Speaker 1: Welcome to another edition of The Oath and the Office Podcast.
Speaker 1: I am John Fugel Sang and friends. Something interesting just happened.
Speaker 1: A few hours before this recording. Donald Trump's biggest constitutional
Speaker 1: moonshot of his second term got rejected by Donald Trump's
Speaker 1: own Supreme Court. The judges he personally hired looked at
Speaker 1: his idea and said, you know what, We're going to
Speaker 1: go with the constitution instead. For more, let's go to
Speaker 1: the star of this show, the author of The Oath
Speaker 1: and the Office and the Presidents and the People, America's
Speaker 1: favorite IVY League, Polly Cybe, Professor Corey Bretschneider. Hello, Professor,
Speaker 1: good to see you.
Speaker 2: Hi John, good to see you.
Speaker 3: And of course we're going to start off talking about
Speaker 3: the amazing birthright citizenship case.
Speaker 2: Well, I shouldn't say amazing.
Speaker 3: Expected I've been saying for weeks now, and really months
Speaker 3: since it started, that the court really has no choice.
Speaker 3: It's so clear that the Fourteenth Amendment says that if
Speaker 3: you're born in the United States, you're a citizen. I
Speaker 3: urge listeners to go back and listen to our amazing
Speaker 3: discussion with the lawyer Cecilia Wang, who argued the case
Speaker 3: for the ACLU, and we dissect exactly why it had
Speaker 3: to be what it is. But there's a lot of
Speaker 3: disappointment today too, because you know, there should have been
Speaker 3: nine zero, and of course that pleasant and we'll talk
Speaker 3: about that, and then we'll have Joyce Vance on the
Speaker 3: podcast in the second half. She begins her book Giving
Speaker 3: Up Is Unforgivable by talking about why this executive order
Speaker 3: provoking birthright citizenship is nothing less than an attack on
Speaker 3: the Constitution. So she's really the perfect guest to join
Speaker 3: us today.
Speaker 1: Well, you know, Donald Trump spent years core acting like
Speaker 1: he could rewrite one hundred and fifty years of congressional
Speaker 1: law with the same sharpie he used to redraw a
Speaker 1: hurricane map in Alabama once, and constitution doesn't run on sharpie.
Speaker 1: Chief Justice John Roberts joined the three samee justices at
Speaker 1: Damy Cony Barrett Brett Kavanaugh concurred. I mean, imagine that
Speaker 1: for Donald Trump, professor like Trump watching the lineup like
Speaker 1: it's fantasy football, and he realizes that half of his
Speaker 1: draft picks switch teams. But it is a bit terrifying.
Speaker 1: It was only six to three, But from a constitutional standpoint, Corey,
Speaker 1: how significant is this ruling. Does this settle this issue
Speaker 1: at least for the foreseeable future.
Speaker 3: Look, they should have said it much sooner. There are
Speaker 3: a lot of people who had to wait in limbo
Speaker 3: for the court to say what's obvious, which is at
Speaker 3: the fourteenth Amendment, with a very narrow exception, says if
Speaker 3: you're born in the United States, we're a citizen. I'll
Speaker 3: say what that exception is. It says, subject to the jurisdiction. Well,
Speaker 3: as we talked about with Cecilia Wang, and we've argued
Speaker 3: on this podcast, subject to the jurisdiction is a very
Speaker 3: narrow idea. So the children of ambassadors, for instance, who
Speaker 3: have immunity are not obviously subject to the jurisdiction of
Speaker 3: the United States, and so don't become citizens if they're
Speaker 3: born here while their parents are ambassadors, for instance. But
Speaker 3: everyone else, the point of the Amendment was, like the
Speaker 3: Equal Protection Clause itself, to say we're all equal. And
Speaker 3: what better way to make that clear than to say,
Speaker 3: if you're born in the United States, you are a citizen,
Speaker 3: full stop. Now the court did say that. I'll say
Speaker 3: part of the disappointment, it's not just the three dissenters
Speaker 3: although you know to what we expected one. Of course,
Speaker 3: that is definitely a disappointment, especially his supposed allegiance to
Speaker 3: the tax and exactly what the text is everything that
Speaker 3: that hurts a little a little, But.
Speaker 1: It also is three Supreme Court justices basically argued that
Speaker 1: a president can change the Constitution to executive decree if
Speaker 1: he's a Republican. Am I getting that right? If it's
Speaker 1: a Republican president, they can change the Constitution when they
Speaker 1: feel like it. Three out of nine feel that way.
Speaker 1: I mean they and that's mag and numbers.
Speaker 3: That they laid down the law that although they claim
Speaker 3: to care about reading the tax more than anything, that
Speaker 3: they just ignore the plane meaning of what I said.
Speaker 3: There is a complication here too that makes it a
Speaker 3: little worse than it seems at first, because six y three.
Speaker 2: Sounds not that bad.
Speaker 3: But one of those votes Kavanaugh is not a vote
Speaker 3: on the Constitution in itself. You really actually stood with
Speaker 3: the dissenters and saying that the text of the Constitution
Speaker 3: does allow Congress to limit birthrights citizenship, and it's just
Speaker 3: that Congress hasn't limited it has a protection for all
Speaker 3: those who are born in the United States.
Speaker 2: So that's another vote.
Speaker 3: That's like what you know, these supposed regionalists or textualist justices.
Speaker 2: The good news is that.
Speaker 1: The originalists when it comes to the white supremacy, professor,
Speaker 1: you know this. You're too polite to say it.
Speaker 3: Wow, I mean, you know, it's definitely not possible to
Speaker 3: defend those I would say, not just three to make
Speaker 3: it clear, it really is a five to four decision
Speaker 3: on the thing that should matter, the Constitution itself. Justice
Speaker 3: Barrett will give her credit for siding with the majority.
Speaker 2: That was a good thing.
Speaker 3: To do, and I also just praise the importance of
Speaker 3: the decision itself. You know, often what matters here is
Speaker 3: not just the vote, but what said and the reaffirmation
Speaker 3: of the idea that the second founding of the United
Speaker 3: States is Justice Jackson puts it in her brilliant concurrent
Speaker 3: something that will be taught that I urge all listeners
Speaker 3: to read that the second Founding, you know, was about
Speaker 3: nothing less than the affirmation of the idea that if
Speaker 3: you're born in the United States, who are a citizen
Speaker 3: because it was part of the idea of resisting subordination.
Speaker 2: She's so clear in laying that out.
Speaker 3: Part of her Brilliance, too, is hammering at Justice Thomas, who,
Speaker 3: in his dissent. You know, remember this is Justice Thomas
Speaker 3: who always claims to be colorblind, and then she points
Speaker 3: out he makes this only about Black Americans.
Speaker 2: Yeah, we are colorblind. What better example of color blindness.
Speaker 2: They don't mean it that it applies to everyone.
Speaker 1: He says color blindness because he's not man enough to
Speaker 1: be color conscious. And when they call themselves originalist, it
Speaker 1: just I'd look at this and it just seems like, no, no,
Speaker 1: you're not original It's like states' rights. It's just a
Speaker 1: cloaking device, piece of language they use to make a
Speaker 1: selfish agenda sound somehow virtuous. I mean to me, it's
Speaker 1: just like states' rights. I mean, you look at the
Speaker 1: rage they're showing it Amy Coney Barrett, but I mean
Speaker 1: it looks like it's. This just suggests to me that originalism, right, textualism,
Speaker 1: these phrases they love to use, well, sometimes they lead
Speaker 1: to outcomes that don't align with conservative political goals. And
Speaker 1: that's what they can't stay on because they believe originalism
Speaker 1: is going to be the respectful term they use to
Speaker 1: just do whatever they wanted in the first place. And
Speaker 1: sometimes originalism does not lead to what a right wing
Speaker 1: minority wants.
Speaker 2: Yeah, I'm going to.
Speaker 3: Savor the victory a little, and I'll agree with you
Speaker 3: first of all that you know, when it comes to
Speaker 3: that characterization, it is definitely true of those four justices
Speaker 3: who were dissenting. And then I'll add to Alito, Thomas,
Speaker 3: and Gorsich. Of course Kavanaugh, who really does join them
Speaker 3: on the constitutional issue, although he thankfully joins on the judgment,
Speaker 3: joins the decision. But you know, the good news is
Speaker 3: that there are five justices who are saying who know
Speaker 3: how to read, and who aren't doing this pretend originalism thing,
Speaker 3: and who really do give us a constitutional lesson and
Speaker 3: the idea of a second founding that after the Civil
Speaker 3: War there was a commitment to the idea of we
Speaker 3: the people being an inclusive idea, multi racial idea. And
Speaker 3: I'll I really want to praise this concurrence by Justice Jackson,
Speaker 3: because what it says is the meaning of the terms
Speaker 3: are not just found in the words themselves, but in
Speaker 3: those who argued for them, including she talks about the
Speaker 3: Black Conventions, which I also talk about in the presidents
Speaker 3: and the people throughout the United States, Black Americans really
Speaker 3: saying not just that we want equal protection, but that
Speaker 3: we want birthright citizenship. And she gives a great quote
Speaker 3: from Frederick Douglas to the effect that this really is
Speaker 3: the way that will instantiate the idea of the resistance
Speaker 3: to slavery, of anti subordination, of equality, and the idea
Speaker 3: that if you are born on American soil you are
Speaker 3: a citizen.
