Transcript

Contretemps of Court · Politix

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They did a DEI Super Bowl presentation because everybody knows
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that without
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SPEAKER_00: affirmative action,
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SPEAKER_00: African-Americans have never been able to succeed in the field of music.
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SPEAKER_01: Hey, everyone.
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SPEAKER_01: Which means we're about as close as we can be to,
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SPEAKER_01: I think what they call an autocratic breakthrough moment,
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SPEAKER_01: where the only remedies available after you cross that point to preserve
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constitutional democracy are impeachment and removal or more
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radical kind of resistance.
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SPEAKER_01: So in this episode,
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we'll talk about what precipitated this standoff and what we
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might expect going
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SPEAKER_01: forward from politicians and the public.
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SPEAKER_01: If you want to hear the whole conversation,
1:02
SPEAKER_01: you can upgrade your subscription to paid at politics.fm.
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SPEAKER_01: Hey, everyone.
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SPEAKER_01: Welcome to the Politics Podcast.
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SPEAKER_01: I'm Brian Boitler.
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SPEAKER_00: I'm Matthew Iglesias.
1:14
SPEAKER_00: We're out of our usual locations.
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SPEAKER_01: Yeah.
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SPEAKER_00: In hiding from the Trump regime.
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SPEAKER_01: I'm in my kitchen without a desk and suffering from the flu or something.
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SPEAKER_01: I'm at a hotel.
1:26
SPEAKER_01: I look like Tim Poole, but I promise I don't take any Russian...
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SPEAKER_01: intelligence money.
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This week,
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we're kind of peering over the precipice at the de facto end of
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American democracy.
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And Matt thinks I'm running a little hot,
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but I've got to say I don't like where we sit.
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And also,
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we're doing that thing where we're recording in the midst of
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like
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By the time this runs,
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the shape of things on the ground might be much different.
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So maybe we should just talk about Kendrick Lamar instead and
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not go into the whole Constitution.
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SPEAKER_00: Sure.
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They did a DEI Super Bowl presentation because everybody knows
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that without
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SPEAKER_00: affirmative action,
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SPEAKER_00: African-Americans have never been able to succeed in the field of music.
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SPEAKER_00: You know, I mean...
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SPEAKER_00: So to be serious, Kendrick Lamar did a performance at the Super Bowl.
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SPEAKER_00: He is a hip hop star and had a,
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SPEAKER_00: I believe,
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SPEAKER_00: all black group of backup dancers with him during his performance.
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SPEAKER_01: And Samuel L. Jackson playing Uncle Sam.
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SPEAKER_00: Sure.
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SPEAKER_00: Samuel L.
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SPEAKER_00: Jackson,
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SPEAKER_00: Serena Williams was also there as part of an elaborate diss on Drake,
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SPEAKER_00: which...
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SPEAKER_00: that's beyond the scope of this pod.
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But I would say that the conservative response to this was a
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powerful reminder of
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SPEAKER_00: how the kind of thermostatic pendulum of politics works.
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SPEAKER_00: I kind of reached the same.
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I feel like,
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okay,
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so I just want to situate listeners about how lame I am.
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SPEAKER_01: Like,
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I'm at that point between youth and like dotage where I'm
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familiar with the main
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SPEAKER_01: attractions in pop culture,
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but I'm like way out of step with the cultural drama that kind
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of roils underneath them.
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So like I could pick out a Taylor Swift hit if it came on the
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radio or whatever.
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But like I don't – I know that she does all this subliminal
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messaging to her fans about –
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SPEAKER_01: dissing her exes.
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SPEAKER_01: And I like, I'm, I'm totally illiterate about that stuff.
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SPEAKER_01: And it's like similar with Kendrick Lamar.
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I have,
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I have enjoyed his music,
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but I don't fully understand all the beefs.
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SPEAKER_01: So like, I couldn't, I enjoyed the performance, but I couldn't,
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actually discern if this was all about Drake or if there was
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like some subtext
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SPEAKER_01: where it was about Trump.
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And so I was like a little bit mystified about what it would do
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to the discourse,
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SPEAKER_01: but then Republic,
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SPEAKER_01: well,
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SPEAKER_01: many MAGA people just went full.
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SPEAKER_01: Oh, it was black people at the halftime show.
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SPEAKER_01: That must mean it was bad.
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SPEAKER_00: And I mean,
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so I think there was some sentiment that there are elements of
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the song and the
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SPEAKER_00: performance that reflect on the African-American experience in America.
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SPEAKER_00: I saw some progressive minded people saying that as well.
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I don't think it's I don't think it's like totally crazy of
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conservatives to see
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SPEAKER_00: like some political undertones in Kendrick's
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work um you know he's always been i would say i mean this is
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fucking stupid to
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listen to me about hip-hop but he's like he's like on the
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highbrow side of the
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spectrum of hip-hop artists right i mean he has a pulitzer
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prize for example right
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so a little different um from some other stuff you could do you
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know with all of
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SPEAKER_00: this right you know so
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SPEAKER_00: Trump comes in,
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SPEAKER_00: right,
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and he's got these orders about dismantling DEI programs in the
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federal government.
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I think there's like genuinely a lot of like woke racial
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politics that people are
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SPEAKER_00: sick of and that goes too far.
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SPEAKER_00: But also nobody can quite fully articulate, you know, the line, right?
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There's people like Richard Hanania who want to like repeal the
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Civil Rights Act.
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SPEAKER_00: there's people who want to say,
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SPEAKER_00: you know,
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having black musicians perform and like express things about
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the black experience
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in America is like exactly the same as saying like America is
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like a hellhole of
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SPEAKER_00: racism and,
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SPEAKER_00: you know,
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SPEAKER_00: has to be dismantled entirely.
