Welcome to Cato Audio for September 2023. I'm Caleb Brown. In this month's offering, Democratic Representative Brad Sherman discusses how lawmakers are working to repair relations with North Korea. Robin Bagley of Rethink Education discusses what she's learned in working to implement the school choice reform known as an education savings account. I speak with historian David Beto on the New Deal's attack on the Bill of Rights, and Cato's Chelsea Follett discusses her new book, Centers of Progress. First up, this month's Cato Roundtable.
September 17th is Constitution Day. The Cato Institute will mark Constitution Day in the month of September with our annual Constitution Day festivities. And here to talk about what to expect along with the anticipated, the hot off the presses, or it will be at that time, Cato Institute Supreme Court Review, the first and best we have decided before we started recording review of the Supreme Court's most recent term. I'm speaking with Tommy Berry, who is editor-in-chief of the Cato Supreme Court Review, and Anastasia P. Bowden.
the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. Just to set the tone here, when we have Constitution Day at the Cato Institute, this is kind of a big day. It is a lot of very heavy-hitting scholars in the building and discussing the most recent cases. And for people who follow constitutional jurisprudence, it is a big day. So, Tommy, tell me about the job of editing this book.
in between the end of June and having it ready to go with no errors remaining, except those that you will fully pawn off on the authors, not your errors, of course, for producing that book. It's absolutely a sprint. And I have to give credit first and foremost to our authors. They're the ones doing 95% of the work under enormous time pressure. Almost all of the court's big cases this term were issued right at the tail end of the term, right at the end of June. And we had a deadline of August 1st for their drafts, which means most of them had literally just one month to write a law review article from scratch, which in the academy is unheard of. Most people take six months to a year to craft these things. And as always, it's amazing. We get very high quality submissions. They're not just recounting. They're not just copying and pasting from the opinions, but they're putting them in context and they're explaining.
what may come next, which I think our readers might be particularly interested in. So to give just one example, we have David Bernstein writing on the affirmative action cases, and he's looking at not just what it means for the current schools, but for other government programs. And so both in the edition and in the conference we have, I think readers and viewers are going to get a lot of interesting food for thought. All right, Anastasia, this was a case that you followed very closely. And we have David Bernstein, who will be, will he be speaking at Constitution Day as well?
So that case, and I want to get into some of the cases here that you guys highlighted for our discussion today, this will have ripple effects for years to come. And universities are just now sort of grappling with what that actually means for them. Does it have implications beyond universities? Yeah, well, what I think is interesting is Professor Bernstein really took a unique angle that we haven't seen. talked about much in the media, which is focusing on the majority's critique of the way that the government makes racial classifications. And so he says that that in particular is something that now can be applied to other government programs based on race. You know, this is a new potential avenue for challenge. And that is that the government, it turns out, is very bad at classifying us by race. It cabins multiple cultures and religions and languages and geographies into very narrow categories and assumes that they're all the same. So for example, with Asian American, the government considers
people of Chinese, Japanese, Korean, Vietnamese, Cambodian, Indian and other Asian backgrounds, you know, all to be Asian. And he said this is always going to be a problem when it comes to racial classifications. It's something that now needs to be pointed out when there are attacks outside of school admissions, but things like contracting or other government preferences. So and I guess there have to be cases that are immediately following on this case, probably waiting in the wings, expecting the Supreme Court to do roughly what it did. What does that look like?
Well, I think the most natural next step will be cases involving covert racial preferences, because now the court has said pretty clearly you can't do it in the open. And we know that this is going to drive it underground. And we know that because schools in particular have openly been talking about it. You can Google it and see professors and deans and school boards all talking about, OK, well, now that this isn't allowed, how are we going to get away with it? Let's just not talk about it. Let's cover up the evidence. Let's use neutral proxies for race. Maybe if we don't talk about race specifically and we use, let's say, geography or socioeconomic level or various other.
criteria, we can get away with the same thing, even though Chief Justice Roberts said you can't be doing what's not allowed by the Constitution through covert means. We know that's going to happen because these people have been talking about it. And I think that's going to be the next frontier of litigation. Related, but not on a similar issue of constitutional law. Tommy, you covered fairly closely the student loans case. This was called Biden v. Nebraska, despite the fact that my home state of Missouri, the Mohila Student Loan Authority in Missouri, was figured prominently here. This is an article that we have that will be written by Jed Handelsman Sugarman. So tell us about.
First of all, the case, but also the attack taken by the author in characterizing it. Sure. So this is a case where there were two big disputes, two big questions that the court split on. One was whether any of these states challenging President Biden's student loan forgiveness plan had standing to challenge it. And as you said, the majority of the court said that at least the state of Missouri did because it had this state created nonprofit corporation called Mohila, which, among other things, services student loans and gets fees from the federal government for servicing student loans. And the estimate was that if multiple recipients of student loans had their debt completely canceled, which would have been the case for many, they would have lost out on about $44 million worth of fees. A majority of the Supreme Court said that.
because Missouri created Mojila to take state initiatives to further the purpose of higher education in the state. An injury to Mojila's pocketbook is an injury to the state's interest. In this article, Professor Sugarman takes an interesting argument that he thinks what's really happening behind the scenes was the so-called special solicitude for states doctrine, which is a controversial theory of standing, that there are some situations where you should find standing for states when you wouldn't find standing for an equivalent private person or private corporation on the theory that the separation of powers makes it particularly important that the states have the ability to push back when the federal government. is overstepping its own authority. The Supreme Court has only explicitly said that there was special solicitude for states in one case called Massachusetts v. EPA from about 15 years ago that said Massachusetts could sue the EPA for allegedly not combating climate change vigorously enough.
