The Federalist Papers, The Constitution and Supreme Court Wrap-Up 2024-2025 w/ Dorollo Nixon, Esq & Jesan Sorrells

1
00:00:00,480 –> 00:00:04,160
Hello, my name is Jesan Sorrells, and this is

2
00:00:04,160 –> 00:00:07,600
the Leadership Lessons from the Great Books podcast, episode

3
00:00:08,000 –> 00:00:10,480
number 156.

4
00:00:11,680 –> 00:00:15,280
Now, you will note if you’re watching the video of this

5
00:00:15,280 –> 00:00:18,480
podcast, you will notice my

6
00:00:18,640 –> 00:00:22,480
lovely face. And then you will not see the face of

7
00:00:22,560 –> 00:00:25,680
our of our guest today

8
00:00:26,470 –> 00:00:30,310
because he is in the car headed back to the office. So if

9
00:00:30,310 –> 00:00:32,550
you just stick with us for a little bit on the video, on the audio

10
00:00:32,550 –> 00:00:36,350
or not on the audio on the video, you will eventually join us

11
00:00:36,350 –> 00:00:40,030
via video. For right now, we are doing as he said before we got

12
00:00:40,030 –> 00:00:42,310
started here, we’re doing radio

13
00:00:44,230 –> 00:00:48,070
to my intro. The month of June is, of course, the month that

14
00:00:48,070 –> 00:00:51,430
comes before the month of July. And in July this year,

15
00:00:51,990 –> 00:00:55,510
as is every year, the Supreme Court of the United States of America

16
00:00:55,510 –> 00:00:58,760
releases its decisions on major court cases to the breathless

17
00:00:58,760 –> 00:01:02,600
reporting of the United States industrial media

18
00:01:02,680 –> 00:01:06,040
complex. And this year, it was no

19
00:01:06,040 –> 00:01:09,600
exception. From decisions around books, education and

20
00:01:09,600 –> 00:01:13,440
parental rights to decisions about what role the judiciary branch has,

21
00:01:13,440 –> 00:01:17,080
in contrast to the executive branch, around injunctions

22
00:01:17,080 –> 00:01:20,600
and executive orders, the majority decisions of the Supreme Court

23
00:01:20,760 –> 00:01:24,280
reflect an attitude the court has taken to the relationship between

24
00:01:24,850 –> 00:01:28,530
the Congress, activists, lobbyists and the culture over the

25
00:01:28,530 –> 00:01:32,370
last few years. And the attitude the court

26
00:01:32,370 –> 00:01:36,170
has taken is focused on, in my opinion, attempting to course correct

27
00:01:36,170 –> 00:01:39,930
a national Congress filled with politicians more focused on having Tony

28
00:01:39,930 –> 00:01:43,690
dinners, fundraising and being popular on Twitter and TikTok that aren’t actually

29
00:01:43,690 –> 00:01:47,010
doing the job we all hired them to do, that is making law

30
00:01:47,410 –> 00:01:50,920
and then retiring and returning home to the districts from which they

31
00:01:51,070 –> 00:01:54,910
day came. Fortunately, the court is acting,

32
00:01:55,070 –> 00:01:58,790
at least the current court is acting as a speed governor, a check, a

33
00:01:58,790 –> 00:02:02,470
break on congressional laziness and, quite frankly, moral

34
00:02:02,470 –> 00:02:06,230
turpitude. It remains to be seen how many more decisions

35
00:02:06,230 –> 00:02:10,030
need to be made before Congress actually absorbs

36
00:02:10,270 –> 00:02:12,190
and acts on the lesson.

37
00:02:14,190 –> 00:02:18,030
We will examine the lessons doled out during the most recent

38
00:02:18,030 –> 00:02:21,740
Supreme Court session, as well as discuss the role of the executive

39
00:02:22,140 –> 00:02:25,820
in our system of government by looking at the Federalist Papers

40
00:02:25,980 –> 00:02:29,580
and, of course, the U.S. constitution. With our returning

41
00:02:29,580 –> 00:02:33,020
guest today, just in time for July, de

42
00:02:33,020 –> 00:02:36,780
Rolo Nixon, Jr. Esq.

43
00:02:37,500 –> 00:02:39,260
Hello, de Rolo. How are you doing today?

44
00:02:41,900 –> 00:02:43,580
We’re doing lovely.

45
00:02:46,470 –> 00:02:49,430
It’s a beautiful day in the neighborhood,

46
00:02:50,150 –> 00:02:53,670
which means Tempe, Arizona, where it’s 108.

47
00:02:55,510 –> 00:02:59,190
You know, are there a lot of, are there a lot of Baptists in Arizona?

48
00:03:00,150 –> 00:03:03,430
I’ve never asked you this question. There are some. There are some.

49
00:03:03,830 –> 00:03:06,710
There’s a lot of Mormons. There are some Baptists.

50
00:03:09,190 –> 00:03:12,560
Yep. You see some and different varieties.

51
00:03:12,720 –> 00:03:16,080
But, you know, Arizona’s interesting demographically because

52
00:03:16,880 –> 00:03:20,720
effectively, you can separate the state into two parts,

53
00:03:20,960 –> 00:03:24,680
and then you can separate the larger of those two parts

54
00:03:24,680 –> 00:03:28,200
into many segments. Okay. The

55
00:03:28,200 –> 00:03:31,280
two parts are Tucson and

56
00:03:31,280 –> 00:03:33,680
Southeast versus everywhere else.

57
00:03:35,680 –> 00:03:39,360
And everywhere else is Arizona, where I live.

58
00:03:40,400 –> 00:03:44,060
And so I promise you, it’s quite fascinating. And

59
00:03:44,060 –> 00:03:47,420
so I’m amazed by how little

60
00:03:47,580 –> 00:03:50,540
intercourse there seems to be between,

61
00:03:51,020 –> 00:03:54,860
obviously, no pun intended, between people who live in Phoenix and

62
00:03:54,860 –> 00:03:58,260
points north with people who live in Tucson and point

63
00:03:58,260 –> 00:04:01,700
Southeast. This is no real intersectional intercourse.

64
00:04:01,700 –> 00:04:04,980
Nothing. So I’m not. And apparently,

65
00:04:04,980 –> 00:04:08,580
culturally, it’s a little different. And how it became part of the United

66
00:04:08,580 –> 00:04:11,760
States, of course, is different. Do you remember the Gadsden Purchase of

67
00:04:11,760 –> 00:04:15,520
1853? If I’m not mistaken, that was

68
00:04:15,520 –> 00:04:19,000
how that little Southern bit became part of the United

69
00:04:19,000 –> 00:04:22,680
States. Right. The rest of it came a different way. But anyway,

70
00:04:23,000 –> 00:04:26,760
I digress. Yes. So it is a beautiful

71
00:04:26,760 –> 00:04:30,400
day in the neighborhood, and we are in that part of

72
00:04:30,400 –> 00:04:33,960
Arizona where it is hot and

73
00:04:34,120 –> 00:04:37,970
there are lots of people from. All over the place. Well, from what

74
00:04:37,970 –> 00:04:41,450
I hear, two things. From what I hear is mostly a dry heat,

75
00:04:42,490 –> 00:04:46,210
unlike the state of Texas, where I hail from, where we

76
00:04:46,210 –> 00:04:48,810
have 80% humidity in the shade.

77
00:04:50,810 –> 00:04:54,090
I also hear that the reason why

78
00:04:54,970 –> 00:04:58,770
the Baptists established such a strong foothold in Texas,

79
00:04:58,770 –> 00:05:02,170
and maybe this is the same in Arizona, is because they have

80
00:05:02,170 –> 00:05:05,480
experienced the heat and they are interested in salvation

81
00:05:05,640 –> 00:05:08,200
rather than eternity of sweating.

82
00:05:11,000 –> 00:05:14,360
Well, that would assume that there’s water in hell. So, yes,

83
00:05:15,320 –> 00:05:19,160
it probably more accurately put a. An eternity

84
00:05:19,160 –> 00:05:22,280
of roasting. But, yes,

85
00:05:23,480 –> 00:05:27,240
it’s possible. I mean, you get people’s attention on a really hot day. You’re

86
00:05:27,240 –> 00:05:30,960
like, you really want more of this. But let’s see, because the last time I

87
00:05:30,960 –> 00:05:34,650
checked this morning, we had 39% humidity, which

88
00:05:34,650 –> 00:05:38,130
is probably double the day before, and we have clouds. So

89
00:05:38,130 –> 00:05:41,370
there’s some remote possibility might actually. Rain,

90
00:05:41,690 –> 00:05:45,330
which would actually be really nice. Let’s see.

91
00:05:45,330 –> 00:05:49,170
Where. Where are we at? Nope,

92
00:05:49,170 –> 00:05:52,810
it went down 28 humidity. Ah.

93
00:05:52,970 –> 00:05:56,690
Well, there’ll be no rain today. All right. No. Well, all

94
00:05:56,690 –> 00:06:00,250
right, well, let’s. Let’s jump right into

95
00:06:00,490 –> 00:06:04,300
our. To our podcast today, because we are on a. On a

96
00:06:04,300 –> 00:06:07,820
little bit of a tight schedule, which is.

97
00:06:07,820 –> 00:06:11,660
Okay. And I want to jump in here with

98
00:06:11,900 –> 00:06:15,620
quoting directly because I want to ask you. Today, we’re going to start

99
00:06:15,620 –> 00:06:18,860
off with this idea of the power of the executive. So we want to start

100
00:06:18,860 –> 00:06:22,620
off with that before we. We flow into the current Supreme

101
00:06:22,620 –> 00:06:26,380
Court decisions in particular the one we’re going to focus on today, Trump

102
00:06:26,620 –> 00:06:29,180
v. Casa and

103
00:06:30,400 –> 00:06:33,840
Amy Coney Barrett’s reading of the majority opinion

104
00:06:34,240 –> 00:06:37,440
from the bench. And I

105
00:06:37,600 –> 00:06:40,880
quote, by the way, we’re going to quote from we’re going to read from today

106
00:06:41,520 –> 00:06:44,560
The Federalist Number 69 by

107
00:06:44,640 –> 00:06:48,360
Alexander Hamilton. By the way, if you read the Federalist Papers and you

108
00:06:48,360 –> 00:06:52,200
can check out the links to the Federalist Papers in the show notes below, this

109
00:06:52,200 –> 00:06:55,440
the the player of the podcast

110
00:06:56,400 –> 00:06:59,970
service that you happen to be listening to this podcast on

111
00:07:02,050 –> 00:07:04,770
the Federalist Papers that cover a lot of the

112
00:07:05,490 –> 00:07:09,330
duties, the requirements, or the thoughts that the Founding Fathers had

113
00:07:09,330 –> 00:07:12,850
around what the chief Executive’s role would be in a

114
00:07:12,850 –> 00:07:16,690
tripart government with a judiciary, a legislative

115
00:07:16,690 –> 00:07:20,130
body, and an executive. Are federalist

116
00:07:20,130 –> 00:07:23,650
numbers 68 or 69

117
00:07:24,340 –> 00:07:28,020
all the way through 73 or

118
00:07:28,020 –> 00:07:31,740
74. And I might be missing a few in there. And I’m sure all of

119
00:07:31,740 –> 00:07:35,460
you who are listening will correct me when I.

120
00:07:36,580 –> 00:07:40,100
Well, will correct me. I’m sure you will, and I look forward to that correction.

121
00:07:40,420 –> 00:07:44,100
But I’m going to start off with Federalist number 69 by

122
00:07:44,180 –> 00:07:47,860
that great fellow about whom a musical

123
00:07:47,860 –> 00:07:50,980
was made a few years ago, Alexander Hamilton.

124
00:07:52,810 –> 00:07:56,490
And I quote from Mr. Hamilton and de Rollo will appreciate

125
00:07:56,490 –> 00:08:00,090
this to the people of the State of New York, I

126
00:08:00,090 –> 00:08:03,850
proceed now to trace the real characters of the proposed Executive as they are

127
00:08:03,850 –> 00:08:07,090
marked out in the plan of the Convention. This will serve to place in a

128
00:08:07,090 –> 00:08:10,730
strong light the unfairness of the representations which have been made in regard to

129
00:08:10,730 –> 00:08:13,930
it. The first thing which strikes our attention is that the Executive

130
00:08:14,010 –> 00:08:17,530
authority, with few exceptions, is to be vested in a single

131
00:08:17,530 –> 00:08:21,050
magistrate. This will scarcely, however, be considered as a point

132
00:08:21,050 –> 00:08:24,890
upon which any comparison can be grounded. For if in this particular

133
00:08:25,130 –> 00:08:28,810
there be a resemblance to the King of Great Britain, there is not less

134
00:08:29,370 –> 00:08:33,210
a resemblance to the Grand Signor, to the Khan of Tartary,

135
00:08:33,290 –> 00:08:36,890
to the man of the Seven Mountains, or to the Governor of

136
00:08:36,890 –> 00:08:40,730
New York. That magistrate is to be elected for four

137
00:08:40,730 –> 00:08:43,730
years and is to be re eligible as often as the people of the United

138
00:08:43,730 –> 00:08:47,530
States shall think him worthy of their confidence. In these circumstances there is a total

139
00:08:47,530 –> 00:08:51,110
dissimilitude between him and a King of Great Great Britain,

140
00:08:51,430 –> 00:08:55,110
who is a hereditary monarch possessing the crown as a patrimony,

141
00:08:55,270 –> 00:08:58,990
descendable to his heirs forever. But there is a close analogy between

142
00:08:58,990 –> 00:09:02,630
him and a Governor of New York, who is elected for three years and is

143
00:09:02,630 –> 00:09:05,990
re eligible without limitation or intermission. If

144
00:09:07,350 –> 00:09:11,150
we consider how much less time would be requisite for establishing a dangerous influence

145
00:09:11,150 –> 00:09:14,950
in a single state than for establishing a like influence throughout the United

146
00:09:15,030 –> 00:09:18,790
States. We must conclude that a duration of four years for the chief magistrate of

147
00:09:18,790 –> 00:09:22,260
the Union is degree of permanency far less to be dreaded in that office

148
00:09:22,660 –> 00:09:26,140
than a duration of three years for a corresponding office in a

149
00:09:26,140 –> 00:09:29,740
single state. President of the United States would be

150
00:09:29,740 –> 00:09:33,580
liable to be impeached, tried, and upon conviction of treason, bribery,

151
00:09:33,580 –> 00:09:37,340
or other high crimes or misdemeanors, removed from office, and would afterwards be

152
00:09:37,340 –> 00:09:40,340
liable to prosecution and punishment in the ordinary course of law.

153
00:09:41,300 –> 00:09:44,980
The person of the King of Great Britain is sacred and invaluable. There is

154
00:09:44,980 –> 00:09:48,700
no constitutional tribunal to which he is amendable, no punishment to which he

155
00:09:48,700 –> 00:09:52,440
can be subjected without involving the crisis of a national revol Revolution. In

156
00:09:52,440 –> 00:09:56,240
this delicate and important circumstance of personal responsibility, the President

157
00:09:56,320 –> 00:10:00,120
of Confederated America would stand upon no better ground than a Governor of

158
00:10:00,120 –> 00:10:03,800
New York, and upon worse ground than the Governors of

159
00:10:03,800 –> 00:10:07,120
Maryland and Delaware.

160
00:10:09,200 –> 00:10:12,320
Close quote from Alexander Hamilton,

161
00:10:12,480 –> 00:10:14,800
Federalist paper number 69.

