Latest / rationally BASED / Episode 43 | Guns, Religion, and Immigration: The Rules Just Changed

Transcript

Episode 43 | Guns, Religion, and Immigration: The Rules Just Changed · rationally BASED

0:00
SPEAKER_01: Welcome back to Rationally Based, a podcast about law and politics on the edge.
0:03
SPEAKER_01: I'm Elon Werman, a law professor at the University of Minnesota Law School.
0:07
SPEAKER_01: I'm Josh Kreinfeld, Rause Professor of Law at Scalia Law School.
0:11
SPEAKER_00: And I'm Catherine Johnson with Center of the American Experiment.
0:14
SPEAKER_01: Catherine, what's on deck?
0:16
SPEAKER_00: Well, today's episode is all about the Office of Legal Counsel, also known as the OLC.
0:21
SPEAKER_00: It's a group of executive branch lawyers in the DOJ.
0:25
SPEAKER_00: And the Trump OLC has been churning out some really interesting opinions.
0:28
SPEAKER_00: So we are going to cover three of those today.
0:31
SPEAKER_00: The first, must states receiving federal welfare funds disclose any illegal immigrants of which they have knowledge?
0:38
SPEAKER_00: Seems obvious to me.
0:40
SPEAKER_00: And now the OLC agrees that the answer is yes.
0:43
SPEAKER_00: Second, OLC has concluded that the federal ban on selling handguns to 18 to 20 year olds is unconstitutional and the president shouldn't enforce it.
0:51
SPEAKER_00: And third, we'll talk about the OLC's recent memo on the establishment of religion.
0:56
SPEAKER_00: Can religious organizations performing charitable work get government grants just like secular organizations?
1:02
SPEAKER_00: Biden said they're barred because they're religious, but Trump's OLC disagrees.
1:07
SPEAKER_01: We'll also briefly talk about the news out of France and all those protests.
1:11
SPEAKER_01: So with that, let's dive in.
1:34
SPEAKER_01: There's always room for more reviews and ratings on Apple and Spotify.
1:38
SPEAKER_01: So please, it is so important at this early stage, and we so appreciate our tremendous loyal audience.
1:44
SPEAKER_01: So please hit that like and subscribe button, leave us that rating and review.
1:47
SPEAKER_01: And with that, where should we start?
1:49
SPEAKER_01: France, Josh?
1:50
SPEAKER_02: Let's start with France.
1:52
SPEAKER_01: So why don't you set up what's going on there?
1:54
SPEAKER_01: In the last episode, you coined the new term civic terrorism.
1:58
SPEAKER_01: Uh, is that what's going on in France?
2:01
SPEAKER_02: I, you know, this timing is wonderful because we see the media calling these these this violence, this you know, street violence, this burning of 16th century buildings.
2:14
SPEAKER_02: Did you know that 2,000 police officers in France were injured last week?
2:21
SPEAKER_02: Okay, 2,000.
2:23
SPEAKER_02: Like, like you think about like January 6th.
2:25
SPEAKER_00: That's gotta be like all of them, right?
2:27
SPEAKER_00: In France, I mean.
2:28
SPEAKER_02: I don't know how many they have, but I mean have they abolished the police there yet?
2:33
SPEAKER_01: I mean, I don't know.
2:34
SPEAKER_01: French could be, you know.
2:35
SPEAKER_02: We if you look at our BLM uh protests or riots or whatever it is, or or um January 6th, you know, for um they the media makes a huge thing about the injuries to police, and maybe rightly so, but guess what?
2:49
SPEAKER_02: We're talking about 2,000 in France.
2:52
SPEAKER_02: This is mass street violence.
2:54
SPEAKER_02: And guess what?
2:54
SPEAKER_02: You look at the media, they're calling it protests.
2:58
SPEAKER_00: CNN actually did peaceful protests against the police.
3:04
SPEAKER_02: Have you noticed this new term they're rolling out scuffle?
3:07
SPEAKER_02: If there's violence, they call it a scuffle.
3:10
SPEAKER_02: Like like we would talk about kids on the playground, like my my kids got in a scuffle.
3:15
SPEAKER_02: And it's just it's just a it's just uh it's just a flesh wound.
3:19
unknown: Right.
3:19
SPEAKER_02: But even on your arm off.
3:21
SPEAKER_02: Like Monty, Monty Python.
3:23
SPEAKER_02: But even the right-wing media outlets are kind of suffering because they don't have the right terminology.
3:29
SPEAKER_02: So they say these are violent protests, or at best, maybe they say these are riots, which is pretty good.
3:36
SPEAKER_02: But actually, riots don't just quite capture it because it sounds so spontaneous, and these turn out to be very organized.
3:42
SPEAKER_02: So we coined the term last episode, civic terrorism.
3:46
SPEAKER_02: And it is just the word that the media needs, that the public needs to talk with clear heads and clear minds about what we're seeing in France, civic terrorism.
3:58
SPEAKER_01: And before the episode, Catherine, you were telling me that it was actually financed by some foreigner over there.
4:02
SPEAKER_01: So it really is organized.
4:04
SPEAKER_01: Was there some report about that that you read?
4:06
SPEAKER_00: Yeah, I think it was Fox News that did a report into who is financing, you know, all of these riots, all of this civic terrorism.
4:13
SPEAKER_00: And it's interesting because the reporting you hear, I think mostly out of France, is that these are student groups and they're mad about things like I don't know, they don't have enough money for their books and things.
4:24
SPEAKER_00: I mean, it's really absurd.
4:27
SPEAKER_00: Okay, right.
4:28
SPEAKER_00: So now they're burning down ancient buildings.
4:30
SPEAKER_00: Makes total sense.
4:31
SPEAKER_00: But Fox News did this great report and pointed out that of the groups involved, the majority of them are adult-led groups anyway.
4:38
SPEAKER_00: So kind of destroys that narrative.
4:39
SPEAKER_00: And in addition to that, um, it's being financed by some rich guy living over in, what was it, Shanghai, and sending money across the world to fund this terrorism.
4:51
SPEAKER_00: Which my question is, how do you get away with that?
4:54
SPEAKER_00: Is that just a life hack?
4:55
SPEAKER_00: Like, if I want to do some evil stuff, should I just like go hide out somewhere and, you know, be a rich, evil person who tries to control and I'm safe?
5:04
SPEAKER_00: I'm safe from every government, any kind of consequence?
5:08
SPEAKER_02: Well, you know, there's some really interesting legal aspects to this.
5:12
SPEAKER_02: So, like, based on the Fox News report that just came out, Fox News uh investigative reporting, they've identified 101 organizations supporting the riots and sort of sponsoring them and paying for them, all those black hoodies and the weapons and the undergirding organization.
5:28
SPEAKER_02: You know, it takes organizations to lead to that kind of um kind of sustained uh uh attacks.
5:36
SPEAKER_02: Um, of those, 33 are student organizations, uh, many of them Islamic student organizations, 68 are adult-led organizations.
5:44
SPEAKER_02: They're not student at all, they're left-wing communist organizations.
5:48
SPEAKER_02: They're known as the Red-Green Alliance in France.
5:51
SPEAKER_02: Green is symbolically the color of Islam, red is the symbolic color of communism.
5:56
SPEAKER_02: So the Red-Green Alliance has been a major force in European politics and particularly French politics.
6:02
SPEAKER_02: These riots are mostly adult, Red-Green Alliance, and they're funded by international nonprofits.
6:09
SPEAKER_02: Um and you were referring to the American-born Marxist tech billionaire named Neville Singham, who operates in Shanghai.
6:19
SPEAKER_02: He was born in America, he lives in Shanghai, and he funds international terrorism.
6:23
SPEAKER_02: And there's, and by the way, this isn't just them, this is us, right?
6:27
SPEAKER_02: The college campus um violence in the wake of October 7th, it was disclosed by Biden's, I think it was a national security advisor, uh, that uh uh those were partly funded by Iran, right?
6:42
SPEAKER_02: Not just international organizations, but actually maligned foreign state actors, right?
6:48
SPEAKER_02: We saw the same thing with the BLM uh uh uh events in this country.
6:53
SPEAKER_02: And what I want to say is there's a legal aspect to it.
6:56
SPEAKER_02: Um many people in our legal community say that kind of thing is protected by the First Amendment.
7:01
SPEAKER_02: You know what's not protected by the First Amendment?
7:05
SPEAKER_02: International flows of funds to organizations to put out civic terrorism in the streets and even uh left-wing, anti-Israel, anti-American messages.
7:18
SPEAKER_02: I mean, I think that when you're dealing with foreign funds, it's it should be uh constitutionally the executive's power to stop them at the borders.
7:26
SPEAKER_02: And there are some precedents that are unfavorable to that, but I think they mistake the First Amendment.
7:31
SPEAKER_01: So, what's the difference between money in elections and you know financial interference in like social unrest and social protest?
7:39
SPEAKER_01: And I say, I think you, Josh, are consistent.
7:42
SPEAKER_01: You actually don't think uh that the First Amendment shields, you know, campaign finance um from the influence of money in politics.
7:49
SPEAKER_01: Uh, and so I think you are actually consistent on that view.
7:52
SPEAKER_01: It's the left that's inconsistent.
7:53
SPEAKER_01: They really care about the influence of money in politics, but they couldn't care less about all this foreign money and this foreign interference in the culture and the society because one money, one set of monies is left wing and the other set of monies is right wing.
8:06
SPEAKER_01: Is it all hypocrisy on the left?
8:09
SPEAKER_02: I I think the way to think about the First Amendment is um this is about Americans talking to one another about their culture, their politics, their values, their lives together.
8:22
SPEAKER_02: It does not protect foreign speech and it doesn't have anything to do with money.
8:26
SPEAKER_01: Well, the last thing I'll say about, I mean, I guess I'll say two things uh about this.
8:30
SPEAKER_01: Uh the first is we talk a lot about this, uh, about immigration on this show.
