Dude Process, Not Due Process

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29:33Back to the Fifth Circuit because they were not done even after doing all of this precedential unreason, precedential state order that is an opinion without reasons. So they, also sitting en banc, decided they are going to decide whether this federal statute that prohibits people with felony convictions from possessing firearms violates the Constitution's Commerce Clause on the ground that it potentially exceeds Congress's power to enact laws under the Commerce Clause. If you're thinking, wait, a federal gun law may be exceeding Congress's powers under the Commerce Clause. Where have I heard this before?

30:09It would be in a concurrence by Clarence Thomas, who floated this idea in Hamani. Because if taken seriously, it would mean that a bunch of other federal laws, like federal civil rights laws, also violate the Constitution's Commerce Clause because Congress doesn't have the authority to enact them. Yeah. Also child pornography laws. Yes. Child pornography laws. Explosives, biological weapons, IP, financial regulation like they're all arrested like we're not going to have regulatory laws protecting like health safety welfare right one of the judges i think said can felons from the other 11 circuits now flood the gulf coast to rearm themselves oh god thomas does this right this is yes his uh concurrence and dobs uh wakes me in my nightmares at least once a week when he said let's reconsider Griswold, Loving, Obergefell, etc.

31:01He didn't say Loving, but I put that in there. When Griswold goes down, they all go down, Justice Thomas. But he loves to make these little signals of how he'll decide future cases. And Himani was a harbinger. I think that our Second Amendment interpretation over the last couple of years has been inconsistent, I would say. for that's a generous generous word um but yes and and and with himani i think we saw you know what this court's plans are uh with the second amendment and that is to slowly eradicate any form of gun violence prevention legislation we have in this country um and if this case goes where justice thomas wants it to go it is again chilling i fundamentally don't understand how it could happen.

31:56Like to get rid of the Commerce Clause hook, you're gutting everything. I don't, I do think it's a type of thing that Justice Thomas would want. I don't see the other justices standing with him, but it is chilling nonetheless. Totally chilling. And the Fifth Circuit is into it. They too are jonesing for a Commerce Clause freak off. But it's not just the Fifth Circuit. Unfortunately, like other circuits are also trying to make a run for America's worst circuit. And that includes on due process issues. So let's just go to the Second Circuit for a second. They decided to get in on the anti-due process wave.

32:31In a unanimous opinion, that court weighed in on one of the cases where a non-citizen had been swept into the administration's anti-Palestine fervor. This particular case involved Moshen Madawi, an individual whom the Trump administration decided to detain, arrest and begin trying to remove when he showed up for his regular and required immigration check in a naturalization interview. You know, and essentially what this this case is deciding is that the government can use detention as punishment. Right. And that is fundamentally it's, you know, self-deport rather endure the the grinding aftermath of a removal order.

33:12And that's what this is allowing. Right. Because what they say is the federal courts, they cannot hear the constitutional claim that Madawi raised to challenge his detention. They were like, no, you have to do that in the immigration proceedings. But if you have to do that in the immigration proceedings, it's not going to be resolved until they decide whether to remove you, i.e. you are going to be detained potentially throughout that super lengthy process. One of the Trump appointees on the panel, Judge Menashe, issued a real pick-me concurrence suggesting that even if the detention claim could be separated from the deportation claim, like the petitioner was arguing he couldn't be detained for reasons unrelated to why he couldn't be removed, the petitioner still couldn't challenge his detention because indefinite detention without legal review, I guess that means due process these days.

34:01That's why it's due process rather than due process. And that wasn't even the only audition this week. So Judge Lawrence Van Dyke of I made an am a sexual video dissent showing me assembling a gun. And I once used the phrase this case is about swinging dicks in a judicial opinion fame. He issued a dissent from a ruling where the Ninth Circuit said a public school could reprimand a social worker who displayed anti-trans books that the state views as discriminatory. And Judge Van Dyke in dissent wrote, quote, the school officials real interest in censoring the speech in this case is something nefarious to give children the false impression that all the adults in the school personally share the same woke perspective.

34:41Like using woke in a judicial opinion, it's just he could not be trying harder if he tried. Second Circuit, not even the only one trying to make their turn as America's worst circuit court. In what could be a preview of the Supreme Court's upcoming case about whether states can ban the AR-15 platform and other semi-automatic rifles, The Third Circuit invalidated New Jersey's ban on assault firearms. They are large capacity ammunition magazines that can hold more than 10 rounds of ammunition. And a concurrence by another Trump appointee, Judge Mady, cited Thomas Aquinas, like the original originalist.

35:18I don't know why that guy's views have anything to do with the Constitution. History and tradition. Right. History and tradition. But like on some separate track than the Constitution itself. And it also cited, perhaps to explain what the F is going on, work on what's known as common good constitutionalism. This is the idea propounded by, you know, people on the right who don't think originalism is reactionary enough that maintains the Constitution should be interpreted in ways that advance the common good. And what do they think advances the common good? You know, authoritarianism, subordinating women, discriminating against racial minorities, et cetera, et cetera, because those are the outcomes, right?

