WEBVTT 1 00:00:10.240 --> 00:00:13.279 Welcome to another edition of The Oath and the Office Podcast. 2 00:00:13.320 --> 00:00:17.600 I am John Fugel Sang and friends. Something interesting just happened. 3 00:00:18.239 --> 00:00:21.440 A few hours before this recording. Donald Trump's biggest constitutional 4 00:00:21.480 --> 00:00:25.120 moonshot of his second term got rejected by Donald Trump's 5 00:00:25.160 --> 00:00:28.920 own Supreme Court. The judges he personally hired looked at 6 00:00:28.920 --> 00:00:30.839 his idea and said, you know what, We're going to 7 00:00:30.920 --> 00:00:34.280 go with the constitution instead. For more, let's go to 8 00:00:34.320 --> 00:00:36.479 the star of this show, the author of The Oath 9 00:00:36.520 --> 00:00:39.399 and the Office and the Presidents and the People, America's 10 00:00:39.439 --> 00:00:43.679 favorite IVY League, Polly Cybe, Professor Corey Bretschneider. Hello, Professor, 11 00:00:43.759 --> 00:00:44.240 good to see you. 12 00:00:44.799 --> 00:00:46.039 Hi John, good to see you. 13 00:00:46.320 --> 00:00:49.119 And of course we're going to start off talking about 14 00:00:49.159 --> 00:00:51.119 the amazing birthright citizenship case. 15 00:00:51.119 --> 00:00:52.560 Well, I shouldn't say amazing. 16 00:00:52.280 --> 00:00:55.560 Expected I've been saying for weeks now, and really months 17 00:00:55.600 --> 00:00:59.079 since it started, that the court really has no choice. 18 00:00:59.119 --> 00:01:01.679 It's so clear that the Fourteenth Amendment says that if 19 00:01:01.679 --> 00:01:04.159 you're born in the United States, you're a citizen. I 20 00:01:04.280 --> 00:01:06.799 urge listeners to go back and listen to our amazing 21 00:01:07.040 --> 00:01:10.719 discussion with the lawyer Cecilia Wang, who argued the case 22 00:01:10.760 --> 00:01:14.239 for the ACLU, and we dissect exactly why it had 23 00:01:14.280 --> 00:01:16.120 to be what it is. But there's a lot of 24 00:01:16.159 --> 00:01:18.719 disappointment today too, because you know, there should have been 25 00:01:18.799 --> 00:01:21.159 nine zero, and of course that pleasant and we'll talk 26 00:01:21.159 --> 00:01:23.480 about that, and then we'll have Joyce Vance on the 27 00:01:23.480 --> 00:01:26.840 podcast in the second half. She begins her book Giving 28 00:01:26.920 --> 00:01:30.959 Up Is Unforgivable by talking about why this executive order 29 00:01:30.959 --> 00:01:34.079 provoking birthright citizenship is nothing less than an attack on 30 00:01:34.120 --> 00:01:37.079 the Constitution. So she's really the perfect guest to join 31 00:01:37.200 --> 00:01:37.799 us today. 32 00:01:38.319 --> 00:01:41.040 Well, you know, Donald Trump spent years core acting like 33 00:01:41.040 --> 00:01:43.959 he could rewrite one hundred and fifty years of congressional 34 00:01:44.040 --> 00:01:46.439 law with the same sharpie he used to redraw a 35 00:01:46.480 --> 00:01:50.200 hurricane map in Alabama once, and constitution doesn't run on sharpie. 36 00:01:50.239 --> 00:01:53.879 Chief Justice John Roberts joined the three samee justices at 37 00:01:53.959 --> 00:01:57.719 Damy Cony Barrett Brett Kavanaugh concurred. I mean, imagine that 38 00:01:57.799 --> 00:02:00.640 for Donald Trump, professor like Trump watching the lineup like 39 00:02:00.640 --> 00:02:03.239 it's fantasy football, and he realizes that half of his 40 00:02:03.359 --> 00:02:06.680 draft picks switch teams. But it is a bit terrifying. 41 00:02:06.719 --> 00:02:09.759 It was only six to three, But from a constitutional standpoint, Corey, 42 00:02:09.919 --> 00:02:12.960 how significant is this ruling. Does this settle this issue 43 00:02:12.960 --> 00:02:14.400 at least for the foreseeable future. 