162
00:10:16,240 –> 00:10:19,950
The reason I opened up with this today is because due to the current

163
00:10:19,950 –> 00:10:23,310
occupant of the White House, Donald John Trump,

164
00:10:23,790 –> 00:10:27,510
there have been a lot of protests around

165
00:10:27,510 –> 00:10:30,830
the country from disaffected folks on the other side of the political

166
00:10:30,830 –> 00:10:34,310
spectrum, folks who identify themselves as being more

167
00:10:34,310 –> 00:10:38,150
progressive or Democratic or liberal, declaring that

168
00:10:38,150 –> 00:10:41,150
they want no kings in the country. And yet

169
00:10:41,950 –> 00:10:44,750
we have a system that is already set up

170
00:10:45,690 –> 00:10:49,530
where the power of the executive can be checked. And by the way,

171
00:10:50,090 –> 00:10:53,770
there have been attempts during Trump’s first administration and even

172
00:10:53,770 –> 00:10:57,290
when Trump was no longer president to, and I quote,

173
00:10:58,250 –> 00:11:01,930
make Donald Trump liable to be impeached, tried,

174
00:11:02,010 –> 00:11:05,810
and upon conviction of treason, bribery or other high crimes and misdemeanors, removed from

175
00:11:05,810 –> 00:11:09,370
office. There were multiple attempts and even after he was in

176
00:11:09,530 –> 00:11:12,330
or out of office, removed by the

177
00:11:14,180 –> 00:11:17,660
voters of the United States of America after the first four year term, there were

178
00:11:17,660 –> 00:11:21,460
several attempts, which is called in our time, lawfare,

179
00:11:21,940 –> 00:11:25,740
to prosecute this man and put him behind bars. By

180
00:11:25,740 –> 00:11:28,659
the way, I do not think that this is an unfair statement. I think we

181
00:11:28,659 –> 00:11:31,700
can look at this on the basis of the facts and appeal to those.

182
00:11:32,420 –> 00:11:36,260
And so, upon coming back and winning the re

183
00:11:36,260 –> 00:11:39,920
election last year in 2024, we are

184
00:11:39,920 –> 00:11:43,080
now having a discussion in our country. And this is where the Supreme Court then

185
00:11:43,080 –> 00:11:46,680
steps in on what the nature of executive power actually is.

186
00:11:47,560 –> 00:11:50,960
Now, executive power has been defined, expanded since the time of the

187
00:11:50,960 –> 00:11:54,680
Federalist Paper’s original writing and of course the original drafting of the Constitution

188
00:11:54,919 –> 00:11:58,360
and even abrogated by the other two branches of government

189
00:11:59,240 –> 00:12:02,960
in our Time, the executive branch has become more and more focused on rule through

190
00:12:02,960 –> 00:12:06,310
executive orders. By the way, this started most notably

191
00:12:06,550 –> 00:12:10,230
in the George W. Bush administration and really ramped up

192
00:12:10,230 –> 00:12:13,790
during the Barack Obama administration. And the

193
00:12:13,790 –> 00:12:17,110
counter to these orders has in the last 10 years come from the

194
00:12:17,110 –> 00:12:20,950
judiciary in particularly through district and federal

195
00:12:20,950 –> 00:12:24,670
courts. This leads specifically into the

196
00:12:24,670 –> 00:12:27,990
case that we’re going to talk about today that was before the court, Trump v.

197
00:12:27,990 –> 00:12:31,790
Casa, where the supreme court of the US decided in a 6, 3 decision that

198
00:12:31,790 –> 00:12:35,260
they had seen, quite frankly, enough

199
00:12:35,660 –> 00:12:39,420
of this from the judiciary. So the

200
00:12:39,420 –> 00:12:43,100
question to open up today to de Rollo, who is still in his

201
00:12:43,100 –> 00:12:46,460
108 degree vehicle in Tempe,

202
00:12:46,460 –> 00:12:50,180
Arizona, waiting for the rain. The question here is de

203
00:12:50,180 –> 00:12:53,660
Rolo, how exactly? Walk us through with your

204
00:12:53,660 –> 00:12:57,500
fertile mind and your understanding of history, politics and the law. How

205
00:12:57,500 –> 00:13:01,340
has the executive power, how has executive power in the United States been transformed

206
00:13:01,850 –> 00:13:05,450
in the last 20 years, in your opinion? Good

207
00:13:05,450 –> 00:13:08,250
question. So the expansion

208
00:13:09,130 –> 00:13:12,850
has been. So I’ll say two things. One, the expansion has

209
00:13:12,850 –> 00:13:16,570
been massive, okay? If we back

210
00:13:16,650 –> 00:13:20,250
up into the 20th century and we look at

211
00:13:20,490 –> 00:13:23,890
post Vietnam, the limited engagements, with one

212
00:13:23,890 –> 00:13:26,330
exception, the limited engagements with which

213
00:13:27,770 –> 00:13:31,330
the US Military was used in different parts of the world, I’m thinking things like

214
00:13:31,330 –> 00:13:35,040
Palma Graneda, right? The Balkans,

215
00:13:35,200 –> 00:13:38,880
okay? These were

216
00:13:39,120 –> 00:13:42,760
relatively minor. They were smaller in scale, they were limited in

217
00:13:42,760 –> 00:13:46,400
scope and in time. The one exception, of course, is Gulf War one,

218
00:13:48,000 –> 00:13:51,800
which was a colossal effort. It was, I think, the largest mobilization

219
00:13:51,800 –> 00:13:55,600
we had since World War II. But obviously there’s a congressional

220
00:13:55,600 –> 00:13:59,260
authorization there. Okay? So other than that one, post

221
00:13:59,260 –> 00:14:03,020
Vietnam, we had one picture, okay? And even someone like

222
00:14:03,020 –> 00:14:06,620
President Reagan, famous for his tough stances, there was not that

223
00:14:06,620 –> 00:14:10,420
much non clandestine use of US Military or other types

224
00:14:10,420 –> 00:14:13,740
of forces that bring violence, right. Without congressional

225
00:14:13,740 –> 00:14:17,580
authorization. And then we come into the 21st century and then it’s an entirely different

226
00:14:17,580 –> 00:14:21,220
picture, right? Certainly there was a congressional authorization

227
00:14:21,220 –> 00:14:24,860
with respect to, I believe, both Afghan and

228
00:14:24,860 –> 00:14:28,292
Iraq off the top of my head in 2000,

229
00:14:28,468 –> 00:14:31,660
November 15, 2001, because that was

230
00:14:32,700 –> 00:14:36,140
not mistaken. And then I believe in March of 2003 for

231
00:14:36,780 –> 00:14:40,460
Iraq, the second time. But anyway, but then those turned

232
00:14:40,460 –> 00:14:44,060
into, you know, colossal boondoggles that took way, way, way too many

233
00:14:44,060 –> 00:14:47,660
years. And where we can question the effectiveness, I saw a meme

234
00:14:47,660 –> 00:14:50,140
recently where

235
00:14:52,300 –> 00:14:56,120
you’ve got, you have President slash Vice

236
00:14:56,120 –> 00:14:59,840
President Cheney on one side and then you have President

237
00:14:59,840 –> 00:15:03,600
Trump on the other, and Vice President Cheney is saying, I need half a million

238
00:15:03,600 –> 00:15:07,200
men, $2 trillion and a whole lot of time to accomplish something.

239
00:15:07,200 –> 00:15:10,880
And President Trump in his meme says, I need about 20 guys in 45

240
00:15:10,880 –> 00:15:14,600
minutes, and it will cost you virtually nothing. And of course, it’s referring to the

241
00:15:14,600 –> 00:15:18,400
recent engagement in Iran. But anyway, I digress. I

242
00:15:18,400 –> 00:15:22,050
think you see a much broader

243
00:15:22,130 –> 00:15:25,850
scale, certainly longer scale in terms of time, broader in terms of

244
00:15:25,850 –> 00:15:29,250
scope, in terms of use of US Military forces all over the place. Right.

245
00:15:30,610 –> 00:15:34,290
And Congress not seeming. Not seemingly doing

246
00:15:34,290 –> 00:15:37,850
nothing or, you know, some post hoc approval or

247
00:15:37,850 –> 00:15:41,610
whatever, but basically the way it appears is that Congress is

248
00:15:41,610 –> 00:15:45,210
effectively a non entity, and

249
00:15:45,210 –> 00:15:48,170
so almost akin to

250
00:15:48,570 –> 00:15:52,290
Congress’s response to tariff changes, which of

251
00:15:52,290 –> 00:15:56,050
course is absolutely nothing. So there you go. Now, here’s the

252
00:15:56,050 –> 00:15:57,850
irony for me, and this is the second point.

253
00:15:59,610 –> 00:16:03,410
Given the nature of how the 21st century seems to be

254
00:16:03,410 –> 00:16:07,050
structured, it’s a digital century. Forget about AI. We’re not even there yet.

255
00:16:07,050 –> 00:16:10,850
It’s a digital century. It’s the century of now. It’s the century where you can

256
00:16:10,850 –> 00:16:14,650
be around the world in half a day with air travel that is

257
00:16:14,650 –> 00:16:18,210
relatively affordable. Okay. And so halfway around the world.

258
00:16:18,210 –> 00:16:21,730
Excuse me, and half a day with airfare that is

259
00:16:21,730 –> 00:16:25,210
relatively affordable. Great. The ability to

260
00:16:25,210 –> 00:16:28,610
respond quickly to threats, therefore, I think

261
00:16:28,850 –> 00:16:32,450
is greater. The ability to be able to foresee

262
00:16:32,450 –> 00:16:36,130
and prepare over a timescale has basically been obliterated

263
00:16:36,130 –> 00:16:39,570
by technology. We need a fast

264
00:16:39,570 –> 00:16:42,780
response, whether it’s preemptive or whether it’s defensive.

265
00:16:43,500 –> 00:16:47,220
And it’s almost like in the

266
00:16:47,220 –> 00:16:50,700
Fourth Amendment context, do I have time to run and get a

267
00:16:50,700 –> 00:16:54,420
warrant? This guy’s running from me and he’s pulling

268
00:16:54,420 –> 00:16:57,220
out a gun and he ran into a building. Do I have time to go

269
00:16:57,220 –> 00:16:59,900
get a warrant? Or am I just gonna kick in the door and do what

270
00:16:59,900 –> 00:17:02,700
I need to? So he doesn’t kill innocent people. Right.

271
00:17:03,660 –> 00:17:07,220
Right. Now, I’m actually against that in the Fourth Amendment

272
00:17:07,220 –> 00:17:11,010
context. Right? Yeah, yeah, absolutely. Yes.

273
00:17:11,330 –> 00:17:14,930
But that’s, you know, in general, how I see the lay of the

274
00:17:14,930 –> 00:17:18,770
land playing out in the 21st century. That’s how

275
00:17:18,770 –> 00:17:21,090
I see the lay of the land in the 21st century. It’s how I see

276
00:17:21,330 –> 00:17:25,010
these issues playing out. Do I think that Congress could

277
00:17:25,010 –> 00:17:28,730
reassert itself? Sure. It’s going to be really difficult to do against

278
00:17:28,730 –> 00:17:32,450
this president because of his, you know, great popularity and also

279
00:17:32,450 –> 00:17:35,970
his acerbic personality where he’s just going to shoot it down. No pun

280
00:17:35,970 –> 00:17:39,080
intended. But, you know,

281
00:17:40,680 –> 00:17:44,360
on some level. Audit to be done? I would say yes. And

282
00:17:44,360 –> 00:17:48,000
maybe it’s just, you know. And how do you gauge which level of

283
00:17:48,000 –> 00:17:51,280
engagement? Let’s say it’s going to be sub nuclear. And I don’t know how you

284
00:17:51,280 –> 00:17:54,760
would guarantee that, but let’s just say it’s going to be that way. Well,

285
00:17:55,160 –> 00:17:58,280
how much say so do we want beforehand?

286
00:17:59,240 –> 00:18:02,840
How much actually works with our national security given the nature of the threat? I

287
00:18:02,840 –> 00:18:06,500
have no idea. And so it’s

288
00:18:06,500 –> 00:18:10,300
tough. But in this digital century, I can’t expect

289
00:18:10,460 –> 00:18:12,940
things to reverse course really easily.

290
00:18:14,220 –> 00:18:16,300
Now you said a couple of things there that

291
00:18:18,540 –> 00:18:22,380
I would pull out from there. First off, every single time

292
00:18:22,540 –> 00:18:25,260
the opposing party in the United States

293
00:18:25,900 –> 00:18:27,820
Congress or in the media

294
00:18:29,980 –> 00:18:33,580
has caterwauled in the last, I would say 20

295
00:18:33,580 –> 00:18:37,240
years about whatever the party in the

296
00:18:37,240 –> 00:18:40,640
White House, the executive in the White House that represents that party is doing every

297
00:18:40,640 –> 00:18:44,440
single time. The executive in the White House has expanded the executive

298
00:18:44,520 –> 00:18:47,400
power, not contracted it every single time.

299
00:18:48,040 –> 00:18:51,560
So if Donald Trump’s hand picked

300
00:18:51,560 –> 00:18:54,480
successor, whoever that may be, J.D. vance, whoever it is that comes out of the

301
00:18:54,480 –> 00:18:57,280
Republican primary, if that person loses in

302
00:18:57,280 –> 00:19:01,080
2028 to someone from

303
00:19:02,430 –> 00:19:04,830
the rabble that is the Democratic Party currently,

304
00:19:06,350 –> 00:19:10,190
look at you guys. If someone emerges from that chaos to actually

305
00:19:10,270 –> 00:19:13,790
run coherently and rationally and

306
00:19:14,030 –> 00:19:17,630
manages to beat whoever Donald Trump’s hand picked successor is,

307
00:19:18,190 –> 00:19:21,990
that person will not reduce executive power. They will

308
00:19:21,990 –> 00:19:25,630
merely take the things that Trump is doing right now and put it more

309
00:19:25,630 –> 00:19:29,350
on steroids. And every single. And the

310
00:19:29,350 –> 00:19:33,110
opposing parties seem to fail to understand this. This

311
00:19:33,110 –> 00:19:36,850
is the first point that I would and, and I

312
00:19:36,850 –> 00:19:40,570
think they fail to understand it for self serving and venal reasons. You know,

313
00:19:40,570 –> 00:19:44,130
being a person who’s looking at this from the outside. But I also

314
00:19:44,130 –> 00:19:47,930
think they fail to appreciate or fail to have curiosity

315
00:19:47,930 –> 00:19:51,690
or even a theory of mind about how the opposing party might use

316
00:19:52,330 –> 00:19:55,530
these expanded or these expansions

317
00:19:55,930 –> 00:19:59,210
in executive power in, in a future

318
00:19:59,530 –> 00:20:03,330
administration. That’s point number one. Point number

319
00:20:03,330 –> 00:20:06,450
two is this. I agree with you. It is a digital

320
00:20:07,410 –> 00:20:10,930
century and digital includes everything from

321
00:20:11,890 –> 00:20:15,410
Netflix all the way to AI,

322
00:20:15,570 –> 00:20:19,250
Right? And we are going to have more and

323
00:20:19,250 –> 00:20:21,170
more of these types of digital

324
00:20:22,690 –> 00:20:26,500
communication tools be thrust upon us and

325
00:20:26,500 –> 00:20:30,140
maybe even into the physical world in the form of robotics and autonomous vehicles

326
00:20:30,380 –> 00:20:34,100
over the next 80 years of this century. It’s, it’s going to be

327
00:20:34,100 –> 00:20:37,580
amazing. And I wonder

328
00:20:37,900 –> 00:20:41,540
if the Constitution and the constitutional

329
00:20:41,540 –> 00:20:45,260
understanding of executive power can survive such a

330
00:20:45,340 –> 00:20:48,940
expansion or, or if the nature

331
00:20:49,100 –> 00:20:52,700
of a document that was written in the 18th century

332
00:20:53,380 –> 00:20:57,100
for a slower, agrarian, more thoughtful and more

333
00:20:57,100 –> 00:20:58,900
critical, more critical culture

334
00:21:00,820 –> 00:21:04,020
is exactly what we need. I wonder if that’s exactly what we need

335
00:21:06,660 –> 00:21:09,220
in our digital age. Right, right

336
00:21:10,180 –> 00:21:13,100
now, the follow up point to there. And I want to ask you a follow

337
00:21:13,100 –> 00:21:16,820
up question to this. What is Congress’s role in checking the executive?

