The Ben Shapiro Show - LIVE: Ben Breaks Down SCOTUS on Birthright Citizenship

00:00:02.000 The Supreme Court has ruled if you are born in the United States, you are a citizen.

00:00:07.000 And if your parents traveled here to drop a baby, you are still a citizen.

00:00:10.000 And 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.

00:00:17.000 We'll dive into one of the most important rulings in the history of the Supreme Court in just one moment.

00:00:21.000 Plus, 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.

00:00:31.000 Let's get into it live.

00:00:41.000 All righty.

00:00:42.000 So the decision is in Trump versus Barbara.

00:00:45.000 It's a birthright citizenship case six to three with Thomas Alito and Gorsuch in dissent.

00:00:51.000 Justice Brett Kavanaugh sort of split the baby.

00:00:53.000 He was sort of in dissent, sort of in concurrence, concurring in part, dissenting in part.

00:00:56.000 Justice Roberts, again, a horrible pick for Chief Justice.

00:00:59.000 I warned you of this when he was selected by George W. Bush.

00:01:02.000 I was maybe the only conservative columnist in America who said that Justice Roberts would not be good.

00:01:07.000 This makes yet another terrible Chief Justice Roberts decision because, again, Remember, he's the guy who said Obamacare was totally legal.

00:01:14.000 Now, 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.

00:01:29.000 Now, I understand that we've been living with that rule in the United States for a very, very long time.

00:01:33.000 That is how the legal authorities have interpreted citizenship in the United States.

00:01:39.000 But the real answer here is that the Constitution never, never.

00:01:45.000 Contemplated that.

00:01:47.000 The 14th Amendment never contemplated that.

00:01:49.000 The Equal Protection Clause never contemplated that.

00:01:51.000 The Birthright Citizenship Clause never contemplated that. 0.65

00:01:55.000 The 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. 0.53

00:02:11.000 Congress abdicated, multiple presidents abdicated.

00:02:14.000 And 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.

00:02:22.000 You totally radically change the composition of the country because of bad legal interpretations like birthright citizenship.

00:02:28.000 All right, so let's get into the actual opinion.

00:02:31.000 The opinion by Justice Roberts here, which again is joined by the liberals on the court, is a bad opinion.

00:02:36.000 It is a bad opinion because it is rooted in a really bizarre interpretation of the 14th Amendment to the Constitution and its history.

00:02:46.000 It's rooted in a bizarre interpretation of how citizenship has worked historically in the United States.

00:02:52.000 It'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.

00:03:04.000 It doesn't make a lot of legal sense.

00:03:06.000 So, to start at the very beginning, the governing law when it comes to citizenship in the United States is the 14th Amendment.

00:03:12.000 It 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.

00:03:22.000 And now, the key phrase that we'll talk about in a moment is subject to the jurisdiction thereof.

00:03:26.000 It seems superfluous, does it not?

00:03:29.000 If 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.

00:03:37.000 It's totally unnecessary.

00:03:39.000 I already said if you're born in the United States, you're a citizen.

00:03:42.000 But then it says and subject to the jurisdiction thereof.

00:03:44.000 So what exactly does that mean?

00:03:46.000 That is the subject of the case.

00:03:48.000 Well, on January 20th, on his first day in office, President Trump issued Executive Order No. 14160.

00:03:54.000 It was titled Protecting the Meaning and Value of American Citizenship.

00:03:58.000 And 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.

00:04:12.000 Okay, so here's where we get into the very weird history told by Justice Roberts.

00:04:16.000 So he is trying to ground his version of birthright citizenship in sort of ancient practice.

00:04:22.000 And as you'll see, Thomas Alito, they just rip him stem to stern on this, they just take him absolutely apart.

00:04:29.000 Again, 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.

00:04:41.000 It amounts to something like 275 pages of text.

00:04:45.000 So, yeah, that's the thing we do here.

00:04:46.000 We actually read the opinions when we break them down.

00:04:48.000 So, Justice Roberts says The story of citizenship in the United States begins with the English common law.

00:04:55.000 Before the revolution, the American colonists, like all in the British Empire, were considered subjects of the sovereign.

00:05:01.000 Because the sovereign's power and thus his duty was limited in various respects, so too was the scope of this rule.

00:05:07.000 He could not demand allegiance from, for he could not protect those born in lands he did not control.

00:05:11.000 In all other respects, however, the sovereign's power and his claim to the people's allegiance was complete. 0.58

00:05:16.000 A 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.

00:05:22.000 Okay, there's one problem with this, as Justices Thomas and Alito note pretty obviously. 0.89

00:05:28.000 The American Revolution does not believe in the idea that the king has dominance over his subjects.

00:05:35.000 Because again, we are citizens, not in fact subjects.

00:05:39.000 And the basic idea of being a subject of the British Empire is a different thing than American citizenship.

00:05:45.000 We had a whole revolution that we fought in order to not be British.

00:05:49.000 But back to Roberts' opinion, he says, no, no, no, no.

00:05:52.000 We actually imbibed from the British well and we took their rule and then we applied it here at home.

00:05:57.000 He 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.

00:06:05.000 He says it's the same thing.

00:06:07.000 Being subject of the king, meaning the king's property essentially, is the same thing as being a citizen of the state.

00:06:12.000 That is totally wrong.

00:06:13.000 It is absolutely wrong.

00:06:15.000 This 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.

00:06:28.000 And 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.

00:06:37.000 Okay, fast forward.

00:06:38.000 To Dred Scott versus Sanford.

00:06:39.000 So, 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.

00:06:47.000 That 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?

00:06:59.000 That is Dred Scott.

00:07:01.000 According to Justice Roberts, in the odious decision of Dred Scott versus Sanford, this court imposed the Southern states' beliefs onto the nation.

00:07:09.000 Chief Justice Tawney, writing for the court, concluded.

00:07:11.000 That the words people of the United States and citizens had an unexpressed racial component, one that excluded all those descended from slaves.

