RFK Jr. The Defender - Suing Gavin Newsom with Scott Street

In this episode, Bobby and Scott Streep discuss the California Supreme Court filing of a lawsuit challenging the use of emergency powers by Gov. Gavin Newsom, and why they are a violation of the administrative laws of California. They also discuss the challenges to the emergency declaration that Gov. Newsom has been seeking since March 2019, and how the Supreme Court should respond to them. They also talk about the role of due process in the state of California, and the challenges that the governor is seeking to take away from the people of the state, as well as why they believe the governor should be required to go through the legislative process before making emergency declarations and what that process should look like in order to ensure that the public has a fair chance to have a voice in the process and that the process is transparent and fair to all parties. Finally, they discuss why they think the governor's emergency declaration is illegal and why this suit has a good chance of prevailing in court and bring down the House of Guards and their hopes for the future of California's administrative law system. Thanks for listening and for supporting this important issue. We really appreciate it! Thank you for your support and your support of this podcast! -Bobby and Scott - Thank you so much for being on the show, and we look forward to hearing from you in the future episodes of the show! Thanks, Bobby, Scott, and to all of you for supporting us in our efforts to get this case heard in court. Thank you, and supporting us. -Your continued support is so appreciated! - Your continued support will be so appreciated and your continued support of our cause and support is greatly appreciated. - Your support will help us win this case and we will continue to move forward in the case. . . . and we are looking forward to winning this case. - - and we hope that we have a chance to continue to keep fighting for this case in court, and that we can win it. , and we do not only in court about this case! (Thank you, Bobby & Scott, thank you, Thank you all of your support is very much appreciated, and keep on fighting for us, and keeping us in the fight for us in this case, we will keep fighting on this fight, and thank you all in the coming weeks, and all of our progress, and so much more! . - P.S. - thank you for listening,

00:00:00.000 Hey everybody, we have a really exciting show today.

00:00:03.000 I have my friend, my colleague, Scott Streep, who is an extraordinary lawyer, and we are announcing today on this podcast that we filed this morning a lawsuit representing the Orange County Board of Education against Abbott Newsom in the California Supreme Court, the highest court in the state.

00:00:26.000 challenging the use of these emergency powers as a violation of the administrative laws of California.

00:00:35.000 I'm very, very excited because I think this is a suit that has a good chance in prevailing and bringing down the House of Guards.

00:00:45.000 Scott, why don't you tell us about the case?

00:00:48.000 Thanks, Bobby.

00:00:49.000 And thank you for having me on.

00:00:50.000 Real pleasure and privilege for me to be here talking to you about this important issue.

00:00:54.000 Basically, you're right.

00:00:56.000 What we did is we filed an action.

00:00:57.000 This is directly in the California Supreme Court, highest court in California.

00:01:01.000 What we're asking the court to do is we're asking the court to order the governor to terminate the state of emergency that he declared related to COVID-19 last March.

00:01:12.000 And we're saying essentially 18 months is enough.

00:01:15.000 The state of emergency, by definition, cannot be indefinite.

00:01:19.000 And the biggest problem that we've seen here in California is the state of emergency has been We're good to

00:01:51.000 go.

00:01:53.000 Transparent, in the open, with an opportunity for public debate.

00:01:57.000 And that hasn't been happening because the governor has said during the emergency, we shouldn't have to do that.

00:02:02.000 So those are the fundamental issues of governance that are at stake and that we're asking the Supreme Court to restore to the people of the state of California.

00:02:11.000 So that people understand kind of the context for how laws normally or regulations normally are promulgative.

00:02:19.000 The legislatures have the power to create laws.

00:02:23.000 They can do that without any kind of environmental impact statement or really any other process other than the legislative process.

00:02:31.000 But the Constitution says when they delegate their rulemaking power to a regulatory agency, that regulatory agency cannot Promulgate a regulation without going through certain steps that assure that the people of the state are participants in the regulatory process so that it doesn't just become a dictator situation,

00:02:58.000 a regulatory dictator, a technocracy, just passing down regulations that are arbitrary and capricious.

