Latest / The Ben Ferguson Podcast / Understanding the Historic Supreme Court Victories & Losses this Week

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Understanding the Historic Supreme Court Victories & Losses this Week · The Ben Ferguson Podcast

0:00
Speaker 1: Welcome.
0:01
Speaker 2: It is Verdict with Center Ted Cruz, Ben Ferguson with
0:04
Speaker 2: you as well.
0:04
Speaker 1: It's nice to have you with us and Centator.
0:06
Speaker 2: We were going to have a really interesting show today
0:08
Speaker 2: because we have so many extremely important rulings that have
0:12
Speaker 2: come down from the Supreme Court. We're going to break
0:14
Speaker 2: them into the winds and into the losses category here
0:17
Speaker 2: and let people know exactly what many of these rulings
0:20
Speaker 2: mean going forward.
0:22
Speaker 3: Well, this was a landmark week in front of the
0:24
Speaker 3: US Supreme Court. Huge decisions came down this week. We're
0:28
Speaker 3: going to break them down for you, try to explain them,
0:30
Speaker 3: make them understandable. We had major, major victories that are
0:34
Speaker 3: enormously consequential. We also had a couple of big, big losses.
0:38
Speaker 3: We're going to break all of them down for you today.
0:40
Speaker 2: Yeah, it's a lot of them, and we're going to
0:42
Speaker 2: talk about that in a moment. But first I want
0:44
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Speaker 2: dot org forward slash verdict. All right, So, Sentaer, let's
2:31
Speaker 2: talk about some of the victories, and one of them
2:34
Speaker 2: was a very interesting case. It's about the president having
2:38
Speaker 2: the ability to fire people. And this was one of
2:41
Speaker 2: those that maybe wasn't a lot of people's radar screen,
2:44
Speaker 2: but it's a really important case.
2:48
Speaker 3: Well, let's start with two decisions, and this is a
2:51
Speaker 3: big victory, Trump versus Slaughter and Trump versus Cook, and
2:54
Speaker 3: it dealt with the ability of the president to file
2:57
Speaker 3: fire people in his administration. So almost one hundred years ago,
3:03
Speaker 3: the court decided a case called Humphrey's Executor. Humphrey's Executor
3:09
Speaker 3: ninety one years ago, the court concluded that the president
3:13
Speaker 3: cannot fire a commissioner of the Federal Trade Commission, and
3:18
Speaker 3: the Federal Trade Commission was set up as a so
3:21
Speaker 3: called independent agency. It was an agency with three commissioners
3:26
Speaker 3: appointed by the President confirmed by the Senate from the
3:29
Speaker 3: majority party, and two commissioners appointed by the President confirmed
3:34
Speaker 3: by the Senate from that minority party. And the so
3:38
Speaker 3: called independent agencies arose coming out of the Woodrow Wilson era,
3:43
Speaker 3: coming out of the Progressive era, as a way to
3:46
Speaker 3: limit presidential power. And Humphrey's Executor said, the president doesn't
3:51
Speaker 3: have the ability to fire an FTC Commissioner without cause. Well,
3:58
Speaker 3: in my view is executor was wrong the day it
4:02
Speaker 3: was decided ninety one years ago, and it has been
4:05
Speaker 3: wrong every day for nine decades since then. Why because
4:11
Speaker 3: under the Constitution the Constitution, the first three articles of Constitution.
4:14
Speaker 3: Article one vest all legislative power in the Congress of
4:18
Speaker 3: the United States. Article two vests all executive power in
4:24
Speaker 3: the President of the United States. An Article three vests
4:28
Speaker 3: all judicial power in the judiciary. What Humphreys executor did
4:33
Speaker 3: is severely limit the president's Article two authority over the
4:37
Speaker 3: executive branch. Anyone in government, you are either in one
4:42
Speaker 3: of those three buckets. You're either a legislative official. I'm
4:46
Speaker 3: a legislative official. I'm elected by the people of Texas
4:49
Speaker 3: to represent them in the Senate. I'm in the legislature.
4:51
Speaker 3: I'm an Article one. You could be a judicial official
4:55
Speaker 3: that is appointed by the President, confirmed by the Senate.
4:57
Speaker 3: You're a judge with life tenure mudicating cases. That's an
5:01
Speaker 3: Article three. Everyone else is an Article two. Article two
5:06
Speaker 3: is the executive and under the Constitution, the president has
5:10
Speaker 3: authority over the executive. Humphrey's executors said, no, no, you don't.
5:14
Speaker 3: There could be someone that works for the executive and
5:17
Speaker 3: yet somehow Congresses take it over the ability of the
5:20
Speaker 3: president to control that person. Well, when President Trump came
5:25
Speaker 3: in in the second term, he fired two FTC directors
5:30
Speaker 3: commissioners rather than one, of which was Rebecca Slaughter. Rebecca
5:35
Speaker 3: Slaughter is a Democrat. She was one of the five
5:39
Speaker 3: FTC commissioners, and he fired her. He said, you know what,
5:41
Speaker 3: I just want Republican commissioners. I'm not appointing Democrat commissions now.
5:46
Speaker 3: He did that knowing it would prompt a legal challenge,
5:50
Speaker 3: and anticipating that it would be a legal challenge, he
5:53
Speaker 3: would prevailing. I will tell you I've said publicly multiple
5:57
Speaker 3: times for a long time Trump was going to prevail.
6:01
Speaker 3: And you know, as I talked to reporters, they said, well,
6:04
Speaker 3: what do you think about this case? They said, Trump's
6:06
Speaker 3: going to win, and he's going to win because Humphrey's
6:08
Speaker 3: executor was wrong. The president has the authority over the
6:12
Speaker 3: executive branch, and I believe the court is going to
6:16
Speaker 3: overrule Humphrey's executive. Well, this week that prediction came true.
6:21
Speaker 3: By the way, we talk on this podcast a lot
6:23
Speaker 3: about the predictions we make and the vast majority of
6:27
Speaker 3: the predictions we make come true, and we hold ourselves accountable.
