The Al Franken Podcast

Dahlia Lithwick on Defending Our Constitution

42 min
Feb 8, 20262 months ago
Listen to Episode
Summary

Al Franken interviews constitutional law expert Dahlia Lithwick about threats to democracy under the Trump administration, focusing on ICE enforcement actions against immigrants, Supreme Court decisions undermining constitutional protections, and the need for civic engagement to protect elections and voting rights.

Insights
  • The Trump administration has shifted from family separation to keeping families together while intensifying detention and trauma, making public oversight harder while expanding detention capacity dramatically
  • Supreme Court immunity doctrines and removal of judicial warrant requirements have eliminated meaningful checks on federal agent conduct, enabling constitutional violations with legal impunity
  • Citizens are learning through direct action that democracy requires constant civic participation and protection, moving beyond abstract structural reform discussions to embodied community defense
  • The Supreme Court's selective protection of the Federal Reserve and tariff authority while dismantling voting rights and immigration protections suggests institutional self-interest drives judicial decisions
  • Election protection must become as urgent and organized as current immigration enforcement resistance, with voters preparing for potential polling place intimidation and data collection threats
Trends
Shift from legal/structural solutions to grassroots civic engagement as primary democracy defense mechanismExpansion of executive power through national security claims to justify election interference and ballot seizureSupreme Court prioritizing institutional and financial interests over constitutional protections for vulnerable populationsWeaponization of federal agencies (FBI, ICE, DHS) for political purposes with reduced accountability mechanismsCoordinated voter suppression strategy combining data collection, polling place intimidation, and election administration takeoverErosion of judicial warrant requirements replaced by administrative warrants signed by same agencies conducting searchesImmigration enforcement as tool for broader authoritarian control and intimidation of communitiesIncreased transparency restrictions on Supreme Court operations while demanding transparency from other institutions
People
Dahlia Lithwick
Constitutional law expert and Slate writer discussing threats to democracy, immigration enforcement, and Supreme Cour...
Al Franken
Podcast host interviewing Lithwick about constitutional issues and democratic protections
Stephen Miller
Trump administration official setting immigration enforcement targets and policy direction
Tulsi Gabbard
Director of National Intelligence involved in seizing ballots in Fulton County on national security claims
Mark Elias
Voting rights litigator discussing election interference and constitutional implications of ballot seizure
Kristen Clarence
Immigration lawyer who worked at Dilley detention facility discussing conditions and family trauma
Alex Freddie
Individual killed by federal agents; case illustrates immunity doctrine and constitutional violations
Liam Ramos
Five-year-old detained by ICE and sent to Texas facility, exemplifying immigration enforcement tactics
Brad Raffensperger
Georgia official Trump pressured to find votes in 2020 election
Chuck Schumer
Senate leader Trump attempted to negotiate with regarding infrastructure funding and airport naming
J.D. Vance
Vice President who claimed ICE has absolute immunity and refused to apologize for statements about Alex Freddie
Tim Scott
Republican senator who called Trump's racist imagery of Obamas 'most racist thing' from White House
Lisa Cook
Federal Reserve Board member Trump wants removed; Supreme Court appears to protect Fed independence
Pam Bondi
Trump administration official threatening voter data collection and election interference
Christy Noem
Trump administration official mentioned as part of enforcement apparatus
Mike Johnson
Speaker claiming 2020 election was stolen, supporting election interference narrative
Steve Bannon
Trump associate planning to send armed ICE agents to surround polling places
John Roberts
Chief Justice implementing non-disclosure agreements for Supreme Court clerks
Jody Cantor
New York Times reporter who broke story about Supreme Court clerk NDAs
Katyal
Legal expert arguing only Congress has constitutional authority over tariffs
Quotes
"It's really easy to break stuff, right? Like if you just don't care, if you don't care about the Constitution, if you're just willing to like kidnap five-year-olds and send them to Dilley or to send people to Seacott Prison when there's no information suggesting they're gang members, like that is easy. And I think that like building democracy is really freaking hard."
Dahlia Lithwick
"You can't just say, we're going to flip them in the midterms. Like they're going to try to steal the midterms. And it means that all of this amazing civic energy that people are embodying in Minnesota, right? Protecting their neighbors, protecting their communities, making sure that like they're taking care of each other, that has to be directed with equal force to protecting elections."
