rationally BASED
Welcome to rationally BASED, a podcast about law and politics, on the edge. Law professor Ilan Wurman, with co-host Kathryn Johnson, cover cutting-edge, and edgy, legal and political news, ideas, and developments.
rationally BASED
Episode 22 | Judges vs. The People: The Latest Battles on Transgender Activism & Illegal Immigration
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In this episode, our hosts — Kathryn Johnson and law professors Ilan Wurman and Joshua Kleinfeld — examine the three latest examples of judicial power being used to block elected officials.
They cover Florida’s effort to hold the American Academy of Pediatrics and WPATH to account for lying about the risks and benefits of transgender surgery on kids — only for an Illinois federal judge to step in and halt the state proceedings on First Amendment grounds. They cover the D.C. Circuit’s decision to overrule Pete Hegseth and compel the American military to permit transgender service members — holding that his policy was motivated by bare “animus" with no rational basis. And they cover a Tennessee federal judge’s decision to dismiss human smuggling charges against Kilmar Abrego Garcia on the novel theory of "vindictive prosecution" — once again protecting an illegal immigrant with alleged gang ties from deportation.
The episode closes with a deeper discussion of judicial power itself: what happens when major policy questions keep getting resolved by courts rather than through democratic politics? Have conservatives been too sanguine about the judiciary’s role?
Don’t miss it. And be sure to check out Professor Wurman’s new book, The Constitution of 1789: A New Introduction, now available from Cambridge University Press.
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Welcome back to Rationally Based, a podcast about law and politics on the edge. Catherine, Josh, what's on deck?
SPEAKER_00Well, a lot to cover today. First, the Florida Attorney General filed a state court lawsuit against the American Academy of Pediatrics for their role in harming children with so-called gender-affirming care. So AAP sued in a different state in federal court in front of a liberal judge to stop the Florida state court proceedings. Yeah, I don't think they can do that. Second, there's news in the Kilmar Abrego Garcia case. A federal judge in Colorado dismisses the indictment against him by misapplying the law of vindictive prosecution. But what's more, left-wing organizations have filed a bar complaint against Todd Blanche for having the gall to seek to prosecute the alleged human trafficker. Third, the DC circuit has ruled that banning transgender persons from serving in the military is unconstitutional. Shocking. We'll break it down.
SPEAKER_01And the big question underneath it all, why are these major social issues all being decided by the judiciary instead of the democracy?
SPEAKER_02Lots to cover. Let's dive in. I'm your host, Elon Warman, a law professor at the University of Minnesota Law School.
SPEAKER_00And I'm Catherine Johnson with Center of the American Experiment.
SPEAKER_01And I'm Josh Kleinfeld, the Rouse Professor of Law at Scalia Law School, George Mason University.
SPEAKER_02As always, please hit that like and subscribe button. Your early support is so very, very important. You can also follow us on Substack Rationally Based.substack.com. All right, Catherine, Josh, where are we starting today?
SPEAKER_00Well, let's dive into the Florida complaint against the American Academy of Pediatrics. So there are two lawsuits actually we need to talk about here. First is the state court lawsuit in Florida. That's brought by the Attorney General against AAP and then also W. Path. Then the AAP sued the Florida AG in Illinois federal court and got an injunction to stop the state court proceedings in Florida. Okay, so let's start with the state lawsuit first. The Florida Attorney General's lawsuit against the American Academy of Pediatrics was filed on December 9th, 2025 in Florida State Court and aims the AAP along with the World Professional Association for Transgender Health, that's what WPATH is, and also the Endocrine Society. The Attorney General alleges that these organizations ran a coordinated campaign promoting gender-affirming care, which is basically puberty blockers, cross-sex hormones, and uh transgender surgeries for minors with gender dysphoria. The suit claims that this care lacks credible evidence of safety, effectiveness, or long-term benefits. Yet the groups misrepresented it to patients, parents, insurers, regulators, and courts, creating demand that benefits their members financially through memberships, referrals, educational materials, and related services. And this whole thing, of course, became like a multi-billion dollar industry.
SPEAKER_01And just taking a step back, I think we need to fill in the big story here. So 10 years ago, in American public life, gender dysphoria and the trans issue was basically a non-issue. It was something most thoughtful people had never talked about. And then there was an explosion of concern, and it became a political, social issue of the first order. Everyone knows that, of course. You all know that, you know, you kind of can't participate in American culture without having opinions about trans. And uh between 2017 and 2023, uh, the number of people diagnosed with gender dysphoria, the number of kids and teens diagnosed with it went from roughly zero to 724,000. And meanwhile, the industry went from roughly zero to $4 billion a year. And on the medical side, there were two groups behind it, WPATH and AAP. WPATH is the World Professional Association for Transgender Health. Um, it's basically a bunch of doctors in favor of trans stuff. And AAP is the American Academy of Pediatrics. And the major pushback happened in 2024. That was the moment when the CAS review broke and the big Bovey Marshall uh Alabama case and sort of all of this, all of these scientists and doctors saying, wait, there's no scientific medical evidence behind this. Okay, so if you have a major industry and lots of surgeries and hormone blockers and puberty blockers and the like that are being um uh put into service of a diagnosis that isn't medically valid, and in service of a treatment that isn't medically valid, there are probably going to be some lawsuits. There's probably gonna be a comeuppance at some point. This case is the comeuppance.
SPEAKER_00So there are two causes of action here. Uh, Florida Deceptive and Unfair Trade Practices Act is one. Um, does anyone here know how you would possibly say that acronym? Fadutpa?
SPEAKER_01Fadoopta. Padooptpa.
SPEAKER_00Uh so basically this is alleging that AAP engaged in unfair or deceptive acts in trade or commerce by publishing and promoting its 2018 policy statement titled Ensuring Comprehensive Care and Support for Transgender and Gender Diverse Children and Adolescents. The complaint alleges this statement falsely portrayed interventions as evidence-based and medically necessary, effective at improving mental health outcomes, safe and largely reversible, which they've been saying about puberty blockers for a long time.
SPEAKER_01How if you cut something off, it is not reversible unless you reattach it. And if you block puberty, then you can't just have puberty at age like 22 because you changed your mind. How is it reversible?
SPEAKER_00Oh, I don't think anyone knows. I think that that that's a great question.
SPEAKER_01Wasn't Abigail Schreier's book entitled Irreversible Damage? Okay. So the reversible part is really weird.
SPEAKER_02So then the last one one might say calling it reversible is an unfair or a deceptive practice in a deceptive trade practice. And I guess we're getting uh to that.
SPEAKER_01Imagine telling the parent we're gonna do this surgery, we're gonna block puberty, we're gonna change all his hormones, but it's reversible. That sounds like a deceptive trade practice.
SPEAKER_02Yeah, and so I I know Catherine still has to go through uh some of the causes of action here, but I wanted to make one clarification point. John, Josh mentioned the come-up ins. To be clear, the question here is is there a cause of action against the people driving the demand here, right? There already have been consequences for the doctors in certain cases engaging in actual trans surgeries because there have been at least two, I think, successful medical malpractice lawsuits. The question here is you know, can the state attorney general, the Florida attorney general, bring a lawsuit generally against the people driving this, as opposed to like an individual patient who actually suffered through it suing a particular doctor or a particular hospital for medical malpractice? So that's kind of the bigger picture. Okay, Catherine, go on, please.
SPEAKER_00Um, so AAAP allegedly knew or should have known these claims were false or misleading based on systematic reviews, weak evidence, no long-term outcome data, and all kinds of risks. I mean, we all saw stories of how these uh supposedly reversible uh puberty blockers actually made people sterile. I mean, there were all kinds of signs. Something that's very interesting, too, is that AAP relied on circular self-referential citations, is what's alleged. It's policy cited WPATH standards of care and the Endocrine Society's guideline, which in turn cited WPATH again, creating what they called a facade of legitimacy.