35:59The common good constitutionalism seems to be achieving. It's almost like they want a living constitution. Almost, almost, right? But of course, they would never say that. Scalia rolling in his grave. I realize they want a living constitution, not a dead constitution, but they want all of us to be dead. Yeah. Right. So both and. A living constitution based on the ideas of a bunch of dead people. Yes. Yeah. What they say those ideas are, right? Like not representative, you know, in even the abortion litigation or what I foresee as the upcoming contraception litigation that also shows up in my nightmares.

36:43You know, they're like, oh, no one was having abortions. Like on what planet are you on? You know what I mean? Right. I guess no men were having abortions. Right. Yes. That's right. Right. That was what they determined. And that necessarily resolved the entire case for them. Yeah. Because if men weren't doing it, what is the point? It can't be good. I mean, and, you know, what is sex differences anyhow? It doesn't matter. And we're seeing that legally as well. Yes, indeed. so maybe just for more men's let's go to the lightning round of news that i'm just calling the men's category like are the men's okay first i have another clip to show you you've probably already seen this one though it's from steve scalise it's gotten a good bit of publicity but we couldn't not include it in the show because it's just so fucking absurd and this is him attempting to defend the save act a federal law that would disenfranchise many many people by requiring them to, among other things, have proof of citizenship to vote.

37:46When you think about something like Save America, which is at the heart of democracy, just saying, show picture ID to vote. For God's sake, you can't go get pasta at Olive Garden without a picture ID. Why not be able to show a picture ID to vote? I don't know, Lisa. Last time I went to Olive Garden, they did not ask to ID me. This is the question. I want to know what the fuck he is doing at an Olive Garden And with his all-you-can-eat pasta, they were asking for his ID. They're like, sir, that is too many breadsticks. I just, I want to know what is too many breadsticks? Or what do you have to do to get carded at the all-you-can-eat pasta?

38:27Is he confusing drinking alcohol and voting? That could be. I mean, maybe he just goes to Olive Garden Sloshed and so it all blurs together. I don't know. I would say this. No one would look at Steve Scalise and think, is he under 21? Right. So that also seems implausible. The whole thing. Big question mark. Sometimes I wonder with these men, had he been to quote unquote Olive Garden already that day? Right. Well, since we are in the Are the Men's Okay segment, no segment like this would be complete without a mention of one Pete Kegsbreath. At this point, you've probably heard about Kegsbrough's new testosterone policy for the military, the no low T military, as he called it.

39:13Or in his words, this is I mean, again, you just like have to hear it and see it to believe it. I'm authorizing a new screening program for testosterone deficiency for our service members, ensuring you have the right testosterone levels to operate at your absolute best. number one this is so embarrassing for him it is so embarrassing like especially when you see those videos of him doing his like little push-ups and pull-ups and exercises and like i look better doing my bicep curls than pd over here there's also of course a legal a legal tie in here and we are seeing you know i i'm sure all of you listeners are immediately thinking hey what are you saying uh that people in the military should be able to get testosterone that seems inconsistent from your other statements uh and you would be you would be on the nose uh judge anna reyes uh has made similar points that uh it seems that the dod's basis for treating trans men and other service members differently between this new policy and the military ban is a question mark that she wants to pursue obviously it is pharmacologically the same intervention ongoing hormone therapy with monitoring.

40:29And on the internet, what we hear everyone say is like, oh, sounds like gender affirming treatment. But, you know, it both is, right, like the availability of testosterone, but also isn't because to the extent this is like mandatory and enforced on people against their will, it's like compulsory rather than something you get with your healthcare. I don't know what he's envisioning, but it's just all kinds of fucked up. can you imagine like the test the tea rankings that are going to come out god you know and like these service members are going to be comparing their their tea numbers their tea levels and i just imagine the the way these men talk about women in the locker rooms they're going to start talking about each other and their tea levels yeah how big is your tea level oh my god um spilling the tea might unfortunately take on a very bad additional meaning oh so it's just like we're in the middle of a$37 billion unconstitutional war, Pete Hegseth, don't you have other things you should be doing?

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45:11Next on the list of men's, Republican Senator Josh Hawley. He decided to make a referral to the Department of Justice in which he asked the DOJ to investigate Plan C. That is the informational educational resource that provides information about how to access abortion pills by mail from anywhere in the country. It's run by a nonprofit health campaign. Holly says the website is in violation of federal law, in part because it recommends off-label use of the drugs and also how to access the drug in states that have abortion bans. This is, let's say, a dubious allegation slash interpretation of federal criminal law.

45:45But the point is, it's federal criminal law, and it's a threat that carries with it the prospect of jail time. And I wanted to highlight that because it underscores something we have talked about on the pod that had been flagged by a wonderful, relatively new independent news source that we've also highlighted before. And the point is this. We are all in this together, trans rights edition, because if you think that these goons and weirdos are going to limit their vitriol to trans people and trans sports bands, you have another thing coming. What Hawley is trying to do here is run the same playbook against medication abortion providers that the Trump administration has been trying to run against providers of gender affirming care, accusing them of criminal conduct by making available or recommending prescriptions for off-label use, i.e.

