rules about the organization of agencies and federal personnel have certain protections. So take your pick. What's the least or most questionable thing that you see there? Definitely a lot is questionable. I will say.
partially in their defense, that if an administration has a good faith view that a statutory restriction is unconstitutional, I think there is a role to play in our separation of powers for the administration to test essentially that view. So, for example, there is... academic literature, and I think convincing arguments that restrictions on the president's removal power might be unconstitutional, at the very least for those at the top of the civil service chain, for principal officers. And so some of the removals we've seen of Hampton-Dellinger and members of the NLRB, and even some of the ignoring of, say, that 30-day limit, those may well have been motivated by a good faith view that those statutes are unconstitutional. And what we've seen play out is that that theory is now being tested in the courts. So essentially, what used to be percolating up through private litigation, through challenges from private litigants to the structure of these boards, now it's kind of being forced upon the courts, pushes come to shove, where the
The administration says, OK, we've removed them. And now if you want to stay in office, we're going to have litigation about are these statutes constitutional or not. But the key thing is, to the extent that the courts are resolving these, the administration still needs to comply with valid court orders one way or the other. So to you, Walter, how carefully has the administration adhered to court orders? So far, well over 100 lawsuits have been filed challenging in one way or another the early doings of the administration. And of those, there have been, I think, dozens of court orders, if only on the temporary and preliminary side, in which judges have taken the side of the challengers. And in most of those cases, as I understand it, the administration has complied. For example, it is refrained from doing something that the judge temporarily blocked them from doing. There have been three cases, as of last week, I think I did account, three cases in which the judges did not think that compliance had been what they should expect. One of them, the judge said,
well, it's watered under the bridge, and we're just going to go on with the case and no penalty. The other two, the courts got a little more engaged, and one was from the federal court in Rhode Island, and another one was from more than many cases in the federal courts in DC, and said, we think that you are consciously not complying with this, and we are... upset at you. Watch out because we're mad at you. And the DC one very quickly got into a case that went up to the Supreme Court. It is complicated in its procedural ramifications, but we will have more examples before long, probably, because when you are talking about some of the types of court orders that are coming down, trying to undo firings of employees, in some cases trying to undo refusals to pay on contracts, it's not necessarily cut and dried whether the administration is in a position to do the ordered thing that afternoon. In the Washington DC case, they argued and the judge got
quite impatient with them, that they just didn't have the means to spend the money that had been contractually obligated to go out the door weeks earlier. And in other cases, there will be other arguments. For example, if the court order is to put back together the Humpty Dumpty of an agency that they have dissolved and dismissed its employees, what constitutes putting Humpty Dumpty back together again? So the first point to remember about the dichotomy between obeying a court order and defying a court order is that it's not a dichotomy. It is a continuum. Tommy, this reminds me a little bit of the Obama administration's treatment of the so-called Clean Power Plan.
I don't know if you recall this, but this was an effort to get a bunch of power plants changed to something else and doing things differently, closing down old power plants. The practical effect being, even if your policy turns out to have been illegal, if you still got what you wanted as an end result, what could compliance actually look like in a case like that? Right. And that's one of the dilemmas of especially when the executive branch moves fast. And it seems that one of the strategies of the Trump administration is they're moving very fast on 100 different fronts. And it's hard for litigants and courts to keep up. And you don't know for sure what's going to be changeable and what's not going to be changeable. We seem to be experiencing that to some extent with these canceled contracts. There might be genies that you can't put back in the bottle. Even if you find out six months down the road, a contract should not have been canceled. There might just be services that aren't rendered and you can't go back in time and render those in time for whatever should have been delivered, perishable foods, what have you. So certainly.
The courts are equipped with some procedures to try to counteract that. The whole point of a temporary restraining order is to try to keep the status quo in place long enough for the courts to solve these issues and resolve potential conflicts. But that's not always successful, and there's not always a situation that you can keep everything paused. So to some extent, courts have other tools that they're... disposal such as, you know, holding people in contempt or at least some sort of punitive damages perhaps down the line if they find that there was gamesmanship or that the executive branch was intentionally trying to take actions faster than they could be reversed. Walter, before we started recording, I was talking about, I was giving you a, for instance, a hypothetical. And I would like to dig into that hypothetical at least to help understand some of the divisions here. And that is, it seems totally reasonable to me that the Trump administration might have a good faith claim that the U.S. Department of Education is unconstitutional.
Our colleague Neil McCluskey points out at every opportunity that there's nothing about education in the U.S. Constitution. And maybe the president, in order to tee up exactly this kind of litigation before what he believes to be a friendly Supreme Court, could say, we're just not going to do the Department of Education. I am one, like I think many at Cato, who starts out with a lot of sympathy for the idea that the oath of office does not require and may indeed forbid presidents to further activities they don't believe are constitutional. Now, that having been said, I do want to pause just to marvel at the idea of Donald Trump having an attack of conscience based on constitutional conviction. This is not the Donald Trump who has been president at any point during the two disconnected terms, as far as I can see. But hypothetically, were it a different president or were he to have an inspiration, yeah, quite disruptive things can happen if those in charge of it.
began taking their constitutional oaths seriously. normal political circumstances, a president in that situation would probably serve up a test case that was less disruptive than saying, you know, all student loans will be frozen or all, you know, federal involvement with Indian schools and other things that even if you don't think the Department of Education is constitutional, it's probably a pretty decent case for certain bits of the federal apparatus with respect to Indian tribes in the District of Columbia. Nonetheless, offer them a well-sculpted test case. Again, I'll let historians decide whether or not they think that was the actual grounds. For the courts themselves, they are more likely, I would say, to come up with correct answers if they can be presented in an orderly and not 100 cases at once manner with the new constitutional philosophy, assuming it is one, that is being urged on them. Yeah, I completely agree with that. I'm reminded of in the judiciary, there's a concept called reliance interests, which is that even when a court believes that a prior precedent was wrongly decided, one of the factors that goes into whether they overrule that precedent or the means by which they overrule it is to what extent have people...
