S7: SCOTUS Is About to Turbocharge Presidential Power

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Please show your support for strict scrutiny and let them know that the strict scrutiny ladies sent you. I ask no favor for my sex. All I ask of our brethren is that they take their feet or for next. Hello and welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. Where your hosts, I'm Melissa Murray, I'm Leo Littman, and I'm Kate Shaw. And we have great news for you, and that is that we are finally going to have a real separation of powers. Yes, for the first time in about a century, specifically a separation of powers that gives the president a bunch of powers he has been unjustly denied until now. Justice for potent and Christmas coming a little bit early this year. The court is really in the giving season. It seems like giving the president more power, giving us a lot to talk about. So we are going to start with recaps because they really got down to business in the final sitting week of the year. And by business, we mean overruling 90-year-old precedents and making the country safe for a nearly 90-year-old president king. We'll begin by recapping last week's oral arguments. Then we'll cover some news and close it out with some assortative culture. First up, the recaps. Let's start off with, I don't know, Trump versus slaughter. This of course is the case about whether SCOTUS is going to do the damn thing and overrule Humphrey's executor. And I'm here to tell you, spoiler alert, they are because starry decisis is for what? Anyone? Any suckers? Exactly. I need a due to respond a little faster. It's been six years. You should know this by now. Yeah, you were overthinking your suckers. It's pretty simple. You were overthinking it. But don't worry, the court wasn't. So we're all good. All right, so it seems pretty clear that the justices are going to overrule Humphrey's executor because starry decisis is for suckers. But there is an off chance that they might exhibit a little restraint and not overrule Humphrey's explicitly. But instead issue some vague statement about why Humphrey's is no longer relevant. And therefore we're just going to ghost it somehow. They've done this before. They've done this before. Yeah, they could choose one of those. Put it in a lock box. Overruled in the court of history. All of the things. So many options. Different tactics. Same outcome. So say it with me again, folks. Starry decisis is for suckers. That's right. That's right. For those who care about precedent, Brett Sam, you can skip this part. Humphrey's is the near century old decision that upheld a law limiting the president's power to remove the heads of bipartisan expert independent commissions. In Humphrey's, it was the federal trade commission or FTC. In this case, Trump wants to remove FTC commissioner Rebecca Slotter in violation of the very same law the court upheld in Humphrey's. And Scota said, you do you, my guy? Yeah. So this is not the first time that this president has tried to remove a member of a multi-member agency in defiance of very clear statutory law. He has tried to remove commissioners on the National Labor Relations Board, the Consumer Product Safety Commission, the Merit Systems Protection Board, Federal Election Commission, Privacy and Civil Liberties Oversight Board, and more. And the court, even before this case, allowed him to do that by granting the administration's applications for stays of lower court opinions that had prevented those removals because they were clearly illegal. Slotter itself was actually one of the cases in which this happened. The court on the shadow docket allowed the president to remove slaughter from the federal trade commission or FTC while her case was being litigated. But now, of course, they have heard oral argument in Slotter's case. And we should note that the oral argument is actually happening before the case made its way through the entirety of the federal court system, which is usually the case. These little justice grumblands as they are want to do when they really want to go ape shit and blow stuff up, agreed to actually bypass the intermediate appellate court and just grant certiorari after the district court issued its ruling in Slotter's favor. So listeners, if you're not following along, I'm just going to mark this for you. This is how you know the court is really serious about overruling Humphrey's executor and letting King Donald the third have his way. They need to leapfrog the intermediate appellate's court because they are so ready, absolutely itching to overrule this major precedent. And again, just to make this clear, they have overruled a major precedent in four of the last five years. So this is their thing and they're ready to do it. This is their thing. No. This is their king overruling precedent. Sorry. The court's eagerness to hear this matter. Leapfrogging the court of appeals and letting the president preemptively overruled Humphrey's was a giveaway. This argument confirmed that it was about as bad as you might expect along basically every dimension. So bottom line, it is perfectly clear that all six Republican appointees are going to sign off on the president's violation of federal law and they will end the current system in which Congress can insulate the heads of commissions from presidential removal at will. This is going to be an enormous blow to the last remaining pockets of independence inside the administrative state. And the ruling is also going to be profoundly destabilizing in other ways as well. It's going to open up a can of worms about who else the president must be able to fire, not just the heads of commissions perhaps, but maybe inferior officers, people below the heads of commissions, maybe employees, people below inferior officers, perhaps civil service members, judges on article 1 courts, like the tax court or court of federal claims, so on and so forth, to which the Republican justice is basically for the most part said, I really don't care. Do you accept, and we'll talk more in detail about this, but just at the outset is they don't care, except for the things that the six of them might decide they do care about. Like the Fed, you know, that they'll probably leave alone and there could be others, and they'll probably leave those entities alone because they want to and they can. But the rest of it, unless there is a major course correction that Leah just listed, I think is very much at least going to be called into question by the opinion that the court issues in this case. Right, so I agree with everything Leah just said, I think this will be enormously consequential for the administrative state, for federal regulation, for personnel at every other major multi-member agency as well as the civil service, maybe the possible exception of the Fed, as you say Kate. But I want to make a more granular point about this case. So listeners, the FTC was created by Congress as part of its early 20th century trust busting efforts. So this is an agency that's basically designed to protect consumers by preventing industry and market consolidation. So when corporate behemoths want to merge, there's usually some kind of FTC and DOJ anti-trust review to ensure that the proposed merger doesn't screw over the little guy. And here's another example. When Amazon decided to automatically enroll people in Amazon Prime and then they created this 11 step process to unsubscribe from Amazon Prime, the FTC decided to investigate it. And in June 2023, it filed a lawsuit against Amazon and weirdly in September 2025, just nine months after Amazon purchased a faunding documentary of Malania Trump and its founder Jeff Bezos attended Trump's second inauguration, Amazon reached a deal with the new Trump FTC to settle this lawsuit that the Biden administration had initiated for $2 billion. Now that is a huge amount, but some say it substantially less than what Amazon might have owed if the FTC's lawsuit had been allowed to proceed. Amazon subscribers got about $51 as a payout. I'm saying all of this because I just want to make clear that there is a cadre of oligarchs who are supporting this president and they would love to see an FTC that's absolutely aligned with his agenda, which is to say an FTC that is not interested in consumer protection, an FTC that is more inclined to turn a blind eye to the rampant consolidation of wealth. None of this is a coincidence and I just want to make that clear. So, and rant. So I totally agree with that and I'm going to give two other examples in addition to the Amazon Prime settlement, the lawsuit challenging potential price fixing in the insulin drug market, or at least the kind of like intermediary market. And also this pretty important FTC rule about non-compete clauses and their unenforceability, that rule was challenged a district court, struck down that rule, and the administration, this administration, after the change in personnel to the FTC, decided not to appeal that district court opinion. So you have a very major actions that have been substantially thwarted, or at least there's some real question in the settlement terms context about whether the president has already had enormous impact on the direction of this supposedly independent agency. Imagine what you could do if you could get the whole agency staffed with your totes. Totally. Well, we've got some pretty clear indications already. And I'm so happy, Melissa, you brought up these specifics because you would never really know this from the tender of the oral argument. There were surprisingly little about the FTC itself in this really abstract and, you know, sort of perfunctory in lots of ways, performance of the justices. But in terms of the FTC, I had this op-ed in the Times last week that quoted something that were back a slaughter who's obviously the commissioner who brought this lawsuit. So she was on a panel with a bunch of former heads of independent agencies all fired by Trump. And it was a fascinating panel that my colleague, Carrie Collian-Azie convened. And she just told this story. So she was in