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The Plan to Fight Trump's Second-Term Agenda · Pod Save America

• 0:00
  Speaker 1: Thank you.
• 0:20
  Speaker 2: Welcome to Pod Save America. I'm Jon Favreau.
• 0:22
  Speaker 3: I'm Jon Lovett.
• 0:22
  Speaker 4: And I'm Kate Shaw.
• 0:23
  Speaker 2: On today's show, Joe Biden makes a big move on
• 0:25
  Speaker 2: immigration that will create a pathway to citizenship for half
• 0:28
  Speaker 2: a million undocumented immigrants. The president also takes on the
• 0:32
  Speaker 2: Supreme Court's right-wing majority, which just basically ruled that machine
• 0:35
  Speaker 2: guns aren't really machine guns. And a new resistance movement
• 0:39
  Speaker 2: is preparing to fight MAGA's Project 2025 in the courts
• 0:42
  Speaker 2: if Trump wins a second term. Does that sound like
• 0:45
  Speaker 2: a lot of legal news? Well, who better to hash
• 0:47
  Speaker 2: it out with than Crooked's very own Kate Shaw, law
• 0:50
  Speaker 2: professor at Penn and, even more impressively, co-host of Strict Scrutiny. Kate, welcome.
• 0:55
  Speaker 4: Thank you so much for having me. And you're right,
• 0:57
  Speaker 4: the Crooked tenure process is a lot tougher than the
• 0:59
  Speaker 4: Penn one, so I did make it through, but just barely.
• 1:01
  Speaker 3: There's a few ideological tests for our tenure process.
• 1:06
  Speaker 4: Yeah, that's right.
• 1:07
  Speaker 2: And so, yeah, I should say that we're in New York,
• 1:09
  Speaker 2: which is why we're here with Kate in person.
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  Speaker 4: And I actually have a question for you guys, which
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  Speaker 4: is why exactly.
• 1:13
  Speaker 2: Are you in New York?
• 1:15
  Speaker 3: What a beautiful, what a beautiful, seamless transition to our plug.
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  Speaker 3: Thank you, Kate, for being part of this. The three
• 1:23
  Speaker 3: of us are on Colbert tonight.
• 1:25
  Speaker 4: Not the three of us, including me. A different three.
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  Speaker 3: Tommy is recording Pod Save the World somewhere, also in
• 1:31
  Speaker 3: the Sirius studio somewhere. But we'll be on Colbert tonight
• 1:34
  Speaker 3: and we're here to launch our book.
• 1:35
  Speaker 2: It's Tuesday afternoon. So we're on Colbert this evening.
• 1:37
  Speaker 3: Oh, we're on Colbert tonight. Wait, no. Last night. Last night.
• 1:41
  Speaker 3: We're on Colbert last night. You said this evening. We're
• 1:43
  Speaker 3: on Colbert last night.
• 1:44
  Speaker 2: We can tell the people that we're actually, when we're
• 1:47
  Speaker 2: recording this.
• 1:47
  Speaker 3: Would you believe that we're some of the most successful
• 1:50
  Speaker 3: people at this? And we're also here to launch our book,
• 1:55
  Speaker 3: Democracy or Else, which you can buy at crooked.com slash book.
• 2:00
  Speaker 3: And if you don't, is that right? Book doesn't also redirect.
• 2:06
  Speaker 3: What are we even doing here?
• 2:07
  Speaker 1: I just worked here.
• 2:08
  Speaker 3: Let me try it. I feel like this promo is
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  Speaker 3: going great. John, Tommy, and I wrote a book. I
• 2:14
  Speaker 3: kind of think we should leave as much of this
• 2:15
  Speaker 3: crap in. Maybe not. So Democracy or Else, it comes
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  Speaker 3: out this week.
• 2:21
  Speaker 1: Nope.
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  Speaker 4: It comes out next week.
• 2:32
  Speaker 3: Oh, and we worked on it so hard. And it's good.
• 2:36
  Speaker 2: Kate, it is probably a lot shorter than almost any
• 2:39
  Speaker 2: legal opinion you have read.
• 2:41
  Speaker 4: That's great. Short, punchy, hopeful, practical, right? These are the
• 2:45
  Speaker 4: things I think your book is going to be about.
• 2:47
  Speaker 4: I have not read it yet, but this is my sense.
• 2:49
  Speaker 2: It is a how-to guide if you want to get
• 2:52
  Speaker 2: involved in this election and hopefully future elections without losing
• 2:55
  Speaker 2: your mind. That's it. And we got some tips. We
• 2:58
  Speaker 2: got some advice from some really smart people. There's some jokes.
• 3:01
  Speaker 2: There's some illustrations.
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  Speaker 4: This is a public service, you guys, seriously.
• 3:04
  Speaker 3: Yeah, and all the profits from the book, they go
• 3:07
  Speaker 3: to Vote Save America and organizations protecting democracy on the ground.
• 3:11
  Speaker 3: So supporting the book is supporting a good cause.
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  Speaker 2: And Lovett, you know that when we are on Colbert tonight,
• 3:18
  Speaker 2: you cannot do more than one take of this book promo.
• 3:21
  Speaker 3: Right, right. Well, you know what? They do trim it
• 3:23
  Speaker 3: down a little bit. They do tighten it up. They
• 3:25
  Speaker 3: do tighten it up. You can take another shot at it.
• 3:27
  Speaker 3: They don't love it. They don't love it. They don't
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  Speaker 3: advertise it, but you can do it.
• 3:31
  Speaker 2: Well, this is why we practice here. Okay, big news today.
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  Speaker 2: President Biden is announcing that his administration will offer a
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  Speaker 2: pathway to citizenship for the undocumented spouses of American citizens
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  Speaker 2: who've been in the United States for at least 10 years.
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  Speaker 2: The policy will give about 500,000 immigrants legal status, protection
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  Speaker 2: from deportation, and the ability to work here legally. As
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  Speaker 2: of right now, undocumented immigrants can apply for citizenship if
• 3:56
  Speaker 2: you're married to a citizen, but... You usually have to
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  Speaker 2: leave the country for 10 years to do it. Biden's
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  Speaker 2: new action will also help about 50,000 undocumented stepchildren of
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  Speaker 2: those undocumented immigrants who were married to American citizens. He's
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  Speaker 2: also expected to announce a separate action on work permits
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  Speaker 2: for DREAMers. The White House announcement comes right around the
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  Speaker 2: 12th anniversary of President Obama taking action to protect the
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  Speaker 2: children of undocumented immigrants, the program known as DACA. And
• 4:24
  Speaker 2: the Biden campaign used the occasion to set up the
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  Speaker 2: immigration contrast with Trump in a new ad. We did
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  Speaker 2: family separation.
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  Speaker 3: A lot of people didn't come. They're bringing drugs. They're
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  Speaker 3: bringing crime. They're rapists.
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  Speaker 4: When you say to a family that if you come,
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  Speaker 4: we're going to break you up, they don't come.
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  Speaker 3: They're destroying our country.
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  Speaker 4: They're destroying the.
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  Speaker 3: Guts of our country.
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  Speaker 4: The Biden administration unveiling a task force Tuesday to locate
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  Speaker 4: and reunite families who were separated at the border under
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  Speaker 4: the Trump administration's zero tolerance policy.
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  Speaker 1: They got separated from their parents. Violates every notion of
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  Speaker 1: who we are as a nation.
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  Speaker 2: So this is a big deal. It's happening a few
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  Speaker 2: weeks after Biden's new policy that closes the border to
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  Speaker 2: asylum seekers when crossings get too high, which is now
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  Speaker 2: also being challenged in court by the ACLU and other groups.
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  Speaker 2: What do you make overall of the policy and the
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  Speaker 2: politics here?
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  Speaker 3: So one fact that jumped out at me, according to
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  Speaker 3: the administration, the majority of people who will be impacted
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  Speaker 3: are Mexican nationals who have lived in the United States
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  Speaker 3: for an average of 23 years. 23 years! These are
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  Speaker 3: people who have been given this abominable choice, which is
• 5:37
  Speaker 3: to stay in the country that they know, where their
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  Speaker 3: children and husbands and wives are, who are often citizens.
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  Speaker 3: themselves or leave for 10 years to become legal, which
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  Speaker 3: means they stay and they're at risk of being taken
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  Speaker 3: advantage of by landlords and by employers. They're afraid to
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  Speaker 3: go to the police to report a crime, afraid that
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  Speaker 3: they could be separated from their families at any moment.
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  Speaker 3: And what I appreciate about Joe Biden, and I know, look,
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  Speaker 3: everyone's spent a lot of time worrying about Joe Biden.
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  Speaker 3: What I really appreciate about Joe Biden and the way
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  Speaker 3: that he has run his administration is that even when
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  Speaker 3: he's being criticized from the right, for being soft on immigration.
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  Speaker 3: He's not afraid to take a step like this because
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  Speaker 3: he believes in the policy and the politics. And also
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  Speaker 3: what I appreciate is that he isn't afraid to take
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  Speaker 3: steps on border security, even though he knows he will
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  Speaker 3: face criticism from advocates because he also believes in the
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  Speaker 3: policy and the politics there.
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  Speaker 2: Well, as you know, doing the right thing policy-wise is
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  Speaker 2: always good politics.
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  Speaker 3: You know, sometimes it is, sometimes it is. So 77%
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  Speaker 3: of Americans in a Monmouth poll said that the executive
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  Speaker 3: actions on border security that President Biden took were right
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  Speaker 3: or didn't go far enough. Most said didn't go far enough,
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  Speaker 3: but that 77% thinks it's right or doesn't go far enough.
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  Speaker 3: Only 17% said that he went too far. Americans also,
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  Speaker 3: in a bunch of polls, they prefer Republicans on border
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  Speaker 3: security and they believe Trump will do a better job
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  Speaker 3: on the border than Joe Biden will. So I see
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  Speaker 3: advocates saying that Biden is sort of buying into a
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  Speaker 3: Republican narrative on border security. And it's true that Republicans
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  Speaker 3: are demagoguing the issue, and exaggerating and lying and fear-mongering,
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  Speaker 3: but it's also Democratic mayors and governors who are calling
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  Speaker 3: for greater border security. And the reason I think it's
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  Speaker 3: so important to highlight that is because border security has
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  Speaker 3: risen to be one of the top issues on voters' minds,
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  Speaker 3: and it is a view that is not just held
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  Speaker 3: among MAGA Republicans. An Axios-Ipsos poll found 64% of Latinos
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  Speaker 3: said they support giving the president the authority to shut U.S.
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  Speaker 2: Borders.
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  Speaker 3: 38% support sending all undocumented immigrants in the U.S. back
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  Speaker 3: to their country of origin. And these numbers are all
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  Speaker 3: going up. But at the same time, in poll, after poll,
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  Speaker 3: Americans more broadly continue to have an impulse towards compassion.
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  Speaker 3: They support a path to citizenship. They want America to
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  Speaker 3: be a refuge for people seeking a better life. And
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  Speaker 3: so what it says to me is that the two
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  Speaker 3: Democratic positions can't be too far or not far enough
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  Speaker 3: on border security because the only way we will get
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  Speaker 3: to the more compassionate and generous and welcoming and sane
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  Speaker 3: and humane immigration system that we all believe we need
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  Speaker 3: to have is if we can prove that we can
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  Speaker 3: also secure the border. They're not separate. A secure border
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  Speaker 3: is not a contradiction to a progressive immigration system. They
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  Speaker 3: have to go together. And that to me is what
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  Speaker 3: I took away from the fact that Joe Biden was
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  Speaker 3: willing to do this, what, two weeks after taking the
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  Speaker 3: steps he took on the border.
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  Speaker 2: I also think that, you know, we talked to some
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  Speaker 2: immigration advocates and some have a problem with the border
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  Speaker 2: move that Biden made a couple of weeks ago. But
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  Speaker 2: some have said to me, look, I understand why he's
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  Speaker 2: focusing on border security. The challenge is we've conflated the
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  Speaker 2: debate about the border with the debate about immigration. And
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  Speaker 2: a lot of Latino voters and activists and advocates in
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  Speaker 2: that space don't see them as the same debate. And
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  Speaker 2: we haven't been having a debate about immigration policy inside
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  Speaker 2: the United States or what to do about the 10,
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  Speaker 2: 12 million, 15 million undocumented immigrants in this country. And
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  Speaker 2: the polls don't really capture this unless you take a
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  Speaker 2: poll that's only about immigration. But people feel very differently
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  Speaker 2: about new migrants crossing the border and what's happening at
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  Speaker 2: the border and what's happening now in a lot of
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  Speaker 2: American cities than they do about undocumented immigrants who have
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  Speaker 2: been here, who have families here, who have been working
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  Speaker 2: here for years. Some of the very same people that
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  Speaker 2: Biden is helping right now. And I think as you
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  Speaker 2: saw from that ad, as you heard in that ad
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  Speaker 2: that the Biden campaign is running, I think also on
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  Speaker 2: the political side, it is a better contrast for them
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  Speaker 2: to say, OK, here's Donald Trump who wants mass deportation
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  Speaker 2: forces in every city in America to expel 10 million
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  Speaker 2: undocumented immigrants who've been here working and living for years
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  Speaker 2: and years. And by the way, you know he's going
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  Speaker 2: to do that because this is the guy who separated
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  Speaker 2: families at the border. And here's Joe Biden, who he's
• 10:01
  Speaker 2: going to make sure that all of these undocumented immigrants
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  Speaker 2: were married to American citizens who have children here, who've
• 10:06
  Speaker 2: been working here, who've built lives here. This is the
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  Speaker 2: only country they know they can stay here as opposed
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  Speaker 2: to going back to the country of origin. That isn't
• 10:14
  Speaker 2: even their country anymore. for 10 years before they come back.
