Latest / rationally BASED / Episode 41 | Fake News and Foreign Voters

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Episode 41 | Fake News and Foreign Voters · rationally BASED

0:00
SPEAKER_00: Welcome back to Rationally Based, a podcast about law and politics on the edge.
0:03
SPEAKER_00: I'm your host, Elon Worman, a law professor at the University of Minnesota Law School.
0:07
SPEAKER_03: I'm Catherine Johnson with Center of the American Experiment.
0:10
SPEAKER_01: And I'm Josh Kleinfeld, RAUS Professor of Law at Scalia Law School.
0:14
SPEAKER_01: Katherine, what's on deck?
0:16
SPEAKER_03: Well, there is a lot of news to cover, as always.
0:18
SPEAKER_03: First, Trump has banned some of the fake news media, as I would call them, and he would as well, from the White House.
0:25
SPEAKER_03: And Politico, for one, is mad, big mad.
0:28
SPEAKER_03: So can he do that?
0:30
SPEAKER_03: Do they have a procedural due process right?
0:32
SPEAKER_03: That one sounds dubious to me, but second, we'll tackle the merits of their First Amendment claims as well.
0:38
SPEAKER_03: And third, a federal judge has ruled a 40-year-old federal statute prohibiting non-citizens from voting is unconstitutional.
0:47
SPEAKER_03: Talk about sounding dubious.
0:49
SPEAKER_00: Let's dive in.
1:03
SPEAKER_00: Well, welcome back, everyone, to episode 41.
1:06
SPEAKER_00: Please hit that like and subscribe button.
1:08
SPEAKER_00: As always, follow us on Substeck as well, rationally based.substeck.com.
1:12
SPEAKER_00: Okay, Catherine, where should we start?
1:15
SPEAKER_03: Okay, I have a quick question for you first.
1:17
SPEAKER_03: And I don't know that this could possibly be a quick conversation because it's what everyone is talking about.
1:22
SPEAKER_03: And I have been listening to hours and hours of podcasts about it myself.
1:26
SPEAKER_03: But the Cornell 7 case.
1:28
SPEAKER_03: Um, do you guys have any like high-level thoughts about the narrative around that and what people might be getting right or wrong?
1:35
SPEAKER_00: The only thing I'll say about this is you should watch our Lindsay Clancy episode.
1:40
SPEAKER_00: It's called Conservatives Are Getting the Lindsey Clancy Case Wrong.
1:44
SPEAKER_00: What we basically argue there is the problem was not the insanity defense, or at least not entirely, right?
1:49
SPEAKER_00: We come to some conclusion about maybe it should be an affirmative defense and so on, which, but that's really not the core problem.
1:56
SPEAKER_00: The jury is not the core problem.
1:57
SPEAKER_00: It's rather identity politics where justice isn't, I think Josh said it best, you said it best, right?
2:02
SPEAKER_00: It's where justice is not about individual moral culpability, but rather it's about which groups win and lose, right?
2:09
SPEAKER_00: And here in the Cornell 7 case, again, we're we don't have time today to dive into the to the legal weeds of it, and it's not really the same legal issues as in the Lindsay Clancy case, but it's the same illness, right, that you could see is infecting the public discourse right now, which is it's all about identity politics.
2:26
SPEAKER_00: It's pitting men versus women.
2:29
SPEAKER_00: So watch our Lindsey Clancy episode.
2:31
SPEAKER_00: Uh, you will have, I think, you'll you'll glean insight for this case as well.
2:36
SPEAKER_00: That's really all I have to say about it at the moment, anyway.
2:38
SPEAKER_00: Catherine, what about you?
2:39
SPEAKER_00: What do you think?
2:40
SPEAKER_03: Well, I think my point stands that the main issue is women in um our society today thinking that they should be able to behave and act however they want and incur no consequences.
2:50
SPEAKER_03: I also think it's interesting to see people talking about uh, you know, the same people who we've talked about on this podcast who are obsessed with due process for illegal immigrants and who are often doing heinous things like rape.
3:03
SPEAKER_03: Uh they are obsessed with getting them due process.
3:06
SPEAKER_03: But when it comes to these boys at Cornell, they are not obsessed with due process.
3:11
SPEAKER_03: They're angry that Trump has put in place some form of due process on our colleges, kind of swinging it away from that Biden era of like kangaroo courts, or maybe that was Obama era.
3:21
SPEAKER_03: It's been going on for a while.
3:22
SPEAKER_03: And I just think that that is, of course, such an, I guess, ironic piece of this all.
3:27
SPEAKER_01: And I would just reinforce.
3:29
SPEAKER_01: Oh, sorry, sorry, Elon.
3:30
SPEAKER_01: I was just gonna reinforce both your points, really.
3:33
SPEAKER_01: But uh, you know, besides the Lindsey Clancy episode, uh, Elon and I have now written an op-ed together about the Lindsey Clancy case, which folks can read on the Daily Wire.
3:42
SPEAKER_01: I'm not sure if it's out quite yet.
3:43
SPEAKER_01: It might be coming later this week, but um uh it it makes the same basic point that, you know, what a criminal trial is for is determining the individual guilt or innocence, the culpability of one person, the defendant.
4:01
SPEAKER_01: But it is not the way we should figure out group rights, like who wins between women and men, black, white, whatever your groups are.
4:11
SPEAKER_01: Once you start doing that with criminal trials, you are sure to have a miscarriage of justice.
4:16
SPEAKER_01: And part of the problem that we see on the left is this attitude to justice where it's precisely it's not about individual guilt or innocence or culpability, it's about which side is winning in the great war between the groups.
4:28
SPEAKER_01: And at that point, it's it's you know, it's terrible for the law, it's terrible for real justice.
4:34
SPEAKER_00: One more observation about what Catherine said.
4:36
SPEAKER_00: Uh, why is it that there are no protests when unlawfully present aliens, for example, you know, rape and even murder young girls in the United States?
4:48
SPEAKER_00: And like they wouldn't even stand for like some girl's mother, right?
4:50
SPEAKER_00: Deceased girl's mother at the State of the Union, if I'm recalling correctly.
4:54
SPEAKER_00: And here we have like a very murky situation where everybody was intoxicated and it all seems to have been voluntary, and the country's up in arms and the left is up in arms.
5:02
SPEAKER_00: Why is that?
5:02
SPEAKER_00: I don't actually know what the answer is, but there's something pathological there.
5:06
SPEAKER_00: There's something going on there.
5:07
SPEAKER_01: Elan, we answered that.
5:09
SPEAKER_01: It's it's who is our side, right?
5:11
SPEAKER_01: So it's like a politics.
5:13
SPEAKER_01: We're on the sides of immigrants, including illegal immigrants, including ones who commit crimes, including ones who commit sexual crimes.
5:20
SPEAKER_01: We're against American boys who are accused of rape.
5:24
SPEAKER_01: We're for women in that context.
5:25
SPEAKER_01: It's just you choose your side, and I almost know it by instinct now.
5:29
SPEAKER_01: I'm never surprised.
5:30
SPEAKER_01: Like you just know who the sides are.
5:33
SPEAKER_01: And in an individual criminal uh case, um these, especially on the left, people just take sides with their own.
5:42
SPEAKER_01: And I think it's terrible.
5:44
SPEAKER_01: That's not how crime criminal law is supposed to work.
5:47
SPEAKER_03: Totally.
5:47
SPEAKER_03: Well, let's jump into our first official topic of the episode, which is the White House press ban.
5:54
SPEAKER_03: It's this fight between the Trump administration and the press.
5:57
SPEAKER_03: I mean, a fight that's been going on forever, but he kind of kicked things up a notch by recently barring CNN, MS Now, and Politico from the White House, saying that the outlets were publishing fake news.
6:08
SPEAKER_03: Of course, fact check true.
6:10
SPEAKER_03: Uh the three organizations have now sued, alleging violations of the first and fifth amendments.
6:16
SPEAKER_03: And I love, I love what Trump said about them.
6:19
SPEAKER_03: He said, quote, the White House is not instituting an assault on the free press, something which I cherish.
6:24
SPEAKER_03: It is instituting an assault on the fake news, something that has grown like cancer in our beloved United States of America.
6:31
SPEAKER_03: And just like a distinction, I think that's critical to point out at the outset.
6:35
SPEAKER_03: Trump is not telling these outlets what they can and can't publish.
6:38
SPEAKER_03: These outlets can publish whatever they want, and they're free to say whatever they want.
6:43
SPEAKER_03: But the issue is whether or not they have a press pass in particular.
6:48
SPEAKER_03: And does the Constitution require him to give them a press pass or prohibit him from taking away their press pass, which apparently is different, we'll get into, um, according to the lawyers, anyway?
7:00
SPEAKER_00: Yes, the lawyers always come up with crazy distinctions, but go on.
7:05
SPEAKER_03: Their basic allegation is that the White House revoked their access because the president disliked their coverage of him and his administration.