Sugarman, I think, realistically realizes that there's not a majority on the court to explicitly endorse that theory, but it might have been what was influencing the decision behind the scenes. And then also on the merits, the question of was this action authorized by the statute of the Biden administration claim, the 2003 Heroes Act, Sugarman really focuses in on the concept of emergencies. So this 2003 law said that in an emergency like war or a natural disaster, the secretary of education gets special powers, temporary powers to waive or modify federal law. And Sugarman says that if you're going to give emergency powers like that, You have to have courts carefully police. Are you actually taking this action because of the emergency or are you using the emergency merely as a pretext? And I think Sugarman shows an admirable level of intellectual honesty that's sadly in short supply these days. He supports student loan forgiveness as a policy matter. He even thinks that there might be another statute where it could have been done. But he sees clearly that if you're being an honest viewer, that this was a long-term policy goal of the administration. They were essentially just using the emergency as a convenient look. The president, Joe Biden, has said he's going to move ahead with something similar, but a little smaller.
So far, at least, nobody appears to be standing in his way. Certainly not courts that have faced challenges to his new effort. Not yet, but it's early still. And I think we can't, each individual challenge is going to depend on the particular statute being used. But the Supreme Court certainly, I think, set a strong precedent in this case that you have to vigorously look at what is the claimed authority here and what is the claimed, is that a real justification or is that pretext? And it may well be the case that some of the other statutes the administration are using are equally a stretch to achieve this policy goal. Anastasio, one of the cases here deals with the Indian Child Welfare Act, and this is something that's been...
winding through the courts for a long time. And it's been an issue, especially in the southwest part of the United States for a long time. Can you characterize the issue broadly and then the case at hand? Yeah, the case was challenging the Indian Child Welfare Act, which establishes standards that govern adoption and foster proceedings in cases involving Native children. And the plaintiffs in the case allege that.
Although the act was intended to keep Indian families together and to be a sort of benefit to Indian children, in reality, it subjects them to a lower standard of care. It makes it harder to take Indian children out of abusive homes. It puts the interest of tribes over the interest of individual children. And so on top of that, there are several constitutional issues brought by the act. And so this was one of the only cases the Supreme Court has taken to consider the constitutionality of ICWA. It was, you know, supposed to be a really big case. And in reality, the court just sidestepped.
most of the issues. And this is a theme that I think is true throughout the term, that although we had big cases, they were big but narrow cases very often. So what we got was the court actually, even though it took the time to hear briefing, it really only addressed one of the very narrow issues. And that is the issue that Tim Sandefur takes up in his article in the Cato Supreme Court review. And I think it's the most interesting issue to come out of the opinion, which is the debate between Justice Thomas and Justice Gorsuch about the scope of the Indian Commerce Clause. Does Congress have the authority to even pass standards relating to individual adoption or foster proceedings? That's getting pretty particular with the level of regulation. And it's a very interesting debate because, of course, both Thomas and Gorsuch are textualists, are originalists, and yet they come out on opposite sides of this issue. And so it's a really interesting debate.
And one that Tim Sandefur focuses on in his article. Another case that has been before the court before in a different format. This is the long saga of the Sackett family that has been before the Supreme Court. Is it twice before or at least once before to even discover whether or not they have an opportunity to sue over this great gross overstepping of federal authority? And I know you've been following that case as well.
Yeah, this case has been winding through the courts for over a decade, and it is the second time at the Supreme Court. As you said, the first time they had to make their way up to the high court just to even get permission to sue. And now they were finally back on the merits, determining whether the Clean Water Act is broad enough to allow the EPA to regulate. zoning decisions, you know, run of the mill local zoning decisions about whether this family could build their dream home in an already developed area merely because they had wetlands on their property, which were across a paved road from other wetlands, which connected via a man-made ditch to a non-navigable creek, which connected to a lake and the lake itself could be regulated by the EPA. And so the EPA then claimed authority to also claw its way all the way over to the Sackett's property. And in a 9-0 decision, 9-0, you know, all nine justices decided that that was too much. The EPA could not regulate that far. Of course, even...
Within a 9-0 opinion, the justices had very different interpretations about the scope of the Clean Water Act, and that's what our author, Damien Schiff, who argued the case at the Supreme Court, both second cases at the Supreme Court, that's what he gets into in his article are these vastly different interpretations within the unanimous 9-0 opinion. Now, another issue before the court, this was sort of a blockbuster case, at least from my perspective. This was 303 Creative, which is often paired. with the Masterpiece Cake Shop in discussions about the First Amendment and freedom of expression and religious liberty and the degree to which a law can essentially compel someone to engage in a business practice with someone who makes objectionable choices as far as that business person is concerned. Is that a reasonable characterization? Yes, and especially when the business person is in the business of speech. And I think that's one of the...
big questions going forward is where is that line going to be drawn? So this was a case about a wedding website designer who, or a website designer who wanted to expand her business to weddings. She essentially created all of her designs from scratch. And she explained that if she designed a wedding website, it would not just be giving the facts, it would be effectively endorsing and celebrating it because that's... the product she offers, and that she did not want to create those celebrating same-sex weddings because it went against her religious beliefs. So this went to the Supreme Court, and the Supreme Court said, yes, if the business you are in is creating expressive speech on matters of public concern, the First Amendment protects you and your right to decline to create something with a message you disagree with. And that supersedes any state law to the contrary, such as in this case, Colorado's public accommodation law that said you have to serve all comers. I expect there will be cases following on this one as well, if there aren't already.
