Cocktail Chatter and Final Reflections

Hello and welcome to the sllate Colitical Gab Fest july second, twenty twenty six. The America As a King Now Eedition. I'm David Wotz of Citycast in a Swelter in Washington DC from the New York Times magazine and Yle University laaw School and probably a swelter in New Haven, is Eily Bazalon. Indeed. Nice still though. I love summer. You do like a swelter. you're one of these people who would prefer to be extremely hot than cold. Well, that's true if I have to choose. I don't love being extremely hot, but I do love summer. Introduce Ruth. I will. John Dickerson is on vacation from although how can you be on vacation when you don't have a job nder the. That is really rude to say with him not even around. Oh truth. We have been making fun of John and his joblessness for many months now. I know that, but He's so busy he's so busy. Also that's why I can do it. It's like he's a man who has like seven jobs. his substack. He writes more for substack than I don't know than evenven you write We are joined. thrilled in the Scotacy Week to be joined by the New Yorker's brilliant legal writer, Ruth Marcus Chris, How you doing? Hello This week on the Gatfest, it's all suupremes, top to bottom. It's just Diana Ross and the Supremes court video, we don't have video, but Emily was just doing her d dancing. like what aream. Yeah The court wipes out the independent ish agencies that have helped oversee key aspects of American government in American life. and gives the president absolute power to fire basically anyone who works for the federal government. Then the court upholds birthright citizenship barely And then the Supreme Court rules against transgender Americans again, this time in a pair of cases concerning girl sports Plus we'll have cocktail chowder of course. Introducing the Total Solutions advantage only from Comcast Business. It's the largest, fastest fiber powered network for small business, gig speeds with equipment and security included, and a five year price lock. No one does business like Comcast Biness. Switch today. Get started for sixty dollars month for twelve months when you add an advanced solution to a qualifying interternet package. Limited time offer Restrictions apply. new customers only requires three hundred megabt per second internet, secity edge and additionalifying service, one year agreement, paperless billing and aut pay bank account required. Tax and fees extra This episode is presented by the Panned Parenthood Federation of America We're watching the devastating consequences of policies decisions play out in real time. The Trump administration's backers in Congress permanently defund plan an effort to shut down health centers and block patient care like wellness exams, cancer screenings, and more across the country. especially for those with low incomes If you want to do something concrete to help, visit plannedparenthood. org. Slash gift builds a future where everyone can get the care they need and deserve. So we finalized the Declaration of Independence, two hundred and fifty years ago this week. It seems perhaps poorly timed for the Supreme Court to anoint a king this week in what some are calling the most significant expansion of presidential powers ever The court this week overruled ninety one years of American jurisprudence, tradition, law clear understanding Congress to enshrine the unitary executive theory an extreme vision of American government that embodies all decision making about the entire federal government in a single person. In this case, the person is Donald Trump. So what Ruth Marcus is the slaughter case Why is it so consequential And tell us your connection to it, too? Yes. Well, sllaughter is named not for what the court did to Congress's power, but for a woman named Rebecca Slaughter, who was a Democratically nominated federal trrade commommissioner. There are five on the Federal Trade Commission. This is a pretty standard way that independent agencies are set up when there's a Republican president, the president gets to name the chair, would name a Republican. There would be three Republican appointees in a normal place and two Democratic appointees Becca I say Becca because she is not a friend of the pod, but a friend of the Marcus Libowitz family. for reasons I'll explain in a second was summarily fired by President Trump shortly after he took office in contrravention of, as you said, a ninety year old case also involving the FTC and a case called Humphrey's executor We care about this case in our house for two reasons. One is we care about the separation of powers and I care about what the Supreme Court does The second reason is my full disclosure reason. My husband was the chair of the Federal Trade Commission under President Obama and signed an amicus brief, filed an amicus brief in the case trying to stop what was inevitable, which was what the court did, which was overruling Humphrey's executor So How big a deal do you guys think this is? Here's the argument for this is like a huge deal It's not just the Federal Trade Commission that's at issue here. It's all the agencies that have multi member heads, right? multi member commissions. All of them, presumably now the president can just remove all of those agency commissioners for no reason other than just political preference And That is really a sea change in how American law has operated, right? I mean, we've had these agencies that have had fair amount of consistency in their interpretation of law and regulation of corporations to a large degree for Low these many decades The argument in favor of this is that it's better for democratic accountability. Every president comes in, he puts his or she someday, maybe, puts his people in place. And then the policies change at the agency more rapidly and you know who's accountable and the voters can vote the president out if they don't like the result of that And the argument in the other direction is that insulating these agencies from direct partisan influence in that way has been better for the consistency of their rulings and for the quality of the work they're doing and has allowed this nemocratic, but also nonpartisan interpretation of statutes to really arise in Washington and govern the country David, what do you think about that choice and the like implications here I'm a conservative, small C conservative and as a small c conservative I believe in predictability. I think people need predictability. They need to know what the rules will be from year to year. One of the greatest American strength. and I don't need to tell this to you guys who are both lawyers has been really fierce