The Conservative Push to Weaken Our Democracy

17:29Chris Geidner:Since you brought up the courts, I did want to remind our listeners of this moment from the oral argument in the tariffs case that seemed to preview the administration's views about their war powers and what Congress can or has done. You can hear it here. Justice Gorsuch will be asking the question. Can you give me a reason to accept it, though?

17:52Leah Litman:That's what I'm struggling and waiting for. What's the reason to accept the notion that Congress can hand off the power to declare war to the president. Well, we don't content that again. Well, you do. You say it's unreviewable. There's no manageable standard, nothing to be done.

18:06Chris Geidner:And since we are a Supreme Court podcast, I did want to note that the court isn't blameless in all of this, even though they don't often get these cases. Just to take one concrete example, there was what's called a legislative veto in the War Powers Act, the law that provides a framework for United States uses of force, including by the executive. When Congress enacted that law, it said Congress could pass a resolution to withdraw troops and strikes if they disagreed with the president's determination that there's an emergency warranted calling for the use of force. And the Supreme Court struck down the legislative veto in INS versus Chadha, handing more power over to the president and influencing the allocation of authority between Congress and the executive branch.

18:46Chris Geidner:And if you're interested in this aspect of the separation of powers, our friend Steve Fladek at One First has a great post on this at One First. And then Josh Hayfetz, a professor at Georgetown, has an article forthcoming the Chadha presidency that goes into this more. So I do want to return to how or why this is an escalation. And I think it is an escalation both with respect to the scope of the attacks and also the justifications plural for them. So on the scope, when Trump announced the attack on Iran, he described it as a quote, major combat operations in Iran, you know, not a small operation that wouldn't amount to full out war in the constitutional sense.

19:24Chris Geidner:And that feels like an expansion from past presidents' preemptive uses of force. Is that fair or somewhere in the specter of possible?

19:34Leah Litman:Yeah, I mean, there are so many examples of the president and this administration using whatever language feels right to this particular audience that is often entirely at odds with their legal theory to the extent they have one. So to the extent, you can imagine the extent there are lawyers in there who both believe in the president's agenda and law, you can imagine they're just sort of pulling their hair out every time he speaks. But, you know, just in the Western Hemisphere, you've got the president claiming Venezuela has invaded us for the purposes of invoking the alien enemies act. You've got him saying we're at war with drug cartels for the purpose of blowing up suspected drug traffickers at sea.

20:09Leah Litman:And then you've got him saying it's not hostilities so that he can get out of war powers reporting. And then when he actually does start a real war on the same basis, invading Venezuela, capturing its head of state, then the administration claims, well, no, that's not a war. so that he could do it all without going to Congress under the OLC not war theory.

20:28Chris Geidner:It's like Schrodinger's war. It's both war and not war, just depending on, yeah.

20:34Leah Litman:The context, right? Depending on what you're trying to do and whatever will get you the most power. So to your point here, yeah, you can't have major combat operations and say that's not a war, nothing to see here, Congress. This is exactly the kind of scenario Congress would or at least should want to play a role in determining, right? And in fact, getting dragged into Vietnam without sufficient information or sufficient ability to weigh in and the resulting carnage was exactly what prompted Congress to come together, work across party lines to pass the War Powers Resolution to try to reset the balance in the first place.

21:08Yeah.

21:09Chris Geidner:So I also want to talk about the justifications and how I think the purported justifications they've been throwing out are another escalation in addition to the escalation in scope. So Trump made noises about Iran being days away from building a nuclear bomb that could reach the United States and also that he was concerned about the quote freedom of the Iranian people. Now, the former claim on Iran's nuclear capabilities just seems to be false. And these are, of course, different justifications. It doesn't even seem like they bothered to settle on a rationale. They were saying different things to different outlets on the very same day.

21:44Chris Geidner:And on the specific justifications, you know, on the first, in addition to it just being a lie, they were claiming all of last year they had destroyed Iran's nuclear capabilities. You know, Saturday morning, they still had up on the White House website, a post that said, quote, Iran's nuclear facilities have been obliterated and suggestions otherwise are fake news, end quote. You know, another kind of mark against the unitary executive branch, it seems, or unitary executive theory. And on the second theory, it's unclear if successfully removing the supreme leader will bring into power a regime that wouldn't try to continue to develop nuclear weapons and murder protesters and repress the people.

22:23Chris Geidner:I mean, Reuters reported that a CIA analysis suggested more hired liners would ascend to power. So these are also part of why this struck me as an escalation, just like the transparent moving target of the justifications and how not tied or related to this combat operation they seem to be. Right.

22:44Leah Litman:And none of those are, of course, a legal justification. But I'll just add that this question of humanitarian intervention, right, to the extent that's somehow part of the mix, they're sort of nodding at that. This is this longstanding question of whether states can use force to stop significant human rights abuses, genocide, crimes against humanity. This is a live and extremely fraught question. You'll notice that it wasn't one of the exceptions I mentioned to the prohibition on using force. And states have been bandying about what to do about this for a long time. And as a legal matter, the thing to do about it is to go to the UN Security Council and get an UNSCR.

23:18Leah Litman:But of course, for important reasons that were built into the system, it's extremely difficult to do that. But I'll note that even under the most good faith of circumstances, even when states do come together multilaterally, get a UN Security Council resolution, have legal grounds to act, things can go and have gone wildly wrong. It's just not that easy for states to sweep in and make good government happen, even with the best of intentions. And as a policy matter, the most significant argument against crafting an exception for humanitarian intervention is that it can be used pretextually. So for example, Putin falsely accused Ukraine of genocide as part of its justification for its attempts at territorial expansion.

23:58Leah Litman:So there's no question, as I said, that this regime in Iran has been a monstrous one. But I also don't really see a pro-human rights agenda as a cornerstone of this administration. And I just don't believe that ensuring human rights is part of the plans that they have drawn up to the extent they have drawn up any plans or that it's going to be a component of any plans they have going forward. Yeah.

24:22Chris Geidner:So on this justification, moving justification that they are just throwing out, I mean, honestly, it seems to me they are like a half news cycle away from just saying we did it because the Dow, the Dow is at or below 50 ,000. I mean, this is just how ludicrous it all is because the president also truthed out that, quote, Iran tried to interfere in 2020-2024 elections to stop Trump and now faces renewed war with the United States. So maybe a third justification is election denialism, which just puts layers upon layers of illegality on it in addition to layers and layers of BS, because I can't even keep track of who supposedly interfered with our elections, Iran, China, Venezuela, the radical left.

25:05Chris Geidner:And we started out with policy and went to law. And I want to get back to the question I previewed at the beginning, which is the does this matter question? What's the point of discussing whether these strikes comply with international law, the constitution or federal statutes when it just seems like the administration and, you know, at least some other countries, just don't seem to care.

25:27Leah Litman:Yeah. I mean, this is really important. Jack Goldsmith had this piece over the weekend saying law doesn't matter, right? And now to the extent what he was saying was the debate over whether OLC could justify this under its ever-expanding legal theories is stale and not particularly useful. I don't disagree there. But to the extent he means that legal debates over war powers are empty, what's his own solution? His solution in that piece is for Congress to step up and do its job and constrain the president. Well, why is it Congress's job? Why do we even say that it's Congress's job, right? Why can Congress constrain the president?

26:01Leah Litman:It's Congress's job because of the law and because the constitution says so. And in the public law space, whether we're talking about international law or the constitution, there's no overarching decider. There's no cop that shows up at the door and hauls off the United States to jail or the president, right? Public law is enforced through the reactions of other states on the world stage. And domestically, it's enforced through the actions of other actors like Congress and the public, which is exactly what he's proposing to happen. So the question I think for all of us should be, you know, as a matter of international law, do we want to live in a world where there are neutral rules that govern, where states can rely on the promises that they make one another, where states don't accept the use of force as a tool for policy?

26:41Leah Litman:Or do we want to revert to that world where states could just use force where they please, resolve disputes or grab resources or territory? Do we feel safer in that world. Because, you know, like I said, it wasn't that long ago that states came together, you know, to ban the use of force as a tool of policy. The UN Charter is just 80 years old, give or take. These rules require careful tending and vigilance, lest it all fall down. And on the domestic side, without law, without insisting on a role for Congress and the courts, we've got the entire national security state, the intelligence community, DHS, the FBI, the standing military, unimaginable weaponry, wildly increasing surveillance power.

27:21Leah Litman:In the world of AI, God only knows, all of this funded by trillion dollar annual budgets from Congress, all of it in the hands of one man, one man. Does that make any of us feel safe? And so I'm more afraid right now of the lack of reactions by Congress, by other states. It's not the violations of the law themselves that are going to ultimately bring the system down. Any legal system is going to have to account for violations and be able to survive those violations. What's going to bring the system down is a failure to respond and for violations to become expected and commonplace. And so that, I'll just end here, but that is on all of us.

28:00Leah Litman:There should be no more, who cares? You know he's going to violate the law anyway, so what, right? That kind of nihilism is just self-fulfilling. If you want to have a system that is ruled by law and not by one man's whims, then you have to care when it is violated and you have to fight for it every single day.