6:31
Speaker 3: When they come true, we lay them out. When they
6:32
Speaker 3: don't come true, we lay them out. In this instance,
6:36
Speaker 3: Chief Justice Roberts wrote the majority opinion. He was joined
6:40
Speaker 3: by Justice Alito, Justice Gorsic, Justice Kavanaugh, Justice Barrett, and
6:47
Speaker 3: Justice Thomas In Parks, it was a six to three decision,
6:50
Speaker 3: and the Court overturned Humphrey's executor said, the president can
6:55
Speaker 3: fire an FTC commission That's a big victory. That's a
7:00
Speaker 3: big victory for presidential authority. That's a big victory for
7:03
Speaker 3: the text of the Constitution. That's a big victory for
7:06
Speaker 3: the original understanding of the Constitution. Now here's kind of
7:11
Speaker 3: a weird wrinkle. There was another case that was Cooke
7:16
Speaker 3: versus Trump. So Lisa Cook was a Federal Reserve governor
7:24
Speaker 3: and Trump also fired Lisa Cook. Now interestingly enough, look,
7:31
Speaker 3: you would think the same principles should apply that if
7:35
Speaker 3: Trump can fire an FTC commissioner, he got to be
7:39
Speaker 3: able to fire a federal Reserve governor.
7:43
Speaker 4: Well, you'd be wrong on that.
7:46
Speaker 3: The Court, by a vote of five to four, held
7:49
Speaker 3: that Trump could not fire Lisa Cook. That the Federal
7:51
Speaker 3: Reserve was different and it was a different majority. Chief
7:55
Speaker 3: Justice Roberts wrote both opinions, which did not surprise me.
7:58
Speaker 3: Trump versus Cook was joined Roberts joined by Justice Soda, Mayor,
8:05
Speaker 3: Justice Kagan, Justice Kavanaugh, and Justice Katanji Brown Jackson. So
8:10
Speaker 3: it was five to four. Now Clarence Thomas Descendant, he
8:13
Speaker 3: called the ruling incorrect. He pointed out that it was
8:18
Speaker 3: inconsistent with the Slaughter decision. I got to say, this
8:21
Speaker 3: did not surprise me at all. And indeed I had
8:25
Speaker 3: predicted Humphrey's executors would be overturned, but at the same
8:30
Speaker 3: time the Court would be reluctant to accord the president
8:36
Speaker 3: carte blanche over the Federal Reserve. And in my view, look,
8:41
Speaker 3: Chief Justice Roberts had different distinctions about the statute of
8:44
Speaker 3: the Federal Reserve. I actually think those distinctions did not matter.
8:48
Speaker 3: This was, I believe, in significant respects, a results driven outcome.
8:55
Speaker 4: I think at the end of.
8:56
Speaker 3: The day, you did not have five justices that were
9:00
Speaker 3: willing to accede the power to the President to fire
9:05
Speaker 3: a Federal Reserve governor. Because the role of the Federal
9:08
Speaker 3: Reserve with our currency, with our economy was significant enough
9:12
Speaker 3: that they were reluctant to do it. That doesn't surprise me.
9:15
Speaker 3: The consequence of these two decisions is Trump versus Cook
9:22
Speaker 3: pure and true to the Constitution. Probably not, but it
9:28
Speaker 3: is a fairly narrow exception to the much broader precedent,
9:33
Speaker 3: which is Trump versus Slaughter, which overrules Humphrey's executor and
9:38
Speaker 3: upholds the president's authority to fire executive branch employees at
9:44
Speaker 3: his discretion.
9:46
Speaker 2: That's going to obviously have big impact moving forward, right
9:49
Speaker 2: over the next couple of years for the president as well.
9:51
Speaker 3: Would you agree, Yeah, no, No, it's a big deal
9:54
Speaker 3: and it's going to mean is that practical matter going forward?
9:57
Speaker 3: I think there's a real possibility, effected light flihood, that
10:01
Speaker 3: these so called independent commissions will not have bipartisan commissions.
10:06
Speaker 3: I think going forward you're going to see commissions like
10:09
Speaker 3: the FTC, the SCC, potentially the FEC, the various commissions
10:16
Speaker 3: that are bipartisan. What we've seen with Trump is that
10:21
Speaker 3: he says I'm not going to appoint Democrats to it,
10:23
Speaker 3: and he leaves those seats vacant. My guess is, if
10:27
Speaker 3: and when we have another Democrat president and Unfortunately, we
10:31
Speaker 3: will likely have another Democrat president.
10:33
Speaker 4: I'd rather not.
10:34
Speaker 3: I think the Democrats' policies are really damaging. But if
10:37
Speaker 3: history is any guide, we will see the Democrats in
10:39
Speaker 3: charge of the White House at some point. And I
10:42
Speaker 3: think it is quite likely that when the Democrats are
10:44
Speaker 3: in charge, they will appoint to the Independent Commissions three
10:48
Speaker 3: commissioners from the Democrat Party and zero Republican commissioners. And look,
10:54
Speaker 3: I'll say what twenty five years ago, when George W.
10:58
Speaker 3: Bush was elected president, I came in. I was a
11:02
Speaker 3: young campaign staffer. I'd been down in Austin, Texas on
11:05
Speaker 3: the campaign team with then Governor Bush. I met Heidi
11:09
Speaker 3: on the Bush campaign. She and I came to join
11:12
Speaker 3: the Bush administration. I spent about six months in the
11:14
Speaker 3: Department of Justice, and then I went over to the
11:16
Speaker 3: Federal Trade Commission, and the FDC is what was the
11:20
Speaker 3: subject of this litigation. My boss at the time was
11:23
Speaker 3: the chairman, Tim Murris. Tim is a brilliant conservative lawyer, economist,
11:30
Speaker 3: and I was the head of policy at the FTC
11:32
Speaker 3: when I was thirty years old. I was a young kid.