7:13
SPEAKER_03: That's a First Amendment retaliation claim and a viewpoint discrimination claim.
7:18
SPEAKER_03: They're also claiming he did it without notice or an opportunity for a hearing, a Fifth Amendment due process claim.
7:25
SPEAKER_03: Everyone thinks they should get due process.
7:27
SPEAKER_03: Okay, now the district court in this case didn't actually say anything really about the merits of the First Amendment issue.
7:34
SPEAKER_03: So the fake news organizations argue in the complaint that this is a procedural due process problem, that they have a right to be heard before their prespasses are provoked.
7:43
SPEAKER_03: Like, I don't know what they could say that is really gonna change Trump's mind on this, but that seems to be their main goal here is they just want to be heard out.
7:52
SPEAKER_00: Yeah, what kind of hearing do they get?
7:54
SPEAKER_00: An oval office hearing?
7:56
SPEAKER_03: Right.
7:56
SPEAKER_03: Where do you hold it?
7:57
SPEAKER_03: Is it just Trump sitting there?
7:58
SPEAKER_03: There's other people.
7:59
SPEAKER_03: I don't understand, but that seems to be their claim.
8:01
SPEAKER_03: Um they say that media organizations, quote, have liberty and property interests in their press credentials and access those credentials afford to the White House grounds to report on the president and his administration.
8:14
SPEAKER_03: The ban deprives them of those interests without meeting the bare minimum requirements of due process.
8:19
SPEAKER_03: Advance notice based on clear standards and an opportunity to be heard.
8:23
SPEAKER_03: Now, apparently, there is actually, this is where things get really crazy, if you ask me, there is actually a favorable case for them in the DC circuit from the 70s.
8:32
SPEAKER_03: Um, Cheryl V.
8:33
SPEAKER_03: Knight from 1977.
8:36
SPEAKER_03: Basically, this is a journalist who was denied a White House press pass after the Secret Service objected for security reasons.
8:43
SPEAKER_03: The DC Circuit said the procedural requirements of notice of the factual basis for denial, an opportunity for the applicant to respond to these, and a final written statement of the reasons for denial are compelled by the foregoing determination that the interest of a bona fide Washington correspondent in obtaining a White House press pass is protected by the First Amendment.
9:05
SPEAKER_03: The First Amendment interest undoubtedly qualifies as liberty, which may not be denied without due process of law under the Fifth Amendment.
9:13
SPEAKER_03: And I think maybe the DC circuit reaffirmed this again in 2020.
9:17
SPEAKER_03: So, Elon, you are going to need to explain to us all of that.
9:20
SPEAKER_03: How is there a property or liberty interest in going to the White House and basically lying about the president and what's going on on a day-to-day basis, if you're, you know, CNN or whatever.
9:33
SPEAKER_00: Yeah.
9:34
SPEAKER_00: So I'll kick us off, but I know that um Josh also has thoughts about here.
9:38
SPEAKER_00: The past is really like a foreign country when you think about what was going on in the 1970s.
9:43
SPEAKER_00: So I want to be clear to our listeners, what we're about to talk about is not this dispute that Josh and I had before about what is substantive due process, what is procedural due process.
9:52
SPEAKER_00: It's not about that.
9:54
SPEAKER_00: It's about what qualifies as life, liberty, or property that triggers the requirements of due process before someone could take it away.
10:02
SPEAKER_00: Okay.
10:03
SPEAKER_00: So historically, under the original meaning of, you know, magna carta, okay, or the Fifth Amendment or the 14th Amendment, right?
10:13
SPEAKER_00: It says no person shall be deprived of life, liberty, or property without due process of law.
10:17
SPEAKER_00: What does that mean?
10:18
SPEAKER_00: You can't be executed without established law, without an adjudication.
10:23
SPEAKER_00: You know, you have a right to be heard that you did the thing justifying your execution.
10:26
SPEAKER_00: You can't be imprisoned.
10:28
SPEAKER_00: Your liberty can't be taken away from you, literally, your freedom of movement, of locomotion, and your property.
10:33
SPEAKER_00: They can't just decease you of your house.
10:35
SPEAKER_00: Okay, they cannot confiscate your house as punishment for some crime.
10:39
SPEAKER_00: What do these all have in common?
10:41
SPEAKER_00: Life, liberty, and property.
10:42
SPEAKER_00: They all pre-exist government.
10:44
SPEAKER_00: These are natural rights.
10:46
SPEAKER_00: These are and life is an inalienable natural right.
10:50
SPEAKER_00: Okay.
10:51
SPEAKER_00: And so the point is that part of the, you know, we the deal is we get out of the state of nature and enter civil society so the government protects us in these rights.
11:00
SPEAKER_00: And that means they can't just deprive us of them without process and arbitrarily.
11:05
SPEAKER_00: Okay.
11:05
SPEAKER_00: Is the White House press pass a natural right?
11:12
SPEAKER_00: It's ridiculous.
11:13
SPEAKER_00: Now, it might extend beyond just natural rights, but the point is the due process clause was historically understood to relate to what are called private rights.
11:21
SPEAKER_00: Natural rights are private rights.
11:23
SPEAKER_00: There might be other private rights, especially, you know, um positive rights that are there to protect your private rights, like the jury right or something like that.
11:31
SPEAKER_00: But the point is the due process clause protects you in your private rights, these rights that pre-exist government, most fundamentally your natural rights to life, liberty, or property.
11:40
SPEAKER_00: Okay.
11:40
SPEAKER_00: Then come the 1970s, the liberal war in court, burger court, and we get what's called the due process revolution.
11:50
SPEAKER_00: This all starts with a case called Goldberg v.
11:53
SPEAKER_00: Kelly, which basically said that you not only are your private rights protected by the due process clause, but your right to receive welfare benefits is property within the meaning of the due process clause.
12:07
SPEAKER_00: But it again, historically, it's not property, right?
12:10
SPEAKER_00: It's a public privilege, it's an entitlement, not something you get in the state of nature.
12:15
SPEAKER_00: It's something that the government can choose to provide you or not.
12:19
SPEAKER_00: And the court in Goldberg v.
12:20
SPEAKER_00: Kelly says, at least in Goldberg v.
12:22
SPEAKER_00: Kelly, where it was the pre precursor to TANF, temporary assistance for any family, or SNAP, or what was it?
12:28
SPEAKER_00: Not what was it called before then?
12:29
SPEAKER_00: Maybe TANF was the old name.
12:31
SPEAKER_00: I can't remember.
12:31
SPEAKER_00: But or ADFC, aid to families with dependent children, I think was uh maybe the issue.
12:36
SPEAKER_00: It's they're like, well, they're on the edge of subsistence.
12:39
SPEAKER_00: You know, they need these welfare benefits.
12:41
SPEAKER_00: And so once they're receiving them, they are entitled to continue receiving them.
12:45
SPEAKER_00: And the government cannot take away your ongoing receipt of those public welfare benefits without giving you what was called a pre-deprivation hearing of some kind.
12:56
SPEAKER_00: Again, as a matter, as a historical matter, it's pretty crazy, clearly outside the original scope of what life, liberty, and property meant.
13:04
SPEAKER_00: Not totally crazy to steel man the other side, and then I'll let jump Josh jump in here.
13:10
SPEAKER_00: Not totally crazy to think if we're gonna create an entitlement society where people truly do depend on the government teat, so to speak, you know, for their very existence and subsistence, to say, well, if we're gonna create that dependent class of people, we can't just strip them of the thing we give them that they depend upon without some degree of process.
13:31
SPEAKER_00: So in some respects, that makes sense as a moral and normative matter, not so much as a original as constitutional matter.
13:39
SPEAKER_00: Josh, does that uh all resonate with you?
13:42
SPEAKER_01: I I agree with absolutely everything.
13:44
SPEAKER_01: And what I just carry the story forward, right?
13:46
SPEAKER_01: So you sort of stopped at Goldberg V.
13:48
SPEAKER_01: Kelly in the 1970s.
13:49
SPEAKER_01: But what's happened since then in the, you know, in the last 50, 60 years?
13:53
SPEAKER_01: And the way it works now, uh, under the due process clause is that a person has an interest provided by the government, and it can be virtually any interest at all.
14:02
SPEAKER_01: It can be a press pass, welfare benefits, it can be your student visa.
14:06
SPEAKER_01: You know, under what conditions can the government take away the privilege of a student visa?
14:10
SPEAKER_00: Public employment is a big one, like college professors at public universities or civil servants, yeah.
14:15
SPEAKER_01: Or when I was at the Department of Education, continuing grants, what you do is there's a private person or institution and it has an interest in something provided by the government.
14:23
SPEAKER_01: And the government wants to take it away.
14:25
SPEAKER_01: And the way the courts understand the due process clause is if you're gonna take away someone's private interest, the government has to give them notice in a hearing, meaning it basically has to say that it's withdrawing it in advance, why it's withdrawing it, provide a legal basis and have a hearing about it.