46:25for a drug to be used in ways other than the manufacturer labels the drug. That allegation is behind some of the Trump administration's harassing subpoenas for medical records related to hospitals that provide gender-affirming care. And it was a playbook that could always be used against other health care providers, disfavored ones, specifically reproductive health care providers, as Garnett Henderson warned in March over at Autonomy News. That's a relatively new independent news site. Again, Autonomy News, great new website whose work we've highlighted before. Previously, they're reporting on the temporary fallout from the Supreme Court's delay in issuing their medication abortion ruling from this past spring.

47:01Emily, I know you had also been following other developments on their relationship or connection between trans rights and abortion rights. Yeah. And frankly, there's just so many different things I could talk about right now. I don't even know which one to start with. Before I get into answering your question, I do want to say I have some good news on this. Oh, yes. The ruling and validating the restrictions on Mifepristone. Yes. Rare, I feel, to be able to say something positive. So we have a good case. From a federal court. Yeah. So we have a good case coming out of Virginia that essentially says FDA restrictions on mifepristone are capricious.

47:44And they need to be the FDA needs to go back and make sure that people have there's new regs to make sure that people have access to mifepristone as an abortion medication. And it's a really good decision and it's really well written and really interesting. It is also inevitably going to be setting up the circuit split that we are going to see that will run this case up to the Supreme Court. But I think that that's what we've all been expecting all these years. There's multiple other cases against the FDA trying to get the FDA to overrule the 20-year allowance of Mifepristone. You guys have discussed this many times on this pod.

48:18I'm not telling you anything you don't know, though I remain passionate about the topic. But, okay, so there was one other case that the Supreme Court granted cert in this case called International Partners for Ethical Care, Inc. versus Ferguson. And this is about a bunch of parents are bringing this case because the existence of homeless programs for runaway children and those programs offering gender affirming care to those runaway children, the mere existence of that is a threat to their parental rights. And one of the things they cite in this case and that we saw some of the Georges picking up on is a Texas case called DeAnda.

49:03And that is about the parental right to not have other people handing out birth control to teenagers. And for those of us like me who are fixated on the overturning of Griswold as a long term impact litigation strategy, that case sort of sticks out there as one of the first things to fall. But there's just a complete and utter overlap. I mean, the Venn diagram is a circle between these anti-birth control cases and the trans rights cases, because the goal, like parental rights and also religious freedom are the two main arguments they are going to be using to take all of this down. And we're seeing it in, you know, across the spectrum in all of these cases.

49:51And it's about health care and it's about the right to bodily autonomy. And, you know, there's a lot to be said when we're thinking about the future of contraception litigation from Scrimetti, right? Like the recent Supreme Court case on trans rights. And so I think that when going back to one of my favorite topics, like the Dobbs decision of history and tradition and who gets to decide what is constitutional in this country, it's a bunch of dead men, apparently, except for when they're not. But that's fine, except for when it's for the common good. But that is that is the right, like the infrastructure that they are setting up under which they are going to decide these future cases.

50:36Yeah. I should say, again, as Emily was saying, so much to say about the relationship between these different rights that are under attack. I did a YouTube short video with Kate Riga at Talking Points Memo last week, and we covered even more of it. But on the R.D. Menzo K, another frequent flyer in this segment from the liquor DEI cabinet, and that would be RFK. And now diarrhea, two words that apparently do belong together. So in case you haven't heard this one yet, America is in the shudder. There is an outbreak of explosive diarrhea that's been traced to a foodborne parasite. And some contact tracing suggests the parasite might have, you know, gone through, right, or been distributed through some lettuce from a Taylor farm.

51:17So the actual lettuce has tested negative and there isn't a positive test on that lettuce. I want to say one of my takeaways from this whole thing is I have personally been so confused about what's happening. Like I, too, don't want the explosive diarrhea. So I have been on an individual level trying to figure out what to avoid. And it's like you don't even know who to trust because first the FDA says it's this lettuce. Then they're like, it's Taco Bell. I don't eat Taco Bell. So that's fine. And they're like, no, wait, it's bagged lettuce. And then it's like, no, it's not bagged lettuce. And of course, you know, there's lots of other information in the ether.

51:51The FDA was supposed to have a food traceability final rule that was going to be implemented. But at the beginning of the Trump 2.0 term, the FDA announced an intent to delay the implementation of that. But coincidentally, just, you know, around the same time, the head of Taylor Farms made a very, very large donation to make America Great Again PAC. Coincidental, almost surely, it was about tariffs, apparently. And, you know, to combine that with the gutting of the FDA done by the Trump administration, it's like, this is a huge problem. We are not seeing the public communications, the tracing of things.

52:33rfk said on a podcast like oh there's an explosive diarrhea outbreak every summer it's just same old same old there is not an explosive diarrhea outbreak every summer um at least as far as i know not as far as i know and i you know i'm gonna go out on a limb here and say actually i would like to see the government working to end explosive diarrhea outbreaks you know what i mean explosive diarrhea sounds like a winning message i have heard it is very bad like it is people are like Like it is this is not your normal explosive diarrhea. Yeah. You know, I said RFK, part of the DEI cabinet. We've called it Dick's ex-husbands and imbeciles.