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  Speaker 2: And I think that just politically is a much better contrast.
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  Speaker 2: And it gets to that place that you were speaking
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  Speaker 2: about with that. It's just more compassionate. Of course, like
• 10:25
  Speaker 2: we know how this has gone from the Obama years.
• 10:28
  Speaker 2: We had similar fights. The Republicans weren't as, as Trumpy
• 10:31
  Speaker 2: back then, but Kate, it took, it took years for
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  Speaker 2: our old boss to announce the DACA program, partly because
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  Speaker 2: I think the Obama administration was trying to craft the
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  Speaker 2: policy in a way that would withstand legal challenges. 12
• 10:44
  Speaker 2: years later, DACA is still tied up in the courts.
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  Speaker 2: Do you think this new Biden policy will fare any better?
• 10:51
  Speaker 4: Well, a couple of things about the new policy. So
• 10:52
  Speaker 4: it's a really important new policy that's going to affect
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  Speaker 4: a lot of people, but it's also very grounded in
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  Speaker 4: existing law, right? So these spouses can already get a path.
• 11:00
  Speaker 4: They have a path to a green card and citizenship.
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  Speaker 4: They just have to leave the country to avail themselves
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  Speaker 4: of it. So I think that that's what's important is
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  Speaker 4: that this is a process that exists. This is a
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  Speaker 4: modification to it that lets people stay while they adjust
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  Speaker 4: as opposed to having to leave to adjust. So I
• 11:13
  Speaker 4: think that actually helps the legal argument in defense of
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  Speaker 4: this policy. The other thing to say is there was
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  Speaker 4: a similar change made some years ago with respect to
• 11:21
  Speaker 4: spouses of members of the military. So an undocumented spouse
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  Speaker 4: of a military member can already do what this new
• 11:27
  Speaker 4: proposal will achieve, which is to say adjust while staying
• 11:30
  Speaker 4: as opposed to leaving for up to 10 years to
• 11:32
  Speaker 4: their home country. It's a very popular policy. I think
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  Speaker 4: something like 20,000 undocumented military spouses have taken advantage of it.
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  Speaker 2: And it wasn't challenged.
• 12:08
  Speaker 4: But like, of course, it's going to be challenged because
• 12:11
  Speaker 4: everything that a Democratic president ever does on immigration will
• 12:13
  Speaker 4: be challenged from one direction or another. Of course, we
• 12:15
  Speaker 4: should say the new border policy is being challenged, as
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  Speaker 4: you said, John, by the ACLU and others. But, you know,
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  Speaker 4: I do expect there'll be a challenge here. And we
• 12:24
  Speaker 4: don't yet know what the policy looks like as we're
• 12:26
  Speaker 4: recording this episode. But if it's done like DACA, a
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  Speaker 4: secretarial memo, it'll likely be challenged as exceeding the executive's authority.
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  Speaker 4: And maybe because it didn't go through notice and comment rulemaking,
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  Speaker 4: it's going to be announced as a policy that will
• 12:37
  Speaker 4: go directly into effect. And those are challenges that had
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  Speaker 4: some success over the last dozen years. You know, the
• 12:44
  Speaker 4: DACA path has been a really winding one. It was,
• 12:46
  Speaker 4: you know, it was challenged. And then the Trump administration
• 12:49
  Speaker 4: tried to rescind DACA. The Supreme Court said they couldn't
• 12:52
  Speaker 4: rescind DACA. Biden then redid DACA as a notice and
• 12:55
  Speaker 4: comment rule. And it's again tied up now in front
• 12:57
  Speaker 4: of the Fifth Circuit. But it's critically been in place
• 13:00
  Speaker 4: all this time. So DACA has been in effect. People
• 13:02
  Speaker 4: have had, DREAMers have had that status. DAPA, by contrast,
• 13:06
  Speaker 4: the Parents of Americans, a related policy from 2014, was
• 13:09
  Speaker 4: challenged and actually never went into effect. So as between
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  Speaker 4: those two, I think this new policy probably looks more
• 13:15
  Speaker 4: like DACA. It does actually go into effect. its ultimate
• 13:17
  Speaker 4: legal fate, I don't totally know, but it does seem
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  Speaker 4: sound to me, at least in terms of what we
• 13:20
  Speaker 4: know so far.
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  Speaker 2: So on DACA, so if you currently enjoy the protections
• 13:25
  Speaker 2: of DACA, if you are a child of an undocumented immigrant,
• 13:29
  Speaker 2: does that mean you can continue to, I know you
• 13:32
  Speaker 2: have to renew for those protections. Are you allowed to
• 13:34
  Speaker 2: keep renewing now that it's tied up in the court?
• 13:36
  Speaker 4: So, yeah. So the policy has, again, it's been the
• 13:38
  Speaker 4: renewal process has been paused and then the pause lifted.
• 13:41
  Speaker 4: So yes, right now there are, I think, you know,
• 13:43
  Speaker 4: it was at the high point, half a million people
• 13:45
  Speaker 4: I think it's a little lower than that. People who,
• 13:47
  Speaker 4: dreamers who have the DACA status, but a lot have,
• 13:50
  Speaker 4: you know, married Americans and gotten citizenship that way and,
• 13:53
  Speaker 4: you know, gotten other, taken other paths or left for
• 13:54
  Speaker 4: other reasons. So the number has sort of gone up
• 13:56
  Speaker 4: and down. But it is currently, you know, a status
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  Speaker 4: that is in effect and people can continue to apply
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  Speaker 4: for it. But again, it's pending before the Fifth Circuit
• 14:04
  Speaker 4: right now. There was like a brief filed, I think
• 14:06
  Speaker 4: today or yesterday, by actually the Biden administration saying because
• 14:09
  Speaker 4: of the MIFA-Pristone case, I don't I don't know if
• 14:11
  Speaker 4: we're going to talk about that, but that basically said
• 14:12
  Speaker 4: those doctors didn't have standing. This case should be tossed
• 14:15
  Speaker 4: on standing grounds. So anyway, it's a very live legal
• 14:18
  Speaker 4: dispute still all these dozen years later.
• 14:21
  Speaker 2: Do you think– you mentioned Biden's executive action at the
• 14:25
  Speaker 2: border being challenged. Do you think that will survive legal challenges?
• 14:29
  Speaker 2: And from a legal perspective, I was wondering– How is
• 14:32
  Speaker 2: it different than what Trump did, which did get struck down? Yeah.
• 14:36
  Speaker 4: Well, the advocates say it's basically the same, right? Yeah.
• 14:38
  Speaker 4: So that there is, you know, a right to cross
• 14:41
  Speaker 4: over and, you know, seek a refugee or asylum status
• 14:44
  Speaker 4: and that this policy is inconsistent with that and inconsistent
• 14:47
  Speaker 4: with a statute. So I think the ACLU and the
• 14:49
  Speaker 4: others who've sued say it's basically the same and it
• 14:50
  Speaker 4: should suffer the same fate. It's not exactly the same.
• 14:53
  Speaker 4: You know, there's a trigger. It goes into effect if
• 14:55
  Speaker 4: there's a certain number of border crossings as opposed to
• 14:58
  Speaker 4: kind of a blanket. kind of prohibition on crossing over.
• 15:00
  Speaker 4: So I think it's structured a bit differently.
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  Speaker 2: Would that be the administration's argument, do you think, that
• 15:05
  Speaker 2: because there's a trigger in place that we are still
• 15:08
  Speaker 2: allowing asylum seekers to seek asylum just, you know?
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  Speaker 4: You know, not all the time. Not all the time. Yeah, maybe.
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  Speaker 2: Sounds tough.
• 15:17
  Speaker 4: It does sound tough, yeah.
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  Speaker 3: But, you know, the, like, you know, Republicans went to,
• 15:25
  Speaker 3: wild on DACA because they viewed it as a kind
• 15:27
  Speaker 3: of legislating. And then there's all this fighting over from
• 15:31
  Speaker 3: the other direction that the law makes certain requirements of
• 15:34
  Speaker 3: what the administration has to do. And this is a
• 15:35
  Speaker 3: violation of that. And it really does all boil down
• 15:39
  Speaker 3: to like, this is not how we're supposed to be
• 15:42
  Speaker 3: running our immigration system. It is not supposed to be
• 15:44
  Speaker 3: run by a series of kind of gray area executive
• 15:48
  Speaker 3: actions from the right or from the left that sometimes
• 15:51
  Speaker 3: maybe survive judicial scrutiny and Because in one way or another,
• 15:55
  Speaker 3: whatever stands up or whatever doesn't, this is various administrations
• 16:00
  Speaker 3: trying their best to legislate with executive power because they
• 16:04
  Speaker 3: are so bound up in Congress's failure. I mean, it
• 16:07
  Speaker 3: is the collective failure to actually be honest about this problem.
• 16:12
  Speaker 3: And this is why I just was catching up on
• 16:16
  Speaker 3: the news and just having space from it. seeing these
• 16:19
  Speaker 3: fights over whether or not Joe Biden is going too
• 16:22
  Speaker 3: far on the border and whether or not he's living
• 16:24
  Speaker 3: up to our values, there are valid criticisms of Joe
• 16:27
  Speaker 3: Biden's policies on the border. But you just look at
• 16:31
  Speaker 3: how the politics have constricted already because of the chaos
• 16:35
  Speaker 3: at the border, that the possibility of a path to
• 16:38
  Speaker 3: citizenship was so off the table, the bipartisan negotiations didn't
• 16:41
  Speaker 3: get anywhere near that, a bipartisan bill that Joe Biden
• 16:45
  Speaker 3: and a bunch of Democrats were willing to get behind.
• 16:46
  Speaker 3: If we want to get to a place where we
• 16:49
  Speaker 3: are going to actually address the fact that there are
• 16:52
  Speaker 3: tens of millions of people living in a kind of
• 16:55
  Speaker 3: gray zone because our economy is built on basically a
• 16:58
  Speaker 3: working caste that has no legal recourse and that can
• 17:02
  Speaker 3: be underpaid to build homes and work in restaurants and
• 17:07
  Speaker 3: do lawn care and do transportation and all the other industries,
• 17:10
  Speaker 3: agriculture that are on the backs of people that have
• 17:13
  Speaker 3: no rights here. The idea that Democrats aren't getting behind
• 17:16
  Speaker 3: border security is very frustrating to me because I just
• 17:18
  Speaker 3: I don't see a way to the more compassionate, humane
• 17:21
  Speaker 3: system unless we as Democrats can prove that we understand
• 17:26
  Speaker 3: that a secure border and a better immigration system are
• 17:29
  Speaker 3: not in opposite.
• 17:31
  Speaker 2: Yeah. You just mentioned like the mess in Congress. The
• 17:34
  Speaker 2: one group of people we haven't talked about are congressional Republicans. Right.
• 17:38
  Speaker 2: And like as Democrats are fighting each other about like
• 17:41
  Speaker 2: whether Biden's too tough or too soft or doing this
• 17:43
  Speaker 2: or what can survive legal challenges or why hasn't you know,
• 17:46
  Speaker 2: I saw some people after the border incident. issue was announced,
• 17:49
  Speaker 2: I think Julian Castro said, you know, this was, Biden
• 17:52
  Speaker 2: didn't make this a priority. And I said, well, you know,
• 17:54
  Speaker 2: Biden could have walked into the White House and said,
• 17:56
  Speaker 2: my number one priority is to pass immigration reform and
• 17:58
  Speaker 2: to pass a pathway to citizenship. And that's what I'm
• 18:00
  Speaker 2: going to focus on for my first hundred days. And
• 18:02
  Speaker 2: he would have gotten absolutely nowhere because we have Republicans
• 18:05
  Speaker 2: in Congress who do not even want to entertain the
• 18:08
  Speaker 2: idea of possibly granting anyone citizenship or a path to
• 18:12
  Speaker 2: citizenship or legal status, the dreamers, anyone. We were just
• 18:15
  Speaker 2: talking on Tuesday show about how Marco Rubio might not
• 18:19
  Speaker 2: be Trump's VP because the last time they tried comprehensive
• 18:23
  Speaker 2: immigration reform in 2013, Marco Rubio dared on the Republican
• 18:27
  Speaker 2: side to say, OK, maybe there'll be some kind of pathway.