and total clarity about Eah and property rights, We're very consistent, and that's why people have been investing and building with confidence in the United States And this appears to me to be something which cuts exactly against it, which says that there is no, you consistency is not something we value. We value only deemocratic accountability. I also think it's quite tenuous to say, oh, well, if the president, you know, if the president has full control, then there's now democratic accountability because that kind of assumes that the president is somehow full embodiment of the people which is very much a Trumping idea but I don't think this's an American idea. And actually, if you think of where Democratic accountability lives in this country, it lives in Congress and Cress created these agencies, Congress for these agencies to create a sort of level of technocratic separation from presidential power That was the purpose that Congress did made that's the reason why they did this And so the idea that we're somehow creating more accountability by taking A way this thing that Congress designed seems tenuous to me I'm going to mix this up a little bit because much to the displeasure of my husband, while I disagree with this decision, I think it's wrong, I think it's unnecessary, and I think it will have bad consequences I am not at highC worked up about it for a variety of reasons First of all, I think you slightly overstated, David in your introduction, the scope of this ruling. It is conceivable that this unitary executive theory could be interpreted to reach down into the bowels of the federal Civil Service and to give the president untrammeled Article two power to fire anybody he wants in the Civil serervice Conservatives have argued that. I think Rus Bote at OMB would like to do that. That is not what this opinion says. though if you were trying to do that, you would find quotes in this opinion to do it. In fact, it's not even clear that the president under this opinion fire inferior officers, that is, people who are not at the level of FTC commissioners or other Senate confirmed people. So the immediate impact is on these independent agencies. I completely agree with you about the court talks about it about the consistency in terms and predictability in terms of reliance interests. Congress created these agencies. It wanted to set them up this way. It did it for a reason they're theoretically technocratic, though, you know, maybe a little bit more political in the current environment. And Congress should have the flexibility to do that. but since independent agencies have now been wiped out, let's think about how big a sea change that actually is. For one thing, when President Trump comes in, Lena Khan, the chair of the FTC, who was very much on the left, is immediately replaced by a choice of the president. And in fact, if the president is not happy with his choice for the chair of the FTC, he could have already, without this ruling, have replaced the chair. that's entirely up to him from one of the other commissioners. Number two composition of these commissions immediately changes on a change of administration majority of one party to the majority of the party that's in power. And so think about The Federal Communications Commission under Brendon Carr That is an independent agency. How, you know Does the president have more power over the FCC today than he did a week ago? Yes, in theory, but theseese agencies have been pretty if not beholden to, attentive to what the president in power wants. So while I think it's really unfortunate that we have this change and it's very difficult to get this for Congress to get this power back. I mean, think about it. The Congress, I'll stop in one second. The Congress set up the Federal Election Commission intentionally to be divided three to three. That makes it functionally, actually not very effective, Congress would not have set up a commission to run politics and campaign finance if it knew that it was going to be completely under the thrall of a president. How is Congress ever going to fix that? Not in our lifetimes? So this is unfortunate, but I am not in total hand wrringing about it Well, I'm gonna do a little handwringing. First of all, you on the legal rationale front, I mean, basically the majority opinion by Chief Justice John Roberts just makes up this idea that this structure, this century old structure from Congress is all of a sudden a giant violation of the separation of powers That is not understanding of the separation of powers that we've ever had in this country. and as David said, it puts enormous power into the hands of one person, the president in a way that seems totally at odds with what the founders wanted at or what's good for us. So I'm troubled by that Um, And then I think, you know I take all your points, Ruth. I also think though that There are implications of this that like I don't understand how it's all supposed to work. So Justice Gorsuch steps in. He acknowledges all the politicization that already exists that you're talking about. And he also says like, look, guys, this is really only half a solution because we've given the president too much power now. Now we, the court need to step in and tell Congress that it cannot delegate all these powers to these executive branch agencies It has to take back what he calls legislative and judicial powers. So all the judges like on the tax courts, the immigration judges who are in the executive branch and do something else with them, put them into, I don't know what he's imagining. He talks about a legislative agency. I mean, we have like the Cgressional budget office, but that hardly does the work of these agencies. So I'm literally like, how is this going to work? And One example that I saw people worrying about online and makes sense to me to worry about is so artificial intelligence, are we going to have some national agency some way of regulating these enormously powerful companies that make AI? And now it seems like no, we're not because the only clear answer would be An agency in which the president can just summarily control everything. And there isn't this insulation from partisan politics unless somehow Congress figures out how to put an agency like that inside of Congress, which I don't understand. anywhere I don't know if you guys know enough transrnational legal structure Do other countries have this idea of a unitary executive? do they have are there other countries where the executive essentially has full authority over the government My sense is that certainly in parliamentary systems, that is not the case. In parliamentary systems, you