1 00:00:00,640 --> 00:00:04,560 Speaker 1: Hi, I'm Molly John Fast and this is Fast Politics. Well, 2 00:00:04,600 --> 00:00:07,640 Speaker 1: we discussed the top political headlines with some of today's 3 00:00:07,680 --> 00:00:08,680 Speaker 1: best minds. 4 00:00:08,760 --> 00:00:10,920 Speaker 2: We're on vacation, but that doesn't mean we don't have 5 00:00:10,960 --> 00:00:13,160 Speaker 2: a great show for you today. Peter Sham Sherry and 6 00:00:13,160 --> 00:00:15,680 Speaker 2: Michael Grew of the podcast five four stop by to 7 00:00:15,680 --> 00:00:17,680 Speaker 2: tell us what they are seeing from the Supreme Court 8 00:00:17,720 --> 00:00:20,439 Speaker 2: this session. But first we'll talk to author and historian 9 00:00:20,520 --> 00:00:23,480 Speaker 2: Mary Ziegler about the coming year reproductive rights. 10 00:00:23,760 --> 00:00:27,960 Speaker 3: Welcome back to Fast Politics, Mary Ziggler, Thanks for having me. 11 00:00:28,440 --> 00:00:30,680 Speaker 1: One of the things that I think is so interesting 12 00:00:30,800 --> 00:00:33,120 Speaker 1: is the first Trump administration. They tried to do a 13 00:00:33,159 --> 00:00:35,879 Speaker 1: lot of stuff and they had no legal framework, but 14 00:00:36,520 --> 00:00:40,800 Speaker 1: it didn't much matter because they couldn't you know, they 15 00:00:40,840 --> 00:00:43,159 Speaker 1: just kept losing in court, right because they had no 16 00:00:43,240 --> 00:00:47,239 Speaker 1: legal framework. They were unable to make the sale on 17 00:00:47,280 --> 00:00:50,040 Speaker 1: a lot of these policies and they never really got 18 00:00:50,200 --> 00:00:53,519 Speaker 1: up to the Supreme Court. Now, over the last four years, 19 00:00:53,920 --> 00:00:57,840 Speaker 1: I feel like Trump world has found all of these 20 00:00:57,960 --> 00:01:04,080 Speaker 1: different ways to sell some of their ideas and they're 21 00:01:04,720 --> 00:01:08,320 Speaker 1: kind of these Victorian era laws that were never taken 22 00:01:08,360 --> 00:01:09,000 Speaker 1: off the books. 23 00:01:09,480 --> 00:01:10,080 Speaker 3: Is that right? 24 00:01:10,440 --> 00:01:12,880 Speaker 4: That's right? I mean so I think there was obviously 25 00:01:12,959 --> 00:01:16,800 Speaker 4: a moment when people in the anti abortion movement believed 26 00:01:16,840 --> 00:01:19,680 Speaker 4: that they could get policies at the federal level like 27 00:01:19,720 --> 00:01:22,480 Speaker 4: the ones they were getting at the state level, especially 28 00:01:22,560 --> 00:01:26,160 Speaker 4: for Republicans controlled the Congress, right and you know, a 29 00:01:26,240 --> 00:01:29,880 Speaker 4: write to conception acts, fifteen week bans, and I think 30 00:01:29,959 --> 00:01:32,880 Speaker 4: increasingly people in the anti abortion movement realized that voters 31 00:01:33,240 --> 00:01:36,959 Speaker 4: would hate that, and that as a result, Republican politicians 32 00:01:36,959 --> 00:01:40,160 Speaker 4: and competitive districts are not likely to go with that route. 33 00:01:40,240 --> 00:01:44,080 Speaker 4: So these laws became really compelling because one they didn't 34 00:01:44,160 --> 00:01:47,880 Speaker 4: require lawmakers to do anything, and two they sort of 35 00:01:47,920 --> 00:01:50,920 Speaker 4: allowed lawmakers to pass the buck and say, we're not 36 00:01:51,200 --> 00:01:56,760 Speaker 4: actually passing these laws, We're just allowing prosecutors who are 37 00:01:56,840 --> 00:02:01,840 Speaker 4: nominally independent, that discretion to force the law, right. 38 00:02:01,760 --> 00:02:04,560 Speaker 3: To enforce a law that hasn't been enforced in one 39 00:02:04,640 --> 00:02:05,520 Speaker 3: hundred years. 40 00:02:05,720 --> 00:02:08,000 Speaker 4: Yeah, So it became this sort of if you think 41 00:02:08,040 --> 00:02:11,880 Speaker 4: sometimes about how Trump will talk about Tom Bondi, it's 42 00:02:11,919 --> 00:02:14,600 Speaker 4: often I'm not going to tell her what to do. 43 00:02:14,720 --> 00:02:18,560 Speaker 4: She'll be making these decisions independently. And anti abortion groups 44 00:02:18,560 --> 00:02:21,080 Speaker 4: followed that up by saying, it's just the rule of law. 45 00:02:21,840 --> 00:02:24,000 Speaker 4: Of course, it's not just the rule of law, because 46 00:02:24,080 --> 00:02:27,480 Speaker 4: the interpretation of these zombie laws is often not actually 47 00:02:27,560 --> 00:02:30,720 Speaker 4: what courts have ever thought they mean. It's making new 48 00:02:30,760 --> 00:02:34,480 Speaker 4: stuff up, and two it's enforcing laws no one actually 49 00:02:34,520 --> 00:02:39,960 Speaker 4: remembered existed in ways they're ever enforced. So it's definitely 50 00:02:40,000 --> 00:02:43,760 Speaker 4: not just rule of law or prosecutorial discretion. But that's 51 00:02:43,800 --> 00:02:46,040 Speaker 4: the kind of argument we're going to hear, right, right. 52 00:02:46,000 --> 00:02:50,080 Speaker 1: Right, So explain to us a little bit about some 53 00:02:50,160 --> 00:02:51,080 Speaker 1: of these zombie laws. 54 00:02:51,240 --> 00:02:52,320 Speaker 3: Let's start with Comstock. 55 00:02:52,720 --> 00:02:55,920 Speaker 4: Yeah, Clemstock's the most important. It was in eighteen seventy 56 00:02:55,960 --> 00:02:59,919 Speaker 4: three obscenity law, and abortion made its way into this 57 00:03:00,080 --> 00:03:03,320 Speaker 4: law because the people who framed it saw abortion and 58 00:03:03,400 --> 00:03:06,480 Speaker 4: contraception and other drugs that were sort of ambiguous in 59 00:03:06,520 --> 00:03:09,560 Speaker 4: terms of how they worked, like period regulators, as the 60 00:03:09,639 --> 00:03:12,200 Speaker 4: sort of thing that made it easier for people to 61 00:03:12,280 --> 00:03:16,400 Speaker 4: have illicit sex because they worry about getting pregnant. So 62 00:03:16,520 --> 00:03:19,440 Speaker 4: even though the statue was really about obsession with sex, 63 00:03:19,480 --> 00:03:22,360 Speaker 4: it didn't have anything to do with fetal protection, abortion 64 00:03:22,520 --> 00:03:25,640 Speaker 4: still made its way into the statute, along with any 65 00:03:25,680 --> 00:03:28,959 Speaker 4: other item for indecent or immoral use, whatever that means. 66 00:03:29,320 --> 00:03:32,480 Speaker 4: So anti abortion groups have basically cherry picked the abortion 67 00:03:32,720 --> 00:03:35,680 Speaker 4: language out of this statue to say, this is a 68 00:03:35,720 --> 00:03:41,920 Speaker 4: ban on mailing any abortion related drug or paraphernalia that 69 00:03:42,400 --> 00:03:45,560 Speaker 4: is federal right, and not just mailing it, receiving it, 70 00:03:45,880 --> 00:03:50,240 Speaker 4: ordering it online. That would apply to anybody in any state, 71 00:03:50,320 --> 00:03:52,800 Speaker 4: even a state with a balid initiative that passed, even 72 00:03:52,800 --> 00:03:56,640 Speaker 4: a blue state. So if courts buy this argument, and 73 00:03:56,680 --> 00:04:00,280 Speaker 4: it would have and if the Trump administration enforces the lawnay, 74 00:04:00,280 --> 00:04:03,000 Speaker 4: it would have incredibly sweeping effects because it would affect 75 00:04:03,040 --> 00:04:04,400 Speaker 4: everyone across the country. 