00:07:20.000 The court had overruled the common law, but the people eventually would overrule the court.

00:07:23.000 It took more than a decade and the Civil War, but Frederick Douglass' vision of our common humanity would be fulfilled.

00:07:29.000 Okay, 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.

00:07:37.000 Dred 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.

00:07:45.000 And then, in the aftermath of the Civil War, two key pieces of legislation one, a piece of legislation, and one, a constitutional amendment.

00:07:51.000 The 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.

00:08:01.000 So, says the court and Justice Roberts, the act, like the Civil Rights Act, the 14th Amendment was intended to repudiate Dred Scott.

00:08:11.000 The goal was grand to put the great question of citizenship beyond the legislative power altogether to settle the issue once and for all.

00:08:17.000 The clause starts like the common law with territory.

00:08:19.000 A child must be born in the United States, not elsewhere.

00:08:22.000 And the clause ends again like the common law with sovereign power.

00:08:25.000 A child must be subject to the jurisdiction of the United States, unlike, say, the families of foreign ministers.

00:08:31.000 A child born on American soil and subject to American law was made an American citizen.

00:08:35.000 Okay, so the question becomes, as we said right at the top, what does it mean, subject to the jurisdiction thereof?

00:08:40.000 What does it mean to be subject to American law?

00:08:42.000 So he says, to be subject to the jurisdiction of the United States is to live under its dominion.

00:08:48.000 The citizenship clause uses jurisdiction in its ordinary sense, referring to the power of the United States to govern those within its territory.

00:08:54.000 But that, of course, is really a silly interpretation.

00:08:57.000 It becomes completely like who living in the United States would not be subject to the jurisdiction thereof, aside from maybe foreign diplomats.

00:09:05.000 What would happen with, say, people who are born into Native American ancestry?

00:09:12.000 Like these are real questions.

00:09:13.000 What would happen if you were temporarily here?

00:09:15.000 Were you subject to the jurisdiction of American law?

00:09:18.000 Like, what did that mean?

00:09:19.000 What did it add to born here?

00:09:20.000 Because if you just mean born here, just say born here, you don't need subject to the jurisdiction thereof.

00:09:27.000 He says, The ordinary legal meaning of the text of the clause captures the common law rule with its broad reach and narrow exceptions.

00:09:35.000 The groups included and excluded by Jusoli were included and excluded by the conventional understanding of jurisdiction.

00:09:41.000 Excluded 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.

00:09:55.000 Okay, but here's where the court's theory runs into a bunch of trouble.

00:09:59.000 During Reconstruction, Right.

00:10:02.000 In 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. 0.54

00:10:18.000 You 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.

00:10:26.000 So, what the court has to claim is that basically there was a consistent through line from British citizenship.

00:10:32.000 Jusoli, all the way up until Reconstruction.

00:10:35.000 And then there was sort of a detour.

00:10:37.000 And then in the late 19th century with Wang Kim Ark, we went back to the British rule.

00:10:43.000 So, quote, the new theory after Reconstruction focused on the parents' status, not the child's.

00:10:48.000 Now, again, as Justice Thomas is going to point out, this is nonsensical.

00:10:51.000 Every immigration status question focuses on the status of the parents, quite obviously.

00:10:56.000 For example, if you are born a child of a foreign ambassador, we are not focused on your status, we are focused on your parents' status.

00:11:03.000 So, this is a nonsensical critique.

00:11:05.000 But 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.

00:11:16.000 In 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.

00:11:31.000 Justice Gray, who wrote that decision, explained, the 14th Amendment was merely declaratory.

00:11:35.000 Of the fundamental rule of citizenship by birth that prevailed at common law.

00:11:39.000 That same rule, he wrote, was a force in all the English colonies and continued to prevail under the Constitution.

00:11:46.000 What the court held, according to Justice Roberts, in Wong Kim Ark, which is supposedly the governing precedent here, was simple.

00:11:53.000 The citizenship clause incorporated the common law and granted citizenship to nearly all children born in the United States.

00:11:59.000 Not 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.

00:12:09.000 Okay, so the dissent written by Justice Thomas says, no, The whole idea here is that you have to have allegiance to the United States.

00:12:19.000 When it says subject to the jurisdiction thereof, you have to be what we'll get to in his dissent domiciled in the United States.

00:12:25.000 You have to owe your allegiance to the United States.

00:12:28.000 No foreign allegiance.

00:12:31.000 Okay, so at some point, according to Thomas, the idea of citizenship broke from that of Great Britain.

00:12:38.000 Robert says no.

00:12:40.000 He says the trouble is there is scant evidence for this dramatically revisionist view.

00:12:44.000 Certainly no one said that such a change had occurred.

00:12:47.000 For a Congress intent on putting the question of citizenship once and forever to rest.

00:12:52.000 A domicile based qualification would have introduced significant uncertainty.

00:12:55.000 Unlike 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.

00:13:10.000 Okay, the Civil Rights Act made citizens of all persons born in the United States and not subject to any power.

00:13:17.000 And 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.

00:13:29.000 Justice Alito says a person is not subject to any foreign power if and only if no other country would automatically make him a national.

00:13:37.000 Justice Roberts says, no, actually, you can be subject to two governments at once.

00:13:43.000 Okay, so that is the opinion of the court.

00:13:46.000 The 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.

00:13:58.000 Because we basically just picked up the British idea of citizenship and dumped it wholesale into American law.

00:14:02.000 Now, 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.

00:14:11.000 It is a bad take.

00:14:14.000 We'll get to Justice Thomas's dissent in just a second, which is masterful and quite lengthy.

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00:15:38.000 Okay, so I'm going to get to Justice Thomas's dissent because Justice Thomas's dissent is 91 pages long and it is the heart of the issue.