have a much more entrenched civil service with much more power for good and for bad But is this a model that exists elsewhere outside of authoritarian nations with authoritarian exxecutive structures I don't want to say no because it's always hard to say like there's no example, but you're totally right about parliamentary systems, right? European countries have an entrenched civil bureaucracy and a ton of technocratic expertise that is running how the governments work. Soough in some ways, more ability of the prime minister or whoever to change things. and if and prime Mister loses power, as we seem to see every week in Britain, he's out Another sort of more technical question I have for you Ruth, which is sort of off point, but a lot of these commissions agencies, as they exist, require there to be members from multiple parties. Do this still that requirement still exist? or is it just that you have people from multiple parties, but the president can remove the ones he doesn't like from the other party as soon as he wants Yeah, I am not clear on how the president's duty to see that the law iss faithfully executed operates here. The president has removed Democratic members fired Democratic members from multiple commissions, some of which have actually quorum requirements and are incapable of operating. I think that's the situation at the Merit Systems Protection Board. And he seems in no hurry to put it mildly to be replacing these people and I think would argue that he can't be required to replace them with Democratic members because they do not body his philosophy and so he is the boss of him and the rest of the boss of the rest of us. And so this is a really big conundrum going forward for Congress, which I guess has to say well we're taking back some power from the FTC. that's not 's going to happen Emily Ruth sort of poo pooed my expansive view of the Ui executive. This has not given the president the full dictatorial powers to not yet to pick and choose like, you know who is the the fifth administrative assistant at the Department of Interior's, you, Bureau of Reclamation and you know, oil management I don't know if I agree with that. I mean, it seems to me like the all the direction is all in. ident, this is the president's government to run. and therefore the president effectively gets to choose who works there. And at some point, it doesn't even matter if he has the app, you know, the right to Remove Everybody As long as he has the right to make their lives miserable, Uh and the every policy decision Everyone who is in any way, a manager understands that they are one minute away from being kicked out of their job. people will act to do his duty So I don't know. Do you also think that actually civil service protections are fine? and The federal government will be able to carry on their work, no problem Well, first of all, they've already been imiserated, right? I mean, the whole Trump administration has been about imiserating federal workers. I think the next case, a next case is going to be about whether civil service protections have will be stripped from everyone and whether they can also be removed without cause. Currently, that's not the case. They still retain their civil service protections and the court did not reach that question. But as Rue said, there is material in this opinion that when that challenge is brought, the plaintiffs will cite and we don't know what the answer will be Um, Can I ask you guys about what you think about the big exception to this separation of powers rule the court created in its separate decision about Lisa Cook on the Board of the Federal Reserve. So same day, another case comes down. Trump has been f trying to fire Lisa Cook from the Fed with cause, but the cause is a total unproven pretext, right? He's accused her of Mortgage fraud, noobody's ever indicted her. There have been many months that have passed. We still have seen no real proof of this supposed quote crime. She committed, okay So the court says, Trump, you didn't give her any notice or opportunity to respond. and for on procedural grounds we're sending this back to the lower court. Like you can try again, but you have to give her some due process U I don't think that trying again is going to work, though Trump seems excited to do it The reason I don't think it's going to work is that I don't think he has any allegations she actually did anything What really matters about this case or maybe I should say another thing that matters is that the court says, Okay, the Fed is different from the FTC and all the other alphabet soup agencies. Reasons. Reasons are, if you go back to the founding and you look at the first and secondcond National Bank, you can see that from the beginning, the founders were concerned about political interference and setting monetary policy. and they saw a real value in having independence. This case is five to four. It's a majority of Roberts and Kavanagh and three liberals They are saying That is paramount, making sure there's no political interference in the monetary policy. And so we're just going to like treat the Fed differently from everyone else and In my view, it's not a super persuasive distinction they're making. They say, in this case, history supports this exception. in the other case, history supports a categorical rule in the other direction. Justice Barrett kind of calls them out in her dissents in the Lisa Cook case and points out this inconsistency From a policy point of view, it seems really good that the Fed maintains independence, so I don't know how much like real quibbling is worth doing over this, but it does show the conservatives on the court coming to very different answers depending on what they want the result to be, I think. you know, this is a case where you have I had a mixed reaction, the immediate reaction on the final vote was, well, first of all, not surprising because we knew that this court, they had signaled before, that the Fed is different because reasons, as you say, I assumed they were going to find a way to find for Lisa Cook. They took pains to release these two opinions, put them out on the website simultaneously so as not to jitter the markets even for the ten minutes that it took for the chief to finish explaining the resultant slaughter and then get to the but everybody calm down on Wall Street in Cook. So yes, good for all of us and good for our four hundred one Ks, that the court protected Lisa Cook here as it had signaled it was going to do in advance. byy the way, Justice Kavanaugh's opinion basically said the four hundred one K part out loud. It just talked about his reasons were because