ordered their affairs, ordered their lives in reliance on that prior understanding. And certainly, as Walter said, there are a lot of reliance interests involved with the Department of Education, with contracts, with loans, with jobs, etc. So similarly to the care that a court takes, if it were to suddenly strike down the Department of Education, it would probably consider those reliance interests. It might tailor its relief to slowly phase it out, to make sure that it isn't too disruptive to people who rely on it. And the least you can ask for the executive branch is to do it similarly if they come to the good faith view that it needs to be needs to be shut down. A whole lot of the spending.
pointed out by Doge, which we should carefully delineate from the claims of people who work for the Department of Government Efficiency, so-called, and the actual substantive savings. But to the extent that the administration says, we found some waste and we're not going to spend this money, what kind of ground does the executive branch stand on when they decide to do something like that? This gets back to that seemingly technical term of impoundment and to... what has really been a debate through American history that seemed to be resolved definitively in the Nixon administration during the big showdowns between Congress and Nixon on impoundment. Now, historians, and I don't want to take too long on this, but they find that there are a number of different cases in which it was accepted that some version of impoundment would take place. And the classic is, I think it was Jefferson who ordered some warboats and then the war stopped before they arrived and he said, look, we don't have to buy all of these. And even though Congress has voted the money, not going to spend all that money on warboats now that the need is passed. Or you finish a bridge with only three quarters of the money that you thought you would need for the bridge. Do you have to spend the extra in order to gold plate the bridge?
So there are some reasons that Congress had always accepted it as practical and which wound up being featuring in the employment bill. There was also some real difference between laws in which Congress had said, we are authorizing up to such and such an amount for such a purpose, and bills in which Congress said, this money must be spent for that same purpose. One was so-called mandatory, the other was more like optional. And again, before Nixon, the general feeling was that the executive did have discretion in many of these cases, but not all of them, because sometimes Congress had made it quite specific. And then Nixon came along with very aggressive claims of ability to impound money that might not have been impounded by earlier presidents. And Congress struck back by passing and, I believe, getting a presidential signature, although by that point it might.
not have been Nixon's, on the Impoundment Control Act, which I think was reviewed by the courts at some point and not found to be unconstitutional, saying, no, look, the president does not, in fact, have unlimited power or discretion here. Here's how it has to work. If you don't want to spend money that you think is needless, you file a so-called rescission. You send a notice to Congress saying, I don't think we need to spend this extra billion dollars. And then we get to decide whether to rescind that spending. There were special provisions for the bridge that didn't take as much money to build and so forth. But by and large, Congress was very consciously keeping a bunch of the reins in its own hands. And that, not to...
overemphasized, but the fact is that much of constitutional history, stretching back into British history before American history, revolved around the power of the purse as one of the most important powers that Congress or the British Parliament before that husbanded to itself. And it was jealous of that. It knew that kings, among the various ways they tried to make themselves absolute in Tudor and Stuart England, they were always trying to get away from the power of the purse and either raise money that the Parliament didn't think should be raised or spend money improperly or through the wrong channels. So in a normal state of American political life, and you notice I keep using that phrase, Trump's massive claim of impoundment, which, to be fair, he campaigned on saying that he had an impoundment power. This was not a surprise that he sprung after inauguration. He had been saying that before. But in a normal situation, Congress would have roused its wounded dignity, said, sir, you cannot take away one of our most precious powers under the separation of powers, release that impounded money, spend it at once. We don't like being disobeyed. The actual Congress we have, of course, leaned over and asked for tummy robs. It had no interest whatsoever in fighting for its traditional authority on that, which leaves you in an interesting position because the front line of fighting a president who is improperly claiming power of the purse is supposed to be Congress rather than
the judiciary, I would think. Nonetheless, here we are with the cases inevitably headed for the judiciary on an empowerment theory, and they're not there yet. Yes, it's remarkable, really, because I think a lot of members of Congress feel greatly relieved to have what appears to be a president and a rich guy doing their jobs for them. It really cuts against the Madisonian vision of branches of government jealously guarding their prerogatives. And it brings up the modern sad fate of much of the separation of powers, which is that Congress wants to be a popularity machine, taking credit with the different spending constituencies for having funded all of their different wishes and not taking responsibility for the budgetary need to then go back and snuff out a certain share of those as having been improvidently promised. So if they can get to the president or Mr. Musk to take on the sin from their shoulders and take the heat from the spending constituencies, they may imagine that they can go on.
on getting all the popularity from spending and none of the unpopularity from adjustment. Tommy? Yeah, I completely agree with all of that. I'd just add that for those trying to follow these cases and make sense of, is this a violation, is it not? It gets tricky. Sometimes the devil is in the detail about what...
how does this particular statute function? We had a Supreme Court case just last term about the unusual funding structure of the CFPB, that it could essentially take as much as it wanted up to a certain cap. So, but there was no minimum, there was no floor. So this term we have the acting director say, okay, this term we're going to take zero dollars. I don't think that's an impoundment violation because the statute is explicitly written with that kind of leeway, with that up to a certain cap, but as low as you want. So where you really get the violations is where the statutes are crystal clear. You have to spend this amount of appropriated money or at least this amount. So that's why, you know, every single instance of not taking as much.
as you could take isn't necessarily a violation, but many of them are, depending on how the statute is written. Right. It's a routine process, I think, for new presidents to order their new cabinet officials to find savings, to report back on inefficiencies or funds that ought not to be spent. That seems fairly normal. And of course, prospectively, so long as they are saying in next year's budget, there should no longer be such and such a lame program. That's all according to the rules. At that point, it goes through a regular process in which the president's veto may come in. It is the retrospective stuff, the stuff that is already in the pipeline, perhaps committed by contract or perhaps committed by a mandatory appropriation where the possibility of lawbreaking seems greater. And I should mention that.
