Unraveling the Legal Dramas: From Unprecedented Covid Shutdowns to Trump's Riveting Election Showdowns! | Jay Wexler (Author & Constitutional Law Prof.)

29 Feb 2024 · 1 h 5 min

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Podcast Notes: The James Altucher Show

Episode Title

Unraveling the Legal Dramas: From Unprecedented Covid Shutdowns to Trump's Riveting Election Showdowns! | Jay Wexler (Author & Constitutional Law Prof.)

Episode Overview In this episode, James Altucher interviews Jay Wexler, a professor of constitutional law at Boston University and author of "The Odd Clauses". They discuss significant constitutional issues related to current events, including state versus federal powers, COVID-19 business shutdowns, and the implications of recent elections.

Key Topics Discussed

  1. Introduction to Current Constitutional Issues
  2. Increasing prominence of constitutional debates in the news.
  3. Examples include Texas border issues and COVID-19 business shutdowns.
  1. The Role of the Supreme Court
  2. Historical context: Marbury v. Madison established the power of judicial review.
  3. Supreme Court's evolving interpretations and influence over state-federal dynamics.
  1. Texas Border Issues
  2. Discussion on state rights versus federal authority regarding immigration.
  3. Governor Greg Abbott's stance on immigration as an "invasion".
  4. Supreme Court's recent rulings favoring federal law over state law in border issues.
  1. Presidential Ballot Eligibility
  2. Colorado’s attempt to bar Trump from the ballot based on the 14th Amendment's insurrection clause.
  3. The Supreme Court's stance on state powers to determine presidential eligibility.
  1. COVID-19 Shutdowns and Constitutional Rights
  2. Examination of Fifth Amendment implications regarding life, liberty, and property during lockdowns.
  3. Historical references to the Lochner Era and its influence on business regulations.
  4. Discussion on religious freedoms and restrictions during the pandemic.
  1. The Concept of Secession
  2. Exploration of whether states have the constitutional right to secede.
  3. Historical context and implications of the Civil War.
  1. Freedom of Speech
  2. Examination of the limits of free speech, particularly in incitement cases.
  3. Discussion on the Supreme Court's stance on incitement versus general ideological expressions.
  1. Executive Orders and Presidential Powers
  2. Clarification on the nature of executive orders and their legal grounding.
  3. Discussion on the implications of presidential powers in military actions without congressional approval.

Key Takeaways

  • Constitutional Interpretation: The importance of understanding how constitutional clauses can evolve over time and how they are interpreted in contemporary contexts.
  • State vs. Federal Powers: The ongoing conflict between state authority and federal jurisdiction is exemplified by immigration and election laws.
  • Limitations on Rights: There is a delicate balance between government authority and individual rights, especially in times of crisis like the COVID-19 pandemic.
  • Historical Precedents: Previous cases like Marbury v. Madison and the Lochner Era provide critical insights into the current legal landscape and discussions.

Conclusion This episode provides an in-depth exploration of significant constitutional issues that resonate with contemporary political and social debates. Jay Wexler offers clarity on complex legal matters, emphasizing the adaptability of the Constitution and the ongoing relevance of its clauses in the face of modern challenges.

Further Engagement

  • Feedback: Listeners are encouraged to provide feedback via the podcast's survey.
  • Questions for James: Audience members can submit questions for future episodes.
  • Resources: For more information, listeners can visit JamesAltucherShow.com.

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Transcript

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0:00Look, as a manager of people, as an employer, as an entrepreneur, and as even an investor in startups, I can tell you the most important thing for your business is the quality of the quality of people. you hire. The best part is that great candidates are already on LinkedIn. Employees hired through LinkedIn are 30 % more likely to stick around for at least a year compared to those hired through the leading competitor. And I will tell you that the great thing about LinkedIn is that you're not just looking at random people. You're able to see the people who your friends and trusted peers and colleagues who they trust and who they've hired in the past and who they recommend.

0:42And hiring doesn't have to be complicated. Realistically, when you have a business to run, you don't want to spend hours on hiring. You want to hire the right person as quickly as possible. That's why LinkedIn Jobs AI Assistant suggests immediately 25 great big candidates daily so you can invite them to apply and keep things moving. Hire right the first time. Post your job for free at linkedin.com slash altature. then promote it to use LinkedIn Jobs' new AI assistant, making it easier and faster to find the top candidates. That's linkedin.com slash Altachirk. Post your job for free. Terms and conditions apply.

1:25I am so confused. I have never seen so many important national, even world issues debated over their constitutional merit? Like the constitution is like starting to be in the news. Like take the Texas border, fed versus the States, take Colorado. Does the state have the right to decide who's on the national presidential ballot? And on and on COVID was it constitutional to close down all the businesses? Might've been the correct decision, but I'm just curious, does it get in the way of our ability to have life, liberty, and property unless due process shuts us down. So I asked a world-famous constitutional expert.

2:08He's the author of the book, The Odd Clauses, about many of the oddest clauses in the Constitution. He's a professor at Boston University teaching constitutional law, Jay Wexler. I get to ask him questions, and he tells me which of these recent events were constitutional and which might not have been. So here it is.

2:32This isn't your average business podcast and he's not your average host. This is the James Altucher show.

2:49So Jay, I have, I have a bunch of questions about the constitution. And I'm as related to current events? Because I feel like more than I've ever seen in the past 24 years, 25 years, I'm thinking like Gore, Bush, that election, I haven't seen so many constitutional battles like on the front page of the news as I am these past few weeks and few years. Yeah, I think that's probably right. I mean, it's a combination of a president who doesn't follow any, or former president, who doesn't follow norms. And so it gives rise to these issues that, you know, constitutional law professors, for example, have been like thinking about, but never thought would actually occur.

3:41And so it's a combination of that, I think, plus a new Supreme Court that is willing to change its view on lots of things. So that invites, you know, cases to be brought – they basically invite cases which they can use to kind of rethink the law. So I can see how that would – you know, how you can perceive that because it's – I don't know if it's true or not, but I think it probably is true. Let's start with a very broad question. Like the Supreme Court in the Constitution didn't have the power to decide what was constitutional or not. So that's – Well, it was unclear. Yeah, right. I mean until 1803, that wasn't clear, right?