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SPEAKER_00: And, you know, I think,
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Just like the cultural space is contested on multiple levels
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all the time,
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SPEAKER_00: like as culture,
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SPEAKER_00: right?
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And it's when the predominant forces of the state seem to be
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like leaning hard in
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SPEAKER_00: one direction,
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then certain kinds of like Hollywood stuff can strike a lot of
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people as like,
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SPEAKER_00: this is a bit much,
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SPEAKER_00: you know,
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SPEAKER_00: they're laying it out a bit too thick.
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So you were going to go in the direction of like the MAGA
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reaction to this is like
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SPEAKER_01: going to create a thermostatic backlash.
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SPEAKER_01: And I think I agree.
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SPEAKER_01: But what I plucked out of the response,
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SPEAKER_01: just like reading other people kind of aggregating it,
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SPEAKER_01: was I was less interested in the very predictable,
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SPEAKER_01: oh,
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SPEAKER_01: DEI halftime show.
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But it was the subset of like hardcore MAGA people who are
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Kendrick Lamar fans who
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SPEAKER_01: were like,
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SPEAKER_01: that was great.
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SPEAKER_01: Sure.
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SPEAKER_01: It's like what I took from it is that like the –
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SPEAKER_01: MAGA has to some actual extent diversified.
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SPEAKER_01: Uh-huh, yeah.
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And so it's picked up people who aren't just reflexively
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hostile to minorities and
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SPEAKER_01: minority prominence in the arts and so on.
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And that means to me that if Kendrick Lamar decided to go after
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Trump the way he
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SPEAKER_01: went after Drake,
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SPEAKER_01: he'd kind of-
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accentuate these divides like he'd bring them to the surface
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because some of these
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people would have they'd be like sort of divided in their
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loyalties right like who
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are they a bigger kendrick lamar fan or trump fan and so my
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like if kendrick if
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you're listening um orange man is a bitch and uh you should
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write a song about it
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um yeah i mean perhaps he will uh but you know i i think i
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think that there's like
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SPEAKER_00: a um
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a larger kind of story about maga's diversification right which
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is if you look at
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the obama coalition right he has a lot of people in it who are
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sort of committed
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SPEAKER_00: ideological liberals cosmopolitans you know anti-racist as an ideological
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commitment but you also have a lot of people who are they're
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just like they're
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SPEAKER_00: african-american or they're latino and a kind of expression of uh
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But in a different context would be conservative coded
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ethnocentricity puts them in
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SPEAKER_00: the Democratic Party coalition.
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SPEAKER_00: And some of what Trump did,
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SPEAKER_00: right,
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SPEAKER_00: was like martial anti-immigration backlash among people of color,
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SPEAKER_00: right,
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who are looking at new arrivals from Venezuela or wherever it
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is and being like,
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SPEAKER_00: these are not like my people,
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SPEAKER_00: you know?
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So I'm getting out more from Trump and I'm concerned about the
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price of groceries,
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SPEAKER_00: whatever else.
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The just like right-wing backlash to Kendrick Lamar and like to
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him having a
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SPEAKER_00: several performance is like a reminder that the –
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there's a very limited extent to which those people have in
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fact been welcomed into
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SPEAKER_00: the conservative political coalition in America.
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SPEAKER_00: The more you learn about conservative politics,
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the more you see why African-American and Latino moderates have
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tended to vote
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SPEAKER_00: Democratic in very,
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SPEAKER_00: very,
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SPEAKER_00: very heavy margins,
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even while white moderates have tended to vote Republican in
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small margins,
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SPEAKER_00: right?
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SPEAKER_00: I mean, that's like a...
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SPEAKER_00: The whole demographics is destiny concept hinges on,
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SPEAKER_00: like,
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SPEAKER_00: ideologically moderate people of color looking at this,
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SPEAKER_00: like,
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SPEAKER_00: racism-infused Republican Party and being like,
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SPEAKER_00: ugh.
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SPEAKER_00: Yeah.
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SPEAKER_00: And you see some of that there, right?
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Because it's not like,
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oh,
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I'm dumping a million asylum seekers on your neighborhood.
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SPEAKER_00: Like, literally all that happened—
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SPEAKER_00: is Kendrick Lamar did a halftime show.
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SPEAKER_00: And people are like, we can't have that.
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SPEAKER_00: You know, this is supposed to be Trump's America, country music only.
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SPEAKER_00: And like, nobody...
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SPEAKER_00: nobody wants like that level of political, cultural hegemony.
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SPEAKER_00: It's just like flipped, right?
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SPEAKER_00: Who's controlling the White House?
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SPEAKER_01: Yeah.
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SPEAKER_01: I mean,
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SPEAKER_01: I hope that this ends up bearing out in the like,
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SPEAKER_01: wait,
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this is not what we signed up for when we decided to take a
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flyer on Donald Trump.
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But like,
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I mean,
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I'm like a hardened ideologue relative to most Americans.
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SPEAKER_01: And I feel this sometimes too.
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SPEAKER_01: It's rare, but it happens.
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SPEAKER_01: I mean, obviously it's...
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SPEAKER_01: it's more common when you,
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SPEAKER_01: you get like antisemitism out of,
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SPEAKER_01: uh,
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SPEAKER_01: MAGA and right wing Americans and all that.
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SPEAKER_01: But recently,
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SPEAKER_01: um,
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SPEAKER_01: you know,
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SPEAKER_01: like I,
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SPEAKER_01: I,
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SPEAKER_01: I hear,
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SPEAKER_01: I've been hearing people on what you might call the MAGA right,
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SPEAKER_01: but even predating MAGA,
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SPEAKER_01: like Steve King in Congress talking about,
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SPEAKER_01: um,
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SPEAKER_01: like essentially brown skin,
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Latin American immigrants from Mexico and Central American and
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Colombian like is,
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SPEAKER_01: uh,
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SPEAKER_01: you know,
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SPEAKER_01: basically as animals is dirty.