we don't want to roil the markets and just destabilize the entire international economic system. So good. But the reasoning is so obviously motivated by policy and not motivated by actual distinctions that it's you know close to laughable. I will laugh. I will laugh. Thank you. you're close to laughable Before we close on the subject, I'm interested in you two both speculating on how you think this court would have approached these same cases had it been President Harris who had fired the head of the FTC. Can I go first? becausecause I just want to say one hundred percent the same? This court has been itching to make this move. When I say this court, I mean the six justustice super conservative super majority that's been assembled since Amy Coney Barrett joined the court. It's been wanting to do this for years Donald Trump teed it up for them, made it come maybe a little bit quicker, but it was going to come to them eventually in the form of a lawsuit by a private company that was aggrieved by an independent agency And they are happy to do it and they honestly would have been happy to do it in the unimaginable event that President Harris had fired, I don't know who. Yeah, agree. This is just a long standing goal, the conservative legal movement, unitary executive power. and they seizize their chance and they took it And actually one last substantive question. How do our two friends, the unitary executive and It's u distant cousin. you know, maybe it's dark horse, stark black sheep cousin, the major questions doctrine. How do they coexist Oh my God They seem to me to be in kind of like mental contradiction with each other. Oh, that's a really interesting question. I think that The major questions doctrine is something that a lot reigns in not the executive himself. and I just keep saying him without the caveat, Emily, butough I continue on. live in the world we live in. It reigns in more departments and agencies from roaming far afield, though I know independent or not independent. though I guess in the end, they are exercising presidential power. But this court basically, it wants both presidential power, but also even more than that. It wants court power. And the major questions doctrine is a way actually, at least in practice, if not in intent of creating court power because it says ongress if you're not clear, then the executive branch can't do this and Congress, you can't do it unless you're clear. So we, the court get to tell you when that happens. Does that make sense to you, Emily Yeah, I would say another tension is about the role of Congress, right? And the major Questions doctrine says, Congress, do it again, do it clearer. like we will get out of your way as long as you're clear This unitary executive doctrine says like, Congress, you were clear. You set up the FTC in this particular way. Tough. We don't care because of something. I mean I think that's a good point. Congress did set up these agencies because it knew they were going to be dealing with a bunch of very difficult questions that are really beyond the capacity of Congresses to deal with. and regulate on or to even contemplate when the FTC was set up, we didn't have, you know, an internet This episode is presented by the Panned Parenthood Federation of America We're watching the devastating consequences of policies decisions play out in real time Trump admistration's backers in Congress are trying to permanently defund Planned Parenthood an effort to shut down health centers and block patient care like wellness exams, cancer screenings, and more across the country especially for those with low incomes If you want to do something concrete to help, visit planned parenthood. org slash deffend. Your gift builds a future where everyone can get the care they need and deserve. 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I'm a Washingtonian and This fight over the Relecting pool and President Trump's renovation of it. or tempted renovation has just struck a chord with people in Washington and around the country. and there's been a huge amount of news coverage of it Ground News is one of the most helpful tools you can find to cut through the noise and get down to the facts of important stories. Instead of getting lost in the hype in the headlines, it helps you understand what's happening. Ground News in a way like the Gab fest tries to get to the truth and tries to avoid echo chambers And it does that. by showing you where the news that you're reading comes from what its biases are and how you can take into account those biases as you consume news about topics you care about from sources you trust So if you like this podcast, I suspect you'll like ground newews. Go to groundneews dot com slash gab to get forty percent off the unlimited access vantage subscription Ground newews d. com slash Gab Do you subscribe yourself or send it as a gift Ground newews. com slash gab, use my link so they know the Gap that sent you Okay. Were I mean we're talking supremes the whole time, but I don't know where else to shoehorn this in. L It's Thursday morning I would like each of you to tell me whether you think that Justice Alito or Justice Thomas will have resigned by the time people are listening to us on Friday night Yeah, I don't know. forty sixty. like no. I think he probably won't, but the story of how NPR Ned Totenberg not persuasive. Not a persuasive st. So not persuasive that I'm like thinking, but then I don't know I here's here's what I toggle back and forth. On the one hand, They're Nina Totenberg's rendition of like, Oh, I had this prewritten and then I heard a snatch of someone talking about retirement. I asked a bystander in the hallway and then I put it out on MPR. That's how NPR works. That's how journalism works guys. Yeah. I found that extremely. I was like,. It made me very nervous for all of us And it makes much more sense if she did have a leak that she thought Alito was going to resign. And then apparently there's some metada on the post suggesting that it was supposed to Post on Friday this Friday. So we will find out tomorrow. On the other hand, it's possible she had a wrong scoop, right? And the idea that like Alito would deny it and the court would deny it when it was just like a little early also seems kind of Imlausible to me? I don't know. what do you think, Ruth All the reporting that I've done though I have not circled back to it in the post Tottenberg world suggested to me that Justice Thomas is not going anywhere anytime voluntarily and Justice Alito is not going anywhere in the next several days conceivably after the election if the Democrats take control of the Senate but