8:36
SPEAKER_01: And we try to focus on the legal aspects of immigration because it's just such a big part of what the judiciary uh is doing and they're thwarting, you know, they're trying to thwart the Trump administration's immigration policy.
8:46
SPEAKER_01: But obviously the Trump administration thinks immigration is really important.
8:49
SPEAKER_01: I got in some hot water some weeks, you know, months ago for having the audacity to say uh what everyone believed even 10 years ago.
8:57
SPEAKER_01: I missed the train when this changed, apparently, which is that not all, you know, that culture is related to capacity for constitutional self-government.
9:05
SPEAKER_01: Uh, and therefore immigration has to be done right, it has to be done in moderate amounts, it has to be done with assimilation.
9:11
SPEAKER_01: And I think France shows you that that's right, right?
9:14
SPEAKER_01: Uh what happens.
9:15
SPEAKER_01: Obviously, there's a homegrown element there, the communists are homegrown element.
9:19
SPEAKER_01: Uh, but the immigration uh without assimilation, the banlieue, the no-go zones in France, where they literally have not assimilated.
9:25
SPEAKER_01: It's why the French people and the French police don't go there, because they're effectively these foreign enclaves that haven't assimilated.
9:33
SPEAKER_01: And I think France is a warning uh sign.
9:36
SPEAKER_01: And the last thing I'll say is this really shows how easy it is to tear things down.
9:40
SPEAKER_01: And it's much harder to build.
9:43
SPEAKER_01: Uh, I do think that uh, you know, we talk about higher education on this podcast a lot.
9:47
SPEAKER_01: And, you know, I have some days where I think, uh, you know, we should burn all those institutions down.
9:51
SPEAKER_01: And I say half half flippantly and half seriously, but but you know, conservatives really are also trying to build it, you know, to replace them.
10:01
SPEAKER_01: Look at the University of Austin, look at the civic centers and all the different schools, right?
10:05
SPEAKER_01: So it's not just that conservatives are trying to tear down, you know, some institutions really do go bad and really do go corrupt, but it's not enough to tear them down.
10:13
SPEAKER_01: They have to be new institutions have to be built.
10:16
SPEAKER_01: And um, I just what institutions, you know, are is the left here going to build in France?
10:22
SPEAKER_01: Nothing, nothing.
10:22
SPEAKER_01: They've got nothing.
10:23
SPEAKER_01: They just tear down.
10:24
SPEAKER_01: That's all they do.
10:25
SPEAKER_02: And it's scary.
10:26
SPEAKER_02: Can I mention one?
10:27
SPEAKER_02: I I completely agree with you, Ilan.
10:28
SPEAKER_02: It's just there's one other thought that I've had about um the uh civic terrorism in France.
10:34
SPEAKER_02: And I just want to throw it out there for for you guys to think about, for our audience to think about.
10:39
SPEAKER_02: You know, on the surface, the story in France is about violence and fire and unassimilated immigrants, right?
10:47
SPEAKER_02: That's how people think and talk about it on the right and uh um on the, you know, they have their own narratives on the left, but it's it's related.
10:59
SPEAKER_02: Under the surface, under the surface, this is a story about the structure of government.
11:04
SPEAKER_02: It's about a political class that doesn't care about what's happening to the French people and doesn't have to care.
11:11
SPEAKER_02: So why do I say that, right?
11:12
SPEAKER_02: How is this a story about the structure of government?
11:14
SPEAKER_02: Well, the key fact is that the French public has consistently voted for tighter borders.
11:20
SPEAKER_02: And I mean, for decades, the French public has voted for tighter borders.
11:25
SPEAKER_02: And there are countless opinion polls in France saying, get immigration under control.
11:30
SPEAKER_02: The arrivals that we're having do not share French values, get immigration under controls.
11:35
SPEAKER_02: So even when they vote for Macron over Le Pen, they voted for Macron if you if you look at the messaging in that French campaign.
11:45
SPEAKER_02: Um Macron was promising to control the borders.
11:51
SPEAKER_02: And Le Pen was just considered a little too radical for many French voters' tastes.
11:56
SPEAKER_02: But by no means was the vote for Macron a vote for open borders, just like Biden in this country.
12:02
SPEAKER_02: It's not like the people who voted for Biden over Trump were voting for open borders.
12:06
SPEAKER_02: No, they um they didn't like Trump for all sorts of reasons, and they voted for Biden because he was the relevant alternative.
12:13
SPEAKER_02: But what happens in France is the European Union and the European courts impose extremely open immigration policies.
12:25
SPEAKER_02: The um elite leadership class agrees with those policies and the courts enforce them.
12:31
SPEAKER_02: So politicians in France, like Macron, get elected promising to control the borders, then they don't do it.
12:37
SPEAKER_02: If they try, and in Italy, for example, politicians have tried.
12:42
SPEAKER_02: Um, the European Court of Human Rights and the European Court of Justice strike those efforts down.
12:47
SPEAKER_02: So 20 episodes ago, we talked about, you know, the Israeli Supreme Court and how incredibly powerful it is and how left-wing it is and activist it is.
12:56
SPEAKER_02: Well, same thing in Europe with these two immensely powerful courts, the European Court of Justice representing the European Union, and the European Court of Human Rights representing the Council of Europe.
13:07
SPEAKER_02: And they are both hugely involved in immigration and striking down every effort by the nation states to actually control their borders.
13:16
SPEAKER_02: So, you know, we have a tendency to be like, well, France just, you know, culturally they like to have these mass protests that turn into riots and they burn things and they do it every 10 years, and uh that's just their culture, right?
13:28
SPEAKER_02: Not true.
13:29
SPEAKER_02: Not true in this case.
13:30
SPEAKER_02: Um, we say, well, you voted for Macron, this is what you get.
13:34
SPEAKER_02: You know, don't vote for Macron next time.
13:36
SPEAKER_02: There might be a grain of truth in that, but it's not the whole truth.
13:39
SPEAKER_02: What this really is, is about a political class that is unresponsive to the voters and a judicial system that is enforcing open borders no matter what voters want.
13:51
SPEAKER_02: This is about a structure of government where real democracy is replaced by elite control.
13:58
SPEAKER_02: And frankly, this is why I'm a populist.
14:00
SPEAKER_02: It's this kind of thing.
14:01
SPEAKER_02: Because if you look under the hood of these terrible events happening in America and in Europe and elsewhere, it is about the structure of government.
14:09
SPEAKER_02: It's about elite control and unresponsive elites.
14:12
SPEAKER_01: Well, this turns out to be a longer and deeper conversation than we were expecting.
14:16
SPEAKER_01: But let's move on to the Office of Legal Counsel.
14:18
SPEAKER_01: How about that?
14:19
SPEAKER_01: Because we've been dying to talk about some good news, not the bad news in France, uh, coming out of the OLC.
14:26
SPEAKER_01: So, Catherine, set this up for us.
14:28
SPEAKER_00: Uh, well, the Office of Legal Counsel, honestly, I learned about the existence of this thing through this podcast.
14:34
SPEAKER_00: Um, but now I know uh they are important and they've been up to some pretty based stuff.
14:40
SPEAKER_00: So, first, the OLC is a department of the federal government, not often discussed.
14:45
SPEAKER_00: And Elon, correct me if I'm wrong, but the OLC basically acts as the executive branch's lawyers, providing advice to the president and the rest of the executive branch agencies.
14:56
SPEAKER_00: Is that right?
14:57
SPEAKER_01: Yeah, so this is a far more interesting question than you might realize, because there is a debate over exactly what the role and function of OLC is.
15:07
SPEAKER_01: So it is this department within the Department of Justice.
15:10
SPEAKER_01: It's an office within the Department of Justice that is supposed to give legal advice to the president and to the executive branch agencies.
15:17
SPEAKER_01: Now, remember, the president already has lawyers in the White House counsel's office, and presumably it's got private lawyers as well.
15:23
SPEAKER_01: And so, what role does OLC play?
15:26
SPEAKER_01: Well, the president's duty ultimately is to execute the law faithfully.
15:32
SPEAKER_01: And this requires sometimes interpreting the statutes and interpreting the constitution so that he may execute the law before it even gets to a judicial decision, right?
15:42
SPEAKER_01: And some things that the president does will never see the light of day in court.
15:46
SPEAKER_01: So, for example, can you drop a drone strike uh um on an American citizen in Yemen who supports Al-Qaeda?
15:55
SPEAKER_01: This happened back in 2011, 2010, 14?
16:00
SPEAKER_01: I don't know.
16:00
SPEAKER_01: It was in the Biden, um, the Obama uh years.
16:04
SPEAKER_01: Uh, and so you have this team of really top lawyers that are supposed to uh advise the president on the execution of the law and what the law is.
16:12
SPEAKER_01: And so there's this question who is OLC's client?
16:17
SPEAKER_01: Is President Trump OLC's client?
16:19
SPEAKER_01: Should OLC interpret the laws and the constitution as instrumentally as possible to favor the president and his priorities?
16:29
SPEAKER_01: Or is the executive branch the client, which is getting you know probably a bit more plausible, but even then they're gonna systematically favor executive power, right, in some respects.
16:38
SPEAKER_01: Or is the people, are the people of the United States the client?
16:44
SPEAKER_01: And the reason I raise this is because United States attorneys, when they file prosecutions or civil actions in court, they don't say on behalf of Donald Trump.
16:55
SPEAKER_01: They don't say on behalf of the president of the United States, they say on behalf of the people of the United States, the people the, the United States, the.
17:02
SPEAKER_01: It sounds like the United States is the or the people are the client.
17:06
SPEAKER_01: And I think of the of the president as kind of like the head of a law firm, like the managing partner of a law firm, right?
17:12
SPEAKER_01: He could give you directions ultimately, but you still have an obligation to the people, your client.
17:17
SPEAKER_01: And the reason I say this is because, you know, uh there have been arguments that OLCs of various administrations uh have too favorably, you know, uh treated their, you know, the president's unique individual interests and policy preferences at the expense of like the best reading of the law.