office when January 2025 rolls around. Trump is inaugurated. And she basically, she's asked about the importance of independence for an agency like the FTC. And she said something like it kind of is captured to my mind in this single image, which is the president on stage flanked by these, you know, tech company heads like oligarchs as opposed to being flanked by heads of state or civil servants or anybody else. And she says I looked at that stage. And I it occurred to me that the FTC was an active litigation with almost every single one of the companies whose leaders were on stage for the president. They were the ones flanking the president at his inauguration. And you know, that I think is a perfect distillation of the beauty of independence. And also why exactly as Melissa was just saying, allowing this sort of independence is a real problem if you think essentially all of government should just be an extension of the president. So and my rant there. My rant is not done. But you know, the agencies are going to be making decisions based on the president's preferences and the president just so happens to love being given things like huge fan of Santa that guy. And six members of this court seemed fully prepared to sign gilded age 2.0 bigger, better weather. And yet at the argument, these guys were also just really lazy. Like it sounded at times like they were almost bored. They had maybe one maddening talking point, which we'll get to all tease it now. They just dramatically reimagine what is going on in our system of constitutional governance. And that was basically all they came up with. And aside from that, you know, they just asked John Sauer, the solicitor general who argued for the Trump administration, you know, in favor abroad presidential power and overruling companies and eliminating independent agencies. They asked him, we're right, aren't we? We're totally right that the president has to have this power to which Sauer unsurprisingly said, you're doing amazing sweeties. They asked him some other things, such as the Federal Reserve Board is different, right? And we don't have to decide annoying stuff, like whether our reasoning might mean dismantling the civil service, right? To which Sauer basically said, oh, oh, for sure. I mean, on the Fed, to your kind of like a lot of this was surprisingly kind of lazy feeling for something this high stakes, Leah. He basically asked about the Fed, just quoted back to the court their own incoherent language from the Wilcox shadow jacket order about how the Fed was probably different. So we just like said the word salad that they wrote in that order and they all nodded and were like, okay, yes, that's right. But there was no substance on either side of that exchange. It was one of the many moments that made me want to put my head through a wall. Well, in Sauer's defense, and it really does pain me to say that, but we're trying very hard to be an even handed podcast in 2025. But in Sauer's defense, he understood the assignment and the assignment is to be a yes man in all things. He says yes to the president and he says yes to these justices. He essentially just stipulated that they don't have to decide other things that they don't want to decide right now on things that are inconvenient truths that are getting in the way of making this unitary president. He told them you don't have to make up any of these arguments right now and he didn't make any up and it all seemed good for everyone. Yeah, and like that is one part of what I found to be crazy making about this argument, which is the extent to which it read or sounded to me like fan service, you know, fan service about the justices and for the justices. So there's the basic tenor of this argument was we are so right. We're such geniuses. Everyone else has been really wrong, including those chumps on the New Deal Court. They were very, very wrong and we are now going to correct all of the wrongness that has dogged the American public for the last 90 years. You're welcome. But you know who was not wrong in the justice's estimation and the person for whom a lot of the kind of fan service seemed to be provided or at least in whose name the fan service was provided was the great man himself, Antonin Scalia, who was the only real authority and the only real source of anything this court will recognize as long as for occasionally court now for sure enough and then they regrettably have to you know suggest that even he was not reactionary enough for this court. But I do want to play to pretty jaw-dropping exchanges along these lines of kind of Scalia fanfic. They came up in response to some of the democratic justices pointing out that the court would be overruling as centuries were the precedents that a bunch of earlier justices blessed if the court does the damn thing. So let's play first the Republican appointees posing some questions and sourist responses. Responses to justice so do my worst question. You have taft and Scalia, right? Not too shabby. I think those are outstanding jurists and with respect to Justice Scalia in particular one of the greatest jurists in the history of the court. It's creating junior varsity legislatures which are beyond constitutional under Justice Scalia's dissent in mistreatment. Like new no law just vibes dropped no law just Scalia opinions and hearing this argument like it helped me understand why they were really struggling in Olivier that prize or head case from the previous week. They were so busy preparing to lie in ice Scalia it was jarring when all of a sudden there were questions and concerns about an opinion written by the great man himself. Like the dissonance was just too much and this you know Scalia fan service worldview was also evident in some truly moronic comments by John Sauer about wolves which we will play and then explain. Here though this wolf comes as a wolf right I mean the restriction on executive powers right there in the statute. I can't address all the wolves in the world but this wolf when it comes to constitutional structure is fenders the most dangerous world wolf in in the history of Norse mythology. If you are like WTF is he talking about with dangerous wolves and fenders I'm sorry you are not a member of the right wing legal cult like when I heard this it reminded me of that like 90s anti-drug commercial like this is your brain this is your brain on drugs like this is your brain this is your brain on fed sock talking points like you just start saying things like wolves yeah this is like the hot box and that you've been talking about for years now yeah so I too had a full body kind of cringe experience during that moment there you know for a couple reasons one just the kind of insane lack of self-awareness and insularity there these are members of a club they're speaking to each other in their secret language which is like Scalia references Scalia polls dissents but also they were I think particularly in the fenders invocation much lair than Scalia himself with least frequently had rhetorical flair going for him so they can't even do that but you know the effort to appeal to I guess a combination of Scalia stands and Norse mythology stands is we should explain a reference to Scalia's dissent in Morrison versus Olsen Morrison is the case that upheld the independent council statute which is one of the post watergate reforms that created this independent council who was not removable at will by anybody in the executive branch in order to investigate allegations of high level misconduct by executive branch officials so given the nature of the position I just described you can see why it made sense for its occupant to enjoy a degree of independence from the executive branch's political leadership and when this arrangement was challenged the court in an opinion written by liberal squish William Rankist upheld the constitutionality of the statute but the great man Antonin Scalia decided to dissent from the majority in Morrison versus Olsen and basically he went off and by off I don't mean OFF I mean a double UF he went off to say that the independent council statute was unconstitutional he described the law as a major threat to the separation of powers and in describing the independent council statute he decided to be uber dramatic writing that this wolf comes as a wolf Humphrey's executor what big T-2 have so basically it's part invisible and yeah like hold the opinion up to the light but basically this is the vibe so since Humphrey's executor dropped you know 90 years ago we have never really experienced the true separation of powers until now when this court is going to do us a solid and give us a real separation of powers along the lines that Scalia imagined in Morrison versus Olsen but didn't have the votes to call into being now does so it's going to be awesome there were a lot of other maddening aspects of the argument and we're going to spend a little bit more time next week on some of the implications of the case with a very special guest but let's just take a few more beats including on the theory the Republican injustices are poised to embrace and that is the unitary executive theory as we have said before the uet slash uti proceeds as follows it notes that the constitution vests the executive power in the president it insists that this means all of the executive power the constitution doesn't say that but you would never know it from the way the court's Republican appointees especially the chief justice love to say all of it um the constitution also requires the president to take care of the laws be faithfully executed adherence to the uet say this means the president has to be able to dictate exactly how the laws are executed constitution does not say that explicitly and the uet takes these things which again the constitution does not say and then declares the president must be able to control anyone who exercises significant executive power which they then assert means the president must be able to fire at will because that's a core component of controlling the underlings in the executive branch anyone who