Speaker 2: There's nothing about blood here.
Speaker 3: Douglas, who had before the Civil War made it so
Speaker 3: much a part of his argument that the original Constitution
Speaker 3: also had these ideas, and he looked in particular at
Speaker 3: the idea of the corruption of blood. It's one of
Speaker 3: his main arguments that we in England you can inherit
Speaker 3: the crimes of parents. In the United States, we don't.
Speaker 3: We don't have this idea of blood being corrupt. And
Speaker 3: how toiate that we used to we used to How
Speaker 3: did instantiate that in the Constitution? Do it through this
Speaker 3: idea of if you're born in the United States, you're
Speaker 3: a citizen. So she talks about that, and so, yeah, John,
Speaker 3: I'm feeling kind of good.
Speaker 1: Oh no, so am, I I mean, I mean, the
Speaker 1: administration's one of their legal arguments was that the promise
Speaker 1: of potential US citizenship Cory had led to this birth
Speaker 1: tourism industry. The Solicitor General said uncounted thousands of foreigners
Speaker 1: from potentially hostile nations have flocked to give birth in
Speaker 1: the US in recent decades. So this week some scholars
Speaker 1: at Penn State released a study based on all official data.
Speaker 1: They found fewer than zero point three percent of all
Speaker 1: US births in any given year were given to tourists.
Speaker 1: They're out of arguments, I think now they're either going
Speaker 1: to let this go or we'll hear a few people
Speaker 1: calling for a constitutional amendment to end birthright citizenship, which
Speaker 1: will never happen.
Speaker 3: Yeah, and it's good good for I think democracy when
Speaker 3: they proposed that, because that's our chance to say no,
Speaker 3: way to say that the idea that is in the
Speaker 3: Constitution itself is something that we affirm. You know, one
Speaker 3: worrying idea is that Justice Kavanaugh gives away. I mean,
Speaker 3: there are not five votes for this, thankfully, but he's
Speaker 3: really saying to the Congress, well, if you want to,
Speaker 3: you know, get rid of birthright citizenship for the children
Speaker 3: of undocumented, then.
Speaker 2: Do it through legislation.
Speaker 3: But hopefully the message will be received by Congress that yeah,
Speaker 3: that's one guy's view, but there are five votes that
Speaker 3: say the Constitution prohibits this. So to answer the question
Speaker 3: that you began with, I didn't want to lose track
Speaker 3: of that.
Speaker 2: Yeah, this should be the end of the issue.
Speaker 3: The Supreme Court has spoken, They've reaffirmed the obvious meaning
Speaker 3: of the fourteenth Amendment, and.
Speaker 2: That's really it.
Speaker 3: Certainly it's a rebuke to Trump, but it also should
Speaker 3: be a rebuke to those in Congress who think that
Speaker 3: they can legislate birthright citizenship away.
Speaker 1: There's a lot of news that's not good the passical days,
Speaker 1: including the Court now says the president can fire commissioner.
Speaker 1: Is that independent agencies? So they're not really independent anymore?
Speaker 1: Rest in peace, Humphreys Executor Corey. I learned so much
Speaker 1: about it from you, and now it's been executed. Why
Speaker 1: is overruling the nineteen thirty five Humphrey's Executive President such
Speaker 1: an historic moment? I mean, what constitutional principle did it
Speaker 1: establish and why did this court feel threatened by it?
Speaker 3: I want to get to the legal arguments here, and
Speaker 3: this really is nothing less than a massive aggrandizement of
Speaker 3: presidential power. But given the bad news, I also have
Speaker 3: to appreciate your joke. That is definitely the best Humphreys
Speaker 3: executor joke that.
Speaker 1: Oh I wrote it. You're the only person in America.
Speaker 3: And as you're writing it, I knew how you must
Speaker 3: have realized how much I was going to appreciate it
Speaker 3: when that I will share with generations of students as
Speaker 3: we teach this.
Speaker 1: Unfortunately now, Oh, I can hear their eyes rolling even
Speaker 1: as we speak, Corey. But really, I mean, I've learned
Speaker 1: so much about this from you, and the majority on
Speaker 1: this court really appears to embrace a much more imperial
Speaker 1: version of presidential control over the executive branch.
Speaker 3: That's right, And in the slaughter case, you know, what
Speaker 3: the administration is saying is that the Federal Trade Commission,
Speaker 3: although it's protected by laws and has been for one
Speaker 3: hundred years that say, this is an independent agency, meaning
Speaker 3: a very specific thing, which is that the head of
Speaker 3: this agency can't be controlled by the president to do
Speaker 3: his political bidding and therefore can't be fired for political reasons.
Speaker 3: They can only be fired if they're negligent or doing
Speaker 3: a bad job.
Speaker 2: Hired for cause is.
Speaker 3: The way of putting it, and what the Supreme Court
Speaker 3: said here, unfortunately, is that that law protecting this independent
Speaker 3: agency is no longer valid. That under the Constitution's Article two,
Speaker 3: all of the executive power is vested in one person,
Speaker 3: a president.
Speaker 2: And what that means is the ability.
Speaker 3: To hire and fire the heads of these agencies. It
Speaker 3: essentially gets rid of a vast amount of independence of agencies,
Speaker 3: including the sec for instance, that protect us and insulate
Speaker 3: us from the president's corruption.
Speaker 2: Now, when you combine that ruling with.
Speaker 3: The fact that this president is a want to be
Speaker 3: authoritarian who's obviously going to use his hiring and firing
Speaker 3: power to spread his corruption and his threat democracy, it's.
Speaker 2: A big deal.
Speaker 3: This is an agency that's charged with fighting consumer fraud,
Speaker 3: bad practices, has roles in.
Speaker 2: Ensuring competitive behavior.
Speaker 3: And you have a president who's only concerned with his
Speaker 3: own financial interest and his own narrow political interest, and
Speaker 3: so what he'll try to do is to fire anyone
Speaker 3: that doesn't do his bidding.
Speaker 2: And I can't emphasize enough.
Speaker 3: This just reshapes, it changes completely the structure of the
Speaker 3: federal government.
Speaker 2: For you said, can you impodcasts could insulate these agencies.
Speaker 1: For listeners who don't follow constitutional law, as obsessively as
Speaker 1: you and me. Why should the average American care whether
Speaker 1: a president can fire an FTC commissioner? I mean, how
Speaker 1: how can this affect for those who don't know how
Speaker 1: it affects consumers or workers or financial markets.
Speaker 3: Well, put it this way, Congress passed the law creating
Speaker 3: an agency to protect all of us, to protect a
Speaker 3: competitive environment, to protect against monopoly, to protect against fraudulent
Speaker 3: and abusive practices, going.
Speaker 2: Back again about one hundred years.
Speaker 3: And when it did that, it realized something, which is
Speaker 3: that if you have a bad president or corrupt president
Speaker 3: who's just intent on his own power, or even a
Speaker 3: good one, they might try to get in the way
Speaker 3: of the public good by using these agencies for nefarious purposes.
Speaker 2: So what did they do?
Speaker 3: They created a protection against political firing. But essentially, what
Speaker 3: the bottom line of this opinion is. It now gives
Speaker 3: the president of green light to fire anybody who say
Speaker 3: isn't helping his family when it comes to their own
Speaker 3: business and their own anti competitive practices.
Speaker 2: And what's to stop him now?
Speaker 3: It just basically, you know, there are more than two
Speaker 3: million people in the executive branch, and if you include
Speaker 3: independent agencies, it's even more. And what this does is
Speaker 3: it just gives the president more and more control over them.
Speaker 3: He still doesn't control civil servants, who are protected from
Speaker 3: firing unless there's cause. But this is also opening the
Speaker 3: way towards that to complete control of the entire federal
Speaker 3: government by the president, to opening the way to his.