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SPEAKER_01: Um, and it, I like,
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SPEAKER_01: Horribly bothered by that.
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SPEAKER_01: But just like a month ago when the LA fires were happening,
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SPEAKER_01: there was some Silicon Valley VC guy or something like that was like,
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SPEAKER_01: Chilean gangs must be setting these fires,
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SPEAKER_01: right?
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SPEAKER_01: That's like where my mom was from.
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SPEAKER_01: And it hit at a different level.
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SPEAKER_01: It's not like I voted for Trump and I'm like,
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SPEAKER_01: oh,
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SPEAKER_01: the leopard ate my face now and now I'm upset about it.
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SPEAKER_01: But when it's...
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SPEAKER_01: very clearly directed at you when,
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SPEAKER_01: when they take the smoke screen away and,
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SPEAKER_01: and stop pretending that this is about recent arrivals or whatever,
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SPEAKER_01: social security,
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SPEAKER_01: whatever,
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SPEAKER_01: like,
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SPEAKER_01: and it's just like,
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we have very strong negative feelings about people who look
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like you or come from
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SPEAKER_01: where you come from.
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SPEAKER_01: It is like,
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SPEAKER_01: it's a,
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SPEAKER_01: becomes a real challenge to the,
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SPEAKER_01: you know,
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SPEAKER_01: to the,
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SPEAKER_01: I would like to think to the,
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SPEAKER_01: to the people who are targeted.
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SPEAKER_01: Right.
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SPEAKER_01: And so, uh,
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SPEAKER_01: you know,
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SPEAKER_01: at the,
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at the pace that they're going with blaming basically every bad
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thing that happens
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SPEAKER_01: in the country on DEI,
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SPEAKER_01: right?
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SPEAKER_01: Like when it's clearly not.
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SPEAKER_01: And like,
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SPEAKER_01: as time goes on,
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SPEAKER_01: it'll be clearly more and more of just like,
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they're blaming their own failures on black people and women
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that this will,
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SPEAKER_01: um,
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SPEAKER_01: this will like,
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SPEAKER_01: affect public opinion in a, in a noticeable way.
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Like we'll start seeing the pendulum of diversifying MAGA swing
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back towards it
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SPEAKER_01: being like this crusty racist white movement.
11:43
SPEAKER_01: And that could, that would be good.
11:45
SPEAKER_01: Like we could use a bit of good news on that front.
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I mean,
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you know,
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I keep saying this to people as they,
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we did like a slow boring happy hour.
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SPEAKER_00: You know, I met a lot of readers.
11:55
SPEAKER_01: That's probably where I got this flu.
11:57
SPEAKER_00: People,
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People have like a lot of questions about what's going on and
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what's going to
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SPEAKER_00: happen in American politics.
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SPEAKER_00: And, you know, we're going to get into the more substantive stuff.
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SPEAKER_00: And,
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SPEAKER_00: you know,
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SPEAKER_00: one thing is that to be analytically rigorous about all these things,
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SPEAKER_00: the answer in a lot of cases is like,
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SPEAKER_00: I don't know.
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SPEAKER_00: And it's a little hard.
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SPEAKER_00: It's hard to say, right?
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Because you can see the signs and shoots of some different
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things coming,
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right?
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SPEAKER_00: It's like, is MAGA really ready to be a multiracial coalition?
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SPEAKER_00: The Super Bowl show indicated no.
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SPEAKER_00: Pete Hegseth today,
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SPEAKER_00: this morning,
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announced he's delivering on Trump's promise to re-rename Fort
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Bragg so that it
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SPEAKER_00: will be Fort Bragg again,
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SPEAKER_00: which had traditionally been named after Braxton Bragg,
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SPEAKER_00: a Confederate general.
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SPEAKER_00: But he's found some other guy named Bragg who served at Fort Bragg.
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SPEAKER_00: And so it's now going to be named after that guy.
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SPEAKER_00: So this is Hegseth trying to do it,
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SPEAKER_00: like trying to do the coalition management,
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where he's delivering a win to the people who didn't like the
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renaming drive,
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SPEAKER_00: but he's not actually rehabilitating,
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SPEAKER_00: you know,
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SPEAKER_00: lost Confederate generals.
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SPEAKER_00: Does this work?
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SPEAKER_00: I mean,
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these are all small things like tweets about the Super Bowl
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halftime show don't
13:18
SPEAKER_00: move politics that much.
13:20
SPEAKER_00: The name of one fort in Georgia doesn't move politics that much.
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But in the aggregate,
13:26
these kind of steps and measures,
13:28
you know,
13:28
are quite significant.
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SPEAKER_00: And it's it's
13:33
relatively easy when you're just doing like rat-a-tat executive
13:37
order rollout to
13:38
make sure you're like hitting your 70-30 issues like the
13:42
plastic straws and other
13:44
kinds of stuff like that the deeper you get into governance or
13:47
just events in the
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SPEAKER_00: world you know the nfl picks its super bowl show
13:53
SPEAKER_00: The president doesn't.
13:54
And then people have to decide what they think or say about
13:57
that kind of thing.
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SPEAKER_00: The president chose to attend the Super Bowl in person,
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SPEAKER_00: which presidents had not done previously.
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SPEAKER_00: He got loud cheers from supporters in the audience,
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SPEAKER_00: but he also received loud boos from detractors in the audience.
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Which is what you would expect if the president comes to a live
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sporting event.
14:15
And I think it's like maybe why presidents haven't done that traditionally.
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SPEAKER_00: It's like not as obvious a win as you think.
