Speaker 1: But I didn't know John, you were such an Anglo file,
Speaker 1: such a monarchys.
Speaker 2: Well, whiskey, come and take my pain, the moneys my brain,
Speaker 2: Oh whiskey.
Speaker 3: Don't why think alone when you can drink it all
Speaker 3: in with Ricochet's three Whiskey Happy Hour. Join your bartenders,
Speaker 3: Steve Hayward, John You and the international woman of Mystery, Lucretia, where.
Speaker 2: They slapped it up and live it? Ain't you busy
Speaker 2: on the should tap?
Speaker 3: Got agive me and let that whiskey go? As Emily
Speaker 3: Lttella might say, what's all this about birthmark citizenship?
Speaker 2: Hi?
Speaker 3: Everybody, it's the three Happy Hour special double episode for
Speaker 3: the July fourth holiday, and we're flipping the script today.
Speaker 3: We're gonna do all of our usual nonsense about sports
Speaker 3: and with key and other silly stuff at the end,
Speaker 3: and we're gonna get right into our subject and to
Speaker 3: introduce these subject today, we're further splipping the script and
Speaker 3: scrambling things. We're going to let the newspaper of record
Speaker 3: in America that are known as the Babylon b introduce
Speaker 3: our subjects. And so Lucretia, will you queue up our
Speaker 3: first consideration of the end of the Supreme Court term
Speaker 3: with a couple of news report from the Babylon B.
Speaker 1: I'm gonna go from least good to better. Okay, Supreme
Speaker 1: Court rules any baby born at Olive Garden isn't an
Speaker 1: Italian citizen. You're not laughing, are you?
Speaker 2: John Well? I was right? Keep going? All right?
Speaker 1: How about I like this one winning? Trump now rules
Speaker 1: entire world as Supreme Court declares everyone is American? Is
Speaker 1: that enough for now, Steve? Or do you all?
Speaker 3: There's more? There's come on, You've got to get the
Speaker 3: one about his investigation and Clarence Thomas right.
Speaker 2: Hand.
Speaker 3: There's okay, I I know what they are. One was
Speaker 3: President Trump orders investigation into who appointed Amy Coney Barrett.
Speaker 1: Oh, that wasn't a Babylon B. That was me I
Speaker 1: sent you.
Speaker 3: Was that it? Okay? And then the other one was
Speaker 3: what was it? Trump proposes constitutional amendment to name Clarence
Speaker 3: Thomas all nine seats something like that was.
Speaker 2: Trump Trump calls for one trillion dollars to clone Clarence Thomas.
Speaker 1: They didn't know that was all having to do with
Speaker 1: the birthright citizenship case. I thought it was that he
Speaker 1: was solid on everything that happened in the last two weeks.
Speaker 3: Well total, well there is that, yes, well all right,
Speaker 3: let's open it this way. So listeners, we're going to
Speaker 3: take up the birthright citizenship case Trump versus Barbara. You
Speaker 3: would think Trump against someone named Barbara Trump would be
Speaker 3: the easy winner, just because right, but whoever Barbara was.
Speaker 3: And then we'll go through some of the other hot
Speaker 3: button opinions of the last couple of weeks, as Luke
Speaker 3: refers to them. But the birthright citizenship one is the
Speaker 3: big one. And you know we've argued about this before,
Speaker 3: and rather than going through the arguments about you know,
Speaker 3: good idea, bad idea and all the other stuff. I
Speaker 3: am struck by the descent from Justice Thomas ninety one pages.
Speaker 3: And I still haven't got through the whole thing, but
Speaker 3: I think it's a warnburner John. I mean, I don't
Speaker 3: know if it's as long as descent ever, but it
Speaker 3: sure seems thorough to me. I mean, I'm gathering you've
Speaker 3: been through it, John, and what do you make of it?
Speaker 3: Are you persuading on any points to rethink your own
Speaker 3: pro birthright citizenship position?
Speaker 2: No, I don't agree with the Justice on this. I
Speaker 2: do find that the case is closer than a lot
Speaker 2: of the people in the media suppose because they haven't
Speaker 2: read the descent and the majority, because I and Justice
Speaker 2: Alito's descent actually, I think also actually illuminates that a
Speaker 2: lot of the debate is over what you might call
Speaker 2: birth terrists. So if you read the opinion, you're going
Speaker 2: to see a lot of discussion about this idea of domicile,
Speaker 2: which is not in the constitutional text. But I think
Speaker 2: this is a move that the Trump administration made, not
Speaker 2: the executive order, which does apply to all illegal aliens
Speaker 2: in the country, but an oral argument that still sort
Speaker 2: of general narrowed the debate to focus more on people
Speaker 2: who come really specifically for the purpose of having a
Speaker 2: baby and then leaving. And so the Justice Thomas's descent
Speaker 2: focuses on these people, and he says they're not really
Speaker 2: under our jurisdiction because they don't intend to live here.
Speaker 2: They don't set up a domicile here. Now he dropped,
Speaker 2: and then he drops an interesting footnote which she says,
Speaker 2: I'm not going to actually discuss here whether birthright citizenship
Speaker 2: would apply to the children of aliens who do want
Speaker 2: to stay here, which I assume is actually the great
Speaker 2: majority of the aliens in the country. I think the numbers,
Speaker 2: you know, they range from it's very hard to get
Speaker 2: numbers range from one hundred thousand to three hundred thousand
Speaker 2: babies are born a year in the United States based
Speaker 2: on this birth tourism category. I think that's probably very
Speaker 2: small number compared to the number of overall children born
Speaker 2: to aliens in the country or from people who want
Speaker 2: to stay. So there's actually the possibility of more agreement
Speaker 2: between the majority and the descent. You could say, maybe
Speaker 2: the only disagree with these people who are visiting temporarily.
Speaker 2: Now the majority opinion doesn't create an exception for that
Speaker 2: at all. The authority just says if you know, they know.
Speaker 2: They just say, if you're born on the territory of
Speaker 2: the United States, you're a citizen. Doesn't matter why your
Speaker 2: parents were here, how long they intended.
Speaker 1: To stay, nor does it matter, for instance, if if
Speaker 1: an enemy country decides to cross our borders and you know,
Speaker 1: come and just send hundreds and hundreds and hundreds of
Speaker 1: thousands of people into our country, or perhaps maybe Muslims
Speaker 1: into our country to destroy Western civilization.
Speaker 2: And they are saying Muslims, Muslims cannot be citizens of
Speaker 2: the United States. You know, I'm saying country's territory.
Speaker 1: No, what I'm saying is that that the proper ruling
Speaker 1: should have been that no one who is here illegally,
Speaker 1: who has entered our country the very first act of
Speaker 1: breaking our laws shows that they do not.
Speaker 2: I would say that even Thomas doesn't agree with that.
Speaker 1: I think he does.
Speaker 2: President's opinion just flat His opinion flatly says, I'm not
Speaker 2: going to address whether they're denied birthright citizenship. He's only
Speaker 2: talking about people are coming and leaving. You are. Usually
Speaker 2: it says that in the descent.
Speaker 1: That's fine, But the real point of the matter is
Speaker 1: subject to its jurisdiction has a very clear meaning under
Speaker 1: the fourteenth Amendment. We know what that meaning is very
Speaker 1: clearly from the legislative debates both on the Fourteenth Amendment
Speaker 1: and the Civil Rights Act of eighteen sixty six, which
Speaker 1: the fourteenth Amendment was specifically passed in order to ensure
Speaker 1: that it could be implemented. And we know what that meant.
Speaker 1: We know that it did not mean whole categories of
Speaker 1: persons who were as subject to the jurisdiction of the
Speaker 1: United States. Whole category it didn't address, I will give
Speaker 1: you illegal aliens or birthright or birth tourism or any
Speaker 1: of those things, because it didn't exist back then, for
Speaker 1: God's sakes.
Speaker 2: But COVID got to do this.
Speaker 1: Well wait, COVID, I didn't say COVID.
Speaker 2: Oh I thought I heard you say COVID.
Speaker 1: No, no, no, no. What I'm saying is is no what
Speaker 1: the birth terrorism? The people the China who who are
Speaker 1: as you tell us all the time, our enemies sending
Speaker 1: their people here, taking them back, but they so they
Speaker 1: grow up in China, and but they're American citizens. They
Speaker 1: could come back and become president of the United States.