• 18:30
  Speaker 2: And everyone was like, absolutely not. And then they they
• 18:33
  Speaker 2: haven't turned back since. They just they won't do it.
• 18:35
  Speaker 3: McCain and Bush. I mean, like we've gone through this cycle.
• 18:37
  Speaker 2: At least in the Bush administration, you had Bush, McCain,
• 18:40
  Speaker 2: people who were willing to entertain pathways to citizenship. This
• 18:43
  Speaker 2: Republican Party is preparing, if Donald Trump becomes president, to
• 18:47
  Speaker 2: like launch a deportation force the size of which this
• 18:50
  Speaker 2: country has never seen that uses the U.S. military to
• 18:53
  Speaker 2: go into people's homes, their offices, rip people apart from
• 18:56
  Speaker 2: their families and send them back to countries where some
• 18:59
  Speaker 2: of them haven't been for years and some of them
• 19:00
  Speaker 2: have never been.
• 19:01
  Speaker 4: Yeah.
• 19:02
  Speaker 2: Yeah.
• 19:02
  Speaker 4: That 03, 04, 05 effort when McCain was sort of
• 19:05
  Speaker 4: in the lead, that was the last kind of best chance.
• 19:07
  Speaker 4: Like there was actually kind of hope for bipartisan comprehensive
• 19:10
  Speaker 4: reform and it's been 20 years and there's been nothing
• 19:12
  Speaker 4: that's even come close.
• 19:13
  Speaker 1: Yeah.
• 19:13
  Speaker 2: And it's really sad.
• 19:14
  Speaker 3: Yeah.
• 19:14
  Speaker 2: I mean, we have a debate coming up next week. Levitt,
• 19:17
  Speaker 2: how would you, how would you prep the president to
• 19:19
  Speaker 2: talk about immigration in the next week's debate? Because it will,
• 19:21
  Speaker 2: it will surely come up.
• 19:23
  Speaker 3: Yeah, no, I mean, I think what you said is right.
• 19:25
  Speaker 3: So first of all, I think like, I think embracing
• 19:28
  Speaker 3: the criticism from both sides, you know, he's gotten heat
• 19:30
  Speaker 3: from both sides. He believes you can secure the border.
• 19:32
  Speaker 3: He believes you can do it while keeping families together
• 19:34
  Speaker 3: and being a beacon of hope for people. There is
• 19:36
  Speaker 3: bipartisan support for it, and he knows it because he
• 19:39
  Speaker 3: had a deal that Donald Trump killed because he wants chaos.
• 19:42
  Speaker 3: That's the choice in the election. You can have a
• 19:44
  Speaker 3: secure border while upholding your values, or you can want
• 19:46
  Speaker 3: chaos and families ripped apart like the last time.
• 19:49
  Speaker 4: He was in office.
• 19:49
  Speaker 3: Yeah.
• 19:50
  Speaker 2: And I also think, you know, the Times story about
• 19:53
  Speaker 2: this quoted Catherine Cortez Masto, who's the senator from Nevada.
• 19:57
  Speaker 2: She just wrote a piece advocating that President Biden take
• 20:01
  Speaker 2: the exact action he took today. She was telling the
• 20:04
  Speaker 2: story about one of her constituents. She was married. She
• 20:07
  Speaker 2: wanted to get a job. She lives in Nevada. And
• 20:09
  Speaker 2: they have a kid. And as she's applying for the job,
• 20:12
  Speaker 2: they wanted to do a background check. And so they
• 20:14
  Speaker 2: ask her for her husband's social security number. And she
• 20:17
  Speaker 2: realizes she cannot give her husband's social security number because
• 20:20
  Speaker 2: her husband is undocumented. And she is not. She's an
• 20:23
  Speaker 2: American citizen. And if she gives his social security number,
• 20:25
  Speaker 2: they will possibly deport him. And so the only option
• 20:29
  Speaker 2: she has is to not take the job or divorce
• 20:31
  Speaker 2: her husband. And so they divorce because of this. And
• 20:35
  Speaker 2: I think like Biden telling a story like that and
• 20:37
  Speaker 2: being like, so I want that husband to be able
• 20:39
  Speaker 2: to stay with the family and keep the family together
• 20:42
  Speaker 2: because they have been here for a decade working and
• 20:45
  Speaker 2: living and building a family. Donald Trump not only wants
• 20:49
  Speaker 2: the divorce to happen or the wife not to get
• 20:52
  Speaker 2: a job, he wants to have a federal agent knock
• 20:56
  Speaker 2: on that family's door and deport that husband and rip
• 20:58
  Speaker 2: the husband away from the family. And that's the difference
• 21:00
  Speaker 2: in the election.
• 21:00
  Speaker 3: Yeah.
• 21:01
  Speaker 4: So the number 500,000 is the individual undocumented spouses, right?
• 21:04
  Speaker 4: But when you add in their spouses, their kids, their communities,
• 21:07
  Speaker 4: their workplaces, their schools, it's just like we're talking about
• 21:10
  Speaker 4: people in the millions impacted. And it does have both
• 21:15
  Speaker 4: significant impact, but real kind of like family values, kind
• 21:18
  Speaker 4: of essence that it feels like really good politics. And particularly,
• 21:21
  Speaker 4: I think, in states like Nevada and Arizona, where you
• 21:23
  Speaker 4: have a lot of probably mixed status families where, you know,
• 21:26
  Speaker 4: the politics could matter a lot.
• 21:28
  Speaker 2: More than 100,000 mixed status households in Arizona, another more
• 21:32
  Speaker 2: than 100,000 in Nevada, and Georgia, all three states.
• 21:35
  Speaker 4: Oh, and Georgia too, wow.
• 21:36
  Speaker 3: I think, yeah, Donald Trump wants us talking about and
• 21:40
  Speaker 3: thinking about chaos at the border, and he wants you
• 21:42
  Speaker 3: to associate immigration and immigrants with criminals and terrorists. But
• 21:45
  Speaker 3: when most people, especially when they're asked about it in polls,
• 21:49
  Speaker 3: in their daily experience, they're talking about neighbors, they're talking
• 21:52
  Speaker 3: about friends, they're talking about colleagues, they're talking about people
• 21:55
  Speaker 3: in their communities, and I think reminding people of that
• 21:58
  Speaker 3: I think it remains powerful no matter what fear-mongering they do.
• 22:13
  Speaker 2: Okay, now for some nightmare fuel. You might see some
• 22:17
  Speaker 2: poll denialists on Twitter, but in real life, the anti-Trump
• 22:20
  Speaker 2: coalition is hoping for the best but preparing for the worst.
• 22:24
  Speaker 2: The New York Times has a big story about Resistance 2.0, quote,
• 22:28
  Speaker 2: a sprawling network of Democratic officials, progressive activists, watchdog groups,
• 22:32
  Speaker 2: and ex-Republicans who are already preparing to challenge some of
• 22:35
  Speaker 2: Trump's most extreme second-term proposals in court and use every
• 22:38
  Speaker 2: other tool available to fight back. One group, Protect Democracy,
• 22:42
  Speaker 2: which is led by our friend and White House colleague
• 22:44
  Speaker 2: Ian Bassin, is putting together a strategy to fight back
• 22:47
  Speaker 2: against mass deportations that we were just talking about and
• 22:49
  Speaker 2: the gutting of the civil service, replacing the All of
• 22:53
  Speaker 2: the nonpolitical federal employees, 2 million in the government with
• 22:57
  Speaker 2: MAGA loyalists. The ACLU is also preparing to fight further
• 23:00
  Speaker 2: attempts to criminalize abortion and the possibility that Trump will
• 23:03
  Speaker 2: order the military to use force against protesters. They've also
• 23:07
  Speaker 2: reportedly hired an auditor to make sure they're not vulnerable
• 23:09
  Speaker 2: to Trump. weaponizing the IRS against them. Put that on
• 23:12
  Speaker 2: the to-do.
• 23:15
  Speaker 4: List.
• 23:16
  Speaker 3: Everybody, listen to this. If you've donated to Joe Biden
• 23:19
  Speaker 3: in a way that's online, pay your taxes. That's one
• 23:22
  Speaker 3: step we all can take.
• 23:24
  Speaker 2: And five Democratic governors, including Jay Inslee of Washington, have
• 23:27
  Speaker 2: started stockpiling abortion medication. Dark. So, Kate, I had heard
• 23:32
  Speaker 2: rumblings about this from other Democratic officials and governors. And
• 23:36
  Speaker 2: my first reaction was like, what are the chances of
• 23:39
  Speaker 2: success here, given the powers that any president has and
• 23:44
  Speaker 2: the current right wing majority on the Supreme Court and
• 23:47
  Speaker 2: just the rightward tilt of the judiciary in general?
• 23:49
  Speaker 4: Just in the general prospects for Resistance 2.0.
• 23:52
  Speaker 2: Yeah.
• 23:53
  Speaker 4: I mean, let me channel our friend Ian Bassin for
• 23:55
  Speaker 4: a minute and just say, If we're talking about safeguarding
• 23:57
  Speaker 4: the health and resilience of the democracy and the body politic,
• 24:00
  Speaker 4: like keeping cancer out is really the goal as opposed
• 24:04
  Speaker 4: to mitigation measures. So I think that he would say
• 24:06
  Speaker 4: that if you're here. And so I'm just channeling him.
• 24:08
  Speaker 4: So that is, I think, for all these groups, still
• 24:10
  Speaker 4: the priority is making sure there is not an anti-democratic
• 24:13
  Speaker 4: autocrat in a position to actually make all of this real.
• 24:16
  Speaker 4: But contingency planning is a good idea. And I think
• 24:20
  Speaker 4: things like stockpiling Mifepristone is actually really wise. I don't
• 24:23
  Speaker 4: know how quickly it expires, honestly. But I think that
• 24:26
  Speaker 4: stockpiling is a very, very good idea. In terms of
• 24:28
  Speaker 4: the longer term sort of strategic planning, I think that
• 24:32
  Speaker 4: the article that you referenced suggested that a lot of
• 24:35
  Speaker 4: the left were, you know, caught really off guard, obviously,
• 24:39
  Speaker 4: when Donald Trump first took the White House. And no
• 24:40
  Speaker 4: one wants to make that mistake again. And so I
• 24:42
  Speaker 4: think that thinking carefully about legal strategy, about litigation responses,
• 24:47
  Speaker 4: and other kind of sites of resistance at the state
• 24:50
  Speaker 4: level and in the grassroots, all of that is really,
• 24:53
  Speaker 4: really important. But it's sort of second order. It should
• 24:56
  Speaker 4: not sort of consume the conversation when the first order
• 24:58
  Speaker 4: task is making sure it doesn't happen in the first place.
• 25:01
  Speaker 2: I already have nightmares about this. And I don't know
• 25:05
  Speaker 2: sort of the legal parameters here. Because I mean, I
• 25:10
  Speaker 2: interviewed Liz Cheney on Pod Save America. And she was like,
• 25:14
  Speaker 2: I'm not worried about like a right wing Supreme Court
• 25:16
  Speaker 2: majority because I'm just worried that Donald Trump will say,
• 25:19
  Speaker 2: why would I listen to the court? Why would I
• 25:21
  Speaker 2: listen to any of the courts? Who's going to make
• 25:23
  Speaker 2: who's going to with whose army?
• 25:24
  Speaker 1: Right.
• 25:25
  Speaker 4: Right.
• 25:26
  Speaker 2: And so I worry about that. I also worry about
• 25:29
  Speaker 2: there's a number of proposals that would involve Donald Trump,
• 25:35
  Speaker 2: you know, the Insurrection Act. calling up the military, right,
• 25:38
  Speaker 2: to act as a deportation force, to use the military
• 25:40
  Speaker 2: to put protests down, to use the military to go
• 25:42
  Speaker 2: fight crime or the National Guard to go fight crime,
• 25:45
  Speaker 2: to federalize the National Guard in red states, to have
• 25:49
  Speaker 2: them go into blue states if the governors in the
• 25:51
  Speaker 2: blue states are not willing to federalize their National Guard
• 25:54
  Speaker 2: to solve whatever problem Donald Trump wants to solve. It
• 25:58
  Speaker 2: seems from my reading that the president has quite a
• 26:01
  Speaker 2: bit of power to do that, but I don't know
• 26:03
  Speaker 2: what you think about the legal.