It seems common that in a case where a particular outcome is widely anticipated by the court that there are people who are anticipating that outcome ready to file the next case to take the issue a step further. Absolutely. And one of the open questions you mentioned, Masterpiece Cake Shop, is, OK, there's a spectrum. This was a relatively easy case in terms of defining speech. This was literally writing down words, pictures, illustrations, core, really the core definition of speech. But there are tougher questions such as cakes, such as flower designs. Are those expressive or are they really just providing services? And so future courts are going to grapple with that.
Our article by Professor Christopher Green of Ole Miss takes an interesting angle. He focuses not just on the First Amendment, but also the history of public accommodations law. The dissent has this long account of how the common law has had the tradition going back centuries that the state can compel businesses to essentially be open to everyone. But he points out it's a little more nuanced than that, that all of those examples from history were really about only a certain subset of businesses where you would essentially have a bottleneck or people could be put in danger if you didn't serve them, like the only hotel for 100 miles or like the only boat to take you across the river and to take you to food and shelter or something like that. So he points out that there's just as equal and just as important a tradition of people having the right not to serve all comers if they're not in that specific type of unique emergency business. And that in a future case, the court may have to get into this history if the First Amendment doctrine doesn't necessarily take you all the way to the answer. So on Constitution Day, we will have multiple panels of people discussing one panel related to the speech cases, one panel related to the powers of the federal government. Given what we've seen in this term, addressing to both of you, given what we've seen in this term.
We seem seems like the court is keeping in its recent tradition of being fairly absolutist when it comes to First Amendment stuff and also pushing back in a bigger way than it has in the past on the powers of the federal government to kind of do what it wants. I would say I would agree with that with with one, I think, big exception this year, which was the United States versus Hansen case. That was one where I was surprised that the court unusually did not side in favor of the person bringing a First Amendment challenge. This was the case about whether the. Federal criminal prohibition on encouraging or inducing violations of immigration law violates the First Amendment or prohibits so much lawful and protected speech that the sweep it has towards legitimate things like scams isn't enough to justify its existence. But the court said, no, we're going to interpret it in a very narrow way as essentially just prohibiting aiding and abetting violations of immigration law. We have an article by Professor Eric Almirante.
who points out that whether you accept that or not, and the statutory interpretation was pretty iffy, the court really ignored the more fundamental problem with this law, which is that it can criminalize violations that are merely civil. posits the example of, say you encourage someone to jaywalk and that person jaywalks and gets a $50 civil fine, but then you get charged and convicted of a felony punishable by up to 10 years. That would seem quite a mismatch. That would seem not really to comply with due process. And yet that's essentially what can happen with this statute. The court somewhat surprisingly punted on this issue and said, if anyone wants to raise that first amount of problem, they're going to have to bring a particular as applied challenge to their own criminal prosecution. And on the issue of the feds,
pushing people around using maybe unclear authority. It seems that the Supreme Court is becoming considerably more stringent on what the government can do and what authority it's allowed to use. I think that's right. But, you know, I think that's the court's duty. The court is finally engaging more after years of real deference and hands off on a lot of these issues. It's finally engaging. And I think, you know, what we're seeing is because the court is engaging, it is subjecting itself to a lot of criticism that it's engaged in activism and overreach, when in reality, it's just doing what the Constitution requires of it and enforcing our very libertarian Constitution. I'd also add that.
you know, even though this is a theme that we are going to see next term as well, there are quite a few administrative law cases and separation of powers cases coming up next term where the court is going to consider the scope of these bureaucracies, authority, the deference that it's supposed to show them, their funding mechanisms, delegation from Congress, et cetera. These cases, it should be remembered, are couched in a lot of boring cases as well. You know, the vast majority of the Supreme Court's docket is statutory. It's cases that would make most people yawn. And even the decisions themselves can be very narrow, even when they're striking down, you know.
big things that everybody sees in the news. Let's take the racial preferences. You know, Chief Justice Roberts narrowed that decision to its facts. He said, I'm not even considering the constitutionality of racial preferences in all admissions systems. I'm just considering what UNC and what Harvard did here. So I think it's important, you know, while recognizing that the court is doing something important and big, which is engaging with these cases, it's doing so in actually quite a modest way with a smaller docket than usual and within the context of a bunch of boring statutory cases. So, you know, I just have to defend the court a little bit from these accusations of activism and partisanship that it now sees itself faced with.
Nobody's accusing the court of anything here today, except for the outcomes I don't like. You sort of alluded to this case, and this is one of the cases that's coming up on the next court docket, and that is Loper Bright, which deals with the issue that the court has nibbled around the edges of, which is chevron deference, the deference that courts give to administrative agencies when it comes time for them to interpret statutes for the purpose of making rules. Is that about right? Yes, that's exactly it. It's deference that allows agency willemakers to serve essentially at the role that Article III judges were meant to play in our constitutional design. What's the potential outcome from this case? It seems that the court has been...
you know, as conservative as they might have been in a general way handling deference recently, this seems like an opportunity. Of course, I've said that before. It seems like an opportunity for the court to just say, look, Congress needs to be in charge of writing the rules. You know, agencies can engage in good faith interpretations for the purposes of applying the law. But what do you expect? I think there's a very good chance that the court will explicitly overrule Chevron. There's been several cases over the last five to 10 years where people thought they might look into Chevron and what the court.
consistently did was they just didn't mention it. They applied the normal rules of statutory interpretation. They didn't give any deference. They essentially acted as if Chevron isn't on the books, yet they didn't explicitly overrule it. But the difference here is that the question presented in the actual petition to the Supreme Court said, should Chevron be overruled? And the court explicitly said, we're taking this case to answer that particular question. So there's no getting around.