53:13Now maybe diarrhea for everyone through incompetence. Also, measles are up. So, so much going on. Well, I read today that the the thing is now being traced to cilantro and parsley in North Carolina. So it's going to new vegetables. I think, you know, once it gets to the berries, the Berry Mamas will end this. And I hope that's the case. Berry Mamas, we need you. Okay. Save me from the explosive diarrhea. Yeah. I don't even want to know what Maha has to say about this, but yeah. They're probably like, it's a cleanse. Yes. Just going down our list of men's, just because why not? This behavior seemed to fit on the list.

53:58It's been reported that Bryson DeChambeau, a golfer, reportedly wanted Donald Trump to intervene after he received a penalty at the Open Championship. Like he threw a temper tantrum, refusing to sign a scorecard, holding the tournament hostage and apparently relayed his request to Donald Trump. Again, are the men's OK? Like this is not like if you lose some sort of sports match, the solution is not to call the president to have him rig it for you. And yet this seems to now be a go to move. You know, one more thing for me to hate the Trump administration about, they're making me have to learn about sports.

54:31Just so you can understand how they're fucking it up, too. I had to pay attention to the FIFA red card of it all. What a nightmare for me. Yeah. The hardship, the burden, the burdens we all carry. You know, one last one, and this is definitely in a different category, which is why I put it last, but still wanted to note it. Andrew Tate and his brother Tristan were rearrested in Miami and British officials are seeking their extradition on charges of rape and sex trafficking. Instead of attempting to describe who Andrew Tate is and what he and his brother have allegedly done, I want to re-recommend Heidi Blake's piece from The New Yorker, Andrew Tate's Empire of Abuse.

55:09I really don't think it is coincidental that the brothers came under subsequent scrutiny after that piece came out, given how deeply it was reported and all of the allegations, horrifying allegations it describes. Mr. Kate Shaw, aka Chris Hayes, also did a Why Is This Happening podcast episode with Heidi Blake about her reporting. So definitely check out both of those. And the Tate, I don't know which one, one of the Taints said they were like... Did you say Taints? I'm going to use that. that's good thanks i'm finally catching on to scrutiny name calling it's taken me it's taken me a couple episodes you keep it classy right and keep it subtle and then you just slide it in and then it gets picked up in the lingo the taints the taint brothers catching on before you guys know it i'll be one of the gals um one of them was like we called baron why we thought right You get this solved.

56:07It's like, oh, I mean, look, when you look at the people who are surrounding the the Trump brothers and who who who they spend their time with, this is not shocking. Right. That that these types of men would assume that they can call and get special treatment. And, you know, per the previous segment on the sports of it all, clearly the Trump administration does offer. Yes. The people special treatment. And so I can't imagine why they wouldn't expect this to happen. They got special treatment the first time. Why won't they get special treatment this time? And to be clear, these people deserve to rot in hell.

56:45And I hope they are served with indefinite detention, which is apparently now legal. Unfortunately, I'm not sure it's for men's like the Taint Brothers. But, you know, they do process, not due process or something like that. yeah so Emily before I let you go would you like to share your favorite things your recent favorite things with our listeners I would I'm always trying to I'm always reading a few good books one book that I'm very very late on but I did just finally finish this week was careless people which it was a very good book and I highly recommend. I thought that that was a very, very good read.

57:33On the more fiction side, I also, again, very late on it, finished God of the Woods. Oh, yeah. I love that one, too. Which is also an excellent, excellent book. It is my book club book. My book club always chooses excellent books. And so those are two of my suggestions. There's also a new show that I just had a brain freeze on, Ride or Die, which is Octavia Spencer and Hannah Waddingham. And it is so, so good. I haven't finished it yet, but I highly recommend that series. It was a real pleasure. And I do believe multiple years ago, I was on your pod and I made the same suggestion because it's my single favorite summer recipe, but it is the Smitten Kitchen Zucchini Pasta.

58:18Yeah. Yeah. And you know what? you know what it is it's still incredible you know for new listeners they get the benefit of this new listeners make a little tomato gallette with like heirloom tomatoes and then serve it with the zucchini pasta with fresh fettuccine and it is to die for and pretty much what i maybe a sweet corn also and it's just the perfect summer meal yeah that sounds delicious yeah okay so i will go in a similar order i'll start with the book so i was on vacation i read the off-campus series enjoyed it immensely except for book four i didn't love book four um i also read julianne long's new one game of rogues loved it um and now the like more serious ones gonna re-recommend heidi blake andrew tate's empire of abuse and chris hayes and heidi blake on her reporting.

59:12Also recommend Autonomy News, the new website. They're doing important reporting. There was a great state Supreme Court decision out of Hawaii that really captured the aloha spirit. It rejected the idea that the Hawaii Supreme Court should interpret their state constitution in the same way that the U.S. Supreme Court has interpreted the federal constitution. The Hawaii Supreme Court said they weren't going to adopt the guidance of a court that defines federal due process, you know, that honors the work of 1857, i.e. Dred Scott, and called, you know, the Roberts court's actions, quote, white noise, said they only see white, just pages and pages of these Kendrick-level disses and grievances, definitely worth checking out.