44 00:02:15.120 --> 00:02:17.479 Look, they should have said it much sooner. There are 45 00:02:17.520 --> 00:02:19.520 a lot of people who had to wait in limbo 46 00:02:19.719 --> 00:02:21.960 for the court to say what's obvious, which is at 47 00:02:21.960 --> 00:02:25.280 the fourteenth Amendment, with a very narrow exception, says if 48 00:02:25.319 --> 00:02:28.120 you're born in the United States, we're a citizen. I'll 49 00:02:28.120 --> 00:02:31.879 say what that exception is. It says, subject to the jurisdiction. Well, 50 00:02:31.919 --> 00:02:34.800 as we talked about with Cecilia Wang, and we've argued 51 00:02:34.840 --> 00:02:38.319 on this podcast, subject to the jurisdiction is a very 52 00:02:38.439 --> 00:02:41.719 narrow idea. So the children of ambassadors, for instance, who 53 00:02:41.759 --> 00:02:44.960 have immunity are not obviously subject to the jurisdiction of 54 00:02:45.000 --> 00:02:48.080 the United States, and so don't become citizens if they're 55 00:02:48.120 --> 00:02:51.599 born here while their parents are ambassadors, for instance. But 56 00:02:51.719 --> 00:02:54.520 everyone else, the point of the Amendment was, like the 57 00:02:54.520 --> 00:02:57.759 Equal Protection Clause itself, to say we're all equal. And 58 00:02:57.800 --> 00:03:00.199 what better way to make that clear than to say, 59 00:03:00.199 --> 00:03:02.560 if you're born in the United States, you are a citizen, 60 00:03:02.919 --> 00:03:05.759 full stop. Now the court did say that. I'll say 61 00:03:05.879 --> 00:03:08.520 part of the disappointment, it's not just the three dissenters 62 00:03:08.560 --> 00:03:11.240 although you know to what we expected one. Of course, 63 00:03:11.560 --> 00:03:15.560 that is definitely a disappointment, especially his supposed allegiance to 64 00:03:15.599 --> 00:03:18.879 the tax and exactly what the text is everything that 65 00:03:18.879 --> 00:03:21.360 that hurts a little a little, But. 66 00:03:21.400 --> 00:03:25.240 It also is three Supreme Court justices basically argued that 67 00:03:25.360 --> 00:03:28.879 a president can change the Constitution to executive decree if 68 00:03:28.879 --> 00:03:31.240 he's a Republican. Am I getting that right? If it's 69 00:03:31.280 --> 00:03:34.719 a Republican president, they can change the Constitution when they 70 00:03:34.719 --> 00:03:37.280 feel like it. Three out of nine feel that way. 71 00:03:37.680 --> 00:03:41.639 I mean they and that's mag and numbers. 72 00:03:40.039 --> 00:03:43.240 That they laid down the law that although they claim 73 00:03:43.360 --> 00:03:46.560 to care about reading the tax more than anything, that 74 00:03:46.639 --> 00:03:49.520 they just ignore the plane meaning of what I said. 75 00:03:49.759 --> 00:03:52.240 There is a complication here too that makes it a 76 00:03:52.240 --> 00:03:54.719 little worse than it seems at first, because six y three. 77 00:03:54.560 --> 00:03:55.680 Sounds not that bad. 78 00:03:56.520 --> 00:03:59.120 But one of those votes Kavanaugh is not a vote 79 00:03:59.120 --> 00:04:02.520 on the Constitution in itself. You really actually stood with 80 00:04:02.599 --> 00:04:06.240 the dissenters and saying that the text of the Constitution 81 00:04:06.439 --> 00:04:10.360 does allow Congress to limit birthrights citizenship, and it's just 82 00:04:10.360 --> 00:04:13.919 that Congress hasn't limited it has a protection for all 83 00:04:13.919 --> 00:04:15.639 those who are born in the United States. 84 00:04:15.840 --> 00:04:16.839 So that's another vote. 85 00:04:16.879 --> 00:04:21.279 That's like what you know, these supposed regionalists or textualist justices. 86 00:04:21.600 --> 00:04:22.680 The good news is that. 87 00:04:22.600 --> 00:04:25.519 The originalists when it comes to the white supremacy, professor, 88 00:04:25.600 --> 00:04:27.040 you know this. You're too polite to say it. 89 00:04:27.600 --> 00:04:30.680 Wow, I mean, you know, it's definitely not possible to 90 00:04:30.759 --> 00:04:33.040 defend those I would say, not just three to make 91 00:04:33.079 --> 00:04:35.000 it clear, it really is a five to four decision 92 00:04:35.360 --> 00:04:38.680 on the thing that should matter, the Constitution itself. Justice 93 00:04:38.680 --> 00:04:41.360 Barrett will give her credit for siding with the majority. 94 00:04:41.399 --> 00:04:42.480 That was a good thing. 95 00:04:42.319 --> 00:04:45.120 To do, and I also just praise the importance of 96 00:04:45.160 --> 00:04:48.600 the decision itself. You know, often what matters here is 97 00:04:48.639 --> 00:04:52.079 not just the vote, but what said and the reaffirmation 98 00:04:52.519 --> 00:04:55.120 of the idea that the second founding of the United 99 00:04:55.120 --> 00:04:58.199 States is Justice Jackson puts it in her brilliant concurrent 100 00:04:58.279 --> 00:05:00.720 something that will be taught that I urge all listeners 101 00:05:00.720 --> 00:05:03.560 to read that the second Founding, you know, was about 102 00:05:03.600 --> 00:05:06.600 nothing less than the affirmation of the idea that if 103 00:05:06.600 --> 00:05:08.519 you're born in the United States, who are a citizen 104 00:05:08.560 --> 00:05:12.240 because it was part of the idea of resisting subordination. 