11:34
Speaker 3: It was a fascinating job. I did that for a
11:36
Speaker 3: little over two years, very much enjoyed the job. At
11:40
Speaker 3: the time we had three Republican commissioners, two Democrat commissioners,
11:43
Speaker 3: and to be honest, to be a minority commissioner in
11:46
Speaker 3: the Pedtan Commission. It's kind of a weird job because
11:48
Speaker 3: you don't have the votes, but you can nonetheless express
11:52
Speaker 3: your views. You can dissent, you write opinions, you press
11:56
Speaker 3: back within the executive branch. I think the consequence of
12:00
Speaker 3: this decision as you're not going to see minority commissioners
12:04
Speaker 3: from the party out of power. You will see the
12:07
Speaker 3: independent agencies operate much like the rest of the executive
12:11
Speaker 3: So just like in the Department of Labor, you don't
12:14
Speaker 3: have a Republican Secretary of Labor and then a Democrat
12:19
Speaker 3: Secretary of Labor who argues against it. Instead, you just
12:21
Speaker 3: have appointees of the president. I think you will see
12:24
Speaker 3: in the independent agencies the same sort of thing. They
12:27
Speaker 3: will just be appointees of the majority party.
12:30
Speaker 2: It's going to be very very interesting to see, like
12:32
Speaker 2: you said, how this moves forward. But certainly that is
12:34
Speaker 2: a victory for President Donald Trump. All right, I want
12:37
Speaker 2: to move on to another one of the victories, and
12:39
Speaker 2: this was a big case. It's one that I was
12:41
Speaker 2: actually involved with more than any of the case it's
12:43
Speaker 2: ever been before the Supreme Court. My own roommate is
12:47
Speaker 2: the West Virginia Turney General Jamie McCuskey, and they were
12:50
Speaker 2: a part of bringing this case. They knew that when
12:54
Speaker 2: they made their decision West Virginia, it was probably going
12:56
Speaker 2: to reach the Supreme Court.
12:57
Speaker 1: Sure enough it did.
12:58
Speaker 2: I actually went into Supreme Court for those oral arguments
13:01
Speaker 2: that were being made that day with getting men out
13:05
Speaker 2: of women's sports.
13:07
Speaker 1: This was a massive victory.
13:08
Speaker 2: It's a fight the president one, it's a fight center
13:11
Speaker 2: that you've been heavily involved with protecting women's sports, and
13:15
Speaker 2: it was a huge victory that is going to have
13:18
Speaker 2: real repercussions across sports at every level in this country.
13:23
Speaker 3: Well, this is a big, big deal. The Spreme Court
13:25
Speaker 3: has now made absolutely clear that we can protect women
13:30
Speaker 3: from men competing against them in sports. We can protect
13:33
Speaker 3: girls from boys competing against them in sports. This has
13:37
Speaker 3: been one of the things. Look you look at how
13:40
Speaker 3: the world has gone crazy ten years ago, even five
13:43
Speaker 3: years ago, I don't think people really could have imagined
13:46
Speaker 3: this would be a thing, and we're seeing it be
13:48
Speaker 3: more and more often a thing where where boys are
13:52
Speaker 3: competing against girls, men are competing against women. It is
13:55
Speaker 3: grotesquely unfair. And the good news is twenty seven states
14:00
Speaker 3: have now passed laws saying this is not acceptable. We
14:04
Speaker 3: are going to protect girls, we are going to protect
14:06
Speaker 3: women in our states. This case West Virginia versus BPJ
14:13
Speaker 3: concerned the laws in West Virginia and Idaho, two states
14:17
Speaker 3: that had passed common sense state laws saying we're going
14:20
Speaker 3: to protect girls and women. Plainness brought lawsuits challenging that
14:25
Speaker 3: and saying the Constitution and federal law prohibits states protecting
14:30
Speaker 3: women's sports and protecting girl sports. And the Supreme Court
14:34
Speaker 3: unequivocally rejected that argument, and so the majority opinion, Justice
14:39
Speaker 3: Brett Kavanaugh wrote through majority opinion, Kavanaugh was joined by
14:43
Speaker 3: Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsich, and
14:47
Speaker 3: Justice Barrett. So it was a six to three decision,
14:50
Speaker 3: and the Court concluded that the laws in West Virginia
14:55
Speaker 3: and Idaho are constitutional. That the equal protec diction clause
15:00
Speaker 3: of the Constitution. So the equal protection clause of the
15:03
Speaker 3: Constitution is part of the fourteenth Amendment.
15:06
Speaker 4: If you look at in the.
15:08
Speaker 3: Wake of the Civil War, we fought the Civil War,
15:10
Speaker 3: bloody war, and then we adopted three amendments to the Constitutions,
15:16
Speaker 3: the Thirteenth, fourteenth, and fifteenth Amendment. The thirteenth Amendment prohibited slavery.
15:22
Speaker 3: The fourteenth Amendment, I'm gonna come back to it in
15:24
Speaker 3: a second. The fifteenth Amendment protected the right to vote
15:30
Speaker 3: and prohibited discrimination the right to vote based on race.
15:33
Speaker 4: What did the.
15:34
Speaker 3: Fourteenth Amendment do? The Fourteenth Amendment protected the rights of
15:39
Speaker 3: citizens from discrimination by government, and their three key clauses
15:44
Speaker 3: of the Fourteenth Amendment. There's the Privileges or Immunities clause,
15:49
Speaker 3: which prohibits the states from violating the privileges or immunities
15:53
Speaker 3: of citizens of the United States. There is the Equal
15:56
Speaker 3: Protection clause that prohibits the states and also the local
15:59
Speaker 3: government from denying Americans the equal protections of the law.
16:05
Speaker 3: And there's the due process clause that prohibits the states
16:09
Speaker 3: and the local governments from denying Americans life, liberty, or
16:14
Speaker 3: property without due process of law. The Equal Protection clause
16:19
Speaker 3: is essentially a provision of the Fourteenth Amendment that says
16:23
Speaker 3: government cannot treat similarly situated people differently cannot unfairly discriminate
16:29
Speaker 3: against you, and so it was initially interpreted to protect
16:33
Speaker 3: against racial discrimination. By the way, the equal protection Clause
16:38
Speaker 3: is the basis on which the Supreme Court has struck
16:41
Speaker 3: down racial discrimination and college admissions and has made clear
16:45
Speaker 3: you can't discriminate based on race and college admission. That
16:49
Speaker 3: was the right decision.
16:51
Speaker 4: Well, in this instance, the.