28:17Chris Geidner:So since you brought up automated weapons, I do just want to kind of take stock about what has happened and what we have seen, because it kind of seems to me like the neocons kind of wanted another war because Venezuela wasn't enough for them. They like seeing the strikes on the TV, thought the Venezuela war was cool, so they did another. And this isn't exactly law, but I can't help but pause over just the grotesque specter of everything we have seen and will be seeing. We have a Fox & Friends former host and guest running a war from a private club for millionaires, a war that has already killed U.S.

28:51Chris Geidner:service members, many Iranians, and provoked Iranian retaliation in the region that has killed even more people. This is happening on the heels of a fight between the Secretary of Defense slash Secretary of War Crimes and Anthropic, an AI company, when Anthropic wouldn't give the federal government access to their automated war bots to use for strikes. And Uncle Drunky was so upset, he declared Anthropic a threat and interrupted their supply chain. And then OpenAI jumped into the fray. And the Wall Street Journal reported that the federal government was indeed using Claude in intelligence assessments.

29:22Chris Geidner:And this is all after we were assured that the Manosphere's opposition to Kamala Harris wasn't about misogyny or misogynoir, but just about how men didn't want to go off and fight reckless wars. And the Manosphere was obsessed with this idea that Kamala Harris would send us into wars and Trump wouldn't. That was part of many people's cover stories. I mean, J.D. Vance had an op-ed, you know, in 2023 that said Trump's best foreign policy, not starting any wars. And it was transparent bullshit and utter misogyny that got us here, like to an attack that includes an airstrike on a girls' school that reportedly killed 85 students.

29:54Chris Geidner:Like that misogyny helped bring to power a president who literally launched a military strike against a girls' school. And that is one of the images that at least to me will be most associated with these attacks. And the violence and depravity related to and resulting from the misogyny was just very hard for me to miss in the first 24 or so hours of this entire thing. Beck, you said you wanted to end it on it all being us, but I'll also give you any final thoughts or last words.

30:23Leah Litman:And yeah, while he's watching all of it in like a baseball cap from Mar-a-Lago, it is grotesque. I mean, you know, I'm just sitting here kind of devastated and fearful. I'm worried about the people of Iran. I'm hoping that they can take control of their country and live without fear of either totalitarian rule or bombs from above. I'm worried about the broader region. I'm worried about the state of the world going forward. And I'm thinking a lot about what we can do. You know, the rules-based order that we've been living under for, you know, just about a century was, or less than a century, was far from perfect.

31:00Leah Litman:Far from perfect. But I do want to live in a world that is governed by the rule of law and not by the whims of tyrants, or for that matter, by AI. And so, you know, we have to figure out together how to learn from and improve upon what we have done, right? I think it is nihilism to say everything that came before, that this is no different. That because states have violated the law before, this is no different than that. Because politicians have sometimes lied or politicians have sometimes stepped over the rules, that this is no different and it's all we can ever expect. I think we have to figure out what we can take from what we had, what was good, what we need to improve upon, and just figure out how to move forward together.

31:45Chris Geidner:Well, thank you, as always, Beck, for joining, especially on short notice. We greatly appreciate it, as I know our listeners do as well. Because the parallels to 1984 have to be heavy handed, the president truthed out, quote, the heavy and pinpoint bombing will continue uninterrupted throughout the week or as long as necessary to achieve our objective of peace. Yep, bombings will continue until there is peace. And now for our regularly recorded episode. Strict Scrutiny is brought to you by MOSH. We're about to head into bad decision season, which means I really need to be more intentional about the way I live, eat, and take care of my body.

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35:41Chris Geidner:Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court, and that's lowercase based on a complete lack of respect, as the president indicated in a truth social post complaining about the Supreme Court. Anyways, this is Strict Scrutiny, your podcast about the lowercase Supreme Court and the legal culture that surrounds it. I'm your host for today's episode, Leah Littman. For the first part of this episode, I'll be going through legal news with the wonderful Chris Geithner, who runs the indispensable outlet Law Dork that we often reference. We'll cover different developments in the incel frat boy administration, including allegations of sexual misconduct in the Epstein files.

36:15Chris Geidner:I'll also be talking to Chris about some of the journalism he's been doing that has brought to light different aspects of the administration's misdeeds. This episode is kind of going to be a love pod to independent journalism and an F you to the right wing prologarchies takeover of the media. But I digress. Chris and I are also going to talk bad decision season than goings on at the Supreme Court last week, including oral arguments and opinions. Then I'll be joined by Mark Elias, who will talk with me about how all three articles of government have trained their sights on democracy and upcoming elections.

36:47Chris Geidner:But first up, legal news. And as promised, I'm joined today by guest host Chris Geidner, who runs the incredible LawDork Substack. Welcome back to Strict Certainty, Chris.

36:56Rebecca Ingber:Hello, Leah.

36:58Chris Geidner:We were kind of talking before this got started about this wonderful world we are living in. So thank you for joining me to help me process this last week of that wild, wild world.

37:10Rebecca Ingber:Of course. Yeah, there is never a dull moment. And I was saying last night, Thursday night, that it was one of those days that it wasn't even the best laid plans that got held awry. It was literally any laid plans that got taken off the off the docket. Indeed.

37:32Chris Geidner:I could stand to live in boringer times, but such as it is, we have a lot to cover. So the first chunk of legal news we're going to talk about is basically how I think we are all being governed by some weirdos of the manosphere. And one example is the latest Epstein Files, a scandalo. So several outlets reported and then Representative Robert Garcia, ranking Democrat on House Oversight Committee, confirmed that the Department of Justice seems to have excised and declined to disclose material in the Epstein Files that included an interview with a witness, who alleged that Donald Trump sexually assaulted her when she was a minor.

38:04Chris Geidner:Reporting on those admitted documents initially came from independent journalist Roger Sollenberger. Again, independent media. We heart you. My pan to independent media comes on the heels of news that Paramount is apparently the winning bidder for Warner Brothers, the company that owns CNN. Paramount is also the entity that took over CBS and facilitated the bariwisification of that once great outlet. that Paramount is led by Larry Ellison and Larry Ellison's large adult son, some Uber Trumpers, who also now control TikTok. Basically, they're building a right-wing media empire that runs the risk of stifling great journalism.

38:40Chris Geidner:I'll get back to the Epstein example in a bit. But Chris, what's the role of independent media in this era of Manosphere media? And yes, I include Barry Weiss in that. The woman literally made a primetime show into a whiskey hour and has made an entire career out of telling powerful men what they want to hear and ensuring them that everyone else, not them, is the problem.

38:58Rebecca Ingber:Yeah, no, it is alarming and continues to snowball in terms of where the problems are and who they're affecting. And I think that independent media, there have been a lot of discussions this week, there will certainly be as this paramountification of the media landscape continues. And I think that the examples that we have seen from independent medias like Roger, who you mentioned, my work, Marissa Cabas, there are a good number at this point of journalists who are working independent of a large newsroom who can bring out a lot of important work. I do think and there was some discussion that I had on Thursday night online that that there are limits to that.

40:02Rebecca Ingber:And I think that we don't want to lose the fact that like it would be very bad if we don't have big newsrooms that can do big in-depth investigations that have deep pockets to protect their reporters, both abroad and like now in this era from lawsuits at home that are able to do deep dive investigations. I mean, I remember like, you know, me from back in the golden days of BuzzFeed. And I mean, we would literally we the investigations team would would be able to spend time and money on allowing a journalist like Chris Hamby, who was great, is great to like go off and spend six months working on one story.

40:54Rebecca Ingber:and obviously I couldn't do that if if I go more than two days without publishing I feel like my head's gonna explode because I'm not giving my my readers the latest news right and so like independent journalism can do a lot and like I mean I was at the Supreme Court this week I was in front of Judge Lamberth not in front of sitting in the gallery thankfully I wasn't in front of Judge Lamberth. But I like the day after the Supreme Court was done with its arguments, I was in front of Judge Lamberth watching him dress down a Justice Department lawyer. And like, there was no other journalist there.

41:38Rebecca Ingber:I was the only journalist in the courtroom before Judge Lamberth on Thursday. And like, that's because I know that my readers care about and are expecting me to care about what's going on with trans prisoners who might be a doubly unimportant character in some media outlets.

42:05Chris Geidner:Yeah. But back to this story that independent journalist Roger Sullenberger broke, you know, the excision of materials implicating the president from the Epstein files released to the public, you know, on its own, that would be bad. But there are other clues about this specific interview and witness that make this even worse. So the FBI I reportedly interviewed this person multiple times. So this wasn't something or someone just immediately dismissed as not credible and written off. And the accuser included a similar accusation in a lawsuit filed in 2019 against Epstein. So, Chris, you know, we have been treated to slash subjected to Epstein and Epstein files now for weeks and months as DOJ has blown the deadline.

42:44Chris Geidner:Why is this latest revelation a big deal?

42:48Rebecca Ingber:I mean, I think it's a big deal one because it is Trump. Right. This is this is actual direct Trump related information. It's not a oh, these are his friends, which, again, is its own damnation. But like this is an actual Trump accusation, which is similar and is particularly like a sexual assault allegation and not even sort of the allegations that have led to significant changes in the careers of people like Kathy Rumler. And like the allegations there were, I mean, with Kathy was more about like advising him. And with Brad Karp was essentially about being too close to him. And I think that what we're learning is that there is a lot of there there.