probably not then also, since we're doing Kremlinology. I think it would have been he was not on the bench the last two days. And I think it would be a very weird though, perhaps semi elitoish way for him to leavave the court without even like turning up for the final days of your tenure. So I don't think so, but this may be wishful thinking because why would it mess up all of our summers? Oh my Godd, I know, I know. I know. I guess the other tea leaf I'll put out there, David is there are reports that Alito has hired multiple clerks, which you're like not supposed to do if you're retiring because then you don't get to hang on to them We'll see, won't we? Time will tell Okay Let's turn now to big case number two, so many big cases, but perhaps the most consequential defeat that President Trump has taken during this term the birthright citizenship case. So Emily, what was this case about? We've talked about it a number of times. I think our listeners are probably pretty familiar with it, but just update us about subject to the jurisdiction thereof President Trump signed an executive order on the first day of his second term, removing purporting to remove birthright citizenship from a large category of people whose kids are born here where the parents are either not here legally or don't have like permanent residency And the decision was essentially was sort of six to three and sort of five to four, depending on how you count Justice Kavanaugh The majority said The fourourteenth Amendment says birthright citizenship and this qualifying phrase subject to the jurisdiction thereof has the same narrow exceptions in it that it always had, which is basically, are you the kid of a foreign diplomat or the kid of a hostile invading force If you're not, then you get birthright citizenship, and it does not matter if your parents entered the country illegally Justice Kavanaugh said that he concurred in the result, but only because of a statute that Congress passed starting in nineteen forty and then again in nineteen fifty two. And that would mean that Congress could just pass another statute and birthright citizenship. And then there are three dissenters who don't think there is birthright citizenship at all in the law, which is totally confounding to me U I don't get it. I really don't get it And the it's a very well joined dispute over and over history in which it just seemed to me like the majority had a very strong argument and the dissent had a very weak argument And Justice Thomas, who wrote the Principal dissent just keeps going on about this idea of domicile that you have to be domiciled in the United States to transmit citizenship to your kids. Domicile is not in the Constitution As far as I know, it's just like not a constitutional concept. It's like from common law and equity, right? this idea of like, where's your residence, which You know, matters sometimes like, I don't know, like where you regisered to vote, for example, but it's just like not part of the American conception of citizenship W the court Ruth thinking at all the majority, thinking all about the practical consequences of getting rid of birthright citizenship, which is this class of stateless people. They didn't mention it, but I think they were. And also the person who was most thinking about the consequences of this was our friend Justice Alito, who has I would like to say somebody should take away his remote control because that man has been watching way too much Fox newews He is so worked up over illegal immigration. He had a multi page riff after he went through all the common law and domicile and framers and everything else and Wong Kim Ac and All of it just went on for pages and pages and pages about the scourge of illegal immigration and the problems that it was creating and the problems that the court was creating by allowing this to persist and this magnet to attract illegal aliens, I'm saying that in air quotes into this country I was stunned by this decision, not stunned by the outcome, which I thought was never in serious doubt. I kept saying to people, donon't please, you know there's a lot of things to lose sleep about on this court. Birthright citizenship is not among them, but it turns out that I was just way overestimating this court once again. I was just stunned by the closeness of this decision. that the final tally was six three, but also that the court was divided five to four on the constitutional question that is just way too close for comfort. Though I do have to say while I thought the court was And smart and right and crisp and clear in a what was a there were one hundred and ninety four pages of opinion of which some twenty something were the majority opinion, which was This is what the common law was. This is what the Cstitution says, this is what the debate was. This is what the precedents say go away The case was there was a little bit more evidence amassked on the other side, I feel duty bound to say, than I think we had realized before we opened this what had seemed to be an open and shut question. But I am very shaken by the closeness of the result. Was this an example? because my understanding that I did not read any of the one hundred and ninety four pages except maybe like little quotes, paragraph quotes here and there But my understanding is that some of the dissent was making the case, well, the world has changed. the world of the founders didn't contemplate there'd be j travel Is is this an example of the originalism orialism for the, but not for me, but not for thee or thank you for teing that up for me. Yes. I mean, suddenly everyone thinks the Constitution evol or that conditions evolve in such a way that leads to evolving constitutional interpretation And you know, suddenly everyone is open to looking all over the historical record for evidence that supports their thesis, like I mean, this is so unsurprising, right? But I just wanted go back. when justice when Judge Bork and Justice Scalia came up with originalism, they were kind of in control of it for a while, right? along with Justice Thomas. And it seemed like you could at least purport to claim that it had some internal logic and consistency to it and that it quote tied judges' hands. It meant that they couldn't just impose their values and preferences on the law Now we have six of these conservatives on this court. Most of them say that they're originalists in some way or the other, and you can see that they do not Like there is no plan anymore. It's all up and down just like, oh, well wait a second. in this case, we would like to do it a different way in which we acknowledge that, yes, there's jet travel now