16:52
Speaker 3: Planists were arguing that stopping a biological male from competing
16:57
Speaker 3: in women's sports violated the equal protection Clause. The Supreme
17:02
Speaker 3: Court six y I three rejected that argument, said that
17:05
Speaker 3: is wrong. Secondly, there are federal civil rights laws that
17:11
Speaker 3: protect civil rights. These are passed by Congress and signed
17:15
Speaker 3: by the President. And in particular, there's a decision called
17:19
Speaker 3: Bostok that is an employment discrimination case where Justice Gorsuch
17:24
Speaker 3: had written the majority opinion and had, bizarrely, I think
17:27
Speaker 3: Bostok was wrongly decided. But the court in Bostok had
17:32
Speaker 3: concluded that the prohibition on discrimination based on sex also
17:40
Speaker 3: covered people who are transgendered, which I don't think is
17:44
Speaker 3: remotely within the statutory language. I think Bostok was wrongly decided.
17:49
Speaker 3: The Court here concluded nothing in Bostock requires biological males
17:56
Speaker 3: to compete in girls' sports. That is a big, big victory. Now,
18:03
Speaker 3: I want to be clear what this means. There are
18:05
Speaker 3: twenty seven states that have protected girl sports and women's sports.
18:10
Speaker 3: Those laws are now constitutionally sound and they are extremely
18:14
Speaker 3: unlikely to be struck down on litigation. Now, doing the math,
18:18
Speaker 3: if twenty seven states have protected that, that means twenty
18:21
Speaker 3: three states have not. The California is the New York's, Illinois,
18:25
Speaker 3: the blue states in this case. Now, look, the court
18:30
Speaker 3: was not deciding whether there is a problem with California
18:34
Speaker 3: and New York allowing boys to compete in girls sports.
18:37
Speaker 3: I think there is a massive fairness problem. There's a
18:41
Speaker 3: massive public policy problem. I would like to see Congress.
18:45
Speaker 3: I voted repeatedly in favor of Congress pathing legislation prohibiting
18:49
Speaker 3: boys from competing in girls sports, prohibiting men from competing
18:52
Speaker 3: in women's sports.
18:53
Speaker 4: I think that's the right policy.
18:55
Speaker 3: The outcome of this case is those twenty three states
18:59
Speaker 3: can continue to let boys compete in girl sports. But
19:03
Speaker 3: thankfully that means the voters can say enough is enough
19:06
Speaker 3: and get their states to pass laws protecting girl sports,
19:09
Speaker 3: protecting women's sports.
19:11
Speaker 2: Yeah, it is going to be huge, And like you said,
19:14
Speaker 2: there's still gonna be battles going forward, but they're going
19:16
Speaker 2: to be fought in a very different way than what
19:20
Speaker 2: we've witnessed is so far. And this is again, this
19:23
Speaker 2: is about protecting women's sports. And now you're going to
19:26
Speaker 2: see a lot of people that have been pushed around
19:28
Speaker 2: who are going to say, hey, I don't have to
19:30
Speaker 2: be anymore, I don't have to play in these two worlds.
19:33
Speaker 2: I can do what now the Supreme Court says I
19:35
Speaker 2: can do, and that is huge.
19:37
Speaker 1: I want to also move on and by the.
19:39
Speaker 3: Way, hold those second I want to say something also.
19:41
Speaker 3: It's worth noting that in this case it was six' to.
19:45
Speaker 3: Three that means three justices. Dissented so to my, Ores
19:50
Speaker 3: kagan And jackson, dissented and in, particular they argue that
19:57
Speaker 3: the case should have been remanded the lower to figure
20:00
Speaker 3: out if the transgender athlete who wanted to, compete whether
20:06
Speaker 3: that transgender athlete had specific medical treatments that eliminated any athletic.
20:13
Speaker 3: Advantage so they wanted to be able to, say, okay
20:15
Speaker 3: if you're a biological, man but you're taking so much
20:18
Speaker 3: estrogen that all of the advantages of being male in
20:23
Speaker 3: terms of physically competing in.
20:24
Speaker 4: Sports have been.
20:25
Speaker 3: Eliminated then you have a legal claim and you can
20:28
Speaker 3: strike down the. Law Justice Katanji Brown jackson wrote, separately
20:34
Speaker 3: and mind, You Katanji Brown, jackson you'll recall during her
20:37
Speaker 3: confirmation hearing famously was asked what is a?
20:40
Speaker 1: Woman and she couldn't answer the.
20:43
Speaker 4: Question do you remember what she?
20:44
Speaker 1: Said, yeah she. Couldn't she couldn't genuinely answer.
20:48
Speaker 4: It she, Said i'm not a.
20:50
Speaker 3: Biologist.
20:51
Speaker 4: Yeah, well it turns out.
20:53
Speaker 3: She's still not a biologist because she descended here and
20:57
Speaker 3: she said the court did not need to define sex
21:01
Speaker 3: as biological for the purposes Of title. Nine title nine
21:05
Speaker 3: is the law that protects girls. Sports she would have
21:08
Speaker 3: left the question open for future cases and refuse to deny. It,
21:12
Speaker 3: look you've got three liberal judges who and to be,
21:18
Speaker 3: clear if The democrats, win if they take The, senate
21:20
Speaker 3: they want three to become five to become, more who
21:24
Speaker 3: would strike down every law in the country protecting girl
21:28
Speaker 3: sports and protecting women's. Sports so we ought to celebrate
21:32
Speaker 3: celebrate this victory of sixty three. Victory that's, important but
21:35
Speaker 3: it also ought to scare us not a single one
21:38
Speaker 3: of the liberals that they didn't admit even a moment's.
21:42
Speaker 3: Hesitation that's how extreme they things have.
21:44
Speaker 2: Got, yeah it's a great, point and that's exactly why
21:49
Speaker 2: presidential elections are so, important because what whoever's, elected they
21:53
Speaker 2: get to point people and when they, do they stay
21:55
Speaker 2: for a very long. Time and it has made.
21:57
Speaker 3: It and by the, way then it's not just presidential,
21:59
Speaker 3: elections the midterms In. November if The democrats take The,
22:02
Speaker 3: senate my prediction is they will block every single judicial
22:07
Speaker 3: nomination for the next two.
22:09
Speaker 4: Years it used to be the.