Speaker 1: And you know, looking at the way our politics are
Speaker 1: going in certain areas, it's not, you know, not an
Speaker 1: impossible thing. But anyway, the serious point is this that
Speaker 1: the fourteenth Amendment is clear. What the hell is wrong
Speaker 1: with Amy Coney Barrett and John Roberts and their stupid
Speaker 1: ass claim to be originalists. If they were originalists, they
Speaker 1: would look at what the fourteenth Amendment meant at the
Speaker 1: time it was pasted, and it is. The historical record
Speaker 1: is absolutely clear.
Speaker 2: I disagreed, it's not absolutely clear.
Speaker 4: And you're also saying, I mean, I just don't think
Speaker 4: it is what we know, what's this sight of history.
Speaker 2: You could say subject to the jurisdiction thereof had a
Speaker 2: clear meaning under the common law at the time, which
Speaker 2: incorporated only three categories. One of them is occupying armies,
Speaker 2: which you refer to, and one is diplomats. These are
Speaker 2: people who are in the country on the territory of
Speaker 2: the United States, but they're not subject to our jurisdictions,
Speaker 2: so it doesn't extend to them. Your theory is as
Speaker 2: subject to the jurisdiction thereof, which has a I think
Speaker 2: a pretty straightforward meaning, actually has an unusual meaning, which
Speaker 2: is at odz with the way the legal system use
Speaker 2: the terms at the time, which is that they're here
Speaker 2: without the permission of the country. Is a very strange way.
Speaker 2: No actually say that to say subject to the jurisdiction,
Speaker 2: It's just that nobody uses a term that way at
Speaker 2: that time.
Speaker 1: What they did used to mean is that you were
Speaker 1: not in any way still beholden to a different sovereign,
Speaker 1: that your allegiance was to the United States. And that's
Speaker 1: why those categories, which also included Native American Indians born
Speaker 1: in the United States, born in this soil, but who
Speaker 1: owed their allegiance to another sovereign were excluded specifically by
Speaker 1: the Fourteenth Amendment and by the Civil Rights Act of
Speaker 1: eighteen sixty six. That's what I'm talking about. Now. What
Speaker 1: happens is you bring all an illegal alien. They are
Speaker 1: not subject to the jurisdiction of the isicos.
Speaker 2: Are they not subject to our jurisdiction. They're on our territory.
Speaker 2: We can execute them for murder. If there are.
Speaker 1: Are Native American Indians not subject to our jurisdiction, then.
Speaker 2: They were not at the time because they had semi
Speaker 2: sovereign status on their right.
Speaker 1: They still have semi sovereign.
Speaker 5: So now it's because we allow them to have it.
Speaker 2: But you're reading subject to the jurisdiction in this very
Speaker 2: very unusual, strange way in which it was not used
Speaker 2: at the time. It was because there's no it wasn't.
Speaker 1: Is it most certainly was.
Speaker 3: I want to take us back to what's the opinion,
Speaker 3: what's in front of us, and what we can make
Speaker 3: of where we're going from here, rather than going back
Speaker 3: over I mean, we had this argument before and we're
Speaker 3: going to have it again. But first of all, just
Speaker 3: an observation. The descent got four votes on a case that,
Speaker 3: first of all, no one ever get brought. And second,
Speaker 3: even as recently as ten years ago, I don't think
Speaker 3: we would have thought you've gotten four votes for the position,
Speaker 3: and maybe they are five votes. I'm gonna come back
Speaker 3: to that point in just a second. Maybe I could
Speaker 3: do it this way. Thomas's descent reads to me. It
Speaker 3: reminds me a little bit of the descent in the
Speaker 3: Obamacare case, which people say Roberts actually wrote before he
Speaker 3: flipped side. I wonder if I'm gonna started writing this
Speaker 3: as a majority opinion and then someone flipped, and my
Speaker 3: speculation would be maybe Kavanaugh. Well wait a minute, let's
Speaker 3: go to Kavanaugh's opinion, because even if.
Speaker 2: Kavanaugh was there still would have been five to four.
Speaker 3: No.
Speaker 2: No on the constitutional issue. You need to have someone
Speaker 2: like you're talking about. Barrett would have to be the.
Speaker 3: Person you're te no No Kavanaugh. Kavanaugh's concurrence, as I
Speaker 3: concur on statutory grounds, unconstitutional.
Speaker 2: Grand doesn't matter, still be five to four.
Speaker 3: Well, wait a minute, what if that statue didn't exist,
Speaker 3: he would not be saying the four.
Speaker 2: Men no, that's my point, would still be five to four.
Speaker 3: Well, but five to four in favor of Trump's exactly.
Speaker 1: Five to four against Trump.
Speaker 3: Decision. Actually, I thought it was five to four. It
Speaker 3: was sixty three counting.
Speaker 1: Yeah, it was go and and Thomas.
Speaker 3: Oh I miscounted. Okay, Well, I still think that's interesting
Speaker 3: that Kavanaugh says that does Keavenaugh not point us a
Speaker 3: way forward for either statutory change because.
Speaker 1: This is a concurrence the majority opinion. The majority opinion
Speaker 1: says that the Constitution means X, and unless they get
Speaker 1: another majority opinion to overturn that, the the I mean
Speaker 1: people kept saying, oh yeah, there's Kevnaugh opens a way
Speaker 1: for all this statutory changes. I'm afraid that the argument
Speaker 1: I've made all along, which is that perhaps it shouldn't
Speaker 1: be done by the executive in the way that Trump
Speaker 1: decided to do it, you know, just in objective terms,
Speaker 1: nothing against Trump, but that Congress can absolutely determine what
Speaker 1: is the meaning of subject to the jurisdiction of the
Speaker 1: United States. And moreover, Congress can absolutely determine who and
Speaker 1: who cannot be citizens of the United States based upon
Speaker 1: its interpretation of the Fourteenth Amendment. The enforcement Clause gives
Speaker 1: Congress that power, not the President and not the Supreme Court.
Speaker 1: But we don't play those games anymore. We just the
Speaker 1: Supreme Court said it. So there you go. Let's all
Speaker 1: bow down and recognize that we live in some stupid
Speaker 1: country governed not by the sovereignty of the people but
Speaker 1: by nine unelected in most cases, three or four unelected idiots. Sorry,
Speaker 1: there's my there's my rant for the week.
Speaker 2: Yeah, well, okay, I mean I understand, I don't understand you.
Speaker 2: I think Congress would have the authority to end birthright
Speaker 2: citizenship as it's currently practiced by statute and over return
Speaker 2: the Supreme Court opinion.
Speaker 1: Well, I think they should.
Speaker 3: Yeah, but we know you're saying.
Speaker 2: You say they can.
Speaker 1: That's what Abraham Lincoln.
Speaker 2: Intersection five of the Fourteenth No, actually, Lincoln did not think,
Speaker 2: for example, Congress could overturn dred Scott. Unfortunately he didn't try.
Speaker 2: He did. He did the Emancipation Proclamation based on his
Speaker 2: commander in chief power, but he recognized that would terminate
Speaker 2: on the end of the war. So I don't So
Speaker 2: you're saying under section five of the fourth So you
Speaker 2: think you're saying under section five of the fourteenth Amendment
Speaker 2: properly read, Congress could interpret.
Speaker 3: See I don't.
Speaker 2: I think that's exactly why they put the citizenship clause
Speaker 2: in the Constitution in the first place, because they didn't
Speaker 2: want politicians to be able to monkey around with the definition,
Speaker 2: change it back and forth.
Speaker 1: I don't.
Speaker 2: I don't.
Speaker 1: I actually would say this. I would say they put
Speaker 1: the enforcement clause in both all three of the reconstruction
Speaker 1: amendments to make it very clear that Congress had power
Speaker 1: over the States in ways it might not have prior
Speaker 1: to the reconstruction. That's true, and so I believe absolutely.
Speaker 2: But you think that they can change the interpretation, you
Speaker 2: think they can be at odds with the Court on
Speaker 2: the interpretation of the Constitution. That's exactly that Congress can do that.
Speaker 2: But then you said that they could essentially overturn this decision.
Speaker 2: And I don't think they can just subject to the
Speaker 2: jurisdiction the way they want, right.
