Speaker 1: Hi, I'm Molly John Fast and this is Fast Politics. Well,
Speaker 1: we discussed the top political headlines with some of today's
Speaker 1: best minds.
Speaker 2: We're on vacation, but that doesn't mean we don't have
Speaker 2: a great show for you today. Peter Sham Sherry and
Speaker 2: Michael Grew of the podcast five four stop by to
Speaker 2: tell us what they are seeing from the Supreme Court
Speaker 2: this session. But first we'll talk to author and historian
Speaker 2: Mary Ziegler about the coming year reproductive rights.
Speaker 3: Welcome back to Fast Politics, Mary Ziggler, Thanks for having me.
Speaker 1: One of the things that I think is so interesting
Speaker 1: is the first Trump administration. They tried to do a
Speaker 1: lot of stuff and they had no legal framework, but
Speaker 1: it didn't much matter because they couldn't you know, they
Speaker 1: just kept losing in court, right because they had no
Speaker 1: legal framework. They were unable to make the sale on
Speaker 1: a lot of these policies and they never really got
Speaker 1: up to the Supreme Court. Now, over the last four years,
Speaker 1: I feel like Trump world has found all of these
Speaker 1: different ways to sell some of their ideas and they're
Speaker 1: kind of these Victorian era laws that were never taken
Speaker 1: off the books.
Speaker 3: Is that right?
Speaker 4: That's right? I mean so I think there was obviously
Speaker 4: a moment when people in the anti abortion movement believed
Speaker 4: that they could get policies at the federal level like
Speaker 4: the ones they were getting at the state level, especially
Speaker 4: for Republicans controlled the Congress, right and you know, a
Speaker 4: write to conception acts, fifteen week bans, and I think
Speaker 4: increasingly people in the anti abortion movement realized that voters
Speaker 4: would hate that, and that as a result, Republican politicians
Speaker 4: and competitive districts are not likely to go with that route.
Speaker 4: So these laws became really compelling because one they didn't
Speaker 4: require lawmakers to do anything, and two they sort of
Speaker 4: allowed lawmakers to pass the buck and say, we're not
Speaker 4: actually passing these laws, We're just allowing prosecutors who are
Speaker 4: nominally independent, that discretion to force the law, right.
Speaker 3: To enforce a law that hasn't been enforced in one
Speaker 3: hundred years.
Speaker 4: Yeah, So it became this sort of if you think
Speaker 4: sometimes about how Trump will talk about Tom Bondi, it's
Speaker 4: often I'm not going to tell her what to do.
Speaker 4: She'll be making these decisions independently. And anti abortion groups
Speaker 4: followed that up by saying, it's just the rule of law.
Speaker 4: Of course, it's not just the rule of law, because
Speaker 4: the interpretation of these zombie laws is often not actually
Speaker 4: what courts have ever thought they mean. It's making new
Speaker 4: stuff up, and two it's enforcing laws no one actually
Speaker 4: remembered existed in ways they're ever enforced. So it's definitely
Speaker 4: not just rule of law or prosecutorial discretion. But that's
Speaker 4: the kind of argument we're going to hear, right, right.
Speaker 1: Right, So explain to us a little bit about some
Speaker 1: of these zombie laws.
Speaker 3: Let's start with Comstock.
Speaker 4: Yeah, Clemstock's the most important. It was in eighteen seventy
Speaker 4: three obscenity law, and abortion made its way into this
Speaker 4: law because the people who framed it saw abortion and
Speaker 4: contraception and other drugs that were sort of ambiguous in
Speaker 4: terms of how they worked, like period regulators, as the
Speaker 4: sort of thing that made it easier for people to
Speaker 4: have illicit sex because they worry about getting pregnant. So
Speaker 4: even though the statue was really about obsession with sex,
Speaker 4: it didn't have anything to do with fetal protection, abortion
Speaker 4: still made its way into the statute, along with any
Speaker 4: other item for indecent or immoral use, whatever that means.
Speaker 4: So anti abortion groups have basically cherry picked the abortion
Speaker 4: language out of this statue to say, this is a
Speaker 4: ban on mailing any abortion related drug or paraphernalia that
Speaker 4: is federal right, and not just mailing it, receiving it,
Speaker 4: ordering it online. That would apply to anybody in any state,
Speaker 4: even a state with a balid initiative that passed, even
Speaker 4: a blue state. So if courts buy this argument, and
Speaker 4: it would have and if the Trump administration enforces the lawnay,
Speaker 4: it would have incredibly sweeping effects because it would affect
Speaker 4: everyone across the country.
Speaker 3: Okay, so what it would do.
Speaker 1: I want you to talk from a minute about these
Speaker 1: Victorian obscenity laws. Since you are both a legal historian
Speaker 1: and a legal historian, can you give us a little
Speaker 1: backstory on sort of how they came to be.