SPEAKER_02By the way, I constantly, as a legal academic, do circular self-referential citations. You know, I make a proposition of law and I say, see Elon Worman, something I wrote, you know, four years ago. And you go back to that, it says see Elon Worman, something I wrote eight years ago. But at the end of the day, when you follow the trail, there is some support for the initial claim in the initial piece.
SPEAKER_01It's not turtles all the way down.
SPEAKER_02It's not turtles all the way down. It's actually there is something supporting uh the proposition. And uh in this case, when you know we were preparing uh for this episode and studying this case, this was kind of just a shocking. I mean, I mean, obviously the real world consequences here are insane. So, like, what is the data? And you go back, and the original standard of care uh uh promulgated by WPATH uh was, you know, so they they keep going back, uh self-ref, you know, self-referencing their earlier standards of care. When you get to the first original one, what is the study? What is the source for this original standard of care? Um, I can't remember exactly if it was early 2000s or something like that, but it was like one book from 1966 or something, where a single doctor who experimented with transgender surgeries like wrote about his experiences, and that 1966 book became the basis of the of the standard of care that then kept perpetuating. And eventually people caught on to this, and WPATH tried to update the studies and the data supporting its standard of care. So in the late 2010s, it tried to do this, and it was based on like one Dutch study from 2011. So uh the Manhattan Institute uh explains it as follows uh the AAP's position, uh, when again they tried not to just rely on WPATH uh in the late 2010s, is based on a single non-peer-reviewed policy statement published in 2018 in its own journal, Pediatrics. I mean, how insane is this, okay? A peer-reviewed fact check of that article, it was like a single study that completely misrepresented uh the model, and then there was like a single study, WPATH's ultimate study was a single one in the Netherlands. Uh a single study, a single study in the Netherlands, a single study.
SPEAKER_01Folks, folks in our audience, this is how you produce fake science, right? You have respectable institutions who are manned by people or staffed by people with respectable degrees give kind of fraudulent citations. And by fraudulent, I mean there's something out there, but it's not peer-reviewed, it's not well supported, they cite it and then they pretend that it's now authoritative and they put their imprimature on it, and then it gets that that certification from the AAP, for example, gets cited and cited and cited again. So that you have this one really misleading kind of foundation stone on which this whole edifice is built. And, you know, if you're trying to this would happen in any society. I I imagine if I were to research it, this happened in Soviet Russia with uh the fake genetic science of uh that was that they thought was uh more coextensive with Marxist ideology. It's just how societies lie with science. They they have some little thing that they can uh point to and then they build an edifice on top of it without really engaging in the scientific process.
SPEAKER_00Well, and doesn't this happen to you as like conservative uh intellectuals as well? Like people will say, Oh, I've been cited this many times as it's it's kind of a great you know thing. And then if you're on the conservative side, obviously you're in a minority of academics and intellectuals, and you're gonna be cited fewer times because people are going to dismiss your research more easily. So I've heard of that happening.
SPEAKER_02You do get cited kind of legal conservatives. Um well, uh actually there is a good point. There is, you know, one of my nemeses. If you follow us on Substack, I used to call him a friend of me, but I don't know.
SPEAKER_00I don't think he thinks of you as a friend.
SPEAKER_02Uh territory. Uh but I had a Substack, I most read Substack post. Um so go to rashlybased.substack.com on the birthright citizenship debate. And he refused to cite me or any of the other people who have written on the other s other side of the birthright citizenship issue. Uh and and we were the reason for his intervention into the debates. And it's just like I do believe that progressives uh do not cite people that they want to have a lower scholarly influence score or lower age index score.
SPEAKER_01I'm sure it's manipulated. It's manipulated on the other side too. There are these uh efforts, kind of quite public actually, uh, to in in the law review world to cite uh left-wing scholars or scholars of certain races and genders in order to boost their uh apparent scholarly.
SPEAKER_02But to but to Catherine's point, you're it's not just the citation issue. The conservatives in science, for example, don't get published. Everybody says, oh, there's a scientific consensus. There's a scientific consensus for, for example, climate change. And there are two problems. One is the problem Josh identified, which is you go back to like the original studies, and they again, there are they add studies, don't get me wrong, they're a new research all the time. Uh, but a lot of these are fundamentally based on a few studies that are quite old, that are methodologically flawed, but that they build on that edifice. But the second problem is that anybody who tries to make that claim in a scientific article, like a meta-review of studies, or do their own study or their own analysis, don't get published because these people are, you know, the journals are controlled by all the people with a particular progressive. It's the same thing here.
SPEAKER_01Some of the most amazing facts in this Florida litigation come from the Bo V Marshall case. That's the Alabama case. And that's when you have like this discovery of WPATHS files. And they knew it wasn't supported. So there's all of this evidence to the effect of like, like the lawyers writing the doctor saying we have to avoid meta studies because that will reveal that there isn't sufficient support for the safety and efficacy of these propositions.
SPEAKER_02Was this a medical malpractice lawsuit?
SPEAKER_01The Bovey Marshall uh lawsuit. I guess I'd have to research it a little further. I know it was um, I believe it was Alabama passed a law banning what's kind of a Wellianly termed uh gender-affirming care. And then WPATH and other litigants sued. And then there was a discovery process that led the Alabama um attorney general to get WPAT's internal files. And the files reveal this pattern of sort of knowing deception. They're trying to avoid medical studies, they're trying to avoid meta studies because they know that they don't have evidence for their claims. I mean, if you have an ideological movement masquerading a science, you've got to do that, right? That's how you do it.
SPEAKER_00Yeah, and that's basically what's alleged here. So I'll go through now the second cause of action. It's the Florida Rico Act, which is a pattern of racketeering activity. The deceptive promotions are framed as coordinated enterprise involving misleading advertisements that violate Florida's false advertising laws. That one seems like a little bit more of a stretch to me, honestly. I think the other one seems to make more sense, but maybe you guys can convince me. Um, personally, I would also submit that perhaps they could call upon the common sense clause of action, which is that my favorite cause of action. You shouldn't just like cut off healthy human body parts, right? Um, never really an advisable medical solution.
SPEAKER_01Um Catherine, I'm so glad you're here. The common sense cause of action is awesome.
SPEAKER_00Thank you. Thank you. I would like to write that.
SPEAKER_02One of our biggest fans who continually posts on um YouTube comments pillow ideas for us, like the power to text. That's it. The common sense cause of action. I'd better see a comment on YouTube about that from our fan uh who comes up with our pillow ideas.
SPEAKER_00Well, overall, I'm just glad to see someone do something about this. Obviously, there's been the uh malpractice lawsuits that I was just so happy about, but there hasn't been anything, I feel like, that I've seen against the institutions that have that have really pushed these things and, you know, yeah, circularly cited each other and made up this kind of fake scientific narrative. There seems like there has to be some sort of consequence. I don't know. What do you guys think?
SPEAKER_01Well, I want to point out how fundamentally moderate this Florida lawsuit is, and maybe that'll strike some of our viewers or listeners as surprising. But but think about what Florida did not do. There are no criminal charges here, and there are no individual charges here. So you could charge individual WPATH members or uh American Association of Pediatrics leadership or even individual doctors during these procedures with criminal fraud, right? If I secure your consent to a medical procedure that involves disfiguring your body based on lies, then it the the so it's a classic thing in the law, fraud obviates consent, right? Fraud obviates consent. So if I've lied to you to secure your consent, you didn't really consent. And I could potentially charge a battery. It's like a battery. Right. A criminal battery. And um you could charge uh the organizations for complicity in that battery since they helped effectuate the law, the the lie, rather. Um, and you could also charge um uh criminal fraud. So all of those criminal charges are possible. Florida did not pursue any of oh, and by the way, criminal charges in the American system can be filed both against individuals or alternatively against organizations. You can charge the American Association of Pediatrics with a crime or WPATH with a crime. Criminal charges against a corporate entity are possible. So Florida did neither of those things, no criminal charges. Even civilly, Florida could have pursued civil charges against individual people in leadership positions in AAP or in WPATH or doctors, didn't do that either. What we're seeing here is the most restrained of all possible legal actions. We're seeing a civil action against an organization. And its consequences, if successful, will not in any direct way affect individuals. It will say, um, uh, I mean, it will affect patients, but individuals responsible for the wrongdoing. It will say, um, organizations, you must assist. And two, you must pay damages. And even the damages are pretty moderate. So the organizational damages for the RICO charges are $1 million for AAAP uh AAP, I always say it wrong, and WPATH, $1 million each. A million dollars for a big organization like that is not a big deal. It's also $10,000 per count of or per instance of deceptive practices. I don't know how many instances of deceptive practices they're alleging. It wasn't clear to me in reading the complaint. So I don't know how big those damages could potentially get.
