WEBVTT 1 00:00:07.160 --> 00:00:11.400 It's the Three Whiskey Happy Hour, the podcast dedicated to 2 00:00:11.480 --> 00:00:15.919 single malts and blended opinions with your hosts Steve Hayward, 3 00:00:16.120 --> 00:00:21.719 John You, and some mystery woman named Lucretia, along with 4 00:00:21.760 --> 00:00:25.760 the floating cast of regular guests. So pour yourself, adron 5 00:00:26.120 --> 00:00:29.760 and settle in for another episode of one hundred proof Conversation. 6 00:00:36.159 --> 00:00:39.840 Welcome to this very special emergency podcast of the Three 7 00:00:39.840 --> 00:00:43.200 Whisky Happy Hour. Just to mention it, we actually already 8 00:00:43.240 --> 00:00:46.000 have this week's complete episode in the can. We recorded 9 00:00:46.039 --> 00:00:49.479 early this week for schedule reasons. We have Philmonio's from 10 00:00:49.479 --> 00:00:52.359 Notre Dame in for John You. This week. We also 11 00:00:52.479 --> 00:00:57.600 have a special guest appearance cameo appearance from Henry Kissinger. 12 00:00:58.479 --> 00:01:01.240 I think you'll find fun, and we do, for maybe 13 00:01:01.280 --> 00:01:04.359 about thirty seconds, take up the background of one of 14 00:01:04.359 --> 00:01:06.079 the main issues we want to talk about today. So 15 00:01:06.159 --> 00:01:10.519 the reason do I asked Lucretia on short notice, rushing 16 00:01:10.519 --> 00:01:12.719 back from the vet with her dogs, if she could 17 00:01:13.120 --> 00:01:16.799 join an emergency podcast is Trump has issued these executive 18 00:01:16.879 --> 00:01:21.079 orders today trying to, what do you say, reconstruct his 19 00:01:21.560 --> 00:01:25.599 policies against birthright citizenship. And you know, I don't even 20 00:01:25.640 --> 00:01:27.280 need to wait for the news tonight. I don't need 21 00:01:27.280 --> 00:01:29.280 to get on Twitter and Blue Sky to watch the 22 00:01:29.400 --> 00:01:32.879 left go berserk and the mainstream media. But I repeat myself, 23 00:01:32.959 --> 00:01:35.840 We're going to say Trump's define the Supreme Court. Trump's 24 00:01:35.840 --> 00:01:39.040 shredding the Constitution, He's attacking the Constitution, and this is 25 00:01:39.079 --> 00:01:41.920 all completely wrongheaded. And so I thought, let's get out 26 00:01:41.920 --> 00:01:44.280 ahead of us a little bit with our audience. And 27 00:01:45.000 --> 00:01:47.760 so here we are, so lucretia, how do you want 28 00:01:47.799 --> 00:01:50.359 to start on this? We both I haven't even showered day. 29 00:01:50.359 --> 00:01:52.560 I'm going a T shirt that's one for copy this morning. 30 00:01:52.560 --> 00:01:54.439 I've been so busy. But how do you want to 31 00:01:54.480 --> 00:01:56.040 start this? Do you want to explain what it says? 32 00:01:56.159 --> 00:01:57.400 Or do you want to go straight to the core 33 00:01:57.480 --> 00:02:00.280 constitutional argument? Or do you want to mention and that 34 00:02:00.719 --> 00:02:04.319 you know the important point that Trump asked the court 35 00:02:04.359 --> 00:02:05.439 to rehear the case. 36 00:02:05.519 --> 00:02:08.759 He did not no, no, no, he did not ask Here's 37 00:02:08.759 --> 00:02:14.120 the point. He indicated several weeks ago that the decision 38 00:02:14.159 --> 00:02:18.759 itself was so egregiously wrong and for all these reasons 39 00:02:19.280 --> 00:02:23.199 that he was going to ask the Court for a rehearing, 40 00:02:23.240 --> 00:02:27.199 which does happen on occasion. The court rarely grants those. 41 00:02:27.639 --> 00:02:29.520 John yu was very quick to point that out to me. 42 00:02:29.599 --> 00:02:32.599 But there's also a time limit. That time limit expired 43 00:02:32.639 --> 00:02:34.919 a couple of days ago. He did not go back, 44 00:02:35.319 --> 00:02:39.800 even though rumor had had it out there that Amy 45 00:02:39.840 --> 00:02:44.240 Coney Barrett was perhaps considering and I don't know if 46 00:02:44.240 --> 00:02:47.479 that was you know, that that could have been fake news. 47 00:02:47.520 --> 00:02:52.400 She was of course vilified very very strongly in in 48 00:02:52.439 --> 00:02:55.960 the media, but especially by the conservative punditry and so 49 00:02:56.000 --> 00:03:01.479 forth for her role in joining the dread Howard Roberts 50 00:03:01.479 --> 00:03:07.560 in the majority decision. That being said, I think it's 51 