exercises that significant executive power okay this is me staring in dobs and rovers as way just like things the constitution doesn't say but are nonetheless totally fine um anyway i'm at agriwall who represented Rebecca slaughter tried to meet the justices where they are um which is to say he tried to talk to them and their preferred history and tradition vernacular and as he noted there's literally a decades-long history and tradition of congress setting limits on the president's removal power but again this was another example of bringing principles to a gun fight because these justices only want to talk about history when they're distorting it to tell us that fetuses should be able to own ar 15s and that the freedman's bureau was really about providing aid to Confederate slave owners who slaves had been confiscated by the union um i thought agriwall did a good job a great job maybe showing how history and tradition were actually on his side but again the whole argument assumed a kind of principled reason that i just don't think was ever going to be there yeah um you know i listening i had a somewhat different take on agriwall's performance like i thought it was a little mid you know he had good arguments because there are good arguments for independent agencies but at various moments his defense of them sounded to me like a little tepid and i just wondered about the choice which you know we've seen in a few cases you know i've seen in some that just like really irked me to put up someone with republican credentials as the advocates um agriwall clerked for a leader on kavanaugh in an effort to get credibility with the republican appointees and i just think like they don't care they're not going to listen you know particularly in a case like this right like it's just been decided so put up someone who will tell it to them straight to their faces speak to the public and be on a apologetic and a defense of independent agencies you know like frankly justices jackson kagan and so to my or word during this argument like i just like it just this move irks me a little of like picking a republican advocate because you think they'll have more credibility because i just think it kind of like plays into the idea that they do and should have more credibility so i mean this is basically the tension that jody canters article about the liberal justices is sort of teasing out like do you try and negotiate or do you just go straight for it and you know like tell these guys to fuck off their wrong and you know i think there is something different about fellow justices trotting that line as opposed to an advocate you know i didn't see his selection as the advocate as an effort to find common ground i i thought he was selected because he is someone with these conservative bona fide's who maybe could get the benefit of the doubt but probably not but i also think it was meant to underscore maybe for the public that literally two generations ago the idea that congress could limit executive removal power was actually a conservative argument and third i think slaughter side probably recognizes that the best they can hope for for their client and everyone else similarly situated is a narrower decision that carves out some exceptions and agar wall press this point assiduously so no i think you're exactly right it was not a fuck you the unitary executive theory is straight fan fiction garbage and you are all a bag of hacks like he was definitely not saying that but i don't think he was ever going to be in a position to say that and i don't know that any advocate could be in a position to say something like that although justice is good i'm not asking for that although that would be fun right and a certain point i wonder like if there are clients who just think like this is not a serious court so like it's in my interest to like demonstrate that but like the added value of a republican advocate is just unclear in cases like this so why not pick the best advocate and sometimes that will be that's fair you know a republican you know we'll talk about roman martina's in the next case who was terrific other times like here i just think there were better options like john for Bennett who we've talked about isha non pam carlandy pa gupta like i could go on and it was just like kind of disappointing for me to listen to i think about sail a law which was an interesting case where the first trump administration joined in the challenge to the constitutionality of the single member director structure of the consumer financial protection bureau and so they had to appoint an amicus the same way they had a point one in the campaign finance case we're about to talk about and there was what seemed at the time a very crafty decision which was to appoint paul clement a conservative like great you know bipartisan credibility to defend the structure of the cfpb and you know he did a fantastic job and it didn't work right these drunken down and they laid the foundations for the court to just basically say in this case uh the writing was on the wall and sail a law and so i wonder whether that kind of shed some doubt on this as a strategic matter and the other thing i thought was that i found so galling um it really on the part of the justices more than agriol although i don't know that he handled it as i thought he should have the justices having invented this distinction and sail a law where a single member director structure is constitutionally intolerable but a multi-member one is at least for now fine this is of course only five years ago and five years later they're about to say well that that one's not fine either but it was an invented distinction it never really made any sense as keegan made crystal clear in her descent and sail a law but then they made agriol defend the distinction which they made up which was so outrageous but he did and they asked him if he thought sail a law was correctly decided and he said yes and i just think once you've done that right you've given the game away and i i don't think they were at all fair to make him defend their insane distinction but i also think that if you say sail a law was right i just think there's no chance you even have a principled basis on which to say i should win here let alone a chance of winning here and so that i think was kind of tactical um but there's probably nothing that could have been done did nothing advocate selection or you know kind of argumentation or otherwise they're going to do what they've already decided to do here but i do think that that maybe other ground could have been gained along the way with a different approach i don't know i think they were in the bag for this and yeah i could have done any more and so it's just like what why pretend well i mean i give him credit for making the point in making it i think to the public like these are not woke views like these were conservative i don't think he made that to the public i just don't think he was effective anyone list i mean i i got that i mean like the whole history and tradition piece i think he really laid out like there is a long history of this and conservatives used to think that this was a conservative posture and i do think the emphasis on history was striking in that the trump administration never affirmatively brought up history and didn't do a good job of engaging with history when you know the occasional question arose which is a pretty clear tell that they do not think that the history is on their side and that is because it is not um okay this is a world turned upside down i'm defending john sower and amid agar wall what is happening it truly is the festive season it is i'm giving you're wearing on almost festive sweater or the blue colored sweater it's green of some sort well the kind of green for when you're losing separation of powers and i'm beginning a better version of that or version that we have long needed strict scrutiny is 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legislative battle and breaking news moment by asking three questions what's really happening what can we do about it and how do we keep going together this is a space for clarity strategy and hope rooted in action not denial new episodes of a assembly required drop Tuesdays tune in wherever you get your podcasts and on YouTube okay so let's talk about what else was scrued during this argument one thing that seems important to highlight was the complete erasure of congress which you know again we've occasionally made the same as day two because as mousa off and asks what is a congress but the court seems confused too and it's kind of the whole premise of this debate was the erasure of an entire branch of government so they seem to think pretty clearly that only presidents and maybe only republican presidents represent the democratic will they refuse to acknowledge that congress is democratically accountable and that both congress and previous presidents have signed lots of laws the federal trade commission act but many many others creating these independent agencies so it is a bit much to now decide the court needs to be the guardian of democracy by striking down this law and by extension lots of other laws that the people's actual elected representatives have passed justice Jackson was I thought excellent in really driving this point home and essentially working to as I think Jackson's questions really brought out make the president the repository of even more power as we are seeing in real time the catastrophic consequences of a president who ceases more and more power breaks laws assert sweeping authority over the administrative state and more so they're insisting that the executive branch is the only truly democratic branch and also unitary at the very same time that we are seeing the executive branch not exercising just the president's whims but also being driven by a lot of in the immortal words of mousa murray the new de i cadre dix ex husbands and imbosols the theory that makes this whole song and dance about giving pote s control over these agency the thing that makes it so great is