Speaker 1: Corruption exactly right. So, I mean, before we hit the break,
Speaker 1: I do have to talk to you about this other
Speaker 1: disturbing factor. We're not disturbing. I can't make up my
Speaker 1: mind on this. To the same day, the court dramatically
Speaker 1: expands presidential removal power. It allowed Federal Reserve Governor Lisa
Speaker 1: Cook to stay in office and say, Okay, Trump, you
Speaker 1: can fire anybody you want, but the Federal Reserve is
Speaker 1: the apparent exception, right, Like, this is the constitutional doctrine
Speaker 1: unlimited presidential power unless Wall Street gets nervous. And it
Speaker 1: seems like that's where these justices discovered moderation. Is that
Speaker 1: is it fair? I mean, like, like, was this really
Speaker 1: a victory for Federal Reserve independence or was this just
Speaker 1: a narrow procedural ruling in one case?
Speaker 3: No, it's I think it well, it's both. It's technically
Speaker 3: procedural ruling. But really it is a victory for FED independence.
Speaker 3: But the reason why you're rightly feeling mixed emotions about
Speaker 3: this is because it doesn't make any sense. In one breath,
Speaker 3: we just explained that the essentially, the Supreme Court said
Speaker 3: that the executive power includes the ability to engage in
Speaker 3: any kind of firing, even political firing, of all agencies,
Speaker 3: including those that are supposedly independent. Well, the main independent agency,
Speaker 3: arguably the most important one, is the Federal Reserve. Now
Speaker 3: what did the courts say about that? It said, yes,
Speaker 3: he has the power to fire anyone.
Speaker 2: In any independent agency except this one. Now, what's the reason?
Speaker 2: That's what?
Speaker 1: You're a pragmatic economic one. A pragmatic economical I don't
Speaker 1: know if they didn't tell us a massive constitutional distinction. Yeah,
Speaker 1: I mean it just seems like theilators like it. Well,
Speaker 1: they occupy, you know, unique categories.
Speaker 2: Right, if they would have said that, I would have been.
Speaker 1: For get Congress, independent agencies, no interest rates.
Speaker 2: Whoa there, cowboy?
Speaker 1: I mean, right, Corey. You know, like democracy is negotiable,
Speaker 1: but the Dow Jones is not.
Speaker 2: Right. I mean that this is about.
Speaker 3: One thing that you do get in the sort of
Speaker 3: some sense of the back and forth between the justices,
Speaker 3: because you know, they're going back and forth about how
Speaker 3: much of an explanation they owe the American people.
Speaker 2: They've given us almost none. I imagine that.
Speaker 3: The explanation is going to be, and I'm getting this
Speaker 3: from the Lisa Cook opinion, that the Federal Reserve is
Speaker 3: so old that it really, you know, dates back. The
Speaker 3: Federal Reserve itself has its roots in the Bank of
Speaker 3: the United States, and that has its roots in an
Speaker 3: even earlier bank from George Washington's period of time. And
Speaker 3: so there's something about its age. I guess that the
Speaker 3: Court is going to try to play with or if
Speaker 3: they're going to be honest, at least say what you said,
Speaker 3: which is, look, you know, we have this kind of
Speaker 3: crazy we have this originalist jurisprudence that says there's no
Speaker 3: independent agencies.
Speaker 2: But we're not that crazy.
Speaker 3: The same way we're not that crazy in the birthright
Speaker 3: citizenship case that we're going to go against the text
Speaker 3: of the Constitution. We're pragmatic enough that we're not going
Speaker 3: to just destroy the Federal Reserve and allow want to
Speaker 3: be dictator president to have control over interest rates.
Speaker 2: Okay, tell us that right.
Speaker 1: But again, I'm more cynical than you because as soon
Speaker 1: as I hear originalist, I assume they're not going to
Speaker 1: be honest. So you got to read through what they
Speaker 1: actually say. We have to hit a break. Let's come
Speaker 1: back and talk about all the other hillacious things and
Speaker 1: maybe maybe one or two positive things that this Supreme
Speaker 1: Court has done. But boy, it ain't great. We'll be
Speaker 1: right back.
Speaker 2: Hi, everyone, it's Corey.
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Speaker 2: And for making it so successful.
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Speaker 3: Presidents and the People. Five leaders who threatened democracy and
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Speaker 1: Welcome back to the Open the Office. I'm John Fiegel,
Speaker 1: sang Professor Corey Bretschneider. I'm so excited Joyce Vance is
Speaker 1: going to join us in the next act. But I
Speaker 1: got a lot of other things to tug on your
Speaker 1: coat about, and the big one came late last week.
Speaker 1: We've talked a lot on your show about temporary protected status.
Speaker 1: How three hundred and fifty thousand Haitian brothers and sisters,
Speaker 1: overwhelmingly Christian, were invited to stay in this country after
Speaker 1: the devastating earthquake and the murder of their president. Our
Speaker 1: own State Department says Haiti is not safe to visit.
Speaker 1: These folks have woven themselves into the economy. They have
Speaker 1: taken jobs, paid taxes, raised very American children, followed the laws,
Speaker 1: done everything we tell migrants and asylum seekers they have
Speaker 1: to do. And the same White House that spread racist
Speaker 1: lies about them stealing and eating pets has not yielded
Speaker 1: in trying to drive these people from our home. Even
Speaker 1: the Republican governor of Ohio, Mike DeWine, has come out
Speaker 1: to say, please don't take these people. We've seen Republicans
Speaker 1: like Don Bacon come out and say, hey, these people
Speaker 1: are propping up our healthcare industry during a labor shortage.
Speaker 1: It's going to hurt your grandma if you deport them.
Speaker 1: To say nothing of the moral catastrophe of the soulless
Speaker 1: ghouls of the world, like Meg and Kelly rejoicing that
Speaker 1: we're sending families and children to a place that it
Speaker 1: is not safe for families and children to go while
Speaker 1: remind out everybody that the Haitian people are overwhelmingly Christian,
Speaker 1: and the court ruled late last week that this administration
Speaker 1: can end their temporary protected status hundreds of thousands of people,
Speaker 1: thousands of Syrians. Does the decision primarily concerning immigration policy
Speaker 1: or is this really about judicial review?
Speaker 3: Well, I've got to say, you know, we have this
Speaker 3: I think decent opinion in the birthright citizenship case that
Speaker 3: we talked about the idea of the Second Founding, and
Speaker 3: then we also in the same breath have a betrayal
Speaker 3: of that last week in this TPS case, and we
Speaker 3: have been covering it, I should say, and we'll continue
Speaker 3: to cover it. If you haven't subscribed, subscribe because this is.
Speaker 2: The place we get this in depth kind of conversation.
Speaker 2: So let's get into it.
Speaker 3: You know, I'm celebrating the birthright citizenship case. It wasn't
Speaker 3: as lopsided as it should have been given the issue.
Speaker 3: But the other thing that the Fourteenth Amendment said so
Speaker 3: clearly is that if you're engaged in pernicious discrimination, if
Speaker 3: you deny equal protection of the law, it doesn't matter
Speaker 3: what kind of legal authority you've been given from various
Speaker 3: laws or statutes, or what kind of authority you have
Speaker 3: as president of the United States. So to my mind,
Speaker 3: the real issue in this case was exactly what you
Speaker 3: just said that this president told us the reason why
Speaker 3: he wants to revoke temporary protected status for Haitian Americans,
Speaker 3: especially given the devastation and danger that they face in Haiti,
Speaker 3: And the answer is because of his own racism. So
Speaker 3: when he says they're eating the dogs, they're eating the cats,
Speaker 3: you know what is that but pure racism. And this
Speaker 3: was a moment where the Supreme Court, as it did
Speaker 3: in the birthright citizenship case, could have said what the
Speaker 3: second founding was about. I just want to clarify that term.
Speaker 3: We had the original founding in the eighteenth century, and
Speaker 3: then in the nineteenth century after the Civil War, we
Speaker 3: have three amendments that refound the United States on the
Speaker 3: idea of democracy, multi racial democracy. Thirteenth Amendment ending slavery,
Speaker 3: Fourteenth Amendment guaranteeing birthright citizenship and equal protection, and the
Speaker 3: fifteenth Amendment guaranteeing a right to vote for at least.
Speaker 2: From me free from racial discrimination.
Speaker 3: Now, what the Court did here was it just ignored
Speaker 3: a huge part, maybe the main part of that second founding,
Speaker 3: which is the idea that you can't act based on
Speaker 3: racial base. It just ignored him.
Speaker 2: And so that's really the bottom line of this case.
Speaker 1: That's why the hero of this said ruling for me
Speaker 1: is Justice Selena Kagan. In her descent, she argued that
Speaker 1: these allegations of discriminatory motive deserve a lot more scrutiny,
Speaker 1: and because they didn't get it, she elected heroically. Everybody
Speaker 1: needs to read this. Everybody needs to read this. In
Speaker 1: her discent, she decided to make sure the Supreme Court
Speaker 1: record recorded the actual racist lies of the president. She writes, so,
Speaker 1: here are some of those statements. Haitians are reading the dogs,
Speaker 1: they're reading the cats, they're eating the pets of people
Speaker 1: that live in Springfield, and she goes through everything Donald Trump.