00:03:06.000 And so you need due process.

00:03:08.000 And the due process, the standard laws that are required in the state of California is that prior to passing or promulgating a regulation, a regulatory agency has to publish the proposed rule in a newspaper of record so the public knows about it.

00:03:27.000 And at the same time, they have to publish An environmental impact statement or a regulatory impact statement, an economic impact statement.

00:03:36.000 It looks at the cause and the benefits to all the different members of the society of that role.

00:03:43.000 Who's going to be helped?

00:03:44.000 Who's going to be hurt?

00:03:45.000 What is the economic and other cause of that regulation?

00:03:49.000 And they have to show the scientific basis.

00:03:53.000 They have to cite the scientists, cite the particular peer-reviewed publications that they're relying on to reach those conclusions.

00:04:03.000 They then have to give a comment period, and that could be 30 days, 60 days, or 90 days, And then there's a public hearing in which the regulatory agency has to attend with their experts who testify about why they believe this rule is necessary and why it is narrowly tailored.

00:04:24.000 And then the other side, people who object to the rule have a chance to cross-examine it.

00:04:30.000 And there's a judgment by an administrative law judge that's based upon a rational reading of the record.

00:04:38.000 So his judgment cannot be arbitrary and apricious.

00:04:41.000 And if it is, anybody can challenge that in a regular court.

00:04:47.000 None of that ever happened here.

00:04:49.000 You just have a couple of people who we've never met, we don't know who they are, who are not elected officials, who are handing down all of these rules, and you can do that as you say, Scott.

00:05:02.000 If you have a two-week emergency in two weeks or three weeks, you want to flatten the curve, you need to act very quickly.

00:05:09.000 Government has the capacity to invoke its emergency authority and do that.

00:05:14.000 The courts traditionally have said that emergency has to be of a definitive length and it has to be as short as possible.

00:05:22.000 And our argument in this case is that you pass that Landmarked that milestone months and months ago, and we've had time now for democracy.

00:05:33.000 Even if you're going to promulgate these regulations, let's have some democracy here. 0.93

00:05:39.000 None of that has been done.

00:05:40.000 And I think it's illegal, and you think it's illegal, and I think that we have a really good chance of winning this case.

00:05:48.000 And forcing a change to these emergency declarations, not only in California, but hopefully across the country.

00:05:55.000 Yeah, you make some good points, Fabia.

00:05:58.000 And, you know, it's interesting.

00:05:59.000 This whole system of administrative rulemaking, the history of it is fascinating because before the New Deal, really, and then World War II, There was not much administrative rulemaking in the United States or elsewhere.

00:06:16.000 Everything was decided through the legislature.

00:06:19.000 And with the expansion of the federal government during the New Deal, that changed because government became so large and so complex that it was almost impossible to issue all rules and regulations through Congress.

00:06:32.000 And so we started seeing, and of course, that expanded to the states.

00:06:35.000 I mean, now you have the government of the state of California is as big and complicated as many countries.

00:06:40.000 But, you know, hand in hand with the rise of the administrative states was this concern about giving unelected bureaucrats too much power, right?

00:06:49.000 Because you're right, and we don't know who these people are.

00:06:53.000 We don't know what they're relying on.

00:06:54.000 You know, during this pandemic, one of the things that's concerned me is, you know, you have...

00:07:00.000 Multiple people coming in and out of these positions.

00:07:03.000 So, for example, the State Department of Public Health in California was initially headed by a woman named Sonia Angel, who was only on the job for about nine months before she was forced to resign last summer.

00:07:16.000 Another person named Erica Pan came in and had that role for about six, seven months. 0.99

00:07:20.000 And then she was replaced by somebody else.

00:07:22.000 So we've seen three or four state health officials who are the ones signing these orders.

00:07:28.000 Now, whether they're the ones who are making the decisions, we don't even know that.

00:07:32.000 But they're the ones signing the orders.

00:07:33.000 And we literally know nothing about them.

00:07:35.000 No one elected them.