SPEAKER_02So, Josh, are there any counterarguments here? Like in the sense of aren't they, can't they say, hey, this is a conservatives abusing legal process to go after ideological enemies? Is this a tit for tat question again?
SPEAKER_01Absolutely. Absolutely. It's another tit for tat question. So here's you could see the argument from both sides. On the one side, you can say, well, if they can, you know, if if the complaint is right, what we've got here is a scientific fraud leading to irreversible damage to many, many children and families. It's terrible, right? And all you're doing is modest civil damages for the organizations with no consequences for individuals. That's not enough. It's not enough for justice and it's not enough for deterrence. On the other hand, you could say, well, trying to do more going after individuals is weaponizing the legal system just the way the right is mad about the left doing, and the left alleges the right doing, and it's more of this norm-breaking that we want to get over as a society. So I put it to you guys. What do you think? Is this uh did Florida find the right balance with modest civil uh claims against organizations only, or should it have done more?
SPEAKER_00I I really like it. I think too, um, we've seen well, I I I have I have some beef with the American Association of Pediatrics or whatever it's called, because they have done things like this before, I have felt, where they give out bad guidance. Um, for example, I've struggled with food allergies my whole life. Fun fact about me. Um, and part of that we're finding out is because doctors used to advise parents not to feed their kids all sorts of things until they were like three years old. Peanuts, eggs, all sorts of stuff. Okay, simultaneously in Israel, they were eating peanut puffs at the age of when do you get teeth? Like six months.
SPEAKER_02Bamba. Have you ever had bumba?
SPEAKER_00No, because we're we don't really have the similar thing in America. Trader Joe's has one.
SPEAKER_02Trader Joe says bumba.
SPEAKER_00When I have a baby, I'm gonna go get them the this at Trader Joe's. Now they tell you, okay, this guidance has changed. But for years, over a decade, the the Pediatrics Association was telling doctors, you cannot be giving kids these foods. It's dangerous. And what we saw is a massive increase in kids with food allergies. People like me, who now, my whole life, I have food allergies. And a lot of this was based on no data. They had hardly any data.
SPEAKER_02That's what they mean by trust it. Trust the science.
SPEAKER_00Trust the science. Well, it is real. They have the correct data. So this is not so that my example is not so extreme as the one of the, you know, gender-affirming care, right? But it is an example of doctors trusting these associations that do not seem to be taking seriously enough their role in actually giving good advice. It seems to me that these are the exact people that we should be going after, and not necessarily the doctors who are seeing patients all day and don't necessarily have time to do their own research to go through the data.
SPEAKER_01Just plain devil's advocate here. Please. You're the one who said this is the common sense cause of action. Like this is not disagreements about um the healthfulness of eating peanut peanut butter-based snacks as a young child, which is just a medical disagreement, right? This is something where it was an ideological movement dressed up in the clothes of medicine and science. And you yourself said that this is a common sense cause of action, that you probably shouldn't be cutting adolescents' uh pieces of an adolescent's body off or giving them uh drugs that change their whole trajectory of development in life. And so this is to say that maybe what we need here is more severe consequences than just organizational, like civil liability for organizations is reasonable in a different way, isn't it?
SPEAKER_02So I think yeah, so I think I like Catherine's point a lot because again, it emphasizes this idea that where did the data come from that said, oh, you shouldn't give peanut like was there like a double blind study where you tray traced people for 20 years to see if you withheld peanuts when they were born? Like, obviously not. Obviously, there was no double blind longitudinal study here before they just propose these things and they just call it science. I think what you're describing, Catherine, is gross negligence on the part of AAP. Here it's even worse because in our case, It's it's outright deception, knowing deception, which is even worse. I doubt they had that in your case, but both again show that like there should be consequences because these people that we supposedly trust uh have these totally life-altering consequences for individuals. Let me say this though, uh to your point, uh to your question, Josh. Is it tit for tat? Uh I have this sort of pet peeve about how uh progressives use ordinary causes of action for totally unordinary, extraordinary, outrageous, adventurous, creative purposes to go after people they disagree with. Okay, so let me give give you two examples. One we talked about on our special episode with the Manhattan Institute earlier um this week, where public nuisance laws have like a legitimate purpose that progressives you refuse to use them for a legitimate purpose, like removing these encampments, but they'll use them for totally crazy and outrageous things like suing energy companies over climate change, which is totally insane, suing gun manufacturers over gun violence under this public nuisance thing, right? They they literally take these traditional causes of action and do crazy things with this to go after their ideological opponents. Go back to the alternate electors case, which we've talked about multiple times on this podcast. Forgery, again, forgery is if I pretend to be Catherine. It's not a forgery if I sign my own name and just purport to be the duly qualified elector from such and such, you know, campaign or state or whatever. So they will take ordinary causes of action, stretch them way beyond the comprehensible to go after people they disagree with. Whereas this just strikes me as like an ordinary use of unfair and deceptive trade practices, right? The Federal Trade Commission's key statutory mandate is unfair and deceptive trade practices. What is more deceptive than you know, commercial speech, speech made to encourage people to buy a service or product that is deliberately misleading? I mean, this is a classic cause of action. And uh so I do not think it's tit for tat. I think we're actually deploying laws as they should have been used, whereas the left stretches laws beyond recognition to go after their political enemies. Have I convinced you?
SPEAKER_00Well, let me say one thing to in response to your question, Josh, and then we you we can get back into the legal stuff. Uh, but I do think that I'm fine with going after doctors for this to start, because I do think it's common sense. However, at the same time, when you look at the manipulation that occurred, it also occurred onto doctors. The manipulation was these organizations saying, actually, if you don't do these surgeries, if you don't give them this care, these children are much more likely to commit suicide. They're actually way, way more likely to kill themselves. That's what they told doctors and parents. And so when there's that level of manipulation going on, I mean, as a doctor now, you have to think like, okay, wow, how do I advise this person if the alternative is death? That is putting them in such a position that is very difficult when now we know that's complete BS. But at the time, you know, people didn't really, people didn't know that. They were listening to the organizations they thought they could trust. So I have a little more grace for doctors than I do the organizations. However, I still do stand by my common sense claim. And if patients want to go after the doctors that did this to them, more power to them.
SPEAKER_02I think the doctors should have known better. Yeah. I have no sympathy. You know, you you watch this video from Boston Children's Hospital and they're like describing how they cut off from the forearm and they build this penile tissue. And I'm like, you you are the most advanced doctors in the world. You really didn't know better, or is it because you were making a lot of money? Or is it because you're making a lot of money? Follow economic interests. Um, that's my view of it. But okay, look, so I know we've got to go on to the legal stuff, and so let me just say uh these points are connected. The points I just made about this is classic unfair and deceptive trade practices claims goes to the legal issue here. Because remember, as we set it up for our listeners, uh the AA AAP tried to stop the state court lawsuit in Florida by filing a federal court lawsuit in Illinois. And like, just as an initial matter, I want our audience to understand that the Florida lawsuit is totally legitimate, and because that puts this Illinois case also um in context. So, again, just I want to emphasize that this is a classic unfair and deceptive trade practices claim, right? These doctors, these associations, they're not engaged in pure free speech, right? The kind of speech here isn't, you know, we believe uh X, Y, or Z, we believe more trans people would be good for the universe. We that's not what this is. It's commercial speech, it's professional speech. They are making uh empirically determined, like scientific uh-based claims in order to drive people to take certain commercial engaging in commercial transactions or services in the same way that lawyers can't engage in total free speech, right? We there are laws that say we can't contact um victims of airplane crashes uh for 30 days. Like that's a restriction on speech, right? We have ethics requirements and obligations and so on. So our speech is restricted uh all the time. And so this isn't really a commercial speech, gets sort of lower tier of scrutiny. So to say that they had a First Amendment right to lie about underlying data in order to generate business is just utterly insane. This is a classic, classic unfair and deceptive trade practices claim, which I think puts in context the Illinois lawsuit.