Speaker 4: Yeah, well, there was a lot of anxiety that these
Speaker 4: conservative Christian activists at the time had about sex and
Speaker 4: the city literally, so they were this was the moment
Speaker 4: where there's a lot of urbanization and immigration and a
Speaker 4: fear that young men were being kind of corrupted, that
Speaker 4: children were being corrupted, and that women were being corrupted
Speaker 4: because they were choosing to leave the home, leave their
Speaker 4: rightful roles as mothers and wives, and so the idea
Speaker 4: was you could purify the country by controlling not just
Speaker 4: when people had sex, but what people actually read it
Speaker 4: and thought. So the Comstock Act part of that push.
Speaker 4: It was an overtly Christian movement too. This was at
Speaker 4: a time when many of the figures who were behind
Speaker 4: this law were also trying to write an amendment to
Speaker 4: the Constitution stating that the US was a Christian huntry
Speaker 4: with a Christian constitution. But it was also a really
Speaker 4: important moment in a creation of a surveillance state, because
Speaker 4: if you think about it, this was the federal government
Speaker 4: getting into everybody's sex lives at a time when there
Speaker 4: was no internet, no data collection, and so it really
Speaker 4: spawned this massive network of snitches and bounty hunters and
Speaker 4: catfishers who used this law to go after people, along
Speaker 4: with other people who just used the law to get
Speaker 4: revengish on people they didn't like. So it was sort
Speaker 4: of authorizing a lot of really nasty starting behavior. So
Speaker 4: we would expect to see that come back if the
Speaker 4: laws used again.
Speaker 1: Yeah, so I have a theory about these Victorian laws.
Speaker 1: If you think about Jim Crow, which is not Victoria
Speaker 1: is later than the Victorian era.
Speaker 3: But I think it.
Speaker 1: Speaks to this idea America was able to craft some
Speaker 1: of the really the worst, most racist, most heinous legislation
Speaker 1: in the period from the Victorian era, I mean even
Speaker 1: before that, but some of the legislation that was passing
Speaker 1: this country would so incredibly heinous that it was the
Speaker 1: model for the Nuremberg Laws.
Speaker 3: So can you talk about that a little bit, Yeah.
Speaker 4: I mean the Comstock Act became a model for a
Speaker 4: lot of things. It was a model to begin with
Speaker 4: for state Comstock acts. So one of the kind of
Speaker 4: morifying things about this story is that I don't even
Speaker 4: think states know what Comstock acts they have. They're often
Speaker 4: even more invasive than the regular old Constock Act. Like
Speaker 4: a lot of them prohibit possession and use of birth control,
Speaker 4: for example, and no one has really thought about it
Speaker 4: because they haven't been enforced, but some of them are
Speaker 4: still sitting there on the books. And the Comstock Act
Speaker 4: also became a model for a lot of later invasive
Speaker 4: law enforcement techniques that we see used to entrap a
Speaker 4: lot of other people, people for example, who are queer.
Speaker 4: So the Comstock Act became a blueprint for a lot
Speaker 4: of things that we don't like the look of Another
Speaker 4: thing that's really important about the Comstock Act was that
Speaker 4: it wasn't used just to censor sex and reproduction. There's
Speaker 4: also used to sensor speech. As you can imagine, it
Speaker 4: was really hard to enforce the Comstock Act. Like of
Speaker 4: course people were doing all the things the Comstock Act city,
Speaker 4: you couldn't do all the time without getting caught. So
Speaker 4: a lot of the people who were invested in it,
Speaker 4: like Anthony Comstock, tended to go after their political critics
Speaker 4: and not just for you know, what they were doing,
Speaker 4: but what they were saying for criticizing the Comstock Act.
Speaker 4: So it's a reminder that this is obviously has a
Speaker 4: lot of present day residents that civil liberties and free
Speaker 4: speech are not sort of hived off from reproductive rights
Speaker 4: in any kind of meaningful way. They tend to travel together,
Speaker 4: and that was definitely true in the Comstock Hera too.
Speaker 1: One of the things when you look at these old laws,
Speaker 1: and I'm hoping we can talk now about the Alien
Speaker 1: Insurrection Act, so a lot of these laws are like
Speaker 1: grouped together by time, you know. So the Alien Insurrection
Speaker 1: Act starts in the War of eighteen twelve, right around
Speaker 1: then is the first time it's used.
Speaker 3: It's used to.
Speaker 1: Go after the British, but it has that same kind
Speaker 1: of speech thing. Can you talk about the speech thing?
Speaker 1: In that law? They have alien enemies that are from
Speaker 1: the countries that are supposedly the countries at war with
Speaker 1: so the British and War of eighteen twelve, or Germans
Speaker 1: during World War one and two, or Japanese during World
Speaker 1: War two, which was the thesis for those internment camps.
Speaker 1: But there is also another section in the Alien Enemies
Speaker 1: Act of people who are journalists.