4:27I mean I think the framers probably thought that the court had the power of judicial review, but it wasn't clear. And it wasn't until John Marshall took the lead of the Supreme Court and made it into a powerful institution. And Marbury v. Madison announced that there was this power of judicial review. So, yeah, once we started that, it was inevitable that the court would become more powerful. Marbury v. Madison is a fascinating case. I love teaching it. It's really – it's very cool. What was the case? Well, I mean what's so interesting about the case is that – I mean I don't want to – I can't get into all the details, but Marshall did not have to decide the issue.

5:07He did not have to reach the question of whether there was judicial review or not. He sort of misread on purpose both the part of the Constitution he was interpreting and the statute that was arguably in violation of the Constitution. He read them to conflict with each other so that he could come up with a – announce the power of judicial review. I don't think most people know that, but it's not at all clear when you look at the language of the constitutional provision about original jurisdiction and appellate jurisdiction. And then the statute, which purported to give the Supreme Court original jurisdiction, but not appellate jurisdiction to do this thing to order the delivery of an appointment of a judge.

5:47So he manufactured it all. And not only that, it's fascinating because he was he should have recused himself, too, because he was had been the secretary of state when the commissions to the judges were were signed. He signed them because he was he was the secretary of state and the chief justice of the Supreme Court at the same time. And so he did all these sort of maneuvers to be able to be in the case and then decide the case in the way he wanted and then to create this powerful institution. But that's an interesting thing, too. And this is this is actually related to one of the constitutional issues happening now.

6:25But, you know, you can't be according to the Constitution. And this is a little known clause. You mentioned it in your book, The Odd Clauses. You can't be a senator or congressman and work in the executive branch at the same time because of the separation of powers. How come it's the case that you can't you can be in the executive branch and at least in this case, the judicial branch? Yeah. So for one thing, I don't think anybody like cared about about the issue in 1803. So nobody I don't know, maybe I'm wrong. Maybe some people did say, hey, you can't do both of these things. But I don't think it was particularly controversial at the time.

7:06So, you know, sometimes parts of the Constitution lie dormant for a long time before they become part of the national conversation or people recognize their importance. But also, I think the terms of that constitutional provision you're talking about, the incompatibility clause, only applies to members of the legislative branch and the executive, right? So it might still be the case you could be a Supreme Court justice and a secretary of state. I hope not. I don't think under general principles of separation of powers law you could, but it's possible. I have to go read it. It seems like if they planned it between – they really put the separation of powers in between Congress and the executive office.

7:51They should have done it for the judicial branch and the executive branch, but it seems like they forgot it or decided for some reason it wasn't as important. Maybe there's a story there. There probably is a story. I don't know it. But I've never heard, you know, I've never I also don't know all the historical kind of scholarship about Marbury versus Madison and John Marshall. I've read some books and things about it, but I don't I don't remember anybody, you know, being a big deal that he was doing both things at once. Maybe it's because at the time the Supreme Court wasn't so powerful. And in fact, there were people who turned down, I believe, the chief justice position.

8:32They were like, I don't want to be in this little court. I've got businesses and other things to do. Like the Supreme Court wasn't the Supreme Court until Marshall made it the Supreme Court through Marbury v. Madison and some other cases. So perhaps it wasn't even viewed as like a big deal at all. So somebody is the Secretary of State on the Supreme Court. The Supreme Court is not a big deal anyway, perhaps. We've actually, just as a side note, this podcast has visited the Supreme Court because I think the only Supreme Court justice who's ever been on a podcast was Sonia Sotomayor was on this podcast.

9:09Oh, awesome. Yeah. So, okay. Yeah, it was very interesting. And I was very pleased that she actually reached out to me to come on the podcast. and uh so okay so the questions i have first one is this this texas border thing so you know texas has um this one area uh near a town called eagles pass i guess where the the texas border patrol or the texas national guard has put up razor wire on the wall and the biden administration wants to take down the razor wire and this has gone all the way up to the supreme court which since since it's the part of the federal laws that the federal government is in charge of the border, the Supreme Court ruled that the federal laws override the state laws.

9:58And so that was the, the federal argument is that they override the state and now the state argument. So governor Greg Abbott, his argument was, is that there's a clause in the constitution, which says that if the federal government does not respond to an invasion, then the state has power to fight the invasion. And he labeled the immigration and invasion. Now, subtext to this is that what is, what constitutes, is immigration, is illegal immigration and invasion. That's not specified in the, in the constitution, but James Madison has written in other, in another place that immigration does not count as an invasion.

10:35So it's, so, so what's, what's the answer? There's all these disputes and the, and the Supreme court ruled that the federal government does override the state in this case, but there was loopholes and so on. So it's still ongoing. Right. And, uh, that, that's a great, you know, question because it raises, uh, this, this, this issue about how constitutional provisions who even people teach constitutional law, you know, may for 10 years or whatever, might not even really thought of or paid attention to. And that, that clause that you're talking about i'm i got my constitution right here little little guy you got to keep one everywhere right if you're a con law professor right so it's it's section 10 of article one which says you know a state uh state can't engage in war unless actually invaded um actually actually actually you know so i the word actually is pretty fascinating there like yeah they could have just Unless you said, unless invaded.

11:34Right. And so that word, people will, scholars will debate, like, why is that there? Does that mean that it has to be like an invasion that's like a real invasion? So it like limits the word invasion, et cetera. So it seems to me like immigration is not an invasion. That seems fair. Like, I think that the framers of the Constitution would have used a different word if they were including, but if they were going to include immigration there, but, but, but that could be incorrect as well. I'm not, not, I'm not an originalist, so I don't know, you know, everything about why they, why they put that in there.

12:15But it's, it is, it's fascinating, right? So what, so, and then if it were an invasion, then what, what effect would that have on the federal government's ability to go in and cut the wire, right? Cut the razor wire, which is what the case is right all about. I love that, that that case came up. It came up right when I was teaching this classic old, another John Marshall case called McCulloch versus Maryland, which is about whether a state could tax the Bank of the United States. And the Supreme Court said a state can't, you know, tax the United States. That would give the state the power to destroy the federal government.