105 00:05:12.439 --> 00:05:14.120 She's so clear in laying that out. 106 00:05:14.519 --> 00:05:18.399 Part of her Brilliance, too, is hammering at Justice Thomas, who, 107 00:05:18.439 --> 00:05:21.279 in his dissent. You know, remember this is Justice Thomas 108 00:05:21.319 --> 00:05:23.639 who always claims to be colorblind, and then she points 109 00:05:23.680 --> 00:05:26.519 out he makes this only about Black Americans. 110 00:05:27.319 --> 00:05:31.480 Yeah, we are colorblind. What better example of color blindness. 111 00:05:31.600 --> 00:05:33.920 They don't mean it that it applies to everyone. 112 00:05:33.800 --> 00:05:35.920 He says color blindness because he's not man enough to 113 00:05:35.920 --> 00:05:38.959 be color conscious. And when they call themselves originalist, it 114 00:05:39.079 --> 00:05:41.360 just I'd look at this and it just seems like, no, no, 115 00:05:41.439 --> 00:05:44.160 you're not original It's like states' rights. It's just a 116 00:05:44.199 --> 00:05:47.199 cloaking device, piece of language they use to make a 117 00:05:47.240 --> 00:05:50.839 selfish agenda sound somehow virtuous. I mean to me, it's 118 00:05:51.079 --> 00:05:53.720 just like states' rights. I mean, you look at the 119 00:05:53.839 --> 00:05:56.560 rage they're showing it Amy Coney Barrett, but I mean 120 00:05:57.199 --> 00:06:01.199 it looks like it's. This just suggests to me that originalism, right, textualism, 121 00:06:01.279 --> 00:06:04.199 these phrases they love to use, well, sometimes they lead 122 00:06:04.240 --> 00:06:07.360 to outcomes that don't align with conservative political goals. And 123 00:06:07.399 --> 00:06:09.920 that's what they can't stay on because they believe originalism 124 00:06:10.240 --> 00:06:13.120 is going to be the respectful term they use to 125 00:06:13.279 --> 00:06:15.199 just do whatever they wanted in the first place. And 126 00:06:15.240 --> 00:06:18.079 sometimes originalism does not lead to what a right wing 127 00:06:18.120 --> 00:06:18.839 minority wants. 128 00:06:19.399 --> 00:06:20.160 Yeah, I'm going to. 129 00:06:20.160 --> 00:06:22.319 Savor the victory a little, and I'll agree with you 130 00:06:22.360 --> 00:06:24.439 first of all that you know, when it comes to 131 00:06:25.319 --> 00:06:29.560 that characterization, it is definitely true of those four justices 132 00:06:29.639 --> 00:06:33.519 who were dissenting. And then I'll add to Alito, Thomas, 133 00:06:33.839 --> 00:06:36.639 and Gorsich. Of course Kavanaugh, who really does join them 134 00:06:36.720 --> 00:06:40.800 on the constitutional issue, although he thankfully joins on the judgment, 135 00:06:40.920 --> 00:06:43.600 joins the decision. But you know, the good news is 136 00:06:43.639 --> 00:06:46.160 that there are five justices who are saying who know 137 00:06:46.240 --> 00:06:49.439 how to read, and who aren't doing this pretend originalism thing, 138 00:06:49.920 --> 00:06:52.959 and who really do give us a constitutional lesson and 139 00:06:53.040 --> 00:06:55.519 the idea of a second founding that after the Civil 140 00:06:55.560 --> 00:06:58.199 War there was a commitment to the idea of we 141 00:06:58.360 --> 00:07:02.160 the people being an inclusive idea, multi racial idea. And 142 00:07:02.199 --> 00:07:06.279 I'll I really want to praise this concurrence by Justice Jackson, 143 00:07:06.319 --> 00:07:11.000 because what it says is the meaning of the terms 144 00:07:11.079 --> 00:07:13.720 are not just found in the words themselves, but in 145 00:07:13.759 --> 00:07:16.839 those who argued for them, including she talks about the 146 00:07:16.879 --> 00:07:19.759 Black Conventions, which I also talk about in the presidents 147 00:07:19.759 --> 00:07:23.399 and the people throughout the United States, Black Americans really 148 00:07:23.519 --> 00:07:26.360 saying not just that we want equal protection, but that 149 00:07:26.399 --> 00:07:29.759 we want birthright citizenship. And she gives a great quote 150 00:07:29.759 --> 00:07:33.240 from Frederick Douglas to the effect that this really is 151 00:07:33.319 --> 00:07:36.319 the way that will instantiate the idea of the resistance 152 00:07:36.360 --> 00:07:39.680 to slavery, of anti subordination, of equality, and the idea 153 00:07:39.680 --> 00:07:42.040 that if you are born on American soil you are 154 00:07:42.079 --> 00:07:42.639 a citizen. 