SPEAKER_01Let me respond to that. I want to try just just because the rationally based podcast is not supposed to be about straw man, right? We want to we want to steel man the argument on the other side. Let me try to steel man the argument on AAP's side. Um and just uh not based, but rational. This is the rational part of rationally based. Um uh and and just to be clear about how procedurally weird this is, and we'll talk about it in a second. Um, Florida government sues AAP and WPATH. AAP, they both counter, WPATH and AAP counter in the Florida court and say, you can't sue us, here's why we're innocent, whatever. But then AAP goes to Illinois, we'll talk about why in a second, and sues in federal court to enjoin the Florida state court lawsuit. So this is bizarre from a procedural perspective. Uh, but I want to take the First Amendment claim seriously for a second. Um, AAP was advocating for something, right? They were advocating for the medical value of gender-affirming care. Basically, they're endorsing the transgender movement's perspective. The transgender movement, I'll try to give a fair representation of their perspective. They think gender is something that can and should be chosen by each individual. And that gender dysphoria is a huge source of human suffering and it merits medical diagnosis. Some people are born in the wrong body and they should be in the other gender, and they're suffering because of it. Um, changing a person's gender medically by means of drugs and hormones and um surgeries is a good thing to do, in their view, to relieve that medical need. Now, I don't agree with that perspective. None of us agree with that perspective, but that's not the point. It's a view we can all recognize as a political view. Uh, it's a political perspective. It's also a medical perspective. In a sense, it's a spiritual perspective. It's a it's a perspective about how we sort of relate to the given, the natural given, the body we're born into. Strong disagree. But I'll let you know. So hard note, but go on. Imagine that someone just said that. They said that in an ex post. You know, they said, uh, I'm just an ordinary citizen and I'm saying gender can and should be chosen. It is not a natural given, gender dysphoria is a huge, et cetera, et cetera. The whole thing I just laid out. They just said it in an ex post and they got sued or prosecuted by the state. No question that would be a First Amendment uh issue, right? It would be First Amendment protected speech. Of course they can say that they agree with this gender view. Okay, what about a doctor expressing that view on X? I think that's still just expression of a person's opinion. What about a doctor expressing it to a patient in the exam room? That's a maybe a closer call, much closer call, right? Because then you're actually advising someone.
SPEAKER_00That seems completely different to me.
SPEAKER_01We'll get to that in a second. What about a group of doctors or an organization of doctors endorsing this perspective? So that's the First Amendment counter, is that we are entitled, as an American association of pediatrics, a group of medical doctors who work with children professionally to say we think gender dysphoria is real, we think it's suffering, we think medicine should be used in response. Tell me why that perspective is wrong.
SPEAKER_02Do you have an everyday instinct as to why you disagree with that? I'm going to do a very legalistic one, legalistic one, but I'll give you an everyday chance. Telling someone, you know, advocating, you know, more people should commit suicide, that's free speech. Telling someone you should commit suicide and here are all the things you could do, like that strikes me as different. One is sort of felicitating. That's not quite the analogy.
SPEAKER_01To perfect your analogy, it would be saying more people should commit suicide, it's like the right or the honorable thing to do, like harikari or something. That's an expression of an opinion. I agree with that. For a psychologist to tell his or her patient you should commit suicide, totally different. Yeah.
SPEAKER_02So I would say three things. The first is this isn't speech. It's not pure speech, it's actually conduct. This isn't just advocating uh for certain things. It is a standard of care. Standard of care adopted by an organization which determines also as you know who gets medical licenses. If you don't follow standards of care, that could be grounds, as far as I understand it, to revoke medical licenses and so on. So imposing something in a standard of care isn't just speech, it's actually facilitating conduct of a certain type. Uh now they're not engaged in the conduct, the doctors are engaged in the conduct. So maybe there's more pure speech on their part than, you know, but again, because their standards of care tie into medical licensing decisions and things like that, as far as I understand, I don't see it as pure speech. I see it as conduct, which conduct is regulable, right? The other thing I'll say, even if it was pure speech, right? There's uh fraud crime exceptions to, you know, attorney client privilege. Uh you can't uh fraud itself is an exception, right, to speech.
SPEAKER_01They're all I can't say to you, I mean, free speech is not unlimited. I can't say to you, want to buy this microphone, because I don't own this microphone, right? That that is a crime. That's trying to sell property not your own. But it's speech, right? I'm telling you, yeah, go ahead.
SPEAKER_02Uh and then the last thing I'll say is if you really want to go to the like core original meaning of the First Amendment, I actually think for the most part that the I'm gonna get in trouble, the Sedition Act of 1798 was actually constitutional, that the Blackstonian view, more or less, of free speech was correct, that you can't license speech. There's no prior restraint on speech, but you are responsible for the consequences of your speech, including things like defamation, for example. Now, in the context of representative democracy, do we need sort of robust presumption that speech about political candidates and political issues is protected? Yes, but this doesn't even come close to that because of the connection to conduct and actual consequences.
SPEAKER_01It's connected to conduct, but it really is endorsing a political slash medical slash spiritual perspective. I mean, okay, I totally agree with you. Um uh if if I'm a doctor and I tell my patient, you know, you should take 10,000 milligrams of morphine, it's super fun. And that's a obviously a fatal dose. Like I can be prosecuted for that, I can be sued or prosecuted for that, civilly or criminally, because obviously that was, despite being speech, that was a kind of conduct, and it was not protected speech. But it is tough in the case of AAP. This is essentially a consortium of dem of doctors endorsing a view that is very controversial in our society today, which is a signal that it's a matter of cultural disagreement. It's about politics, it's about medicine, and it's about spirituality. They took a position, they endorsed it. Still conduct in your view?
SPEAKER_02I you put standard of care. I mean, uh you put standard of care on it, you put it's a profession, licenses depend on it, it leads to um the actual treatment of patients in a certain way, so-called treatment, not actually treatment. Then it's it's part and parcel of a big criminal enterprise involving conduct, not just speech. So that's my view of it. But but but I get it. And in fact, the free speech argument is why they filed in Illinois. And the Illinois judge um actually tried to enjoin it. Um let's talk about Illinois. Let's talk about that. That was my signal uh to move on to the uh Illinois uh Yeah.
SPEAKER_00Will you explain this? Because I don't understand how we jumped from Florida to Illinois particularly, clearly.
SPEAKER_02I can't explain it other than to say that progress certain progressive judges ha have no conception of any limitation on their power, and therefore anything is possible. Um but you know, the the the here's the fundamental issue. If you're WAAP and suppose you have a First Amendment argument, a First Amendment complaint uh about something or a First Amendment defense, okay? Like, hey, they're going after me uh under unfair and deceptive trade practices, but actually what I'm doing, I mean, you'd argue on the merits, it you know, it doesn't actually uh violate unfair and deceptive trade practices, you'd make that argument, and then you would say, but I also have a First Amendment defense to what I'm doing. I have a federal constitutional defense to the state underlying state law cause of action. Well, there's a doctrine, okay, to all of our law students who listen, and I hope there are a lot. Uh there's a doctrine called the well-pleaded complaint rule, which says the following If the cause of action in the lawsuit is a state cause of action, merely having a federal defense to that cause of action is insufficient to get you into federal court. You must bring your federal claims as a defense in state court. So they would have to come in and say the First Amendment prohibits uh this lawsuit, the first amendment prohibits liability. It would have to be in state court. This is called the well-pleaded complaint rule. However, there is a statute, 42 USC, section 1983, that gives federal courts jurisdiction to give damages for or to restrain and enjoin state officials for violating constitutional rights. So you can imagine a situation in which, if it's true that the Florida Attorney General and the state judge are violating the First Amendment rights, okay, of the uh uh AAP, you could theoretically uh file a federal lawsuit alleging a violation of 42 USC 1983. So instead of using the federal claim as a defense, it would be sort of offensively. Well, what's the problem here? Okay, the first problem is even if that's true, you would have to file in Florida federal court. Even if it's true, you'd have to file in Florida federal court. Can't shop for a more liberal federal judge in Illinois.
