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A Year of Resistance—In the Streets, in Elections, and in the Courts | Start Making Sense · The Nation Podcasts

• 0:08
  [SPEAKER_02]: magazine, this is start making sense.
• 0:11
  [SPEAKER_02]: I'm John Weiner.
• 0:13
  [SPEAKER_02]: This is our year-and-review show later in the hour of the year in court.
• 0:18
  [SPEAKER_02]: David Cole, who stepped down this year as national legal director of the ACLU, will comment on the 150 rulings against Trump in the federal courts this past year, and the 21 times the Supreme Court has supported his attacks on democracy.
• 0:34
  [SPEAKER_02]: But first, the year in
• 0:37
  [SPEAKER_02]: Harold Byerson has our analysis in a minute.
• 0:43
  [SPEAKER_02]: Now it's time for our year in review, politics in 2025.
• 0:47
  [SPEAKER_02]: For that we turn to Harold Byerson, of course he's editor at large of the American prospect.
• 0:53
  [SPEAKER_02]: Harold, welcome back.
• 0:54
  [SPEAKER_02]: Always good to be here, John.
• 0:56
  [SPEAKER_02]: Well, the basic story of politics in 2025 is pretty simple.
• 1:00
  [SPEAKER_02]: On the one hand, Trump's attacks on democracy, unprecedented in the last century, at least.
• 1:06
  [SPEAKER_02]: And on the other hand, the rise of opposition from the majority and of widespread and well-organized resistance.
• 1:14
  [SPEAKER_02]: Although Trump won the popular vote by a narrow majority, his approval ratings fell steadily, January 20th when he took the oath of office, he started at around 48% approval.
• 1:28
  [SPEAKER_02]: Most presidents have a honeymoon period in their first year, not Trump.
• 1:33
  [SPEAKER_02]: The AP today has them at 36% approval, other polls have them a bit higher, no other president has seen as approval rating sink solo so quickly.
• 1:45
  [SPEAKER_02]: Trump is the most unpopular president in American history, at least the history of polling after one year.
• 1:53
  [SPEAKER_02]: What were the most important causes of this massive popular opposition to Trump?
• 1:59
  [SPEAKER_00]: Well, I think as a general point, we should remember that when Trump is out of office and a candidate who is simply slinging accusations at whoever is in power, that's when he brings out a particular segment of these sometimes voters who
• 2:18
  [SPEAKER_00]: Just want to stick it to whoever is in power and the establishment, not that they don't have, you know, legitimate grievances too, but every time he's been in power during his first term, the midterms of 2018 presidential election of 2020.
• 2:34
  [SPEAKER_00]: And now that he's returned, what we can see in this post, people don't actually like what he does as president.
• 2:42
  [SPEAKER_00]: He's a bully, he's cruel, he's self-absorbed.
• 2:46
  [SPEAKER_00]: I mean, just in the last 10 days, we've seen his name slapped on.
• 2:51
  [SPEAKER_00]: the Kennedy Center, the U.S. Institute of Peace, and now an entire new class of battleship.
• 2:58
  [SPEAKER_00]: He's sort of an unlikable meglamaniac who brings a certain amount of racism and a priori cruelty to what he does as president.
• 3:08
  [SPEAKER_00]: So that's not a basis for sustaining popularity.
• 3:12
  [SPEAKER_02]: And then there's the cost of living.
• 3:14
  [SPEAKER_00]: And then there's a cost of living, which is what has swung the voters who swung to Trump in 2024, according to the polls, particularly Latinos and young people, to disenchanted and to disenter all themselves from him.
• 3:30
  [SPEAKER_00]: The economy is going on a what's now called a
• 3:42
  [SPEAKER_00]: the consuming in America, where as you know, when I was a young fellow and you were young fellow, it was 30%.
• 3:49
  [SPEAKER_00]: And the other 90% is struggling with housing and care for seniors and care for kids and healthcare generally and college tuition and all of life's essential.
• 4:01
  [SPEAKER_00]: So that's not a basis for sustaining popularity either.
• 4:05
  [SPEAKER_02]: In the other historical political event this year, included the huge anti-Trump mobilizations organized by indivisible.
• 4:14
  [SPEAKER_02]: The biggest protests in American history by some measures, there was the hands-off demonstrations in April, the no-King's mobilization, the first one in June, no-King's number two in October,
• 4:28
  [SPEAKER_02]: The first had 3 million people, the second had 5 million people, then the no kings to October 18 had almost 7 million people, probably a record for one day of protest in the cross-American cities.
• 4:43
  [SPEAKER_02]: These were wonderful events, and they were historically one of the most politically important events of 2025.
• 4:50
  [SPEAKER_00]: They were, and sort of as the complement to this, there were the neighborhoods that rallied in support of, you know, the families and the communities that were completely disrupted by Trump's deportation policies.