14:23
SPEAKER_00: The deeper you get into things, the more the difficulties start to arise.
14:27
SPEAKER_00: But we don't.
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SPEAKER_00: We don't know.
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SPEAKER_00: So,
14:30
SPEAKER_00: you know,
14:30
SPEAKER_00: a week ago,
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SPEAKER_00: Trump was doing all this stuff and it was like,
14:34
SPEAKER_00: well,
14:34
SPEAKER_00: a lot of this seems illegal.
14:36
SPEAKER_00: It seems like courts will probably say that it's illegal.
14:39
I mean,
14:40
just like fire off a bunch of illegal executive orders isn't like...
14:45
SPEAKER_00: a political masterstroke.
14:47
SPEAKER_00: People have probably floated that at one time or another in many,
14:51
SPEAKER_00: many,
14:51
SPEAKER_00: many White Houses and then been told,
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SPEAKER_00: well,
14:54
it's going to just be embarrassing to lose a lot of court cases
14:57
and then have to
14:57
tell our supporters we didn't actually deliver on what we said
15:01
we were going to deliver.
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SPEAKER_00: Trump went ahead very boldly,
15:05
and it's been clear from a lot of reporting on Doge's
15:09
interactions with the civil
15:10
SPEAKER_00: service that they are
15:12
Being informed,
15:14
you know,
15:14
by government attorneys,
15:15
like,
15:15
I don't think you can do this.
15:17
SPEAKER_00: I don't think you can do this.
15:18
SPEAKER_00: And they are being told,
15:19
SPEAKER_00: like,
15:19
SPEAKER_00: we,
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SPEAKER_00: it's not just teenage coders,
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SPEAKER_00: like they have attorneys as well on detail.
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And they're giving the opinion that like,
15:27
no,
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we're going to press forward with this.
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SPEAKER_00: And then
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SPEAKER_00: It is being litigated,
15:31
SPEAKER_00: which is not new,
15:32
SPEAKER_00: but it is,
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SPEAKER_00: you know,
15:34
for like executive actions to be litigated or to get
15:37
injunctions in court.
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SPEAKER_00: But we have more executive actions than presidents have done before,
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SPEAKER_00: more injunctions than has happened before.
15:45
SPEAKER_00: And J.D.
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SPEAKER_00: Vance tweeting that the government can ignore the courts.
15:51
But also what he said was that if courts tried to like enjoin
15:59
orders coming down
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SPEAKER_00: the military chain of,
16:01
SPEAKER_00: you know,
16:01
SPEAKER_00: he like,
16:03
SPEAKER_00: he didn't defend the specificity of what was going on.
16:06
SPEAKER_00: He created this like other hypothetical.
16:08
SPEAKER_01: So you did the transition.
16:10
Let's back up half a step and talk about like what happened and
16:13
why there's this
16:15
concern about whether we're in the realm of like open defiance
16:19
of court orders.
16:21
SPEAKER_01: I also just want to say,
16:22
SPEAKER_01: I'm pretty sure Fort Bragg,
16:23
SPEAKER_01: which then became something else,
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SPEAKER_01: and now it's Fort Bragg again,
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SPEAKER_01: is in North Carolina,
16:26
SPEAKER_01: not in Georgia.
16:27
SPEAKER_00: Okay, fair enough.
16:29
SPEAKER_00: It's the typical lib, doesn't know which states are which.
16:35
SPEAKER_01: doesn't know where military installations are located.
16:38
SPEAKER_01: So I,
16:39
SPEAKER_01: there've been a number of injunctions and some of them,
16:42
SPEAKER_01: you know,
16:42
SPEAKER_01: the question of,
16:43
is he going to violate a court injunction or temporary
16:45
restraining order was open.
16:47
SPEAKER_01: Cause like the birthright citizenship order has been enjoined,
16:50
SPEAKER_01: but also the order is written was meant to take effect later this month.
16:54
SPEAKER_01: So in like,
16:56
SPEAKER_01: by holding the status quo,
16:59
SPEAKER_01: it's like consistent with either obeying the order or disobeying it.
17:03
SPEAKER_01: Well,
17:03
SPEAKER_01: We'll have to see, I guess, as that date gets closer.
17:06
SPEAKER_01: But a different judge issued a temporary restraining order limiting the
17:13
SPEAKER_01: transmission of sensitive Treasury Department documents,
17:17
SPEAKER_01: basically,
17:18
SPEAKER_01: so that Doge couldn't just invade everyone's privacy,
17:21
SPEAKER_01: yada,
17:21
SPEAKER_01: yada,
17:22
SPEAKER_01: yada.
17:25
SPEAKER_01: I don't know if it started with lies or like a genuine misinterpretation,
17:29
SPEAKER_01: but as I read it,
17:30
a lot of Republicans became convinced or just decided to say
17:33
that this order
17:35
essentially forbade the treasury secretary from being provided
17:40
any of this information,
17:41
SPEAKER_01: which the order did not say that,
17:43
SPEAKER_01: right?
17:44
SPEAKER_01: And so J.D.
17:46
SPEAKER_01: Vance's response was,
17:48
SPEAKER_01: could be read one of two ways.
17:50
SPEAKER_01: I'm ready to have a legitimation crisis here in the United States,
17:55
SPEAKER_01: or it could be like there is a,
17:58
There is a point at which an injunction against a president has
18:05
to be ignored
18:05
SPEAKER_01: because it could be a judge saying,
18:08
SPEAKER_01: ordering certain battlefield movements in a war.
18:12
That would violate other provisions of the constitution and a
18:17
president would have to,
18:18
SPEAKER_01: as a practical matter,
18:20
SPEAKER_01: treat that as advisory and carry out a military strategy.