Speaker 1: Haitians in the US probably have aids Haiti is a
Speaker 1: shithole country, which is filthy, dirty and disgusting. Haitians are
Speaker 1: poisoning the blood of our country. Why do we only
Speaker 1: take people from shithole countries like Haiti and Somalia? Justice
Speaker 1: Kagan nailed it. She listed verbatim Trump's specific acts of
Speaker 1: racism that are deeply relevant in this case, and I'm
Speaker 1: just so grateful someone in a position of authority finally
Speaker 1: acknowledged the stark, black and white of the racism that's
Speaker 1: been out there in front of us all this time.
Speaker 1: Seemed like it made a Ledo quite angry that she
Speaker 1: did that.
Speaker 3: You know, even when you haven't won, there's a sense
Speaker 3: in which telling the truth is a kind of victory.
Speaker 3: And we're going to talk with Joyce Vance about how
Speaker 3: to have resilience in the face of threats to democracy
Speaker 3: while they're.
Speaker 2: Seeing it right there, tell the truth.
Speaker 3: I do think there's a frightening parallel with Trump's first term,
Speaker 3: which is that we also had a travel ban case,
Speaker 3: the case that I was involved with writing an amicus
Speaker 3: brief that was with several colleagues that was cited by
Speaker 3: Justice Soda Mayora in the Descent.
Speaker 2: She did a similar thing. She went back over.
Speaker 3: All of his tweets and talked about how, yes, this
Speaker 3: is the same guy who's engaged in a travel band
Speaker 3: that called for a complete and total shutdown of Muslim
Speaker 3: immigration into the United States. And we talked with Kate
Speaker 3: Shaw by the way, about this case in that about
Speaker 3: this issue. But there really is a direct parallel both
Speaker 3: in the violation of the equal Protection Clause and the
Speaker 3: racism of the president, explicit racism. And then here's the
Speaker 3: unfortunate parallel in the cover up by the majority refusing
Speaker 3: to do anything about it, refusing really to enforce the
Speaker 3: law against racism that is the fourteenth Amendment.
Speaker 2: Yeah.
Speaker 1: Maybe the scariest ruling quiry, maybe the one that impacts
Speaker 1: our lives the most, came on Tuesday, on the last day,
Speaker 1: where the court lifted limits on how much political parties
Speaker 1: can spend on advertising and other expenses in coordination with
Speaker 1: candidates six to three. You know it, the Dirty six.
Speaker 1: There are no more limits on campaign spending. The last
Speaker 1: remaining barriers between wealthy donors sending unlimited funds to federal
Speaker 1: political candidates has fallen. I don't really know how to
Speaker 1: wrap my brain around how big this is. Critics say
Speaker 1: this is going to allow the rich to have even
Speaker 1: greater control beyond Citizens United. Supporters say it's just protecting
Speaker 1: free speech.
Speaker 3: How do you re No, it is kind of a
Speaker 3: Citizens United on steroids. I mean it just you know,
Speaker 3: takes the argument there and expands it to eviscerate so
Speaker 3: much of what's remaining. I should say, you know, part
Speaker 3: of the recovery from the Nixon period was meant to
Speaker 3: be in campaign finance laws. Nixon, you know, money was
Speaker 3: coming from all over the place. You hear them on
Speaker 3: the tape saying, Oh, we need to cover up Watergate.
Speaker 3: Don't worry, I'll get the money. Essentially, I'm going to
Speaker 3: find you know, campaign money wherever I want it. And
Speaker 3: the idea of this sort of open corruption was meant
Speaker 3: to be curbed by laws that said, you know, we're
Speaker 3: going to control how this money is spent, we're going
Speaker 3: to document it, we're going to have transparency. And what
Speaker 3: the court did here is it took limits, sensible limits
Speaker 3: on how much money there can be given by the
Speaker 3: national parties to candidates and coordinated contributions, combined with you know, strategy,
Speaker 3: and said, you know, this is an area where we're
Speaker 3: not just going to allow unlimited money to the parties
Speaker 3: themselves to then flow unlimited to the candidates. And yet
Speaker 3: all of a sudden, let's just get to what their
Speaker 3: argument is. The majority is saying here, well, this right
Speaker 3: to free speech, which I thought was actually about talking,
Speaker 3: is actually about how we structure our elections which I
Speaker 3: thought I should say too, I'm being sarcastic. It's not
Speaker 3: that I think what I know the idea of the
Speaker 3: First Amendment is about is enabling democracy, and it's not
Speaker 3: compatible with an idea of the First Amendment that is
Speaker 3: meant to be part of our democratic rights to allow
Speaker 3: that idea to corrupt the way our system works. And
Speaker 3: that's exactly what's happened here, that they're just expanding and
Speaker 3: expanding the First Amendment to basically make almost no room
Speaker 3: for campaign finance reform.
Speaker 2: And yes they're.
Speaker 3: Saying that, So what's I mean one thing you know,
Speaker 3: you just have to come back to, and I think
Speaker 3: it just sounds ridiculous, but I'll say what their argument
Speaker 3: is that the coordination the speech of the of the
Speaker 3: political parties of RNC or the DNC and specific candidates,
Speaker 3: that that's the speech that's being violated by these campaign
Speaker 3: finance limits.
Speaker 2: You know, if that's.
Speaker 3: Valuable speech, it's not as valuable as saving our democracy.
Speaker 3: So it's just an area where you know, yes, this
Speaker 3: is what they've said, Well, we'll keep talking about it
Speaker 3: on this show, but it is a destructive moment.
Speaker 2: Citizens United was destructive.
Speaker 3: Citizens United didn't give rise to super packs, but it
Speaker 3: gave the ballast to a lower court opinion that did
Speaker 3: protect super packs, which of course can spend unlimited amounts
Speaker 3: of money in independent expenditures.
Speaker 1: One question I have is Republicans cheating the midterms. They're
Speaker 1: just helping their own party cheat in the midterms. That's
Speaker 1: all they're doing, Corey and.
Speaker 3: One Just sorry, John, to throw are bad news onto
Speaker 3: the fire. But why would these independent expenditures have to
Speaker 3: remain independent? Isn't there a free speech right of super
Speaker 3: packs to coordinate with campaigns? I think that's what they
Speaker 3: might be headed to saying next. So they've been citizens united,
Speaker 3: you know in the independent expenditure. No, we might be
Speaker 3: talking about coordinated expenditures very soon.
Speaker 1: It's completely coordinated. Yeah, that's how it is now. We've
Speaker 1: only got like a minute before the break, but really quick, Corey.
Speaker 1: The court also ruled that states may count mail ballots
Speaker 1: arriving after election day if they're postmarked on time. How shocking.
Speaker 1: Justice Barrett wrote that federal election statue was established when
Speaker 1: a vote must be cast, not when it must be received.
Speaker 1: This wasn't really controversial. It just upset people who want
Speaker 1: to cheat.
Speaker 3: Correct, We talked about this case as well. We'll keep
Speaker 3: talking about it. It's one of those issues where, look,
Speaker 3: election day means get your ballot in by then, or
Speaker 3: cast your vote by then. It doesn't mean that the
Speaker 3: ballot has to be received or counted by election day.
Speaker 3: And yet the words were being twisted by pro Trump
Speaker 3: forces that wanted to obviously win an election. And it
Speaker 3: was another one of these cases where I thought to myself, Wow,
Speaker 3: the text is so clear, it's not about counting ballots
Speaker 3: or receiving them. And the Supreme Court agreed thankfully that
Speaker 3: you know, wasn't totally totally crazy.
Speaker 1: We didn't even have time to talk about the good
Speaker 1: news Egen Carol got this week. Let's take a quick break.
Speaker 1: We'll be right back with the One and Only Joyce Span.
Speaker 1: This is the Oath in the Office.
Speaker 3: Hi everyone, it's Corey again. This time I'm jumping on
Speaker 3: to let you know about the Oath in the Office Substack.
Speaker 3: If you're not on substack, you should be and check
Speaker 3: it out. What we're doing every week is taking our
Speaker 3: stories that we're talking about, taking the interviews that we're
Speaker 3: talking about, and we're providing some context and we're also
Speaker 3: providing links to different articles that really explain the issues.
Speaker 3: So the Oath in the Office Substack, check it out.
Speaker 1: Welcome back to the Oath in the Office, Professor. I'm
Speaker 1: incredibly excited about this next guest, Do you have some
Speaker 1: magic in your rolodex?