43:51Rebecca Ingber:And as it becomes more difficult for the people who have been saying there's nothing there to argue that, we're actually starting to see consequences. Because it is very clear that this was not something that Epstein was doing off by himself. It was part and parcel of what those around him knew was going on if they were not actually involved in. And as more evidence comes out, we're seeing that.

44:27Chris Geidner:Yeah, I can't wait for that Supreme Court shadow docket order that says no consequences, period. But yes, consequences, good thing. So the next bit of news is a step removed, but in my mind still related to the government by the Manosphere, of the Manosphere, and for the Manosphere vibe of this administration. And that's a video scene around the world of FBI Director Kash Patel for words that should never be strung together, living out his frat bro sports ball fantasy of partying with athletes, celebrating the U.S. men's hockey team's gold medal in the locker room with the team. And during the celebration, the protector of women's sports himself, Donald Trump, got on the phone with the men's hockey team via Kash Patel and invited the team to the State of the Union address and joked that he'd have to invite the women's team as well or he'd be impeached, as you can hear here.

45:16Leah Litman:We'll do the White House the next day. We'll just have some fun. We have medals for you guys. And we have to, I must tell you, we're going to have to bring the women's team. You do know that. I do believe I probably would be impeached, OK?

45:35Chris Geidner:Women's team declined the invitation and instead hung out with Stanley Tucci. Would recommend. Chris, what did you make of... Right, exactly, right? Like, would prefer. But what did you make of this, like, Kash Patel, Donald Trump phone call episode?

45:52Rebecca Ingber:I mean, it works poorly on so many levels that it's hard to know where to dig into. Like, I mean, this is the continuation just of the corruption of the administration, the self-dealing, the this is we're governing to get what we want. But then on top of that, you do have this like you have this like we're going to kill woke element of this.

46:19Chris Geidner:And by woke, they mean women and other people, too.

46:22Rebecca Ingber:But yeah, the responses of the women's team have been great. The responses from women outside of the team, from Abby Wambach, from Megan Rapinoe have been just fantastic. And then on like a final level, it is this like the desperation of the administration. Like, yes, some of these things. And this like fits in with my like broader, like, we don't realize how good we are doing element of this moment. Like they are desperate. Like they know they're losing. They know what they're doing is unpopular. And like they literally believed that like the in for them was becoming a part of the men's hockey team winning.

47:10Rebecca Ingber:and like unfortunately for the the men's hockey team they kind of went along with it and i think they they ruined so much goodwill um as everybody's been not even jokingly saying like coming off of heated rivalry like there was this like moment for hockey that i was literally at the michigan

47:33Chris Geidner:hockey team's game last night right like i've been going to hockey more regularly i read all of heated rivalry i watched the entire series and then they're just squandering it um like i i wasn't

47:46Rebecca Ingber:able to go to the capitals pride night because i had something else that night but like i was even aware i chris geidner was aware of it and would have been there if i didn't already have i mean admittedly tickets to theater but that aside right i outgaved pride night but um but but like i like two of my best friends were at the philly pride night like i mean like yeah this was like a a moment for expanding the universe of hockey in america and canada and like the the u.s men's team sort of played along with, like even if they weren't a part of, and clearly some of them are, but like even if they weren't a part of, they played along with it to be celebrated in this moment.

48:42Rebecca Ingber:And I get it. Like you won the gold medal and want the president of the United States to congratulate you. Like I get why like instinctually you think like that's fine. but like you know that don't do not accept the congratulations do not congratulate and do not accept yeah you know that he's going to use you yeah and he did and tried to and successfully somewhat use them at the state of the union even i mean sad but also caveat emptor at this point if you if you if you're going along with trump's shenanigans completely and because there are

49:22Chris Geidner:many fronts to the war on women. I wanted to draw attention to a moment from the Senate confirmation hearing last week for Trump's nominee for Surgeon General, wellness influencer slash Maha aficionado, Casey Means. Not a licensed doctor, never completed her residency, but you'll hear Senator Patty Murray speak first in this clip.

49:44Leah Litman:You called birth control pills, I'm going quote, a disrespect of life. And you said Americans, quote, use birth control pills like candy. You also claim, contrary to established science, that hormonal birth control has, quote, horrifying health risks for women. There are decades, decades of evidence showing that every one of these birth control methods is safe and effective. So I wanted to ask you, help me understand, should women trust the FDA, which approved all 18 methods of birth control after a very rigorous look at the evidence, or should they trust your statement that there are horrifying health risks to birth control, which contradicts that evidence?

50:27Leah Litman:Thank you, Senator Murray, for your question. I'm curious if you're aware of what the side effects of hormonal contraception are. I'm curious if you are with the FDA that went through all of these. I'm speaking about particular women that can be heard if there is not informed consent about their medical history, their lifestyle exposures, and their family history. I want those women, and I know you do too, to be able to have a thorough conversation with their doctor and know whether they are at higher risk for side effects when prescribed medication. Saying that is one thing, but saying on, you know, different shows that birth control pills are a disrespected life is very different.

51:08Leah Litman:I am passionate about women's and I think it is disrespectful to women. Saying that people use first controls like candy is very different than what you just said. We prescribe a huge amount of hormonal contraceptive, and I do not believe most of those conversations have informed consent because of the pressures that doctors are under because of our broken healthcare system. I want what's best for women, as do you.

51:34Chris Geidner:I mean, what is there even to say?

51:38Rebecca Ingber:Yeah. I mean, honestly, the best thing that I can say is to say nothing.

51:44Chris Geidner:Like, as the man on that.

51:49Rebecca Ingber:Like, literally, men need to be saying less this week. I mean, but obviously, it doesn't matter even if it's women. Right. But I mean, it's just it is it is part and parcel of what RFK Jr. is is doing to the public health system in America to mean like to research in America to and with that global research. I mean, like, in addition to sort of the like, I mean, I obviously still get all of my Ohio news alerts. And like, there's like, it wasn't even the it was truly one of those moments, even for me, and with how closely I'm paying attention to things that like, I saw second measles in like a news alert this morning.

52:41Rebecca Ingber:And I thought it was case. It was second measles outbreak in Ohio this year. And I'm like, oh, yeah, that's where we're at now. We're not even like counting by the case for news alerts. And now we're going to, we have a like birth control skeptic who is most likely going to be the Surgeon General. I mean, it's horrifying. It's another example of the Senate just abdicating its responsibility to the American people, to the structure of government, to James Madison's basic beliefs about what this Constitution he was setting up would do. But here we are.

53:29Chris Geidner:Yes, here we are. And where we are, we have a few more pieces of legal news before we step back and talk about how we ensure legal news is news and before we get to bad decision spring training season. And the first is more news out of Minnesota. So despite the drawdown of Operation Metro Surge, that is the administration's mass deployment of federal immigration officers, people on the ground in Minnesota and independent media and journalists and local media still continue to report a lot of contacts with ICE. And despite the alleged tone shift, the administration still seems intent on causing as much harm as possible to and terrorizing the people of Minnesota as much as they can.

54:05Chris Geidner:The latest in this attack comes from the lips of J.D. Vance.

54:08Leah Litman:So we're announcing today that we have decided to temporarily halt certain amounts of Medicaid funding that are going to the state of Minnesota in order to ensure that the state of Minnesota takes its obligations seriously to be good stewards of the American people's tax money.

54:29Chris Geidner:Chris, because JD went to Yale, can you law explain to him why this withholding almost a quarter of a billion of dollars in Medicaid funding from the state is wildly illegal?

54:41Rebecca Ingber:I mean, it's so illegal. Like they go through no process. They go through like this is one of the most clear, well-regulated systems for funding outside of Social Security that we have. And they just like declare at a news conference with Dr. Oz standing behind him that this is going to end. Like we don't even get to like I'm not even getting to the impoundment of it all. And outside of that, it's so unpopular. You are making lives more difficult overnight for not just for the poor people that you don't care about. Right. But for the other people who go to those hospitals who are going to be impacted.

55:41Rebecca Ingber:To the nurses and doctors and even hospital administrators who you love. Right.

55:48Chris Geidner:like if you didn't love our immigration enforcement wait until you see our defunding

55:52Rebecca Ingber:of hospitals and medical care right like it's like it's just it it's another example of this like lashing out i mean honestly whenever jd vance is in charge of something it is something that they've like part of me is thinking at this point like early on i was thinking that they were putting him out for the unpopular things at this point i actually think that he's just so stupid that these are things he's in charge of and he keeps just choosing bad directions to go with them because like it's just so often like how could you decide that this would be the way to go forward with this attack on Minnesota.

56:41Rebecca Ingber:It's not going to work. It's going to like anything as soon as litigation is there, if they actually even go through with it. Like that's the other thing. Like how much of this is like a press conference that it turns out you can't even do it.

56:59Chris Geidner:Right, they really want to feel like big boys and threaten people.

57:03Rebecca Ingber:Yeah. Like, to the extent they actually try to implement it, like, there's going to be litigation. It's going to be stayed. They're going to be held up in court.