00:03:07.639 --> 00:03:11.960 not unreasonable to assume that because Trump decided that a 52 00:03:12.039 --> 00:03:16.080 rehearing would just be another loss, you know, a request 53 00:03:16.120 --> 00:03:18.520 for rehearing was probably going to be met with a no, 54 00:03:19.280 --> 00:03:23.879 that he decided to do this as especially since it's 55 00:03:23.919 --> 00:03:27.039 such a short amount of time after the rehearing deadline 56 00:03:27.080 --> 00:03:34.639 passed to find the find the openings in the Barbi 57 00:03:34.719 --> 00:03:41.080 Trump versus Barber case, to define in a more specific 58 00:03:41.159 --> 00:03:45.919 way who those people were who were not included in 59 00:03:46.039 --> 00:03:50.919 the subject to the jurisdiction of the United States phraseology. 60 00:03:51.280 --> 00:03:55.520 And so we're told that it is, of course diplomats, 61 00:03:56.719 --> 00:04:02.919 children of diplomats, children of aliens. It's a variety of 62 00:04:03.000 --> 00:04:08.319 interesting uh formulations about the people that are the children 63 00:04:08.400 --> 00:04:11.000 of people who are excluded. But one of the major 64 00:04:11.120 --> 00:04:14.479 reasons to do this, of course, is to which is 65 00:04:14.520 --> 00:04:19.879 something that that that I believe that Kavanaugh's uh concurring 66 00:04:19.959 --> 00:04:24.439 opinion UH left open was this idea that in fact, 67 00:04:24.600 --> 00:04:30.839 a very hard crackdown under the president's actual powers of 68 00:04:31.399 --> 00:04:40.399 already existing laws to stop birthright tourism, uh is one 69 00:04:40.439 --> 00:04:45.879 of the major folk I of this particular uh executive order. 70 00:04:46.360 --> 00:04:48.399 Well, I know it's one thing I haven't mastered this 71 00:04:48.439 --> 00:04:50.879 thing at all yet, because at a time I did 72 00:04:51.000 --> 00:04:53.800 notice one thing in the Wall Street Journal news story 73 00:04:53.800 --> 00:04:56.639 about it, which has already been updated twice this afternoon, 74 00:04:57.120 --> 00:05:01.000 and it said that, uh that the Trump administry or 75 00:05:01.040 --> 00:05:04.160 actually some private organization, the Migration Research Ins too something 76 00:05:04.199 --> 00:05:09.160 like that, has identified, for example, ninety six hundred newborns 77 00:05:09.160 --> 00:05:11.279 in the United States in twenty twenty four where the 78 00:05:11.319 --> 00:05:16.000 mothers gave foreign addresses on the hospital paperwork, which means 79 00:05:16.040 --> 00:05:19.319 they're not even trying to pretend that they're under the 80 00:05:19.399 --> 00:05:21.920 jurisdiction of the United States, right, And that's some one 81 00:05:21.920 --> 00:05:24.959 of those little sort of webshots. I think that forces 82 00:05:25.000 --> 00:05:27.439 the issue at least sharpens it a bit and moves 83 00:05:27.439 --> 00:05:28.360 the ball down the field. 84 00:05:28.759 --> 00:05:31.800 So you know, this is a new topic for a 85 00:05:31.800 --> 00:05:34.079 lot of people out there. For me, it's a very 86 00:05:34.120 --> 00:05:38.120 different thing. I actually know quite a few people who 87 00:05:38.759 --> 00:05:46.279 are Mexican citizens. There's a hospital in a place not 88 00:05:46.319 --> 00:05:49.000 far about fifty miles from where I live, or was 89 00:05:49.040 --> 00:05:51.839 of hospital in Douglas, which is a port of entry 90 00:05:52.560 --> 00:05:57.079 on the southern Arizona border. The hospital would take cash 91 00:05:57.160 --> 00:06:05.120 payments from Mexican citizens, Mexican pregnant Mexican mothers, and if 92 00:06:05.160 --> 00:06:09.439 you paid up for delivery at that hospital, then when 93 00:06:09.839 --> 00:06:13.519 time came to deliver, you could cross on whatever visa 94 00:06:13.560 --> 00:06:17.319 you had have your baby. And I actually probably know 95 00:06:18.240 --> 00:06:21.279 two dozen people whose citizenship was established that way. It 96 00:06:21.319 --> 00:06:24.720 was a long time practice. Now it wasn't a business, 97 00:06:24.879 --> 00:06:27.240 it was just a practice. They shut that hospital down 98 00:06:27.720 --> 00:06:30.959 in part because that came under a lot of scrutiny. 