00:15:46.000 Justice Thomas is obviously super ticked off and for good reason. 0.99

00:15:49.000 He says, listen, your interpretation here is just crap. 0.99

00:15:52.000 This Roberts majority opinion is rooted in ahistorical nonsense. 0.99

00:15:57.000 And this thing is a stem winder and it is an absolute excoriation of Roberts as well as the people who concurred in this decision.

00:16:05.000 So here's what he says.

00:16:07.000 He says, essentially, the 14th Amendment.

00:16:09.000 The 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.

00:16:19.000 That 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.

00:16:28.000 Were they citizens or were they not?

00:16:29.000 Dred Scott said no.

00:16:31.000 And 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.

00:16:42.000 So he says, Blacks were entitled to citizenship because they were Americans.

00:16:45.000 They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority.

00:16:50.000 They 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.

00:16:57.000 The 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. 0.67

00:17:05.000 He says the same could not be said for the children of foreign temporary visitors.

00:17:09.000 Foreign temporary visitors were attached to their home country.

00:17:12.000 They lacked similar bonds to this country.

00:17:13.000 They would not be called upon in time of war.

00:17:16.000 Americans, consistent with their settler ethos, believed that citizens were the people who called a place home.

00:17:21.000 Accordingly, domicile, a person's legal home, played a key role in both state and national citizenship in America.

00:17:27.000 A person was a citizen of the state where he had his domicile.

00:17:31.000 So, none of this, you're born here, you're here for five seconds, you leave, and you're an American citizen.

00:17:36.000 No jus soli, because you're not subject to the king.

00:17:39.000 The 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.

00:17:46.000 You have domicile in the United States, according to Justice Thomas.

00:17:51.000 He 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?

00:18:11.000 And again, born is not enough.

00:18:13.000 And subject to the jurisdiction thereof is the phrase in the 14th Amendment.

00:18:17.000 He 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.

00:18:23.000 Guaranteed citizenship to persons who were both born in the United States and, as relevant here, not subject to any foreign power.

00:18:30.000 The 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.

00:18:38.000 Says 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.

00:18:48.000 Regardless 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.

00:18:58.000 When 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. 0.74

00:19:08.000 Again, so that is the case.

00:19:10.000 The case is that actually the United States never adopted the jus soli British common law rule of citizenship.

00:19:18.000 It never adopted that.

00:19:20.000 It had a failing with regard to its perception of citizenship with regard to black citizens because of slavery.

00:19:25.000 That was rectified by the Civil Rights Act of 1866 and the 14th Amendment.

00:19:30.000 And then the court just got it wrong in Wang Kim Ark.

00:19:33.000 But even there, they didn't really get it wrong.

00:19:35.000 They actually are just being misinterpreted, is the case that Justice Thomas is going to make.

00:19:40.000 And he rips into the court.

00:19:41.000 He 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.

00:19:48.000 The 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.

00:19:57.000 But Americans, unsurprisingly, rejected this feudal principle.

00:20:00.000 The 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.

00:20:09.000 But the assistant vice chancellor's reasoning, whatever it was worth, was not even followed in New York by the time of the citizenship clause.

00:20:14.000 Finally, the court reasons that dicta in Wong Kim Arc, that means stuff that's not the decision.

00:20:19.000 Whenever you have a decision, you have the decision itself, and then you have a bunch of sort of reasoning and other extraneous ideas.

00:20:25.000 That's called dicta.

00:20:27.000 That's what that means.

00:20:28.000 He's saying that a bunch of sentences that have nothing to do with the final ruling in Wong Kim Arc do not govern.

00:20:34.000 The citizenship clause.

00:20:36.000 He says the court reasons that dicta in Wong Kim Ark settled the meaning of the clause.

00:20:41.000 But Wong Kim Ark itself emphasized that its holding was limited to persons domiciled in the United States.

00:20:47.000 Scholars and government officials continued to agree after Wong Kim Ark that the citizenship clause did not extend to the children of foreign temporary visitors.

00:20:55.000 The 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.

00:21:05.000 He says, in America, you were generally a citizen if you were born here, and this was your home.

00:21:10.000 The legal word for home was domicile.

00:21:12.000 The concepts were so linked as to be taken as effectively synonymous, such that Justice Bushrod Washington would say citizenship means domicile, home, permanent residence.

00:21:22.000 Citizens were not the people who were temporarily passing through a territory or who happened to be born within it.

00:21:27.000 Citizens 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.

00:21:35.000 The law of both state and national citizenship reflected this principle.

00:21:40.000 The 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.

00:21:49.000 Domicile 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.

00:21:57.000 So the United States, says Thomas, did not claim as a citizen every child born on its soil.

00:22:02.000 Instead, pursuant to the principle that children followed their parents' domicile, a child was a citizen of the place where his parents were domiciled.

00:22:10.000 Because any person incapable of establishing his own domicile had the domicile of that person on whom he depends for support.

00:22:16.000 It followed that generally minor children had the settlement of their father.

00:22:19.000 So, in other words, you follow your parents.

00:22:22.000 And he points out, in the 19th century, dual citizenship was considered highly undesirable, if not a contradiction in terms.

00:22:29.000 A 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.

00:22:39.000 And as he points out, the Civil Rights Act explicitly said this.

00:22:44.000 Representative 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.

00:22:55.000 And 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.

00:23:09.000 Why?

00:23:09.000 Well, 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.

00:23:17.000 So let's say you were a Chinese immigrant.

00:23:19.000 You couldn't renounce your citizenship at home because if you went back home, they would behead you if you did that.

00:23:23.000 And also, you couldn't get citizenship in the United States.

00:23:25.000 So essentially, you were kind of stateless, but you were domiciled in the United States.

00:23:31.000 That's what Thomas says.

00:23:32.000 He says that case, Wong Kim Ark, concerned only persons already domiciled in the United States.

00:23:41.000 And then he points out that again, forever and always, the phrase subject to the jurisdiction meant always.

00:23:51.000 What it said, complete jurisdiction.

00:23:54.000 And then he rips into the court.