Speaker 1: No, No, I mean yes, do I believe that, because
Speaker 1: I believe that Congress has as much power under the
Speaker 1: Constitution to determine what its powers are as a Supreme
Speaker 1: Court does, just like John Marshall believed, for instance. But
Speaker 1: we don't live in that country anymore. Historically, that's not
Speaker 1: the way it works. So this decision, sorry, really quickly
Speaker 1: less sentenced Steve. This decision means that everything Kavanaugh said
Speaker 1: was a bunch of gobbledygoog and didn't matter. And what
Speaker 1: mattered was the Supreme Court, in a really idiotic decision,
Speaker 1: determined that other than keeping people out of the United States,
Speaker 1: the only thing that the political branches can do to
Speaker 1: prevent anyone from taking over our country through birthright, citizenship,
Speaker 1: open laws call it. The only thing they can do
Speaker 1: is try to close the borders and try to stop
Speaker 1: birth tourism and so on.
Speaker 2: It's not hard. It's just the same thing you would
Speaker 2: do to drug traffickers. Human traffickers will punish the drug cartels.
Speaker 2: You can punish these, you know, these birth tours and companies.
Speaker 2: You could even punish the women who are coming in.
Speaker 2: You could prevent them, and they're starting to. Yeah, I
Speaker 2: mean it's not hard to do.
Speaker 3: John, What did you make of Thomas's point about the
Speaker 3: fourteenth Amendment. Essentially, very cleverly, I thought, adopted the argument
Speaker 3: of the slaughterhouse cases, which have never been overturned. Remember
Speaker 3: it said the fourteen Amendment was written for breed slaves. Sure,
Speaker 3: there's citizenship and Thomas says, everyone understands that I noticed
Speaker 3: that soda. My ar took after him there, saying he's
Speaker 3: using a double standard. He wants a colorblind constitution, but
Speaker 3: now says this amendment only applied to freed slaves, but.
Speaker 2: That Thomas actually Justice Jackson said that, yeah, so I
Speaker 2: I see. The question is this is how I would
Speaker 2: differ with his opinion. Is it is undeniable. The central
Speaker 2: purpose of the amendments was to restore or not restore
Speaker 2: because they never had them. Was to grant the same
Speaker 2: constitutional rights to the freed slaves that everyone else had.
Speaker 2: But is it limited to that? That's so I don't
Speaker 2: know if the Justice Thompson's a piece should be read
Speaker 2: to say this is what's you know Jackson claimed it
Speaker 2: said was that it only goes that far, and I
Speaker 2: don't know if that's I don't think he was saying that,
Speaker 2: But if he did, I don't think that's right. I
Speaker 2: think the fourteenth Amendment is written more broadly, and you
Speaker 2: raise the slaughterhouse cases because you know, at the point
Speaker 2: the slaughterhouse cases is also that privileges in the immunities
Speaker 2: means much more than just equalizing the rights of the
Speaker 2: freed slaves. It's actually about expanding the idea of privileges
Speaker 2: and immunities to create constitutional rights against all states. It's
Speaker 2: not just written to benefit blacks. Yeah, well that I
Speaker 2: don't think that Justice Thomas's opinion means that. But that's
Speaker 2: what that's No, that's what he says. That's some of that.
Speaker 2: I know. I'm just like, I agree with you, lucretianities.
Speaker 2: That's what Steve was asking.
Speaker 1: Well, but understand what he does say. However, he says,
Speaker 1: the Court has repurposed the Fourteenth Amendment to protect its
Speaker 1: own set of preferred rights that the Reconstruction Congress never contemplated.
Speaker 1: We can all agree on that a legal immigration, birthright,
Speaker 1: or birth tourism and all that stuff didn't exist. They
Speaker 1: did not specifically write the Fourteenth Amendment to protect those
Speaker 1: categories of people. That much we can agree on, right,
Speaker 1: and that cannot find support anywhere in the text for
Speaker 1: those sorts of people. Today, the Court does so again
Speaker 1: by recognizing a constitution right dis citizenship for the children
Speaker 1: of all foreign birth tourists and illegal aliens. And you're right,
Speaker 1: that's his emphasis, John, that's his absolute emphasis. But he's
Speaker 1: also saying, you know this was a big deal. This
Speaker 1: was a big deal for the newly freed slaves. This
Speaker 1: was a big deal to that's.
Speaker 2: The central purpose of the amendments. I don't disagree. I
Speaker 2: don't actually agree with your plan. I think that this
Speaker 2: is a that there's no text. Actually, this, this thing
Speaker 2: of this majority opinion is actually quite a textualist opinion.
Speaker 2: It's really more focused on the.
Speaker 1: Text and a sixteen oh eight English law case whatever
Speaker 1: it's called, Calvin's case. It has nothing to do with America, nothing,
Speaker 1: absolutely nothing.
Speaker 3: But all right, let us continue this on the other
Speaker 3: side of a brief ad break. Don't go away. We'll
Speaker 3: be right back with Moore yelling and screaming and shouting.
Speaker 3: All right, let's move off the law nearly speaking for
Speaker 3: a moment and talk about two things. One is what
Speaker 3: other remedies might be available now to President Trump and
Speaker 3: what are the political fallouts of this, which may not
Speaker 3: be quite as clear as people think. So first of all, John,
Speaker 3: you already kind of hinted of this could Trump close
Speaker 3: entry to pregnant women from everywhere to say, if you're pregnant,
Speaker 3: you can't come in that states.
Speaker 2: Yeah, I suppose he could. I don't know if that
Speaker 2: would be the most effective. That would be what I
Speaker 2: would think of as an over inclusive rule. We would
Speaker 2: call us like going to bar too many people. But
Speaker 2: you could do that if you wanted to. I think
Speaker 2: the more effective thing would be to stop birth tourism
Speaker 2: through going at the companies that are charging people fifty
Speaker 2: thousand dollars or however much it is, or the people
Speaker 2: who are running these houses apparently places.
Speaker 1: Like Helia, and they are I think, John.
Speaker 2: Well, not a lough if I suppose I mean.
Speaker 1: A new initiative I've been reading about last dairs.
Speaker 2: Yeah, I mean that would be the most easiest a
Speaker 2: forward way to do it in terms of its political effects.
Speaker 2: I maybe I'm wrong about this, but I think that
Speaker 2: President Trump has gone too far in his immigration agenda.
Speaker 2: I think the main achievement, which is an incredible achievement,
Speaker 2: was to take control of the southern border, and now
Speaker 2: we have almost zero. I think in some months we
Speaker 2: actually have zero illegal crossings, which is incredible feat of
Speaker 2: public policy.
Speaker 1: But I think John Finish, go ahead, No, no, really
Speaker 1: just on that point.
Speaker 2: This will be another quick one, but go ahead.
Speaker 1: Anecdotally, I spoke to the sheriff of Coaches County who
Speaker 1: was for the longest time ground zero in the and
Speaker 1: he says his job is totally different now. Still drug
Speaker 1: problems and things like that, but no more worry to
Speaker 1: worry about, you know, high speed chases. And so I'm sorry,
Speaker 1: go ahead, I just I wanted to give an anecdote
Speaker 1: to support your point.
Speaker 3: Yeah, well, then well that does raise well it does
Speaker 3: also raise the other minor lesser cases on this. So
Speaker 3: the Trump's authority was the temporary protective status cases. He
Speaker 3: won those and can proceed to what I guess, deport
Speaker 3: people who've overstayed in asylum or have weak claims and
Speaker 3: so forth.
Speaker 1: Uh.
Speaker 3: And I love the reaction to this from the left.
Speaker 3: You know, people are going to die, and these tears
Speaker 3: in these wonderful countries that were wonderful last week and
Speaker 3: now that people are going to die if we send
Speaker 3: them back, right. I love the double standard there. And
Speaker 3: so that suggests that there's still quite a bit of
Speaker 3: latitude for Trump to operate.
Speaker 2: Oh yeah, I mean, the immigration laws are written to
Speaker 2: give the president maximum flexibility. But this is this is
Speaker 2: the point is getting I think that the polling is
Speaker 2: starting to show I think it turned with the shootings
Speaker 2: in Minneapolis, which I think we're justified, but they also
Speaker 2: I think we're a use of force that went too
Speaker 2: far from most people. And I think so Trump's I
Speaker 2: think immigration and gen is starting to turn people off.