18:25
SPEAKER_01: And that was the,
18:27
like he analogized a judge saying that a treasury secretary
18:30
can't access treasury
18:31
SPEAKER_01: department information to that.
18:34
SPEAKER_01: And I have to say like,
18:41
It gets really tough because I don't think that there's any
18:46
real limiting principle here.
18:47
SPEAKER_01: There are other orders that the administration is supposed to abide by,
18:53
SPEAKER_01: such as that they not unilaterally cut NIH reimbursements.
18:59
SPEAKER_01: And a judge on Monday said,
19:03
SPEAKER_01: yo,
19:04
the challengers here brought information to me that suggests
19:06
you're violating my order,
19:07
SPEAKER_01: so you need to get right with it now.
19:09
SPEAKER_01: And alluded to the possibility that,
19:11
SPEAKER_01: obviously not the president,
19:12
but people carrying out violations of the order could be
19:16
imprisoned for it.
19:18
SPEAKER_01: And so it's not just these intra-departmental communications that the
19:24
SPEAKER_01: administration is violating or contemplating violating.
19:27
SPEAKER_01: It's a wider range of things.
19:30
SPEAKER_01: And also,
19:32
SPEAKER_01: if you had a basically lawful administration,
19:34
which I think the Biden administration was basically a lawful administration,
19:38
And they encounter a particular judge who happens to be
19:42
particularly corrupt,
19:44
SPEAKER_01: like Eileen Cannon.
19:45
SPEAKER_01: She says,
19:47
Justice Department has to bury the special counsel Jack Smith
19:51
report and can't even
19:52
SPEAKER_01: transmit the document outside of DOJ.
19:55
Then I think between the reach of the order,
19:59
the obvious cover up,
20:01
the fact that
20:04
The Supreme Court has said presidents are immune from criminal
20:07
prosecution in most cases.
20:09
SPEAKER_01: Militates for Biden to say, I'm ignoring that order.
20:13
SPEAKER_01: Let's have the document.
20:14
The public deserves to see it as like an exception to the rule
20:16
that we follow court orders.
20:19
And that strikes me as different in kind from what the Trump
20:22
administration is
20:23
SPEAKER_01: currently talking about doing or maybe actually doing,
20:27
SPEAKER_01: which is broad spectrum.
20:29
SPEAKER_01: The courts are too much in our way and we don't like it.
20:32
SPEAKER_01: And it's tough because to be consistent,
20:37
SPEAKER_01: there will be pressure to abstract away the situational things.
20:41
And is this on its face the same thing as what I was arguing a
20:45
few months ago that
20:45
SPEAKER_01: Biden should do?
20:47
SPEAKER_01: am I just a hypocrite?
20:48
And I just like,
20:49
I've already backed myself into this,
20:51
like,
20:52
no,
20:52
the contexts are different.
20:53
SPEAKER_01: And so that would have been fine.
20:55
SPEAKER_01: And this is a crisis,
20:56
SPEAKER_01: but I really do think that,
20:57
SPEAKER_01: um,
20:58
SPEAKER_01: that it's like,
20:59
SPEAKER_01: if,
21:00
SPEAKER_01: if you can sit through a,
21:01
SPEAKER_01: an hour long podcast and hear the explanation,
21:04
SPEAKER_01: um,
21:04
SPEAKER_01: it,
21:04
SPEAKER_01: it like really is a very different kind of thing.
21:08
SPEAKER_01: And obviously like Joe Biden didn't listen to me and,
21:11
SPEAKER_01: and order the release of the Jack Smith report,
21:12
SPEAKER_01: which is why we don't have it.
21:13
SPEAKER_01: But, um,
21:15
SPEAKER_01: But we are going to find out maybe today whether at the end of the day,
21:20
SPEAKER_01: this is all bluster from J.D.
21:22
Vance and also Elon Musk and whether like the people at DOJ are
21:26
basically like,
21:28
you're putting us in an impossible spot here and you're going
21:30
to lose the whole
21:31
department if you make us continue violating illegal orders or
21:36
violating lawful orders.
21:37
SPEAKER_00: Okay,
21:38
so I think two pieces of like broader context that are relevant
21:41
to understanding
21:43
SPEAKER_00: what is the scope of the crisis that we are undertaking.
21:49
SPEAKER_00: One is there's been a trend across the past,
21:53
SPEAKER_00: starting really Obama's second term,
21:55
SPEAKER_00: but then tit for tat across Obama,
21:57
SPEAKER_00: Trump,
21:58
SPEAKER_00: Biden,
21:58
SPEAKER_00: Trump,
21:59
SPEAKER_00: of district court judges becoming increasingly bold in issuing nationwide
22:06
SPEAKER_00: injunctions against presidential executive actions.
22:10
SPEAKER_00: And a lot of people have opined at one point or another,
22:15
SPEAKER_00: law professors,
22:16
SPEAKER_00: et cetera,
22:16
SPEAKER_00: that there's something that doesn't make sense about this.
22:20
Like by design,
22:22
there are a lot of district court judges in the United States
22:25
of America.
22:26
SPEAKER_00: Also by design,
22:27
the district court judges have a range of different like
22:30
political views and allegiances.
22:33
SPEAKER_00: And so the ability for literally anything that any president does,
22:38
SPEAKER_00: basically,
22:39
you can forum shop to some court that you are reasonably
22:43
confident will enjoin you.
22:46
SPEAKER_00: And so we've created a situation where de facto, like the real court,
22:52
SPEAKER_00: litigation is the appeal to the circuit court.
22:56
Not that like the circuit courts are necessarily all on the
22:58
level or anything like that,
22:59
but just that like the plaintiff like always wins at the
23:03
district court level
23:05
SPEAKER_00: because you venue shop so aggressively.