57:15Chris Geidner:Yeah. Yeah. OK, so withdrawing Medicaid funds. Wildly illegal. Statute says certain processes have to be followed. They didn't follow those, right? Statute doesn't authorize the president just to rescind funds or freeze them whenever he wants. A separate federal law prohibits him from doing so, the Impoundment Control Act. And then there's a whole 10th Amendment. You're not allowed to coerce states, right, by threatening all their federal funds to do something unrelated anyways. But I think they are partially emboldened, at least to threaten this, because the Supreme Court blocked lower court decisions that had halted their efforts to freeze other funds, you know, through the Department of Education, the National Institutes of Health, and elsewhere.

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1:01:28Chris Geidner:There are some other pieces of news I wanted to acknowledge. There are also, in my view, cases where the court's hands aren't entirely clean. And the first is the absolutely horrific death of Nurul Amin Shah Alam, a nearly blind refugee who fled ethnic persecution. in Myanmar, and Customs and Border Patrol dropped this man who didn't speak English, couldn't operate a phone, couldn't communicate, and was blind in one eye and could see only three feet in front of him out of the other at a closed coffee shop five miles from his home on a cold, wintry night. And he was found dead several days later.

1:02:05Chris Geidner:The mayor of Buffalo, where this man, a father, lived, blamed federal immigration officers for his death. Agree. But I also don't want people to forget who let the administration continue to deploy its crazy, excessive and aggressive roving patrols of immigration officers stopping people based on their apparent race and ethnicity, even if they are refugees who aren't to be removed. And that, of course, is the Supreme Court. And I just wonder if Brett Kavanaugh would call this a brief encounter where a man was promptly released.

1:02:37Rebecca Ingber:Yeah, it's it's horrific. And I do think like I've been doing a lot of work on the refugee specific aspect of this and some of the really aggressive ways that they're looking at trying to essentially buy into like, it's literally a like, let's back into Donald Trump doesn't trust Biden says he doesn't trust Biden's vetting of refugees. And so let's back into a policy to like essentially starting the literal policy is starting January 20th, 2021. Any refugees have to be revetted and like trying to say that they can detain those refugees while they're being revetted. That's being litigated in Minnesota because that's where they first tried to implement that.

1:03:31Rebecca Ingber:But this is sort of a combination of the Kavanaugh stop of it all with this like, not just disregard, but like disrespect for the purpose of refugees. Refugee, yes. And it's just, it's lawless and offensive.

1:03:53Chris Geidner:The second Supreme Court related piece of news is that as we are waiting for the court to issue its decision about the validity of laws banning transgender athletes from participating in sports, Kansas adopted one of the most evil anti-trans laws in the country. This one purports to invalidate driver's licenses and birth certificates of transgender Kansans who changed the gender markers on those documents. Although a letter went out suggesting maybe it's not validating those documents immediately, but it literally prohibits driving while trans. The law also bars trans people from using restrooms that align with their gender identity.

1:04:26Chris Geidner:But I personally can't wait for the court to tell us that there's no history of discrimination against trans people, and therefore no reason for courts to look closely at those laws. But now, shifting to the topic of legal news generally, I mean, the pieces of legal news we just touched on, Chris, really relate to some issues you've been on the forefront of kind of diving deeper in. And so I wanted to talk with you about journalism in this era and the stories that do or don't come to light and how. So at LawDork, you know, you've been breaking some news that it really hasn't been covered or has been overlooked elsewhere.

1:05:02Chris Geidner:And one thing you alluded to is the case involving medical care for transgender inmates. So can you share like what LawDork was able to report and find and uncover there and where that case stands?

1:05:14Rebecca Ingber:The January 20th executive order that Trump issued on day one that was known generally as the definition of sex executive order also contained provisions directing the Bureau of Prisons to essentially act on that. And so really starting, I believe the first lawsuits were actually filed in January, challenging and attempting to stop Bureau of Prisons efforts to transfer trans inmates, to discontinue medical care for trans inmates, to discontinue being able to get items from the commissary that would be infitting with their gender. And they had those cases going forward and they all got assigned to and consolidated before Judge Royce Lamberth, who is a Reagan appointee, has been on the bench for nearly 40 years.

1:06:18Rebecca Ingber:But as as I'm sure many strict scrutiny people know, is also a guy who is very comfortable aggressively looking at the government and the government's actions. And he has blocked a lot of that. And one of those cases that sort of taken the lead is a class action case. and there is one person who has regularly been a witness in submitting declarations for that, Grace Pinson, and had been presenting evidence that she was being retaliated against. And on February 19th at a hearing, DOJ's lawyer there basically had no information responding to that retaliation. Lamberth was a little upset and was like, when the DOJ lawyer said there's no evidence of it, he said, there actually is.

1:07:17Rebecca Ingber:There's a declaration. It's uncontroverted by you. You've not even looked into it. And so he issued a protective order saying, no more retaliation against witnesses in this litigation. Literally starting the next day, Grace Pinson in a prison in North Carolina started getting further retaliation. She had a visual strip search that was very invasive in front of mail guards. She had her legal papers taken and thrown into another cell that had feces on it. She reported in her declaration that some of her legal papers she had to throw away at that point. she was supposed to be moved and that was held off.

1:08:09Rebecca Ingber:And then the lieutenant at the facility literally told her, I don't give a fuck what the judge says. I do what I want. And Royce Lambert was not into that. The lawyers immediately went to court, filed a motion for a show cause order for civil contempt to in violation of that February 19th order. Lamberth came back within like 12 hours, set a hearing on Thursday morning for 2.30 p.m. Thursday, in-person hearing. And I went to that hearing and DOJ still didn't have facts. Lamberth was not happy. He basically said, you still don't have facts. You can say what you want, but I'm looking for facts. That argument time went so badly for DOJ that when the ACLU of DC lawyer got back up, he made an oral motion on the spot for a TRO to protect the inmate, to protect Pinson, including, I mean, he did go aggressively far and said to immediately move her to a halfway house, which is where she's supposed to be moved but then in the alternative for them to make a detailed plan for how they are going to be protecting her against retaliation and he then went back to chambers he granted the show cause order he asked for the name of the warden um which doj initially didn't know which offended him further like he was like this particular prison has been at issue it's the issue of the show cause motion um and you still don't know the name of the the warden and he so he came back with an order uh order for to show cause ordering doj naming all of the people including naming the warden, that they need to respond by Tuesday, and then partially granting the TRO, saying they need to have a detailed plan to protect Pinson and her former roommate, and then is going to have the show cause hearing next Wednesday.

1:10:35Chris Geidner:And we will await that. So that was a great breakdown of where things stand on that case, which again has really flown under the radar. And, you know, the other case that I had wanted to highlight, you know, your involvement in is the litigation concerning the administration's new policy about detaining refugees that we had talked about previously on the show and that you alluded to earlier. And in that case, you know, you at LawDark were actually able to break and share, you know, the new policy, you know, before other outlets were. And you actually kind of became involved in the litigation by like filing requests for the information, if I'm not mistaken.

1:11:14Rebecca Ingber:We tried. We filed a motion to intervene in the case for the purpose. Habeas cases, immigration, habeas immigration cases by default under federal rules are not on the public. Filings aren't on the public docket. And you have to like literally get them from the courthouse and only judges' orders are on the public docket. We filed a motion to get those opened. The magistrate judge denied our request because he said you can get them from the courthouse, which is ridiculous. And like you saw judges in all the Alien Enemies Act cases once the Supreme Court required them to go to habeas, almost all of the judges in those cases converted those to being open because the federal rule that says that they're by default not public filings does say unless the judge orders otherwise.

1:12:09Rebecca Ingber:So we tried to do that. But in the course of doing that, I became involved in the case. And so lawyers are aware of my interest in the case and I'm able to get the documents more quickly. And yeah, no, I reported that overnight. And it is a very aggressive, it's a reading that has not been the reading since the Refugee Act of 1980 became law, that basically, when you become a refugee, eventually you adjust your status to lawful permanent resident. And essentially what the new policy is, is that if you've been here for more than a year and don't adjust immediately on day 366, they can detain you.

1:13:02Yeah.

1:13:02Chris Geidner:And you can't immediately have your status adjusted like the next day. So it's basically requiring detention, you know, for that that period, which is part of what makes it so, so horrific. Like you get a year and then you're indefinitely detained.

1:13:16Rebecca Ingber:They claim that they're not allowed to indefinitely detain people. And yet they also make clear that it can be more than 48 hours. And so it's a bad argument. It's under consideration at the district court. And I'll be following it as it moves forward. I do think like one of the since this is Independent Media Day, one of the like really great things that independent media can do and does do successfully is draw attention to cases that other people aren't paying attention to. And like honestly, like literally sometimes once it becomes a thing that other people are paying attention to, I can move on and I can start to pay attention to other cases.

1:14:08Rebecca Ingber:But like, and so this was a case like all of a sudden I was writing about it. The Washington Post was stealing my work. CBS News was stealing my work. They might have something in common. I don't know what it is. Um, but then all of a sudden at the hearing, I noticed that there were like nine other publications on the hearing. And so like that is a real, it is a true advantage, even if it is like, like, just like self interested media, like the independent media can lead other forces to other media to start covering it.

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1:17:22Leah Litman:Thank you.

