00:00:02.000The Supreme Court has ruled if you are born in the United States, you are a citizen.
00:00:07.000And if your parents traveled here to drop a baby, you are still a citizen.
00:00:10.000And if you spend five minutes here your entire life after your parents drop you here and then take you home, you are still a citizen.
00:00:17.000We'll dive into one of the most important rulings in the history of the Supreme Court in just one moment.
00:00:21.000Plus, we'll get to major Supreme Court rulings on the Weed Killer Roundup, whether boys can play against girls in sports and campaign finance, spending a huge legal day here at the Ben Shapiro Show.
00:00:42.000So the decision is in Trump versus Barbara.
00:00:45.000It's a birthright citizenship case six to three with Thomas Alito and Gorsuch in dissent.
00:00:51.000Justice Brett Kavanaugh sort of split the baby.
00:00:53.000He was sort of in dissent, sort of in concurrence, concurring in part, dissenting in part.
00:00:56.000Justice Roberts, again, a horrible pick for Chief Justice.
00:00:59.000I warned you of this when he was selected by George W. Bush.
00:01:02.000I was maybe the only conservative columnist in America who said that Justice Roberts would not be good.
00:01:07.000This makes yet another terrible Chief Justice Roberts decision because, again, Remember, he's the guy who said Obamacare was totally legal.
00:01:14.000Now, he, along with the liberals on the court, is claiming that the Constitution of the United States under the 14th Amendment mandates, mandates that if you're born in the United States under pretty much any circumstances, you automatically become a citizen.
00:01:29.000Now, I understand that we've been living with that rule in the United States for a very, very long time.
00:01:33.000That is how the legal authorities have interpreted citizenship in the United States.
00:01:39.000But the real answer here is that the Constitution never, never.
00:01:47.000The 14th Amendment never contemplated that.
00:01:49.000The Equal Protection Clause never contemplated that.
00:01:51.000The Birthright Citizenship Clause never contemplated that.
00:01:55.000The reality is that, again, because what has happened with illegal immigration is absolutely unprecedented over the course of the last few decades in American life, it just underscores how much this bad legal take on what citizenship amounts to has totally screwed America.
00:02:14.000And so when you let in literally millions, maybe tens of millions of people, Who then have babies in the United States, who are then citizens.
00:02:22.000You totally radically change the composition of the country because of bad legal interpretations like birthright citizenship.
00:02:28.000All right, so let's get into the actual opinion.
00:02:31.000The opinion by Justice Roberts here, which again is joined by the liberals on the court, is a bad opinion.
00:02:36.000It is a bad opinion because it is rooted in a really bizarre interpretation of the 14th Amendment to the Constitution and its history.
00:02:46.000It's rooted in a bizarre interpretation of how citizenship has worked historically in the United States.
00:02:52.000It's a narrative that starts in Britain and then takes a weird detour in the Reconstruction era and then goes back to the British view after Wong Kim Ark in 1898.
00:03:06.000So, to start at the very beginning, the governing law when it comes to citizenship in the United States is the 14th Amendment.
00:03:12.000It provides All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.
00:03:22.000And now, the key phrase that we'll talk about in a moment is subject to the jurisdiction thereof.
00:03:29.000If we just wanted to say that if you are born or naturalized in the U.S., you are therefore a citizen, then you don't need the phrase and subject to the jurisdiction thereof.
00:03:48.000Well, on January 20th, on his first day in office, President Trump issued Executive Order No. 14160.
00:03:54.000It was titled Protecting the Meaning and Value of American Citizenship.
00:03:58.000And the order provided that children born of persons unlawfully or temporarily present in the United States are not subject to the jurisdiction of the United States and do not qualify for citizenship under the 14th Amendment or the Immigration and Nationality Act.
00:04:12.000Okay, so here's where we get into the very weird history told by Justice Roberts.
00:04:16.000So he is trying to ground his version of birthright citizenship in sort of ancient practice.
00:04:22.000And as you'll see, Thomas Alito, they just rip him stem to stern on this, they just take him absolutely apart.
00:04:29.000Again, the reason that we're going live about an hour after the release of all these opinions is yes, I did read through every single Supreme Court opinion this morning, which amounts to there are three major opinions.
00:04:41.000It amounts to something like 275 pages of text.
00:04:45.000So, yeah, that's the thing we do here.
00:04:46.000We actually read the opinions when we break them down.
00:04:48.000So, Justice Roberts says The story of citizenship in the United States begins with the English common law.
00:04:55.000Before the revolution, the American colonists, like all in the British Empire, were considered subjects of the sovereign.
00:05:01.000Because the sovereign's power and thus his duty was limited in various respects, so too was the scope of this rule.
00:05:07.000He could not demand allegiance from, for he could not protect those born in lands he did not control.
00:05:11.000In all other respects, however, the sovereign's power and his claim to the people's allegiance was complete.
00:05:16.000A foreign mother could enter the British Isles, give birth, and leave with her child the very next day, and that child would remain a British subject.
00:05:22.000Okay, there's one problem with this, as Justices Thomas and Alito note pretty obviously.
00:05:28.000The American Revolution does not believe in the idea that the king has dominance over his subjects.
00:05:35.000Because again, we are citizens, not in fact subjects.
00:05:39.000And the basic idea of being a subject of the British Empire is a different thing than American citizenship.
00:05:45.000We had a whole revolution that we fought in order to not be British.
00:05:49.000But back to Roberts' opinion, he says, no, no, no, no.
00:05:52.000We actually imbibed from the British well and we took their rule and then we applied it here at home.
00:05:57.000He says, this view crossed the Atlantic with the colonists and was adopted with little fanfare after the revolution as subjects of the sovereign became citizens of the state.
00:06:15.000This common law of citizenship, known as jus soli or the right of the soil, prevailed in, quote, each and all of the states after American independence and continued to emphasize reciprocal allegiance and protection.
00:06:28.000And he says, in a nation of immigrants, an asylum for mankind, in Thomas Paine's words, jus solis, that means rule of the soil, broad scope took on particular importance.
00:06:39.000So, Dred Scott versus Sanford, one of the most famous cases in Supreme Court history, maybe the most famous case in Supreme Court history, the darkest case in Supreme Court history.
00:06:47.000That is the case in which Justice Tawney, prior to the Civil War, said that black Americans born on American soil were not, in fact, citizens because the Constitution didn't mean black people, right?
00:07:01.000According to Justice Roberts, in the odious decision of Dred Scott versus Sanford, this court imposed the Southern states' beliefs onto the nation.
00:07:09.000Chief Justice Tawney, writing for the court, concluded.
00:07:11.000That the words people of the United States and citizens had an unexpressed racial component, one that excluded all those descended from slaves.
00:07:20.000The court had overruled the common law, but the people eventually would overrule the court.
00:07:23.000It took more than a decade and the Civil War, but Frederick Douglass' vision of our common humanity would be fulfilled.
00:07:29.000Okay, so again, the idea here is that there was this rule of jus soli if you're born on American soil, you're a citizen.
00:07:37.000Dred Scott cut against that because it wrongly said that didn't apply to black people, and then the Civil War was fought to reestablish the idea that it belonged to everybody.
00:07:45.000And then, in the aftermath of the Civil War, two key pieces of legislation one, a piece of legislation, and one, a constitutional amendment.
00:07:51.000The key piece of legislation was the Civil Rights Act of 1866 and the 14th Amendment to the Constitution of the United States, which was originally passed in 1868.
00:08:01.000So, says the court and Justice Roberts, the act, like the Civil Rights Act, the 14th Amendment was intended to repudiate Dred Scott.
00:08:11.000The goal was grand to put the great question of citizenship beyond the legislative power altogether to settle the issue once and for all.
00:08:17.000The clause starts like the common law with territory.
00:08:19.000A child must be born in the United States, not elsewhere.
00:08:22.000And the clause ends again like the common law with sovereign power.
00:08:25.000A child must be subject to the jurisdiction of the United States, unlike, say, the families of foreign ministers.
00:08:31.000A child born on American soil and subject to American law was made an American citizen.