this idea that all of this is good for democracy that it makes the agencies subject to democratic control because congress was apparently not democratic at all and it makes them accountable to the president who is the most democratic figure in the entire government so anyway also when did this court decide it loves democracy so much because partisan gerrymandering would like a word like when exactly are we a democracy versus a republic it's a little hard for me to follow justice kavanaugh throughout the argument also kept making these gestures to warrants liberty and essentially conjuring this idea that the really dangerous thing for liberty is the prospect of these unaccountable agencies and i was just sort of sitting there thinking like do you read the paper do you read because sir you know what else is a true danger to liberty an unconstrained unfettered president just doing things kavanaugh stops are a danger to liberty like sir be so for real any event just as justice jackson challenged sours argument that the unitary executive theory is good for democracy she also challenged the administration's arguments about constitutional tax i thought this was a really important intervention john sauer was essentially gesturing toward the vesting clause which states that executive power is vested in the president this was supposed to be a kind of slam dunk argument that the constitution gives the president all the power and just as jackson was like sir i see that you've read the constitution good for you here's another unexpected but welcome development what do you think of the necessary and proper clause because that is also in the constitution and it also says quote the congress shall have power to make all laws which shall be necessary and proper for caring into execution the foregoing powers and all other powers vested by this constitution and the government of the united states or any department or officer there of kagan has been shouting into the void about this for years congress can the constitution makes crystal clear address how powers vested in other departments like in agencies or exercise congress makes those agencies the text of the constitution actually says this stuff unlike the red line version of article two that has all of in the executive vesting clause so on this textual point i wanted to highlight not going to play the clip but just describe it this other worldly thing that justice barrett floated so she asked sour do we the court really have to decide which clause in the constitution is the basis for the unitary executive theory can't we just be kind of vague about the whole thing and gesture the constitution and say voila the unitary executive theory is a thing but not explain why that is like she was I think we should play the clip i think i actually let's play the clip let's play the clip the clip so general sour you argue that the removal power comes from the vesting clause and i understand why you make that argument because that would be the broadest authority because it would give you know that would be the full unitary executive theory but there are other theories of where the power could be located for example if it was part of the take care clause then it might be more limited because it might apply only or give removal authority only over those officers who exercise significant discretion or it might be an adjunct to the power of appointment which would mean that inferior officers didn't come within it and i don't read our cases to this point to really be very specific they mentioned all three and they could be mutually reinforcing is there any reason for us to be specific about it in this case this is maybe the best evidence that no thought no arguments going on right it's just like the talking points of a cult and like you need to believe the right things and that's it because when i hear stuff like this like i wonder do they think they are serious or do they understand they are parodying legal analysis it's also just like it's one thing if you're sitting around trying to figure out you want to like actually bring a lawsuit like how do we frame our claim like what what what you're building something from the ground up but to say we're going to announce a constitutional rule based on something right down the law that's a spitball like what we think the constitution like where we should find it so on brand they have been telegraphing this all fall yeah right this is just like her book tour interviews it's just like Brett Kavanaugh's eighth circuit talk where they were just like all that stuff we do on the shadow dog that we're just kind of freestyle like we don't really and we're not trying to be really concise or precise here because we know that we don't want to get locked down we haven't really figured it out like who wants to be pinned down i'm a free agent like about just blowing up agencies we just have to figure out what that's what we mean free agent free agency be free of them that's the whole point i mean again she's doing exactly what conservatives and fedsock have accused liberals of doing for years i mean this is the same argument that people leveled against heri black men and rovers is weighed like the whole idea that black men couldn't identify the precise part of the constitution that authorized a right to choose abortion she's basically like we can do that here too but for blowing up agencies right and sour and everyone else like yeah that seems right like be as vague as possible just do it all right don't worry we have other complaints there is the complete unwillingness to own up to a legal principle and its implications obviously that was on display in the barrett excerpt but appeared throughout the argument the administration is peddling and scotus is about to embrace but maybe hasn't figured out the precise constitutional foundations for it but the theory says that because the constitution vests executive power in the president the president must be able to fire everybody who exercises significant executive power this necessarily raises a lot of questions that sweep beyond the federal trade commission such as if that's the rule who else besides commissioners exercise significant executive power and as we said at the outset sour and the republican justices seemed totally unwilling to engage with this inconvenient question much less to answer it at times they declined even to acknowledge it this led to the following exchanges but you're putting at risk the independence of the tax court of the federal claims court article one courts you're putting at risk the civil service I don't see how your logic could be limited as to the non-article three courts we haven't challenged the removal restriction as not yet not yet yet we recognize that there are some line drawing issues as to those that came up in cases like fry tag and or tease again those aren't those aren't presented here those aren't briefed here in our logic has consequences once you use a particular kind of argument to justify one thing you can't turn your back on that kind of argument if it also justifies another thing in the exact same way I know would you don't challenge you're missing the point just details no rational no limiting theory just vibes like maybe this is how the just the tip migrates into the merits docket right because like they don't actually say this is what this theory is going to do they just say like oh yeah we're just saying this about multi-member commissions but like we're not actually blowing up like all of government yet like that that was really their line like don't worry this won't blow up the government yet slight problem was Neil Gorsuch couldn't keep it in his pants like he could not contain his excitement about blowing up the government in other ways and this came up when several of the democratic appointees observed like you know today there's been this kind of settlement and compromise congress has given these agencies a lot of authority some executive some more adjudicative in nature at the same time it has limited the president's control over these agencies so the agencies get to do a lot but we are not creating them as a mechanism for expanding presidential authority their point was straightforward we shouldn't now give the president more control over these agencies and disrupt that settlement and Justice Gorsuch took this as an invitation to blow up the agencies themselves as you can hear here general let me suggest to you that perhaps congress has delegated some legislative power to these agencies let's just hypothesize that and let's hypothesize too that this court has taken a hands-off approach to that problem through something called the intelligible principal doctrine which has grown increasingly toothless with time is the answer perhaps to reinvigorate the intelligible principal doctrine and recognize that congress cannot delegate its legislative authority is the water warm channel sorry what was the last I couldn't hear the last bit is the water warm the intelligible principle to which Justice Gorsuch is referring in that passage is a key component of the court's settlement around what's known as the non-delegation doctrine the non-delegation doctrine is the idea that congress cannot delegate its legislative power to other branches and the court last relied on this view in 1935 and the argument there was that in these two laws that were struck down the congress had given the executive what was essentially a blank check when it delegated power to these agencies since that time though the court has held that congressional delegations of power to agencies are fine when the congress provides an intelligible principle that guides the agency's use of the power and again because we're quoting great men no less than Justice Scalia wrote the major decision Whitman versus American trucking making this point about the intelligible principle and the non-delegation doctrine as Kate recognized sometimes the great man just not reactionary enough but like Neil Gorsuch was seemingly suggesting like maybe we're just not thinking big enough