Speaker 4: Basically, yeah, I mean, so there's provisions of the Insurrection
Speaker 4: Act that allow the president to deploy troops even if
Speaker 4: states don't request them. I mean, it makes sense. Parts
Speaker 4: of it make more sense if states actually are being
Speaker 4: invaded and they can't use their own troops, they ask
Speaker 4: the president for help. That makes sense. But they're parts
Speaker 4: of the law that allow the president to deploy troops
Speaker 4: against the states wishes when there are things like unlawful obstructions, combinations, assemblages,
Speaker 4: or rebellion that make it impossible to enforce federal law.
Speaker 4: And of course part of the fear is that the
Speaker 4: term assemblages, right or could be something that could be
Speaker 4: used just against protesters or journalists. Right, absolutely, yeah, especially
Speaker 4: so there's some fear that this could be used in
Speaker 4: ways that it hasn't been used before. It's also not
Speaker 4: clear who gets to decide. The Supreme Court seems to
Speaker 4: think that the president alone really is the one that
Speaker 4: gets to decide, even though courts have sort of later
Speaker 4: suggested that they can review whether the military did something
Speaker 4: lawful after the fact. That might not be much of
Speaker 4: a check.
Speaker 3: That's like the understatement of the year.
Speaker 1: What happens, So let's just talk for another minute about
Speaker 1: zombie laws. So what's going to happen? Firdsting's first Alien
Speaker 1: Insurrection Act I think is going to get the most
Speaker 1: play because as much as Trump wants to use Comstock,
Speaker 1: Trump is not an anti choice Zalad the way a lot.
Speaker 3: Of people in the party are.
Speaker 1: So I think a more likely scenario as we start
Speaker 1: with alien enemies, so he's going to have to declare
Speaker 1: war with Mexico.
Speaker 4: Right, potentially, I mean it could come up even with protests, right,
Speaker 4: I mean, I think one of the more likely ways.
Speaker 4: He's hinted it. Lots of different ways he might try
Speaker 4: to invoke this, he scented that he could use it
Speaker 4: to assist in this kind of mass deportation program he
Speaker 4: has in mind. He scented that he could use it
Speaker 4: not in response to that, but in response to protests
Speaker 4: that might greet that or other things he's doing, because
Speaker 4: the more common applications of the Insurrection Act have been
Speaker 4: in response to protests. Right, So, the most recent invocation
Speaker 4: of it was in nineteen ninety two when there were
Speaker 4: riots in la following the beating of Rodney King. And
Speaker 4: it wasn't the scenario where the President just imposed this stuff.
Speaker 4: It was the state of California asked for help. Usually
Speaker 4: it's when they're protests or riots, not just you know,
Speaker 4: people who are here un instrumented. So it depends on
Speaker 4: how aggressive Trump wants to be and whether he wants
Speaker 4: to sort of be in it expanding radically a category
Speaker 4: that we've seen in the past, or applying the law
Speaker 4: in an even more novel way.
Speaker 3: What would the pushback look like to that.
Speaker 4: I think there are different forms of pushback depending on
Speaker 4: what the order is. There may be pushback from within
Speaker 4: the military. That's not something that you know, we would
Speaker 4: see unfolding in the courts. But that would be one
Speaker 4: form of pushback. We know that when Trump was invoking
Speaker 4: the Insurrection Actor the Pose Committist Act in his first administration,
Speaker 4: there were moments when some people within the military were hesitant.
Speaker 4: It's unclear if that'll happen again. There could be legal
Speaker 4: channallenges too, whether or not again, and sort of unclear
Speaker 4: whether those legal challenges will actually affect the behavior of
Speaker 4: people on the ground being given these orders or not.
Speaker 4: And it's also unclear what courts will say, because it
Speaker 4: seems as if the president has a lot of discretion
Speaker 4: under the Insurrection Act, even according to what courts have
Speaker 4: said in the past, not unlimited. But I don't know
Speaker 4: what court challenges would look like. So there's a lot
Speaker 4: of uncertainty, to be honest, because we haven't seen the
Speaker 4: Insurrection actually invoked by anyone since nineteen ninety two, which
Speaker 4: is the longest period in our history that we've gone
Speaker 4: without it being invoked, and we haven't really seen it
Speaker 4: invooked in some ways in the past that Trump has
Speaker 4: hinted he might want to again, we don't know if
Speaker 4: he's going to follow through. He's ex lots of possibilities,
Speaker 4: he doesn't actually follow through on. But if he did,
Speaker 4: and some of these were unprecedented, we also don't know
Speaker 4: if there were court challenges, if that would change you
Speaker 4: know again, I don't think it would, but it's hard
Speaker 4: to say because it would be unprecedented.
Speaker 1: Right, I mean, that's the thing. It's like a lot
Speaker 1: of this stuff, it's hard to imagine. I mean, will
Speaker 1: you talk us through what this sort of landscape looks
Speaker 1: like in the courts for a minute.
Speaker 4: It's complicated too. The Supreme Court is obviously very conservative.