23:08
SPEAKER_00: So can I bring in real briefly?
23:10
SPEAKER_01: Cause I, I mean, I, I, this is all correct.
23:13
SPEAKER_01: And like,
23:14
SPEAKER_01: I do think that there is,
23:16
if you could have a good faith negotiation with an
23:18
administration like Trump's,
23:20
You could say like Democrats and Republican leaders and Trump
23:23
could get together
23:24
SPEAKER_01: and say,
23:25
we're going to create new law that limits the injunctive power
23:30
of federal district courts.
23:32
SPEAKER_01: But it's not going to take effect until 2029 or.
23:34
SPEAKER_00: Sure.
23:35
SPEAKER_00: Yes, there's a lot.
23:36
SPEAKER_00: I'm just I'm just I'm just.
23:36
But but but it like one thing that I said about the difference
23:41
between the like.
23:42
SPEAKER_01: The judging is that,
23:44
SPEAKER_01: yes,
23:44
SPEAKER_01: both parties forum shop,
23:46
SPEAKER_01: but it just is the case,
23:48
SPEAKER_01: and it's really hard to prove to somebody who's new to the topic that the
23:53
SPEAKER_01: Republican-appointed judges on the bench are more ideologically –
24:01
SPEAKER_01: hidebound,
24:02
SPEAKER_01: they're more partisan,
24:03
and there's more corruption among them than of liberal judges
24:08
appointed by
24:09
SPEAKER_01: Democratic presidents.
24:10
SPEAKER_01: I can't in this podcast...
24:14
SPEAKER_01: make a thoroughgoing argument.
24:15
SPEAKER_01: It would take me at least a couple thousand words, but it is true.
24:18
And so that imbalance means that when you have a bunch of
24:22
injunctions coming up
24:23
SPEAKER_01: against Trump,
24:24
SPEAKER_01: it is a fair inference to assume that there's a lot of law breaking.
24:27
But when there's a bunch of injunctions hitting Joe Biden,
24:31
it's not a safe bet.
24:32
This is where the second,
24:35
I think,
24:36
piece of relevant context comes in,
24:38
which is that
24:40
SPEAKER_00: Not everything Trump is doing,
24:42
but a large array of Trump administration undertakings are
24:48
plainly illegal under
24:50
the terms of the Impoundment Control Act that was enacted
24:54
during the Nixon
24:55
administration in a way that I don't think is actually that controversial.
25:00
SPEAKER_00: Because if you look at the Project 2025 documentation,
25:03
SPEAKER_00: Russell Vaughn's statements,
25:04
SPEAKER_00: et cetera,
25:05
SPEAKER_00: what they all say
25:07
is that their position is that the Empowerment Control Act is unconstitutional,
25:12
right?
25:13
SPEAKER_00: So to a large extent,
25:15
like what I might characterize as flagrant lawbreaking by the
25:21
Trump administration
25:22
SPEAKER_00: is
25:26
SPEAKER_00: is flagrant law.
25:27
SPEAKER_00: You know,
25:28
it's lawbreaking in the sense of the Trump administration is
25:31
deliberately challenging,
25:33
SPEAKER_00: not per se the authority of district courts,
25:35
SPEAKER_00: but the legitimacy of this statute that was passed in the Nixon era.
25:41
So in terms of assessing,
25:42
like,
25:42
what is our,
25:43
like,
25:43
degree of constitutional law?
25:45
SPEAKER_00: crisis-ness that we're at, right?
25:49
SPEAKER_00: It's like,
25:49
SPEAKER_00: to an extent,
25:51
we need to see how the litigation continues to develop over the
25:55
next weeks and months.
25:59
SPEAKER_00: Like one possible outcome here,
26:02
SPEAKER_00: the most extreme possible outcome,
26:04
is that most of these district court injunctions are upheld by
26:08
circuit courts,
26:08
SPEAKER_00: right?
26:10
SPEAKER_00: Sometimes with one Republican judge dissenting,
26:13
SPEAKER_00: saying like,
26:14
we think the Empowerment Control Act will be overturned by the
26:17
Supreme Court.
26:19
SPEAKER_00: Then it goes to the Supreme Court,
26:21
SPEAKER_00: which five to four says,
26:22
SPEAKER_00: no,
26:23
SPEAKER_00: like the Empowerment Control Act is perfectly constitutional.
26:26
They cite the court that struck down the line item veto,
26:29
et cetera,
26:30
right?
26:31
I think they'd say like that it's almost like a redundant
26:34
statute because the
26:35
SPEAKER_01: Constitution reserves this power to Congress in the first place,
26:38
SPEAKER_01: right?
26:39
SPEAKER_00: And then Trump blows that off.
26:41
SPEAKER_00: Like, that's like 10 out of 10 constitutional crisis.
26:46
SPEAKER_00: you know what I mean?
26:47
SPEAKER_00: But we're not there yet because the litigation isn't there yet.
26:51
And like Vance,
26:52
you know,
26:52
like Vance is such a,
26:54
such a Twitter troll,
26:55
right?
26:55
SPEAKER_00: So it's like,
26:56
SPEAKER_00: he said they should defy the court order,
26:59
SPEAKER_00: but he also just like mischaracterized what the order said.
27:03
SPEAKER_00: So like the literal,
27:04
literal text of the tweet is that had the court ruled something
27:08
other than what the
27:09
SPEAKER_00: court ruled,
27:10
SPEAKER_00: you would defy that.
27:12
SPEAKER_00: And
27:14
Typical politicians have the view that you want to be as
27:20
reassuring as possible.
27:22
Obama would spend a trillion dollars and overhaul every
27:28
regulation pertaining to
27:30
SPEAKER_00: the healthcare sector,
27:31
SPEAKER_00: which is 17% of the economy.