155 00:07:42.680 --> 00:07:44.160 There's nothing about blood here. 156 00:07:44.519 --> 00:07:47.079 Douglas, who had before the Civil War made it so 157 00:07:47.680 --> 00:07:51.240 much a part of his argument that the original Constitution 158 00:07:51.480 --> 00:07:54.600 also had these ideas, and he looked in particular at 159 00:07:54.639 --> 00:07:56.600 the idea of the corruption of blood. It's one of 160 00:07:56.639 --> 00:07:58.959 his main arguments that we in England you can inherit 161 00:07:59.000 --> 00:08:01.720 the crimes of parents. In the United States, we don't. 162 00:08:01.959 --> 00:08:04.879 We don't have this idea of blood being corrupt. And 163 00:08:05.000 --> 00:08:08.000 how toiate that we used to we used to How 164 00:08:08.000 --> 00:08:10.600 did instantiate that in the Constitution? Do it through this 165 00:08:10.759 --> 00:08:12.879 idea of if you're born in the United States, you're 166 00:08:12.879 --> 00:08:15.600 a citizen. So she talks about that, and so, yeah, John, 167 00:08:15.639 --> 00:08:16.720 I'm feeling kind of good. 168 00:08:17.000 --> 00:08:18.639 Oh no, so am, I I mean, I mean, the 169 00:08:18.680 --> 00:08:22.319 administration's one of their legal arguments was that the promise 170 00:08:22.360 --> 00:08:25.560 of potential US citizenship Cory had led to this birth 171 00:08:25.600 --> 00:08:29.720 tourism industry. The Solicitor General said uncounted thousands of foreigners 172 00:08:29.759 --> 00:08:32.399 from potentially hostile nations have flocked to give birth in 173 00:08:32.440 --> 00:08:35.000 the US in recent decades. So this week some scholars 174 00:08:35.039 --> 00:08:37.960 at Penn State released a study based on all official data. 175 00:08:37.960 --> 00:08:41.159 They found fewer than zero point three percent of all 176 00:08:41.320 --> 00:08:44.879 US births in any given year were given to tourists. 177 00:08:45.120 --> 00:08:47.080 They're out of arguments, I think now they're either going 178 00:08:47.120 --> 00:08:48.799 to let this go or we'll hear a few people 179 00:08:48.840 --> 00:08:52.320 calling for a constitutional amendment to end birthright citizenship, which 180 00:08:52.360 --> 00:08:53.279 will never happen. 181 00:08:53.919 --> 00:08:56.919 Yeah, and it's good good for I think democracy when 182 00:08:56.919 --> 00:08:59.320 they proposed that, because that's our chance to say no, 183 00:08:59.440 --> 00:09:02.039 way to say that the idea that is in the 184 00:09:02.080 --> 00:09:06.000 Constitution itself is something that we affirm. You know, one 185 00:09:06.320 --> 00:09:09.879 worrying idea is that Justice Kavanaugh gives away. I mean, 186 00:09:10.080 --> 00:09:12.559 there are not five votes for this, thankfully, but he's 187 00:09:12.600 --> 00:09:14.879 really saying to the Congress, well, if you want to, 188 00:09:15.279 --> 00:09:18.200 you know, get rid of birthright citizenship for the children 189 00:09:18.200 --> 00:09:19.399 of undocumented, then. 190 00:09:19.320 --> 00:09:20.399 Do it through legislation. 191 00:09:20.919 --> 00:09:23.879 But hopefully the message will be received by Congress that yeah, 192 00:09:23.879 --> 00:09:26.759 that's one guy's view, but there are five votes that 193 00:09:26.840 --> 00:09:30.000 say the Constitution prohibits this. So to answer the question 194 00:09:30.039 --> 00:09:31.799 that you began with, I didn't want to lose track 195 00:09:31.879 --> 00:09:32.080 of that. 196 00:09:32.159 --> 00:09:33.759 Yeah, this should be the end of the issue. 