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Episode 11 | Executive & Judicial Lawmaking

• Center of the American Experiment

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Our hosts, law professor Ilan Wurman and Kathryn Johnson, explore a series of issues involving both executive and judicial "lawmaking." Would the President have the power to "wipe out" Iranian civilization without Congress? Can the President on his own initiative order the postal service to deliver only certain kinds of election-related materials to advance his election integrity agenda? Can the President order the destruction of an entire wing of the White House pursuant to a statute authorizing the making of "alterations" and "improvements"? Our hosts discuss the Constitution's distribution of power between Congress and the President more generally before turning to the threat district courts currently pose with their judicial lawmaking. Do judges have a right to stop the building of the new ballroom? Who even has "standing" to bring such a suit? And why are district courts exercising jurisdiction over immigration decisions where Congress's statute specifically divests courts of jurisdiction? Finally our hosts talk about the First Amendment and the 8-1 decision in Chiles v. Salazar, which invalidated a crazy Colorado law prohibiting talk therapists from discouraging gender transitions. 

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SPEAKER_02

Welcome back to Rationally Based, a podcast about law and politics on the edge. Catherine, what's on deck today?

SPEAKER_00

Well, first we have some election news. Trump issued an executive order about election integrity. We talked about election day and voter fraud on our last episode, so we'll break down this new development. Second, a federal district judge said Trump can't continue building the new East Wing ballroom. Was the judge right? Third, a federal district court judge has ruled that the Trump administration can't stop the immigration parole program that the Biden administration made up out of thin air out of that CBP1 app. Fourth, we'll turn to SCOTUS. The Supreme Court in an 8-1 decision invalidated a Colorado law banning conversion therapy. Is Justice Kagan getting tired of Justice Jackson? Listen to find out.

SPEAKER_02

Let's dive in. I'm your host, Elon Worman, a law professor at the University of Minnesota Law School.

SPEAKER_00

And I'm Catherine Johnson with Center of the American Experiment.

SPEAKER_02

First, as always, I'd like to thank our audience and our listeners for all the ratings and subscriptions that you guys have given us. If you haven't yet rated us on Apple or Spotify, please do so. That is super, super helpful. So just um uh planting that uh seed in your mind. Catherine, should we start with something else today, actually?

SPEAKER_00

Iran, maybe Well, maybe we're recording this on Tuesday and it's gonna come out on Thursday. So by the time you listen to this, we could be a little behind the times, honestly.

SPEAKER_02

But the Iranian civilization might be wiped out by the time that this episode comes out. Is that true?

SPEAKER_00

Yes. At least Trump just this morning tweeted that a whole civil civilization will die tonight.

SPEAKER_02

If his demands aren't met.

SPEAKER_00

If his demands aren't met, I think by the end of the day, right?

SPEAKER_02

So And this is right there in his Article II Powers, right? It says the president is commander-in-chief and may order civilizational death. Trevor Burrus, Jr.

SPEAKER_00

May wipe out whatever civilization he pleases. Um. What is the legal framework here? Remind us.

SPEAKER_02

Aaron Powell So for those of us who have been listening for a while now, back when the Iran strikes first happened, is it about two months ago now? I think a month and a half. Maybe a month and a half. Uh I can't remember the exact episode number. I think it was episode seven. Uh but uh you will you will want to uh trust but verify uh if you're listening. We talk about the whole legal framework for the strikes on Iran and the Don Roe doctrine, which we love, uh, and the capture of Maduro. And remember there are different sources of of potential legal obligation. There's international law, with cat which Catherine thinks is fake.

SPEAKER_00

True.

SPEAKER_02

Uh do you still think it's fake?

SPEAKER_00

I do still think it's fake, although I will say wiping out an entire civilization does kind of push my push my theory, you know?

SPEAKER_02

Would that violate international law?

unknown

I don't know.

SPEAKER_02

But there isn't international law according to you. So I guess it's all fake. It doesn't matter.

SPEAKER_00

It doesn't mean it's a good thing.

SPEAKER_02

But you know, okay, fair fair fair enough. So um but maybe without the international law that I've described, is international law just might makes right, the will of the s of the stronger, and if that means we're the stronger. There's this famous dialogue, the Melian dialogue in Thucydides, um, where uh the well they're they're taught they're about to wipe out this island, and um the Greeks say the strong do what they will, the weak suffer what they must. I mean, is so I guess is that uh international law?

SPEAKER_00

Yeah, I think so. I think it is, in reality. And I think there's different moral frameworks we should maybe follow, but international law is not one of them. International law is stupid.

SPEAKER_02

Aaron Powell Well, so Trump um can now have an Iranian dialogue instead of the Melian dialogue where he says, we will order civilizational death and you will suffer or you negotiate with us, I suppose. But but okay, to all flippancy aside, right, the the constitutional framework, remember there's this Office of Legal Counsel framework, the OLC framework, where it says that the president can unilaterally go to war without Congress, depending on the nature, scope, and duration of the conflict. Under the original meaning of the Constitution, uh, the president could only take defensive actions or proportionally offensive actions, right? The the con the Constitutional Convention should recognize that the president should be able to repel invasions without Congress, without waiting for Congress. Congress wouldn't always be in session, but ultimately Congress has the power to make war, declare war, commence war, authorize war. And so I think it's fair to say that civilizational destruction uh is an offensive expedition of importance and probably no longer defensive, and so probably would be uh be beyond the president's power. Now, look, of course he's being hyperbolic. Like he's not actually he act doesn't actually mean it, but it's like a nice thought experiment. If he did go out and wipe out Iranian civilization, um would that be an escalation of the kind that Congress should probably um you know be the one to decide on?

SPEAKER_00

Well, people love to freak out over what Trump says and not what he does, right? I mean, this is part of his strategy, is he talks tough and then we'll see what actually happens. So I think it's way too soon to freak out, like some people are. Um but at the same time, what does he do? I mean, Congress i they're on a break right now, they're nowhere to be found, they're in Disney World. That's right.

SPEAKER_02

Uh Lindsay Green is he still in Disney World?

SPEAKER_00

You know, no. I saw Rick Scott is in in Disney World, though, which he defended himself. He said, There's nothing I can do about it. I would love to be in DC, but like I I'm not in charge, so I brought my granddaughter to Disney World. But yeah, no, they're they're not they're not in session.

SPEAKER_02

So Well, this reminds me, maybe we said it on that episode, but we've said it before. There's this um famous line that Justice Robert Jackson used in the Youngstown steel seizure case where Truman seized the steel mills during the Korean War, and this was held to be unlawful, and Justice Jackson actually took this from Napoleon, but there's this famous expression that says, the tools belong to the man who will use it. And here, Congress, we've talked about the filibuster a lot, Congress is totally inept, it can't do absolutely anything, and which means what? It means the president is gonna take initiative and the president's gonna do things, and there's nothing the rest of us can do about it. Because if because these are ultimately Congress's prerogatives to assert and to reclaim, and if Congress isn't willing to do it, then Congress will cede the power, which is kind of a theme of today's discussion.

SPEAKER_00

I was gonna say, based on um our notes, I think that maybe we're gonna be saying that again later on in this episode. Um why don't we move on and start talking about the executive order on election integrity that Trump issued um last week. Trevor Burrus, Jr.

SPEAKER_02

Yeah, speaking of unilateral executive actions. So Trump unilaterally did what?

SPEAKER_00

Another theme. Another theme. Another theme of the day.

SPEAKER_02

Look, you know, we're not some days we're we we really don't like district courts in this on this podcast right now. We think district courts are a threat to the Republic. What is it that I argued a few weeks ago at Arizona State University? Who's more of a threat? Who's more of a threat? The president, executive power, or judicial power and the district courts. And the answer is obviously at the district courts right now. But it doesn't mean that, you know, the executive never overleaps its bounds. Civilizational death for Iran might overleap the bounds of executive authority. And we've got okay, fair enough. And and I don't know, we've got this uh USPS Election Day order. So the the Trump administration promulgated this, or Trump promulgated this executive order called ensuring citizenship verification and integrity in federal elections. Okay, what does it do?

