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Judge Napolitano - Hope for the Dead · Brian Thomas

• 0:00
  Speaker 1: You may not know this, but our next guest Hans
• 0:03
  Speaker 1: the state's biggest Easter egg hunt in his yard this year.
• 0:07
  Speaker 1: But instead of aggs, you can find copies of the Constitution.
• 0:11
  Speaker 1: My favorite part is where the kids get to run
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  Speaker 1: around for seventy six seconds before the hunt starts. It's
• 0:17
  Speaker 1: called the pre scramble. The judges next Chuck Ingram on
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  Speaker 1: fifty five KARC the talk station.
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  Speaker 2: Hey, thirty five krc DE talk station, and what the
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  Speaker 2: hell that was about? Brian Thomas always pleased in this
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  Speaker 2: time of day, very turn off every Wednesday here in
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  Speaker 2: the fifty five ers mornings here at this time Judge
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  Speaker 2: entered a Politano. It's great having you on a great
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  Speaker 2: timing today, Judge of Polaitano because of the Supreme Court.
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  Speaker 3: Yeah, a happy Easter or two with mister.
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  Speaker 2: Ingram right back at you. I know he would wish
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  Speaker 2: you that same. And I was really interested in this
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  Speaker 2: free speech because it's sort of mixed in with your
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  Speaker 2: op ed piece or your calm which comes out tonight,
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  Speaker 2: which I always point out I get early because I'm
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  Speaker 2: a lucky man. Get you on the show, and to
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  Speaker 2: get the op ed piece or hope for the dead
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  Speaker 2: Roman government crucified Jesus because it feared that by claiming
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  Speaker 2: to be the son of God, he might foment a
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  Speaker 2: political revolution. He was exercising his what he thought he
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  Speaker 2: had free speech rights, which were was speech that ran
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  Speaker 2: counter to the Roman government's philosophy that Roman the Emperor
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  Speaker 2: was in fact God or the king anyway kind of
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  Speaker 2: disrupted the social order. But if he lived in the
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  Speaker 2: United States, Jesus Christ, he'd be able to say that
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  Speaker 2: all day long. And of course the same goes in Colorado.
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  Speaker 2: They imposed a ban on LGBTQ conversion therapy. In other words,
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  Speaker 2: you weren't supposed to be able to get a psychiatrist
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  Speaker 2: or psychologist rendering care to a confused child. Was not
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  Speaker 2: allowed to try to talk them out of believing they
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  Speaker 2: were the opposite sex, or maybe talk them out of
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  Speaker 2: the idea that they thought they were gay. No, you're
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  Speaker 2: not gay, you like the opposite sex, And the courts no,
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  Speaker 2: that's free speech. You can't intrude on that. And of course,
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  Speaker 2: the interesting thing is it was eight to one Elayna Kagan,
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  Speaker 2: which you think would go against this. He pointed out
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  Speaker 2: the way you can't suppress one side of the bait,
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  Speaker 2: you have to allow the other. So the state could
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  Speaker 2: similarly not ban talk therapy designed to affirm a minor's
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  Speaker 2: sexual ideology. It runs both ways. Both sides can say
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  Speaker 2: what they want because of the First Amendment. Have I
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  Speaker 2: got that right? Right?
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  Speaker 3: You have it one hundred percent correct. It was a
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  Speaker 3: terrific decision because it's not based on the social policy
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  Speaker 3: of is it constitutional to change your gender? It's based
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  Speaker 3: on the First Amendment. It follows traditional jurisprudence, rule on
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  Speaker 3: the narrowest issue possible, rule on the strictly constitutional issue,
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  Speaker 3: rule on the words of the Constitution. So who is
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  Speaker 3: the government to say to physicians? This may have even
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  Speaker 3: applied to members of the clergy as well. You can
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  Speaker 3: say certain things to your patient or penitent, but you
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  Speaker 3: can't say certain other things. And how does the government
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  Speaker 3: surveil these things? How does the government know what happens
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  Speaker 3: in these private conversations. I mean, this is a can
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  Speaker 3: of worms that Colorado opened up. And in my view,
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  Speaker 3: the court absolutely did the right thing.
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  Speaker 2: And so they remanded down to the lower court for
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  Speaker 2: the application of what we call strict scrutiny. Right, you're
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  Speaker 2: allowed to intrude on certain constitutional rights. As long as
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  Speaker 2: the law is narrowly tailored and is designed to serve
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  Speaker 2: a government's significant interest, that it's to be the very
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  Speaker 2: narrowly tailed. They can't pass that standard on a lower
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  Speaker 2: court here.
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  Speaker 3: Now, no, no, no, no. The government's need must be compelling.
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  Speaker 3: There's no compelling state interest here, and the means used
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  Speaker 3: to address the compelling state interest must be the least restrictive.
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  Speaker 3: This is the opposite. This is not a compelling issue.
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  Speaker 3: This is a social issue, apparently in Colorado, and the
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  Speaker 3: means are not the least restrictive, they're the most restrictive.