17:37
SPEAKER_01: I'm not saying that's what's happening today.
17:39
SPEAKER_01: That is something that they accuse the Trump administration OLC of doing, but I would be hard, you know, I would I I would I would expect that many OLCs do something similar.
17:49
SPEAKER_01: They try to instrumentally favor their president that who's in office as well.
17:52
SPEAKER_00: Because they do change with each administration, right?
17:55
SPEAKER_00: The people correct.
17:58
SPEAKER_01: That is right.
17:59
SPEAKER_02: So they do that seems like a crucial thing.
18:03
SPEAKER_02: There's an expectation that there'll be fair brokers, and they issue opinions that um read like judicial opinions.
18:12
SPEAKER_02: It's like uh an agency, you know, the Department of Agriculture, the Department of Education, the White House itself will submit a question and then they'll write a legal memo that reads just like a judicial opinion, where they sort of recite the facts and then reason about the law.
18:25
SPEAKER_02: Traditionally, those opinions are observed in the executive branch.
18:29
SPEAKER_02: They're treated as um as legally binding within the executive branch.
18:33
SPEAKER_02: Um and what Elon is, you know, talking about here and correctly talking about is suspicions that they're not as apolitical as they present themselves to be.
18:43
SPEAKER_02: But I would say that um the bias uh to the extent there is any tends to be pro-executive power.
18:51
SPEAKER_02: I think Congress is annoyed with uh OLC for being so pro-executive power.
18:55
SPEAKER_02: But um, you know, they do a reasonably good job of being apolitical.
19:01
SPEAKER_02: But Josh, you uh interviewed for OLC once, didn't you?
19:04
SPEAKER_02: Yeah.
19:04
SPEAKER_02: You know, one thing I'll say about OLC is they're just they are superb lawyers.
19:08
SPEAKER_02: It is like a crackerjack NBA all-star team of of um elite legal minds.
19:15
SPEAKER_02: And currently the head of the office is a guy named Elliott Geyser, who I've had the privilege of knowing for years.
19:20
SPEAKER_02: And I worked with him when I was uh at the Department of Education as chief counsel, and he was um head of OLC.
19:27
SPEAKER_02: And, you know, he is an incredible legal mind, a deeply decent person.
19:33
SPEAKER_02: I personally hope he's a senator or governor someday.
19:36
SPEAKER_02: Um, it would be a win for the country.
19:39
SPEAKER_02: But yeah, Elon, when I was one year out of law school, I was clerking on the DC circuit for Janice Rogers Brown.
19:45
SPEAKER_02: And um, a clerkship is a one-year job.
19:47
SPEAKER_02: So you almost immediately start looking for your next job.
19:51
SPEAKER_02: And I was interviewing with OLC, I was interviewing with the Office of Legal Counsel, and it was the toughest interview of my life.
19:57
SPEAKER_02: It was like there were about 20 lawyers in the office, and they each met with me in groups of one to three lawyers.
20:04
SPEAKER_02: And there was, you know, virtually no preliminaries.
20:06
SPEAKER_02: It was like, hey, how are you?
20:08
SPEAKER_02: I'm Josh.
20:09
SPEAKER_02: Um, and then it was just a think on your feet, oral exam about legal interpretation, especially constitutional, for eight hours.
20:18
SPEAKER_02: 20 lawyers, groups of one to three, eight hours.
20:22
SPEAKER_02: They would just put questions to me.
20:23
SPEAKER_02: You know, imagine a foreign power attacks its neighbor, president orders a limited airstrike, there's no const congressional declaration authorizing the use of force.
20:31
SPEAKER_02: Is it constitutional?
20:32
SPEAKER_02: Go, you know.
20:34
SPEAKER_02: Wait, wait, I know that one.
20:35
SPEAKER_02: I know the answer.
20:37
SPEAKER_01: No, it's not.
20:39
SPEAKER_01: But OLC has said the contrary because of its pro-executive interpretation in the Libya memo.
20:46
SPEAKER_01: But that was probably after your interview.
20:47
SPEAKER_02: You, yeah, it was well after my interview, and you would have probably gotten the job.
20:51
SPEAKER_02: Um, but you know, imagine I would not have gotten the job.
20:53
SPEAKER_01: I would have been like, all these pro-executive war powers, OLC opinions are wrong.
20:58
SPEAKER_01: Repeal them anyway.
20:59
SPEAKER_02: Just imagine eight solid hours of hypotheticals like that with some of the smartest lawyers on the planet.
21:06
SPEAKER_02: So here's what happened: I went in at like whatever, uh 9 a.m.
21:10
SPEAKER_02: or whatever it was, and I came back.
21:12
SPEAKER_02: My office was a short distance away.
21:15
SPEAKER_02: It was the E.
21:16
SPEAKER_02: Barrett Prettyman um courthouse in the DC Circuit courthouse.
21:20
SPEAKER_02: And I didn't want the judge to see how exhausted I was.
21:24
SPEAKER_02: So I went back into my office and I crawled under the desk where you couldn't see me, and I curled up into a ball and I fell asleep for two hours uh after that exhausting interview.
21:35
SPEAKER_02: And I I a few weeks later, um I got the job, uh, but I also that very same day, literally the same day, I got a job offer for a second clerkship with Jay Harvey Wilkinson, and I took that one instead.
21:46
SPEAKER_01: And you know, oh, now I'm sorry to see where your anti judicial power stuff comes from.
21:54
SPEAKER_01: You know, the influence not only of your German philosophy background, but J.
21:58
SPEAKER_01: Harvey Wilkinson.
22:00
SPEAKER_01: Oh my goodness.
22:01
SPEAKER_01: Well, that sounds like a really, really great experience.
22:04
SPEAKER_01: But it was a great experience.
22:06
SPEAKER_01: So we none of us has ever been at OLC, but we love what this OLC has been up to.
22:12
SPEAKER_01: So let's talk about it.
22:13
SPEAKER_01: Welfare, immigration first.
22:14
SPEAKER_01: What do you think?
22:16
SPEAKER_00: Uh let's do, yeah.
22:17
SPEAKER_00: I mean, they they have this memo on welfare programs and as they relate to illegal immigrants.
22:24
SPEAKER_00: Um, the the OLC memo centered around interpreting the term state as it is used in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.
22:35
SPEAKER_00: So under the statute, all states that receive grants as part of the Temporary Assistance for Needy Families Program, that's TANIF, or the Supplemental Security Income SSI program, these are welfare programs, must report to the federal government any individuals the state knows are unlawfully in the United States.
22:54
SPEAKER_00: So in 1998, the Clinton administration's OLC released a memo interpreting the term state narrowly as only referring to the specific state agency receiving funding under these programs.
23:09
SPEAKER_01: I'm sure that was totally apolitical of a ruling from the Clinton administration.
23:14
SPEAKER_01: Oh, sorry, go on.
23:16
SPEAKER_00: And now the Trump administration is arguing that the term state is not limited to any particular state agency.
23:22
SPEAKER_00: And instead, all state agencies must report illegal immigrants to the federal government if the state receives funding under these programs.
23:30
SPEAKER_00: Okay, so in other words, like on the Trump administration's view, if the state has any information about illegal aliens, it must submit all of that information to DHS and ICE, or they will lose federal funding for any of their benefits in question.
23:44
SPEAKER_00: On the Clinton era view, only the agency administering the funds, if they learn about illegal aliens, must report that information.
23:51
SPEAKER_00: So it's like a much narrower, narrower set of people.
23:54
SPEAKER_00: And I think the implication here would be really, it would be huge, right?
23:58
SPEAKER_00: Because now, in theory, any interaction that a state government has with an illegal alien could require the state to give their name over to the federal government or risk losing funding from the government.
24:10
SPEAKER_00: So I was thinking about this, like here in Minnesota, we have driver's licenses for all, a program specifically for illegal aliens.
24:17
SPEAKER_00: If this were the case, wouldn't this entire program be subject to this new understanding and they'd have to turn over those names to the federal government?
24:25
SPEAKER_01: That is super interesting.
24:26
SPEAKER_01: In other words, this program in Minnesota, giving illegal aliens licenses, does not administer welfare programs.
24:33
SPEAKER_01: And so under the Clinton administration view, that means they are not subject to this requirement to disclose the information about these illegal aliens.
24:41
SPEAKER_01: And only the state office administering the welfare program, if they happen to get knowledge of those illegal aliens with the licenses, would have to report it, which of course they're not going to share because they're smarter than that, right?
24:53
SPEAKER_01: Uh so that is Likewise, public schools, by the way.
24:55
SPEAKER_02: Public schools, there's a Supreme Court precedent requiring public schools to educate uh illegal immigrant children.
25:02
SPEAKER_02: Uh that precedent rests on pretty weak constitutional grounds, but it is a standing precedent until overruled.
25:09
SPEAKER_02: Uh, and that means schools have a lot of information about uh illegal immigrant, both parents and children.
25:15
SPEAKER_02: And the question is, do they have to disclose it?
25:17
SPEAKER_02: I didn't mean to interrupt you, Elon.
25:18
SPEAKER_02: I just wanted to.
25:18
SPEAKER_01: Yeah, no, no.
25:19
SPEAKER_01: I I wonder if schools would count as the state here.
25:22
SPEAKER_01: That's interesting.
25:23
SPEAKER_01: Are they an administrative arm of the state?
25:26
SPEAKER_02: Yeah, they're state actors.
25:27
SPEAKER_02: Yeah, that's it.
25:27
SPEAKER_02: It's either the whole state or it's just the welfare agencies.
25:31
SPEAKER_01: Yeah, the welfare agencies can evade this by just not asking.
25:35
SPEAKER_01: I don't see, I I I get that.
25:36
SPEAKER_01: That's super interesting.
25:37
SPEAKER_01: I don't see public schools as uh as uh agencies of the government, they're not exercising, you know, legislative, executive power or whatever, right?