Dahlia Lithwick
"Elections don't run themselves. They're incredibly fragile. And don't forget like Pam Bondi's threat, right? To Tim walls, which was all this can be chilled out if you just give us all your voter data."
Dahlia Lithwick
"We're starting to learn with our bodies what democracy looks like. And it's really scary. And people are heroes for putting their bodies on the streets. We are going to have to learn with our bodies what voting looks like and what protecting the vote looks like."
Dahlia Lithwick
"Constitutional questions, searches and seizures, freedom for people is much less urgent to them than their stock portfolios. There's almost no other way to look at this other than this hits them in the wallet."
Dahlia Lithwick
Full Transcript
I know that you want to listen to your podcast, so I will keep it short. Because if you think it's important to make a duurzame keuze, can ASR maybe help? Well, I think, how then? Well, for example, when you're doing something to do with the things you love to do with Schade. Will you know more about the instructions where a duurzaam schade-restal can be? Go to asr.nl slash duurzamekeuzes. This does ASR for you and a duurzame samenleving. ASR does it. So, then you can now listen to your podcast. Starting a business can be overwhelming. You're juggling multiple roles, designer, marketer, logistics manager, all while bringing your vision to life. Shopify helps millions of business sell online. Build fast with templates and AI descriptions and photos, inventory and shipping. Sign up for your one euro per month trial and start selling today at shopify.nl. That's shopify.nl. It's time to see what you can accomplish with Shopify by your side. Hey, everybody, we've got a great one today, you know, for a change, because the great Donnie Lithwick is back with us. It's been a while, and we have some catching up to do. But first, just an observation about what a weird run of odd shit that Trump has been into lately. The Kennedy Center, I mean the Donald J. Trump and the John F. Kennedy Center for the Performing Arts, which almost no one has been going to, partly because so many of the artists have been canceling. So Trump announced that he will soon be closing down the Trump Kennedy Center for two years to renovate the place. This follows a 2019 $250 million expansion. But now that it's the Trump-Kennedy Center, I'm sure it will get a fantastic makeover. And there's a 250-foot-high triumphal arch that Trump wants to build that's nearly 100 feet taller than the Arc to Triumph in Paris. And he sent Tulsi Gabbard and the FBI to Fulton County to seize the 2020 ballots and find the 11,780 votes that Brad Raffensperger wouldn't find for him. And he's talking about nationalizing the midterm elections. And there's Trump's $10 billion lawsuit against the Treasury Department and the IRS for the leak of his tax returns during the first term. Trump claims the leak caused reputational and financial harm, public embarrassment, and tarnished his business reputation. He does say he will give his $10 billion to charity. But do you trust him with our $10 billion? I don't know. And yesterday it came out that Trump told Chuck Schumer that he would drop his freeze on $16 billion in funding for a railroad tunnel between New York and New Jersey if Schumer would see to it that Penn Station in New York and Dulles International Airport in Washington were named for him, named after him, Trump Station and Trump International Airport. Now, according to two people familiar with the conversation, Schumer told Trump that he doesn't have the power to do that to rename Penn Station and Dulles after Trump. And then on Friday, we woke up to a video that Trump shared on untruth social depicting Barack and Michelle Obama as apes. South Carolina Senator Tim Scott, the only Republican black senator, said it was the most racist thing I've seen out of this White House. I'd really like to ask Tim Scott what the second most racist thing he's seen out of this White House. Meanwhile, Americans are living with the trauma from what we are all witnessing in Minnesota. I'm recording this on Friday, so before Trump's Super Bowl interview airs, but he's already taped it. And evidently, he decided not to attack Renee Good and Alex Preddy again. J.D. Vance, however, was asked by the Daily Mail if he would apologize to Alex Preddy's family. Have you apologized? Did you plan to apologize to the family of Alex Preddy? For what? For, you know, labeling him in a session with ill intent. Well, again, I just described to you what I said about Alex Petty, which is that he's a guy who showed up with ill intent to an ICE protest. No, but if it is determined that his civil rights were violated by this FBI investigation, will you apologize? So if this hypothetical leads to that hypothetical leads to another hypothetical, will I do a thing? Wow, it is so ugly. And now to Dahlia Lithwick. It's a great one. you know for a change hey dahlia hey i'm glad to have you back on it's been it's been a while uh i've been reading a lot of your stuff listening to the podcast amicus i'd like to start off with what's going on in minnesota you did a recent episode uh about the five-year-old boy uh liam ramos who was uh picked up by ICE at school and then