SPEAKER_00And that's why they did it in Illinois.
SPEAKER_02Well, they did it in Illinois because apparently they're headquartered in Illinois, but of course they wanted to file in Chicago versus Florida, if they could. And the question is so the Florida court restrained the state court proceedings. How can it possibly enforce it? Suppose the state court continues proceeding. The state judge has never been in Illinois. No one served process on the state judge. The Florida Attorney General, how do you enforce it against him from prosecuting it in Florida State Court? Unless the Attorney General of Florida has property in Illinois that could be attached and then like sold for damages or something. How can you restrain someone over whom your executive officials have no power? It is totally insane. What the federal judge here said was, well, you served legal process on them in Illinois, and therefore you have sufficient contacts in Illinois justifying an exercise of jurisdiction over you from the court. I don't know if any court has ever, ever held this. Because if that's true, right, the whole point about personal jurisdiction, it it determines where you can sue. Okay. So uh you have to have some sort of degree of personal jurisdiction uh over somebody. But now all of a sudden, if in in serving process on somebody it in order to say, hey, you've been sued because you've committed some acts in some state, all of a sudden allowed that person to say, no, I don't want to go to your state. I'm gonna sue you in my state because you serve legal process on me, all of a sudden all the rules about personal jurisdiction go out the window, right? The whole the whole point is um so okay, so suppose again, a plaintiff in California lives in California, his whole life lived in California. Suppose someone from Nevada was visiting California and there was a car accident. Well, you want to sue them in California, because you're the plaintiff in California, your damages are in California, the act was in California, they visited California. So you sue them in California, and you have every right to do this, but the court has jurisdiction over the defendant because the defendant committed acts in California, which is sufficient to give them what's called a specific personal jurisdiction over the individual. Okay. If the person in Florida can now say, and so how do you sue the person in Nevada? Well, you gotta get hire someone in Nevada to tell them, hey, you've been sued, come to California. Okay. But now if that person can say, hey, because you served process on me in Nevada, I can now move this whole thing to Nevada, that would be insane. But that's what this progressive judge, Judge Kennelly, did in Illinois. It is totally, absolutely, utterly uh insane. There's another problem, of course, which is uh, aside from the first, you know, you know, the merits of the First Amendment claim kind of matter, right? He said this is such a blatant violation of the First Amendment, such that you, you know, you could restrain but the state court, but there's another problem. How the whole point is you don't want 42 USC section 1983 superseding or supplanting the well-pleted complaint rule, right? The whole point is you have to bring federal defenses and state country.
SPEAKER_01And just real quick on that, yeah, the history of 1983 is sort of like after the Civil War and during Reconstruction, actually, even later than that, during the rise of the Klan, um Southern state courts weren't enforcing federal law against um Klansmen and other favored defendants. So it was like um you would have the Ku Klux Klan, uh, or sometimes you'd have state officials violating black people's civil rights, their constitutional rights under uh under the 14th Amendment or their statutory rights. And uh they would seek relief based on federal law and state court, they wouldn't get it. And so Congress created this extraordinary remedy so that they could seek review and get relief in federal court. That's the kind of to invoke that in this case when there's a Florida court apprised of the deceptive uh practices of AAP and reviewing it, and you know, you can just make your First Amendment argument in that court. And so, of course, it's subject to review, including ultimately review by a federal court, uh, but that's in the nor normal appeals process. Filing in a um uh a federal court uh to enjoin the state court proceedings is just a totally extraordinary procedural innovation. And it shows how progressive abuses of legal process hide in these very technical details, but they're still there and they're extreme, notwithstanding the fact that it takes a lot of sort of background and information to see why they're extreme.
SPEAKER_02Yeah. Josh said it better than I could. Uh so let's stop there. And uh, I'm looking at the time, and I think our listeners also want to hear about uh Kilmar Abrego Garcia. But the bottom line, I think, on the Florida stuff is legitimate suit in Florida, absolutely outrageous to have filed in federal court, let alone federal court in Illinois. And even if they had filed in federal court in Florida, I think the bottom line is they would have had a hard time sh using 42 USC section 1983 over this kind of thing. You will never find a conservative judge who would have, if the script were somehow flipped on this, who would have let that fly? They would have said, no, of course this is preposterous. Bring bring it in state court, uh, well-pladed complaint rule. But of course, I think there's no uh depths, uh, there are no limits to the depths I've always mixed this metaphor to which certain progressive judges will go. Let's hear about Kilmar Greg O Garcia.
SPEAKER_00Okay, so we've talked about this case before, um, but somehow this is like the longest saga ever. I mean, why? Okay, this is my my overarching question. Why is it so hard to deport a criminal, illegal alien? This guy, we can't get him out of the country. Why? It's apparently impossible.
SPEAKER_02Because he's as American as apple pie.
SPEAKER_00Oh my god.
SPEAKER_02Would you deport apple pie?
SPEAKER_00He's a trafficker.
SPEAKER_01He's a gangster.
SPEAKER_00He's a gangster.
SPEAKER_01And an illegal immigrant. He's both an illegal immigrant and an MS 13 gangster.
SPEAKER_00Well, so Kilmark Brego Garcia, a little background. He was a Salvadorian, he is a Salvadorian national, granted withholding of removal in 2019. Okay. Protecting him from deportation to El Salvador, but not protecting him against deportation generally.
SPEAKER_02Uh which is a point that the media keeps messing up, right? Yeah. They couldn't deport him to El Salvador, just specifically because of some gang that no longer exists, by the way. So there's actually like no problem technically. But anyway, so so he was accidentally sent to El Salvador.
SPEAKER_00He was mistakenly deported by the Trump administration in 2025 to El Salvador's prison, and his wife filed suit in Maryland federal court. The district judge ordered the government to facilitate his return, and the Supreme Court affirmed that order in 2025. We've talked about all this on the podcast before. So if you're unfamiliar, um, go back to those episodes. After he was returned to the United States, federal prosecutors in the middle district of Tennessee indicted him on human smuggling charges stemming from a 2022 traffic stop in which he was accused of transporting other illegal aliens. Then recently, um, on May 22nd this year, U.S. District Judge Crenshaw dismissed the incident, ruling that the prosecution constituted a vindictive prosecution. So they were only going after him because what they were bitter about the fact that they couldn't deport him to El Salvador. I guess that's the claim. What?
SPEAKER_01And vindictive prosecution is a due process claim. It's a defense against criminal charges. So the the it's very rare. The idea is that if criminal charges were filed to punish someone for exercising their statutory or constitutional rights, they have a defense against those criminal charges in extraordinary circumstances. So let's say, um, let's say I criticize the mayor, and then police show up at a door, and they've got, you know, they start searching everything and they they find evidence of like marijuana use or something, and then they arrest me and et cetera, et cetera. I might have a defense that this was vindictive prosecution. It was retaliation for my criticism of. The mayor. But the main defense to criminal charges is that you have the prosecutor has to prove them beyond a reasonable doubt. And uh that's going to be used 99.99999% of the time, not vindictive prosecution. It's tightly constrained. So this is once again an extr a familiar piece. This is what uh uh Elon was talking about. We need a term for this. It's an ordinary piece of the doctrinal puzzle of the law being used in an extraordinary way uh for progressive reasons.
SPEAKER_00I feel like this guy's got like the craftiest lawyers ever, by the way. Like what who are these people? They keep coming up with new new things to throw on the table.