99 00:06:31.319 --> 00:06:35.560 But it is a problem. And whether it's the ninety 100 00:06:35.600 --> 00:06:39.759 six whatever it was ninety six hundred or two thousand 101 00:06:40.120 --> 00:06:43.680 that they estimate, it's a problem, and not so much 102 00:06:44.160 --> 00:06:48.160 necessarily just because of rich Chinese or rich Russians or 103 00:06:48.160 --> 00:06:50.399 what have you. It's a problem about who else is 104 00:06:50.439 --> 00:06:53.800 allowed to come here and establish citizenship. And then let's 105 00:06:53.800 --> 00:06:57.839 never forget all of the benefits that come to the 106 00:06:57.879 --> 00:07:02.759 family of an American citizen infant. I mean, you see 107 00:07:02.800 --> 00:07:05.759 it from the other point of view, all of this, oh, 108 00:07:05.879 --> 00:07:09.639 this honor of seventeen children here who are some of 109 00:07:09.639 --> 00:07:12.959 from are citizens. A legal amen is being sent back 110 00:07:13.000 --> 00:07:19.079 to his country. Okay, right, great, So. 111 00:07:19.240 --> 00:07:21.199 Now, by the way, a great hair guy says, it's 112 00:07:21.240 --> 00:07:24.439 a two whiskey Thursday. So John Hugh was on trance 113 00:07:24.439 --> 00:07:26.480 of to day, of course, like almost every day, I'm 114 00:07:26.519 --> 00:07:28.639 having a lefroy here at four thirty in the afternoon, 115 00:07:28.720 --> 00:07:31.519 just because. And Lucretia, do you need to go into 116 00:07:31.519 --> 00:07:31.920 the kitchen? 117 00:07:31.959 --> 00:07:34.759 I do, I do, but I'm too thirsty yet to 118 00:07:34.879 --> 00:07:39.319 do so. And this is already gone. I will tell 119 00:07:39.360 --> 00:07:41.959 you that I'm sorry. John and I are in the midst. 120 00:07:42.000 --> 00:07:43.720 Some of you may know. John and I are in 121 00:07:43.759 --> 00:07:47.759 the midst. And I've already and back and forth on 122 00:07:47.800 --> 00:07:50.720 the question of birthright citizenship. He believes that the court 123 00:07:50.759 --> 00:07:53.000 was right for a whole variety of reasons. I'm sure 124 00:07:53.040 --> 00:07:55.439 that if you haven't actually linked to that back and 125 00:07:55.439 --> 00:07:56.759 forth Stevie, should I haven't. 126 00:07:56.959 --> 00:07:57.720 We've tried to. 127 00:07:57.879 --> 00:07:59.800 Yeah, yeah, it's a good idea. 128 00:07:59.839 --> 00:08:03.639 But is the first installments already up at Civitas. 129 00:08:04.040 --> 00:08:06.600 Yes, yes, one was on the I want to say 130 00:08:06.600 --> 00:08:09.240 the Friday, and Jones followed on Monday. But I have 131 00:08:09.360 --> 00:08:14.399 my I have already given John my rejoinder. And here's 132 00:08:14.439 --> 00:08:16.839 an interesting thing, Steve, I want to mention this, even 133 00:08:16.879 --> 00:08:21.040 though it's it's you know, probably like uh sneaking the 134 00:08:21.120 --> 00:08:25.800 ending in. If you look at the wording of the 135 00:08:25.839 --> 00:08:28.879 citizenship clause of the fourteenth Amendment, it says all persons 136 00:08:29.000 --> 00:08:34.759 born or naturalized right. And if you go into federal 137 00:08:34.840 --> 00:08:38.240 law and federal regulations persistent pursue it to that law, 138 00:08:38.559 --> 00:08:43.679 what you will find are there are very specific requirements 139 00:08:43.759 --> 00:08:48.480 for a person to become naturalized. One of which is 140 00:08:48.519 --> 00:08:52.480 that you cannot have any allegiance to a foreign power, 141 00:08:52.559 --> 00:08:55.840 foreign sovereign, foreign prints, et cetera, et cetera. Another is 142 00:08:55.879 --> 00:08:59.960 you have to you know, be in uh, I forget 143 00:09:00.080 --> 00:09:02.399 the exact terminology. You can't be breaking the laws of 144 00:09:02.440 --> 00:09:05.559 the United States, basically, right, and or you don't get 145 00:09:05.600 --> 00:09:09.039 to become a naturalized citizen. So My argument to John, 146 00:09:09.080 --> 00:09:11.080 we'll see what he comes back with, is why would 147 00:09:11.159 --> 00:09:17.519 the Constitution then be interpreted to allow the children of parents, 148 00:09:17.919 --> 00:09:21.440 you know, whose citizenship is determined then by those parents. 