• 5:08
  [SPEAKER_00]: Which is somewhat analogous to the spontaneous protests that arose in northern cities when slave hunters try to avail themselves of the future of slave act.
• 5:20
  [SPEAKER_00]: You're referring to the 1850s.
• 5:23
  [SPEAKER_00]: I am referring to the 1850s.
• 5:25
  [SPEAKER_00]: Yes.
• 5:25
  [SPEAKER_00]: When we saw what I think is analogous to the neighborhood turnouts and alerts that are now part and parcel of the protests, we have the very large-scale protests that you alluded to, and we have the protect the community protect the family protests against Trump's deportation boons.
• 5:47
  [SPEAKER_02]: Yeah, I looked up some of the statistics on Trump's deportation regime, which of course is
• 5:53
  [SPEAKER_02]: one of the most important stories of 2025, Trump here is of course following the plans of Stephen Miller.
• 5:58
  [SPEAKER_02]: He said his goal is to deport 15 million people.
• 6:02
  [SPEAKER_02]: And of course Trump sent ice agents and then the national guard into Los Angeles, then Chicago, Washington, D.C., now other places.
• 6:12
  [SPEAKER_02]: But the resistance in all of those places has been fierce, as you say, in sustained.
• 6:18
  [SPEAKER_02]: There are these rapid response networks at work every day in
• 6:22
  [SPEAKER_02]: cities, which report in monitor ice movements, there were dozens of organizations that distributed millions of no-year rights cards and did thousands of no-year rights trainings.
• 6:37
  [SPEAKER_02]: And the result is that they've been unable to deport anything like the number of people
• 6:45
  [SPEAKER_02]: the best estimate of the number of people deported this year around 600,000, that is very different from the number that Biden deported in his last year, but of course there's a big difference between the people Biden deported and the people that Trump has deported and that explains a lot of the resistance.
• 7:03
  [SPEAKER_00]: Yes, every survey of those who are deported shows that the vast majority have not been accused let alone convicted of crimes, let alone violent crimes, which is the ostensible cover for what the Trump administration says it is doing.
• 7:22
  [SPEAKER_00]: Well, there's always been majority support for controlling the borders.
• 7:27
  [SPEAKER_00]: and Trump retains support for that.
• 7:31
  [SPEAKER_00]: The deportation policy itself is clearly a major factor in his declining overall popularity.
• 7:39
  [SPEAKER_02]: And there's another key piece of evidence of his declining popularity.
• 7:44
  [SPEAKER_02]: And that comes in elections 2025 was a year of elections, and as far as I can tell, Republicans lost every election of 2025 starting the beginning of the year with the Wisconsin State Supreme Court where Elon Musk spent millions of dollars and personally campaigned for the Republican candidate.
• 8:11
  [SPEAKER_02]: the Pennsylvania Supreme Court had an election which Democrats swept, a Democrats swept the governorships of Virginia, New Jersey, big victories, and of course, a Muslim socialist was elected mayor of New York City.
• 8:26
  [SPEAKER_02]: So in 2025, democracy in terms of voting in elections was thriving this year.
• 8:34
  [SPEAKER_00]: And if there's one election that shows just how out of kilter, not just Trump, but the Republicans are, it's the election of two Democrats, two George's public power commission, which was in many ways of revolt against the Trump economy.
• 8:50
  [SPEAKER_00]: And the high electrical prices, which are also related to the massive amount of power being swept up by the data centers created essentially by the tech oligarchs who Trump has proved very loyal to at times alienating any number of magas stalwarts for that, like the Martry Taylor Green and others, at least the FOMIC.
• 9:18
  [SPEAKER_00]: Well, at least a phonic who demonstrated just in case anyone needed to have a demonstrated that loyalty to Trump, no matter how debasing, even though you are to yourself, need not be reciprocated by Trump, who was never particularly interested in what other people do or feel so long as he can come out and his own view on top.
• 9:40
  [SPEAKER_02]: And one more
• 9:41
  [SPEAKER_02]: big story of 2025, of course, we should talk about Trump's attack on democratic institutions across the board, on the federal agencies that help people and on the organized sources of opposition to his rule in civil society.
• 9:57
  [SPEAKER_02]: It's a text on the news media, on the legal profession, and on the universities,
• 10:04
  [SPEAKER_00]: What we've seen is a lot of elite institutions caving instantaneously, I think, you know, the law firm of Paul Weiss, which actually had some of the creators of the New Deal and its full name, Wharton Riffkin and Garrison Syriffkin had been a general counsel for Robert Wagner who authored the Social Security Act and the National Labor Relations Act.
• 10:28
  [SPEAKER_00]: That's kind of set the template for a number of really cowardly university boards of trustees and other law firms and and and so on and of course part of the problem part of the problem is a Trump uses his administration.