• 26:04
  Speaker 4: I mean, part of the problem is there's no Supreme
• 26:06
  Speaker 4: Court case that says you can't do X when no
• 26:08
  Speaker 4: president would ever have dreamed to do X, right? So
• 26:10
  Speaker 4: a lot of these things I think are legally really suspect,
• 26:13
  Speaker 4: but there is not like a clear statement from the
• 26:15
  Speaker 4: Supreme Court to that effect again, because it's just not
• 26:18
  Speaker 4: come up. So I think there's a range. I think
• 26:20
  Speaker 4: that when it, you know, and you're right to be
• 26:22
  Speaker 4: nervous about, I think both the Supreme Court blessing some of,
• 26:26
  Speaker 4: you know, kind of the largest types of overreach, but
• 26:29
  Speaker 4: also if it doesn't just being disregarded, right? Like the,
• 26:32
  Speaker 4: I think that there were, a few checks in, you know,
• 26:35
  Speaker 4: in Trump's term that were important ones. And the Supreme
• 26:37
  Speaker 4: Court was occasionally a big check, like DACA rescission and
• 26:40
  Speaker 4: the census citizenship question. And even though the travel ban
• 26:42
  Speaker 4: was ultimately upheld, the lower courts required the administration to
• 26:45
  Speaker 4: redraft that until, you know, the third one managed to
• 26:48
  Speaker 4: pass muster. So that's one real site of pushback. Obviously,
• 26:50
  Speaker 4: the civil service, like the bureaucracy was a real site
• 26:53
  Speaker 4: of pushback. And honestly, the incompetence of a lot of
• 26:56
  Speaker 4: the Trump subordinates, right, was a site of kind of
• 26:58
  Speaker 4: pushback or, you know, an important check, I would say.
• 27:01
  Speaker 4: And I think that it's right to be worried that
• 27:03
  Speaker 4: all of those look potentially really different if the gutting
• 27:05
  Speaker 4: of the civil service is on the table, if there
• 27:07
  Speaker 4: is a more competent group of loyalists in place. And
• 27:10
  Speaker 4: you now have a Supreme Court with a different, a
• 27:13
  Speaker 4: 6-3 as opposed to a 5-4 conservative majority. And the
• 27:16
  Speaker 4: old 5-4 majority, John Roberts occasionally joined the Democrats in
• 27:19
  Speaker 4: the cases that I just mentioned. And so I think
• 27:21
  Speaker 4: things do look really different. I mean, I honestly think
• 27:23
  Speaker 4: we'll know more when we get the immunity decision from
• 27:26
  Speaker 4: the Supreme Court. I will have, I think, more of
• 27:28
  Speaker 4: a sense. This court, as currently constituted, hasn't had a
• 27:32
  Speaker 4: big case quite like this about presidential power and presidential protections.
• 27:37
  Speaker 4: And I think there's, the longer the delay ticks on,
• 27:41
  Speaker 4: the more nervous I get, not about the trial, which
• 27:44
  Speaker 4: is really important, of course, but also just about what
• 27:45
  Speaker 4: the court is going to say about how subject to
• 27:48
  Speaker 4: law the president and an ex-president is. And it seems
• 27:52
  Speaker 4: like if it says the president isn't really subject to
• 27:55
  Speaker 4: ordinary legal checks. It could be just really emboldening of
• 27:58
  Speaker 4: kind of the most aggressive efforts. So things like reclassifying
• 28:01
  Speaker 4: huge swaths of the federal government as political appointees rather
• 28:04
  Speaker 4: than civil servants. I mean, there isn't a case that
• 28:06
  Speaker 4: says you can't do that. I think everything in statutes
• 28:09
  Speaker 4: passed by Congress and related decisions by the Supreme Court
• 28:12
  Speaker 4: suggest that you can't. The statutory authority the president would
• 28:16
  Speaker 4: invoke is never meant to be used this way. And
• 28:18
  Speaker 4: there's a strong principle of nonpartisan service beyond just the
• 28:23
  Speaker 4: very top echelons of the executive branch that has endured
• 28:26
  Speaker 4: since the late 19th century. So all these things make
• 28:28
  Speaker 4: me think it would be unlawful for him to try.
• 28:31
  Speaker 4: But I'm not at all 100% confident that he would
• 28:34
  Speaker 4: fail in the Supreme Court. And I think you're right
• 28:36
  Speaker 4: to worry that even if he did fail in the
• 28:37
  Speaker 4: Supreme Court, he might just sort of cross the Rubicon
• 28:40
  Speaker 4: of outright defiance.
• 28:42
  Speaker 2: Love it. How helpful do you think it is to
• 28:44
  Speaker 2: be talking about the strategy? So on one hand, you
• 28:46
  Speaker 2: can make the case like you don't want to make
• 28:48
  Speaker 2: a Trump victory seem inevitable. On the other, it might
• 28:52
  Speaker 2: help wake up some voters who aren't yet paying attention
• 28:55
  Speaker 2: to the threat of a second Trump term, which seems
• 28:57
  Speaker 2: to be one of the bigger challenges of the Biden
• 28:59
  Speaker 2: campaign right now. They are having particular trouble with voters
• 29:02
  Speaker 2: who are not paying close attention and consuming a lot
• 29:05
  Speaker 2: of news. So I don't know. What do you think?
• 29:08
  Speaker 3: Yeah. Well, I think about that subset of people who
• 29:13
  Speaker 3: are not paying that close attention and just think, well,
• 29:15
  Speaker 3: Trump obviously can't win again. He did an insurrection and
• 29:18
  Speaker 3: he's been convicted and he's so terrible. America wouldn't do
• 29:20
  Speaker 3: that again. Kind of people that as much as they
• 29:23
  Speaker 3: lived from 2016 to 2024, they have sort of amnesia
• 29:29
  Speaker 3: about how it felt before the election in 2016. My
• 29:32
  Speaker 3: takeaway from reading the story is, and I agree with
• 29:36
  Speaker 3: everything you said, Kate, that every person who is a
• 29:40
  Speaker 3: part of this effort begins by saying the most important
• 29:43
  Speaker 3: thing is stopping Trump from winning, but we want to
• 29:45
  Speaker 3: be prepared just in case. Fine. But I do feel
• 29:48
  Speaker 3: like the realism and understanding of the kind of like
• 29:54
  Speaker 3: clear difference between what happens if Joe Biden wins and
• 29:57
  Speaker 3: what happens if Donald Trump wins, I feel like The
• 30:00
  Speaker 3: understanding of how stark that choice is seems much clearer
• 30:04
  Speaker 3: in the ways people are approaching this than in the
• 30:07
  Speaker 3: way a lot of people are speaking publicly about the
• 30:09
  Speaker 3: election and their willingness to be a full-throated advocate for
• 30:12
  Speaker 3: Joe Biden at this moment, including Democrats. Like, yes, like
• 30:16
  Speaker 3: there should be a Mifepristone vault. I was, this is stupid,
• 30:21
  Speaker 3: but you know, there's a seed vault in Svalbard. Yeah.
• 30:25
  Speaker 4: There's a great New Yorker article about it.
• 30:26
  Speaker 3: Right. So this would be like an anti-seed vault, but the.
• 30:32
  Speaker 3: And so I think that's great. Yeah.
• 30:33
  Speaker 4: There's not that many varietals.
• 30:35
  Speaker 2: Right.
• 30:35
  Speaker 4: It's truly just. Right.
• 30:38
  Speaker 2: But, you know, that's a clickable title.
• 30:44
  Speaker 3: But but but, you know, like part, you know, there
• 30:47
  Speaker 3: are many different kinds of advocates that are part of
• 30:49
  Speaker 3: this movement that I think are I think we have
• 30:53
  Speaker 3: to collectively figure out a way to describe this threat
• 30:55
  Speaker 3: in a way that is clear to people. And I
• 30:58
  Speaker 3: think part of that, yes, is about talking about how
• 31:00
  Speaker 3: how bad Trump is. But I think part of it
• 31:02
  Speaker 3: is understanding that, like, man, we have we have the
• 31:06
  Speaker 3: we've got four and a half months now, whatever it is,
• 31:08
  Speaker 3: to get Joe Biden over the finish line. And like
• 31:11
  Speaker 3: there'll be time for all the kind of intrademocratic like
• 31:14
  Speaker 3: the intrademocratic fighting time is now done. Like it's just
• 31:17
  Speaker 3: it's over. It can't be that we're fighting on television about.
• 31:20
  Speaker 3: about worrying about Joe Biden, and then behind the scenes,
• 31:23
  Speaker 3: we're fucking building trenches to store abortion pills. Like, it
• 31:26
  Speaker 3: just simply cannot be that.
• 31:29
  Speaker 4: Except if the trenches motivate people, right?
• 31:31
  Speaker 3: Well, sure. Sure, but like, if you're somebody, like, I'm
• 31:34
  Speaker 3: just trying to understand the person out there who is
• 31:36
  Speaker 3: gonna hear about the fucking Mipha-Pristone vault, and that's gonna
• 31:40
  Speaker 3: be the thing that gets them out of their house.
• 31:42
  Speaker 3: It's pretty much, it's a bank shot.
• 31:44
  Speaker 2: Look, I do, it's a good point, and I, and sometimes,
• 31:47
  Speaker 2: I actually think that, like, you know, for all the criticism,
• 31:51
  Speaker 2: sometimes Joe Biden and his campaign as administration, you know,
• 31:54
  Speaker 2: we can, you can fault them for talking about democracy
• 31:58
  Speaker 2: and democracy, the word being sort of esoteric and hard and,
• 32:01
  Speaker 2: you know, more of a theoretical abstract concept than something
• 32:04
  Speaker 2: that's real. But I do think there needs to be
• 32:08
  Speaker 2: a sense of urgency around like all of the rhetoric
• 32:12
  Speaker 2: coming from all the Democrats, right? Because if, if you're
• 32:15
  Speaker 2: a democratic official and you're acting like You know, this
• 32:19
  Speaker 2: is just here's the choice and there's this guy and
• 32:21
  Speaker 2: this guy. And like it's not going to feel to
• 32:24
  Speaker 2: people as urgent as this article clearly lays out that
• 32:29
  Speaker 2: like a lot of people are preparing for something that
• 32:31
  Speaker 2: seems quite scary. And, you know, it's tough because you
• 32:35
  Speaker 2: always want to calibrate it.
• 32:36
  Speaker 3: Right.
• 32:36
  Speaker 2: Like you don't. I always think about this when we're
• 32:39
  Speaker 2: talking on this podcast. I don't want to unnecessarily alarm people,
• 32:43
  Speaker 2: but I also don't want to be like, oh, that's fine.
• 32:45
  Speaker 2: Just vote. Show up and vote. You'll be good.
• 32:48
  Speaker 3: Yes, it is hard. I was thinking about that, too.
• 32:51
  Speaker 3: Because I remember before, there was these... What was that?
• 32:57
  Speaker 3: There was like an Atlantic piece that sent everyone into it.
• 32:59
  Speaker 2: Barton Gellman's piece.
• 33:00
  Speaker 1: Yes.
• 33:01
  Speaker 2: And you know what? Barton Gellman, he's now part of
• 33:02
  Speaker 2: this group. He left the Atlantic and he was like,
• 33:05
  Speaker 2: I'm going in the trenches. I'm digging the Mifeprestoan trench. Right.
• 33:09
  Speaker 3: No.
• 33:09
  Speaker 2: This has become a running.
• 33:15
  Speaker 3: It's in Seattle.
• 33:18
  Speaker 4: But the trench protects the building. The drugs aren't in
• 33:20
  Speaker 4: the trench.
• 33:21
  Speaker 2: Right, yeah, they have to be in the vault.
• 33:22
  Speaker 4: The trench surrounds the vault. Keep things clear.
• 33:24
  Speaker 3: This is just foundation work.
• 33:25
  Speaker 2: This is just foundation work. Jay Inslee is in the vault.
• 33:28
  Speaker 3: Yeah, no, he's got a hard hat. He's cutting the ribbon.
• 33:32
  Speaker 3: But no, but I think, I think like, I guess
• 33:33
  Speaker 3: what I'm, I guess I'm trying to say is like,
• 33:35
  Speaker 3: I completely like, I'm glad that there are people doing
• 33:38
  Speaker 3: this thinking. I am glad that people are taking this
• 33:40
  Speaker 3: threat seriously. I'm glad people are making the decisions you
• 33:42
  Speaker 3: would make if Joe Biden was behind by one point
• 33:44
  Speaker 3: in a bunch of swing states, because he is. That's
• 33:46
  Speaker 3: exactly right. I'm more thinking like, okay, how do we
• 33:49
  Speaker 3: make this feel as real to the people doing this
• 33:51
  Speaker 3: preparation as to all the people we need to bring
• 33:53
  Speaker 3: on board? And because look, Joe Biden has given big
• 33:57
  Speaker 3: speeches about democracy. I think they're important. I think it's
• 33:59
  Speaker 3: his motivation. I think like we should embrace, like Joe
• 34:02
  Speaker 3: Biden should speak authentically about why he's running for president.