27:33
And he'd come up there and be like,
27:34
we're just doing some common sense reforms.
27:36
SPEAKER_00: Yeah.
27:37
SPEAKER_00: You know, it's like actually like quite dramatic policy change.
27:40
SPEAKER_00: And then Biden up there, hot mic, is like, this is a big fucking deal.
27:43
SPEAKER_00: Right.
27:44
SPEAKER_00: And like part of the reason that's famous is that like in a weird way,
27:46
like wasn't the Obama administration's stated line on the
27:50
Affordable Care Act.
27:51
SPEAKER_00: Trump is.
27:53
And Vance and,
27:53
like,
27:54
most of this team are 180 degrees opposite from that,
27:57
right?
27:57
SPEAKER_00: Like,
27:58
they will issue an executive order about straws that has no
28:01
legal impact because
28:02
SPEAKER_00: the federal government has no authority over local straw regulations.
28:06
SPEAKER_00: And, like, to a press event and, like, we're liberating the universe.
28:10
SPEAKER_00: Like, this is the biggest deal that's ever come out there.
28:13
They really enjoy,
28:14
like,
28:14
making the libs spin out and then being like,
28:17
lol,
28:17
gotcha.
28:18
SPEAKER_00: So...
28:20
SPEAKER_00: I don't know.
28:21
But what I think we will talk about in the future is that this
28:26
necessarily piles up
28:28
SPEAKER_00: to the ongoing negotiations about federal spending because the Trump
28:34
administration's view is that they shouldn't spend money on
28:38
things that they
28:39
SPEAKER_00: disagree with.
28:41
But like the premise of a bipartisan appropriation bill is that
28:46
money is spent that
28:48
SPEAKER_00: some people don't think should be spent.
28:51
SPEAKER_00: Like if it wasn't,
28:53
you can't have a bipartisan appropriation without the president
28:58
agreeing to spend
28:59
SPEAKER_00: money that he doesn't think should be spent.
29:02
Because if he doesn't,
29:05
like there's actually nothing to negotiate over,
29:08
right?
29:08
SPEAKER_00: It's like, if you and I have a deal that
29:11
But then my reading is I don't need to do the parts of the deal
29:14
that I don't agree with.
29:15
SPEAKER_00: Like that's not a deal.
29:16
SPEAKER_01: I basically agree with this whole spiel.
29:21
It's tough because without a consensus and like statutory
29:26
agreement about the reach
29:27
SPEAKER_01: of federal district court power,
29:30
SPEAKER_01: it's not that like –
29:33
SPEAKER_01: It's only an eight out of 10 when they violate a district court order,
29:36
SPEAKER_01: and then a nine out of 10 when it's an appellate court order,
29:38
SPEAKER_01: and then 10 out of 10 when it's a Supreme Court order.
29:40
SPEAKER_01: What they're claiming is immunity from a contempt fight from a court,
29:47
and that basically you want to have a shootout between the
29:51
marshals and the Secret
29:52
SPEAKER_01: Service or the Treasury security,
29:54
SPEAKER_01: whatever.
29:54
SPEAKER_01: Yeah.
29:56
SPEAKER_01: Who does defend Treasury?
29:57
SPEAKER_01: Probably Secret Service.
30:01
That's the nature of the crisis,
30:03
is that when there's no limit to the order...
30:09
SPEAKER_01: defiance, right?
30:10
It's not just that that means that they're going to assert
30:13
essentially line item veto authority.
30:14
SPEAKER_01: It means that there is no way to...
30:20
SPEAKER_01: They will outrun the legal process and create law,
30:26
SPEAKER_01: even if at the end of the day,
30:27
SPEAKER_01: the Supreme Court says,
30:28
SPEAKER_01: hey,
30:29
SPEAKER_01: that was all illegal.
30:30
SPEAKER_01: They can say, all right, we're going to get right with the law now.
30:33
SPEAKER_01: But it's like too late.
30:34
SPEAKER_01: Like if USAID has to wait two years,
30:36
SPEAKER_01: I think USAID is probably permanently fucked after like a week.
30:41
But it's definitely going to be fucked if this status quo holds
30:45
for two years or
30:46
SPEAKER_01: however long it takes.
30:46
SPEAKER_00: No, no, no.
30:47
SPEAKER_00: I mean, I agree.
30:48
SPEAKER_00: And, you know, look-
30:51
SPEAKER_00: Uh, famously, if you take AP U.S.
30:55
history,
30:56
you know,
30:56
they will tell you about Andrew Jackson and the Trail of Tears.
31:01
SPEAKER_00: And,
31:02
SPEAKER_00: you know,
31:03
John Marshall and the Supreme Court ruled that he could not
31:07
forcibly remove
31:08
SPEAKER_00: Cherokee Indians from Georgia.
31:10
SPEAKER_00: I think this time I'm getting Georgia correct.
31:12
SPEAKER_00: Yeah, I think so too.
31:13
SPEAKER_00: I don't fucking know.
31:14
SPEAKER_00: You know,
31:15
SPEAKER_00: and Jackson famously said,
31:18
SPEAKER_00: you know,
31:18
SPEAKER_00: Mr.
31:18
SPEAKER_00: Marshall has made his ruling,
31:19
SPEAKER_00: now let him enforce it.
31:21
SPEAKER_01: Apocryphally, not famously.
31:23
SPEAKER_00: Apocryphally.
31:24
SPEAKER_00: Anyway, so interestingly, like that both happened.
31:27
SPEAKER_00: Like we-
31:30
if we were potting at the time,
31:32
we'd be like,
31:32
the constitutional crisis has arrived,
31:34
you know?
31:35
SPEAKER_00: Has to arrive.