25:46
SPEAKER_01: Um, but I don't know, I'll have to think about that actually.
25:48
SPEAKER_01: That's super interesting implication here.
25:50
SPEAKER_01: But look, bottom line, um, the legal thing, uh I the the bigger picture stuff's more interesting.
25:55
SPEAKER_01: So I want to get to Josh uh more quickly.
25:57
SPEAKER_01: But the legal thing, just to set Josh up for what's going to be a glorious comment, I believe, uh, is you know, this actually isn't difficult.
26:05
SPEAKER_01: Okay, and it's surprising that the Clinton administration ever came the other way.
26:09
SPEAKER_01: Or maybe it's not surprising.
26:10
SPEAKER_01: Maybe again they were being a little more political.
26:12
SPEAKER_01: So the statute defines it exactly as you would think.
26:15
SPEAKER_01: There's no special definition of state.
26:17
SPEAKER_01: It's defined as the whole sovereignty.
26:19
SPEAKER_01: It's the state as the state, right?
26:21
SPEAKER_01: And so here, for example, is the language involving TANF.
26:24
SPEAKER_01: It says each state, it doesn't say state agency, it says, you know, the particular agency.
26:29
SPEAKER_01: It says each state to which a grant is made under TANF shall at least four times annually, and upon request of the INS, furnish the INS with the name and address of and other identifying information on any individual who the state knows is unlawfully in the United States.
26:46
SPEAKER_01: So it sounds like to receive TANF funds, the state, as the state, whatever information from wherever it has on illegal immigration and illegal aliens present in the state, must submit that information to the federal government.
27:00
SPEAKER_01: But the Clinton administration narrowly interpreted this in 1998.
27:04
SPEAKER_01: Why?
27:05
SPEAKER_01: Through some magic textualism, which and but really it's atextual textualism.
27:11
SPEAKER_01: They said, well, it would be redundant of these other provisions in these two other welfare programs, SSI, Catherine mentioned that, and housing grants, both of which programs required the secretary, the federal secretary responsible for administering them, to enter into contracts with the states to provide the same information.
27:30
SPEAKER_01: And so the the Biden, the I'm sorry, Clinton, Obama, Biden, they're all the same in my mind, honestly.
27:36
SPEAKER_01: Um so the Clinton um OLC basically said, well, this is redundant because all the states participate in TANF and can be expected to participate in TANF.
27:45
SPEAKER_01: So they're already giving this information to this to the federal government.
27:49
SPEAKER_01: So you know these two provisions would be totally superfluous and redundant unless we interpreted each provision to refer only to the state agency administering the program.
28:00
SPEAKER_01: Now, this is utterly preposterous.
28:02
SPEAKER_01: Why?
28:03
SPEAKER_01: Because it's not redundant at all, even if it refers to the whole state.
28:08
SPEAKER_01: What these are saying is if you as a state do not give this information, you will lose your TANF funds.
28:15
SPEAKER_01: The other provision says if you as a state do not give this information, you will lose your SSI funds.
28:21
SPEAKER_01: And the third provision says, if you as a state do not give this information, you will lose your housing grants.
28:28
SPEAKER_01: It's not redundant at all.
28:29
SPEAKER_01: If those two other provisions hadn't been there and the state refuses to furnish the information, they only lose TANF.
28:35
SPEAKER_01: They don't also lose SSI and the housing grants.
28:38
SPEAKER_01: In other words, each program has to specify the condition upon which they are receiving these funds in order to pull back, right?
28:46
SPEAKER_01: So honestly, the fact that this went on for 30 years is kind of mind-boggling to me.
28:53
SPEAKER_01: Okay, Catherine, and then Josh, reactions?
28:56
SPEAKER_00: Yeah, well, I have, I don't know, maybe this is a dumb question, but it seems like to me that this would just be like a supremacy clause thing, wouldn't it?
29:06
SPEAKER_00: Because if the federal government is trying to carry out the enforcement of its own laws, shouldn't the states just have to comply?
29:14
SPEAKER_01: Okay, so yes and no.
29:16
SPEAKER_01: Uh, it is not a supremacy clause issue in the sense of there's no question that the federal law is supreme.
29:22
SPEAKER_01: It's a question of what it actually means and requires of the states, right?
29:25
SPEAKER_01: So you're just interpreting the federal law.
29:27
SPEAKER_01: But there is a kind of interesting um, you know, does this exceed Congress's power to impose such conditions?
29:34
SPEAKER_01: And then it becomes supremacy-based federalism.
29:37
SPEAKER_01: But it's a I know where this is going.
29:39
SPEAKER_01: No, no, no.
29:40
SPEAKER_01: Oh, yes.
29:41
SPEAKER_01: Say the words, say the words.
29:42
SPEAKER_01: I'm listening.
29:43
SPEAKER_01: Unconstitutional conditions.
29:46
SPEAKER_01: Uh so is this a constitutional condition for the receipt of these funds, even if it otherwise would exceed Congress's power?
29:53
SPEAKER_01: And I and uh to be clear, I don't know if it would exceed Congress's power to demand information from the states.
29:58
SPEAKER_01: I mean, it's kind of like commandeering, maybe.
29:59
SPEAKER_01: Is it commandeering?
30:00
SPEAKER_02: It is commandeering, but for new members of our audience, just to interject here, uh, Elon is one of the world's experts on this idea of unconstitutional conditions, this special body of constitutional law and doctrine.
30:12
SPEAKER_02: And um uh he sees unconstitutional conditions everywhere.
30:16
SPEAKER_02: All sorts of issues become unconstitutional conditions.
30:18
SPEAKER_02: They have one hammer coming.
30:21
SPEAKER_01: And everything is a nail.
30:22
SPEAKER_01: Okay, so Josh, what do you think about what's going on here?
30:25
SPEAKER_02: You know, I I was curious uh about the historical context around um the Clinton administration's interpretation of the term state in this.
30:34
SPEAKER_02: Because, you know, was it motivated by a desire to protect illegal immigrants to minimize the reach of the statute?
30:41
SPEAKER_02: And why did subsequent administrations keep this up?
30:44
SPEAKER_02: The Bush administration, the Obama, the Trump, Trump won, right?
30:47
SPEAKER_02: Biden.
30:48
SPEAKER_02: This is 30 years of not challenging this Clinton-era OLC memo.
30:53
SPEAKER_02: So I looked into it.
30:54
SPEAKER_02: The 1998 Clinton OLC opinion was framed as just conventional statutory interpretation.
31:01
SPEAKER_02: It was not facially about protecting illegal immigrants.
31:04
SPEAKER_02: The basic thought underlying it was the term state is ambiguous.
31:08
SPEAKER_02: It could be interpreted narrowly to mean the state administration giving the welfare funds out, or it could be interpreted to mean all agencies of the state.
31:19
SPEAKER_02: Um, one interpretation says Congress is giving the state's welfare money.
31:23
SPEAKER_02: It doesn't want money spent on illegal immigrants, welfare money spent on illegal immigrants.
31:27
SPEAKER_02: So making those welfare agencies check and report before they give money to illegal immigrants.
31:33
SPEAKER_02: Um, it was not meant to be a comprehensive immigration enforcement scheme, uh, enlisting the state as a condition of getting the money.
31:40
SPEAKER_02: That was the perspective in the Clinton memo.
31:43
SPEAKER_02: I'm suspicious of this.
31:45
SPEAKER_02: I'm suspicious that it was just an ordinary exercise in statutory interpretation because the immigrations for illegal immigration are so facially obvious.
31:55
SPEAKER_02: It's not hidden, right?
31:56
SPEAKER_02: It's not like some um occult implication that ordinary people wouldn't see.
32:01
SPEAKER_02: The words on the page literally create a duty to report illegal immigrants.
32:05
SPEAKER_02: They say it explicitly.
32:07
SPEAKER_02: If it applies to the whole state, it obviously means a lot of illegal immigrants get reported.
32:13
SPEAKER_02: It means that the police and the schools and the uh driver's license, uh DMVs are reporting illegal immigrants.
32:20
SPEAKER_02: And if it gets reported narrowly, only the agency handing out the money, then there's very few people reported because they just don't apply for the money or the agency doesn't ask.
32:30
SPEAKER_02: So anyone, anyone who reads the statute would see that immediately.
32:34
SPEAKER_02: And I think anyone who thinks about it would see that it's a big deal.
32:38
SPEAKER_02: It really bears on the scope of uh illegal immigration.
32:42
SPEAKER_02: And it's extremely common in law, in judicial opinions, in OLC opinions, in everybody's work in the law, for very legalistic interpretive arguments to act as a sort of pretext or cover for decisions with a political motivation that no one wants to say aloud.
33:00
SPEAKER_02: Uh, no president before Trump was determined to end illegal immigration, including President Bush.
33:06
SPEAKER_02: Uh the people.
33:12
SPEAKER_00: Those dang libertarians.
33:14
SPEAKER_02: We the people, you know, Chamber of Commerce, Chamber of Commerce plus libertarians.
33:19
SPEAKER_02: You know, uh the American public, certainly the Republican American public, has been against illegal immigration, illegal immigration specifically, uh for 50 years.
33:28
SPEAKER_02: But it was just like France, which we talked about earlier this episode.
33:31
SPEAKER_02: The pol political class, the politicians, even the elected ones, just refused to carry out what, you know, what the people wanted.
33:40
SPEAKER_02: And so, you know, it's it's kind of um it's kind of a story about how huge policy implications for the whole country, right?
33:49
SPEAKER_02: Things that would change the course of 30 years that would lead to not just hundreds of thousands, but millions of illegal immigrants uh in the country were were kind of hidden away, like secreted, like a squirrel with a nut, into these little technicalities.
34:04
SPEAKER_02: How broad or narrowly does the OLC, an office you've never heard of, define the word state in an interpretive opinion?
34:12
SPEAKER_02: And once you've defined the word state very narrowly, an entire law that affects millions of it affects the entire future of illegal immigration changes for 30 years.