Speaker 3: What a pleasure to invite and have join us Joyce
Speaker 3: Vance on this historic day. As you'll see, her book
Speaker 3: couldn't be more on point. What she has to say
Speaker 3: about the cases that we've been talking about and about
Speaker 3: the book itself really belong in this historic week. Joyce Vance,
Speaker 3: of course, is a former us A term for the
Speaker 3: Northern District of Alabama. She's a professor at the University
Speaker 3: of Alabama Law School. You've seen her on television on
Speaker 3: MS now. She is, to my mind, one of the
Speaker 3: best legal commentators out there. It's been my pleasure to
Speaker 3: be on with her, including on Morning Joe. First interview
Speaker 3: I gave in my book, The Oath in the Office
Speaker 3: came out way back, and I'm especially pleased to introduce
Speaker 3: her book, a best selling book, Giving Up is Unforgivable,
Speaker 3: a manual for keeping democracy. So welcome to The Oath
Speaker 3: in the Office.
Speaker 1: Joyce Fans, thank you all so much.
Speaker 4: For having me. You're right, what a great day to
Speaker 4: be talking about democracy as she's.
Speaker 3: I mean, I have to ask you, just as a
Speaker 3: way of jumping off that one of the things that
Speaker 3: you say very early on in this important book, which
Speaker 3: really fits the theme of this podcast so well, because
Speaker 3: it's both honest about the assault on democracy that we're
Speaker 3: seeing from Donald Trump, but it's also a deeply hopeful
Speaker 3: book about our institutions and about our resilience as a democracy,
Speaker 3: and about the value of democracy itself.
Speaker 2: So we're kindred spirits. You begin early on by talking.
Speaker 3: About Donald Trump's attempt to revoke birthright citizenship through executive order,
Speaker 3: and you talk about it as an assault on democracy.
Speaker 3: So I have to just ask you in the beginning
Speaker 3: for your reaction to the ruling today.
Speaker 1: Yeah.
Speaker 4: So I wrote a piece earlier this week and I said,
Speaker 4: when the Supreme Court rules against Donald Trump on birthright citizenship,
Speaker 4: do not clap right. This is not a proud moment
Speaker 4: for the Supreme Court, which could have ended this case
Speaker 4: months ago when it showed up on the shadow docket.
Speaker 4: In fact, litigants invited them to. This should have been
Speaker 4: a nine zero decision. It was not the fourteenth Amendment
Speaker 4: is clear, and it has been clearly interpreted since it
Speaker 4: was adopted. And the fact that there's any dispute about
Speaker 4: this let alone. And we've had so many opinions crammed
Speaker 4: down in the last couple of days. But I believe
Speaker 4: it's sam Alito in dissent who engages in some handwringing
Speaker 4: and talks about Terri's path we're walking down. Look, this
Speaker 4: is just it's just crazy talk, and I think it's
Speaker 4: a symbolic of how deeply democracy has been degraded.
Speaker 1: Yeah, I was telling the professor earlier in the broadcast,
Speaker 1: we had essentially three, maybe four justices arguing that a
Speaker 1: chief executive is now allowed to change the Constitution through
Speaker 1: executive degree if he's Republican. And that's why I'm so
Speaker 1: grateful to have you here, because one of the great
Speaker 1: themes throughout your book is that democracy, as we like
Speaker 1: to describe it, it isn't self executing. It completely depends
Speaker 1: on us keeping it alive and using it. And we've
Speaker 1: grown up hearing that these institutions are strong enough to
Speaker 1: withstand almost anything. But it feels like one of the
Speaker 1: grand themes of your book is how that assumption has
Speaker 1: really been fundamentally challenged over the past decade, with all
Speaker 1: the tattered duct tape holding these guardrails together. How are
Speaker 1: they looking to you? This week?
Speaker 4: You know, I teach a class on democratic institutions at
Speaker 4: the law school, and something that happens predictably every semester.
Speaker 4: We begin by talking about the institutions and what are
Speaker 4: they and how do they work, and we sort of
Speaker 4: reach the preliminary conclusion that they're the architecture that democracy
Speaker 4: is draped on top of that it's how it functions.
Speaker 4: And then at some point long about class four or five,
Speaker 4: a brave student will raise their hand and tentatively offer
Speaker 4: the notion that the institutions, in many ways are the
Speaker 4: people that populate them. And that's a very astute observation
Speaker 4: and something that we're seeing in practice now. American democracy
Speaker 4: is built on a number of assumptions, and one of
Speaker 4: them is that a sufficient number of people of good
Speaker 4: faith will be trying to execute democracy at any given moment.
Speaker 4: And so in many ways, the tests that our institutions
Speaker 4: are facing are personal challenges for individuals who find themselves
Speaker 4: in these roles in a moment that demands exceptional bravery.
Speaker 4: Some of them are to the moment, we've seen United
Speaker 4: States attorneys walk away from treasured careers, and others of
Speaker 4: them flunk the test entirely willing to sacrifice their integrity
Speaker 4: and democracy just for another ten minutes of fame in
Speaker 4: Donald Trump's orbit. So that, I think is the test
Speaker 4: that the Institution's face in many ways.
Speaker 3: I have to ask you, Joyce about you know, couldn't
Speaker 3: agree more about the need for citizens to defend democracy,
Speaker 3: but of course it's difficult when you have a Supreme Court.
Speaker 3: And I also were in heated agreement about the fact
Speaker 3: that one of the travesties of today is that that
Speaker 3: birthright citizenship case, of course.
Speaker 2: Should have been unanimous.
Speaker 3: And not only did we have the three descents, but
Speaker 3: we also had Brett Kavanaugh saying that the Constitution itself
Speaker 3: doesn't protect birthright citizenship, only a statute does.
Speaker 2: Another moment of really.
Speaker 4: Which just really horrible, right, because it leaves open the
Speaker 4: possibility there's your challenges. It's like Kavanaugh was trying to
Speaker 4: have his cake and eat it too, and.
Speaker 1: I exactly exactly go into the fifties.
Speaker 3: Yeah, I mean to me, it is an invitation to
Speaker 3: Congress to try again.
Speaker 2: You know.
Speaker 3: Now, on the one hand, they don't have five votes
Speaker 3: to uphold a statute that would revoke birthright citizenship. But
Speaker 3: Kevin was essentially saying, well, maybe I could get an
Speaker 3: extra vote, and you know, on that statutory question, and
Speaker 3: I don't think he could. But there is a kind
Speaker 3: of worry, So I guess you know on this balance
Speaker 3: of And I love in your book too, of course,
Speaker 3: you tell the story of Benjamin Franklin saying, you know,
Speaker 3: the institutions won't hold in the end if people won't
Speaker 3: demand it. So a republic, if you can keep it
Speaker 3: that brilliant moment in American history.
Speaker 2: What do we do though, and I know.
Speaker 3: You've been talking about this on your own shows, when
Speaker 3: the Supreme Court really does directly undermine democracy itself, and
Speaker 3: I'm thinking in particular about the use of the First
Speaker 3: Amendment to really eviscerate so many of the reforms that
Speaker 3: we did get when we demanded our own democracy.
Speaker 2: So yes, as listeners know and have.
Speaker 3: Heard me talk about, after the crisis, there was a
Speaker 3: push for all sorts of reforms, the creation of the
Speaker 3: Independent Council, National Emergencies Act, but also campaign finance reform,
Speaker 3: and we've had some really important pieces of legislation where
Speaker 3: citizens have done exactly what you're calling for. But yet
Speaker 3: in this FC case, what we have is the expansion
Speaker 3: of the First Amendment to really shut down the kind
Speaker 3: of limits on excessive corruption, on limits on campaign funds flowing.
Speaker 2: So, I mean, what do you make of that? And
Speaker 2: how I want? Hope?
Speaker 3: But I also been looking in that case. I'm feeling
Speaker 3: kind of down.
Speaker 4: So do I get a whole semester to answer that?
Speaker 4: I mean, look, this is not a great day. I
Speaker 4: don't know, y'all might be a PG rated podcast on No, No.
Speaker 1: Dis encouraged, dis encouraged, feel free, please.
Speaker 4: It has been a long week. N R s C
Speaker 4: versus FEC, the case that you just referred to, this
Speaker 4: terms campaign finance case was a sleeper case that not
Speaker 4: a lot of people have been talking about. But I
Speaker 4: singled it out early on as one of the cases
Speaker 4: that I was the most concerned about because much like
Speaker 4: we've seen this one two punch where the Supreme Court
Speaker 4: knocked out the Voting Rights Act Shelby County versus Holder
Speaker 4: in twenty eleven, twenty thirteen, I'm losing my grip on
Speaker 4: the dates there and then this term, of course, we
Speaker 4: saw Calai, which made it open season for political and
Speaker 4: probably racial gerrymandering too. By that same token, we've seen
Speaker 4: a one to two punch on campaign finance. You know,
Speaker 4: we saw Citizens United the First Act, and today we
Speaker 4: saw the case the second Act that has said open
Speaker 4: coordination between political parties and candidates is fine. That really
Speaker 4: blows the lid off the limits on individual contributions to
Speaker 4: campaigns and says dark money can go all the way.