76 00:04:04,680 --> 00:04:07,080 Speaker 3: Okay, so what it would do. 77 00:04:07,840 --> 00:04:09,800 Speaker 1: I want you to talk from a minute about these 78 00:04:09,880 --> 00:04:14,360 Speaker 1: Victorian obscenity laws. Since you are both a legal historian 79 00:04:14,640 --> 00:04:18,080 Speaker 1: and a legal historian, can you give us a little 80 00:04:18,120 --> 00:04:20,760 Speaker 1: backstory on sort of how they came to be. 81 00:04:21,279 --> 00:04:24,640 Speaker 4: Yeah, well, there was a lot of anxiety that these 82 00:04:24,760 --> 00:04:29,320 Speaker 4: conservative Christian activists at the time had about sex and 83 00:04:29,400 --> 00:04:31,719 Speaker 4: the city literally, so they were this was the moment 84 00:04:31,760 --> 00:04:34,720 Speaker 4: where there's a lot of urbanization and immigration and a 85 00:04:34,839 --> 00:04:39,279 Speaker 4: fear that young men were being kind of corrupted, that 86 00:04:39,440 --> 00:04:42,520 Speaker 4: children were being corrupted, and that women were being corrupted 87 00:04:42,560 --> 00:04:45,680 Speaker 4: because they were choosing to leave the home, leave their 88 00:04:45,720 --> 00:04:50,080 Speaker 4: rightful roles as mothers and wives, and so the idea 89 00:04:50,240 --> 00:04:54,599 Speaker 4: was you could purify the country by controlling not just 90 00:04:54,720 --> 00:04:57,480 Speaker 4: when people had sex, but what people actually read it 91 00:04:57,520 --> 00:05:01,240 Speaker 4: and thought. So the Comstock Act part of that push. 92 00:05:01,600 --> 00:05:05,200 Speaker 4: It was an overtly Christian movement too. This was at 93 00:05:05,200 --> 00:05:07,320 Speaker 4: a time when many of the figures who were behind 94 00:05:07,320 --> 00:05:09,520 Speaker 4: this law were also trying to write an amendment to 95 00:05:09,600 --> 00:05:13,520 Speaker 4: the Constitution stating that the US was a Christian huntry 96 00:05:13,520 --> 00:05:17,280 Speaker 4: with a Christian constitution. But it was also a really 97 00:05:17,600 --> 00:05:21,120 Speaker 4: important moment in a creation of a surveillance state, because 98 00:05:21,160 --> 00:05:23,400 Speaker 4: if you think about it, this was the federal government 99 00:05:23,400 --> 00:05:26,640 Speaker 4: getting into everybody's sex lives at a time when there 100 00:05:26,720 --> 00:05:29,559 Speaker 4: was no internet, no data collection, and so it really 101 00:05:29,600 --> 00:05:34,719 Speaker 4: spawned this massive network of snitches and bounty hunters and 102 00:05:34,800 --> 00:05:39,400 Speaker 4: catfishers who used this law to go after people, along 103 00:05:39,440 --> 00:05:41,440 Speaker 4: with other people who just used the law to get 104 00:05:41,520 --> 00:05:45,159 Speaker 4: revengish on people they didn't like. So it was sort 105 00:05:45,160 --> 00:05:49,080 Speaker 4: of authorizing a lot of really nasty starting behavior. So 106 00:05:49,160 --> 00:05:51,000 Speaker 4: we would expect to see that come back if the 107 00:05:51,040 --> 00:05:51,880 Speaker 4: laws used again. 108 00:05:52,279 --> 00:05:56,480 Speaker 1: Yeah, so I have a theory about these Victorian laws. 109 00:05:56,680 --> 00:05:59,960 Speaker 1: If you think about Jim Crow, which is not Victoria 110 00:06:00,200 --> 00:06:01,520 Speaker 1: is later than the Victorian era. 111 00:06:01,600 --> 00:06:02,200 Speaker 3: But I think it. 112 00:06:02,200 --> 00:06:05,720 Speaker 1: Speaks to this idea America was able to craft some 113 00:06:05,800 --> 00:06:10,320 Speaker 1: of the really the worst, most racist, most heinous legislation 114 00:06:11,160 --> 00:06:14,800 Speaker 1: in the period from the Victorian era, I mean even 115 00:06:14,839 --> 00:06:17,799 Speaker 1: before that, but some of the legislation that was passing 116 00:06:17,880 --> 00:06:23,360 Speaker 1: this country would so incredibly heinous that it was the 117 00:06:23,400 --> 00:06:24,920 Speaker 1: model for the Nuremberg Laws. 118 00:06:25,080 --> 00:06:27,480 Speaker 3: So can you talk about that a little bit, Yeah. 119 00:06:27,360 --> 00:06:29,400 Speaker 4: I mean the Comstock Act became a model for a 120 00:06:29,400 --> 00:06:31,640 Speaker 4: lot of things. It was a model to begin with 121 00:06:31,680 --> 00:06:34,279 Speaker 4: for state Comstock acts. So one of the kind of 122 00:06:34,320 --> 00:06:37,159 Speaker 4: morifying things about this story is that I don't even 123 00:06:37,200 --> 00:06:41,120 Speaker 4: think states know what Comstock acts they have. They're often 124 00:06:41,200 --> 00:06:44,360 Speaker 4: even more invasive than the regular old Constock Act. Like 125 00:06:44,400 --> 00:06:47,640 Speaker 4: a lot of them prohibit possession and use of birth control, 126 00:06:47,720 --> 00:06:49,719 Speaker 4: for example, and no one has really thought about it 127 00:06:49,720 --> 00:06:51,840 Speaker 4: because they haven't been enforced, but some of them are 128 00:06:52,160 --> 00:06:55,599 Speaker 4: still sitting there on the books. And the Comstock Act 129 00:06:55,640 --> 00:06:59,400 Speaker 4: also became a model for a lot of later invasive 130 00:06:59,680 --> 00:07:03,279 Speaker 4: law enforcement techniques that we see used to entrap a 131 00:07:03,279 --> 00:07:06,800 Speaker 4: lot of other people, people for example, who are queer. 132 00:07:07,120 --> 00:07:11,080 Speaker 4: So the Comstock Act became a blueprint for a lot 133 00:07:11,120 --> 00:07:14,960 Speaker 4: of things that we don't like the look of Another 134 00:07:15,040 --> 00:07:17,360 Speaker 4: thing that's really important about the Comstock Act was that 135 00:07:17,400 --> 00:07:20,880 Speaker 4: it wasn't used just to censor sex and reproduction. There's 136 00:07:20,920 --> 00:07:23,920 Speaker 4: also used to sensor speech. As you can imagine, it 137 00:07:24,000 --> 00:07:26,800 Speaker 4: was really hard to enforce the Comstock Act. Like of 138 00:07:26,800 --> 00:07:29,480 Speaker 4: course people were doing all the things the Comstock Act city, 139 00:07:29,480 --> 00:07:31,760 Speaker 4: you couldn't do all the time without getting caught. So 140 00:07:32,080 --> 00:07:34,800 Speaker 4: a lot of the people who were invested in it, 141 00:07:34,880 --> 00:07:38,280 Speaker 4: like Anthony Comstock, tended to go after their political critics 142 00:07:38,480 --> 00:07:41,239 Speaker 4: and not just for you know, what they were doing, 143 00:07:41,280 --> 00:07:45,080 Speaker 4: but what they were saying for criticizing the Comstock Act. 144 00:07:45,360 --> 00:07:49,120 Speaker 4: So it's a reminder that this is obviously has a 145 00:07:49,120 --> 00:07:52,160 Speaker 4: lot of present day residents that civil liberties and free 146 00:07:52,160 --> 00:07:54,840 Speaker 4: speech are not sort of hived off from reproductive rights 147 00:07:54,880 --> 00:07:57,400 Speaker 4: in any kind of meaningful way. They tend to travel together, 148 00:07:57,480 --> 00:07:59,960 Speaker 4: and that was definitely true in the Comstock Hera too. 149 00:08:00,320 --> 00:08:02,840 Speaker 1: One of the things when you look at these old laws, 150 00:08:03,000 --> 00:08:07,080 Speaker 1: and I'm hoping we can talk now about the Alien 151 00:08:07,240 --> 00:08:10,400 Speaker 1: Insurrection Act, so a lot of these laws are like 152 00:08:10,440 --> 00:08:14,280 Speaker 1: grouped together by time, you know. So the Alien Insurrection 153 00:08:14,400 --> 00:08:17,440 Speaker 1: Act starts in the War of eighteen twelve, right around 154 00:08:17,520 --> 00:08:18,840 Speaker 1: then is the first time it's used. 155 00:08:18,920 --> 00:08:19,600 Speaker 3: It's used to. 156 00:08:19,600 --> 00:08:21,880 Speaker 1: Go after the British, but it has that same kind 157 00:08:22,040 --> 00:08:26,280 Speaker 1: of speech thing. Can you talk about the speech thing? 158 00:08:26,840 --> 00:08:30,160 Speaker 1: In that law? They have alien enemies that are from 159 00:08:30,200 --> 00:08:33,920 Speaker 1: the countries that are supposedly the countries at war with 160 00:08:34,040 --> 00:08:38,040 Speaker 1: so the British and War of eighteen twelve, or Germans 161 00:08:38,080 --> 00:08:41,199 Speaker 1: during World War one and two, or Japanese during World 162 00:08:41,200 --> 00:08:44,160 Speaker 1: War two, which was the thesis for those internment camps. 163 00:08:44,200 --> 00:08:48,720 Speaker 1: But there is also another section in the Alien Enemies 164 00:08:48,760 --> 00:08:51,480 Speaker 1: Act of people who are journalists. 