Ep 209 — Gorsuch, Gummies, and Government Lies About Iran
70 min
•Mar 2, 20263 months agoSummary
This episode covers the Trump administration's illegal war on Iran without congressional authorization, the constitutional violations in immigration detention practices, and how federal district court judges are pushing back against executive overreach. The hosts discuss the War Powers Resolution as a potential congressional remedy and highlight judicial victories protecting immigrants and refugees.
Insights
- Federal district court judges are becoming the primary check on executive power as Congress remains dysfunctional and the Supreme Court has abandoned meaningful oversight
- The Trump administration is systematically misinterpreting immigration statutes (8 USC 1225 and 1159A) to justify indefinite detention, forcing judges to repeatedly rule on identical cases
- The War Powers Resolution provides Congress with procedural tools to stop unauthorized military action without requiring a presidential veto, but requires bipartisan cooperation
- State-level constitutional protections are emerging as more reliable than federal constitutional guarantees, as demonstrated by Kansas pursuing trans rights protections in state court
- The administration's Iran war justification has shifted multiple times within 24 hours, indicating the legal theory is post-hoc rationalization rather than genuine constitutional analysis
Trends
Judicial contempt as enforcement mechanism: Federal judges signaling they will hold DHS and DOJ officials in contempt for repeated constitutional violationsState constitutionalism as refuge: Red and blue states increasingly interpreting state constitutional provisions independently from federal Supreme Court precedentImmigration detention as torture strategy: Administration deliberately making detention conditions miserable to coerce voluntary deportation agreementsStatutory misinterpretation as policy tool: Executive branch systematically reinterpreting decades-old statutes to expand detention authority without legislative changeBipartisan judicial defense: Republican-appointed judges (Gorsuch, Jones, Goodwin) joining Democratic appointees to block executive overreachCongressional procedural workarounds: War Powers Resolution's concurrent resolution mechanism bypasses presidential veto as check on unauthorized military actionTargeted intimidation of judiciary: Coordinated attacks on federal judges including death threats, swatting, and harassment to delegitimize court ordersRefugee policy reversal: Administration abandoning 46 years of refugee admission practice through aggressive reinterpretation of 1980 Refugee Act
Topics
War Powers Resolution and Congressional War AuthorityImmigration Detention and Due Process RightsRefugee Admissions and Statutory InterpretationFederal Judicial Independence and Contempt PowersSection 287G Agreements and State Law EnforcementBirthright Citizenship and Constitutional RightsIran Military Action and Executive War PowersTariff Refunds and Court of International TradeTrans Rights and State Constitutional ProtectionJudicial Intimidation and Rule of LawQualified Immunity and State Official LiabilityConcurrent Resolutions and Legislative ProcedureHabeas Corpus Petitions and Immigration CourtsStatutory Misinterpretation and Agency PracticeSeparation of Powers and Constitutional Constraints
Companies
Paul Weiss
Law firm that settled with Trump administration, agreeing to drop DEI policies and commit $40M in conservative pro bo...
Jenner & Block
Law firm that sued to block Trump executive orders targeting firms refusing to abandon DEI policies; won at trial court
Wilmer Hale
Law firm that sued to block Trump executive orders targeting firms refusing to abandon DEI policies; won at trial court
Perkins Coie
Law firm that sued to block Trump executive orders targeting firms refusing to abandon DEI policies; won at trial court
Susman Godfrey
Law firm that sued to block Trump executive orders targeting firms refusing to abandon DEI policies; won at trial court
Kirkland & Ellis
Law firm that settled with Trump administration on DEI policies and committed to $100M in conservative pro bono work
Latham & Watkins
Law firm that settled with Trump administration on DEI policies and committed to $100M in conservative pro bono work
Skadden Arps
Law firm that settled with Trump administration on DEI policies and committed to $100M in conservative pro bono work
Binance
Crypto exchange where Emirates obtained stake through Trump family crypto token sale, facilitating chip technology ac...
Affinity Partners
Jared Kushner's investment firm that received $2B from Saudi Arabia's sovereign wealth fund
People
Donald Trump
President who initiated unauthorized military action against Iran and is systematically attacking federal judiciary
Brad Carp
Former Paul Weiss managing partner who negotiated first law firm DEI settlement with Trump; later appeared in Epstein...
Neil Gorsuch
Supreme Court Justice who questioned government's drug user gun ban theory using founding-era alcohol consumption exa...
Marco Rubio
Secretary of State who admitted Iran is not currently enriching uranium, undermining nuclear threat justification
Ayatollah Ali Khamenei
Iranian Supreme Leader killed in Trump administration's military strikes on Iran
John Goodwin
83-year-old Clinton appointee judge in West Virginia issuing contempt notices against DHS for repeated constitutional...
John Tonheim
Minnesota federal judge granting class certification and preliminary injunction blocking refugee detention under Oper...
John Jones
George W. Bush appointee who presided over Dover intelligent design case; warns of unprecedented judicial intimidation
Esther Salas
Federal judge whose son was murdered by defendant; now receives death threats and harassment for immigration rulings
John Koonauer
Reagan appointee judge in Western District of Washington who ruled against Trump on birthright citizenship; faces dea...
Todd Blanche
Deputy Attorney General attacking federal judges as 'activist' and describing judicial oversight as 'a war'
Stephen Miller
Trump advisor driving aggressive immigration detention policies targeting refugees and asylum seekers
Jared Kushner
Trump family member whose Affinity Partners received $2B from Saudi Arabia; involved in UAE chip technology deals
Steven Whitkopf
Trump Middle East advisor who received billions from Saudi government; lobbied for Iran military action
Mohammed bin Salman
Saudi Crown Prince who made multiple private calls to Trump lobbying for military action against Iran
Theresa Riley
Chief Immigration Judge instructing immigration judges to treat DHS's illegal interpretation of 1225 as binding
Abraham Lincoln
Historical example of president responding to attack without prior congressional declaration; later ratified by Congress
Brendan Carr
Trump FCC official whose endorsements in Democratic primary raised concerns about political interference
CZ Changpeng Zhao
Binance founder who pled guilty to money laundering under Biden; received Trump pardon allowing return to operations
Quotes
"The Constitution is a judge's north star. If nobody's gonna make that decision, nobody's gonna enforce the Constitution. It becomes like the Constitution of Russia."
Judge John Koonauer
"I have never encountered the hostility toward the judiciary that has existed in this country in the last year. And I don't think it's because we're making bad decisions."
Judge John Goodwin
"The government's startling theory that the statute silently grants DHS the power to seize a refugee the moment the clock strikes midnight on the 366th day after admission is wrong."
Judge John Tonheim
"If Iran was an urgent nuclear threat, you would hit the nuclear facilities first, as opposed to like hospitals and schools."
Andrew Torres
"Congress or hostile foreign power gets to decide whether or not to initiate war. Presidents then get to choose how to fight them."