The court can't get away with silence on Chevron in this opinion. And I think this is one of the core separation of powers issues where there's likely to be a five or I think six justice majority, even though Chief Justice Roberts and Justice Kavanaugh are known for sometimes taking middle ground positions on certain issues. On this particular issue, they've both been some of the strongest on the court on emphasizing that the separation of powers is a bright line, not a fuzzy line. Yeah, I just add that, you know, again, getting back to these accusations that the court is radical or something. Think about just how radical Chevron is. It requires Article 3 judges to defer to bureaucrats about the interpretation of congressional statutes.
Even if there's a better interpretation available, even if there's objectively better interpretation, the courts have to defer to these bureaucrats. And that just seems absurd on its face. And so, you know, I think it's very reasonable to expect that the court will undo that. And that is the correct thing to do. We'll talk about this more on the Cater Daily podcast as these cases tee up and get ready for presentation before the court. One thing that you both mentioned that you were excited about hearing at Constitution Day, Bridget Mary McCormick, what is she going to the keynote address at Constitution Day? What do you expect to hear from her, if you know? And, you know, what?
what makes her such an impressive figure to be addressing our Constitution Day event. Well, Bridget Mary McCormick is the former chief justice of the Michigan Supreme Court, and she's going to speak about access to justice issues, just how difficult it is for people to even get into the courts. You know, something that as a former civil rights attorney, it's very near and dear to my heart. I understand that, you know, everybody thinks you can just take it to the court or take it to the Supreme Court. And that's really not true, not just because of a bunch of judge made doctrines where they kick cases off of their docket or defer to the government, but just practical reasons of it being expensive and long. And, you know, like the Sackets, it took them a decade to get an answer to this question. And so.
Bridget Mary McCormick is going to talk about those problems and one potential solution, which is AI. You know, this is going to revolutionize the legal profession and give people access to legal help they wouldn't otherwise have, low-cost legal help. And, you know, even though that threatens my cartel, our precious cartel for lawyers, I'm all about it because, you know, more people need help and there's just not enough nonprofit attorneys out there to help people with meritorious claims. I think we're going to leave it there, but I will be joining you on Constitution Day, if not... in person, at least visually on my screen at home. Tommy Berry is the editor-in-chief of the Cato Institute Supreme Court Review, the first and best review of the most recent term of the Supreme Court. And Anastasia P. Bowden is the director of the Robert A. Levy Center for Constitutional Studies. And of course, you can follow all of my colleagues' work studying the Constitution and these various court decisions at our website, cato.org.
On July 27, 1953, an armistice took effect, pausing the Korean War. A lot has changed over the last 70 years. North Korea has become a nuclear state. South Korea has become a democracy and a major economic power. Representative Brad Sherman, a Democrat of California, discussed the legislative effort to replace that armistice with a peace treaty.
We meet today to talk about policy toward North Korea. And the easiest thing for any politician or bureaucrat to do is to pound the table and say they will never have nuclear weapons. We demand that they give up their program and then not do anything about it. And you would say that our policy has been a complete failure because every day they have more fissile material. Every month or year they have more nuclear weapons.
And every day their missile technology is more advanced. But actually, our policy has not been a failure from the standpoint of the politicians and bureaucrats and State Department personnel that are involved. Because as long as you stick to that tough party line, by God, North Korea should give up all its nuclear weapons and we demand it. It's done well for the careers of every person involved. I think that we need more carrots, more sticks, and a more realistic objective. That objective should be that North Korea ends up with a highly monitored, limited number of nuclear weapons. I'd love to have Civit, complete, irreversible, verifiable, total disarmament. But demanding what everybody in America wants is not a negotiating strategy, it's a political strategy.
I have focused on one aspect of this is, and one thing to kind of set the mood for negotiations, is that we look at the war that Dwight Eisenhower ended, and we need to create a formal end. The conflict ended in 1953, but only with an armistice. The most famous armistice was the one signed on, effective on the 11th hour of the 11th day of 2018. Okay, correct, 1918. That armistice was followed by Versailles in formal.
Peace treaties. We ought to have a formal peace treaty with North Korea. I've had the honor of meeting and discussing this briefly with South Korean President Yoon. He is not as big a fan of this approach as his predecessor. We had 45 co-sponsors last year for a bill that calls upon the State Department to negotiate a peace treaty. Now, there are those who attack this and say that's somehow a concession to North Korea. I would simply say that I don't think Dwight Eisenhower.
made a concession to North Korea when he ended the war. That was a compromise. It ended up on the 38th parallel, pretty much where it started. I would have loved for us to be totally successful in the Korean War, but Eisenhower was reasonable enough to realize that we needed a compromise, and it was not a unilateral concession by North Korea to us that they stopped the conflict, nor was it a unilateral concession by them. I've reintroduced this bill in the 118th Congress on March 1st, a very important day to celebrate it annually in Korea on both sides of the 38th parallel. Some 166 South Korean lawmakers have announced their support for it. And this is more than half of the National Assembly of South Korea.
We're working, of course, with the Korean community here in the United States. One other part of the bill, it's not as much a part of foreign policy, perhaps, is to call upon us to get family unification visits between Korean Americans and their family living north of the 38th parallel. These are relationships that go back 70 years. People haven't seen their family for 70 years. Some of them are approaching death, and this would be a last opportunity.