00:08:35.000Okay, so the question becomes, as we said right at the top, what does it mean, subject to the jurisdiction thereof?
00:08:40.000What does it mean to be subject to American law?
00:08:42.000So he says, to be subject to the jurisdiction of the United States is to live under its dominion.
00:08:48.000The citizenship clause uses jurisdiction in its ordinary sense, referring to the power of the United States to govern those within its territory.
00:08:54.000But that, of course, is really a silly interpretation.
00:08:57.000It becomes completely like who living in the United States would not be subject to the jurisdiction thereof, aside from maybe foreign diplomats.
00:09:05.000What would happen with, say, people who are born into Native American ancestry?
00:09:20.000Because if you just mean born here, just say born here, you don't need subject to the jurisdiction thereof.
00:09:27.000He says, The ordinary legal meaning of the text of the clause captures the common law rule with its broad reach and narrow exceptions.
00:09:35.000The groups included and excluded by Jusoli were included and excluded by the conventional understanding of jurisdiction.
00:09:41.000Excluded by both were the children of foreign ministers, because presumably they were not subject to American law, and members of 19th century Indian tribes over whom the United States had ceded a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign or quasi sovereign.
00:09:55.000Okay, but here's where the court's theory runs into a bunch of trouble.
00:10:02.000In the aftermath of the Civil Rights Act of 1866 and the 14th Amendment, courts for several decades interpreted this to mean that you actually had to be domiciled in the United States, meaning that you had to be a subject of the United States.
00:10:18.000You could not be, say, a foreign citizen in the United States and also an American citizen or drop a baby and that baby would now be considered an American citizen.
00:10:26.000So, what the court has to claim is that basically there was a consistent through line from British citizenship.
00:10:32.000Jusoli, all the way up until Reconstruction.
00:11:05.000But he says, it was only if the child's parents were domiciled in the United States, they argued, that the child was internationally subject to the jurisdiction of the United States as citizenship clause.
00:11:16.000In Wong Kim Ark's, this is a very, very famous case, Wong Kim Ark, kind of the most prominent precedent in terms of birthright citizenship, the court rejected that view, concluding, no rule of international law had qualified the ancient rule of citizenship by birth within the Dominion.
00:11:31.000Justice Gray, who wrote that decision, explained, the 14th Amendment was merely declaratory.
00:11:35.000Of the fundamental rule of citizenship by birth that prevailed at common law.
00:11:39.000That same rule, he wrote, was a force in all the English colonies and continued to prevail under the Constitution.
00:11:46.000What the court held, according to Justice Roberts, in Wong Kim Ark, which is supposedly the governing precedent here, was simple.
00:11:53.000The citizenship clause incorporated the common law and granted citizenship to nearly all children born in the United States.
00:11:59.000Not surprisingly, then, in the 128 years since, we have repeatedly understood the rule of Wong Kim Ark to guarantee citizenship to all children born in the United States and subject to its power.
00:12:09.000Okay, so the dissent written by Justice Thomas says, no, The whole idea here is that you have to have allegiance to the United States.
00:12:19.000When it says subject to the jurisdiction thereof, you have to be what we'll get to in his dissent domiciled in the United States.
00:12:25.000You have to owe your allegiance to the United States.
00:12:40.000He says the trouble is there is scant evidence for this dramatically revisionist view.
00:12:44.000Certainly no one said that such a change had occurred.
00:12:47.000For a Congress intent on putting the question of citizenship once and forever to rest.
00:12:52.000A domicile based qualification would have introduced significant uncertainty.
00:12:55.000Unlike the easy to apply common law, it would be difficult, if not impossible, to lay down any general rule of domicile based citizenship, as domicile often depends upon the circumstances of each case, the combinations of which are infinite.
00:13:10.000Okay, the Civil Rights Act made citizens of all persons born in the United States and not subject to any power.
00:13:17.000And the principle of dissent says that a person is not subject to any power only if he is domiciled in the United States, because if you're domiciled in the U.S., Then you are not subject to the law of your home nation.
00:13:29.000Justice Alito says a person is not subject to any foreign power if and only if no other country would automatically make him a national.
00:13:37.000Justice Roberts says, no, actually, you can be subject to two governments at once.
00:13:43.000Okay, so that is the opinion of the court.
00:13:46.000The opinion of the court is that essentially you're born in the US, that means that you're a citizen, and that goes all the way back to the British Empire.
00:13:58.000Because we basically just picked up the British idea of citizenship and dumped it wholesale into American law.
00:14:02.000Now, as we'll see in Justice Thomas's dissent, this is just a terrible take on the history and it's a terrible take on the law.
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00:16:07.000He says, essentially, the 14th Amendment.
00:16:09.000The citizenship clause of the 14th Amendment was created to rectify one issue and one issue only, and that was the question of blacks born in the United States as slaves.
00:16:19.000That the Dred Scott decision had said black people born in the United States who had no other domicile, right, who had allegiance to the United States, they were not subject to a foreign power, nothing like that.
00:16:31.000And then the Civil Rights Act of 1866 and the 14th Amendment of the Constitution were designed to make sure that blacks were treated as citizens as they should have always been.
00:16:42.000So he says, Blacks were entitled to citizenship because they were Americans.
00:16:45.000They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority.
00:16:50.000They fought and bled in the same battles, gained and gloried in the same victories, and were liable to be called upon to defend America in a time of war alongside every other citizen.
00:16:57.000The citizenship clause thus guaranteed them the dignity and glory of American citizenship so as to ensure they would never be treated as second class under the law.
00:17:05.000He says the same could not be said for the children of foreign temporary visitors.
00:17:09.000Foreign temporary visitors were attached to their home country.
00:17:12.000They lacked similar bonds to this country.
00:17:13.000They would not be called upon in time of war.
00:17:16.000Americans, consistent with their settler ethos, believed that citizens were the people who called a place home.
00:17:21.000Accordingly, domicile, a person's legal home, played a key role in both state and national citizenship in America.
00:17:27.000A person was a citizen of the state where he had his domicile.
00:17:31.000So, none of this, you're born here, you're here for five seconds, you leave, and you're an American citizen.
00:17:36.000No jus soli, because you're not subject to the king.
00:17:39.000The way that you become a citizen is you are born here in the United States or naturalized here in the United States, and you are subject to the jurisdiction thereof.
00:17:46.000You have domicile in the United States, according to Justice Thomas.
00:17:51.000He says, a person born here but domiciled in a foreign land, meaning that you are a Mexican citizen, you come across the border illegally, you drop a baby, well, you are considered as much a stranger to the country as the father, the baby is, because on what basis are you American, precisely other than you were just born here?
00:18:13.000And subject to the jurisdiction thereof is the phrase in the 14th Amendment.
00:18:17.000He points out the Civil Rights Act, again, passed before the 14th Amendment, and saying the same thing, because it was passed by the same Congress.
00:18:23.000Guaranteed citizenship to persons who were both born in the United States and, as relevant here, not subject to any foreign power.
00:18:30.000The phrase, not subject to any foreign power, excluded from citizenship children of foreign temporary visitors who were subject to the power of their home nation.
00:18:38.000Says Justice Thomas, the citizenship clause was consistently interpreted not to apply to the children of foreign temporary visitors who were, by definition, not domiciled in the United States.
00:18:48.000Regardless of administration or party, the federal government for decades after ratification regularly denied claims to citizenship by children who were born in the United States but not domiciled here.
00:18:58.000When a child was born in the U.S. to parents domiciled abroad, he was not, therefore, under the statute and the Constitution, a citizen of the United States by birth.
00:19:41.000He says, with due respect, which is always a sign that he's going to now give no due respect, the court's account is not historically accurate.
00:19:48.000The court says the citizenship clause incorporated the English feudal principle that subjects owed lifetime servitude to the king who owned the soil on which they were born.
00:19:57.000But Americans, unsurprisingly, rejected this feudal principle.
00:20:00.000The court's theory of American citizenship is based on the opinion of a New York assistant vice chancellor in an inheritance dispute called Lynch versus Clark, 1844.