SPEAKER_00

Uh it's basically all about the use of the post office, which I think is really interesting because that's not how I saw it reported really. Um but basically the USPS will not be able to deliver election day materials that don't contain some kind of barcode that is unique to a particular citizen. And how you identify who are citizens for purposes of getting the the ballot, there's all these various databases, including from Social Security and other things like that. And they'll trans they'll transmit this information to the states who will then have to give everyone a unique barcode if you're over the age of 18 and a resident.

SPEAKER_02

So the so the states won't be able to do mail-in elections unless you, a state's uh a state resident, are declared or confirmed by the federal government to be a citizen, according to federal government databases, and the state would then have to give a barcode or there would have to be a barcode unique to you. Yeah. Strikes you as a sensible election reform, possibly?

SPEAKER_00

I mean, sure. I don't know. It sounds like it's it's a step in the right direction. I I do understand there seems to be an issue with USPS is the one kind of on the hook. It says they can't deliver the ballots, right? So if there were a state to go and try and have their own mail-in system, is it then on the post office to be the ones to say, nope, can't take that, can't mail that? That seems kind of weird to me. I mean, they're not set up to administer elections. But at the same time, we need to do something about election integrity. Congress isn't doing anything about election integrity. All right, fine with me.

SPEAKER_02

Aaron Powell Now, as we said on the last episode, of course, the big solution to this problem would simply be to not have mail-in voting, of course, and just have it but uh on election day. But of course, mail-in voting, especially in states that have been doing it for decades, like in Arizona, is very popular.

SPEAKER_00

Um Did you know in Oregon they only have mail-in voting?

SPEAKER_02

I think I did know that. Um, which is kind of so weird. And so mail-in voting depends on the federal government to implement, right? Because the post office is a federal government apparatus. And so I guess the question is, does the president have legal authority to direct that well, if you're gonna use the post office, I'm gonna direct of the post office not deliver these ballots unless they meet these criteria in the executive order, right? Yeah.

SPEAKER_00

So Well does does the president have any authority over the post office? Because I know there is uh Congress has some authority over the post office.

SPEAKER_02

Well why are we talking about Congress, Catherine? Congress, I thought we said was irrelevant. And it's true. Yeah, this is another theme of today, right? So Congress does have power over the post office. Catherine read her article on section eight before two.

SPEAKER_00

Yeah, I did not remember that, by the way. When I was reading about this, I was like, wait, what? They have I didn't know Congress was they really do. They have uh it says establish post offices and post roads.

SPEAKER_02

So Congress shall have power too. Among the great and lofty powers of taxation, commerce, declaring war is included the power to establish post offices and post roads. Now, this was like kind of a big deal to specify uh at the time, by the way. Why? Because postal, the postal service was the key method of communication. So if the king controlled the postal service, the king could control what information is disseminated. And so power over the post office was hugely important back then, simply for you know the dissemination of information. It could be the life or death of towns as well, whether a town is prosperous or not sort of might depend on whether it had a post office and that they could communicate in that fashion sort of with the outside world. So, but there it is in Article I, Section 8. And as we talked about last time, of course, the states also have power to administer elections, but Congress may by law alter those regulations. So here we have Congress has two sources of power to alter state elections. Uh one is from Article I, Section 4, which gives it the power to alter state regulations involving federal elections. And then in Article I, Section 8, where the rest of Congress's powers are mostly found, you know, war, commerce, taxing, et cetera, Congress has the power to establish post offices and post roads. So you have to look to Congress's laws. And here has Congress authorized this executive order in some way. And you look at the statutes, and they see now now look, the administration's lawyers are very clever. So let's wait and see exactly what they argue in court. But here, the uh national postal laws that Congress has enacted specifically declares certain types of things to be non-mailable. So did you know that you can't mail knives? Okay, obviously. Okay.

SPEAKER_00

I've never tried, but I mean it makes sense, I guess.

SPEAKER_02

Yeah, I wouldn't do it. Uh so uh you can't mail knives.

SPEAKER_00

That's in statute. Congress has said that you can't mail knives.

SPEAKER_02

Yeah, there's the statute.

SPEAKER_00

Um Congress used to do much more practical things. Trevor Burrus, Jr.

SPEAKER_02

Congress actually used to do stuff, right? So it's in eight I wrote it here, it's in 18, it's 18 USC, section 1716, and it describes a bunch of stuff to be non-mailable, including knives, explosives, um, presumably poisons, biological hazards, or things like that. And so the question is, okay, is does this imply that everything that is not uh described in the statute as being non-mailable is therefore mailable? You can freely use the post office, the states can use the post office, individual citizens um could use the post office unless you are mailing something that's non-mailable. But ballots are not mentioned as non-mailable, right? So by specifying knives and explosives, does that imply that if states want to send through the USPS election material, there's nothing in federal law that says they're non-mailable. And so there's this canon of statutory interpretation that my students listening know and love, which I feel like we've talked about before, expressio uniist est exclusio ulterior. That's a bit more of a mouthful than habeas corpus, but uh the expression of certain items, the specification of certain items implies the exclusion of other items not mentioned. And so here you Congress passed a bunch of stuff that they deem non-mailable, does that imply that anything they didn't include is mailable, right? And so I I just I don't know. I I look at the statutes and um could the president, um, through some general rulemaking power that the post office has declare additional things to be non-mailable? Maybe. Um, but um you know the the general rulemaking authority for the postmaster general doesn't authorize you know the postmaster general to make rules and regulations that go beyond Congress's statutes. And so I don't know. I don't know what the statutory authority uh for this is, even though it might be a good idea. So look, uh I we started with Iran. I don't know if I convinced you, is this executive overreach, maybe? Just to be clear, we're gonna we're gonna we're gonna really attack the district courts too today. So don't uh or or lose your you know uh our audience, don't sink, um, don't have your heart sink just yet. Um but you know sometimes the executive branch, I mean it can't they can't be always right.

SPEAKER_00

Trevor Burrus It's a good question because it's always it's a it's a pull that has been there for a long time, right, between the executive and Congress, and conservatives have normally been on the side of not allowing the president do whatever they want by executive um authority. Is there any kind of I mean what's the rule here? Like, where is the line between what the president can do with an executive order and what has to be left up to Congress? Because to me it seems like it's always up for debate, but what does the Constitution really tell us?

SPEAKER_02

Ah okay. So what is an executive order? Are executive orders law? Are they not law? Uh so some things the president can do on his own initiative if there is some independent grant of power. So Congress, uh I'm sorry, the president can pardon people. Because it says it right there in Article II, um, it says that the president shall have power to grant reprieves and pardons. The president's the commander-in-chief, so that entails presumably military command. So an executive order directing Pete Heggseth uh to take certain actions, assuming Congress has declared war, right? I mean, that's a whole separate sort of question, would be consistent because the president has an independent basis of power. But otherwise, executive orders are not supposed to make new law. Executive orders are just the president telling us how he wants to execute the laws that are on the books, because the laws often leave discretion. And so you'll see in many of the executive orders, including actually, I think all of the executive orders, including this one, uh it says nothing in this executive order is intended to displace or contradict applicable law. Everything is supposed to be consistent with applicable law. And so to know the executive order is a legitimate executive order and consistent with applicable law, you have to go to the all the statutes that they cite in the executive order. So a famous example of an executive order that exceeded statutory authority is a case I mentioned earlier where the jack the Justice Jackson mentioned the tools belonged to the man who could use it. We were in the Korean War. The steelworkers were about to go on strike. Um by the way, the Korean War was an undeclared war. Uh yeah. Um Truman just sent troops based on United Nations authorization. Trevor Burrus, Jr.