149 00:09:21.519 --> 00:09:25.039 Why would an infant whose parents brought him or her 150 00:09:25.120 --> 00:09:28.799 here to under circumstances where they were here illegally, or 151 00:09:28.840 --> 00:09:33.639 they did so actually somehow nefariously, under birth tourism or something, 152 00:09:33.840 --> 00:09:37.159 why would they get to become citizens? But a naturalized 153 00:09:37.159 --> 00:09:41.200 citizen has to in fact absolve allegiance to another country, 154 00:09:41.200 --> 00:09:45.600 and soon there should not be two separate standards for 155 00:09:45.679 --> 00:09:49.480 being a birthright citizen versus a naturalized citizen. 156 00:09:50.080 --> 00:09:52.879 You know, I'm having flashbacks to Marbury for a minute. 157 00:09:52.919 --> 00:09:56.960 Do you remember Marshall's opinion turned on if what was it? 158 00:09:57.000 --> 00:10:00.639 You know, original jurisdiction, if that, if it meant that 159 00:10:01.039 --> 00:10:03.519 it could be any I'm I'm this is problem. I'm 160 00:10:03.519 --> 00:10:05.120 trying to do this for memory. I'm doing it badly. 161 00:10:05.200 --> 00:10:07.559 But the point was he said, if those words don't 162 00:10:07.600 --> 00:10:11.960 have a restrictive meaning, then they're mereser plusage and legal 163 00:10:12.039 --> 00:10:15.279 language should be mere. So your point about naturalization, if 164 00:10:15.799 --> 00:10:19.840 birthright citizenship is automatic slam dunk, then that term becomes 165 00:10:19.919 --> 00:10:22.200 mister plusage in the fourteenth Amendment. I don't know if 166 00:10:22.240 --> 00:10:24.360 that's been developed or not, but because I didn't think 167 00:10:24.399 --> 00:10:25.120 of it till just now. 168 00:10:25.200 --> 00:10:28.200 But oh, I mean actually believe it or not. Ed 169 00:10:28.200 --> 00:10:30.240 Earler talked about that. 170 00:10:30.399 --> 00:10:31.200 I believe, of course. 171 00:10:31.279 --> 00:10:34.080 Yeah, no, of course, but I mean, yeah, that is 172 00:10:34.120 --> 00:10:38.039 a very a very good argument that subject to the 173 00:10:38.120 --> 00:10:41.960 jurisdiction has a specific meaning. It does not mean anybody 174 00:10:42.000 --> 00:10:45.120 on the territory subject to the laws of the United States. 175 00:10:45.320 --> 00:10:47.720 It doesn't mean that in any way, shape or form. 176 00:10:47.840 --> 00:10:51.639 It refers directly back to the language of the Civil 177 00:10:51.720 --> 00:10:55.039 Rights Act of eighteen sixty six, which the Fourteenth Amendment 178 00:10:55.519 --> 00:10:59.960 was passed because there were there was a question about 179 00:11:00.080 --> 00:11:02.879 whether or not Congress under the Thirteenth Amendment had the 180 00:11:02.919 --> 00:11:05.960 power to pass the Civil Rights Act of eighteen sixty six. 181 00:11:06.039 --> 00:11:11.200 So the whole citizenship clause of the Fourteenth Amendment is 182 00:11:11.279 --> 00:11:14.519 to make sure that the legislation passed by Congress in 183 00:11:14.559 --> 00:11:18.159 the Civil Rights Act of eighteen sixty six becomes operational. 184 00:11:18.240 --> 00:11:21.399 I guess that's the right where the implementation implementable, and 185 00:11:21.840 --> 00:11:29.240 the civil rights case is very clear. Subjectuist jurisdiction excludes aliens, 186 00:11:30.320 --> 00:11:37.440 right diplomats, those who invading armies, and Indians not taxed. 187 00:11:38.320 --> 00:11:42.080 Indians not taxed, John, my good friend John tries to 188 00:11:42.320 --> 00:11:45.000 argue that it's not fair to do this when he's 189 00:11:45.000 --> 00:11:48.279 not here. But he tries to argue that that Indians 190 00:11:48.320 --> 00:11:51.639 not tax is the only exception to the subject to 191 00:11:51.679 --> 00:11:57.240 the jurisdiction rule Congress. The Constitution explicitly says that, except 192 00:11:57.279 --> 00:12:00.919 it doesn't say that. In the first paragraph, that first 193 00:12:00.960 --> 00:12:03.480 section of the Fourteenth Amendment, it says it with respect 194 00:12:03.679 --> 00:12:07.000 to overturning the three Fists compromise repeats the same language 195 00:12:07.000 --> 00:12:09.320 excludes Indians not text. You can look this up yourself 196 00:12:09.320 --> 00:12:11.720 on the Fourteenth Amendment. The point of the matter is 197 00:12:12.960 --> 00:12:19.360 that there were categories of persons that under the Civil 198 00:12:19.399 --> 00:12:23.200 Rights Act of eighteen sixty six were specifically excluded, and 199 00:12:23.240 --> 00:12:27.440 those included Indians, They included aliens, those included those with 200 00:12:27.519 --> 00:12:32.879 allegiances to other