On a number of the topics that we've been talking about, very much including the removal power for independent agencies and others, the Supreme Court has heavily foreshadowed that it's interested in revisiting old precedents, that it has taken seriously and given many hints that it might approve of the doctrine that the president should have more power than we've allowed. As far as I can tell, it has not done that with impoundment. It has not left that little breadcrumb trail of, you know, hey, follow this and you might get an overturning. And that's true with a number of the other things that we could talk about. It's true. I don't believe that they've suggested in a series of earlier cases that civil service protection is an improper restraint on presidential power.
Or I don't believe, in fact, I think quite the opposite, that on the series of cases saying that employees may not be removed for political reasons, that is because they are suspected of having voted for the wrong candidate and they want to replace them with someone of their own. There's a bunch of First Amendment cases saying they can't do that. Again, they have not been suggesting that they have had many doubts and second thoughts and they might reverse that. And if they're not going to reverse that, then anytime that someone in the FBI or the Justice Department is purged for supposedly being too sympathetic to Biden's ideas, if they are a career employee and replaced with someone who is more loyal, that should violate. series of First Amendment doctrines. Thompson, anything? If I could. Yeah. Walter, go ahead.
The power of the purse, when you think of it, is actually two different powers. And we've been talking about the power to make sure that money does get spent if Congress wants it spent. The other one, which is historically actually more explosive, is making sure that the president does not spend money that Congress has not appropriated, that he doesn't just begin spending on things that Congress turned down the chance to. And now, this has been building for a while, and Trump is now the only president to try to get away with stuff. But if, for example, he, having founded a sovereign wealth fund, so-called, which is basically a big old piggy bank that he will have control over, and then if he funds it, has been floated. It hasn't actually happened yet, but there have been suggestions that will get funded with tariff revenues and various other things, which are, I believe, supposed to go into the U.S. Treasury, not into a slush fund controlled directly by the executive for projects that Congress has been unwilling to fund. You've got a big problem on the second, the obverse side of the spending power issue, too. Thompson, absolutely.
On the removals issue, I'd remind readers that even the patron saint of the unitary executive theory, Antonin Scalia, wrote in his famous Morrison v. Olson dissent that he had no issue with the president saying that inferior officers can be tenure protected so long as they truly are supervised by principal officers. There's, in fact, a case at the Supreme Court this term called Kennedy v. Braidwood that I think may well be an opportunity for the Supreme Court to make clear that principal officers have the right to reverse all of potentially final decisions of inferior officers and that so long as they can make those reversals, you don't necessarily need to also have presidential removal at will. those inferior officers for the civil service. So it makes a lot of sense, sort of logically speaking, that the two levels would have two different theories, that principal officers need to be removable at will, but then inferior officers are essentially controlled by and supervised by principal officers. And that negates the need to also have them be removable at will by the president. So I think Trump's theory that he has a constitutional right to fire every postal service employee across the country is on a lot weaker ground. All right.
We're going to leave it there. Walter Olson is a senior fellow at the Cato Institute, and Tommy Berry is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. You can follow all of these quick-moving developments at our website, cato.org. Occupational licensing boards today act like protectors of cartels, often going beyond merely issuing licenses to launching witch hunts and boxing out their competitors. It's now been 10 years since North Carolina Board of Dental Examiners versus FTC, a case that found a state licensing board acting as a monopolist. So what has the impact been? Caleb Trotter, an attorney at the Pacific Legal Foundation, discuss the case and what has changed since at the Cato Institute in March.
So to start off, I'm going to take us back to the 90s. And no, we're not going to Portland where my co-panelist's uniform would be out of place. We're going to go back to the days where if you wanted to get your teeth whitened, you basically had one option, and that was to visit your dentist. Because of that relative exclusivity for the process of teeth whitening, dentists were, of course, able to charge relatively high fees and costs for the procedure. Now, fast forward roughly a decade or so into the early 2000s, because of the relative simplicity of teeth whitening, and after all, it's basically just a simple peroxide solution and a small UV light, non-dentists began to offer this service in shops and booths around the country and for an increasingly significantly lesser cost. That, of course, led to more and more people getting their teeth whitened. And because of the increasing loss of business and lowering of price for teeth whitening, dentists understandably began to complain with losing the exclusivity of that process.
Now, unfortunately, for at least in the point of view of myself and my co-panelists, dentist complaints didn't just stop at bemoaning the general competitive change, but they also started directing those complaints at various state dental boards around the country. I think it's telling not only in North Carolina, which is, of course, one of the main focuses of today's talk, but also nationally. Generally, those complaints didn't really have anything to do with public health or safety concerns with non-dentists performing teeth whitening. It was basically all about the competitive change and the loss of business. And that was understandable because dentists were taking in a relatively hefty source of income from that. And what we'll get to shortly in the North Carolina dental lawsuit, at least at the time, eight of the 10 dentists who sat on the dental board at the time were earning substantial income from teeth whitening back then. So it's understandable then that North Carolina dental board specifically took these complaints of dentists in the state very seriously and began looking into this, so those problem of non-dentists performing teeth whitening. And even though state law didn't really touch on
teeth whitening say that it was the practice of dentistry, which would have, of course, given the dental board authority and jurisdiction over this problem, they decided to act anyway. And as Tad mentioned earlier, this included nearly 50 cease and desist letters across the state of North Carolina to non-dentists performing teeth whitening. My favorite bad fact of this is what Tad mentioned. This even included sending letters to malls, shopping malls, whose tenants included teeth whiteners and basically told them they should evict them. And regardless of the dental board's authority to do this, it had the desired effect. And within a couple of years...
non-dentists had stopped performing teeth whitening in the state of North Carolina. While this got the attention of the United States Federal Trade Commission, they did their own investigation. And the result of that is that they determined that the North Carolina Dental Board was a violation of federal antitrust laws. They proceeded through the process internally within the FTC to come to that legal conclusion as well. The Dental Board appealed that to the Fourth Circuit Court of Appeals and eventually to the United States Supreme Court.