165 00:08:51,520 --> 00:08:54,959 Speaker 4: Basically, yeah, I mean, so there's provisions of the Insurrection 166 00:08:55,080 --> 00:08:58,040 Speaker 4: Act that allow the president to deploy troops even if 167 00:08:58,080 --> 00:09:00,240 Speaker 4: states don't request them. I mean, it makes sense. Parts 168 00:09:00,240 --> 00:09:02,720 Speaker 4: of it make more sense if states actually are being 169 00:09:02,760 --> 00:09:05,720 Speaker 4: invaded and they can't use their own troops, they ask 170 00:09:05,800 --> 00:09:08,280 Speaker 4: the president for help. That makes sense. But they're parts 171 00:09:08,280 --> 00:09:10,840 Speaker 4: of the law that allow the president to deploy troops 172 00:09:11,040 --> 00:09:17,400 Speaker 4: against the states wishes when there are things like unlawful obstructions, combinations, assemblages, 173 00:09:17,520 --> 00:09:20,960 Speaker 4: or rebellion that make it impossible to enforce federal law. 174 00:09:21,200 --> 00:09:24,760 Speaker 4: And of course part of the fear is that the 175 00:09:25,679 --> 00:09:29,640 Speaker 4: term assemblages, right or could be something that could be 176 00:09:29,720 --> 00:09:34,520 Speaker 4: used just against protesters or journalists. Right, absolutely, yeah, especially 177 00:09:34,760 --> 00:09:37,440 Speaker 4: so there's some fear that this could be used in 178 00:09:37,520 --> 00:09:41,200 Speaker 4: ways that it hasn't been used before. It's also not 179 00:09:41,400 --> 00:09:45,320 Speaker 4: clear who gets to decide. The Supreme Court seems to 180 00:09:45,360 --> 00:09:49,160 Speaker 4: think that the president alone really is the one that 181 00:09:49,240 --> 00:09:51,920 Speaker 4: gets to decide, even though courts have sort of later 182 00:09:52,000 --> 00:09:55,439 Speaker 4: suggested that they can review whether the military did something 183 00:09:55,520 --> 00:09:58,320 Speaker 4: lawful after the fact. That might not be much of 184 00:09:58,360 --> 00:09:58,839 Speaker 4: a check. 185 00:10:01,080 --> 00:10:03,600 Speaker 3: That's like the understatement of the year. 186 00:10:04,000 --> 00:10:07,000 Speaker 1: What happens, So let's just talk for another minute about 187 00:10:07,080 --> 00:10:11,200 Speaker 1: zombie laws. So what's going to happen? Firdsting's first Alien 188 00:10:11,280 --> 00:10:13,280 Speaker 1: Insurrection Act I think is going to get the most 189 00:10:13,280 --> 00:10:17,040 Speaker 1: play because as much as Trump wants to use Comstock, 190 00:10:17,240 --> 00:10:20,280 Speaker 1: Trump is not an anti choice Zalad the way a lot. 191 00:10:20,160 --> 00:10:21,199 Speaker 3: Of people in the party are. 192 00:10:21,320 --> 00:10:23,839 Speaker 1: So I think a more likely scenario as we start 193 00:10:23,880 --> 00:10:27,440 Speaker 1: with alien enemies, so he's going to have to declare 194 00:10:27,840 --> 00:10:29,360 Speaker 1: war with Mexico. 195 00:10:29,160 --> 00:10:32,920 Speaker 4: Right, potentially, I mean it could come up even with protests, right, 196 00:10:32,960 --> 00:10:35,440 Speaker 4: I mean, I think one of the more likely ways. 197 00:10:35,720 --> 00:10:38,200 Speaker 4: He's hinted it. Lots of different ways he might try 198 00:10:38,200 --> 00:10:40,679 Speaker 4: to invoke this, he scented that he could use it 199 00:10:40,960 --> 00:10:44,600 Speaker 4: to assist in this kind of mass deportation program he 200 00:10:44,640 --> 00:10:46,959 Speaker 4: has in mind. He scented that he could use it 201 00:10:47,160 --> 00:10:50,239 Speaker 4: not in response to that, but in response to protests 202 00:10:50,240 --> 00:10:53,040 Speaker 4: that might greet that or other things he's doing, because 203 00:10:53,440 --> 00:10:56,160 Speaker 4: the more common applications of the Insurrection Act have been 204 00:10:56,200 --> 00:10:59,439 Speaker 4: in response to protests. Right, So, the most recent invocation 205 00:10:59,559 --> 00:11:02,199 Speaker 4: of it was in nineteen ninety two when there were 206 00:11:02,280 --> 00:11:05,160 Speaker 4: riots in la following the beating of Rodney King. And 207 00:11:05,200 --> 00:11:08,440 Speaker 4: it wasn't the scenario where the President just imposed this stuff. 208 00:11:08,480 --> 00:11:11,600 Speaker 4: It was the state of California asked for help. Usually 209 00:11:11,600 --> 00:11:15,440 Speaker 4: it's when they're protests or riots, not just you know, 210 00:11:15,559 --> 00:11:18,960 Speaker 4: people who are here un instrumented. So it depends on 211 00:11:19,000 --> 00:11:21,960 Speaker 4: how aggressive Trump wants to be and whether he wants 212 00:11:21,960 --> 00:11:25,040 Speaker 4: to sort of be in it expanding radically a category 213 00:11:25,080 --> 00:11:27,840 Speaker 4: that we've seen in the past, or applying the law 214 00:11:27,880 --> 00:11:29,280 Speaker 4: in an even more novel way. 215 00:11:29,520 --> 00:11:31,320 Speaker 3: What would the pushback look like to that. 216 00:11:31,880 --> 00:11:34,520 Speaker 4: I think there are different forms of pushback depending on 217 00:11:34,600 --> 00:11:37,520 Speaker 4: what the order is. There may be pushback from within 218 00:11:37,600 --> 00:11:40,000 Speaker 4: the military. That's not something that you know, we would 219 00:11:40,000 --> 00:11:43,880 Speaker 4: see unfolding in the courts. But that would be one 220 00:11:44,440 --> 00:11:48,199 Speaker 4: form of pushback. We know that when Trump was invoking 221 00:11:48,200 --> 00:11:52,199 Speaker 4: the Insurrection Actor the Pose Committist Act in his first administration, 222 00:11:52,559 --> 00:11:55,800 Speaker 4: there were moments when some people within the military were hesitant. 223 00:11:56,480 --> 00:11:59,680 Speaker 4: It's unclear if that'll happen again. There could be legal 224 00:11:59,720 --> 00:12:04,680 Speaker 4: channallenges too, whether or not again, and sort of unclear 225 00:12:04,720 --> 00:12:08,520 Speaker 4: whether those legal challenges will actually affect the behavior of 226 00:12:08,559 --> 00:12:12,240 Speaker 4: people on the ground being given these orders or not. 227 00:12:13,040 --> 00:12:16,760 Speaker 4: And it's also unclear what courts will say, because it 228 00:12:16,840 --> 00:12:19,840 Speaker 4: seems as if the president has a lot of discretion 229 00:12:20,040 --> 00:12:22,520 Speaker 4: under the Insurrection Act, even according to what courts have 230 00:12:22,600 --> 00:12:25,600 Speaker 4: said in the past, not unlimited. But I don't know 231 00:12:25,640 --> 00:12:28,959 Speaker 4: what court challenges would look like. So there's a lot 232 00:12:29,000 --> 00:12:32,680 Speaker 4: of uncertainty, to be honest, because we haven't seen the 233 00:12:32,720 --> 00:12:37,120 Speaker 4: Insurrection actually invoked by anyone since nineteen ninety two, which 234 00:12:37,160 --> 00:12:39,679 Speaker 4: is the longest period in our history that we've gone 235 00:12:39,720 --> 00:12:43,160 Speaker 4: without it being invoked, and we haven't really seen it 236 00:12:43,200 --> 00:12:45,960 Speaker 4: invooked in some ways in the past that Trump has 237 00:12:46,040 --> 00:12:47,920 Speaker 4: hinted he might want to again, we don't know if 238 00:12:47,920 --> 00:12:51,480 Speaker 4: he's going to follow through. He's ex lots of possibilities, 239 00:12:51,480 --> 00:12:54,760 Speaker 4: he doesn't actually follow through on. But if he did, 240 00:12:54,840 --> 00:12:57,440 Speaker 4: and some of these were unprecedented, we also don't know 241 00:12:57,480 --> 00:13:00,240 Speaker 4: if there were court challenges, if that would change you 242 00:13:00,280 --> 00:13:02,760 Speaker 4: know again, I don't think it would, but it's hard 243 00:13:02,760 --> 00:13:05,439 Speaker 4: to say because it would be unprecedented. 244 00:13:05,000 --> 00:13:07,440 Speaker 1: Right, I mean, that's the thing. It's like a lot 245 00:13:07,440 --> 00:13:10,360 Speaker 1: of this stuff, it's hard to imagine. I mean, will 246 00:13:10,400 --> 00:13:13,880 Speaker 1: you talk us through what this sort of landscape looks 247 00:13:13,920 --> 00:13:15,439 Speaker 1: like in the courts for a minute. 248 00:13:15,480 --> 00:13:18,760 Speaker 4: It's complicated too. The Supreme Court is obviously very conservative. 