Speaker 4: It already has three members selected by Donald Trump. It's
Speaker 4: likely to wind up with a majority selected by Donald
Speaker 4: Trump by the end of the substation.
Speaker 3: Forever and ever until we die.
Speaker 4: The one thing that's not going to be as game
Speaker 4: changing about that is the most likely justices to be
Speaker 4: replaced by Trump are Justices Thomas and Alito, who are
Speaker 4: actually more conservative than the people Trump already picked. So
Speaker 4: it may not really change the Court's partisan complexion that much.
Speaker 4: Even if Trump finds people who are just as conservative
Speaker 4: as Thomas or Aledo, or even more conservative than Thomas
Speaker 4: or Alito, it won't necessarily so, I mean, the only
Speaker 4: way the US Supreme Court becomes radically different is if
Speaker 4: there's an unplanned retirement by someone like Sonya Soto Mayor
Speaker 4: or even John Roberts, who are both in their early seventies,
Speaker 4: that's not super likely because they're not particularly old, they're
Speaker 4: not likely to want to retire of their own volition.
Speaker 4: The federal courts in general are still quite conservative, although
Speaker 4: less so than when Joe Biden took office, because Biden,
Speaker 4: like Trump before him, put a record number of people
Speaker 4: on the federal courts. But in the next four years
Speaker 4: the pendulum is obviously get to swing very dramatically in
Speaker 4: the other direction because Trump is going to again rush
Speaker 4: to fill the federal courts that were already very conservative.
Speaker 4: So these challenges are going to increasingly be going before
Speaker 4: judges that Trump put on the court, who are likely
Speaker 4: to be predisposed to agree with him on whatever the
Speaker 4: questions are.
Speaker 1: There's a very conservative circuit that kicks a lot of
Speaker 1: stuff up to the Supreme Court, right.
Speaker 4: So the Fifth Circuit Court of Appeals. Oh and just
Speaker 4: to be clear, do you mean the Alien Insedition the
Speaker 4: Insurrection Act?
Speaker 3: Wait say it again.
Speaker 4: It's well, so there's the Alien and Sedition Acts, which
Speaker 4: were about the press. That's what I'm thinking about well, okay, well,
Speaker 4: so I was talking about the Insurrection Act, which is
Speaker 4: also useful for protests, but we can talk about the
Speaker 4: Alien and Sedition Acts. Yeah, let's talk about that for
Speaker 4: a minute. Those were the acts that were used to
Speaker 4: start the internment camps in the Japanese. Trump wants to
Speaker 4: deport people using what's called the Alien Enemies Act. Yes,
Speaker 4: the Alien which was yeah, so I wasn't sure what
Speaker 4: you meant. That was why I was confused. So there's
Speaker 4: actually an Insurrection Act too, So that was what I
Speaker 4: was saying.
Speaker 3: Yes, Yes, that's the one he tried to use last time. Yeah,
Speaker 3: and you might use that too.
Speaker 4: So the Alien Enemies Act was passed in seventeen ninety
Speaker 4: and it allows presidents to apprehend and remove people who
Speaker 4: are foreign nationals when the US is at war. The
Speaker 4: only time it's ever been used has been after Congress
Speaker 4: has actually formally declared war, so in eighteen twelve and
Speaker 4: World War one and two. Trump has been hinting that
Speaker 4: he wants to use it to make it easier to
Speaker 4: deport people, because it would allow him to bypass immigration courts. Usually,
Speaker 4: if you're deporting people, they have certain due process interests.
Speaker 4: Before those deporportations take place, some of them might have
Speaker 4: been trying to invoke the asylum. If he's allowed to
Speaker 4: invoke the Alien Enemies Act instead, he could remove a
Speaker 4: lot of people much more easily because the law gives
Speaker 4: presidents pretty broad authority to remove non citizens if they're
Speaker 4: not minors at a time of declared war. It's a
Speaker 4: little different from the Alien and Sedition Acts, which were
Speaker 4: passed at the same time and largely kind of criminalized
Speaker 4: political dissent. Most of those either were repealed by Congress
Speaker 4: or expired, but the Alien Enemies Act, which came from
Speaker 4: that same kind of dictatorial impulse, survived and is available
Speaker 4: theoretically for a president to use.
Speaker 1: Wouldn't Congress have to declare war before he could do
Speaker 1: it or not?
Speaker 4: Well, yeah, it's never been used before in the way
Speaker 4: that Trump is proposing. But the text and history of
Speaker 4: the law will make it very hard to justify what
Speaker 4: Trump's trying to do. So it generally says you need
Speaker 4: an invasion or predatory incursion. That's the language by a
Speaker 4: foreign nation or government. And here, you know, Congress obviously
Speaker 4: hasn't declared war on anybody. There hasn't been an evasion
Speaker 4: invasion against US territory in a really long time. And
Speaker 4: even if Trump tries to say, you know, drug cartels
Speaker 4: are declaring a war, they're not actually national governments, so
Speaker 4: they don't seem to be the criteria of the law.