197 00:09:33.759 --> 00:09:36.960 The Supreme Court has spoken, They've reaffirmed the obvious meaning 198 00:09:36.960 --> 00:09:38.720 of the fourteenth Amendment, and. 199 00:09:38.720 --> 00:09:39.399 That's really it. 200 00:09:39.480 --> 00:09:41.679 Certainly it's a rebuke to Trump, but it also should 201 00:09:41.679 --> 00:09:43.919 be a rebuke to those in Congress who think that 202 00:09:43.960 --> 00:09:46.519 they can legislate birthright citizenship away. 203 00:09:46.799 --> 00:09:49.200 There's a lot of news that's not good the passical days, 204 00:09:49.200 --> 00:09:52.000 including the Court now says the president can fire commissioner. 205 00:09:52.080 --> 00:09:56.080 Is that independent agencies? So they're not really independent anymore? 206 00:09:56.279 --> 00:09:58.919 Rest in peace, Humphreys Executor Corey. I learned so much 207 00:09:58.919 --> 00:10:01.919 about it from you, and now it's been executed. Why 208 00:10:02.039 --> 00:10:05.879 is overruling the nineteen thirty five Humphrey's Executive President such 209 00:10:05.879 --> 00:10:09.600 an historic moment? I mean, what constitutional principle did it 210 00:10:09.720 --> 00:10:12.120 establish and why did this court feel threatened by it? 211 00:10:12.960 --> 00:10:15.639 I want to get to the legal arguments here, and 212 00:10:15.679 --> 00:10:19.120 this really is nothing less than a massive aggrandizement of 213 00:10:19.200 --> 00:10:22.200 presidential power. But given the bad news, I also have 214 00:10:22.279 --> 00:10:25.120 to appreciate your joke. That is definitely the best Humphreys 215 00:10:25.159 --> 00:10:26.120 executor joke that. 216 00:10:26.279 --> 00:10:31.720 Oh I wrote it. You're the only person in America. 217 00:10:30.159 --> 00:10:32.600 And as you're writing it, I knew how you must 218 00:10:32.639 --> 00:10:34.519 have realized how much I was going to appreciate it 219 00:10:34.639 --> 00:10:37.120 when that I will share with generations of students as 220 00:10:37.159 --> 00:10:37.799 we teach this. 221 00:10:37.960 --> 00:10:40.759 Unfortunately now, Oh, I can hear their eyes rolling even 222 00:10:40.799 --> 00:10:43.440 as we speak, Corey. But really, I mean, I've learned 223 00:10:43.440 --> 00:10:45.919 so much about this from you, and the majority on 224 00:10:45.919 --> 00:10:49.200 this court really appears to embrace a much more imperial 225 00:10:49.320 --> 00:10:51.919 version of presidential control over the executive branch. 226 00:10:52.039 --> 00:10:54.159 That's right, And in the slaughter case, you know, what 227 00:10:54.240 --> 00:10:57.120 the administration is saying is that the Federal Trade Commission, 228 00:10:57.440 --> 00:11:00.320 although it's protected by laws and has been for one 229 00:11:00.399 --> 00:11:04.080 hundred years that say, this is an independent agency, meaning 230 00:11:04.080 --> 00:11:06.159 a very specific thing, which is that the head of 231 00:11:06.200 --> 00:11:09.200 this agency can't be controlled by the president to do 232 00:11:09.279 --> 00:11:13.039 his political bidding and therefore can't be fired for political reasons. 233 00:11:13.039 --> 00:11:15.480 They can only be fired if they're negligent or doing 234 00:11:15.519 --> 00:11:16.159 a bad job. 235 00:11:16.480 --> 00:11:17.679 Hired for cause is. 236 00:11:17.600 --> 00:11:20.840 The way of putting it, and what the Supreme Court 237 00:11:20.919 --> 00:11:26.080 said here, unfortunately, is that that law protecting this independent 238 00:11:26.080 --> 00:11:29.919 agency is no longer valid. That under the Constitution's Article two, 239 00:11:30.600 --> 00:11:33.279 all of the executive power is vested in one person, 240 00:11:33.440 --> 00:11:34.600 a president. 241 00:11:34.600 --> 00:11:37.279 And what that means is the ability. 242 00:11:36.879 --> 00:11:39.440 To hire and fire the heads of these agencies. It 243 00:11:39.559 --> 00:11:44.559 essentially gets rid of a vast amount of independence of agencies, 244 00:11:44.639 --> 00:11:48.360 including the sec for instance, that protect us and insulate 245 00:11:48.480 --> 00:11:50.000 us from the president's corruption. 246 00:11:50.519 --> 00:11:52.639 Now, when you combine that ruling with. 247 00:11:52.639 --> 00:11:54.320 The fact that this president is a want to be 248 00:11:54.399 --> 00:11:57.360 authoritarian who's obviously going to use his hiring and firing 249 00:11:57.399 --> 00:12:01.399 power to spread his corruption and his threat democracy, it's. 250 00:12:01.240 --> 00:12:01.879 A big deal. 251 00:12:02.000 --> 00:12:06.240 This is an agency that's charged with fighting consumer fraud, 252 00:12:06.360 --> 00:12:09.440 bad practices, has roles in. 253 00:12:09.200 --> 00:12:10.679 Ensuring competitive behavior. 