SPEAKER_00

Truman was so cool.

SPEAKER_02

Okay, it was also international law is real and it allows the president to do whatever he wants about Congress. Is that Captain Trevor Burrus? That's my take, yeah. Is that your view? Well, so so it was uh it was an undeclared war, but whatever. Let's put that aside uh for purposes of this conversation. Truman seized the steel mills. He he issued an executive order ordering his Secretary of Commerce to operate the steel mills because he wanted steel production. And in a very famous case, the Youngstown sheet and tube case, or the uh it's called the steel seizure case, the Supreme Court said that the president exceeded lawful authority, and therefore the executive order was unlawful, that the, you know, under our system of separate powers, the president is not to be you know, the president's duty to see the laws be faithfully executed is an indication that the president is not to be a lawmaker, right? So the president can't make laws. Executive orders can carry into execution existing laws, so as long as they're consistent with applicable statutes. And here you look at the statutes, and I don't know, I don't know, there's non-mailable matter, but um that's about it. So but as I said, we'll see. We'll see what they say in in litigation, since I'm sure people will sue over this. The states will sue over this.

SPEAKER_00

They did invoke at the beginning of the executive order the republican form of government clause.

SPEAKER_02

Oh, everybody's favorite clause. Did you know about this? Did you know about it? Not at all.

SPEAKER_00

No. Okay, I'll read it because I assume some people also had no idea what it was about. This is Article 4 of the Constitution. It says the United States shall guarantee to every state in this union a republican form of government and shall protect each of them against invasion. And on application of the legislature or of the executive, when the legislature cannot be convened, against domestic violence.

SPEAKER_02

So here, by the way, I mean half this clause is easy to understand for the most part. If there's like a civil war or domestic insurrection, that's what they mean by domestic violence, right? Not spousal abuse.

SPEAKER_03

Um Thank you for the clarification.

SPEAKER_02

Well, I don't know. You know, original meaning of the Constitution. Do you go with the modern contemporary meaning? I've heard some law professors say yes. In which case, does domestic violence mean spousal abuse here? I mean that I mean it's crazy. It's crazy. But uh see, I've made everybody an originalist already. Obviously, it's true that domestic violence can't mean spousal abuse, right? Uh in this clause. In this context. In this context. So we're all originalists now, at least for purposes uh as a first cut for purposes of this conversation. So if there's domestic insurrection, then the legislature or the executive of the state can ask the government for assistance, and then the president, pursuant to congressional statute, can call forth the militia or something like that. But what does this mean? The United States will guarantee to every state in this union a Republican form of government. It has never been judicially enforced, it has never been judicially interpreted. Uh this claw, you know, this clause is understood to uh basically be for the political branches to decide um what a Republican form of government is. And so a it's actually kind of tricky. The Southern states had slavery for a long time. The southern states were very oligarchic uh societies, but nobody invoked the Republican Guarantee Clause uh at the time uh until the Civil War. The Republicans the the after the Union had won in the Civil War, the Southerners said, Okay, w war's over. Lincoln's theory of the Civil War was that the states had never seceded from the Union. And so they said, We're allowed to sit in Congress. And so they tried to go back to Congress after they lost the war with even more political power than they ever had, because with the abolition of slavery, every formerly enslaved person was now five-fifths of a person for purposes of representation. So they lost the war. And now they wanted to be able to do that.

SPEAKER_00

They would have even more power, even more.

SPEAKER_02

Even more political power. And the Republicans in Congress said, Nope, we're not gonna seat you because your governments aren't Republican. You do not have Republican governments yet. Um and so they that that's how they basically got the Southern states to ratify the Fourteenth Amendment and the Fifteenth Amendment basically saying we will not readmit you into the halls of Congress until your government is sufficiently Republican.

SPEAKER_00

Wait, okay. But now what we have going on right now is there are states where voter fraud is rampant. They don't care if their elections are secure. They seem to have I mean I mean they seem to have no care for if we have safe and secure elections, and this affects everyone. It's not just, you know, in those states where the elections are not secure, it affects the entire country. Shouldn't a Republican government within that state have secure elections and doesn't isn't that exactly what they mean by this clause?

SPEAKER_02

Ah Brilliant, actually. You should work for the Trump administration. This is uh an excellent argument. So I think if we go to the Civil War example, uh I think if Republicans in Congress today, or a majority in Congress today, wanted to refuse to seat members of Congress from California or Oregon or Washington because their governments are insufficiently Republican, because there's too much election fraud according to the majority, because there's no you can't really trust their electoral systems. I'm not saying any of this is true, by the way, but let's just go with me here. Suppose Congress actually did that. Would this be a non-justiciable political question? Would this be up to the political branches to decide whether not to seat members from California? Um I think the courts would stay out of it. I think the courts would let the majority in Congress decide whether California was insufficiently Republican for purposes of seeding members in Congress. But of course, Congress will never do this because of the tit for tat.

unknown

Right.

SPEAKER_02

Because as soon as the other sides they'll say, oh, Republicans, you just star in the pockets of the rich and powerful, which of course is the opposite. It's true. Democrats today are right the party of the rich and powerful or whatever. But they'll come up with some reason to say that Republicans are anti Republican, anti Democratic, and therefore they shouldn't be seated. But, Catherine, going with your hypothetical here, I think that would authorize Congress. I think the courts, if this really Came to it would say it's a non-justiciable political question for the political branches to decide. Uh the courts aren't gonna get involved. But even then, it doesn't mean the president could do it unilaterally, which is what's going on here with the Postal Service.

SPEAKER_00

Oh, okay. It would have to be Congress.

SPEAKER_02

I I think so, because like why do the courts not get involved? When I say political question, why is it that the courts don't get involved in this? Um Well, this actually did you know that there was another civil war in the United States before the Civil War in Rhode Island?

SPEAKER_00

No. In Rhode Island. Within the state.

SPEAKER_02

Within the state of Rhode Island. There was another civil war. It's called Doors Rebellion.

SPEAKER_00

Oh, okay.

SPEAKER_02

Because my APUS history is a very good thing. I think they did.

SPEAKER_00

I think that my A-push, yeah.

SPEAKER_02

Uh and so the Rhode Island government, this was I believe 1840, 1841 or so. The Rhode Island government was still governed by its charter from like 1640 something, I think. So you not not let's just say there was no universal manhood suffrage, okay? Okay. In Rhode Island. You know, the Jacksonian era, post-Andrew Jackson, uh, which was uh you know about a decade earlier, or 1836, I guess Jackson um was was was done. Um you had all these states adopting universal white manhood suffrage. But Rhode Island had not caught up with the times, so to speak. And so a bunch of people, rabble rousers, democrats, uh reformers, however you might describe them, purported to set up their own constitutional convention and write their own constitution and had it, you know, a universal manhood suffrage sort of vote on it. And then you have the without authorization from the existing charter government, and so now you have two governments, competing governments in Rhode Island.

SPEAKER_03

Wait, we should do this.

SPEAKER_02

And this went up to the Supreme Court. Wait, who should do this? Like what we should do this.

SPEAKER_00

Well, the the the states in America that are having real and fair elections should get together and start our own.

SPEAKER_02

Well, okay, now that okay, Rhode Island, at least it was internal to Rhode Island. You're describing like totally going off and breaking off into a separate union, which is secession- you know, that's okay. That's okay. Um secession was probably unconstitutional, but put that aside.

SPEAKER_00

Well, okay, okay. So what happened in Rhode Island?