59:58And then on a slightly lighter note, one other law stuff, the transcript and the reporting out of the federal court hearing involving the administration subpoenaing New York Times journalists. I don't know if you saw this, the ones like reporting on Trump's use of the Qatari jet, the Amalia jet or whatnot. Okay. The government ultimately withdrew the subpoenas of the journalists. And the hearing sounds completely epic. So Matthew Russell at Inner City Press reported this. Here's some of what apparently unfolded. So the judge says, you didn't tell the judge that the subpoena was about reporters, about the New York Times, federal government lawyer.

1:00:30We did not. It was an oversight. Later, we did legal research. incredible right this is supposed to be like the the best u.s attorney's office in the country the southern district of new york and they're like yeah we didn't really do legal research before we like saw the subpoena we like did it after later we asked chad gpt yeah indeed indeed um at another point they seem to suggest like they had accidentally subpoenaed the records of one of the reporter's mothers um so the judge is like you're saying there was no attempt to find out these were the numbers of mothers and spouses and the lawyer says that was an error we own it that was a mistake not in furtherance of the investigation oopsies you know what here's the thing um if any of you listening ever have felt imposter syndrome right i hope that this story kills that for you oh yeah you know just know it takes nothing now apparently you you can just bring it don't do legal research don't figure out who you're going after it doesn't matter it's fine you just tell the judges whoopsie oopsies exactly you'll fire up those subpoenas and see what comes it's hot subpoena summer I mean at least you get the headline right exactly the Fox News segment well Emily thank you again so much for joining again listeners Emily Amick you can find her on Instagram and sub stack at Emily in your phone and get her book Democracy in Retrograde and we hope to hear more from you soon.

1:01:58Thanks, Leah. I appreciate it. And now stay tuned for a conversation I had with EEOC Commissioner Kalpana Kotigal.

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1:04:28For this segment, I am delighted to be joined by EEOC Commissioner Kalpana Kotogal. On the podcast, we have talked about the momentous significance of the Supreme Court solving the separation of powers in Trump versus Slaughter, by which I mean the cavalier demolition of independent agencies and the fallout that's likely to have. And we wanted to bring that to light slash life by talking about the specific fallout at one formerly independent agency, the EEOC, Equal Employment Opportunity Commission. Welcome to the show, Commissioner. Thanks, Leah. I'm super glad to be here. Thanks for having me.

1:05:00So for those who might not be familiar, can you share a little bit about what the EEOC is and why the agency matters? Yeah, I absolutely can. I should just say at the outset that I'm only speaking for myself here today, obviously not for the commission as a whole. You know, we at the EEOC have our roots in the Civil Rights Act of 1964 and in the civil rights movement. We've thought of ourselves for a long time as the nation's premier civil rights agency, and our job is basically to enforce the federal civil rights laws, right, which protect from discrimination on the basis of a bunch of different traits like race and sex, also disability, gender identity, sexual orientation, the list goes on.

1:05:40And we are we're a charge based agency. Right. So what that means is that workers file charges and then EEOC staff investigate those charges to determine whether the civil rights laws have been violated. And then they might negotiate with employers to seek relief. You know, we also bring litigation, particularly in cases where the discrimination is really egregious or systemic or where those workers may not be able to secure counsel outside the agency. Just to give you a sense of scale and scope, you know, to underscore the fact that discrimination is real and ongoing. We received more than 88 ,000 charges of discrimination last year alone and secured more than$660 million in relief for workers.

1:06:28So we're a little agency, but, you know, we punch way above our weight, I think, in terms of relief. You know, I think a lot, I think a lot these days and have thought for a long time about sort of what the role of this agency is in modern times. And, you know, I think about the Civil Rights Act as really giving voice to some of our nation's highest ideals. And I think we know that that promise has not yet been fulfilled. And also I think that underscores just how important it is that we have a fair and impartial EEOC. And I know we're going to talk a lot more about that now, you know, in the wake of slaughter.

1:07:05So let's let's go to that fair and impartial EEOC, because while the slaughter decision just came down, it's actually reflected the status quo for some time since the Supreme Court and Trump versus Wilcox had allowed the president to fire the heads of several multi-member commissions. That order came down on the shadow docket. So Trump had also fired Democratic appointees on the EEOC and the firings were challenged in litigation. But Wilcox allowed the removals to proceed while litigation proceeded. And in any case, after slaughter, the former EEOC commissioner dropped their lawsuit. All that is to say, you've been the lone Democratic commissioner at the agency for the past year and a half.

1:07:41So how has the president's removal of your fellow Democratic commissioners impacted your work? Yeah, it's been an interesting year and a half, as you can imagine. We've been really focused since January of 2025 when my colleagues were removed, you know, unprecedented by the president. Our presence at the agency, my team and I, feels like a huge, it's a huge privilege, obviously, but a huge responsibility. And we're thinking about it in terms of the importance of continuing to advocate for marginalized worker communities, but also to describe, to express an affirmative view of civil rights, like one that's actually grounded in the law.