338
00:21:17,140 –> 00:21:20,850
What do you think Congress’s role is here in, in this digital

339
00:21:20,930 –> 00:21:24,130
era? The, the 400 and whatever it is, 450 people,

340
00:21:24,290 –> 00:21:28,130
490 people that are between the House and the Senate. And I’m not talking

341
00:21:28,130 –> 00:21:31,570
about the fourth branch of government. Leave those monkeys uncles over there for just a

342
00:21:31,570 –> 00:21:35,250
minute. Just the Congress. What should Congress

343
00:21:35,250 –> 00:21:38,210
be doing? If you had a, not a magic wand, but if you had the

344
00:21:38,210 –> 00:21:41,730
ability to consult with both the Democratic and Republican parties,

345
00:21:42,130 –> 00:21:45,610
not the President, not the head, not the people running the

346
00:21:45,610 –> 00:21:49,250
DNC or the rnc, the, forget those people as well, the

347
00:21:49,250 –> 00:21:52,730
actual people sitting in the seats

348
00:21:52,810 –> 00:21:56,330
from the districts. What’s their role in checking executive power?

349
00:21:58,650 –> 00:22:02,370
So, you know, the irony is that they actually have

350
00:22:02,370 –> 00:22:05,970
the central role in the process. Okay? They make the

351
00:22:05,970 –> 00:22:09,650
laws. That’s why they’re there constitutionally. And of course

352
00:22:09,650 –> 00:22:12,410
the Constitution preceded the current

353
00:22:13,210 –> 00:22:16,490
bureaucratic, administrative, deep state that we deal with. Right.

354
00:22:18,040 –> 00:22:21,840
And so they have, pun intended, the trump

355
00:22:21,840 –> 00:22:25,640
card. If they don’t like it, change the law and then

356
00:22:25,640 –> 00:22:26,920
he can’t do it, period.

357
00:22:29,400 –> 00:22:33,200
And of course they won’t for several reasons. Right, right. There are

358
00:22:33,200 –> 00:22:36,880
political reasons, like fallout from constituents who actually

359
00:22:36,880 –> 00:22:40,520
support what he’s doing. Okay? The ability

360
00:22:40,520 –> 00:22:44,290
to actually get elected again. So there’s political, there are political

361
00:22:44,370 –> 00:22:47,970
reasons, okay, There may be other reasons, you

362
00:22:47,970 –> 00:22:51,170
know, where they object to something

363
00:22:51,250 –> 00:22:55,010
informed, but in substance they actually agree with what the President is

364
00:22:55,010 –> 00:22:57,890
doing or to put a slight nuance on it,

365
00:22:58,610 –> 00:23:02,170
they were against it until they saw that it

366
00:23:02,170 –> 00:23:05,090
worked and that everybody was happy. And then all of a sudden they were for

367
00:23:05,090 –> 00:23:08,810
it. Right, Right. The onus is on Congress

368
00:23:08,810 –> 00:23:12,390
to act. And they don’t. They don’t, they, they, they

369
00:23:12,390 –> 00:23:16,230
gripe, they complain, but all they have to do is change the law. All they

370
00:23:16,230 –> 00:23:18,670
have to do is change the law. And if they won’t change the law, they

371
00:23:18,670 –> 00:23:22,390
shouldn’t complain about it. Literally. Don’t complain about

372
00:23:22,390 –> 00:23:26,230
it or try suing over it. Fine,

373
00:23:26,230 –> 00:23:30,030
but don’t complain about it. That’s how I look at it. They, they,

374
00:23:30,030 –> 00:23:33,870
they’re the ones in, they’re the ones in the driver’s seat. And there

375
00:23:33,870 –> 00:23:37,650
have been periods in our recent enough history, last hundred

376
00:23:37,650 –> 00:23:41,410
years when the leaders of Congress understood that they

377
00:23:41,410 –> 00:23:45,250
were in the driver’s seat and they acted like it. When the real king

378
00:23:45,250 –> 00:23:48,570
in D.C. didn’t sit at 1600 Pennsylvania Avenue

379
00:23:48,810 –> 00:23:52,650
but for, you know, was in the speaker

380
00:23:52,650 –> 00:23:56,370
of The House’s chair. Right. Understanding every single

381
00:23:56,370 –> 00:23:59,530
fiscal bill comes from me. Every budget has to start here, period.

382
00:24:00,170 –> 00:24:03,780
Okay. I don’t know why I read it to you. Headlines talking about, oh,

383
00:24:03,860 –> 00:24:07,380
the Senate passed the budget bill and then the House’s version has to come out.

384
00:24:07,380 –> 00:24:11,220
No, no, no, no. That’s not what the Constitution says. They have to

385
00:24:11,220 –> 00:24:14,980
originate in the House. Great. That’s the guy in the driver’s seat here, Speaker

386
00:24:14,980 –> 00:24:18,740
Johnson. Right. So if Speaker Johnson really doesn’t want some of this stuff to

387
00:24:18,740 –> 00:24:22,180
happen, there are things he can do.

388
00:24:22,660 –> 00:24:26,500
Right. And so if they don’t do anything,

389
00:24:26,980 –> 00:24:30,490
don’t complain about it. They have a

390
00:24:30,490 –> 00:24:33,210
necessary role in checking executive

391
00:24:34,810 –> 00:24:38,250
and checking the use of executive power. Right.

392
00:24:39,530 –> 00:24:43,210
And what it is, is they’re the ones who get to determine the channels

393
00:24:43,210 –> 00:24:46,810
through which it flows, certainly domestically. Right.

394
00:24:47,210 –> 00:24:50,730
They determine the channels through which it flows. They determine

395
00:24:50,890 –> 00:24:54,650
which acts allow the president and other bits of the executive branch

396
00:24:54,650 –> 00:24:58,200
to do things. They also fund or don’t

397
00:24:58,200 –> 00:24:59,640
fund certain programs.

398
00:25:01,720 –> 00:25:05,560
And so where they’re really losing, Haysan,

399
00:25:06,120 –> 00:25:09,960
is that in this

400
00:25:09,960 –> 00:25:11,960
digital age, there’s been

401
00:25:14,280 –> 00:25:16,760
effectively a collapse of

402
00:25:19,720 –> 00:25:22,600
the polls of political power

403
00:25:23,420 –> 00:25:26,620
in a way that it’s. Everyone is now in one

404
00:25:26,620 –> 00:25:30,180
arena, and whoever has the loudest voice, the biggest

405
00:25:30,180 –> 00:25:32,860
personality, gets to determine everything.

406
00:25:34,380 –> 00:25:38,180
Right. So the ability of a Speaker of the

407
00:25:38,180 –> 00:25:41,980
House to say, no, no, no, no, here’s the power we wield and we’re going

408
00:25:41,980 –> 00:25:45,820
to start wielding it, and we don’t care what you say. That’s really difficult to

409
00:25:45,820 –> 00:25:49,500
do. When everything is all in one pot,

410
00:25:49,500 –> 00:25:52,980
It’s a massive stew. Right. Or it’s a

411
00:25:52,980 –> 00:25:56,260
massive swamp. Okay. Rather than a

412
00:25:56,260 –> 00:25:57,940
buffet or some other.

413
00:26:00,100 –> 00:26:03,300
Some other type of situation where

414
00:26:05,300 –> 00:26:08,940
there’s independence between the branches, to put it slightly

415
00:26:08,940 –> 00:26:11,220
differently, because it’s getting unwieldy,

416
00:26:12,740 –> 00:26:16,180
though nominally and legally, there is

417
00:26:16,180 –> 00:26:19,120
separation of powers. If all of the politics

418
00:26:20,000 –> 00:26:23,560
upon which that is built is all in one common pot, then there’s no real

419
00:26:23,560 –> 00:26:27,400
separation of powers. You follow me? Yes, yes. And I

420
00:26:27,400 –> 00:26:31,120
would. I would assert that. I would assert two things. One that gives

421
00:26:31,120 –> 00:26:33,120
different definition to drain the swamp

422
00:26:37,440 –> 00:26:41,200
or. Or defines frames in a different kind of way. But I would also assert

423
00:26:41,200 –> 00:26:44,400
that this is what our relatively

424
00:26:44,400 –> 00:26:47,720
conservative, currently relatively conservative

425
00:26:47,720 –> 00:26:50,860
judiciary, least at the Supreme Court level,

426
00:26:51,980 –> 00:26:55,460
is actively seeking to do. I think they are

427
00:26:55,460 –> 00:26:58,300
actively seeking, at least I’m seeing this over the last,

428
00:26:59,260 –> 00:27:03,100
I would say five years of. Of decisions, fairly significant

429
00:27:03,260 –> 00:27:06,780
ones, particularly around the Chevron doctrine,

430
00:27:07,180 –> 00:27:10,460
West Virginia versus epa, which was about the fourth branch of government,

431
00:27:10,860 –> 00:27:13,660
and in this, oh, the abortion decision.

432
00:27:15,020 –> 00:27:18,860
And of course, President of the United

433
00:27:18,860 –> 00:27:22,260
States at all, Recasa Inc. Which we’re about to read from.

434
00:27:22,500 –> 00:27:25,860
I’m looking at these as the judiciary, particularly if you look at the

435
00:27:25,860 –> 00:27:29,500
language of the majority opinion. The judiciary is

436
00:27:29,500 –> 00:27:31,860
literally yelling at Congress to do their job,

437
00:27:33,380 –> 00:27:37,020
and Congress is failing. That’s why I opened up with that when we

438
00:27:37,020 –> 00:27:40,100
started this, this episode today. Congress is failing

439
00:27:40,500 –> 00:27:43,060
to listen. And I don’t know

440
00:27:44,570 –> 00:27:47,930
when they’re going to start. Like in your opinion, and

441
00:27:48,170 –> 00:27:51,890
we’ll go into Trump because here, I’ll start reading from, from the majority opinion here

442
00:27:51,890 –> 00:27:55,050
in just a moment. In your opinion, what will it take for Congress

443
00:27:55,610 –> 00:27:59,410
to actually start to drain that swamp or,

444
00:27:59,410 –> 00:28:01,290
or separate out that stew?

445
00:28:03,530 –> 00:28:07,290
So the driver is always political. So right now,

446
00:28:07,530 –> 00:28:11,250
the issue, the way I see it, to the extent that it’s actually a problem,

447
00:28:11,730 –> 00:28:15,490
because I’m not necessarily in agreement that is a problem right now,

448
00:28:15,970 –> 00:28:19,650
meaning with the way things are going

449
00:28:19,650 –> 00:28:23,170
with this administration, with very few

450
00:28:23,170 –> 00:28:26,450
exceptions, that the judiciary seems capable of handling quite well.

451
00:28:27,570 –> 00:28:31,290
There’s no real issue, but that’s because I share

452
00:28:31,290 –> 00:28:35,130
their politics politically for the other side. There’s an issue, but

453
00:28:35,130 –> 00:28:38,970
it’s a political issue. So I don’t see any change happening until

454
00:28:38,970 –> 00:28:42,730
the politics work out such that the party that runs Congress and

455
00:28:42,730 –> 00:28:46,170
the party that placed the president and the White House are different parties.

456
00:28:47,850 –> 00:28:51,290
Then all of a sudden, there’s an impetus, a political

457
00:28:51,370 –> 00:28:53,770
impetus to do something different legally

458
00:28:56,170 –> 00:28:59,610
in Congress. And so until that happens, we’re in a

459
00:28:59,610 –> 00:29:03,450
situation where, again, we’re all, everything is in one pot. It’s one big

460
00:29:03,450 –> 00:29:07,080
massive political stew than one party has. And so that’s how it is

461
00:29:07,080 –> 00:29:10,160
now because one party, the Republican Party, controls all.

462
00:29:11,120 –> 00:29:14,760
Literally. The two political branches are under the

463
00:29:14,760 –> 00:29:18,080
control of effectively one party that is under the control

464
00:29:18,080 –> 00:29:21,880
effectively of one man. Right, right, right, right,

465
00:29:21,880 –> 00:29:25,600
right, right. I don’t think that that is a constitutional crisis,

466
00:29:25,600 –> 00:29:29,360
though. Not that you’ve asked. I’ll try to keep this point narrow and short.

467
00:29:29,840 –> 00:29:33,610
But I don’t believe that’s a constitutional crisis because at any

468
00:29:33,610 –> 00:29:37,450
moment, any one of those congressmen can say, one, I disagree.

469
00:29:37,450 –> 00:29:41,170
Two, here’s what I’m going to do. Three, here are my principles. Four, I’m going

470
00:29:41,170 –> 00:29:44,570
to stay here, meaning I will run for reelection. I’m not going to quit.

471
00:29:45,850 –> 00:29:49,370
I don’t have to deal with what happened. Say what you want about Liz

472
00:29:49,370 –> 00:29:53,210
Cheney. Okay. The late. Not late, sorry, my bad. Still,

473
00:29:53,290 –> 00:29:56,530
thankfully, former. That’s the word I was after. Former

474
00:29:56,530 –> 00:30:00,070
Representative Elizabeth Cheney from Wyoming.

475
00:30:00,150 –> 00:30:03,910
Right. She still stood for reelection she may have gotten hoed, but she

476
00:30:03,910 –> 00:30:07,630
stood for reelection. She didn’t say, oh, I’m retiring. Here’s everything I think is

477
00:30:07,630 –> 00:30:10,390
horrible, and I’m out. Leave me alone by him. No,

478
00:30:11,510 –> 00:30:14,950
here’s what I think. Here’s what should be done. Here’s what I’m doing. And the

479
00:30:14,950 –> 00:30:18,230
voters did what the voters are entitled to do. No thanks. You’re out of here.

480
00:30:18,230 –> 00:30:21,590
Great. But each part in that

481
00:30:21,590 –> 00:30:25,110
scenario, each party played the part it’s supposed to.

482
00:30:25,190 –> 00:30:29,000
The representative was representative and just representative of

483
00:30:29,000 –> 00:30:32,680
politics that a majority of the voters in her district, okay, we’re

484
00:30:32,680 –> 00:30:36,080
in violent disagreement with. So,

485
00:30:36,560 –> 00:30:40,160
but each party, each, in that circumstance, each, each

486
00:30:40,880 –> 00:30:44,600
factor involved did his or her part. And so that

487
00:30:44,600 –> 00:30:48,120
to me is unusual. What’s usual is, oh, I’m not running for

488
00:30:48,120 –> 00:30:51,840
reelection, then here comes a book about something or whatever. You know what I

489
00:30:51,840 –> 00:30:55,640
mean? Right, right, right, right. The tell all hagiography that

490
00:30:55,640 –> 00:30:58,730
you should have where you should have. You should have released like 10,000 years. Yeah,

491
00:30:58,730 –> 00:31:02,410
yeah, yeah. The nonsense. Yeah, right. Or it’s Jacques

492
00:31:02,490 –> 00:31:06,090
here. Here are all my denunciations and who. Everybody did

493
00:31:06,090 –> 00:31:09,290
what. But you’re leaving. Okay, right.