SPEAKER_02

Okay, so what happened uh in Rhode Island? It went up to the Supreme Court. How did it even go up to the Supreme Court? Well, because some guy authorized by the charter government to uh seize and arrest somebody who was involved in the revolutionary government, um so and the person who was arrested uh sued the one who arrested him uh for trespass and false imprisonment. And so this goes up to the Supreme Court and the Supreme Court basically says this is a non-justiciable uh question, this is not something that the courts can get involved in. And the the main reason uh for this is uh do you know what is judicial power? Judicial power is the power to apply existing legal rules to a factual situation. Judges aren't lawmakers. Today they pretend to be, which I know we're gonna get to that. Um but historically, right, the judicial power is the power to apply existing legal rules to particular cases and controversies. Well, what existing legal rule determines what is the legitimate government of Rhode Island? Exactly. There is no, there is no there is no such legal rule. And so they they they say, how do we know what is Republican, what is a sufficiently uh what is the legitimate government of Rhode Island? There's no pre-existing judicial ru rule that the judiciary can apply, so it's left to the political branches. But even even then, uh, if the president on his own in 1841 decided, you know, I'm gonna weigh in on the side of this party or that party, and I'm gonna call forth the militia beyond statutory authorization, something like that. I do think that would be judicial. When the president acts on his own, I do think j the the courts can say, well, this is Congress's job, not the president's job. That is something courts are uh can can you know have the competence to adjudicate because there are pre-existing rules about that, namely the Constitution and in con you know, the division of legislative and executive power. And so here, although the Trump administration was brilliant for invoking the Republican Guarantee Clause, and uh I ultimately think it would still be up to Congress to decide if to pursuant to its powers, refusing to seat members of Congress or whatever, um, that California is insufficiently Republican because of its election system. Uh I don't know that the president on his own can do it. So it's a nice attempt, but uh too clever? Too clever by half. Should we start attacking the courts? Am I attacking Trump too much?

SPEAKER_00

Yeah, I'm just getting- it's a little depressing because everything comes back to um well, maybe Congress should do something about this. Well, Congress can't do anything. Congress can't get anything done. They're not even doing anything right now, they're not even trying.

SPEAKER_02

Um The tools belong to the man who will use it.

SPEAKER_00

I mean, did did the Constitution account for this fact that we could have a Congress that is just completely inept and incapable of getting anything done? And this is new, I think, because if you look at what's happening um with Schumer and the Democrats, they are not approving a ton of people in the administration. Do you know that? Like there's this huge backlog of approvals that used to be very standard. You just you have to approve the administration's um appointments, and they refuse to. They're holding up the working of the government in a way that's never really been done before, to my understanding. So I just don't know. What do you do in a situation like this?

SPEAKER_02

Aaron Powell That is a very deep and profound question to which I don't have a great answer. Um it it is a serious problem. Uh of course, the Constitution presumes that Congress is going to do the things that it is required to do. It assumes some capacity to be not self-interested and to help the executive branch carry its powers into execution. Uh, you know, this goes a bit into the next topic too, which is historically Congress has passed laws to help build the White House and to renovate the White House because they care about the executive branch of government. Uh but right now it's just partisan hackery, isn't it? Right?

SPEAKER_00

Yeah, anything that Trump is for, then the Democrats are obviously going to be against no matter what, even if it's for the common good, like the White House being nicer, better, whatever, functioning as a more useful place for people to gather. They don't care because Trump is bad.

SPEAKER_02

Aaron Powell Yeah. And the appointment thing you mentioned is really a problem because why are we having all this trouble with United States attorneys? It's because of the blue slip, because Democrat senators and blue states will not let the Trump administration appoint their people to be U.S. attorneys. And so what's happening, you're using all these acting U.S. attorneys and so on, and that's creates a problem because under the current congressional law, only certain people could be acting, only for certain periods of time. So instead, you have positions that are just unfilled or filled for four years with actings, or you only get an appointment for one year of your administration. That was never the intent. And so Congress, more than anything, does not only isn't doing things that it should be doing, like passing laws, but is actually thwarting the executive, right? Historically, you know there were Supreme Court justices who were nominated and confirmed before they even knew they were nominated. Yeah, I think George Sutherland was like abroad and then he showed up and is like, oh, we've nominated and confirmed you to the Supreme Court. We hope you accept. Oh my gosh.

SPEAKER_00

So cool.

SPEAKER_02

I think that was Sutherland.

SPEAKER_00

No one even asked him if he had sexually assaulted anyone. I thought that was standard practice.

SPEAKER_02

It turns out that uh uh no one asked him that. Uh but you said Congress Congress used to take its responsibility not only to legislate seriously, but its obligations to the other branches of government seriously. And it's just and when it doesn't do it, your question is a really profound and good one. What is the executive to do? If Congress doesn't do anything, well, the executive's gonna bomb Iran and is not gonna wait for uh for Congress to get back from Disney World. Um the executive is going to take actions with respect to elections because Congress can't get rid of the st the non-talking filibuster that you know it's ridiculous. Trevor Burrus, Jr. Yeah.

SPEAKER_00

And it's just it works to some degree too, which is really disheartening because when they're holding up all of these um approvals, it's like actually kind of causing some chaos and some somewhat of a mess for the administration. So it's just disappointing that that tactic actually kind of works. It incentivizes people to do it. Trevor Burrus, Jr.: Well, let's move on to another executive order. I think we should talk about the ballroom. Um in October, the Trump administration began knocking down the East Wing of the White House to make space for the ballroom that Trump has long wanted so that larger events can be held in the White House. He wants to gather like a thousand people in a room at the White House and not have to use those ugly tents that they put up right now.

SPEAKER_02

Totally legit. Totally legit.

SPEAKER_00

The construction will also focus on updating the military complex beneath the East Wing that has long served as kind of like a secret bunker for the president and the staff during emergencies like on 9-11. There are all these pictures of George W. Bush and Dick Cheney down in this like secret bunker under the East Wing. So Trump has these plans for making the ballroom bulletproof and uh drone-proof and strike proof, all of these things. So um it's kind of cool. But a lower court just stopped him mid-construction? How does that possibly happen?

SPEAKER_02

Well, okay. So here um let me just say uh before I lose all the trust from my audience about this, I do suspect that the administration actually does not have the authority to order the ballroom, but I also think the courts were wrong to stop him. Okay. Is that a crazy can can one hold both thoughts?

SPEAKER_00

I don't understand why he can't do the ballroom. It's a ballroom. Well, so it's his ballroom. He's the president.

SPEAKER_02

It's our ballroom. It's the people's house. You don't know. I guess the House of Representatives is the people's house. But um I don't know, as soon as Andrew Jackson became the president, wasn't the White House like the people's house? And he invited them with this big block of cheese. Is that apocryphal? Like come eat some cheese and like is that apocryphal?

SPEAKER_00

Yes, but also presidents of the past have like updated the White House and done things like, you know, renovated to some degree, maybe not, knocked down a whole wing.

SPEAKER_02

But that's the difference, isn't it?

SPEAKER_00

Yeah, is that the difference?

SPEAKER_02

I think that's the difference. So historically, Congress, you know, authorized for the construction of the White House, which was completed around 1800. I believe the British remember burned down the White House in the War of 1812. I feel like we talk about the War of 1812 on almost every episode. Uh we do. Uh so the Congress had to authorize uh the renovations and repairs, Congress authorized the porticos, Congress authorized the construction of the West Wing and the East Wing. And some 50, 60 years ago, I think, Congress passed a general statute uh that authorized the president to make improvements, renovations of a small nature. We'll see. So er as as the earlier discussion on the USPS order, the election day order or mail and ballot order uh should suggest, everything starts with Congress in this case, right? The president doesn't just have inherent authority to just build buildings, I don't think. Right? Congress has power over the territory and property of the United States, Congress has power over um the d you know, District of Columbia. And so they passed a statute, three USC 105, that says there are authorized to be appropriated each fiscal year to the president such sums as may be necessary for the care, maintenance, repair, alteration, refurnishing, improvement, air conditioning, heating, and lighting, including electric power and fixtures, of the executive residence at the White House, and it appropriates a few million dollars. Catherine, let's test your legal acumen.