254 00:12:10.720 --> 00:12:13.159 And you have a president who's only concerned with his 255 00:12:13.240 --> 00:12:16.559 own financial interest and his own narrow political interest, and 256 00:12:16.600 --> 00:12:19.639 so what he'll try to do is to fire anyone 257 00:12:19.639 --> 00:12:20.679 that doesn't do his bidding. 258 00:12:20.759 --> 00:12:22.559 And I can't emphasize enough. 259 00:12:22.559 --> 00:12:26.000 This just reshapes, it changes completely the structure of the 260 00:12:26.000 --> 00:12:26.679 federal government. 261 00:12:26.720 --> 00:12:30.639 For you said, can you impodcasts could insulate these agencies. 262 00:12:30.159 --> 00:12:33.320 For listeners who don't follow constitutional law, as obsessively as 263 00:12:33.360 --> 00:12:36.960 you and me. Why should the average American care whether 264 00:12:37.000 --> 00:12:39.519 a president can fire an FTC commissioner? I mean, how 265 00:12:39.759 --> 00:12:41.720 how can this affect for those who don't know how 266 00:12:41.759 --> 00:12:45.200 it affects consumers or workers or financial markets. 267 00:12:46.120 --> 00:12:49.039 Well, put it this way, Congress passed the law creating 268 00:12:49.039 --> 00:12:52.039 an agency to protect all of us, to protect a 269 00:12:52.080 --> 00:12:56.600 competitive environment, to protect against monopoly, to protect against fraudulent 270 00:12:56.679 --> 00:12:58.919 and abusive practices, going. 271 00:12:58.679 --> 00:13:00.360 Back again about one hundred years. 272 00:13:00.919 --> 00:13:04.720 And when it did that, it realized something, which is 273 00:13:04.720 --> 00:13:07.480 that if you have a bad president or corrupt president 274 00:13:07.519 --> 00:13:09.840 who's just intent on his own power, or even a 275 00:13:09.840 --> 00:13:12.759 good one, they might try to get in the way 276 00:13:12.840 --> 00:13:17.000 of the public good by using these agencies for nefarious purposes. 277 00:13:17.039 --> 00:13:17.799 So what did they do? 278 00:13:17.840 --> 00:13:21.559 They created a protection against political firing. But essentially, what 279 00:13:21.679 --> 00:13:23.799 the bottom line of this opinion is. It now gives 280 00:13:23.840 --> 00:13:26.840 the president of green light to fire anybody who say 281 00:13:26.879 --> 00:13:29.039 isn't helping his family when it comes to their own 282 00:13:29.360 --> 00:13:31.919 business and their own anti competitive practices. 283 00:13:32.279 --> 00:13:33.799 And what's to stop him now? 284 00:13:34.000 --> 00:13:36.480 It just basically, you know, there are more than two 285 00:13:36.519 --> 00:13:39.519 million people in the executive branch, and if you include 286 00:13:39.559 --> 00:13:43.039 independent agencies, it's even more. And what this does is 287 00:13:43.080 --> 00:13:46.080 it just gives the president more and more control over them. 288 00:13:46.200 --> 00:13:48.799 He still doesn't control civil servants, who are protected from 289 00:13:48.840 --> 00:13:52.039 firing unless there's cause. But this is also opening the 290 00:13:52.039 --> 00:13:55.320 way towards that to complete control of the entire federal 291 00:13:55.399 --> 00:13:58.399 government by the president, to opening the way to his. 292 00:13:58.440 --> 00:14:01.519 Corruption exactly right. So, I mean, before we hit the break, 293 00:14:01.559 --> 00:14:03.639 I do have to talk to you about this other 294 00:14:03.639 --> 00:14:06.840 disturbing factor. We're not disturbing. I can't make up my 295 00:14:06.879 --> 00:14:09.159 mind on this. To the same day, the court dramatically 296 00:14:09.159 --> 00:14:13.679 expands presidential removal power. It allowed Federal Reserve Governor Lisa 297 00:14:13.679 --> 00:14:16.799 Cook to stay in office and say, Okay, Trump, you 298 00:14:16.799 --> 00:14:19.720 can fire anybody you want, but the Federal Reserve is 299 00:14:19.799 --> 00:14:23.240 the apparent exception, right, Like, this is the constitutional doctrine 300 00:14:23.399 --> 00:14:27.720 unlimited presidential power unless Wall Street gets nervous. And it 301 00:14:27.799 --> 00:14:31.279 seems like that's where these justices discovered moderation. Is that 302 00:14:31.559 --> 00:14:33.960 is it fair? I mean, like, like, was this really 303 00:14:33.960 --> 00:14:36.519 a victory for Federal Reserve independence or was this just 304 00:14:36.600 --> 00:14:39.120 a narrow procedural ruling in one case? 305 00:14:39.679 --> 00:14:42.840 No, it's I think it well, it's both. It's technically 306 00:14:43.200 --> 00:14:46.559 procedural ruling. But really it is a victory for FED independence. 