00:07:36.000 We don't know how they were chosen.

00:07:37.000 We don't know what they're relying on.

00:07:39.000 And so it's critical in times like this that we have transparency in government, that we have an opportunity to To know what the government's relying on and to question it.

00:07:50.000 I mean, that is part of the process of government as much as it is the process behind science, right?

00:07:56.000 The scientific method.

00:07:57.000 The same rules apply to the government.

00:08:00.000 Really, in any time, but especially, I would argue, when in times like this where you have the government exercising powers that it has never exercised before.

00:08:08.000 And that's something that's really important to point out to everyone.

00:08:11.000 We've never had mass business closures.

00:08:13.000 We've never had the state government or the CDC telling educators how children have to be educated at the local level.

00:08:21.000 I mean, we're in a whole new level, right?

00:08:24.000 This is not what was done back in 1918 with the influenza pandemic.

00:08:29.000 This is new, and it really calls for more judicial oversight and more transparency in general about how people are making decisions.

00:08:38.000 We've never had...

00:08:40.000 Government officials are telling adults they have to be vaccinated in order to go to work, to go to a ballpark, to go to a bar.

00:08:46.000 And with vaccines that have never been adequately tested, that aren't even approved yet.

00:08:51.000 And we've never had government officials who told every business in the state, you've got to close down without citing any kind of science, without explaining why we think that lockdowns are going to work.

00:09:05.000 I would venture to say that 99% of the people in the state, if They had evidence, and lockdowns were, and masks were, and there was a scientific rationale behind these mandates that everybody would do it without complaining.

00:09:23.000 There's a lot of people who are angry, and their businesses are being closed, their children are being put in masks without anybody doing studies about what their psychological impacts are on children.

00:09:36.000 All the science is mitigating.

00:09:39.000 Those children get no benefit from the mask, they get no benefit from the vaccine.

00:09:45.000 And yet we're seeing them required to do those things standing within.

00:09:49.000 It's irrational, it's arbitrary, it's capricious, it's dictatorial.

00:09:53.000 And one of the exciting things about this lawsuit, and this is the brief, I mean, this extraordinary complaint that you drafted, the great thing about this complaint is that we think that this complaint can be a template for complaints We're challenging these lockdowns and we want to help attorneys and people,

00:10:16.000 doctors, frontline healthcare workers who are being ordered to vaccinate, ordered to do other things without any kind of rationale.

00:10:26.000 We think we can use this suit to address those issues and we're anxious to start filing these suits all around the country.

00:10:35.000 Yeah, you know, you're right, Bobby, and I think it's one of the challenges, maybe one of the problems in some of the lawsuits that have been brought during this pandemic is, you know, there is an impulse among people, both lawyers and clients, to, in times of crisis, you know, run to court, you know, citing the United States Constitution.

00:10:54.000 What they don't realize is the United States Constitution sets forth certain minimum rights, and constitutional litigation, something that I've done, you know, for many years, It's very, very difficult.

00:11:05.000 It's very difficult to beat the government in those cases.

00:11:08.000 And so one of the things I've been doing over the past year and a half is finding more creative ways to solve these problems.

00:11:16.000 And that includes using, here in California, some principles.

00:11:21.000 The California Constitution has gone wrong.

00:11:24.000 Far beyond the federal constitution and extending certain rights to people, individual rights and freedoms to people, including a fundamental right to privacy that really doesn't exist anywhere else in the country and doesn't exist under the federal constitution.

00:11:38.000 And combining those principles, which have been developed and we've made great progress in over the past 50 years, combining those principles with principles of administrative law that I know you have been successful in litigating under during the past 25, 30 years, To actually figure out, okay, what are these rules based upon?

00:11:59.000 Let's see some evidence.

00:12:00.000 Let's see some justification for it.

00:12:02.000 Because those strategies can be successful.

00:12:05.000 And they don't necessarily happen immediately.

00:12:08.000 There's a case that I handled, as I think you know, for a statewide alliance of gym owners here in California last year.

00:12:15.000 We took the long route.