And so when the case got to the United States Supreme Court, cert was granted on one narrow question, and that was basically whether a state occupational licensure board as kind of a hybrid creature of state government was immune from federal antitrust laws. Now, there's a U.S. Supreme Court case from 1943. It's called Parker v. Brown. That's kind of the seminal case that established that state government entities are immune from federal antitrust laws, primarily due to federalism concerns. Now, the U.S. antitrust laws pretty clearly establish a policy of free market competition.
and encouraging that, you know, regardless of how that has actually been enforced and enacted upon. I know that's the subject of much debate, especially in libertarian circles, but let's just assume that that is the policy. But I think we all know that that's not exactly the policy in the states. States themselves are the predominant limitations of competition, particularly in the professions by way of occupational licensing itself. So clearly the states are able to limit, you know, pure laissez-faire free market competition and do so without antitrust liability. Generally, the
the preferred in our system of government way of addressing that is through the democratic process. Whereas if you're unhappy with particularly anti-competitive policies in a given state or municipality, the way of addressing that is through the legislative bodies, not through the antitrust laws in court. So that's kind of the background of what was at stake with the North Carolina dental case. Of course, as we've kind of alluded to, licensure boards are not quite the same as state government. They're certainly not.
like a state Department of Health, for instance, where you've got an appointed or elected director, and then all of the staff of that agency are state employees. That's kind of the inherent agency of government. But a licensure board is very different from that. Usually, the members who make the governing decisions are typically either appointed by a governor or elected by members within the profession. They do this in their capacity as volunteers. The staff can be just private citizens. I think there's a...
Currently a controversy brewing in Alabama over, there's a number of licensure boards that completely outsource the management of the boards to private companies. So they're definitely a different creature. And so that creates different problems due to, or at least different concerns over this lack of democratic accountability should the board engage in anti-competitive actions as was done in the North Carolina dental case with these cease and desist letters. So when the Supreme Court is taking on the North Carolina dental case, it's considering whether a state licensure board, which in particular is dominated by active market participants, as the North Carolina Dental Board was, with a significant majority of the members of the board being practicing and licensed dentists. In that instance, then, in order for the board to claim immunity under the antitrust laws, they're going to have to satisfy a two-part test. And that's whether the anti-competitive actions, so in this case, these cease and desist letters, are being...
done through a clearly articulated state policy. So if, for example, state law in North Carolina had said, yes, teeth whitening is the practice of dentistry, then that's starting to look like a clearly articulated state policy to displace competition. Interestingly, in the North Carolina dental case, though, the parties just assumed that that factor was met, even though teeth whitening was not expressly included in the definition of dentistry, but they just assumed so. And so for future cases, that is still a question that... There are some intricacies and nuances to be sorted out. But at least for now, we'll leave it at the very least, that is still one of the factors that a state board would have to satisfy to obtain immunity from an antitrust lawsuit. The second factor, and that's what was really discussed at length in the North Carolina dental case, was their active supervision. And like I said before, the reason this is a key component is because if a state or a municipality is displacing competition, there's at least theoretically a democratic accountability measure available to the voters to either vote the people out who enacted that or...
more direct democracy means. So that's at least an avenue. But when we're talking about a state licensure board, that's just not present at all for members of the public. And so in order for a state licensure board to claim immunity, they need to be able to show that their anti-competitive actions were clearly supervised by an officer or body of the state with actual accountability measures. The Supreme Court clearly notes that in the decision in North Carolina Dental that there were no supervisory measures at work at all in that case. So they didn't have anything specific to review. So they went through several examples as essentially just examples of what they're looking at, but mainly from a what it isn't. And so for supervision.
There has to be a measure for one of those democratically accountable bodies or officials to actually be able to review this and disagree. And so basically overrule that decision. And that's primarily the main factor aside from they can't also be an active market participant themselves. Caleb Trotter is an attorney at the Pacific Legal Foundation. Jimmy Lai became China's most prominent political prisoner when he was arrested and convicted on trumped-up charges after Hong Kong imposed its draconian security law in 2020. That story is told in Mark Clifford's new book, The Troublemaker, how Jimmy Lai became a billionaire, Hong Kong's greatest dissident, and China's most feared critic. He spoke at the Cato Institute in March.
The family had been a prosperous family before the 1949 revolution, which occurred a couple years after Jimmy and his sister were born. The father fled to Hong Kong. Their mother was in and out of labor camps, leaving the three kids, four years old, six years old, to fend for themselves. And Jimmy was, he's a primary school dropout. I mean, think of this. This is a guy who just achieves such success. And yet under the cruelties of the Maoist regime, he was spending his time scrounging for food for the family while his mother was in prison. This is Jimmy at about the age of 11 or 12, just before he went to Hong Kong.
His mother gave him permission to leave. Think of this. You're a mother with a 12-year-old boy, and you give him permission to go. You may never see him again. He may not survive this perilous voyage across the Pearl River Delta to Hong Kong because the country is starving. This is a time when 45 million Chinese are dying as a result of the greatest political famine in history. And that's the China that Jimmy left, China that was being ripped apart by Maoist poverty and political struggles. Things didn't look so great in Hong Kong. This is a typical street scene from Hong Kong in the early 1960s, people sleeping on the streets.
He went to see his mother's sister, his aunt. She was living in a shanty town like this. The hut was so small, there wasn't even room for Jimmy to sleep on the floor that first night. She took him over to a glove-making factory. He slept on a table there, started working as a factory hand, worked as a teenage laborer. Fifteen years later, he owned a factory much like this. So he goes from absolute poverty, a stowaway into Hong Kong, to pulling himself up by his bootstraps. He goes from a factory worker to a factory owner. Hong Kong itself was changing. This is the first picture.