1:17:40Chris Geidner:So now let's shift to talking about bad decisions spring training season. So the Supreme Court heard oral arguments last week, not in any big ticket cases, but still going to bring you up to speed on what they did here. And then we'll talk about their decisions. So last Monday at the court was Cuba Day. And if you, like Melissa, are in your John Slattery season, you could watch Dirty Dancing, Havana Nights, to get with the program, which lacks the abortion backstory of the original, but does feature a young Diego Luna in addition to John Slattery. Anyways, on Cuba Day, the court heard two cases, Havana Docks versus Royal Caribbean Cruises, about the meaning of the Libertad Act, and specifically, which United States nationals are authorized to sue for claims that their property was confiscated by the Cuban regime.

1:18:23Chris Geidner:Can anyone sue a defendant who trafficked in property, or does a plaintiff have to show that they'd still hold the property but for the expropriation? In which case, that might bar claims like the one here where the plaintiff had a leasehold to a property that has since expired. That same day, the court also heard ExxonMobil versus Corporación Cimex about whether the Helms-Burton Act abrogates foreign sovereign immunity of Cuban instrumentalities, or whether the plaintiffs seeking to sue instead have to satisfy an exception under the Foreign Sovereign Immunities Act. The president, for his part, participated in Cuba Week by, at the end of the week, floating the possibility of...

1:19:00Rebecca Ingber:Maybe we'll have a friendly takeover of Cuba. We could very well end up having a friendly takeover of Cuba.

1:19:09Chris Geidner:Back to this Supreme Court case, which generated this week's Clip Without Context, something I just started during the terrorist episode, which you can hear here. I don't buy that one. Now, last week, the court also heard Enbridge v. Nessel, which is about the 30-day deadline to remove a case from state court to federal court. If a case is filed in state court but could have been filed in federal court, in many instances, the defendant has the opportunity to take that case from state to federal court, but they're supposed to do so in 30 days. This case is about whether the case can still be removed after the 30 days are up.

1:19:41Chris Geidner:There's one moment where it seemed like the justices were a bit bored with this case.

1:19:46Rebecca Ingber:All we're asking you to do is to declare that the presumption applies, that it hasn't been rebutted by the clearest command, and to reverse. I mean, it could be an opinion that's 160 pages less than the tariffs opinion last week.

1:19:57Leah Litman:Well, if, well.

1:20:03Leah Litman:That's certainly a goal to aim for. I felt very left out in the tariffs. Justice Sotomayor didn't write, and I didn't write opinions. But if maybe we'll have a chance.

1:20:19Chris Geidner:Chris, how scared should America be that Sam Alito had his feelings hurt?

1:20:25Rebecca Ingber:Yeah, I don't think we need to worry about it. I think it was weird to have such a technical case. It was the only case that day. And I think that just they were sort of like they knew they weren't going to go long with this argument. It's not like this was going to be a two and a half hour argument. And so like, yeah, like even even even Sam Alito can make a joke. Had a little fun. Like that. That was what I thought. I was like, wow, this is the day that even Sam Alito is making a joke.

1:21:00Chris Geidner:I don't know if this is like the groundhog being afraid of his shadow or what exactly this is a sign of. But yes, you're right. A rare example. So staying on theme week, you know, this last week was also apparently Michigan week. The court heard Pung versus Isabel County, Michigan, about how to calculate the value of something, here a piece of property taken by the government to satisfy an alleged tax debt. So the former homeowner alleges the house taken to offset the debt was sold for way below market value and therefore constitutes a taking of property. The homeowner says the issue is the difference between the sale value and fair market value.

1:21:37The Solicitor General's Office, the federal government, arguing on behalf of neither party, said courts should consider the fairness of the sale process, not like the difference in prices.

1:21:47Chris Geidner:And Michigan is arguing the sale value is the value is the value. I read the justices as pretty skeptical of the homeowner's position, in part because foreclosure sales often go for less than fair market value. On the other hand, the justices, or at least some of them, did feel like something was unfair or wrong here, as you can hear here. I want to echo what Justice Gorsuch said. I mean, it seems like there was some real unfairness to your client. I mean, frankly, reading the briefs, it sounds to me like this tax assessor was like Inspector Javert. But it was even worse because Jean Valjean hadn't stolen the bread.

1:22:17Chris Geidner:I mean, you didn't even owe the tax. One notable moment was the following clip.

1:22:23Leah Litman:Well, in this case, with a tax debt of about$2 ,200, it could have been the Peloton bike that was in the house. You think a Peloton bike today is worth$2 ,000? Well, if you go on Facebook Marketplace and you try to sell a Peloton bike today for$2 ,000, I don't think you're going to be very successful.

1:22:43Chris Geidner:This raised a really important question, Chris. Is Justice Alito on Peloton? And if so, what would his handle or username be?

1:22:51Rebecca Ingber:It was this weird moment because it was awareness both of Peloton and Facebook Marketplace. Facebook. Like there was this discussion.

1:23:02Chris Geidner:Although Facebook Marketplace makes more sense. Don't you think like Martha Ann and Sam are the kind of old on Facebook?

1:23:07Rebecca Ingber:Martha Ann and Jimmy, like that's where she gets her flag making material.

1:23:11Chris Geidner:Right, exactly. Yeah. Listeners, we invite your ideas for his Peloton handle. I'll just throw out a few. Pelotonito. I don't know. if you wanted that one, or they're going fast, like Vergonia, but they're going fast. Yeah. But again, we welcome suggestions. So now we got some opinions last week from the court. Here too, none of the high profile cases, but cases that still could be quite consequential. And so one opinion was in Haines Celestial Group versus Palmquist. And there the Supreme Court unanimously held that if a party is mistakenly dismissed from a case, the party's dismissal can't cure the court's lack of jurisdiction.

1:23:53Chris Geidner:Basically, federal courts have jurisdiction, power to hear cases, where there's diversity between the parties. The plaintiffs are citizens of one state, and the defendants are citizens of others. But in order to hear the case, there has to be what's called complete diversity, i.e. no defendant can be from the same state as a plaintiff. Here, one defendant was, but the district court dismissed that plaintiff from the suit, albeit improperly. And the Supreme Court said that doesn't cure or fix the jurisdictional problem, and therefore the case still has to be dismissed. We also got the opinion in GEO Group versus Menacol, a case I know you've written about, Chris.

1:24:28Chris Geidner:So do you want to tell us what the court decided here?

1:24:30Rebecca Ingber:Yeah, I mean, this was a case that's been going on since 2014, and which in and of itself is sort of the issue, alleging essentially forced labor at the GeoGroup's facility in Colorado. And the lawsuit had been going on when there was originally a class-certified GeoGroup appealed to the Tenth Circuit. They lost. They went back. And then there was this argument that came out of a case from the 40s that they were claiming that they had derivative immunity. And that because of the fact that they were a government contractor, that they have derivative sovereign immunity. And because of that, when they were found to have acted outside of their authority, and thus illegally and not getting the immunity, that they should be able to appeal it right away as well.

1:25:46Rebecca Ingber:And that is the limited area where the government, where anybody can appeal in the middle of a case and the interlocutory appeal. And the case got to the Supreme Court, the 10th Circuit said, no, you can't do that. This is a defense, not an immunity. and then it went to the Supreme Court and Justice Kagan had the opinion for the court and she said the same thing and she said look at this this is the an immunity is saying it doesn't matter if I did it I I don't need to answer for it whereas a defense is saying I'm excused from doing this And she said that the difference between that does matter for these purposes of if you can appeal in the middle of a case because a defense, you should have to, you can go through court and just go through the full case.

1:26:55Rebecca Ingber:And because of that, the people on GeoGroup's side were not just the private prisons. It was also the Chamber of Commerce who was saying, no, no, no, all government contractors should be able to invoke that. And essentially what it was was an argument for private contractors to be able to act like the government and avoid accountability, drag out litigation. And the Supreme Court, luckily, 9-0 said, no, that's not the case.

1:27:30Chris Geidner:So two other decisions from the Supreme Court last week. One was in Villarreal versus Texas, where the Supreme Court held that a trial court's directive that an attorney over an overnight recess not discuss the defendant's testimony with the defendant, which was, again, going to span the recess, did not violate the Sixth Amendment guarantee of effective assistance of counsel. The Supreme Court made clear that the defendant wasn't prohibited from talking to his lawyer or conferring on topics, including sentencing. Justice Alito and Thomas wrote concurrences, cosplaying as an originalist. Alito noted that at the founding, defendants weren't even allowed to testify because they weren't viewed as competent, so NBD.

1:28:07Chris Geidner:And Thomas, joined by Gorsuch, wrote separately because they didn't like all the guidance that Justice Jackson's opinion for the court supplied. And then the other case is maybe another potential sleeper, and that's Postal Service versus Conan. And here, the Supreme Court held that the United States retains its sovereign immunity, immunity of the kind Chris was explaining just now, but it retains its sovereign immunity for claims that arise out of the intentional non-delivery of mail under the Federal Tort Claims Act, the law that allows you to sue the United States sometimes. So the FTCA waives the United States immunity for loss of claims, but not for claims arising out of the loss, miscarriage or negligent transmission of letters or postal matters.

1:28:48Chris Geidner:And the Supreme Court said miscarriage and loss can include intentional non-delivery. And therefore, you can't sue over that. This opinion was five to four. Justice Sotomayor wrote the dissent for the three Democratic appointees plus Neil Gorsuch. Chris, I thought this was kind of a scary ruling to come down before the midterm elections. Like, what if Trump's Postal Service just doesn't deliver ballots? How real is that? Or is that even a concern?