SPEAKER_03

Okay.

SPEAKER_02

Is the total destruction of a particular wing and the erection of an entirely new building to the tune of tens of millions of dollars in alteration that Congress has approved here through this statute. Go, final exam. What do you think? What a setup.

SPEAKER_00

If I were to pick out one of these words, though repair, improvement. It's both of those things. And it's and it's improvement to the East Wing. Obviously, it's going to be new, beautiful, uh, much more practical, host a lot of people. And also, you know, there's uh the military aspect as well, a safety aspect. So if I were to pick out one of those words, I think, yes, improvement is that's what it is. However, I think you will say that improvement is also right next to furnishing and air conditioning. So maybe by improvement, they didn't mean a whole total destruction. Maybe they meant paint or something.

SPEAKER_02

So first of all, Harmeet Dillon, are you a f are you listening to the pod? DOJ, somebody, you should hire Catherine. Like you'd be a great lawyer for the Department of Justice. So I think the argument for the administration here is indeed that alteration and improvement literally covers the things that they're trying to do, and there might be good reason for what they're trying to do. But then Catherine, you've identified exactly the right thing. There is a canon of statutory interpretation. There is a Latin word for it. Yeah, of course. It's called noseter associis. But in the tariff case that we talked about a few weeks ago, um Chief Justice Roberts called it the neighboring words canon. So he's anglicized it. So wow, I love that. Yeah, it's sort of nosider associus. I I guess we're supposed to call it now the neighboring words canon, which is just this idea that words take on the meaning of their associates, of the words with which they are associated.

SPEAKER_00

Context clues. Yes. This is such a lawyer thing to do. Like they take a simple concept and they give it a Latin name and then like a different name. Like it's just like context claims.

SPEAKER_02

I didn't give it a Latin name, it just started Latin, right? I suppose. This goes back a thousand years, you know, some of these interpretive canons and languages. But okay, you're right. We could just anglicize it and call it the neighboring words canon. So a fun example, and I actually uh heard this example uh from one of my students in class who came up with it, maybe um he or she read it, you know, somewhere else. But you know, suppose there's a statute that gives the Environmental Protection Agency authority to regulate rivers, streams, and banks. Does that give the EPA authority to regulate Wells Fargo and other financial institutions? Well, no, right, you're laughing because obviously by banks we mean river banks. The word bank is known by its associates. Its meaning is determined by the words with which it is associated. So here, as you said, Catherine, alteration, improvement, they are surrounded by words like maintenance, care, air conditioning.

SPEAKER_00

So like it doesn't. Why does he have so much HVAC power?

SPEAKER_02

Like what did something happen there where they were like You don't want to run to Congress every time the HVAC runs out. You want to be able to hire a repair person related HVAC. So look, so if you go by the NoSitter Associates canon, um or the I'm sorry, the neighboring words canon, since we anglicized things uh on this podcast, probably no authority to do this without Congress. The appropriations are small too, suggesting that Congress intended this to be small. Now true, he's getting around that by donations. But the point is Congress, by only appropriating a few million dollars, clearly contemplated minor repairs and minor alterations, right? And there's a canon that conservatives used to love, and uh uh one of the early variations of the major questions doctrine. It was called the elephants and mouse holes canon. The idea that Congress doesn't hide elephants, big drastic things in mouse holes and cryptic languages. This is so there's this famous case where Congress um gave the FCC uh um authority to modify the regulatory requirements of the statute, and it just eliminated the statute. It said, Oh, we're not gonna apply the statute. And the Supreme Court, in a case called MCI in 1996, I believe, basically said, no, the word modify doesn't allow you to eviscerate the statute. It implies something moderate, a modicum, a modest sort of change.

SPEAKER_00

That does seem relevant here, I suppose.

SPEAKER_02

You know, through the words alteration and improvement, did Congress authorize a $40 million project to completely destroy one of the wings? Probably not. Um but as you said, so so again, conservatives used to love this candidate, but as you said, Catherine, literally it is an improvement, it is an alteration, and so on. Um and so we'll see. So probably no legal authority, but the real question is who has the right to sue over it? Why does the district court even have the right to do, you know, uh get involved here?

SPEAKER_00

Good question. Someone has to be harmed by the building of the East Wing, right? So who could have possibly been harmed?

SPEAKER_02

Aaron Powell That's exactly the question. So really there are two questions. The first is what's the cause of action, right? So normally you have a cause of action in tort or contract, if someone injures you. So what's the cause of act? Because remember, courts don't have this free-floating power to just assess the legality of what the government is doing. Right. Someone must be injured, they must have a cause of action. So a tort dispute, you know, if you trespass on my property. Like the stolen horse. The stolen horse, yes, in the war of eighteen twelve is how uh the militia call in 1812 was adjudicated. There was a cause of action for trespass, conversion of property, and so on. Here, who what cause of action is there that anyone has? There really isn't. There is this free-floating cause of action called ultra virus, but w where you know if the executive exceeds legal authority, but again, that's not like a real cause of action. I'm not I'm not an expert on ultra the origins of this, but again, there sh isn't supposed to be a free-floating cause of action to adjudicate the legality of government action. There must be a real cause of action involving a private harm and a private injury. And there isn't here. The other thing is, even if there was a cause of action, like somebody needs to be privately injured, right? As you said, what's the injury here? Who's injured by construction of the White House?

SPEAKER_00

Aaron Powell, I don't know. Someone walked by and like stepped on a nail.

SPEAKER_02

Is that that would be a more plausible injury than what actually here they say it's an aesthetic injury.

SPEAKER_00

Oh, wait, what does that even mean?

SPEAKER_02

They think it's ugly? Yeah, he th this individual apparently um will be so traumatized by a beautiful neoclassical building when he's used to seeing things like the Museum of African American History or whatever, and you'll be offended. His aesthetic sensibilities will be offended. And the district court said that that's an injury.

SPEAKER_00

Are you being serious?

SPEAKER_02

I'm I'm serious. Bring it up with the DC district court.

SPEAKER_00

That is so strange. How do you Okay, I guess I can see this in theory if there was something like um really ugly or really um terrible. I don't know, like like uh, oh, like my neighbors, they have a trampoline in their backyard that I hate. Okay, that doesn't really count.

SPEAKER_02

But there are some circumstances where Yes, that that's a great insight, Catherine, as because when if you see something ugly from your property, that diminishes the use and enjoyment of your own property. And that is kind of a private injury to your use and enjoyment of your private property rights. So aesthetic injuries can count in certain contexts, but here you know the injury also has to be particular to you. And if it is and and so because again, generalized harms aren't enough. As a taxpayer, I don't have standing to sue over misuse of government funds. Unfortunately. Unfortunately. I I know our tax dollars are wasted routinely here. Uh so someone must be uniquely injured. And so if you have an aesthetic injury sitting in your on your own property that affects your use and enjoyment of your own property, that's a private injury. But here it's just some guy who, I don't know, walks by the White House occasionally. Well, that is an aesthetic injury that applies to everybody, right? And so that that so I think it's probably illegal for the Trump administration to build this without Congress, but I also think it's totally unlawful for the courts to stop them. Am I crazy for thinking about that?

SPEAKER_00

Thinking it that's I guess, but like won't nothing just ever get done the way you think about it?

SPEAKER_02

Like why until Congress gets off its butt and gets back from Disney World. By the way, speaking of the aesthetic injury, um is it not aesthetic? Don't we have a New York Times uh image?

SPEAKER_00

So well, we do have some really expert um intel here because the New York Times thankfully got out, they got their best people on this. And they got their architects, their their best people, and they looked at the design for the East Wing and whether or not it was it was good or not. And they found some things that were wrong.

SPEAKER_02

By the East Wing you mean the new ballroom.