like maybe we should also blow up the agency's themselves by reviving the non-delegation doctrine yeah it's also I mean I'm sure it won't give them much pause but they might have to work a little bit to explain why the same court that went so badly a rye and Humphrey's executor in 1935 the same year was actually properly channeling the non-delegation doctrine which we have under enforced since but what is time came what is time oh way speaking of doctrines designed to constrain agencies at various points we were reminded that the court's ruling in slaughter will probably not benefit democratic and republican presidents equally different republican appointees made clear that they have still got the major questions doctrine in their back pocket which they will undoubtedly use to say that democratic agencies cannot do things that trigger the republican party and republican appointees so yes both republican and democratic presidents will be able to fire agency heads and staff agencies with their own people I think even this court couldn't although you know maybe I shouldn't call it into being identify a rule that explicitly prohibits a future democratic president from doing what they're about to say Donald Trump can do but it might not matter because only the republican appointees in the agencies a republican presidents get to actually do things when they had the agencies because the major questions doctrine will be waiting in the wings to invalidate anything significant that democratic agencies might try to do so more crazy making things the republican appointees were for the most part not bothering to come up with arguments they had basically one talking point that consumed a ton of the time of this oral argument which was what if congress decided to turn every department into a multi-member commission what because we all know the real danger is congress first of all passing laws at all but second limiting the president's power too much by trying to install these bipartisan commissions at the head of bodies like the department of defense education agriculture interior like this was what they decided to spend their time on alina kagan had this I thought really epic response to that string of hypotheticals it strikes me mr. aga wise I listen to this you know if you go back to let's say the education department with the chief just which the chief justice raised that the more realistic danger here is that we'll have an education department as authorized by congress by law that won't have any employees in it and just just bear it kind of you know poop who this concern saying like who can possibly say what will happen like we can't possibly predict it like it's a real mystery girl yeah and i already mentioned the way the professed original is on the court were pretty uninterested and actually engaging with history but i also want to say that when they did engage they got some pretty basic stuff wrong so one they think statutes with terms of years but not explicit removal protections mean the president can fire those people in those offices at will but as professors love manand and jane manners have been writing about for years that is just not how terms were understood bear it really botched this in a question that she was asking about the revolutionary war debt commission which is an important early agency that had appointees with these terms of years there were also i think some real misrepresentations of a case called parsons a case called x part a henon even marbury versus madison so love manand had a really good post argument blog post on notice and comment that got into some of this and so we'll post that in the show note all right let's touch briefly on the implications of what the court is likely to do here so first of all this ruling is very likely to give us an ftc that is the ftc of jeth baseless's dream so awesome it's also going to give the president of the united states sweeping powers over every other agency in the administrative state so what he's doing with the department of justice the cfpb health and human services the department of education he will be able to do elsewhere and if you've loved this last year you're gonna love what's coming it's going to be great and utter nightmare and yeah that's what this court is going to unleash also you know so we now are going to after this decision comes down have these agencies with a lot of power that were designed to have that power wielded by these balanced bipartisan leadership structures and it really does raise the question maybe it would be better not to have some of these agencies at all if they're just going to be the playthings of an aggrieved and self-dealing narcissist although not have the agency that all I worry I am now channeling Neil gorsuch which is not really what I mean but I do mean that you know this is a critique that folks like Josh chaffets at Georgetown have made but when the court say in i and s versus chata invalidated the one has legislative veto left broad delegations but without congressional ability to oversee those delegations of authority like the court just thinks like oh what will happen if we pull this block out and leave the rest of it intact and sometimes it is much worse than if they just obviously best case scenario didn't metal at all um but you know maybe the agencies left standing are worse than if they did not exist at all so the New York Times had a piece on the potential blast radius of this decision just to name some agencies potentially affected you know there might be up to 50 including the national transportation safety bore the securities and exchange commission the nuclear regulatory commission and more and we actually aren't going to play this exchange you know which I thought of when you were talking about the history case but during the argument justice kagan asks the solicitor general look you would agree wouldn't you that the founders wanted power separated right to which he said I agree with an important caveat the presidency itself you know to which just is kagan you know it was a little taken aback and said you know that's not a caveat it's the whole fucking thing right that's right and you know honestly so this is our recap I know we went long we will go more quickly on the rest of this hopefully you didn't have to listen to this argument not worth your time unless you want to get amped up with rage like it's very clear six three humbri's executor overruled or at least declared no longer apical six new needs brought to you by earth justice guess what folks earth justice is taking the trump administration to court because they are 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earthjustice.org fortslash strict to make your tax deductible donation that will be matched through december 31st in moments like these it's easy to feel overwhelmed and even easier to feel powerless but we are neither i'm stacey Abrams and on my podcast assembly required i take on each executive action legislative battle and breaking news moment by asking three questions what's really happening what can we do about it and how do we keep going together this is a space for clarity strategy and hope rooted in action not denial new episodes of a assembly required drop Tuesdays tune in wherever you get your podcast and on youtube now because links can't get any worse the following day the court decided to hear argument in the campaign finance case national republican sanitorial committee versus federal election commission what could go wrong it seemed like the republican justices and the advocates are doing against the campaign finance regulation mostly wanted a rerun of trump versus slaughter and just to play that one back they had such a great time in that one let's do a quick refresher of the campaign finance case so the provision at issue here is the anti coordination provision which basically limits the ability of entities here specifically political parties to spend money in coordination with a political candidate so unlimited coordination would allow individuals and entities to circumvent contribution limits which are still intact for now um contribution limits restrict the amount of money that someone can give directly to a candidate and to a party it's much smaller for individual candidates it was thirty three hundred dollars at the time this case was filed and to a party more than forty thousand dollars and a donor can actually give a bunch to state parties to get that number actually overall closer to five hundred thousand dollars a small contribution limit for candidates relatively speaking larger for parties but the limits again for now do still exist the contribution limits prevent quid pro quo corruption so the idea here is that preventing a single individual from giving a ton of money to a candidate makes it less likely that the candidate will be captured by that individual going forward the coordination limits by contrast effectively prevent and runs around the contribution limits because they don't allow individuals to give money to a party that would then effectively be given to a candidate the lawyer for the challengers former solicitor general Noel Francisco basically laughed off the suggestion that there might be any corruption going on here in politics and it was such a jarring intervention that we thought we should play it this is just that the fact that one major donor to the current president the most major donor to the current current president got a very lucrative job immediately upon election from the new administration does not give the appearance of the quid pro quo you're on our not a hundred percent sure about the example that you're looking at but if I am familiar if I think I know what you're talking about I have a hard time thinking that his salary that he drew from the federal government was an effective quid pro quo bribery which maybe why nobody has even remotely suggested that maybe not the salary but certainly the lucrative government contracts might be so that was fun to joke about Elon being uncorruptible wasn't it oh yeah but on the and also