• 34:05
  Speaker 3: But I do think it's like, how do we make
• 34:07
  Speaker 3: real for people the threat of schedule F, right? How
• 34:10
  Speaker 3: do we make real the Comstock Act? How do we
• 34:12
  Speaker 3: like convey this? And I think part of it is
• 34:15
  Speaker 3: like finding a space between the kind of broad, abstract,
• 34:19
  Speaker 3: like high-dudgeon, like Donald Trump is a dictator, Donald Trump
• 34:24
  Speaker 3: is an authoritarian bully, that kind of like broad language
• 34:27
  Speaker 3: that I think is just honestly noise to people, as
• 34:29
  Speaker 3: true as it is, without underplaying the threat. And I
• 34:32
  Speaker 3: think part of that is just, it is just sort of,
• 34:34
  Speaker 3: this is what the 2025, this is what his policies are.
• 34:37
  Speaker 3: This is what he's proposed. How does that sound to you?
• 34:39
  Speaker 3: Like these policies are dangerous and scary when they're described
• 34:43
  Speaker 3: without any spin on the ball, like without sweetener.
• 34:45
  Speaker 2: Well, it's one of the reasons I'm so glad Kate
• 34:47
  Speaker 2: is here to talk about this story, because I just
• 34:51
  Speaker 2: recently saw some polling where they presented voters with Project
• 34:56
  Speaker 2: 2025 proposals, some of Donald Trump's campaign proposals. And, you know,
• 35:01
  Speaker 2: the first order problem is a lot of people haven't
• 35:04
  Speaker 2: heard of them. Right. So then but then there's a
• 35:06
  Speaker 2: second order problem, which is you present voters with these policies.
• 35:10
  Speaker 2: They don't like them. They're very opposed to them, even
• 35:13
  Speaker 2: the undecided voters, even like soft Republican voters. But they
• 35:17
  Speaker 2: don't think that it could actually happen. And when you
• 35:20
  Speaker 2: ask them why, the first thing they say is or
• 35:22
  Speaker 2: most of them say Democrats will stop it from happening
• 35:25
  Speaker 2: in Congress, Democrats in Congress. And the second thing they
• 35:28
  Speaker 2: say is the courts will stop it from happening. So
• 35:31
  Speaker 2: I do wonder how we I think there's another we
• 35:35
  Speaker 2: have to connect one more dot for people, which is
• 35:37
  Speaker 2: like and it's not just Trump spouting off bullshit. or Democrats,
• 35:43
  Speaker 2: you know, crying wolf here. This is how he will
• 35:45
  Speaker 2: have the power to get it done. You talked about, Kate,
• 35:47
  Speaker 2: like some of the proposals that, you know, the courts
• 35:51
  Speaker 2: should rule against, but might not. What are you most
• 35:55
  Speaker 2: scared of in terms of the Trump proposals that you
• 35:57
  Speaker 2: think he really will be able to get done and
• 35:59
  Speaker 2: will pass legal muster?
• 36:00
  Speaker 4: So both his proposals and some of the Project 2025 stuff,
• 36:03
  Speaker 4: if I can sort of take them together. I mean, one,
• 36:05
  Speaker 4: you know, with Mifepristone, to stay on the topic, Project 2025, it's,
• 36:08
  Speaker 4: you know, like 900-page fever dream, like has a couple
• 36:11
  Speaker 4: of really scary– I mean, it has many, many really
• 36:13
  Speaker 4: scary things in it. But it actually suggests having the
• 36:16
  Speaker 4: FDA to, you know, revoke the approval of Mifepristone. So
• 36:20
  Speaker 4: render it an unauthorized drug entirely. Like that's in there.
• 36:23
  Speaker 4: And reviving enforcement, which you just mentioned of the Comstock Act,
• 36:27
  Speaker 4: which is this 1873, right, like Victorian anti-vice law that–
• 36:31
  Speaker 4: could be used to basically criminalize sending through the mails
• 36:35
  Speaker 4: anything that could be used in an abortion. So not
• 36:37
  Speaker 4: just pills, but also potentially surgical equipment, like it could
• 36:39
  Speaker 4: sweep more broadly than just medication abortion. Certain forms of contraception,
• 36:43
  Speaker 4: there was an amendment that took like regular birth control
• 36:46
  Speaker 4: pills out from the Comstock Act, but IUDs, things like that,
• 36:49
  Speaker 4: those could also very much be targeted. So that stuff
• 36:52
  Speaker 4: is really scary. And, you know, will the court stop it?
• 36:56
  Speaker 4: I mean, on Comstock, I think There's lots of ways
• 36:59
  Speaker 4: that enforcement of Comstock, I think, is both inconsistent with
• 37:01
  Speaker 4: maybe the First Amendment and conceptions of liberty that are
• 37:04
  Speaker 4: pretty well settled, although Dobbs unsettled a lot of them. So,
• 37:08
  Speaker 4: you know, I think Comstock is obviously unconstitutional in a
• 37:10
  Speaker 4: pre-Dobbs world. I'm not sure post-Dobbs it obviously is. And
• 37:14
  Speaker 4: in terms of like directing the FDA to revisit the
• 37:17
  Speaker 4: Mifepristone approval, you know, The president doesn't typically just give
• 37:21
  Speaker 4: directions to agencies like that. And there are statutes that
• 37:23
  Speaker 4: say the FDA is supposed to review drugs for safety
• 37:26
  Speaker 4: and efficacy. But courts just, again, back to an answer
• 37:29
  Speaker 4: I gave to you earlier, courts just have not been
• 37:30
  Speaker 4: confronted with a question of an agency saying, we did
• 37:33
  Speaker 4: what we did because the president told us to. And
• 37:36
  Speaker 4: Project 2025 and a lot of the Trump team's rhetoric
• 37:39
  Speaker 4: right now is all about vindicating democracy. It's really pretty perverse.
• 37:42
  Speaker 4: But what they might say to the courts is, We
• 37:44
  Speaker 4: promised to do all of this and then we did it.
• 37:46
  Speaker 4: And so democracy has been sort of successful. And for
• 37:50
  Speaker 4: a court to undo all of that would be fundamentally anti-democratic.
• 37:52
  Speaker 4: And so if there are kind of like gray areas
• 37:54
  Speaker 4: in the law, the court should resolve those in favor of,
• 37:57
  Speaker 4: you know, like a democracy principle and let, you know,
• 37:59
  Speaker 4: let these actions stand, even if they're inconsistent with science and,
• 38:03
  Speaker 4: you know, best practices and things like that. So I
• 38:06
  Speaker 4: think I just come back to an answer I gave before,
• 38:08
  Speaker 4: which is that a lot of it is unsettled. And
• 38:11
  Speaker 4: I think there's a very good chance that some of
• 38:13
  Speaker 4: it could be upheld. And I think that, you know,
• 38:16
  Speaker 4: immigration is also a place where, so to pivot for
• 38:19
  Speaker 4: a minute to immigration, a place where the executive has
• 38:22
  Speaker 4: a lot of delegated authority from Congress. And so that's
• 38:25
  Speaker 4: a place where and where courts are not typically as,
• 38:29
  Speaker 4: you know, likely to second guess discretionary judgments made by
• 38:32
  Speaker 4: the president. And the Insurrection Act is famously sort of
• 38:36
  Speaker 4: vague and susceptible to abuse and manipulation. It hasn't as written,
• 38:40
  Speaker 4: but it just hasn't been used much. And so courts
• 38:41
  Speaker 4: just haven't been in a position.
• 38:42
  Speaker 2: Yeah. You want, you want a law that allows the
• 38:44
  Speaker 2: president to call up the military and use it against
• 38:47
  Speaker 2: American citizens to be as vague as possible.
• 38:49
  Speaker 4: That's optimal.
• 38:50
  Speaker 3: But it's all like to, to, to where you're just,
• 38:53
  Speaker 3: just what you were describing earlier, just all of these
• 38:56
  Speaker 3: laws were written in a way that, that presumed a
• 39:00
  Speaker 3: certain level of like democratic and Republican, small R, small
• 39:04
  Speaker 3: D fealty. Mike Pence being able to overturn the election,
• 39:09
  Speaker 3: of course, that's not there, but they found it there, right?
• 39:14
  Speaker 3: In the 2025 document, they talk about basically using, that
• 39:18
  Speaker 3: they can ban pornography and define pornography to basically include
• 39:23
  Speaker 3: anything that makes reference to transgender people, right? That is
• 39:26
  Speaker 3: an abuse of any of the law in any way
• 39:29
  Speaker 3: that you could could read it, but not if some Republican,
• 39:32
  Speaker 3: not if some MAGA appointed Trump goon who had cut
• 39:35
  Speaker 3: their fucking lost law degree in the mail two weeks
• 39:38
  Speaker 3: before being nominated, decides that it's okay.
• 39:41
  Speaker 2: You mean Eileen Cannon?
• 39:43
  Speaker 3: She's not, and she's not the only one. There's a
• 39:46
  Speaker 3: few people in that graduating class. The Raisin Bran 2021
• 39:49
  Speaker 3: class of law.
• 39:51
  Speaker 2: Future Justice Eileen Cannon.
• 39:52
  Speaker 3: Justice Cannon. Oh, Jesus.
• 39:55
  Speaker 2: That's terrible. Yeah, that's tough.
• 39:57
  Speaker 3: We should have, what was the name of the Bush
• 39:58
  Speaker 3: appointee that got withdrawn?
• 40:00
  Speaker 2: Harriet Myers.
• 40:00
  Speaker 3: Yeah, we should have let Harriet Myers through. Harriet Mears
• 40:02
  Speaker 3: should have gotten through.
• 40:03
  Speaker 2: That was a mistake. We blew that one.
• 40:05
  Speaker 4: Well, that was his.
• 40:05
  Speaker 2: It was a Republican who said no. What did we do?
• 40:07
  Speaker 2: We didn't do anything.
• 40:09
  Speaker 3: We should have gone behind it.
• 40:13
  Speaker 2: Don't say that too loud. That'll be Biden's next. Anyway,
• 40:17
  Speaker 2: Project 2025 is bad. Go tell your friends about it.
• 40:19
  Speaker 2: Spread the word. Project 2025. It's not great. And that's it.
• 40:24
  Speaker 2: It's not great. Check it out. It's pretty scary. And
• 40:27
  Speaker 2: the courts, you know, you cannot count on the courts
• 40:30
  Speaker 2: and you cannot count on even if Democrats control Congress.
• 40:33
  Speaker 4: Right.
• 40:33
  Speaker 2: Because part of this, I mean.
• 40:34
  Speaker 4: A lot of it's unilateral executive stuff. Yeah.
• 40:36
  Speaker 2: Well, part of what you're referencing is that they believe
• 40:37
  Speaker 2: in this, you know, unitary executive theory. Right. Which is
• 40:40
  Speaker 2: the idea that all power is invested in the executive
• 40:43
  Speaker 2: branch with the president.
• 40:44
  Speaker 4: Right.
• 40:45
  Speaker 2: And so. the entire federal government, everything that's not Congress
• 40:48
  Speaker 2: and the courts, every federal agency, even if it's independent,
• 40:50
  Speaker 2: like the Department of Justice or the FTC or the
• 40:53
  Speaker 2: FCC or any of these places, that this theory is, no, no, no,
• 40:57
  Speaker 2: they all work for the president. And so Congress doesn't
• 40:59
  Speaker 2: get to check them and the courts don't get to
• 41:01
  Speaker 2: check them. It's the checks that they have on the
• 41:03
  Speaker 2: president are their only checks. And otherwise, the president has
• 41:06
  Speaker 2: all power. Yeah.
• 41:06
  Speaker 4: And again, like that's really it's wildly inconsistent with our
• 41:09
  Speaker 4: kind of constitutional tradition. The DOJ has enjoyed a degree
• 41:12
  Speaker 4: of independence since it's existed. But there just isn't, you know,
• 41:16
  Speaker 4: there isn't a Supreme Court decision that says that. There
• 41:18
  Speaker 4: isn't even anything explicit in the statute. It's really the
• 41:20
  Speaker 4: norms and customs and practices of the Department of Justice
• 41:23
  Speaker 4: and the forbearance of presidents who have respected this idea
• 41:26
  Speaker 4: of an independent chief prosecutor. And, you know, obviously none
• 41:31
  Speaker 4: of that is secure under, you know, Project 2025 slash
• 41:34
  Speaker 4: Trump administration. And so weaponizing DOJ, as Trump has explicitly
• 41:38
  Speaker 4: promised to do to go after political adversaries, is something that,
• 41:43
  Speaker 4: you know, would be challenged. And the challenge would rely on, again,
• 41:48
  Speaker 4: an underspecified constitutional principle that I think is a very
• 41:52
  Speaker 4: real one. But this really formalistic group of justices that
• 41:55
  Speaker 4: is willing to just sort of read the words of
• 41:56
  Speaker 4: the Constitution, and only some of them, like Article II,
• 41:58
  Speaker 4: the one that empowers the president, is in some ways
• 42:00
  Speaker 4: the most important one. And there's a few others, Second Amendment,
• 42:02
  Speaker 4: the religion clauses of the First Amendment. There's like, you know,
• 42:04
  Speaker 4: there's a list of preferred provisions. But I'm not sure
• 42:09
  Speaker 4: there's anything that this court would see as allowing it
• 42:12
  Speaker 4: to second-guess a presidential effort to seize complete control of
• 42:16
  Speaker 4: the Justice Department.