brought to his home and to bait. I guess they're trying to bait his mom, but they got, they later got his dad and they sent him and his dad, this five-year-old boy to Texas to an immigrant detention facility in the middle of nowhere. Was this Dilley, Texas? Dilley, yep. Dilley. They, as a family, had come from Ecuador in 2024 and applied for asylum. when they got in the country. And so they routinely arrest people who are in the asylum process. Right. And people who not only have done everything according to, you know, the protocols that they were supposed to be following, but then they grab them when they show up for a court appearance. You know what I mean? So they're not just doing it right, but then they grab them when they're continuing to try to do it right. Right. So there was a lot of public outrage about uh, Liam and his dad and they finally returned to Minnesota, like after being there, uh, 10 or 12 days. And, but there are still a lot of kids in that facility. Uh, and on your podcast, you interviewed, uh, Kristen Clarence, who is a longtime immigration lawyer who works a lot with kids. And she had actually worked at this same facility in, in Texas. And, um, you had her on show in Trump's first term. I did, doing the same thing. She was part of a bunch of folks who were at that point doing family separation. Yeah, well, that's when they separated the kids and the family, which people didn't like. Right. The Americans didn't like that. So Trump learned from his first term. And now in the second, they're not separating the families, but they're doubling down on the cruelty and trauma that they inflict without the public witnessing it so much. What have been the ripple effects on these communities, on these families? I mean, Kristen was, you know, broke my heart when she talked about, you know, and we're just hearing reporting all over. I mean, you were in Minnesota, so you've seen it too. But, you know, kids who are afraid to leave the home, right? Kids who can't go to doctor's appointments, families that are having to have food delivered. Oh, yeah. That's what a lot of my friends are doing folks in minnesota it's it's amazing how people in minnesota stepped up and you've written about that they've been amazing i mean i think that the thing that kristin really like painted a picture of to me was what that facility in dilly texas looked like how like a prison basically how those kids were being held uh what the conditions were she talked a little about something that became a story in the week after I talked to her, Al, which is that they're using converted like Walmarts and, you know, like using facilities, empty, you know, huge shopping centers. And they're expanding these because their goals are what, a million a year? How many a year? I mean, Stephen Miller, I think, just sets these arbitrary numbers and, you know, you just have to, you have to do it. And, you know, one other thing just worth flagging on this, Al, is, you know, a big legal story this week was the lawyer who essentially told a judge in Minnesota, she's like, oh my God, just like find me in contempt. I can't do this work anymore. You know, she's been trying to do all these cases and she just can't. And she accidentally said the quiet part out loud and they've now removed her from her office. It was really interesting the back and forth that she had with the judge where the judge was like, is the current policy to just like seize people and detain them and then think about their constitutional right? Like you've got the order wrong. Like you can't just, you know, warehouse people and then ask about rights violations. And I think the Liam Ramos story, and that was the little boy in the blue floppy eared hat that you're describing. I think that was a case where, you know, and they've been sent back now from Texas, but I think it was a case that made it really material and really visual for people that they could take this tiny child, use him as bait, take him and his dad, throw him on a plane before any legal proceeding could happen, stick them in detention. They were lucky they got out. They had members of Congress like showing up to fight for them. But there's lots and lots of Liam Ramos's. Yeah. One of your recent pieces for Slate, how the Supreme Court made Alex Freddie's killing more likely. What did you mean by that? Well, I mean, I think there's a couple of layers of that, but one of them was certainly, you know, the stuff you and I talk about all the time, which is the minute the Supreme Court gave Donald Trump virtually blanket immunity to do whatever he wants to do, at the simplest level, every single person who says they are following his orders now can count on a pardon right Now can count on I mean this is a president who can It doesn matter if an act is unlawful because the president can as he did with the January 6 insurrectionists pardon them all But I think in that piece we were also really talking very specifically about a long And this was just a guest on my show, Alex Reiner, who was talking about the long, long history of immunity for federal officers and that, you know, the Supreme Court has been chipping away, chipping away and chipping away at doctrines that once would allow you to bring an officer into into a