Speaker 4: It's also so there's no real precedent for using this
Speaker 4: the law this way historically, there doesn't appear to be
Speaker 4: a textual justification for doing it.
Speaker 3: But that doesn't mean Trump won't do it.
Speaker 4: Yeah, number one and number two, I think what Trump
Speaker 4: would try to argue would essentially be to say, hey,
Speaker 4: you know, the courts shouldn't be intervene in what is
Speaker 4: a military decision of the president. That there should be
Speaker 4: a lot of discretion in to national security matters decided
Speaker 4: by the president. So I think that's the risk that
Speaker 4: courts just our hands off, even though both history and
Speaker 4: text of the law seem to point in the direction
Speaker 4: of Trump not being able to do this.
Speaker 3: Yeah, Mary, thank you for joining us. I hope you'll
Speaker 3: come back.
Speaker 4: Okay, of course, my pleasure.
Speaker 2: Peter shab Sherri and Micha Olier are two of the
Speaker 2: hosts of the podcast five.
Speaker 1: Four Welcome Back Too Fast Politics. We have two of
Speaker 1: the three members of the five to four podcast, which
Speaker 1: is one of my absolute favorite podcasts in the entire world.
Speaker 3: Probably you know.
Speaker 1: What, fuck it, it's the best part. Don't listen to this,
Speaker 1: just listen to that. Okay, that will.
Speaker 3: Make you smarter. I will only do terrible things. And
Speaker 3: I know no, I'm just kidding. I'm very smart to NATA. Yeah, welcome, Michael, Welcome, Peter.
Speaker 5: Thank you, Balin, thanks for having us.
Speaker 1: I wanted you guys so much because of all the
Speaker 1: terrible things that are coming, and many of them have
Speaker 1: a bizarre zombie legal framework discuss.
Speaker 5: Sure, Okay, So I mean, I guess the way I've
Speaker 5: been thinking about this is like, what do the different
Speaker 5: worst case scenarios look like, and what are the potential
Speaker 5: roadblocks between here and those worst case scenarios are. That's
Speaker 5: actually like, it's not a very encouraging exercise, so.
Speaker 3: Like, oh yeah, so let's do it please.
Speaker 5: One example I've been thinking of is like, so Trump
Speaker 5: deshot tries to deport twenty million people. There are countries
Speaker 5: that could take twenty million people in the next two three,
Speaker 5: four years, So there will inevitably be camps. There will
Speaker 5: be images of the camps the conditions will be bad.
Speaker 5: There will be lawful, permittent residents and even citizens who
Speaker 5: end up in the camps because they're centralized orre you catabise.
Speaker 1: Yes, likely journalists will be later in the camps, and
Speaker 1: the earlier camps will just be people who they think,
Speaker 1: look Maxican.
Speaker 5: That's correct. This will lead to widescale protests, especially in cities, which,
Speaker 5: as we saw during the BLM movement, might lead to
Speaker 5: Trump trying to deploy the US military on US soil
Speaker 5: to control protests. Right, and so you think about that,
Speaker 5: that's sort of a worst case scenario, is the US
Speaker 5: military being used to quell domestic unrest? And how we
Speaker 5: get there? And then you so, what are the roadblocks
Speaker 5: to this? Well, it cost a lot of money. Congress
Speaker 5: is already appropriating a lot of money to the border. Well,
Speaker 5: there are laws that prevent the president from deploying the
Speaker 5: military on US soil. Well, the Supreme Court said that
Speaker 5: he has immunity, so that law doesn't. And you can
Speaker 5: just go down the line and be like, well, actually,
Speaker 5: the guardrails between here and there are very few, and
Speaker 5: a lot of times relying on like Amy Cony Barrett
Speaker 5: or John Thune you know, some random Republican senator or
Speaker 5: something like that, and it's just scary. But it's also
Speaker 5: very uncertain because we don't know what Trump's actually can
Speaker 5: get a try, and we don't know how far he's
Speaker 5: willing to go, and so a lot of it just
Speaker 5: feels like being tied to a train track and you know,
Speaker 5: just watching the train come in.
Speaker 3: Peter taunts.
Speaker 6: I agree with all of that. I also think that
Speaker 6: if you're taking the cynical approach, which I do, what
Speaker 6: Trump wants out of the Judiciary, for example, is for
Speaker 6: it to function essentially as a legitimizing operation for him.