00:20:09.000But the assistant vice chancellor's reasoning, whatever it was worth, was not even followed in New York by the time of the citizenship clause.
00:20:14.000Finally, the court reasons that dicta in Wong Kim Arc, that means stuff that's not the decision.
00:20:19.000Whenever you have a decision, you have the decision itself, and then you have a bunch of sort of reasoning and other extraneous ideas.
00:20:36.000He says the court reasons that dicta in Wong Kim Ark settled the meaning of the clause.
00:20:41.000But Wong Kim Ark itself emphasized that its holding was limited to persons domiciled in the United States.
00:20:47.000Scholars and government officials continued to agree after Wong Kim Ark that the citizenship clause did not extend to the children of foreign temporary visitors.
00:20:55.000The rule remained what it always was a child born on American soil of a stranger or traveler passing through the country or temporarily residing here was not a citizen.
00:21:05.000He says, in America, you were generally a citizen if you were born here, and this was your home.
00:21:12.000The concepts were so linked as to be taken as effectively synonymous, such that Justice Bushrod Washington would say citizenship means domicile, home, permanent residence.
00:21:22.000Citizens were not the people who were temporarily passing through a territory or who happened to be born within it.
00:21:27.000Citizens were the permanent members of the body politic, the people whose roots were in a place, who called that place home, and who would, if necessary, go to war for that place.
00:21:35.000The law of both state and national citizenship reflected this principle.
00:21:40.000The court stated that when a person acquires a domicile in a nation, he becomes a member of the new society at least as a permanent inhabitant.
00:21:49.000Domicile played a role in determining someone's national character, and that could change if you removed to a foreign country and settled there with an intention permanently to reside there.
00:21:57.000So the United States, says Thomas, did not claim as a citizen every child born on its soil.
00:22:02.000Instead, pursuant to the principle that children followed their parents' domicile, a child was a citizen of the place where his parents were domiciled.
00:22:10.000Because any person incapable of establishing his own domicile had the domicile of that person on whom he depends for support.
00:22:16.000It followed that generally minor children had the settlement of their father.
00:22:19.000So, in other words, you follow your parents.
00:22:22.000And he points out, in the 19th century, dual citizenship was considered highly undesirable, if not a contradiction in terms.
00:22:29.000A temporary visitor whose homeland was somewhere else, although he had legal rights and was entitled to dignified treatment, lacked the ties to this country that would make him fit for citizenship.
00:22:39.000And as he points out, the Civil Rights Act explicitly said this.
00:22:44.000Representative Bingham described the Civil Rights Act as simply declaratory of pre existing law, which required that a citizen be both born and domiciled in the United States.
00:22:55.000And when he says Wong Kim Ark, the point that he makes on Wong Kim Ark, which ruled that essentially a child of Chinese laborers here in the United States was a citizen, he says that's because the parents were effectively domiciled here.
00:23:09.000Well, because it turns out that in America, if you were a Chinese citizen, you could not get citizenship at the time because of the Chinese Exclusion Act of 1882.
00:23:17.000So let's say you were a Chinese immigrant.
00:23:19.000You couldn't renounce your citizenship at home because if you went back home, they would behead you if you did that.
00:23:23.000And also, you couldn't get citizenship in the United States.
00:23:25.000So essentially, you were kind of stateless, but you were domiciled in the United States.
00:23:55.000He says the court's account makes no sense.
00:23:58.000First, he says the post ratification evidence against the court's view begins not nearly two decades after the 14th Amendment's ratification, but immediately.
00:24:08.000Well, before the court had any explanation for a departure from its view, all three branches of the federal government had already rejected this birthright citizenship view.
00:24:17.000He points out that there are lots of other indicators of original public meetings supporting the domicile requirement.
00:24:24.000He said, first, if the court were right about birthright citizenship, Then there would have been a huge increase in dual nationality, which nobody would have accepted in the 19th century.
00:24:33.000Second, domicile rules, meaning citizenship on a national level, mirrored state citizenship.
00:24:39.000You are a citizen of the state in which you are domiciled here in the United States.
00:24:46.000And then third, the domicile rule would make the citizenship clause accord with America's treatment of its own domiciliaries abroad.
00:24:54.000Again, America itself has long taken the position that children of American citizens born on temporary visits abroad are still American citizens.
00:25:20.000Justice Alito follows hard on all of that.
00:25:24.000He has his own dissent in which he points out that basically the court, what they're really doing here is they don't want to take up the real problem here, which is illegal immigration.
00:25:32.000Because what they're afraid of the court is that if they would rule that birthright citizenship is not, in fact, the way, you'd end up with millions of people in limbo.
00:25:39.000But Alito says in his dissent that that is not a reason to leave bad law in place and make the law worse in the process.
00:26:04.000To all the daily shows, editorial articles, our documentary and entertainment library, plus a ton of American history content we have coming in July.
00:26:12.000All that for less than six bucks a month.
00:26:13.000The math on that is pretty embarrassing.
00:26:28.000So Alito joins in and he is just raging mad.
00:26:32.000Alito points out in his descent, This is one of the most important decisions in the history of the court, and in my judgment, the court has made a serious mistake.
00:26:40.000As interpreted by the court today, the 14th Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of birth tourists, women who come here solely for the purpose of giving birth to a child and then promptly return home.
00:26:52.000Careful analysis of the text of the 14th Amendment and the process that led to its adoption shows it does not degrade the concept of the United States citizenship in this way.
00:27:02.000Instead, the 14th Amendment confers citizenship on only those children who at birth owe allegiance solely to this country.
00:27:09.000He says the original meaning of the 14th Amendment does not require inhumane results.
00:27:13.000Congress, in other words, should solve the problem.
00:27:15.000If you don't like the way that citizenship is done, Congress can add additional citizenship capability.
00:27:22.000It could amnesty the Dreamers, for example.
00:27:26.000The Constitution doesn't decide sort of the minimum standard or the max.
00:27:31.000The Constitution doesn't say who may get in, it says who must get in.
00:27:36.000Okay, so when it comes to may, Congress can step in.
00:27:40.000Alito says, before saddling the nation with a medieval rule, we had better be certain the Constitution requires it.
00:27:45.000The court's account of the birthright citizenship rule in American law is roughly as follows.
00:27:49.000After American independence, the British rule of birthright subjecthood was modified in just one way to take account of Indians, but otherwise the rule was transplanted intact to American soil.
00:27:58.000As modified, the rule is that a child born in this country is automatically an American citizen unless the child is born to tribal Indians or to a diplomat with immunity from legal process.
00:28:07.000During the period before the Civil War, the rule's status was firm.
00:28:10.000After the war, Congress codified the rule in Section 1 of the 14th Amendment and in United States v. Wong Kim Ark.
00:28:16.000This court issued a binding precedent confirming what Congress had done.
00:28:19.000Alito says, Every step of this story is incorrect.
00:28:23.000The Declaration of Independence repudiated the foundation on which the British rule was based.
00:28:27.000From 1776 until the eve of the Civil War, the status of the rule in this country was unsettled.
00:28:33.000There is no evidence establishing that the Constitution's references to citizens incorporated the British rule.
00:28:42.000And again, he goes along, you know, he goes on and on in this way.
00:28:50.000And he says in the end, as a result of the events of the past 50 years, the United States now has a huge contingent of people who enter to remain in this country illegally, as well as a large group of people who were born here to such parents.
00:29:01.000The court's interpretation of the 14th Amendment makes all the members of this latter group citizens.
00:29:05.000Many of those who have grown up here now have a strong moral claim to be allowed to remain, but that is a matter that the 14th Amendment, when properly interpreted, leaves to Congress.
00:29:13.000So he's saying to Roberts, listen, I understand that you are trying to evade responsibility for what's going on with dreamers and such.
00:29:20.000By basically saying that anyone who's born in the United States has to stay here, but that is not what the Constitution mandates.
00:29:29.000So, again, it's a terribly decided case here from Chief Justice Roberts and the rest of the liberals on the court.
00:29:36.000There's sort of a concurrence in part, dissent in part from Justice Kavanaugh.