• 42:17
  Speaker 2: Very cool. All right, two quick things before we go
• 42:19
  Speaker 2: to break. If you would like to hear Kate provide
• 42:23
  Speaker 2: more brilliant legal analysis with two people who are much
• 42:26
  Speaker 2: smarter than me and love it, listen to Strict Scrutiny,
• 42:29
  Speaker 2: if you're not already, which you're crazy if you're not.
• 42:32
  Speaker 2: You can listen to Kate and Melissa Murray and Leah
• 42:34
  Speaker 2: Littman on I know you guys just did a show
• 42:36
  Speaker 2: at Tribeca. It was a great show.
• 42:37
  Speaker 4: Thank you.
• 42:38
  Speaker 2: And you have a sold-out show coming up Saturday in D.C.
• 42:41
  Speaker 4: We do.
• 42:41
  Speaker 2: Any sneak preview you can offer there?
• 42:44
  Speaker 4: I think I'm forbidden from providing any sneak preview, but
• 42:46
  Speaker 4: we have some very exciting guests. That's, I think, all
• 42:49
  Speaker 4: I can say.
• 42:49
  Speaker 2: Wow. And that will be on.
• 42:52
  Speaker 4: Saturday the 22nd and then in your ear holes the
• 42:54
  Speaker 4: morning of Monday the 24th.
• 42:55
  Speaker 2: Outstanding. All right. Everyone subscribe to Strict Scrutiny. Also, Los
• 42:59
  Speaker 2: Angeles listeners, this Sunday, June 23rd, join Vote Save America
• 43:03
  Speaker 2: and over 20 of your favorite bakers... At Bake Save America.
• 43:07
  Speaker 2: What a segue.
• 43:08
  Speaker 3: I didn't know about this.
• 43:09
  Speaker 2: A bake sale and fundraiser for VSA's work to mobilize
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• 43:19
  Speaker 3: That's cool.
• 43:20
  Speaker 2: Yeah, that's very cool.
• 43:21
  Speaker 3: Of course they do it when we're out of fucking town.
• 43:22
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• 43:23
  Speaker 2: What the hell? No, I'll be... No, I'm flying back here.
• 43:27
  Speaker 2: It's going down from 11 a.m. to 2 p.m. at
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• 43:43
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• 43:50
  Speaker 3: Get your tickets to bake.
• 43:53
  Speaker 2: Well, this message has been paid for by Vote Save America.
• 43:55
  Speaker 2: You can learn more at votesaveamerica.com. And this ad has
• 43:57
  Speaker 2: not been authorized by any candidate or candidate's committee. So
• 44:13
  Speaker 2: speaking of the legal stakes in this election, at a
• 44:15
  Speaker 2: big fundraiser in Los Angeles over the weekend with Barack
• 44:18
  Speaker 2: Obama and Jimmy Kimmel, Joe Biden had the audacity... to
• 44:22
  Speaker 2: criticize Kate's dear friends on the Supreme Court, probably because Lovett, Tommy,
• 44:27
  Speaker 2: and I were there egging him on. Let's listen. So
• 44:30
  Speaker 2: it's been almost two years since the largely Trump-appointed justices
• 44:35
  Speaker 2: in the Supreme Court overturned Roe v. Wade.
• 44:38
  Speaker 4: And I think we are all wondering, what can we
• 44:42
  Speaker 4: do about this?
• 44:43
  Speaker 1: Elect me again.
• 44:45
  Speaker 3: I'll tell you why.
• 44:46
  Speaker 1: No, I'm not just saying it. The next president is
• 44:49
  Speaker 1: likely to have two new Supreme Court nominees. Two more.
• 44:54
  Speaker 1: Two more. He's already appointed two that have been very
• 44:59
  Speaker 1: negative in terms of the rights of individuals. The idea
• 45:02
  Speaker 1: that if he's reelected, he's going to appoint two more
• 45:05
  Speaker 1: firing flags upside down. But by the way, not on
• 45:08
  Speaker 1: my watch. Not on my watch.
• 45:12
  Speaker 2: Yeah.
• 45:14
  Speaker 3: Yeah, so the point was good. The broad strokes argument,
• 45:17
  Speaker 3: I respect.
• 45:18
  Speaker 2: We were there into our last segment. He also, President Biden,
• 45:22
  Speaker 2: towards the end of the night, just interjected very loudly,
• 45:25
  Speaker 2: Institutions matter! Which I immediately texted to him, and I
• 45:31
  Speaker 2: was like, let's look for another slogan. But I agree
• 45:34
  Speaker 2: with him in principle.
• 45:36
  Speaker 3: Somebody shouted gay rights from the audience, and Joe Biden went,
• 45:41
  Speaker 3: not on my watch. But I think he meant.
• 45:43
  Speaker 2: No, no, no, no, because... Someone, no, what happened is someone,
• 45:46
  Speaker 2: Saul cut this for us. Thank you, Saul, because that
• 45:49
  Speaker 2: went on for two minutes. And it was Jimmy speaking
• 45:51
  Speaker 2: and Obama speaking. So we just got the good stuff
• 45:53
  Speaker 2: from Biden. But what happened is someone yelled gay rights.
• 45:56
  Speaker 2: And then Obama said, because you couldn't really hear them,
• 45:58
  Speaker 2: but Obama could hear them. And he said, oh, he's
• 46:00
  Speaker 2: talking about maybe they'd undo same-sex marriage. And then Biden said,
• 46:04
  Speaker 2: not on my watch.
• 46:04
  Speaker 3: Because to me in the room, I didn't catch that.
• 46:06
  Speaker 3: Because for me, it sounded like someone said gay rights
• 46:08
  Speaker 3: and Biden went, not on my watch. I knew he
• 46:10
  Speaker 3: meant more like not what Trump would do on my watch.
• 46:12
  Speaker 3: You get it.
• 46:13
  Speaker 2: You get it.
• 46:14
  Speaker 3: Yeah, Julie Roberts was there.
• 46:17
  Speaker 2: Briefly. For like five minutes at the beginning. Briefly, briefly.
• 46:18
  Speaker 2: I was like, Julie, you could have stayed a little bit.
• 46:20
  Speaker 3: You can't put her on the invite and never show
• 46:21
  Speaker 3: up at the very top for five seconds. She's like,
• 46:23
  Speaker 3: see you later. I'm going to fucking, I'm back to
• 46:26
  Speaker 3: Manitoba Canyon with me.
• 46:29
  Speaker 2: Kate, was Biden's critique of the Supreme Court more or
• 46:32
  Speaker 2: less appropriate than when Obama destroyed the Constitution by respectfully
• 46:36
  Speaker 2: criticizing the Citizens United decision in front of the justices
• 46:39
  Speaker 2: during the State of the Union?
• 46:40
  Speaker 4: I love imagining that. Sam Alito's poker face if he
• 46:43
  Speaker 4: had actually been in the front row of that fundraiser.
• 46:45
  Speaker 4: What kind of flag? In retrospect, we all should have
• 46:47
  Speaker 4: known a little bit more about what kind of guy
• 46:49
  Speaker 4: that was, Sam Alito. Because he's shaking his hand. No,
• 46:52
  Speaker 4: he could barely contain himself, control himself in that State
• 46:55
  Speaker 4: of the Union. And none of this really should be
• 46:57
  Speaker 4: that surprising.
• 46:58
  Speaker 2: Were you in the council's office at the time?
• 46:59
  Speaker 3: I was.
• 46:59
  Speaker 2: Because I remember, for all that whole controversy, by the way,
• 47:03
  Speaker 2: for those who don't remember, this was a big... Barack Obama,
• 47:06
  Speaker 2: during the State of the Union, criticized Citizens United. And
• 47:10
  Speaker 2: Sam Alito was shaking his head in the front. And
• 47:14
  Speaker 2: it was this big controversy that followed for the next
• 47:17
  Speaker 2: couple of days, several news cycles where, believe it or not,
• 47:21
  Speaker 2: it wasn't like it is today where everyone's like, yeah,
• 47:23
  Speaker 2: obviously Sam Alito is like, you know, flying flags upside
• 47:26
  Speaker 2: down and doing crazy shit. It's like, What did President
• 47:29
  Speaker 2: Obama do to civility in our institutions by bringing up
• 47:33
  Speaker 2: a decision?
• 47:34
  Speaker 4: I hated that news cycle so much. It was like,
• 47:35
  Speaker 4: Sam Alito was the villain of that. And somehow the
• 47:37
  Speaker 4: press decided that Barack Obama was the villain.
• 47:39
  Speaker 2: And we were, I remember in preparing the speech and
• 47:42
  Speaker 2: we ran it by you guys in counsel's office and
• 47:44
  Speaker 2: we all, we really thought like, we don't want to
• 47:47
  Speaker 2: go too far here. So what can we say that?
• 47:49
  Speaker 2: criticizes the decision without really criticizing the court. Like in retrospect,
• 47:53
  Speaker 2: we were too careful, but it's like, it's so funny.
• 47:56
  Speaker 3: It was a baffling controversy. It was a bad, even
• 47:59
  Speaker 3: at the time, it was like, I didn't even, he's,
• 48:01
  Speaker 3: he was furious. He said he wasn't ever, he's never,
• 48:03
  Speaker 3: has he been back? He said he wouldn't go back.
• 48:05
  Speaker 3: And then I don't know if he ever came back.
• 48:06
  Speaker 4: I'm not sure he's been back. You might be right.
• 48:08
  Speaker 3: I think that he said that I was wrong to
• 48:10
  Speaker 3: even be there.
• 48:11
  Speaker 2: Put that on the Obama accomplishments list.
• 48:14
  Speaker 3: Gotta get home to Betsy Ross.
• 48:24
  Speaker 2: I don't know. I thought Joe Biden sounded like he
• 48:25
  Speaker 2: was listening to Dan Pfeiffer's message box there. I thought
• 48:28
  Speaker 2: that was good. Yeah. Talking about the Supreme court. Yeah.
• 48:30
  Speaker 3: Dan wants everyone to talk about the Supreme court. Uh, Yeah,
• 48:34
  Speaker 3: maybe Dan is reading message box or maybe people around.
• 48:36
  Speaker 2: I'm sorry.
• 48:36
  Speaker 3: Dan is reading message box. Maybe Joe Biden is reading
• 48:41
  Speaker 3: message box.
• 48:42
  Speaker 2: I do think that talking about the Supreme Court from
• 48:45
  Speaker 2: Biden as part of the stakes, like I know, you know,
• 48:48
  Speaker 2: we've talked, we've asked about this to smart polling people
• 48:52
  Speaker 2: and they'll tell you, well, you know, you start talking
• 48:53
  Speaker 2: about institutions and processes and like voters sort of their
• 48:56
  Speaker 2: eyes glaze over. But I do think like talking about
• 49:01
  Speaker 2: the consequences of a, you know, a second Trump term
• 49:05
  Speaker 2: and what the court looks like there and what the
• 49:08
  Speaker 2: court looks like under Biden, particularly when the court under
• 49:11
  Speaker 2: Trump is not just the court under four more years
• 49:13
  Speaker 2: of Trump, but potentially a couple decades. right?
• 49:18
  Speaker 4: I mean, because when he was in the White House,
• 49:19
  Speaker 4: he understood the imperative of appointing ultra-conservative and super-young judges
• 49:25
  Speaker 4: in the lower federal courts. And I think his three
• 49:27
  Speaker 4: appointments to the Supreme Court, Trump's, were very, very conservative,
• 49:31
  Speaker 4: but still not as conservative as Clarence Thomas and Sam
• 49:35
  Speaker 4: Alito in certain respects. So I think that If he
• 49:39
  Speaker 4: has a chance to make more appointments, Donald Trump does,
• 49:42
  Speaker 4: it will be very, very young. You know, Aileen Cannon,
• 49:45
  Speaker 4: Matthew Kaczmarek, that kind of profile of arch conservative and,
• 49:49
  Speaker 4: you know, willing to be quite lawless jurists. And because,
• 49:52
  Speaker 4: you know, in some ways, like Amy Coney Barrett and
• 49:54
  Speaker 4: Brett Kavanaugh have occasionally joined the Democrats. I don't see
• 49:57
  Speaker 4: a future Trump appointee being sort of in that kind
• 49:59
  Speaker 4: of category. I do think it's interesting Biden starting now.
• 50:02
  Speaker 4: to criticize the court and justices on it. I think
• 50:05
  Speaker 4: that feels like a development, doesn't it? This does not
• 50:07
  Speaker 4: come naturally to him.