307 00:14:46.600 --> 00:14:50.559 But the reason why you're rightly feeling mixed emotions about 308 00:14:50.559 --> 00:14:53.480 this is because it doesn't make any sense. In one breath, 309 00:14:53.559 --> 00:14:56.600 we just explained that the essentially, the Supreme Court said 310 00:14:56.919 --> 00:15:00.519 that the executive power includes the ability to engage in 311 00:15:00.559 --> 00:15:04.759 any kind of firing, even political firing, of all agencies, 312 00:15:04.799 --> 00:15:09.519 including those that are supposedly independent. Well, the main independent agency, 313 00:15:09.600 --> 00:15:13.399 arguably the most important one, is the Federal Reserve. Now 314 00:15:13.919 --> 00:15:16.080 what did the courts say about that? It said, yes, 315 00:15:16.120 --> 00:15:18.080 he has the power to fire anyone. 316 00:15:17.759 --> 00:15:22.759 In any independent agency except this one. Now, what's the reason? 317 00:15:22.799 --> 00:15:23.039 That's what? 318 00:15:23.120 --> 00:15:26.480 You're a pragmatic economic one. A pragmatic economical I don't 319 00:15:26.480 --> 00:15:29.840 know if they didn't tell us a massive constitutional distinction. Yeah, 320 00:15:29.840 --> 00:15:32.639 I mean it just seems like theilators like it. Well, 321 00:15:32.679 --> 00:15:35.399 they occupy, you know, unique categories. 322 00:15:36.360 --> 00:15:38.519 Right, if they would have said that, I would have been. 323 00:15:40.200 --> 00:15:43.759 For get Congress, independent agencies, no interest rates. 324 00:15:43.799 --> 00:15:44.799 Whoa there, cowboy? 325 00:15:45.039 --> 00:15:48.039 I mean, right, Corey. You know, like democracy is negotiable, 326 00:15:48.360 --> 00:15:49.440 but the Dow Jones is not. 327 00:15:50.200 --> 00:15:52.320 Right. I mean that this is about. 328 00:15:52.679 --> 00:15:54.600 One thing that you do get in the sort of 329 00:15:54.759 --> 00:15:57.399 some sense of the back and forth between the justices, 330 00:15:57.480 --> 00:15:59.639 because you know, they're going back and forth about how 331 00:15:59.720 --> 00:16:01.919 much of an explanation they owe the American people. 332 00:16:01.960 --> 00:16:04.720 They've given us almost none. I imagine that. 333 00:16:04.720 --> 00:16:06.639 The explanation is going to be, and I'm getting this 334 00:16:06.720 --> 00:16:09.960 from the Lisa Cook opinion, that the Federal Reserve is 335 00:16:10.000 --> 00:16:13.120 so old that it really, you know, dates back. The 336 00:16:13.159 --> 00:16:15.600 Federal Reserve itself has its roots in the Bank of 337 00:16:15.639 --> 00:16:18.159 the United States, and that has its roots in an 338 00:16:18.200 --> 00:16:21.960 even earlier bank from George Washington's period of time. And 339 00:16:22.000 --> 00:16:24.720 so there's something about its age. I guess that the 340 00:16:24.759 --> 00:16:27.120 Court is going to try to play with or if 341 00:16:27.159 --> 00:16:29.480 they're going to be honest, at least say what you said, 342 00:16:29.519 --> 00:16:31.440 which is, look, you know, we have this kind of 343 00:16:31.480 --> 00:16:35.480 crazy we have this originalist jurisprudence that says there's no 344 00:16:35.519 --> 00:16:36.559 independent agencies. 345 00:16:36.679 --> 00:16:37.879 But we're not that crazy. 346 00:16:37.960 --> 00:16:39.879 The same way we're not that crazy in the birthright 347 00:16:39.919 --> 00:16:42.000 citizenship case that we're going to go against the text 348 00:16:42.000 --> 00:16:45.200 of the Constitution. We're pragmatic enough that we're not going 349 00:16:45.240 --> 00:16:48.840 to just destroy the Federal Reserve and allow want to 350 00:16:48.879 --> 00:16:51.600 be dictator president to have control over interest rates. 