Speaker 6: Right he was very irritated in his first term by
Speaker 6: the resistance he got from the Supreme Court. I think
Speaker 6: it's safe to say that he does not particularly I
Speaker 6: don't want to say stand behind, but he's not particularly
Speaker 6: a fan of his initial choices to the Court, especially
Speaker 6: Kavanaugh and Barrett. A big part of that is because
Speaker 6: they did not stand behind him during the Stop the
Speaker 6: Steal endeavor. I think what he wants out of the
Speaker 6: Judiciary this time around is for it to be loyal
Speaker 6: to him, just like he wants the rest of the
Speaker 6: Republican Party to be loyal to him. I think that's
Speaker 6: what we should expect out of his nominees and appointees
Speaker 6: to the judiciary. And I think that it's important to
Speaker 6: understand that, like the judges throughout the federal courts, the
Speaker 6: conservative judges throughout the federal courts are now part of
Speaker 6: a political movement that is essentially just the Donald Trump Show,
Speaker 6: and what gets you ahead in that political movement is
Speaker 6: loyalty to Donald Trump. So it's very hard to predict
Speaker 6: exactly how much friction is going to exist between the
Speaker 6: judiciary and Trump, but I would say it's a safe
Speaker 6: bet that it's going to be less than last time.
Speaker 6: And that's what has me worried, And I think the
Speaker 6: exact contours of it are very hard to predict. But
Speaker 6: I'm not looking forward to learning exactly what the dynamic
Speaker 6: is between the judiciary and Trump this time around.
Speaker 3: Yeah, I just want to sort of pull back for
Speaker 3: a minute.
Speaker 1: It seems like the big difference between Trump one point
Speaker 1: zero and Trump two point zero is that Trump two
Speaker 1: point zero has the sort of somebody at the Heritage
Speaker 1: Foundation cooked up a few ideas of like racism that's
Speaker 1: worked in previous centuries and have decided that they are going.
Speaker 3: To use that as a legal framework. Do you think
Speaker 3: that's correct.
Speaker 6: There's definitely some truth to it. I mean, I think
Speaker 6: that what we're seeing now is the result of a
Speaker 6: conservative political movement that has spent what's almost a decade
Speaker 6: now being a little bit more proactive, thinking that a
Speaker 6: lot of barriers that they previously thought existed are now
Speaker 6: being shattered or can be shattered. I think Trump has
Speaker 6: sort of brought to the forefront of their minds a
Speaker 6: lot of political possibility, and one of those possibilities is, well,
Speaker 6: we can peel back major elements of the New Deal,
Speaker 6: we can peel back major elements of these civil rights movement,
Speaker 6: these things that we thought were sort of done deals,
Speaker 6: Maybe we can fight over them. And they are now
Speaker 6: putting in an effort to, for example, attack birthright citizenship
Speaker 6: right and we'll see how far that gets them. But
Speaker 6: they believe that it's on the table.
Speaker 5: Yeah. I wanted to talk about birthright citizenship when you
Speaker 5: started this whole line of thought, because it's worth emphasizing
Speaker 5: that this is like one part of the settlement of
Speaker 5: the Civil War, the reconciling of that, you know, very
Speaker 5: costly conflict the breeding of African Americans into full citizenship status.
Speaker 5: So attacking it is very much like trying to unwind
Speaker 5: quite literally the settlement of that.
Speaker 1: Yeah, and also just the sort of it's a blow
Speaker 1: against the civil rights movement, yes.
Speaker 5: Go on, but also that it is one of the
Speaker 5: most unambiguous provisions in the Constitution and has very settled
Speaker 5: meaning in constitutional law or since it's been around, you know,
Speaker 5: both in like writings and in practice, and so so
Speaker 5: the idea that they could attack that is you know,
Speaker 5: I think in basketball they would call that like a
Speaker 5: heat check, right, like they're feeling very good right now
Speaker 5: and seeing just how much they can get away with.
Speaker 5: And that's scary in it of itself.
Speaker 1: Yes, now, as I'm the only person, I keep saying
Speaker 1: this because it's annoying to me. But since I'm the
Speaker 1: only person who ever looked at their priors with this
Speaker 1: election and was like, how did I go wrong? Whereas
Speaker 1: everyone else just was like how did other people go wrong?
Speaker 1: I think I'm too optimistic when I think about what
Speaker 1: Republicans could cook up and also what the American voters
Speaker 1: might reject. So I want to couch this in my
Speaker 1: own optimism and what that means, but it does seem
Speaker 1: like not specifically the Koch brothers, but the Koch Brothers
Speaker 1: esque wing of the party has decided that this wrecking
Speaker 1: ball can fulfill a lot of their fantasies, the wrecking
Speaker 1: ball being Trump. But if we remember anything from Trump
Speaker 1: one point zero, it's that my man cannot do much
Speaker 1: because he gets very distracted.
Speaker 6: Yeah, that's the reality of Trump, and I think it's
Speaker 6: probably the only reason for optimism is are they so
Speaker 6: incompetent that they're not going to be able to really
Speaker 6: pull any of this off. Obviously we will see chaos
Speaker 6: in the Trump White House. We will see incompetence in
Speaker 6: various forms. But when your primary objective is to destroy,
Speaker 6: competence doesn't always matter that much. And I also think
Speaker 6: that the first Trump term was really defined by a
Speaker 6: tug of war between the Trump wing and the establishment.