SPEAKER_00

Aaron Ross Powell The New Ballroom, correct. There's no entrance where they think there should be an entrance.

SPEAKER_02

Can we, uh our producer, Isaac, can you put this up for our viewers?

SPEAKER_00

Something's unnecessarily big. And notably on the right there, you will see.

SPEAKER_02

Trevor Burrus, Jr.: So this is it? That's what it's like.

SPEAKER_00

This is their New York Times official analysis. And as you will see, they think it looks beautiful. They think it's very tall.

SPEAKER_02

It looks beautiful.

SPEAKER_00

It looks so pretty.

SPEAKER_02

Oh that this was actually the New York Times.

SPEAKER_00

That's their official analysis. Very tall.

SPEAKER_02

They didn't do this. No that's serious.

SPEAKER_00

That's completely serious. They tweeted out this picture and and had um these are their complaints. Design bumps existing path, ruin symmetry.

SPEAKER_02

So there's a staircase, a grand staircase that doesn't lead directly to the door. That doesn't lead directly to the entrance. The entrance is actually here.

SPEAKER_00

They also have a beef about like fake windows and the bathrooms having fake windows. It was very strange.

SPEAKER_02

Trevor Burrus, Jr.: Well, it's fake because you know you have columns that don't actually do anything. I mean like based on modern-day construction, the columns are fake. You don't need them to be. That's also supposed to be drone-proof or something like that.

SPEAKER_00

I'm sure the none of the glass is really, you know.

SPEAKER_02

Trevor Burrus, Jr.: So that's an aesthetic injury?

SPEAKER_00

Trevor Burrus, Jr.: That's an aesthetic injury that it's very tall. Thank you for that astute analysis, New York Times. Trevor Burrus, Jr.

SPEAKER_02

Well, bottom line, from my perspective, not only is that obviously not an aesthetic injury, and any reasonable person would be like, actually, that's aesthetically beautiful. But even if it truly was, there there isn't a particularized injury to that individual. It's a generalized harm. And so I and again putting aside the question of whether there's even a cause of action. So I'm going to have a very based view, which is to say both the executive and the courts have acted outside their purview here. Is that fair?

SPEAKER_00

No, it's not based to side with Congress.

SPEAKER_02

Aaron Powell Oh, fair enough. Okay, rational. Maybe rational. More of a rational. Okay, in that case, let's attack the district courts more.

SPEAKER_00

I would love to do that. So um we have an example of uh the judges really, the courts engaging in lawmaking in this asylum case. We've talked about a lot about immigration law, and we've talked About. Temporary protected status, but one thing we haven't talked about is humanitarian parole, a concept I didn't even really know about, but came up with the Biden administration's use of that CBP1 app. So, Elon, tell us a little bit about this parole issue.

SPEAKER_02

Yeah, so we've talked on this podcast about asylum. Asylum is permanent legal status, right? You've shown a credible fear of persecution based on some protective characteristic, and you're allowed to stay in the United States. We've talked about temporary protected status or TPS, which is a designation for countries based on conditions in those countries. And then there's humanitarian parole, which is like TPS, but for individuals. So who aren't necessarily from designated countries. And you can apply in advance and you could argue that there are humanitarian reasons why you need to be paroled into the United States. It's not a permanent status. It's again a temporary protected status for individuals for humanitarian reasons. And so what did the Biden administration do with the CBP1 app? They said 900,000 people. Sure. Come on in, you all are subject to humanitarian parole.

SPEAKER_00

Through an app. They just let them all in. This is so crazy. And and what, they're supposed to look at these cases one by one, right? But you're telling me that almost a million people came in through this app and you looked at all of their individual humanitarian issues and said, yep, great, you're all how do you all have humanitarian issues? How did you look at all those people one by one?

SPEAKER_02

Well, that's exactly right. So the Secretary, the statute says the Secretary of Homeland Security may, in his discretion, notice in his discretion, so how are courts reviewing this at all? Why are we even here at all? Into the United States, uh, in his discretion, parole into the United States, temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reason or significant public benefit of any alien applying for admission into the United States. So basically, this has to be a case-by-case determination in the discretion of the Secretary of Homeland Security. And you're telling me that Secretary, was it MajorCus? Um personally, case-by-case doesn't have the per you can delegate authority to subordinates. And I and I get that, but you're telling me that the DHS under MajorCis individually assess the humanitarian concerns of 900,000 people before they let them in. I you I hope the watchers are looking at Catherine's face right now. Of course, that would be utterly crazy. And so the question is with the flick of a wand, which apparently Democrats have wands, that they are allowed to do this kind of thing, they've let in a million people under humanitarian parole. And now the President Trump and his you know DHS secretary tried to stop it. They said, We're ending your parole.

SPEAKER_00

Yeah.

SPEAKER_02

We're ending your parole.

SPEAKER_00

Wand revoked.

SPEAKER_02

Wand revoked. And the district court in Massachusetts, because of course that's where they sue the Trump administration if they can, though they're they've got plenty of good DC judges for them if they wanted to sue there, said the Trump administration can't do it. And this is a bit crazy. Um so they didn't say uh that that the Trump administration has to assess on a case-by-case basis before you revoke. Okay. That would be crazy, right? You have to do a case-by-case basis to let them in, but you don't actually have to do case-by-case to revoke. And and the plaintiffs in the case argued that the Trump administration has to do case-by-case, which again, flick of a wand for D, but not for me. Right. But even the District Court of Massachusetts says I can't do this because the First Circuit, the Court of Appeals, that covers Massachusetts, has already said it doesn't have to be case by case to revoke. So what did the district judge say? Well, um the statute says uh that the the parole might be revoked when the purposes of such parole shall, in the opinion of the secretary, have been served. So when the purposes of parole are done, you no longer have these humanitarian reasons, or there's no longer this public benefit. If the secretary has formed an opinion about that, that there's no longer the purposes of parole are no longer served, that in the discretion of the secretary, then you can um revoke the parole. And what the district court judge said here is that, well, we don't have it in the record that the secretary formed an opinion that the parole purposes had been served. And so I guess it's kind of like a road bump.

SPEAKER_00

I guess the secretary could just go back and say this is my reasoning, this is my opinion, why I think that it should be revoked.

SPEAKER_02

Yeah, and and it seems to be super easy. So so why can't they just do that? But the real problem here, of course, is that I mean the whole thing is silly, because obviously the revocation occurred because they thought the purposes weren't served.

SPEAKER_03

Right.

SPEAKER_02

And they could come up with whatever reasons they want. They could come up with totally, you know, like insane reasons for claiming.

SPEAKER_00

It doesn't matter what the reasons are, it doesn't matter. It doesn't matter.

SPEAKER_02

Because it says Yeah, because it says in his opinion.

SPEAKER_00

Well, obviously they had reasons. Like you don't do anything for no reason.

SPEAKER_02

Exactly, which is why on the merits this district court decision was totally crazy, but it gets worse.

SPEAKER_00

Oh, great.

SPEAKER_02

How did the district court even have jurisdiction over this question? Because uh the statute says that district court jurisdiction does not exist for any discretionary decision of the secretary. So the statute says there shall be no district court jurisdiction over any matters over which the secretary has discretionary uh jurisdiction. And this is, by the way, if you're following at home, 8USC section 1252 A2B2. It says no court shall have jurisdiction to review any decision or action of the Secretary of Homeland Security, the authority for which is specified to be in his discretion. Okay. Well, do you remember the statute that we just read about parole? It says the Secretary of Homeland Security may in his discretion parole into the United States temporarily. So how did the district court have jurisdiction here? Well, do you remember the TPS, the crazy D district DC district judge?

SPEAKER_01

Yeah.

SPEAKER_02

It's the same thing with temporary protected status for Haiti or Venezuela. The statute says no TPS determination shall be reviewable by a district court. Right. So how did the district courts review it anyway?