12:49And it was one of those early cases that established that the federal government was kind of supreme to the states when they conflict on most issues. And so the United States brief on this issue in the Supreme Court starts right off and says, you know, since 1810 or whenever McCulloch versus Maryland was decided, you know, this kind of thing has not been allowed. And so it was like this famous old case brought to the modern day. And, you know, I think that's probably why the Supreme Court held the way it did, that this is a federal government, the state's in a conflict over or something that's really about federal law and the states can't get in the way of the feds take care of the border.

13:32So it was just an illustration of this age old or 200 year old principle that Marshall announced. And does it specify in the constitution that the federal government is in charge of the border, protecting the border? Yeah, and Congress pretty much has given the power to regulate immigration. The president, well, yeah, no, it certainly has been interpreted that the federal government has, and particularly Congress, has kind of what they call plenary power over immigration. So I think that's pretty well established, at least by the courts interpreting the Constitution. There may be language in the Constitution that could give rise to an argument the other way.

14:18I'm not sure. Yeah, so in, I guess it's Section 9 of article one it says uh the migration or importation importation uh right right yeah there everybody people who were already immigrating right then were grandfathered in until 1808 and then after that congress is in charge right so uh so yeah so the question is though um i guess there's greg abbott's question which is which which you're addressing which um was it an invasion or not? In which case he could say the federal government's not acting how it should, so he needs to take over. And then there's, I guess, I guess, well, I guess that is the main issue.

15:05Then I guess there's the fact that it's only this specific idea that the federal government has the idea to cut the razor wire down, but it doesn't say anything about Texas putting new razor wire back up immediately. So that's the loophole that has been in place right now. And they'll go back and forth, right, until the court, you know, issues some final ruling, which they haven't in this particular case. But even then, you know, then what happens, right? The court doesn't have any enforcement power, right? The court doesn't have – it has no money and it has no army, right? The court can't enforce its own rulings.

15:48It's a pretty interesting thing. But the federal government can. The federal government can, right? And they'll say we have the authority under the court's decisions. And maybe they'll keep battling, perhaps, if the state doesn't give in. I'm not sure the state made the invasion argument in its briefs in that case or if it was a later thing that Abbott was talking about that might make its way into the case later. I'm not sure about that. The court didn't say anything about it. Right. That its decision was was there was it was one of these orders without explanation. So it's unclear if the court thought about this invasion argument, if it is presented to the to it properly.

16:30We'll just think about it later. And I'm also not sure that even if it is invasion that gives the state the rights to the right to act, whether if the feds decide to jump in instead, whether the feds might be able to sort of preempt the state's decision, right? So in other words, I think it's a separate question whether the state has the power to act if there's no federal action versus the state having power to repel the federal government if the federal government decides it wants to step in. And I'd be really surprised if the state ends up prevailing on that, even with this court. so so right so so whether or not it's invasion if the federal government acts then they acted and the state doesn't have any power over that like like back in 1800 or 1790 or whenever the federal government sometimes couldn't muster an army fast enough to act and hence this clause it was the real original reason for this clause so but it's interesting can the federal government, but like Texas is the main state, I guess California also that essentially protects the border.

17:41And I guess it's an interesting question. Well, that's not totally true. There's also the Northern border. There's plenty of States on the Southern border, but it's an interesting question. Like, yeah, like it's an interesting question. If, if, if, if the people in Texas, if Texas itself as a state is overwhelmed by immigration, do they have no power at all? Right, right. And yeah, that's a great it's a good question. They would say that that's what's happened. Right. The feds would would say, you know, we're we're doing what we can. And that it's our kind of. you know it's our area and and if we're acting at all and we are you know maybe not to texas's liking it's really the fed's decision and texas has to resort to the political process uh to try to get right the federal government to act differently i mean i think that's you know because otherwise you get all these you know each state making its own sort of immigration policy And the court, at least, has always talked about how we need kind of one voice when it comes to international relations, foreign affairs, and I think that includes immigration also.

18:55So, you know, this is a court that's highly solicitous of states' rights, and I understand that. But I think on this kind of question, I think I would be really surprised if the court would have sided with Texas. okay because because then there's the of course the i guess it's the 10th amendment which says any law is not specifically prescribed by the federal government goes to the states but you can argue like you just said that immigration is something that the constitution has specifically said is you know foreign relations in general is something that's you know done by the president and congress and so on right right and so if the constitution gives the federal government the power to handle immigration, then the 10th Amendment doesn't, you know, wouldn't kick in.

19:43I mean, the 10th Amendment, it's interesting how the court has interpreted the 10th Amendment over the time, over the years. Basically, the only thing the court has said the 10th Amendment does is prevent the federal government from ordering states to do things directly. And that's come up some, you know, several times. It's kind of the whole reason why marijuana can be legal at the state level while it's not legal at the federal level because the federal government can't order states to make it illegal because that would violate the 10th Amendment. That's the sort of the 10th Amendment's quiet power that I think most people don't recognize.

20:21What does that mean actually? Like does that mean Congress can't pass a law against murder, for instance? Every state has to pass their own law against murder? Well, so the United States can pass, can promulgate a murder statute, but it has to be connected to some existing federal power. So and usually that federal power is the Commerce Clause power, which so so Article one, Section eight lays out all these specific powers that Congress has. And the most broad of those powers is the thing called the Commerce Clause, which gives the Congress the power to make rules if they have significant effects on interstate commerce kind of.

21:05And so the federal criminal laws are limited because they have to have this kind of interstate, usually have to have some interstate aspect to them or something. But so that would be the there would be a federal murder law in particular situations. And then, of course, the state with the original question was to remind me the original. So if someone fills up on gas, if a murderer fills up on gas in New Jersey and then drives to New York and kills someone, does that break the federal murder law? Because there was commerce done in New Jersey in order to kill someone in New York. Right, yeah. No, I'd have to look at the federal murder law.

21:46But that would be the kind of murder that the feds could reach. But most criminal laws are state, are created by the state and implemented by the state, enforced by the state. And there's different crimes too, right? That's why the federal government could enforce – sometimes somebody gets off on state law, but then the feds prosecute them, right? So they're separate – because they're separate sovereigns, so there's no double jeopardy problem. And so it's a, yeah, it's a, the relationship between the feds and the states. And we're doing that right now in constitutional law in my class. It's, it's, it's fascinating.