14:41
SPEAKER_01: And then the person doing the hearing, which is a judge, a court, can review that the government's reasons for legal adequacy.
14:50
SPEAKER_01: So, in effect, what that means is way more power for courts and way more litigation.
14:56
SPEAKER_01: And it really shifts us from between one kind of society and another.
15:00
SPEAKER_01: So, society one, you know, someone says, I'm the boss, I don't like how you've been working, you're fired, right?
15:07
SPEAKER_01: And that's the end of the matter.
15:09
SPEAKER_01: In society two, that's not how it works.
15:12
SPEAKER_01: It's society we in fact have, where you say, I'm the boss, I'm firing you because you showed up late three times, which is a violation of employee handbook provision, you know, 6.2 or whatever, which states that you can only be tardy more than no more than twice.
15:29
SPEAKER_01: And then the employee says, You haven't fired other people who showed up late.
15:33
SPEAKER_01: You're really doing this because I'm, you know, fill in the blank, a woman, disabled, a minority, whatever.
15:38
SPEAKER_01: And then there's litigation, and who makes the decision?
15:42
SPEAKER_01: Not the nominal boss, the CEO or the president or whoever, but the court.
15:46
SPEAKER_01: The court gets to review the nominal bosses' reasons for adequacy.
15:50
SPEAKER_01: And so what we've really done with the due process revolution, whatever its intent, is move our whole society from world one, where there are like people in charge of the institution, like presidents and CEOs, or and society two, where there are courts reviewing the adequacy of nominal bosses' reasons.
16:10
SPEAKER_01: And we've moved from society one to society two.
16:14
SPEAKER_01: And in this case, what happened?
16:16
SPEAKER_01: Oh, sorry.
16:18
SPEAKER_00: Also to the civil rights revolution, right?
16:20
SPEAKER_00: So you're talking about private employment too, in that case.
16:23
SPEAKER_01: Yeah, 100%.
16:24
SPEAKER_01: And so in this case, what happened is that I think Trump still thinks he lives in world one, you know, society one.
16:32
SPEAKER_01: And I don't blame him.
16:33
SPEAKER_01: I wish we did.
16:33
SPEAKER_01: So the Trump admin is saying, we're in world one.
16:36
SPEAKER_01: We don't have to.
16:37
SPEAKER_01: He was the apprentice, right?
16:39
SPEAKER_01: Or whatever.
16:39
SPEAKER_01: You're fired, right?
16:41
SPEAKER_01: Give that back.
16:42
SPEAKER_03: Found the apprentice, yes.
16:44
SPEAKER_03: Exactly.
16:44
SPEAKER_01: So he's saying, um, I'm giving you the privilege of coming into my house and talking to me about things.
16:50
SPEAKER_01: I don't give it to everybody.
16:52
SPEAKER_01: There's millions of news organizations, probably thousands of news organizations who don't get it.
16:57
SPEAKER_01: You've been abusing it, I'm not going to give it to you anymore.
16:59
SPEAKER_01: And they're saying, oh no, this is world two, this is society number two.
17:03
SPEAKER_01: You have to give us your reasons and a written statement, and then we litigate about it, and then a court decides.
17:09
SPEAKER_01: And the court agreed that we're in society too.
17:13
SPEAKER_01: But here's the self-reflexive irony of it.
17:15
SPEAKER_01: Who decides whether the court gets to decide?
17:18
SPEAKER_01: The court.
17:20
SPEAKER_01: Right?
17:21
SPEAKER_01: So, of course, the court decides that the court's in charge of the decision.
17:24
SPEAKER_01: So that's that's my take on this, my you know, typically philosophical take on this.
17:29
SPEAKER_01: But it also is just that's the legal situation we have.
17:32
SPEAKER_01: That's the society we've created.
17:34
SPEAKER_01: That's why, you know, if if you're at uh at a dean at a university and you want to get rid of a bad administrator, like a bad secretary, it's really hard.
17:46
SPEAKER_01: You need to create a written record, you need to show violations of employee handbooks and stuff like that, because you're anticipating the litigation.
17:52
SPEAKER_01: Ultimately, the decision belongs to the court.
17:54
unknown: Yeah.
17:55
SPEAKER_03: Okay, I admit, I guess I thought we were in World One.
17:57
SPEAKER_03: Like, I don't this is very crazy to me.
17:59
SPEAKER_03: Like, if you work for the government, basically, like you, it's just really hard to get rid of you.
18:03
SPEAKER_03: You have all of these rights that you can demand a trial and things like that.
18:07
SPEAKER_03: I mean, and same with welfare benefits.
18:09
SPEAKER_03: Like, what if you're, you know, I've talked about this before.
18:11
SPEAKER_03: I'm in Minnesota.
18:12
SPEAKER_03: We had all these fraud scandals.
18:14
SPEAKER_03: What if you find out this person's committing fraud and you take away their welfare benefits?
18:19
SPEAKER_03: Is that also like you have to go through some crazy process just to take them off if they've been found to commit fraud?
18:26
SPEAKER_00: 100%.
18:27
SPEAKER_00: Yeah, it's it's it's a bit it's a bit tricky.
18:30
SPEAKER_00: Okay, and so um the answer I think is yes and no.
18:33
SPEAKER_00: So not 100% like Josh said, maybe like 80% like Josh said.
18:36
SPEAKER_00: So the first thing carrying the story forward is the Supreme Court did realize, like, okay, this is probably a mistake, and they started walking back a little bit the due process revolution.
18:46
SPEAKER_00: And they started saying things like, you must have a genuine expectation of continued receipt of benefits and things like that.
18:52
SPEAKER_00: And they'll vary how much procedure is required based on how severe the deprivation will be to you.
18:57
SPEAKER_00: So if you're on the edge of subsistence, you get you still get a pre-deprivation hearing.
19:01
SPEAKER_00: That's Goldberg against Kelly.
19:03
SPEAKER_00: But in Minnesota and in California and a lot of these fraud cases, it's not actually the individuals, it's a fine distinction, right, that are on the edge of subsistence that are being cut off.
19:12
SPEAKER_00: It's the providers that are being cut off.
19:14
SPEAKER_00: But what's the difference, right?
19:16
SPEAKER_00: Because the providers are providing for people on the edge of subsistence.
19:19
SPEAKER_00: So you can see the argument, as Josh says, is it should it should apply this the same, right?
19:24
SPEAKER_00: But you could sort of make the distinction.
19:26
SPEAKER_00: I do think I'm actually quite intimately familiar with the Medicaid statutes.
19:30
SPEAKER_00: And it is actually surprisingly easier for the government to take away Medicaid benefits uh than it is like other kinds of benefits.
19:37
SPEAKER_00: But but still, yeah, the the world you describe uh uh is a is a serious concern here.
19:43
SPEAKER_00: And so bringing it up to this case, in light of all those things, what did Josh, what did we say?
19:49
SPEAKER_00: Public employment, right?
19:51
SPEAKER_00: College teaching at a at a public university, uh, the receipt of welfare benefits, being a security guard, you know, at a school, all these things are public benefits, you're entitled to some degree of due process.
20:01
SPEAKER_00: It's not crazy to say that, well, once you've received a press pass, just like once you've received the welfare benefits, do you have a genuine expectation of continued uh receipt of the welfare benefits?
20:12
SPEAKER_00: Do you have a genuine expectation of continuing to receive that press pass?
20:17
SPEAKER_00: And there was a case in the 70s called Cheryl in the DC Circuit where they said yes, right?
20:22
SPEAKER_00: So it's not crazy to say, in light of Goldberg V.
20:26
SPEAKER_00: Kelly, you know, what's in the water in the 1970s and in the air in the 1970s, that the DC Circuit would say that.
20:32
SPEAKER_00: But the fact that a press credential is property within the meaning of the 14th Amendment or Fifth Amendment or whatever, itself shows you that all of these cases are crazy, right?
20:44
SPEAKER_01: Well, I don't think, okay, I don't think this structure that we put into place, this world number two that I, you know, described, I don't think it's insane.
20:54
SPEAKER_01: I don't think it's crazy, but I also don't think it's working, right?
20:57
SPEAKER_01: So the due process revolution was meant to ensure that power is used on the basis of reason.
21:04
SPEAKER_01: The intuition is that the arbitrary use of governmental power is unjust.
21:08
SPEAKER_01: It shouldn't be arbitrary.
21:09
SPEAKER_01: There should be reason supporting it.
21:11
SPEAKER_01: And, you know, as government expanded and um was involved in giving grants and giving welfare benefits and giving press passes and, you know, the complexity of modern government, um, the thought was when the government deprives someone of one of these things, they should have to give reasons.
21:29
SPEAKER_01: That's not too much to ask in a rule of law society.
21:32
SPEAKER_01: Give us your reasons and answer for your reasons.