34:25
SPEAKER_02: And um it to me, I just find that kind of staggering and distressing.
34:30
SPEAKER_00: Yeah, no kidding.
34:32
SPEAKER_00: Okay, maybe this is a question for the end of the episode, but what happens now?
34:35
SPEAKER_00: Does the OLC guidance, I mean, okay, they have an opinion.
34:39
SPEAKER_00: What does that mean for enforcement?
34:40
SPEAKER_00: Does it automatically start happening?
34:42
SPEAKER_02: Uh well, not automatically, but it creates the groundwork for the executive branch to start doing enforcement actions.
34:51
SPEAKER_02: And I guarantee you we're gonna see litigation.
34:52
SPEAKER_02: I mean, Elon, do you want to predict here what's what happens next?
34:56
SPEAKER_01: Oh, yeah, the the states or a coalition of states will sue in Massachusetts or Seattle or San Francisco, and they'll get an injunction saying that the um uh Biden era saying that the era was correct, uh even though it was obviously not correct.
35:14
SPEAKER_01: Um, they'll say something about well, long-standing executive branch interpretation is entitled to great weight, which ordinarily is true when you have serious people doing that interpretation.
35:24
SPEAKER_01: By the way, this is the argument about the mandatory detention of illegal aliens who sneak across the border, right?
35:30
SPEAKER_01: Long-standing interpretation from the Clinton administration.
35:32
SPEAKER_01: Same thing.
35:33
SPEAKER_01: So it'll take the Supreme Court to allow the administration to actually execute this, I suspect.
35:39
SPEAKER_00: Wow.
35:39
SPEAKER_00: Okay.
35:40
SPEAKER_02: So for example, Minnesota will say our DMV does not have to report illegal immigrants to the federal government.
35:45
SPEAKER_02: This is the wrong inter, and the argument will be wrong interpretation of the statute.
35:50
SPEAKER_02: The statute means state agencies, not the state as a whole.
35:53
SPEAKER_02: And um they will forum shop, they will get a district court judge who agrees with them, it will go up on appeal, flip the dice on that one, then it'll go up to the Supreme Court and we'll see what they say.
36:03
SPEAKER_02: It will ultimately be not a constitutional matter, but a matter of statutory interpretation.
36:08
SPEAKER_02: And it will depend on either how textual they are or how purposive they are about, you know, what honestly, like the way I think about something like that is um we have to not just focus on the definition of the word state and make these hyper-technical arguments about surplusage and stuff like that.
36:26
SPEAKER_02: We need to talk about both the text and what Congress was trying to do.
36:31
SPEAKER_02: And um what was Congress trying to do with these words?
36:35
SPEAKER_02: That's not ignoring the text, it's not, but it's also not fixating on the text alone.
36:40
SPEAKER_02: It's trying to fuse the words of the statute, the word state in this case, with our understanding or reasonable guess as to Congress's goals in the statute.
36:49
SPEAKER_02: And I think what Congress wanted was illegal immigration to end.
36:53
SPEAKER_02: And they were trying to fight it.
36:55
SPEAKER_01: And, you know, I hope and in this case, their text actually indicated that intent, right?
37:01
SPEAKER_01: So here are these things that are.
37:02
SPEAKER_00: And that would be, I would think, a more lasting opinion, like, you know, keep it from being the next OLC could just issue the opposite opinion again and we're going back and forth, right?
37:10
SPEAKER_00: But if you look at the intent of if you're just talking about the word state, but if you look at the intent of what Congress was doing, Josh, like you say, it seems to me that that would be a little bit more uh substantial of a decision.
37:20
SPEAKER_01: Yeah, what we really need is the shadow docket, right?
37:23
SPEAKER_01: To get this decided by the Supreme Court before an OLC can reverse this OLC memo, right?
37:29
SPEAKER_01: So, but okay, we've talked about leftist violence, we've talked about civic terrorism, we've talked about immigrants.
37:34
SPEAKER_01: Let's talk about guns.
37:35
SPEAKER_01: This is turning out to be a blockbuster rationalizing.
37:38
SPEAKER_01: We're gonna end on religion.
37:40
SPEAKER_01: Stick with us.
37:41
SPEAKER_01: You don't want to miss the religion stuff.
37:43
SPEAKER_00: The second OLC memo we're gonna talk about is a recent opinion that states that the federal ban on sales of handguns for 18 to 20 year olds is unconstitutional and it will not be enforced by the federal government.
37:56
SPEAKER_00: So currently there's a circuit split among the courts as the constitutionality of this law.
38:01
SPEAKER_00: I guess this is what we were just talking about.
38:02
SPEAKER_00: It's already making its way through the courts, right?
38:05
SPEAKER_00: Congress enacted this law in the 1960s based largely around uh concerns about violent crime and what it described as the availability of handguns to juveniles and uh, quote, emotionally immature young people.
38:18
SPEAKER_00: Um, just last year, though, the Fifth Circuit ruled that the ban is unconstitutional, and the Fourth Circuit has upheld the ban.
38:25
SPEAKER_00: The Supreme Court declined to hear an appeal of the Fourth Circuit's rulings, so the split remains.
38:31
SPEAKER_00: However, the executive branch, who is tasked with executing the law, has interpreted the Constitution as precluding such a ban and has vowed not to enforce it.
38:42
SPEAKER_00: Sounds right.
38:43
SPEAKER_01: Yeah, so this one you'll remember from our episode with Joelle Elisea, uh, the modern Second Amendment uh uh uh test is established in this Bruin case, right?
38:52
SPEAKER_01: Which is this two-part inquiry.
38:53
SPEAKER_01: Does the text even cover it?
38:55
SPEAKER_01: And then if it does, is there a history and tradition of analogous regulations of the right?
39:02
SPEAKER_01: You know, analogous uh in terms of the why and the how of the regulation.
39:06
SPEAKER_01: Now, the OLC opinion goes through both of these.
39:09
SPEAKER_01: Uh let me just, you know, and it's actually tricky.
39:12
SPEAKER_01: Like, is this a uh the a text prong or a historical prong?
39:16
SPEAKER_01: And there's no question that these are guns, right?
39:18
SPEAKER_01: They're keeping and bearing, right?
39:20
SPEAKER_01: The question here is, are 18-year-olds part of the people?
39:23
SPEAKER_01: Now, in some respects, uh obviously they're part of the people, just as five-year-olds are part of the people, at least citizens, right?
39:31
SPEAKER_01: I do think we've talked about on prior episodes, right, Josh, that the people might be limited to citizens as a sort of a historical concept, members of the political community.
39:39
SPEAKER_01: Uh so if five-year-olds are covered, uh then you go into the second prong, which is is this the kind of regulations that's analogous to prior regulations, which is like, yes, okay, obviously you could prevent five-year-olds from owning guns for safety reasons, immaturity reasons, but maybe not 18-year-olds.
39:56
SPEAKER_01: Or maybe it is more of a textual question.
39:59
SPEAKER_01: Maybe five-year-olds aren't part of the people, at least not as such.
40:02
SPEAKER_01: They are in incubation, ready to become a member of the people, you know, the full members of sort of the political community.
40:10
SPEAKER_01: I don't know.
40:10
SPEAKER_01: I really don't know which prompt which way to look at it.
40:13
SPEAKER_01: What I do know is this the answer to this question is actually easy.
40:17
SPEAKER_01: Why?
40:19
SPEAKER_01: Okay.
40:20
SPEAKER_01: Sort of two related reasons.
40:22
SPEAKER_01: Uh historically, political rights were the highest form of rights.
40:28
SPEAKER_01: Everybody had civil rights, like the right to bear arms for self-preservation, the right to freedom of speech, the right to enter into contract, the right uh to own and possess property.
40:38
SPEAKER_01: Those are natural rights.
40:39
SPEAKER_01: You had them in the state of nature, you enter into civil society and they become civil rights, modified and regulated and defined and protected by the civil law.
40:48
SPEAKER_01: Political rights, there were four rights: the right to vote, the right to hold office, the right to serve on juries, and the right to serve on militias.
40:55
SPEAKER_01: They only exist in a political community and they were reserved to uh a subset of citizens.
41:03
SPEAKER_01: Okay, so political rights expressed the idea that you have obtained the highest form of citizenship.
41:11
SPEAKER_01: Okay.
41:11
SPEAKER_01: Why does this matter?
41:12
SPEAKER_01: Well, once you grant political rights and bring someone, some group fully into the regime, it starts to become arbitrary to discriminate against them in the provision of civil rights.
41:22
SPEAKER_01: Let me give you an example.
41:23
SPEAKER_01: One of the four horsemen of the New Deal apocalypse, the arch-conservative Justice Sutherland, okay, made this exact point, striking down in the 1930s a minimum wage law for women.
41:36
SPEAKER_01: He said, wait a minute, which of course the the liberals all supported the minimum minimum wage law for liberals because they wanted government regulation, even though it was patronizing to women, right?
41:47
SPEAKER_01: But Sutherland, the conservative, said, no, once women are fully brought into the regime with the 19th Amendment, they can vote, they have political rights, they are full members of this body politic now.
41:58
SPEAKER_01: It becomes arbitrary to deny them and discriminate that in the provision of their civil rights.
42:03
SPEAKER_01: So they can freely enter into contracts the same way men can.
42:06
SPEAKER_01: And he struck it down under the freedom of contract for women who are now fully part of this regime.
42:12
SPEAKER_01: Well, you see where this is going.
42:13
SPEAKER_01: 18-year-olds were given the right to vote.
42:16
SPEAKER_01: Huge mistake, if you ask me.
42:18
SPEAKER_01: But okay, they were given the right to vote.
42:21
SPEAKER_01: Okay, Josh, I know verdict of history, blah, blah, blah.
42:24
SPEAKER_01: But okay, anyway.
42:25
SPEAKER_01: Um, and uh they fully, therefore, become members of the political regime.
42:31
SPEAKER_01: And therefore, under this reasoning that I think Sutherland was right about, it becomes arbitrary to discriminate against them in the provision of the other rights.