494
00:31:10,330 –> 00:31:14,170
And so it’s like that actually doesn’t serve

495
00:31:14,250 –> 00:31:18,090
us. It doesn’t serve we, the people of the United States.

496
00:31:18,330 –> 00:31:21,530
The representatives will only take a principal stand on the way out.

497
00:31:21,930 –> 00:31:25,660
Take the stand while you’re in and try to stay in. And

498
00:31:25,660 –> 00:31:29,340
maybe you’ll get support. Maybe you will help that stew

499
00:31:29,420 –> 00:31:32,940
congeal into recognizably separate parts

500
00:31:33,020 –> 00:31:36,540
so that they can be then be separated again into different pots,

501
00:31:36,940 –> 00:31:40,220
which is the only way, in my opinion, you effectively get

502
00:31:40,780 –> 00:31:44,460
strong, robust politics. Okay. Everything in one pot, one

503
00:31:44,460 –> 00:31:47,740
big stew. One big beautiful stew. Okay.

504
00:31:48,380 –> 00:31:52,160
Is a bad recipe. Is a bad recipe. It’s an even worse

505
00:31:52,160 –> 00:31:55,920
pun, but it’s a bad recipe. Okay, well, well,

506
00:31:55,920 –> 00:31:59,560
I’m sure, I’m sure Tom Tillis on his way out the

507
00:31:59,560 –> 00:32:03,280
door. Actually, probably not on his way out the door. I’m sure Thom Tillis,

508
00:32:03,920 –> 00:32:07,680
two to three years from now after the Congress

509
00:32:07,680 –> 00:32:11,440
has switched parties and they are breathlessly trying to impeach Donald Trump,

510
00:32:13,040 –> 00:32:16,410
I’m sure he will release his. To your point, Jacques,

511
00:32:17,450 –> 00:32:21,130
and he will. He will do the podcast and

512
00:32:22,010 –> 00:32:25,530
right wing media complex tour

513
00:32:26,250 –> 00:32:29,770
talking about how he knew it was a bad deal all along.

514
00:32:31,370 –> 00:32:34,650
I agree with that part. Anyway, I’ve had about enough of that.

515
00:32:34,730 –> 00:32:38,530
Okay, let’s, let’s pick up a little bit. Let’s read.

516
00:32:38,530 –> 00:32:41,890
I’m going to read a long piece here speaking of the

517
00:32:41,890 –> 00:32:45,010
judiciary, because I do think that this is, this is the core, and I want

518
00:32:45,010 –> 00:32:47,990
to stay focused on this today. I do think this is the core of, of

519
00:32:48,230 –> 00:32:51,470
where our challenge is. I think the judiciary is

520
00:32:51,470 –> 00:32:55,270
attempting and even weirdly enough at the district court and

521
00:32:55,270 –> 00:32:58,630
at the federal court level, I think the courts are

522
00:32:58,630 –> 00:33:02,230
attempting to separate out this stew. But because of the nature

523
00:33:02,310 –> 00:33:05,830
of how the judiciary was originally

524
00:33:06,870 –> 00:33:10,150
conceptualized and has, through

525
00:33:10,870 –> 00:33:14,230
the exegesis of the last 250 years,

526
00:33:16,950 –> 00:33:19,110
moved and grown and evolved with the country,

527
00:33:20,870 –> 00:33:23,830
the judiciary is to a certain degree

528
00:33:24,870 –> 00:33:28,630
powerless to do

529
00:33:28,630 –> 00:33:32,310
more than to demand that the Congress take

530
00:33:32,310 –> 00:33:36,030
a particularly larger role, particularly in this conversation that we’re having now with the

531
00:33:36,030 –> 00:33:39,590
Rolo, or that the executive put down some of their power

532
00:33:39,910 –> 00:33:43,680
and, and pull out, pull something out of the mix. And you

533
00:33:43,680 –> 00:33:47,080
can see some of this I think you can see some of this in

534
00:33:47,160 –> 00:33:49,720
the, in the majority opinion

535
00:33:51,080 –> 00:33:54,880
from from that was released from the Supreme Court

536
00:33:54,880 –> 00:33:58,520
this June. You can go online and check this out. The case

537
00:33:58,520 –> 00:34:02,080
is Trump, President of the United States et al. V.

538
00:34:02,080 –> 00:34:04,600
CASA Incorporated et al.

539
00:34:06,040 –> 00:34:09,640
The issue before the court was whether or not a district court,

540
00:34:10,480 –> 00:34:14,240
any district court in the United States, but specifically, I believe

541
00:34:14,800 –> 00:34:18,280
district courts in the any of the district

542
00:34:18,280 –> 00:34:21,960
courts in the various districts of the United States, whether or

543
00:34:21,960 –> 00:34:25,360
not judges in those courts can in essence

544
00:34:26,560 –> 00:34:30,240
be compelled or be asked actually not compelled be asked

545
00:34:30,320 –> 00:34:34,160
by plaintiffs against the government, no matter which party the government

546
00:34:34,160 –> 00:34:37,630
currently represents, whether those courts, those

547
00:34:37,630 –> 00:34:41,470
judges can can issue injunctions to stay

548
00:34:41,790 –> 00:34:45,590
executive orders. Now, in particular, this is focused

549
00:34:45,590 –> 00:34:49,150
around the issue currently in front of us that we’re a national royal

550
00:34:49,150 –> 00:34:52,870
around immigration, deportation, ICE

551
00:34:52,870 –> 00:34:56,110
raids, all of those kinds of things. And

552
00:34:56,430 –> 00:35:00,190
the question before the court was, or at least the way the

553
00:35:00,190 –> 00:35:03,840
court framed the question before it was not can

554
00:35:03,840 –> 00:35:06,720
the president exactly can the executive

555
00:35:08,160 –> 00:35:11,800
in the United States exercise the ability to boot people

556
00:35:11,800 –> 00:35:15,440
out of the country? Instead, the question before the court

557
00:35:16,080 –> 00:35:19,520
and the majority opinion actually ruled on this 6, 3 in

558
00:35:19,520 –> 00:35:22,160
favor of the particular direction that I’m going in.

559
00:35:23,280 –> 00:35:27,040
The issue before the court was can a district judge

560
00:35:27,040 –> 00:35:30,350
or can a federal court judge stay executive

561
00:35:30,590 –> 00:35:34,430
power? Do they have the power to do that? And so

562
00:35:34,510 –> 00:35:37,950
I’m going to read just a few things here. And again, I would encourage you

563
00:35:37,950 –> 00:35:40,350
to read the entire the entire

564
00:35:42,350 –> 00:35:45,950
case there, the entire decision. And you can go get that on

565
00:35:45,950 –> 00:35:48,990
supreme court.gov I believe is where you can find that.

566
00:35:49,710 –> 00:35:52,990
But I want to read from the majority opinion and it was read, by the

567
00:35:52,990 –> 00:35:56,070
way, from the bench, which is kind of unusual in a case like this by

568
00:35:56,070 –> 00:35:59,680
Justice Amy Comey Barrett Yes. A Trump

569
00:35:59,680 –> 00:36:03,440
appointee. Yes. A very Catholic woman. And yes, I

570
00:36:03,440 –> 00:36:07,240
believe she has something like 14 kids. And

571
00:36:07,240 –> 00:36:10,760
that’s neither here nor there. She’s just seven. Seven. Something like that.

572
00:36:10,760 –> 00:36:14,280
Okay, seven children. Seven children.

573
00:36:14,280 –> 00:36:17,960
Okay. All right. God bless her and all the ships at

574
00:36:17,960 –> 00:36:21,200
sea. So let me read from the majority opinion here and a quote.

575
00:36:22,000 –> 00:36:25,680
Respondents, meaning those folks who brought the case to the court,

576
00:36:25,920 –> 00:36:29,620
raised several counter arguments which the principal dissen echoes.

577
00:36:29,620 –> 00:36:33,420
First, they insist that the universal injunction has a sufficient

578
00:36:33,420 –> 00:36:36,940
historical analog, a decree resulting from a bill of peace.

579
00:36:37,580 –> 00:36:40,980
Second, they maintain that universal injunctions are consistent with the

580
00:36:40,980 –> 00:36:44,540
principle that a court of equity may fashion complete relief for the parties.

581
00:36:45,020 –> 00:36:48,300
Third, they argue that universal injunctions serve important policy

582
00:36:48,380 –> 00:36:52,060
objectives. The principal dissent focuses on conventional

583
00:36:52,060 –> 00:36:55,800
legal terrain, like the Judiciary act of 1789 and our cases on

584
00:36:55,800 –> 00:36:59,440
equity. Justice Jackson, however, chooses a

585
00:36:59,440 –> 00:37:03,280
startling line of attack that is tethered neither to these sources nor, frankly, to

586
00:37:03,280 –> 00:37:06,960
any doctrine whatsoever. Waving away attention to the

587
00:37:06,960 –> 00:37:10,680
limits on judicial power as a, quote, mind numbingly technical

588
00:37:10,680 –> 00:37:14,520
query, unquote, she offers a vision of the judicial

589
00:37:14,520 –> 00:37:18,000
role that would make even the most ardent defender of judicial supremacy

590
00:37:18,560 –> 00:37:22,360
blush. In her telling, the fundamental role of courts is

591
00:37:22,360 –> 00:37:26,000
to, quote, order everyone, including the executive, to follow the law full stop.

592
00:37:27,550 –> 00:37:31,350
Quote, the function of the courts, both in theory and practice, necessarily includes announcing

593
00:37:31,350 –> 00:37:35,110
what the law requires in suits for the benefit of all who are protected by

594
00:37:35,110 –> 00:37:38,430
the Constitution, not merely doling out relief to injured private

595
00:37:38,510 –> 00:37:42,310
parties. Close, quote. And she warns, if courts lack

596
00:37:42,310 –> 00:37:45,950
the power, quote, to require the executive to adhere to law universally,

597
00:37:46,270 –> 00:37:49,870
courts will leave a gash in the basic tenets of our founding Charter

598
00:37:49,870 –> 00:37:52,030
that could turn out to be a mortal wound.

599
00:37:53,480 –> 00:37:57,200
Rhetoric aside, Justice Jackson’s position is difficult to pin down. She might be

600
00:37:57,200 –> 00:38:00,840
arguing that universal injunctions are appropriate, even required, whenever the

601
00:38:00,840 –> 00:38:04,560
defendant is part of the executive branch. If so, her position goes far

602
00:38:04,560 –> 00:38:08,319
beyond the mainstream defense of universal injunctions. We will not

603
00:38:08,319 –> 00:38:12,160
dwell on Justice Jackson’s argument, which is at odds with more than two centuries

604
00:38:12,160 –> 00:38:15,320
worth of precedent, not to mention the Constitution itself.

605
00:38:15,960 –> 00:38:19,750
We observe only this. Justice Jackson decries an

606
00:38:19,750 –> 00:38:23,510
imperial executive while embracing an imperial judiciary. Justice

607
00:38:23,510 –> 00:38:27,310
Jackson skips over that part because analyzing the governing statute involves

608
00:38:27,310 –> 00:38:30,990
boring, quote, unquote, legalese. She seeks to answer a far

609
00:38:30,990 –> 00:38:34,790
more basic question of enormous practical significance. May a federal court in the United States

610
00:38:34,790 –> 00:38:36,830
of America order the executive to follow the law?

611
00:38:38,510 –> 00:38:42,350
In other words, it is unnecessary to consider whether Congress has constrained the judiciary.

612
00:38:42,750 –> 00:38:46,430
What matters is how the judiciary may constrain the executive. Justice

613
00:38:46,430 –> 00:38:50,150
Jackson would do well to heed her own admonition. Everyone from the

614
00:38:50,150 –> 00:38:53,950
President on down is bound by law. That goes for judges

615
00:38:54,110 –> 00:38:57,870
too. The principal dissent disagrees, insisting

616
00:38:57,870 –> 00:39:01,670
that, quote, it strains credulity to treat the executive branches irreparably harmed

617
00:39:01,670 –> 00:39:04,350
by these injunctions, even if they are overly broad.

618
00:39:07,550 –> 00:39:11,390
That is so the principal dissent argues, because the Executive

619
00:39:11,550 –> 00:39:15,190
order is unconstitutional. Thus the

620
00:39:15,190 –> 00:39:18,950
Executive branch has no right to enforce it against anyone. Close quote.

621
00:39:19,350 –> 00:39:22,550
The principal dissents analysis of the Executive order is premature

622
00:39:23,270 –> 00:39:26,630
because the birthright citizenship order or

623
00:39:26,630 –> 00:39:29,830
citizenship issue, I apologize, is not before

624
00:39:30,550 –> 00:39:34,110
us. The majority

625
00:39:34,110 –> 00:39:37,790
decided that the judiciary does not have the power, that

626
00:39:37,790 –> 00:39:40,550
a universal injunction does not have the power to stay

627
00:39:42,020 –> 00:39:45,780
the President’s or the Executive’s hand, and that

628
00:39:45,780 –> 00:39:49,180
to ask it to do such a thing is beyond the pale of the

629
00:39:49,180 –> 00:39:53,020
judiciary. And the majority opinion, if you

630
00:39:53,020 –> 00:39:56,180
read further, also indicated

631
00:39:56,740 –> 00:40:00,180
that the court

632
00:40:00,260 –> 00:40:03,940
itself can only compel Congress to stay

633
00:40:03,940 –> 00:40:05,940
the hand of the Executive.

634
00:40:07,950 –> 00:40:11,070
The Supreme Court holds that lower courts do not have the ability to place injunctions

635
00:40:11,070 –> 00:40:14,750
on executive orders. Now this is all focused around the idea that the

636
00:40:14,750 –> 00:40:18,230
President has authority to police the borders and to enforce immigration law. By the way,

637
00:40:18,230 –> 00:40:22,030
this is what the dissent is in a panic about. From Justice Jackson,

638
00:40:22,270 –> 00:40:24,750
Sotomayor and Elena Kagan.

639
00:40:26,030 –> 00:40:29,510
And I would quote to Ms. Kagan, Ms. Sotomayor and Ms.

640
00:40:29,510 –> 00:40:33,340
Kataji Brown Jackson, the following from Federalist

641
00:40:33,340 –> 00:40:37,060
Number 70. There is an idea which is not without its

642
00:40:37,060 –> 00:40:40,820
advocates, that a vigorous executive is inconsistent with the genius of republican

643
00:40:40,820 –> 00:40:44,660
government. The enlightened well wishers who the species of government must at least hope

644
00:40:44,660 –> 00:40:48,379
the supposition is destitute of foundation, since they can never

645
00:40:48,379 –> 00:40:52,220
admit its truth without at the same time admitting the condemnation of their own principles.

646
00:40:52,380 –> 00:40:56,220
Energy in the Executive is a leading character in the definition of good government. It

647
00:40:56,220 –> 00:40:59,830
is essential to the protection of the community against foreign attacks is not less

648
00:40:59,830 –> 00:41:03,430
essential to the steady administration of the laws, to the protection of property against those

649
00:41:03,430 –> 00:41:07,110
irregular and high handed combinations will sometimes interrupt the ordinary course of justice

650
00:41:07,670 –> 00:41:11,230
to the security of liberty against the enterprises and assaults of ambition, of

651
00:41:11,230 –> 00:41:15,030
faction and of anarchy. Every man, the least conversant in the

652
00:41:15,030 –> 00:41:18,590
Roman story knows how often that Republic was obliged to take

653
00:41:18,590 –> 00:41:22,350
refuge in the absolute power of a single man under the

654
00:41:22,350 –> 00:41:25,870
formidable title of dictator, as well as against the intrigues of ambitious

655
00:41:25,870 –> 00:41:29,590
individuals who who aspire to the tyranny and the seditions of whole

656
00:41:29,590 –> 00:41:32,830
classes of the community whose conduct threatened the existence of all government

657
00:41:33,630 –> 00:41:37,470
as against the invasions of external enemies who menaced the

658
00:41:37,470 –> 00:41:41,270
conquest and destruction of Rome. There could be no

659
00:41:41,270 –> 00:41:45,070
need, however, to multiply arguments or examples in this head. A feeble executive

660
00:41:45,230 –> 00:41:48,910
implies a feeble execution of the government. A feeble execution is

661
00:41:48,910 –> 00:41:52,310
but another phrase for bad execution. And a government ill

662
00:41:52,310 –> 00:41:55,680
executed, whatever it may be in theory, must in

663
00:41:55,680 –> 00:41:58,840
practice be a bad government.