Liz Dye
Full Transcript
Ready to launch your business? Get started with the commerce platform made for entrepreneurs. Shopify, especially designed to help you start, run, and grow your business with easy customizable themes that let you build your brand, marketing tools that get your products out there. Integrated shipping solutions that actually save you time, from startups to scale-ups, online, in-person, and on-the-go. Shopify is made for entrepreneurs like you. Sign up for your $1 a month trial at Shopify.com slash setup. He's a re-hearing or re-ajudication of the case possible. President Donald J. Trump. I did. There's a super supreme court now that she's been participating in secret. And yeah, we would have used it longer. I can't. I can't. I can't. Not on a Monday. I mean, that's fair. Welcome to Lawton, chaos, where we're making wars great again by gutting the Constitution. Judges are getting ready to hold the Trump administration in contempt. And Justice Gorsuch is hitting the gummies. We've got a lot to cover, so let's get after it. Hey guys, I'm Liz Dine with me as always, as Andrew Torres. Andrew, how are you? Hey, Liz. How are you? I did not need more snow today. No, but I don't think it's going to stick. It's fine. It's just enough for us to think. But I am also excited as this episode drops. It is primary day in North Carolina, Arkansas, and Texas. So we will, we will indeed find out if the Trump Federal Communications Commission and Brendan Carr manage to alter the trajectory of the Democratic primary. Yeah, I have no endorsements, because I think it's my job to stay out of it when states are choosing their own candidates. That's not my business. I understand reasonable minds made it for, but that is my. I'm like, I'm like Reagan, you know, that shall not speak ill of other Democrats. I was like the 11th command. I thought you were going to say a three-legged stool, but you know, good dig either way. OK. Obviously, we're going to spend most of today talking about the war on Iran, which we embarked on first, and apparently are trying to justify after the bombs have already dropped. Probably by the time you're listening, the government will have floated five more possible legal theories of the case. I get none of which will be legal or truthful. Yeah, we're going to also talk about the plate of judges in the age of Trump and how they are rising to the occasion and holding back the worst excesses of the government. I know it is. It is easy to feel hopeless, but I do think it's important to acknowledge that particularly when it comes to immigration, federal judges are working very hard to protect people. Yes. OK. But first, OK. OK. Let us start with a big muzzle tub to Brad Carp, the former managing partner at the law firm Paul Weiss, and a master strategist in every respect. OK, she can't tell. That's Liz being sarcastic. OK. So Brad Carp negotiated the first law firm settlement with the Trump administration agreeing to ditch Paul Weiss's DEI policy and do $40 million worth of conservative pro bono and oxymoron, if I've ever heard one, that made him a household name, at least for a minute. I mean, at least nine other Vichy law firms came after and made deals with Trump. And no one remembers the names of those partners who negotiated those agreements, some for as much as $100 million. Yeah, that's the early adopter penalty for you. Which came back to bite Brad Carp in the ass when his name appeared in the Epstein files. He stepped down as managing partner of the firm after that. And then today, the Wall Street Journal announced that the Trump administration is going to drop its appeal in the lawsuits brought by the firms which did not cave. The ones that were targeted in those executive orders, Jenner and Block, Wilmer Hale, Perkins Kui, and Susman Godfrey. They all sued to block those orders, which would have penalized them and their clients and barred them from government buildings. They all won at the trial court. And then those cases were set to be argued before the DC Circuit in late spring, but not anymore. Yeah, let me channel my inner Liz here. Great work to those firms that settled with Trump. Really? Yeah. Kirkland and Alice, Latham and Watkins, scatten arms with $100 million IOU to Donald Trump for, again, this nonsense conservative pro bono crap. Slowest of claps, Alice. And eight moderate claps for Justice Corsich, who was really feeling himself this morning at oral arguments. Epitual drunkard, the American Temperance Society back in the day, said, eight shots of whiskey a day. Only made you an occasional drunkard. We have to remember the founding era, if you want to invoke the founding era. To be a habitual drunkard, you had to do double that. John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn't much of a user of alcohol. He only had three or four glasses of wine a night. Are they all habitual drunkards who would be properly disarmed for life under your theory? No. And again, I think this is something. OK, if they're not, then what do we know about Mr. Hamani? We know he uses marijuana a few times about every other day. That's all we have in the record, right? That's all we have in the trouble. So we don't even know the quantity of how much he uses every other day. What if he took one gummy bear with a medical prescription in Colorado? Well, you've made not even need a medical prescription. You don't even need that anymore. But let's say he had one to help him sleep every other day. Disarm him for life? Well, no, it's not disarmed for life. And here's what's going on. Potentially. Well, that be enough under your theory. One gummy bear every other night with a medical prescription. So I think you'd have a potential rehab problem, but I will accept the hypothetical. So let me just deal with what you'd love for. I think the answer is yes, under the government's theory. Yes, under our theory. I like the words. I mean, OK, so maybe it wasn't clear from the clip. What this case is about. It's called a case of USV Hamani. And it's about whether the government can ban habitual drug users, like, say, Hunter Biden from possessing a gun. And, of course, such as argument is everybody in the, you know, at the time of the founders would be classified as a habitual drunkard. If so, fatso, you can't take guns from drug users, which appears that that's going to be what the Supreme Court finds, although for many different reasons. What even is this shit? If I were arguing before the Supreme Court, and there are a great many reasons why we'll never argue in front of the Supreme Court, I would just say respectfully, Justice Gorsuch, I dispute the grammar of the question. 10-year-olds drank a mug of beer for breakfast every morning in the middle ages. Who gives a shit? Right, like this is all so much nonsense created by the fact that the Second Amendment never did was never understood to protect an individual right. It was to protect the right to a militia. That's why there were zero instances of the Supreme Court ever striking down state or federal gun control legislation prior to Antonin Scalia. Yeah, OK. Well, Gorsuch is probably still feeling a little discombobulated after coming out on the right side of the tariff ruling. He's not used to crossing Donald Trump and it cuts off the oxygen to his brain. Maybe he should eat one of them gummy bears. And meanwhile, the fallout from the tariff ruling continues. The Trump administration has been trying to slow down its repayment of the money that it stole from all of these importers. They asked the federal circuit not to issue the mandate, which would return the case to the trial court, which is the court of international trade. The government's argument was that judges should hold off because maybe Congress will come up with a political solution. Yeah, by which they mean maybe Congress will come in and say that the Treasury gets to keep all the money that it's skimmed off illegally. I mean, that seems unlikely. Particularly since every major corporation in the country, I, either people who make all the campaign contributions, have already filed lawsuits demanding a refund. Well, I think the federal circuit agrees with you today. They ignored the Trump administration and issued the mandate. So the trial court, the court of international trade, will now issue a permanent injunction and order refunds almost immediate. Well, counterpoint. The recent tariff decision of the United States Supreme Court concerning tariffs could allow for hundreds of billions of dollars to be returned to countries and companies that have been ripping off the United States of America for many years. And now, according to this decision, could actually continue to do so at an even increased level. I am sure that the Supreme Court did not have this in mind. It doesn't make sense that countries and companies that took advantage of us for decades, receiving billions and billions of dollars that they should not have been allowed to receive would now be entitled to an undeserved windfall, the likes of which the world has never seen before as a result of this highly disappointing to say the least ruling is a rehearing or re-ajudication of the case possible. President Donald J Trump. I did, there's a super supreme court now that she's been fighting in secret. And yeah, we would have used it longer. I can't, I can't, I can't, not on a Monday. I mean, that's fair. Okay, we said we would update you on Kansas's effort to unperson trans