00:23:55.000 He says the court's account makes no sense.

00:23:58.000 First, he says the post ratification evidence against the court's view begins not nearly two decades after the 14th Amendment's ratification, but immediately.

00:24:08.000 Well, 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.

00:24:17.000 He points out that there are lots of other indicators of original public meetings supporting the domicile requirement.

00:24:24.000 He 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.

00:24:33.000 Second, domicile rules, meaning citizenship on a national level, mirrored state citizenship.

00:24:39.000 You are a citizen of the state in which you are domiciled here in the United States.

00:24:43.000 And domicile means you call it home.

00:24:46.000 And then third, the domicile rule would make the citizenship clause accord with America's treatment of its own domiciliaries abroad.

00:24:54.000 Again, America itself has long taken the position that children of American citizens born on temporary visits abroad are still American citizens.

00:25:00.000 How could that be?

00:25:01.000 Why aren't we, if you're born in France, why aren't you a French citizen if you're, if you're an American?

00:25:05.000 And the answer is because you're still domiciled here in the United States.

00:25:11.000 So again, that is the, that is the Thomas dissent, which I think is dispositive.

00:25:16.000 It is very clearly correct.

00:25:20.000 Justice Alito follows hard on all of that.

00:25:24.000 He 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.

00:25:32.000 Because 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.

00:25:39.000 But 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.

00:25:47.000 We'll get to that in just one second.

00:25:49.000 First, as you know, America turns to 50 this 4th of July.

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00:26:26.000 Okay, back to this Alito descent.

00:26:28.000 So Alito joins in and he is just raging mad.

00:26:32.000 Alito 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.

00:26:40.000 As 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.

00:26:52.000 Careful 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.

00:27:02.000 Instead, the 14th Amendment confers citizenship on only those children who at birth owe allegiance solely to this country.

00:27:09.000 He says the original meaning of the 14th Amendment does not require inhumane results.

00:27:13.000 Congress, in other words, should solve the problem.

00:27:15.000 If you don't like the way that citizenship is done, Congress can add additional citizenship capability. 0.53

00:27:22.000 It could amnesty the Dreamers, for example.

00:27:23.000 Congress can do lots of things. 0.99

00:27:26.000 The Constitution doesn't decide sort of the minimum standard or the max.

00:27:31.000 The Constitution doesn't say who may get in, it says who must get in.

00:27:36.000 Okay, so when it comes to may, Congress can step in.

00:27:40.000 Alito says, before saddling the nation with a medieval rule, we had better be certain the Constitution requires it.

00:27:45.000 The court's account of the birthright citizenship rule in American law is roughly as follows.

00:27:49.000 After 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.

00:27:58.000 As 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.

00:28:07.000 During the period before the Civil War, the rule's status was firm.

00:28:10.000 After the war, Congress codified the rule in Section 1 of the 14th Amendment and in United States v. Wong Kim Ark.

00:28:16.000 This court issued a binding precedent confirming what Congress had done.

00:28:19.000 Alito says, Every step of this story is incorrect.

00:28:23.000 The Declaration of Independence repudiated the foundation on which the British rule was based.

00:28:27.000 From 1776 until the eve of the Civil War, the status of the rule in this country was unsettled.

00:28:33.000 There is no evidence establishing that the Constitution's references to citizens incorporated the British rule.

00:28:42.000 And again, he goes along, you know, he goes on and on in this way.

00:28:46.000 Again, very convincing dissent here. 0.58

00:28:50.000 And 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.

00:29:01.000 The court's interpretation of the 14th Amendment makes all the members of this latter group citizens.

00:29:05.000 Many 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.

00:29:13.000 So he's saying to Roberts, listen, I understand that you are trying to evade responsibility for what's going on with dreamers and such.

00:29:20.000 By basically saying that anyone who's born in the United States has to stay here, but that is not what the Constitution mandates.

00:29:29.000 So, again, it's a terribly decided case here from Chief Justice Roberts and the rest of the liberals on the court.

00:29:36.000 There's sort of a concurrence in part, dissent in part from Justice Kavanaugh.

00:29:40.000 He 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.

00:29:50.000 Bottom 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.

00:29:59.000 It just makes the immigration issue that much more pressing.

00:30:04.000 That's all that has to happen here.

00:30:06.000 Because for the foreseeable future, birthright citizenship will be the law of the land.

00:30:11.000 Okay, 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.

00:30:17.000 Because this case, I've been getting tons and tons of mail about.

00:30:21.000 And lots of mail about this case regarding Monsanto.

00:30:25.000 So, this segment is sponsored by our friends over at Balance of Nature, by the way.

00:30:31.000 Hey, Monsanto versus Durnell was a 7 2 case in favor of Monsanto.

00:30:37.000 So, basically, in this case, Monsanto is the producer of Roundup.

00:30:43.000 A lot of people are very, very upset about Roundup, including my wife, by the way.

00:30:46.000 Roundup is scary.

00:30:48.000 Hey, glycophosphates are definitely questionable.

00:30:52.000 The evidence, shall we say, is very, very mixed.

00:30:55.000 So the EPA ruled in 1974 that Roundup and other glyphophosphate based pesticides do not actually need to carry a cancer warning.

00:31:03.000 But in Europe, there are lots of countries that ban Roundup or restrict Roundup.

00:31:08.000 In 2015, the International Agency for Research on Cancer classified glyphosate as possibly carcinogenic to humans based on evidence of cancer in humans.

00:31:19.000 Largely what people have been worried about is particular forms of cancer like non Hodgkin's lymphoma.

00:31:25.000 More than 100,000 plaintiffs have filed cases against Roundup.

00:31:29.000 In 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.

00:31:42.000 In 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.

00:31:50.000 But then the EPA withdrew those findings and said it would revisit the claims.

00:31:53.000 Okay, so again, a lot of people are worried about Roundup.

00:31:56.000 We live near a golf course.

00:31:58.000 One 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.