Speaker 6: Part of that was just because he had to bring
Speaker 6: establishment elements into the fold because there weren't enough loyalists
Speaker 6: in twenty sixteen, twenty seventeen. That's no longer the case.
Speaker 6: Right now, the Trump wing of the party has effectively
Speaker 6: won and they are in control politically, and I would
Speaker 6: imagine that that means that we're going to see a
Speaker 6: little less friction within the Trump White House, within the
Speaker 6: administration itself, and a little more of people ready to
Speaker 6: say how high when he says jump. So we'll see
Speaker 6: exactly what plays out. It's again one of those things
Speaker 6: that's just really hard to predict because these people are
Speaker 6: all absolute nut jobs politically and also in their personal lives.
Speaker 6: Right they cannot all sit in a room together and
Speaker 6: hash something out out. Something will go wrong. We just
Speaker 6: don't know what's going to go wrong yet.
Speaker 3: Yes, for sure. Do you have another thought here, Michael?
Speaker 5: There's so much going wrong in our country right now.
Speaker 5: I think it's a mistake to, you know, be like X,
Speaker 5: Y or Z are like the big problem. But like
Speaker 5: one issue that is very real is that Congress has
Speaker 5: been somewhat dysfunctional for decades, and that dysfunction leaks out
Speaker 5: into other branches. And the longer it festers, right, the
Speaker 5: longer this sort of infection grows, the bigger our reforms
Speaker 5: have to be. The harder the lift is to fix it. Right,
Speaker 5: there is a point in time when you probably could
Speaker 5: have gotten away with some modest gerrymandering and filipbuster reform
Speaker 5: and things like that, and the federal government could have
Speaker 5: just limped on moderately functional. Now it's like you got
Speaker 5: to reform the Supreme Court. You might have to rethink
Speaker 5: the entire administrative state at how that works, which affects,
Speaker 5: you know, everything in this country. And the next four
Speaker 5: years are going to be an opportunity cost where things
Speaker 5: are just going to get worse. The government's capacity is
Speaker 5: going to degrade, and it's going to give us more
Speaker 5: to do when we do get powered back.
Speaker 3: Yeah, if we get pack.
Speaker 5: If we get bout that.
Speaker 1: Yeah, I mean I shouldn't talk like that because obviously
Speaker 1: there are going to be elections, they'll be midterms, they'll
Speaker 1: be presidentials, and we have to protect norms and institutions.
Speaker 3: Speaking of protecting norms and institutions, I.
Speaker 1: Want to go back to Congress actually for a second,
Speaker 1: because I think, Michael you had a really good point
Speaker 1: about Congress. So the last Congress, Mike Johnson had this
Speaker 1: very slim majority. It was one of the stupidest Congresses ever.
Speaker 1: I know it was stupid because even Jake Sherman from
Speaker 1: punch Ball said he couldn't believe how stupid it had gotten. Right, So,
Speaker 1: like clearly, very very very stupid. He has less of
Speaker 1: majority now, so legislatively and in the last session they
Speaker 1: couldn't even name post offices, so legislatively, nothing is going
Speaker 1: to happen.
Speaker 3: Do you think that's correct?
Speaker 1: And does it necessarily even matter if Trump is going
Speaker 1: to just do eos.
Speaker 5: My guess would be that they're not going to be
Speaker 5: able to muster the votes for big social legislation. I
Speaker 5: think they're going to be able to smuggle in a
Speaker 5: lot of stuff into budgetary bills.
Speaker 4: You know.
Speaker 5: That was why the example I used was mass deportation,
Speaker 5: because that's one where they can just remark a lot
Speaker 5: of money for the border and let Trump go wild.
Speaker 5: And that's my concern. That's where I think the biggest
Speaker 5: concerns should be, is that things are going to be
Speaker 5: bad with deportations, with rounding people up in large numbers.
Speaker 5: I don't know that it's for sure going to happen,
Speaker 5: but I'm very scared of it.
Speaker 6: I would also say that a lot of the conservative
Speaker 6: project can be done through the executive branch in conjunction
Speaker 6: with the judiciary. So if you're talking about stripping the
Speaker 6: administrative state down to its bones, that's something that they
Speaker 6: don't need Congress for. In fact, Congress is a thorn
Speaker 6: in their side, and the entire point of the conservative
Speaker 6: project is to box Congress out of the process. So
Speaker 6: what you do is challenge Congress's authority to exert influence
Speaker 6: over administrative agencies and then drag that into court. So
Speaker 6: I'm concerned about that. I am concerned about what they
Speaker 6: can accomplish, not just through executive orders but just by
Speaker 6: sort of your standard operating procedure control over the administrative state. Right,
Speaker 6: many conservatives believe in a very centralized mode of control
Speaker 6: in that regard, and it's pretty disconcerting.
Speaker 3: And this is the Ross Vaught story, right.