citizens after the lawsuits were filed because the state's trying to invalidate driver's licenses and forcing trans citizens to get new ones with the wrong gender marker. And now that has happened, it looks like the ACLU got the ball rolling with a suit on behalf of two trans men, which was filed in state court. Yeah, great work by the ACLU. And from a legal perspective, I think the really interesting strategic decision here was to file this as a state complaint alleging causes of action arising only under the Kansas Constitution, the Kansas state bill of rights. And the reason for that is that states in the era of the Roberts court have moved to no longer interpreting provisions of their state bill of rights, what's called imparring material with the federal bill of rights. So in other words, the Kansas Constitution says, you know, you have the right to freedom of speech and freedom of expression. And for 200 years, states have typically interpreted where the phrases in their constitution have tracked the US Constitution. They have interpreted those provisions, what's called imparring material, the same follow it. Right. It's the same words. So we're going to agree even though it's not the first amendment to the US Constitution to interpret it the same way the Supreme Court does. And now that the Supreme Court's just making shit up, even red states are departing from that and say, no, we're going to interpret the law the way the law actually is. Yeah. And I think it's an interesting strategic decision. I worried that we would see federal actions, which will of course wind up at the Supreme Court. The same Supreme Court, which just let the Trump administration screw with trans people's passports and refuse to issue passports that reflect gender identity markers. So I think this is going to have a much better chance of success at the Kansas Supreme Court. And look, states are going to have to look to protect their own citizens. I do not think that this court for the foreseeable future is going to protect us. Yeah. I think that's right. And I would add, if you were looking for optimism, that Kansas is one of the red states where the state Supreme Court decided that women's reproductive health was indeed enshrined in their state Constitution. So, you know, there certainly I would rather take my chances in the Kansas Supreme Court than I would at the US Supreme Court these days. Okay. Well, I have some bad news and some good news. The bad news is that the Supreme Court just blocked New York's redistricting effort. They said that it was a racial gerrymandor. Which is where Texas is not. Uh-huh. Uh-huh. But I do want to end with good news, which is that Virginia's redistricting referendum can now go ahead with early voting starting Friday. The City of Lynchburg sued to block that referendum vote and a judge temporarily enjoined the vote. But that lawsuit was reversed for lack of jurisdiction. I believe that there was some judge shopping, although I haven't looked into it real deeply. I think that they filed in a little ass crack town. No offense to the town of ass crack. Whatever. Okay. Uh-uh. Anyway, the vote is back on and that could mean a bunch of democratic pickups in the house more than we're going to lose in you. I hate everything about this, but Democrats did not start the redistricting war. That was fun. Yeah, we're going to finish it. Okay. It is Tuesday. Well, it's Monday when we're recording this, but it is Tuesday for you. And Tuesday is the day we thank our new subscribers, which there were so many. And I do interpret this as a sign that y'all are getting excited for Indritora's to do his subscriber only Nerdopalusa bonuses, which I am excited for too. So whatever the reason, thank you guys. We're so excited on substack at lawncauspod.com. Thank you to Dread Pirate Charming and Beam, Lee Ann, our MacMennaman, Slavin, Laura Hartisty, and thank you to Patty. And on Patreon at patreon.com slash lawncauspod. A big thank you to Laws Don't Apply to the Wealthy, Dracomess, your pal, gogg, gogg, gogg of the egg, a hug, Scott Taylor, dear Santa, I have been very good this year. For Christmas, I would like a special master and the unredacted search warrant. I believe and I will read out a new one for you next week. I think you messaged me separately on Patreon with a different and more offensive name. I'm happy to read that. Oh, yes. Okay. Thank you to Evidence Monkey, to Nancy Drew, Girl Detective, Mark M. Wolfy, ooh, Jesse Finley, Ender, David Fryer, Glass City Fish, which Ryan L. Johnson, John Hunt, Unpaid Intern, Kenneth Schaeffer, and Quinn Lanham. Thank you all so much for supporting the show. We could not do this without you. We really, really do appreciate it. And you know, how to join their ranks, get the shout out, get the bonus episodes, get the goodies, get the extended ad free episodes. All of that just head on over Patreon.com, slash law and chaos pod. Sign up to give us a little as a bucket episode. And we too will laugh at whatever you make us read from the air. All right, and Andrew Torres, you go get to that magic the gathering episode. Oh, indeed, is in the hopper. All right, we're going to take a quick break unless you're a subscriber and we will be right back to discuss everything, Iran, and wars of aggression. And we're back. All right, you guys know what happened this weekend. Donald Trump wanted a war with Iran. So he started one. Never mind that he didn't bother to inform Congress or get its permission. As we said on the blog yesterday, the power to declare war belongs to Congress and Congress alone, which is not a historical anachronism. It is a real constitutional requirement. It's key to the separation of powers. We're going to get into it in depth. Yeah, I think the recognition of that is why this administration is scrambling so obviously to backform you later political and legal justification for this illegal act, right? And it looks like what they've settled, well, this morning it looked like what they settled on was that Iran was about to nuke the United States by the afternoon. It had morphed to Israel was going to attack Iran. And in retaliation, Iran was going to attack us. And so actually by striking first, we're really striking second and defending ourselves. I think that's what they're going to go with as not says it is. You know, Liz, I do owe you a mayacle, right? I did not watch the state of the Union address. I could not bring myself to it. I don't think I've ever watched a state of the Union address. Oh, I don't think I've ever missed one until now. I think though that if I had, we might have been able to see this coming because yes, there has been a lot of generic saber rattling about Iran, but during that speech, Trump was already laying that specific groundwork for this stupid lie. He said in the speech that Iran had already developed missiles that can threaten Europe and our bases overseas and they're working to build missiles that will soon reach the United States of America. Yes, so no part of that is the truth. Iran does not have missiles that will soon reach the United States. In May of 2025, the Defense Intelligence Agency issued an assessment concluding that if Iran chose to develop a long range missile, it might be able to do so by 2035. Yeah, if I could tech geek for just one second in this horrible story. You just never tech geek for just one second. True. But you can never eat just one, sir. Pringles. Look, this is not a trivial matter, right? Right now, most of Iran's arsenal are short range ballistic missiles. It's medium range ballistic missiles. They have the longest range. They have a range of 2,000 kilometers. That is enough for Iran to reach Israel, but not anywhere near Europe. And it is 10,000 kilometers from Iran to the United States. They're not close. North-Azeran have nukes, despite the fact that Trump, during his first term, pulled us out of the Jikpoah, the Joint Comprehensive Plan of Action. That was the agreement by which Iran agreed not to get nukes. But last Wednesday, Secretary of State Marco Rubio admitted to reporters that Iran isn't enriching uranium right now, although he added that he thinks that they're trying to get to the point where they ultimately can, whatever that means. But the way in which we know that this nuclear scare is pretext is that none of the American or Israeli attacks so far have targeted Iran's nuclear research or production facilities. The chairman of the IAEA, the UN's International Atomic Energy Agency, said on Monday that there were no elevated radiation levels in countries boarding Iran. So there's been no indication that nuclear facilities have been hit because there's been no dispersal of nuclear radiation. So look, I mean, that really gives the lie to what Trump's saying, right? If Iran was an urgent nuclear threat, you would hit the nuclear facilities first, as opposed to like hospitals and schools. Yeah, and their leadership, right? And one of the things about Trump is that he cannot help but screen the quiet part out loud. So, you know, some speech writer put in that line about imaginary Iranian ICBMs into his state of the Union address, but Trump made his real reason known on social media. It's regime change. I quoted that in our written post at lawincastpod.com, but this is really quite remarkable. I mean, Trump basically wrote, hi Iranians, I'm bombing the shit out of your country. And then he had to do that, yeah. Actual quote, bombs will be