249 00:13:18,920 --> 00:13:22,560 Speaker 4: It already has three members selected by Donald Trump. It's 250 00:13:22,679 --> 00:13:25,760 Speaker 4: likely to wind up with a majority selected by Donald 251 00:13:25,760 --> 00:13:28,040 Speaker 4: Trump by the end of the substation. 252 00:13:27,760 --> 00:13:29,920 Speaker 3: Forever and ever until we die. 253 00:13:30,080 --> 00:13:32,600 Speaker 4: The one thing that's not going to be as game 254 00:13:32,679 --> 00:13:35,880 Speaker 4: changing about that is the most likely justices to be 255 00:13:35,960 --> 00:13:39,160 Speaker 4: replaced by Trump are Justices Thomas and Alito, who are 256 00:13:39,200 --> 00:13:42,560 Speaker 4: actually more conservative than the people Trump already picked. So 257 00:13:43,040 --> 00:13:46,840 Speaker 4: it may not really change the Court's partisan complexion that much. 258 00:13:46,920 --> 00:13:49,640 Speaker 4: Even if Trump finds people who are just as conservative 259 00:13:49,640 --> 00:13:52,839 Speaker 4: as Thomas or Aledo, or even more conservative than Thomas 260 00:13:52,920 --> 00:13:55,600 Speaker 4: or Alito, it won't necessarily so, I mean, the only 261 00:13:55,640 --> 00:13:58,520 Speaker 4: way the US Supreme Court becomes radically different is if 262 00:13:58,559 --> 00:14:02,640 Speaker 4: there's an unplanned retirement by someone like Sonya Soto Mayor 263 00:14:02,960 --> 00:14:07,520 Speaker 4: or even John Roberts, who are both in their early seventies, 264 00:14:07,559 --> 00:14:11,680 Speaker 4: that's not super likely because they're not particularly old, they're 265 00:14:11,720 --> 00:14:15,000 Speaker 4: not likely to want to retire of their own volition. 266 00:14:15,800 --> 00:14:20,480 Speaker 4: The federal courts in general are still quite conservative, although 267 00:14:20,560 --> 00:14:24,000 Speaker 4: less so than when Joe Biden took office, because Biden, 268 00:14:24,080 --> 00:14:27,040 Speaker 4: like Trump before him, put a record number of people 269 00:14:27,520 --> 00:14:30,680 Speaker 4: on the federal courts. But in the next four years 270 00:14:30,720 --> 00:14:33,480 Speaker 4: the pendulum is obviously get to swing very dramatically in 271 00:14:33,520 --> 00:14:36,720 Speaker 4: the other direction because Trump is going to again rush 272 00:14:36,760 --> 00:14:39,400 Speaker 4: to fill the federal courts that were already very conservative. 273 00:14:39,680 --> 00:14:42,480 Speaker 4: So these challenges are going to increasingly be going before 274 00:14:42,880 --> 00:14:45,400 Speaker 4: judges that Trump put on the court, who are likely 275 00:14:45,480 --> 00:14:48,760 Speaker 4: to be predisposed to agree with him on whatever the 276 00:14:48,840 --> 00:14:49,640 Speaker 4: questions are. 277 00:14:50,120 --> 00:14:52,800 Speaker 1: There's a very conservative circuit that kicks a lot of 278 00:14:52,840 --> 00:14:55,040 Speaker 1: stuff up to the Supreme Court, right. 279 00:14:55,040 --> 00:14:58,080 Speaker 4: So the Fifth Circuit Court of Appeals. Oh and just 280 00:14:58,120 --> 00:15:00,400 Speaker 4: to be clear, do you mean the Alien Insedition the 281 00:15:00,440 --> 00:15:01,240 Speaker 4: Insurrection Act? 282 00:15:01,360 --> 00:15:02,040 Speaker 3: Wait say it again. 283 00:15:02,160 --> 00:15:05,000 Speaker 4: It's well, so there's the Alien and Sedition Acts, which 284 00:15:05,000 --> 00:15:08,520 Speaker 4: were about the press. That's what I'm thinking about well, okay, well, 285 00:15:08,520 --> 00:15:10,720 Speaker 4: so I was talking about the Insurrection Act, which is 286 00:15:10,720 --> 00:15:12,840 Speaker 4: also useful for protests, but we can talk about the 287 00:15:12,880 --> 00:15:16,000 Speaker 4: Alien and Sedition Acts. Yeah, let's talk about that for 288 00:15:16,040 --> 00:15:19,320 Speaker 4: a minute. Those were the acts that were used to 289 00:15:19,360 --> 00:15:22,400 Speaker 4: start the internment camps in the Japanese. Trump wants to 290 00:15:22,480 --> 00:15:27,520 Speaker 4: deport people using what's called the Alien Enemies Act. Yes, 291 00:15:27,600 --> 00:15:30,800 Speaker 4: the Alien which was yeah, so I wasn't sure what 292 00:15:30,840 --> 00:15:32,280 Speaker 4: you meant. That was why I was confused. So there's 293 00:15:32,280 --> 00:15:34,240 Speaker 4: actually an Insurrection Act too, So that was what I 294 00:15:34,240 --> 00:15:34,560 Speaker 4: was saying. 295 00:15:34,640 --> 00:15:37,760 Speaker 3: Yes, Yes, that's the one he tried to use last time. Yeah, 296 00:15:37,760 --> 00:15:38,640 Speaker 3: and you might use that too. 297 00:15:38,680 --> 00:15:41,360 Speaker 4: So the Alien Enemies Act was passed in seventeen ninety 298 00:15:41,480 --> 00:15:45,840 Speaker 4: and it allows presidents to apprehend and remove people who 299 00:15:45,920 --> 00:15:50,120 Speaker 4: are foreign nationals when the US is at war. The 300 00:15:50,160 --> 00:15:53,960 Speaker 4: only time it's ever been used has been after Congress 301 00:15:53,960 --> 00:15:57,600 Speaker 4: has actually formally declared war, so in eighteen twelve and 302 00:15:57,640 --> 00:16:01,280 Speaker 4: World War one and two. Trump has been hinting that 303 00:16:01,320 --> 00:16:03,520 Speaker 4: he wants to use it to make it easier to 304 00:16:03,600 --> 00:16:09,320 Speaker 4: deport people, because it would allow him to bypass immigration courts. Usually, 305 00:16:09,320 --> 00:16:12,600 Speaker 4: if you're deporting people, they have certain due process interests. 306 00:16:12,640 --> 00:16:15,400 Speaker 4: Before those deporportations take place, some of them might have 307 00:16:15,440 --> 00:16:18,000 Speaker 4: been trying to invoke the asylum. If he's allowed to 308 00:16:18,040 --> 00:16:22,120 Speaker 4: invoke the Alien Enemies Act instead, he could remove a 309 00:16:22,200 --> 00:16:26,320 Speaker 4: lot of people much more easily because the law gives 310 00:16:26,360 --> 00:16:30,480 Speaker 4: presidents pretty broad authority to remove non citizens if they're 311 00:16:30,480 --> 00:16:34,720 Speaker 4: not minors at a time of declared war. It's a 312 00:16:34,720 --> 00:16:37,120 Speaker 4: little different from the Alien and Sedition Acts, which were 313 00:16:37,160 --> 00:16:40,520 Speaker 4: passed at the same time and largely kind of criminalized 314 00:16:40,680 --> 00:16:44,520 Speaker 4: political dissent. Most of those either were repealed by Congress 315 00:16:44,600 --> 00:16:47,280 Speaker 4: or expired, but the Alien Enemies Act, which came from 316 00:16:47,320 --> 00:16:52,280 Speaker 4: that same kind of dictatorial impulse, survived and is available 317 00:16:52,880 --> 00:16:56,120 Speaker 4: theoretically for a president to use. 318 00:16:56,640 --> 00:16:59,520 Speaker 1: Wouldn't Congress have to declare war before he could do 319 00:16:59,560 --> 00:16:59,920 Speaker 1: it or not? 320 00:17:00,520 --> 00:17:04,200 Speaker 4: Well, yeah, it's never been used before in the way 321 00:17:04,240 --> 00:17:07,520 Speaker 4: that Trump is proposing. But the text and history of 322 00:17:07,560 --> 00:17:09,960 Speaker 4: the law will make it very hard to justify what 323 00:17:10,000 --> 00:17:13,200 Speaker 4: Trump's trying to do. So it generally says you need 324 00:17:13,200 --> 00:17:17,840 Speaker 4: an invasion or predatory incursion. That's the language by a 325 00:17:17,880 --> 00:17:21,959 Speaker 4: foreign nation or government. And here, you know, Congress obviously 326 00:17:22,040 --> 00:17:25,480 Speaker 4: hasn't declared war on anybody. There hasn't been an evasion 327 00:17:25,560 --> 00:17:29,919 Speaker 4: invasion against US territory in a really long time. And 328 00:17:30,000 --> 00:17:32,439 Speaker 4: even if Trump tries to say, you know, drug cartels 329 00:17:32,440 --> 00:17:36,159 Speaker 4: are declaring a war, they're not actually national governments, so 330 00:17:36,240 --> 00:17:39,359 Speaker 4: they don't seem to be the criteria of the law. 331 00:17:39,960 --> 00:17:43,760 Speaker 4: It's also so there's no