The Peace on the Korean Peninsula Act builds on commitments made by South and North Korea and Punjab in 2018 to reach an end to this war, as well as the joint U.S.-North Korea-Singapore Statement of 2018, under which both sides have agreed to make strides toward peace and denuclearization. And I know that I'm being characterized as a dove. No, I believe that we continue the sanctions until we achieve a deal on their nuclear program. But I think that a peace treaty from the last war is a step toward preventing the next one. And I believe that a realistic bargaining position is one more likely to lead to an agreement than a do it our way, we want everything. And look, the North Korean regime wanted a non-aggression pact.
some 20 years ago i've been in congress a long time and dick cheney rejected that idea because he wanted to invade so it's uh not i think it would be unlikely would completely get rid of their nuclear program. At the same time, I don't think that they will be successful in terrorizing the American people by brandishing those weapons to the point where we withdraw our troops from South Korea, or in some other ways, break that alliance. I know that the North dreams of taking over the entire peninsula. They view the exit of multinational corporations as being critical, and they believe that breaking the alliance between the United States and South Korea is the first step in that economic implosion, or at least desertion.
So I don't think that will be achieved. I think that the bonds between the United States and South Korea are very strong. The Biden administration is pursuing a calibrated approach. It has not been successful. It has not gotten the attention of the administration, in part because of the Ukraine invasion. And we should be willing to sit down with Pyongyang at an appropriate diplomatic level to begin talks without pre-conditions.
We have, of course, expanded our joint exercises. Our deterrence remains strong. Our commitment remains strong. We also have to get South Korea and Japan to make appropriate amends for the crimes of the first half of the 20th century so that they can work more effectively toward preventing wars in the 21st century. I think that...
Well, I've got a longer speech here, but I think I've gone on. And I look forward to working with you toward a policy that puts to bed the war of 1953 that prevents a war in 2053 or any other time in the century. And that is based on a situation where North Korea's program is monitored, known, and limited. One final thing that I am concerned about is that North Korea is, of course, a country that wants money, needs money. has engaged in a whole variety of crimes to get money. They're desperate for money. And they now have more nuclear weapons than they need for their own defense. Saudi Arabia and others with large amounts of money have indicated an interest in acquiring nuclear weapons. Preventing North Korea from selling its nuclear weapons is critical. And that's one of the reasons why I believe that a highly monitored, limited North Korean nuclear program is less dangerous to the United States than the current situation and the history we've had over the last 20 years.
Brad Sherman is a Democratic congressman from California. Education savings accounts have the potential to reshape how children are educated in the United States as parents seek new options for their kids. Implementation problems for ESA programs are manifold, starting with are parents even aware that the programs exist? Robin Bagley is president at Rethink Education. She discussed many of the challenges in moving ahead with his innovative school choice option and what she's learned in the process.
My desire is not to provide you with a template, but actually just give you an inside view into what we're figuring out. And we're figuring it out as we go, for sure. As many of you know, we are building the plane while we're flying it. That is a statement that one of my board members says all the time. We truly feel like we're in a little bit of a tenuous situation. This is not our first rodeo here in Utah. We are Utah Education Fits Hall. And all of us who are playing a role right now in implementation have been at this for a long time. But one thing that we haven't done before is implement an ESA.
And so what is the challenge? There are a lot of challenges. You heard Mike mention a lot of those challenges. And we're just trying to get a jump start and guide many of these variables down the path so that at the end of the day, we are able to serve families and students. So the biggest challenge that we can see are pieces that along the way in the process, from the marketing and building awareness to the application process, to addressing customer issues, the marketplace of providers being available, and the payment process. As we have reached out to the many folks, both national, the various states.
how this is going, what are the barriers, what are you discovering? It really is the customer experience from end to end that needs to be our focus. If we can hone in on all of these various pieces and make them smooth and workable, then we're going to have... families finding the best fit for their child. And so as we think about how can we assist in this process, this end-to-end, and make sure that once our program isn't implemented, that it goes smoothly for the customer, for the family, for the child. So in order to try to ensure success, here's really where we started. The first thing that you have to have, that is who we are, is a leading voice. And we are not the program manager. The reason you need a leading voice in an advocacy group is to really pave the way on all of these items and be involved in multiple ways, which I'll share in another slide here in just a second.
But you need someone who's going to step up to the plate and be that voice that brings the coalition together, that speaks for the movement and that becomes the voice for the parent. Mike mentioned that, you know, parents don't know if they actually are going to qualify for this. Many parents don't even know it exists. And then even once they figure it out, they're not sure how they can use it. So our job is to do all the jobs of the voice of the program. And it's very important as well to have a coalition. In Utah, we were fortunate because we brought all of these people together to get the bill passed. We've been working together for a very long time.
But it's important to coalesh your friends. You don't need to be working against friends. You know, you have enough enemies. So bring the friends together and unite and figure out how you can help one another and organize yourself. Because truly in this moment, we know that all eyes are on every state who has passed one of these education savings counts. They're watching to see if we're going to fail. And many of them are hoping we do. We've got to prove them wrong. So I've thrown up here on this slide just basically our strategy of...
topics that we've had to hone in on and prepare a business plan or business strategy. And the first one would be, we had to identify our timeline. Every state is different. Some are rushing through this very quickly. And it's remarkable to see the things that they're doing in states like.