dropping everywhere. When we are finished, take over your government, it will be yours to take. Yeah, and then less than 12 hours later, we had indeed killed Supreme Leader Ayatollah Ali Hamayni and the defense minister and the chief of staff of the IRGC, the Iranian Armed Forces. And apparently we killed the people that we wanted to put in charge. Trump said something along the lines. I was like, our top three candidates, we inadvertently killed them. So we have to find some more, which is so crazy. The Shah is probably kicking around somewhere. Yeah, no, the Shah's descendants have been quite vocal about their support for this war and how they think that the country should be run. Secretary Defense Pete Hegseth also bragged that this is not a so-called regime change war, but the regime sure did change, and the world is better off for it. I'm just sure the world is better off with a power vacuum in one of the largest economies in the Middle East. We have the dumbest, least qualified people making the most consequential decisions over life and death. I don't know that I have words actually. I mean, four American service members have already been killed in Kuwait. Hundreds of civilians have been killed in Iran, including 180 children at a girls elementary school in Manab. It is, it might be critical that we do whatever we can to put a stop to this as soon as possible. Yeah, and I think, look, America's been pretty historically ignorant about Muslim countries, the divisions in the Muslim world. For instance, Nancy Mace, the congresswoman from South Carolina, tweeted this incredibly racist, screed about like, so sorry thoughts and prayers for Rashida Tuleeb and Ilhan Omar, both of whom are Sunni, I believe. And of course, Iran is Shia. So refusing to acknowledge that there is this polarity in the Muslim world is, I mean, it's like super racist, but it's also just profoundly ignorant. Profoundly, gleefully ignorant. Meanwhile, it's clear that we have chosen aside as a country, particularly because the Trump family has a lot of money to interest in its Sunni connections. Jared Kushner's affinity partners received $2 billion from Saudi Arabia's sovereign wealth fund. And on January 11th, the Trump organization announced that it had $7 billion in new real estate projects in Saudi Arabia, including a Trump hotel and a golf course and luxury mansions. And of course, there's that $1 billion plane that Qataris gifted to Trump that he's gonna take with him when he leaves office. You filmed a great video for legal. Oh, thanks. Yeah, it called the largest bribe in American history. We'll link to it in the show now. Yeah, it's about this kind of the Emirates effort to get in good with the Trump family because the Emirates want to turn the UAE into an AI hub and what they need are chips and video chips, these super fast processor chips that we weren't selling to them or the US government was contradicting the sale to the Emirates because they thought that they were a security risk because they might give those chips to China or whatever. And so what happened was that the Trump boys set up this crypto store. And first of all, the Emirates bought a 49% stake in the crypto store for half a billion dollars. And then there was this, you know, Binance is this crypto exchange. And then the Trump boys sold $2 billion worth of their basically worthless crypto token to the Emirates who used that money to buy a stake in Binance, which is the world's largest crypto exchange. After which the Emirates got their chips and CZ Changping's Ow, who is the head of Binance who got convicted. He pled guilty to money laundering during Biden's term. He got a pardon, which allowed him to kind of come back into the fold and run his exchange openly. So look, that's a long story, but it is an illustration of how deeply the Trump administration is in bed with the Saudi government, including Trump's Middle East advisor, Steven Whitkopf. Yeah, the Washington Post reported on Saturday that Saudi crown prince Mohammed bin Salman had made multiple private phone calls to lobby Trump personally to attack Iran over the past month. And all of those folks have given billions of dollars to the president and his family. Yeah, so look, you see, I think this isn't just about the hypocrisy of the mega wing of the party, like embracing regime change after all of those years, where they said, you know, neocons and talked about, you know, Hillary Clinton, the hawk and Donald the dove. It's that it's also just spitting on the Constitution and the separation of powers because there are circumstances where we are thrust into war. The president is thrust into war, but regime change because your buddies who give you billions of dollars ask you to, that's not an exigent circumstance. It's not self-defense. Like if you wanted a war, you'd have to get buy-in from the American people through their elected representatives in Congress, and that's not what's happening here. Yeah, I wrote about that for a blog through the lens of a formal declaration of war. It's Article one, section eight, clause 11 of the Constitution. And I'd like to expand on that a little bit because I don't know about you, Liz, but I grew up thinking that a declaration of war is this old timey thing left over from 13th century Saxony, you know, with a wax seal on it that you press your ring into. I mean, we all learned in middle school that Korea wasn't a declared war. Vietnam was a police action, right? That declarations of war are an anachronism. That Wikipedia page notes that Congress hasn't declared war, since World War II. And the implication there, which like, yes, the Trump administration is leaning into this, like, well, it's all a police action. And they want us to think that in the modern era, the locus of military power decision making has shifted away from declarations of war by the legislature and to the commander in chief because he has power as the, you know, the leader of the military. Yeah, I guess the argument is that modern warfare requires moving quickly and covert actions. And there just isn't time to do old school things like deliberate with Congress have debate vote on whether to actually go to war or not. And that's just not our constitutional framework. And so I'd like to situate this by going back 160 years to the prize cases. It's a Supreme Court decision from 1863. Obviously it's about the Civil War. And let me kind of set up the timeline. So on April 12th, 1861, that was when Confederate forces attacked the United States. They fired on Fort Sumter in South Carolina. Now, is 1861, so Congress is still a part-time gig. It's not in session. And so a week later, President Abraham Lincoln issues a presidential proclamation declaring a blockade of Confederate ports from South Carolina to Texas. And then two weeks after that, he extends it to Virginia and North Carolina. So to be clear, that was a deliberate act of war under international law. Right, Lincoln could have said, I'm the president of the United States and I'm closing the ports, but that's not what he did. Instead, he declared a blockade, which under the 19th century law of nations, you could only do to a foreign enemy. So by declaring a blockade rather than simply closing the ports, you could argue that Lincoln had implicitly declared war on the Confederacy. Which people did. So here's what happened. Some ships decided to run Lincoln's blockade. And one of them was a British ship called the Hayawatha, which tried to offload cargo, and Hampton Roads, Virginia, on May 20th, 1861. And the United States Navy seized the Hayawatha as a war prize, which was a common practice in the 19th century. Congress, meanwhile, finally, they got on horseback and reconvened on July 4th, 1861. 11 weeks after the blockade had been declared. And so when they did, the very first thing Congress did was to retroactively ratify all of President Lincoln's emergency measures, including the blockade. But the owners of the Hayawatha sued, because they wanted to get their ship and cargo back. And their argument in court was that, regardless of what Congress did in July, Lincoln's blockade was illegal at the time the Hayawatha was seized in May, because the President cannot unilaterally declare war. And their case went all the way to the Supreme Court, which ruled five to four, that the President's article to Commander-in-Chief Powers did give him the authority to respond to an insurrection without a prior congressional declaration of war. Yeah, but I want to highlight two things here. First, the holding, which we did talk about in the written post as well. And that is that the Supreme Court said that the reason President Lincoln had the power to wage war was only because the Confederacy fired first. That's why we went through the timeline, right? War was already declared on his back, you know, for him. So the court said, if a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. In other words, the President, the Constitution makes it abundantly clear that the President never has the decision to initiate hostilities. If Congress chooses or, whereas thrust upon a President by an attack from a hostile foreign power, then the question of how to fight that war does indeed shift to the Commander-in-Chief. The President can respond. He's required to respond. But again, to quote the Supreme Court, he has no power to initiate or declare a war against either a foreign nation or a domestic state. So that's the holding