1:08:26oh, you know, there remain workers across the country for whom the EEOC might be their only option to get relief for egregious harassment or for pregnancy discrimination. And so I think that hasn't changed, you know, from one administration to the next on the one hand. On the other hand, you know, there's a lot happening. And I think that means that my job at the agency has been to advocate for transparency as the administration rolls out these like major changes to the way the agency has operated and to its priorities. And then I spend a lot of time advocating on behalf of our career staff who are increasingly doing more with less, really under the gun as so many federal workers are.

1:09:13And then I think really just constantly being vocal about the demands of the law. The reality is, of course, that every day my staff and I have to weigh whether voicing dissent is worth getting fired by the president. It's a strange way to go to work. And it's obviously not about me. It's not about my employment. I think it's really about the vital work that the agency does and that our workers do. And, you know, I think the reality is that if I'm fired or when I'm fired, there won't be anybody left at the agency to point out, you know, when the EEOC is straying from its mission and when it's abandoning its responsibilities.

1:09:53And I worry all the time, right, about the public being left in the dark. I want to come back to the straying from the mission in a little bit, but brief detour. I don't want to go j 'accuse on you, but do you have any idea why you have not yet been removed? I mean, you know, it's a it's a great it's a great question. The White House, as you might imagine, hasn't really kept me in the loop on their thinking. But I think the bottom line is that you're not on the signal chats. I'm not. I'm not. I'm not on the signal chats. You know, I was the most junior of the Democratic commissioners. And so I think that's probably part of it.

1:10:29And then the other part is that if they removed all three of us, their path back to quorum, which is to say their path back to their ability to move this regulatory agenda and their litigation agenda would have gotten farther away. So I think those are probably the two reasons. I think, you know, the one thing I would say here is that when Congress confirms a third Republican commissioner, three is quorum at the EEOC. Right. I think it's likely I'll be fired. And then there won't be a Democrat left at the agency. Yeah. So we'll come back to how they are using the agency, because this isn't a case where they might want to just have the agency do nothing, which is an important part of, you know, the loss of independence.

1:11:09But, you know, you expressed concern about the agency missing its mission, right, ignoring its mission. So when the EOC is straying from the law, who's getting rolled here? Yeah, I mean, you know, I think Congress. There's no question just as a starting point, right? And I know that you all have talked about this, like the what's the role of independent agencies. You know, Congress has been was clear, right, that there was a value to to having agencies that had bipartisan representation, that there were some issues like civil rights, for example, or consumer protection that should be above partisan politics.

1:11:51And I think we've lost the thread there. I know I think the other folks who are getting enrolled, not surprisingly, are the American public. Right. Civil rights enforcement is better. when it has input from both parties, and that's been lost. So since the American public is also losing out here, I did want to focus on some of the reporting we've seen about goings on at the EEOC and how the loss of independence has led to the loss of civil rights protections. And so just to tick through some examples, the Department of Justice's Office of Legal Counsel issued what is, in my view, a bogus memo asserting that disparate impact liability is unconstitutional.

1:12:30It's also been reported that in September, the EEOC administratively closed all charges that solely implicate disparate impact pursuant to the president's executive order. So can you talk about what disparate impact is and why those changes matter for workers? Yeah, I mean, I think disparate impact is just a perfect example, right? It's a perfect encapsulation of what happens when a civil rights agency loses its independence. It's no longer enforcing worker protective laws that happen to be, in this case, disfavored by this administration. You know, when we think about disparate impact, right, this is the way that we can challenge, that civil rights agencies and advocates can challenge policies that look neutral on their face, like, for example, a strength test or perhaps the use of AI screening tools, right?

1:13:21That's the one I think we're going to be hearing a lot about. They look neutral on their face. But the reality is that they have an unfair discriminatory impact on certain groups. And that's what disparate impact allows us to challenge. It's not new, right? I mean, it goes back to 1971 in Griggs and then was codified in the statute in 1991. And it's interesting. It was enforced during the first Trump administration. Yes. There's a big$20 million settlement from the EEOC involving a physical abilities test at Walmart that was discriminating against women workers. So, you know, I think there's no question and we can talk more about the details of that OLC opinion memo, but there's no question that the loss of disparate impact means that we're losing this vital tool to root out the kind of discrimination that's, I think, often hardest for workers to see.

1:14:12Yes. Right. And that's part of why even if the charge is dismissed by the agency, just letting the worker, you know, still file suit is maybe not a great substitute because they might not be in a position to see the bigger picture, right, and be able to assemble the full case. That's exactly right. There's like, I think two things. One, these are often expensive cases, right, because they involve complex statistical analysis, because they might involve retaining expert witnesses. This was something that I did before I joined the commission. This was the kind of litigation that I did. But as you say, also, So the EEOC has much better information about this kind of discrimination than workers do.

1:14:55This is the kind of stuff that workers, it's the hardest thing for workers to be able to spot. Yeah. Okay. So since you mentioned it, the OLC memo alleging that disparate impact liability is unconstitutional. constitutional. So I guess I would be curious to hear you talk a little bit more about that, because in my view, the issuance of that memo is really a key example about how the loss of independence is directly tied to this weakening of civil rights. I think it's such a good point. You know, the part of the story that there are a bunch of pieces of the story here that I think worth bringing out.