21:35
SPEAKER_01: It's reasonable at first glance, but functionally, what it means is just substitute, substituting the court's reasons for everyone else's reasons, right?
21:44
SPEAKER_01: So the CEO, the president, they have to, they they might be legitimate, right?
21:49
SPEAKER_01: They like were picked by the shareholders or picked by the American people, but they have to explain themselves to the court, who then has the power to decide who wins.
21:58
SPEAKER_01: So the court, the judge, is in charge.
22:00
SPEAKER_01: Of whose reasons are adequate.
22:02
SPEAKER_01: And it makes almost every decision in government a litigation event.
22:06
SPEAKER_01: Cancel a grant, get sued, litigation event.
22:08
SPEAKER_01: Fire someone, get sued, litigation event.
22:11
SPEAKER_01: So it's supposed to be rule of law.
22:14
SPEAKER_01: It becomes rule of judges.
22:16
SPEAKER_01: And so I think this is just another instance of, you know, there was a dream, it was a beautiful dream, it failed in our broken world.
22:24
SPEAKER_01: And uh, you know, that could be my theme song, the dream that failed in a broken world.
22:28
SPEAKER_01: Very cheerful.
22:30
SPEAKER_03: Yeah, because like Elon said, it it isn't an absurd concept, the idea that if you're giving someone really on the edge of poverty, say, um, help, that you can't just pull it away at any point.
22:41
SPEAKER_03: But our welfare state has grown to the point that it's so massive that this is kind of an absurd notion.
22:46
SPEAKER_03: The people who are getting these services aren't necessarily just on the brink of poverty.
22:50
SPEAKER_03: It's all kinds of people.
22:51
SPEAKER_03: And so, in a world where we were only helping the most needy, one that I think as conservatives, we think is best, this seems like maybe it makes sense, but not at the way we're looking at it uh today.
23:02
SPEAKER_01: I was looking at hundreds when I was at the Department of Education, I was looking at like$100 million grants to universities with$50 billion.
23:09
SPEAKER_01: They are not the needy among us.
23:11
SPEAKER_01: Come on.
23:13
SPEAKER_01: Sorry, I can't.
23:14
SPEAKER_03: Oh, that's infuriating.
23:15
SPEAKER_03: Okay.
23:16
SPEAKER_03: So let's turn to the first amendment argument that they make here.
23:19
SPEAKER_03: Certainly, these media companies don't have a general like constitutional right to walk into the White House, right?
23:26
SPEAKER_03: And surely the president can decide which reporters he personally wants to talk to, right?
23:32
SPEAKER_03: I mean, he picks people out there, he talks to certain people.
23:35
SPEAKER_03: So why is this aspect potentially unconstitutional?
23:39
SPEAKER_00: It says right there, there shall be a White House, and the press shall be allowed to go there in the constitution.
23:44
SPEAKER_00: Didn't you see that clause?
23:45
SPEAKER_01: It specifically says politico cannot be denied access.
23:48
SPEAKER_01: It's in the founder said so.
23:50
SPEAKER_00: The Philadelphia Gazette, you know.
23:52
SPEAKER_00: Okay.
23:53
SPEAKER_00: Uh so again, up starting up front, Catherine, you already made this point.
23:58
SPEAKER_00: Nobody is telling them that they can't publish whatever they want to publish, in the same way that no one is telling me and Josh that we can't publish whatever we want to publish on the Daily Wire or whatever.
24:09
SPEAKER_00: The question here seems to be I mean, there are a couple questions.
24:12
SPEAKER_00: One is, does the institutional press have somehow more right than every man on the street to publish their thoughts and sentiments?
24:20
SPEAKER_00: This is a debate.
24:20
SPEAKER_00: We've talked about it before.
24:21
SPEAKER_00: I think we talked about Citizens United, but it's an important topic.
24:24
SPEAKER_00: And Eugene Volk uh has uh the article about this.
24:27
SPEAKER_00: We won't rehash that.
24:28
SPEAKER_00: You can visit, uh, you can listen to our old episodes.
24:31
SPEAKER_00: But Blackstone described the right of the freedom of press to be the right of every man to publish their sentiments.
24:36
SPEAKER_00: So speech is speech.
24:38
SPEAKER_00: Press is the right to commit your ideas to writing.
24:41
SPEAKER_00: Everybody has that power.
24:43
SPEAKER_00: There's very little evidence, there's some, that the institutional press has some special protections under the First Amendment, right?
24:50
SPEAKER_00: So they simply don't have that protection.
24:52
SPEAKER_00: Okay.
24:53
SPEAKER_00: So what does this case then become?
24:56
SPEAKER_00: It becomes a case about ready for it?
24:59
SPEAKER_00: Can you guess what I'm gonna say?
25:01
SPEAKER_00: Um constitutional conditions.
25:03
SPEAKER_00: Yes, just like Josh, you know, Josh has one hammer.
25:07
SPEAKER_00: No, you have many hammers, but one big hammer, a sledgehammer, and which is judges, rule by judges, juristocracy, and everything starts to look like a nail, you know, the judicial nail uh to Josh.
25:18
SPEAKER_00: Everything to me looks like an unconstitutional conditions problem.
25:22
SPEAKER_00: So we've talked about this several times in the last episode.
25:24
SPEAKER_00: What why is this an unconstitutional conditions problem?
25:27
SPEAKER_00: Because this is a public benefit, a public privilege, not a private right.
25:31
SPEAKER_00: So again, meaning due process doesn't apply, which is the conversation we just had, or it shouldn't apply as a historical matter, right?
25:38
SPEAKER_00: The courts say it applies, but it shouldn't apply as a historical matter.
25:41
SPEAKER_00: But what else is implicated by public privileges is you can condition, the government can condition your receipt of a public privilege to which you're not entitled, doesn't belong to you in the state of nature.
25:52
SPEAKER_00: The government doesn't have to provide it for you on reasonable conditions, including conditions requiring you to forgo certain rights you might otherwise have if you chose not to accept this benefit that you're not required to accept.
26:06
SPEAKER_00: You can decline it.
26:07
SPEAKER_00: You can decline welfare.
26:08
SPEAKER_00: Remember, I mentioned this in the welfare context before, like the home welfare searches that you have to, you in the 70s had to submit to a suspicionless, warrantless search of your home.
26:17
SPEAKER_03: You also mentioned it with, I think, student visas when we were talking about people getting deported, possibly because they were saying things that were anti-American and crazy.
26:24
SPEAKER_00: Yes, and the Stop Woke Act.
26:26
SPEAKER_00: That was a great episode, right?
26:28
SPEAKER_00: Do university professors, the Josh and I disagreed a little bit about this.
26:31
SPEAKER_00: Was it episode 38, 39?
26:33
SPEAKER_00: Anyways, really good episode.
26:34
SPEAKER_00: It was a recent episode, but now we come back to it again.
26:37
SPEAKER_00: A press pass is a public benefit, it's a public privilege.
26:40
SPEAKER_00: You're not entitled to it.
26:42
SPEAKER_00: So can uh that press pass be sort of conditioned on you know germane, reasonable conditions to the granting of the press pass?
26:49
SPEAKER_00: Now, I think under that analysis, it's harder to say we're only gonna allow Republican media in here.
26:55
SPEAKER_00: We're not gonna allow Democrat media, just like we uh don't say only Republicans get welfare benefits, but we're not gonna give welfare benefits to Democrats.
27:03
SPEAKER_00: It's unfair.
27:04
SPEAKER_03: Well, that's not what we're talking about.
27:06
SPEAKER_03: That is that is unfair.
27:07
SPEAKER_03: I think I think the question is is it germane if what you're reporting on is true or not?
27:14
SPEAKER_03: Because there are so many cases where they're just reporting full fake news, lies, truly lies.
27:20
SPEAKER_03: So wouldn't that be germane?
27:22
SPEAKER_00: That's great.
27:23
SPEAKER_00: So yes, maybe under my analysis, if if you could you could argue in court, you know, I guess in this that that you you have a right to report on this uh outside the White House.
27:35
SPEAKER_00: I can give you access to the White House, but if you are routinely lying about me, actually lying, then I'm not gonna make your job easier by letting you in this building.
27:46
SPEAKER_00: And that seems Germain.
27:47
SPEAKER_00: What do you think, Josh?
27:48
SPEAKER_01: I well I just hope, hope, hope, hope, hope that this case gets litigated on the First Amendment merits.
27:56
SPEAKER_01: Because I think it has the potential to be a profound case for many of the reasons you both have referred to.
28:01
SPEAKER_01: So let me just kind of characterize it in my own way.
28:04
SPEAKER_01: I think the distinction that matters here is between being a liar and being a part of the other party.
28:11
SPEAKER_01: And I'm gonna get into why in a second, but I wanna start with why that's the important question for our country at this time.
28:19
SPEAKER_01: Because you've got to understand the moment we're in as a country.