of the prize cases. And I want to pick up one other point, which is you said that the case was five to four, it was. Obviously, all of our listeners are used to Supreme Court decisions, almost always drawing descents, right? They're all five, four, six, three, these days. But in 1863, that was almost unheard of. I seem kind of weird today, but in the 19th century, almost every Supreme Court decision was unanimous. Only 12% drew any descent at all. We could go years without there being a single five to four ruling. So this was one of the closest, most controversial Supreme Court decisions in history at that time. And the four judges in descent said, no. Even if the country's been attacked, the President can't take a prize of war until Congress declares war. And that's not because the piece of paper is magic. It's because of that fundamental constitutional constraint. And that protects the right of the people to weigh in and decide on whether we want to move from a state of peace to a state of war. And since then, even our undeclared wars have taken place under that framework. I mean, we can talk about covert actions and authorizations for use of military force. And we actually did talk about that a fair bit in your blog post, but no president has ever claimed the right to initiate hostilities on his own account. In fact, even the Office of Legal Counsel Memos, which the Trump administration dubbed up to justify seizing Venezuela and President Nicolas Maduro and black bagging him to New York or the ones that justify our bombing boats in the Caribbean, those say that the president's article to power only extends so far as the military operation does not rise to the level of war. And those memos define war as prolonged and substantial hostilities, which expose troops to significant risk over an extended period of time. And look, today the president has admitted that this is going to be weeks. I mean, maybe what he'll say is the nature of war has changed because it's all, it's like drone strikes now. We're maybe, but he said it's a war. We have casualties. That happens in war. Yeah, no, that's very true. OK, when we come back, we're going to talk about what Congress could do to put a stop to this. OK, before the break, we talked about the fundamental legal division of power established by the Constitution and still in place today. And that is, Congress or hostile foreign power gets to decide whether or not to initiate war. Presidents then get to choose how to fight them. Yet to be fair, every president has tried to seize more power for himself. Before Trump, we had checks and balances and Congress pushed back on those efforts. That came to a head at the end of the Vietnam War in 1973. On January 27 of that year, the US signed a Paris Peace Accords, which finally brought troops home from Vietnam. But President Nixon continued to bomb the crap out of Cambodia secretly. And then Nixon's arrogance about that. And low popularity. And low popularity. Led Congress to pass the war power's resolution. And that may be how we could stop this Iran war from spiraling completely out of control. Yeah, I think that's right. I certainly hope so. So the war power's resolution is 50 US code section 1541 at sec. It essentially recognizes that presidents are going to try and do military stuff without seeking the approval of Congress. So this was Congress doing three things to rein that in. Two of them are not particularly relevant here. Section 1543 requires the president to send a report to Congress whenever he uses military force. And 1544 B sets the default rule. We've talked about this with respect to the boat strikes that the president has to stop within 60 days, unless Congress tells him that it's OK to continue. It's the third clause that matters, though, section 1544 C. That says that Congress can put an end to presidential use of force whenever it wants. It says at any time that the United States armed forces are engaged in hostilities outside the territory of the United States without a declaration of war or specific statutory authorization, such forces shall be removed by the president if Congress so directs by concurrent resolution. Yeah, so there are two really important law words in 1544 C, the shall. And that phrase concurrent resolution. We've talked about shall on the show. It's the word Congress uses when it wants to emphasize that the executive has no discretion to do otherwise. If the executive branch does not do it, you can go to a court and get a bit of mandamus forcing him to with that shall. Yeah, even the president. So put a pin in that one, because he's going to come back in the subscriber bonus. Can't wait. OK, so if Congress says shop these hostilities, the president has to stop. And the way in which Congress tells the president to stop is through a concurrent resolution. You talked about that in our written post, but why don't you play it out for us here? Yeah, sure. So procedurally, there are really three ways to derail Congress from trying to do something, right? In the House, the speaker of the House can bury a bill in committee or never bring it up for a floor vote. In the Senate, you can fill a buster until there's 60 votes. And then if a bill makes it through those two hurdles and passes both houses of Congress, the president can veto it and make you get a two-thirds vote to override the veto. So if Congress is thinking down the line and they want to reign in the power of the president in the future, they've got to do something about those three obstacles. And that's what the war powers resolution does, because Richard Nixon was also a piece of shit rat bastard. And Congress anticipated that he would evade any restriction that they placed on him. So Section 1546A says that any concurrent resolution introduced under the war powers resolution shall be reported out of committee within 15 days. And that gets around the problem of a friendly speaker of the House who might wish to bury inconvenient legislation in committee so it never comes up for a vote. The way Mike Johnson tried to do with the F-Sine file transparency act. In that event, Democrats managed to cobble together four Republican votes for a discharge petition to force the bill out of committee and to a full floor vote. In the case of a war powers resolution, we're not going to need a discharge petition because there's automatic discharge built into the law. Yeah. And because of vacancies in the House today, Republican control, that's 218 to 214. So that means you don't need four Republicans to split from Trump. You only need three. And that they've already got Thomas Massey of Kentucky, Massey and Conno, we convened today. They've got a concurrent resolution and have urged the House to bring that up to a vote. Okay. Massey was the Republican defector along with Lauren Bober to Nancy Mace. And we'll probably not be defector so the war powers. I mean, who knows, right? Who knows? But props to Massey because he did cross the aisle and that outreach by Conno has had really important impact. So I think we should talk that up. It's really easy to say like, screw it, bipartisanship is dead. But this is an instant work really made a lot of difference and it might make even more difference in the future. Yeah, I agree. Okay, so that's the House. Next up is the Senate filibuster. And to understand how that works, let's contrast the way bills move through the House versus the Senate. In the House, every piece of legislation has a fixed time for debate. And that default rule is one hour, sometimes it's less, right? And when the hour is up, that piece of legislation automatically moves on for a full floor vote. I, I, I, Liz have a really geeky rapid trail on the motion for the previous question that maybe I'll do in one of our Patreon bonuses someday. But for now, the important part is that time for debate is limited in the House. But in the Senate, there are no limits. So senators can theoretically debate a piece of legislation forever. Instead, Senate has the Cloture Rule, that's rule 22, it says you have to first vote to stop debating a bill and then to vote on the bill itself. And Cloture requires 60 votes. And that's where the filibuster comes from. If you're the Democrats right now and you have 47 votes in the Senate, you lose the floor vote, 47 to 53. But you can stop a bill from ever getting to the floor by saying, no, we're going to have to debate this more and voting against Cloture. That's why the minority can filibuster bills that would otherwise pass. Yeah. And for a long time, there were two traditions in the Senate that limited filibusters. First, some senators would vote for Cloture, even if they intended to vote against the bill. I mean, that's how worked in student Congress. Were you in student Congress? Maybe. How is that? I went to Nationals in student Congress. But only as a freshman. Oh, hey, hey, hey, hey, hey, hey, hey, hey, hey, hey, hey, hey, then I went into debate. Okay, never mind. But the point is that makes sense as a rule in student Congress because nothing you do actually matters. And less so when it is laws that could affect the country. So that tradition kind of fell by the wayside. And the second tradition was that senators would vote for Cloture if the other side was not actually using the time that they claimed they needed to debate, right? And when people stopped talking, they would move for Cloture. That's the Mr. Smith ghost of Washington talking filibuster. Right. But