00:32:05.000 So a lot of people are deeply worried about this.

00:32:07.000 Okay, so in this case, what happened is that somebody at the state level sued Roundup based on.

00:32:12.000 Lack of warning on the warning label, saying that the warning label should have included some sort of cancer warning.

00:32:19.000 And 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.

00:32:29.000 So you can't tell us at a state level we have to include something that the EPA says we don't have to include.

00:32:35.000 That really is the question.

00:32:37.000 So it is not a question about the safety of Roundup.

00:32:41.000 The question of the safety of Roundup is a question for the EPA.

00:32:44.000 And if you have IR, you really should direct it at the EPA.

00:32:47.000 Basically, what this case found, 7 2, is that federal law gives the power to the EPA to regulate the warning labels on products.

00:32:56.000 And you cannot force every federal warning label to then be superseded by a state warning label or you destroy entire industries.

00:33:03.000 That's basically the idea.

00:33:06.000 So this decision was written by Justice Kavanaugh.

00:33:09.000 And he said as relevant here, EPA regulates Roundup, a glyphosate based pesticide manufactured by Monsanto.

00:33:16.000 Because EPA has repeatedly concluded that glyphosate is not likely to cause cancer, the agency has not required a cancer warning on Roundup's label.

00:33:24.000 The law expressly preempts state claims because it says that the warning labels are to be done at the federal level, essentially.

00:33:32.000 Now, the dissent, written by Katanji Brown Jackson and joined by Justice Gorsuch, actually, is kind of a weird pairing there.

00:33:39.000 They basically say that the EPA approval is not the entire requirement.

00:33:45.000 You should still be able to sue based on state claims and that there is no preemption.

00:33:51.000 And that the actual solution would be for Monsanto to stop sales of Roundup entirely.

00:33:58.000 Okay, but bottom line here is I'm not sure this decision is wrong by the Supreme Court.

00:34:02.000 However, I think that people's worries about glyphosate are quite right.

00:34:05.000 And by the way, it doesn't remove all causes of actual lawsuit, right?

00:34:09.000 Insufficient warning is not, you'd have to show more causality.

00:34:12.000 Insufficient warning would not be the only basis for a tort lawsuit in this particular case.

00:34:16.000 But the bottom line is that the court essentially ruled on the basis of legal preemption.

00:34:22.000 Not on whether Roundup is safe or not.

00:34:23.000 That is a question for the EPA.

00:34:25.000 Now, listen, we don't have control of our environment.

00:34:29.000 We worry a lot about the stuff that's in the environment.

00:34:30.000 Again, 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.

00:34:36.000 That's the stuff that you should, because you can control that stuff.

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00:35:56.000 Okay, so that's two big decisions.

00:35:58.000 Decision number one, huge decision.

00:36:01.000 The Supreme Court is not going to solve Congress and the president's immigration problems by actually interpreting the law correctly.

00:36:07.000 So it goes right back to Congress and the president to actually enforce immigration law.

00:36:10.000 Good luck there.

00:36:11.000 All right, two other major decisions coming down from the Supreme Court today.

00:36:15.000 One is titled West Virginia versus BPJ.

00:36:19.000 This 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.

00:36:31.000 And whether Title IX is violated by saying, by the way, totally incoherent.

00:36:36.000 Title IX says there should be women's sports and men's sports.

00:36:39.000 The lawsuit was can a boy who claims to be a girl claim discrimination as a girl?

00:36:44.000 For not being allowed to play with the girls.

00:36:48.000 Okay, so there are basically two questions in this decision.

00:36:50.000 One is whether Title IX allows there to be women's and girls sports for biological females. 0.89

00:36:54.000 The answer, of course, is that's what it was designed for.

00:36:57.000 And then question two is does it violate the Equal Protection Clause to say that boys and girls should play separately? 1.00

00:37:04.000 The answer, of course, is no, that's incredibly stupid. 0.98

00:37:07.000 But what's hilarious is that the court has to go through all of these pretzel interpretations. 0.99

00:37:12.000 Justice Thomas, as always, the best justice, goes straight to the heart of the matter.

00:37:15.000 He 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. 0.53

00:37:19.000 And of course, boys and girls are different, and you can draw legal distinctions between categories based on reality.

00:37:25.000 And 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.

00:37:34.000 But that doesn't mean that you can invalidate entire swaths of law based on lone exceptions to a sort of utilitarian rule. 0.99

00:37:42.000 That's stupid. 0.99

00:37:45.000 If the law is good that boys and girls are different, then a boy who says he is a girl remains a boy. 1.00

00:37:50.000 That is Justice Thomas's position.

00:37:51.000 That is not the majority opinion.

00:37:53.000 The 6 3 majority opinion basically tries to, I don't know, tiptoe its way through choppy waters here to mix a metaphor.

00:38:02.000 Justice Kavanaugh writes the majority opinion.

00:38:04.000 He says the question is whether Title IX permits schools to maintain women's and girls' sports for biological females.

00:38:09.000 The answer is yes.

00:38:10.000 Title IX prohibits discrimination on the basis of sex.

00:38:13.000 Title IX implementing regulations expressly permit schools to maintain separate teams for members of each sex.

00:38:19.000 The 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.

00:38:31.000 The ordinary meaning of the term sex at the time of enactment was biological sex and not gender identity, particularly in the sports context.

00:38:36.000 Now, at this point, we should point out it always means sex. 0.88

00:38:40.000 What the hell are you talking about?

00:38:42.000 Why are we pretending that the meaning of the term sex changed over time? 0.87

00:38:46.000 It didn't. 0.99

00:38:47.000 This is dumb. 0.97

00:38:49.000 In addition, the Title IX regulations allowed separate sports teams precisely because of the biological differences between the sexes. 0.98

00:38:56.000 Namely, the inherent physical differences between biological women and biological men.

00:39:00.000 And he says, of course, duh, separate sports teams for biological males and biological females are reasonable. 0.86

00:39:09.000 Title VII.