1:29:13Rebecca Ingber:Mark Joseph Stern, a friend of both of ours, wrote a good piece at Slate about this. His point is that this takes away a tool that discouraged bad acts. And I think that that's right. I also think, though, that litigation about the non-delivery of mail and non-pickup of mail is never going to fix anything that's going wrong. And so I think it is more, it's more, I think, a sign of like the unfortunate, like people were confused about why Gorsuch was dissenting. I think this fits because you and I both know that Sotomayor and Gorsuch have come together a lot on moments, sometimes when it's just the two of them, in opposing overreaching of government powers.

1:30:14Rebecca Ingber:And so this, I think, was it was actually, I think, great to see Kagan with the three of the other three of them in saying like, no, no, no, we don't want to expand sovereign immunity.

1:30:29Chris Geidner:Yeah, that was great. Well, so on that note about elections, stay tuned for my conversation with Mark Elias about how the manosphere is trying to mansplain its way into autocracy. And listeners, stay tuned until the end of the episode to hear Chris and my favorite things. For this segment, I'm delighted to be joined by Mark Elias, chair of the Elias Law Group and founder of Democracy Docket, an independent media outlet in an era where we really need independent media. Welcome to the show, Mark.

1:30:57Leah Litman:Thanks for having me.

1:30:58Chris Geidner:So today we are going to be talking about how Articles 1, 2, and 3 have their sights set on our democracy. We can go quickly over Article 1, Congress, because it's Congress, isn't doing that much besides rolling over. But they are considering the SAVE Act. The House passed it and the Senate is considering it. Mark, briefly, what is the SAVE Act and what would it do for elections?

1:31:20Leah Litman:OK, so the SAVE Act is actually confusingly several different laws. So we're actually the one that everyone is talking most about now is the Save America Act. Donald Trump insisted that America be added to the second iteration because he thought save alone was not sufficient. So it's like save a. Correct. So the Save America Act would basically do four things. Number one, it would impose a very strict photo ID requirement for on every state. So it would tell them both what photo IDs they must use, but also what photo IDs they can't use. So, for example, the bill specifically bans any educational institution IDs from being used.

1:32:01Leah Litman:So even if you have the University of Michigan or the University of North Carolina or, you know, pick your state university where the IDs are issued by the state itself, those could not be used, period. So that's the first part of the bill. The second part of the bill is what they refer to as the proof of citizenship requirement. This requires people to prove that they are citizens in order to register to vote. That may sound like a simple thing. It's actually quite a complex thing to prove citizenship. Essentially, there are only two documents that prove citizenship in the United States. One is a U.S.

1:32:34Leah Litman:passport, a valid U.S. passport, or current, non-expired. And then the other is an original birth certificate or a birth certificate that has been obtained, a certified copy that has been obtained by the state. That is also much harder to get than many people think because many people don't have their original birth certificates. And ordering them and getting them in a raised seal version from a state is not simple. Also, I would remind the audience that if anyone thinks Donald Trump is just going to accept any old state's birth certificates as the state of Hawaii, which issued a birth certificate to Barack Obama.

1:33:10Leah Litman:And of course, Donald Trump came to political.

1:33:11Chris Geidner:Or the state of Minnesota, which he's just attacking left and right. I mean, you know.

1:33:16Leah Litman:Correct. Right. And so the whole birther conspiracy was him denying the validity of birth certificates. Plus, as you know, Donald Trump is right now in the Supreme Court trying to say that birth certificates actually don't prove citizenship in the birthright citizenship case. So that's the second part of the law. That would also disenfranchise tens of millions of women who have changed their last name when they got married because their birth certificates wouldn't match the name on their photo ID.

1:33:41Chris Geidner:Part of the war on women, many different fronts. Correct.

1:33:45Leah Litman:The third provision of this would require the purging, the regular purging of names off the voter rolls using a what has been described by pretty much everyone is a flawed database at the federal government level. and that would be, you know, yet another set of challenges that voters would face because, of course, if they're removed by a flawed database in Washington, D.C., good luck to you getting added back onto the voter rolls. Yep. That is, of course, the SAVE Act as Congress is considering it, but Donald Trump actually put a slightly different gloss on it in the State of the Union. And Lee, I think that's important because this was in his prepared text.

1:34:27Leah Litman:So this is not like Donald Trump just kind of like riffing off the top of his head. This is what the White House thought that was in the SAVE Act. They added a couple of things. Number one, proof of citizen to actually vote, which would mean you need that paperwork not just to register, but to actually show up each and every time you voted. And then the last thing, which, you know, didn't get a lot of attention, but Donald Trump in the State of the Union also said that the SAVE Act would ban mail-in voting, except for a very narrow class of people who either have disabilities or are sick or in the military.

1:34:57Chris Geidner:Yeah. Unclear if Congress would just roll over and allow the president to declare what's in laws they enacted. But I guess we might be about to find out.

1:35:06Leah Litman:It's not actually in the text. This is the thing that's got to be very confused. It's like textualists are going to love this, Mark.

1:35:12Chris Geidner:They're going to love this. It's a challenge.

1:35:16Leah Litman:Mike Johnson will be like, oh, no, it's there. It's just an invisible ink.

1:35:20Chris Geidner:Exactly. Exactly. Well, now that we've already kind of gone on to Article 2, which is bleeding into Article 1, let's talk more about what Article 2 is doing. So the Department of Justice filed something like 28 anti-voting lawsuits in the first year of the second Trump administration. Many of these are fringe, unhinged bunk you might have expected from Stephen Miller's organization, America First, but now it's coming from DOJ. Can you give us an example or examples of that and what it means for DOJ to now be the one filing these?

1:35:51Leah Litman:Yeah, so you're exactly right. Actually, the Department of Justice has now filed 33 lawsuits. Yeah, the Department of Justice literally added five more in the middle of the night, like literally late last week. They decided to sue five more states, including four Republican states, four Republican controlled states for access to their voter files. So you're right. Like these are both high volume and also meritless. So it's the perfect Trumpian combination of do a lot of things at once, all of which violate the Constitution. Right.

1:36:31Chris Geidner:Yeah.

1:36:33Leah Litman:So, look, the biggest class of these cases are efforts to obtain access to sensitive voter data held by the states. So every state maintains a list of every person who's ever registered in the state, every person who's ever voted in the state. And it's quite detailed information. Like it would say, for example, like where you first registered to vote, whether you moved, whether you voted in an election or skipped the election, whether you register as a Democrat or Republican. It has obviously your address, your name, your Social Security number, your date of birth. So like the opportunities for identity theft abound.

1:37:14Leah Litman:But then it has, you know, like I said, it has partisan information about whether you're a Democrat or Republican. It has information whether you're active Democrat or an active Republican or not. Like, for example, do you vote in every primary or just some of them? Do you skip midterms or not? Right. A critical piece of information that if you were trying to target voter suppression, knowing who's likely a Democrat who votes in midterms versus a Democrat who doesn't vote in midterms. Super important information. It includes whether you voted in mail or by person, whether you voted early or on election day, whether you voted at a precinct or a vote center.

1:37:44Leah Litman:Right. Whether you've ever had your ballot challenged, whether you ever cast a provisional ballot, whether that ballot counted or not. Right. There's like a lot of different permutations to this data, whether you use your social security number or your driver's license to choose when you as an identifier when you register it. It's a wealth of information and it is the foundation of what states need to ensure that lawful voters can vote and no one else can. And it is also the foundation of what if you wanted to run a massive voter suppression program or a disenfranchisement program or contest the outcome of an election, it is exactly the kind of data that you would need.

1:38:22Leah Litman:So that is that is the bulk of the cases they have filed. Now, they have also, strangely enough, gotten involved in a couple of redistricting cases. I know this will shock you. I know this will shock you. but they're big, big fans of the Texas map, not big fans of the California map. They seem to block the California map.

1:38:43Chris Geidner:Yeah. Yeah. No, completely shocking. We'll get to the developments in the Supreme Court and the courts and what they are doing by way of the midterms in a bit, but just a little bit more on Article 2, Mark, if you don't mind. We've talked a little bit about how the FBI seized election materials from Fulton County on this podcast. I think a lot of people are worried about this world where DOJ, FBI, DHS, and ICE are basically acting as extensions of the Trump campaign during the election. So can you talk a little bit more about what that might look like or if people are concerned what they should be doing?

1:39:19Leah Litman:Yeah, people should be very concerned. You know, this is very reminiscent for me, frankly, from 2020, because in 2020, you know, around March of 2020, I started warning about the problems that we were going to have with people voting absentee in large numbers with the really at the beginning of the pandemic. And by the summer, I was pointing out that Donald Trump was saying things about the elections that were not normal for a president to say. And then, of course, in the postal, you know, and a lot of people discounted that. They thought it was alarmist. They thought that we were like exaggerating it in that.

1:39:50Leah Litman:But you can remember all the commentators who said, you know, Of course, it's a peaceful transition of power.

1:39:55Chris Geidner:Exactly. Oh, I remember. I remember my friend.

1:39:58Leah Litman:It is a little time to process. Exactly.

1:40:00Chris Geidner:He's just working it out. He's using this as therapy, election denialism.