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24:00This message comes from Capital One. With the Spark Cash Plus card from Capital One, you earn unlimited 2 % cash back on every purchase and get big purchasing power so your business can spend more and earn more. Steven, Brandon, and Bruno, the business owners of SandCloud, reinvested their 2 % cash back to help build the company's retail presence. Capital One, what's in your wallet? Find out more at CapitalOne.com slash Spark Cash Plus Terms Supply. Well, related to this then, kind of on the other side of things is Colorado. So Colorado, there's a couple of interesting issues here. First off, Colorado is saying that they don't want to put Trump on the ballot because it says in the constitution that nobody who has been involved in an insurrection can go on the ballot.

24:52And this was in the 14th amendment. It was probably made to apply to anybody who was involved in the civil war can't be president of the United States. And so, so they're kind of invoking that amendment to say Trump can't be on the ballot. And the federal, this has gone up to the Supreme court and the Supreme courts basically said the states don't have the power to decide who the president of the United States is. So it's almost similar to that case you mentioned where Maryland can't tax the United States. So a state can't do something that affects the whole United States. And that seems to be where the Supreme Court, I don't know if they've invoked the 10th Amendment or what, but that's what they decided.

25:33Yeah, well, no, they haven't decided the case yet. I mean, they hear an oral argument on it. I mean, unless something happened today. No, I don't know.

26:11But but but there are all sorts of reasons why the court could decide that it could be, you know, there's a whole argument about in the case about whether the president is actually is an officer of the United States under the Constitution. And that, you know, that was asked about the oral argument briefly, but probably not enough that that indicates that that's how the court's going to go. The court seemed to be very concerned with, as you say, the states, the state power here and the federalism concerns like why. Right. The Constitution doesn't say how that prohibition on somebody involved in an insurrection can't be present, how that gets enforced or becomes part of the actually gets implemented.

26:55The Constitution is unclear about that to the extent it says anything. It sort of sounds like Congress should do it because Congress has the power to enforce the 14th Amendment under Section five of that amendment. You know, whether states can use the access to their ballots to do it, it's kind of a hard, hard argument for the states to make. I mean, Justice Kagan, you know, said, asked, asked the argument, you know, why should the state of Colorado be able to decide who becomes president or not? And I think every everybody has that feeling that that this is not something that each state one by one can do.

27:30At the same time, I don't think the Supreme Court is going to decide what counts as an insurrection and was Trump sufficiently involved that he shouldn't be – that he's barred from the ballot. Well, that was the other question I had was if I were on the Trump legal team here, has there been due process that says Trump was involved in an insurrection? Yeah, that was an issue a bit at the argument. I'm not sure the due process necessarily, you know, attaches to that particular, you know, provision. I mean, and if it did, what it would look like? How would you, you know, how does, does he have to be criminally, you know, found guilty of participating in an insurrection?

28:20Nobody, I think, has been charged under the insurrection statute with respect to January 6th. What have they been charged with? Like entering the Capitol without permission? What was the law that most people broke? I'm not really sure. But not the insurrection law. Right. There is a law that prohibits insurrection. It's a federal law. And as I understand it, none of the January 6th people have been indicted under it, though it's been used maybe once or twice or something in the past. But there was the impeachment. Does that provide you? Does that count as due process if due process applies? Or is this just a political kind of decision, you know, such that maybe it doesn't require due process?

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29:06So I think that's kind of up in the air, too. But but but you're right. Like or would the would the arguments being being made for the court in this context constitute due process? Like they would be arguing in the briefs about it in the lower courts. You know, was this an insurrection? What did he do? You know, what didn't he do? Does that count as due process? I don't think we'll ever find out. But yeah, go ahead. Yeah, the other thing is can't a state – isn't it one of the powers of the state to decide who is on their ballot? Like every state has different rules about who is on their ballot.

29:46Like you have to have a certain number of signatures. You have to have a certain number of amount of cash, maybe, you know, in your in your campaign funds. So if that's a state power, couldn't they decide? I mean, they certainly decide a lot of candidates don't go on the ballot. Why do they have to put a Republican or Democrat candidate on the ballot? Yeah. So I don't know that area a lot that well. What I do know, though, is that is that the court has said that that the states can't add qualifications to the particular officers, federal officers. That might be the distinction. They can do a lot for state officers, but maybe not as much for federal officers and their access to the to the ballots.

30:32the court has said that states can't add to the qualifications that are in the constitution that are like the president has to be 35 you know be a citizen of so long etc and and at one point a state maybe it was Alabama wanted to impose term limits for their members of Congress and so they they basically said you know if you've been a senator for two terms then you can't have access to the ballot. And the court said, no, you can't do that because that's basically a state adding a qualification for federal office to that, to those that are included in the Constitution, and that the states can't do.

31:10And that case came up a bunch during this oral argument. So I don't think the state's going to prevail on that strategy. And I'm just trying to think now from the state's point of view, the state doesn't allow everybody who's running for president on the ballot so for if you go to fbc.gov and fill out 10 minutes worth of paperwork to run for president then you're officially a federal candidate for president i know this because i've done it i'm officially a federal candidate for president but i cannot get on the colorado ballot no matter what because colorado has qualifications like you have to get a certain number of signatures and maybe your party had to be on the ballot the prior four years so there are state by state rules about which presidential candidate is allowed on the ballot and this was a case though i guess where trump if he gets the nomination would have satisfied all the qualifications but they're still saying he can't go on the ballot because of this insurrection idea and yeah i don't know i mean i you might have a lawsuit um if you can't get i'm sure you should you should see uh yeah i'm not sure i'd have to look into that like i i you know i don't know why the states would be able to uh not allow you on the ballot well because there's thousands of people officially running so you have to figure out like rfk jr can't get on the ballot in in many states i don't know if he's going to make 50 of the states or not But, you know, the two party systems never been specified in the Constitution.

32:48But that seems kind of encased in state law, state by state. So I'm just curious where the state's rights end there and, you know, the federal begins. but it seems like what they're saying though, that that might be the problem, I guess, is that Donald Trump would make all the qualifications and they're still gonna say he can't be on the ballot for this federal reason, the insurrection reason. So like, for instance, can a state not put someone on the ballot if they're 29 years old? So in the constitution, it says you have to be 35. You bring this up in your book, The Odd Clauses. is the state allowed to not put someone on the ballot and they've met all their rules, but they're 29 years old.