00:39:10.000 Okay, so then there is a question that's raised by the plaintiffs.

00:39:13.000 And that question is there is a case that you will remember written by Justice Gorsuch, a bad case.

00:39:19.000 I like Justice Gorsuch a lot.

00:39:20.000 This is a terrible case.

00:39:22.000 The Bostock case, which essentially said that the Civil Rights Act mandated.

00:39:29.000 That transgender women be protected by non discrimination law in some way. 0.86

00:39:36.000 So, 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. 0.94

00:39:51.000 Bostock is an incomprehensibly bad decision, in my opinion.

00:39:55.000 In any case, the court here says no, no, no, Title VII is about employment, Title IX focuses on sports.

00:40:02.000 They say the two factual contexts are vastly different.

00:40:06.000 In the workplace, Title VII generally requires that men and women be treated without regard to sex.

00:40:09.000 In the sports context, Title IX authorizes separate men's and women's sports teams.

00:40:15.000 Why? 0.74

00:40:15.000 Well, because men and women are different. 0.74

00:40:17.000 By the way, we should point out that that is also true in a wide variety of employment contexts.

00:40:22.000 I'm not even sure.

00:40:23.000 Question How would you enforce a Bostock decision, Title VII, with regard to, say, working at Hooters?

00:40:29.000 How would that work?

00:40:30.000 Can a man walk in and be like, this is sex discrimination, you won't hire me at Hooters?

00:40:35.000 How does that, in any case?

00:40:38.000 The court finds Not every biological male athlete is bigger, stronger, faster, or otherwise more athletically able than every biological female athlete.

00:40:46.000 Some percentage of biological males who identify as male possess physical and athletic capabilities that fall within the range of typical female and athletic capabilities.

00:40:54.000 But 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.

00:41:01.000 The Equal Protection Clause does not prohibit the states from applying that same principle to all biological males, including those who identify as females.

00:41:08.000 Now, Justice Thomas says the quiet part out loud.

00:41:10.000 He's like, What are we even talking about here?

00:41:11.000 What the hell are you talking about? 0.88

00:41:13.000 Why 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? 1.00

00:41:18.000 Like, what the hell?

00:41:20.000 Thomas says, First, transgender status is not a suspect class requiring heightened equal protection scrutiny. 0.73

00:41:26.000 The class of people who claim transgender status could more accurately be described as people who are experiencing gender dysphoria.

00:41:32.000 That is not a discrete group.

00:41:34.000 Because 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.

00:41:42.000 Have applied heightened scrutiny, race, sex, or national origin. 0.88

00:41:47.000 So he's saying, like, what are you talking about, basically?

00:41:47.000 Right?

00:41:50.000 Like, we're supposed to pretend that you are part of a protected class that requires heightened scrutiny.

00:41:56.000 So 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.

00:42:06.000 Basically, 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?

00:42:14.000 And 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.

00:42:21.000 He says, men and boys with gender dysphoria are not women or girls, even if they believe that they are.

00:42:25.000 Sex is an immutable biological characteristic.

00:42:28.000 It is binary.

00:42:29.000 Man, woman, boy, and girl are terms that correspond to adults and children of each sex.

00:42:33.000 To 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.

00:42:40.000 Well, yes.

00:42:41.000 Justice Sotomayor was very ticked about this decision.

00:42:44.000 She read part of her dissent from the bench, which is a sign that you're really mad.

00:42:48.000 And what she says here is that basically she has sympathy for the boy who thinks that he is a girl.

00:42:54.000 Her sex was identified as male at birth, but she has known from the time she was very little that she is a girl.

00:42:58.000 Oh boy.

00:43:01.000 And 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.

00:43:18.000 So she's saying they are discriminating against trans people because.

00:43:22.000 You could have a subclass of trans people who are allowed to play, but you're not allowing it to happen.

00:43:26.000 And Thomas is like, that's not a discrimination.

00:43:28.000 That's not a class.

00:43:29.000 Transgender is not a class. 1.00

00:43:30.000 Those are men who have a mental condition, which obviously is true. 0.99

00:43:36.000 Justice Kintanji Brown Jackson, same kind of thing. 0.91

00:43:38.000 She dissents too.

00:43:40.000 She says, Title of Nine makes room for individuals to live in the gender they choose.

00:43:44.000 It 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.

00:43:50.000 Again, this is just incompetent and incoherent.

00:43:52.000 How do you have separate leagues for men and women when you can't define man and you can't define women? 1.00

00:43:57.000 So, the court got this one right. 0.99

00:43:59.000 The court totally blows the huge decision today, which is the birthright citizenship case, totally blows it. 1.00

00:44:04.000 Then you have the transgenders in sports case. 0.67

00:44:06.000 The 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. 0.82

00:44:15.000 And then finally, we have a third major decision coming down from the Supreme Court having to do with campaign finance.

00:44:21.000 So, basically, the question here is whether there can be limits.

00:44:27.000 On campaign contributions to parties, those contributions being used to coordinate with candidate contributions.

00:44:36.000 So, the Federal Election Campaign Act limits a political party's campaign spending.

00:44:40.000 It's a 6 3 decision that basically frees up campaign finance some more.

00:44:44.000 Justice Kavanaugh writing for the court.

00:44:46.000 The Federal Election Campaign Act limits a political party's campaign spending.

00:44:50.000 Those spending limits necessarily abridge political parties' freedom of speech.

00:44:53.000 Okay, under the First Amendment.

00:44:57.000 And so that's a problem, but you can sometimes allow it.

00:45:01.000 FECA, which is the name of that law, the Federal Elections Campaign Act, limits a political party's coordinated expenditures.

00:45:10.000 What are coordinated expenditures?

00:45:11.000 It 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.

00:45:23.000 So, Republican candidate Ted Cruz is running for office.

00:45:27.000 And you have received money as the National Republican Senatorial Committee.