00:29:40.000He says that the 14th Amendment does not require birthright citizenship, but that there is a law, a federal statute that sort of does, and you can amend that law.
00:29:50.000Bottom line, though, is this as always and forever, the outcome of this, the Congress and the presidency must, must, must handle their business on immigration.
00:29:59.000It just makes the immigration issue that much more pressing.
00:30:06.000Because for the foreseeable future, birthright citizenship will be the law of the land.
00:30:11.000Okay, I'm going to take a step back for just one second and talk about another case that got decided a couple of weeks ago before I get to the other ones decided today.
00:30:17.000Because this case, I've been getting tons and tons of mail about.
00:30:21.000And lots of mail about this case regarding Monsanto.
00:30:25.000So, this segment is sponsored by our friends over at Balance of Nature, by the way.
00:30:31.000Hey, Monsanto versus Durnell was a 7 2 case in favor of Monsanto.
00:30:37.000So, basically, in this case, Monsanto is the producer of Roundup.
00:30:43.000A lot of people are very, very upset about Roundup, including my wife, by the way.
00:30:48.000Hey, glycophosphates are definitely questionable.
00:30:52.000The evidence, shall we say, is very, very mixed.
00:30:55.000So the EPA ruled in 1974 that Roundup and other glyphophosphate based pesticides do not actually need to carry a cancer warning.
00:31:03.000But in Europe, there are lots of countries that ban Roundup or restrict Roundup.
00:31:08.000In 2015, the International Agency for Research on Cancer classified glyphosate as possibly carcinogenic to humans based on evidence of cancer in humans.
00:31:19.000Largely what people have been worried about is particular forms of cancer like non Hodgkin's lymphoma.
00:31:25.000More than 100,000 plaintiffs have filed cases against Roundup.
00:31:29.000In 2017, there was a lawsuit that uncovered emails from Monsanto suggesting the company had actually helped to goat strike a scientific paper that ended up being sort of the basis for the EPA approval and then was retracted.
00:31:42.000In 2020, the EPA again announced that there were no risks of concerns of human health when glyphosate was used in accordance with its current label.
00:31:50.000But then the EPA withdrew those findings and said it would revisit the claims.
00:31:53.000Okay, so again, a lot of people are worried about Roundup.
00:31:58.000One of the ways that you regress a golf course is to kill all the current grass and use Roundup en masse to do that, like huge quantities, elephantine quantities of it.
00:32:05.000So a lot of people are deeply worried about this.
00:32:07.000Okay, so in this case, what happened is that somebody at the state level sued Roundup based on.
00:32:12.000Lack of warning on the warning label, saying that the warning label should have included some sort of cancer warning.
00:32:19.000And Roundup, its parent company, Monsanto, defended by saying, well, we have an EPA mandated label, and that EPA mandated label does not include a cancer warning.
00:32:29.000So you can't tell us at a state level we have to include something that the EPA says we don't have to include.
00:33:06.000So this decision was written by Justice Kavanaugh.
00:33:09.000And he said as relevant here, EPA regulates Roundup, a glyphosate based pesticide manufactured by Monsanto.
00:33:16.000Because EPA has repeatedly concluded that glyphosate is not likely to cause cancer, the agency has not required a cancer warning on Roundup's label.
00:33:24.000The law expressly preempts state claims because it says that the warning labels are to be done at the federal level, essentially.
00:33:32.000Now, the dissent, written by Katanji Brown Jackson and joined by Justice Gorsuch, actually, is kind of a weird pairing there.
00:33:39.000They basically say that the EPA approval is not the entire requirement.
00:33:45.000You should still be able to sue based on state claims and that there is no preemption.
00:33:51.000And that the actual solution would be for Monsanto to stop sales of Roundup entirely.
00:33:58.000Okay, but bottom line here is I'm not sure this decision is wrong by the Supreme Court.
00:34:02.000However, I think that people's worries about glyphosate are quite right.
00:34:05.000And by the way, it doesn't remove all causes of actual lawsuit, right?
00:34:09.000Insufficient warning is not, you'd have to show more causality.
00:34:12.000Insufficient warning would not be the only basis for a tort lawsuit in this particular case.
00:34:16.000But the bottom line is that the court essentially ruled on the basis of legal preemption.
00:34:22.000Not on whether Roundup is safe or not.
00:34:25.000Now, listen, we don't have control of our environment.
00:34:29.000We worry a lot about the stuff that's in the environment.
00:34:30.000Again, my wife is deeply worried about things like Roundup, but you actually should worry a lot more about the stuff that you actually put in your body.
00:34:36.000That's the stuff that you should, because you can control that stuff.
00:34:39.000And this is why you need my friends over at Balance of Nature.
00:35:01.000And so instead, you can just get the dietary supplements, like the fiber and the spice, or you can get the whole fruit, the whole produce fruit supplements, and you can just pop those right into a protein smoothie.
00:36:11.000All right, two other major decisions coming down from the Supreme Court today.
00:36:15.000One is titled West Virginia versus BPJ.
00:36:19.000This is a decision about whether states can legally ban quote unquote trans athletes, like a boy who thinks he's a girl, from participating with girls in sports under Title IX.
00:36:31.000And whether Title IX is violated by saying, by the way, totally incoherent.
00:36:36.000Title IX says there should be women's sports and men's sports.
00:36:39.000The lawsuit was can a boy who claims to be a girl claim discrimination as a girl?
00:36:44.000For not being allowed to play with the girls.
00:36:48.000Okay, so there are basically two questions in this decision.
00:36:50.000One is whether Title IX allows there to be women's and girls sports for biological females.
00:36:54.000The answer, of course, is that's what it was designed for.
00:36:57.000And then question two is does it violate the Equal Protection Clause to say that boys and girls should play separately?
00:37:04.000The answer, of course, is no, that's incredibly stupid.
00:37:07.000But what's hilarious is that the court has to go through all of these pretzel interpretations.
00:37:12.000Justice Thomas, as always, the best justice, goes straight to the heart of the matter.
00:37:15.000He goes, There's this thing, it's called a boy, and there's this thing, it's called a girl, and they are not the same thing.
00:37:19.000And of course, boys and girls are different, and you can draw legal distinctions between categories based on reality.
00:37:25.000And sure, there might be exceptions, people who are intersex or people who have blocked puberty, which means that the effects of their puberty are not as great as it normally would be on a boy.
00:37:34.000But that doesn't mean that you can invalidate entire swaths of law based on lone exceptions to a sort of utilitarian rule.
00:38:10.000Title IX prohibits discrimination on the basis of sex.
00:38:13.000Title IX implementing regulations expressly permit schools to maintain separate teams for members of each sex.
00:38:19.000The term sex in the 1972 Title IX statute and the 1974 Javits Amendment And the 1975 Title IX regulations cannot plausibly be interpreted to refer to anything other than biological sex.
00:38:31.000The ordinary meaning of the term sex at the time of enactment was biological sex and not gender identity, particularly in the sports context.
00:38:36.000Now, at this point, we should point out it always means sex.
00:39:22.000The Bostock case, which essentially said that the Civil Rights Act mandated.
00:39:29.000That transgender women be protected by non discrimination law in some way.
00:39:36.000So, if a man comes into your office having applied for a lawyer's position, then walks in the next day and addresses, you're not allowed to fire him because that'd be a violation of Title VII discrimination on the basis of sex, which is incredibly silly.
00:39:51.000Bostock is an incomprehensibly bad decision, in my opinion.
00:39:55.000In any case, the court here says no, no, no, Title VII is about employment, Title IX focuses on sports.
00:40:02.000They say the two factual contexts are vastly different.
00:40:06.000In the workplace, Title VII generally requires that men and women be treated without regard to sex.
00:40:09.000In the sports context, Title IX authorizes separate men's and women's sports teams.
00:40:38.000The court finds Not every biological male athlete is bigger, stronger, faster, or otherwise more athletically able than every biological female athlete.
00:40:46.000Some percentage of biological males who identify as male possess physical and athletic capabilities that fall within the range of typical female and athletic capabilities.
00:40:54.000But the plaintiffs acknowledge that states may still exclude those biological males from women's and girls' sports, given general physical differences between males and females.