33:35And then it's up to the federal to just say this guy can't be president if he wins. I don't, you know, that did come up at the oral argument. The question was kind of like, let's say a state decided not to allow access to the ballot to somebody who was going to be 35 at the time of the election, maybe, But it wasn't going to be 35 at the time of the election, but would have been 35 at the time that they would take office of president. And the argument was that they could not keep somebody off the ballot in that situation. This sounds like, you know, I'm wary of getting into stuff that I know very little about because I'll say something.

34:16You know, the careful lawyer in me, I guess, is wary about this. Because I think that the states have – maybe there's some federal laws that regulate the stuff, and that's where all this stuff comes from. But from what my – listening to this oral argument, there is really – everyone seemed to agree that there is really a lot of restrictions on what the states could do to keep people off the ballot for federal office. So I'm just going to have to do some research. but i mean it sounds like the supreme court though says you can't you can't get in the way of again it's that it's that it's that maryland versus the bank of the u.s case like you can't a state can't do something that's going to affect the livelihoods of everybody else in the united states yes yeah whether it's you know going to be specifically that case or just sort of the general principles that come i think it's unclear what the source of the this ruling is going to be whether it's kind of a, maybe it will draw on the 10th Amendment.

35:16I wouldn't be, you know, who knows. But it just, it seems clear what the court was concerned about and what it doesn't want to happen. And then now it's going to figure out kind of a way to make it happen. And I'm sure there are many ways to do it. And that might be what they're, you know, debating about now, why they haven't issued an opinion yet, You know, figuring out exactly what they're going to rest their decision on. That happens all the time. So I have a now this is probably a bigger question. And this involves this in 2020 COVID when essentially I don't know if it was the federal government or state by state, but essentially every business was required to shut down.

36:06And I'm not arguing whether this was a good thing or bad thing or whether more lives were lost if this hadn't occurred or lives were saved because this did occur. But in the Fifth Amendment, it says essentially no one should be deprived of life, liberty or property without due process of law. And like I had a business on the streets of Manhattan and New York City, and it was, of course, shut down by COVID. and did that not deprive me of liberty and property with, you know, nor shall private property be taken for public use again, without due process of law and without just compensation. So this due process of law part is what bothers me with the COVID shutdowns.

36:56There really was no due process for any business and many, many generational businesses and families lost their whole incomes went bankrupt. You know, it was just a catastrophe on a business side. Again, this is, I'm not arguing whether it saved lives or not, this law, but was this unconstitutional, this law? You know, so there was a period of time in the, between like 1905 and 1937, specifically 1937, during which the Supreme Court said that the due process clause placed like really strong limits on the government's authority to regulate businesses in all sorts of ways. And basically said it was like a regulation that said, for example, a business couldn't hire, use child labor, for example.

37:51You know, that might not be the right case to use, but like wage hour laws, those kinds of things. The court struck lots of those laws down in this period. And that period was known as the Lochner era because there was a case, a famous case about the hours that bakers could work. And the Supreme Court said that those regulations were unconstitutional because they violated the due process rights of businesses. And but the court sort of made 180 degree change on that in 1937. And that actually is the kind of the switch, the switch in time to save nine, that whole classic thing, which saved the court because Owen Roberts, one of the Supreme Court justices who was always striking things down, switched his vote.

38:35And since then, I would say kind of general regulations of businesses of all sorts have received kind of the lowest amount of scrutiny under the due process clause that the court uses. Basically, the court has said any kind of rational regulation, any regulation that has any kind of reasonable justification is sufficient for due process purposes. And so, you know, I think that's one could disagree with that, of course. But that's what the court has said and and has never sort of revived this old period of that for the Lochner era. So there's really little kinds of little that in the due process clause that businesses have been able to rely on.

39:28That may be not a good thing in all circumstances, but that's what the court has said. I think in some states, though, where this was brought to court, businesses sued. It got up to the state Supreme Court. I don't think it ever went up to the Supreme Court. And it was struck down as unconstitutional, the closing of businesses. I think it was in Minnesota or Wisconsin. I'm sorry I forget which state. But I think I think it became like an open issue. But, you know, eventually the lockdowns relaxed and it didn't go all the way up to the Supreme Court. I, so I'm not familiar with those state cases.

40:04What I do remember are the cases involving religion, because I teach law and religion, and it's been a long focus of mine. And so there's some really interesting cases about if the government closes churches, right, or places regulations on religious get-togethers, various kinds, you know, are those constitutional or not? Do those violate the kind of the free exercise of religion rights of these churches and other religious institutions? And the Supreme Court decided several cases where they kind of compared the restrictions that were placed on religion to the restrictions that were placed on other kinds of businesses.

40:42And if the court didn't think that they were kind of the same, they treated religion worse than other sorts of businesses. Then the court struck down that like there was a law in Brooklyn that that fell under this sort of theory. The court thought that New York or the state of New York had treated religious groups worse than, say, supermarkets. And so that was a problem. That was fascinating, I thought. Well, in what way were supermarkets treated differently? Well, like so if I remember right in this case, like supermarkets were open. You know, there were some restrictions on how many people could go in the supermarkets, but the churches were closed or they had very few people were allowed in them.

41:34And then there were also laws about like performances, theater, comedy, concerts, sporting events. Right. And they were closed. And the question was, you know, are the churches kind of more like like the like the sporting events where people are yelling and singing? or are they more like the supermarkets where people are just sort of gathering and doing their daily business? And Justice Sotomayor said, look, they're treated the same way as theaters and sporting events, churches are. And that makes sense because people are singing and so they have to be clamped down on more than the supermarkets where people aren't singing and chanting or whatever.

42:21And those are safer. So – but the court, the majority of the court disagreed and thought, look, if you're going to close the supermarkets – I mean, if you're going to leave the supermarkets open – am I getting this right? This is like the LSAT. If you're keeping the supermarkets open, then you've got to keep the churches open. So that's how that case came out, if I remember right. So I wonder if that's also related to the COVID situation because supermarkets were kept open but churches closed. This is all COVID. These were all COVID cases. that I'm talking about. So, and that's what the court, you know, focused on, like not so much the due process on ordinary businesses.