42:39
SPEAKER_01: So if they could vote, then they can if they have this political right, then they have the Second Amendment rights.
42:43
SPEAKER_01: They have every civil rights that a 21-year-old or 25-year-old has, just as women have every civil right uh that men have.
42:51
SPEAKER_01: The other point about this is militia service is a political right.
42:54
SPEAKER_01: So if you can vote and you have that political right, presumably you could serve on militias.
42:58
SPEAKER_01: And historically, 18-year-olds, by the way, could serve on militias.
43:01
SPEAKER_01: So they got that political right, usually before actually the right to vote, which is interesting, which means you need a gun.
43:05
SPEAKER_01: Okay.
43:06
SPEAKER_01: One way or the other, this seems straightforward to me.
43:08
SPEAKER_01: I could write this opinion in two paragraphs, but good for the OLC, doing a roadmap for the Supreme Court under the Bruin test, under the history and tradition and so on.
43:18
SPEAKER_01: I could do this in three paragraphs, channeling uh Justice Sutherland.
43:21
SPEAKER_01: I think this is the right decision.
43:23
SPEAKER_01: And I don't know that, you know, a lot of people have made this argument, by the way, in litigation.
43:26
SPEAKER_01: So if anyone out there is looking for some, you know, litigation consulting, I'm around to help with the argument.
43:32
SPEAKER_00: I do think, like, if you're talking militias, like 18 is kind of prime age, you know, like you don't want to be getting too much older, otherwise, you're gonna be a little bit, you know, your brain's more developed, you're smarter.
43:41
SPEAKER_00: You want the people in the militias on the front lines to be, you know, those fearless, in shape 18 year old males.
43:47
SPEAKER_00: Just a thought.
43:48
SPEAKER_01: I think historically it was 18 to 40 year olds.
43:50
SPEAKER_01: So we're making great time.
43:52
SPEAKER_01: I wanted Josh's take on this.
43:53
SPEAKER_01: I wanted to ask you a question.
43:55
SPEAKER_01: Josh, I know that I like to needle you a bit about judicial power and judicial review, and you've talked about this before, but How does this square with your Elyan view of judicial power and democracy?
44:04
SPEAKER_01: John Hart Ely of in one respect, you know, yes, you've said before that the Second Amendment is clearly articulated right, you know, and it's the court's job is to protect those clearly articulated rights that the people themselves have put in the Constitution.
44:19
SPEAKER_01: But is it obvious that 18 to 21-year-olds are covered in that, or that there are no democratic, you know, policy reasons that the democracy can decide upon for itself about whether 21 is the line or 18 is the line or 25 is the line?
44:33
SPEAKER_01: Is this something that should be taken away from the democratic process?
44:36
SPEAKER_01: So, what's your take on all that?
44:38
SPEAKER_02: Well, can I respond to both that and Catherine's uh point about 18 being prime?
44:44
SPEAKER_02: When I was 18, 19, 20, I would have been like, I'm in the military, I'm gonna charge that hill, I'm gonna fight, fight, fight for my country.
44:55
SPEAKER_02: Now I'm like, I'm gonna run.
44:58
SPEAKER_02: You know, I mean so whatever that fire is.
45:01
SPEAKER_00: That should be part of this argument.
45:03
SPEAKER_01: And your running, to be clear, will look more like jogging or lollygagging, right?
45:07
SPEAKER_01: Right.
45:08
SPEAKER_02: It'll be like, I'm gonna walk very slowly, I'm too old for this.
45:11
SPEAKER_02: I I actually, when I was graduating high school, the the um I was in this uh, I was trying to figure myself out, you know, and and it was between um it was between going to a conventional liberal arts college, going to West Point, and going to a music conservatory.
45:27
SPEAKER_02: And I, you know, I I I almost applied to West Point.
45:32
SPEAKER_02: I ended up going to the liberal arts college.
45:34
SPEAKER_02: Uh, and then when I finished um college, I did apply for the CIA, did not get that job.
45:41
SPEAKER_02: Um, but I, you know, I wanted to do brave things, Catherine.
45:44
SPEAKER_02: I was so stupid.
45:45
SPEAKER_02: I don't know.
45:46
SPEAKER_00: I it's all but to go to the weren't the founders of the country like 18, 19, 20.
45:52
SPEAKER_00: We need that, that kind of uh, you know, male spirit.
45:55
SPEAKER_01: Certainly the Minutemen were 15 and 16-year-olds.
45:58
SPEAKER_01: So yeah.
46:00
SPEAKER_02: Um so so taking up uh your you know constitutional theory thing, uh, Elon, I I do, I'm a little tent about this issue.
46:10
SPEAKER_02: I'm I'm sort of thinking it through, and I I want to acknowledge to you that uh and and to Catherine and to our audience that I could change my mind on this.
46:16
SPEAKER_02: But here's what my instinct is.
46:18
SPEAKER_02: Um I think, you know, the first thing to say is that our our constitutional rights are written in broad categorical terms, but they can't be enforced in broad categorical terms, and courts craft reasonable exceptions.
46:31
SPEAKER_02: There's no other way to do it, right?
46:33
SPEAKER_02: We have a we have a constitution that says Congress shall make no law bridging the freedom of speech, but guess what?
46:38
SPEAKER_02: You can't yell fire in a crowded theater.
46:40
SPEAKER_02: I can't scream in a judge's courtroom.
46:43
SPEAKER_01: Uh, I can't talk about, I don't know, um um you can't protest in front of a judge's house on kayaks.
46:51
SPEAKER_02: Exactly.
46:51
SPEAKER_02: You and you, you know, you can't just walk into a math classroom and recite poetry and interrupt the math classroom.
46:57
SPEAKER_02: Like we do make reasonable limitations on freedom of speech, and we craft judicial doctrine to that effect.
47:03
SPEAKER_02: So to say that the Second Amendment protects gun rights, seriously protects gun rights, we care about that protection, but it doesn't necessarily cover 18 to 20, 20 year olds is perfectly reasonable in theory.
47:15
SPEAKER_02: And I think the core of the Second Amendment is that you can't disarm the population, you can't deprive the population of either individual or collective self-defense.
47:24
SPEAKER_02: But that doesn't say whether 16-year-olds have the right, or 17 or 18-year-olds or 19-year-olds.
47:29
SPEAKER_02: That's a question for a democratic country looking at the maturity of its population and making reasonable judgments as a democracy about like what the limits are of, you know, this is too young.
47:40
SPEAKER_02: This is by the way, we already limit Second Amendment rights in that way.
47:44
SPEAKER_02: We say felons can't own guns.
47:46
SPEAKER_02: We say uh people who are psychotic can't own guns.
47:50
SPEAKER_02: We do take guns away from people who are not mature.
47:54
SPEAKER_02: That would be enough to use them.
47:55
SPEAKER_02: That would be all of Gen Z, then should be disarmed.
47:59
SPEAKER_02: I think it is perfectly reasonable to say no guns and consistent with the core of the right.
48:04
SPEAKER_02: The, you know, you have the right to, as a people, to individual and collective self-defense, but 16 is too young, and guess what?
48:11
SPEAKER_02: 18 is too young.
48:12
SPEAKER_02: I think a democracy can make that without running a foul of the constitution.
48:16
SPEAKER_02: So in this case, I respectfully disagree with the OLC.
48:20
SPEAKER_02: Super interesting.
48:22
SPEAKER_00: Do you want to talk about a little bit, Elon, like this issue of can the president ignore a law of Congress if he doesn't be unconstitutional?
48:30
SPEAKER_02: Yeah, give me three minutes on it.
48:31
unknown: Okay.
48:32
SPEAKER_02: Three minutes.
48:32
SPEAKER_02: I won't say anything.
48:33
SPEAKER_02: Just do your thing.
48:34
SPEAKER_00: You take that, because that's the only way I can explain this.
48:37
SPEAKER_00: Like, can yeah, can he ignore something if he's like, no, no, no, no, that I don't believe that's constitutional.
48:41
SPEAKER_00: Can you just not execute it?
48:43
SPEAKER_01: So so basically the OSC opinion ends by set telling the president that he shouldn't enforce this law on the books, right?
48:50
SPEAKER_01: That if someone does sell to an 18-year-old, you shouldn't prosecute them, right?
48:55
SPEAKER_01: I have a half chapter on this question in my did you know that I wrote a book, Catherine?
49:01
SPEAKER_01: It was a book right behind me, The Constitution of 1789, a new introduction to our listeners.
49:08
SPEAKER_01: If you have read the book, or even if you just like me, leave me a review on Amazon five stars, please, after you leave us a five-star rating on Apple for this podcast, okay?
49:17
SPEAKER_00: Yeah, I think there was someone in the reviews, Catherine.
49:19
SPEAKER_00: I think she she really enjoyed it.
49:20
SPEAKER_01: So I had a feeling that was you.
49:22
SPEAKER_01: I appreciate it, Catherine.
49:23
SPEAKER_01: My biggest fan.
49:24
SPEAKER_01: Um, so seriously, uh, but I love uh I'd love some uh reviews if you're uh willing.
49:29
SPEAKER_01: But I have a the reason I wanted to mention this is because it is the one part of my book that I cannot find another originalist that agrees with me about it.
49:37
SPEAKER_01: But I'm right, okay.
49:38
SPEAKER_01: Apparently I'm not hardcore enough.
49:40
SPEAKER_01: I do not believe the president has the right to refuse to enforce the law of Congress that he believes to be unconstitutional, with a rare exception, really a singular exception.
49:49
SPEAKER_01: And to be clear, I think, you know, the argument that the president does is like, well, just like Marbury v.
49:53
SPEAKER_01: Madison, courts have to decide, you know, in this situation, do you enforce the constitution or do you enforce the statute?
50:00
SPEAKER_01: And I get that.
50:01
SPEAKER_01: And the president also has a duty to enforce his understanding of the constitution when it comes to his exercise of the veto power, when it comes to a decision to remove officers.