00:12:16.000 We litigated against the governor's office for nine months.

00:12:19.000 And we resolved that case successfully.

00:12:22.000 Because we took the long approach, right?

00:12:24.000 And because we focused on getting the evidence that we needed to prove our case, the governor's office was so afraid of giving us that evidence that they resolved it instead of giving it to us.

00:12:37.000 That's the kind of approach that could be successful in many other cases, both inside California and in other states.

00:12:44.000 Yeah, I agree.

00:12:45.000 I can't wait to depose people, for example, health officials, on why they think the vaccine is now effective since we have the Delta variant, which is agnostic about whether you're vaccinated or unvaccinated, and ask them actually to walk with me.

00:13:03.000 Through the vaccine adverse event reporting system and ask them, how many people have died from this vaccine?

00:13:09.000 How many of them have been injured?

00:13:10.000 How do you know that the cost of the vaccine, that the vaccine is not, it is averting more costs, more deaths, more injuries than it's causing?

00:13:21.000 There's very little data for us to be able to make those calls, I think.

00:13:26.000 Most health officials that sit on that, they're not actually looking at the data that a lot of critics are looking at And when we get them under oath, they are going to find that this mandated vaccination is absolutely indefensible, and I can't wait till we get an accusation.

00:13:44.000 Scott, tell us a little, we're running out of time, because we want to keep this under half an hour.

00:13:50.000 Tell us a little bit about yourself, because most of the people who are involved in this issue today have been kind of right-wing Republicans or conservative But that's not your background.

00:14:03.000 No, no, no.

00:14:04.000 It's not my background.

00:14:05.000 My background actually is in the political business on the left side of the aisle, starting in the Clinton White House, where I worked after I graduated from UCLA. And then I worked for a number of Democratic elected officials, including Dick Gephardt, Dianne Feinstein, and Joe Biden, among many others.

00:14:25.000 So yeah, I don't come at this from a political perspective.

00:14:29.000 And To be honest, bringing some of these cases has involved me suing people who I've previously worked with and who I really think highly of.

00:14:40.000 And the reason I do it is not because I want to score political points or get on TV or win an election, but because I think it is incumbent on people like me who are value-oriented and who really put their faith more in the rule of law and the Constitution than in any kind of political party.

00:14:59.000 It's incumbent on us to show the moral courage to stand up to people, including our friends, and demand that they adhere to those same principles.

00:15:08.000 It's really interesting.

00:15:09.000 Going through this process led me back to reading some remarks that your dad said.

00:15:15.000 He spoke about moral courage being a rarer commodity than bravery in battle or great intelligence.

00:15:21.000 And I think that's really true, and we've seen that in the last year and a half.

00:15:24.000 I can't tell you, especially going through last year's election, How many people, fellow Democrats, including people who I've worked with on Democratic political campaigns, called me and told me that they agreed with what I was doing because they didn't feel like they could speak up and say anything.

00:15:43.000 And that's only getting worse.

00:15:45.000 And so it's important for people like me and people like you to stand up to our friends and to say, this isn't right.

00:15:52.000 You need to follow the law.

00:15:53.000 Here's what the law says.

00:15:55.000 And if you don't Do it voluntarily, then we're going to hold you accountable for it.

00:15:59.000 I think every American has to start recognizing that the politicization of this issue is harming all of us.

00:16:07.000 The polarization is harming all of us.

00:16:10.000 There are no such thing as Republican children or Democratic children, and that we have the moral obligation to protect all of these children.

00:16:19.000 Scott Street, thank you so much.

00:16:22.000 Tomorrow in the Defender, we're going to have telephone numbers that people can call if they want to start filing these lawsuits in their state.

00:16:31.000 So stay tuned, everybody.

00:16:34.000 Make sure to read the Defender and read about the lawsuit and contact us if you have a plan for doing it.

00:16:41.000 We'll help you.

00:16:42.000 Thanks, Bob.

RFK Jr. The Defender - August 10, 2021

Suing Gavin Newsom with Scott Street

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