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  Speaker 3: So this thing is dead in the water. I was
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  Speaker 3: surprised they sent it back for this analysis. I would
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  Speaker 3: have just invalidated it. But again they're following very very
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  Speaker 3: traditional Supreme Court jurisprudence. If the issue was not raised
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  Speaker 3: below strict scrutiny and least restrictive alternative, the losing side
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  Speaker 3: should be given an opportunity to address it, even if
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  Speaker 3: they lost at the Supreme Court. So that's what they're thinking.
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  Speaker 2: Was fair enough and pivoting over to today oral arguments on
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  Speaker 2: basically on the Fourteenth Amendment, ratified after the Civil War,
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  Speaker 2: all persons born are naturalized in the United States and
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  Speaker 2: subject to the jurisdiction thereof are citizens of the United States.
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  Speaker 2: In the aftermath of the slaveh being freed, you couldn't
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  Speaker 2: exclude them from being a citizen merely because their parents
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  Speaker 2: were not citizens. Does this language confer us citizenship on
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  Speaker 2: babies whose parents are in the country illegally or temporarily?
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  Speaker 2: Judgenna Polaitano, I'm of the mind that the Supreme Court
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  Speaker 2: is going to keep the status quo, which has been
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  Speaker 2: around for one hundred and fifty or so years, based
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  Speaker 2: on an early Supreme Court case involving a Chinese a
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  Speaker 2: child of a Chinese immigrant immigrant family out in California.
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  Speaker 2: I guess they came here to work on the railroad
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  Speaker 2: or something. But the child was born in the United
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  Speaker 2: States asserted his right to citizenship, and the Court found it. Yes,
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  Speaker 2: in fact, that man was a citizen. And do you
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  Speaker 2: think that's going to change your honor?
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  Speaker 3: No, I don't think it's going to change. I think
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  Speaker 3: you're one hundred percent to correct. I am going to
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  Speaker 3: look at the Chief Justice and Justice Gorsic, because I
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  Speaker 3: think I know where justice is. Alito, Thomas and Kavanaugh
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  Speaker 3: are and I think I know where Justice is Kagan, Barrett,
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  Speaker 3: and Jackson are, but I don't know where the Chief
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  Speaker 3: and Justice gorst jar And depending upon how aggressive their
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  Speaker 3: questioning is and to whom that aggression is aimed, will
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  Speaker 3: give us an indication of which way they're going to go.
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  Speaker 3: But look, in all the interpretations of the fourteenth Amendment,
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  Speaker 3: only one said the person was not a citizen, and
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  Speaker 3: that person was born on tribal lands at a time
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  Speaker 3: when the tribes were considered a foreign country rather than
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  Speaker 3: American citizens, And Congress corrected that with a statute. The
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  Speaker 3: Justice who wrote that opinion himself attempted to correct it
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  Speaker 3: in a subsequent opinion. So the Trump administration really has
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  Speaker 3: no solid jurisprudence on which the stand. You know what
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  Speaker 3: they've done. They quoted some southern white racists in the
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  Speaker 3: post World War two excuse me, in the post Civil
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  Speaker 3: War era who said in state legislatures, it's reprehensible that
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  Speaker 3: they quoted these people, but they did. We're voting for
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  Speaker 3: this because it's limited to making former slaves into citizens.
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  Speaker 3: I mean, this is going to land like a lead
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  Speaker 3: balloon in my view at the Supreme Court. It doesn't
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  Speaker 3: say all persons formerly held in bondage. It says all persons, yes,
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  Speaker 3: born in the United States are citizens.
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  Speaker 2: Yeah, there's no way around the language. I'll agree with
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  Speaker 2: you on that. And there seems to be some debate
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  Speaker 2: over what subject to the jurisdiction thereof persons that that's
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  Speaker 2: somehow is a carve out or something. But I always
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  Speaker 2: thought that that was meant for folks working in embassies.
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  Speaker 2: You know, the embassy is getting in the property of
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  Speaker 2: this is.
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  Speaker 3: A car But the Supreme Court has held that there's
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  Speaker 3: two carve outs. One an invader, a female invader, or
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  Speaker 3: the spouse of an invader who happens to give birth
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  Speaker 3: here during the invasion. The baby's not an American citizens
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  Speaker 3: as far as I know, that has never happened. At
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  Speaker 3: least if it has happened, that person hasn't claimed citizenship
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  Speaker 3: and the courts haven't ruled on that claim. And then
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  Speaker 3: the other is an embassy worker because they are not
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  Speaker 3: subject to the jurisdiction of the United States government when
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  Speaker 3: they are on their embassy property. Those are the only
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  Speaker 3: two exceptions. The Trump administration says, well, if a mother
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  Speaker 3: comes across the border just to give birth, she is
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  Speaker 3: not subject to the jurisdiction of the government because her
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  Speaker 3: and the baby's father are loyal to the country from
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  Speaker 3: which they came. This is not about loyalty, This is
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  Speaker 3: about who's are they subject to the jurisdiction of the
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  Speaker 3: US giving birth in an American hospital.