countries. And the legislative history of the 201 00:12:32.879 --> 00:12:36.559 Fourteenth Amendment very clearly indicates that it is putting in 202 00:12:36.639 --> 00:12:39.600 place and using subject to the jurisdiction thereof as the 203 00:12:39.679 --> 00:12:42.480 catch all phrase for the very same people for which 204 00:12:42.519 --> 00:12:45.519 exceptions were made in the Civil Rights Act of eighteen 205 00:12:45.559 --> 00:12:49.480 sixty six. Anybody who reads the Fourteenth Amendment legislative debates 206 00:12:49.519 --> 00:12:53.000 sees that that's exactly the point the court didn't read it. Sorry, 207 00:12:53.080 --> 00:12:54.200 I got off of That's all right. 208 00:12:54.399 --> 00:12:56.440 Yeah, I'd like to do here because I want to 209 00:12:56.480 --> 00:12:58.960 ask you stick to a half hour. I'd like to 210 00:12:59.080 --> 00:13:02.799 draw back for a moment from the legal train of 211 00:13:02.919 --> 00:13:06.480 arguments and talk about the political and broader constitutional arguments 212 00:13:06.480 --> 00:13:08.919 and how citizens should think about this, because, you know, 213 00:13:08.960 --> 00:13:10.639 I said at the beginning, you know what the left 214 00:13:10.639 --> 00:13:12.720 and the media are going to say, you know, Trump's 215 00:13:12.720 --> 00:13:15.200 define a court to find a constitution. And here I think, 216 00:13:15.480 --> 00:13:17.440 I know we've talked about this in the years past 217 00:13:18.200 --> 00:13:20.679 in our podcast, but I think maybe we should do 218 00:13:20.720 --> 00:13:23.679 a refresher. When I heard people say I was gonna 219 00:13:23.679 --> 00:13:25.879 be said, I immediately think back to the way Lincoln 220 00:13:26.799 --> 00:13:30.080 talked about how we should think about the dred Scott case, 221 00:13:30.879 --> 00:13:33.159 which of course drew upon Andrew Jackson and the whole 222 00:13:33.159 --> 00:13:35.559 idea that well, let me pause here and say that 223 00:13:35.840 --> 00:13:37.600 one of the things that Phil Muno says in his 224 00:13:37.720 --> 00:13:39.720 article we're discussing in the main episode in a couple 225 00:13:39.759 --> 00:13:42.480 of days is how's he put it, the Constitution was 226 00:13:42.519 --> 00:13:45.159 made for the people of the United States. It was 227 00:13:45.279 --> 00:13:48.320 not made for the judges of the United States. Right, 228 00:13:49.000 --> 00:13:51.120 the preamble does not say we the judges of the 229 00:13:51.200 --> 00:13:54.679 United States? Is we the people? Right? Pretty straightforward what 230 00:13:54.720 --> 00:13:56.679 that ought to mean. And he said it's been a mistake. 231 00:13:56.759 --> 00:13:59.519 And by the way, I think he's preaching him lucretia 232 00:14:00.080 --> 00:14:02.000 a stake to think that the Supreme Court has the 233 00:14:02.039 --> 00:14:05.120 primary or last word on this subject. So Trump is 234 00:14:05.320 --> 00:14:09.879 properly contesting the Supreme Court for how the Constitution should be. 235 00:14:10.480 --> 00:14:12.559 I mean, I've made this rantom four when you know 236 00:14:12.759 --> 00:14:15.639 President George W. Bush sidon McCain fine goldat and said, 237 00:14:15.679 --> 00:14:17.679 I think it's a violation of the First Amendment. But 238 00:14:17.799 --> 00:14:20.960 that's a subject for the Supreme Court to decide. It's well, 239 00:14:20.960 --> 00:14:23.320 which is impeach the guy right now for not upholding 240 00:14:23.320 --> 00:14:25.879 his oath of office to defend the constitution? Right, So, 241 00:14:25.919 --> 00:14:27.120 do you want to go to an argument or you 242 00:14:27.159 --> 00:14:29.200 want me to start it and you can fill start it. 243 00:14:29.600 --> 00:14:31.600 I want to give you all right, let me do. 244 00:14:31.600 --> 00:14:35.279 It this way. It's little noted in most of the 245 00:14:35.320 --> 00:14:37.960 Lincoln biographies, but when he came into office in eighteen 246 00:14:38.000 --> 00:14:42.120 sixty one. And I post a question about this to students, 247 00:14:41.799 --> 00:14:43.960 and then the answer they give me will tell you 248 00:14:44.000 --> 00:14:46.879 how bad things are in education. Say so, Lincoln comes 249 00:14:46.919 --> 00:14:49.559 into office, he finds the State Department has denied a 250 00:14:49.600 --> 00:14:52.799 passport to a free black, a