This is Hong Kong in the 60s. This is Hong Kong in the 70s. Jimmy rode that wave to prosperity. Five years after he started the clothing company, he was the biggest sweater manufacturer in Hong Kong, if not in Asia. Got a little bored with that. Figured he'd start selling sweaters besides making them. Set up kind of the first fast fashion chain. The head of Uniqlo from Japan, just starting then, came down to learn from Jimmy. Set up this phenomenally successful Giordano clothing store. But it all changed in 1989. He hadn't been interested in politics. But when the students went out on the streets in June 89, Jimmy was just completely, you know, overcome.
and started selling t-shirts, support with these, actually these three students, Wang Dan, Chai Ling, and Wu Kai-she on the t-shirts, sent the money up to Beijing, sent tents up, was all in supporting the students. Then of course came the brutal crackdown of June 4th. I'd been showing this picture for a while and it eventually struck me, Jimmy is like the tank man now, that guy standing there on the left, trying to stop the onslaught of the Chinese state. So he went from selling shirts, making sweaters, and he had an idea of going to Chinese fast food. Instead, he went into media. He thought that media would bring accountability and transparency, and in conjunction with the economic reforms in China, bring about political and social change. And he was all in on democracy, started Apple Daily. You know, you see it's a very colorful kind of paper. This is the, I'll show you a couple of pictures of people reading it, but also to give you a sense of what the newspaper looked like.
It was 30 years ago when it started in 1995. There were no color newspapers in Hong Kong. Jimmy went all color, big graphics, big photos. Everybody read it. This is the last governor of Hong Kong, Chris Patton. This is Martin Lee, the father of democracy. Again, you can see the newspaper in the foreground. Big photos, really dramatic. Covered everything from horse racing to economics to, of course, politics and investigative reporting. This was all done with the idea that the Chinese were taking over in 1997 after 156 years of British colonialism. This was the ceremony.
Jimmy increasingly used his publications to oppose the government's attempts to crush Hong Kong's freedoms. This is actually an insert from Next Magazine that could be purposed as a poster opposing the first national security law the government tried to put in in 2003. So that's a photoshopped image of the chief executive being smashed with the cream pie. He didn't really like that. The important point, though, which is significant, is that these posters were part of a broader campaign, which coincidentally started shortly after Mark Simon joined Jimmy. This was in 2003.
500,000 people out in the streets opposing the government. Apple Daily, Next Magazine were absolutely key in taking what had been a tiny, fragmented opposition to this national security bill and getting 500,000 people out in the streets. And I think the Chinese already had Jimmy in their sights, but when they saw how he could use his media empire to... mobilized the people of hong kong i think it you know obviously forced them to look more critically fast forward 10 more years uh we're at the umbrella movement when students and jimmy and the older generation martin lee and others were starting to step back the students stepped up and uh were opposing um attempts to roll back or curtail moves towards more democracy in hong kong which by the way the chinese had promised as part of the handover jimmy for i think the first time went out onto the front line so this is him being tear gassed This is part of the 79-day occupation of Central, Occupy Central, the Umbrella Movement. Jimmy was out there every single day sitting in front of his tent. I think he missed your birthday that year, Sebastian. You guys were supposed to go on a boat, and he was out there with people. And at the end of that, he offered himself up for arrest. I think it was his first arrest for civil disobedience. He was arrested but ultimately not charged. I also want to remind you, Sebastian's his son. Jimmy's a family man. I mean, he's not just some hard-bitten guy sitting there in a cell. He's got a wonderful wife, Teresa, who's been an absolute rock and I think is key to Jimmy's.
Success and remaining as strong as he has in prison and as we've seen him during 52 days of testimony on the stand in his national security law trial Which the testimony just ended a few days ago This is fast forward to 2019 two million people out in the streets and again Apple and next were absolutely central to helping mobilize the people of Hong Kong not in the sense I think the Chinese government thinks that Jimmy is some kind of all-powerful guys like some kind of a puppet master He's not he's helping I think catalyze the grievances that Hong Kong people felt You don't get two million people on the streets just because you have a good newspaper just a few shots from 2019 remind people of the scale of the movement. These are all, it's hard to see, but these are all thousands of post-it stickers with people writing messages of support for more democracy. There's Jimmy, August 18th, 2019. He was successfully prosecuted for taking part in that march, among others. This is just a flash mob at lunchtime in one of the upscale shopping malls in Hong Kong of people, again, rallying for democracy. So I show you these to show you that Jimmy is both catalyzing this movement, but he's also part of something that's so much bigger than himself.
And here he is. This is interesting. My title, The Troublemaker, was taken from Jimmy's self-description. I asked him a few years ago, why do you do this? He goes, I don't know. I'm a troublemaker. But Ambassador James Cunningham, who's the chairman of the Committee for Freedom in Hong Kong Foundation, reminded me that John Lewis, who's the guy on the left, talked about making good trouble in the sense that being a troublemaker can have a negative or more of a positive connotation. I think for Jimmy, it's quite positive. So that's Jimmy with Martin Lee and John Lewis in the U.S. Capitol in 2019. And Jimmy's always been an exponent of nonviolence. He met John Lewis, asked him to make a video exhorting the students.
to remain nonviolent in Hong Kong. I think as most of you know, John Lewis has since passed on. That's the only time they ever met, but I thought it was just a nice photo. There's Jimmy, his first kind of- deliberately humiliating arrest where he's handcuffed August 10th, 2020. He's arrested on national security law charges. It's been almost five years since then. That trial is still going on. This is that same day. As Ian said, I was a director at Next Digital. Pretty daunting to find 250 police coming into your newsroom and taking so-called evidence away and perp-walking the boss through the newsroom. The staff was incredible. Really did not cooperate with the police. They were live streaming an interview with Jimmy as he's being perp-walked. Incredible group of people. These are just a few more shots from the arrest. He got out after a couple days. Unfortunately,
Later that year, December 3rd, I believe, he was incarcerated again. You can see he's being shackled. He's often moved around in shackles, in chains. When they move him between prisons, he's typically inside a cage, shackled inside a kind of oversized armored car with dogs, hundreds of police around like he's Carlos the Jackal or something. And this is, again, a nonviolent man in his 70s. Last day of Apple Daily, the government froze our bank accounts, leaving us unable to pay our staff, unable to process payments from our 600,000 subscribers, forcing us out of business.