50:10
SPEAKER_01: He could even pardon people who are convicted of the Alien and Sedition Acts, as Thomas Jefferson did.
50:15
SPEAKER_01: But I think that's very different than saying you I'm just gonna refuse to enforce Congress's laws.
50:21
SPEAKER_01: Why?
50:21
SPEAKER_01: Because I believe that the take care clause, which says that the president must faithfully execute the laws, refers to Congress's laws.
50:28
SPEAKER_01: I think that's what it's really talking about.
50:29
SPEAKER_01: When you look at how they wrote it, the drafting history, they weren't talking about the Constitution and all of that, which the president, of course, should faithfully execute as well, but it's a specific duty to enforce Congress's laws.
50:41
SPEAKER_01: And here's the other thing: the president has a qualified veto, right?
50:44
SPEAKER_01: The president can veto uh legislation, including on constitutional ground, and Congress can override the veto.
50:50
SPEAKER_01: And so if Congress overrides the veto, can the president just say, eh, I'm still not going to enforce it?
50:55
SPEAKER_01: Because I, you know, my view is it's unconstitutional.
50:58
SPEAKER_01: Now you can distinguish maybe between a policy veto and a constitutional veto, but all questions are constitutional questions at the bottom.
51:05
SPEAKER_01: You can make a constitutional argument for anything, and then all of a sudden the president has an absolute veto over the laws and which laws get to be enforced.
51:12
SPEAKER_01: And I do not believe in that.
51:13
SPEAKER_01: The first five vetoes that were overridden, the presidents went ahead and enforced the law anyway, right?
51:19
SPEAKER_01: And they executed the law anyway.
51:21
SPEAKER_01: Um it's actually quite amazing the historical evidence for this view.
51:26
SPEAKER_01: In 1860, Roger Tony, who was attorney general during Andrew Jackson's presidency, uh addressed the accusation that Jackson refused to enforce the bank law, the second bank of the United States.
51:36
SPEAKER_01: And he said, no, on the contrary, he operated on the assumption that it existed, that he couldn't just ignore the law that created it.
51:43
SPEAKER_01: And that's why he wanted to remove the treasury deposits, because he wanted to harm the bank in the only lawful way he knew how to do it, right?
51:50
SPEAKER_01: So even Jackson didn't believe he had a right to refuse to enforce a law he believed that was unconstitutional.
51:55
SPEAKER_01: The only exception that the 19th century sources really talk about is if the law itself invades presidential prerogative, like says you cannot remove a principal officer.
52:05
SPEAKER_01: And that's what Andrew Johnson did.
52:06
SPEAKER_01: He got impeached for it.
52:08
SPEAKER_01: And Benjamin Curtis, a former Supreme Court justice who dissented in Red Scott, defended Johnson, not on the ground that he can refuse to enforce laws he believes to be unconstitutional, but purely on the ground that this law invades the prerogative of the executive.
52:22
SPEAKER_01: And the only way to bring a test as to whether the president really has this power of removal or not, is to violate it in order to bring a judicial test case or something like that.
52:32
SPEAKER_01: And so I just find that really, really compelling.
52:34
SPEAKER_01: Yes, the president can pardon people convicted of this, but he could remove prosecutors that um enforce the law, but that comes at a real cost.
52:42
SPEAKER_01: And so I actually feel very strongly about this.
52:45
SPEAKER_01: It is a pretty idiosyncratic view.
52:47
SPEAKER_01: No one else seems to share it.
52:49
SPEAKER_01: The 19th century thinkers shared it uh with me, and I think they were right.
52:53
SPEAKER_01: Uh so that's all I was gonna say about um that.
52:56
SPEAKER_01: But Josh promised not to say anything.
52:58
SPEAKER_01: So I I would just say this.
53:00
SPEAKER_02: Catherine might have to fight me for biggest fan.
53:02
SPEAKER_02: I thought that was extremely persuasive and and um well, thank you.
53:07
SPEAKER_01: It's it's all there for 30 bucks if you want it.
53:10
SPEAKER_02: Uh sorry, let's move on to so you know, OLC is doing tons of awesome stuff.
53:20
SPEAKER_02: Number three is religion.
53:22
SPEAKER_02: Catherine, you want to take it?
53:23
SPEAKER_00: Yeah, so as you might have noticed, um, a lot of what the federal government does is give out money.
53:31
SPEAKER_00: They suck in our money through taxes and they give it out in various programs.
53:34
SPEAKER_01: That's as long as the states report the illegal immigrants, they can have the money, right?
53:39
SPEAKER_01: That's good.
53:39
SPEAKER_00: Exactly.
53:40
SPEAKER_00: Well, for years, uh the Department of Health and Human Services has been giving out grants to charitable organizations, but they have excluded religious groups that do charity in connection to their faith.
53:52
SPEAKER_00: So the statutes in question are things like welfare services under the Personal Responsibility and Work Opportunity Reconciliation Act, the same statute we talked about before.
54:04
SPEAKER_00: Um, substance abuse treatment under the Public Health Service Act, and child care under the Child Care Development Block Grant Act.
54:10
SPEAKER_00: So for years, federal government held that these funds could not be used for sectarian worship, instruction, or proselization.
54:17
SPEAKER_00: Postelization?
54:18
SPEAKER_00: I get that one right.
54:19
SPEAKER_00: Faith-based groups could get the money, but only if they separated out or eliminated like the religious part of their work from the charity that they were doing in some sense.
54:28
SPEAKER_00: Um, and then over the summer, OLC issued an opinion saying those restrictions are not required by the establishment clause, and that in fact they actually discriminate against religious organizations based on their status or on the anticipated religious use of the funds.
54:45
SPEAKER_00: That triggers strict scrutiny, and the government has no compelling interest uh sufficient to justify it.
54:52
SPEAKER_00: So, in short, if a federal funding program is generally available, it's presumptively unconstitutional to deny it to a religious group.
55:00
SPEAKER_00: They've totally flipped the guidance on its head, it seems like to me.
55:04
SPEAKER_01: Yeah, and this follows on the heels of cases like the Coach Kennedy case.
55:08
SPEAKER_01: What was that?
55:09
SPEAKER_01: Breming Bremington School or where the football coach was, you know, praying on in the halfway, uh was it after a game or at halftime, was praying on the field with the students.
55:19
SPEAKER_01: And the school literally said, Well, we can't let him do that because if we did let him do it, that would be an establishment of religion.
55:26
SPEAKER_01: As if, like, you've established a church, like what?
55:30
SPEAKER_01: We'll get into the original meeting here.
55:31
SPEAKER_01: But what the Supreme Court actually said was, no, not only does it not establish a religion, it actually discriminates against religion, right?
55:39
SPEAKER_01: To not allow him uh to pray.
55:41
SPEAKER_01: So the the I'm not a first amendment, I'm not a religion scholar.
55:45
SPEAKER_01: Okay, so I do know a little bit about their original history and meaning.
55:49
SPEAKER_01: So I'll talk about that in a second.
55:50
SPEAKER_01: But my understanding is the court has been moving this way already, and OLC has been moving this way already.
55:56
SPEAKER_01: And so historically, because of this establishment stuff, you literally had progressive blue jurisdiction saying we cannot fund you at all if you are religious.
56:05
SPEAKER_01: And the Supreme Court basically, uh, in the past few decades got rid of that, but it allowed this distinction among, well, you know, if we give you money, you cannot proselytize.
56:17
SPEAKER_01: You know, you you there cannot be any religious overtone.
56:20
SPEAKER_01: So it was sort of this use versus status-based restrictions.
56:22
SPEAKER_01: Okay.
56:23
SPEAKER_01: And now OLC is basically saying, um, in line with more recent precedents, I think, uh, that actually, no, as long as it's a generally applicable program, this is key, right?
56:35
SPEAKER_01: It's not like you're taxing people just to give churches money.
56:38
SPEAKER_01: No, you're taxing people to create a generally applicable public benefits program.
56:43
SPEAKER_01: And the question is, can a religious institution, you know, um, provide the service the same way that a Somali daycare can provide a service, right?
56:52
SPEAKER_01: The and the answer is yes, is what OLC says.
56:56
SPEAKER_01: And in a sense, it's obvious and important.
56:59
SPEAKER_01: Why?
57:00
SPEAKER_01: Because clearly the religious message is effective, far more effective in a lot of these programs in terms of getting people out the streets and getting them back on their feet, you know, than a secular message is.
57:10
SPEAKER_01: So it's intimately connected, you know, these things.
57:13
SPEAKER_01: And OLC is saying, unlike the Biden administration, like, we are not going to exclude you because of your religion.
57:18
SPEAKER_01: It's not an establishment.
57:19
SPEAKER_01: In fact, it would discriminate uh uh to do so.
57:23
SPEAKER_00: Gotta say, this just seems like a way that they were trying to get more money into the hands of their friends on the left and keep it away from people on the right, who are often the ones who have uh do their charitable work through religious organizations, where people on the left tend to form these, you know, nonprofits and then uh politicians get, you know, comfy jobs at the nonprofits afterward.
57:43
SPEAKER_00: There's kind of like a scheme going on that I feel like this fits into.
57:46
SPEAKER_01: Well, that's that's exactly right.
57:47
SPEAKER_01: I mean, you don't want to, I kid you not, like, do you remember the Grants Pass case that we've talked about on this show and the Boise uh decision because of my homeless lawsuits, where in 2018 the Ninth Circuit said you cannot uh enforce bans on public camping if there aren't enough beds, homeless shelter beds in the jurisdiction for the entire homeless population.
58:08
SPEAKER_01: So to be clear, that meant if there were 1,001 homeless people counted in the jurisdiction last year, but there are a thousand available beds, you cannot force a thousand people to take the beds, right?
58:19
SPEAKER_01: You cannot force anybody to take the beds, right?
58:22
SPEAKER_01: They excluded religious beds from the count.