1:15:33But the first thing that I would note is that DOJ's OLC issued that opinion at the request of the EEOC's chair. So, you know, it came from a request from this agency, this very agency that is supposed to be enforcing the law when it comes to disparate impact. You know, there are a lot of things about this memo that are bogus, but I think it really is at odds with the law. Honestly, you know, if you look as more, as recently as 2015, right, in inclusive communities, the Supreme Court is recognizing the power and the validity of disparate impact. That was obviously a Fair Housing Act case. I've had to read that opinion memo multiple times because it's, quite frankly, unintelligible, right?

1:16:19I mean, there's the ratcheting up of the standard for what it takes to prove disparate impact based on nothing that I can tell. And then there's this constitutional analysis. And after Congress specifically ratcheted down the standard in response to a Supreme Court decision. Perfect example about how Congress is getting rolled here. That's totally right. It's in the 1991 amendments to the Civil Rights Act. Congress did that to respond to 1980s decisions like Ward's Cove that it disagreed with. So, I mean, yes, perfect example of how Congress is getting rolled. perfect example of how this Department of Justice and this EEOC are fundamentally disregarding the law.

1:16:59You know, I think when you think about it, it feels I mean, you know, we can look at Project 2025, too. But to me, it really feels like the outcome of this memo was predetermined. Yeah. Since you mentioned Project 2025 and we are talking about the loss of independence resulting in the loss of civil rights, you know, one particular trend that has been observed is the erosion of LGBTQ rights in particular. So it's been publicly reported that the commission is not investigating worker complaints of harassment based on gender identity. The agency also rescinded its harassment guidance, which explained that discrimination based on sexual orientation and gender identity is unlawful.

1:17:37What does that backtracking do? Yeah, I mean, to me, it's it's quite I mean, it's devastating, right? It's shameful that the very agency that is supposed to be protecting the rights of these workers is abandoning them, in particular trans workers. A couple of things have happened that I think are worth talking about at the EEOC. Last year, the agency directed, the chair directed staff to dismiss seven cases that the EEOC had investigated and filed on behalf of trans and non-binary workers. You know, the kinds of harassment that these workers endured, it doesn't matter what your sexual orientation or gender identity, right?

1:18:20No one should have to endure this kind of harassment. You know, and I don't have to go into the details, obviously, but people being referred to as it, all kinds of unwanted touching and sexual advances. And imagine, right, like if you were those workers, they had their civil rights violated, they came to the agency that's supposed to protect their rights. And then they are literally re-victimized by having the agency abandon them in the process of their cases. I think it's obviously shocking, right? And it's really disheartening. You mentioned the harassment guidance, the rescission of that. That was literally done because it referenced protections from harassment for LGBTQ plus workers.

1:19:05A couple of other things that I think are worth noting. The agency has been reported is refusing to investigate or to develop for litigation charges that arise under gender identity, right, discrimination on the basis of gender identity. And so they're basically not being investigated and they're not being developed for litigation. You know, we don't have to we don't have to drill too deep into the Bostock opinion. Right. To see quite clearly that that LGBTQ plus workers are protected from discrimination under Title seven, including harassment. But the agency has left them and I think in particular trans workers to fend for themselves.

1:19:48I think one thing I would want to just make sure that folks hear is that even as the EEOC is backtracking, it's super important for employers not to do that. Not just because there are courts, but also because a future Democratic administration is going to come down on this and probably most significantly because it's just the right thing to do. Indeed. Speaking of right thing or wrong thing, last week, the EEOC held a commission meeting on a proposal to rescind demographic data collection. The EEOC has collected race and sex data from large employers for 60 years using the data to investigate race and sex discrimination.

1:20:30You argue that the proposal is, quote, an attempt to weaken equal employment opportunity and to undermine progress for women and historically marginalized communities. Why is that? Yeah, I mean, data tells data is just it's so important, right? It tells us so much. It paints the picture. And this is data that the agency has collected, as you said, since 1966. Right. It's it's data that our staff use to drill down further to look for trends, to understand. where problems might arise and to use the agency's incredibly scarce resources in the most efficient and effective ways. This is in Project 2025, this rescission.

1:21:11So, you know, not surprisingly, the commission is now proposing to rescind this data, despite how important a tool it is in our toolbox. I really see this as part of this larger attack from the administration on civil rights protections across the government. You know, this this notice of proposed rulemaking, it just came out publicly to rescind this data. It offers, you know, as you might imagine, a number of explanations for the rescission, including the DOJ OLC memo on disparate impact. None of them are no relationship. That's right. That's exactly right. None of them are particularly compelling.

1:21:51It's quite remarkable. It takes the position that collecting demographic data somehow forces employers to make hiring and other employment decisions on the basis of protected traits. So hard to understand what the connection is there. There's literally no foundation or evidence for this. Right. There's there's not one scrap, not one example of an employer somehow engaging in unlawful discrimination because they've collected and reported this demographic data for 60 years. They're also making these constitutional arguments under underlying grounded in equal protection clause that, again, don't have any basis untethered from Supreme Court precedent.