Speaker 2: Maybe this decision sapes and you can say, Okay, I'm
Speaker 2: done fighting about this birthright citizenshipping and we should turn
Speaker 2: to more important matters. I don't think it's that important
Speaker 2: in terms of political consequences, because I think the curve
Speaker 2: on immigration is turned down against the president now. I
Speaker 2: don't think it's a good idea for him to keep
Speaker 2: pounding on this issue and calling on Congress to pass
Speaker 2: a constitutional amendment to change the definition of citizenship is
Speaker 2: not always not going to pass. I think it's I
Speaker 2: think it's a mistake politically.
Speaker 3: Well, yeah, I disagree with you on that, John. I
Speaker 3: think that those polls some months ago after the Minneapolis
Speaker 3: business which was engineered, of course by the left in
Speaker 3: a lot of ways, a lot of those I think
Speaker 3: are evanescent. There's some more recent numbers. Even Harry Enton
Speaker 3: on CNN, who I think shoots pretty straight on these matters,
Speaker 3: says there's still a bedrock of majority support in general
Speaker 3: or restricting immigration. I think Trump still has the wind
Speaker 3: of his back. He's made some mistakes, no doubt about.
Speaker 2: But look at the also to overturn birthright citizenship too.
Speaker 3: Well, no, I'll see people, well, I don't think people.
Speaker 3: This is reminding me a bit of the Kilo case, right,
Speaker 3: which you know that was a five four case and
Speaker 3: I just got my numbers confused. But remember that led
Speaker 3: to a big backlash when people realized and led to
Speaker 3: a lot of states changing your laws to say, no,
Speaker 3: we're not going to allow emma domain to be abused
Speaker 3: and property rights to be abused. And I think that
Speaker 3: has contributed to some of the more recent better property
Speaker 3: rights decisions.
Speaker 5: Right.
Speaker 3: And you know, I remember our friends at IJ when
Speaker 3: they brought that case. They thought they'd be lucky to
Speaker 3: get three votes, and they were stounded when they got four,
Speaker 3: and one of them being Senator day O'Connor, who'd been
Speaker 3: the most sort of erradic on property rights cases before that. Right,
Speaker 3: she wrote the dissent, which amazed everybody. In any case,
Speaker 3: I could see this playing out that way. And this
Speaker 3: is where I've been startled to see some people or
Speaker 3: otherwise would be I think wholly in Lucretia's corner and
Speaker 3: being upset about the decision, who said, well, you know,
Speaker 3: this is actually may ignited debate that hasn't been happening
Speaker 3: on this case, and a few other people who said,
Speaker 3: you know, the dab's decision, which we all celebrate, it
Speaker 3: did have the short term political effect of giving Democrats
Speaker 3: a talking point that played a role in the Republican
Speaker 3: underperformance in twenty twenty two. It motivated their base. Imagine
Speaker 3: just as a political matter, not a legal one. As
Speaker 3: a political matter, if the court had struck down birthright citizenship,
Speaker 3: what would the talking point from Democrats have been, They've
Speaker 3: been losing Hispanic vote. You know what they'd say between
Speaker 3: now November Trump was going to deport millions of you
Speaker 3: who've been citizens your entire lives. Totally not true, but
Speaker 3: that's what they would say, and the media would go
Speaker 3: along with it and would add to the headwinds for
Speaker 3: Trump Republicans in November. So in the short run, it
Speaker 3: seems to me that it's a wash at worst, and
Speaker 3: maybe in the long run a net benefit my opinion.
Speaker 3: I don't know, lucretire, you're looking dyspeptic about that.
Speaker 1: That's why I guess, you know what, I'm just tired
Speaker 1: of making a major constitutional, political groundbreaking decisions because we're
Speaker 1: worried about what Democrats are going to lie about next.
Speaker 1: I mean, for God's sake, No, no, no, I know
Speaker 1: I'm not accusing you of that, but what at what
Speaker 1: point are Republicans going to stop being the you know
Speaker 1: what's with? It starts with the P and it ends
Speaker 1: with the U. S S I E S that.
Speaker 2: I'm just so, what is it that they're supposed to do?
Speaker 2: What do you want them? What do you want them
Speaker 2: in Congress to do? Overrule the birthright citizens in case
Speaker 2: I don't understand what their Passive Savior Act? Yes, that
Speaker 2: doesn't have anything to do with this.
Speaker 1: Oh John, how can you say that?
Speaker 2: What does it got to do with birthright citizenship?
Speaker 1: Because the reason that Democrats, let me explain it to you,
Speaker 1: the reason that Democrats are so invested in illegal immigration
Speaker 1: is not just because they want illegal immigrants to vote,
Speaker 1: because they do, and they want to turn all of
Speaker 1: those illegal immigrants who are feeding at the public trough,
Speaker 1: who are getting welfare benefits, et cetera, et cetera. Even
Speaker 1: though they pretend they're not that there'll be clients of
Speaker 1: the Democratic Party in perpetuity, and in the states that
Speaker 1: become diasporas, shall we say, for these illegal immigrants, it
Speaker 1: raises their numbers and they have greater representation in Congress.
Speaker 1: All of those things. The sayback first and foremost removes
Speaker 1: the possibility for fraud. It removes the possibility of non
Speaker 1: citizens voting in federal elections, and that in and of
Speaker 1: itself would allow for American citizens to make decisions about
Speaker 1: what's in their best interest.
Speaker 3: I think leave aside the illegal voting aspects of it
Speaker 3: for a moment. I think there's a simpler theory. Remember
Speaker 3: there's recently, as the nineteen nineties under Clinton, Democrat were
Speaker 3: really tough on illegal immigration rhetorically at least and maybe
Speaker 3: even practice On'm not I think the actually were under
Speaker 3: Clinton in practice. However, someday one day somebody woke up
Speaker 3: and said, gosh, what happened to California? That used to
Speaker 3: be a reliably Republican state in presidential elections and a
Speaker 3: competitive state between the two parties, And now it isn't
Speaker 3: what changed? The demographics changed. The light bulb would often said,
Speaker 3: you know, if we have more, especially Hispanic immigration into
Speaker 3: the rest of the country. We flipped the whole country
Speaker 3: the way we flipped California. Now there's the old story
Speaker 3: that California Republicans lost California because they were mean to immigrants.
Speaker 3: Is probably wrong. Too many Republicans go along with it, unfortunately,
Speaker 3: but you've heard Democrats say, you know, it's only a
Speaker 3: matter of time before Texas follows California because of all
Speaker 3: the Hispanic immigration to the state. Lo and behold, Republicans
Speaker 3: get a large share of the Hispanic vote, more and
Speaker 3: more of it all the time in Texas. So the
Speaker 3: theory may not hold up the long term, but that's
Speaker 3: what they fought, and I think that explains why suddenly,
Speaker 3: Oh Thomas quotes in his opinion Harry Reid saying, twenty
Speaker 3: years ago, we got to stop birthright citizenship. This is
Speaker 3: crazy today. If you said the Democratic Party, well, let's
Speaker 3: just say you would get a run out of office
Speaker 3: in a hurry. But credit socialists, which we may come
Speaker 3: to in our next episode. I think that's the theory
Speaker 3: of it. It's pretty simple.
Speaker 1: I just think it's a matter of sovereignty, well, choosing,
Speaker 1: choosing who your citizens are and choosing who your electric
Speaker 1: is is a matter of sovereignty.
Speaker 3: But let's go on the other cases and somebody agrees
Speaker 3: with you. I can tell there, boy, Okay. One that
Speaker 3: I know we haven't chatted about in text threads is
Speaker 3: I think this case with the NRSC versus FEC, the
Speaker 3: one that's that ended limits on ordination between parties and candidate.
Speaker 3: I think this is a huge decision. And I'll tell
Speaker 3: you who else thinks it's a huge decision in the
Speaker 3: wrong way. It was Paul Krugman to the TikTok saying
Speaker 3: the Supreme Court is just end the democracy in America.
Speaker 3: I think it's completely crazy. It will make political parties
Speaker 3: great again. John, Are you paying any attention to that
Speaker 3: decision or are you one of the other more flamboyant ones.