Speaker 4: And of course that benefits Republicans who have this huge
Speaker 4: chest compared to what the DNC has on hand. So
Speaker 4: this is nothing other than letting the powerful, who already
Speaker 4: have far too much control in our society governing our politics.
Speaker 1: Right aristocracy.
Speaker 4: I mean, let me put a fine point on that.
Speaker 4: We are at a demographic moment in this country where
Speaker 4: within the next few decades we will be a majority
Speaker 4: minority country, and that's frightening to a lot of people
Speaker 4: who want to hold onto power for a variety of reasons.
Speaker 4: Permitting money to have more rights than people is one
Speaker 4: way of holding onto power. And so I think this
Speaker 4: is a case we should be incredibly concerned about because
Speaker 4: it's one way of really altering the trajectory of our
Speaker 4: elections but still being able to say, I guess if
Speaker 4: these folks can say it with a straight face, well,
Speaker 4: you know, we're still conducting free and fair elections at
Speaker 4: the same time that they use these fake, these phony
Speaker 4: allegations about voter fraud that have been dis time and
Speaker 4: time again to adopt measures that suppress the rights of
Speaker 4: people who are eligible United States citizens to vote. So
Speaker 4: it's sort of like on both sides, they're trying to
Speaker 4: unbalance the scales of democracy.
Speaker 3: Right, You, on the wet hand, claim this fake voter
Speaker 3: fraud at the same time that there is real corruption
Speaker 3: of course that comes with campaign contributions, and then you
Speaker 3: simply deny that that would be a reason to have
Speaker 3: limits on the way money funds elections.
Speaker 2: I mean, Joyce, do you have any thoughts?
Speaker 3: I mean, one of the really depressing things of course
Speaker 3: here is that this is a constitutional argument about the
Speaker 3: First Amendment and why it blocks off all sorts of
Speaker 3: paths of sensible campaign finance restrictions. So what do you see.
Speaker 3: I mean, of course, one possibility is an amendment that
Speaker 3: would reverse not just citizens United but this case as
Speaker 3: well amendments are very hard to get through. There's public financing.
Speaker 3: I mean, do you have a way forward for us?
Speaker 3: I'm looking for the hope in all of this, you know.
Speaker 4: So this case came down this morning. I'm going to
Speaker 4: have to confess that I have not yet read it
Speaker 4: as carefully as I should, and I want to slice
Speaker 4: and dice it before I get there. There's still a
Speaker 4: number of proposals floating around post Citizens United and as
Speaker 4: you point out, because it's a constitutional argument, many of
Speaker 4: them hinge on an amendment. Some cases are wrongly decided
Speaker 4: from their inception and can be reversed by a court.
Speaker 4: That might be my preferred path, but that's a long
Speaker 4: range strategy. I think the important issue here. And look,
Speaker 4: this is going to sound a little bit pollyannish, so
Speaker 4: I'm going to own that before I go down this path.
Speaker 4: We have to be a country where people understand that
Speaker 4: who you vote for in an election, that's a political choice,
Speaker 4: and it's up to parties and candidates to fight for
Speaker 4: our votes. But your ability to vote, your ability to
Speaker 4: vote in a free and fair environment, that's a fundamental
Speaker 4: element of democracy. And if we lose that, we see
Speaker 4: far too much of our country and who we are.
Speaker 4: It's no longer popular this notion that people should go
Speaker 4: to Congress and come together and work for the good
Speaker 4: of the American people. You know, there was a congressman
Speaker 4: who I won't bother to name, who was quoted earlier
Speaker 4: this week saying I didn't go to Washington to compromise
Speaker 4: with Democrats. I went to beat them. We had a
Speaker 4: little bit too much of that mentality. And you know,
Speaker 4: I take hope from the fact that in Michigan, when
Speaker 4: it came to this notion of how they should draw
Speaker 4: their maps, their voting maps up there, they decided on
Speaker 4: a bipartisan commission that would work together to do that.
Speaker 4: In Michigan ers seem to be really happy with that outcome.
Speaker 4: We cannot give up on the notion that people can
Speaker 4: work together. We have to be clear on it. There
Speaker 4: are many people who don't want to do that.
Speaker 2: But this is a.
Speaker 4: Great moment with midterm elections coming up. Every member of
Speaker 4: the House House to vote, and you know, you don't
Speaker 4: have to be a Democrat or a moderate or an
Speaker 4: independent to believe that you should be represented in Washington
Speaker 4: by someone who's committed to American democracy. Nobody knows who
Speaker 4: you vote for when you go into your polling place.
Speaker 4: That's between you and the good Lord. And so if
Speaker 4: you have a moment of conscience where you want to
Speaker 4: preserve democracy for your kids, this might be a moment
Speaker 4: to vote for democracy and not for party.
Speaker 1: Sadly, what scares me the most is going back to
Speaker 1: Obama's first term that for many in the House, bipartisanship
Speaker 1: and working with the other side is a gateway to
Speaker 1: being primaried. And we saw with Eric Cantor who went
Speaker 1: every week to the Obama White House and said no
Speaker 1: to everything, and then Dave brad primaried him, saying, can
Speaker 1: you believe that Eric Canter goes and meets with that
Speaker 1: Obama every single week? They'll always find a way to
Speaker 1: bring someone more fascistic when bipartisan cooperation, which our system
Speaker 1: is based on, is so demonized. But you've spoken so
Speaker 1: beautifully about the expansion of executive authority, and it's true
Speaker 1: what unites these people, these authoritarian males. They need strong men, rulers.
Speaker 1: I want to ask you to speculate, willing to how
Speaker 1: do you feel about these new legal doctrines surrounding presidential power?
Speaker 1: Are going to reshape the office after Donald Trump eventually leaves,
Speaker 1: because I can imagine these rulings if a Democrat was
Speaker 1: serving as chief executive right.
Speaker 4: Now, I mean that last clause says everything right. The
Speaker 4: existential question that we face does the Supreme Court really
Speaker 4: believe in the unitary executive theory or does it only
Speaker 4: believe in the unitary executive theory when a Republican is
Speaker 4: the president? Do Republicans believe in the unitary executive theory
Speaker 4: or will they roll it back as soon as you know,
Speaker 4: take your pick AOC is the president in twenty twenty nine.
Speaker 4: I'm a skeptic about govermitment to this policy. You know,
Speaker 4: this is a party of family values and law enforcement,
Speaker 4: and we see where that's gotten them. So let me
Speaker 4: just say I'm looking for the exceptions to start rolling.
Speaker 4: And here's a great example. These two decisions that we
Speaker 4: saw yesterday, Slaughter and Cook both decisions about when a
Speaker 4: president could hire the leader or a member of an
Speaker 4: executive quasi independent board created by Congress. You know, Cook
Speaker 4: on the FED and Slaughter on the FTC. Longstanding a
Speaker 4: ninety year president out of the FTC from the New
Speaker 4: Deal era that says the president absolutely cannot fire without
Speaker 4: cause just because he doesn't like, you know, a holdover
Speaker 4: from a prior administration, in essence, doesn't like their politics,
Speaker 4: their personality, how they look. That president was absolutely clear,
Speaker 4: and the Supreme Court shot it dead. Everybody knew that
Speaker 4: they were going to do it in slaughter. Donald Trump
Speaker 4: can fire whoever he wants. Donald Trump, by the way,
Speaker 4: was quick to seize that moment on truth social you know,
Speaker 4: beating his chest. Now I'm more powerful than ever. But
Speaker 4: then the Supreme Court dropped a little asterisk except for
Speaker 4: the FED because we're worried about our own personal finances.
Speaker 4: I mean, they didn't say that part, but you didn't
Speaker 4: have to really listen very hard to hear it. Brett
Speaker 4: Kavanas sort of came along and set it in concurrence. Right,
Speaker 4: But if we let Trump fire multiple people on the
Speaker 4: FED at once, the world financial markets they could be
Speaker 4: thrown into turmoil.
Speaker 1: That that's it, man.
Speaker 4: You know, thanks, at least you said the quiet part
Speaker 4: out loud on podcasts.
Speaker 1: Still, the aristocracy protecting itself in both rulings.
Speaker 3: It's such an important, such an important point because you know,
Speaker 3: we've heard from the dissenters the refrain, Look, this isn't
Speaker 3: an ordinary president. It's a president that is really intent
Speaker 3: on destroying democracy. And you know, a normal president doesn't
Speaker 3: issue in executive order trying to revoke the fourteenth Amendment.
Speaker 3: And of course that's what we have faced. And so
Speaker 3: you have this sort of pretend going on with Justice
Speaker 3: Roberts and the majority in the FTC came which is saying, oh,
Speaker 3: you know, we have to be neutral about who the
Speaker 3: president is. And in fact Barrett at some point and said, well,
Speaker 3: I pretend it's not the president that we currently have,
Speaker 3: but the president of a different party.