58:25
SPEAKER_01: They said you can't count religious beds, okay?
58:28
SPEAKER_01: And and this is this is what was in the water, you know, um back then.
58:31
SPEAKER_02: Well, I I would love to speak to that because um I had an experience when I was in the administration that changed my entire perspective on this issue.
58:39
SPEAKER_02: And I just want to share it.
58:41
SPEAKER_02: It's not private information, it's public information.
58:43
SPEAKER_02: I just want to share it with our listeners.
58:45
SPEAKER_02: Um, I think this OLC opinion, which I really celebrate, sits inside a larger pattern of Christian and religious forces versus anti-Christian forces in the Biden administration.
58:59
SPEAKER_02: One of the big issues that's Biden v.
59:01
SPEAKER_02: Trump is Christian versus anti-Christian.
59:04
SPEAKER_02: And that sounds um over the top, perhaps, hyperbole, perhaps, but I was really changed in my perspective on this because I read this report uh from a DOJ task force.
59:16
SPEAKER_02: There was a DOJ task force created by Trump Executive Order called the Task Force to Eradicate Anti-Christian Bias.
59:22
SPEAKER_02: And they released a report called Eradicating Anti-Christian Bias within the federal government.
59:27
SPEAKER_02: Notice what that says.
59:28
SPEAKER_02: Not within society, within the federal government.
59:31
SPEAKER_02: It's like, what are we doing as a federal government, as an executive branch that is anti-Christian that reflects anti-Christian bias?
59:38
SPEAKER_02: And this came across my desk when I was in government.
59:41
SPEAKER_02: And um, at first I was really skeptical.
59:44
SPEAKER_02: Um, first of all, I was like, you know, the Biden administration was a lot of things, but it wasn't anti-Christian.
59:50
SPEAKER_02: Like, that's like that's hyperbole, that's a bridge too far.
59:53
SPEAKER_02: And like, is it really necessary to have a task force about this?
59:57
SPEAKER_02: And do I really have to read a 550-page report?
1:00:01
SPEAKER_02: Because that looks really boring, right?
1:00:03
SPEAKER_02: So those were all of my thoughts at the time.
1:00:05
SPEAKER_02: And then I started to read.
1:00:06
SPEAKER_02: And folks, you can read it.
1:00:07
SPEAKER_02: It's not secret, it's a public document.
1:00:09
SPEAKER_02: Just go, you know, go look it up, eradicating anti-Christian bias, and you can download it from Google.
1:00:14
SPEAKER_02: It is draw-dropping.
1:00:15
SPEAKER_02: So let me read some of the factoids from this 550-page report.
1:00:20
SPEAKER_02: During the Biden administration, HHS, Department of Health and Human Services, issued guidance and a final rule preventing foster children from being placed with Christian foster families, unless the families uh acknowledged and agreed with the administration's views on sexual orientation and gender identity.
1:00:40
SPEAKER_02: So if you've got a Christian foster family that's anti-trans, and then they are not eligible to be a foster family.
1:00:48
SPEAKER_02: Okay, the FBI investigated, monitored, and surveilled traditional Catholics who had engaged in no criminal misconduct and were not even accused of criminal misconduct.
1:01:01
SPEAKER_02: The Southern Poverty Law Center, which has now been disgraced, as many know, right?
1:01:06
SPEAKER_02: Because it turns out they were actually funding the neo-Nazis in Charlottesville in order to create more funding for themselves, like they created the like disgrace.
1:01:14
SPEAKER_02: And it turns out one of the leaders of the Southern Poverty Law Center was having an affair with one of the neo-Nazis.
1:01:19
SPEAKER_02: It's unreal.
1:01:20
SPEAKER_02: Look it up if you don't know it.
1:01:22
SPEAKER_02: Anyway, the Southern Poverty Law Center was identifying problematic Christians and Catholics based on their preferred popes, their devotion to the traditional Latin mass and their views on abortion, immigration, and sexuality, reporting them to the FBI, which then started investigating those Catholics.
1:01:41
SPEAKER_02: Number three, the DOJ prosecuted nonviolent, nonviolent pro-life Christian demonstrators under the Freedom of Access to Clinic Entrances Act with an average sentence sought and gotten of 27 months in prison.
1:01:59
SPEAKER_02: But it gave free passes or reduced sentences to violent pro-choice demonstrators who attacked pregnancy resource centers.
1:02:07
SPEAKER_02: Average sentence, I mean, you couldn't give them nothing when they were actually violent.
1:02:10
SPEAKER_02: Average sentence, 12 months.
1:02:12
SPEAKER_02: So the Christian nonviolent people got 27, the violent protesters got 12 months.
1:02:16
SPEAKER_02: This is the Biden DOJ.
1:02:18
SPEAKER_02: This is Merrick Garland.
1:02:20
SPEAKER_02: And meanwhile, prosecutors in those cases were directly in touch with pro-choice abortion NGOs who gave them dossiers on known pro-life advocates.
1:02:30
SPEAKER_02: So they were, it was like this, they were getting dossiers on private persons who were anti-abortion.
1:02:35
SPEAKER_02: Okay, the DOJ Civil Rights Division under Biden issued a brochure that excluded Christians from the list of possible victims of actionable discrimination.
1:02:45
SPEAKER_02: In other words, it is impossible to discriminate against a Christian.
1:02:50
SPEAKER_02: Okay, the museums on the national mall.
1:02:53
SPEAKER_02: I could keep going, 550 pages.
1:02:54
SPEAKER_02: It's a lot of pages.
1:02:55
SPEAKER_02: The museums on the national mall told groups of Christian pro-life students and parents who participated in the 2023 March for Life to remove their religious attire or leave.
1:03:09
SPEAKER_02: Okay, on Good Friday, as an insult to the religious believers of our country, President Biden issued a proclamation for Transgender Day of Visibility to be celebrated on Easter Sunday.
1:03:23
SPEAKER_02: On Easter Sunday.
1:03:24
SPEAKER_02: Like you don't time it on Good Friday and Easter Sunday unless you're trying to insult Christian believers who are against trans issues.
1:03:33
SPEAKER_02: I'm surprised the auto pen had such discriminatory intent.
1:03:37
SPEAKER_02: Just amazing.
1:03:39
SPEAKER_02: The Department of Labor replaced its faith office with the DEI office.
1:03:44
SPEAKER_02: They used to have a faith office, canceled it, canned it, new DEI office, and American embassies, including the US Embassy to the Holy See, to the Vatican, put up pride flags during the Biden administration.
1:03:56
SPEAKER_02: So these examples go on and on.
1:03:59
SPEAKER_02: And as you read them and read more of them and read more of them, a certain impression forms that what we are witnessing here, and it's represented by the Biden versus the Trump administration, is a war between Christian and anti-Christian forces where the main battleground is sexuality.
1:04:19
SPEAKER_02: Trans, gay pride, abortion, all those issues which are connected to human sexuality become the thing that is used as the instrument of war in a battleground between Christian and non-Christian forces.
1:04:34
SPEAKER_02: And I've heard very sophisticated intellectuals argue that there's no necessary conflict between, you know, these sexual movements and religious movements, religious faith.
1:04:46
SPEAKER_02: And in the abstract, I think they might be right, but the examples make it feel like an illusion because it's just example after example of example of the Biden administration going to war against Christian believers and doing so often on the basis of human sexuality, abortion, trans, gay, whatever.
1:05:06
SPEAKER_02: And it's totally contrary to the Constitution because the core command of their two religious clauses, free exercise and establishment, is that the government is not supposed to be for or against any religion or any religion collectively.
1:05:20
SPEAKER_02: It's not supposed to be picking winners and losers in the religious domain.
1:05:24
SPEAKER_02: So the OLC opinion fits into that larger pattern.
1:05:27
SPEAKER_02: It's uh, you know, when a gener when generally available funding is available to secular uh uh NGOs or or nonprofit charities, it should be available to religious ones, Christian ones as well.
1:05:41
SPEAKER_02: And so uh discrimination against religion is unconstitutional.
1:05:45
SPEAKER_02: And the OLC has done something really wonderful in this case under Elliott Geyser's leadership, and it fits into a broader pattern of a federal government that used to be deeply anti-Christian and finally is turning that around.
1:05:58
SPEAKER_00: Wow, I didn't know so many of those things, Josh.
1:06:00
SPEAKER_00: So thank you.
1:06:01
SPEAKER_00: I appreciate you listing all those examples because I don't think that has been widely publicized at all.
1:06:05
SPEAKER_00: I try and stay pretty in tune with these kind of things.
1:06:07
SPEAKER_00: And as a Christian, I feel like, you know, I keep up with these things.
1:06:09
SPEAKER_00: I haven't heard most of those examples.
1:06:12
SPEAKER_00: That's really sad.
1:06:13
SPEAKER_00: You still see lots of people on the left pushing the narrative that white Christians are the most dangerous people, white Christian men, I should say, in particular, are the most dangerous people in our country, things like that.
1:06:22
SPEAKER_00: Um, and we had a president who basically launched a full-scale attack on Christian believers.
1:06:28
SPEAKER_00: That should be what the focus of our discussion is.
1:06:30
SPEAKER_00: So um thank you for reading through those, Josh.
1:06:32
SPEAKER_00: Elon, do you have any final thoughts?
1:06:34
SPEAKER_01: Uh the only final thought is to thank our audience for clinging, along with us, to our guns and our religion and nativist.
1:06:43
SPEAKER_01: I don't know what to that's obviously a play on words for Obama, if you remember back then and clinging to guns and religion.
1:06:49
SPEAKER_01: And maybe that's our episode title, actually, Josh.
1:06:51
SPEAKER_01: Uh so that's uh let's let's work with that.
1:06:54
SPEAKER_01: And to our audience, thank you again.
1:06:56
SPEAKER_01: That's all the time we had for today.
1:06:58
SPEAKER_01: A lot of content.
1:06:59
SPEAKER_01: We hope you enjoyed it, and we'll see you next week.