• 10:46
  [SPEAKER_00]: and the regulatory commission see is taking over, this Supreme Court is yet to fully rule on that, but their days even ostensible independence are coming to an end.
• 10:56
  [SPEAKER_00]: You know, to threaten anyone who needs some approval from the government.
• 11:01
  [SPEAKER_00]: And so that's been fairly effective.
• 11:04
  [SPEAKER_00]: But some of the universities have pushed back and even when the universities have
• 11:13
  [SPEAKER_00]: have pushed back.
• 11:14
  [SPEAKER_00]: So that's a mixed bag.
• 11:16
  [SPEAKER_00]: As far as the courts go, you'll write that the lower courts generally have been receptive to the challenges to Trump's allegation of power, which the Constitution doesn't actually vest in the presidency.
• 11:30
  [SPEAKER_00]: The Supreme Court has yet to formally
• 11:40
  [SPEAKER_00]: on the wall, on that one, and birthright citizenship, which are three of the big cases, Trump has essentially put before the court.
• 11:50
  [SPEAKER_00]: If they uphold Trump's position on birthright citizenship, that would be an earthquake, and that would be surprising.
• 11:56
  [SPEAKER_00]: But, you know, this is a very partisan court in part, certainly some of the Republican justices, and so that's going to be part of the story of 2026, what the court does there.
• 12:08
  [SPEAKER_02]: And what about the news media, which supposedly are independent checks on the power of government misconduct?
• 12:17
  [SPEAKER_00]: That, too, has been a real battlefield, a public-supported media.
• 12:24
  [SPEAKER_00]: like PBS and National Public Radio in particular have been the targets of Republicans for a long time, but not to the degree that they've been the targets under Trump.
• 12:34
  [SPEAKER_00]: NPR has been cast into the no federal funds darkness.
• 12:39
  [SPEAKER_00]: In terms of other media, we have seen
• 12:43
  [SPEAKER_00]: the takeover of CBS news by by right wingers blocking a story on 60 minutes about the prisons in El Salvador to which Trump's deportees have been sent.
• 12:58
  [SPEAKER_00]: MSNBC has been cast off from NBC and is now its own its own entity so there is some caving on the media front and can he comment on the state of the Washington Post or the other legacy print media were supposed to call them.
• 13:15
  [SPEAKER_00]: Well, the New York Times is the most successful entity of the legacy print media with more than 10 million subscribers when you factor in digital subscribers has been pretty good although it's initial resistance bordering on not exactly very good coverage of Zaron Mandami.
• 13:37
  [SPEAKER_00]: was certainly an obstacle, Zorin Mondami had to overcome, he more or less dead, a clearly dead in terms of his victory.
• 13:45
  [SPEAKER_00]: The Washington Post, well Jeff Bezos, you know, was still the largest shareholder in Amazon and he doesn't want the fed screwing around with Amazon.
• 13:54
  [SPEAKER_00]: So the post completely sacked almost all of its opinion writers and brought in kind of the
• 14:07
  [SPEAKER_02]: But it's news pages.
• 14:09
  [SPEAKER_00]: It's news pages remain pretty good as does the times for the Wall Street Journal on those pages have always been pretty good and remain pretty good.
• 14:17
  [SPEAKER_00]: Even now, the L.A. Times has sort of shrunk to, you know, it's husk, but they have occasionally very good stories as well and don't run editorials anymore.
• 14:27
  [SPEAKER_00]: The billionaire owner of the L.A. Times, that's his way of trying to pretend that, you know, he doesn't have to take a stand on anything.
• 14:36
  [SPEAKER_00]: and hope he can sort of whistle by the Trump graveyard.
• 14:40
  [SPEAKER_00]: So that, too, is a mixed picture, but there's still a lot of very conscientious and very able reporters dealing with what is the target-rich environment of Donald Trump's administration and, you know, his, the magma movement which backs it up.
• 14:57
  [SPEAKER_02]: I would just say one other word about the universities.
• 15:00
  [SPEAKER_02]: Trump has singled out Harvard among the elite private universities and UCLA among the best public universities for special torment and punishment.
• 15:12
  [SPEAKER_02]: Neither of them have bent to Trump's will.
• 15:15
  [SPEAKER_02]: Their official leadership has not been outspokenly defiant.
• 15:19
  [SPEAKER_02]: They have
• 15:20
  [SPEAKER_02]: chosen a quieter form of resistance.
• 15:23
  [SPEAKER_02]: But unlike many universities, a public and private, neither Harvard nor UCLA has agreed to any kind of deal to pay off the Trump administration to leave them alone.
• 15:36
  [SPEAKER_02]: And we hope they will continue that role in the future.
• 15:41
  [SPEAKER_02]: One final development in 2025 that we need to review,
• 15:47
  [SPEAKER_02]: mental and psychological deterioration.
