1 00:00:00,360 --> 00:00:03,199 Speaker 1: You may not know this, but our next guest Hans 2 00:00:03,320 --> 00:00:06,960 Speaker 1: the state's biggest Easter egg hunt in his yard this year. 3 00:00:07,400 --> 00:00:10,600 Speaker 1: But instead of aggs, you can find copies of the Constitution. 4 00:00:11,280 --> 00:00:13,800 Speaker 1: My favorite part is where the kids get to run 5 00:00:13,840 --> 00:00:17,439 Speaker 1: around for seventy six seconds before the hunt starts. It's 6 00:00:17,480 --> 00:00:23,759 Speaker 1: called the pre scramble. The judges next Chuck Ingram on 7 00:00:23,840 --> 00:00:25,880 Speaker 1: fifty five KARC the talk station. 8 00:00:29,160 --> 00:00:32,240 Speaker 2: Hey, thirty five krc DE talk station, and what the 9 00:00:32,280 --> 00:00:34,560 Speaker 2: hell that was about? Brian Thomas always pleased in this 10 00:00:34,760 --> 00:00:38,360 Speaker 2: time of day, very turn off every Wednesday here in 11 00:00:38,360 --> 00:00:40,040 Speaker 2: the fifty five ers mornings here at this time Judge 12 00:00:40,120 --> 00:00:42,400 Speaker 2: entered a Politano. It's great having you on a great 13 00:00:42,400 --> 00:00:45,360 Speaker 2: timing today, Judge of Polaitano because of the Supreme Court. 14 00:00:46,159 --> 00:00:48,959 Speaker 3: Yeah, a happy Easter or two with mister. 15 00:00:48,920 --> 00:00:51,520 Speaker 2: Ingram right back at you. I know he would wish 16 00:00:51,560 --> 00:00:55,520 Speaker 2: you that same. And I was really interested in this 17 00:00:55,840 --> 00:00:58,720 Speaker 2: free speech because it's sort of mixed in with your 18 00:00:58,720 --> 00:01:00,720 Speaker 2: op ed piece or your calm which comes out tonight, 19 00:01:00,760 --> 00:01:03,000 Speaker 2: which I always point out I get early because I'm 20 00:01:03,000 --> 00:01:04,760 Speaker 2: a lucky man. Get you on the show, and to 21 00:01:04,840 --> 00:01:07,479 Speaker 2: get the op ed piece or hope for the dead 22 00:01:09,080 --> 00:01:11,959 Speaker 2: Roman government crucified Jesus because it feared that by claiming 23 00:01:11,959 --> 00:01:13,480 Speaker 2: to be the son of God, he might foment a 24 00:01:13,480 --> 00:01:16,480 Speaker 2: political revolution. He was exercising his what he thought he 25 00:01:16,560 --> 00:01:19,960 Speaker 2: had free speech rights, which were was speech that ran 26 00:01:20,080 --> 00:01:24,080 Speaker 2: counter to the Roman government's philosophy that Roman the Emperor 27 00:01:24,200 --> 00:01:27,160 Speaker 2: was in fact God or the king anyway kind of 28 00:01:27,160 --> 00:01:29,319 Speaker 2: disrupted the social order. But if he lived in the 29 00:01:29,400 --> 00:01:31,560 Speaker 2: United States, Jesus Christ, he'd be able to say that 30 00:01:31,640 --> 00:01:35,640 Speaker 2: all day long. And of course the same goes in Colorado. 31 00:01:35,800 --> 00:01:41,200 Speaker 2: They imposed a ban on LGBTQ conversion therapy. In other words, 32 00:01:41,319 --> 00:01:43,600 Speaker 2: you weren't supposed to be able to get a psychiatrist 33 00:01:43,680 --> 00:01:47,720 Speaker 2: or psychologist rendering care to a confused child. Was not 34 00:01:47,960 --> 00:01:50,960 Speaker 2: allowed to try to talk them out of believing they 35 00:01:50,960 --> 00:01:54,040 Speaker 2: were the opposite sex, or maybe talk them out of 36 00:01:54,080 --> 00:01:56,480 Speaker 2: the idea that they thought they were gay. No, you're 37 00:01:56,520 --> 00:02:00,680 Speaker 2: not gay, you like the opposite sex, And the courts no, 38 00:02:00,800 --> 00:02:03,600 Speaker 2: that's free speech. You can't