real precedent for using this 332 00:17:43,840 --> 00:17:47,000 Speaker 4: the law this way historically, there doesn't appear to be 333 00:17:47,720 --> 00:17:50,400 Speaker 4: a textual justification for doing it. 334 00:17:50,720 --> 00:17:52,520 Speaker 3: But that doesn't mean Trump won't do it. 335 00:17:52,880 --> 00:17:54,920 Speaker 4: Yeah, number one and number two, I think what Trump 336 00:17:54,960 --> 00:17:57,880 Speaker 4: would try to argue would essentially be to say, hey, 337 00:17:57,920 --> 00:18:01,879 Speaker 4: you know, the courts shouldn't be intervene in what is 338 00:18:02,680 --> 00:18:06,000 Speaker 4: a military decision of the president. That there should be 339 00:18:06,000 --> 00:18:09,639 Speaker 4: a lot of discretion in to national security matters decided 340 00:18:09,680 --> 00:18:12,679 Speaker 4: by the president. So I think that's the risk that 341 00:18:12,800 --> 00:18:16,920 Speaker 4: courts just our hands off, even though both history and 342 00:18:17,400 --> 00:18:20,760 Speaker 4: text of the law seem to point in the direction 343 00:18:20,800 --> 00:18:22,320 Speaker 4: of Trump not being able to do this. 344 00:18:22,840 --> 00:18:25,760 Speaker 3: Yeah, Mary, thank you for joining us. I hope you'll 345 00:18:25,800 --> 00:18:26,240 Speaker 3: come back. 346 00:18:26,520 --> 00:18:27,760 Speaker 4: Okay, of course, my pleasure. 347 00:18:31,440 --> 00:18:33,879 Speaker 2: Peter shab Sherri and Micha Olier are two of the 348 00:18:33,880 --> 00:18:35,400 Speaker 2: hosts of the podcast five. 349 00:18:35,280 --> 00:18:40,480 Speaker 1: Four Welcome Back Too Fast Politics. We have two of 350 00:18:40,520 --> 00:18:44,320 Speaker 1: the three members of the five to four podcast, which 351 00:18:44,359 --> 00:18:48,879 Speaker 1: is one of my absolute favorite podcasts in the entire world. 352 00:18:49,000 --> 00:18:49,840 Speaker 3: Probably you know. 353 00:18:49,800 --> 00:18:52,320 Speaker 1: What, fuck it, it's the best part. Don't listen to this, 354 00:18:52,600 --> 00:18:55,960 Speaker 1: just listen to that. Okay, that will. 355 00:18:55,800 --> 00:18:59,639 Speaker 3: Make you smarter. I will only do terrible things. And 356 00:19:00,000 --> 00:19:04,560 Speaker 3: I know no, I'm just kidding. I'm very smart to NATA. Yeah, welcome, Michael, Welcome, Peter. 357 00:19:04,680 --> 00:19:06,359 Speaker 5: Thank you, Balin, thanks for having us. 358 00:19:06,440 --> 00:19:10,679 Speaker 1: I wanted you guys so much because of all the 359 00:19:11,480 --> 00:19:15,400 Speaker 1: terrible things that are coming, and many of them have 360 00:19:15,680 --> 00:19:21,119 Speaker 1: a bizarre zombie legal framework discuss. 361 00:19:21,160 --> 00:19:24,800 Speaker 5: Sure, Okay, So I mean, I guess the way I've 362 00:19:24,840 --> 00:19:27,719 Speaker 5: been thinking about this is like, what do the different 363 00:19:27,760 --> 00:19:31,840 Speaker 5: worst case scenarios look like, and what are the potential 364 00:19:31,920 --> 00:19:36,400 Speaker 5: roadblocks between here and those worst case scenarios are. That's 365 00:19:36,440 --> 00:19:39,560 Speaker 5: actually like, it's not a very encouraging exercise, so. 366 00:19:39,800 --> 00:19:42,040 Speaker 3: Like, oh yeah, so let's do it please. 367 00:19:42,359 --> 00:19:45,119 Speaker 5: One example I've been thinking of is like, so Trump 368 00:19:45,160 --> 00:19:48,640 Speaker 5: deshot tries to deport twenty million people. There are countries 369 00:19:48,680 --> 00:19:52,120 Speaker 5: that could take twenty million people in the next two three, 370 00:19:52,320 --> 00:19:56,400 Speaker 5: four years, So there will inevitably be camps. There will 371 00:19:56,400 --> 00:19:58,880 Speaker 5: be images of the camps the conditions will be bad. 372 00:19:58,960 --> 00:20:03,360 Speaker 5: There will be lawful, permittent residents and even citizens who 373 00:20:03,480 --> 00:20:08,320 Speaker 5: end up in the camps because they're centralized orre you catabise. 374 00:20:08,760 --> 00:20:12,320 Speaker 1: Yes, likely journalists will be later in the camps, and 375 00:20:12,400 --> 00:20:15,120 Speaker 1: the earlier camps will just be people who they think, 376 00:20:15,400 --> 00:20:16,680 Speaker 1: look Maxican. 377 00:20:16,640 --> 00:20:22,280 Speaker 5: That's correct. This will lead to widescale protests, especially in cities, which, 378 00:20:22,600 --> 00:20:25,920 Speaker 5: as we saw during the BLM movement, might lead to 379 00:20:26,160 --> 00:20:31,080 Speaker 5: Trump trying to deploy the US military on US soil 380 00:20:31,240 --> 00:20:34,600 Speaker 5: to control protests. Right, and so you think about that, 381 00:20:34,600 --> 00:20:37,880 Speaker 5: that's sort of a worst case scenario, is the US 382 00:20:38,000 --> 00:20:43,399 Speaker 5: military being used to quell domestic unrest? And how we 383 00:20:43,440 --> 00:20:45,800 Speaker 5: get there? And then you so, what are the roadblocks 384 00:20:45,840 --> 00:20:48,640 Speaker 5: to this? Well, it cost a lot of money. Congress 385 00:20:48,720 --> 00:20:51,840 Speaker 5: is already appropriating a lot of money to the border. Well, 386 00:20:51,880 --> 00:20:54,520 Speaker 5: there are laws that prevent the president from deploying the 387 00:20:54,520 --> 00:20:57,119 Speaker 5: military on US soil. Well, the Supreme Court said that 388 00:20:57,160 --> 00:21:00,880 Speaker 5: he has immunity, so that law doesn't. And you can 389 00:21:00,960 --> 00:21:04,640 Speaker 5: just go down the line and be like, well, actually, 390 00:21:04,680 --> 00:21:09,359 Speaker 5: the guardrails between here and there are very few, and 391 00:21:09,920 --> 00:21:13,320 Speaker 5: a lot of times relying on like Amy Cony Barrett 392 00:21:13,520 --> 00:21:19,760 Speaker 5: or John Thune you know, some random Republican senator or 393 00:21:19,800 --> 00:21:23,640 Speaker 5: something like that, and it's just scary. But it's also 394 00:21:23,720 --> 00:21:25,760 Speaker 5: very uncertain because we don't know what Trump's actually can 395 00:21:25,800 --> 00:21:29,280 Speaker 5: get a try, and we don't know how far he's 396 00:21:29,320 --> 00:21:32,040 Speaker 5: willing to go, and so a lot of it just 397 00:21:32,080 --> 00:21:35,560 Speaker 5: feels like being tied to a train track and you know, 398 00:21:35,720 --> 00:21:37,080 Speaker 5: just watching the train come in. 399 00:21:37,320 --> 00:21:38,679 Speaker 3: Peter taunts. 400 00:21:39,119 --> 00:21:41,199 Speaker 6: I agree with all of that. I also think that 401 00:21:41,400 --> 00:21:45,240 Speaker 6: if you're taking the cynical approach, which I do, what 402 00:21:45,320 --> 00:21:50,040 Speaker 6: Trump wants out of the Judiciary, for example, is for 403 00:21:50,160 --> 00:21:54,720 Speaker 6: it to function essentially as a legitimizing operation for him. 404 00:21:54,960 --> 00:22:00,160 Speaker 6: Right he was very irritated in his first term by 405 00:22:00,320 --> 00:22:03,280 Speaker 6: the resistance he got from the Supreme Court. I think 406 00:22:03,320 --> 00:22:07,760 Speaker 6: it's safe to say that he does not particularly I 407 00:22:08,400 --> 00:22:10,600 Speaker 6: don't want to say stand behind, but he's not particularly 408 00:22:10,640 --> 00:22:14,200 Speaker 6: a fan of his initial choices to the Court, especially 409 00:22:14,240 --> 00:22:17,320 Speaker 6: Kavanaugh and Barrett. A big part of that is because 410 00:22:17,359 --> 00:22:20,840 Speaker 6: they did not stand behind him during the Stop the 411 00:22:20,920 --> 00:22:23,920 Speaker 6: Steal endeavor. I think what he wants out of the 412 00:22:24,000 --> 00:22:27,560 Speaker 6: Judiciary this time around is for it to be loyal 413 00:22:27,560 --> 00:22:29,800 Speaker 6: to him, just like he wants the rest of the 414 00:22:29,840 --> 00:22:32,680 Speaker 6: Republican Party to be loyal to him. I think that's 415 00:22:32,680 --> 00:22:36,720 Speaker 6: what we should expect out of his nominees and appointees 416 00:22:36,800 --> 00:22:39,159 Speaker 6: to the judiciary. And I think that it's important to 417 00:22:39,200 --> 00:22:43,119 Speaker 6: understand that, like the judges throughout the federal courts, the 418 00:22:43,160 --> 00:22:46,000 Speaker 6: conservative judges throughout the federal courts are now part of 419 00:22:46,000 --> 00:22:49,920 Speaker 6: a political movement that is essentially just the Donald Trump Show, 420 00:22:50,280 --> 00:22:53,760 Speaker 6: and what gets you ahead in that political movement is 421 00:22:54,080 --> 00:22:57,560 Speaker 6: loyalty to Donald Trump. So it's very hard to predict 422 00:22:57,600 --> 00:23:01,639 Speaker 6: exactly how much friction is going to exist between the 423 00:23:01,720 --> 00:23:04,600 Speaker 6: judiciary and Trump, but I would say it's a safe 424 00:23:04,600 --> 00:23:06,360 Speaker 6: bet that it's going to be less than last time. 425 00:23:06,560 --> 00:23:08,560 Speaker 6: And that's what has me worried, And I think the 426 00:23:08,600 --> 00:23:11,080 Speaker 6: exact contours of it are very hard to predict. But 427 00:23:11,480 --> 00:23:15,400 Speaker 6: I'm not looking forward to learning exactly what the dynamic 428 00:23:15,560 --> 00:23:18,359 Speaker 6: is between the judiciary and Trump this time around. 429 00:23:18,800 --> 00:23:20,760 Speaker 3: Yeah, I just want to sort of pull back for 430 00:23:20,800 --> 00:23:21,240 Speaker 3: a minute. 431 00:23:21,440 --> 00:23:25,480 Speaker 1: It seems like the big difference between Trump one point 432 00:23:25,520 --> 00:23:27,720 Speaker 1: zero and Trump two point zero is that Trump two 433 00:23:27,720 --> 00:23:30,720 Speaker 1: point zero has the sort of somebody at the Heritage 434 00:23:30,720 --> 00:23:35,280 Speaker 1: Foundation cooked up a few ideas of like racism that's 435 00:23:35,359 --> 00:23:39,840 Speaker 1: worked in previous centuries and have decided that they are going. 436 00:23:39,720 --> 00:23:42,080 Speaker 3: To use that as a legal framework. Do you think 437 00:23:42,119 --> 00:23:42,880 Speaker 3: that's correct. 438 00:23:43,040 --> 00:23:45,600 Speaker 6: There's definitely some truth to it. I mean, I think 439 00:23:45,720 --> 00:23:49,359 Speaker 6: that what we're seeing now is the result of a 440 00:23:49,520 --> 00:23:53,840 Speaker 6: conservative political movement that has spent what's almost a decade 441 00:23:53,960 --> 00:23:57,439 Speaker 6: now being a little bit more proactive, thinking that a 442 00:23:57,480 --> 00:24:01,880 Speaker 6: lot of barriers that they previously thought existed are now 443 00:24:01,880 --> 00:24:04,520 Speaker 6: being shattered or can be shattered. I think Trump has 444 00:24:04,560 --> 00:24:06,760 Speaker 6: sort of brought to the forefront of their minds a 445 00:24:06,760 --> 00:24:10,919 Speaker 6: lot of political possibility, and one of those possibilities is, well, 446 00:24:11,000 --> 00:24:15,080 Speaker 6: we can peel back major elements of the New Deal, 447 00:24:15,200 --> 00:24:19,159 Speaker 6: we can peel back major elements of these civil rights movement, 448 00:24:19,440 --> 00:24:21,800 Speaker 6: these things that we thought were sort of done deals, 449 00:24:22,200 --> 00:24:25,440 Speaker 6: Maybe we can fight over them. And they are now 450 00:24:25,560 --> 00:24:29,040 Speaker 6: putting in an effort to, for example, attack birthright citizenship 451 00:24:29,160 --> 00:24:31,399 Speaker 6: right and we'll see how far that gets them. But 452 00:24:31,800 --> 00:24:33,439 Speaker 6: they believe that it's on the table. 453 00:24:33,680 --> 00:24:36,480 Speaker 5: Yeah. I wanted to talk about birthright citizenship when you 454 00:24:36,600 --> 00:24:40,480 Speaker 5: started this whole line of thought, because it's worth emphasizing 455 00:24:40,480 --> 00:24:45,119 Speaker 5: that this is like one part of the settlement of 456 00:24:45,240 --> 00:24:48,920 Speaker 5: the Civil War, the reconciling of that, you know, very 457 00:24:49,640 --> 00:24:55,679 Speaker 5: costly conflict the breeding of African Americans into full citizenship status. 458 00:24:56,200 --> 00:25:00,800 Speaker 5: So attacking it is very much like trying to unwind 459 00:25:01,320 --> 00:25:03,520 Speaker 5: quite literally the settlement of that. 460 00:25:03,880 --> 00:25:06,639 Speaker 1: Yeah, and also just the sort of it's a blow 461 00:25:06,680 --> 00:25:08,400 Speaker 1: against the civil rights movement, yes. 462 00:25:08,240 --> 00:25:11,040 Speaker 5: Go on, but also that it is one of the 463 00:25:11,040 --> 00:25:17,440 Speaker 5: most unambiguous provisions in the Constitution and has very settled 464 00:25:17,600 --> 00:25:21,879 Speaker 5: meaning in constitutional law or since it's been around, you know, 465 00:25:22,000 --> 00:25:26,000 Speaker 5: both in like writings and in practice, and so so 466 00:25:26,440 --> 00:25:29,919 Speaker 5: the idea that they could attack that is you know, 467 00:25:30,040 --> 00:25:32,119 Speaker 5: I think in basketball they would call that like a 468 00:25:32,160 --> 00:25:36,040 Speaker 5: heat check, right, like they're feeling very good right now 469 00:25:36,359 --> 00:25:40,200 Speaker 5: and seeing just how much they can get away with. 470 00:25:40,520 --> 00:25:42,120 Speaker 5: And that's scary in it of itself. 471 00:25:42,400 --> 00:25:45,720 Speaker 1: Yes, now, as I'm the only person, I keep saying 472 00:25:45,720 --> 00:25:48,199 Speaker 1: this because it's annoying to me. But since I'm the 473 00:25:48,200 --> 00:25:51,040 Speaker 1: only person who ever looked at their priors with this 474 00:25:51,160 --> 00:25:53,960 Speaker 1: election and was like, how did I go wrong? Whereas 475 00:25:54,040 --> 00:25:56,879 Speaker 1: everyone else just was like how did other people go wrong? 476 00:25:57,240 --> 00:26:01,280 Speaker 1: I think I'm too optimistic when I think about what 477 00:26:01,560 --> 00:26:05,560 Speaker 1: Republicans could cook up and also what the American voters 478 00:26:05,680 --> 00:26:09,119 Speaker 1: might reject. So I want to couch this in my 479 00:26:09,320 --> 00:26:13,639 Speaker 1: own optimism and what that means, but it does seem 480 00:26:13,800 --> 00:26:16,600 Speaker 1: like not specifically the Koch brothers, but the Koch Brothers 481 00:26:16,920 --> 00:26:20,760 Speaker 1: esque wing of the party has decided that this wrecking 482 00:26:20,840 --> 00:26:25,479 Speaker 1: ball can fulfill a lot of their fantasies, the wrecking 483 00:26:25,520 --> 00:26:29,720 Speaker 1: ball being Trump. But if we remember anything from Trump 484 00:26:29,840 --> 00:26:33,359 Speaker 1: one point zero, it's that my man cannot do much 485 00:26:33,600 --> 00:26:35,320 Speaker 1: because he gets very distracted. 486 00:26:35,720 --> 00:26:38,520 Speaker 6: Yeah, that's the reality of Trump, and I think it's 487 00:26:38,520 --> 00:26:41,639 Speaker 6: probably the only reason for optimism is are they so 488 00:26:41,800 --> 00:26:44,760 Speaker 6: incompetent that they're not going to be able to really 489 00:26:44,800 --> 00:26:48,320 Speaker 6: pull any of this off. Obviously we will see chaos 490 00:26:48,320 --> 00:26:51,800 Speaker 6: in the Trump White House. We will see incompetence in 491 00:26:51,880 --> 00:26:56,800 Speaker 6: various forms. But when your primary objective is to destroy, 492 00:26:57,359 --> 00:27:01,879 Speaker 6: competence doesn't always matter that much. And I also think 493 00:27:01,960 --> 00:27:07,000 Speaker 6: that the first Trump term was really defined by a 494 00:27:07,040 --> 00:27:10,600 Speaker 6: tug of war between the Trump wing and the establishment. 