00:45:27.000 Okay.

00:45:33.000 How can you coordinate with the campaign to make sure that you're essentially not spending money in the same places?

00:45:38.000 So, the law prevents a lot of this coordination.

00:45:42.000 The primary current justification for those limits is to prevent what's called circumvention.

00:45:46.000 That is to prevent a donor from circumventing the statutory limit on contributions to candidates.

00:45:51.000 By making a huge contribution to a party, the party then uses it to support a particular candidate.

00:45:55.000 So, under federal law, you are limited in how much you can give directly to Ted Cruz.

00:45:58.000 So, instead, the idea is give the money to the Republican Party.

00:46:01.000 The Republican Party and Cruz will coordinate.

00:46:03.000 So, 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.

00:46:13.000 And so the law wanted to stop that.

00:46:15.000 So, says the court, the question here concerns FECA's limits on spending by political parties in coordination for candidates.

00:46:20.000 For 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.

00:46:33.000 So, traditionally, parties and candidates obviously coordinated.

00:46:36.000 For 200 years, this was totally fine.

00:46:40.000 So here they say you're allowed to do it again. 1.00

00:46:43.000 Basically, like duh, this is stupid. 1.00

00:46:46.000 Well, that stupid sort of Chinese wall existing between a candidate and the party, so that you're duplicating efforts, is inefficient and silly. 0.99

00:46:58.000 The 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. 0.97

00:47:10.000 Via large contributions to parties that are earmarked directly to a candidate because you're not supposed to earmark.

00:47:15.000 So you're not supposed to give to the Republican Party and say, this 500 grand is for Cruz's campaign.

00:47:20.000 And they say, well, that's already illegal, so you can't earmark.

00:47:23.000 And so, what are we even talking about here?

00:47:26.000 Now, again, word I, I would just eliminate all of these laws. 0.97

00:47:29.000 I think these laws are ridiculous. 1.00

00:47:30.000 I think campaign finance regulations are incredibly stupid. 1.00

00:47:33.000 I think that people find ways around them all the time. 0.99

00:47:35.000 And 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.

00:47:50.000 It's just nonsense.

00:47:51.000 And by the way, the very premise.

00:47:53.000 Which is that if you limit money in politics, you limit corruption in politics, is not true.

00:47:57.000 It turns out money in politics and corruption in politics, they go all the way back and they will never be eliminated.

00:48:03.000 And also, you supporting a candidate by giving money to a super PAC does not mean you are bribing the candidate.

00:48:09.000 It means you are supporting a candidate who agrees with you.

00:48:13.000 If you want to show evidence of bribery, you have to show somebody changing their position because they wanted the cash.

00:48:18.000 This is always the question I would love to ask Bernie Sanders.

00:48:20.000 How much would it cost for me to buy Bernie Sanders?

00:48:22.000 He says, like, money corrupts in politics.

00:48:25.000 So, how much money would I have to spend on Bernie in order to get him to endorse capitalism?

00:48:28.000 Is there an amount?

00:48:30.000 Okay, so bottom line is those were the three big cases that came out today.

00:48:36.000 And of course, that follows hard on a few major cases that came out yesterday.

00:48:41.000 There's a case that came out yesterday dealing with the question of mail in ballots and when they can be counted.

00:48:46.000 If a mail in ballot arrives after the actual election day, can it still be counted?

00:48:50.000 The court found yes.

00:48:54.000 Now, President Trump used this as impetus to say that we should pass the Save Act, which would limit all of this.

00:49:00.000 Now, again, he is right.

00:49:03.000 The SAVE Act should pass.

00:49:04.000 As I pointed out before, the question here really is not about the late counting of ballots.

00:49:08.000 I understand that there's a lot of worries about late counting of ballots providing an open window for election fraud.

00:49:13.000 I 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.

00:49:22.000 It'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.

00:49:32.000 That honestly, we should really concern ourselves with, it seems to me.

00:49:38.000 President Trump, of course, remains very concerned about this.

00:49:41.000 He 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.

00:49:51.000 Well, because of the mail in ballot ruling, which was a little bit surprising, gives people more time to vote illegally, let's say.

00:50:03.000 Okay, so.

00:50:04.000 Again, I don't think this is the biggest issue that people ought to be worried about, but I certainly understand the consternation and concern.

00:50:10.000 That is quite real, obviously.

00:50:12.000 Okay.

00:50:13.000 Other big decision that came down yesterday was a decision that basically gave the president plenary power to fire people in the executive branch.

00:50:21.000 So 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.

00:50:35.000 This case said, no, enough of that.

00:50:36.000 That's nonsense.

00:50:39.000 The case commented, quote, independent agencies today hold tremendous sway over the nation's affairs.

00:50:46.000 They regulate our businesses and our financial markets.

00:50:49.000 They set the rules for internet and airwaves.

00:50:50.000 They decide how we light our homes, how we run our elections, the manner of our employment.

00:50:54.000 They determine what toys our children will play with, how we interact with each other at work.

00:50:58.000 And 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.

00:51:11.000 That is what this is about.

00:51:12.000 It's about running the executive branch.

00:51:14.000 The theory of the unitary executive that originally started as a dissent position from Justice Scalia has now become the law.

00:51:21.000 And the idea here is that if you are in the executive branch, you work for the president, the president can fire you at his pleasure.

00:51:30.000 Justice Roberts delivered the opinion of the court.

00:51:32.000 The other conservatives on the court joined.

00:51:37.000 The only people who voted against were the left of the court.

00:51:41.000 And again, the basic idea here is that protection from removal.

00:51:46.000 Is contrary to the separation of powers enshrined in the Constitution.

00:51:49.000 So the president gets to fire people who work for the executive branch.

00:51:51.000 You would think that that would go without saying, but it absolutely does not.

00:51:55.000 Now, the president said yesterday, and he is correct, that this gives a president the right to do what he should.

00:52:01.000 The Supreme Court just affirmed your right to fire the heads of independent agencies.