Speaker 2: And the way that you see, first of all, how
Speaker 2: can that be? You know, the idea I used.
Speaker 3: To teach of Corus Humphreys Executor and Myers and all
Speaker 3: these cases, and they were a little boring, because if
Speaker 3: you have a benign president, it's not a big deal.
Speaker 3: But if you have a president that's really trying to
Speaker 3: destroy democracy and establish a dictatorship, it's a really big deal.
Speaker 3: And as much as you hear them saying on Service,
Speaker 3: I love this point.
Speaker 2: Well, when it comes to.
Speaker 3: The really important independent agency, the Federal Reserve, that if
Speaker 3: the president controls it, could destroy not just our economy
Speaker 3: but the world economy, and they're they're willing to say, well,
Speaker 3: we're not crazy.
Speaker 2: We're not going to give you a legal argument.
Speaker 3: And if there is a legal argument in there, I
Speaker 3: haven't founded. There's some stuff about how the Federal Reserve
Speaker 3: dates back to the founding and different banks of the
Speaker 3: United States that.
Speaker 2: Were predecessors, but what's the legal argument.
Speaker 3: Well, the reality is that it's a fear of authoritarianism.
Speaker 2: So yeah, I mean, how joyce is.
Speaker 3: Do we get that idea out? I guess you've said
Speaker 3: it pretty.
Speaker 2: Plainly, But I mean, what do we do?
Speaker 3: I do find it very challenging and teaching and talking
Speaker 3: about this that the real reasons that the court is
Speaker 3: using for its decisions aren't explicit, that they're hiding them.
Speaker 3: And I can't think of a better example than these
Speaker 3: two cases.
Speaker 2: So what do we do? We just call it out,
Speaker 2: we talk about how things should be.
Speaker 4: Or you know, do you remember when Low or Bright
Speaker 4: came down and I was having a conversation with a
Speaker 4: number of friends who teach whether you call it exational
Speaker 4: law administrativemocrisy, right, and everybody was like, well, shit, I'm
Speaker 4: going to have to tear up my syllabus. You know.
Speaker 4: You know, I come from a family of judges. My
Speaker 4: father in law was on the Eleventh Circuit, my husband
Speaker 4: was a state court judge. I have this sort of
Speaker 4: innate respect for the judiciary, and it really troubles me
Speaker 4: that I'm losing that, not for district judges, because I
Speaker 4: have just unbelievable regard for the federal district judges, the
Speaker 4: state judges across the country, no matter who put them
Speaker 4: on the bench. You know, there are some fabulous Trump
Speaker 4: appointees out there just trying to do their damn jobs
Speaker 4: and rule on the basis of the law and the
Speaker 4: facts and maintain the constitution that served us so well.
Speaker 4: It's so easy to take the rule of law for
Speaker 4: granted because it's worked so smoothly. There have been some
Speaker 4: bumps in the road right at Civil War, but it's
Speaker 4: mostly worked really well for us for two hundred and
Speaker 4: fifty years.
Speaker 1: We have this.
Speaker 4: Incredible stability, We have this incredible financial opportunity. Is it perfect,
Speaker 4: absolutely not. Is it accessible to everyone, absolutely not? But
Speaker 4: we have been able to be a country that aspires
Speaker 4: to always do better in large part because of this
Speaker 4: bedrock rule of law. That we all take for granted.
Speaker 4: And now we're finding out what happens when the courts
Speaker 4: are so comfortable, the courts, the Supreme Court so comfortable
Speaker 4: that it's willing to in many ways join forces with
Speaker 4: the president who wants to direct the future of the
Speaker 4: country and sit back and let that happen. And it's
Speaker 4: an abomination. It's just we're going to have to be
Speaker 4: a country that develops the moral courage to have these
Speaker 4: difficult conversations with people we don't see eye to eye
Speaker 4: to right, everybody's had the experience of somebody that they
Speaker 4: have just given up on because they can't take the
Speaker 4: magabs anymore. And most people like me have had the
Speaker 4: experience of having close friends or family members who started
Speaker 4: out as Trump voters who at some point something was
Speaker 4: a bridge too far for them and they wanted a
Speaker 4: way back. And the challenge for people like us is
Speaker 4: to not cut those people off at the knees, to
Speaker 4: not hold where they were against them, but instead to
Speaker 4: try and go ahead and draw a circle big enough
Speaker 4: for everybody to stand on.
Speaker 1: So we, oh, don't don't keep democrats from destroying a
Speaker 1: better coalition, Please, don't we Democrats love destroying the possibility
Speaker 1: of a larger coalition.
Speaker 4: You know, in many ways, Democrats, we are our own
Speaker 4: worst enemies, right, you know, just think in bumper stickers,
Speaker 4: if for letter phrases, but damn we insist on having
Speaker 4: these big, complicated ideas and thinking about what's best for everybody,
Speaker 4: not just for us personally. If only we could be,
Speaker 4: you know, more like Republicans, but thank goodness, we aren't.
Speaker 1: You know, some people hear this phrase protect democracy and
Speaker 1: they assume it means, Okay, I've got to be politically
Speaker 1: active every day. But in the book you argue that no.
Speaker 1: I mean, civic engagement takes many forms, and one thing
Speaker 1: I appreciated about the book is that it doesn't stop
Speaker 1: it just to diagnosis. You offer homework. What are some
Speaker 1: meaningful ways our listeners can contribute that don't require running
Speaker 1: for office or necessarily going to protest marches? What do
Speaker 1: you recommend for the concerned citizen right now?
Speaker 4: I mean, I think people should do what comes naturally
Speaker 4: and what they're passionate about. You know, I have friends
Speaker 4: who are knitters who have engaged in all sorts of
Speaker 4: fabulous protests work through their knitting, but they've done more
Speaker 4: than just protests. They've educated people. Right, you had in
Speaker 4: public and somebody asks about it, and the next thing
Speaker 4: you know, you're talking about the red hats that were
Speaker 4: symbolic in Norway during World War Two. I have a
Speaker 4: friend who's a musician who wrote a beautiful protest song
Speaker 4: that was sung by a lot of people when they
Speaker 4: marched at the No Kings marches. You know, some people
Speaker 4: write books. Some people decide to volunteer in elementary schools
Speaker 4: and go and read to school kids. Some people will
Speaker 4: pack meals at food banks. I think there's a way
Speaker 4: that we can all contribute to democracy. And for some
Speaker 4: people it might be overtly political, and for other people
Speaker 4: it'll be different. And I'll just tell you one of
Speaker 4: my best friends from my time as a prosecutor. He
Speaker 4: and his wife, and they are I think liberal by nature,
Speaker 4: but their form of activism is to volunteer with the
Speaker 4: Red Cross. And so when people have emergencies, whether it's
Speaker 4: a fire, whatever it is that happens, they actually get
Speaker 4: out of their comfortable beds at two in the morning
Speaker 4: and go to where those people are and help them
Speaker 4: find stability immediately after a crisis. And if that's not
Speaker 4: a beautiful way of supporting this country. Then I don't
Speaker 4: know really what is and it's so perfect for them
Speaker 4: and who they are, they couldn't have found anything better.
Speaker 4: The challenge, I think, euch of us is to find
Speaker 4: what are you suited into doing?
Speaker 2: Amen.
Speaker 3: I have a couple questions I'm eager to ask you.
Speaker 3: I mean one, I do want to ask you about
Speaker 3: the Watson case and election day, and I know you've
Speaker 3: been thinking about it. But I just following up on
Speaker 3: this conversation, this last exchange with John. I mean, are
Speaker 3: there lessons too, concrete lessons you, of course were US
Speaker 3: attorney in a major position in a red state, And
Speaker 3: are there lessons from that period of time that inspire
Speaker 3: you that you think that we can draw on. We
Speaker 3: think of you know, red and blue, so at odds,
Speaker 3: and yet my senses having done that so successfully, that
Speaker 3: you must have seen things and done things that we
Speaker 3: can draw on for inspiration when it comes to thinking
Speaker 3: about getting past this awful moment.
Speaker 4: Yeah, I mean, I continue to think we have a
Speaker 4: lot more in common than we have that divides us.