• 50:08
  Speaker 2: Well, you know, there's this whole fucking debate after the
• 50:11
  Speaker 2: fundraiser about like, you know, this deceptively edited video from
• 50:15
  Speaker 2: the New York Posted of like, did Biden freeze as
• 50:18
  Speaker 2: he was walking off stage?
• 50:19
  Speaker 1: Oh, right.
• 50:20
  Speaker 2: You know, really, he just stopped for a minute and
• 50:22
  Speaker 2: he was waving and he looked in the crowd and
• 50:24
  Speaker 2: he just saw Lovett and he noticed he was back
• 50:26
  Speaker 2: from Survivor, so it just caught him off guard.
• 50:28
  Speaker 4: Understandable.
• 50:29
  Speaker 2: But what really... And then, you know, liberals fought about
• 50:33
  Speaker 2: that and the Biden campaign got mad about it. But
• 50:35
  Speaker 2: I thought that was the news out of that event. And,
• 50:37
  Speaker 2: you know, the Biden campaign tweeted that clip. So they
• 50:41
  Speaker 2: were clearly happy with the answer.
• 50:42
  Speaker 4: Yeah, he's, you know, obviously a creature of the Senate
• 50:45
  Speaker 4: and of the Senate Judiciary Committee, and I think has
• 50:47
  Speaker 4: had this longstanding respect for the court as an institution.
• 50:50
  Speaker 4: And a lot of people have, I think, you know,
• 50:51
  Speaker 4: myself included. But I do think that at a certain point, like,
• 50:55
  Speaker 4: reality has to step in. And it's not an institution
• 50:58
  Speaker 4: that is performing consistent with the basic obligations of of
• 51:01
  Speaker 4: a court in a democracy consistent with a limited role
• 51:04
  Speaker 4: vis-a-vis the Congress and the president. It just isn't. And
• 51:08
  Speaker 4: so I think that Biden may be realizing that it's
• 51:12
  Speaker 4: important to talk differently about the court than courts of
• 51:14
  Speaker 4: yore if the court is not going to act like
• 51:18
  Speaker 4: a court at all, honestly. And so I really hope
• 51:20
  Speaker 4: that that's a shift that we're going to see going forward.
• 51:22
  Speaker 3: I hope so. Yeah, I agree. I also think part
• 51:25
  Speaker 3: of this is Dobbs, but part of this is also
• 51:27
  Speaker 3: just the rampant corruption on the Supreme Court. that I
• 51:30
  Speaker 3: think is an alphabet of people. And I do wonder, right, like,
• 51:34
  Speaker 3: you know, people who understand the stakes around the Supreme
• 51:36
  Speaker 3: Court are probably people that are already part of our coalition.
• 51:38
  Speaker 3: So it's about reaching people and making them understand the
• 51:41
  Speaker 3: stakes for the Supreme Court, especially when there is polling
• 51:44
  Speaker 3: that shows, well, Dobbs happened on Joe Biden's watch, right?
• 51:47
  Speaker 3: Like abortion went away when Joe Biden was president, right?
• 51:50
  Speaker 3: And the question is, do you view that something to
• 51:51
  Speaker 3: get around? Or is that this issue important enough and
• 51:53
  Speaker 3: big enough where you actually want to try to do
• 51:55
  Speaker 3: the work to educate the millions and millions of people
• 51:57
  Speaker 3: who need to come to understand the stakes of the
• 51:59
  Speaker 3: Supreme Court in a way that they currently don't.
• 52:00
  Speaker 4: Yeah.
• 52:01
  Speaker 2: Well, just talk about some of those upcoming rulings and
• 52:04
  Speaker 2: the stakes and the consequences. I wanted to ask you
• 52:07
  Speaker 2: about a few of the recent big decisions and the
• 52:09
  Speaker 2: big decisions still to come. We talked about, if it
• 52:14
  Speaker 2: But they also, the Supreme Court on Friday, I know
• 52:17
  Speaker 2: you guys did a bonus episode on this, they overturned
• 52:21
  Speaker 2: the Trump administration's regulatory ban on bump stocks put in
• 52:24
  Speaker 2: place after the Las Vegas shooting. Your take on the
• 52:27
  Speaker 2: decision there?
• 52:28
  Speaker 4: It's a pretty shocking decision. So for 100 years, machine
• 52:31
  Speaker 4: guns have been banned under federal law. And there's also
• 52:33
  Speaker 4: a provision that says that an accessory that converts a
• 52:35
  Speaker 4: semi-automatic gun to a machine gun is also banned. And
• 52:38
  Speaker 4: Clarence Thomas, for a 6-3 majority in this hyper technical
• 52:42
  Speaker 4: reading of the phrase single function of the trigger decides
• 52:46
  Speaker 4: that because what a bump stock does is it internally
• 52:50
  Speaker 4: does actually have a trigger moving many, many times. So it's,
• 52:53
  Speaker 4: you know, they can shoot these, you know, rifles equipped
• 52:55
  Speaker 4: with bump stocks can shoot up to 800 rounds a minute.
• 52:59
  Speaker 4: But it's not, according to Justice Thomas, a single function
• 53:02
  Speaker 4: of the trigger if you look inside the gun. And
• 53:04
  Speaker 4: he illustrates this with like six kind of whimsical diagrams
• 53:08
  Speaker 4: and a gif. Like it is a truly deranged document.
• 53:11
  Speaker 4: Like that's the opinion. And I mean, again, they're like
• 53:13
  Speaker 4: weirdly playful, the images of the inside of a gun.
• 53:16
  Speaker 4: It's sort of hard to describe, but he's obviously luxuriating
• 53:19
  Speaker 4: in this kind of like, you know, internal investigation of
• 53:21
  Speaker 4: the mechanics of a bump stock and comes up with like, well,
• 53:24
  Speaker 4: it's not really a single function because a lot is
• 53:26
  Speaker 4: happening inside. So it's not actually... able to be prohibited
• 53:30
  Speaker 4: under the statute. And so the ATF under the Trump administration,
• 53:35
  Speaker 4: which issued this regulation banning bump stocks, that regulation falls
• 53:38
  Speaker 4: and the, you know, 500,000 bump stocks clearly that are
• 53:42
  Speaker 4: already out there are, again, fully legal. And I mean,
• 53:45
  Speaker 4: that is just like, it's both a terrible opinion when
• 53:48
  Speaker 4: it comes to reading a statute and understanding what a
• 53:50
  Speaker 4: statute is trying to do, and interpreting consistent with that.
• 53:54
  Speaker 4: But obviously, it has you know, enormous on the ground
• 53:57
  Speaker 4: consequences in terms of reintroducing again, hundreds of thousands of
• 54:00
  Speaker 4: these wildly lethal accessories into the broader population. I mean,
• 54:04
  Speaker 4: we saw what one of these things did in Las
• 54:06
  Speaker 4: Vegas and it could happen again.
• 54:08
  Speaker 2: And, you know, just to like close the loop for
• 54:11
  Speaker 2: people here, Senator Schumer said, all right, I'm going to
• 54:14
  Speaker 2: bring this up. And because basically I think Alito said
• 54:16
  Speaker 2: in a concurring opinion, like Congress wants to ban these,
• 54:18
  Speaker 2: Congress can do it. So Schumer says he's going to
• 54:22
  Speaker 2: bring it up. And Lindsey Graham said, oh, I'll block
• 54:25
  Speaker 2: it no matter what. even though, again, this was something
• 54:27
  Speaker 2: that the Trump administration did, and then Republicans in the
• 54:30
  Speaker 2: Trump administration supported this when it happened.
• 54:32
  Speaker 4: And the NRA supported it. This was an NRA was
• 54:35
  Speaker 4: okay with this regulation, although there's some speculation, well, maybe
• 54:37
  Speaker 4: they were okay with the regulation because they thought it'd
• 54:39
  Speaker 4: be easier to undo down the road than a statutory change.
• 54:42
  Speaker 4: But regardless, this is Thomas way, way right of the
• 54:46
  Speaker 4: Trump administration and the NRA in this case.
• 54:48
  Speaker 2: And now the Republicans in the Senate have taken their
• 54:50
  Speaker 2: cue from Thomas, and now they're refusing to do this.
• 54:53
  Speaker 2: And so when people... hear about the decision and get
• 54:56
  Speaker 2: upset that the Supreme Court did this thing on bump
• 54:58
  Speaker 2: stocks and Joe Biden couldn't fix it and the Democrats
• 55:02
  Speaker 2: couldn't fix it, it's because Republicans have the votes to
• 55:05
  Speaker 2: block it and they have a Supreme Court that decided
• 55:07
  Speaker 2: to do this. And so it's like, those are the
• 55:09
  Speaker 2: stakes of the election right there. Can you talk about
• 55:11
  Speaker 2: the decision in Vidal versus Elster? Because it was a
• 55:14
  Speaker 2: little bit under the radar, but... I heard you had
• 55:17
  Speaker 2: some larger concerns about it.
• 55:19
  Speaker 4: I do. So it's like this quirky little case. This guy,
• 55:22
  Speaker 4: Steve Elster, tried to get a trademark for the phrase
• 55:24
  Speaker 4: Trump too small after this memorable Marco Rubio, Donald Trump
• 55:28
  Speaker 4: debate exchange about Trump's hand size.
• 55:30
  Speaker 2: You guys remember this?
• 55:31
  Speaker 3: Yeah.
• 55:31
  Speaker 2: Not so much about hand size. Explicitly.
• 55:34
  Speaker 4: Innuendo.
• 55:37
  Speaker 3: That's what we're talking about there. We're talking about innuendo.
• 55:40
  Speaker 2: This is like a Lincoln Project tweet come to life.
• 55:43
  Speaker 3: Yeah, basically. Yeah, you walk around the tweet three times
• 55:47
  Speaker 3: while saying a Hebrew prayer, it becomes a kind of
• 55:49
  Speaker 3: a monster. That's about a golem for Rita, fellow tribe
• 55:55
  Speaker 3: member back there.
• 55:57
  Speaker 2: Anyway, Kate, go on.
• 56:00
  Speaker 4: So this Elster tries to get a trademark on the
• 56:02
  Speaker 4: phrase Trump too small, and it's... is turned down by
• 56:05
  Speaker 4: the trademark office because there's a prohibition in federal law
• 56:07
  Speaker 4: on getting a trademark with somebody else's name without their consent.
• 56:10
  Speaker 4: And obviously Trump does not consent to the Trump two
• 56:12
  Speaker 4: small shirts. So he brings the First Amendment challenge and says, well,
• 56:16
  Speaker 4: you know, the First Amendment protects my right to make,
• 56:18
  Speaker 4: you know, get a trademark on this phrase. And the
• 56:20
  Speaker 4: Supreme Court had actually struck down other trademark laws that
• 56:24
  Speaker 4: had these provisions that prevented registration of like scandalous marks
• 56:30
  Speaker 4: or immoral marks or derogatory marks. So actually there had
• 56:33
  Speaker 4: been you know, successful challenges along these lines in recent years.
• 56:36
  Speaker 4: But this guy, this t-shirt, you know, a registrant is unsuccessful.
• 56:40
  Speaker 4: The court rules against him unanimously. But I think what's
• 56:44
  Speaker 4: really distressing about this opinion, it's like the court has
• 56:46
  Speaker 4: so many cases it's deciding right now, it's really hard
• 56:48
  Speaker 4: to kind of keep track of all of them. But
• 56:50
  Speaker 4: there are very scary, like embedded suggestions in a lot
• 56:54
  Speaker 4: of these opinions. And this is one of them. There's
• 56:56
  Speaker 4: a suggestion in this opinion that when you're deciding whether,
• 56:59
  Speaker 4: you know, a law, this is a trademark law, but
• 57:01
  Speaker 4: in general, survives a First Amendment challenge, you have to
• 57:04
  Speaker 4: look to history and tradition. So what have we done
• 57:06
  Speaker 4: historically with like common law treatment of trademarks and whether
• 57:09
  Speaker 4: you could use people's names without their agreement? And the decision,
• 57:15
  Speaker 4: at least for the plurality of the court, is that
• 57:18
  Speaker 4: history and tradition tells us that, yeah, that no, you
• 57:20
  Speaker 4: don't have a right to basically use somebody's name in
• 57:22
  Speaker 4: this way. But history and tradition is not how we
• 57:25
  Speaker 4: have typically assessed the First Amendment, right? Like we've, until
• 57:28
  Speaker 4: the 1960s, There weren't really heightened protections for media if
• 57:32
  Speaker 4: you wanted to bring a defamation claim. So that's the
• 57:34
  Speaker 4: New York Times versus Sullivan case. Early American history is
• 57:38
  Speaker 4: not at all protective of First Amendment rights. Like, you know,
• 57:42
  Speaker 4: the Alien and Sedition Acts are these very early statutes
• 57:44
  Speaker 4: that criminalized political speech. And those were understood as consistent
• 57:49
  Speaker 4: with the First Amendment. So I just think there is
• 57:51
  Speaker 4: potentially a really ominous set of notes in this opinion
• 57:54
  Speaker 4: about how, you know, both Dobbs, which you talked about,
• 57:57
  Speaker 4: and Bruin, this big gun case from 2022, are both
• 58:00
  Speaker 4: about how important history and tradition are in deciding what
• 58:04
  Speaker 4: the Constitution means. And this Elster case suggests to me
• 58:07
  Speaker 4: the court is going to use that method across maybe
• 58:11
  Speaker 4: every body of law. And our history and tradition is
• 58:13
  Speaker 4: pretty dodgy in a lot of ways. And if that's
• 58:15
  Speaker 4: what answers the question of what the Constitution means today,
• 58:18
  Speaker 4: I think we're all in a lot of trouble.