00:41:01.000The Equal Protection Clause does not prohibit the states from applying that same principle to all biological males, including those who identify as females.
00:41:08.000Now, Justice Thomas says the quiet part out loud.
00:41:10.000He's like, What are we even talking about here?
00:41:13.000Why are we talking about whether you had hormone treatments or surgery and this makes you more similar to a woman in terms of sports performance?
00:41:34.000Because gender dysphoria is a mutable mental state that is the object of psychiatric treatment, it does not resemble the immutable characteristics on the basis of which our precedents.
00:41:42.000Have applied heightened scrutiny, race, sex, or national origin.
00:41:47.000So he's saying, like, what are you talking about, basically?
00:41:50.000Like, we're supposed to pretend that you are part of a protected class that requires heightened scrutiny.
00:41:56.000So in the law, there are a bunch of weird rules the Supreme Court made up that are nowhere in the Constitution that talk about heightened scrutiny, intermediate scrutiny, or rational basis scrutiny.
00:42:06.000Basically, should you look hard at a law, super hard at a law, or super duper hard at a law to determine whether it ought to uphold your standards?
00:42:14.000And what he's like is like, we don't have to look very hard at these laws because there is no protected class that is somehow being targeted here.
00:42:21.000He says, men and boys with gender dysphoria are not women or girls, even if they believe that they are.
00:42:25.000Sex is an immutable biological characteristic.
00:42:29.000Man, woman, boy, and girl are terms that correspond to adults and children of each sex.
00:42:33.000To use language to obscure reality, to show indifference regarding the truth, is to lie to the public and cease to treat our fellow citizens as equals.
00:43:01.000And then she basically comes up with the idea that if a state includes a discrete subclass in an overbroad classification, when exempting them would not unnecessarily jeopardize the government interest the state wishes to further, that can show that the state's choice to use the classification is not actually in service of those interests, but rests on discriminatory generalization.
00:43:18.000So she's saying they are discriminating against trans people because.
00:43:22.000You could have a subclass of trans people who are allowed to play, but you're not allowing it to happen.
00:43:26.000And Thomas is like, that's not a discrimination.
00:43:40.000She says, Title of Nine makes room for individuals to live in the gender they choose.
00:43:44.000It cares not just about sex assigned at birth, but also the individual's ability to match or not their gender presentation to their gender identity.
00:43:50.000Again, this is just incompetent and incoherent.
00:43:52.000How do you have separate leagues for men and women when you can't define man and you can't define women?
00:43:59.000The court totally blows the huge decision today, which is the birthright citizenship case, totally blows it.
00:44:04.000Then you have the transgenders in sports case.
00:44:06.000The court gets that right, but only 6 3, demonstrating once again that President Trump being president changed the timeline of American history when it came to the law.
00:44:15.000And then finally, we have a third major decision coming down from the Supreme Court having to do with campaign finance.
00:44:21.000So, basically, the question here is whether there can be limits.
00:44:27.000On campaign contributions to parties, those contributions being used to coordinate with candidate contributions.
00:44:36.000So, the Federal Election Campaign Act limits a political party's campaign spending.
00:44:40.000It's a 6 3 decision that basically frees up campaign finance some more.
00:44:44.000Justice Kavanaugh writing for the court.
00:44:46.000The Federal Election Campaign Act limits a political party's campaign spending.
00:44:50.000Those spending limits necessarily abridge political parties' freedom of speech.
00:45:11.000It means that if you're the Republican Party, you are only allowed to spend a certain amount of money where you are coordinating with, say, a Republican representative's candidacy.
00:45:23.000So, Republican candidate Ted Cruz is running for office.
00:45:27.000And you have received money as the National Republican Senatorial Committee.
00:45:33.000How can you coordinate with the campaign to make sure that you're essentially not spending money in the same places?
00:45:38.000So, the law prevents a lot of this coordination.
00:45:42.000The primary current justification for those limits is to prevent what's called circumvention.
00:45:46.000That is to prevent a donor from circumventing the statutory limit on contributions to candidates.
00:45:51.000By making a huge contribution to a party, the party then uses it to support a particular candidate.
00:45:55.000So, under federal law, you are limited in how much you can give directly to Ted Cruz.
00:45:58.000So, instead, the idea is give the money to the Republican Party.
00:46:01.000The Republican Party and Cruz will coordinate.
00:46:03.000So, if you give half a million bucks to the Republican Party, And then you give seven grand to Ted Cruz, it's essentially the same as giving 500 grand to Ted Cruz.
00:46:15.000So, says the court, the question here concerns FECA's limits on spending by political parties in coordination for candidates.
00:46:20.000For example, a political party may spend money to produce and place a television advertisement in support of a candidate after consulting with the candidate's campaign about the content, timing, or placement of the advertisement.
00:46:33.000So, traditionally, parties and candidates obviously coordinated.
00:46:46.000Well, that stupid sort of Chinese wall existing between a candidate and the party, so that you're duplicating efforts, is inefficient and silly.
00:46:58.000The First Amendment question in this case says the court ultimately boils down to whether limits on political party coordinated expenditures are permissible in order to prevent circumvention of the base limits on contributions to candidates.
00:47:10.000Via large contributions to parties that are earmarked directly to a candidate because you're not supposed to earmark.
00:47:15.000So you're not supposed to give to the Republican Party and say, this 500 grand is for Cruz's campaign.
00:47:20.000And they say, well, that's already illegal, so you can't earmark.
00:47:23.000And so, what are we even talking about here?
00:47:26.000Now, again, word I, I would just eliminate all of these laws.
00:47:30.000I think campaign finance regulations are incredibly stupid.
00:47:33.000I think that people find ways around them all the time.
00:47:35.000And all of the people who spend their days yelling and screaming about campaign finance and gigantic spending are perfectly happy when it's public sector unions dumping a billion dollars into an election cycle, or when it is George and Alex Soros, or when it's Neville Roy Singham, or whomever else.
00:49:04.000As I pointed out before, the question here really is not about the late counting of ballots.
00:49:08.000I understand that there's a lot of worries about late counting of ballots providing an open window for election fraud.
00:49:13.000I promise you, if it's early counting of ballots you're worried about, most of the election fraud, if it is taking place, is taking place on the basis of ballot harvesting.
00:49:22.000It's not that the people counting the votes on the other end are cheating, it is that the people who are gathering the ballots together and then sending them in or bringing them to an officer, ballot harvesting is the single worst thing, and that's the thing.
00:49:32.000That honestly, we should really concern ourselves with, it seems to me.
00:49:38.000President Trump, of course, remains very concerned about this.
00:49:41.000He said yesterday that all of this gives people more time to vote illegally, which, again, I'm not sure that that is technically the case.
00:49:51.000Well, because of the mail in ballot ruling, which was a little bit surprising, gives people more time to vote illegally, let's say.
00:50:04.000Again, I don't think this is the biggest issue that people ought to be worried about, but I certainly understand the consternation and concern.
00:50:13.000Other big decision that came down yesterday was a decision that basically gave the president plenary power to fire people in the executive branch.
00:50:21.000So there was a case that was called Humphreys Executor versus United States that was decided some decades ago that essentially said that there can be limitations placed on who the president can fire at various executive branch agencies.
00:50:39.000The case commented, quote, independent agencies today hold tremendous sway over the nation's affairs.
00:50:46.000They regulate our businesses and our financial markets.
00:50:49.000They set the rules for internet and airwaves.
00:50:50.000They decide how we light our homes, how we run our elections, the manner of our employment.
00:50:54.000They determine what toys our children will play with, how we interact with each other at work.
00:50:58.000And as the defense explains so much more, he says basically that the goal here is to allow the president to actually run the executive branch.
00:52:18.000It's been going on for almost 100 years.
00:52:21.000They've been working on this, and you know that it comes down at my term is a very great honor, but it bestows additional powers or maybe the same power on the president.
00:52:30.000The president has the right to do this.
00:52:34.000Okay, he is right about that, and of course, this is correct.
00:52:37.000This is the you don't want an unelected fourth branch of government that is unanswerable to anyone.