passport application to a 251 00:14:52.799 --> 00:14:57.039 free black in Massachusetts who wanted to study abroad in France. Similarly, 252 00:14:57.120 --> 00:14:59.600 the patent office, I think in Philadelphia had denied a 253 00:14:59.679 --> 00:15:03.120 patent application from a free black, not a former slave, 254 00:15:03.200 --> 00:15:06.240 not even Frederick Douglass, who had applied for patent. And 255 00:15:06.279 --> 00:15:09.120 in both cases, the state Department and the patent office said, well, 256 00:15:09.399 --> 00:15:12.240 the dread Scott case says that blacks are not American citizens, 257 00:15:12.399 --> 00:15:15.200 no matter their slave status, and therefore they have no 258 00:15:15.320 --> 00:15:21.519 legal right for a passport or a or a passport 259 00:15:21.600 --> 00:15:28.320 or patent. Lincoln ordered those bureaucratic findings countermanded. And so 260 00:15:28.519 --> 00:15:32.440 I asked students, actually undergraduates. Law students usually can puzzle 261 00:15:32.519 --> 00:15:36.000 us a little longer, say was Lincoln defying the Constitution 262 00:15:36.559 --> 00:15:39.159 when he made those decisions? And I often get a 263 00:15:39.279 --> 00:15:41.759 majority of the class nodding their heads that yes, he did. 264 00:15:41.919 --> 00:15:46.000 Because the Supreme Court determines what the Constitution is that's 265 00:15:46.080 --> 00:15:48.519 what people think, and that's what the Supreme Court has 266 00:15:48.600 --> 00:15:51.120 wanted us to think. And Lincoln's point was, and this 267 00:15:51.159 --> 00:15:54.639 is what he explained is inaugural dress, right is I'll 268 00:15:54.679 --> 00:15:57.840 rephrase it this way. Actually, all three branches have their 269 00:15:57.919 --> 00:16:00.360 say in things. They have their different I have news. 270 00:16:01.080 --> 00:16:03.639 You can't just defy a court order, as Lincoln put it, 271 00:16:03.679 --> 00:16:05.519 as to the parties to that case. 272 00:16:05.600 --> 00:16:07.399 Yeah, Dred Scott is still a slave. 273 00:16:07.919 --> 00:16:09.960 Right, Red Scott still a slave. I can't make that 274 00:16:09.960 --> 00:16:13.480 go away. But and Lincoln loved to draw up on 275 00:16:13.559 --> 00:16:16.799 Andrew Jackson, who, in his famous veto message of the 276 00:16:16.840 --> 00:16:18.840 third Bank in the United States said I don't care 277 00:16:18.879 --> 00:16:21.480 if the Supreme Court is as it's constitutional. I don't 278 00:16:21.519 --> 00:16:23.919 think it's constitutional. And that's why I'm going to veto it. 279 00:16:24.080 --> 00:16:26.080 He didn't do it on policy grounds. He could have. 280 00:16:26.159 --> 00:16:28.480 I mean, he hated banks, just like Thomas Jefferson did. 281 00:16:28.799 --> 00:16:31.759 But the point is that we have become the sense 282 00:16:31.799 --> 00:16:34.720 that the Constitution belongs not only to the people, but 283 00:16:34.840 --> 00:16:39.080 to the other branches. To contest and push back against 284 00:16:39.080 --> 00:16:41.759 the Supreme Court is something that has afro feed. And 285 00:16:42.200 --> 00:16:45.840 so here's Trump doing exactly what Lincoln would say he 286 00:16:45.879 --> 00:16:48.360 should do. And now we sit back and watch the 287 00:16:48.440 --> 00:16:50.799 Left rage about how he's trying to destroy the Constitution, 288 00:16:50.960 --> 00:16:52.480 and of my rant on this it's not. 289 00:16:52.679 --> 00:16:54.840 It's a good rant. I want to go back a 290 00:16:54.879 --> 00:16:57.600 little more than the beginning of what you started. And 291 00:16:57.639 --> 00:17:00.559 I want to say this much. I know that some 292 00:17:00.600 --> 00:17:03.399 of our listeners out there know this argument, So if 293 00:17:03.399 --> 00:17:05.680 you already do, forgive me. But I really think it's 294 00:17:05.680 --> 00:17:11.039 an important one. If you've ever really studied Marburie versus Madison, 295 00:17:11.160 --> 00:17:15.480 which creates, of course, for the Supreme Court the power 296 00:17:15.720 --> 00:17:18.559 or at least further defines it, whether you believe it's 297 00:17:18.599 --> 00:17:21.519 in the Constitution or not. It's not specific, but defines 298 00:17:21.519 --> 00:17:23.640 for the Court the power of judicial review. It is 299 00:17:23.960 --> 00:17:27.440 very very important to look at exactly what it is 300 00:17:27.799 --> 00:17:32.000 that the Court does in Marbury versus Madison. The Court 301 00:17:33.000 --> 00:17:37.599 doesn't define Congress's powers with respect to what Congress can 302 00:17:37.640 --> 00:17:41.079 do about just any old thing, or what the President 303 00:17:41.119 --> 00:17:43.759 can do about just any old thing for that matter. 