just like no no one's saying the salary was a problem we're talking about billions of dollars in contracts like come on anyway but on the kind of slaughter slash Humphrey's energy that Leah was mentioning the court really brought to this argument there was the same kind of insularity and also sort of like polarization of the right wing legal profession at various moments it became very clear that the republican appointees view themselves as part of a club that includes republican advocates they are all in the same team they are all engaged in the same project so here is an exchange between Kavanaugh and Francisco as Kavanaugh was asking about other campaign finance regulations aside from the anti-coordination limit that was actually an issue in this case you think it's constitutional uh your honor I don't have a position on whether it's constitutional or not I'm willing to assume for the sake of argument here that it's constitutional but it's still only the second of the do you're not going to want that cited back to you in a couple years the soon for the sake of argument okay that's all right he's literally yucking it up with no old Francisco former solicitor general in the first Trump administration about how they are coming for the remaining last shards of campaign finance regulation it was almost like Fed sock madlibs and it reminded me so much of the references to wolves and Scalia in the slaughter argument second and relatedly was the courts and the challengers unwillingness to recognize or at least acknowledge the implications of the new legal theory that they were pushing and their unwillingness to adopt any kind of limiting principle here so this was very much like the energy and slaughter here it seemed like the democratic appointees wanted to know okay if you win on this campaign finance challenge where does your crop plastic logic then take us and here's the response I understand but I am saying that's not what we're challenging here I appreciate that but but how can your argument be today that these limits can fall and it will be okay because the other limits exist if you can't make a representation that we're still going to have those other limits translation shorter no francesco you can kill this limit because other campaign finance regulations will prevent corruption but also I refuse to say we won't challenge those other campaign finance regulations and we probably will this generated a rejoinder from Ramon Martinez who is the court appointed amicus defending the judgment below so remember as we've said because the Trump FEC was on the same side as the challengers here the court appointed Martinez who is a former law clerk to both the chief justice and justice cabinet so he is totally fluent in right wing legal speak but actually deployed that fluency for the forces of good in this argument so let's play a clip here and I think when mr frank francesco's position is and I think I'm glad he laid it out this wolf comes as a wolf he has basically told you that they're going to keep litigating to knock down every single one of the restrictions and that includes the limits on donors to candidates directly but just listen to how the the donor candidate limit is going to be undermined as Kate said as we learned you got to speak in fluent fed sock about the wolves and there were also just striking moments where the justice is one of the advocates at least the ones on the same team that they are to tell them they're doing amazing and that all criticism of them is unfair here you are in our much-moleined I think unfairly maligned decision citizens united the effect of the provision at issue was to privilege certain corporations namely the corporations that control all of the national media and disadvantage other corporations like citizens united and the effect of our decision was to level that playing fear field here it is not apparent to me who is benefited by this provision and who is disadvantaged by the provision and I would appreciate you are enlightening me on that short I was in dc and listen to the argument a couple of hours after it happened and I texted you guys I was just I howled as I walked into the metro listening to this I mean he really cares and honestly I think that that gave me a great deal of energy because the criticism action some level does get to them I mean it's maybe a small comfort because they're still going to do what they're going to do but the fact that what maybe I should remind everybody who's talking about here right so in 2010 in his date of the union address president Obama made this comment that will play here with all due deference to separation of powers last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests including foreign corporations to spend without limit in our election and as the camera panned to the crowd it caught Justice Alito very conspicuously mowling not true while shaking his head vigorously side to side really not true really but again the fact that Alito is still mad about this almost 16 years later it tells you everything you need to know about him and another I think rinse and repeat aspect of this argument was the fact that the court by inserting itself into this area at all is upsetting settlements that Congress and the president the actual democratic branches here brokered is this like a time to remind everyone that a wise man once characterized this kind of negotiation and settlement as quote hashing out in the hurly burly the give and take of the political process between the legislative and the executive yes that was none other than chief justice john g robberts in the majority opinion in trump versus maize ours and wait for it he was quoting a young Antonin Scalia even Scalia was getting things wrong it seems anyway justice so to my or made this very point to noal francisco see she speaks fluent Scalia to she basically said look you're arguing that we have to strike down this campaign finance regulation because our previous campaign finance decisions like citizens united benefited corporations and advantage them relative to political parties well now we have to come in and correct that imbalance we had a settlement you fucked it up now we're correcting that imbalance basically we're just fucking shut up and this court is now going to fix it by fucking up more shit this doesn't seem very sustainable and again back to the slaughter recalls um this was just like when the court effectively upset the settlement compromise that congress made delegating broad authority to administrative agencies while then insulating the agencies from presidential control and now we're going to unpack that and they're going to have to fix it going forward so basically they're just fixers they're handymen not justices a few more highlights slash lowlights i want to play this clip with zero context boy you are you are you are assuming a lot there about people's uh honestly uh dumbness just i thought this evergreen for this court assuming a lot about people's dumbness um just want to say maybe another word about appointed amicus from on martina's of lathe and walkins i thought he did a really excellent job arguing that there are serious jurisdictional problems here and specifically that there is no live controversy and no prospect of enforcement of the regulation both because neither of the petitioners vice president jd vans and congressman former congressman steve chibault from a high oh neither is currently an active candidate for federal office and in addition the trump administration has said very very clearly we are not going to enforce this law we think it's unconstitutional and you can get an opinion from the fec that will be an absolute shield to any potential public or private liability if you know you're concerned about the possibility of future enforcement so there's literally no actual live dispute for the court to resolve here and i just want to play clip where i thought martina's got kind of close to telling the justices like past some self respect at least try to look consistent and like you're doing law if any other plaintiff in this court told you that his injury is speculative that it's uncertain that it's premature that it might happen and it might not happen they wouldn't have a prayer under article three the same rules apply to the vice president there's no politician exception to article three this is why i said like i thought he did great like you know i know the court appointed him selected him but it was just fabulous i thought and like he also invoked the texas sb8 case you know when some of the justices were floating the prospect of like private enforcement even if the federal government might not enforce the regulations he's like look you said the prospect of private enforcement wasn't enough in the texas sb8 case so like qed and there weren't like many questions either to no francesco or the federal government on mootness but at least some of the chiefs questions to martina's sounded like a little friendly to me and you know martina's noted that the challengers can seek an advisory opinion from the federal election commission that would immunize them from future enforcement by a future administration if they're worried about it and you know there weren't any questions from you know justice is Jackson Barrett Kavanaugh Gorsuch and maybe even kegain in the seriatum section where the justice is go one by one to martina's or to mark alias who argued for the interveners so maybe maybe they will say this is all moot i'm just gonna say maybe this is another opportunity where they appoint someone with conservative bona fides and yeah again as long as they're good i don't have an objection fair enough fair enough he was great all right the court also heard argument in ham versus smith this was a death penalty case about atkins challenges atkins versus virginia is the 2002 decision that prevents states from imposing a capital sentence on someone who has severe intellectual disabilities although the decision also allows the states to define and determine who has an intellectual disability under alabama law