00:52:41.000It's not answerable to the president, it's not answerable to Congress, it's answerable to nobody.
00:52:52.000And again, these cases, it is impossible to read these cases in tandem and figure that they are, in fact, in any way cohesive or that they make sense.
00:53:03.000Again, this is part of the problem with any sort of judiciary set of decisions you end up with people on different sides of the cases who ought to be on the same side, and you end up with people switching their minds.
00:53:15.000So, another case that came down yesterday was about the firing of Lisa Cook at the Federal Reserve.
00:53:22.000So, this case was also written by Justice Roberts.
00:53:25.000In this case, he says you can't fire somebody from the Federal Reserve, which is weird.
00:53:29.000So, he says you can fire somebody from the Federal Trade Commission, but you can't fire someone from the Federal Reserve.
00:53:34.000And he was joined in that decision by Justice Kavanaugh, which, again, is super weird.
00:53:38.000Justice Thomas is like, this makes no sense.
00:53:41.000Again, Justice Thomas is perfectly consistent.
00:53:44.000So, in this particular case, Justice Roberts basically said the Federal Reserve is not like the Federal Trade Commission because the Federal Reserve does non political policy.
00:53:52.000Okay, that is a distinction that is not going to hold.
00:53:55.000To pretend the Federal Reserve is not a political body is really silly.
00:53:58.000But he says, The Federal Reserve operates at a deliberate remove from the ordinary political process, including a budget free of congressional control and policies set not only by governors, but also by representatives of the private regional banks.
00:54:14.000The fact of independence is the appearance of independence, and the appearance of independence are key to the Federal Reserve's design.
00:54:20.000Justice Thomas is like, Nah, like, what are you talking about?
00:54:24.000He said, Limits on the president's ability to remove executive officers are unconstitutional.
00:54:32.000Today's decision is an unprecedented incursion on the executive branch.
00:54:34.000Neither the parties nor the court can point to a single time in American history that this court has upheld an injunction against the president's removal of an executive officer.
00:54:44.000In the 237 year history of our Constitution, this court has, by all accounts, never done so.
00:54:50.000So, again, the idea that you can prevent the president from firing people, that is a That is a weird take by the Supreme Court.
00:55:00.000Yes, the president can fire everybody except for people at the Federal Reserve.
00:55:05.000I'm not sure that that dog is going to hunt.
00:55:07.000The president then put out a statement on Truth Social.
00:55:10.000He said the Cook lawsuit, having to do with her suitability and sitting on the board of the Federal Reserve, was sent back by the Supreme Court on a strictly procedural basis.
00:55:17.000We will take appropriate action immediately to make sure someone who has committed wrongdoing will not be making vital decisions.
00:55:22.000What he's saying is, I will fire her for cause.
00:55:24.000They're saying that my cause determination was not proper, but don't worry, I'll find cause and then I'll fire her.
00:55:32.000Okay, so again, bottom line this is a very, very mixed bag of decisions over the course of the last couple of weeks and particularly in the last few days.
00:55:40.000You have one decision that maximizes executive power and fire anybody, and one that minimizes executive power with regard to the Federal Reserve.
00:55:47.000You have one decision that says that laws that say boys and girls can play separate sports are appropriate.
00:55:53.000And then you have another decision that says that by definition, if you're born in the United States, even if you're here for five minutes and your parents are Chinese citizens, then you are magically a citizen of the United States.
00:56:05.000And then you have a decision on campaign finance reform that leans more to the right.
00:56:08.000Now, again, this is why I try to avoid.
00:56:11.000I think if you hear dumb legal analysis, dumb legal analysis doesn't look at the arguments.
00:56:15.000It just looks at the identities of the justices who are ruling on particular issues.
00:56:19.000Now, I think that to be fair, you can usually do that with the members of the left of the court.
00:56:23.000The members of the left of the court are incredibly consistent in how they interpret the Constitution.
00:57:22.000They've decided that they just are going to allow this thing to percolate for years and years.
00:57:27.000And Trump is the first president in my lifetime who actually said he was going to stop it.
00:57:33.000And now I want to take a quick pause in the actual news of the day and go to Justice Neil Gorsuch, who actually has a brand new book coming out.
00:58:00.000So, you know, many people probably would not expect that your next book, after what was a pretty rigorous look at constitutional law and administrative law, would be a children's book about the Declaration of Independence.
00:58:15.000But, you know, we're celebrating the 250th this year.
00:58:19.000And I know we're going to have a lot of fireworks and it's going to be a lot of fun.
00:58:22.000But it just struck me and my wonderful co author, Janie Nitza, that perhaps we should take a moment to reflect on the Declaration itself, as you say, the most important document in American history, what's really in it, and the courage and the sacrifice of the people behind it.
00:58:40.000And I think there's a lot that the pages of history hold for us if we're willing to open them and learn from them.
00:58:46.000Well, Justice, one of the things that you're focusing on here, you're not just focusing on the content, obviously, of the Declaration, but the heroes behind it.
00:58:54.000That obviously gets you into Weirdly contentious territory now.
00:58:58.000When I was growing up, this was not contentious at all.
00:59:00.000The people who wrote the Declaration were heroes who are risking their lives, fortunes, and sacred honor, as they literally say in the Declaration.
00:59:07.000That's obviously become sort of a controversial proposition.
00:59:09.000What do you think that particularly young people need to know about the people who wrote the Declaration and the kinds of sacrifices they were willing to make?
00:59:16.000Well, first of all, they need to know why they were doing it, right?
00:59:19.000And there are three big ideas in the Declaration one, that each and every one of us is equal.
00:59:26.000Two, that all of us have inalienable rights given to us by God, not by government.
00:59:33.000And three, that the people have the right and the capacity to rule themselves wisely.
00:59:39.000And those were incredibly Radical ideas at the time.
00:59:43.000Yes, political theorists had talked about them.
00:59:45.000Yes, England was struggling toward them.
00:59:48.000But those were really ideas that were completely at odds with the social and political order of Europe and the world.
00:59:55.000And every democracy that had come before it failed.
00:59:57.000And yet, here were these brave men, women, and children who were willing to give it a go.
01:00:03.000And those individuals are incredible individuals, some of whom we know, right?
01:00:08.000The amazing stories of Jefferson and Adams and their.
01:00:11.000Though they disagreed on so much, came together during the Declaration and worked together.
01:00:17.000And then people you don't know, like Cesar Rodney with cancer, riding through the middle of the night to break a tie.
01:00:23.000You've got to remember this is a close run thing.
01:00:25.000There was nothing inevitable about the Declaration.
01:00:27.000You had to break a tie by riding through the night in a thunderstorm.
01:00:31.000Or women and children who also contributed to it, like Emily Geiger, an 18 year old spy who we talk about in the book, who was essential in delivering a message during the Revolutionary War.
01:00:44.000They, they, they sacrificed tremendously.
01:00:46.000That last line in the Declaration, Ben, you were talking about.
01:00:49.000When they signed the Declaration, they knew it was an act of treason.
01:00:53.000That they were subject to being hung for their, for their, for what they did.
01:01:06.000And many, many of them gave their fortunes to the cause.
01:01:10.000We talk about Thomas Nelson in the book, who died so poor that they They buried him in an unmarked rape because his creditors threatened to dig him up and use his body as collateral.
01:01:41.000But they did know a lot about humanity, human nature, and the virtues required to sustain a republic.
01:01:48.000And I think we would do us all well to spend a moment with them during this year.
01:01:52.000I think one of the things that's really interesting about what you're talking about is the fact that the virtues of the people who wrote the Declaration is the silent backdrop to the Declaration.
01:02:02.000One of the things that separates the American Revolution from, say, the French Revolution is not the aspirational tone.
01:02:06.000The French Revolution was also quite aspirational in tone, talking about the human rights of every human being and universal declarations of rights and all the rest of this.
01:02:15.000But the Declaration of Independence was built atop a foundation of Anglo American virtue and common law that made the Declaration practicable and also made possible the emergence of the Constitution.
01:02:29.000But these are virtues that all of us, anyone, can admire and aspire to.