intrude on that. And of course, 39 00:02:03,880 --> 00:02:08,240 Speaker 2: the interesting thing is it was eight to one Elayna Kagan, 40 00:02:08,520 --> 00:02:10,960 Speaker 2: which you think would go against this. He pointed out 41 00:02:10,960 --> 00:02:13,480 Speaker 2: the way you can't suppress one side of the bait, 42 00:02:13,520 --> 00:02:15,639 Speaker 2: you have to allow the other. So the state could 43 00:02:15,680 --> 00:02:20,880 Speaker 2: similarly not ban talk therapy designed to affirm a minor's 44 00:02:21,200 --> 00:02:25,079 Speaker 2: sexual ideology. It runs both ways. Both sides can say 45 00:02:25,080 --> 00:02:27,240 Speaker 2: what they want because of the First Amendment. Have I 46 00:02:27,280 --> 00:02:28,120 Speaker 2: got that right? Right? 47 00:02:28,560 --> 00:02:32,400 Speaker 3: You have it one hundred percent correct. It was a 48 00:02:32,480 --> 00:02:39,040 Speaker 3: terrific decision because it's not based on the social policy 49 00:02:39,400 --> 00:02:44,360 Speaker 3: of is it constitutional to change your gender? It's based 50 00:02:44,400 --> 00:02:49,480 Speaker 3: on the First Amendment. It follows traditional jurisprudence, rule on 51 00:02:49,600 --> 00:02:55,640 Speaker 3: the narrowest issue possible, rule on the strictly constitutional issue, 52 00:02:56,160 --> 00:03:00,800 Speaker 3: rule on the words of the Constitution. So who is 53 00:03:00,840 --> 00:03:04,359 Speaker 3: the government to say to physicians? This may have even 54 00:03:04,400 --> 00:03:08,520 Speaker 3: applied to members of the clergy as well. You can 55 00:03:08,560 --> 00:03:12,080 Speaker 3: say certain things to your patient or penitent, but you 56 00:03:12,160 --> 00:03:16,040 Speaker 3: can't say certain other things. And how does the government 57 00:03:16,600 --> 00:03:21,280 Speaker 3: surveil these things? How does the government know what happens 58 00:03:21,320 --> 00:03:24,320 Speaker 3: in these private conversations. I mean, this is a can 59 00:03:24,440 --> 00:03:29,240 Speaker 3: of worms that Colorado opened up. And in my view, 60 00:03:29,880 --> 00:03:32,000 Speaker 3: the court absolutely did the right thing. 61 00:03:32,000 --> 00:03:34,960 Speaker 2: And so they remanded down to the lower court for 62 00:03:35,000 --> 00:03:38,600 Speaker 2: the application of what we call strict scrutiny. Right, you're 63 00:03:38,600 --> 00:03:41,200 Speaker 2: allowed to intrude on certain constitutional rights. As long as 64 00:03:41,240 --> 00:03:44,400 Speaker 2: the law is narrowly tailored and is designed to serve 65 00:03:44,440 --> 00:03:46,880 Speaker 2: a government's significant interest, that it's to be the very 66 00:03:46,960 --> 00:03:49,240 Speaker 2: narrowly tailed. They can't pass that standard on a lower 67 00:03:49,280 --> 00:03:49,680 Speaker 2: court here. 68 00:03:49,760 --> 00:03:53,119 Speaker 3: Now, no, no, no, no. The government's need must be compelling. 69 00:03:53,320 --> 00:03:56,800 Speaker 3: There's no compelling state interest here, and the means used 70 00:03:56,840 --> 00:04:00,680 Speaker 3: to address the compelling state interest must be the least restrictive. 71 00:04:01,680 --> 00:04:05,280 Speaker 3: This is the opposite. This is not a compelling issue. 72 00:04:05,320 --> 00:04:09,280 Speaker 3: This is a social issue, apparently in Colorado, and the 73 00:04:09,360 --> 00:04:12,440 Speaker 3: means are not the least restrictive, they're the most restrictive. 