• 15:50
  [SPEAKER_02]: A lot of people have pointed out he's got more megaloment maniacal, more unhinged, more corrupt, more grandiose, more impulsive, more irrational, frankly more self-destructive, over the course of the last 11 months, all of which makes him
• 16:10
  [SPEAKER_02]: probably more dangerous, I know you have not been so eager to say that Trump is, you know, going mentally downhill fast, but certainly a lot of other people say that.
• 16:24
  [SPEAKER_00]: Well, again, I don't know how much is deterioration, but he was damaged goods to begin with.
• 16:30
  [SPEAKER_00]: I mean, I have a piece about his naming things after himself, Mania, which in just in the last 10 days or so has included the Kennedy Center, the U.S. Institute of Peace, and
• 16:49
  [SPEAKER_00]: battleships.
• 16:50
  [SPEAKER_00]: I suggest that in this piece, you know, we don't have to confine ourselves to letting Trump name things after himself in the federal government.
• 16:59
  [SPEAKER_00]: We are patriotic Americans.
• 17:01
  [SPEAKER_00]: We can name things after President Trump.
• 17:04
  [SPEAKER_00]: Cities can name their sewer systems after President Trump.
• 17:07
  [SPEAKER_00]: People can put post-its on public toilets naming them after President Trump.
• 17:11
  [SPEAKER_00]: There's a host of opportunities for freedom-loving patriotic Americans to get with the zeitgeist and name things after President Trump.
• 17:21
  [SPEAKER_02]: Modus proposals from Harold Myersen with our year in review.
• 17:26
  [SPEAKER_02]: You can read them at Prospect.org.
• 17:28
  [SPEAKER_02]: Harold, thank you for all your work this year.
• 17:30
  [SPEAKER_02]: And thanks for talking with us today.
• 17:33
  [SPEAKER_00]: It's been great talking to you this year and I look forward to doing it next.
• 17:51
  [SPEAKER_02]: 2025 has been a year of resistance to Trump, including in the courts where Trump's attacks on democracy have been repeatedly challenged.
• 18:01
  [SPEAKER_02]: For comment and analysis we turned to David Cole, he's the former national legal director of the ACLU who now teaches law at Georgetown.
• 18:10
  [SPEAKER_02]: He also writes for the New York Times, the Washington Post, the New York Review, and he's the nation's legal affairs correspondent, David, welcome back.
• 18:21
  [SPEAKER_02]: Well, let's start with the big news from the Supreme Court last week by a vote of 6-3.
• 18:25
  [SPEAKER_02]: They refused to allow Trump to deploy national guard troops in Chicago over the objection of the Illinois Governor.
• 18:34
  [SPEAKER_02]: This was just a preliminary ruling, but it does suggest that similar deployments in other cities are also illegal.
• 18:43
  [SPEAKER_02]: He started in Los Angeles last June, then Portland, and elsewhere.
• 18:48
  [SPEAKER_02]: This is probably the most significant case where the conservative majority did not support Trump's claims to power.
• 18:55
  [SPEAKER_02]: A tell us about that case and its significance.
• 18:58
  [SPEAKER_01]: Yeah, I think it's a huge decision.
• 19:00
  [SPEAKER_01]: It basically stops Trump's national guard theater around the country.
• 19:07
  [SPEAKER_01]: in which he's calling out the guard ostensibly to support low enforcement in cities and states where law enforcement is doing the job.
• 19:19
  [SPEAKER_01]: It needs to do it has not asked for any assistance.
• 19:23
  [SPEAKER_01]: And what the Supreme Court said was that the statute that he asserted
• 19:29
  [SPEAKER_01]: that allows him to fertilize the national guard, take national guard troops away from the state governor who oversees them and direct them himself, can only be deployed where regular troops
• 19:45
  [SPEAKER_01]: have failed to do the job in executing the law, and there's two problems for Trump on that ground.
• 19:54
  [SPEAKER_01]: First, he hasn't tried to bring in regular troops, similarly the actual military, and secondly, the reason he hasn't is because regular troops are forbidden from executing the law,
• 20:07
  [SPEAKER_01]: except where Congress has expressly authorized them to do so, and he has not invoked any statute that expressly authorizes the use of regular troops.
• 20:18
  [SPEAKER_01]: And so, until he does that, and uses regular troops and they're unavailable, only at that point is he allowed to federalize the national guard.
• 20:27
  [SPEAKER_01]: The guard is supposed to be governed by the states, not by the federal government.
• 20:34
  [SPEAKER_02]: This ruling suggests that not only is Trump banned from using the national guard to pursue his deportation agenda in the blue states where the governor objects, but also many of our friends are worried he might have used the guard on election day this November when he might send the guard to polling places in blue cities to try to intimidate voters.