28:23
SPEAKER_01: I think to understand anything mega related, you have to understand the moment we're in as a country.
28:29
SPEAKER_01: So, okay, here's how I see the moment.
28:32
SPEAKER_01: There's been a traditional balance in the way the media does its business, that the media outlets have a certain perspective, but they are restrained by factual truth.
28:42
SPEAKER_01: This was like the balance in the 80s, right?
28:45
SPEAKER_01: Um, but as bias has gone up and up and up, our media outlets have gotten closer and closer to the just lying side of the line, right?
28:54
SPEAKER_01: That old negotiated ballots, you're allowed to have your slant, you're allowed to be a left-leaning newspaper, but you don't lie about the facts.
29:02
SPEAKER_01: You know, now we have Biden is sharp as attack, COVID lab leak, that's a debunked conspiracy.
29:08
SPEAKER_01: The Hunter Biden laptop is Russian disinformation, right?
29:12
SPEAKER_01: These are lies.
29:14
SPEAKER_01: And Americans know it.
29:15
SPEAKER_01: It's not the 80s anymore.
29:17
SPEAKER_01: This isn't just slant, this is deception.
29:20
SPEAKER_01: The term fake news went ultra viral and became part of the lexicon for a reason because people feel like that's what they're experiencing.
29:29
SPEAKER_01: I think we're dangerously close, I wouldn't say we're quite there, but dangerously close to major media outlets being engaged in something like Soviet-style propaganda, where it's just the propaganda organ of the party.
29:42
SPEAKER_01: And the attitude you get from the media is well, we're the fourth branch.
29:46
SPEAKER_01: Our activity is sacred.
29:48
SPEAKER_01: We're immune from any consequences ever, no matter what, which is wrong legally, wrong morally, and terrible for the country.
29:55
SPEAKER_01: So the rule that would fix this, the rule we need is if you lie, you lose your constitutional shield.
30:03
SPEAKER_01: Lying under the banner of MS Now or Politico or CNN does not change that.
30:10
SPEAKER_01: If you lie, you're you lose your constitutional shield.
30:13
SPEAKER_01: And I think existing First Amendment doctrine tees this up.
30:16
SPEAKER_01: So there's a bunch of First Amendment doctrine.
30:19
SPEAKER_01: Uh the law is very complicated.
30:21
SPEAKER_01: We have the whole time, place, and manner thing, and we have content versus viewpoint, et cetera, et cetera, et cetera.
30:26
SPEAKER_01: The key for this case is that viewpoint-based prohibitions of speech are almost always unconstitutional.
30:34
SPEAKER_01: I said that too, are almost always unconstitutional.
30:37
SPEAKER_01: That's a mouthful for me.
30:39
SPEAKER_01: So, like, if, you know, your public university or your public school says no pro-Trump signs on school property, that is a viewpoint-based discrimination.
30:49
SPEAKER_01: That's saying you can have pro-Kamala Harris signs, but not pro-Trump signs.
30:54
SPEAKER_01: That's viewpoint-based, that's going to be unconstitutional.
30:58
SPEAKER_01: But courts craft narrow exceptions to general freedom of speech and freedom of the press for lying, right?
31:06
SPEAKER_01: We do have fraud laws.
31:07
SPEAKER_01: We do have commercial speech laws, we have perjury laws, we have false advertising laws.
31:12
SPEAKER_01: Now, it's carefully crafted.
31:14
SPEAKER_01: It's not just ordinary social lying that is not criminal.
31:18
SPEAKER_01: And it's not just spin or error or omission.
31:22
SPEAKER_01: It's got to be a full-scale calculated falsehood.
31:25
SPEAKER_01: But genuine calculated falsehood does or can lower the constitutional shield.
31:30
SPEAKER_01: So apply that to the present case, to Trump versus MS Now political CNN.
31:35
SPEAKER_01: If CNN, MS Now and Politico are just doing partisan spin and Trump is banishing, banishing, Trump, well, it works too.
31:43
SPEAKER_01: Trump is banning them because they're left wing or because they're criticizing him, that's viewpoint-based punishment.
31:50
SPEAKER_01: And it's unconstitutional, it should be.
31:52
SPEAKER_01: I don't agree.
31:53
SPEAKER_01: I I don't know what exactly your perspective is, Catherine, but to the extent you are saying he should be able to banish whoever he wants, I don't agree.
31:59
SPEAKER_01: If he's banishing them for their viewpoint, that's unconstitutional.
32:03
SPEAKER_01: If CNN, MS Now, and Politico are genuinely lying, calculated falsehoods, and Trump is banning them for their dishonesty, they should get their press credentials yanked.
32:14
SPEAKER_01: We shouldn't have a country where a newspaper can walk in, say that the president said the opposite of what he said, and then just there's no consequence whatsoever.
32:23
SPEAKER_01: So does that mean there'll be litigation between the two sides where, you know, Politico says we were doing spin and Trump says you were lying?
32:32
SPEAKER_01: Yes.
32:32
SPEAKER_01: And we should welcome that.
32:34
SPEAKER_01: That's great.
32:35
SPEAKER_01: Let's have the litigation, let's have it out in court.
32:38
SPEAKER_03: Well, I think I have one other like kind of point I want to bring up because I think a lot of this conversation is sort of antiquated in the way that we're talking about the media.
32:47
SPEAKER_03: And we have these like big five who get to go in there and record in the pool and share with you know the other networks.
32:53
SPEAKER_03: And like, how many people read Politico?
32:57
SPEAKER_03: Not that many, let's just be honest.
32:59
SPEAKER_03: Like, not that many people read politico.
33:02
SPEAKER_03: And like, what constitutes media now?
33:05
SPEAKER_03: Because anyone can be in the media, right?
33:08
SPEAKER_03: And so one of the questions I had surrounding this um comes from the fact that the president, the Trump administration, did something kind of cool this year, I think, or maybe they started it last year, but they instituted this new media seat at briefings and also in the press pools, so in the smaller, more exclusive like groups of reporters.
33:25
SPEAKER_03: And one of my favorite people who now gets access sometimes along the lines of the people at, you know, CNN, Caitlin Collins, all these people, is Mary Margaret Olahan at the Daily Wire.
33:36
SPEAKER_03: I think she does an excellent job.
33:37
SPEAKER_03: And I get so much more out of what she's reporting than any of those other fake news outlets.
33:42
SPEAKER_03: And so I love seeing that.
33:44
SPEAKER_03: But here's my question.
33:45
SPEAKER_03: So now that they have introduced this new media seat, which, as they should, is good, way more people are getting their media from little outlets, places like X, places like that, versus Politico.
33:56
SPEAKER_03: I literally know no one who reads Politico, okay?
33:57
SPEAKER_03: I'd just like to say.
33:59
SPEAKER_03: Uh do you know anyone?
34:00
SPEAKER_01: We have already established that uh I'm the only one on the podcast with like a plethora of Democrat friends.
34:05
SPEAKER_01: I know tons of people who read politico and write for politico.
34:10
SPEAKER_00: I have a Democrat friend or two, it's usually they stop talking to me.
34:16
SPEAKER_00: You you two were teasing me on a previous episode about uh friendship.
34:20
SPEAKER_00: Yeah, yeah.
34:21
SPEAKER_00: You too many progressives in your life, Josh.
34:23
SPEAKER_03: Um but so what happens now?
34:26
SPEAKER_03: Like, can now that the Daily Wire is in these press briefings, they're in the pool sometimes, and all these other outlets.
34:32
SPEAKER_03: Like I saw Lila Grace, a really pro-life person, was in the pool the other day.
34:36
SPEAKER_03: Um, can they be removed by the next president who's probably not going to be pleased to welcome in the Daily Wire?
34:42
SPEAKER_00: Yeah, let me wrap up this conversation uh sort of with two observations.
34:46
SPEAKER_00: Catherine, that's a great question to ask because the line that the procedural due process cases draw is that once you've received the benefit, you have an ongoing expectation of continued receipt as long as you meet the requirements, general requirements for them or whatever they are.
35:01
SPEAKER_00: Uh, but they can prevent you, you know, from getting them in the first place.
35:05
SPEAKER_00: And you don't, you don't, they don't have to give you a trial to determine that you're not eligible, you know, if they haven't started giving them to you uh in the first place.
35:14
SPEAKER_00: Uh and so they better be careful what they wish for.
35:16
SPEAKER_00: If Politico and MSNow get back in there because of this, then it seems to me uh that you're right that the Daily Wire gets to stay too.
35:25
SPEAKER_00: And I don't know what distinction they could possibly draw.
35:28
SPEAKER_00: My one thought about Josh on the um let's litigate this.
35:32
SPEAKER_00: If it's not actually procedural due process, and remember, and we don't get into court because this isn't a procedural due process, right?
35:38
SPEAKER_00: I'm actually not sure as a historical manner there would be any way to litigate this, by the way.