SPEAKER_00

Didn't they like review the process or something? Yes.

SPEAKER_02

Oh, it was so crazy. They said, well, we can't review the determination itself, but we can review whether the process leading up to the determination was followed. Which sounds to me like part of the determination. Uh and so and and and the district DC district court that had done this for TPS, there was absolutely no legal authority for this. They cited some cases that said something totally uh unrelated, in opposite and and so that was that was crazy. They did something similar here. I'm not saying I can review the discretionary decision to revoke parole, but I can review whether you formed the opinion necessary for you to exercise your discretion. Trevor Burrus, Jr.

SPEAKER_00

What in the world? Trevor Burrus, Jr.

SPEAKER_02

Yeah. Judicial overreach? Judicial lawmaking. Yes, district. Trying to stop them as even though they know they're gonna lose this eventually, the plaintiffs are gonna lose this eventually, they're just doing anything they can to get in the way of the Trump administration and to slow walk them and delay them. And so this is absolutely judicial lawmaking. Judges gone wild.

SPEAKER_00

That is so frustrating. And to to defend the fact that Biden brought in almost a million people to the detriment of Americans. This isn't just, you know, Trump's ballroom. I mean, this is a really big deal. We've been really hurt as a country from all of this migration we've seen recently. I mean, this is awful. This is really crazy.

SPEAKER_02

Aaron Powell So the statute says for urgent humanitarian reasons or significant public benefit. And I bet you that how do you, with a flick of a wand, let in 900,000 people under this, you don't actually have to assess that there are humanitarian reasons to let them in. You could just say, oh, it's in the public benefit of the United States to have I don't, you know, I don't know cheaper labor or whatever it is, though of course that presumes that they're laboring rather than just, you know, getting on social services, which is a whole other question, as we know here in Minnesota is a is a big issue. So yeah, so I I just to our listeners out there, I know I might have sounded a little hard on Trump uh today, a little harder than Catherine maybe would have liked when it comes to the executive orders and so on. But make no mistake, district courts are the far greater threat to the Republic today. I stand by that. If you listen to our bonus episode from a few weeks ago, I absolutely um stand by that. But maybe there's like a silver lining here. I said district courts, but the Supreme Court is it maybe saving us? I mean, I don't know how they're gonna do in that birthright case. We had that special episode of the birthright case, but uh I don't know that.

SPEAKER_00

This is a good example, though, of why I get so frustrated that the right doesn't do anything because the left is just so aggressive about doing whatever it takes to get their agenda done. And the right is always playing cleanup. Always. Now we're we're we're fighting these insane district courts. It's like why are we the ones we're cleaning up these a million new migrants that are here for no reason, really, that came in through an app. Why are we always playing cleanup? We're never the ones that are ahead of the game. Like abolish the filibuster, do it. We played cleanup enough times for the left. It's time for the right to just make some moves.

SPEAKER_02

Yeah, and again, like you go back to the initial border problem, right? Where there are laws on the books. Um we actually talked about this in the birthright context. Like, oh, there's already a law, which is actually not a law, it's a federal regulation, that says you know, you can be denied entry if it looks like you're coming for the purpose of of birth tourism, like you're about to burst. Like did you see apparently that someone gave birth on an airplane just before landing? Like again, like under the if the Supreme Court goes the way everyone thinks it's gonna go, they would be a a a birthright citizen. But again, like we have laws on the books, but they don't help if the executive branch under, for example, the Biden administration can just ignore those laws. I mean, and then you've got 10 million people have come in through ignoring of those laws. And then every time that the Trump administration tries to undo a piece of that puzzle of what how the they were let in, like um, okay, we think we want to detain them so that they don't abscond when we actually find them and catch them. We want to end temporary protective uh status, we want to end parole, all of which are clearly discretionary decisions. And then the courts get in the way and at this pace, so you can let 10 million in in four years by failing to execute the laws, by failing of the obligation to ensure faithful execution of the laws, and then each individual I didn't didn't Center of the American Experiment, your organization, actually analyzed this at some point and said that you know every deportation or every removal would take on average it like it would it would take like two centuries to remove everybody. Oh, yeah, if you if you thought you guys did something like that.

SPEAKER_00

Um, possibly if we did, if we went through the process of everyone getting this entire process that people because they they don't think on the left that there should be due process for people coming into the country. They should just be let into the country quickly, but then to get out, if you want to deport someone, they want a whole series of due processes, they would call it. And it would take forever. We would never get all of these people out of our country.

SPEAKER_02

And I'll give you one more example of this. So in it when when you are determined to be deportable or removable, uh, usually that decision is made by an immigration judge. And usually the immigration judge, who's an executive branch official, can come to that conclusion quickly. And it turns out that there's a Board of Immigration Appeals, and all of these immigration judge decisions go to the Board of Immigration Appeals, which takes years and years to process the insane amount of cases that they have, and they almost always uphold the immigration judge. Because again, the Board of Immigration Appeals is also within the executive branch. So the Trump administration recently tried to promulgate a rulemaking that said BIA, Board of Immigration Appeal appeals are discretionary, that the BIA does not have to actually hear an appeal from each immigration judge, that they can decide which appeals to hear. Obviously, it would be beneficial in a number of ways, since the you know, just like the Supreme Court gets to decide which cases it hears discretionary jurisdiction. It would streamline the process, um, it would make their decisions probably better quality. 99 plus percent of these IJs are upheld anyway, and it's clearly within the executive branch's sort of discretion to have to modify this inter internal process. And the dis DC district court said nope, you can't do it because you didn't go through the notice and comment process. But the notice and comment process specifically exempts, the Administrative Procedure Act specifically exempts from the notice and comment process procedural rules. Well, what is more procedural than the appellate process, right? I mean, so uh there there's you know, there are some cases where some judges have said, well, if the procedure is so important, maybe it's substantive, but like, no, it's a substance versus procedure, right? And so again, they're using all of these methods to just thwart the administration, slow them down as much as possible when when they're in charge with the flick of the wand, they get to do all of this.

SPEAKER_00

And in the meantime, look at what's happened in Virginia. There have been three people murdered recently by illegal immigrants. In the meantime, Americans are suffering the consequences of this insane policy that the Democrats have been pushing to simply gain a larger political majority. I mean, there's just no question about who is in the moral right when it comes to this situation, and yet we face every single roadblock, every single due process. It's just insane.

SPEAKER_02

And the roadblocks, again, are coming from the district courts. But maybe the Supreme Court putting aside birthright citizenship, maybe the the Supreme Court will uh, you know, there there's some saving grace. I mean the Supreme Court does some nice things for conservatives. Trevor Burrus, Jr.

SPEAKER_00

Well, yeah, they care about free speech, it seems like they care about free speech.

SPEAKER_02

And um this is, I guess, our last topic of the day, which is the case is it it's Chile.

SPEAKER_01

Chiles v. You know what? Salazar.

SPEAKER_02

I thought it was Chiles too, but um I heard someone say chiles, so I don't know how to pronounce it. Okay, so Chiles or Chiles v. Salazar. This was uh an eight-to-one uh decision we don't normally talk about, by the way, the Supreme Court on this podcast.

SPEAKER_00

Um we're not an exclusively SCOTUS pod.

SPEAKER_02

Yeah, most of our competitors are all about the Supreme Court, like your podcast, about the Supreme Court or a Supreme Court podcast, which is totally fine, but you know why we don't talk about the Supreme Court very often in this in this podcast?

SPEAKER_03

Why?

SPEAKER_02

Because I care about law. And the Supreme Court's decisions have a tenuous connection to law at best. Like I just say, as I tell my students, I rarely care what the Supreme Court actually says about stuff. I care what the answer is. I care what the answer is, I care what the truth is, I care what law really is. And to be fair, the Supreme Court is part of the system, but occasionally, okay, we can talk about the Supreme Court. In this case, it was kind of fun because it was eight to one, and just as Jackson was dissenting, and even Kagan was like, okay, come on. Like you don't have to dissent all the time.