304 00:17:44.240 --> 00:17:48.440 The Court defines its own powers in Marbury versus Madison. 305 00:17:48.839 --> 00:17:53.160 The Court is saying that, no, we have powers under 306 00:17:53.160 --> 00:17:57.680 the Constitution. And because of the way Appellate power and 307 00:17:57.799 --> 00:18:00.880 original power works and all this other stuff you cannot 308 00:18:00.920 --> 00:18:05.160 add to our original jurisdiction, And they are saying what 309 00:18:05.319 --> 00:18:09.599 the Court's powers are there. That's the first use of 310 00:18:10.759 --> 00:18:13.279 an Act of Congress being overturned, and as you know, 311 00:18:13.400 --> 00:18:16.920 Marshall never overturns another Act of Congress in his thirty 312 00:18:16.960 --> 00:18:22.240 three year career on the Court. If you are talking 313 00:18:22.480 --> 00:18:28.839 about powers like the power to issue passports, the powers 314 00:18:28.880 --> 00:18:32.599 that are exercised by the State Department under the executive branch, 315 00:18:33.039 --> 00:18:38.599 ultimately it is absolutely up to the president to make 316 00:18:38.720 --> 00:18:43.160 a constitutional argument for what his powers are and why 317 00:18:43.200 --> 00:18:46.880 they're appropriately exercised. I believe that, and I also believe 318 00:18:47.480 --> 00:18:51.680 that the ultimate judge of that, of course, is the people. 319 00:18:51.720 --> 00:18:53.720 A dependence on the people. As you're going to hear 320 00:18:53.759 --> 00:18:57.920 me make the same lame argument again tomorrow when you 321 00:18:58.000 --> 00:19:02.519 listen to the the full podcast. I actually believe that 322 00:19:02.559 --> 00:19:08.039 it has been a terrible, terrible, what would you call it, 323 00:19:08.079 --> 00:19:10.960 acquiescence of the American people to turn over all of 324 00:19:11.000 --> 00:19:14.839 these decisions to the Supreme Court. It's easy, oh, well, 325 00:19:14.880 --> 00:19:17.119 you know, the Supreme Court decided this, and it's a 326 00:19:17.160 --> 00:19:21.759 really bad decision, but it's the law of the land. Now, Uh, 327 00:19:21.880 --> 00:19:24.599 that's that's you know, that's that's a really iffy thing. 328 00:19:24.640 --> 00:19:28.720 How does Lincoln put it? We will have he says, 329 00:19:28.720 --> 00:19:32.359 if we we will have completely turned over our Republican 330 00:19:32.400 --> 00:19:35.599 government to the the whims of this eminent tribunal. That's 331 00:19:35.640 --> 00:19:36.359 not it exactly. 332 00:19:36.799 --> 00:19:39.359 Yeah, but although I'm goin a tribunal is the phrase 333 00:19:39.400 --> 00:19:41.839 he uses it. I sometimes wonder if he's being slightly 334 00:19:41.880 --> 00:19:42.759 ironic or circle. 335 00:19:42.880 --> 00:19:46.559 I think it was very nasty about that. Yeah, well, 336 00:19:46.559 --> 00:19:49.240 I wasn't sure Lincoln. 337 00:19:50.039 --> 00:19:52.519 Okay, So we do have. One of the problems with 338 00:19:52.519 --> 00:19:54.279 the live chat window that I get is that it 339 00:19:54.279 --> 00:19:57.119 scrolls up and I can't see them recall the earlier questions. 340 00:19:57.160 --> 00:20:02.079 But our for somebody's not working for me. I don't 341 00:20:02.079 --> 00:20:02.359 know why. 342 00:20:02.400 --> 00:20:04.240 Well, it does for me. The problem is is that 343 00:20:04.319 --> 00:20:05.880 I start reading them and then I don't listen to 344 00:20:05.960 --> 00:20:08.039 you anymore. I don't know what you're talking about. That 345 00:20:08.039 --> 00:20:08.519 that's the problem. 