22:11
Speaker 3: Case you had a president of one party a senator the,
22:14
Speaker 3: other that you'd move forward with judicial. Nominations there'd be some,
22:17
Speaker 3: moderation but judicial nominations would. PROCEED i think The democrats
22:21
Speaker 3: have gotten so radicalized judges shut down if they take The.
22:25
Speaker 1: SENATE i want to move to another big. Case it
22:28
Speaker 1: was a.
22:29
Speaker 2: Victory it's a little inside, baseball but it's a very
22:32
Speaker 2: important one of those THE scc and coordination expenditures explain
22:35
Speaker 2: this ruling as.
22:36
Speaker 4: Well this is a case.
22:37
Speaker 3: CALLED nrsc VERSUS sec and it's about free speech and
22:41
Speaker 3: it's a six' to three decision that there were strict
22:44
Speaker 3: rules on how much a political party can spend in
22:49
Speaker 3: coordination with its, own candidates and the court struck down
22:53
Speaker 3: those limits and SAID the rnc can spend as much
22:57
Speaker 3: money as it wants To support republicans in. An ELECTION
23:00
Speaker 3: d nc can spend as much money as it wants
23:03
Speaker 3: To support democrats, and elections and they, can coordinate they
23:07
Speaker 3: can talk with. The candidate the existing rules were really
23:10
Speaker 3: stupid where the parties could, spend money but they couldn't
23:14
Speaker 3: actually talk to the candidate they were spending money, to
23:16
Speaker 3: support AND that i believe is contrary To The first
23:22
Speaker 3: amendment To. The constitution, you know one of the strange
23:24
Speaker 3: things About how democrats think about. Free Speech The first
23:30
Speaker 3: Amendment says congress will make no law abridging the freedom.
23:32
Speaker 4: Of speech For, many democrats.
23:37
Speaker 3: They, are robust they are aggressive on the. Free speech
23:41
Speaker 3: when it concerns pornography, of sanity, kitty porn, they're like, oh,
23:46
Speaker 3: Yeah Yeah first medment covers all. Of that you should
23:48
Speaker 3: be able to have any sort of grotesque obscenity in any.
23:52
Speaker 3: Context whatsoever you should have explicit pornography in the library.
23:56
Speaker 3: Of kindergartens that's What.
23:58
Speaker 4: The first amendment is.
23:58
Speaker 3: ALL about i understand the argument That The first amendment
24:03
Speaker 3: is so robust it even includes things that we would.
24:07
Speaker 3: Find distasteful but the bizarre Thing about democrats is they
24:11
Speaker 3: say it somehow skips over. Political, speech look If The
24:16
Speaker 3: first amendment is designed to, protect.
24:18
Speaker 4: Anything it is.
24:20
Speaker 3: Political speech it is speech about our. Democratic process it is,
24:24
Speaker 3: speech saying vote for, my candidate throw this bomb out.
24:29
Speaker 3: Of office here's the rules we. Should adopt here's the
24:32
Speaker 3: laws we. Should adopt i'm for, Gay marriage i'm against.
24:36
Speaker 3: Gay marriage i'm, For abortion i'm. Against abortion i'm for protecting,
24:40
Speaker 3: Gun rights i'm against protecting. GUN rights, i mean that's
24:42
Speaker 3: the essence of. Our democracy and for many on, the
24:46
Speaker 3: left they believe government can regulate the living daylights out of.
24:51
Speaker 3: Political speech make it incredibly difficult to urge your. Fellow
24:55
Speaker 3: citizens here's who you, should elect here's who you should.
24:58
Speaker 3: Not elect and yet at the same time they wanted
25:02
Speaker 3: to protect speech at the outer.
25:05
Speaker 4: Edges Of The. FIRST amendment i don't. Get That The.
25:08
Speaker 3: Supreme, court here this decision is really important in terms
25:13
Speaker 3: of ensuring robust democracy and robust. Free speech and by,
25:20
Speaker 3: the way do you know what one of the key
25:22
Speaker 3: precedents was that this decision built on what was that
25:27
Speaker 3: the case decided in twenty twenty two that Was entitled
25:31
Speaker 3: Fec Versus ted Cruz.
25:34
Speaker 4: For senates.
25:36
Speaker 3: So it's kind OF cool i have over the course of,
25:41
Speaker 3: MY life i had been a law clerk At The.
25:44
Speaker 3: Supreme COURT so i have briefed and Advised The chief justice.
25:48
Speaker 4: On how to.
25:48
Speaker 3: DECIDE cases i had prepared the first Drafts Of supreme
25:52
Speaker 3: court opinions as a. LAW clerk i have been an
25:55
Speaker 3: advocate and argued nine cases in front of, the court
25:57
Speaker 3: and so it stood in front of, the court answered
25:59
Speaker 3: their questions and briefs and won multiple big. Landmark Cases
26:04
Speaker 3: but i've also been. A litigan i've been, a party
26:07
Speaker 3: AND so i filed a lawsuit that Culminated in Fec
26:11
Speaker 3: Versus ted Cruise for senates that was challenging a portion
26:15
Speaker 3: Of McCain. Fine Gold McCain fine gold was the big
26:17
Speaker 3: campaign finance Law that john McCain And Russ fine gold
26:21
Speaker 3: champion that put major constraints on political spending and. POLITICAL
26:25
Speaker 3: speech i Think McCain fine gold was an. Absolute abomination
26:29
Speaker 3: one element Of McCain fine gold is it limited the
26:33
Speaker 3: ability of a candidate the loan money to his or
26:37
Speaker 3: her own campaign and then pay. Yourself back and SO
26:41
Speaker 3: when i first Ran for senate in, Twenty twelve.
26:45
Speaker 4: HEIDI.
26:46
Speaker 3: And i, in fact right before, THE primary i Went
26:50
Speaker 3: to HEIDI and i had a pretty. SURREAL conversation i
26:54
Speaker 3: went to my WIFE and, I, said okay we need
26:58
Speaker 3: to liquidate one hundred percent of our liquid net worth
27:02
Speaker 3: and put it in, the campaign because if, we don't we.
27:05
Speaker 3: Can't win, and listen neither HIDING nor i come. From money.
27:10
Speaker 3: You know, my PARENTS when i was in high school.
27:12
Speaker 3: Went bankrupt my dad was, an immigrant he Came from cuba.