court and question the legality, the constitutionality of his actions. And the Supreme Court has just been out like a juggernaut in terms of making it almost impossible for folks to be held accountable. I remember during George Floyd, that was a big deal. Right. I mean, there is a long standing effort to say, and I think you're right, it reached a real peak after after George Floyd was killed. You cannot say that officers are immune from every single thing that they do by having a doctrine that says, oh, you know, they thought what they were doing was lawful or there isn't a case exactly like this. So they didn't know it was unlawful. And that is all a function of Supreme Court doctrine. Yeah, I remember that after Renee Good's murder, the vice president said that the ICE and border security people had absolute immunity. Right. Which there is no such thing, right? There's no such thing. He walked it back for what it's worth. Like it was such an outrageous legal statement that he sort of, you know, Vice President Vance sort of walked it back. But I think as a as a piece of signaling, Al, it's really, really important. Right. It's the same as the president now claiming he has complete plenary authority over elections administration. Right. They're now saying they're going to just like take over the midterms. OK, that that that can't happen. Right. I mean, again, like you're asking me lawyer questions and they're asserting power questions. I mean, of course, the president has no authority over federal elections. What do you think of Fulton County? Just that I mean, that is amazing. It's a horror show. This, of course, just for my listener, is he sent the FBI down to look at the ballots that were cast in Fulton County. sees the bow, not to look at them. And I think that's a stupid thing for him to do, because either way, I mean, what are they? First of all, are they going to come up with a conclusion that actually it was fixed? Well, no one will believe that. Or they can come up with they can actually do an honest thing and say it's exactly what it was. So I think he loses either way, really. So I will say this. I just finished taping as you and I are taping. I finished taping my show, for this weekend with Mark Elias, the voting rights litigator. And he said something that kind of sent a chill up my spine, which is if this was just kind of performative sour grapes, like, no, really, I won Fulton County. I'm seizing the ballots to prove it. You're exactly right. It's just dumb theater. But I think that we have to really understand that Tulsi Gabbard was there, Right. The DNI was there. Right. Right. She was there because there is some weird, inchoate, foggy claim that this was what a national security problem, that this was an international election interference problem. And Mark's point, not to put too fine a point on it, but I think he's right. That's an escalation, right? You are now claiming that the president can interfere, seize ballots anywhere he wants, as long as he has some not even credible claim that there's election interference going on. And that's what's different here. It's not just I sent in the FBI to gather up boxes of ballots. You're right. That's just childish and petulant. But the idea that he is and again, I'm just quoting Mark Elias here who litigates these cases. he is kind of putting down markers, right? This is, Mark called it proof of concept, that he can go into election polling places and say, oh, I'm sending, you know, Tulsi Gabbard in because I am just claiming and asserting that I have the power to say that there was international interference or there was the election interference. Yeah, it was Italian satellites, I remember. Right. No, I mean, that's scary. And also just one other like parenthetical there. He has huge power if he can claim that there is right an intelligence emergency or foreign tampering. And so this is an area where the courts tend to be very, very hands off. And so I think it's not just like the performance of like, oh, she's there on the truck with the ballots. I think it's a way of saying I am going to assert that there is like, you know, an intelligence crisis in the midterms and I'm going to send in the FBI to seize ballots. That's scary, scary stuff. Oh, boy. Sorry. We're going to take a quick break. We'll be right back with Dahlia Lithuanian. A well-built wardrobe is about pieces that work together and hold up over time. That's what Quince does best. Premium materials, thoughtful design, and everyday staples that feel easy to wear and easy to rely on even as the weather shifts. Think organic cotton sweaters, polos for every occasion, lighter jackets that keep you warm in the changing seasons. Quince brings together premium materials, thoughtful design, and enduring quality. So you stay warm, look sharp, and feel your best all season long. 