SPEAKER_00

Well, yeah, that's basically what she said, right? In a little bit of like a footnote war.

SPEAKER_02

Trevor Burrus, Jr.: Basically. So what's going on in this case? It has to do with Colorado and talk therapy.

SPEAKER_00

Aaron Ross Powell And the left will say, by the way, conversion therapy, that's what they'll call it. But we're talking about talk therapy. There's no zapping of people, there's no we're talking about strictly talking. Trevor Burrus, Jr.

SPEAKER_02

Which is why it's a First Amendment case, right? It's all about speech. And so Colorado um prohibited talk therapy, but only if your view while you were engaging in talk therapy as a therapist was to convince people that they were not actually gender dysmorphic, that they were not actually transgender, if the point was to make someone more comfortable in their biological body, uh then that was prohibited. It was illegal. It was illegal. You could be punished by state law if you even talk to someone and say, hey, maybe there's other things going on here, and maybe you're just a tomboy, maybe you're just going through X, Y, or Z, or this is just normal puberty. All illegal. But this the law specifically allowed the talk therapist to affirm the gender. Free speech violation?

SPEAKER_00

Oh God, crazy violation. I mean, you talk about wanting to care about the truth. The truth.

unknown

Like what?

SPEAKER_00

The truth is that a man is a man and a woman is a woman. But at least if you're going to allow people to talk to, especially minors to talk to children and say, you know, you can you can be the other gender if you'd like. Well, at least let them do the other side as well.

SPEAKER_02

It is amazing. I know we haven't talked about the merits of the decision yet, but it is amazing how the left often will use state power to form con to force conformity with its views. So right. It's not just about like, oh, there's like a debate over gender and transgenderism and sexual orientation and um whether these things are innate or not innate. It's not enough to have a debate about it. We are going to force you to conform to our worldview that people you know that um can be um actually members of the other sex if they merely identify as such. Like we will force that upon you, just like they forced upon the Colorado cake bakers, also in Colorado.

SPEAKER_00

What's in the Colorado water?

SPEAKER_02

What is in the water? It used to be clean water from the Rockies, the Colorado River, but something has polluted it. And so this went up to the Supreme Court, and they're still, I think, going after this one masterpiece cake shop for refusing to cater to a gay wedding when you've got a bunch of other people who will cater to the gay gay wedding. Go to the Korean spa case, the swinging instrumental organisation.

SPEAKER_00

Yeah, insane.

SPEAKER_02

It's not enough. You know, we will force even the nude Korean female spot to accept somebody, an intact biological male who identifies as female. Like we will force our worldview upon you. And should we be doing more of that as conservatives?

SPEAKER_00

Should we as conservatives be forcing our views on people? Oh, yeah.

SPEAKER_02

Well, they're they're they're playing that game. But then again, you have an 8-1 decision from the Supreme Court stopping them from playing that game.

SPEAKER_00

Which is great. The one is a little freaky, though, because this is a really obvious thing. I mean, okay, at first I kind of thought maybe Justice Jackson had a point where she put it into the context of um this is a medical decision, right? She she she says we should always allow medical providers to do what they have to in in that context. Is that right? But when you look at it, it actually is just viewpoint discrimination.

SPEAKER_02

Aaron Powell That's exactly right. So this is why this was an easy case, even for Justice Kagan and Justice Suramayor. The way First Amendment works is you have the right to freedom of speech, but it's obviously true that that right has to be regulated to some degree, right? So you can't, and I think I've made this point before, you might oppose things I've written about birthright citizenship. You're welcome to oppose them. You can't show up to my house at two in the morning with a bullhorn screaming into my house. So there are things that are neutral, content neutral, viewpoint neutral, time, place, and manner restrictions that get what's called mere intermediate scrutiny. So like look, the government is allowed to make reasonable time, place, and manner restrictions.

SPEAKER_00

Mere intermediate scrutiny, maybe that should have been our podcast name.

SPEAKER_02

Oh, yeah. Because of our not as much as our podcast nemesis.

SPEAKER_00

Yeah, right. Strict scrutiny.

SPEAKER_02

Which we weren't supposed to mention, but now you're bleep it, Isaac.

SPEAKER_00

Will you in post we can bleep it?

SPEAKER_02

We're not bleeping out the name of Strict Scrutiny. Uh listen to it and then listen to us, and then you know you could uh get a wide range of views. But so obviously you must be able to regulate speech to some degree. So if it's content neutral, then it it gets intermediate scrutiny. Reasonable regulations will be upheld. If it's content-based, so it's not viewpoint discrimination, but but you have to know the content. Um often it'll get strict scrutiny. Now, much professional speech regulations are content-based. So I as a lawyer am not allowed to speak um to individuals uh who were involved or the family of individuals involved in an air accident. You have to wait like 30 days before contacting them and asking to represent them.

SPEAKER_03

Wait, what?

SPEAKER_02

Yeah, but because you don't want them, you know, you don't want like an ambulance chaser. Yeah, you don't want them circles. Exactly. You don't want them circulating like vultures, circling like vultures.

SPEAKER_00

That's all I didn't know that was a law. Wow, that's a good thing.

SPEAKER_02

Yeah, it's a law. Um and that is a content-based restriction because you have to know what I am going to talk to them about. But in the context of professional speech, content-based restrictions are generally upheld as like regulations of the profession. But this wasn't just a content-based restriction. Now, normally content-based restrictions, to be clear, get strict scrutiny, right? So um if you have uh a law that says um there shall be no labor demonstrations. Well, you could be pro-labor, you could be anti-labor, it doesn't matter, it's not viewpoint-based, but you do have to know the content, right? It is content-based, and so normally um that gets strict scrutiny. Um the stealing valor statute. Uh so could Congress punish somebody for pretending to be a Medal of Honor recipient? This was invalidated because it was a content-based restriction. It's not viewpoint, but you have to know the content of the speech in order to apply this regulation, right? And so that was struck down under strict scrutiny. But here, viewpoint discrimination is per se invalid. It like I can't think of a viewpoint discriminatory statute that has survived. And this is viewpoint. This isn't content-based. It's viewpoint, right? Content-based would be we prohibit anybody from engaging in any talk therapy.

SPEAKER_03

Right.

SPEAKER_02

But here it's no, actually, you can engage in talk therapy if you're affirming, but not if you're not affirming. Classic viewpoint discrimination should have been 9-0, but there we had Justice Jackson. And even Justice Kagan, as you said in a footnote, was like, you know, Justice Jackson, all the examples you cite are content-based, not viewpoint discrimination. Oh yes, she said it was really rare.

SPEAKER_00

You know, Justice Jackson said this is really rare and it doesn't happen all that often, right? Or something like that. And then, you know, Justice Kagan's like, well, you cited quite a few examples.

SPEAKER_02

All these are content based. Everything you say about the professions and regulating the professions collapses the distinction between viewpoint and content based uh regulations. So um that was the dispute. Uh eight to one, um Sotomayor and Kagan joined um the majority uh on that question. The Supreme Court actually did something sensible. Which, you know, the Supreme Court has generally been doing sensible things, uh, I think.

SPEAKER_00

So after And hopefully they continue that trend of doing sensible things through uh through the summer.

SPEAKER_02

Through the through the birthright uh case. We'll we'll we'll see. I'm I'm not super optimistic about that, but I don't know. I know you're a little bit more optimistic than I am, but we'll have uh uh we'll see what they do. So that is our hour to our listeners. Thank you as always. Please follow us on Substack rationally based.substack.com so we can stay in touch with you. And again, as we said at the beginning, please rate us on Apple and Spotify. That would help us a lot at this early stage. Thank you again, and see you next week.