Speaker 1: Rots Vought moved into omb one of the architects of
Speaker 1: Project twenty twenty five, and he is a person who
Speaker 1: in Trump one point zero was like, let's just not
Speaker 1: write the check.
Speaker 6: There are a lot of people like that who ten
Speaker 6: years ago, even within GOP ranks, would have been dismissed
Speaker 6: as cranks, who are now getting a lot of attention.
Speaker 6: And I think will be a big story in the
Speaker 6: years to come because you're I think you're right, Molly,
Speaker 6: legislation is not really going to happen They're not going
Speaker 6: to pass anything major other than I would imagine another round.
Speaker 1: Of tax cuts for rich people, as one would hope,
Speaker 1: because that was why they were put there.
Speaker 6: Right right. I think there are a lot of things
Speaker 6: that can happen with the administrative state. I don't want
Speaker 6: to get into a place where I'm just trying to guess,
Speaker 6: but part of the conservative project for many, many years
Speaker 6: has been to sort of rip out the civil servants
Speaker 6: that compose the administrative state and replace replace them with hacks,
Speaker 6: replace them with conservative patronage jobs. That's something you could
Speaker 6: see happening in the coming years. I wouldn't be surprised
Speaker 6: if you see core challenges and sort of a little
Speaker 6: bit of back and forth over what exactly is allowed
Speaker 6: and what isn't. But they're going to want They're gonna
Speaker 6: want to do that.
Speaker 2: There.
Speaker 6: You know, Trump's been talking about firing Jerome Powell. There's
Speaker 6: there's a lot of things they want to do.
Speaker 3: Yeah.
Speaker 1: I would like to point out one of Trump's biggest donors.
Speaker 3: The one guard rail any of us have.
Speaker 1: Is that one of his biggest donors, named a hedge
Speaker 1: funder from Chicago whose name now escapes me, was a
Speaker 1: deal book and was like, Trump, you don't get to
Speaker 1: fire the head of the fad. That's good And I
Speaker 1: was like, oh good, I felt much better.
Speaker 6: You is that who is that that Ken Griffin or
Speaker 6: is that someone else Griffin?
Speaker 3: It's Ken Griffin.
Speaker 1: Ken Griffin A deal book said we really would be
Speaker 1: disappointed if.
Speaker 3: Donald Trump fired Jerome Powell.
Speaker 1: Which is as good as a guardrail as far as
Speaker 1: I can tell.
Speaker 6: Yeah, it's always a disconcerting thing when we're hoping to
Speaker 6: rely on the largess of right wing billionaires to save us.
Speaker 6: But I guess those are the breaks in some respects.
Speaker 3: Yeah, that's where we are. It's pretty dark.
Speaker 5: Yeah. The foot side of that, though, is you know,
Speaker 5: I think the billionaires they want economic stability. I think
Speaker 5: they benefit from economic stability. Another thing that I think
Speaker 5: Trump has a lot of leeway with is tariffs, which
Speaker 5: can bring a lot of instability and also create a
Speaker 5: lot of opportunity for graft, which is very much Trunk's thing.
Speaker 5: He can give special exceptions to companies on the tariffs
Speaker 5: and give them a competitive advantage in exchange for some
Speaker 5: sort of payoff, which is this is what he wants
Speaker 5: to do. He wants to personally profit off his position.
Speaker 5: So this is like a quintessential Trump thing. So I
Speaker 5: assume we are going to get some tariffs and that's
Speaker 5: going to be hard on the American economy. We're all
Speaker 5: going to feel that pain.
Speaker 1: When you look at the inauguration pay for play. That's
Speaker 1: what's going on there too, Right. Tech companies are like,
Speaker 1: he's going to pick the winners and losers. We want
Speaker 1: to be winners, that's right.
Speaker 6: Yeah, I mean not just tech companies.
Speaker 3: ABC News, Yes, yes.
Speaker 6: You know you're seeing the sort of broad concern that
Speaker 6: he is going to lean on actors within the private
Speaker 6: sector in various regards, and those actors want to get
Speaker 6: in his good graces and also get in on the
Speaker 6: grift wherever they can. I mean, the sort of his
Speaker 6: billionaire donors are sort of in two different camps. One
Speaker 6: is the Ken Griffin types. You know, he's the head
Speaker 6: of Citadel, which is like this big market maker and
Speaker 6: hedge fund and they probably want market stability. But the
Speaker 6: Silicon Valley side doesn't necessarily want stability. They might want
Speaker 6: chaos because they want to be able to rip out
Speaker 6: enough regulations that they can commit massive securities fraud. And
Speaker 6: you know monetize every single aspect of human existence. So
Speaker 6: there's there's a lot going on in the trunk camp.
Speaker 3: I laugh to keep from crying.
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Speaker 5: come back soon, absolutely whenever you want to.
Speaker 6: So happy, too, happy too.
Speaker 3: That's it for.
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