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So, we can listen to your podcast now. Sign up for your one euro per month trial and start selling today at Shopify.nl. That's Shopify.nl. It's time to see what you can accomplish with Shopify by your side. And we're back with Dahlia Lithwick. Where does it stand with the two agents who shot and killed Alex Freddie? It seems like it took quite a while for the Justice Department to even start an investigation. Do you know where it stands in terms of who makes a decision on whether to charge and prosecute them? Who would do that? In Minnesota, in Hennepin County, Minneapolis, and the state of Minnesota want to do. Yes. Yes. Want to prosecute or at least look into prosecuting in. Yes. Pretty and good. And both were turned away to try to look at what happened at the site of the of the of the murders. That's exactly right. The federal agents so contaminated the crime scene and then locked them out of it that there had to be, you know, further action to even determine whether they had jurisdiction to investigate. But I think you're right. I think that there is a meaningful reason to believe that state officials will do an investigation. But, yeah, I don't think we're going to get any kind of federal accountability. And no cooperation. from definitely not right uh well i hope i think they they can they can still do it either hennepin county or or the state i get into what federal agents uh can and can't do i said they can go into they used to be able you have to have a judicial warrant right to go into somebody's house we were talking about but now they're saying an administrative warrant is what they need what's the distinction there? One is signed by a judge and one is signed by your own agency. So there's no check, right? It's essentially like the people that you work for who you are responsible to can sign an administrative warrant. So the purpose of a judicial warrant, at least in theory, is you have this other branch of government that isn't beholden to the prerogatives of your agency that acts as a check. So that's gone. Now, we certainly are seeing huge pushback to that. And again you probably seeing all over Minnesota people are like I just not responding to an administrative warrant But they literally claiming now we hearing members of the Trump administration claiming like we don want to go to judges neutral arbitrators of facts. That's just ridiculous. We just want like the same agency that the agents work for should be able to sign off. So there's a huge difference in terms of acting as a meaningful check. And I think we're now going to end up in a lot of litigation about whether one is sufficient. It's certainly not legally sufficient. But as I note, you keep asking me legal questions. And this is about, you know, we're in the world of power. Make me. Yep. You recently wrote a piece in Slate called Minnesotans showed us what it looked like to protect the Constitution. And I wholeheartedly agree. I saw it, of course, firsthand that Minnesotans have stepped up to protect themselves and their neighbors. And as you said, people are doing amazing things for people who can't leave their homes or won't leave their homes, including donating money. So by now, people can't pay their rent. But you say when people say, what can I do? You used to answer with very lawyerly and focused on reforms and stuff like that. But it sounds like you've changed in what you're saying people should do. I can remember having conversations with you over years about, well, you know, we have to pack the court. We have to do, you know, gerrymandering reform, right? We have to enforce the Voting Rights Act. We're going to have to figure out about the Malaportion Senate. All these things that probably had like three listeners, right? Because these are structural solutions to structural problems. And I still believe, and I know you still believe, we need structural fixes. But I think one of the things that people kept saying to me for years and years is nobody cares about democracy. Nobody cares about democracy. It's the water we swim in. We don't know anything else. And so like telling people that they have to fix the Malaportion Senate or do away with the Electoral College is just like you're like Charlie Brown's mom, like wah, wah, wah, wah. Nobody cares. And so I think one of the things that I saw shift, and again, you can describe it better than me. You've been on the ground there, is that people really understand in a deep way on the ground in Minnesota that they are protecting democracy and that they are protecting, as I suggested, the First Amendment, and yes, after Alex Preddy, the Second Amendment, and the Fourth Amendment, and the Eighth Amendment, and the Tenth Amendment, and the Fourteenth. And it's really incredible to see that kind of metabolized into the protests, and that this abstraction that for so many years as a journalist, and I know you as well, this abstraction of like democracy is so flawed, and it can be exploited and it has been exploited, but we need to fix it has just like on a dime turned into like, oh, democracy is the thing that's going to save us. And it's going to require not necessarily structural Senate reform, but like people's bodies on the streets. And that worked to some extent. I mean, we'll see to what extent in terms of, you know, I guess there, how many, about a third of the ICE and Border Patrol people are leaving Minnesota now? And Bovino has left. But I think people are skeptical about whether things are actually going to change. Well, let me ask you this. I mean, I think one of the lessons I've learned in the last year of this administration is it's really