• 21:01
  [SPEAKER_02]: Do you agree that this ruling also prohibits that?
• 21:07
  [SPEAKER_01]: Absolutely.
• 21:08
  [SPEAKER_01]: Absolutely.
• 21:09
  [SPEAKER_01]: There's no authority for Trump to invoke the National Guard.
• 21:13
  [SPEAKER_01]: unless two things happen, one that there's a authority for him to use regular troops, and that's a very narrow set of circumstances, and it does not include election intimidation or election fraud or anything like that.
• 21:28
  [SPEAKER_01]: And second, he has to first use troops and show that they're on
• 21:32
  [SPEAKER_01]: able to do the job, but only then can he bring in the National Guard.
• 21:35
  [SPEAKER_01]: So I think this takes the National Guard off the table with the exception of my fair district of Columbia, which is a federal enclave, and so he has broader authority here.
• 21:48
  [SPEAKER_02]: Trump has said he might invoke the Insurrection Act, which doesn't give him the power to use troops to enforce civil peace.
• 22:00
  [SPEAKER_01]: Of course, we think there's a difference between insurrection and protest.
• 22:17
  [SPEAKER_01]: to put down the rebellion.
• 22:19
  [SPEAKER_01]: That is the first line of response to any kind of unrest is supposed to be in the states.
• 22:25
  [SPEAKER_01]: And only where
• 22:27
  [SPEAKER_01]: You know, the state government is behind the insurrection rebellion, or the state government has been overwhelmed by the rebellion, and the insurrection act legally be invoked.
• 22:39
  [SPEAKER_01]: Does that mean Trump won't invoke it short of circumstances like that?
• 22:43
  [SPEAKER_01]: No, but I think it does mean that courts will be very, very skeptical and ought to be very skeptical of invoking it, absent those kinds of circumstances, which just have not been
• 22:55
  [SPEAKER_02]: want to pull the focus back to the year of challenges in court, which actually began on the very first day of Trump's second term January 20th, he started signing executive orders that day he signed a couple of dozen and he signed more than a hundred and maybe two hundred since them.
• 23:13
  [SPEAKER_02]: These, of course, had been in the works for a long time, they mostly came from the
• 23:18
  [SPEAKER_02]: Heritage Foundations Project 2025 and the state attorneys general of the blue states along with the ACLU and its allied groups had also been planning for this moment for a long time and responded also starting on day one January 20th
• 23:36
  [SPEAKER_02]: filing legal challenges to Trump's executive orders, and those challenges have mostly succeeded in the lower courts.
• 23:46
  [SPEAKER_02]: The most recent one came just this week when a federal judge in San Francisco temporarily blocked ice from arresting people when they show up for their scheduled hearings at immigration court.
• 23:59
  [SPEAKER_02]: Now, this is limited to Dorther in California and Hawaii, but it will certainly be litigated through the night circuit and probably up to the Supreme Court.
• 24:08
  [SPEAKER_02]: As of today, there have been something like 150 of Trump's executive orders and actions that have been blocked by the federal courts.
• 24:18
  [SPEAKER_02]: either partially or fully by temporary restraining orders, by preliminary injunctions, sometimes, by rulings on the merits, and even Republican appointed district judges, even Trump appointed judges.
• 24:32
  [SPEAKER_02]: Have ruled against administration policies, 64% of the time,
• 24:37
  [SPEAKER_02]: that these cases have come before Republican judges, they have ruled against Trump.
• 24:42
  [SPEAKER_02]: How do you explain the broad success of these 150 legal challenges?
• 24:49
  [SPEAKER_01]: Trump is acting in ways that are really unprecedented, that are often directly in violation of
• 24:58
  [SPEAKER_01]: fairly foundational legal principles and judges are just doing their job, which is to enforce the law against anyone who violates it, even if that person is the most powerful person in the United States.
• 25:13
  [SPEAKER_02]: Then we get to the Supreme Court.
• 25:15
  [SPEAKER_02]: It hasn't taken up very many of these 150 challenges.
• 25:19
  [SPEAKER_02]: It has stayed or reversed lower court rulings against Trump 20 times out of 24 decisions.
• 25:29
  [SPEAKER_02]: Now, the great majority of these were not on the merits.
• 25:32
  [SPEAKER_02]: They were part of the shadow DACA.
• 25:35
  [SPEAKER_02]: They were temporary stays.
• 25:37
  [SPEAKER_02]: The cases are yet to be decided by argument
• 25:42
  [SPEAKER_02]: decisions.
• 25:44
  [SPEAKER_02]: What's your comment on the court reversing 20 out of 24 of these lower court rulings?
• 25:50
  [SPEAKER_01]: Well, I think it's not encouraging, but I also think people often read too much negativity into that statistic.
• 26:00
  [SPEAKER_01]: You have to keep in mind that it's only 20.