27:14
Speaker 3: With nothing it's a curious thing ment, people assume if
27:17
Speaker 3: you're In, the senate you were born with a silver
27:19
Speaker 3: spoon in.
27:19
Speaker 4: Your, mouth yes some people In. The senate.
27:22
Speaker 3: That's true for it wasn't. FOR me, I mean i've
27:25
Speaker 3: been financially on my OWN since i. Was seventeen my parents.
27:28
Speaker 3: Went bankrupt we lost, her home we lost. Our BUSINESS
27:32
Speaker 3: when i went, TO college i got. TWO jobs i took.
27:35
Speaker 3: Student loans i've been supporting myself ever. Since THEN but
27:40
Speaker 3: i will say over, THE years I mean i got a,
27:42
Speaker 3: GOOD education i got a, good Job and HEIDI and
27:44
Speaker 3: i and made some money and so we had done well.
27:47
Speaker 3: By working and so by THE time i ran, for
27:49
Speaker 3: senate our liquid net worth what we had that we
27:52
Speaker 3: could liquid it was one point two, million dollars which
27:55
Speaker 3: is a lot. Of, Money look i've had spent a
27:56
Speaker 3: whole life trying to. EARN that i was really grateful to.
27:59
Speaker 3: HAVE that i got to, Tell, you ben you've been
28:01
Speaker 3: married a long time as LONG as i had been a.
28:04
Speaker 2: Long time i'm getting stressed of the idea of having. That,
28:07
Speaker 2: Conversation mit joe's actually.
28:09
Speaker 4: Doing it it's an.
28:11
Speaker 5: Interesting CONVERSATION and i will SAY when i Went, TO.
28:13
Speaker 3: Heidi i felt very confident she would, say YES but
28:18
Speaker 3: i sort of thought we would have, a long. Extended
28:20
Speaker 3: conversation we might talk an hour or Two, about well
28:23
Speaker 3: that was A campaign look can you win one of,
28:26
Speaker 3: The prospects and it was one of THE moments i
28:28
Speaker 3: was most incredibly proud to be married to my best
28:31
Speaker 3: friend in, the world because twenty seconds into The conversation heidie,
28:35
Speaker 3: said yes. Do it and we put one point two
28:40
Speaker 3: a Million in and by, the way the last week of,
28:42
Speaker 3: the campaign that was all.
28:44
Speaker 5: The ads, We ran LIKE if i hadn't written.
28:46
Speaker 3: That check we would have been DARK on tv that
28:49
Speaker 3: last week because we. Were broke we'd spend everything, we'd
28:51
Speaker 3: raised and so that was the only money, we had
28:54
Speaker 3: and we ended up winning. The race But McCain feingeld
28:59
Speaker 3: limited the ability to pay. Yourself back so when the
29:01
Speaker 3: whole campaign, WAS over i could pay myself back some,
29:04
Speaker 3: of it but five hundred and fifty thousand OF that
29:07
Speaker 3: i couldn't pay. Myself back so for more than A
29:10
Speaker 3: decade i had written a five hundred and fifty thousand.
29:12
Speaker 3: Dollars checks they loaned, my campaign And McCain FINEGOLD said
29:16
Speaker 3: i had to give that as, A gift i guess
29:19
Speaker 3: to the voters and just just sacrifice. That money and it,
29:22
Speaker 3: wasn't fair it. Wasn't right and so this lawsuit.
29:25
Speaker 5: Challenged that, and, said listen you ought to be.
29:27
Speaker 3: Able to invest in and invest your resources in. Political
29:32
Speaker 3: speech and SIX' three i won In fec versus ted
29:37
Speaker 3: cruizper sentate.
29:39
Speaker 4: Big victory and it meant.
29:40
Speaker 3: Now and, by the way those rules they didn't hurt
29:45
Speaker 3: candidates who. Were really poor if you, had no money
29:47
Speaker 3: then it didn't matter if you could loan money to
29:50
Speaker 3: your campaign and, Pay it back and they didn't really
29:53
Speaker 3: hurt candidates who, were super rich the gazillionaires.
29:56
Speaker 4: Of the world if, you're so rich.
30:00
Speaker 3: It doesn't matter you could write a check and you.
30:01
Speaker 3: Don't miss it what it really hurt was kind of folks,
30:05
Speaker 3: in the middle folks who say were. PROFESSIONALS like me
30:07
Speaker 3: i was a practicing lawyer who. Had some resources, but
30:11
Speaker 3: you know most people aren't willing to put one hundred
30:13
Speaker 3: percent of their net worth. AND a campaign i mean
30:15
Speaker 3: that that's A.
30:18
Speaker 2: Big invest literally putting your money or your mouth is
30:20
Speaker 2: when you go sit down with the donor, and, You're
30:22
Speaker 2: like hey, I'm all, in, they're, like well really how?
30:24
Speaker 4: Much?
30:24
Speaker 2: Are, you like no like literally everything that's a testimony
30:27
Speaker 2: to how much your you believe in your campaign and.
30:29
Speaker 4: What you're doing well it is.
30:33
Speaker 3: And it's a question of being all in and and
30:38
Speaker 3: that Decision Protected basic. First, amendment rights Look McCain fine
30:43
Speaker 3: gold was passed by a bunch. Of incumbent politicians if,
30:46
Speaker 3: you're an incumbent you've. Got massive advantages you can drive,
30:50
Speaker 3: media like crazy you have. The fundraising apparatus there are
30:54
Speaker 3: huge benefits to. Being an incumbent Part of Why Congress
30:59
Speaker 3: passed fine gold is that incumbents didn't want. To be
31:02
Speaker 3: challenged they didn't want some upstart candidate to be able
31:06
Speaker 3: to run against them. And beat them and so by
31:09
Speaker 3: cutting off the money for, an upstart candidate if a
31:11
Speaker 3: candidate HAS, no name id and a candidate, can't raise
31:15
Speaker 3: money and a candidate can't invest, their own money you know.