easy to break stuff, right? Like if you just don't care, if you don't care about the Constitution, if you're just willing to like kidnap five-year-olds and send them to Dilley or to send people to Seacott Prison when there's no information suggesting they're gang members, like that is easy. And I think that like building democracy is really freaking hard. And so I think the thing we're sort of in a foot race against ourselves here because like they can blow stuff up probably faster than we can build it up. But I do think people freaking hate this. Right. Yep. Now there's some new regulations for DHS agents, body cams, for example. That's good. Right. I mean, that's, I guess. But was this going to make any difference in the administration? I mean, you still have Stephen Miller. Feels like he's running the show. Yeah. I mean, which is the answer to your, you know, having Bovino out, right? Like, I think you get the cosplay guy out, but Miller's still there. So the answer to all these questions is, yes, body cams are better than no body cams. Although with the caveat that officers control the angles, they know how to turn it on and turn it on. Right. It's not like fail safe. And we have certainly learned after Renee Good and Alex Preddy, that video has been deployed by this administration, including like altered. Right. Well, that's amazing what they've done in that regard. Yeah. Use AI to the woman who was at the church with the church. lemon. So I think we have to be like skeptical, but also grateful for anything we can get. And I also really think this makes your point about having people out there on the streets with their own phones filming, right? Because this really is a moment where like citizen journalism and civic duty says that the only thing better than body cams for everybody is a hundred people with whistles who are filming this and that's what has made the difference and so i'm for more accountability and i also think that's not enough and as to the bigger question about what makes stephen miller go away and what makes pam bondy go away and what makes christy noem go away i mean elections flipping a flipping a seat in texas that nobody expected to see flipped this week That's what's going to do it. SCOTUS has been up a lot since the last time we talked. They've been pretty consistent in covering for Trump. Has anything that doesn't surprise you that's good? Not much yet. I think that this week they decided to leave in place California's tit for tat, you know, when Texas decided. I think they had to do that, considering how bogus the decision was in Texas. Right. Now, this is goose for the gander. Like this is if we have to allow, you know, partisan gerrymandering, then we have to allow it. And so you're right. They had no choice. It looks like I mean, again, it was a shadow docket, you know, one sentence. We talked about the shadow docket last time I was here. I have no idea what that case means, but that was a nice surprise. And then I think the other thing you're absolutely right. Time after time after time for the last year, the Supreme Court has heavily put a thumb on the scale for Donald Trump. And then in the last couple of weeks, we've started seeing like in oral arguments about replacing, you know, folks on the Fed, which seems to be a bridge too far for the court. They're not going to go for that, right? Yeah. It looks like they're going to balk on that. We're talking about Lisa Cook, a member of the Federal Reserve Board, who Trump wants to get rid of because he's accused her of mortgage fraud. It's always housing fraud and it's completely bogus. And it appeared that the justices, mindful probably of their own pocketbooks more than anything else, have sort of drawn the line around the Fed and said that Trump can certainly summarily fire anyone he wants from independent agencies, but not the Fed. And it looks like the court will show up on the side of Lisa Cook for that one. And I think also we don't know what's happening with the tariffs case. But again, a pretty skeptical response from the court to Donald Trump. Yeah. What is going on with that? Because I thought Katyal basically nailed it, that only Congress can do tariffs, right? Yeah. And that's in the Constitution. Yes. And that AIPA, which is the statute that Trump is claiming as his authority to do this, is just like a preposterous lift. Now, meantime, we wait every day for that decision to come down, and it still hasn't come down. And every day that the tariffs are in place is another mini disaster, particularly for the small businesses that can't absorb this, who are some of the plaintiffs in this case. So I don't know. It seemed like an easy case and it should have come down by now. And every day that it doesn't is not great. But I think that's a place where what I saw from the Roberts court was not the wholehearted, like, we love you, Donald Trump. Hold me tighter. It seems to be some healthy skepticism late in the game. It is really going to be interesting that the Supreme Court in the last couple of months has blessed Kavanaugh stops, right? Like stopping people based on the suspicion that based on their language or race, they're in the country illegally. That has caused all the misery that we are seeing now. That was an