346 00:20:08.519 --> 00:20:14.920 Why would this be? I? Well, I do like I 347 00:20:14.920 --> 00:20:18.200 do like a question from the world's greatest condoment hater, 348 00:20:18.279 --> 00:20:21.759 Anthony Lucido, who says this is just for fun. If 349 00:20:21.759 --> 00:20:25.359 the corn degrees work, tourism can be banned does Katanji 350 00:20:25.400 --> 00:20:28.319 Brown Jackson read eight hour to send sighting Hassan Piker 351 00:20:28.480 --> 00:20:31.319 and the enduring greatness of Chairman. Now, you know, I 352 00:20:31.359 --> 00:20:33.880 hope she doesn't read your comment, Anthony, because she will 353 00:20:33.880 --> 00:20:35.279 probably say that's a great idea. 354 00:20:35.839 --> 00:20:40.200 Yeah, I'm kidding. So so back to what So. I 355 00:20:40.240 --> 00:20:42.519 do think that what Trump is trying to do here 356 00:20:43.240 --> 00:20:46.000 is thread the needle a little bit into not just 357 00:20:46.279 --> 00:20:51.920 Kavanaugh's decisions, specifically Kevin, I remember concurs on the on 358 00:20:51.960 --> 00:20:56.440 the Fourteenth Amendment argument that but he says it's because 359 00:20:58.039 --> 00:21:01.759 it's up to Congress. It's a statuey thing, not not. 360 00:21:02.440 --> 00:21:04.599 He doesn't want to make it a Fourteenth Amendment ruling. 361 00:21:04.880 --> 00:21:09.480 And my problem John and I when we argued about 362 00:21:09.480 --> 00:21:13.319 this not on the last time we discussed birthright citizenship, 363 00:21:13.720 --> 00:21:16.920 he kept thinking I was saying that, you know that 364 00:21:17.960 --> 00:21:21.039 the Congress should defy the Supreme Court. Now I do 365 00:21:21.119 --> 00:21:24.240 think that, but for all the reasons I just talked about, 366 00:21:24.440 --> 00:21:28.599 that's no longer really very much of an option just 367 00:21:28.640 --> 00:21:31.599 to say we're we're going to repass a law and 368 00:21:32.000 --> 00:21:35.960 you're wrong, Supreme Court, because the Fourteenth Amendment's enforcement clause 369 00:21:36.119 --> 00:21:39.480 says Congress not the Supreme Court shall have the power 370 00:21:39.519 --> 00:21:42.240 to enforce. And so if Congress wants to define I've 371 00:21:42.240 --> 00:21:45.200 said this all along. If Congress wants to define exactly 372 00:21:45.200 --> 00:21:48.640 what birthright citizenship means, I believe they can do so. 373 00:21:48.839 --> 00:21:52.240 But yes, no longer because of the way the Court 374 00:21:52.279 --> 00:21:55.759 decided the opinion that they the way they did. I 375 00:21:55.799 --> 00:21:59.640 think Trump is looking for that little maneuver room that 376 00:22:00.039 --> 00:22:05.279 Baby will allow because he's much more specific about who 377 00:22:05.319 --> 00:22:08.480 it is is covered under subject to the jurisdiction and 378 00:22:08.519 --> 00:22:13.680 who isn't, and much more specific about how his powers 379 00:22:13.720 --> 00:22:17.400 as executive allow him to make decisions with respect to 380 00:22:17.440 --> 00:22:21.000 those people that are clearly executive power decisions. That's what 381 00:22:21.079 --> 00:22:22.599 I think is happening here. 382 00:22:22.920 --> 00:22:25.440 Okay, let me let me take two more questions, want 383 00:22:25.440 --> 00:22:28.440 of answers, just very quickly, both from Gail w She 384 00:22:28.680 --> 00:22:31.599 repeats a question since my scroll isn't working that I 385 00:22:31.599 --> 00:22:33.480 think we talked about this. But I think, Gail, maybe 386 00:22:33.480 --> 00:22:38.160 you came on late. Didn't Trump request a rehearing? The answers, Yes, 387 00:22:38.200 --> 00:22:40.519 but that rehearing period expired a couple of days ago. 388 00:22:40.559 --> 00:22:42.799 Something he did not request it. He said he was 389 00:22:42.920 --> 00:22:44.279 going to and he did. 390 00:22:44.279 --> 00:22:47.480 Oh, Okay, Oh, I see. I thought he he wasn't 391 00:22:47.480 --> 00:22:49.799 gonna win anyway. I mean they you know, no, probably not, 392 00:22:50.039 --> 00:22:53.039 never get that. But the more serious question is, and 393 00:22:53.079 --> 00:22:55.759 you know, we've talked about this before, and so Lucretia, 394 00:22:55.759 --> 00:22:57.039 I think I want to lem me you to sort 395 00:22:57.079 --> 00:23:00.799 of one and a half answers at al Summer. You 396 00:23:00.799 --> 00:23:03.920 see your question, Lucretia, if we think the ruling is wrong, 397 00:23:04.079 --> 00:23:06.440 why do you think the conservative justices, to many of them, 398 00:23:06.920 --> 00:23:09.480 lovely Barrett and Roberts went along with it. Do you 399 00:23:09.480 --> 00:23:13.759 think they're buckling under threats. I don't know, but I 400 00:23:13.759 --> 00:23:15.160 think they're weak minded myself. 401 00:23:15.200 --> 00:23:19.440