74 00:04:12,600 --> 00:04:16,320 Speaker 3: So this thing is dead in the water. I was 75 00:04:16,360 --> 00:04:19,360 Speaker 3: surprised they sent it back for this analysis. I would 76 00:04:19,360 --> 00:04:25,920 Speaker 3: have just invalidated it. But again they're following very very 77 00:04:26,279 --> 00:04:33,279 Speaker 3: traditional Supreme Court jurisprudence. If the issue was not raised 78 00:04:33,360 --> 00:04:39,640 Speaker 3: below strict scrutiny and least restrictive alternative, the losing side 79 00:04:39,640 --> 00:04:42,720 Speaker 3: should be given an opportunity to address it, even if 80 00:04:42,760 --> 00:04:45,720 Speaker 3: they lost at the Supreme Court. So that's what they're thinking. 81 00:04:45,560 --> 00:04:49,719 Speaker 2: Was fair enough and pivoting over to today oral arguments on 82 00:04:49,760 --> 00:04:52,719 Speaker 2: basically on the Fourteenth Amendment, ratified after the Civil War, 83 00:04:52,800 --> 00:04:55,400 Speaker 2: all persons born are naturalized in the United States and 84 00:04:55,440 --> 00:04:58,719 Speaker 2: subject to the jurisdiction thereof are citizens of the United States. 85 00:04:58,920 --> 00:05:01,120 Speaker 2: In the aftermath of the slaveh being freed, you couldn't 86 00:05:01,160 --> 00:05:03,800 Speaker 2: exclude them from being a citizen merely because their parents 87 00:05:03,839 --> 00:05:07,960 Speaker 2: were not citizens. Does this language confer us citizenship on 88 00:05:08,040 --> 00:05:11,520 Speaker 2: babies whose parents are in the country illegally or temporarily? 89 00:05:11,640 --> 00:05:14,599 Speaker 2: Judgenna Polaitano, I'm of the mind that the Supreme Court 90 00:05:14,680 --> 00:05:16,360 Speaker 2: is going to keep the status quo, which has been 91 00:05:16,520 --> 00:05:18,880 Speaker 2: around for one hundred and fifty or so years, based 92 00:05:18,920 --> 00:05:23,000 Speaker 2: on an early Supreme Court case involving a Chinese a 93 00:05:23,080 --> 00:05:25,760 Speaker 2: child of a Chinese immigrant immigrant family out in California. 94 00:05:25,760 --> 00:05:27,320 Speaker 2: I guess they came here to work on the railroad 95 00:05:27,400 --> 00:05:29,279 Speaker 2: or something. But the child was born in the United 96 00:05:29,320 --> 00:05:32,599 Speaker 2: States asserted his right to citizenship, and the Court found it. Yes, 97 00:05:32,600 --> 00:05:34,560 Speaker 2: in fact, that man was a citizen. And do you 98 00:05:34,600 --> 00:05:35,960 Speaker 2: think that's going to change your honor? 99 00:05:36,600 --> 00:05:38,440 Speaker 3: No, I don't think it's going to change. I think 100 00:05:38,480 --> 00:05:40,960 Speaker 3: you're one hundred percent to correct. I am going to 101 00:05:40,960 --> 00:05:44,760 Speaker 3: look at the Chief Justice and Justice Gorsic, because I 102 00:05:44,800 --> 00:05:48,280 Speaker 3: think I know where justice is. Alito, Thomas and Kavanaugh 103 00:05:48,279 --> 00:05:55,919 Speaker 3: are and I think I know where Justice is Kagan, Barrett, 104 00:05:56,800 --> 00:06:00,520 Speaker 3: and Jackson are, but I don't know where the Chief 105 00:06:00,680 --> 00:06:05,120 Speaker 3: and Justice gorst jar And depending upon how aggressive their 106 00:06:05,240 --> 00:06:10,640 Speaker 3: questioning is and to whom that aggression is aimed, will 107 00:06:10,640 --> 00:06:12,680 Speaker 3: give us an indication of which way they're going to go. 108 00:06:12,760 --> 00:06:16,799 Speaker 3: But look, in all the interpretations of the fourteenth Amendment, 109 00:06:16,920 --> 00:06:21,200 Speaker 3: only one said the person was not a citizen, and 110 00:06:21,320 --> 00:06:26,239 Speaker 3: that person was born on tribal lands at a time 111 