42:59That never made it to the Supreme Court, but the religion closings did make it to the Supreme Court. And so what did they end up concluding? They concluded basically, the rule is that the government has to treat religion as kind of as well as it treats any other similarly situated activity. So if you closed, So if you keep supermarkets open, you've got to keep the churches open to the same extent. That's kind of what the majority of the court said. And the dissenter said that supermarkets and stores like that are not the proper analogy to churches, and that you should look to what the government's doing about singing and theaters and sporting events.

43:43So I wonder if a sports event could have said, okay, this is actually a religious service, and in the middle of the religious service, we're going to play the Super Bowl. I wonder if that would have solved the problem for sporting events. Well, religion does help you with the Supreme Court, that's for sure. So maybe.

44:18so one issue which has occurred ever since the civil war is the issue of secession does the constitution spell out when a state can secede and i'm thinking again of this texas stuff and And there's a movie coming out next month called The Civil War. And what's – so this is going to be a question that people are going to have. What makes it – is it possible for a state to secede legally? Now, Abraham Lincoln would say no, and correctly for him at that time, he did the right thing. But just what's the Constitution say about it? I don't think the Constitution, the text of the Constitution addresses that, the succession question.

44:57I honestly, it's another area where I'm I it's I bet there's a lot of writing and a lot of thinking about it. And I don't it's just doesn't it's not something I happen to know about. So but I don't think there's anything in the Constitution. There's no process for for secession like that. You would expect. Right. If if it if it was contemplated by the framers. Right. A state can decide to secede if it has a vote of this or that. But, you know, there's going to be there are going to be theories like the the that the federal government is a creation of the various states and if a state wants to withdraw its consent, then it can do so.

45:39But the the response would be will be that the Constitution is derived from the power of the people, not the states. And that states have no authority to to leave the union. I bet that's the prevailing view is that – but I – that secession is kind of contrary to the principles of the Constitution. But I'm sure there are also well-thought-out arguments on the other side. Right, as you said, we have the Civil War precedent. But have we seen anything since? You think we will? That would be kind of interesting. what would have happened if you know the the army and the texas national guard came to blows so to speak and texas said you know what we're out count us out we're done we're done with this shit yeah yeah no i don't know i mean texas famously has had six flags right so you know they've been part of a bunch of different governments and that they've left uh they might leave this one they might have a seventh flag we're gonna have to change all the amusement park names.

46:46Oh, no. That might be. You know, it's one of those things like I was saying at some point earlier in the conversation, like for many, many years there, you don't have a, you know, it's not a certain kind of action or presidential, you know, behavior or whatever it is, It's not contemplated. So nobody thinks about whether what the Constitution might say about it. And then, you know, someone, you know, makes a decision that's outside of the norm. And then everybody's like, oh, my God, what is what does this thing say about it? And it's it's got all these little, you know, pieces in there which lay dormant for for good for it could be for hundreds of years.

47:38And then something raises the issue and we have to look at what the text is and what it says and what it meant. And, you know, and then all of a sudden everybody's got an opinion about it. Right. So so nobody thought about it for 100 years. And then within a week, everybody's got some view about it. Right. It's it's it's and then the con at least me, I'm I'm I try to slowly come up with my views. So it takes me a while to read and think through what it is. Meanwhile, there's this raging debate going on about whatever section of the Constitution means, and I feel like, I don't know. Wait a second.

48:17Hold on. This might be hard. I don't know. I don't know the secession question. I know people are talking about it and thinking about it, but I don't know what the answer is. I know that there's no process in the Constitution for it. Yeah, I don't think the Constitution mentions secession. It just mentions, you know, again, probably in the context of the Civil War, the 14th Amendment, it refers to insurrectionists are bad. But it doesn't really define what insurrection is, and it doesn't equate insurrection with secession. Like there are so many – invasion, insurrection, rebellion, war, religion.

48:57These things are all in the Constitution, but they're not defined. and usually you don't have to define them. But now we have to think, what is insurrection? What is invasion? It's interesting that they didn't define them. Like it seems to be on purpose because they understood that the country will change. And that's kind of a deep understanding to think that when making the constitution. Yeah, I mean, I think if that's the case and I think it certainly was the case for some of the framers at least, right? That is really sophisticated, right? We're going to leave this, a lot of this document kind of open ended.

49:34We use phrases like, this is the 14th Amendment now, but equal protection and, you know, the Bill of Rights, due process of law, freedom of free exercise of religion. These sort of ambiguous phrases with the idea that they will be filled up and given content by the generations. But that also, you know, there's definitely a view among some of the justices and a lot of people who study the Constitution that that's not what the framers, you know, either not what they wanted or not how we should read their intent. And that what we should be doing is not sort of allowing people to update the meaning of the Constitution to fit the changing circumstances of the day, but rather go back and find out, you know, what did invasion mean in 1787?

50:30What was the original public meaning of that word? And then that becomes the fixed meaning of the word. That's one of the major, if not the major, interpretive debates about the Constitution, like how to read it. Do you read it according to what it meant, if you could figure that out to the people who wrote it? Or do you assume that the framers intended for the meaning to change over time? And if that's the case, how do we decide how to give those ambiguous words content? And who gives it content? Is it the court? Is it some political process? A lot of questions there. you know and one issue that's come up a lot recently and i shouldn't say recently it's all the time basically but it's it's struck home in various ways recently is freedom of speech because you see on all these college campuses you know people uh marching and saying you know free palestine from the river to the sea which the implication is as spelled out in the hamas charter is kill all the Jews between the river and the sea.

51:43So now does freedom of speech allow for calls of death or like where, where does freedom of speech really end? Cause you're not allowed to call for instance, for a death to the United States in freedom of speech. Like that's, I believe that's considered a crime. If you call for, if you actually incite people to commit crimes. Well, so, yeah, I mean, there's a there's specific rules about that, like incitement can be prohibited. So you can but incitement has to is a very is a term of art that basically the court decided in a case from the 60s said that that in order to be prosecuted for incitement, somebody has to sort of expressly call for the violation of the law in a circumstance where it is likely to immediately occur.

52:38Right. So that's that's why you have all this debate about, for example, Trump's January 6th speech. Is that was that an incitement or not an incitement? People have different views about that. Right. Because because it has to it has to have this immediacy for for for to to be prosecuted to be prosecutable. And the idea is to distinguish between kind of abstract, you know, declarations of ideology and an actual call to immediate lawbreaking. And between those two, there's, you know, there's a lot of unclear room. So – but at least so far, the court has been very – it's been very protective of free speech rights in that – through that incitement content.