someone claiming an intellectual disability under atkins has to prove among other things that they have a true IQ of 70 or less and post atkins there has been a lot of litigation around the way states actually implement the prohibition on executing people with severe intellectual disabilities um in ham the specific question is how courts should weigh the cumulative effect of multiple IQ when they're assessing an atkins claim so the defendant in ham who prevailed below scored in the mid to low 70s on multiple tests the district court and the court of appeals said that based on the standard margin of error these scores might indicate the defendant could qualify as mildly disabled and actually may have an IQ below 70 and so they therefore considered not just the IQ tests but also other evidence of intellectual disability the state seems to want to press a rule that makes an individual's IQ that is like whether it is below 70 a way of foreclosing an atkins claim if it is not below 70 but you know prior to this making a showing of intellectual disability was not just based on a number on a test score but could also be shown through kind of adaptive functioning limitations and some of the democratic appointees suggested that this particular case might not cleanly present the question about multiple IQ scores like being enough because it's not clear the state has or applied you know a version of a rule that would say a defendant can't show intellectual disability if their IQ is above 70 and there were also conflicting experts about the defendant's intellectual abilities the district court credited the defendant's expert you know I say that knowing how well this court respects district courts fact findings but still right the court also heard oral argument in fs credit court versus sabha capital master fund the question here is whether the investment company act creates a private right of action that is legal authorization for private entities to sue and this case invites the court to clarify when statched our history and legislative context might matter to that analysis as Justice Sotomayor noted during the argument you know there are reports from the legislative history both the senate and the house saying they understood the statute to have a private right of action this I don't know if you guys felt the same way but this to me that was another case also the same week in which the kind of clubby in group feel was just sort of like so present and kind of turned my stomach so one issue in the case or like maybe the biggest issue in the case is how the court should grapple with both its own decisions and statutes passed by congress before the courts very hard textualist turn that is before the court decided to totally change the way it reads statutes and you know in particular the question here is you know whether it will read implied rights of action into statutes that don't explicitly have those rights of action so let me just play one clip from that here if the court lets the second circus decision stand the clear statement rule in sandavall and Gonzaga will have little meaning the court should leave private rights of action to congress and rejects sabha and the second circuits unworkable return to the ncn regime so there were just like all of this talk about like the oncn regime and like when that changed and what earlier decisions were like tainted by that and it just you have to be so deep in the weeds to even decode what they are talking about it was just like you really don't have to make this as impenetrable to a lay audience and yet you're choosing to but yeah honestly like I talked to my fed court students about this yeah how like they have to kind of learn the different players because like so much of this now is about like context relationships and like memes in almost a certain way about like this is just you know what this stands for and like the social understanding of different groups about like this period or this area of law and you know on this like insularity point like there was one moment i think we're one of the advocates asked Paul Clement who was arguing on behalf of a private right of action you know for respondents like i know this is awkward because you're usually arguing against legislative history and it was just so again like clubby insular like these are the rules and like we can all kind of joke about them because like we all understand it um you know on the substance i'm not sure how this case might come out it's possible this will be the rare case where the court says there is an implied right of action in the statute but unclear strict scrutiny is brought to you by skims guess what folks the holiday season always brings one person that's really difficult to shop for in my life it is a certain teenager with very discriminating tastes but that is why this year for the holidays i'm going to be stuffing that stocking with all of the great finds at skims why because according to my teenager skims is comfortable flattering and consistent yeah i mean you can't make that stuff up they love how the fabrics feel they love that they feel great on and they love that you can always count on them they fit the same way every single time and honestly you can't get that consistency from 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open at skims.com head over there for your comfortable flattering and consistent new lounge wear in moments like these it's easy to feel overwhelmed and even easier to feel powerless but we are neither i'm stacey abrams and on my podcast assembly required i take on each executive action legislative battle and breaking news moment by asking three questions what's really happening what can we do about it and how do we keep going together this is a space for clarity strategy and hope rooted in action not denial new episodes of a assembly required drop Tuesdays tune in wherever you get your podcasts and on youtube that's all for recaps it was a lot oh well you're still with us um but we will now turn to a grab bag of news and court culture first the supreme court vacated a second circuit opinion upholding new york's vaccination requirement as a parent with kids in new york city public schools i am psyched so these rules for everybody it's the giving season um so the requirement i should say applies to both public and private schools and it has no religious exemptions the court just basically directed at least at this point obviously i'm sure it'll go great down the road but at least for now the court just said the appellate court had to reconsider its decision upholding the requirement in light of the supreme court's decision in mahmood versus tailor which we've talked about a good amount on this podcast that's the case that held the parents had a first amendment right to opt their children out of storybook time at school when the story books had lgbtq characters the plaintiffs slash challengers in the vaccination case argued that the vaccination requirement and the lack of exemptions for vaccinations was animated by religious hostility um i will also note that there was a maddening typo in the opening paragraph of their submission so can i read it please i want to pile up sentence no but i love that it's so petty and so good and also it's like really fucking bugs me yeah yes can i okay today in new york if a vaccine would harm your lungs you may be exempted but if it would harm you soul you may not you soul just one letter just get that arm just say me it could not land that plane when jenny macarthe is editing your briefs just just for jettie anyway um in other news um judge amille bovet of the third circuit attended a trump rally and when asked by ms now why was he at the trump rally given that he is a member of the third circuit court of appeals judge bovet responded just here as a citizen seems almost quaint but maybe i'll just read a little from can and five of the judicial ethics code quote a judge should refrain from political activity that's all i'm gonna say because it seems pretty straightforward the actual text includes the admonition that a judge should not quote attend or purchase a ticket for a dinner or other events sponsored by a political organization or candidate end quote um again once you take away the reading requirement for a federal judge said i think everything's off the table yeah you know he he judge bovet is really upping the ante in the america's next top scotus justice race like those idiots on the fifth circuit think they can get a supreme court nomination by writing screeds about joe biden in their opinions like get real the dark lord of the third circuit is showing you how it's done and if you're not a contributor to steven miller substack you just don't have the game well can i say a question though about that like is cluelessness about things like these canons or genuine like define don't care to you just watch me kind of energy you think it's a second um i think it doesn't matter yeah like it's just so wack i do i think it's the second like it's just so like i am not a judge right i am aware that there is this kid right this like judges shall not participate in political activity because like even observing the courts right like i know like judges do not engage in these activities and opt out of many of them in order to avoid the appearance of engaging in politics and partisan activity um the other thing too is like you can't get mad as the supreme court and some of these lower court judges do when people talk about like you're clearly doing politics if you're literally going to a political rally like you don't get to talk about how know what we're doing here is a law and you dumb fucks out there just don't get it yeah yeah so during this particular rally you know Donald Trump once again said a bunch of horribly racist things you know including some directed at it was a Thursday right right uh about representative Ilhan Omar you know the crowd shouted throw her out and again judge bovet is in the crowd like is he chanting along it's just horrifying jesus christ in other news uh alina haba announced