00:06:26,320 --> 00:06:31,479 Speaker 3: when the tribes were considered a foreign country rather than 112 00:06:31,760 --> 00:06:36,640 Speaker 3: American citizens, And Congress corrected that with a statute. The 113 00:06:36,800 --> 00:06:41,480 Speaker 3: Justice who wrote that opinion himself attempted to correct it 114 00:06:41,640 --> 00:06:46,280 Speaker 3: in a subsequent opinion. So the Trump administration really has 115 00:06:47,400 --> 00:06:51,279 Speaker 3: no solid jurisprudence on which the stand. You know what 116 00:06:51,320 --> 00:06:56,200 Speaker 3: they've done. They quoted some southern white racists in the 117 00:06:56,240 --> 00:06:59,720 Speaker 3: post World War two excuse me, in the post Civil 118 00:06:59,760 --> 00:07:05,400 Speaker 3: War era who said in state legislatures, it's reprehensible that 119 00:07:05,440 --> 00:07:08,880 Speaker 3: they quoted these people, but they did. We're voting for 120 00:07:08,920 --> 00:07:14,880 Speaker 3: this because it's limited to making former slaves into citizens. 121 00:07:14,920 --> 00:07:16,520 Speaker 3: I mean, this is going to land like a lead 122 00:07:16,560 --> 00:07:21,040 Speaker 3: balloon in my view at the Supreme Court. It doesn't 123 00:07:21,120 --> 00:07:27,240 Speaker 3: say all persons formerly held in bondage. It says all persons, yes, 124 00:07:27,360 --> 00:07:30,240 Speaker 3: born in the United States are citizens. 125 00:07:30,320 --> 00:07:32,480 Speaker 2: Yeah, there's no way around the language. I'll agree with 126 00:07:32,520 --> 00:07:34,480 Speaker 2: you on that. And there seems to be some debate 127 00:07:34,520 --> 00:07:40,240 Speaker 2: over what subject to the jurisdiction thereof persons that that's 128 00:07:40,280 --> 00:07:43,360 Speaker 2: somehow is a carve out or something. But I always 129 00:07:43,360 --> 00:07:47,760 Speaker 2: thought that that was meant for folks working in embassies. 130 00:07:47,840 --> 00:07:49,560 Speaker 2: You know, the embassy is getting in the property of 131 00:07:49,720 --> 00:07:49,920 Speaker 2: this is. 132 00:07:49,920 --> 00:07:52,000 Speaker 3: A car But the Supreme Court has held that there's 133 00:07:52,040 --> 00:07:56,440 Speaker 3: two carve outs. One an invader, a female invader, or 134 00:07:56,520 --> 00:07:59,280 Speaker 3: the spouse of an invader who happens to give birth 135 00:07:59,320 --> 00:08:02,480 Speaker 3: here during the invasion. The baby's not an American citizens 136 00:08:02,480 --> 00:08:04,520 Speaker 3: as far as I know, that has never happened. At 137 00:08:04,600 --> 00:08:08,120 Speaker 3: least if it has happened, that person hasn't claimed citizenship 138 00:08:08,120 --> 00:08:10,640 Speaker 3: and the courts haven't ruled on that claim. And then 139 00:08:10,680 --> 00:08:13,360 Speaker 3: the other is an embassy worker because they are not 140 00:08:14,160 --> 00:08:18,840 Speaker 3: subject to the jurisdiction of the United States government when 141 00:08:18,840 --> 00:08:22,280 Speaker 3: they are on their embassy property. Those are the only 142 00:08:22,360 --> 00:08:26,920 Speaker 3: two exceptions. The Trump administration says, well, if a mother 143 00:08:27,000 --> 00:08:30,360 Speaker 3: comes across the border just to give birth, she is 144 00:08:30,400 --> 00:08:33,280 Speaker 3: not subject to the jurisdiction of the government because her 145 00:08:33,360 --> 00:08:37,280 Speaker 3: and the baby's father are loyal to the country from 146 00:08:37,280 --> 00:08:39,640 Speaker 3: which they came. This is not about loyalty, This is 147 00:08:39,640 --> 00:08:42,679 Speaker 3: about who's are they subject to the jurisdiction of the 148 00:08:42,800 --> 00:08:45,520 Speaker 3: US giving birth in an American hospital. 