the point is you can get around the filibuster by specifying a fixed time for debate in the legislation which the War Powers Resolution does. So that leaves the third obstacle, which is can't the president just veto it if it makes it out of Congress isn't Trump just going to veto it anyway. And that's why the War Powers Resolution specifies it's a concurrent resolution to withdraw the troops. Because those don't go to the president and he can't veto them. Yeah. And this requires a little bit of procedural degree because a concurrent resolution is when both houses of Congress passed the same language, but it's not sent to the president as you said, Liz. And so it doesn't become law. So it can't be vetoed. And I'm guessing what some of you are thinking, which is, hey, if there's this one weird trick around a veto, why doesn't it every bill that Congress passes use this? And that's because typically the reason you have a concurrent resolution is to make internal rules that apply to both houses like a journey a legislative session. Or sometimes it's used to pass a ceremonial resolution. The example that the Senate gives on its website for what a concurrent resolution is, is congratulating another country on the anniversary of its independence. So not ending wars. So if Congress were to pass a concurrent resolution demanding that Trump cease hostilities in Iran, the administration would have some legal arguments that they don't have to comply. Indeed, I think Vance came out and said something like basically all presidents have always believed that the War Powers Act is unconstitutional because it doesn't allow the president to veto, which is not entirely correct. I don't think it's a crazy argument. I don't, I guess what I want to do is parse this out particularly carefully, right? It is a crazy argument to say that the War Powers Resolution is unconstitutional. No president has ever taken that position. It's not, it is constitutional. This particular provision about restraining the president's ability to continue to conduct military operations when Congress hasn't authorized it and curtailing it via concurrent resolution, that that does not a crazy argument. As I said in the post, I kind of hinted at it and I'd like to talk about that in the subscriber bonus. I'd also like to pick back up the, can you man-day Mr. President? Because yes, you can. All right, for everyone else, we're gonna take a quick ad break and you will go straight to our last segment on District Court judges doing the work that needs to be done.! The War Powers Resolution And we're back! Okay, it is time for our regularly scheduled judges are freaking out, segment, and particularly in light of all this discussion about the War in Iraq, I just want to point out that we have three branches of government. Obviously the legislative and executive branches are hopelessly borced and the judiciary is the only one that's basically working the way it's supposed to. I mean, big asterix on this Supreme Court obviously and the Fifth Circuit is a lawless place, but in the main trial courts are doing their jobs and appellate courts in terrible circumstances. In terrible circumstances. Look, I know we're all disgusted with what's happening at CBS, but I actually do recommend a 60 minute segment that aired last night on the plate of trial court judges. And I think we should play a couple of clips from that. The first begins with Deputy Attorney General Todd Blanche at Federalist Society Shindig in Veying Against Federal Judges. And then there's commentary by Judge John Koonauer, the Reagan appointee in the Western District of Washington who ruled against the Trump administration in the Berthright Citizenship case. These activist judges, Deputy Attorney General Todd Blanche, called it a war. We are routinely getting stays and getting reversals because of local judges just not following the law full stop. And it's the same judges, or not the same judges, but there's a group of judges that are repeat players and that's obviously not by happenstance, that's intentional. And it's a war, man. Todd Blanche declined our request for an interview. In a statement to us, he said some judges continue to issue overbroad and even unreasoned injunctions, but adding threats and intimidation of federal officials is unlawful. Judge John Koonauer told us the Constitution is a judge's north star. So to someone who says that you are a political agent in trying to sport the goals of the president, you would say... I would say you don't understand what we do. We apply the Constitution for the last 250 years in this country. It's been the judges that say this is either constitutional or it isn't. If nobody's gonna make that decision, nobody's gonna enforce the Constitution. It becomes like the Constitution of Russia. Todd Blanche knows damn well that he's painting a target on the backs of these judges. He just doesn't care, right? He's drunk on power and look in this segment, Judge Koonauer described getting swatted because someone reported that he murdered his wife. You know, here he is talking about what is different today from when he started, you know, he was on the bench for a really long time. But he said he'd never had as many death threats as with the birthright citizenship case. I've been at this for 44 years. I have never encountered the hostility toward the judiciary that has existed in this country in the last year. And I don't think it's because we're making bad decisions. I think it's because there are people who think that they can make a lot of political hay out of criticizing the federal judiciary. Sixty minutes also interviewed Judge Esther Salas, whose son was killed by a defendant who didn't like how she ruled. Judge Salas says that a favored intimidation tactic is to send judges, flowers, or pizza in the name of her murdered child. All right, it's terrible. All right, let's listen to one more clip. This is one from former Judge John Jones, a George W. Bush appointee to the middle district of Pennsylvania. This is such a toxic environment where people are taking arms and can identify where a judge lives, can strike out against that judge or the judge's family members. So when President Trump attacks judges as rogue, deranged, corrupt, what do you think he's doing and why? I think that he's attempting to de-legitimize the federal courts. Why would he do that? What's the benefit to him? It's a presidency sort of on steroids. And you have a very dormant, I think, the United States Congress and a president who means to really say what the law is. Well, you know, civics taught me that Congress makes the law and the president faithfully executes the law as to the country. We've turned that on its head right now. Okay, that's really interesting to me because the reason I know Judge Jones is because he was the presiding judge in the Kitts Miller versus Dover intelligent design trial in Pennsylvania about 20 years ago. And what happened in that case was conservative activists took over a local school board. They mandated the inclusion of this creationist textbook called of pandas and people that was hastily rewritten. Oh, seriously, to replace creationism with intelligent design such that in one of the drafts of the book that they'd done an incomplete cut search and replace in Microsoft Word. So there were these C design proponents. It's just left it right like they literally they took a biblical book and they just replaced it with intelligent design. And then they went into court and said, no, no, but intelligent design really is science and the Discovery Institute, the intelligent design folks bragged at great length. Oh, we got Judge Jones. He's a George W. Bush appointee. It's in the bag. And then they got pants to trial, right? They put up this guy Michael B. Who was the worst witness I've ever seen on the stands. It was hilarious how bad it went. And then when Judge Jones ruled against the Discovery Institute ruled in favor of the plaintiffs taking intelligent design out of the school curriculum that it's not science, he began that opinion with those who disagree with this court's opinion will undoubtedly call us judicial activists. But this is manifestly not an activist court and then gave this huge length. And my point on that digression is Judge Jones was targeted with the full fury of the Discovery Institute and right wing Christians and everything. So he has been through some stuff. Right. So when he says it's never been this bad, he knows. And it is bad. It's terrible. Judges are under attack by the federal government. At the same time, the federal government is making it so hard for them to do their job. So OK, with all of that is backdrop. Let's talk about a couple of rulings in the past few days pushing back hard on the Trump administration's lawlessness. Let's start in West Virginia. Yet another jurisdiction where judges are furious that the Department of Homeland Security continues to arrest and intern immigrants based on this crackpot theory of mandatory detention under eight U.S.C. Section 1225. We've talked about this on basically every show for weeks now. It's this wildfire engulfing the judiciary because ICE descends on a community and grabs up hundreds of people who are on the non-detained docket. That is, people who are, you know, they presented themselves. They've been checking in. They've been work permits. They're public. And, Christy, you know, I'm just dispatching CBP and ICE to pick them