and everything's different. So the Constitution can't possibly mean what it meant in eighteen sixty eight when we ratified the fourteenth Amendment. It just I mean, right, it's like so unsurprising. I've been writing about it forever, but it's come to fruition in this way that is just like it's like watching these huge blossoms on every tree in my york So what Emily said, I just want to take us back to this wonderful moment at the oral argument in the case where the Solicitor General, John Suer said said to the court, we live in a world where billions of people are an eight hour plane ride away from being here and the chief Justice said to him, Well, it's a new world, but it's the same old cononstitution which was really the animating principle, I think, of the majority. And Justice Kavanaugh was busy talking in his concurrence slash dissent. about how Plain loads of people were just hours away from descending on our shores Yeah, I mean, I'm fine with taking in modern contexts for lots of different things, right? Like I don't like this whole history and tradition line. And so many of these cases, suddenly we're arguing about like how they did it in eighteen seventy. I don't care. It does not seem like a fruitful path for judges to go down, but the lack of internal consistency about this is just just a lot And you if Congress wanted to do something, I'm just gonna continue on my quasi conservative thread here. If Congress wanted to do something to limit birthright, what's called birthright tourism, to prevent people, mostly very wealthy people from countries like Russia, China from coming here precisely for the purpose of giving birth. No, there are I'm not opposed to that. There people could take away visas. They P shouldn't manipulate the system. Totally to achieve that. but the implications of allowing out Trump executive order to go into effect were so much broader than that. Absolutely Emily, do you think this ruling ends the discussion about birthright citizenship. I mean, it finds it constitutional, finds it right in the Constitution majority of justiceices found it. Or is this an overt ten window situation where now it will be a permanent obsession for the right? and is in fact more precarious and it will become a target the way Row as a target and that this will be a thing that Conservatives will now be gunning after and it will become a you know to pass to get your federalist society bonafites, you're going to have to support the Alito Thomas view Yeah, I mean, my colleague, David French has been worrying about this in the last few days and he is looking at, you the response from the MAGA right and seeing people just absolutely furious, particularly with Justice Barrett, who was supposed to be one of the MAGA Faithful and his pro perfidious in this case and a couple of others, in their view So yeah, it does seem like this was all about opening the overton window and perhaps turning this into a future litmus test, which is just like brereaking honestly. Yeah, I don't know. I don't know. I want it to be settled Yeah. But as a practical matter, I think it is going to be a MGaite litmus test for candidates and possibly for more than possibly for judicial nominees But Do we think that birthright citizenship is vulnerable in any way to a legislative fix donon't see that. Well, not to a legislative fix to the starry decisis is not what it used to be. Yeah, now you're talking about possibly you have one vote. You change the you, you make it a seven to two court and there is no birthright citizenship anymore. And that is going to seem tantalizing in a way that would not have if it had been seeven to two even. I mean, what was Justice Scorsuch thinking about this one? I just, I just don't get it I would just like to end by noting that this, of course was a small defeat for President Trump, but weighed against the vast power that the court has allotted him this term when it comes to setting immigration policy. It's pretty small er it's a pretty small setback I mean, the TPS case, which is removing Iillegal. residential rights of more than a million people who are living and working here Um is just a gigantic catastrophic sea change for a huge number of our neighbors. And that is just one of the decisions. There were others that also the asylum ruling. gave the president greater, more significant and more damaging powers around immigration than He had in his first term Yeah. I mean, if you think of this is all a big anti immigration agenda, the short term has been huge wins for just the reasons you said. I mean, all the people they are going to be deporting because of the end of temporary protected status, like that is ripping people out of communities. That is going to be very tough for those people And the other project, this birthright is the long term project. And you know, look, maybe it'll never come to pass, but now there is some momentum and energy behind it. And you know, Ruth, you were talking about how there was a little more evidence than you thought. that's because handful of conservative law professors who used to all recognize birthright citizenship have gone and dug around and they're very explicit. This is their follow up project to how they managed to convince everyone there was an individual right to bear arms in the Second Amendment. That was also seen as like outlandish off the wall in Yalea prorofessor Jack Balkin's terminology. and they put it on the wall. And they are Mostly celebrating that they essentially got four votes for something that everybody thought was like whack dood all five minutes ago This episode is sponsored by Upwork Hiring help for your business shouldn't be a headache or drain on your budget Upwork makes it easy to hire specialized freelancers quickly so you can get the expertise you need now without weeks of recruiting or a full time hire. 