• 26:03
  [SPEAKER_01]: As you said, 150 injunctions against the president, that's because the president has not taken a lot of those other injunctions up to the Supreme Court.
• 26:13
  [SPEAKER_01]: Why?
• 26:13
  [SPEAKER_01]: Because he knows he would probably lose them there.
• 26:16
  [SPEAKER_01]: So that's one point.
• 26:17
  [SPEAKER_01]: They've only appealed on ones where they thought they would win.
• 26:22
  [SPEAKER_01]: Second point is they've lost in some really important ones.
• 26:25
  [SPEAKER_01]: This National Guard one was a huge one.
• 26:27
  [SPEAKER_01]: They also lost with respect to the spiriting people out of the country under the Alien Enemies Act.
• 26:33
  [SPEAKER_01]: That has been stayed until the Supreme Court.
• 26:37
  [SPEAKER_01]: It determines whether it's lawful or not.
• 26:40
  [SPEAKER_01]: They stopped his effort to kick Lisa Cook off the federal reserve and they
• 26:46
  [SPEAKER_01]: and they also ordered him to facilitate the return of Mr. Abrego Garcia and El Salvador and man who was wrongly deported.
• 26:55
  [SPEAKER_01]: So I think it's important to note that they have ruled against the president on a number of occasions.
• 27:00
  [SPEAKER_01]: They have ruled for the president on a disturbing number of occasions.
• 27:03
  [SPEAKER_02]: Yeah, let's look at those.
• 27:04
  [SPEAKER_02]: What do you think are the most important cases where the court did the most damaged to democracy and freedom in the last year?
• 27:14
  [SPEAKER_01]: A number of those cases involve Trump refusing, basically refusing to spend money that Congress appropriated or trying to essentially decimate agencies that Congress authorized.
• 27:29
  [SPEAKER_01]: So those are a problem because, you know, now USAID is basically doesn't exist.
• 27:33
  [SPEAKER_01]: The Department of Education has been decimated the CFPB.
• 27:37
  [SPEAKER_01]: He is trying that serious executive overreach.
• 27:42
  [SPEAKER_02]: For us here in Los Angeles, there's been one really big loss, which was the Supreme Court's temporary reversal of the Ninth Circuit ruling that prohibited ice stops based on racial profiling.
• 27:56
  [SPEAKER_02]: They were arresting people basically because they looked Latino or because they spoke Spanish.
• 28:02
  [SPEAKER_02]: This was the case argued by Mark Rosenbaum of Public Council
• 28:05
  [SPEAKER_02]: It isn't over.
• 28:06
  [SPEAKER_02]: This was a temporary stay of a temporary restraining order in the underlying lawsuit continues at the Ninth Circuit, but there is a kind of a constitutional question of whether the equal protection clause and the Fourth Amendment requirement of probable cause apply to ice stopping people because they look Latino.
• 28:29
  [SPEAKER_02]: Or because they're speaking Spanish, and right now ISIS doing it again in Los Angeles and everywhere else, and that's on our list of the big losses.
• 28:38
  [SPEAKER_01]: Now that is a big loss to be sure, again, because on these emergency docket rulings, the court often doesn't explain its reasoning.
• 28:49
  [SPEAKER_01]: You don't know what the basis for it is.
• 28:51
  [SPEAKER_01]: In that case, Justice Cavanaugh wrote a concurrence.
• 28:56
  [SPEAKER_01]: And so he gave his reasons, which included, that he didn't think the plaintiffs had standing to challenge the ICE actions
• 29:08
  [SPEAKER_01]: likely.
• 29:09
  [SPEAKER_01]: imminent or very, very likely to happen to you in the near-term future without the relief.
• 29:17
  [SPEAKER_01]: And when you're talking about challenges to law enforcement actions, it's hard to say that with respect to any particular plaintiff that they will face that law enforcement action in an immediate sense, in an imminent sense, that provides standing.
• 29:34
  [SPEAKER_01]: That would not be a ruling on the merits.
• 29:38
  [SPEAKER_01]: Factors like speaking Spanish or...
• 29:41
  [SPEAKER_01]: national origin or appearance and the like can be factors in ice going up to someone and stopping them for a terry stop for reasonable suspicion that court held that about 25 years ago in another case so that wasn't really breaking new ground so you know I think what what ice was doing in in L.A. and continues to do across the country is outrageous and despicable and inhumane
• 30:08
  [SPEAKER_01]: But in that particular case, the court didn't tell us why it was staying the injunction.
• 30:15
  [SPEAKER_01]: Cavanaugh pointed to two possible reasons that are basically based on existing law, not creating new law.
• 30:24
  [SPEAKER_02]: You suggested there's been too much negativity among some of our friends and that the coming term may have better results from our point of view because the court has not yet taken up the biggest cases.