31:37
Jackson is a dictator now,
31:39
which like he was,
31:40
like the rule of law broke down.
31:43
SPEAKER_00: There was, I don't want to make light.
31:44
SPEAKER_00: I was joking around before,
31:46
SPEAKER_00: but I mean,
31:46
SPEAKER_00: this is,
31:47
SPEAKER_00: you know,
31:47
SPEAKER_00: like large scale ethnic cleansing took place in a lawless manner.
31:52
SPEAKER_00: And yet it is also true that like the constitutional republic
31:56
SPEAKER_00: in a way persisted for like 15 more years or whatever,
32:01
SPEAKER_01: you know,
32:01
SPEAKER_01: and then,
32:02
SPEAKER_01: and then it fell apart.
32:03
SPEAKER_01: And like, you know, there's a lot of ups and downs.
32:06
I find myself increasingly thinking that like the only
32:09
peaceable way out of the
32:10
SPEAKER_01: situation we're in is going to require like another,
32:12
SPEAKER_01: uh,
32:13
SPEAKER_01: like series of amendments to the constitution.
32:16
SPEAKER_01: Um,
32:16
SPEAKER_00: Yeah, I don't know.
32:18
SPEAKER_00: I mean,
32:19
SPEAKER_00: I guess my point about Jackson,
32:22
my point about all these things is like I don't want to overly
32:29
proclaim about the
32:32
SPEAKER_00: broad implications.
32:33
Or I think about the George W.
32:34
Bush administration,
32:35
you know,
32:36
which had a –
32:39
They were under a court order for the EPA to do a scientific
32:43
assessment of whether
32:44
or not greenhouse gas emissions cause harm to humans under the
32:49
terms of the Clean
32:50
SPEAKER_00: Air Act.
32:52
they did not opt to ignore this court order because it came
32:55
from the Supreme Court
32:56
SPEAKER_00: and that would be 10 out of 10 constitutional crisis.
32:59
SPEAKER_00: They also did not like go doge on it.
33:02
Like they could have just tried to like fire every scientist
33:04
until they found some
33:05
SPEAKER_00: people who would claim that climate change is fake or something,
33:09
SPEAKER_00: but they didn't do that.
33:10
SPEAKER_00: So the scientists compelled their report.
33:13
SPEAKER_00: They said there are real human harms.
33:15
And the next step is we should do like an economic analysis to
33:19
quantify the harms and
33:20
And they notified the Office of Information and Regulatory
33:24
Affairs at OMB of this finding,
33:27
SPEAKER_00: which is how the regulatory process is supposed to work.
33:29
And so then famously,
33:30
the Bush White House's solution to this was to not open the email.
33:34
SPEAKER_00: Right.
33:35
SPEAKER_01: This was like very near the end of the
33:38
SPEAKER_00: Yes.
33:38
And so they had a good reason to believe that like the next
33:41
president will just deal with this.
33:42
It was it was late enough in the administration that you never
33:46
got to litigate.
33:47
SPEAKER_01: Yeah.
33:48
SPEAKER_00: Right.
33:48
SPEAKER_00: So had Bush just continued to be president.
33:52
SPEAKER_00: Right.
33:52
You would have had another court case that's like,
33:54
no,
33:55
OMB has to open the email.
33:57
SPEAKER_00: Right.
33:58
SPEAKER_00: Yeah.
33:58
SPEAKER_00: Right.
33:59
And then would have taken like a long time for that to develop
34:02
the whole thing
34:02
completely ridiculous because it happened at the end of the administration.
34:05
And then because Obama won and they just like open the email,
34:09
it was like surprise.
34:10
SPEAKER_00: It says climate change is real.
34:11
SPEAKER_00: We then got to like the actual political dispute,
34:14
SPEAKER_00: which has been ongoing ever since then,
34:16
SPEAKER_00: which is like,
34:17
SPEAKER_00: what is the social cost of carbon?
34:18
SPEAKER_00: which is technical and boring, but, but also very consequential.
34:22
SPEAKER_00: And so like Obama said, it was $50 a ton.
34:25
SPEAKER_00: Trump said it was seven.
34:27
SPEAKER_00: Biden said, I think it was two 12.
34:29
SPEAKER_00: Um, and now, now Trump wants to go to zero.
34:31
SPEAKER_00: I, and I don't totally understand why he wasn't satisfied with seven.
34:34
SPEAKER_00: There's a good Cass Sunstein op-ed about this in the post.
34:38
SPEAKER_00: Um, but Bush also like, um,
34:45
had telecommunication companies hand over bulk surveillance
34:52
metadata to the
34:53
SPEAKER_00: National Security Agency without a warrant.
34:56
SPEAKER_00: you know, like in secret.
34:59
SPEAKER_00: And it came out that this had happened at a certain point.
35:03
SPEAKER_00: There was a bit of an uproar about it.
35:07
But then Congress eventually decided to retroactively immunize
35:13
the telecom
35:14
SPEAKER_00: companies against lawsuits.
35:17
SPEAKER_00: So you couldn't sue them for having complied with this illegal order.
35:22
SPEAKER_00: Yeah.
35:44
SPEAKER_00: You know what I mean?
35:47
SPEAKER_00: It didn't cascade forward into a collapse of the world of law.
35:51
SPEAKER_01: I think the subtext of what you're saying,
35:53
and I will air a small misgiving about it on the other side of
35:57
the paywall,
35:58
is that if we wake up tomorrow and we're in fully breaching
36:03
court order territory,
36:06
SPEAKER_01: that you don't necessarily think that that's grounds for mass freakout.
36:11
SPEAKER_01: And-
36:12
I will explain why I don't totally agree on the other side of
36:16
the paywall.
36:17
If you want to hear that,
36:19
go to politics.fm and upgrade your subscription.