amazing thing. Amazing thing. You know, slashing, slashing all sorts of funding to all sorts of entities. Supreme Court has blessed every piece of that. And the thing where they draw the line, as we have just suggested, is the Fed and tariffs. And it certainly hints to me, Al, that constitutional questions, searches and seizures, freedom for people is much less urgent to them than their stock portfolios. There's almost no other way to look at this other than this hits them in the wallet. Depressing, but. And now they agreed to take up birthright citizenship. Oh, boy. Yep. Now, they wait a minute. They can't. They can't. I mean, do you really want to say they can't? Well, yeah, I would say they can't. This is a constitutional amendment. This is this is any sane, plausible reading of the text in history of birthright citizenship holds that the words mean exactly what they say. they mean they were drafted to mean precisely this they have never ever ever um been been deemed otherwise and this is the kind of like bonkers hail mary uh that should be you know an easy easy out the door and you gonna tune in for the oral arguments Yes April 1st oral arguments Oh really OK I will, of course, April Fool's Day. I think, again, because we had the trial run of this right last year when the first round of the birthright citizenship came to the court and it was limited to the jurisdiction. Remember of judges, whether judges could do nationwide injunctions. Right. Right. And they could do it with class action. Right. So the court left open a door to seek relief, although a small one. Now we're on the merits. Now we're not talking about judicial powers. Now we're talking about what the Constitution says. My guess is from oral arguments last year, you are not going to get five justices to say that the Constitution doesn't mean what the Constitution says it means. I don't think they're that cynical. But, you know, I remember telling you that they weren't going to give Donald Trump immunity. So I don't know. I understand that you want to listen to your podcast, so I'll keep it short. Because if you think it's important to make a cost-effective choices, can Acer maybe help? I hear you think, how then? For example, when you're selling a cost-effective equipment that you love are at risk. Will you know more about the insurance where a cost-effective cost-effective is? Go to acer.nl slash duurzamekeuzes. This is Acer for you and a cost-effective society. Acer does it. So, now you can listen to your podcast. designer, marketer, logistics manager, all while bringing your vision to life. Shopify helps millions of business sell online. Build fast with templates and AI descriptions and photos, inventory and shipping. Sign up for your one euro per month trial and start selling today at Shopify.nl. That's Shopify.nl. It's time to see what you can accomplish with Shopify by your side. oh uh how about our uh this this we talked about this before which is louisiana versus clay we're still waiting on that that's the what's left of of the voting rights act is on the chopping block and right this was the crown jewel of uh voter protection and when the supreme court in Shelby County. Remember, they said, well, you can't use this anymore, but you can use this other section. This is a Title II of the Voting Rights Act, which creates race-based districts or minority-majority districts to ensure that fair representation for minorities in states like Louisiana and Alabama. Yes. Even in this case, Louisiana drew the districts reluctantly because the court said they had to. And then the Justice Department switched sides and said, we're not defending them anymore once the Trump Justice Department came in. And so we're still waiting to hear what's going to happen there. Although I think that it is fairly clear that the court is going to side against the voting rights groups and the civil rights groups that are defending the idea that you can have districts that enable and effectuate minority voting in a state. But I will say this is of a piece with this larger, right, attacks on affirmative action, on voting rights, anything that, and in fact, birthright citizenship in the 14th Amendment, anything that was designed in order to ameliorate and mitigate, you know, the burden of enslaved people after Reconstruction has been reverse engineered into this is racism against white people. Okay, now the Supreme Court seems to be now caring about secrecy, it seems, in the court. It seems that Chief Roberts had the clerks at the Supreme Court sign non-disclosure agreements a while back that are legally binding, right? This was an amazing piece of reporting by Jody Cantor at The New York Times, who found out that in 2024, John Roberts had every law clerk sign an NDA. This was after Dobbs. It was after the Dobbs leak. And it was after clerks had spoken to Jody Cantor and Adam Liptak and had leaked a bunch of information about how very, very, very confidential decision-making was happening in the court. And so suddenly the crisis at the court was, the clerks are talking. And it's so crazy in the context of this is a court that rejects transparency for itself, right? Like you and I have talked for years about stock disclosures. They recuse or they don't recuse. They don't