• 30:37
  [SPEAKER_02]: Let's let's talk about those right now.
• 30:39
  [SPEAKER_01]: The court has heard argument in the challenge to Trump's tariffs.
• 30:43
  [SPEAKER_01]: has agreed to hear argument in the challenge to Trump's executive order on birthright citizenship.
• 30:51
  [SPEAKER_01]: I think it's almost certain that it will rule that the birthright citizenship order is illegal.
• 30:57
  [SPEAKER_01]: It is contrary to the plain text of the Constitution and the understanding
• 31:02
  [SPEAKER_01]: It is contrary to a Supreme Court precedent that's been in place for over a hundred years and virtually every lower court judge has agreed that it's illegal I would be shocked if the court held otherwise and on the tariffs Trump's
• 31:17
  [SPEAKER_01]: Principle foreign policy, you know, initiative.
• 31:20
  [SPEAKER_01]: The oral argument suggested that there are at least four and possibly six justices who believe that he has acted unlawfully in imposing tariffs that he has taken on power that is Congress's power that is the power to tax because a tariff is basically a tax and he has taken on that power without Congress having given him that power.
• 31:45
  [SPEAKER_01]: and as a result is quite possible that we come to the end of this Supreme Court term, not the end of this year, but the Supreme Court term, which will end in June of 2020-6, with Trump losing on two of his premier initiatives in the Supreme Court.
• 32:03
  [SPEAKER_02]: The other big one that our friends are worried about is the issue of the independence of independent federal agencies created by Congress that that is a huge issue for the way America has been governed since the new deal and it is very much endangered right now.
• 32:20
  [SPEAKER_01]: agreed that is a that's one that he will very likely win they've already indicated that they are skeptical of the notion that Congress has the power to impose limits on the President's ability to remove what are called principal officers basically the heads of administrative agencies.
• 32:40
  [SPEAKER_01]: I think it's wrong-headed but this is the direction this court has been going for the last
• 32:49
  [SPEAKER_01]: striking down efforts by Congress to give a degree of independence to certain administrative agencies agencies where you'd want them to have independence like the Federal Reserve you don't want it to be controlled by
• 33:04
  [SPEAKER_01]: politics, or the SEC, you know, we want it to be enforcing the law not, and getting acting in a political way, or the federal elections commission, or the merit systems protection board, which reviews claims against the executive by its employees.
• 33:22
  [SPEAKER_01]: Why would you want that office to be removable by the president who is essentially the defendant in all those cases?
• 33:31
  [SPEAKER_01]: And so Congress provided a degree of independence, the President can only remove those sorts of officers if he has four cause if he shows that they are not doing their job, they are engaging in neglect, et cetera.
• 33:47
  [SPEAKER_01]: But not simply because he disagrees with them on a particular political decision.
• 33:53
  [SPEAKER_01]: The court is very likely to say, no, with respect at least to the top officers in the
• 34:00
  [SPEAKER_01]: The president has to have the ability to remove them because otherwise, you know, it's his executive power, it's his job to faithfully execute the laws and if he can't remove them, if he doesn't like the way they're executing the laws, then that has intruded on his executive authority.
• 34:18
  [SPEAKER_01]: That is contrary, I think, too.
• 34:20
  [SPEAKER_01]: the original understanding.
• 34:21
  [SPEAKER_01]: It's contrary to a hundred years of press and but it is the direction that this court has been going actually before the Trump justices were added to the court.
• 34:32
  [SPEAKER_01]: So it will come to a close, I think, with a win for Trump in a ruling that overturns a case called Humphrey's Executive from
• 34:46
  [SPEAKER_01]: government agencies are engaging in sort of quasi-legislative and quasi-adjudicative actions.
• 34:53
  [SPEAKER_01]: It is permissible for Congress to put limits on the President's ability to remove it.
• 34:58
  [SPEAKER_02]: Big picture, some of our friends, especially Elie Mestal at the Nation, have a very dark view of our future because of the actions of the Supreme Court.
• 35:11
  [SPEAKER_02]: I know you've debated him or had public discussions with him about this, since view is basically
• 35:18
  [SPEAKER_02]: The court majority is committed to supporting Trump.
• 35:21
  [SPEAKER_02]: So it is a delusion to think that the courts are going to protect us from Trump.
• 35:27
  [SPEAKER_02]: You don't agree with Ellie M. Stahl's view of the value of litigating issues given the present state of the Supreme Court.
• 35:35
  [SPEAKER_02]: Why not?
• 35:36
  [SPEAKER_01]: Yeah, look, I don't wear rose tinted glasses.
• 35:39
  [SPEAKER_01]: I recognize that the court consists of six very conservative justices and three liberal injustices.
• 35:47
  [SPEAKER_01]: And that makes those who are liberal sort of out of disadvantage in any politically charged case before the Supreme Court.