664
00:41:59,480 –> 00:42:02,600
Close quote From Federalist Number 70

665
00:42:03,160 –> 00:42:05,960
by your friend and mine, Alexander Hamilton.

666
00:42:07,480 –> 00:42:10,760
So there’s a lot there the majority

667
00:42:10,760 –> 00:42:14,320
pulled on to create its

668
00:42:14,320 –> 00:42:17,640
opinion and that the dissent in Trump v. Casa

669
00:42:17,640 –> 00:42:21,280
objected to. I sent the documents to

670
00:42:21,280 –> 00:42:24,680
deroll. I don’t know if he had a chance to look over the case itself

671
00:42:24,840 –> 00:42:26,910
or what familiarity he has with this, the case.

672
00:42:29,310 –> 00:42:32,550
But I’m going to ask him the basic question that was before the court de

673
00:42:32,550 –> 00:42:36,030
Rolo. Can the powers of the executive branch be checked by district

674
00:42:36,190 –> 00:42:37,870
court injunctions?

675
00:42:40,270 –> 00:42:42,749
Oh, without a doubt. It’s just.

676
00:42:44,590 –> 00:42:48,190
Solely as they apply against a

677
00:42:48,190 –> 00:42:51,470
party that is actually under the court’s jurisdiction

678
00:42:52,120 –> 00:42:55,800
and part of the suit before it. Okay. And in a way,

679
00:42:58,760 –> 00:43:02,480
it touches on the case or controversy doctrine. The

680
00:43:02,480 –> 00:43:06,320
judiciary can’t touch anything that doesn’t come

681
00:43:06,320 –> 00:43:09,960
before it in the form of a case or controversy. Right.

682
00:43:10,120 –> 00:43:13,160
An actual case filed or perhaps

683
00:43:14,280 –> 00:43:18,010
a petition for relief, which is the technicality, the difference. But

684
00:43:18,010 –> 00:43:21,410
that would be, for example, where someone is being held

685
00:43:21,970 –> 00:43:25,570
arguably without just cause, a petition

686
00:43:25,570 –> 00:43:29,290
for their release. There’s your controversy. Right. Rather than

687
00:43:29,290 –> 00:43:32,930
a case. But anyway, so long as the court has jurisdiction

688
00:43:32,930 –> 00:43:36,290
over the person, absolutely. They can grant

689
00:43:37,170 –> 00:43:39,810
an injunction to prevent, or to

690
00:43:40,130 –> 00:43:43,570
temporarily prevent the

691
00:43:43,570 –> 00:43:47,250
judicial, excuse me, the executive from doing something. Right. That

692
00:43:47,250 –> 00:43:50,570
wasn’t the issue here. The issue here was

693
00:43:51,050 –> 00:43:54,890
have they issued an injunction that protects anyone

694
00:43:55,930 –> 00:43:59,690
from the enforcement of a law? And

695
00:43:59,690 –> 00:44:03,490
to me, and in my review, but I haven’t seen the word yet. But

696
00:44:03,490 –> 00:44:06,970
I admit on the face of it that that’s not a comprehensive review.

697
00:44:07,130 –> 00:44:10,830
I have not yet seen the word veto. But how it comes across to be

698
00:44:11,150 –> 00:44:14,750
is a judicial veto of the law.

699
00:44:15,470 –> 00:44:18,830
And that itself would actually provoke a

700
00:44:18,830 –> 00:44:21,310
constitutional crisis. Okay.

701
00:44:22,430 –> 00:44:25,630
So, yeah, it’s,

702
00:44:25,870 –> 00:44:29,550
it’s, it’s interesting. I agree with the reasoning of

703
00:44:29,550 –> 00:44:32,910
the majority. I think Justice

704
00:44:32,910 –> 00:44:36,630
Barrett did an excellent job being

705
00:44:37,110 –> 00:44:40,870
both a

706
00:44:40,870 –> 00:44:44,550
complex Anglophile as well as someone who actually lived in the UK and studied their

707
00:44:44,550 –> 00:44:48,390
laws while in law school for a time. I

708
00:44:48,390 –> 00:44:51,790
like the history. And also being an

709
00:44:51,790 –> 00:44:55,590
originalist, I understand the point that, hey, when Congress grants this

710
00:44:55,590 –> 00:44:59,350
power in 1789 to these courts, this

711
00:44:59,350 –> 00:45:02,470
thing was not done. And thus we are looking to that

712
00:45:02,950 –> 00:45:06,790
grant and trying to determine if this modern usage

713
00:45:06,870 –> 00:45:10,550
actually is

714
00:45:11,270 –> 00:45:14,990
authorized right or not. Not would have

715
00:45:14,990 –> 00:45:18,669
been authorized, but is authorized or not. I think that you know, is

716
00:45:18,669 –> 00:45:22,230
the correct way to begin the analysis. But yeah,

717
00:45:22,390 –> 00:45:25,590
strange because when I read it, I’m also

718
00:45:25,590 –> 00:45:29,030
frustrated against media presentation of things.

719
00:45:29,420 –> 00:45:33,180
Okay, Right, right. This case seems to touch not at all

720
00:45:33,260 –> 00:45:36,780
upon the actual birthright citizenship issue. It’s just

721
00:45:36,780 –> 00:45:40,620
addressing whether one person who doesn’t work

722
00:45:40,620 –> 00:45:44,300
for the federal government, he’s actually part of the federal government.

723
00:45:44,620 –> 00:45:48,340
If he has the power to say this law

724
00:45:48,340 –> 00:45:52,180
is bad and nowhere in these United States may it be

725
00:45:52,180 –> 00:45:55,350
enforced. Right. It sounds like veto.

726
00:45:56,790 –> 00:46:00,350
It is directly analogous to what the President does when a bill comes before

727
00:46:00,350 –> 00:46:04,190
him or her one day, her perhaps, and

728
00:46:04,190 –> 00:46:08,030
then that president gets to say, oh, do I wish this

729
00:46:08,030 –> 00:46:10,830
to become the law of the land or not? If the answer is no, he

730
00:46:10,830 –> 00:46:14,350
knows it. This seems like a post hot

731
00:46:14,350 –> 00:46:18,190
judicial veto of either

732
00:46:18,190 –> 00:46:21,700
executive orders or of enforcement of an

733
00:46:21,700 –> 00:46:25,500
actual law. I mean INS has been the law for more than half a

734
00:46:25,500 –> 00:46:28,460
century. Right. I think it’s 1952 when it was passed

735
00:46:29,100 –> 00:46:32,780
in. It’s arguably that law is central

736
00:46:33,420 –> 00:46:36,060
to the current composition of the United States of America.

737
00:46:36,620 –> 00:46:40,420
Legal composition of the United States of

738
00:46:40,420 –> 00:46:44,260
America. That law is central to an extremely important law in the

739
00:46:44,260 –> 00:46:46,860
20th century. Okay. And effectively what

740
00:46:48,370 –> 00:46:52,050
the judge is doing is saying no, that, that, that’s a bad law. That’s not.

741
00:46:52,050 –> 00:46:54,930
That, that cannot be enforced. Who made you king?

742
00:46:55,650 –> 00:46:59,410
Well, let me, let me, let me. From whence cometh that power? Well,

743
00:46:59,410 –> 00:47:02,850
let me, let me steel man the defense. Not from English equity.

744
00:47:03,250 –> 00:47:06,930
Well, but not from English common law. Well, let me, let me, let

745
00:47:06,930 –> 00:47:10,410
me steal man, not the defense. Let me steal man the dissent. Let me do

746
00:47:10,410 –> 00:47:13,360
this for just a moment. Normally I wouldn’t do this, but I’m going to put

747
00:47:13,360 –> 00:47:17,160
myself in the, in the mind, in the, in the,

748
00:47:17,160 –> 00:47:20,440
in the, in the argumentation of the dissenters,

749
00:47:21,000 –> 00:47:23,560
Kagan, Sotomayor and

750
00:47:24,280 –> 00:47:27,920
Jackson. What you are saying, De Rolo, is so much

751
00:47:27,920 –> 00:47:28,520
legalese

752
00:47:32,040 –> 00:47:35,080
and I don’t have time to get involved in the weeds of the legalese

753
00:47:35,960 –> 00:47:39,320
of what British and the Crown. You said a lot of nice

754
00:47:39,320 –> 00:47:42,690
fancy white supremacist sounding words.

755
00:47:43,650 –> 00:47:47,410
Don’t you know? Don’t you understand that

756
00:47:48,050 –> 00:47:51,410
that is a mind numbingly technical query? Because what,

757
00:47:52,610 –> 00:47:56,289
what the Executive actually wants to do is what we

758
00:47:56,289 –> 00:47:59,890
should rule on. Because the Executive has shown intent.

759
00:48:00,290 –> 00:48:03,410
Because of the nature of the Executive power as it has grown over the last

760
00:48:03,410 –> 00:48:07,230
hundred years, the Executive has shown continuing intent. And, and

761
00:48:07,230 –> 00:48:11,070
we don’t have to know what’s in the Executive’s mind of either party. All we

762
00:48:11,070 –> 00:48:14,030
have to do is look at the pattern and Predict the pattern into the future.

763
00:48:14,110 –> 00:48:17,550
That’s all we have to do. And so don’t get me, don’t get me pulled

764
00:48:17,550 –> 00:48:20,590
into the weeds of legalese or technical queries.

765
00:48:21,630 –> 00:48:25,470
We need someone because the Congress has

766
00:48:25,470 –> 00:48:28,350
failed in its duty. I agree with you about that. The Congress has failed in

767
00:48:28,350 –> 00:48:31,950
its duty to check executive power. So if the Congress will not do it,

768
00:48:32,030 –> 00:48:35,790
what branch of the government would you propose do it? Because we

769
00:48:35,790 –> 00:48:39,270
can see from the patterns that have been

770
00:48:39,270 –> 00:48:43,030
developed over the course of time that the executive will not stop and we will

771
00:48:43,030 –> 00:48:46,630
have an imperial executive. What say you

772
00:48:46,630 –> 00:48:50,190
to this assertion, which I believe is the assertion,

773
00:48:50,270 –> 00:48:53,990
by the way, that Jackson cake. And this is the core of the assertion, actually

774
00:48:53,990 –> 00:48:57,510
I don’t believe it is the core of the assertion that Jackson, Sotomayor and

775
00:48:57,510 –> 00:48:59,790
Kagan are making in the dissent.

776
00:49:03,630 –> 00:49:07,150
It’s overblown. Even if I

777
00:49:07,150 –> 00:49:10,030
didn’t take issue with how they

778
00:49:10,510 –> 00:49:14,190
divine what someone is going to do,

779
00:49:14,670 –> 00:49:18,070
even if I don’t take issue with that, it’s

780
00:49:18,070 –> 00:49:21,830
overblown. The imperial presidency and their fears of

781
00:49:21,830 –> 00:49:25,550
an imperial presidency seem entirely to be political.

782
00:49:27,360 –> 00:49:30,880
Not legal and not even constitutional, just political. Meaning

783
00:49:31,040 –> 00:49:34,000
they disagree with what this man is doing, therefore he’s a tyrant.

784
00:49:35,200 –> 00:49:39,000
Not the way this man is going about doing what

785
00:49:39,000 –> 00:49:42,239
he’s doing is tyrannical. That’s just a very different

786
00:49:42,720 –> 00:49:45,840
assertion. And you know,

787
00:49:48,640 –> 00:49:52,280
it smacks of high sounding rhetoric on their part.

788
00:49:52,280 –> 00:49:56,040
Right. But at the end of the day, they can’t know what he’s

789
00:49:56,040 –> 00:49:59,840
going to do. They can’t know what he’s going to do. They can

790
00:49:59,840 –> 00:50:03,520
know what a statute authorizes him to do. Right.

791
00:50:04,160 –> 00:50:07,840
And when the federal officials, okay, the officers

792
00:50:08,320 –> 00:50:11,880
of the executive branch, like ice, when they then

793
00:50:11,880 –> 00:50:15,480
actually take action pursuant to what the law allows them to

794
00:50:15,480 –> 00:50:19,290
do and someone thinks that that action itself

795
00:50:19,450 –> 00:50:23,210
was done wrong, there would have you, they can sue, right? And then an injunction

796
00:50:23,210 –> 00:50:27,050
can issue granting some form of relief. But of course it’s only going to

797
00:50:27,050 –> 00:50:30,890
be temporary because if the law remains constitutional, well

798
00:50:30,890 –> 00:50:34,730
then you know, the, the law is going

799
00:50:34,730 –> 00:50:38,410
to be executed. You know, they would be better

800
00:50:38,410 –> 00:50:42,170
served by calling on Congress by, sorry, by calling on voters

801
00:50:42,250 –> 00:50:44,870
to vote for different people who will then get a. To Congress and do something

802
00:50:44,870 –> 00:50:48,390
different. But de Rolo Derolo, again, to quote from Justice

803
00:50:48,390 –> 00:50:52,230
Jackson. Actually, no, I’m sorry. To quote from Justice Sotomayor. It

804
00:50:52,230 –> 00:50:55,910
strains credulity to treat the executive branches irreparably harmed by these

805
00:50:55,910 –> 00:50:58,070
injunctions, even if they are overly broad.

806
00:51:00,069 –> 00:51:03,750
Sorry, say that again from, from, from Justice

807
00:51:03,750 –> 00:51:06,630
Sotomayor’s opinion In the dissent, it

808
00:51:07,030 –> 00:51:10,430
strains credulity to treat the executive branch as

809
00:51:10,430 –> 00:51:14,070
irreparably harmed by these injunctions, even if they are overly broad.

810
00:51:18,920 –> 00:51:22,040
I don’t think it’s merely the executive branch who’s harmed.

811
00:51:22,440 –> 00:51:26,120
It’s a wrong against our constitutional system. Right.

812
00:51:26,840 –> 00:51:30,120
The judiciary doesn’t veto the law

813
00:51:30,840 –> 00:51:34,560
in a case or controversy. The judiciary may hold a

814
00:51:34,560 –> 00:51:37,920
law as unconstitutional. Okay, fine. But the

815
00:51:37,920 –> 00:51:41,320
application of that holding is not necessarily going to apply outside of that district.