Last known picture of Jimmy, July 2023, taken of him when he's going out to exercise at Stanley Prison. The government seems to be so afraid of images of him that they punished the photographer who shot this for AP by kicking her out of Hong Kong. Mark Clifford is author of The Troublemaker and heads the Committee for Freedom in Hong Kong Foundation. Brian Doherty provides a clear account of the intellectual roots of the modern American libertarian movement with helpful summaries of key figures, institutions, and events. Modern libertarianism combines historical insights and intellectual profiles of important figures, including Ludwig von Mises, F.A. Hayek, Ayn Rand, Murray Rothbard, Milton Friedman, and Barry Goldwater, and key institutions such as the Foundation for Economic Education and the Mont Pelerin Society. He spoke with Gene Healy at the Cato Institute in March.
I wrote these books not as an objective outside observer, but from someone who believes all this crazy stuff and has believed it since I was a teenager and has worked within the libertarian movement my entire professional career. I hope that that gave me a sense of depth and understanding that's unique. I hope it did not make me beholden to any one side of the movement or even to believing that. Libertarian ideas could never have been off or ever done any wrong. But they're a darn good set of ideas. And they're rooted in the American founding, right? I think that's a nice way in America to talk about it. It's all in our declaration. The purpose of government is to help preserve and protect life, liberty, and not happiness itself, and this is a very important point, but the ability to pursue it. Government is not there to try to make us happy. It's there for any reason to try to create a set of incentive structures in which we can pursue it. And if government is not living up to these standards, it is the right of the people.
to either alter it or to abolish it. The libertarian movement has many people who emphasize the alter part. We call them the less radical, the minimal sadists. And there are many who go straight to the abolish part, the anarchist wing, the anarcho-capitalist wing. They're all part of the story. They're all part of the mix. I appreciate them all. And I try to honor and explain them all well in this book. But it's certainly very interesting. If you're an outsider and you're reading a book, say, let's use the diet of Hayek and Rothbard. And you're like, huh, you're calling these two very distinct.
You're calling them both libertarian, but they're clearly big differences. Absolutely there are. I was trying in this book to be descriptive, not prescriptive. As someone who moved through the movement, I tried to write about those figures who were considered by those who thought of themselves as American libertarians as part of their team. And that most definitely did include both your Hayek's and your Rothbard's. So there's a wide range of ideas and thinkers the book covers. The five who I would say are the center intellectuals of the book are the two I just mentioned, plus two other economists, Milton Friedman and Ludwig von Mises, and then the novelist philosopher Ayn Rand. Pictured on the cover is Barry Goldwater.
him as one of the central figures. And this is a little background information on how books get made. Decisions about things like covers are usually made at the end, and they're often made by professionals who are not necessarily the writer. But it made a lot of sense, because Barry Goldwater was the first guy in the era that this book tells who actually brought very, if not totally, libertarian ideas into actual electoral politics in a significant way. And as everyone, both libertarians and those who want to make fun of libertarians, will remind us. And he got trounced mightily, and he did worse than any major candidate had ever done. But the ideas have gone farther.
Didn't end with Barry Goldwater, didn't end with any of these people, but a lot of victories for the movement. I think this story, for people who do care about these ideas, is inspirational. Obviously, we do not yet live in a libertarian world. I do think we live in a world where fights on libertarian grounds are more front and centered in American government than we could have ever imagined. Might get into that more later. And so to me, this is a story of rank outsiders, despised, abused, hated, really super isolated people who fought for ideas that were noble, that ultimately were about minimizing the use of violent force in human affairs.
I kind of came into libertarianism through a little bit of a hippy-dippy path. I was a Robert Anton Wilson libertarian, if any of you know what that means. Freedom is great. Of course, we all believe in freedom. As Ayn Rand noted in her puckishly, if not trollishly titled book, The Virtue of Selfishness, a lot of people look at obsession with your own liberty as selfish. And she tried to explain why, yeah, it is. And also, that's great. But you can also frame the Libertarian Project as not about liberty per se, but about the flip side of liberty, which is we are minimizing the areas in which anyone else is justified in using violent force against you. In those areas where no one is justified in using it, that is the area of your liberty. And I found that has been a rhetorically effective way to explain, what are you guys all about? What is it you want? Well, we want human social relations to be based
the least possible they can be on violence. And some of us think that means eliminating it, perhaps entirely, except for in self-defense. Some think we need a little more. I will stop ranting now and let Gene begin a conversation. Yeah, you pick up the story in the post-war era. And you said the original.
proto-libertarian movement was isolated. And you really get a sense that it started small. Through the end of the 50s, you say it was really more like a gang than a movement. And you read the correspondence of the early figures, and they get excited because a bright high school student discovered libertarianism. But another thing the book did, I guess I knew this already, but it's easy to forget. It reminded me that for such an odd, difficult, and periodically dysfunctional group of people,
uh that the achievements of the modern libertarian movement have been pretty impressive um you know not just the intellectual achievements uh you know the socialist calculation debate the nobel prizes won by various libertarians but in concrete policy terms uh you know this little gang didn't smash the state but there are some ways in which they won policy victories that made the the world freer than it was before can you talk about some of those sure i think most of them could be connected to the one of my five central figures who was undoubtedly the most directly and specifically influential so far, which is Milton Friedman. And you look at his advocacy of a monetarist approach to a Federal Reserve policy. It has never fully ruled Federal Reserve policy, but the understanding he imbued about how you cannot willy-nilly and constantly raise the money supply from kind of the mid-'70s on had helped create an era of Fed management that was less damaging than I think it would otherwise have been without Milton Friedman existing. The fact that we currently lack a military draft, he was one of the great intellectual linchpins.