53:24Now, there are other things that can get – that aren't protected by the First Amendment that could come into play like threats, like a true threat is not protected by the First Amendment. Like if I email someone and say, you know, I should just kill you, is that prosecutable? Um, maybe, uh, like if it's like, um, so there, it has to be, the government would have to prove that you, uh, I think it's sort of a combination that you really did want to, you know, kill somebody and that it was understood by the listener as being, as, as posing like a real, a reasonable fear that you're going to do it.

54:06Like it's sort of a combination of kind of an objective standard and a subjective standard, but like, um, but yeah, true threats against like Like the president, you know, there's a crime and it gets prosecuted from time to time. But those are rare. You know, it's an interesting thing, the Constitution, because on the one hand, it seems like it's constantly violated and no one cares. Like, for instance, in the Constitution, it seems like the president actually has very few powers, right? So the president, he has the ability to advise Congress on what laws they should pass. He has the ability to kind of hang out with ambassadors and ministers of foreign countries.

54:50He has the ability to make treaties. He's the commander-in-chief, but it's unclear what that means. Right. So like what actual laws or what actual power does the president constitutionally have as opposed to what he has now? Yeah, so that's definitely the case that the presidential power has increased over time and congressional acquiescence in presidential power basically is, you know, been part of the reason for that. And Congress has just not stepped up and done its job. For example, Congress hasn't declared war since World War Two. Right. So the president has the commander in chief power. The Congress has to declare war power.

55:29Those are supposed to be complementary, but Congress never declares war. And then the question is, does the president have the power to unilaterally start hostility somewhere? And part of the issue here is that the courts, the Supreme Court in particular, doesn't want to jump in on many of these disputes. Like when you have the president and Congress in a battle over foreign affairs power, the court will sometimes step in. But usually they're like, this is a political question. This is not something that the court should get involved with. But so you're right that the president has these enumerated powers in the Constitution, and they're fairly limited.

56:07Like if you compare the size of the Article 1, which gives Congress the power to the size of Article 2, which gives the president power, Article 1 is way longer and has a lot more stuff in there. On the other hand, though, this is an interesting difference in how the text reads between Article 1 and Article 2, which is in Article 1, it says the legislative powers here and granted are vested in the Congress. which indicates that it's just the powers that are listed in the Constitution that the Congress gets. Whereas the executive power in Article 2, it says the executive power is vested in a president.

56:43Right. It doesn't say the executive power is here granted. Rather, it says the executive power. And so the idea and this has been debated for 200 years is the executive power meant something in 1787 beyond just what's listed in the Constitution. And by not having the words here and granted in Article 2, the indication is that all that executive power, whatever it was, was given to the president. So it doesn't have to be necessarily everything spelled out in Article 2 for the president to have the power. That's what the presidents have always said. And, you know, it's a strong argument based on the difference between those two.

57:25So the courts have kind of read a lot of inferred or implied powers into what the president can do, like the power to exclusively do diplomacy, for example, is one of those powers. The power to remove executive officials. That's not in the Constitution, but the courts have said the president does have that power in most cases.

57:47So I agree that the presidents have taken more power over time. I think part of the fault is with Congress for not sort of pushing back. But there is a textual hook in the Constitution for whatever that's worth that would signal that the president has more powers than just what's listed in the document. OK, that explains a lot then about like what's the deal with executive orders? Like when a president makes an executive order, is that law? Yeah, yeah. So I think people have a misconception about what executive orders are. They're not just the president saying stuff. They have to be grounded in either a specific statute.

58:29And a lot of executive orders are just implementations of statute. One example is there's this statute that gives the president the power to create national monuments. It's called the Antiquities Act. So when the president makes national monuments, the president issues, it's actually not an executive order, it's a proclamation, but the difference is just form, not substance. And the president's just implementing the president's power under the statute. So it either has to be grounded in a specific statute or some presidential power granted by the Constitution, either one of those that are specifically enumerated or one that's inferred from the grant of the executive power to the president.

59:07And so when a president issues an executive order, tells the executive branch to consider small business considerations whenever making a rule, the president's just using their power to run the executive branch to tell the agencies under the president's control, you've got to do this. And I'm the head of the executive branch. I'm telling you you should do this. Now, once in a while, there will be a controversial executive order. Like a war, like sending troops to a war. Yeah, and sending troops to war, keeping them there, perhaps in the declaration of war. Those aren't probably done through executive order, but some sort of presidential action, right?

59:51And there's nothing special about an executive order other than it's called an executive order. It has a number. And so, yeah, so that, the president... But even in that situation, even in that situation where it's not entirely clear if the president has some power in the Constitution that they're acting under, in that case, the president will usually ask the Justice Department, the legal department in the Justice Department called Office of Legal Counsel, which is a place I worked many years ago, which makes actually issues, memoranda and decisions of law. that you, most of which are, well, many of which are publicly available on the, on the website that you can look at and read.

1:00:40Not all are, but in which the, which the Justice Department, you know, tries to explain why the president has this power. Of course, you know, they're biased, right? They work for the president. So they tend to be pro-presidential power documents, but they're not, They're not 100 percent pro-president. There is some division. At least there's a norm that there's a division between this Justice Department who opines on what powers the president has and the president, whose lawyer – close lawyer is the White House counsel, who's viewed as the personal kind of more – much more closely – not related, but a much closer counselor to the president than the Justice Department.

1:01:24Is this making sense? Yeah. So what I'm wondering is, like, let's take Afghanistan as a situation. Like, how did the Justice Department justify? Again, I'm not making a political opinion, whether it's right or wrong. I'm just curious, how did they justify not having Congress, not requiring Congress to issue a declaration of war against Afghanistan? We've fought a whole war there for like 20 years. Yeah, right. And there are many other examples also, right? And I mean, I think the – and there may be specific rationales that apply to Afghanistan but not Kosovo or whatever. But I mean, generally the idea is that if that the president has this sort of inherent power to protect the country through military, through the president's commander in chief power, and the declare war power is viewed by the executive branch as being a kind of a minor, like a legal action that has some domestic law implications.