35:41
SPEAKER_00: Because Trump might violate the First Amendment, or he might not violate the First Amendment, but there'd be no way to adjudicate it.
35:47
SPEAKER_00: Because what's the cause of action, right?
35:48
SPEAKER_00: Most people who are deprived of a benefit have a cause of action under the Administrative Procedure Act.
35:54
SPEAKER_00: But but the Administrative Procedure Act does not apply to the president.
35:56
SPEAKER_00: And so the president is the one who revoked the press credentials.
35:59
SPEAKER_00: There's no agency that did it.
36:00
SPEAKER_00: Uh sometimes there's an organic statute that is violated uh and that creates a cause of action, but that's not the case here.
36:06
SPEAKER_00: So, just as a historical matter, this whole suit is crazy and should never have been brought.
36:11
SPEAKER_00: It doesn't mean Trump didn't violate the First Amendment, it just means there'd be no remedy for it.
36:15
SPEAKER_00: And I agree, Josh, with everything you say about that.
36:18
SPEAKER_01: I that's incredibly compelling, Elon, and I hadn't thought about that angle.
36:21
SPEAKER_01: So thank you.
36:22
SPEAKER_01: Um I what I mean to say is I want to see a case that brings up directly uh the issue of uh media lying and press-based protection or free, yeah, uh First Amendment-based protections for um uh press when they just tell lies.
36:46
SPEAKER_01: And I think that would bring to the fore this great issue of our time, which is you know, is our media doing something beyond spin?
36:53
SPEAKER_01: Is it is it telling lies?
36:55
SPEAKER_01: So, but I I agree this case is quite possibly not the right vehicle.
37:01
SPEAKER_03: All right, let's move on to our second topic, which actually turns out to be somewhat related.
37:07
SPEAKER_03: A federal judge has ruled that a federal statute prohibiting non-citizens from voting is unconstitutional.
37:16
SPEAKER_03: Yeah, okay.
37:17
SPEAKER_03: So basically the US government charged a woman who is a Jamaican national with no legal status in the United States with a misdemeanor for voting in Florida in 2020 in a federal election.
37:29
SPEAKER_03: And she argued that Congress lacked the constitutional authority to determine voter qualifications, which we've talked about this before on the show.
37:38
SPEAKER_03: The states do have primary authority over federal elections.
37:43
SPEAKER_03: And they do not, and they do all ban citizens.
37:46
SPEAKER_03: Excuse me, let me start over.
37:48
SPEAKER_03: They do all ban non-citizens from voting, at least theoretically.
37:52
SPEAKER_03: In practice, of course, we know that we don't.
37:54
SPEAKER_03: We just got 10 people in Minnesota arrested the other day for voting who weren't citizens either.
37:59
SPEAKER_03: But they have authority over, quote, the times, places, and manner of holding elections for senators and representatives, but this doesn't obviously cover voter qualifications, like citizenship, I guess.
38:12
SPEAKER_03: And in any event, Congress does have the right to alter those regulations.
38:16
SPEAKER_03: So the judge instead focused on the Constitution's only provisions relating to voter qualifications.
38:23
SPEAKER_03: And Article II specifically addresses presidential elections.
38:27
SPEAKER_03: I think it was Article I addresses the House, and then there's another one that addresses um the Senate.
38:32
SPEAKER_03: But Article II addresses presidential elections, saying, quote, each state shall appoint in such a manner as the legislature thereof may direct a number of electors uh equal to the whole number of senators and representatives to which the state may be entitled in the Congress.
38:48
SPEAKER_03: Okay, so the states, uh so the judge concluded that the states have exclusive authority to establish voter qualifications.
38:55
SPEAKER_03: And the federal government cannot charge a non-citizen for illegally voting, because I guess only the state could go after him for doing that, because they have no control over voter qualifications, like citizenship, I guess.
39:08
SPEAKER_03: Seems like more than a voter qualification, but whatever.
39:11
SPEAKER_03: Um, Elon, what do you make of this?
39:14
SPEAKER_03: There's also one other point that I had in there.
39:16
SPEAKER_03: Justice Thomas, he read there's a Justice Thomas uh opinion that they cited that might be kind of interesting if you want to get into that.
39:22
SPEAKER_03: But otherwise, just let us know your overall thoughts.
39:25
SPEAKER_00: Yeah, the Justice Thomas opinion was made in a different context, which basically says yes, states have exclusive authority over voter qualifications, but he wasn't thinking about citizenship and whether the federal government might have concurrent authority.
39:35
SPEAKER_00: So kind of unfair to actually invoke Justice Thomas.
39:38
SPEAKER_00: So I don't know what he would think about this.
39:39
SPEAKER_00: There was one other provision of the constitution, you had mentioned it in passing, but um, who gets to vote for members of Congress?
39:46
SPEAKER_00: Who gets to vote for members of Congress or for the House?
39:49
SPEAKER_00: Uh the Constitution, the original Constitution provides that whatever qualifications a state has for the most numerous branch of its state legislature, those people can also vote for house, for Congress.
40:01
SPEAKER_00: In other words, um if only landed male property owners, okay, could vote for the state house, the state assembly, those are the people who would vote for Congress in that state.
40:14
SPEAKER_00: But if you had universal suffrage, uh male suffrage or whatever, then all males over 18 or 21 or whatever it was would get to vote for Congress.
40:22
SPEAKER_00: There is a clause that pegs it to the state legislature.
40:26
SPEAKER_00: And so the judge, I think he's wrong, but it wasn't crazy from a doctrinal in the weeds matter.
40:31
SPEAKER_00: Now I already see, you know, the wheels turning, being like, well, we know what the answer is, that it's not a suicide pact and blah, blah, blah, blah, blah.
40:38
SPEAKER_00: But let me, and I agree with you, but let me just do the doctrinal dive very, very, very quickly.
40:43
SPEAKER_00: It's not even doctrinal, it's simply looking at the text of the Constitution.
40:46
SPEAKER_00: Okay.
40:46
SPEAKER_00: So let me say the following It's true that it seems that the Constitution gives states exclusive authority over voter qualifications, or at least it gives them primary authority.
40:57
SPEAKER_00: But whether the federal government then has authority over certain qualifications depends on the enumeration of power.
41:03
SPEAKER_00: Does Congress have a relevant enumeration of power?
41:06
SPEAKER_00: Now, the judge did look at them, but he was made very short shrift uh of these.
41:10
SPEAKER_00: This must be the only democratic appointed judge in like a century to find that Congress exceeded its enumerated power, by the way.
41:17
SPEAKER_00: You know, whatever happened to the Congress Clause, by the way.
41:20
SPEAKER_00: Doesn't you know illegal vote, you know, voting um in the aggregate, if done by lots of people, have an effect on interstate cover?
41:26
SPEAKER_00: Like, okay, I whatever.
41:27
SPEAKER_01: I won't do that.
41:28
SPEAKER_01: Well, by the way, I mean, it's not a coincidence, right?
41:32
SPEAKER_01: Like, oh my gosh, wow.
41:34
SPEAKER_01: A district judge found that Congress exceeded its power.
41:38
SPEAKER_01: A Democrat district judge, for the first time in a generation, when it came to protecting immigrants' voting rights, huh?
41:45
SPEAKER_01: I'm shocked.
41:46
SPEAKER_01: I'm just shocked.
41:48
SPEAKER_00: Shocked that there's gambling going on.
41:49
SPEAKER_00: Again, we can have to go back to Casa Blanca since you've evoked that already.
41:54
SPEAKER_00: Um, okay, so what's the answer here?
41:56
SPEAKER_00: Well, Congress, every everyone agrees, has the power over immigration.
41:59
SPEAKER_00: Okay.
42:00
SPEAKER_00: Now, it's actually kind of tricky.
42:02
SPEAKER_00: There's no immigration clause as such in the Constitution.
42:04
SPEAKER_00: And so some Uber libertarians, whom I will not name here, have said there's no federal power over immigration.
42:10
SPEAKER_00: That's pretty preposterous, okay, for a number of reasons.
42:13
SPEAKER_00: One is the Atlantic Slave Trade Clause says Congress cannot prohibit before 1808 the migration or importation of persons, implying that it otherwise would have the power, right?
42:23
SPEAKER_00: To prohibit migration and importation of persons.
42:26
SPEAKER_00: So it presumes that there's this power of immigration.
42:28
SPEAKER_00: Congress has the power over foreign commerce, commerce with foreign nations.
42:32
SPEAKER_00: Nations are a people.
42:34
SPEAKER_00: Chris Green has uh made the argument.
42:36
SPEAKER_00: Uh Professor Chris Green at uh Ohio State has made the argument that this covers immigration.
42:41
SPEAKER_00: Uh, my preferred argument is Congress has uh the right to define and punish offenses against the law of nations.
42:47
SPEAKER_00: And it was an offense against the law of nations to come to a country illegally, contrary to the sovereign's consent.