Like Iowa. I've got something. One of those technology issues. I've got Siri trying to talk to me right now. So let's ignore her for a minute. Sorry about that. Anyway, we in our state, we've got a long runway. But what we don't have is a program manager that's being selected right away. Our program manager isn't going to be selected until.
almost the end of the year. And then the legislation requires the portal for applications to open in March. And so there's a lot to be done between now and then. They have a very small window to carry out all of the things that we can do for them. So next, we had to establish our goals. And I'll just give you some insight into what we've decided here in Utah. Because the program manager won't be selected until the end of the year, we have decided to have a pre-apply campaign. And we want to have 20,000 families apply for the scholarship in a pre-application so that we can do three things. We want to, first of all, help the program manager.
by coalescing families, educating them and getting their information so that they're ready to go into that portal right away. Second, we want to demonstrate demand to our legislature to show them that parents want this. They're excited that we actually have less funding than we have demand. And third, potentially be allowed to go to the legislature in the next session and ask them to consider increasing the amount of money to serve all of these parents. So we've set our goals and then we gather our resources.
And I'm going to get into that in the next slide. And then we have done a lot of work educating ourselves. If I can give a recommendation to any state, it is to take on that fire hose and just be fed with it. You have so much to learn. The national groups have really come together around this issue, and they are a tremendous resource. You need to talk to anyone and everyone. So talk to the national folks. Talk to the states that are doing it. There are states that have figured out grassroots. They have figured out marketing campaigns. They understand what the barriers are and the sticking points.
I've had conversations with Jenny and I'll have many more with her because they've been through this. They know what the sticking points are. Florida is another great state. Indiana. We've talked to them all. And not only that, we've also talked to providers because providers are learning what's not working and how they're being prevented from serving families. And then, of course, learn the stories of families. So educate yourself and then really just get to work.
So we have a very big to-do list, and I'm not going to go through all of it, but just to give you an idea how we're trying to prepare the way for this program manager, for this program to be implemented as an advocacy group, as the voice for this movement. And the first thing we had to do was get out there and fundraise. And again, there's a lot of support out there, both within your state and nationally. And you've got to fundraise so that you can carry out the work that you're going to need to do. Once again, I'm just going to reiterate, network, network, network. That's always the key in business. That's the key in anything successful. You've got to get out there and talk to everyone. The more you're networked, the more assistance you'll get, the more understanding.
Just talk to everybody. And then what we're doing, as I shared, is our program manager is going to have a very tiny window before the application portal opens. So we are doing a direct marketing campaign. And so we want to build awareness. We want parents to know what's out there. We want to help them understand. Part of our campaign is grassroots. That's very critical. Feet on the ground. We have a stipulation in our law that the low income will get the first seats. It's universal, but the low income will receive the first seats. So we've got a very organized grassroots campaign with our private schools association and our Catholic schools who have a tremendous reach into that.
population. And for us, the goal will be conversions and pre-applications. So again, we can carry out those three aspects of our goal that I shared with you. And as Mike talked about, there are so many pieces to this. And as an advocacy organization or a voice in the movement, You can play a role in helping to steer and guide. There are some things you don't have control over, but there are a lot of things where you can play a role. So currently we are as involved as we can be in the RFP process and monitoring the rulemaking as well. And then we're also being a support and resource, not only for families and parents, that's a no brainer, but for potential program managers and vendors. When we talk about the RFP, in our state, we will have a program manager. The DOE will not run the program. So we have got our ear to the ground. We know everybody who's interested right now. We talk to them regularly. We try to give them equal attention and information and just be the biggest help that we can.
And there are platforms that many of us in the movement are aware of now. There are specific platforms that want to be the ones who are the online tool for running this. In the beginning of my slides, I talked about end-to-end. Well, that end-to-end from the application process all the way through to programs and, I mean, providers being listed to payment being made, there are platforms that want to be the services to handle this. So we've got to know them and we've interviewed them. And by doing that, we have a better understanding of where the gaps are, what is needed, who is really good at one thing and good at another. This is all helping us.
to help policymakers and to help potential program managers. So speaking of that, we talked to future providers. One of the aspects that I think that nobody's talking about as much as they should, these programs get stood up, they get implemented, they're up and running, and we don't have a marketplace of providers. It's very simple. And many of us have been involved in.
school choice policies that provide choice for private schools. That's easy. That's not the hard part. But what we have here is a situation where families can customize with so many different options. And when they come into the program and accept a scholarship, if we have not prepared a way for them to see the marketplace, to see the potential and make it easy for them to find providers, then we failed them. So I would encourage everyone to put a lot of energy into that. We're going to put a lot of energy into it. We're still figuring out how to do it and would love help from anyone, but we are going to do it. And then of course, being a resource for policymakers, continuing to talk to
your bill sponsors, and those who have the clout and the ability to steer this in the right direction. Be a resource for them, stay close to them. I think that's a no-brainer as well for any of us who've been involved in policy is to... is to stay connected to your policymakers and become a resource in ways that before they were the ones passing the bill. And now we didn't know what we don't know, right? There's so much that when we pass a bill, there's unintended consequences. There's things we didn't think through. As we go out and network and gather this information, we can help policymakers think about specifics that maybe they didn't think about before. And then there are plenty of other stakeholders out there.
And then provider outreach and collection, I've touched on that. Policy and advocacy, it never ends, as you know. I mean, we already have a cleanup bill in the works right now. And so you need to be a part of that. There are definitely things that need to be cleaned up. That also opens the door for those who don't love this policy to try to put things in to maybe hamper it or cause difficulty. And so you have to stay on top of that as well. And then the final thing that I just put on there is another no-brainer, storytelling. All through this process, tell the stories of these families. That's how we got the law passed. That's how we'll get it implemented successfully, is really to tell their stories.
And I think another thing that we all need to address is that in this process, in any good process, in any invention or creation, we fail forward. So as I wrote there, remember, all processes are iterative as we seek to discover the best solutions. We have to admit we're going to have some stumbles. We've already seen some of them, but that's part of the process. And that's what you need to articulate. We just pick ourselves up and we figure it out. So finally, the last thing that I would say is that we will consider that we have implemented our law successfully when every Utah child has found their fit.