1:22:37You know, what this is going to mean in reality, right, is that a short staffed agency, tight resources to go get this data from employers for particular cases. Right. It's going to require more information requests, more subpoenas, you know, more battling in court with employers who aren't going to want to produce it so much for government efficiency. Right. Like this is this feels like the exact apotheosis of that. And I think really is going to just make it harder for the agency to enforce the law to protect workers. So the loss of data is going to hurt civil rights and harm workers. I guess just to make it concrete for people, is there an example of how this kind of data has been used to protect workers?

1:23:18Yeah, there are a bunch, as you might imagine. A point just to one, we just settled a case in May of this year, a$5.5 million settlement involving a big trucking company. It resolved allegations that for at least a decade, the trucking company had been hiring less qualified male applicants over more qualified female truck driver applicants. And if you look at the court filings in that case, it's quite clear that an analysis of that EEO-1 data is what contributed to the EEOC finding cause that discrimination had occurred, right, in bringing this lawsuit. I think the other thing that is just important to say here is that there's no question that the administration is recognizing the value of getting demographic data when it serves their interests, right?

1:24:08Last year, the chair of the EEOC demanded that 20 law firms produce a ton of demographic data to the agency, you know, in line with these investigations about their DEI practices. And, you know, just recently, the education department has announced that it's going to require universities to produce all kinds of demographic data to so-called, you know, test their compliance with SFFA. FFA. So there's no problem getting data in other circumstances. I want to say one more thing before I stop, which is that just because you stop collecting the data doesn't mean that the discrimination goes away. Exactly.

1:24:49Right. All that happens. Exactly. Is that we kneecap the agency, makes it harder to prove, makes it harder to enforce the law and leaves workers behind. Yeah. Since you mentioned, you know, the investigations into DEI, you know, as we were kind of alluding to up top, one possible explanation for why the administration doesn't want to deprive the EEOC of a quorum is that they would also perhaps like to weaponize the agency. So not just giving a free pass, you know, to some people to violate the law, but also maybe seeking dubious interpretations of the law, you know, against people in institutions they don't care for.

1:25:25And that has often meant taking this administration's culture war grievances and running them through the agency, particularly the attacks on DEI. So I guess before we just briefly talk about the weaponization concern, you know, what are some obviously legal DEI efforts? Yeah, I mean, there are a bunch, right? And this administration has come for them. I think the thing about DEI practices is that the devil is always going to be in the details and it's always going to be in the execution, right? Like it has to be done correctly. But there are a whole set of practices that, if carefully undertaken, are lawful, right?

1:26:02Like expanding and broadening applicant pools, right? That's an obvious one. What about recruiting at HBCUs or standardizing interview questions and hiring and promotion criteria to make sure that everybody is on the same page or using skills-based hiring, right, rather than relying on particular credentials? All of these are DEI practices. You know, so too is looking at demographic data, doing compensation analyses. All of these things help to decrease legal risk. And I think about them as really fostering. These are the things that actually foster a true meritocracy, right? These are the things that break down barriers to equal opportunity to ensure that every single worker, regardless of their background, has a chance to work, to contribute, to contribute to their families and their economy.

1:26:53So there's like a whole raft, I think, of DEI practices. and the risk of rolling them back, right, is that we erase gains in the workplace that have been made for women and people of color and people with disabilities and the list goes on. Yeah. So mentioned, you know, that one possible way of weaponizing the agency is basically doing these attacks on DEI. And the chair of the EEOC, Andrea Lucas, famously did a direct-to-camera video urging white men to submit complaints of DEI discrimination for money. Can you elaborate on how this kind of speaks to the stakes of the loss of independence and how the agency or commission can be weaponized?

1:27:32Yeah, I mean, I think it's quite clear that this agency is just increasingly an arm of the White House. I think that that's quite clear. Just to give you one example beyond the ones that you've mentioned about the chair's video, we have a new at the EOC, a new national enforcement plan, which enshrines these priorities, these priorities of the administration, including remedying what they describe as DEI related discrimination. It also includes defending the quote unquote binary reality of sex. You know, this is where the decision not to investigate disparate impact is enshrined. It also makes explicit that the EEOC is not an independent agency.

1:28:19So, right, these things are like clearly going hand in hand. I think it's worth really noting that under the guise or the language of prioritizing even handed enforcement, which is what this chair likes to talk about, The reality is that the agency is redirecting limited resources toward prosecuting this administration's grievances and protecting this administration's most favored groups. And I think we see that happening on a day to day basis. Well, obviously, there's a lot more to say. And actually, if you would like to hear more, you should check out YouTube where I'm going to have an additional expanded conversation with the commissioner.

1:28:57But for now, Commissioner Kotogal, thank you so much for taking the time to discuss what the loss of independence has meant at the EEOC. Thanks, Leah. I appreciate it. It's clear that the sole remaining Democratic appointee on the EEOC is also one of my favorite things. So add that to my list and that she should be one of all of our favorite things. Although the fact that there is only one remaining Democratic appointee, not so much. Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rowell and Michael Goldsmith. Jordan Thomas is our intern. Our team includes Matt DeGroat, Ben Hethcote, Johanna Case, Kenny Moffat, Eric Schutt, and our music is by Eddie Cooper.

1:29:36Our production staff is proudly unionized with the Writers Guild of America East.