up under this theory that they must all be locked up if they don't have green cards. So that's led to hundreds of identical habeas corpus petitions, which are clogging up courts. And judges are granting them every one of them pretty much because the law doesn't say what DHS claims it does. Now, in a normal world, when judges tell the government that they're doing something illegal, the government stops, but nothing has been normal for a long time. And so now judges are stuck in this endless loop where they have functionally the same case over and over and over every day. So they're pissed because this is not only, you know, a disaster, a humanitarian disaster, but it's a massive middle finger to the rule of law. And federal judges are horribly overworked. So they really don't have time to spend an additional hour a day riding herd on DHS and D.O.J., so they don't banish these people to googs in the fifth circuit. So last week, we talked about judges in Minnesota and New Jersey saying if we keep seeing these cases come in front of us, we're gonna hold D.O.J. and DHS in contempt because you can't abuse the judiciary this way. If we say that this is what the law is, this is what the law is. And now West Virginia has entered the chat because of what DHS has dubbed Operation Country Roads, which arrested 650 people in the first two months of 2026. You get John Denver out of your mouth, Christy. No, anyway, Politico has a breakdown of all of the different judges who are saying that they are about ready to hold the government in contempt. We will link to that in the show notes. But I wanna highlight this ruling from Judge John Goodwin, who is an 83 year old Clinton appointee who has been on the bench since 1995. That is squarely an old bull tiger. In every sense, I read Goodwin is no liberal squish. This is a guy who ruled that a ban on guns without serial numbers violated the second amendment. But he's livid that the government keeps kidnapping people off the street in defiance of court orders, particularly because West Virginia is a small place. There are only five active status judges in the Western District of West Virginia. And the four that are hearing habeas cases have all said over and over again that these arrests are illegal. So the government knows that there was no chance that any court in the district is gonna allow them to intern people on this legal justification. I should add that the chief judge is a Trump appointee named Frank Volk. He has not ruled on this issue. And since Judge Goodwin said he personally got assigned 17 habeas petitions. He's not one he's mad. Right. I have to assume that it is by design that there was some internal court rule that says that the chief justice doesn't get habeas petition. I mean, probably because he has extra administrative responsibilities as chief. Yeah, actually, you and I were talking about this earlier before we went on air. Do you wanna reiterate what you said about habeas petitions? Because I think that's something that's kind of baked in for lawyers, but not for normal people. Sure. Again, with the caveat that I am neither an immigration lawyer nor a criminal defense lawyer, but in my experience, typically you see habeas petitions arriving in federal court in two scenarios. The first are death penalty cases, right? Which you exhaust your full panoply rights. And the second are cranks, right? Right. It pro-say crack. Yeah. And so there just aren't a lot of other cases that fall outside of that because by and large, the government doesn't detain people illegally up until the second Trump administration. And so when the Supreme Court in JGG said that all of these deportation cases now had to be brought as some I guess as class actions, but have to be brought as habeas petitions, right? Like they flooded the seldom used docket. So I don't know. I went looking to see if West Virginia has a court, you know, a rule of court, a standing order, or something like that. Yeah, somebody out there knows the answer to this question. Why judge folk isn't getting these habeas cases? You can definitely let us know. But I totally agree with you. Like habeas is kind of one of those like also ran weird side things. Yeah. And it seems to me impossible that it could be just a coincidence that every other judge is like deluge, but you know, rule 17, ones in a row. Right. OK. So judge Goodwin, who is getting all of these habeas cases, says that this particular one was filed on February 19th. And on the 20th, he asked the Justice Department who was going to make any new arguments, or if it was just going to cut and paste to rejected legal claims from every other habeas petition. And the DOJ said, nah, we don't need a hearing. Our plan is just to keep this guy locked up until you stamp his ticket, and then we're going to appeal. Which is a really cavalier way to talk about depriving a human being of his liberty. I mean, not to mention a Frank acknowledgment that the Department of Justice does not give a crap about wasting court time. Which is exactly how judge Goodwin took it, particularly because so much of his time has been wasted. So he recited the boilerplate holding that he said in every other case, like, no, that's not what section 1225 means. No, you can't detain someone without a hearing. And since you haven't given him one, you've got to let him out immediately. This is a slight evolution. I think it's really interesting that now, trial court judges are not ordering DHS to hold these bond hearings anymore, right? Politico pointed out that Judge Goodwin's colleague, Judge Irene Berger, held that attorney general body, has basically turned immigration court into a kangaroo court by firing all the real judges. So remember, immigration courts are not Article 3 court. They are Article 1 court. Creations of Congress delegated and housed inside the Department of Justice. And Chief Immigration Judge Theresa Riley has already instructed those judges to treat homeland securities legally wrong interpretation of 1225 as binding, no matter how many real Article 3 district court judges say that it isn't. And that's crazy. Right, remember 1225 is the one that says, you can, you must, you mandatory, you must detain any immigrant who doesn't have lawful permanent residents basically. And that's the justification that DHS is using to go out and pick all of these people up. Yeah, so I think we're not reading too far between the lines to interpret this as judges saying that even if you were to get those bond hearings, they might not pass constitutional due process muster anymore. Yeah, I'm quite sure that we're gonna talk about this because it's gonna appear in future litigation. But okay, in this case, after the holding, Judge Goodwin has a section captioned notice of continuing violations, which is like the shark fin, you know, coming up the water. He says that he personally got these 17 habeas cases last week based on unlawful detention under 1225 and quote, how can that be? Because every judge in the district, but the chief, as we said, spoke is not getting these cases. But every judge who is has already said this is illegal and told the government to knock it off. Although Judge Goodwin does allow in a footnote that counsel for the government has been responsive and professional and the problem lies in the attorney's clients, federal government actors, who have offered no evidence that they have seen or even care about the legal rulings of this district, the disregard for the law shames every hardworking public servant who toils for the benefit of the country and its people. Yeah, we've talked about this before too. Judges are trying to work out how to ensure compliance with their court orders when the usual levers, that is holding lawyers in contempt, probably he's not gonna work. Right, and it's not gonna work because DHS doesn't care about DOJ lawyers getting held in contempt and judges are low to punish the DOJ lawyers who, as I said, are doing their jobs and have no client control. And especially when they're jags that have been seconded off to the DOJ and maybe can't quit, right? Yeah, so okay, the next section is captioned enforcement of constitutional rulings and remedies followed by a section captioned final notice, which is not gonna make the DOJ happy. So Judge Goodwin said a lot of stirring words about how a constitutional ruling cannot be reduced to a temporary directive that must be relitigated each time the same conduct occurs. And if officials could repeat practices already determined to be unconstitutional and require each affected person to begin a new constitutional adjudication would become provisional. And judicial power would be reduced to commentary. Love it. But then he said something I like more. He said this memorandum opinion and order services explicit notice to all officials state and federal involved in the detention of individuals whose cases come before this court. State officials, that's new. Mm-hmm. He says continued detention without individualized custody determinations after this court's repeated holdings that such detention violates the Fifth Amendment will result in legal consequences for state jail officials. Those consequences include personal civil liability without qualified immunity protection. For federal officials, those consequences include exercise of this court's full inherent authority to enforce constitutional compliance, including contempt. Officials who believe this court has earned