• 58:20
  Speaker 2: This is like they want to party like it's 1776. Exactly.
• 58:23
  Speaker 4: Sometimes 1868, depending on the day.
• 58:25
  Speaker 3: Coming back to the 2025 project and the pornography. Just
• 58:29
  Speaker 3: want to go back to the porn.
• 58:30
  Speaker 4: Yeah, absolutely.
• 58:31
  Speaker 2: Yeah, yeah.
• 58:32
  Speaker 3: Just get that on it.
• 58:33
  Speaker 4: Not exactly history and tradition.
• 58:34
  Speaker 3: All right. You got Joe Biden to say abortion. Next challenge.
• 58:37
  Speaker 4: Now porn.
• 58:37
  Speaker 3: Level two. We're going to get Joe Biden to say pornography.
• 58:41
  Speaker 4: I don't know that his people should take that advice.
• 58:43
  Speaker 4: I'll just go on a limb.
• 58:44
  Speaker 2: We talked a little bit about the immunity case. Is
• 58:46
  Speaker 2: it now officially like too late to start a trial
• 58:49
  Speaker 2: before the election if it comes this week?
• 58:51
  Speaker 4: I mean, Judge Chukin is a very impressive district court judge.
• 58:54
  Speaker 4: I wouldn't rule anything out. But, you know, it's I
• 58:58
  Speaker 4: would say it's in the single digit percent likely at
• 59:00
  Speaker 4: this point an actual trial. But, you know, there are
• 59:04
  Speaker 4: ways that she could she could figure out how to
• 59:06
  Speaker 4: hold a hearing potentially on this question of what is
• 59:09
  Speaker 4: an official act. and what is not, because that may
• 59:11
  Speaker 4: be how the case gets resolved. Yes, official acts get
• 59:14
  Speaker 4: some kind of immunity, but the indictment that Jack Smith
• 59:17
  Speaker 4: brought has some official acts and some things that were
• 59:20
  Speaker 4: clearly just conspiracies by an individual sort of outside of
• 59:25
  Speaker 4: kind of the scope of the presidency. So some official acts,
• 59:28
  Speaker 4: some non-official acts. So It's been at least suggested that
• 59:31
  Speaker 4: she could hold a hearing on this question of what
• 59:32
  Speaker 4: is official and what is unofficial from the indictment and
• 59:35
  Speaker 4: that that could serve as something like a mini trial
• 59:38
  Speaker 4: with a public facing component. So it wouldn't be a
• 59:40
  Speaker 4: full trial. There wouldn't be a jury verdict, but it
• 59:42
  Speaker 4: would be something. I love it looks like that's weak sauce.
• 59:45
  Speaker 4: That might that might be right.
• 59:46
  Speaker 2: It's opening on Broadway.
• 59:50
  Speaker 3: That's how that's how stuff came to be. Hey, hey.
• 59:56
  Speaker 2: Let's exist in a hopeful world for a minute. Are
• 59:59
  Speaker 2: there legitimate reasons it's taking so long for them to
• 1:00:03
  Speaker 2: release this decision that aren't just the conservative majority dragging
• 1:00:07
  Speaker 2: its feet?
• 1:00:08
  Speaker 4: There are other reasons, but none of them are reasons
• 1:00:10
  Speaker 4: that are hopeful, I don't think. So conservative majority dragging
• 1:00:13
  Speaker 4: its feet is, I think, one. And two, just like
• 1:00:16
  Speaker 4: writing a complex– opinion that sets forth some kind of
• 1:00:19
  Speaker 4: immunity that has never in American history existed. Immunity of
• 1:00:23
  Speaker 4: an ex-president from criminal prosecution is just a wildly novel idea.
• 1:00:29
  Speaker 4: And so if you're defining what the kind of outer
• 1:00:31
  Speaker 4: parameters of that are, it might take some time. But
• 1:00:35
  Speaker 4: the longer it takes, the less likely you have an
• 1:00:37
  Speaker 4: opinion that just basically says affirmed, which is the D.C.
• 1:00:39
  Speaker 4: Circuit rejected the immunity arguments very forcefully. One word, right,
• 1:00:44
  Speaker 4: affirmed is honestly what the Supreme Court opinion should say
• 1:00:46
  Speaker 4: if it had to take the case at all. And obviously,
• 1:00:48
  Speaker 4: the longer it takes, the less likely that is. So,
• 1:00:50
  Speaker 4: you know, dragging their feet and writing something, you know,
• 1:00:53
  Speaker 4: complex but protective of the president, I think, are the
• 1:00:56
  Speaker 4: two theories and neither is good.
• 1:00:57
  Speaker 2: I just have like a process question about it. Like,
• 1:00:59
  Speaker 2: I know it was the last case they heard. Is
• 1:01:02
  Speaker 2: there something to the order for it being like, they
• 1:01:04
  Speaker 2: could just say, no, this is important and we want
• 1:01:06
  Speaker 2: to do this now.
• 1:01:07
  Speaker 1: Absolutely.
• 1:01:07
  Speaker 4: There's no, they don't have to like decide the earlier
• 1:01:09
  Speaker 4: argued cases first, nothing like that. You know, the complex cases,
• 1:01:13
  Speaker 4: there are opinions right now flying back and forth inside
• 1:01:15
  Speaker 4: chambers because I'm sure there are multiple writings and dissents
• 1:01:18
  Speaker 4: and all that. So it does take time to kind
• 1:01:21
  Speaker 4: of hash out how the opinions talk to each other.
• 1:01:23
  Speaker 4: But you know, like think about the Colorado disqualification case, right?
• 1:01:27
  Speaker 4: Like that was two weeks and it was, you know,
• 1:01:28
  Speaker 4: and it was, you know, it was a short ish
• 1:01:30
  Speaker 4: and there was, you know, two separate writings and, but
• 1:01:32
  Speaker 4: they can, they wanted to move quickly because it was
• 1:01:35
  Speaker 4: super Tuesday and they thought they should speak before the
• 1:01:37
  Speaker 4: actual voting happened on that day. And they did. So
• 1:01:39
  Speaker 4: if they felt a similar sense of urgency here, we
• 1:01:41
  Speaker 4: would absolutely have had this opinion weeks ago.
• 1:01:43
  Speaker 3: Can I ask you, so you obviously, like you're saying
• 1:01:47
  Speaker 3: they're contemplating an argument that has never been been made before,
• 1:01:51
  Speaker 3: but also they're dealing with an unprecedented situation of a president,
• 1:01:54
  Speaker 3: former president being prosecuted in some cases for crimes he
• 1:01:56
  Speaker 3: committed while being in office. If you were put aside
• 1:02:00
  Speaker 3: the politics and the reality that we're all living in
• 1:02:02
  Speaker 3: and the fact that, you know, Sam Alito's wife is
• 1:02:04
  Speaker 3: flying fucking rebellion flags outside her, I don't know, harbor property.
• 1:02:09
  Speaker 3: But is there a way that you can see to like,
• 1:02:14
  Speaker 3: there are complexities here that actually do need to be
• 1:02:16
  Speaker 3: grappled with that like, You know, if this weren't such
• 1:02:20
  Speaker 3: a sort of obvious situation that a president might be
• 1:02:23
  Speaker 3: pursued for what was being construed as crimes for while
• 1:02:27
  Speaker 3: a president was in office.
• 1:02:28
  Speaker 4: You know, I think a charitable read would be they're
• 1:02:31
  Speaker 4: thinking seriously about this question that there could be edge
• 1:02:34
  Speaker 4: cases where something we might want to protect that a
• 1:02:36
  Speaker 4: president engages in is subject to a spurious prosecution. And
• 1:02:40
  Speaker 4: so it actually is important that there be some principled
• 1:02:42
  Speaker 4: protection of the president. But I think they don't have
• 1:02:44
  Speaker 4: to touch any of that because this is an easy case.
• 1:02:47
  Speaker 4: So I think they can just write something that says
• 1:02:49
  Speaker 4: we're not going to– if they want to, they could
• 1:02:50
  Speaker 4: say we're not going to foreclose the possibility of some
• 1:02:52
  Speaker 4: kind of immunity. But it's obvious that no such immunity
• 1:02:56
  Speaker 4: exists here remanded. I think that that's the principled way
• 1:02:59
  Speaker 4: the case should be decided if they want to even
• 1:03:01
  Speaker 4: entertain the possibility. I think they could also just reject
• 1:03:03
  Speaker 4: it wholesale affirmed as I suggested. But either one would
• 1:03:06
  Speaker 4: be fine with me.
• 1:03:07
  Speaker 2: So this whole– I think it was Gorsuch that said
• 1:03:09
  Speaker 2: we're writing an opinion for the ages. Like you don't
• 1:03:11
  Speaker 2: have to.
• 1:03:12
  Speaker 1: No, no.
• 1:03:12
  Speaker 2: And you're not.
• 1:03:14
  Speaker 4: Supposed to, right? Like, if there are very hard questions
• 1:03:16
  Speaker 4: that touch these deep kind of constitutional dynamics and relationships
• 1:03:19
  Speaker 4: and powers, and you don't have to answer them, you're
• 1:03:22
  Speaker 4: actually really not supposed to.
• 1:03:24
  Speaker 1: Yeah.
• 1:03:24
  Speaker 2: What are the other big ones we're waiting on besides
• 1:03:26
  Speaker 2: immunity that you're thinking about?
• 1:03:28
  Speaker 4: I mean, there's the other J6 case, Fisher, which is
• 1:03:30
  Speaker 4: not about Trump, but about a lot of other individuals
• 1:03:32
  Speaker 4: charged with January 6th related offenses. And two of the
• 1:03:35
  Speaker 4: four Trump charges are under the statute that's being considered here.
• 1:03:40
  Speaker 4: And so that case and a lot of the other
• 1:03:42
  Speaker 4: January 6th defendants cases could be thrown out. That was
• 1:03:44
  Speaker 4: the tenor of the oral argument. That's another really important one.
• 1:03:47
  Speaker 4: You have another big abortion case about emergency care for
• 1:03:50
  Speaker 4: individuals who might, under extreme circumstances, need an abortion to
• 1:03:54
  Speaker 4: preserve their health. That's the EMTALA case. That one we're
• 1:03:56
  Speaker 4: still waiting for. There are a bunch of cases about
• 1:03:59
  Speaker 4: administrative agency power that are, again, difficult to talk about
• 1:04:01
  Speaker 4: in the same way that Schedule F is difficult to
• 1:04:03
  Speaker 4: talk about and communicate about, but are fundamentally about whether
• 1:04:07
  Speaker 4: government gets to act to protect health and safety and well-being,
• 1:04:10
  Speaker 4: or the court is going to decide for itself, like
• 1:04:12
  Speaker 4: what a single function of the trigger means and like
• 1:04:14
  Speaker 4: what an acceptable amount of pollution in the air and
• 1:04:16
  Speaker 4: water really looks like, or whether expert agencies are going
• 1:04:19
  Speaker 4: to get to make those determinations. Like four different cases
• 1:04:22
  Speaker 4: the court is considering present variations on that question. And
• 1:04:25
  Speaker 4: so sometimes dry and technical, but enormously high stakes for
• 1:04:29
  Speaker 4: people's lives.
• 1:04:30
  Speaker 2: Well, as you guys say on Strict Scrutiny, time for
• 1:04:32
  Speaker 2: some bad decisions.
• 1:04:35
  Speaker 4: There's a 23-plus outstanding. I think they're almost all going
• 1:04:38
  Speaker 4: to be really bad.
• 1:04:39
  Speaker 3: Oof.
• 1:04:40
  Speaker 2: All right, well, coming attractions. Kate Shaw, thank you so much.
• 1:04:44
  Speaker 4: Thank you for having me.
• 1:04:44
  Speaker 2: For joining Positive America. It was such a pleasure. And
• 1:04:47
  Speaker 2: we will see you again on, Dan and Tommy are
• 1:04:50
  Speaker 2: going to do Thursday's episode, and so we'll post that
• 1:04:52
  Speaker 2: on Friday.
• 1:04:52
  Speaker 4: Bye. Bye.
• 1:04:55
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