her resignation from whatever it was she was doing um at the u.s attorney's office in the district of new jersey so this is of course fresh on the heels of the third circuit opinion that affirm the district court opinion finding that haba was unlawfully appointed to head the u.s attorney's office for the district of new jersey and therefore could not exercise the powers of the u.s attorney in the district of new jersey so she basically said you can't fire me because i quit and i don't know what she's going to go do with herself but um ms now has reported that with respect to one of the other sort of dubious acting u.s attorneys this one Lindsey haligan she is apparently actually going to go before the senate as trump seeks her confirmation to be a senate confirmed u.s attorney which i genuinely am looking forward to popcorn galore as we watch that confirmation hearing if in fact it ever comes to pass right i'm a dubious um but you know i don't think you have to show every charge to their grand you know i haven't no you don't have a right not to testify against yourself you don't know i haven't read the fifth amendment but i'm sure it's not as good as the fourth or the third because it's after all right well the possibilities are pretty exciting and so we'll see if that actually does come to pass um in the meantime the district courts are still courting unlike some high courts we know judge zenis granted kill mara bregogarcia's petition for habeas corpus ordering ice to release him from custody as a p that is a developing story as we record on thursday um but that is a major development and it comes with a finding of some incredibly egregious conduct by a federal government in his case which we're all familiar with but we now have some additional detail on another district court uh judge bryer that's charles not steven um issued a preliminary injunction finding that the president's continued federalization of the california national guard is unlawful it opens with this line quote the founders designed our government to be a system of checks and balances defendants however make clear that the only check they want is a blank one end quote i feel like as i was saying that first sentence the founders designed our government to be a system of checks and balances i thought john sour would say with one caveat um but uh judge bryer's opinion was stayed until this upcoming week the federal government has already appealed it to the nine circuit so there's likely to be some quick appellate developments there and speaking of the nine circuit the nine circuit issued some additional opinions respecting the court's decision to take on bank the challenge to president trump's federalization and deployment of the national guard in origan um so one judge j by b did not really see this coming honestly uh penned a long statement arguing that the president's deployment of the guard may violate another provision of law that the party's actually really haven't focused on and that is the domestic violence clause in the constitution which says quote the united states shall guarantee to every state in the union a republican form of government that is a little bit more familiar to a lot of people but the rest of that phrase says and shall protect each of them against invasion and on application of the legislature or of the executive when the legislature cannot be convened against domestic violence so judge by be suggested the clause meant the nine circuit was wrong in the case involving the deployment of the national guard in california to defer to the president's assessment that one of the conditions authorizing the deployment of the national guard has been met to which newly appointed trump judge eric tongs said uh new he wrote that quote judge by b's work is in the end a great labor producing a mouse and quote and we should have been a reference to a wolf should have been a reference to a wolf it's got to be a wolf but we should also note that judge tongue has some issues of his own so when he was nominated it came out that he said some kind of rando things so in his past he had said that he believes quote in gender roles and that women are simply better than men at some things i would say one of those things is law but i digress um he also went on to say that when these radical feminists tried to blur gender roles like undermine institutions like marriage institutions which hold society together um you know what else whole society together judge tongue a constitution and it seems that that was kind of judge by b's point and before we guild the judge by b lily a little too hard we should also note that he was appointed to the federal bench by George w bush and he along with john you drafted the so-called torture memos which were a set of legal memoranda justifying the CIA's enhanced interrogation techniques in the aftermath of nine eleven so just gotta say judge tongue when you've lost the author of the torture memos where are you exactly and where are we we are at the end of this episode which means it is time for our favorite things um that's my attempt at it my favorite things are wolves yes exactly my favorite thing is nairis the fiercest of all the north swolves no my favorite wolf is a dire wolf uh a dire wolf reference i could get behind yeah yeah but um actual favorite things uh so uh don moanahan had this great post about you know slaughterer and the project um at will who's will uh that i definitely recommend i want to call out Alexandra petri friend of the pod she had a great piece in the Atlantic documenting the kennedy center honors it's called trump's very weird night at the kennedy center honors and i mean she really just puts her finger on the pulse of all of the weirdness that happened there and and i'm not even just talking about the bad plastic surgery like everything is covered it's truly a rollicking read um i also wanted to recommend a book a flower traveled in my blood by haley coen gillaland which is about argentina in the 1970s and 1980s when a military hunter would just randomly disappear people um this is a chronicle of the work of mostly women um getting beyond their family roles judge tongue to try and recover their family members oh that's great it's been on i think the times like best books of the year list and i'm meaning to read it so that's good i really do i want to call just a long piece of investigative reporting that ran the new york times late last week by megintouille and isabel a quai pretty incredible investigative reporting on the date brothers at andrew and tristan date these manosphere stars and accused rapists and sex traffickers who have very deep ties to a lot of people in the trump administration including like barren trump which i had not known but is detailed in the article so pretty incredible investigative reporting that seems to have spanned the us the uk romania where they were living for some time before they were sprung out of their you know uh release limitations and allowed to return to the united states uh i mean perfect on a private plane profoundly disturbing dystopic account but just really incredible reporting so definitely read that if you haven't all right so let's turn to some housekeeping before we go first up this week on runaway country alix wagnar is joined by three incredible guests to dig into the chaos at the pentagon first former cia analyst and former assistant secretary of defense and now senator elissa slotkin joins alix to talk about her stance on both the boat strikes and signal gate and how it has been in the crosshairs of the president and his allies then ben roads ways in on the reputational damage and what it says about america on the world stage and lastly nancy usuf one of the journalists who gave up her pentagon press pass rather than bow to the authoritarian rules that beat hegseth was seeking to impose on the press shares what it is like reporting from outside the walls while still holding hegseth accountable it is a jam packed musklessen episode tune into runaway country now on youtube or wherever you get your podcasts and guess what stricties we are headed to the west coast best coast in case you missed it or in case your group signal chat included an Atlantic journalist and you didn't get all the info strict scrutiny is headed to the west coast for the first time ever you can catch us on march 6th in san francisco at the herpes theater and on march 7th in los angeles at the palis theater you can come for the analysis but stay for the gentle bullying of chief justice john robberts don't worry he can take it tickets are at crooked dot com for slash events and you should grab them before they sell out west coast best coast we're coming for you strict scrutiny is a crooked media production hosted and executive produced by leo litman milisamari and me k-chall produced and edited by melody raule michael guldsmith is our associate producer jordan thomas is our intern audio support from kyle seglin and charlotte landis music by eddy Cooper production support from kate long and adrian hill matto groat is our head of production and thanks to our digital team by tethco johmatsuki and johanna case our production staff is proudly unionized with the writer's guild of america east subscribe to strict scrutiny on youtube to catch full episodes finest at youtube dot com slash at strict scrutiny podcast if you haven't already be sure to subscribe to strict scrutiny in your favorite podcast app so you never miss an episode and if you want to help other people find the show please rate and review us it really helps in moments like these it's easy to feel overwhelmed and even easier to feel powerless but we are neither i'm stacey abroms and on my podcast assembly required i take on each executive action legislative battle and breaking news moment by asking three questions what's really happening what can we do about it and how do we keep going together this is a space for clarity strategy and hope rooted in action not denial new episodes of assembly required drop Tuesdays tune in wherever you get your podcast and on youtube