Robin Bagley is president of Rethink Education. The New Deal, the bundle of programs rolled out during Franklin Delano Roosevelt's administration, represented a stunning assault on the rights of many Americans. And there's never been a proper reckoning with the large-scale violations of constitutional rights. Historian David Beto is author of the new book, The New Deal's War on the Bill of Rights, the untold story of FDR's concentration camps, censorship, and mass surveillance. We spoke for the Cater Daily Podcast in Memphis in July.
What were some of the most striking attacks on the rights of average Americans that we saw out of the Roosevelt administration? Okay, well, you can go forward to the Japanese internment, which I'd be happy to talk about, which is the most obvious one that most people know about and sort of make excuses for in a way. But we can talk about that. The early one that they don't know as much about, this book, I think... trods new ground is the Black Committee, named after Senator Hugo L. Black of Alabama, who later became a Supreme Court Justice. And Roosevelt, the people of the administration, wanted to investigate opponents in the New Deal. And they set this up, and they went to Black, who was regarded as the most loyal attack dog for the New Deal. And they said, we want you to investigate opposition to the New Deal.
couched it initially as opposition to lobbying, or a certain kind of lobbying, and they couched that in very broad terms. So if you did anything to influence policy, you were considered taking part in lobbying, and you should be investigated. And of course, they only wanted to investigate the people that were opposed to the New Deal. So Black starts calling in witnesses. He has some limited success, but then he gets an idea, and he goes to the FCC, and the president, of course, agrees to this as well. He goes to the IRS. He says, I want access to the telegrams.
that have been sent by people who I'm investigating in, incoming and outgoing. And of course, this is the email of its time, right? Telegrams get instantaneous communication. And it's more important, they're more important than telephone, long distance telephones anyway, in the early thirties, telegrams are more important part of the market. And so it goes to the FCC and the telegram companies such as Western Union had a, they kept copies of all their telegrams, right? And as a matter of policy. So basically,
The FCC said, okay, you can search those telegrams and you don't even need a subpoena of the individuals. It was like a, they called it a dragnet subpoena. So they said, look, we want to, for example, this is one thing they did. We want to search all incoming and outgoing telegrams of all members of Congress. And then they would expand the list to include other people. And they went to Western Union where most of these telephones came from. Then they went to the other companies too. They said, we want to search all your telegrams for these people from, for a whole year, like 19, I think it was.
35 into 36. We want to get access to these. We got these names ongoing there. We want to look at these. And Western Union, you know, was reluctant to do this and they didn't want to do it. They'd fought this. This happened before, you know, not in this level, but they gave in, right? Under protest, basically. So Senator Black goes in there with his staff. He goes in there with other people from the FCC and they go to Western Union and they get these big stacks of telegrams. So this is like reading your private communications, incoming and outgoing, and they go through them. And I forgot the number. It's, I think it's 3 million.
that they went through. Now, what they did is, okay, the guy gave instructions. The guy was supervising this for black. He said, look, look just for evidence of lobbying. Of course, that could include anything, right? Like you have someone over for dinner, right? Two as a senator, whatever, anything, right? Just, just avert your gaze basically from anything that doesn't have anything to do with lobbying.
And they collected these. They copied thousands of these telegrams. And then what Black would be able to do is he called the witness and he said, June 8th, you sent a telegram saying this. Can you imagine someone has your email communication and they can blindside you? People don't believe this is exactly what happened. And so they started to do this. And Western Union then started a policy of informing people when their telegrams were being examined.
And so one guy's telegrams was examined. He was named Newton Baker. He was Wilson's secretary of war, leading Democrat, not so much of a New Deal, but kind of a moderate. And he said, when I found out about that, I wouldn't necessarily lead a lynching party against Senator Black, but if someone wanted to, you know, tie a rope around his neck, I wouldn't stop him. And this was, but then one guy named Silas Strawn, who was head of the Chamber, National Chamber of Commerce. He was, had been head of the Republican Finance Committee. He was a head of the Golf Association. This guy was like elite law firm in Chicago. Said, my God, there's, you know, got.
this information so he sued to stop this and he won in a lower court and it went back and forth but basically what the court said it never went to the supreme court the court said fcc bad don't do this anymore stop doing it we will sanction you if you try to do it again but we can't do it it's been done already congressional committees had wide latitude under the law and so eventually they had to stop this but by that time black had already gathered up all of his evidence And he had the cash. He had it. He didn't have to give it up. So this is a surveillance state on a massive scale. Millions of private telegrams being examined by a congressional committee. Of course, it's low tech, but still, this is a big deal. So one thing I want to drill down is one of the very first things you said. The list of people who were engaged in these communications started with members of Congress.
That was the early list. And then they started, but just for members of Congress, they were not made aware of this at any point. I think later what Western Union started to do is they started informing people. And I don't know if they informed everybody, but they informed a lot of people, hey, your telegrams are being looked at. So Strahan was one of them. So it was all done secretly for months. It was all done secretly. And then eventually Western Union, which did not like this policy, which fought the policy, I think that was their way of undermining it. And they were probably...
the anti-New Deal sentiment was growing to such an extent, you know, they may have been influenced by that. But it's an interesting question as to why they started to do this. It was secret. And people are like, you know, their headline news, millions of telegrams, it's like suddenly out of the blue, you know, that people started to reveal the information. Initially, it was members of Congress and they started to look at groups like the Liberty League and various anti-New Deal groups, including the National Women's Party, which is a feminist party. They started to just expand it to all, to journalists, you know, all over the country. And they started to, initially it was telegrams in and out of Washington, but then they did
They did selected subpoenas. For example, there was a newspaper, an anti-new newspaper, I think it was in Kansas, and they just said any telegrams coming in and out of that newspaper, which would include reporters and everyone else, we subpoena. A dragnet subpoena. They started to call them subpoenas. It's not really subpoenas, though. Because it's not a court process. No, no, it is. Executive subpoena. That's exactly the way to put it. It's not a court. They just sort of announce it. Executive orders. Not even executive orders. Black is empowered to do this. And they'll say, I want this, and I want this, and I want this.