of that the fact that we now live in a world of floating international exchange rates very freedmanish we have not yet won this victory in in terms of how the government manages its existing welfare state the freedom was a great arguer for a government redistribution that left as much decision-making power in the hands of the recipients as possible he advocated ultimately we don't have it yet something they call the negative income tax which is look look don't have government running all these programs running all these bureaucracies trying to manage how uh people behave like if we are going to attempt to keep people above a certain level of destitution just give them uh money and i think that as long as the welfare state exists that probably is the best approach and um that's continued to be a live idea in the debate uh because of him all of the deregulations we've seen from the 70s and on a lot of them derived from the chicago school economists who were not necessarily libertarians across the board or libertarian activists though friedman one of their leaders was um you know anything that's happened in the last 40 years where people have more choices about how to run their businesses you know how to manage their lives you know the spread of miracle marijuana and then legalized marijuana
These are all victories for libertarian ideas. It's not always the case that you can definitely identify that the bureaucrat got the idea from this libertarian thinker, but the intellectual atmosphere that was shaped by the Mises, Hayek, Friedman and Rand has made America a much better and freer place than it would otherwise have been. Not yet, obviously, as free as a libertarian would like. Brian Dougherty is author of the new book, Modern Libertarianism. Your decisions over your own health should belong to you. To the extent that you consult with a physician, that physician should be as free as possible to give you the best advice available. But too often, government is the unseen mediator in that deeply personal and highly individual relationship. In Jeff Singer's new book, Your Body, Your Healthcare, he walked readers through the ways that government affects a wide range of healthcare choices. We spoke for this Kato Audio exclusive.
I decided to write a book that would put together a lot of the different policy areas that I've done work in by connecting them by one overarching theme. And there is one overarching theme that runs through all of my positions on different issues in healthcare policy. And that theme is the presumption of liberty and autonomy. In other words, we need to start with first principles that we adults, and I'm talking here about adults, are autonomous. We have inherent rights. And that's where we start. So in all discussions about what's the best way to have, what's the best kind of health policy to have.
We need to start from that framework. And we have a tendency over the years to have lost sight of that. So, for example, you know, when we say the FDA has approved a new drug to be used to treat a particular disease. Well, actually, what that means is the government has decided to get out of the way of us autonomous adults having access to that drug. to try to treat ourselves for a health problem. And we all have a tendency to fall into that trap, to say, has the government approved this yet? Well, actually, it should be, has the government got out of the way of me having access to this, of exercising my economy? And so I basically started from that standpoint and linked together all the different policy areas that I write on, whether we're talking about medical licensing laws and scope of practice laws, certificate of need laws, FDA regulations, including...
The FDA having a government monopoly to decide what drugs can be sold by prescription only and which ones can be over the counter. This used to be a decision made by the manufacturers, but it was taken away from them. What substances we can put into our bodies, even if they're not medications, just substances. The government is deciding for us. You cannot ingest that substance because we, the government, don't think that's good for you. None of this respects our autonomy. So I decided that's what my book, the basic theme of my book is that if readers of a general readers, which I.
I actually target the book towards general readers, not the policy wonks. I can't help but get into some policy, but I try to get not too heavy into the weeds. I get into policy proposals, but even there, they're more general. I don't get heavily into the weeds. But I provide plenty of sources for those who want to explore further. And if I can make the one big impact my book has on readers is that after they're done reading the book, whenever they hear discussions in the health policy space about the government allowing this or that, the government...
putting restrictions on e-cigarettes, on nicotine content, on local governments deciding who can practice in certain fields. All of these things, if it enters their mind, wait a minute, this is the government basically not letting me make my own decision, then I've succeeded. That's my main goal here is to get people to realize that. It has done a couple of things to the practice of medicine as well, right? The fact that the government has this overarching authority, some of which they have delegated to physicians.
Right. Yeah. And it's interesting. I was testifying before an Arizona legislative committee yesterday and a nurse came up to testify against the bill being proposed by state lawmakers. And this lawmaker said, well, what makes you an expert? And the nurse said, well.
I'm a nurse who's practicing in this area for 20 years. I've written about this. I've spoken about this, and I have a lot of experience. And this lawmaker says, well, you don't have anything published in the peer-reviewed literature, so I don't consider you an expert. And the lawmaker ended up voting against what she advised. And of course, the first thing that entered my mind while I was watching this was, well, what makes you an expert?
You know, you're a former policeman. So how do you you're talking about a nurse in the field and you're saying you don't know what you're talking about. But me, a former police officer who serves on a state legislature, I'm going to tell people what health care decisions I'm going to allow them to make. I just thought that was not only ironic, but arrogant. Yeah. So, yeah, it reminded me that that Hyatt quote, you know, the more the state plans, the less the individual can plan. Exactly. And but I also wonder to the extent that physicians have been given essentially a list. This is what you can prescribe.
for these, the following conditions, you know, it's sort of insulting to doctors to tell them the consultations between you and your patient are not truly private anymore. It's not truly a discussion. Your patient is not truly consulting with you anymore. He's seeking, in many cases, your permission as a physician to do X, Y, or Z, and you have the power to say no. And for an individual wanting to have that sort of collegial research team approach to solving a problem that the patient might be having or just being healthier more broadly. It just seems to me that physicians ought to have the widest range of options to help their patients.