149 00:08:45,559 --> 00:08:47,520 Speaker 2: Of course they are right, And I know you're going 150 00:08:47,559 --> 00:08:48,920 Speaker 2: to say that, And I'm glad you brought up that 151 00:08:48,960 --> 00:08:52,080 Speaker 2: specific point because a lot of my listeners and even 152 00:08:52,160 --> 00:08:55,559 Speaker 2: I do not like the concept of birth tourism. There's 153 00:08:55,600 --> 00:08:58,120 Speaker 2: something nefarious about if they have no intention of living here. 154 00:08:58,160 --> 00:09:01,480 Speaker 2: They're not looking for to become US citizens, the parents themselves. 155 00:09:01,800 --> 00:09:05,760 Speaker 2: It's like the Chinese Communist Party has has provided a 156 00:09:05,800 --> 00:09:08,320 Speaker 2: facilitation for all of this. They come here with the 157 00:09:08,320 --> 00:09:10,480 Speaker 2: pregnant woman, they give birth, they hang out for a 158 00:09:10,480 --> 00:09:12,560 Speaker 2: few years of American education, they both go they all 159 00:09:12,600 --> 00:09:15,439 Speaker 2: go back to China. I supposed to get indoctrinated. Now, 160 00:09:15,480 --> 00:09:18,400 Speaker 2: what is the remedy for that? If that is in 161 00:09:18,440 --> 00:09:21,520 Speaker 2: fact a problem that's worthy of dealing with. Is this 162 00:09:21,800 --> 00:09:24,640 Speaker 2: a constitutional amendment to the fourteenth Amendment? Is it laws 163 00:09:24,640 --> 00:09:27,280 Speaker 2: that can be passed which would be argued to be unconstitutional? 164 00:09:27,280 --> 00:09:28,199 Speaker 2: How do you go about this? 165 00:09:28,840 --> 00:09:32,160 Speaker 3: The Supreme Court ruled in a case called po versus Texas, 166 00:09:32,840 --> 00:09:36,600 Speaker 3: in which the state of Texas enacted legislation that said, 167 00:09:36,679 --> 00:09:39,720 Speaker 3: if you are here illegally, you are not entitled to 168 00:09:40,679 --> 00:09:45,400 Speaker 3: free education, You are not entitled to welfare. You are 169 00:09:45,440 --> 00:09:48,840 Speaker 3: not even entitled to go into emergency rooms. You have 170 00:09:48,920 --> 00:09:54,080 Speaker 3: no rights, no entitlements whatsoever. That that law was never enforced. 171 00:09:54,080 --> 00:09:56,600 Speaker 3: It was enjoined by a federal judge, and the Supreme 172 00:09:56,640 --> 00:09:59,880 Speaker 3: Court basically said, if you give your citizens these base 173 00:10:00,080 --> 00:10:04,079 Speaker 3: sick social safety net standards, you have to give them 174 00:10:04,080 --> 00:10:06,280 Speaker 3: to everybody. That would have to be changed, and it 175 00:10:06,280 --> 00:10:09,520 Speaker 3: can only be changed by a constitutional amendment. So when 176 00:10:09,520 --> 00:10:14,000 Speaker 3: there is no longer a financial incentive for birth tourism, 177 00:10:14,480 --> 00:10:16,400 Speaker 3: birth tourism will go way down. 178 00:10:17,400 --> 00:10:19,559 Speaker 2: Fair enough well by you and I are eyed eye 179 00:10:19,640 --> 00:10:20,320 Speaker 2: on that one too. 180 00:10:21,080 --> 00:10:27,800 Speaker 3: Yeah, I understand. I understand how people are aggravated at 181 00:10:27,840 --> 00:10:33,800 Speaker 3: birth tourism and rejoiced in President Trump's executive order and 182 00:10:34,640 --> 00:10:37,880 Speaker 3: hopes that he prevails. You know, the other issue is, 183 00:10:37,920 --> 00:10:39,480 Speaker 3: I don't even know if they're going to address this. 184 00:10:40,240 --> 00:10:43,119 Speaker 3: The president is not in the business of interpreting the constitution, 185 00:10:43,280 --> 00:10:44,319 Speaker 3: only the courts. 