SPEAKER_01I I don't know who his particular lawyers are, but there's all these, you know, top-notch sort of crackerjack lawyers from leading NGOs or from leading law firms doing pro bono work who are representing these guys. So they're gonna be able to do that.
SPEAKER_00Now that it's become a popular case, too.
SPEAKER_02Yeah, just like there were creme de la creme lawyers for the Guantanamo Bay detainees. But if you wanted to defend the proposition that marriage is between a man and a woman, like good luck getting lawyers, right? Yeah. The lawyers you did get were then sacked from their law firms, right? I mean, another um stay tuned, our listeners. Well, we have an episode coming up about the attack on law firms and what we do about, you know, the fact that so many law firms are so insanely uh progressive. And and so stay tuned uh for that. But on the vindictive prosecution, let me jump in there, um uh Josh. It is supposed to be hard. And the way it's supposed to be hard is you have to show two things. The first thing you have to show for a vindictive prosecution is that the prosecution was brought because of a protected activity. So, what is the protected activity here that they allege? Oh, you only brought the lawsuit because he filed in uh his wife filed a civil lawsuit, and she has a right to file a civil lawsuit, and that's a protected activity. That's insane. No, that the reason they're bringing this prosecution is they try to remove him because they don't want him here and they want him off the streets, right?
SPEAKER_01Because he's which is not a constitutionally protected fact. He's an illegal immigrant.
SPEAKER_02Exactly. So we tried to remove him once, and then they sued and with all their high-powered lawyers, got him off. And now we're not prosecuting him because you filed a lawsuit and got him out. We were do we're prosecuting him because you got him out and we want him off the streets because he's dangerous. It's not because you filed the lawsuit. You're welcome to file the lawsuit. It's simply because of the consequence of that is he was let out, and now we think he's dangerous and need him to be behind bars or off the streets. So, first of all, that first like showing that it was based on some protected activity is absolutely insane. And this Tennessee federal judge, I have no idea who appointed uh this person, but I can guess. And it's just ridiculous. It's just absolutely ridiculous.
SPEAKER_01How would you answer? I thought Catherine's common sense question was a really important one. Why is it so hard to deport this guy? Can you give a one to three sentence legal answer? Why is it so hard to deport him?
SPEAKER_02The answer isn't legal, Josh. It's because of progressive judges. Right. That's the answer. This whole idea, uh so withholding of removal means you can be withheld to a specific country. Uh you can't be removed to a specific country. But that doesn't mean you can't be deported elsewhere. And his lawyers brought a series of what's called cat claims, convention against torture claims. Every country that the Trump administration wanted to deport him to, and those countries agreed to accept him, a lot of them were in Africa. That uh we, you know, admittedly, he doesn't have a connection to Africa. But again, why is that our problem? He's not allowed to be here either, right? And they made cat claims against every single country, as if like all these progressives, what you you were not even allowed to say the word.
SPEAKER_01Wait, the claim was he would be tortured in literally every country on Earth?
SPEAKER_02Correct. Every country that they wanted to send him to, his Lord had a great claim. Britain doesn't torture people. I I don't think Britain was gonna take him for whatever reason.
SPEAKER_00Where you have to do it, maybe because he might be human trafficking. I mean, that's maybe why they don't want to take them.
SPEAKER_02Um take him. Well, Britain's taking everybody these days, so it's actually kind of interesting. Um this actually would be he'd fit right in in Great Britain. Okay, that's a sort of a uh a different topic, but the other thing is that the yeah, the the other thing on vacation.
SPEAKER_01I I will tell you, just in response to your your point, because it it resonates with me. I I once did this big academic article and study about um international law. I heard a previous episode before I joined the podcast of about international law and Catherine skepticism of it. And um I came to the conclusion that there was nothing wrong with the law. The law was legitimate and it was sensible. There was something wrong with the legal personnel. There was something wrong with the judges of the international courts. And it was a claim that surprised me because my sort of abstract philosophical mind tends to go to like focusing on the systemic conceptual things, namely the legal doctrine and not the personal individual things, namely the personnel. But I remember uh writing that um the problem lies not in the law, but in the judges and the personnel and the people. And that seems to be the case here. Our immigration law, our illegal immigration uh deportation standards are not crazy. We just have judges who are opposed to the soles of their feet, to deporting illegal immigrants. They think it's unjust and they're fighting with everything they've got. It's reminiscent, actually, of the 1990s fights over the death penalty. Where you had judges who were ordinarily law-abiding, sort of breaking all legal norms because they thought the death penalty was just light speed unjust. And you see that same kind of zealotry in this case.
SPEAKER_00Don't you, as a judge, have to uphold the law no matter if you agree with it or not?
SPEAKER_01That sounds weird. I what is it?
SPEAKER_00Could we could anyone go after the judges for being like, yeah, it doesn't matter if you don't like illegal immigration?
SPEAKER_01But this is a serious serious problem. That's impeachment. That's the only option there.
SPEAKER_02Well, how about disobeying so-called judicial orders? And I say so-called because there are at least certain cases in which they don't have jurisdiction. For example, I think the Florida Attorney General can ignore the Illinois district judge. Oh, because I don't think his order was a judicial order.
SPEAKER_01I was just going to go after. But I agree with you on that. So so I do think so if you're talking about holding judges directly accountable for their legal decisions that seem lawless, um, impeachment is the constitutionally acceptable strategy there. And it's a very, very high standard.
SPEAKER_02But there is, of course, one other thing, Josh, about the law point that you made. Holmes famously said, right, law is just a prediction about what courts will do. And you are actually disentangling that. You say no, law is something else. I do think that what judges do is not necessarily.
SPEAKER_01I think Holmes's early legal realism was really mistaken about the the relationship between law and judges.
SPEAKER_02Yeah. Okay, that's maybe too profound and deep of a topic to get into.
SPEAKER_01We're gonna have we have another profound deep topic to get into. Let's talk about the rest of this case and then Yeah.
SPEAKER_02So I I guess we don't have to talk more about the case, other than I wanted to ask you, Josh, for your take on this. So what happened? So not only is this vindictive prosecution ruling, and so they dismissed the prosecution, which is utterly insane, but as soon as that happened, what happened? A bunch of left-wing nutcases did what they do best. Barfare, law fair. Look, the attorney general Todd Blanche has engaged in vindictive prosecution. So says this judge in the Middle District of Tennessee. Here's an ethics complaint, New York State Bar, take his license away.
SPEAKER_01Thoughts? It was just days after. So the federal judge rules that uh Garcia cannot be deported because deporting him would constitute a uh or criminally convicting him would constitute vindictive prosecution. And immediately uh there is a complaint in the New York State Bar where Todd Blanche, our acting attorney general, is licensed, saying this acting attorney general sponsored a vindictive prosecution, take away his bar license. That's pure lawfare. And I just think we can't have a society that functions this way, where basically, you know, to in the context of the legal profession, one side tries to get the other side's lawyers disbarred, including the attorney general. I mean, the dude is the attorney general of the United States, the acting attorney general, and they're trying to get him disbarred for his conduct of office. And I think that is a microcosm in the legal profession of something we see happening in lots of professions, where it's like, oh, you disagree with uh um uh transmedical care, let's take away your medical license. You disagree with um uh, I don't know, affirmative action, let's make sure you're unemployable and all whatever your profession happens to be. There's this sort of process of professional and and interpersonal ostracism of the people on the other side that I think first of all, it leads to these really tough tit for tat questions of like, well, I was gonna say, Yeah, would you would we go after the the lawyers who are representing Kilmar Obrego Garcia?
SPEAKER_00I don't think I would, but now it's like, well, I don't know, maybe.
SPEAKER_02But that's the thing, right? So they actually get to take lawyers' livelihoods away. They get to destroy them very fundamentally, very personally, very viscerally. And what does Trump do? His response, hey, I'm gonna take some security clearances away from law firms, which I think have acted outrageously. And you know, squishy right of center law professors say, Isn't that the most unconstitutional thing you've ever seen?
unknownRight.