495 00:27:10,800 --> 00:27:12,919 Speaker 6: Part of that was just because he had to bring 496 00:27:13,119 --> 00:27:18,800 Speaker 6: establishment elements into the fold because there weren't enough loyalists 497 00:27:18,800 --> 00:27:22,520 Speaker 6: in twenty sixteen, twenty seventeen. That's no longer the case. 498 00:27:22,640 --> 00:27:26,080 Speaker 6: Right now, the Trump wing of the party has effectively 499 00:27:26,200 --> 00:27:30,960 Speaker 6: won and they are in control politically, and I would 500 00:27:31,040 --> 00:27:34,879 Speaker 6: imagine that that means that we're going to see a 501 00:27:34,920 --> 00:27:38,399 Speaker 6: little less friction within the Trump White House, within the 502 00:27:38,440 --> 00:27:43,719 Speaker 6: administration itself, and a little more of people ready to 503 00:27:43,760 --> 00:27:46,400 Speaker 6: say how high when he says jump. So we'll see 504 00:27:46,400 --> 00:27:49,040 Speaker 6: exactly what plays out. It's again one of those things 505 00:27:49,040 --> 00:27:51,680 Speaker 6: that's just really hard to predict because these people are 506 00:27:51,720 --> 00:27:56,399 Speaker 6: all absolute nut jobs politically and also in their personal lives. 507 00:27:56,480 --> 00:27:59,199 Speaker 6: Right they cannot all sit in a room together and 508 00:27:59,320 --> 00:28:02,520 Speaker 6: hash something out out. Something will go wrong. We just 509 00:28:02,560 --> 00:28:04,760 Speaker 6: don't know what's going to go wrong yet. 510 00:28:05,320 --> 00:28:09,320 Speaker 3: Yes, for sure. Do you have another thought here, Michael? 511 00:28:09,600 --> 00:28:11,840 Speaker 5: There's so much going wrong in our country right now. 512 00:28:12,000 --> 00:28:15,600 Speaker 5: I think it's a mistake to, you know, be like X, 513 00:28:15,800 --> 00:28:18,399 Speaker 5: Y or Z are like the big problem. But like 514 00:28:18,560 --> 00:28:22,320 Speaker 5: one issue that is very real is that Congress has 515 00:28:22,359 --> 00:28:28,160 Speaker 5: been somewhat dysfunctional for decades, and that dysfunction leaks out 516 00:28:28,240 --> 00:28:33,320 Speaker 5: into other branches. And the longer it festers, right, the 517 00:28:33,359 --> 00:28:38,440 Speaker 5: longer this sort of infection grows, the bigger our reforms 518 00:28:38,480 --> 00:28:43,280 Speaker 5: have to be. The harder the lift is to fix it. Right, 519 00:28:43,360 --> 00:28:45,520 Speaker 5: there is a point in time when you probably could 520 00:28:45,520 --> 00:28:51,040 Speaker 5: have gotten away with some modest gerrymandering and filipbuster reform 521 00:28:51,080 --> 00:28:53,840 Speaker 5: and things like that, and the federal government could have 522 00:28:54,000 --> 00:28:59,920 Speaker 5: just limped on moderately functional. Now it's like you got 523 00:29:00,160 --> 00:29:03,000 Speaker 5: to reform the Supreme Court. You might have to rethink 524 00:29:03,040 --> 00:29:06,720 Speaker 5: the entire administrative state at how that works, which affects, 525 00:29:07,000 --> 00:29:10,080 Speaker 5: you know, everything in this country. And the next four 526 00:29:10,160 --> 00:29:14,000 Speaker 5: years are going to be an opportunity cost where things 527 00:29:14,040 --> 00:29:16,800 Speaker 5: are just going to get worse. The government's capacity is 528 00:29:16,800 --> 00:29:19,400 Speaker 5: going to degrade, and it's going to give us more 529 00:29:19,480 --> 00:29:22,480 Speaker 5: to do when we do get powered back. 530 00:29:22,880 --> 00:29:24,360 Speaker 3: Yeah, if we get pack. 531 00:29:24,280 --> 00:29:25,000 Speaker 5: If we get bout that. 532 00:29:25,160 --> 00:29:27,760 Speaker 1: Yeah, I mean I shouldn't talk like that because obviously 533 00:29:27,800 --> 00:29:29,840 Speaker 1: there are going to be elections, they'll be midterms, they'll 534 00:29:29,880 --> 00:29:33,960 Speaker 1: be presidentials, and we have to protect norms and institutions. 535 00:29:33,960 --> 00:29:36,280 Speaker 3: Speaking of protecting norms and institutions, I. 536 00:29:36,240 --> 00:29:37,960 Speaker 1: Want to go back to Congress actually for a second, 537 00:29:37,960 --> 00:29:40,120 Speaker 1: because I think, Michael you had a really good point 538 00:29:40,160 --> 00:29:43,480 Speaker 1: about Congress. So the last Congress, Mike Johnson had this 539 00:29:43,640 --> 00:29:47,120 Speaker 1: very slim majority. It was one of the stupidest Congresses ever. 540 00:29:47,280 --> 00:29:51,640 Speaker 1: I know it was stupid because even Jake Sherman from 541 00:29:51,640 --> 00:29:55,200 Speaker 1: punch Ball said he couldn't believe how stupid it had gotten. Right, So, 542 00:29:55,800 --> 00:29:59,880 Speaker 1: like clearly, very very very stupid. He has less of 543 00:30:00,160 --> 00:30:05,719 Speaker 1: majority now, so legislatively and in the last session they 544 00:30:05,720 --> 00:30:09,400 Speaker 1: couldn't even name post offices, so legislatively, nothing is going 545 00:30:09,480 --> 00:30:09,880 Speaker 1: to happen. 546 00:30:10,160 --> 00:30:11,280 Speaker 3: Do you think that's correct? 547 00:30:11,360 --> 00:30:14,000 Speaker 1: And does it necessarily even matter if Trump is going 548 00:30:14,040 --> 00:30:15,520 Speaker 1: to just do eos. 549 00:30:15,800 --> 00:30:17,320 Speaker 5: My guess would be that they're not going to be 550 00:30:17,320 --> 00:30:21,720 Speaker 5: able to muster the votes for big social legislation. I 551 00:30:21,720 --> 00:30:23,120 Speaker 5: think they're going to be able to smuggle in a 552 00:30:23,160 --> 00:30:25,480 Speaker 5: lot of stuff into budgetary bills. 553 00:30:25,720 --> 00:30:25,880 Speaker 4: You know. 554 00:30:25,920 --> 00:30:29,200 Speaker 5: That was why the example I used was mass deportation, 555 00:30:29,320 --> 00:30:32,040 Speaker 5: because that's one where they can just remark a lot 556 00:30:32,160 --> 00:30:36,160 Speaker 5: of money for the border and let Trump go wild. 557 00:30:36,560 --> 00:30:39,160 Speaker 5: And that's my concern. That's where I think the biggest 558 00:30:39,440 --> 00:30:41,840 Speaker 5: concerns should be, is that things are going to be 559 00:30:41,880 --> 00:30:47,160 Speaker 5: bad with deportations, with rounding people up in large numbers. 560 00:30:47,520 --> 00:30:49,720 Speaker 5: I don't know that it's for sure going to happen, 561 00:30:49,760 --> 00:30:50,920 Speaker 5: but I'm very scared of it. 562 00:30:51,240 --> 00:30:54,120 Speaker 6: I would also say that a lot of the conservative 563 00:30:54,200 --> 00:30:58,760 Speaker 6: project can be done through the executive branch in conjunction 564 00:30:58,920 --> 00:31:02,520 Speaker 6: with the judiciary. So if you're talking about stripping the 565 00:31:02,560 --> 00:31:05,920 Speaker 6: administrative state down to its bones, that's something that they 566 00:31:05,960 --> 00:31:09,400 Speaker 6: don't need Congress for. In fact, Congress is a thorn 567 00:31:09,440 --> 00:31:12,640 Speaker 6: in their side, and the entire point of the conservative 568 00:31:12,720 --> 00:31:16,320 Speaker 6: project is to box Congress out of the process. So 569 00:31:16,480 --> 00:31:20,800 Speaker 6: what you do is challenge Congress's authority to exert influence 570 00:31:20,840 --> 00:31:23,800 Speaker 6: over administrative agencies and then drag that into court. So 571 00:31:24,000 --> 00:31:26,440 Speaker 6: I'm concerned about that. I am concerned about what they 572 00:31:26,440 --> 00:31:29,280 Speaker 6: can accomplish, not just through executive orders but just by 573 00:31:29,680 --> 00:31:34,880 Speaker 6: sort of your standard operating procedure control over the administrative state. Right, 574 00:31:34,960 --> 00:31:39,560 Speaker 6: many conservatives believe in a very centralized mode of control 575 00:31:39,640 --> 00:31:42,120 Speaker 6: in that regard, and it's pretty disconcerting. 576 00:31:42,360 --> 00:31:44,760 Speaker 3: And this is the Ross Vaught story, right. 577 00:31:44,880 --> 00:31:48,640 Speaker 1: Rots Vought moved into omb one of the architects of 578 00:31:48,680 --> 00:31:51,840 Speaker 1: Project twenty twenty five, and he is a person who 579 00:31:52,000 --> 00:31:55,480 Speaker 1: in Trump one point zero was like, let's just not 580 00:31:55,560 --> 00:31:56,200 Speaker 1: write the check. 