816
00:51:42,020 –> 00:51:45,700
Normally, this issue is closer

817
00:51:45,700 –> 00:51:48,660
to what the Supreme Court was dealing with. That is,

818
00:51:49,540 –> 00:51:53,060
how far away from a federal courthouse the writ

819
00:51:53,700 –> 00:51:57,540
runs by that judicial official,

820
00:51:57,700 –> 00:52:01,540
how far away does it go? And normally it stays

821
00:52:01,540 –> 00:52:05,300
in the district. And so if you had a real issue change

822
00:52:05,300 –> 00:52:07,460
district, that, of course,

823
00:52:08,910 –> 00:52:11,870
that’s part of our freedoms, that’s part of how our republic works. Part of how

824
00:52:11,870 –> 00:52:14,990
its structure protects freedom,

825
00:52:15,550 –> 00:52:19,270
is that judicial overreach is limited

826
00:52:19,270 –> 00:52:22,990
geographically, except when it’s done by the US Supreme Court. And then it’s a very,

827
00:52:22,990 –> 00:52:26,670
very, very specific evil. And there are, you know, awesome

828
00:52:26,670 –> 00:52:30,230
precedents in the law, like Plessy vs. Ferguson that show you what

829
00:52:30,230 –> 00:52:34,070
happens when they screw it up. Right. Thankfully, it takes a while to get

830
00:52:34,070 –> 00:52:37,010
there, and there’s, you know, very few instances of that.

831
00:52:37,970 –> 00:52:41,810
But anyway, here, you know, you haven’t, you haven’t touched

832
00:52:41,810 –> 00:52:45,610
on it yet, but you can look at the numbers. If my recall

833
00:52:45,610 –> 00:52:48,850
is correct, and I know the.

834
00:52:49,730 –> 00:52:53,330
I actually have it up on my computer. And no, I’m not driving

835
00:52:53,330 –> 00:52:57,170
anymore. So let nobody panic, because I am trying to look at a computer

836
00:52:57,250 –> 00:52:59,730
while driving a truck. I’m not in a truck. I’m in an office.

837
00:53:02,720 –> 00:53:06,360
In case anybody. Here we go. The total

838
00:53:06,360 –> 00:53:09,760
number of. So the first universal injunction. Okay. Was made in

839
00:53:09,760 –> 00:53:13,400
1963. As of the end of

840
00:53:13,400 –> 00:53:17,079
2024, there were 127 of them. But

841
00:53:17,079 –> 00:53:20,720
this year, my understanding is there have been 25 of them, and therefore,

842
00:53:21,520 –> 00:53:23,760
the total number of them. Right.

843
00:53:24,560 –> 00:53:27,040
Is152.

844
00:53:28,640 –> 00:53:32,240
Guess what percentage of them are universal injunctions

845
00:53:32,560 –> 00:53:35,840
against Trump administration action?

846
00:53:38,720 –> 00:53:42,367
Out of the 152. 80%.

847
00:53:42,704 –> 00:53:45,743
80%. 0.44

848
00:53:46,080 –> 00:53:49,680
something%. Wow.

849
00:53:49,680 –> 00:53:53,360
Okay. It was 50% as of

850
00:53:54,850 –> 00:53:58,650
the end of last year, and then there’s 25 this year. So we’re now

851
00:53:58,650 –> 00:54:02,170
at effectively 80%, slightly more

852
00:54:02,170 –> 00:54:03,890
technically than 80%.

853
00:54:06,610 –> 00:54:10,370
A hair, a smidgen for 80% against Trump administration action.

854
00:54:10,930 –> 00:54:14,770
Now, let that be the background for my argument that this

855
00:54:14,770 –> 00:54:18,570
is merely a judicial veto. And now we see what we’re dealing with. They are

856
00:54:18,570 –> 00:54:22,080
vetoing what this administration is doing. They cannot stop him getting

857
00:54:22,080 –> 00:54:25,840
elected. So using the judiciary as martinet, or actually a better,

858
00:54:25,840 –> 00:54:29,520
better. A better metaphor.

859
00:54:29,520 –> 00:54:32,680
As tribunes. Right, as

860
00:54:32,680 –> 00:54:36,440
tribunes. To strike down these actions or

861
00:54:36,440 –> 00:54:39,760
to strike down the legitimate

862
00:54:39,760 –> 00:54:42,880
enforcement of lawful and constitutional

863
00:54:43,600 –> 00:54:46,480
laws, you know, it effectively. So the harm,

864
00:54:47,420 –> 00:54:50,700
it’s not just that the executive branch is harmed, the rule of law is harmed.

865
00:54:52,140 –> 00:54:55,740
No one elected that judge in Massachusetts. No one

866
00:54:55,740 –> 00:54:59,460
vested that judge with the authority to say, this law is just

867
00:54:59,460 –> 00:55:03,139
not going to be carried out. Nobody, sorry,

868
00:55:03,139 –> 00:55:06,660
this executive order is not going to be carried out. No one vested the judge

869
00:55:06,660 –> 00:55:10,260
with the authority to say that. Now the judge

870
00:55:10,260 –> 00:55:14,100
is vested with the power, as well, demonstrated by, you know,

871
00:55:14,100 –> 00:55:17,940
Justice Barrett, to say in a case or controversy, I’m

872
00:55:17,940 –> 00:55:21,340
going to grant an injunction against the enforcement of this executive order

873
00:55:21,740 –> 00:55:25,460
pending the outcome of this dispute about

874
00:55:25,460 –> 00:55:28,700
the validity of the order and. Or its

875
00:55:29,099 –> 00:55:32,060
enforcement. Follow. Oh, absolutely.

876
00:55:34,620 –> 00:55:37,900
That’s perfectly fine. Right. And what I would. What I would. Well, couple of things.

877
00:55:37,900 –> 00:55:41,350
So the, the,

878
00:55:41,590 –> 00:55:44,950
the, the steel man argument from the dissent

879
00:55:45,350 –> 00:55:49,070
comes from a historical understanding of the

880
00:55:49,070 –> 00:55:52,750
Constitution, going all the way back to Woodrow Wilson, that it should be

881
00:55:52,750 –> 00:55:56,510
a flexible document that conforms and comports

882
00:55:56,510 –> 00:55:59,710
to the times, rather than the

883
00:55:59,710 –> 00:56:03,430
originalist position, which, of course, states that

884
00:56:03,670 –> 00:56:06,890
the Constitution says what it says and we should leave it alone.

885
00:56:08,330 –> 00:56:11,890
And in case after case in the course of the

886
00:56:11,890 –> 00:56:15,530
20th century, the court has trended,

887
00:56:15,530 –> 00:56:19,370
whether it has been Republican appointees or Democratic appointees, it seems

888
00:56:19,370 –> 00:56:21,210
to not matter in a more,

889
00:56:23,130 –> 00:56:25,610
shall we say, progressive direction.

890
00:56:27,690 –> 00:56:31,210
And this court seems to be, on the face of it,

891
00:56:31,660 –> 00:56:35,100
and I mentioned several cases already, the Chevron, the overturning of the

892
00:56:35,100 –> 00:56:38,700
Chevron doctrine in the Loper case, the

893
00:56:38,700 –> 00:56:42,340
overturning of Roe v. Wade, even in cases that did not

894
00:56:42,340 –> 00:56:45,660
involve the federal government, the cases around affirmative action

895
00:56:46,140 –> 00:56:49,780
with the University of Michigan and Harvard University, this court

896
00:56:49,780 –> 00:56:53,100
seems to be trending more and more in the direction of originalism.

897
00:56:55,420 –> 00:56:58,870
What. How is that going to jibe

898
00:56:59,590 –> 00:57:03,350
with. Well, two questions. So, one, how is that going to jibe with our digital

899
00:57:03,350 –> 00:57:06,310
future, which seems to favor a progressive,

900
00:57:06,870 –> 00:57:07,510
fluid,

901
00:57:10,710 –> 00:57:14,470
unmoored and untethered kind of posture?

902
00:57:15,670 –> 00:57:18,470
That’s the first question. How is this going to jive with our digital future?

903
00:57:19,270 –> 00:57:22,778
And then because, just to say me, Colby Barrett, she’s What, in her 40s,

904
00:57:22,882 –> 00:57:26,710
50s, something like that? She’s going to be on the court a long time. So

905
00:57:26,710 –> 00:57:29,390
is Brett Kavanaugh. So is

906
00:57:30,270 –> 00:57:33,790
John Roberts, although he’s, he tends to waffle back and forth

907
00:57:34,270 –> 00:57:36,910
depending upon which position he’s taking on which day.

908
00:57:38,990 –> 00:57:42,350
But then also, you know, you’re also going to have

909
00:57:43,070 –> 00:57:46,670
another opportunity for someone else to be introduced to the court, particularly if

910
00:57:46,670 –> 00:57:50,190
Clarence Thomas retires. And underneath this

911
00:57:50,190 –> 00:57:54,010
administration, to add to the. To the gnashing

912
00:57:54,010 –> 00:57:56,250
of teeth of the progressive movement in our country.

913
00:57:58,330 –> 00:58:01,570
How does it originalist. I’ll just. Let’s focus on this question for just a second,

914
00:58:01,570 –> 00:58:03,690
because I’ll ask you the second one after I get the answer to this one.

915
00:58:03,770 –> 00:58:07,210
How do you see this more originalist

916
00:58:07,210 –> 00:58:10,970
conservative court actually functioning over the next

917
00:58:10,970 –> 00:58:14,530
40 years in an increasingly progressive, culturally and

918
00:58:14,530 –> 00:58:15,770
politically progressive culture?

919
00:58:19,540 –> 00:58:22,900
I’m going to assume the increase in

920
00:58:22,900 –> 00:58:26,580
progressivism will continue for the sake of my comments. Sure.

921
00:58:26,580 –> 00:58:30,220
Okay. It’s going royally piss them off, right? It is going to

922
00:58:30,220 –> 00:58:33,780
royally piss them off. And

923
00:58:33,780 –> 00:58:37,620
yet there is a rule of reason

924
00:58:38,020 –> 00:58:41,700
that is easy to discern about originalism,

925
00:58:42,100 –> 00:58:45,730
Right. The majority of your listeners, I dare say, will be

926
00:58:47,650 –> 00:58:51,490
participants in a mortgage for their home, where there is a

927
00:58:51,490 –> 00:58:55,290
lender holding a mortgage. And a mortgage, of course, is a security instrument that

928
00:58:55,290 –> 00:58:59,010
they actually give to the lender. They also,

929
00:59:00,770 –> 00:59:04,530
far as I know, never give to the holder of

930
00:59:04,530 –> 00:59:07,570
the mortgage the right to unilaterally reinterpret it,

931
00:59:08,050 –> 00:59:11,860
however the lender sees it, because circumstances, quote,

932
00:59:11,860 –> 00:59:15,260
have changed. Close quote. Period. No, no, no. It doesn’t happen. Doesn’t happen.

933
00:59:16,460 –> 00:59:20,140
That’s just one contractual example to show you why originalism makes

934
00:59:20,300 –> 00:59:23,980
sense. Okay? And on a gut level, makes sense. We

935
00:59:23,980 –> 00:59:27,580
understand it, okay? We understand it, okay? If

936
00:59:27,580 –> 00:59:31,380
you get a winning lottery ticket, okay? And I don’t know why you play

937
00:59:31,380 –> 00:59:35,020
the lottery, we’ll leave that on the side. You draw a winning lottery ticket, great.

938
00:59:35,260 –> 00:59:39,050
You show up at the, at the state office because this is a state

939
00:59:39,050 –> 00:59:42,530
run fraud. That’s what any lottery is, okay? Except people

940
00:59:42,530 –> 00:59:46,290
voluntarily participate in it. So you show up at the office, hey, here’s my

941
00:59:46,290 –> 00:59:49,850
winning lottery ticket. Oh, you’re right, it was. But we reinterpreted the

942
00:59:49,850 –> 00:59:53,570
numbers. What? Yeah. Somebody else won. He’s over there. You would be

943
00:59:53,570 –> 00:59:54,570
incensed.

944
00:59:56,570 –> 01:00:00,290
Incensed. Someone has stolen your

945
01:00:00,290 –> 01:00:02,730
victory by reinterpreting

946
01:00:04,100 –> 01:00:07,940
what in fact was something else. Right? And so

947
01:00:08,260 –> 01:00:12,020
what happens here is our rights get stolen when they can unilaterally

948
01:00:12,020 –> 01:00:14,420
reinterpret what clear,

949
01:00:15,220 –> 01:00:18,980
comprehensive, comprehendable statements

950
01:00:19,140 –> 01:00:22,740
are. Then when they’re reinterpreted to mean something, usually it’s the opposite.

951
01:00:22,820 –> 01:00:26,460
They’re reinterpreted to mean the opposite of what was actually said. It

952
01:00:26,460 –> 01:00:28,180
actually reminds me of Genesis 3.

953
01:00:30,990 –> 01:00:34,750
Did God really say this? And then Eve says

954
01:00:34,830 –> 01:00:38,150
what her husband told her, and then she adds a

955
01:00:38,150 –> 01:00:41,790
Gloss. She adds something that at least when you read

956
01:00:42,350 –> 01:00:44,749
the earlier two chapters, you don’t see.

957
01:00:46,030 –> 01:00:49,750
And then Satan pounces. And of course, you can relate to Milton if you

958
01:00:49,750 –> 01:00:52,190
want to. You can relate to the Bible, which I knew because that’s where I’m

959
01:00:52,190 –> 01:00:55,720
getting from. You can also relate it to John Milton’s poem, right, Paradise Lost.

960
01:00:56,360 –> 01:00:59,920
But then comes the reinterpretation. And fittingly, the

961
01:00:59,920 –> 01:01:03,680
reinterpretation is the opposite of what was actually stated. That’s exactly what

962
01:01:03,680 –> 01:01:07,440
progressives do. There we are. They’re not going to

963
01:01:07,440 –> 01:01:11,200
be happy now, looking forward with respect

964
01:01:11,200 –> 01:01:14,880
to that digital age. You’re right. But it’s not merely the Constitution

965
01:01:14,880 –> 01:01:18,120
that could fall, that shall fall foul

966
01:01:18,840 –> 01:01:21,810
of their way of thinking. They’re

967
01:01:22,130 –> 01:01:25,410
unmoored, borderless, universal

968
01:01:25,810 –> 01:01:29,330
Catholic without any religious meaning. But the actual use of Catholic.

969
01:01:29,410 –> 01:01:33,170
Okay, Use of power. It’s an assertion

970
01:01:33,170 –> 01:01:36,450
to use power wherever, whenever and however

971
01:01:36,770 –> 01:01:40,490
the current holder sees fit. Okay? That is

972
01:01:40,490 –> 01:01:44,250
the. That’s actually tyranny. That is the. And it’s not merely tyranny.

973
01:01:44,250 –> 01:01:48,100
It’s totalitarian and tyranny. Tyranny and surrender, okay? It is

974
01:01:48,100 –> 01:01:51,700
the enemy of privacy, is the enemy of the individual, is the enemy of the

975
01:01:51,700 –> 01:01:54,900
family is the enemy of the nation as well as the nation state.

976
01:01:56,980 –> 01:02:00,700
And so it’s a very, very, very important point, okay,

977
01:02:00,700 –> 01:02:04,500
that the mood, because that’s what I’m going to call it, is increasingly progressive

978
01:02:05,940 –> 01:02:08,900
and that that mood is both

979
01:02:09,380 –> 01:02:12,830
totalitarian and tyrannical. That’s dangerous.

980
01:02:13,150 –> 01:02:15,310
Of course, it’s also legal,

981
01:02:18,270 –> 01:02:22,110
okay? It’s legal in our free country. Legal. It’s

982
01:02:22,110 –> 01:02:25,910
legal for you to think in totalitarian lines and want to see

983
01:02:25,910 –> 01:02:29,230
tyrannical uses of power. And both sides do it.

984
01:02:29,710 –> 01:02:33,470
It’s totally legal. It’s just detrimental to our

985
01:02:33,470 –> 01:02:35,870
free system of government. It’s detrimental.