31:17
Speaker 3: What it means you can't beat. An incumbent politician and
31:21
Speaker 3: so THE decision in fec Versus Ted cruz per senate
31:27
Speaker 3: we won. That six three that was a major precedent
31:30
Speaker 3: that IN turn UNDERLAY. Nrsc versus fec and what that
31:36
Speaker 3: means now is that the parties will be able to. Spend,
31:41
Speaker 3: and use look there are some people who say. Money
31:45
Speaker 3: isn't speech that view. Is objectively wrong virtually all speech
31:52
Speaker 3: requires the. Expenditure of money you go back to. The
31:55
Speaker 3: founding Era.
31:58
Speaker 4: Look.
31:58
Speaker 3: The federalist papers federalist papers were off eds printed in
32:03
Speaker 3: The Newspaper in new york and they were advocating for Ratification.
32:07
Speaker 4: Of the constitution. That took money printing.
32:09
Speaker 3: Newspapers take money You Look at Thomas payne's common sense that.
32:14
Speaker 4: That was printed.
32:15
Speaker 3: That took money You Look, at benjamin franklin who spent
32:18
Speaker 3: a lot of money putting. Out political pamphlets you go.
32:22
Speaker 5: Forward to today if a little old lady goes.
32:25
Speaker 3: To home depot and buys a stake of wood and,
32:30
Speaker 3: a poster board a marker and writes throw, the bums
32:33
Speaker 3: out that takes money and. Virtually all communication, by The
32:39
Speaker 3: Way The new york times every week spends millions of,
32:43
Speaker 3: dollars running, print printing, presses printing. NEWSPAPERS distributing newspapers nbc
32:49
Speaker 3: spends millions of dollars. COMMUNICATING about politics cnn spends millions
32:54
Speaker 3: of dollars. Communicating about politics money is how you communicate
32:59
Speaker 3: to a nation of one hundred and. Thirty million people
33:01
Speaker 3: and so, this, victory says look all of us have
33:03
Speaker 3: a right to participate in the political process and. Express
33:06
Speaker 3: our views that's a big victory.
33:09
Speaker 4: For free, speech, all.
33:10
Speaker 2: Right center let's get to. The bad cases there's two
33:14
Speaker 2: OF them that i think we. Need to highlight one
33:16
Speaker 2: of them and it's one that there's been a lot,
33:18
Speaker 2: of discussion over and that's. Birthright citizenship case my take, On,
33:22
Speaker 2: this Was look the president wanted there to be a
33:25
Speaker 2: grand debate nationwide. ON birthright citizenship i think a lot
33:29
Speaker 2: of people around him knew that if this Went To
33:31
Speaker 2: the supreme court and this was a fight they were,
33:33
Speaker 2: willing to have that there was a good chance it
33:35
Speaker 2: was not going to. Be a victory but it did
33:38
Speaker 2: open up a big conversation, nationwide on, immigration immigration status.
33:43
Speaker 2: And birthright citizenship people coming in birth or tourism is
33:47
Speaker 2: a simple way, of putting it and, IT certainly, did
33:50
Speaker 2: i think educate people on what's happening. In this country
33:54
Speaker 2: that for me, is a victory but the reality Is
33:57
Speaker 2: Of the supreme court this.
33:58
Speaker 1: Was a loss so.
34:01
Speaker 3: It was the question is what does? Birthright citizenship protect,
34:06
Speaker 3: and in particular are children of illegal aliens ENTITLED to
34:10
Speaker 3: become us citizens because they WERE born. On, us soil
34:14
Speaker 3: now as, a policy MATTER birthright citizenship i think is a.
34:18
Speaker 3: Very foolish policy it is a policy that. Encourages illegal
34:23
Speaker 3: immigration it rewards people for. Breaking our laws most Other
34:27
Speaker 3: countries on earth don't. Have that policy if you break
34:31
Speaker 3: in illegally to another country, most other countries if you have,
34:33
Speaker 3: a kid there that kid is not a citizen. Of
34:35
Speaker 3: that country it, also encourages things, as you noted, like
34:40
Speaker 3: birth tourism where pregnant women will get on a plane
34:44
Speaker 3: And fly to america on tourist visa simply to have
34:47
Speaker 3: A baby in america so that baby CAN become. A
34:50
Speaker 3: us citizen that's. A foolish policy now there's a legal
34:56
Speaker 3: question of how can you? Change BIRTHRIGHT citizenship and i
35:01
Speaker 3: talked a minute ago About, the fourteenth amendment And the
35:06
Speaker 3: fourteenth amendment says all persons born or Naturalized In, the
35:14
Speaker 3: united states and subject to, the jurisdiction thereof are Citizens
35:20
Speaker 3: Of the united states and of the state. Wherein they
35:22
Speaker 3: reside this case turned on the phrase and subject to.
35:26
Speaker 3: The jurisdiction thereof what happened there have long been understood
35:33
Speaker 3: is really two potential ways to change current law. And
35:37
Speaker 3: birthright citizenship the one way that is unquestionably permissible and
35:42
Speaker 3: valid would be a constitutional amendment That changes the constitution
35:46
Speaker 3: and makes clear that the child of an illegal Immigrant
35:49
Speaker 3: born in america IS not.
35:50
Speaker 5: A us citizen i.
35:51
Speaker 3: STRONGLY support that i would. Vote for that. That's good policy,
35:56
Speaker 3: the second way and there's dispute, among legal Scholars is
35:59
Speaker 3: could congress passed a law saying the children of illegal
36:03
Speaker 3: Immigrants born in AMERICA are? Not us citizens that is
36:07
Speaker 3: still a. Somewhat Murky question donald trump explored, a third
36:12
Speaker 3: avenue which is he signed an executive, ORDER that said
36:18
Speaker 3: i am ordering the children of illegal IMMIGRANTS are not
36:21
Speaker 3: us citizens if they're Born In. The, united states now,
36:24
Speaker 3: to be Honest prior to trump, Coming into office i've
36:28
Speaker 3: never heard anyone articulate a legal theory that that could
36:31
Speaker 3: be done. By Executive order the trump administration knew it
36:35
Speaker 3: was pushing the bounds. Of what's permissible you are right
36:38
Speaker 3: that we've now had a robust debate on birthright citizenship
36:42
Speaker 3: and what a bad. Policy it Is now the court
36:46
Speaker 3: unfortunately ruled five to four that the executive order is
36:54
Speaker 3: invalid and that the children of illegal immigrants BORN in
36:58
Speaker 3: the US are.