1:40:04Leah Litman:Right, exactly. And I feel like in some respects we're living in that same progression now, right, which is that he has gone through the, which is now a permanent feature of his politics, which is the let's lie about elections. Let's lie about the outcome. Let's lie about what's going on. And he has now moved into the what I'll call the litigation phase, right, which is the like using the Department of Justice to try to get access to a voter, using the Department of Justice to get search warrants, right? He's using the courts. And, you know, to some extent, he abides by the outcomes. I mean, you probably have a better uber sense of like how much he abides by the outcome.

1:40:44Leah Litman:But like it at least continues to look normal-ish in that it is things are being litigated out in court. But what I have warned people is that Donald Trump is going to continue to escalate. I mean, he thought that his ticket to maintain power in the midterms was simply gerrymandering. That has not panned out for him. OK, then he thought it was going to be the SAVE Act. That is not panning out for him because it's not going to be enacted. Then he thought that it would be these lawsuits that they're filing. Well, so far, the Department of Justice has lost every court case that a federal judge has decided involving these voter files.

1:41:19Chris Geidner:Impressive. Impressive in many respects. It's not easy, right?

1:41:22Leah Litman:I mean, as I say to folks, like, it's really good for my ego because it runs up our win-loss ratio against, you know. But yeah, it's not great. And then now he is, though, starting to say what comes next. So what has he said? He has said that Republicans need to take over the voting. And he has specifically said 15 places. He has said that he wished there wouldn't be midterm elections. Now, there will be midterm elections. But when you start to have the president of the United States musing that there shouldn't be midterm elections, that Republicans should take them over. Red flag. That's a red flag, right, of what is going to come.

1:41:56Leah Litman:So what I am expecting is, you know, you're wearing a Minnesota No ICE t-shirt. Soon you'll be able to, as we get closer to the election, I think you'll be able to expand the number of states on that t-shirt. Because I think what he's going to do is use the federal paramilitary forces available to him. And ICE is obviously one of them, although not the only one. And I think that's an underreported story that that actually the shooters in at least some of these cases in Minnesota.

1:42:25Chris Geidner:Right, or CBP. Yeah. Yeah.

1:42:26Leah Litman:Yeah. Right. So like it's not just ICE. He's got a lot of paramilitary forces available to him. And I think you're going to see them active. And it doesn't require them to be at the polls with guns. It just means that they need to cause the kind of mayhem that you saw in Minneapolis in the streets. Because like, honestly, if you have ICE officials blocking off streets and pulling people over and breaking their windows and people pulling people out of dragging them out of the street. Yeah, that's going to create the kind of environment that, frankly, U.S. citizens who have nothing to worry about are going to be like, I don't need this trouble.

1:42:58Leah Litman:I don't need to try to work my way through traffic. I don't need to wind up in a situation where voting rather than taking me a half hour is going to take me three hours and it's going to be like going through the gauntlet. So I think you're going to see a lot of that. And then finally, if that doesn't work, then we're going to see more ballot seizures and more efforts to just overturn the results.

1:43:18Chris Geidner:Well, that is uplifting. But, you know, as you know, your last answer is suggested, a lot of what Article 2 is doing has been involving the courts. And because this is the Supreme Court podcast, wanted to end on a lightning round of Article 3 and how the courts are doing things that are already influencing and will continue to shape the landscape for the upcoming midterms and future elections. So, Mark, you already kind of alluded to the redistricting and, you know, the Supreme Court's or federal court's actions on partisan gerrymandering. How have the courts been shaping this redistricting war?

1:43:56Leah Litman:Look, I think that we don't know. And we don't know yet. And I'll tell you specifically, but I think that—and this is a lesson, frankly, I've learned from you, listening to you over the years, and frankly, in talking to you about this. like the Supreme Court, and I don't know whether it's on purpose or not. I leave that to you and the experts on your podcast. But the Supreme Court seems to have this way of operating, which is they kind of give the pro-democracy forces some win relatively early, then to be followed by an avalanche of stunning new feats, right? And like, we can talk about this in past cycles, but like, I was thinking about you recently because, of course, you know, the people were very, very excited by Justice Gorsuch's language at the end of the tariff decision, which is not in and of itself a voting decision.

1:44:49Leah Litman:But you can read it as like an affirmation that actually Congress is in charge and the president is, in fact, not able to do whatever he wants. So in that sense, it got read as something that is not just a tariff decision, but kind of a broader democracy decision.

1:45:09Chris Geidner:Also, just like side note, how much are they breadcrumbing us that we have to salivate and celebrate as victories? The idea that Neil Gorsuch ends an opinion with the suggestion that the president isn't an all-powerful king. Anyway, sorry, you were.

1:45:23Leah Litman:No, I'm actually glad you mentioned this because I actually have made this point not quite that directly. But like, number one, it's a concurrence. It's remarkable that you couldn't get a majority of the court for that. Yeah, right. And then the second is it has this feel and, you know, I don't want to digress too far, but it has this feel like every sovereign Supreme Court justices are like, you know what? I just want to write something that's not really for like the courts or for lawyers, but like might wind up on a Hallmark greeting card. I kind of remember like Justice Kennedy, you know, would occasionally do this.

1:45:56Leah Litman:And it felt like at the end of this opinion, like Justice Gorsuch was like, OK, I get just one more thing to say, which is just going to like fit really well on like a placard or a placard. Right.

1:46:07Chris Geidner:Yeah. They're all aiming for this wolf comes as a wolf line and they're never going to get it. But darn it, they're going to keep trying.

1:46:14Leah Litman:Right. So, look, the lower courts have have been have been relatively strong on democracy, but there's a lot of cases pending for the Supreme Court. I mean, you know, right now we are waiting on a big Supreme Court case involving redistricting out of Louisiana. Yeah, we are as as we're recording this, we're waiting on the Supreme Court to see whether it's going to grant relief to Republicans in the state of New York on an emergency petition. We're going to wait and see whether the Supreme Court grants cert on a voting case out of the Third Circuit involving technical errors or technical irregularities that voters make and whether that should disqualify their ballots.

1:46:49Leah Litman:It's like there's a lot of stuff plus the argued cases that we talked about. But if you ask me, like sitting here right now, you know, the Supreme Court has basically taken hands off. It basically said, I'm not going to we're not going to stop Texas and we're not going to stop California. So it basically said we're we're out of the redistricting emergency docket, you know, shadow docket world, at least with respect to those two states. But there's a lot more opportunities in front of us.

1:47:13Chris Geidner:Right. Stay tuned for Louisiana versus Calais. the challenge about whether the Voting Rights Act is basically going to restrict states' ability to district minority voters out of power. That's one of the ones we're waiting for.

1:47:24Leah Litman:Leah, can I just take a slight issue and challenge here?

1:47:28Chris Geidner:Yeah, yeah, yeah.

1:47:29Leah Litman:This actually was not about Section 2. The only people who made this case about Section 2 were the justices on the Supreme Court. This case actually didn't go to the Supreme Court for them to decide whether the Voting Rights Act still is constitutional. This case went up on a much narrower and different legal theory. And then the court on its own, like literally on its own, just announced, oh, actually, we want you to argue this other thing, which is whether Section 2 is constitutional.

1:47:56Chris Geidner:Yes, I know. And honestly, I'm not sure if they are going to go that route since they seem to be so interested, or if they're instead going to like weasel through the back door and try to do a Justice Alito-Bernovich special where they basically rewrite the Section to redistricting tests. So it's almost impossible, you know, for plaintiffs to actually ensure that redistricting is representative. I'm not sure I've really decided which route I think they're going to go, but I do worry we are staring down the barrel of one of those.

1:48:24Leah Litman:Yeah, I think that the, I think that, I don't know what the right, you know, my generation, we refer to it as shepherdizing cases. I don't know if they call it shepherdizing. Keysighting, right. But I think that just the chief and probably some of the others don't want there to be a little O, you know, when you use a little O if something was overruled. They don't want that. They want like a D, which was like distinguished, right?

1:48:49Chris Geidner:They want a yellow flag, not a red flag.

1:48:51Leah Litman:Okay. I see. Now that's the current. Right. But it will have the same impact, right? So I agree. I don't think they're going to overturn Section 2 of the Voting Rights Act. What they're going to do is they're going to adopt one of two tests that are going to effectively overrule the Voting rights act. They're either going to say, fine, you can draw a district that gives minorities opportunity to elect as long as it meets the political consideration of the legislature, which means, good luck, you can draw a majority black district as long as it's going to elect a Republican.

1:49:21Chris Geidner:Right, exactly. As long as all the black voters vote Republican, then you can have your district. Right, exactly. I can just see the stepmother from Cinderella saying, if, right, I said if, right? Like you can get that district if, but yeah. Yeah.

1:49:37Leah Litman:And then this other alternative is they'll say you can draw a section two district if it so happens you drew a district that just so happened to be section two, but you can't, you can't do it on purpose. And that also will have the same impact. So yeah, that's my, I think that that's probably what we're staring down. The question of timing is really what a lot of people are right now focused on is whether it will be now. I think the court just announced more decisions for next week, more opinion days for next week, or whether it will be the end of June. Got it.