351 00:16:51.759 --> 00:16:53.639 Okay, tell us that right. 352 00:16:53.679 --> 00:16:56.200 But again, I'm more cynical than you because as soon 353 00:16:56.240 --> 00:16:58.279 as I hear originalist, I assume they're not going to 354 00:16:58.360 --> 00:16:59.919 be honest. So you got to read through what they 355 00:17:00.039 --> 00:17:02.080 actually say. We have to hit a break. Let's come 356 00:17:02.120 --> 00:17:04.960 back and talk about all the other hillacious things and 357 00:17:05.240 --> 00:17:08.759 maybe maybe one or two positive things that this Supreme 358 00:17:08.799 --> 00:17:11.799 Court has done. But boy, it ain't great. We'll be 359 00:17:11.880 --> 00:17:12.200 right back. 360 00:17:15.039 --> 00:17:16.319 Hi, everyone, it's Corey. 361 00:17:16.759 --> 00:17:19.519 I'm jumping on here to let you know that Amazon 362 00:17:19.759 --> 00:17:22.559 is featuring my book The Presidents and the People. Five 363 00:17:22.640 --> 00:17:25.799 leaders who threatened democracy and the citizens who fought to 364 00:17:25.839 --> 00:17:29.079 defend it. It's only two dollars and ninety nine cents 365 00:17:29.160 --> 00:17:30.440 on Kindle, so. 366 00:17:30.559 --> 00:17:31.119 Check it out. 367 00:17:31.720 --> 00:17:34.799 It's a book about why the presidency itself is a 368 00:17:34.880 --> 00:17:39.400 danger to democracy and why five times before Donald Trump, 369 00:17:39.440 --> 00:17:43.359 we've seen presidents threaten democracy. Even some of the supposed 370 00:17:43.440 --> 00:17:47.720 hero presidents, people like John Adams and Woodrow Wilson. I argue, actually, 371 00:17:47.759 --> 00:17:51.960 we're deeply authoritarian in their understandings of the Constitution. But 372 00:17:52.039 --> 00:17:54.519 this isn't a book without hope. In fact, it's a 373 00:17:54.519 --> 00:17:57.480 book all about hope. It's a book about citizens who 374 00:17:57.559 --> 00:18:01.480 fought back some of whom you've heard of, like Frederick Douglas, 375 00:18:01.559 --> 00:18:05.519 others that you likely haven't, like Sadie Alexander. I interviewed 376 00:18:05.559 --> 00:18:07.960 Daniel Ellsberg for the book, and it's about his role. 377 00:18:08.440 --> 00:18:10.920 And my argument is that these citizens not just fought 378 00:18:11.000 --> 00:18:15.559 back against authoritarian presidents, but they prevailed. They prevailed by 379 00:18:16.079 --> 00:18:20.400 appealing to recovery presidents who put the constitution back. 380 00:18:21.000 --> 00:18:22.960 So in a dire time, check it out. 381 00:18:23.039 --> 00:18:25.119 This is a book about hope, and I think it's 382 00:18:25.160 --> 00:18:27.799 really a remedy to what we're facing every week with 383 00:18:27.880 --> 00:18:28.559 Donald Trump. 384 00:18:29.200 --> 00:18:29.799 At any rate. 385 00:18:29.839 --> 00:18:31.680 I hope you liked the book, and thanks so much 386 00:18:31.839 --> 00:18:33.960 for listening to this podcast. 387 00:18:33.400 --> 00:18:34.960 And for making it so successful. 388 00:18:35.599 --> 00:18:37.359 So once again, the name of the book is the 389 00:18:37.400 --> 00:18:40.880 Presidents and the People. Five leaders who threatened democracy and 390 00:18:40.920 --> 00:18:42.920 the citizens who fought to defend it. 391 00:18:48.559 --> 00:18:50.599 Welcome back to the Open the Office. I'm John Fiegel, 392 00:18:50.640 --> 00:18:53.640 sang Professor Corey Bretschneider. I'm so excited Joyce Vance is 393 00:18:53.640 --> 00:18:55.039 going to join us in the next act. But I 394 00:18:55.359 --> 00:18:57.039 got a lot of other things to tug on your 395 00:18:57.079 --> 00:18:59.880 coat about, and the big one came late last week. 396 00:19:00.039 --> 00:19:02.720 We've talked a lot on your show about temporary protected status. 397 00:19:02.960 --> 00:19:06.119 How three hundred and fifty thousand Haitian brothers and sisters, 398 00:19:06.519 --> 00:19:09.839 overwhelmingly Christian, were invited to stay in this country after 399 00:19:09.880 --> 00:19:12.599 the devastating earthquake and the murder of their president. Our 400 00:19:12.640 --> 00:19:15.279 own State Department says Haiti is not safe to visit. 401 00:19:15.680 --> 00:19:18.319