42:53
SPEAKER_00: So I think that provides sort of this basis uh for immigration.
42:56
SPEAKER_00: The point is every the court did something weird in the 1800s, like, well, inherit attribute of sovereignty.
43:01
SPEAKER_00: It must have this power.
43:02
SPEAKER_00: Okay, fine, maybe, but there are also textual bases uh for the power.
43:06
SPEAKER_00: Okay, now how does that get you here?
43:08
SPEAKER_00: Well, there's also the necessary and proper clause.
43:11
SPEAKER_00: Congress has the power to make all laws which shall be necessary and proper for carrying into execution its uh its its powers.
43:18
SPEAKER_00: Okay, so is this necessary and proper for carrying to execution its immigration power or its power of naturalization?
43:25
SPEAKER_00: And I think the answer is yes, why?
43:28
SPEAKER_00: Say it with me.
43:29
SPEAKER_00: Unconstitutional.
43:33
SPEAKER_00: Thank you.
43:33
SPEAKER_00: The unconstitutional conditions are I I you know, by the way, I'm like the only person writing about this, right, at the Academy right now.
43:41
SPEAKER_00: Everything to me is an unconstitutional conditions problem because we live in a modern welfare state where everything is about public benefits and privileges.
43:47
SPEAKER_00: There should be more people writing about this.
43:50
SPEAKER_00: Supreme Court clerks, look at the Sun Valley Orchard brief in which I uh made this point and it solved this question.
43:55
SPEAKER_00: Okay, so can you condition uh immigration privileges?
44:00
SPEAKER_00: Immigrations are a public right, a public privilege.
44:02
SPEAKER_00: You're not entitled to it.
44:03
SPEAKER_00: Okay.
44:04
SPEAKER_00: It comes with the grace of government, which it can deny altogether.
44:07
SPEAKER_00: Can we say this goes back to the student visa example?
44:10
SPEAKER_00: Is it germane to say you may come here into this country, but you cannot vote in federal elections?
44:19
SPEAKER_00: You cannot vote in federal elections until you have been naturalized as a citizen.
44:24
SPEAKER_00: Because we don't want interference in our elections.
44:26
SPEAKER_00: We want to wait foreign interference.
44:28
SPEAKER_00: We want to wait until you're citizen.
44:29
SPEAKER_00: And in fact, I think the answer to this germainess question must be yes, because Congress is has exercised its naturalization power, okay, to require an oath, a natural naturalization oath, which says you shall abjure all foreign allegiances before becoming a citizen.
44:49
SPEAKER_00: So surely if it can require abjuring foreign allegiances to become a citizen, it can say, while you have not yet abjured those foreign allegiances, surely you should not be able to vote in our elections, right?
45:01
SPEAKER_00: Because you still have those foreign allegiances.
45:03
SPEAKER_00: And so you must naturalize in order to do that.
45:06
SPEAKER_00: Now look, it's tricky.
45:08
SPEAKER_00: What if Florida passes a law saying Florida's a bad example, but that's where we are?
45:13
SPEAKER_00: Um what if Florida passed a law that said uh non-citizens may vote for state house, state assembly?
45:20
SPEAKER_00: That provision of the Constitution suggests that non-citizens should be able to also vote for Congress, then.
45:25
SPEAKER_00: True, but again, I think you have to still look at Congress's powers.
45:29
SPEAKER_00: And it seems to me that Congress has the powers.
45:31
SPEAKER_00: So I this judge has been getting a lot of flack on X.
45:35
SPEAKER_00: To his partial credit, I do think it is a trickier and more nuanced issue than most people give it credit for, but I ultimately think his wrong is wrong.
45:43
SPEAKER_00: He's wrong.
45:44
SPEAKER_00: Okay, Catherine Josh, have I overly complicated this with law and doctrine?
45:48
SPEAKER_00: Yes.
45:49
SPEAKER_01: Okay.
45:50
SPEAKER_01: So this is one of those cases where this is one of those cases where if you get into the doctrinal weeds, if you do detailed textual analysis, it looks like a close call.
45:59
SPEAKER_01: But if you back up a few steps, it's completely insane.
46:03
SPEAKER_01: And I have a methodological thing to say about that.
46:06
SPEAKER_01: I think that's why we shouldn't decide cases after getting into the doctrinal weeds.
46:10
SPEAKER_01: What you have to do is get clear on the big picture using larger legal principles and common sense, come to a provisional view of the issue, provisional, defeasible, and then do the detailed doctrinal analysis.
46:25
SPEAKER_01: And that detailed doctrinal analysis might unseat your sort of big picture instinct about the way the case should go, but it's a heavy burden of proof.
46:34
SPEAKER_01: And typically the big picture guides the doctrinal analysis instead of the other way around.
46:40
SPEAKER_01: And that's how we keep our constitution uh aligned with larger principles of democratic government, of justice, of common sense.
46:49
SPEAKER_01: So by the way, Josh here.
46:51
SPEAKER_00: I I know you have more to say, but to our listeners, just friend of the pod, Samuel A.
46:55
SPEAKER_00: Alito has an op-ed in the Wall Street Journal where he describes a version of originalism that very much is like, I think, what Josh is describing here, where like you shouldn't ignore the common sense.
47:04
SPEAKER_00: You should you shouldn't relish in achieving crazy results occasionally because it shows you're being neutral and objective.
47:10
SPEAKER_00: So he rejects that.
47:11
SPEAKER_00: I think Josh, you're rejecting that too, but okay, go on.
47:13
SPEAKER_01: I I'm saying something very related, to be sure, and I love that op-ed.
47:17
SPEAKER_01: So here's here's my big picture take on this case.
47:21
SPEAKER_01: Non-citizen voting violates the basic idea of a republic.
47:26
SPEAKER_01: And it's outrageous to say the federal government can't prohibit it.
47:29
SPEAKER_01: You know, when I was getting my PhD in philosophy in Germany, I had a German colleague, a fellow PhD student, who argued to me that he should get to vote in American elections because what happens in America affects him.
47:43
SPEAKER_01: It affects Germany.
47:44
SPEAKER_01: Now, mind you, he was not an immigrant.
47:46
SPEAKER_01: I don't even know if he'd ever been to the United States.
47:48
SPEAKER_01: He just felt like he should get to vote in our elections because they matter for him.
47:52
SPEAKER_02: Wow, that is like new nightmare fuel for me, by the way.
47:55
SPEAKER_02: What in the world?
47:56
SPEAKER_02: I've ever even considered that.
47:57
SPEAKER_02: Sorry, keep going.
47:58
SPEAKER_01: It took me by surprise too.
47:59
SPEAKER_01: And I immediately thought this is crazy, and I didn't know what to say in answer because it took me so by surprise.
48:06
SPEAKER_01: Why is it crazy?
48:07
SPEAKER_01: I now know what to say.
48:08
SPEAKER_01: It's crazy because the whole idea of a democracy is a people governing itself.
48:15
SPEAKER_01: Demos is the Greek word for a people, we the people.
48:19
SPEAKER_01: Kratos is the Greek word for rule.
48:21
SPEAKER_01: Demos plus kratos, democracy, a people governing itself.
48:25
SPEAKER_01: And you lose that if non-citizens vote, because they're not part of we the people.
48:31
SPEAKER_01: When you create we the people, it's based on citizenship.
48:34
SPEAKER_01: So there's a group of us, there's 300 plus million of us, we are citizens, we do give it to immigrants, we naturalize, and then they become part of we the people too, but it's something they are given and they become.
48:45
SPEAKER_01: And when you have your body of the citizens, we the people get to govern ourselves.
48:49
SPEAKER_01: That's called democracy.
48:51
SPEAKER_01: It would be outrageous for me to have argued back to him, well, I should vote in German elections because you gave me temporary permission to live here while I get my PhD in philosophy, right?
49:02
SPEAKER_01: Foreign student, I'm not a member of the German people.
49:05
SPEAKER_01: And it would have been ultra outrageous for me to argue that I should vote in French elections because what happens in France affects my like trips to Paris and how much I enjoy them or something like that.
49:16
SPEAKER_01: Like that's bananas crazy, right?
49:19
SPEAKER_01: So it's not like mean, big, exclusive, you know, like uh uh bigoted America to say non-citizens can't vote.
49:28
SPEAKER_01: I wouldn't think that Americans should be able to vote in Brazil or in Argentina or in, you know, anywhere on earth except America.
49:35
SPEAKER_01: People get to vote in their own country because that's what democracy means.
49:41
SPEAKER_01: I think that it would be, excuse me.
49:46
SPEAKER_00: By the way, Josh, while you're taking that sip of water, let me just say that I think there would be lots of justification for our voting in French and German elections because we don't want to have to save them again in another world war.
49:59
SPEAKER_00: So Yeah, exactly.
50:00
SPEAKER_00: Everybody affects everybody.
50:01
SPEAKER_00: No, no, that's right.