SPEAKER_02Hello, can you give me like a comment about going after the actually going after the lawyers? You know, the the John Eastman and the state bar complaints, uh, the guy in DC.
SPEAKER_01Literally to do tit for tat would be to go after the um the lawyers on the other side, Garcia's lawyers uh licenses. I would never do that. But it seems like that's the only way to have uh sort of equal consequences on both of them.
SPEAKER_00How else do you stop this from happening?
SPEAKER_02Well, we have about 15 minutes left. Let's talk about the DC circuit case. We have to get to trans in the military.
SPEAKER_00Catherine, well, and this was a huge story. So um, I'm excited to talk about it with you guys. Basically, the DC Circuit in a 2-1 decision ruled that discharging transgender individuals from the military is unconstitutional discrimination based on animus. So, back up a little bit in 2016, the Obama administration issued a policy permitting openly transgender individuals to serve in the military. Not only that, they could receive gender transition related medical care for free.
SPEAKER_02Paid for, not free, paid for by you.
SPEAKER_00Excuse me, sorry, yes, paid for by us.
SPEAKER_02And the taxpayers, I actually had to look this up to be, wait, is this real? And I had to ask AI, I'm like, please like confirm this. Did they really do this? This sounds insane. They did it.
SPEAKER_00Yeah, I double checked it too. I was like, that can't be true. It's true. The first the first Trump administration reversed this since 2017, 2019 via a presidential memorandum and implementing regulations that barred transgender service members and those with gender dysphoria, which led to multiple federal lawsuits. Um, the Biden administration, of course, rescinded this in 2021, but then in February of last year, Secretary of Defense Pete Hagseth, who Secretary of War? Oh, Secretary of War, good point. Secretary of War, Pete Hagseth, who is a great Minnesotan, shout out to him, issued new guidance reinstating restrictions disqualifying from retention or accession anyone with a current or historical diagnosis of gender dysphoria or who had undergone cross-sex hormone therapy, sex reassignment surgery. Um, and he cited military readiness, medical costs, deployability, and unit cohesion. Transgender service members and recruits filed suit in the U.S. District Court for the District of Columbia, which is like where you do all these things, right? If you're wanting your verdict on the left. And on March 18th, 2026, just recently, um, the district judge Anna Reyes granted a preliminary injunction, finding the policy likely unconstitutional. Uh, the government appealed to the DC circuit. In Talbot v. USA, a divided DC circuit panel ruled two to one on June 1st that Hegseth's 2025 policy banning transgender individuals from military service likely violates the Equal Protection Clause. And the majority affirmed the district court's preliminary injunction as to current service members, blocking their discharge, but it actually vacated the injunction as to new recruits or enlistment. The court held that the policy was arbitrary and motivated by unconstitutional animus towards transgender people. One judge, Judge Walker, did dissent, arguing for greater deference to the military. A Trump appointee.
SPEAKER_02A Trump appointy. And the other two, I believe, are not. Shocking. Surprise, surprise.
SPEAKER_01So here's my proposal for our last, you know, 10 minutes or whatever. Um, Ilan, why don't you speak to your sort of take on the law uh in with regard to this case? And then I'll say something about what I think the big question is, the big philosophical question. Go for it.
SPEAKER_02And then Catherine can chime on with the last common sense. Like this is obvious. Bring us back to common sense. Why, why, no, seriously, actually, can I channel Catherine for a moment? Isn't the law obviously gonna be what the common sense answer is? Which, well, actually, well, I'll I'll let you do your piece when you get to it. But I'm starting to like your approach actually better than this whole legal thing that I thank you.
SPEAKER_00Sometimes you guys just take roundabouts to get to the same endpoint, you know?
SPEAKER_02That's like that everybody knows this is the answer to the story of my life. That's so true. Okay. So the short legal uh answer here is this is crazy. Um and I used the legal term crazy uh intentionally. So under the Equal Protection Clause, the actually this is all incorrect as a matter of original meaning. Uh the the non-disc, I'm not gonna get into it, but the non-discrimination clause of the constitution of the 14th Amendment is probably the privileges or immunities clause um that says Oh, okay, wait, time out.
SPEAKER_01Just speak about existing Supreme Court doctrine and not. That's what I'm gonna do.
SPEAKER_02That's what I'm gonna do. But the point is whether it's the privileges or immunities clause or the equal protection clause, right? Like um, no state shall uh deny any person the equal protection of the law, the laws, for example. The the idea is you can't invidiously discriminate. But the problem is every law makes distinctions, right? So a classic example. Um, you know, bakers can't work more than 10 hours uh a day. Okay, well, what about optometrists? Are you discriminating? Well, there's a it's a classification. We're making distinctions because distinctions are relevant uh for various reasons. Bakers are not the same thing as optometrists.
SPEAKER_01Or how about you can't be a doctor unless you went to medical school? That's a distinction.
SPEAKER_02Are you discriminating? That's a better example. Are you discriminating against people who didn't go to medical school, right? All laws make distinctions and classifications. And what the 14th Amendment protects against is invidious discrimination, arbitrary discrimination. And so, how do we know what is an invidious and a bad discrimination and what's a good discrimination? Like you have discriminating taste. That's a good kind of discrimination, a good classification, right? You should have to go to medical school, though I have more doubts about that these days, uh based on our initial conversation, but put that aside. So the equal protection doctrine uh uses a set of heuristics, uh and they're called tiers of scrutiny. So if your classification is based on race, you get what's called strict scrutiny. And so this the courts strictly scru scrutinize racial classifications because they will almost always be invidious. Because again, what does race have to do with rights generally, with contract rights? Like who gets to be a doctor, who gets to own property, like nothing. So if you're making a racial classification, uh the government, uh the government's motivations, reasoning must be strictly scrutinized and they almost always are invalid. This is the affirmative action cases, right? Those are classifications based on race. They get strict scrutiny and they're not valid. This is the affirmative action cases, right? Now sex is sometimes valid. For example, in the military context, um sometimes same-sex, single-sex education um is better for outcomes. And but it's usually not valid, a basis. And so it gets what's called intermediate scrutiny, heightened scrutiny or intermediate scrutiny rather than strict scrutiny. Uh and then everything else gets what's called rational basis scrutiny. If you if you are not in a protected characteristic, you just get rational basis. If the government can come up with some rational reason to treat you this way, we're gonna give it a presumption of validity in a way. Okay.
SPEAKER_01So, like, let's say that you're saying felons can't work with children in schools. That's rational basis scrutiny. You the government needs to present, if a felon were to sue and say, you're discriminating against me in violation of the Equal Protection Clause, uh the government's response would be, we have a good reason for discriminating against felons when it comes to working with children. You are less likely to um respect children's rights. Right.
SPEAKER_02And if it's strict scrutiny, to be clear, like you have to show that it's a compelling interest and that it's narrowly tailored. You don't have to show that if it's just rational basis. You just have to show some rational connection, any conceivable rational connection. By the way, to our listeners who have made it this far, almost an hour into this episode, now you know that rationally based is also a play on the rational basis. Oh, that's right. Yeah.
SPEAKER_00Yeah, I was gonna say I've heard that somewhere.
SPEAKER_02Yeah. Um, so anyway, but the point here is under equal protection doctrine, transgender status, sexual orientation is not a protected characteristic. It is not the same thing as sex, and therefore it only gets rational basis scrutiny. Not only that, in the military context, deference is even more heightened. So, really, this should have been the utmost deference. And so, how do you get around like the obvious rational reasons? Well, I I guess I'm begging the question. What the DC circuit basically said is yes, it's true, this gets rational basis. Yes, it's true we give deference to the military, but there's a case called Romer against Evans, which said if our belief, if our view is that the only motivating factor, the only reasonable explanation for what happens is what they called bare animus toward an unfavored group, bare animus, then it's uncon it doesn't meet the rational basis test. And so what they said here is literally, there is no rational reason to discharge transgender people from the military, and therefore it must be bare animous toward transgender individual and therefore not a rational basis. Catherine looks very scared.