Speaker 2: Oh no, I mean, I'm not sure whether we'll save
Speaker 2: political parties from their great decline. But it's just a
Speaker 2: This is just the working out of I think principle,
Speaker 2: which is, if you really think money should be in
Speaker 2: campaigns should be given first amba protection, which the Court
Speaker 2: has now held since Citizens United, then this is the
Speaker 2: logical extension of Citizens United. And I think over time
Speaker 2: the Court will end up striking all the limits on
Speaker 2: a campaign finance. So the main one left, it seems
Speaker 2: to me, is the limit on how much money you
Speaker 2: can give directly to a candidate. That doesn't really make
Speaker 2: sense anymore now that you can give that same amount
Speaker 2: of money to the political party and then it can
Speaker 2: turn around and give it to the candidate. So I
Speaker 2: think the logic of that is to result in that,
Speaker 2: And that's the last major piece of Buckley versus Valleo.
Speaker 2: That's left, right.
Speaker 1: I was just going to ask you if you actually
Speaker 1: thought that the principle that spending money in elections was
Speaker 1: actually protected by the First Amendment, that it was political speech,
Speaker 1: was in fact articulated in Buckley versus Valao by the
Speaker 1: Court to strike down some aspects of the FECA amendments
Speaker 1: in the ninety seven nineteen seventy four amendments. They just
Speaker 1: as usual. It was almost as if Roberts was on
Speaker 1: the court back then, let's mucky it up and we'll
Speaker 1: say yes to this, and noted that where for no
Speaker 1: principal basis, this is political speech that's protected. This is
Speaker 1: political speech. It should be protected. But the appearance of
Speaker 1: corruption is so great we can't protect it, you know,
Speaker 1: and all that nonsense that they did in Buckley versus
Speaker 1: Valip But has it am? I is it unfair for
Speaker 1: me to say, I'm asking you, my great constitutional scholar
Speaker 1: that you are. The Court actually articulated that principle first
Speaker 1: in Buckley and then Initizen United sort of doubled down
Speaker 1: on No.
Speaker 2: They I mean Buckley is really also the case that
Speaker 2: says money is protected, Yeah, because it's the way you
Speaker 2: engage in speech. So I think I'm not sure if
Speaker 2: it's Buckley or the follow up case, which involves First
Speaker 2: Bank of Boston is called where they say, basically, well,
Speaker 2: the Founders didn't say anything specifically about money. Where they say,
Speaker 2: suppose the government said we're going to take away all
Speaker 2: your printing presses, right, and that's what the money is.
Speaker 2: The money is how you buy the things that allow
Speaker 2: you to speak. And they said, of course, the Founders
Speaker 2: would have thought the First Amendment protected your right to
Speaker 2: have of the printing press, so therefore must protect your
Speaker 2: means to buy the printing press. So that's there very
Speaker 2: early on. But the mistake they made, which this Court
Speaker 2: is curing was they said that when it comes to
Speaker 2: campaign finance, as you mentioned you could override that First
Speaker 2: Amendment right with the desire to not just end corruption,
Speaker 2: but the appearance of corruption. And I've been I mean,
Speaker 2: this is this, I mean, I always thought that was
Speaker 2: such a ridiculous test. It's very typical the seventies is
Speaker 2: kind of balancing the government against the scope of the
Speaker 2: right and off. Usually the government would win. And this
Speaker 2: court's you know, gone back to saying the First Amendment
Speaker 2: means free speech is protected under strict scrutiny, and there's
Speaker 2: very few almost no basically wartime it's the only time
Speaker 2: you can override the First Amendment. And they are very
Speaker 2: close to saying that as to all campaign speech, I mean,
Speaker 2: and money, campaign money, sir.
Speaker 3: One of the things I don't remember about Luckley is
Speaker 3: whether the contribution of it was directly attacked and raised
Speaker 3: before the court. Remember, by the way, the young lawyer
Speaker 3: who did a lot of the legal work and prepared
Speaker 3: the briefs was a guy named John Bolton. That's right,
Speaker 3: and then that's right, I do. I thought the principal
Speaker 3: arguments that our team, so to speak, one on or
Speaker 3: to put it dway Nash or reput at the time
Speaker 3: is how do you tell Nelson Rockefeller that he can't
Speaker 3: spend money on himself. And if you can't, if you
Speaker 3: can't tell Nelson Rockefeller he can't spend money on himself,
Speaker 3: what about him spending money on someone else's behalf? That
Speaker 3: so it opened the door to independent expenditures, which then
Speaker 3: got broad and under Citizens United. But you know it's
Speaker 3: my old mentor. Stan Evans is a lot of the
Speaker 3: parties to that case, and he is the first one
Speaker 3: to exploited in the New Hampshire sorry North Carolina primary
Speaker 3: in seventy six on Reagan's behalf. Anyway, but I've always
Speaker 3: thought that you listen to the left complained about Citizens
Speaker 3: United allows all these super packs and all these independent
Speaker 3: organizations to you know, spend money and effect elections. Well,
Speaker 3: now I've just said, you know what, you don't need
Speaker 3: those guys. It's going to diminish the influence of the
Speaker 3: third party groups. It seems, not third parties, I mean
Speaker 3: third you know, super packs are now diminished and the
Speaker 3: parties are now put back in charge. And I think
Speaker 3: that's all of the good. Myself, I'm an old fashioned
Speaker 3: party man.
Speaker 1: So let me just ask you guys both this with
Speaker 1: a couple of weeks ago, and Steve repeated all the
Speaker 1: things he just said about about Stanton, and anyway, I
Speaker 1: mentioned that with the with the appearance of AI and
Speaker 1: in campaign ads on the internet, all of which are
Speaker 1: practically free, that it would undermine some of the the
Speaker 1: some of the effects, some of the import of having
Speaker 1: all of this campaign finance money because people don't watch
Speaker 1: television anymore. So that's one thing. Even though the you know,
Speaker 1: the Republicans have a huge advantage at least the RNC
Speaker 1: over the DNC monetarily, it's like ten times the amount
Speaker 1: of money in the bank. But a deeper question is
Speaker 1: what we're seeing happen to the parties themselves outside the
Speaker 1: realm of campaign finance. So we haven't you know, MAGA
Speaker 1: versus establishment Republicans. By the way, I just want to
Speaker 1: point out that Paxton's now ahead in all the holes
Speaker 1: of transit adjacent to soy boy uhal what's his name,
Speaker 1: tall Rico And But but the other side of it,
Speaker 1: of course, is the Democratic Party struggling with this you know,
Speaker 1: far left wing democratic socialist Colorado New York. You guys
Speaker 1: are all aware of that. So if the party has
Speaker 1: more money to spend in conjunction with a candidate. What
Speaker 1: does that even mean in a in a an election
Speaker 1: this year where the parties are a mess from the
Speaker 1: point of view of being able to have a controlled
Speaker 1: message and to determine who they're who, to determine who
Speaker 1: their candidates are going to be, and so on. That
Speaker 1: that's I'm just throwing it out there. Maybe it doesn't
Speaker 1: even matter, all right.
Speaker 3: A question is open with you, John, what do we get?
Speaker 3: What do we make of what I'm calling the Humphreys straddle.
Speaker 3: So we had Trump versus Slaughter struck down Humphrey's executor
Speaker 3: about the same agency, the Federal Trade Commission. That was
Speaker 3: the original case in nineteen thirty four, I think. And
Speaker 3: then the parallel case is Trump versus the lady at
Speaker 3: the Federal Reserve that he wanted to fire and the
Speaker 3: court said, no, you can't do that. They punted it
Speaker 3: back down to a lower court. So it sounds like
Speaker 3: it's not necessarily over, but they weren't very clear about it.
Speaker 3: So what do we make of that straddle? It does
Speaker 3: seem like a straddle, doesn't it. I mean, the Wall
Speaker 3: Street Journal said, we don't quite understand how they make
Speaker 3: a distinction between one case another. If they're going to
Speaker 3: go to with an unitary executive theory, I.
Speaker 2: Wouldn't say it's atraggle straddle. Maybe it's a straggle, and
Speaker 2: I think it's just like one little pinky sticking out
Speaker 2: from the rest of the body. So the Court in
Speaker 2: the Slaughter case, I think, finally finished its project that's
Speaker 2: been on for twenty years now to reassert the president's
Speaker 2: power to remove any significant officer and the executive branch.
Speaker 2: And then Cook basically says, but we're going to carve
Speaker 2: out this one time exception for the Federal Reserve because
Speaker 2: it's so old, and it's president the founding, and we
Speaker 2: have McCullum, and we fought over it back then. But
Speaker 2: I don't think it's a straddle in the sense. I
Speaker 2: don't think the Cook case is going to come back
Speaker 2: and lead some kind of counter revolution where the Court
Speaker 2: starts granting exceptions left and right for all these other agencies.