36:59
Speaker 4: U s medicenes.
37:01
Speaker 3: That Is Unfortunate chief justice roberts.
37:04
Speaker 4: WROTE the opinion.
37:07
Speaker 3: I will say that that did. Not surprise me it
37:13
Speaker 3: was clear from the oral argument this was. The likely
37:15
Speaker 3: outcome this was where the. VOTES were headed i wrote,
37:22
Speaker 3: an amicus brief actually two different amicus briefs, in the
37:26
Speaker 3: court joined by Multiple, members of CONGRESS in which I
37:30
Speaker 3: Asked the supreme court to restore the original meaning of
37:33
Speaker 3: the birthright CITIZENSHIP clause and i would encourage anyone interested
37:36
Speaker 3: in this issue go read THE brief that i wrote
37:39
Speaker 3: that laid out the original understanding of what the phrase
37:42
Speaker 3: subject to the, jurisdiction thereof meant and that someone who
37:46
Speaker 3: was unlawfully present in the country did not fall. WITHIN
37:49
Speaker 3: those parameters i think that's. THE right conclusion i WISH
37:53
Speaker 3: the court i think the dissenters have. THE better argument
37:55
Speaker 3: i wish the dissenters instead of having four votes, that
37:59
Speaker 3: had five we.
38:00
Speaker 4: Had one more, THAT being said i.
38:03
Speaker 5: Was.
38:03
Speaker 3: NOT surprised now i, Will Say this justice thomas wrote
38:08
Speaker 3: a spectacular descent in. Ninety one pages it, is INCREDIBLY
38:14
Speaker 3: effective and I Will say justice thomas's cited my brief twice.
38:18
Speaker 3: In that descent i'm glad that the descent. COMMANDED four
38:23
Speaker 3: votes i wish you. Had commanded five where does, That,
38:26
Speaker 3: leave us well there's still some Ambiguity on whether congress
38:31
Speaker 3: could pass legislation defining subject to the jurisdiction thereof to
38:37
Speaker 3: exclude the children born by. Parents Here illegally the court
38:41
Speaker 3: did not resolve that question because it wasn't presented.
38:44
Speaker 4: With that question but let.
38:47
Speaker 3: Me be clear, from my perspective this is a, terrible
38:51
Speaker 3: policy outcome and.
38:53
Speaker 4: It's also the.
38:55
Speaker 3: Wrong LEGAL outcome and i would support number one at
38:59
Speaker 3: constitutional amendment to. END birthright citizenship i would support number
39:03
Speaker 3: two legislation to. END birthright citizenship i hope we go
39:08
Speaker 3: down the road to.
39:08
Speaker 1: Both, of, THOSE yeah yeah i agree.
39:10
Speaker 2: With you, there and finally we've got to deal with
39:12
Speaker 2: the case that deals with.
39:13
Speaker 1: Mail in.
39:14
Speaker 3: Ballots that's right this is another Case that IS, watson
39:18
Speaker 3: Versus rnc AND watson versus rnc deals with The laws
39:26
Speaker 3: in mississippi concerning. Governing absentee ballots so The laws in
39:31
Speaker 3: mississippi say that absentee ballot have to be postmarked by
39:36
Speaker 3: election day and they can be received up to five days.
39:40
Speaker 3: After election day and, in THIS case the rnc filed
39:45
Speaker 3: a lawsuit challenging that and saying that under the terms of,
39:50
Speaker 3: federal election law election day is understood to be the
39:57
Speaker 3: actual day, of the election and, so the art if
40:00
Speaker 3: you are in cea made is that you could not
40:03
Speaker 3: count ballots received up to five days. After, the election
40:07
Speaker 3: unfortunately by a vote of, five To Four the supreme court,
40:10
Speaker 3: rejected That Argument And Justice, sammy cony Barrett Joined By,
40:15
Speaker 3: chief justice roberts and the three liberals concluded that election
40:19
Speaker 3: day is understood to mean the, day when quote, voting
40:22
Speaker 3: is complete not when. Ballots are received, in other Words
40:26
Speaker 3: they upheld mississippi's law allowing ballots to receive be received
40:31
Speaker 3: up to five days.
40:32
Speaker 4: After election day.
40:35
Speaker 3: There, were vigorous descents it was, Five to four but
40:40
Speaker 3: at the end, of the day what it means is
40:43
Speaker 3: that the court has concluded federal law does not limit
40:48
Speaker 3: late received. Mail in ballots the consequence of this is
40:52
Speaker 3: it's going to remain. State by state red states can
40:55
Speaker 3: put real, and meaningful limits, can limit balloting can limit.
41:00
Speaker 3: Late received ballots mississippi can. Change their law but it
41:04
Speaker 3: also means that blue States states like california can have
41:07
Speaker 3: the atrocity they had in their, most recent election their MAYOR'S,
41:12
Speaker 3: election in la where they have votes, coming, in days
41:16
Speaker 3: weeks as much as. A, month later look this, decision
41:20
Speaker 3: Is unfortunate.
41:21
Speaker 5: But i'll tell you what.
41:22
Speaker 3: It really underscores it underscores the need To Pass The.
41:26
Speaker 3: Save America Act To save america.
41:27
Speaker 4: Act would would protect.
41:30
Speaker 3: Against illegal voting i'm an Original Sponsor To. Save america
41:34
Speaker 3: act i'm fighting For. In the, senate this decision unfortunately
41:38
Speaker 3: was a real Loss At. The, spring court yeah.
41:41
Speaker 2: It, really was well it certainly, is a lot, as
41:44
Speaker 2: you mentioned coming Down From. The supreme court i'm glad
41:46
Speaker 2: we got to cover a. Lot of, it you, know
41:47
Speaker 2: the wins you, know the losses and what it. Means
41:50
Speaker 2: moving forward this is why we, Do the show. So
41:52
Speaker 2: don't forget we Do, This show Monday. Wednesday and friday
41:54
Speaker 2: hit that subscriber auto download button wherever you get your
41:58
Speaker 2: podcasts so you don't, miss a Say episode Of Verdict
42:00
Speaker 2: with ted cruise and we'll see you Back here.
42:03
Speaker 1: On friday morning