01:02:35.000I mean, think about George Washington.
01:02:37.000He led a successful revolution against incredible odds and then laid down his sword and retired.
01:02:47.000He could have become a dictator easily.
01:02:50.000And he may have been the first successful leader of a revolution anywhere to walk away.
01:02:55.000And then they elected him president many years later.
01:02:58.000And after two terms, setting a precedent that stands to this day, with one exception, he did the same thing.
01:03:05.000Those kinds of virtues are things that each of us can think about and reflect on for our own lives.
01:03:11.000And those are the kinds of virtues that are essential, I think, if this crazy American experiment is to continue.
01:03:19.000So, you know, one of the things that you mentioned right at the top of the interview here is that people need to understand why the founders did what they did, what they were rebelling against.
01:03:27.000And it is sort of an oddity when you look back historically at the grievances that the founders were sounding off on, that the supposed government.
01:03:36.000Overreach, and then we look at the nature of American government now, which is, you know, in many nooks and crannies of our daily life.
01:03:41.000And we think to ourselves, okay, what would the founders think about the nature of the expansion of American government and how large and intrusive American government has grown?
01:03:48.000Obviously, overstretching its boundaries in an awful lot of ways.
01:03:51.000What do you think was sort of the key component for the founders and for the heroes of 1776 in determining that it was time to break away from the mother country?
01:04:08.000It included things like quartering troops in their homes.
01:04:11.000It included things like duly enacted laws by colonial legislatures not getting the assent of Parliament.
01:04:19.000It was things like not being able to be represented in Parliament.
01:04:23.000All of those ideas were in the pot, but they really, in my mind, boil down to those three big ideas that we're all equal, that there are no serfs, there are no lords, that each of us has inalienable rights.
01:04:37.000They're not things that government can give us or government can take away from us.
01:04:54.000Democracy in the world is a messy business.
01:04:56.000But I look at young people today and I see the luckiest people to have ever lived in any part of human history and in any nation in human history ever.
01:05:10.000But what they did give you, what the founders did give us, is an opportunity to work toward one centered around three perfect ideas that I don't think any governmental system or any political theorist has ever improved upon, nor do I believe they can.
01:05:26.000One of the things that I think is important about this is obviously it is a children's book.
01:05:31.000And so the question that's kind of obvious here is what gap do you think you're attempting to fill here?
01:05:36.000Because obviously you wouldn't write the book unless you saw a need, unless you saw a rationale.
01:05:41.000I assume that you're pretty busy in your day job being a justice on the Supreme Court.
01:05:45.000And so, writing children's books is definitely a sort of different approach.
01:05:48.000What is the gap that you see that you needed to fill here?
01:05:51.000Well, my dear friend Janie has listened to me complain about the state of civic education in this country for a long time.
01:05:58.000And it's something that both Washington and Jefferson talked about that because we are a nation founded around those three ideas and open to all who want to participate in it, that's very different than a society based on race or religion.
01:06:14.000The pluralistic idea of our country is radical.
01:06:38.000And so I wanted to find a way to engage kids.
01:06:41.000And I think American history is rip roaring.
01:06:44.000Fascinating, full of people that any one of us can find a hero and a mentor in, and maybe learn some lessons about what not to do, too.
01:06:54.000There are so many stories in our founding like that, again, about men, women, and children that maybe you don't know about.
01:07:03.000Mary Catherine Goddard is one, for example, Ben.
01:07:09.000The Continental Congress turned to her to publish the first declaration with the signatures of all with the names of all of the signers on it for publication.
01:07:20.000Up to that point, people didn't know the names.
01:07:22.000They knew who they were, but they weren't on the document.
01:07:25.000You can understand why you might not want your name to be out in public associated with this document.
01:07:30.000But it was time they decided, and so they turned to her.
01:08:20.000Well, the book is Heroes of 1776, the story of the Declaration of Independence.
01:08:24.000Justice Neil Gorsuch, taking some time off from, you know, deciding things that affect the fate of the country to actually affect the fate of a country in a different way.
01:08:31.000Justice Gorsuch, really appreciate the time.
01:08:39.000Well, now joining us online to discuss this wide spate of rulings, including this massive ruling on birthright citizenship, is Ilya Shapiro.
01:08:45.000He is a senior fellow and director of constitutional studies at Manhattan Institute.
01:08:48.000Ilya, thanks so much for taking the time.
01:08:53.000I'm still digesting these copious, important rulings this morning.
01:08:59.000Yeah, so why don't we start with the one that obviously is making all the headlines?
01:09:02.000That, of course, is the birthright citizenship case.
01:09:04.000I would have been, honestly, a little shocked if they had overruled birthright citizenship.
01:09:08.000Considering how sort of deeply embedded it's become in the consciousness of Americans, it would have meant that literally millions of people who consider themselves to be Americans and whom the law has treated as Americans for decades would have had their citizenship essentially stripped.
01:09:21.000So I'm not surprised that the court ruled this way.
01:09:23.000I'm also not surprised that Chief Justice Roberts did an enormous number of backflips, pretzels, and kickstands in order to ensure that he got to this goal.
01:09:33.000Justice Roberts has always been this type of justice.
01:09:53.000Doesn't this basically just underscore that when it comes to you can't do anything about the people who are now considered citizens by the Constitution under the Supreme Court decision?
01:10:01.000But it does underscore that Congress and the president, over and over and over, not this president, but many presidents, have failed in their fundamental duty to ensure that people don't take advantage of our immigration system.
01:10:14.000I think that's right from a policy perspective.
01:10:16.000And I think this illustrates why trying to change birthright citizenship through an executive order might not have been the best strategy because the court took this out of Congress's bailiwick.
01:10:28.000They ruled on the constitutional ground that birthright citizenship is guaranteed by the Constitution.
01:10:34.000So you need a constitutional amendment, not just an act of Congress to change it.
01:10:39.000I was expecting a majority to be cobbled together, kind of an interwoven majority.
01:10:44.000Around Kavanaugh's decision, saying that, I don't know about the constitutional issue.
01:10:49.000Kavanaugh actually does say that he disagrees with the majority.
01:10:53.000But on the law, and the latest amendment was in 1940 that's relevant, Congress sets out who can and can't be a citizen, and Congress can change that.
01:11:03.000I was expecting them to take that off ramp, which would have thrown this back into the political branches, but they didn't.
01:11:09.000And so at this point, we can debate it, but the only way to change it would be through a constitutional amendment.
01:11:16.000And you see that Justice Kavanaugh actually tried to take that off ramp.
01:11:18.000He tries to split the baby by basically saying the 14th Amendment does not mandate.
01:11:22.000That birthright citizenship be a thing, but under current law, birthright citizenship is a thing.
01:11:26.000Congress could theoretically change it.
01:11:28.000That did not end up being the majority opinion.
01:11:31.000And so instead, you end up with this 91 page Thomas dissent, which for Thomas is shocking because usually Justice Thomas's dissents are somewhere in the five to 10 page range and concise and brief.
01:11:41.000And in this one, he just went at it with a howitzer.
01:11:44.000He decided to just blow up the majority's opinion.
01:11:47.000I will say that having read all of the opinions this morning, that Justice Thomas, I mean, he full scale fisks.
01:12:25.000What did you make of the actual legal reasoning from Roberts and crew?
01:12:28.000Yeah, it seems like a law office history version of Emma Lazarus's poem on the base of Statue of Liberty.
01:12:35.000You know, it's a lot of, look, it's a close question.
01:12:38.000I'm not here to say that the, you know, Thomas dissent, which I ultimately agree with, is, you know, it's a slam dunk.
01:12:46.000I was on the opposite side of this question before all the scholarship was being produced and highlighted over the last couple of years as this case was progressed.
01:12:53.000I mean, I didn't have strong views, legal views, one way or another, really.
01:12:57.000But I think I was convinced by, My colleague Elon Worman, Josh Blackman, Randy Barnett, all these other folks that have come and taken a look at this seriously, which Thomas quotes.
01:13:08.000And so, yeah, Roberts' opinion, I mean, the best you can say about it is that it's not as bad as his opinion in the Obamacare case.