Speaker 2: In fact, I think that's the way to describe what
Speaker 2: the majority did to Humphrey's executor, that over time they
Speaker 2: start saying this kind of agency is unconstitutional, that one's unconstitutional,
Speaker 2: and now you have this uniform rule that no executive
Speaker 2: branch agencies are outside the control of the president, and
Speaker 2: so I just think that Cook is just going to
Speaker 2: be this anomaly in that general rule because the constitutional
Speaker 2: not constitutional, but the historical reasons for the bank are
Speaker 2: so important. I don't I can't see the Court, you know,
Speaker 2: after this saying Okay, here's an agency that's really powerful,
Speaker 2: almost as powerful as the Federal Reserve. So we're going
Speaker 2: to allow Congress to protect that agency from presidential control too.
Speaker 2: In fact, I can't even think of what such an
Speaker 2: agency would be other than the Federal Trade Commission, which
Speaker 2: is the one that was struck down just now. So
Speaker 2: I can't don't. I don't think of it as as
Speaker 2: a matter of logic, it doesn't make sense. Which the
Speaker 2: dissenters repeated, you know, the dissenters and Cook pointed out
Speaker 2: over and over again, was that Chief Justice Roberts were
Speaker 2: both opinions. How do you hold both opinions in your
Speaker 2: mind at the same time. They don't make sense. But
Speaker 2: it's more that Slaughter is the general rule, and Cook
Speaker 2: just creates this small blip.
Speaker 1: I agree with that, but I but I would argue
Speaker 1: that I don't. Ultimately, you can talk about the history
Speaker 1: all day long. But either you believe in you adhere
Speaker 1: to the unitary executive ruler, you don't, or you could
Speaker 1: argue perhaps that the FED the bank doesn't exercise executive powers. Now, Hell,
Speaker 1: I don't know, is banking executive powers? Is setting interest
Speaker 1: rates executive powers?
Speaker 3: Is?
Speaker 1: You know whatever? I don't. This is not my area
Speaker 1: of expertise. What I don't get. I don't disagree with
Speaker 1: anything you just said. I do see that the FED
Speaker 1: has been set aside as some sort of special, super
Speaker 1: special something by the Court that that doesn't fall into
Speaker 1: the same category as any other independent executive agency. It
Speaker 1: just the fact that we had a national bank way
Speaker 1: back in the beginning of the constitution, constitutional republic. That
Speaker 1: seems to be enough of an argument to throw away
Speaker 1: the rest of it. To me, That's what I got
Speaker 1: from reading Aldo on that, and that you know the
Speaker 1: FED is different because there's been something like a national
Speaker 1: bank for a long time.
Speaker 2: Well, I mean, if that's the exception, I agree. I
Speaker 2: mean I would rather they have decided to cook the
Speaker 2: other way. Doesn't make sense to me as a matter
Speaker 2: of principle, but I think it's just a matter of
Speaker 2: politically they're just bending to what they think was the
Speaker 2: political reality of it. But the way they define it
Speaker 2: means that no other agency qualifies. There are no other
Speaker 2: big agencies back then.
Speaker 1: Yeah, I'm sorry, So Steve, one last really quick question
Speaker 1: I promised. What they said about Cook's firing is that that,
Speaker 1: in fact, the statue gives the president the power to
Speaker 1: determine at will, but that he can't make any decision whatsoever,
Speaker 1: which means he doesn't have the power. Right, Am I
Speaker 1: wrong in saying no?
Speaker 4: No?
Speaker 2: I think this is actually part of the legal ease
Speaker 2: of the beginning of the opinion. It's more that so
Speaker 2: the statute says she can't be fired except for cause.
Speaker 2: The statute doesn't define for cause, but it must mean
Speaker 2: something greater than at will. So the positure of the
Speaker 2: case is really while that's being litigated, can Trump remove
Speaker 2: her right away? Or can she sit in the office
Speaker 2: until the court reviews the decision? And so that's why
Speaker 2: there's all this language about in the different many opinions
Speaker 2: that this is not settled, this will come back to
Speaker 2: the court, because this is really just about can she
Speaker 2: stay in the job until the court's decide whether lying
Speaker 2: on your mortgage application before you were in office is
Speaker 2: sufficiently for cause. So it'll come back to the court
Speaker 2: unless Cook serves out a term or a new president
Speaker 2: comes in who doesn't want to fire her.
Speaker 3: And we're going to come back after this short break
Speaker 3: for some sponsor messages. Don't go away. All right, Let's
Speaker 3: take up two last cases here, I think, before we
Speaker 3: then give our overall grades for the Court for this term.
Speaker 3: And the two cases. One was the election day case
Speaker 3: and the second was the one on trans athletes. And
Speaker 3: I know the Creach is not happy with the outcome
Speaker 3: of the first one. I think happy with the second one.
Speaker 3: But both of them seemed to me could be set,
Speaker 3: at least on the surface, to rest on the ground
Speaker 3: of federalism. Right. Constitution says states set the terms and
Speaker 3: conditions of elections, and we've given broad latitude with certain
Speaker 3: exceptions of voting rights and so forth. And then the
Speaker 3: trans athlete case. Most of the media is not reporting
Speaker 3: us accurately. They're saying the Supreme Court has banned transgender
Speaker 3: athletes from women's sports. That's not the court, of course,
Speaker 3: but hold that subsidiary point for a moment. But the
Speaker 3: Court said was states can do this if they want to.
Speaker 3: It's a federalism. I think you can say the federalism
Speaker 3: on the surface. Now the question about I think the fundamentally,
Speaker 3: the blind about human nature is at the heart of
Speaker 3: the matter. Anyway, which one of you guys want to
Speaker 3: talk about first?
Speaker 1: I want John to come back and tell me if
Speaker 1: I'm wrong about all of this. What I found really
Speaker 1: most interesting was Thomas Alito both Alito had made this
Speaker 1: argument in an earlier case as well. But this idea
Speaker 1: that strict scrutiny does not apply unless it is the
Speaker 1: categories of persons who are protected under the Equal Protection
Speaker 1: Clause are in fact defined by immutable characteristics. Are you
Speaker 1: following me, John? The idea of race, ethnicity, sex, those
Speaker 1: are immutable characteristics of birth and the fourteenth Amendment. The
Speaker 1: Court's long jurisprudence has said that when you discriminate against
Speaker 1: someone on the basis of those immutable characteristics, you can
Speaker 1: do so only with a very compelling government reason. In
Speaker 1: this case, what they're arguing, what my understanding is part
Speaker 1: of the argument was that sexual identity self chosen sexual
Speaker 1: identity of gender identity is by definition not immutable, and
Speaker 1: therefore it doesn't get the same level of protection. So
Speaker 1: if a state wants to discriminate against people in that category,
Speaker 1: it only has to show a rational purpose.
Speaker 2: Yes, I think the way to think of it is
Speaker 2: that so this is actually this is not to give
Speaker 2: lu Cutia even more ammunition for her constitutional jahads. But
Speaker 2: this is a problem that was created by the Court
Speaker 2: when it's said that women were equal to men, because
Speaker 2: there is no text in the Constitution other than the
Speaker 2: Voting Rights that says that talks about sex equality. So
Speaker 2: the court had to figure out how to do it right.
Speaker 2: The constitutional text makes clear, you know, the fourteenth Amendments
Speaker 2: aim is race and so on. So how did the
Speaker 2: court do it? Well, there's two different ways you could
Speaker 2: look at it, and one is the way you described, Alito.
Speaker 2: The other theory is the ones that the dissenters in
Speaker 2: this opinion us because people, I think a lot of
Speaker 2: people I know say, how could anyone be in favor
Speaker 2: of allowing this of these transgender men to compete in
Speaker 2: women's sports. It's because they're the dissenters are drawing. On
Speaker 2: the other way, you could read the theory of gender quality.
Speaker 2: So Alito's view, which is, I think what the Court's
Speaker 2: majority has long thought was you shouldn't be able to
Speaker 2: discriminate based on what you said, immutable characteristics like right, sex, race,
Speaker 2: things that you can't change about yourself. And that's how
Speaker 2: the Court justified extending the fourteenth Amendment to include women.