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It's the largest fastest fiber powered network for small business, gig speeds with equipment and security included, and a five year price lock No one does business like comcast business Switch today. Get started for sixty dollars a month for twelve months when you add an advanced solution to a qualifying internet package. Limited time offer. restestrictions apply. newew customers only. requires three hundred megab per second internet, secity edge and additional qualifying service, one year agreement, paperless billing and autoay bank account required. tax and fees extra We have also talked previously in this gab notot in this Gab, but in previous GAabs I should say, about the pair of cases challenging bands on transgender girls participating in high school and college sports And Each time we have discussed these cases, We have discussed how obviously lost the cause was and how it was so clear they were going to lose and hence they should not have brought these cases. And now the plaintiffs have indeed lost and comprehensively. So what are these cases these two cases What were the plaintiffs challenging and what grounds do they lose The plaintiffs in these cases were a middle school girl from West Virginia and a college student who were both trans girls, women, and wanted to be able to play sports. They had two different claims. One was that Title IX, which put was the landmark case that carved out space for women and girls in sports and required highigh schools and others and colleges to enable women's sports protected their right to play. and the other was that the equal Protection Clause of the fourteenth Amendment protected their right to play on teams. The court by a vote of nine to zero rejected the Title Iine claim, but by the very familiar vote of six to three rejected as well the equal protection claim and Justice Kavanaugh wrote about both the importance of girls sports. he is famously the father of two daughters and famously has coached them and their' friends in basketball and he talked about the importance of girls and women's sports to girls and women. He also quuite in contrast, I have to say, to Justice Thomas, who dissented separately. He spoke about transs girls at least with some degree of respect, even though he did describe them as biological males. I want to before we get into the totality of this, because it's really eating at me as I was reading it last night or rereading it last night, talk about the way Justice Thomas used this language. He said, men and boys with gender dysphoria are not women or girls, even if they believe that they are. A man does not have a legal right to compete against women just because he believes that he is a woman. And I just want to say This is wrong. These cases are veryer difficult, I think. They pit claims of rights that are both valid and valuable of girls and women who want to compete and feel that they're being not taken advantage of, but being hurt by having U people who were identified as male at birth, who may have physiological advantages, able to come in there And the claims, which I think are heartbreaking. when you read about this middle school student and how much she just wanted to run on a team that accepted everybody and was not terribly competitive, it's heartbreaking to think that she is not able to do her thing. and then to contrast this with the sort of just unnecessarily cruel way that Justice Thomas talks about and these girls and women is just I just find it sickening. I'll stop now, but the way the court talked about the equal protection claim, I thought was super interesting because the dissenters We're not okay, absolutely, these girls and women are entitled to special protection. It was more like We need to find out more about the facts in this case and figure out whether in particular trans girls who have never experienced the hormonal changes of puberty, who have taken puberty blockers so that they haven't had the body changes that at least is some physicians understand it are the reason for the incredible physiological advantages that boys and men have over the likes of us, Emily, in sports. They the dissenters wanted to send this back to the lower courts to figure it out more. And I thought that was a very reasonable point. And I thought the way they addressed it really was understanding of the competing interests that were at stake here Yeah, I mean, the real issues at stake are fairness and inclusion Right. And what the dissensers are saying and it's a dissent by Justice Sotomayor that Kagan and Jackson joined, they're saying, let's send this back to the lower courts to see if this girl actually has any advantages given that she didn't go through male puberty. And the implication is also that this kind of case by case determination is Something that schools could also do rather than having these blanket bans, which exclude trans girls who you maybe don't have the same advantage because they didn't go through male puberty. It's kind of crazy that we're having this big ruling without having courts really thoroughly flesh out that question, which seems pretty crucial Do either of you think that this puts the marriage equality at risk that Oberfell is at risk. states the states could ban it and the court might look favorably on it. Or is this is transports a particularly vulnerable issue because sex discrimination is intrinsic and therefore extending that discrimination or clarifying that discrimination seems understandable. And that there is a fairness there is a fairness question that occurs around sports that is not really relevant in marriage, Like it's not you know, nobody It's not fair. it's not unfair if some other person gets married The second thing, absolutely the second thing, more than actually I worried, because even the majority opinion applies some version of what's called heightened scrutiny and says this is just sex discrimination claim, right? So there was a concern that like the court was going to fuzz up what sex discrimination mean and remove heightened scrutiny higher legal standard when the government discriminates from sex discrimination claims. And that didn't happen. Instead, they're having an argument about what they were talking about as the fit for a sex discrimination claim. And so basically the dispute is the majority is saying like, okay, we don't necessarily know that every trans girl is different from every cis girl, but we don't care. L state legislatures are equipped to make a determination on that and ban them. and it's fine if this U kind of sex discrimination, I e, se sex segregated sports teams, it's fine as long as that applies to most people. We're not gonna like go in and look at every case And then Nena is saying, no, no, no, that's not good enough. and we should make sure that it fits in every case and it should not be up to states to ban transports. But that's, as you said, David, like very specifically about this particular domain in which In addition to the fact that, you know, sex segregated sports discriminate. There's also Title nine, this federal law that like created allowed sex segregated teams in order to facilitate fair competition and have women be able to win And so in that context, that's different even not only from like equal prrotection, which is what comes up with same sex marriage in Obergafell, It's also different from Title seven, the federal employment