50:02
SPEAKER_00: It's also, by the way, for money.
50:04
SPEAKER_00: Like there's I don't know if you saw what happened in Brazil and Bolsonaro, uh, his family seems to be getting elected after they tried to imprison um yeah, Bolsonaro basically did to him what they tried to do to Trump.
50:16
SPEAKER_00: I guess that's the that's the uh allegation on the right.
50:19
SPEAKER_00: Um, but there's this stuff going online uh which shows that after USAID went defunct, all of the Latin American countries basically turned out to be right wing because we were interfering in those elections.
50:31
SPEAKER_00: So we actually are doing it just through money, and it's only the left doing it.
50:34
SPEAKER_00: So it's it's not what we're here to talk about today, but a connected topic for it's a wonderful topic for a future episode.
50:39
SPEAKER_01: I mean, my view is if a state attempted to enfranchise non-citizens to give them voting rights in federal elections, that would violate the Republican form of government clause for the reasons I've just been deducing, this we the people concept.
50:52
SPEAKER_01: Now, that's tough for an originalist because there was non-citizen voting in some states of the 19th century, but it's conceptually right.
50:59
SPEAKER_01: Now, granted, in this case, the court is not saying non-citizens have a constitutional right to vote in American elections.
51:07
SPEAKER_01: He's saying the decision is up to the states.
51:10
SPEAKER_01: It's not up to the federal government.
51:12
SPEAKER_01: You can prohibit them from voting, but the states have to prohibit them.
51:15
SPEAKER_01: And I totally acknowledge that that is more defensible than the more extreme position that like they have a constitutional right to vote.
51:22
SPEAKER_01: Because states do have primary control over the who votes question, over who is we the people.
51:27
SPEAKER_01: I made that argument myself in my article, Give Parents the Vote.
51:31
SPEAKER_00: But watch that podcast episode, Give Parents the Vote, where we talk about it.
51:35
SPEAKER_01: Excellent idea.
51:37
SPEAKER_01: But the federal government rightfully controls immigration.
51:40
SPEAKER_01: Federal elections are a national issue, and the consequences of going the other way, and I do think we who think about the law should think about the consequences of different legal interpretations.
51:51
SPEAKER_01: The consequences are the of going the other way are evading the American people's judgment by just replacing them with new people, right?
52:00
SPEAKER_01: So think about how the game gets played.
52:02
SPEAKER_01: A democratic president gives us open borders, like Biden.
52:05
SPEAKER_01: Democratic states give non-citizens voting rights, non-citizens flow to those states where they get more rights, and then you have lock-in.
52:15
SPEAKER_01: Then you have non-citizens who are being able to vote, and you're not winning, Democrats are not winning elections by persuading Americans, which is the legitimate game.
52:24
SPEAKER_01: They're changing the electoral body.
52:26
SPEAKER_01: It's the government choosing the people instead of the people choosing the government.
52:31
SPEAKER_01: There's actually a poem about this by Bulter Bertolt Brecht.
52:34
SPEAKER_01: So I'm going to read the key line.
52:36
SPEAKER_01: Wouldn't it be simpler in if the government dissolved the people and elected another?
52:41
SPEAKER_01: Right?
52:42
SPEAKER_01: Clever.
52:43
SPEAKER_01: Dissolve the people and elect another.
52:46
SPEAKER_01: That's what we're seeing in this case.
52:48
SPEAKER_01: So I'm curious what you think about that take on it, but also what you think about my sort of methodological perspective.
52:54
SPEAKER_01: That, like, hey, when we're doc close detailed doctrinal analysis, especially close textual analysis, is manipulable.
53:06
SPEAKER_01: And we can even manipulate ourselves into thinking very outrageous and plausible things are in fact sound or reasonable because of the way they look in the view of the camera at ultra close up.
53:19
SPEAKER_01: And so it's essential to kind of get the big picture straight and then to work on the on the detailed doctrine.
53:26
SPEAKER_01: And, you know, the detailed doctrine, again, might um overthrow your initial impression of the case, but it's case-dependent.
53:34
SPEAKER_01: What do you think?
53:35
SPEAKER_03: Well, I think part of that that I picked up on is they keep calling it voter qualifications to be a citizen, as if like it's just some sort of one thing among many that may allow you to vote.
53:48
SPEAKER_03: It's like, no, this is citizenship.
53:50
SPEAKER_03: I don't know that that's really a voter qualification that seems like sort of a euphemism or something.
53:55
SPEAKER_00: That's super insightful.
53:58
SPEAKER_03: Oh, thank you.
53:59
SPEAKER_03: They're categorizing it in a way that I think is just kind of undermining its importance, I guess.
54:03
SPEAKER_00: Remember on the early episodes, Catherine, I would tell you you should be arguing for the Trump administration.
54:08
SPEAKER_00: Like, you should be arguing for the Trump administration on this case.
54:12
SPEAKER_00: When when like literally read that voter qualification provision of the state legislature, most numerous brands of the state legislature also gets to vote for a congressional house, could be read to include citizenship.
54:23
SPEAKER_00: But maybe the background is simply citizenship is presumed, and voter qualifications are things like your age, like your property requirements.
54:32
SPEAKER_00: Yes, like men versus women.
54:33
SPEAKER_00: That's a really insightful point.
54:35
SPEAKER_00: Now, of course, as Josh and I know, states actually did allow non-citizens to vote early on and to encourage immigration.
54:42
SPEAKER_00: But again, that doesn't answer the question of whether that's within the compass of the constitutional provision requiring that they also be able to vote for Congress.
54:50
SPEAKER_00: I think that's one of the things.
54:52
SPEAKER_01: I'm not sure in those early days when states engaged in that practice of non-citizen voting.
54:57
SPEAKER_01: I don't know that it was ever litigated and that we got a precedent or an authoritative precedent uh adjudging it to be constitutional.
55:06
SPEAKER_01: It could just be an unanswered legal question.
55:09
SPEAKER_00: Correct.
55:10
SPEAKER_00: I recall, and uh when I was writing my book on the 14th Amendment and all my stuff on the privileges or immunities clause, John Bingham gave a speech on the admission of Oregon in 1859, in which I think he said the Oregon Constitution was violated the federal constitution by allowing non-citizens to vote, actually.
55:31
SPEAKER_00: So that this was debated at the time.
55:33
SPEAKER_00: I might be getting this wrong.
55:34
SPEAKER_00: It's been a while since um I've um had uh that that's super interesting.
55:38
SPEAKER_00: And Josh, the bigger picture, again, I like that Alito op-ed.
55:41
SPEAKER_00: I like the idea.
55:42
SPEAKER_00: I don't treat it as start with the big picture.
55:45
SPEAKER_00: I treat it as these are all things interpreters look at, right?
55:48
SPEAKER_00: I would probably start with the text, being like, what does the text say?
55:51
SPEAKER_00: And if the result is then seems odd, then I'd be like, okay, wait, it seems odd or it seems absurd or crazy.
55:56
SPEAKER_00: Let me gut check.
55:57
SPEAKER_00: And then it would just be an iterative process where these two interpretive tools sort of um, you know, reinforce each other to get at a final answer.
56:05
SPEAKER_00: Well, I think we are running out of time.
56:07
SPEAKER_00: Any concluding thoughts on today's episode?
56:11
SPEAKER_01: Well, I've I'll throw one out there.
56:13
SPEAKER_01: I love how we all persuaded each other uh of something in this episode.
56:16
SPEAKER_01: I think it speaks well of us.
56:18
SPEAKER_01: So so for my part, Ilan, when you said that um the the press pass case, there's probably no standing and no cause of action and no APA-based cause of action.
56:29
SPEAKER_01: That was a whole angle that I hadn't really thought about and I appreciate it.
56:33
SPEAKER_01: So, you know, wasn't it?
56:34
SPEAKER_03: Yep, mine was in press pass too, because Josh, you said the thing about, like, you know, I wish we were in world one, but we're actually in world two.
56:41
SPEAKER_03: And I think that applies to a lot of what we talk about.
56:43
SPEAKER_03: Like, well, now we're in a situation, um, we've gotten ourselves into this situation that maybe is not ideal, but we have to carry on because we're in a different world than we would like to be, essentially.
56:54
SPEAKER_00: I agree with the world one, world two about like can you just fire people or have we've judicialized basic disputes, right?
57:01
SPEAKER_00: About hiring and firing and basic associations.
57:04
SPEAKER_00: That's problematic.
57:04
SPEAKER_00: And Catherine, I loved your point again about is citizenship a voting qualification or just presumed to be baked into the cake, you know, so to speak.
57:13
SPEAKER_00: I loved, loved, loved that point.
57:15
SPEAKER_00: Well, we have so much more exciting news to cover, and we will be back with you all next week.
57:22
SPEAKER_00: Don't forget to hit that like and subscribe button.
57:25
SPEAKER_00: See you next time.