01:13:16.000But you're right, it is a lot of unsubstantiated stuff that makes leaps in historical logic.
01:13:27.000And there are two other decisions that came down today.
01:13:29.000One of them was on trans girls, meaning boys who believe that they are girls competing against girls.
01:13:34.000In sports, this is a 6 3 decision from the Supreme Court.
01:13:37.000The fact that this is even a close call is insane, like purely insane.
01:13:40.000The only opinion here that I thought was any good, frankly, was Justice Thomas's, who basically was like, What the hell are we doing here?
01:13:47.000Why are we pretending that boys with gender dysphoria are girls or constitute a special protected class requiring heightened scrutiny under the Constitution or some such nonsense?
01:13:56.000All of that, it seems to me, was the wave for that forward.
01:14:00.000The sort of bad logic that the court then had to evade was paved by the Bostock decision by Justice Gorsuch.
01:14:05.000A few years back, claiming that somehow the Civil Rights Act mandated that men who believe they are women are protected from gender discrimination in the office.
01:14:13.000So, if you hire some dude and he turns up and addresses the next day claiming he's a lady, you can't do anything about it under Title VII.
01:14:19.000What did you make of the court's decision in the trans case today?
01:14:23.000Yeah, I did think that Thomas's opinion there was very strong.
01:14:28.000I liked it perhaps even more than his birthright citizenship opinion, but because it does call a spade a spade and says, look, we're not playing Orwellian games here.
01:14:37.000There are two genders, and yes, there are exceptions for.
01:14:40.000You know, people with multiple XXXY chromosomes and all of that sort of thing.
01:14:45.000But we have to live in the world of truth and reality.
01:14:53.000Nothing was surprising about this based on how argument went.
01:14:58.000It's also not surprising that the justice who couldn't say what a woman was at her confirmation hearing, Justice Jackson, was dissenting here.
01:15:07.000And Gorsuch took the time to explain and distinguish Bostock, which I think is distinguishable.
01:15:11.000I think Bostock was wrong for various reasons that we don't need to get into.
01:15:18.000The difference between men's and women's sports.
01:15:20.000Obviously, both men and women do the same, can do the same job in most workplaces, but on the sports field, that's a different consideration.
01:15:29.000Yes, although I will say that without getting back into Bostock, I really look forward to Justice Gorsuch.
01:15:35.000He was just on the show, but I do look forward to his explanation of why it is gender discrimination for a man not to be hired at Hooters.
01:15:42.000That'll be an interesting explanation.
01:15:44.000But the other big case of the day was this campaign finance reform case.
01:15:49.000Frankly, I find these cases entirely bewildering.
01:15:50.000It makes no sense to me whatsoever that Congress is able to, under the First Amendment, create this massive thicket of campaign finance law that has no relation whatsoever to the First Amendment.
01:16:02.000It seems bizarre to me that we have to now have these very complicated decisions about you can give $7,000 to a candidate, but if you give $500,000 to the Republican Party, they can't coordinate too closely with the candidate.
01:16:12.000Or maybe they can, but you can't earmark the money for the candidate.
01:16:15.000You just have to give the money to the Republican Party and hope that it uses it for the candidate and then coordinates.
01:16:21.000It seems to me that the best position here would be to say that the First Amendment is designed to protect core political speech.
01:16:26.000Spending money in order to foment your opinion in an election is core political speech done.
01:16:31.000I would hope that that's the direction the court increasingly moves.
01:16:35.000Well, you would have enjoyed the brief that I filed together with Brad Smith, the former chairman of the Federal Election Commission, which makes that exact point that the original sin here wasn't Colorado 2, this case that was overruled today, imposing this ban on coordination between candidates and parties.
01:16:52.000But Buckley v. Vallejo itself, rewriting and then upholding in part much of FECA, which is great.
01:17:01.000It's that acronym because we get to talk about fecal matter and things like that.
01:17:03.000But it's, yeah, the rule had become outmoded.
01:17:27.000One, I think, that's being blown out of proportion, and then two that seem in almost direct conflict to me.
01:17:31.000The one that's being blown out of proportion to me is this ruling.
01:17:34.000A lot of people are very upset about it from Amy Coney Barrett and company, basically saying that you can count ballots that are received after an election, even if they're postmarked before an election.
01:17:44.000That honestly, reading that case, that seemed like a fairly close run legal interpretation to me.
01:17:48.000I could actually see both sides of that particular case.
01:17:51.000And I think a lot of the sort of concern about election fraud is being Placed on the counting of the ballots when actually it should be placed up front on the ballot harvesting issue, how the ballots are cast, how they're gathered, and all the rest of it.
01:18:05.000I thought that Barrett's opinion was right on the law, and that's a bad policy.
01:18:10.000I think Congress should change that law to tighten it up, especially to prevent, you know, Mississippi has five days you can count it to allow a little leeway for the ballot to arrive.
01:18:24.000And as you alluded to, there could be a separate unrelated challenge.
01:18:28.000To California's ballot harvesting and other provisions that fraud aside, which is a legitimate concern, but they decrease public confidence in the integrity of elections.
01:18:38.000Regardless of whether there is actual fraud, that public perception of the elections being fair and transparent is just as important.
01:18:47.000And having all of these kinds of uncertainty, counting after ballots without postmarks, all of this sort of stuff really should be reined in.
01:18:56.000And this, unlike birthright and citizenship, is an area that Congress can step into and fix.
01:19:02.000And then there were two other cases that came out yesterday having to deal with executive power.
01:19:06.000I have no idea how we square the circle.
01:19:09.000But you have the Supreme Court in which Justice Roberts is writing both opinions.
01:19:14.000And one of them, apparently, the president can fire people from the FTC, but the president cannot fire somebody from the Federal Reserve because the Federal Reserve is super, super duper special in some way, whereas the FTC is basically gum on the bottom of his shoe.
01:19:27.000If they exist in the executive branch, there is no fourth branch of government.
01:19:30.000I'm confused why we're pretending there's a fourth branch of government that applies to the Federal Reserve.
01:19:34.000Again, I think that there are good policies and bad policies at the Federal Reserve.
01:19:38.000I think there's a case to be made that the Federal Reserve was a bad idea in the first place, given its massive and outsized control over the American economy.
01:19:44.000With that said, The attempt to distinguish one from the other, saying the president can fire anyone in the executive branch for any reason, except for the Federal Reserve, where he can't touch anybody unless he shows cause.
01:19:56.000I found the logic of the court in distinguishing the two, shall we say, unpersuasive.
01:20:01.000Well, just to be clear, you can't fire everybody, meaning the lowest level clerk and all that.
01:20:06.000This opinion applies to principal officers because the logic is the president has to be able to control the executive branch.
01:20:21.000Humphrey's executor, the 90 year old case, has been eroded and it was good that it was overturned.
01:20:26.000It sounds like what the Fed, first of all, I think Alito and Dissent and Barrett noted that the court shouldn't even have gone there in deciding the Fed's independence.
01:20:36.000They should have, back in the fall, just stayed, just granted or denied the government's application for stay and let the fact finding continue in district court, which is what it's going to do now about whether Lisa Cook actually committed any fraud.
01:20:49.000Uh, and it looks like the distinguishing point is that rather than being a relic of the progressive era or New Deal, these alphabet enforcement agencies, monetary policy and the Fed hearkens back to the founders and Alexander Hamilton's concern for political, uh, uh, involvement in setting monetary policy, something like that.
01:21:08.000Uh, but even to that point, the Fed has gained a whole bunch of other regulatory and enforcement authorities that didn't exist at the founding during the first and second bank of the USA and all of that, uh, uh, ancient history.
01:21:39.000And if you're a Daily War member, you get that much more.
01:21:41.000So, for example, we are going to get into the insanity of the Democratic Socialists, and we'll get into the Europeans who are apparently dying by the thousands because it's super hot outside, and they continue to claim that they are somehow morally superior because they want air conditioner.
01:21:54.000They won't use air conditioners for their elderly or something.
01:21:57.000But in order to watch all of that, you have to join us.