Yes, and in certain instances, by the way, they allow much more leeway than in other instances. So it depends on what exactly the problem is that they're treating, whether or not the government and politicians take an interest. So when we're dealing with treating pain, because the politicians have decided that if you treat people's pain with opioids, you will make them an addict and condemn them to a zombie-like existence, living on the street seeking drugs. So 40 state legislatures now have passed laws that actually have step-by-step... restrictions on how many pain pills and what kind of pain pills and what dose doctors can prescribe to their patients in pain. They don't do that when it comes to treating high blood pressure or diabetes or other health conditions. So they trust us there to use our judgment. And the same thing with the FDA. So the FDA, since 1962, up until 1962, from 1938 to 1962, if a drug maker wanted to bring a drug to market, they were no longer allowed to do that unless they persuaded the FDA that it's safe for me, an autonomous adult, to use. Now, before...
the FDA was doing that, there were plenty of private organizations, including the American Medical Association's Council on Pharmacy and Chemistry, that would vet different drugs that would come out and give their opinions. And doctors and patients took those analyses very seriously. But that was all kind of pushed out and co-opted by this government monopoly. Starting in 1962, you not only had to convince them that it was safe, but you had to convince them that it worked for the condition that you developed a drug for. And that added years and years and years.
billions of dollars onto the cost of bringing these drugs to market. And many people waited years getting deprived of these drugs, where in other countries they might have been able to have access to them until the government monopoly decided, yes, this works for that condition. You may now access it. But ironically, once they approve it for that condition, their policy is that doctors can recommend it. any condition that based on their understanding of how the drug works and what they're seeing in the clinical research literature, they think it may help. And that's called off-label prescribing, when you're prescribing it for something that's not on the label. And something like 20 to 22% of all prescribing in this country is for off-label uses. In fact, up until 2014, doctors were prescribing GLP-1s like Ozempic off-label for weight loss because it wasn't approved for that yet. So it's ironic that the government is saying, you're going to have to wait for me, doctor, to say that I think this drug works for this condition. But once I say it works for condition A,
And as far as B through Z is concerned, hey, you're the doctor. Use your judgment and expertise, whatever you think. And in fact, the government has rules requiring Medicare and Medicaid to cover off-label uses of drugs if these independent third-party organizations consider them appropriate within the range of reasonableness off-label uses. So why are we even doing this? It's such a waste. So I ask this question all the time. If Congress woke up tomorrow and said, my God, Jeff Singer's been right this whole time about everything.
What would be the best option for them? And what would make a significant impact that is not quite the best policy reform to give individual Americans more control over their own health care decisions? Well, ideally. the government would get out of all of these things, whether it's drug approval process or laws telling you what substances you can consume or licensing laws telling you whether or not you're allowed to get advice from a nurse practitioner because in half the states, you're not allowed to get advice from a nurse practitioner because the government decided they're not good enough for you. So they should just get out of all of that. And as was the case before the government got involved in all these things, people need information and value it. And therefore, numerous independent third-party organizations that are not monopolies that compete with one another because they want people to trust them over their competition, they would...
fill the needs that we consumers have for vetting practitioners, drugs, substances, and learning. And it also allows people to share with one another their own personal experiences to help individuals make their own choices. Now, that's not going to happen overnight. In my book, in every one of these areas, I do offer sort of, in addition to the ideal solution, more politically feasible solutions to take as incremental steps towards the ideal. So I'm not just complaining in my book. I'm offering solutions.
But the main point of my book is to have people understand that the government has no right to do any of these things, that the government is infringing on our autonomy as adults. I begin the book in the introduction with a very famous legal case that took place in the very beginning of the 20th century, a woman named Mary Schloendorf. And this is in the days before doctors understood or bought into the whole ethics of respecting autonomy. So in those days, doctors basically said, I know what's best for you. Just shut up and let me do what I need to do. And so a doctor recommended, he thought.
that Mary Schloendorf had a possible tumor of her uterus, and we didn't have imaging studies in those days. So it was very common to do what's called an examination under anesthesia, where you can get them totally relaxed and get a better feel of what's going on in their belly. So she consented under one condition, that if the doctor finds something, he doesn't do anything. He wakes her up, explains what he found, discusses what he recommends, and then she'll decide what to do after that. And so he agreed, and they proceeded to the exam under anesthesia. He felt a uterine tumor, and he went ahead and did a hysterectomy. And she had all sorts of complications, but she survived, and she was very upset, understandably. And I went to court, and...
She won on the first level and went to appeal. And in an appeals case, New York State appeals court judge Benjamin Cardozo, who later became a very highly regarded Supreme Court justice, famously said, and I'm paraphrasing here, I have the exact words in the book. that every adult is an autonomous individual and to do something to them without their consent constitutes an assault. And that was the beginning of chipping away at this. But it wasn't until the 1970s, actually, where it started to become a part of medical ethics and medical students started teaching that. So I explain that in the book. And then I say, well, maybe we doctors now are marinating in that ethics, but the government sure isn't. So when it comes to the relationship between the government and the patient, it's a very paternalistic one that doesn't respect autonomy. And then I conclude my book by bringing us back to that story.
arguing that since my profession finally, after all these years, gets it, then maybe my profession should take the lead in fighting to get the government out of the way and to get the government to respect economy. And that's sort of how I bring the book to a close. Jeff Singer is a senior fellow at the Cato Institute and author of the new book, Your Body, Your Health Care. Government regulation often encroaches upon personal health care choices, and that leaves patients at the mercy of policymakers dictating their treatment options. In Your Body, Your Health Care, Cato's Dr. Jeffrey Singer presents a philosophical framework for the relationship between individuals, the health care system, and the state. From prescription requirements, the right of self-medication, access to harm reduction, and licensing laws, Dr. Singer outlines a path toward health care policy that prioritizes individual rights and adult autonomy. Get your copy of Your Body, Your Health Care at online retailers and at cato.org. That will do it for this edition of Cato Audio. I'm Caleb Brown. Thank you for listening.