581 00:31:56,520 --> 00:31:59,680 Speaker 6: There are a lot of people like that who ten 582 00:31:59,760 --> 00:32:03,600 Speaker 6: years ago, even within GOP ranks, would have been dismissed 583 00:32:03,640 --> 00:32:06,840 Speaker 6: as cranks, who are now getting a lot of attention. 584 00:32:07,280 --> 00:32:11,240 Speaker 6: And I think will be a big story in the 585 00:32:11,320 --> 00:32:13,720 Speaker 6: years to come because you're I think you're right, Molly, 586 00:32:14,200 --> 00:32:17,040 Speaker 6: legislation is not really going to happen They're not going 587 00:32:17,080 --> 00:32:21,880 Speaker 6: to pass anything major other than I would imagine another round. 588 00:32:21,640 --> 00:32:24,160 Speaker 1: Of tax cuts for rich people, as one would hope, 589 00:32:24,240 --> 00:32:26,000 Speaker 1: because that was why they were put there. 590 00:32:26,240 --> 00:32:28,240 Speaker 6: Right right. I think there are a lot of things 591 00:32:28,240 --> 00:32:30,040 Speaker 6: that can happen with the administrative state. I don't want 592 00:32:30,040 --> 00:32:32,040 Speaker 6: to get into a place where I'm just trying to guess, 593 00:32:32,080 --> 00:32:35,880 Speaker 6: but part of the conservative project for many, many years 594 00:32:35,960 --> 00:32:39,240 Speaker 6: has been to sort of rip out the civil servants 595 00:32:39,600 --> 00:32:44,760 Speaker 6: that compose the administrative state and replace replace them with hacks, 596 00:32:44,840 --> 00:32:48,560 Speaker 6: replace them with conservative patronage jobs. That's something you could 597 00:32:48,600 --> 00:32:52,080 Speaker 6: see happening in the coming years. I wouldn't be surprised 598 00:32:52,160 --> 00:32:55,360 Speaker 6: if you see core challenges and sort of a little 599 00:32:55,400 --> 00:32:58,400 Speaker 6: bit of back and forth over what exactly is allowed 600 00:32:58,400 --> 00:33:00,840 Speaker 6: and what isn't. But they're going to want They're gonna 601 00:33:00,840 --> 00:33:01,400 Speaker 6: want to do that. 602 00:33:01,440 --> 00:33:01,640 Speaker 2: There. 603 00:33:01,640 --> 00:33:04,560 Speaker 6: You know, Trump's been talking about firing Jerome Powell. There's 604 00:33:04,640 --> 00:33:05,800 Speaker 6: there's a lot of things they want to do. 605 00:33:06,480 --> 00:33:06,760 Speaker 3: Yeah. 606 00:33:06,920 --> 00:33:10,520 Speaker 1: I would like to point out one of Trump's biggest donors. 607 00:33:10,960 --> 00:33:13,800 Speaker 3: The one guard rail any of us have. 608 00:33:14,120 --> 00:33:18,560 Speaker 1: Is that one of his biggest donors, named a hedge 609 00:33:18,560 --> 00:33:22,000 Speaker 1: funder from Chicago whose name now escapes me, was a 610 00:33:22,080 --> 00:33:24,640 Speaker 1: deal book and was like, Trump, you don't get to 611 00:33:24,760 --> 00:33:28,080 Speaker 1: fire the head of the fad. That's good And I 612 00:33:28,120 --> 00:33:30,400 Speaker 1: was like, oh good, I felt much better. 613 00:33:31,040 --> 00:33:33,320 Speaker 6: You is that who is that that Ken Griffin or 614 00:33:33,320 --> 00:33:34,320 Speaker 6: is that someone else Griffin? 615 00:33:34,400 --> 00:33:35,160 Speaker 3: It's Ken Griffin. 616 00:33:35,200 --> 00:33:37,600 Speaker 1: Ken Griffin A deal book said we really would be 617 00:33:37,640 --> 00:33:38,640 Speaker 1: disappointed if. 618 00:33:38,480 --> 00:33:41,160 Speaker 3: Donald Trump fired Jerome Powell. 619 00:33:40,840 --> 00:33:43,520 Speaker 1: Which is as good as a guardrail as far as 620 00:33:43,560 --> 00:33:44,040 Speaker 1: I can tell. 621 00:33:45,000 --> 00:33:49,000 Speaker 6: Yeah, it's always a disconcerting thing when we're hoping to 622 00:33:49,120 --> 00:33:52,880 Speaker 6: rely on the largess of right wing billionaires to save us. 623 00:33:53,080 --> 00:33:55,680 Speaker 6: But I guess those are the breaks in some respects. 624 00:33:56,080 --> 00:33:58,400 Speaker 3: Yeah, that's where we are. It's pretty dark. 625 00:33:58,800 --> 00:34:01,200 Speaker 5: Yeah. The foot side of that, though, is you know, 626 00:34:01,320 --> 00:34:05,400 Speaker 5: I think the billionaires they want economic stability. I think 627 00:34:05,440 --> 00:34:08,719 Speaker 5: they benefit from economic stability. Another thing that I think 628 00:34:08,760 --> 00:34:12,760 Speaker 5: Trump has a lot of leeway with is tariffs, which 629 00:34:12,840 --> 00:34:17,520 Speaker 5: can bring a lot of instability and also create a 630 00:34:17,520 --> 00:34:21,560 Speaker 5: lot of opportunity for graft, which is very much Trunk's thing. 631 00:34:21,920 --> 00:34:26,279 Speaker 5: He can give special exceptions to companies on the tariffs 632 00:34:26,400 --> 00:34:29,160 Speaker 5: and give them a competitive advantage in exchange for some 633 00:34:29,200 --> 00:34:31,359 Speaker 5: sort of payoff, which is this is what he wants 634 00:34:31,360 --> 00:34:35,240 Speaker 5: to do. He wants to personally profit off his position. 635 00:34:35,800 --> 00:34:39,120 Speaker 5: So this is like a quintessential Trump thing. So I 636 00:34:39,120 --> 00:34:41,759 Speaker 5: assume we are going to get some tariffs and that's 637 00:34:41,760 --> 00:34:44,200 Speaker 5: going to be hard on the American economy. We're all 638 00:34:44,200 --> 00:34:45,280 Speaker 5: going to feel that pain. 639 00:34:45,480 --> 00:34:49,600 Speaker 1: When you look at the inauguration pay for play. That's 640 00:34:49,680 --> 00:34:52,279 Speaker 1: what's going on there too, Right. Tech companies are like, 641 00:34:52,400 --> 00:34:54,439 Speaker 1: he's going to pick the winners and losers. We want 642 00:34:54,440 --> 00:34:56,000 Speaker 1: to be winners, that's right. 643 00:34:56,080 --> 00:34:57,880 Speaker 6: Yeah, I mean not just tech companies. 644 00:34:58,320 --> 00:35:01,359 Speaker 3: ABC News, Yes, yes. 645 00:35:01,520 --> 00:35:05,239 Speaker 6: You know you're seeing the sort of broad concern that 646 00:35:05,360 --> 00:35:09,360 Speaker 6: he is going to lean on actors within the private 647 00:35:09,400 --> 00:35:13,719 Speaker 6: sector in various regards, and those actors want to get 648 00:35:13,760 --> 00:35:16,160 Speaker 6: in his good graces and also get in on the 649 00:35:16,280 --> 00:35:19,120 Speaker 6: grift wherever they can. I mean, the sort of his 650 00:35:19,640 --> 00:35:23,080 Speaker 6: billionaire donors are sort of in two different camps. One 651 00:35:23,160 --> 00:35:25,000 Speaker 6: is the Ken Griffin types. You know, he's the head 652 00:35:25,000 --> 00:35:27,719 Speaker 6: of Citadel, which is like this big market maker and 653 00:35:27,760 --> 00:35:31,279 Speaker 6: hedge fund and they probably want market stability. But the 654 00:35:31,320 --> 00:35:35,000 Speaker 6: Silicon Valley side doesn't necessarily want stability. They might want 655 00:35:35,080 --> 00:35:37,920 Speaker 6: chaos because they want to be able to rip out 656 00:35:38,000 --> 00:35:41,799 Speaker 6: enough regulations that they can commit massive securities fraud. And 657 00:35:42,520 --> 00:35:46,960 Speaker 6: you know monetize every single aspect of human existence. So 658 00:35:47,120 --> 00:35:49,560 Speaker 6: there's there's a lot going on in the trunk camp. 659 00:35:50,760 --> 00:35:52,320 Speaker 3: I laugh to keep from crying. 660 00:35:52,880 --> 00:35:56,840 Speaker 5: Yes our tagline, Yes, I hope you guys will please 661 00:35:56,920 --> 00:36:00,000 Speaker 5: come back soon, absolutely whenever you want to. 662 00:36:00,080 --> 00:36:01,879 Speaker 6: So happy, too, happy too. 663 00:36:02,560 --> 00:36:03,520 Speaker 3: That's it for. 664 00:36:03,480 --> 00:36:09,360 Speaker 1: This episode of Fast Politics. Tune in every Monday, Wednesday, 665 00:36:09,560 --> 00:36:14,040 Speaker 1: Thursday and Saturday to hear the best minds and politics 666 00:36:14,120 --> 00:36:18,400 Speaker 1: make sense of all this chaos. If you enjoy this podcast, 667 00:36:18,800 --> 00:36:22,200 Speaker 1: please send it to a friend and keep the conversation going. 668 00:36:22,680 --> 00:36:23,800 Speaker 3: Thanks for listening.