Speaker 2: But right, the other approach, which is the approach here
Speaker 2: the left, is not really about your immutable characteristics. They
Speaker 2: would say, well, there are things that we prohibit discrimination
Speaker 2: on the base of which you can change, like religion.
Speaker 2: So they think that it's really about recognizing the dignity
Speaker 2: of every group. Plus and you see this repeat over
Speaker 2: over again the immigration cases, in particular prohibiting the government
Speaker 2: from acting out of malice. Remember that's the core of
Speaker 2: the gay marriage cases was that, well, being gay is
Speaker 2: not an immutable characters because you can't tell, or at
Speaker 2: least I can't tell. I think Lucretia's gaydar is much
Speaker 2: more sensitive than mine, for example, But you can't theoretically
Speaker 2: tell who's you know, gay or not from their appearance.
Speaker 2: They can change that. So the point and the court
Speaker 2: never said that gays were a protected category like gender,
Speaker 2: like ray. So instead they said, we're just stopping government
Speaker 2: from hate. Right and so that's really what that's the
Speaker 2: other theory about why you're allowed to prohibit sex discrimination
Speaker 2: when it's not in the text of the Constitution. So
Speaker 2: that's where the two right, that's how you see this
Speaker 2: difference arise. I think the liberal the centers are wrong.
Speaker 2: I wouldn't read those cases that the gender discrimination cases
Speaker 2: that way, but it's a legitimate way to approach it.
Speaker 2: I mean, the Court does say things like that from
Speaker 2: time to time. The gay marriage cases are their best
Speaker 2: cases because Kennedy led the Court in this direction.
Speaker 1: But I do have one quick thing. Technically speaking, the
Speaker 1: Court has actually never put sex in the same category
Speaker 1: as other suspect classifications. It is actually a sex. The
Speaker 1: difference between men and women now is what I'm talking
Speaker 1: about here. Biological sex is not assessment category critics. It
Speaker 1: gets it has to prove. The burden of the proof
Speaker 1: is still in the government, but it has to show
Speaker 1: an important governmental interest rather than a compelling governmental interest
Speaker 1: because the immutable characteristics of the difference between the sexes
Speaker 1: sometimes actually has to be recognized by the law. That
Speaker 1: was the theory behind it.
Speaker 3: Correct.
Speaker 2: Yeah, And though they rarely uphold restrictions on women anymore
Speaker 2: like the one they did used to was combat in
Speaker 2: the military, things like that.
Speaker 1: Or even the secret Selective Service, which is still.
Speaker 2: All it's all related to national security because that is
Speaker 2: a compelling interest, the court has said. But no, I
Speaker 2: agree with you. They just I mean, I think, you know,
Speaker 2: the logic that you agree with that I agree with
Speaker 2: would have led to a different outcome in the gay
Speaker 2: marriage cases.
Speaker 3: Yeah, all right, So let's uh the election day case.
Speaker 2: Right?
Speaker 3: What does election day mean?
Speaker 2: Now?
Speaker 3: On the one hand, as I suggested that the setup,
Speaker 3: it's you know, the Constitution does say we leave the
Speaker 3: states lots of latitude and determining the conditions of their
Speaker 3: elections and so forth. But is there not, and this
Speaker 3: may be is a little bit like birthright citizenship change
Speaker 3: in circumstances, is there not a compelling a U was
Speaker 3: compelling state interest?
Speaker 2: Toge?
Speaker 3: I hate that phrase. But is there not a national
Speaker 3: interest in some degree of uniformity of our election laws?
Speaker 3: So we don't have these suspect anomalies like California taking
Speaker 3: weeks to count all its votes, Oregon taking a month
Speaker 3: to count all its votes back in the two thousand election,
Speaker 3: and so forth. It seems to me that that one
Speaker 3: could have gone the other way, but I haven't.
Speaker 2: He I mean, you got no no, I mean you
Speaker 2: guys are a lot of the comments you guys make
Speaker 2: on these cases is what aren't the more reasonable rational
Speaker 2: thing for the government to do? Is this? How can
Speaker 2: the court reach an outcome that allows the law actually
Speaker 2: to be irrational? And I agree with you, it would
Speaker 2: be better if there were standardized approaches to many things
Speaker 2: involving elections. The court didn't. But then that's the thing
Speaker 2: the court. This is a fairly narrow case that all
Speaker 2: the court the Court did not say that Congress couldn't
Speaker 2: do that. If Congress wanted to pass the law that
Speaker 2: said you have to report in the vote totals by
Speaker 2: x time, you know, two days after the election, you
Speaker 2: even have to use this procedure for counting the votes.
Speaker 2: The opinion makes clear that Congress has that power. All
Speaker 2: the Court is saying is when Congress set the election day,
Speaker 2: it wasn't trying to regulate, which it could, but it
Speaker 2: just wasn't regulating counting, how long it takes to count
Speaker 2: and so on. It just was setting the election day,
Speaker 2: not all those other procedures. So it's just the Congress
Speaker 2: would passed the statute narrowly.
Speaker 1: It was just the Constitution sets election day, right.
Speaker 2: And it says that it's up to Congress to set
Speaker 2: the election day.
Speaker 1: But doesn't the Constitution say the first Tuesday after the
Speaker 1: first Monday in November.
Speaker 2: I think it says that Congress can also set it.
Speaker 2: I think it's I mean, I have to look it
Speaker 2: up again, but I thought Congress has a discretion to
Speaker 2: change it.
Speaker 3: Yeah, all right, let's get out of all this for now.
Speaker 3: I want to get from each of you. You're overall
Speaker 3: grade for the Supreme Court for the term just ended,
Speaker 3: and then you can tell me why you know how
Speaker 3: you grade. I'll give you. I'll give you mine. Last,
Speaker 3: I'll tell you what I'll go.
Speaker 2: Are we're doing on Harvard grades or real no Harvard grade? Yeah,
Speaker 2: because they get an eight plus at Harvard.
Speaker 3: Well, we could do the Harvey Mansfield scheme, right, script
Speaker 3: grade and then they're real grade, right Harvey C minus Mansfield. Right.
Speaker 3: I tell you what I actually give the court, a
Speaker 3: B plus. I am grading a bit on a curve
Speaker 3: based on previous cases. You know. Another version of what
Speaker 3: I said a moment ago is that I'll bet the
Speaker 3: Burger Court just forty years ago. They wouldn't have even
Speaker 3: taken the Burgerti case. They would have simply rejected the
Speaker 3: certain petition and let the district court case striking down
Speaker 3: Trump executive order stand. They wouldn't even heard your arguments.
Speaker 3: So that's a disappointment. But I think the overall tendency
Speaker 3: is a good one, and so I give them a
Speaker 3: B plus. Lucrechie, do you want to go next?
Speaker 1: So I will do. I will base my grade upon
Speaker 1: some stuff that's been going up on in the uh,
Speaker 1: in the chat. Some back and forth it's been going
Speaker 1: on in the chat. And you know what John and
Speaker 1: I have in common, Uh, there are things believed or not.
Speaker 1: One of them is our belief that Roberts is very
Speaker 1: much committed to this idea of balance on the court.
Speaker 1: And I mentioned to somebody that, you know, Earl Warren
Speaker 1: never gave a damn about balance. He just kept on
Speaker 1: destroying our constitution case after case after case and didn't
Speaker 1: care that. You know, there were posters up all over
Speaker 1: billboards up all over the South saying and Peter Old
Speaker 1: Warren anyway, I I don't like that idea that you know,
Speaker 1: maybe Amy Coney Barrett or Roberts, who even even Kavanaugh thought, well,
Speaker 1: this is gonna look like we're really Trump Court if
Speaker 1: we're not careful. So that one last really quick thing
Speaker 1: before you go to John. I read somewhere of the
Speaker 1: town hall X somewhere that said they had removed all
Speaker 1: of the riot barriers and protections from in front of
Speaker 1: the Supreme Court the night before they issued the birthright
Speaker 1: citizenship case. And that was a clear indication to what, well,
Speaker 1: we know that good solid right wing people, patriotic people
Speaker 1: don't riot, and so they knew that the birthright citizenship
Speaker 1: was the case was going to go the way of
Speaker 1: the left. And you know that in and of itself
Speaker 1: is just cringey. We're not supposed to be playing the
Speaker 1: game that way. So on that basis, I give it a.
Speaker 2: D D wow, I actually think.