David Beto is author of The New Deal's War on the Bill of Rights, the untold story of FDR's concentration camps, censorship, and mass surveillance. Centers of Progress is a tight history of 40 cities that changed the world for the better with innovations that have enabled human flourishing. What did those cities have in common? Chelsea Follett is the book's author. We spoke for this Cato Audio exclusive. Normally, if you look at a history book, it's chronological.
Right. And normally, if you look at a cookbook, it is organized by recipes and the kinds of foods that you're making. This is a book that is organized by cities and a great innovation that emerged. out of those cities. How did you come about that? That's correct, but this book is also chronological. So it features different cities at particular moments in time when those cities reached their creative peak or they contributed to human progress in some notable way, whether that was through a scientific innovation, a great artistic achievement, an achievement in human rights or otherwise. And so the book is a time travel cruise that starts at the Neolithic revolution, the beginnings of agriculture, and moves all the way to the modern day in the digital revolution. A lot of these cities will be known to people, at least in the 20th century, but what are some cities that...
are presented here as having contributed mightily to civilization and, you know, for the most part, people just don't know about. No matter how much of a history buff you are, there are at least some cities in this book that you will likely not have heard of, whether that's Nan Madol, the stone city in what is today Micronesia built atop a coral reef that shows the far reach of the earliest seafarers. Or Mohenjo-Daro, a ruined city from the Indus Valley civilization. It was today Pakistan that shows early advances in sanitation that were sadly lost and not discovered again until much later. There are so many cities in this book that are unexpected. That said, the book does also contain all of the great cities in history that you will recognize from your survey of Western civilization courses in college. Athens, Florence, many of those cities inspired the idea for this book in the first place. You mentioned sanitation. That's not something people, when they think about great innovations, it's not something that people really think about. And yet it is.
It's critical to human flourishing. Right. These are cities that contributed to different innovations that helped to build the modern world. Some of those will seem very basic, things that we take for granted now, like agriculture, sanitation, different modes of transportation that are now well-established. And yet each of these are so essential to the world that we now inhabit.
Knowing the story of how we came about all of this progress can perhaps teach us lessons on how to create further innovations and increase prosperity in the future. Because while the cities featured in this book are very diverse, they are from many different eras, many different places across the globe, most of them share a few common features. Most cities reach their creative potential at times of relative peace, no large-scale conflict. Most centers of progress also contribute the most to humanity in times of relative peace. freedom, both intellectual and social and also economic, the ability to trade, and tended to be very open toward foreign ideas and people. And this allowed them to recombine different ideas that were already out there and make progress faster. If you go through the table of contents for the book, you'll see a lot of Middle Eastern cities, and then those cities sort of moves to Europe.
And then very clearly a strong showing in the 19th and 20th centuries by the United States. And that's correct. So this book, again, does move chronologically, as Matt Ridley put it in the foreword that he kindly provided. It's a time travel cruise. And what you do see is that many of the places where the greatest innovations were taking place initially were in the Fertile Crescent region of the Middle East where civilization really began.
Ideas spread outward with trade and travel, and you saw some incredible centers of progress in Asia, in Europe, and most recently, one of the greatest centers of progress and innovation has been the United States, and there are five different U.S. cities featured in the book. So highlighting this element of a city that was reaching both an intellectual peak, relative openness, and peace, these are sort of critical to thinking about, well, this is what the Cato Institute advocates. This is, you know, these are the kinds of things that that that, you know, our scholars are trying to get at or get the world to embrace. I believe that history vindicates our political philosophy. But that's that this is not an ideological book. This is a book that you could buy as a gift for a friend or relative who is not a libertarian and they wouldn't find anything in it to be offensive. Hopefully it would help them to appreciate just how important freedom has been historically. It's really not a political book. Who is this book for?
This book is for just about everyone, whether you are a history buff or you would like a crash course in world history from the beginning. And this book is accessible to everyone from middle school onward. It really is not a heavy read. At the same time, it is jam-packed, filled with interesting facts. And I guarantee that there is at least something in there that no matter how much of a history fair you are, will be new to you. And this book can be especially useful for teachers in their classrooms. Cato's Sphere Education Initiative actually has created lesson plans to go along with the different cities. And so this can be a really...
a fun way to get your students interested in history. It can also be useful for social science teachers and teachers in a variety of subjects because by covering so many different innovations. This book touches on every aspect of science and arts and the humanities. So it's of broad interest to many potential people. And again, this is not a policy-heavy, dense book. This is not a political book. And so it's a book that you could give as a present to someone who is not a libertarian, who's not a policy wonk, and they could still enjoy it. Chelsea Follett is author of the new book, Centers of Progress, and is managing editor of humanprogress.org.
Start your workday with a dose of liberty delivered straight to your inbox. Cato Today is an email briefing of new Cato articles, studies, and multimedia commentary on the news that's driving the day. Sign up for Cato Today and all Cato Institute newsletters at cato.org slash ecommunity. That will do it for this edition of Cato Audio. I'm Caleb Brown. Talk to you again next month.