1:02:26like certain things maybe don't kick in if Congress hasn't declared war or not. But the president has always taken the view, even up against the War Powers Resolution. So Congress has tried to limit the president's authority to stay in conflicts over time. And presidents have always viewed that as an infringement on the president's commander-in-chief power. So it's always based on a very broad understanding of the commander-in-chief power as a power to protect the country and promote national interest through military actions. Right. This is an area where Congress could could, you know, fight back because Congress does, in addition to have the power to declare war, also has the powers of the purse.

1:03:06Right. The money is appropriated by Congress. And so if Congress really wants, you know, to pick a fight with the president that and really, you know, take action, they could cut off the money for the military effort. Of course, that and I think Congress has threatened that on occasion and it's not politically, you know, you know, has political problems because you have troops already in the field. And so what does that cutting off of money mean for that, you know, for them? But my point is only that the president has taken a very strong interpretation of the commander in chief power. Congress could take action to kind of push back on that.

1:03:46But it really hasn't. the war powers resolution notwithstanding it really has kind of let the president president do what the president wants well you know all these issues of course revolve around my main worry which is civil war happening in the next few years yeah i mean i remember in 1989 i was 21 years old and tiemann square happened in china and i asked a friend of mine i was 21 i asked this friend of mine who was from China I'm like does this make you happy because oh this is a statement of freedom that maybe China is going to be free whatever I didn't know what that meant then and I still don't know but and he he said something very interesting he said no he doesn't like it because he has old parents in China and he basically likes the status quo because old people have a harder time with change and as I get older now I understand what he means like Me too.

1:04:42For good or for bad, I really don't want a civil war as exciting as it might sound. And, you know, so I get concerned about all of these constitutional questions that seem like it's really getting to this life or death point with all these issues going to the Supreme Court. So I appreciate you coming on to the show, you know, Jay Wexler, professor at Boston University, author, among other books, of The Odd Clauses, Understanding the Constitution Through Ten of Its Most Curious Provisions, and many other books that hopefully we'll talk about on future podcasts, including I want to read your book about Satanists.

1:05:18That sounds really interesting. What's the oddest clause for you in the Constitution? I love the Third Amendment, the quartering of troops. And it's just – it's a clause that's never come up. It came up once in one case once, which is actually how I start my constitutional law class with that one case. It's not even a Supreme Court case. It's just – it's something that was so important to the framers, right? I mean it wouldn't be there if it weren't. It wasn't, there's nothing. It's number three. It's pretty high up, right? Yeah. Right after freedom of speech and the right to bear arms, it's like, you cannot have soldiers force their way into your house and live there.

1:06:02Right. And like, it's worked really well, right? So some people think it's just silly. but the other view is that it's like so clear and that it's just, it's doing its work. It's doing, you know, the best work of any clause in the constitution because it's never, you know, really, it's never happened. Well, it has happened. I mean, I think it did happen during the Civil War but so that's kind of my favorite. You know, do you know the standup comedian Eric Andre? I don't think so. You probably, if you saw his face, you would recognize him. He had a show, The Eric Andre Show, and he's been in some movies, some TV shows.

1:06:39But anyway, I've seen his act in person, and his first bit is, what the hell is the Third Amendment about? And he goes all into the Third Amendment. So I don't know if that ever made it onto a Netflix special. It probably did. But if I find that clip, I'll send it to you. It's all about the Third Amendment. He says it's the weirdest thing in the Constitution. So he agrees with you. Oh, good, good, good. The Onion did a great piece on the Third Amendment, a classic piece about like the anti-cornering, the National Anti-Cornering Organization celebrates its 230th successful year or something. It's really great.

1:07:14That's funny. Well, Professor Wexler, thank you so much for coming on and answering my questions. I hope all of these situations get resolved peacefully. If not, please come on again and talk about them. And I really appreciate you coming on. Thank you. Thank you for having me on. I really appreciate that. Thank you. Thank you.

From the publisher

A Note from James: I'm confused. There are so many national and international issues being debated on constitutional grounds lately. For example, issues at the Texas border and federal versus state powers-like the case of friends versus the state of Colorado. Does a state have the right to decide who appears on the national presidential ballot?Regarding COVID-19, I'm wondering if it was constitutional to close down all the businesses. It might have been the right decision, but does it infringe on our right to life, liberty, and property without due process? I posed these questions to a renowned constitutional expert, the author of "The Odd Clauses," who is also a professor of constitutional law at Boston University, Jay Wexler. He provided insights into which recent events were constitutional and which may not have been. Here's what he had to say.Episode Description:James leads an enlightening conversation with Jay Wexler, a professor of constitutional law at Boston University and author of 'The Odd Clauses'. They explore topics ranging from state rights in decision-making, such as Texas' border policies and Colorado's stance on the national presidential ballot, to significant constitutional debates such as the power of the Supreme Court, the implications of COVID-19 business shutdowns, and the increasingly prominent discussions around freedom of speech and presidential powers. Wexler provides deep insights into each topic, shedding light on the constitutional underpinnings and contemporary interpretations that inform these critical national discussions. The discussion also touches on potential constitutional conflicts and the nuanced understanding required to navigate these issues, with particular emphasis on the importance of Constitution's adaptability over time and the ongoing debate between originalism versus evolutionary interpretation. Episode Summary:01:00 Introduction: The Constitution in the News01:46 Interview with Constitutional Expert Jay Wexler02:33 The Life of a Law Professor03:13 Challenges of Teaching in the Digital Age04:49 Constitutional Battles in Recent Years06:16 The Power of the Supreme Court07:00 The Intricacies of Marbury v. Madison08:34 The Role of the Supreme Court in the Executive Branch11:38 The Texas Border Issue and Constitutional Merit24:46 The Power of States in Deciding Presidential Candidates33:18 Understanding the Qualifications for Presidential Candidates36:06 Exploring the Impact of COVID-19 on Businesses and Constitutional Rights37:34 The Lochner Era and its Influence on Business Regulations40:20 Religious Rights and Restrictions during the COVID-19 Pandemic44:22 The Controversial Topic of State Secession51:31 The Intricacies of Freedom of Speech and its Boundaries54:51 The Power and Limitations of Presidential Executive Orders01:05:51 The Unusual Third Amendment and its Interpretation
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