SPEAKER_00Just like I can come up with many rational reasons, I think, especially when you look at like other reasons that people can't join the military. Um, you can't have asthma, you can't have like certain rashes. Um, there's all kinds of things that obviously they think like, nah, it might it might imped it.
SPEAKER_02Do your peanut allergies count?
SPEAKER_00I'm actually allergic to sesame seeds, in case you're wondering. And I don't think they count, but I do have eczema as a result of those allergies, and apparently I'm out.
SPEAKER_02And so all of those are reasons for the same thing.
SPEAKER_00Because I have a rash, which is kind of crazy.
SPEAKER_02But if you're transgender and there's a and there's a belief that that'll be expensive because we have to pay for your medical care, or that there might be mental health issues. That's not enough.
SPEAKER_00There's another one, too, that I found interesting. You can't be fat. Do you guys think that that's a little bit fat phobic?
SPEAKER_02Yeah, I mean, that's again, so what isn't that just animus toward fat people?
SPEAKER_00Yeah. I mean, that's uh it seems anti-fat.
SPEAKER_02I mean, it is crazy, all the bases. Like what you caught Catherine, here is the common sense answer, which is like there are all sorts of plausible reasons why you can't serve in the military. Yeah, from little things about eyesight, right? Little things about allergies, little things about like medical conditions, but this, which is a hotly disputed, like medical mental health question, we're gonna force a particular view on the military, right? That seems kind of crazy. I like your common sense answer.
SPEAKER_00It also creates a lot of issues where there's, I mean, there's obviously sex spaces in the military for good reason. It's a place with a lot of sex distinction. And when you're in a certain category that's trying kind of meddling those sex distinctions, it seems like even more so you should take into effect that sex distinctions are very important in the military.
SPEAKER_01I think these common sense views get at the big issue that is lying behind this case and all of the cases we've discussed today. So let me back up and try to take that larger perspective. What is this DC Circuit case, except a bunch of fancy legal language around the core issue that divides the whole culture right now? The right looks at transgenderism and says, this is not good. This is mental, this reflects mental health problems. The people who are transgender have mental health problems. Maybe they should be helped, but they shouldn't be helped by changing their gender, right? Especially kids. The left says that's bigotry, that's pure animus, that's just hostility to trans people. And our whole culture is convulsed right now over this dispute over how we should look at transgenderism. And, you know, underneath the tears of scrutiny and underneath the further legal complexities around the standards for a preliminary injunction, all the DC circuit really said two to one was that this is just animus. They endorse the general left-wing perspective, that this is just pure what Pete Higgs did, what Trump is doing, was just pure hatred of trans people. And it had no reason behind it, and no legitimate reason behind it. And of course, the right's response is of what was your response. Of course there are legitimate reasons behind it. That's all rational basis really means. And I want to take that point and apply it to all the cases we've just talked about.
SPEAKER_02Can I say before you do that? One thing you pointed out, isn't this again an example, Josh, that you mentioned and that I mentioned before about how the left uses language to dull the senses and to like drive the narrative, right? Like you call them unhoused instead of homeless or bums or vagrants, right? But here it's, oh, it's only animus and therefore you can't debate. Or like, oh, you're racist and therefore you can't debate certain issues involving race. The way they use language to shut down legitimate debate, isn't that kind of a fair assessment?
SPEAKER_01Well, I I mean this is the structure that legal doctrine sets up, right? Either a uh prohibition on trans serving in the military has a rational basis, or it's based on animus because of a series of cases that have already been decided. So the left sees um opposition to the trans movement as based on bigotry, hostility, animus. They see it as exactly equivalent to just disliking illegal immigrants or disliking black people. And the right says, no, it's not. It's got some grounds for it. So connected to our other cases. Yeah. So I'll so here's here's what is the concept of a democracy? The concept of a democracy is that we the people can control our public life, right? The people of Florida can't control their public life, namely uh about the trans movement and the medical advice given to Florida children because of an Illinois judge, right? Nor can the people of America control their public life over the trans movement. The American people turned against the trans movement. That's part of what Trump was elected about in 2024. That was one of the issues that, you know, the famous ad, she's for they, them, I'm for you, right? That was the American people sort of turning against the trans movement. But it's being held by judges like the DC Circuit judges and the uh Illinois federal judge. Uh think about now the immigration case, the Garcia case we discussed. Uh the American people, open borders was a major issue in the 2024 election. The American people turned against it. They wanted illegal immigrants deported. And um, we can't even deport one guy, one guy who was an MS-13 gang member and who is an illegal immigrant, and we can't get him out because of judges, right? So what we're seeing is a pattern in our country. Every political question somehow resolves into a legal one and is then given to a court. The law is so complex. There are so many little moving parts that there's always a legal argument, always some tangle that can allow a judge to stop what the elected officials are trying to do. And part of this is about partisanship and legal methodology and observing that many of our judges are just shockingly partisan and do the law in the wrong way. I think that's what you tend to focus on, Elon. But some of it, which I tend to focus on, is the sheer magnitude of judicial power. Um, we have a system where the judiciary is so powerful that if they happen to be uh irresponsible and partisan, they have the power to stop the democracy in its tracks. And I, my view of this is very affected by the global picture. What we're seeing in the United States today, with judges like just putting a stop to what elected representatives want to do, um, you see that all over the world. Judges are massively powerful. We had a whole episode about that in Israel, but it's equally true in Brazil, it's equally true in Colombia, it's equally true in South Africa, it's equally true in New Zealand, it's equally true all over Europe, France, Britain, and it's always power on the left, it's always judicial power. And I think there are two big lessons to take away from this, and I want to run them by you and see if you agree. Lesson number one: we on the right should be less sanguine about judicial power. Uh, we have been lulled to sleep because we've had the Roberts Court and the Renquis court, particularly the Roberts Court since Sam Alito took office, uh, that has made us feel that the judiciary is on our side. That's not true when you look at the district court judges. It's not true when you look at the circuit court judges. It could have easily not been true if just a few contingencies had gone the other way with the Supreme Court nominations. And it's not true anywhere else in the world. It wasn't even true in America for most of our history until the Rehnquist Court. So I think we should be very, very wary of judicial power. What we're seeing here is judicial power against majoritarian power. The other lesson is we should be a lot more friendly to we the people, majoritarian democracy. You know, the American people are people of good sense. And they might experiment with open borders and then they say, this has gone wrong. They might take up the issue of, you know, is um is transgenderism a mental health problem that we should fix by telling people, no, what you need is not a new body. What you need is to cure the underlying depression or whatever. Or should we give this medical treatment? And the American people will come to a sensible conclusion, but if it's given to the judiciary, we are stopped. And I feel like so many conservatives love the counter-majoritarian elements of our system, of our constitution. They should love the we the people elements.
SPEAKER_02So let me just uh wrap this up by saying my book is finally out this week and says something about this. The book, The Constitution of 1789, a new introduction, it solves all questions of constitutional law. No, I'm just kidding. Uh, but it does say something. So please get it. They're finally being fulfilled. It's out this week. Catherine's credit card just finally got charged for her copy. Though, of course, I would have given you a free copy, but thank you for buying it.
SPEAKER_00I used your promo code.
SPEAKER_02So we go. Uh Worman uh 26 if on Cambridge, uh, if you want. But there's a chapter on three chapters actually on judicial power and judicial review. And I think the answer um is that there's a question of what judicial power actually is, and I think it's the power to resolve particular cases and controversies. And this implies a certain thing that it's order the court's orders don't apply beyond the particular parties to the case. But the other thing that I try to point out is it's not properly a judicial order if it's made without jurisdiction, and there are lots of judges today who exercise power without jurisdiction. And so there are things we could do to get the courts back to their traditional role, but that doesn't answer the question of what questions they will be analyzing in cases that are properly before them. And Josh seems to have you seem to have a deeper concern about the kinds of questions that they address in those cases. And I think there's a lot we can do uh to rein in the judicial role without going that far, but it is food for thought, and that's all we have time for today. So please hit that like and subscribe button as always. We'll see you next week.