986
01:02:38,020 –> 01:02:41,140
And when you lose, you have to deal with the fact that the other side

987
01:02:41,140 –> 01:02:44,660
has the ball. The other side is running the ball. You play defense,

988
01:02:45,460 –> 01:02:48,580
okay? You don’t shut the game down. Well,

989
01:02:49,700 –> 01:02:53,540
well, well. But you have. You have a voting segment in this country,

990
01:02:53,540 –> 01:02:56,580
an electorate, okay? Who.

991
01:02:57,700 –> 01:03:00,980
And I’ll use a small sample size of this electorate

992
01:03:01,300 –> 01:03:04,740
who recently in the New York City mayoral primary

993
01:03:05,600 –> 01:03:09,040
voted for a man who, when asked,

994
01:03:09,520 –> 01:03:13,200
should billionaires exist? Laughed

995
01:03:13,200 –> 01:03:16,840
and said, and I quote, we’re going

996
01:03:16,840 –> 01:03:20,320
to seize the means of production from them. Close

997
01:03:20,320 –> 01:03:22,960
quote. Every

998
01:03:23,760 –> 01:03:26,640
single voter between the ages of 18

999
01:03:27,760 –> 01:03:31,520
and 40 in New York City in the Democratic

1000
01:03:31,600 –> 01:03:34,550
primary clapped and voted for that guy.

1001
01:03:36,540 –> 01:03:38,220
That’s what we’ve got coming down the pike

1002
01:03:40,460 –> 01:03:44,060
right at A national level. And

1003
01:03:44,380 –> 01:03:48,060
originalism, you’re right, will piss

1004
01:03:48,060 –> 01:03:51,900
them off. And so the next step above that. By the way, it’s

1005
01:03:51,900 –> 01:03:54,860
interesting that you brought up mortgages and you didn’t talk about student loans,

1006
01:03:55,420 –> 01:03:59,140
interestingly enough, because everybody who’s 8 between 18

1007
01:03:59,140 –> 01:04:02,790
and 40 is most verklempt not about mortgages, but about

1008
01:04:02,790 –> 01:04:06,590
student loans, which is also the example of a

1009
01:04:06,590 –> 01:04:10,390
promise to pay that cannot be

1010
01:04:10,710 –> 01:04:14,230
moved around, interestingly enough, when your

1011
01:04:14,230 –> 01:04:15,830
circumstances change.

1012
01:04:19,190 –> 01:04:22,990
Okay, my last question here or my next question here. We got to wrap

1013
01:04:22,990 –> 01:04:25,030
up. We’re rolling around the corner.

1014
01:04:27,350 –> 01:04:30,280
In looking at these major decisions since

1015
01:04:31,800 –> 01:04:35,560
Ms. Jackson, Ms. Sotomayor and Ms.

1016
01:04:35,560 –> 01:04:37,240
Kagan have been appointed to the court.

1017
01:04:39,480 –> 01:04:43,320
And looking at the way those their decisions have been written, Sotomayor

1018
01:04:43,320 –> 01:04:46,840
strikes me as probably being the sharpest legal mind out of that group,

1019
01:04:47,640 –> 01:04:51,200
followed by Elena Kagan and Justice

1020
01:04:51,200 –> 01:04:54,360
Jackson. It, it appears now

1021
01:04:55,650 –> 01:04:59,250
at least two, if not three times in a row on a dissension

1022
01:04:59,730 –> 01:05:03,490
has, if I may be so gentle, out kicked her coverage.

1023
01:05:12,370 –> 01:05:15,930
What are the dangers of putting a

1024
01:05:15,930 –> 01:05:18,450
purely political appointee on the court?

1025
01:05:23,020 –> 01:05:26,700
Well, it’s one of the choices. Right. And it’s been done before.

1026
01:05:27,020 –> 01:05:30,460
There are other and actually arguably

1027
01:05:30,780 –> 01:05:34,500
better well known political appointees to the

1028
01:05:34,500 –> 01:05:37,340
high bench. Right. And yet at the end of the day,

1029
01:05:40,700 –> 01:05:44,420
arguably, when that person takes his or her role

1030
01:05:44,420 –> 01:05:47,780
conscientiously, you may get some

1031
01:05:48,020 –> 01:05:51,420
beautiful surprises. One of the

1032
01:05:51,420 –> 01:05:54,660
decisions that I use in my practice often enough

1033
01:05:55,940 –> 01:05:59,460
comes from the pen of Justice Kagan. Right?

1034
01:05:59,940 –> 01:06:03,380
I do. Among the things I do are federal Tort Claims act

1035
01:06:03,700 –> 01:06:07,420
lawsuits against that government. Okay. The

1036
01:06:07,420 –> 01:06:11,180
United States of America on behalf of veterans who have been hurt by VA

1037
01:06:11,180 –> 01:06:14,760
employees. Okay. And there is a

1038
01:06:14,760 –> 01:06:18,040
strict and strictly construed statutory framework

1039
01:06:19,480 –> 01:06:23,320
whose steps are deemed by the high bench to be jurisdictional.

1040
01:06:23,400 –> 01:06:27,080
Meaning if they’re not done, the court has no power to help you. They’re not

1041
01:06:27,080 –> 01:06:30,640
done properly before filing suit. The court has

1042
01:06:30,640 –> 01:06:34,280
zero power to help you, and that’s it.

1043
01:06:34,280 –> 01:06:38,000
Your suit cost. So anyway, there

1044
01:06:38,000 –> 01:06:41,850
was a question once about whether a six month time

1045
01:06:41,850 –> 01:06:45,690
frame was six months or 180 days. And that may sound

1046
01:06:45,690 –> 01:06:49,410
stupid, nonsensical. Trust me, as a litigator, that stuff is critical.

1047
01:06:49,490 –> 01:06:52,770
Okay. And Justice Kagan’s opinion

1048
01:06:53,090 –> 01:06:56,690
saying six months is six months, that I actually liked,

1049
01:06:59,250 –> 01:07:03,090
that was the first decision of hers. I remember reading and saying, I’m glad you’re

1050
01:07:03,090 –> 01:07:06,940
there because this is what I want. And what the dissent

1051
01:07:07,100 –> 01:07:10,700
said, written by somebody I generally would like

1052
01:07:10,700 –> 01:07:14,380
more, I just disagreed with. No, no, I don’t. Six

1053
01:07:14,380 –> 01:07:17,980
months is Six months. But not all months have the same number of days.

1054
01:07:17,980 –> 01:07:21,500
So what, six months is six months. And six months

1055
01:07:21,500 –> 01:07:25,260
helped me rather than 180 days. So was

1056
01:07:25,260 –> 01:07:29,060
happy as a clam. She wrote the decision. And so. But

1057
01:07:29,060 –> 01:07:32,780
yes, generally, and certainly as you change policy areas now, usually

1058
01:07:32,780 –> 01:07:35,940
she and I are not opposite ends of the table, so opposite side.

1059
01:07:36,420 –> 01:07:38,340
So. But yeah, it’s.

1060
01:07:40,420 –> 01:07:43,580
Yeah, it’s going to be interesting to see how it goes. Oh, and by the

1061
01:07:43,580 –> 01:07:47,220
way, Justice Barrett is 53 and they

1062
01:07:47,220 –> 01:07:50,420
have seven children. She’s been married one time to a man named Jesse, since

1063
01:07:50,420 –> 01:07:54,180
1999. Okay. Right, right. I mean, she’s going to be on

1064
01:07:54,180 –> 01:07:57,380
the court. I mean, at least another. At

1065
01:07:57,460 –> 01:08:01,310
minimum, 15 years. Average lifespan

1066
01:08:01,310 –> 01:08:03,510
for a healthy woman in America

1067
01:08:04,790 –> 01:08:07,110
is 75 to 80.

1068
01:08:10,230 –> 01:08:13,270
Yeah. So it’s gonna be a long time. Gonna be a long time.

1069
01:08:15,509 –> 01:08:18,630
And I just. I look at the way Justice

1070
01:08:18,630 –> 01:08:22,470
Jackson’s dissent was written, and the writing

1071
01:08:24,070 –> 01:08:27,790
reveals a. Reveals a couple of things. And we’ve been banging on about

1072
01:08:27,790 –> 01:08:31,459
this on the podcast the last. The last few months

1073
01:08:31,459 –> 01:08:33,259
because I do think it’s a genuine problem.

1074
01:08:35,819 –> 01:08:39,259
It reveals a lack of

1075
01:08:39,259 –> 01:08:43,099
seriousness. I don’t mean a lack, and I don’t mean

1076
01:08:43,099 –> 01:08:46,779
that in terms of professionalism. I don’t mean that in terms of knowing

1077
01:08:46,779 –> 01:08:50,539
how to use the words. I mean, there’s a fundamental spirit

1078
01:08:50,539 –> 01:08:54,259
of unseriousness underneath the thoughts that exist in the

1079
01:08:54,259 –> 01:08:57,759
mind. To paraphrase from George Orwell, when we have lazy

1080
01:08:57,759 –> 01:09:01,079
thinking, we write lazy words.

1081
01:09:01,799 –> 01:09:05,119
Now, those lazy words could be four syllable words and five syllable words, but they’re

1082
01:09:05,119 –> 01:09:08,599
still lazy. And so there’s a

1083
01:09:08,599 –> 01:09:11,239
fundamental lack of seriousness I see

1084
01:09:12,439 –> 01:09:16,199
among the progressive members of the bench at the

1085
01:09:16,199 –> 01:09:19,559
U.S. supreme Court level that I find to be

1086
01:09:20,999 –> 01:09:22,800
somewhat disturbed. Disturbing.

1087
01:09:24,800 –> 01:09:28,440
Yeah. And I’m no jud. I’m no

1088
01:09:28,440 –> 01:09:31,920
legal genius, but I can read a document

1089
01:09:32,560 –> 01:09:34,000
and analyze it.

1090
01:09:36,560 –> 01:09:40,320
Like. I never went to law school. So, you know,

1091
01:09:41,040 –> 01:09:44,800
I’m not claiming that, but there should

1092
01:09:44,800 –> 01:09:48,120
be some understanding on the part of those three

1093
01:09:48,120 –> 01:09:51,910
justices of exactly what the law is. And. And to your

1094
01:09:51,910 –> 01:09:55,630
point earlier, what the law is in spite of

1095
01:09:55,630 –> 01:09:59,310
political pressures, because I think that’s what we want

1096
01:09:59,390 –> 01:10:01,950
from. We want from the court.

1097
01:10:05,630 –> 01:10:08,670
Okay, well, you know, we actually want from the court. Right.

1098
01:10:09,630 –> 01:10:13,230
I can tell you in every case what every single person

1099
01:10:13,550 –> 01:10:17,310
wants from the court. Well, in reality,

1100
01:10:17,310 –> 01:10:21,100
every single person wants the person in black to say they

1101
01:10:21,100 –> 01:10:24,860
were right, the other party was wrong, and you got it. Then

1102
01:10:24,860 –> 01:10:28,620
go away. We want to win. We want to win. We want Judge to

1103
01:10:28,620 –> 01:10:32,180
say what we want that’s what we want. And when the judge does,

1104
01:10:32,260 –> 01:10:35,940
we will defend it to the hilt. Right. And when the

1105
01:10:35,940 –> 01:10:39,620
judge doesn’t, we will decry it forever until

1106
01:10:39,620 –> 01:10:43,060
it’s changed or overturned. And, of course, I do this for a living. Right.

1107
01:10:43,220 –> 01:10:46,780
But that. That’s effectively how we all work. And

1108
01:10:46,780 –> 01:10:50,060
so there’s something, though, to their role,

1109
01:10:50,620 –> 01:10:54,380
and it goes throughout the federal judiciary. It’s just

1110
01:10:54,620 –> 01:10:58,220
as time has gone on and technology and other factors

1111
01:10:58,380 –> 01:11:01,740
have come into play. And I also think the homogenization

1112
01:11:02,060 –> 01:11:04,860
of the judiciary, the federal judiciary, on the

1113
01:11:05,340 –> 01:11:08,860
homogenization of it, meaning find somebody who didn’t go to

1114
01:11:09,020 –> 01:11:12,220
Harvard, Yale, Stanford, to Columbia. Good luck. Right.

1115
01:11:13,100 –> 01:11:16,820
That’s the homogenization I’m talking about. Yep. Because

1116
01:11:16,820 –> 01:11:20,140
of that, there’s less philosophizing, there’s less

1117
01:11:20,220 –> 01:11:23,820
creative and imaginative endeavor. Endeavor in

1118
01:11:23,820 –> 01:11:27,020
determining what the law is. To quote

1119
01:11:27,500 –> 01:11:31,300
Chief Justice Marshall and Marbury vs Madison. That’s their job. Say what? The law

1120
01:11:31,300 –> 01:11:34,540
is. Great. That is philosophical, it is political.

1121
01:11:35,340 –> 01:11:39,080
They’re unavoidable considerations. But when they’re done, well,

1122
01:11:39,880 –> 01:11:43,280
among other things, they’re limited to that case or

1123
01:11:43,280 –> 01:11:46,800
controversy. Okay. And the

1124
01:11:46,800 –> 01:11:50,600
exceptions, of course, are when it’s the, you know, Supreme Court is striking down

1125
01:11:50,600 –> 01:11:54,200
a law holding that a law holding the legal term. Okay.

1126
01:11:54,200 –> 01:11:57,960
Concluding this law violates the Constitution, and therefore,

1127
01:11:58,520 –> 01:12:02,320
you know, it’s not the law. Great. But other than

1128
01:12:02,320 –> 01:12:05,870
that, narrower and

1129
01:12:05,870 –> 01:12:08,510
narrower as you go down. And so what we have

1130
01:12:09,550 –> 01:12:13,230
is now we had an inversion going on, because

1131
01:12:13,470 –> 01:12:16,630
as I counted, according to this article, there were

1132
01:12:16,630 –> 01:12:19,790
127 of those injunctions from 1963 until

1133
01:12:19,950 –> 01:12:23,710
2024. And then another article said there were 25 this year. Great.

1134
01:12:23,710 –> 01:12:27,430
That means 80% of them were against Trump

1135
01:12:27,430 –> 01:12:30,980
administration action. Obviously, this is not

1136
01:12:31,620 –> 01:12:35,380
anything other than political opposition through the judiciary. It is a

1137
01:12:35,380 –> 01:12:39,060
veto of legitimate government

1138
01:12:39,300 –> 01:12:42,980
action rather than a limited in

1139
01:12:42,980 –> 01:12:46,740
terms of geography, limited in terms of persons

1140
01:12:46,740 –> 01:12:50,460
affected, temporary measure to preserve

1141
01:12:50,460 –> 01:12:54,020
a status quo. So a decision can be made. Right.

1142
01:12:54,100 –> 01:12:57,910
I agree 100% with the decision. It does not

1143
01:12:57,910 –> 01:13:01,670
touch birthright, anything. Well, and I’m glad you

1144
01:13:01,670 –> 01:13:04,550
brought this up here at the end, because I have in front of me my

1145
01:13:04,550 –> 01:13:08,310
copy of the Pocket Constitution. Every good member of the republic, whether they

1146
01:13:08,310 –> 01:13:11,910
are progressive or originalist, should have a copy of the Constitution and should actually

1147
01:13:11,910 –> 01:13:15,590
read the words of the document as it was written. And I

1148
01:13:15,590 –> 01:13:18,590
would like to quote from Article 14

1149
01:13:21,560 –> 01:13:23,560
of the United States Constitution,

1150
01:13:25,080 –> 01:13:28,720
and I quote Section 1, all

1151
01:13:28,720 –> 01:13:32,400
persons born or naturalized in the United

1152
01:13:32,400 –> 01:13:36,120
States and subject to the jurisdiction thereof

1153
01:13:36,360 –> 01:13:39,960
are citizens of the United States. And of the State wherein they reside.