1:50:07Chris Geidner:So in addition to Louisiana versus Calais, you know, we are also looking at two other big voting rights cases that are already on the docket. One is something you already argued, and that's a case about campaign finance regulation. And another is an argument that has yet to occur, and that is the case about whether states can continue to count ballots that are received after Election Day. So, Mark, can you just kind of zoom out and talk for us about the stakes of either or both of these cases?

1:50:39Leah Litman:Yeah, so they're both my cases, both cases that me and my law firm are involved in. So I argued the campaign finance case in December. Remember, this would allow national parties and state parties to spend unlimited amounts of money on their candidates in full coordination with their candidates. And a lot of people hear this and they kind of shrug their shoulders and say, well, why is that such a big deal? Don't we want strong parties? Isn't the system already broken? And my answer to you is Burt Newborn, who was the head of the ACLU in New York, I think, for many years, once said that Buckley Vivalayo, which is the seminal campaign finance case from the 1970s, he described Buckley as a dead tree that is being pushed on the left by justices and on the right by justices.

1:51:26Leah Litman:Okay. And therefore, it remains standing. And, you know, that that is true. And so, like, yes, it's a dead tree, but it is standing. And if if the conservative justices are able to push that over, it doesn't just open the flood of money from parties. There is no way to distinguish in the long run. I mean, in this case, they'll distinguish it. But analytically, the Buckley framework will have fallen if the Supreme Court says that a contribution limit is unconstitutional. Because once you say a contribution limit is unconstitutional, then everybody gets to say their contribution limit is unconstitutional.

1:52:03Leah Litman:I think that'll unravel.

1:52:04Chris Geidner:So I just want to unpack that for our listeners who aren't immersed in this area, because the specific regulation at issue in that case limits the amount that a party can give to a candidate and coordinate with the candidate. And if you say that contribution limit is illegal, then you are potentially opening the door for individual contribution limits to also be unconstitutional. And there was this weird, I mean, to my mind, just like hair raising exchange during the argument where Justice Kavanaugh was asking Noel Francisco, you know, an advocate who was challenging the campaign finance regulation, like, oh, are you sure you want to actually say those other limits are also constitutional?

1:52:41Chris Geidner:Wink, wink, because won't you be here challenging those as well? So yeah, analytically, right, if this one goes, then other ones potentially go as well, or at least they are inviting challenges to them.

1:52:50Leah Litman:Absolutely. And importantly, Francisco refused to

1:52:53Chris Geidner:rule out the fact that he wouldn't be back challenging those limits.

1:52:56Leah Litman:And just so the audience understands, here's why this is like kind of, this just becomes inevitable. What the The Supreme Court has said is that limiting the amount of money that people can spend on their own independently, that is subject to strict scrutiny. Like that is like you cannot limit that without, you know, really compelling reasons. And the Supreme Court has said there are no basic reasons to do that. Contribution limits, on the other hand, they have upheld almost universally because what they've argued is that making a contribution is in and of itself symbolic speech. In other words, the speech you are engaged in when you make a contribution is associating yourself with the candidate that you are approving of.

1:53:32Leah Litman:But that therefore, whether the limit is set at$500 or$5 ,000 or$50 ,000 or$500 ,000, legislatures get to do that because they have to be given the ability to set those limits. And it's not really impringing on your First Amendment right. Once you say that a contribution limit can be constitutionally held to strict scrutiny, then honestly, all the limits fall because you're never going to be able to show quid pro quo corruption for every individual who make a contribution. I mean, after all, Leah, if you wanted to give, rather than give$3 ,500, you wanted to give$5 ,000 to Kamala Harris's campaign, you would go to court and be like, well, but at$5 ,000, I'm not corrupting anyone.

1:54:15Leah Litman:And that's true. There's no difference between$3 ,500 and$5 ,000. So you could just see this is just going to unravel itself. And eventually the Supreme Court conservatives will say, well, You know, isn't this over-inclusive and under-inclusive because it's covering some speech and not other speech? And as you know, for strict scrutiny, that wouldn't survive.

1:54:33Chris Geidner:Right. So let's just blow the whole thing up. So, Mark, I guess I would invite you just for any final thoughts as we are kind of ticking through, you know, the different branches of the federal government and how, again, the manosphere really seems to be trying to mansplain our way into a deeply undemocratic country.

1:54:53Leah Litman:Yeah, I'd say two things. First of all, very quickly, people should pay attention to the Watson case you mentioned. Yes, the Mississippi one. The ballot receipt deadline case. That also will have dramatic impacts. The question there is whether if the U.S. Postal Service takes a few extra days to get your ballot that you mailed before the election and postmarked before the election, whether it gets thrown in the trash or whether it gets counted. And so people should pay attention to that. But I wanted to end, Leah, on your Article 1 versus Article 2 analysis, because it's something I'm spending a lot of time on.

1:55:24Leah Litman:I'm actually thinking I'm outlining a book that I may want to write. And this is very much like in my mind because I think what I've come to conclude is that Article 1 was intended to be the most important. I went back and reread. I was writing for Democracy Docket about the State of the Union. And so if you look at Article 2, the very first thing in Article 2 under the duties of the president is from time to time to report to Congress on the State of the Union. and to make recommendations to them on things they should take up. And I was reflecting on this, that the State of the Union in the Constitution is an obligation of the president to show up at a time that the Congress wants him to give his recommendations that Congress can then take or leave.

1:56:14Leah Litman:And it has transformed into this, Donald Trump shows up treated like a king with pomp and circumstances and people having their tie autographed, while Congress is there as like the just the doormat of Article 1. So, I mean, I don't really have...

1:56:32Chris Geidner:Well, now Republicans in Congress are asking Trump for permission to do things, right, rather than the other way around. Right.

1:56:38Leah Litman:So the question I'm asking myself and the question I'm struggling with is like, how can you have our system of government if Article 1 is not just not preeminent, but is actually not even... What did you say? They didn't show up. I loved... Yeah. whatever your friend, like, they're just like, they're not in the game. Right. So what's the answer?

1:57:00Chris Geidner:I do not pretend to have an answer to that big question, but I'm glad to hear you're maybe writing a book about it. So we can, we can work out that problem together. Mark Elias of the Elias Law Group and Democracy Docket, thank you so much for joining us. Again, listeners, independent media celebration. If you're not following Democracy Docket, please do so and subscribe. In this era, the commentary and journalism and public information is more valuable than ever. Thanks so much, Mark, for taking time out of your very busy schedule to join us.

1:57:34Leah Litman:No, thank you for having me. I love your podcast. I always listen.

1:57:37Chris Geidner:Thank you. Well, that was something, probably something other than uplifting, I'd say. But on a lighter note, let's end with our favorite things. Chris, do you want to go first or do you want me to go first on favorite things?

1:57:49Rebecca Ingber:I'll go first. My favorite things are things that I haven't done yet. Okay. Jonathan Groff is going to be doing As You Like It for the Royal Shakespeare. That obviously that I know you're well aware of already. Next summer we have Jonathan Bailey and Ariana Grande doing Sunday in the Park with George. But more close to now, I am excited to see Sam Pinkleton's Rocky Horror on Broadway. Sam Pinkleton directed O'Mary, and this is his next Broadway production. And so I'll be seeing that later this spring. theater is my favorite thing and I am looking forward to exploration in DC, New York and over in London.

1:58:48Chris Geidner:I love it. Some of my favorite things are also forthcoming things. So yeah, totally works. Yes. So one of my favorite things is our upcoming live shows next week, or I guess this week when you're hearing it in California, I am beyond excited. I'm so excited. I'm doing something I never do, which is taking it easy and giving myself a break for a few days so I can actually enjoy the California live shows. Yes. Another favorite thing is the article I mentioned on last week's episode and that I manifested an acceptance for. Also looking to the future, Chris. The Passive Vices was accepted into Georgetown Law Journal.

1:59:24Chris Geidner:I'm super excited about that and to work with the editors. Also favorite things are the Friends of the Podcast. We've been able to have on the show while we all are traveling, whether that is Steve Ladek, who runs One First Street, Chris Geidner, Law Dork, Mark Elias, Democracy Docket, and independent media more generally. And so, yeah, that has been a really fun part of this segment and wanted to highlight just two quick specific independent media things. So Steve Ladek at One First had this post, the Supreme Court is not reigning in executive power. unnecessary rebuttal and corrective to this hogwash piece, be it for yourself.

2:00:02Chris Geidner:Also, we at Crooked Media are now going to be on MS Now. So we are going to be airing Saturday nights at 9pm. And it's going to be an amalgamation of different Crooked Media shows, including us. So be sure to tune in for that. Chris, thank you so much for joining us this week. And for being our independent media icon. Again, listeners, if you're not subscribed to Law Dork, you really should be. As we recounted in this episode, Chris is doing really necessary work, and it's so important, more important than ever, to support great independent media. So thanks, Chris.

2:00:39Rebecca Ingber:Thank you, Leah, so much. It was great to join you.

2:00:48Chris Geidner:Strict Scrutiny is a Crooked Media production, hosted and executive produced by me, Leah Littman, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern. Our music is by Eddie Cooper. We get production support from Katie Long and Adrienne Hill. Matt DeGroat is our head of production. And thanks to our video team, Ben Hethcote and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube at Strict Scrutiny Podcast, so you never miss an episode.

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