tell us why. They decide things on the shadow docket without reasoning. Like there is no transparency. Or vacations paid for. Right. Vacations paid for, you know, conflicts of interest. It's all a huge secret. This is all stuff that those of us who think about the court have been imploring them to reform for years, right? Like just show us your work. Tell us who's paying you. We just need to know that so we could have confidence in the institution. And the crisis they choose to solve instead is that clerks are talking to journalists. And in the most charitable construction of the story, justices need confidentiality in order to trust each other, right? They need to know that stuff isn't going to leak. And there was an informal set of norms after the book, The Brethren was written, right? Just all the justices dished about Justice Berger and blah, blah, blah. And after that, there was a pretty rock solid norm at the court that clerks didn't talk to the press. And they all knew that they all wanted to get their half million dollar signing bonus at fancy DC law firms. Nobody talked to the press for years. And then, as you say, we had the Dobbs leak and suddenly clerks were just talking to reporters. And so this is the, that they've decided to like put their finger in this particular pie of like keeping the clerks from talking as opposed to the 10 billion other things they could do to foster public trust. Feels to me like it's like sweeping back the sea. The clerks are not the problem. The problem is the justices. But if this is what they want to do, OK. Well, Robert says he views the court as a family. right so i'm sorry yes yeah so maybe that uh a dysfunctional family so is there anything we haven't covered um two things if i may one is where you started which is minnesota and people on the streets in much the same way the no kings rallies are people on the streets like embodying constitutional values and really fighting for democracy as you and I understand it. And I just want to link that together with the stories we're hearing this week, Al, which are bone chilling about Steve Bannon saying they're going to send armed ICE people to to surround polling places. And Donald Trump saying they're going to nationalize elections, whatever the hell that means. And, you know, Mike Johnson claiming that the 2020 election was stolen. Like, I just think people need to kind of lash together these two ideas that you can't just say, we're going to flip them in the midterms. Like they're going to try to steal the midterms. And it means that all of this amazing civic energy that people are embodying in Minnesota, right? Protecting their neighbors, protecting their communities, making sure that like they're taking care of each other, that has to be directed with equal force to protecting elections. Elections don't run themselves. They're incredibly fragile. And don't forget like Pam Bondi's threat, right? To Tim walls, which was all this can be chilled out if you just give us all your voter data. So everything is going to be a pretext to screw around with these elections. And I think that the thing, it's the question you asked me at the beginning, Alan, it's so important, which is we're starting to learn with our bodies what democracy looks like. And it's really scary. And people are heroes for putting their bodies on the streets. we are going to have to learn with our bodies what voting looks like and what protecting the vote looks like. And it really does mean when they say we're going to put ICE agents at the polling places, when they say we're collecting your social security number and your names and we're, you know, all the voter rolls in all these states and we're going to go after you, like the impulse is going to be to go small, right? Maybe I won't vote. This is too scary. And I think that the same energy that is being directed to like, you can't do that to my neighbors. You can't do that to kids in my kids' school. You can't do that to people who are here lawfully, who are waiting for immigration proceedings. That energy now has to go to, if I can vote by mail, I'll vote by mail. If I can vote early, I vote early. If I can have seven people go with me to the polls and make a plan, I'm going to do that. If I can be a poll observer or a poll watcher or somebody who helps other people. But like this has to be a thing we think about now, not in November. But like that same civic energy, which says democracy doesn't just happen. It's really, really fragile. I have to like take my whole body and throw it up against the machine. That's the thing that I think I'm really starting to see right now, which is you can't just shrug and say, we'll handle this in the midterms. We have to make it happen with the same energy that we are fighting against ICE and the Kennedy Center and measles and all the other crap that's going on. Well, thank you, Dahlia. Thank you, Elle. Well, I hope you enjoyed listening. That beautiful music is by Leo Kotke, the great Leo Kotke. I want to thank Peter Ogburn for producing this podcast. We'll talk again next week. inventory and shipping. Sign up for your 1 euro per month trial and start selling today at shopify.nl. That's shopify.nl. It's time to see what you can accomplish with Shopify by your side.