Speaker 1: But I gave it Clarence Thomas and Aleo a plus's
Speaker 1: and they get they get extra credit to.
Speaker 2: I would give them a B plus. And I think
Speaker 2: that's because I think we should appreciate how far the
Speaker 2: Court has come from where it was where these cases,
Speaker 2: even though you don't like the outcomes, are being conducted
Speaker 2: on originalist grounds. The removal cases now you have a
Speaker 2: difference about how often how much originalist weight you need
Speaker 2: to overcome precedent, which is really a question like judicial
Speaker 2: I don't know field. There's no formula toward and that's
Speaker 2: why they you know, that's why we put them in
Speaker 2: the Jodger's No, you know, there's no algorithm that produces
Speaker 2: the right exactly the right outcome. But if you want.
Speaker 5: Uh huh so if you if you if you wanted
Speaker 5: to do if you want to just but if you wanted.
Speaker 2: To compare these cases to like what Steve was talking about,
Speaker 2: the Warren court cases or even Burger court cases, they're
Speaker 2: completely different. Nobody's out there saying, you know, the national
Speaker 2: public interest causes me to decide it this way, or
Speaker 2: that I must do what's right because of just the
Speaker 2: principle of humanity, or the decisions are much narrower now,
Speaker 2: and they're conducted on the basis of things that you
Speaker 2: and I can argue about. Right that before it was
Speaker 2: just people who had power and had their own personal
Speaker 2: political philosophies they.
Speaker 3: Were imposing on us.
Speaker 2: So I think this is a great improvement. I wouldn't
Speaker 2: have decided a number of the cases the way the
Speaker 2: court does. But in general, I like the way the
Speaker 2: method they have been using, I think is such a
Speaker 2: dramatic improvement from where we were as long as recently
Speaker 2: as with Anthony and Kennedy was on the court, that's
Speaker 2: when it changed.
Speaker 3: That it seems to me our team has the initiative
Speaker 3: right now. We're bringing the big cases, challenging and succeeding,
Speaker 3: not always and not completely and clearly as they ought to,
Speaker 3: but that it seems to be new. Even in the
Speaker 3: last fifteen years, we were still in defensive browse constitutionalism,
Speaker 3: recently as the George W. Bush. But we're going to
Speaker 3: take one last quick and then we're going to move
Speaker 3: to away very quick, ending with some of our usual
Speaker 3: silly stuff we do at the beginning, and then close
Speaker 3: out this first of two special episodes for July fourth,
Speaker 3: don't go away. Hi, everybody, it's Steve here to introduce
Speaker 3: you to a brand new podcast on the Ricochet Family.
Speaker 3: It's called the Future Freedom Podcast. So what if political
Speaker 3: disagreement didn't have to become political warfare? Well, that's the
Speaker 3: idea behind the Future of Freedom Podcast. Each week, two
Speaker 3: liberty minded thinkers tackle a major issue from different perspectives.
Speaker 3: One conversation, two viewpoints, no yelling, no dunking, no debate,
Speaker 3: stage theatrics. For that, you've got to stay here with
Speaker 3: us at the three Wisky Happy Hour. I think the
Speaker 3: Future Freedom podcast just aims to have thoughtful arguments presented
Speaker 3: in good faith, giving listeners the chance to weigh the
Speaker 3: evidence and reach their own conclusions in immediate and vironment.
Speaker 3: Built for outrage, the Future of Freedom podcast is built
Speaker 3: for curiosity. So please listen to the Future of Freedom
Speaker 3: here on Ricochet or wherever you get your podcasts. And
Speaker 3: now back to the three Whiskey Happy Hour. All right, Lucretia,
Speaker 3: give us another headline from the New America's newspaper Record
Speaker 3: to send us out.
Speaker 1: In most exciting moment in history of w NBA, woman
Speaker 1: points at other woman.
Speaker 3: Now, John, who is ignorant of all things sports and
Speaker 3: popular culture doesn't know this refers to Sophie Cunningham, who
Speaker 3: we related this. John. She is displacing Sidney Sweeney as
Speaker 3: our heroin woman that America needs just now right, I
Speaker 3: don't you know, the WNBA is ridiculous, almost ridiculous as
Speaker 3: World Cup soccer in the United States.
Speaker 2: But I like football and basketball, football, baseball and soccer, right,
Speaker 2: soccer soccer, but basketball is just people cheating all the time,
Speaker 2: trying to get raps to I mean, every play the
Speaker 2: raps are calling something. It's so ridiculous.
Speaker 3: Actually they're not. They don't call. They haven't called traveling
Speaker 3: in the NBA for twenty five years now. I think
Speaker 3: it's but you.
Speaker 2: Make a sound near Lebron and there's a foul. Yeah.
Speaker 3: But let's just say this. My weekend pictures of Powerline
Speaker 3: this week is going to have a whole gallery of
Speaker 3: Sophie Cunningham pointing at things, and she's like the new
Speaker 3: heroin for its.
Speaker 2: But I like the one where she'suputing because she was
Speaker 2: pointing at someone saying, stop picking on the other player.
Speaker 2: Caitlin Clark is at it.
Speaker 3: Yeah, it's something like that, right, Yeah, but uh, I
Speaker 3: like it what she.
Speaker 1: Was pointing at Amy Coheney Barrett saying we didn't fight
Speaker 1: to get you on the court for this crap.
Speaker 2: Art has been so conservative. She voted for the parity
Speaker 2: of birthright and everyone wants to expel her from the
Speaker 2: conservative movement all of a sudden.
Speaker 3: Oh, let's not have this argument.
Speaker 1: Also, the.
Speaker 2: What are you going on? Dobbs on the Harvard case.
Speaker 2: I mean the election time. It's important.
Speaker 3: Little what whiskey are you guys drinking? So we can
Speaker 3: get to the end.
Speaker 2: I forgot I'm having a pot sized will it this gigantic?
Speaker 2: Here's the thing I really want to show you guys,
Speaker 2: is I'm eating it with this new flavor of laced
Speaker 2: potato chips.
Speaker 3: They can drill cheese.
Speaker 2: Oh that's bacon grilled cheese flavor.
Speaker 1: That awesome.
Speaker 5: Only in America? Could you have bacon grilled cheese flavored potato.
Speaker 1: Chip the bies in Arizona.
Speaker 3: I have heard that. Yes, that is wonderful news.
Speaker 1: And hobbs.
Speaker 3: Yeah, I've got an O.
Speaker 2: Bond bond fourteen.
Speaker 3: Last week I had something I did not know existed.
Speaker 3: I have stuff's either called amroot or ambrot. I'm not sure.
Speaker 3: It's Indian, as in from India, single mall, half peaty
Speaker 3: age and oak barrels. I think even Lucretia might like it.
Speaker 3: But first of all, two things, is this cultural appropriation?
Speaker 3: Or is India, which still is installing air conditioning unlike
Speaker 3: United Kingdom? Are they actually planning to take over whiskey?
Speaker 3: Why do I say that? I don't know if I've
Speaker 3: shared the news with you guys that the crazy net
Speaker 3: zero insane people in England are talking about banning.
Speaker 2: Oh yeah, I saw that.
Speaker 3: And and if you know, if you say you can't
Speaker 3: have pete, well that's for the end of an awful
Speaker 3: lot of single malt scotch whiskey. And that's communism.
Speaker 2: But isn't it also imperialism, beautiful aspect of imperialism that
Speaker 2: in India they're making scotch because they were part of
Speaker 2: the empire.
Speaker 3: M h, yeah, that's right, that's exactly, and you know,
Speaker 3: part of democracy and all that's yeah. I bet they
Speaker 3: count all their votes on one day. In any case,
Speaker 3: we are done for the first of two episodes. We're
Speaker 3: going to start the other one here in just a minute.
Speaker 3: For those of you watching the live stream.
Speaker 1: Oh I thought they already had No, we haven't.
Speaker 3: We're still going. And actually I'll just instead of doing
Speaker 3: the usual one John about buying more books all that,
Speaker 3: I'll just say you've been listening to three Whiskey Happy Hour,
Speaker 3: don't go away. Tune in tomorrow. If you're listening to
Speaker 3: the audio only by download. We'll have another episode up
Speaker 3: tomorrow on the fourth of July. So Happy holidays, everybody.
Speaker 2: Gone, the judge gone, the.
Speaker 3: Jug Ricochet join the conversation.