statute, which makes it different from Bosoock, the court's decision that said that trans employees can't be fired because they're not conforming to sex stereotypes I agree with everything Emily said. I think that basically since BostTock, which was something of a surprise ruling that provided protection in the employment context, both for gays and lesbians and for trans people, it's been kind of all downhill for trans individuals Since then this court is reaped out I think is the technical term by them, they're, you know want to allow states to stop families from distant parents from deciding what's best for their children who are trans and to ban treatment They're creeped out in a way and interested in, I think, intervening in a way that they their instinct in Obergafell and same sex marriage is completely different. I think of Obergkefell is in the same status. This is going to be a funny analogy as Lisa Cook It's just too much baked into the cake of our society now. It would be too disruptive to undo it. Maybe it's a little bit more in that sense like birthright citizenship than it is like Lisa Cook I don't think that's a precedent that is vulnerable in any court that I can imagine unless a bus full of the three liberals gets a run overver tomorrow, God forbid. Donald Trump gets three more appointees. I mean, it is something that no other justice signed Justice Thomas's hateful concurrence. It is something. Does this only apply to trans girls who want to compete in Or does it also apply to trans man you want peat and it's like you can imagine a H have an unfair advantage. Well, but you can imagine gymnastics, for example. like that you could imagine body composition is different. And like it I mean, is it I guess my question is like literally does this apply? Is this only apply to girl sports or is this broadly across I think that the opinion as written only applies to girls and women's sports, but someone could bring the next case. and the implication could be that it applies in both contxts. What do you think R Well, I think it probably depends on the precise way that the state law is written, but the reality is that there's not a big clamor for trans men to ll get in there. I think the next case that we need to worry about is not whether states may do this, but whether states must do this and That is going to be a doozy. Yeah, and I think that case there are cases like that percolating. There's one in the second circuit that I think comes from Connecticut. Yeah Right. So about half twenty seven states have these banss and so the other states don't Right. And look, you know, of course The right wing legal organizations are going to push this because it's a great political issue for them, right? Like we're going to keep talking about this And talking about this is bad for Democratic candidates. So it's this overlap of law and politics that's irresistible to activists happens on both sides. Just to close this topic, one of the plaintiffs in the plaintiff in Idaho tried to withdraw and basically was not competing, not trying to compete and therefore said this is not a live dispute Why didn't the court honor that. Usually did it really, really late Okay. Really late. And I mean, let's talk about the procedural history here. So But briefly, but briefly But briefly. I'm sorry. Yeah, she did it too late. The original cases, the trans girl and women here are the plaintiffs years ago. they did well in the lower courts. and so then the The states defend their bans and that's how these cases get to the Supreme Court Brace. Before we go to chatter, before we get to cocktail Chatter, we have an invitation a request a favor which is that we're going to do a listener question episode. Listener questestion episodes, by the way, is a secret way for us to take a vacation so we can tape something in advance. And so you want us to take a vacation. Don't you want Emily to have a vacation And for Emily De a vacation, we need some great listener questions that we can do a show in advance about based on. And so please send us your questions. They could be political questions. they could, I guess, be conundrums. They could be questions about how to live well. They could be questions, legal questions that Emily could answer It could be historical questions that John can mull about and whver you would like us to answer, we would like to answer. So please send us your questions by emailing us at gabfestslate. com. email us any question you have that we can answer on a show, gabfest at sllate. comot and give us your name and tell us if we can say your name so we can congratulate you on your great question Let us go to cocktail Chatter when you Ruth Marcus and Mr. Marcus are sitting there Mr. Marcus is so annoyed that his amicus brief did was not victorious. And so you're like, we have to have a drink and talk about something else. I think it was excited. So he G en victory Well, what would you be chattering after he talks endlessly about how he was sightited And you're like, oh my Godd, you've been talking about how you were cited for forty five minutes, John. Let's talk about something else. What are you going to talk to him I am going to talk about a HBO series that I just finished watching that actually ties into this last conversation. It's called Somebody Somewhere. and it is show Oh my God. Hppy love. It is the most delightful, I'm as usual late to the party as you know. Wellelc as is my want But it's about a group of people in Manhattan, Kansas who one is overweight single woman, one is a weby gay man and one is a transgender man and their friends and family members. and they are just they are the most magnificently cast and sweetest, and it's about friendship, it's about family, it's about loss. And I want to live in their world and not Justice Thomas's world. And I had such a good time binging this as the court term was coming to a close. and I just really want to commend it to the three listeners out there who have not already found it If you are listening to the Gap fest and you have not tried the show, we really think you should. think I think we both chattered a too. Oh no, sorry. No, that's great.ine deserve There a plus on it. We love the show as well. And it is a perfect conic for this moment. you're right We tried to get Bridget Everet to come on a guest on something. Bridget. We're still invitation Richard Everet, you are invited forever And It is really true. Emily, what's your chatter I want to chatter about the U S. leading scorer in the World Cup and How lucky we are that we have birthright citizenship. Folore and Balagon, David, did I say that right in some of your are fine