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  Speaker 2: Of course they are right, And I know you're going
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  Speaker 2: to say that, And I'm glad you brought up that
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  Speaker 2: specific point because a lot of my listeners and even
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  Speaker 2: I do not like the concept of birth tourism. There's
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  Speaker 2: something nefarious about if they have no intention of living here.
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  Speaker 2: They're not looking for to become US citizens, the parents themselves.
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  Speaker 2: It's like the Chinese Communist Party has has provided a
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  Speaker 2: facilitation for all of this. They come here with the
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  Speaker 2: pregnant woman, they give birth, they hang out for a
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  Speaker 2: few years of American education, they both go they all
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  Speaker 2: go back to China. I supposed to get indoctrinated. Now,
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  Speaker 2: what is the remedy for that? If that is in
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  Speaker 2: fact a problem that's worthy of dealing with. Is this
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  Speaker 2: a constitutional amendment to the fourteenth Amendment? Is it laws
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  Speaker 2: that can be passed which would be argued to be unconstitutional?
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  Speaker 2: How do you go about this?
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  Speaker 3: The Supreme Court ruled in a case called po versus Texas,
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  Speaker 3: in which the state of Texas enacted legislation that said,
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  Speaker 3: if you are here illegally, you are not entitled to
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  Speaker 3: free education, You are not entitled to welfare. You are
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  Speaker 3: not even entitled to go into emergency rooms. You have
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  Speaker 3: no rights, no entitlements whatsoever. That that law was never enforced.
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  Speaker 3: It was enjoined by a federal judge, and the Supreme
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  Speaker 3: Court basically said, if you give your citizens these base
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  Speaker 3: sick social safety net standards, you have to give them
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  Speaker 3: to everybody. That would have to be changed, and it
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  Speaker 3: can only be changed by a constitutional amendment. So when
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  Speaker 3: there is no longer a financial incentive for birth tourism,
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  Speaker 3: birth tourism will go way down.
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  Speaker 2: Fair enough well by you and I are eyed eye
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  Speaker 2: on that one too.
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  Speaker 3: Yeah, I understand. I understand how people are aggravated at
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  Speaker 3: birth tourism and rejoiced in President Trump's executive order and
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  Speaker 3: hopes that he prevails. You know, the other issue is,
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  Speaker 3: I don't even know if they're going to address this.
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  Speaker 3: The president is not in the business of interpreting the constitution,
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  Speaker 3: only the courts.
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  Speaker 2: Are well, just because he wants it. And just because
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  Speaker 2: he issues an executi voter doesn't mean that's the final
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  Speaker 2: word on it as which is why they're going to
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  Speaker 2: be arguing this in the Supreme Court this morning or
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  Speaker 2: today correct.
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  Speaker 3: And you know he's going to be there seated in
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  Speaker 3: the in the first row. I don't think that's going
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  Speaker 3: to affect the outcome.
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  Speaker 2: No, it won't.
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  Speaker 3: But the last time a president was in the Supreme
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  Speaker 3: Court was before he was president, Richard Nixon, when he
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  Speaker 3: was a private lawyer, after he left a vice presidency,
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  Speaker 3: after he was defeated for president, after he was defeated
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  Speaker 3: for governor of California, moved to New York and practiced law,
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  Speaker 3: and he argued a very famous case called Time against Hill.
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  Speaker 3: It's a very famous defamation case. He lost the case,
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  Speaker 3: but he gave what is known to law students and
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  Speaker 3: lawyers as a brilliant oral argument. But he was not
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  Speaker 3: the president. He was about to become the president.
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  Speaker 2: Yeah, he's not remembered for that, though, your honor.
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  Speaker 3: No, he's not not at all.
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  Speaker 2: I know you are a devoutly religious man of the
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  Speaker 2: Catholic faith, and it's obviously came through very clearly in
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  Speaker 2: your op ed piece. Which all encourage my listeners to
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  Speaker 2: get a copy of it. It's a caption Hope for
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  Speaker 2: the Dead. I just wanted to with that predicate one
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  Speaker 2: of the wish you a very happy Easter. I know
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  Speaker 2: you'll be celebrating the on Sunday, and I hope you
• 12:06
  Speaker 2: have great weather. I hope you and your loved ones
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  Speaker 2: all have a fantastic time and well.
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  Speaker 3: Thank you, and the same to you and to Ingram,
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  Speaker 3: and to Streker, and to the young man that fills
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  Speaker 3: in for Strekker, and to your family. Send to your.
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  Speaker 2: Listeners, thank you your honorable talk next week. Enjoy your
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  Speaker 2: holiday weekend, sir, Thank you, Brian, all the best, my pleasure.
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  Speaker 2: It's eight forty two right now, fifty five KRCD Talk stations.
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  Speaker 2: They'll go away. You're right back, fifty five KRC