Speaker 4: And the trick here is understanding that the people that
Speaker 4: are trying to drive wedges between Americans. You have to
Speaker 4: think about why are they doing that and what do
Speaker 4: they stand to benefit from in that process? And that's
Speaker 4: typically people who want to seize power make money, and
Speaker 4: they do it best by dividing the rest of us
Speaker 4: and making us afraid of each other. And so it's
Speaker 4: interesting because my reality is a US attorney and a
Speaker 4: very I was in the proverbial blue dot in a
Speaker 4: red state, Birmingham, very democratic county wide, almost all of
Speaker 4: the elected officials are Democrats. Statewide, the reverse is true,
Speaker 4: and yet I have such great partners in state and
Speaker 4: local entities to work with. For one thing, we worked
Speaker 4: heavily with the faith based community, and that was across
Speaker 4: the spectrum. We worked with the Muslim community and the
Speaker 4: Christian community, the Jews, you know, the Sikhs. That was
Speaker 4: a rich source I think of support for our community,
Speaker 4: and many people who had not been exposed to each
Speaker 4: other before learned that really, at the end of the day,
Speaker 4: we just all wanted to do what we could to
Speaker 4: make sure our kids had better lives. You know that
Speaker 4: there was that progression, and that's a real eye opening
Speaker 4: moment for people who might think that they don't have
Speaker 4: very much in common with somebody else. But I also
Speaker 4: learned that there were issues that we could work on.
Speaker 4: Criminal justice reform tremendously popular across the spectrum, and so
Speaker 4: we did a lot of work on helping people when
Speaker 4: they left prison and returned to their communities to succeed,
Speaker 4: because if people return to criminality because they can't get
Speaker 4: a job or find a place to live, nobody really
Speaker 4: benefits from that. And so we were able to work
Speaker 4: with everybody from businesses that frankly in a difficult market
Speaker 4: where they just could not find employees for jobs that
Speaker 4: they needed, were willing to step out a little bit
Speaker 4: and maybe consider training people who had been incarcerated to
Speaker 4: do these jobs. And the same token, you know, groups,
Speaker 4: traditional civil rights groups also wanted to engage on those issues.
Speaker 4: And it was a delightful exercise in finding what we
Speaker 4: had in common and worrying a lot less about where
Speaker 4: we were different.
Speaker 3: Yeah, there's a sort of guidance that comes from thinking
Speaker 3: about periods of time where people were able to do policy,
Speaker 3: to work together to have the rule of law, you know,
Speaker 3: despite being around those who we don't agree with on
Speaker 3: partisan politics.
Speaker 2: And that brings me to the last question.
Speaker 3: I want to ask a case that I know you're
Speaker 3: thinking about that came down Watson versus the Republican National Committee.
Speaker 3: And this is, of course the case that comes out
Speaker 3: of Mississippi, a red state, about whether or not the
Speaker 3: protection of an election day means that ballots can be
Speaker 3: counted after election day.
Speaker 2: The Supreme Court, I think, and I take.
Speaker 3: It you agreed to the right thing here and they
Speaker 3: said there's nothing about the meaning of federal law that
Speaker 3: prevents the counting of ballots after election day. I mean,
Speaker 3: does this give you faith in the rule of laws?
Speaker 3: This is the kind of we talked about white birthright
Speaker 3: citizenship we have mixed feelings about because it was so obvious.
Speaker 2: How about this one. How does this leave you feeling
Speaker 2: and what are your thoughts about it?
Speaker 4: Well, look, I've never been so happy to be wrong.
Speaker 4: I did not believe that this was how the Supreme
Speaker 4: Court would rule, So it was in many ways a
Speaker 4: pleasant surprise. But I don't think we should overstate what happened.
Speaker 4: Just a spirit made it clear that it was a
Speaker 4: very narrow decision, and all she was saying was that
Speaker 4: the federal election day laws did not preempt Mississippi's ability
Speaker 4: to pass a law that said we're going to count
Speaker 4: votes after the day of the election, as with all
Speaker 4: things voting with this Supreme Court, that means that we
Speaker 4: can find, you know, down the road, that there's a
Speaker 4: successful challenge to early voting days, which is really what
Speaker 4: the stakes were in this case. A decision the other
Speaker 4: direction could have thrown everything into question. This is a
Speaker 4: court that has been pragmatic this term. I think that's
Speaker 4: a fair statement. Had this case come out the other
Speaker 4: way this close to the midterm elections, many secretaries of
Speaker 4: States had already begun, some of them quietly and privately,
Speaker 4: others more publicly, to say that they weren't sure how
Speaker 4: they would be able to administer elections. And so I
Speaker 4: think at the end of the day, a narrow majority
Speaker 4: was cobbled together in an effort to keep from throwing
Speaker 4: this election into open chaos. You know, there's already plenty
Speaker 4: of chaos surrounding November. Maybe the Court said no Moss here.
Speaker 3: I think thank you so much, Joyce Vance for joining
Speaker 3: us on the oath in the office. It's been a
Speaker 3: show about hope and about the possibility of returning to
Speaker 3: a time when we can work to save our democracy.
Speaker 3: But we've also been brutally honest about what we're facing,
Speaker 3: and so we really are kindred spirits and trying to
Speaker 3: accomplish all these things.
Speaker 2: Thanks so much for joining.
Speaker 1: Us, and thank you for all the hope you've given
Speaker 1: so many Americans, Joyce, and for all of the civics
Speaker 1: lessons you've given so many as well.
Speaker 4: Well. Thank you so much for having me. You know,
Speaker 4: we're lucky to have the opportunity to talk with our
Speaker 4: fellow citizens like this. I'm constantly aware that with that
Speaker 4: it's fun right, it's great to get to talk with people,
Speaker 4: but it's also a heavy responsibility in this moment. So
Speaker 4: thank you for giving me the chance to share some
Speaker 4: thoughts with your listeners.
Speaker 1: Big thanks to Joyce Vance and Professor Bretschneider. What a
Speaker 1: packed show. My god, I'm glad the Supreme Court is
Speaker 1: going to give us a rest for a few months.
Speaker 3: Look, you know, the birthright citizenship is a huge victory.
Speaker 2: I'm so proud.
Speaker 3: I have to say John that we had that in
Speaker 3: depth conversation with Cecilia Wang Argue the case.
Speaker 2: Congratulations to her.
Speaker 3: I have to give a shout out to our sponsor,
Speaker 3: the ACLU, who were one of our first sponsors, and
Speaker 3: they're a huge victory here and to the American public
Speaker 3: because what the Supreme Court did here was it protected
Speaker 3: the Constitution and protected the Fourteenth Amendment and upsetting and
Speaker 3: so much of this assault on democracy is there's still
Speaker 3: is room for helpe and this is one of the
Speaker 3: places where we're seeing it.
Speaker 1: And I just want to thank Clarence Thomas for writing
Speaker 1: a ninety one page tantrum of petulant dissent because that
Speaker 1: was good for my comedy skills. In my heart, and
Speaker 1: just the fact that Trump keeps calling these judges his judges,
Speaker 1: his judges, but I guess they actually belong to the Constitution.
Speaker 1: Who knew? I mean, imagine buying three smoke detectors and
Speaker 1: then getting angry because they keep going off during a
Speaker 1: house fire that you started. That's what Donald Trump did.
Speaker 1: Corey Bretschneider, thank you very much for walking me through
Speaker 1: all of this. It's been very inspiring and discouraging. I'm
Speaker 1: hopeful and scared for what lies ahead. I hope we
Speaker 1: have a Congress coming in this year that will have
Speaker 1: the will to take on campaign finance reform. In the meantime,
Speaker 1: what's the best way for our listeners to follow you,
Speaker 1: professor and keep up with your work.
Speaker 2: Well, if you haven't pushed that subscribe button.
Speaker 3: Subscribe to us on Apple podcasts or Spotify or YouTube,
Speaker 3: be sure to push it. And John, I'd be remiss
Speaker 3: if I didn't mention, you know, Apple Tracks, at least
Speaker 3: on Apple what the top trending podcasts are and last
Speaker 3: week we were that tracks. Who's listening to it, you
Speaker 3: know as the podcast episode comes out for the specific episode,
Speaker 3: and what were we last week?
Speaker 2: We were number one? So thanks so much for that.
Speaker 1: Thank you, Corey. I want to thank Wendy and Beywolf
Speaker 1: and everyone who puts this beautiful monster together every week.
Speaker 1: You can hear me on Serious XM Progress every night
Speaker 1: or maybe every day by the time this ares who knows.
Speaker 1: And my book is called Separation of Church and Hate.
Speaker 1: One last plug. I have an article in the new
Speaker 1: issue of the Nation for America's two hundred and fiftieth birthday.
Speaker 1: It's a double issue. They have all kinds of great writers,
Speaker 1: from Jane Fonda to Reverend Barber, to zoor and Mamdani
Speaker 1: and even me for balance. My piece is called the
Speaker 1: Separation of Church and State and Erica's best idea, so
Speaker 1: please pick that up. Corey. We got through another Supreme
Speaker 1: Court season. Thank you, hold me and I can't wait
Speaker 1: to see what comes next. We'll see you guys next
Speaker 1: time on the oath in the office,