1154
01:13:41,080 –> 01:13:44,760
No State shall make or enforce any law which shall abridge the

1155
01:13:44,760 –> 01:13:47,960
privileges or immunities of citizens of the United States.

1156
01:13:48,680 –> 01:13:51,400
Nor shall any State deprive any person of life,

1157
01:13:51,960 –> 01:13:55,240
liberty or property without due process of law,

1158
01:13:56,040 –> 01:13:59,720
nor deny to any person within its jurisdiction the equal

1159
01:13:59,800 –> 01:14:03,240
protection of the laws.

1160
01:14:04,680 –> 01:14:08,360
No question was before the

1161
01:14:08,360 –> 01:14:12,120
court this session in

1162
01:14:12,120 –> 01:14:15,900
regards to Article 14, Section 1 of the

1163
01:14:15,900 –> 01:14:19,380
United States Constitution. Not one, no matter what you’ve seen in the media,

1164
01:14:21,460 –> 01:14:25,300
not one. And

1165
01:14:27,060 –> 01:14:30,660
say again. Indeed. And so.

1166
01:14:30,820 –> 01:14:34,260
Right. And so. And so. The court cannot and

1167
01:14:34,500 –> 01:14:38,340
should not. I would assert, rule

1168
01:14:38,340 –> 01:14:41,380
or have an opinion about things that are not before it.

1169
01:14:44,120 –> 01:14:47,720
I would, I would, I would dissent from the dissension just merely based on that.

1170
01:14:48,840 –> 01:14:52,480
I don’t need anything else. I don’t need to know that Justice

1171
01:14:52,480 –> 01:14:56,320
Jackson is out kicking her coverage and that there may not

1172
01:14:56,320 –> 01:15:00,160
be the sharpest legal minds among the dissent. I merely

1173
01:15:00,160 –> 01:15:03,920
need to know that that is not the issue before the court. The

1174
01:15:03,920 –> 01:15:07,400
issue before the court is can the district court

1175
01:15:08,290 –> 01:15:11,970
create a universal injunction to stop something that a

1176
01:15:11,970 –> 01:15:15,330
particular political party does not like? Yes

1177
01:15:15,570 –> 01:15:19,210
or no. That’s it. That was the only thing before the

1178
01:15:19,210 –> 01:15:22,530
court. The birthright citizenship

1179
01:15:22,530 –> 01:15:26,330
challenge. Can people who immigrated

1180
01:15:26,330 –> 01:15:30,090
here, by the way, I would assert born or Naturalized

1181
01:15:30,090 –> 01:15:33,730
are the two key words in Article 14, by the way. And if a person

1182
01:15:34,430 –> 01:15:37,910
illegally came here and then had a

1183
01:15:37,910 –> 01:15:41,710
baby, I’m going to make the bold. I’m going to make the bold challenge.

1184
01:15:42,270 –> 01:15:44,590
The person who immigrated here illegally

1185
01:15:47,390 –> 01:15:50,950
is not a beneficiary of the

1186
01:15:50,950 –> 01:15:54,430
benefits of the United States and of citizenship. The

1187
01:15:54,430 –> 01:15:58,270
child might be, but that means that the

1188
01:15:58,270 –> 01:16:02,090
mother and the father. Because even in our progressive scientific

1189
01:16:02,090 –> 01:16:05,530
age, you still need a man and a woman to have a baby.

1190
01:16:07,450 –> 01:16:11,210
That man and that woman probably need to leave the child in America and

1191
01:16:11,210 –> 01:16:15,050
go home and get back in line and

1192
01:16:15,050 –> 01:16:18,770
come here legally. But that

1193
01:16:18,770 –> 01:16:22,570
is a radical position. And who’s going to break up

1194
01:16:22,570 –> 01:16:26,330
families? Who’s really going to send ice to grab some

1195
01:16:27,090 –> 01:16:30,690
five year old from some kid hiding in a closet? Although we have done that

1196
01:16:30,690 –> 01:16:33,090
before underneath the Clinton administration

1197
01:16:34,530 –> 01:16:38,370
with a gentleman. Not a gentleman. He is a gentleman now because he’s a

1198
01:16:38,370 –> 01:16:41,650
grown up by the time he was a child named Elian

1199
01:16:42,210 –> 01:16:45,650
Gonzalez. Yeah, everybody,

1200
01:16:46,450 –> 01:16:49,250
everybody forgets that. But I don’t because I,

1201
01:16:49,730 –> 01:16:53,490
unlike those 18 to 40 year olds that fell asleep in history

1202
01:16:53,490 –> 01:16:57,000
class or were never taught it, I actually pay attention to history

1203
01:16:58,040 –> 01:17:01,240
and things that happened before the Internet.

1204
01:17:03,160 –> 01:17:06,640
All right. I think the birthright

1205
01:17:06,640 –> 01:17:10,400
citizenship question will go before the court within the

1206
01:17:10,400 –> 01:17:13,560
Next couple of years, I do think that they are going to focus on those

1207
01:17:13,560 –> 01:17:17,360
two words, born and naturalized. And I do think there will be a genuine

1208
01:17:17,360 –> 01:17:20,970
struggle. I think it’s going to be probably a 5, 4 decision. Then. Yes, the

1209
01:17:20,970 –> 01:17:24,610
federal government can enforce illegal, can enforce immigration

1210
01:17:24,610 –> 01:17:28,330
law against people who are here illegally. And that if parents are here

1211
01:17:28,330 –> 01:17:32,010
illegally, they should probably not have children. And if they do have children,

1212
01:17:32,010 –> 01:17:35,730
those families can indeed be split up and a riot I

1213
01:17:35,730 –> 01:17:37,810
predict will occur at a national level.

1214
01:17:39,650 –> 01:17:42,930
Or the Congress could just make some laws like they did in the 80s underneath

1215
01:17:42,930 –> 01:17:46,760
Ted Kennedy and solve this problem for us. You

1216
01:17:46,760 –> 01:17:50,560
know, actually do their job instead of flouncing around on

1217
01:17:50,560 –> 01:17:53,560
tick tock and tweeting stupid things.

1218
01:17:58,840 –> 01:18:02,440
Yeah, but again, I’m not a lawyer. What the heck do I know, right?

1219
01:18:02,840 –> 01:18:06,440
Final thoughts, De Rolo, on this Supreme

1220
01:18:06,440 –> 01:18:10,040
Court session. Because this was probably the most explosive decision that came out

1221
01:18:10,520 –> 01:18:13,720
of, of the Supreme Court this session, other than maybe

1222
01:18:14,330 –> 01:18:17,930
the one that said where basically parents can

1223
01:18:17,930 –> 01:18:21,610
indeed pull their children out of school if they don’t like

1224
01:18:21,610 –> 01:18:25,050
the books that are pushing certain themes that they don’t want their children

1225
01:18:25,130 –> 01:18:28,970
to, to hear about. And by the way, I’m in

1226
01:18:28,970 –> 01:18:32,730
favor of that as well. My child is the property of the

1227
01:18:32,730 –> 01:18:36,410
family, not the property of the state. You don’t own

1228
01:18:36,410 –> 01:18:39,130
my children, period, Full stop.

1229
01:18:40,340 –> 01:18:43,620
But anyway, and I, I was born in the United States.

1230
01:18:44,820 –> 01:18:48,460
I am a citizen of this country. Section

1231
01:18:48,460 –> 01:18:52,220
1, Article 14 does not apply to a person such

1232
01:18:52,220 –> 01:18:54,100
as myself, however.

1233
01:18:56,260 –> 01:19:00,100
All right, final thoughts on

1234
01:19:00,100 –> 01:19:03,860
this Supreme Court session and, or, or

1235
01:19:03,860 –> 01:19:06,850
the U. S. Constitution. Anything you’d like to say to wrap up, De Rolo? Because

1236
01:19:06,850 –> 01:19:10,290
we got to get going. It’s fascinating because

1237
01:19:11,090 –> 01:19:14,690
you know, what you do in the era of mass immigration

1238
01:19:15,250 –> 01:19:19,050
with the notion of birthright citizenship, it has an

1239
01:19:19,050 –> 01:19:22,529
old and very old pedigree and it’s

1240
01:19:22,529 –> 01:19:26,370
quasi religious. Right. The sacredness somehow

1241
01:19:26,370 –> 01:19:29,970
conferring something on somebody. I think there’s actually

1242
01:19:30,130 –> 01:19:33,940
something to that that is beautiful and that

1243
01:19:33,940 –> 01:19:37,700
I would not want to see destroyed. At the same time, I have to balance

1244
01:19:37,700 –> 01:19:41,100
that against the exigency of dealing with

1245
01:19:41,900 –> 01:19:45,740
an unimaginable level of illegal immigration. Unimaginable

1246
01:19:45,740 –> 01:19:47,740
because technologically it was not possible

1247
01:19:49,500 –> 01:19:53,300
40 years ago with what we’re dealing with. Sorry. Technologically and

1248
01:19:53,300 –> 01:19:55,980
politically it wasn’t possible. Much of the

1249
01:19:56,220 –> 01:19:59,180
restraints, I would say, on mass immigration,

1250
01:20:00,400 –> 01:20:04,160
many of the restraints are political and not merely cultural or technological.

1251
01:20:04,160 –> 01:20:07,520
Right. And as the politics eroded, all of a sudden

1252
01:20:07,840 –> 01:20:11,440
a people’s willingness to unilaterally uproot themselves and move

1253
01:20:11,440 –> 01:20:15,120
Just like those Gaulish tribes did when Caesar

1254
01:20:15,120 –> 01:20:17,280
decided to invade Gaul. Right.

1255
01:20:19,040 –> 01:20:22,800
What are they called? It’ll flip my mind, but basically

1256
01:20:23,200 –> 01:20:27,020
the Ostrogoth, modern Switzerland. And they

1257
01:20:27,020 –> 01:20:30,780
literally picked up sticks because of Germanic pressure and they were moving into

1258
01:20:30,780 –> 01:20:34,540
Gaul. And Caesar, of course, not only did not want that, he was able to

1259
01:20:34,540 –> 01:20:37,740
use it as a pretext, faith, goal. But anyway, I digress. Right. So, yeah,

1260
01:20:38,460 –> 01:20:42,260
it will be interesting to see what they do and who

1261
01:20:42,260 –> 01:20:45,700
is they, you know, what the judiciary does, what

1262
01:20:45,700 –> 01:20:49,340
Congress does. There’s a whole lot of they. Right. But

1263
01:20:49,340 –> 01:20:52,890
we’re certain we’re certainly rightful. But again, to me,

1264
01:20:54,250 –> 01:20:57,210
I see this decision as a victory against

1265
01:20:58,490 –> 01:21:02,250
that mood, that mood that is totalitarian, that

1266
01:21:02,250 –> 01:21:06,090
mood that is tyrannical, that mood that those of us who remember Covid and

1267
01:21:06,090 –> 01:21:09,690
the restriction know will come for your

1268
01:21:09,690 –> 01:21:13,370
freedom, will come from your. For your freedom and tell you

1269
01:21:13,370 –> 01:21:16,670
it’s your fault and tell you you’re an idiot and tell you to follow the

1270
01:21:16,820 –> 01:21:20,300
science. When the notion of science is about challenging

1271
01:21:20,300 –> 01:21:23,900
orthodoxy. They will come into that

1272
01:21:23,900 –> 01:21:27,380
again. And so I see this decision as a victory against

1273
01:21:27,460 –> 01:21:30,580
those forces. Yeah, yeah,

1274
01:21:30,980 –> 01:21:34,140
yeah. We can’t have the rule. We talked about this in the. In the episode

1275
01:21:34,140 –> 01:21:37,980
with Hannah Arendt, episode number 155, where we

1276
01:21:37,980 –> 01:21:41,300
covered Eichmann in Jerusalem,

1277
01:21:43,230 –> 01:21:46,830
a report on the banality of evil. And she made the point

1278
01:21:47,070 –> 01:21:49,710
that Eichmann was a thoughtless little man,

1279
01:21:50,750 –> 01:21:54,390
a nobody who ruled and made rules and

1280
01:21:54,390 –> 01:21:58,190
enforced rules. Well, not made rules, but enforced rules. But he was a

1281
01:21:58,190 –> 01:22:01,230
nobody from nowhere. Right? And that was the most sort of

1282
01:22:01,550 –> 01:22:04,990
banal thing about him, thus leading to this idea of

1283
01:22:04,990 –> 01:22:08,830
evil being rather than a visceral thing, really a

1284
01:22:08,830 –> 01:22:12,460
play come really coming from a place of banality. And

1285
01:22:12,540 –> 01:22:16,340
my deep concern, and I talked about this on that. On the podcast episode

1286
01:22:16,340 –> 01:22:20,140
with Tom Libby around this. My deep concern is

1287
01:22:20,140 –> 01:22:23,540
that our. The gentlemen, strations of our large

1288
01:22:23,540 –> 01:22:26,380
language model algorithms will.

1289
01:22:27,180 –> 01:22:31,020
Will provide the temptation to humanity, particularly Western

1290
01:22:31,020 –> 01:22:34,220
humans who cannot solve the mass immigration problem,

1291
01:22:34,700 –> 01:22:38,450
to default to an algorithm and thus to claim

1292
01:22:40,770 –> 01:22:44,570
bureaucratic rule of nobody from nowhere, with no one to appeal

1293
01:22:44,570 –> 01:22:47,770
to. And that is totalitarian

1294
01:22:47,770 –> 01:22:49,730
tyranny at its peak.

1295
01:22:51,810 –> 01:22:55,450
Correct. And I am uninterested in living

1296
01:22:55,450 –> 01:22:59,250
under a mode of government where no

1297
01:22:59,250 –> 01:23:02,660
one, there’s no human, where there’s no human who can be held responsible,

1298
01:23:02,810 –> 01:23:06,330
responsible and accountable, whether that’s legally,

1299
01:23:07,050 –> 01:23:10,410
morally or ethically, for the decisions

1300
01:23:10,570 –> 01:23:14,290
that impact real human beings in the material

1301
01:23:14,290 –> 01:23:17,970
world. So that’s where I come down on that. And unfortunately, the

1302
01:23:17,970 –> 01:23:21,450
progressive mood, the progressive mind seems to be more and more

1303
01:23:21,450 –> 01:23:25,250
leaning towards the rule of nobody from nowhere that

1304
01:23:25,250 –> 01:23:29,090
can never be questioned. And I think

1305
01:23:29,090 –> 01:23:31,370
that that’s a deep disease and a deep cancer

1306
01:23:33,000 –> 01:23:36,760
in the progressive mindset that that has to

1307
01:23:36,760 –> 01:23:40,120
be rooted out and. And excised. And I don’t know how to do that.

1308
01:23:40,840 –> 01:23:41,960
I don’t have the tools.

1309
01:23:44,760 –> 01:23:48,200
I hear you. All right, man.

1310
01:23:50,920 –> 01:23:54,680
Well, Derolo Nixon on the phone today,

1311
01:23:55,720 –> 01:23:59,570
live. This is like an old school radio show. This is great.

1312
01:23:59,730 –> 01:24:02,930
So you’re going to have to listen to the audio of it. You’re going to

1313
01:24:02,930 –> 01:24:06,690
love it. But on

1314
01:24:06,690 –> 01:24:10,370
this, our July, kicking off our constitutional July, I want to thank Derolo

1315
01:24:10,370 –> 01:24:12,530
Nixon for coming on the show. And with that, well,

1316
01:24:14,450 –> 01:24:15,170
we’re out.

1317
01:24:19,890 –> 01:24:20,850
He’s out, y’. All.