in its constitutional analysis may seek a stay of this court's orders pending appeal or pursue a pellet review. What they may not do is continue systematic constitutional violations while preserving appellate objections and expecting this court to grant relief in case after case without enforcing its rulings, this court will enforce the Constitution. Section 287G, meet Section 1983. Yeah, so you want to talk about that in non-loyer speech? Fair. OK, so Section 287G agreements are the way that local law enforcement agencies cooperate with ICE, most commonly by screening inmates in county lockup for immigration status, and then holding onto them after they would otherwise release them until DHS goons can come in and get them. Sometimes the county basically rents out its jail to ICE and 42 US code section 1983 that this is coming headlong against creates a private right of action against any person acting under color of state law. That's the words of the statute who deprived someone of their rights secured by the Constitution or federal law. So this is the judge saying in that part of the order that you slowed down and found really interesting. Hey, Sheriff, just a heads up that your cousin, Kletus, who could not get hired by the state patrol, but got that $50,000 I signing bonus and Wave has gone around and probably escaped liability. But if you help him, you're walking on a tightrope without a net because unlike him, you are state official and you do not get federal immunity. So that is a very interesting, I mean, that's not something that the court is going to inflict upon them, but that is the judge inviting detainees who have been detained or abused by state officials to bring civil suits in this district. And there are lots of good lawyers that are well versed in how to bring 42 US C 1983 claims. Right. And then the court says that it's going to exercise contempt power against DHS and or the supervising lawyers in the US attorney's office, the political appointees who are high up because they're the ones who force these line attorneys to appear for the court and assert these barred legal acclaims day in and day out. I cannot emphasize strongly enough how much this is all the Supreme Court's fault. The Supreme Court was so hot to ensure that lower court judges couldn't make Trump quit breaking the law, that it abandoned nationwide injunctions and by continually disrespecting trial courts, the Supreme Court signaled that the administration could treat their opinions as advisor. I mean, that's how we got here. Right, right. That's what Judge Goodwin is saying about commentary. You cannot say every judge in this district has said, this is the way that this district interprets the law. And if you continue to break the law, I mean, that does as you said, fault right at Chief Justice Roberts' feet. Okay, now to Minnesota, where Judge John Tonheim granted class certification and a preliminary injunction to block DHS from rounding up refugees, who have been in the US for more than a year, but have not yet received their green card. And that's thousands of people. In January, DHS announced what they call Operation Paris, post-admission refugee re-verification and integrity strengthening. Their theory was that there was massive fraud and refugee admissions under Biden, which is how all those Somalis got into Minnesota. And so all refugees in Minnesota now have to be locked up and reassessed, which I guess makes sense if your racist piece of shit who believes that Somali equals fraud. And if you are deliberately ignorant about the refugee process, which is extremely rigorous, but let's contextualize what Stephen Miller and all of the bigoted ghouls are bumping up against here, because the Supreme Court has said over and over again that indefinite detention without a hearing violates the Constitution's guarantee of due process. So Homeland Security cannot keep immigrants locked up without showing that at minimum, they're dangerous to the community or flight risk from justice. There are hundreds of thousands of immigrants who have been through that hearing process and they have been released to go live their lives in America even though they don't have a green card yet. The Trump administration is scrambling around to try and find some legal justification to return these folks in concentration camps until they give up and agree to be deported. I mean, brass tax, that is the entire strategy here of this administration, right? Lock people up and torture them, make it so miserable to be here that they agree to leave. Yeah, so we have talked about DHS deliberately misinterpreting eight U.S.C. Section 1225 to imply that detention is mandatory. And the attack on refugees is predicated not on 1225 but on exactly the same perversion of the statutory language. But here the statute is eight U.S.C. Section 1159 because that's the one that pertains to refugee admissions. So the way it works is that refugees go through this intensive screening process before they are admitted. It is in fact the hardest way to come into the United States as an immigrant. But once admitted, they can immediately live and work in the country. And after a year of living here, they can apply for permanent residence. That's called an adjustment of status and it's governed by Section 1159B. 1159A says that any refugee who has been physically present in the United States for at least one year and who has not acquired permanent residence status shall at the end of such year period, return or be returned to the custody of the Department of Homeland Security for inspection and examination for admission to the United States and any alien who has found to be admissible shall be regarded as lawfully admitted to the United States for permanent residence as of the date of such aliens arrival in the United States. And that statute does have the words return to custody of the Department of Homeland Security in it. And that is what the administration is hanging its hat. And we've seen them run this playbook before. But this law was passed in 1980 and no one in 46 years has ever understood that phrase to mean physical custody as Judge Tonheim points out refugees whenever in the physical custody in the Department of Homeland Security, right? So this is the legal custody subject to DHS supervision. These refugees were admitted directly to the country. So they cannot return to a status that they were never in. And even if the law did mandate indefinite detention for refugees, that would obviously be unconstitutional. Since indefinite detention without charge violates due process, as we've said before. So the only way to sensibly interpret this law in order that it complies with the Constitution is the way that it's been interpreted for the past 46 years, right? Refugees may submit themselves to reexamination after a year in the United States if they want to adjust their status to permanent residence and get a green card. Yeah. So let's read this rather long quote from Judge Tonheim. He says, the government's startling theory that the statute silently grants DHS the power to seize a refugee the moment the clock strikes midnight on the 366th day after admission is wrong. This theory finds no support in the text, the history, or the purpose of 1159A1 and marks a sharp break from more than four decades of agency practice. Section 1159A1 did not confer such authority in 1980 and it does not confer it now. In the Refugee Act, this nation extended helping hand to those escaping persecution. We made a simple promise, pass the vetting, follow the law, and you will be given a chance at a new beginning in safety. That promise was not symbolic. It was concrete. It meant the opportunity to work, to worship, to raise children without fear, and to build a future under the protection of American law. Stability, not more fear, was the commitment. The government's proposed new interpretation abends that commitment without clear authorization from Congress and rests on constitutionally precarious grounds. Defendant seek to transform a system built on promised opportunities and freedom into one of uncertainty and indefinite confinement. Until the legality of this dramatic shift is addressed at trial, the court will not allow those who relied on this nation's promise of safety to be met instead with handcuffs. I want to be that country. I want us to be the people that we thought we were back in the 90. I mean, look, I know that country. The city on the hill. Didn't exist, has never existed, and certainly not for large segments of our society. But the further we get away from even the promise that the more I miss it. Yeah. Yeah. I mean, I think the only thing that we can take here is that the article three courts, one branch of our government is holding the line as best as it can, even as every other thing falls apart. So if there's one thing I want to take away, people say, well, these orders don't matter, they matter. It's going to matter to these refugees in Minnesota who can't be snatched off the street and deported. That matters. That is an important thing. And in this, we're in a really ugly moment, but I do take a lot of comfort from that. Here, here. All right. That's going to do it for us today. You know how to subscribe. You know how to give us a good review. We'd appreciate it. Thanks, guys. Research and Britain by Liz Dye, and produced by Bryce Blinken-Aggle, Bone Chaos Pod, copyright raised-up to Media L.O.C., all rights reserved.