186 00:10:44,040 --> 00:10:47,880 Speaker 2: Are well, just because he wants it. And just because 187 00:10:47,880 --> 00:10:50,480 Speaker 2: he issues an executi voter doesn't mean that's the final 188 00:10:50,520 --> 00:10:53,000 Speaker 2: word on it as which is why they're going to 189 00:10:53,040 --> 00:10:55,520 Speaker 2: be arguing this in the Supreme Court this morning or 190 00:10:55,559 --> 00:10:57,000 Speaker 2: today correct. 191 00:10:56,600 --> 00:10:58,520 Speaker 3: And you know he's going to be there seated in 192 00:10:58,559 --> 00:11:00,360 Speaker 3: the in the first row. I don't think that's going 193 00:11:00,400 --> 00:11:01,360 Speaker 3: to affect the outcome. 194 00:11:01,520 --> 00:11:02,079 Speaker 2: No, it won't. 195 00:11:02,600 --> 00:11:04,960 Speaker 3: But the last time a president was in the Supreme 196 00:11:05,040 --> 00:11:09,160 Speaker 3: Court was before he was president, Richard Nixon, when he 197 00:11:09,240 --> 00:11:13,800 Speaker 3: was a private lawyer, after he left a vice presidency, 198 00:11:14,600 --> 00:11:17,640 Speaker 3: after he was defeated for president, after he was defeated 199 00:11:17,640 --> 00:11:20,480 Speaker 3: for governor of California, moved to New York and practiced law, 200 00:11:20,960 --> 00:11:24,400 Speaker 3: and he argued a very famous case called Time against Hill. 201 00:11:24,480 --> 00:11:29,760 Speaker 3: It's a very famous defamation case. He lost the case, 202 00:11:29,880 --> 00:11:33,319 Speaker 3: but he gave what is known to law students and 203 00:11:33,440 --> 00:11:37,040 Speaker 3: lawyers as a brilliant oral argument. But he was not 204 00:11:37,080 --> 00:11:39,720 Speaker 3: the president. He was about to become the president. 205 00:11:39,840 --> 00:11:42,040 Speaker 2: Yeah, he's not remembered for that, though, your honor. 206 00:11:42,480 --> 00:11:45,560 Speaker 3: No, he's not not at all. 207 00:11:46,480 --> 00:11:49,880 Speaker 2: I know you are a devoutly religious man of the 208 00:11:49,920 --> 00:11:53,120 Speaker 2: Catholic faith, and it's obviously came through very clearly in 209 00:11:53,160 --> 00:11:55,040 Speaker 2: your op ed piece. Which all encourage my listeners to 210 00:11:55,040 --> 00:11:57,320 Speaker 2: get a copy of it. It's a caption Hope for 211 00:11:57,559 --> 00:11:59,800 Speaker 2: the Dead. I just wanted to with that predicate one 212 00:11:59,840 --> 00:12:01,760 Speaker 2: of the wish you a very happy Easter. I know 213 00:12:01,800 --> 00:12:06,600 Speaker 2: you'll be celebrating the on Sunday, and I hope you 214 00:12:06,600 --> 00:12:08,560 Speaker 2: have great weather. I hope you and your loved ones 215 00:12:08,559 --> 00:12:10,400 Speaker 2: all have a fantastic time and well. 216 00:12:10,520 --> 00:12:14,120 Speaker 3: Thank you, and the same to you and to Ingram, 217 00:12:14,160 --> 00:12:16,959 Speaker 3: and to Streker, and to the young man that fills 218 00:12:17,040 --> 00:12:19,520 Speaker 3: in for Strekker, and to your family. Send to your. 219 00:12:19,440 --> 00:12:22,240 Speaker 2: Listeners, thank you your honorable talk next week. Enjoy your 220 00:12:22,240 --> 00:12:25,640 Speaker 2: holiday weekend, sir, Thank you, Brian, all the best, my pleasure. 221 00:12:25,679 --> 00:12:28,040 Speaker 2: It's eight forty two right now, fifty five KRCD Talk stations. 222 00:12:28,040 --> 00:12:30,560 Speaker 2: They'll go away. You're right back, fifty five KRC