• 35:55
  [SPEAKER_01]: However, what is the alternative?
• 35:58
  [SPEAKER_01]: What is the alternative?
• 36:00
  [SPEAKER_01]: You're not going to get any
• 36:01
  [SPEAKER_01]: Meaningful check on the president from Congress.
• 36:04
  [SPEAKER_01]: We've shown, that's absolutely clear.
• 36:08
  [SPEAKER_01]: And when you've got your representing people who are being put on a plane to be sent to Al Salvador to a torture prison, what are you supposed to do?
• 36:18
  [SPEAKER_01]: Turn the other cheek.
• 36:20
  [SPEAKER_01]: and let them be flown out of this country illegally because you're skeptical about the Supreme Court or do you do everything within your power to protect those people?
• 36:30
  [SPEAKER_01]: And I think it has to be the latter and in that case the rulings have stopped that particular action.
• 36:38
  [SPEAKER_01]: And in the national guard cases, the rulings have stopped President Trump's blatantly illegal effort to put national guard on the nation's city streets for his own dramatic political theater.
• 36:54
  [SPEAKER_01]: So we can win in the courts, as you open this show, over a hundred and
• 37:01
  [SPEAKER_01]: 50 lower court judges have issued injunctions against President Trump's initiatives.
• 37:07
  [SPEAKER_01]: Many of them have not been appealed to the Supreme Court by the Trump administration.
• 37:13
  [SPEAKER_01]: That means those injunctions are in place.
• 37:15
  [SPEAKER_01]: They are protecting people as we speak.
• 37:18
  [SPEAKER_01]: So do I think the Supreme Court will save us?
• 37:21
  [SPEAKER_01]: Absolutely not.
• 37:23
  [SPEAKER_01]: Do I think we should give up on the court?
• 37:25
  [SPEAKER_01]: Absolutely not.
• 37:27
  [SPEAKER_01]: We need
• 37:31
  [SPEAKER_01]: And an absolutely critical tool and one that we are not lightly give up in the name of some kind of skepticism is suing the bastards when they violate the Constitution.
• 37:44
  [SPEAKER_02]: David Cole, these legal affairs correspondent for the nation and former national legal director for the ACLU.
• 37:52
  [SPEAKER_02]: David, thanks for all your work and thanks for talking with us today.
• 37:56
  [SPEAKER_02]: Thanks John.
• 37:58
  [SPEAKER_02]: We have an update on Wednesday afternoon.
• 38:01
  [SPEAKER_02]: Trump has abandoned his efforts to deploy the National Guard in Chicago, Los Angeles, and Portland.
• 38:08
  [SPEAKER_02]: The news came after the Supreme Court issued that temporary stay blocking him from deploying the National Guard in Chicago.
• 38:16
  [SPEAKER_02]: After that, Justice Department lawyers told the Ninth Circuit Court of Appeals they formally withdrew a request to keep troops under federal control while the appeal proceeds.
• 38:29
  [SPEAKER_02]: Trump said the decision was based on what he described as greatly reduced crime in those cities.
• 38:36
  [SPEAKER_02]: In the latest reports, nobody believed him.
• 38:40
  [SPEAKER_02]: Also in the Wednesday news, a federal judge in San Francisco ruled the Trump's order ending temporary deportation protections for tens of thousands of people from Honduras Nepal and Nicaragua was illegal that they can't be deported at least not right now.
• 38:59
  [SPEAKER_02]: The judge said the government's review of the program was conducted with a predetermined outcome motivated by racial animus, and that it failed to address the key issues that led to protected status, notably food insecurity in Nepal, staggering crime in Honduras, and humanitarian crises in Nicaragua.
• 39:21
  [SPEAKER_02]: As a result of this court order, 50,000 Hondurans, 7,000 Nepalis, 3,000 Nicaraguans in the United States remained covered under temporary protected status.
• 39:43
  [SPEAKER_02]: You've been listening to Start Making Sense, a podcast from the Nation Magazine.
• 39:47
  [SPEAKER_02]: Renee Reynolds is our associate producer.
• 39:50
  [SPEAKER_02]: Alan Minsky is our producer.
• 39:53
  [SPEAKER_02]: Jack Merkinson is Executive Producer.
• 39:56
  [SPEAKER_02]: Baskar Sunkara is President of the Nation.
• 39:59
  [SPEAKER_02]: Katrina Vandenhuvul is editor and publisher of the Nation.
• 40:03
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• 40:05
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• 40:08
  [SPEAKER_02]: You can find out more about Start Making Sense at the Nation.com.
• 40:12
  [SPEAKER_02]: And you can subscribe to start making sense on Apple podcasts or wherever you get your podcasts.
• 40:19
  [SPEAKER_02]: I'm John Weener.
• 40:20
  [SPEAKER_02]: Thanks for listening.