00:52:05.000 Should we expect more firings as a result of this ruling?

00:52:09.000 It gives me the right, and not me, it gives a president the right to do what the president should have the right to do.

00:52:09.000 I don't think so.

00:52:15.000 And it's very interesting.

00:52:17.000 It's a big ruling.

00:52:18.000 It's been going on for almost 100 years.

00:52:21.000 They'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.

00:52:30.000 The president has the right to do this.

00:52:34.000 Okay, he is right about that, and of course, this is correct.

00:52:37.000 This is the you don't want an unelected fourth branch of government that is unanswerable to anyone.

00:52:41.000 It's not answerable to the president, it's not answerable to Congress, it's answerable to nobody.

00:52:44.000 You don't want that.

00:52:45.000 It's bad, it is wrong.

00:52:47.000 It is the basis of Wilsonian power grab that began in the early 20th century.

00:52:51.000 Okay, then there was another case.

00:52:52.000 And 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.

00:53:03.000 Again, 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.

00:53:15.000 So, another case that came down yesterday was about the firing of Lisa Cook at the Federal Reserve.

00:53:22.000 So, this case was also written by Justice Roberts.

00:53:25.000 In this case, he says you can't fire somebody from the Federal Reserve, which is weird.

00:53:29.000 So, he says you can fire somebody from the Federal Trade Commission, but you can't fire someone from the Federal Reserve.

00:53:34.000 And he was joined in that decision by Justice Kavanaugh, which, again, is super weird.

00:53:38.000 Justice Thomas is like, this makes no sense.

00:53:40.000 What the hell are you talking about?

00:53:41.000 Again, Justice Thomas is perfectly consistent.

00:53:44.000 So, 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.

00:53:52.000 Okay, that is a distinction that is not going to hold. 0.89

00:53:55.000 To pretend the Federal Reserve is not a political body is really silly.

00:53:58.000 But 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.

00:54:14.000 The fact of independence is the appearance of independence, and the appearance of independence are key to the Federal Reserve's design.

00:54:20.000 Justice Thomas is like, Nah, like, what are you talking about?

00:54:24.000 He said, Limits on the president's ability to remove executive officers are unconstitutional.

00:54:32.000 Today's decision is an unprecedented incursion on the executive branch.

00:54:34.000 Neither 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.

00:54:44.000 In the 237 year history of our Constitution, this court has, by all accounts, never done so.

00:54:50.000 So, again, the idea that you can prevent the president from firing people, that is a That is a weird take by the Supreme Court.

00:54:59.000 So, again, incoherent.

00:55:00.000 Yes, the president can fire everybody except for people at the Federal Reserve.

00:55:05.000 I'm not sure that that dog is going to hunt.

00:55:07.000 The president then put out a statement on Truth Social.

00:55:10.000 He 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.

00:55:17.000 We will take appropriate action immediately to make sure someone who has committed wrongdoing will not be making vital decisions.

00:55:22.000 What he's saying is, I will fire her for cause.

00:55:24.000 They're saying that my cause determination was not proper, but don't worry, I'll find cause and then I'll fire her.

00:55:29.000 That's basically what he is saying.

00:55:32.000 Okay, 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.

00:55:40.000 You have one decision that maximizes executive power and fire anybody, and one that minimizes executive power with regard to the Federal Reserve.

00:55:47.000 You have one decision that says that laws that say boys and girls can play separate sports are appropriate.

00:55:53.000 And 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. 0.54

00:56:05.000 And then you have a decision on campaign finance reform that leans more to the right.

00:56:08.000 Now, again, this is why I try to avoid. 0.78

00:56:11.000 I think if you hear dumb legal analysis, dumb legal analysis doesn't look at the arguments.

00:56:15.000 It just looks at the identities of the justices who are ruling on particular issues. 0.78

00:56:19.000 Now, I think that to be fair, you can usually do that with the members of the left of the court.

00:56:23.000 The members of the left of the court are incredibly consistent in how they interpret the Constitution.

00:56:28.000 The answer is they don't.

00:56:29.000 They do not bother interpreting the Constitution.

00:56:31.000 They're mostly concerned with just ensuring that their political point of view holds sway.

00:56:38.000 But one of the reasons to read the decisions is to look at the actual logic that is utilized.

00:56:41.000 So you will see Justice Roberts on the right side of the FTC decision, but the wrong side of the federal.

00:56:45.000 Reserve decision.

00:56:46.000 You'll see them on the right side of the trans decision, but the wrong side of the birthright citizenship decision. 0.68

00:56:53.000 And the kind of varying points of view that are brought to bear by the courts, that's not a terrible thing. 0.98

00:57:01.000 Very often, that's a good thing.

00:57:02.000 You want an independent judiciary. 0.98

00:57:03.000 What it does mean is that Congress should have done its damned job.

00:57:06.000 Congress has, particularly to get back to the birthright citizenship, Congress should have done its job. 0.93

00:57:14.000 Congress has not done its job.

00:57:15.000 The presidents have not done their job.

00:57:18.000 The presidents have abdicated.

00:57:22.000 They've decided that they just are going to allow this thing to percolate for years and years.

00:57:27.000 And Trump is the first president in my lifetime who actually said he was going to stop it.

00:57:33.000 And 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.

00:57:42.000 Special guest on the show today.

00:57:46.000 Joining us online is Justice Neil Gorsuch, obviously of the Supreme Court.

00:57:49.000 He has a brand new book out Heroes of 1776.

00:57:52.000 The story of the Declaration of Independence.

00:57:53.000 It is a children's book.

00:57:55.000 Justice Gorsuch, thanks so much for taking the time.

00:57:56.000 Really appreciate it.

00:57:57.000 Well, thank you and happy 250th, Ben.

00:57:59.000 Oh, right back at you.

00:58:00.000 So, 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.

00:58:12.000 So, what inspired you to do this?

00:58:14.000 Well, in some ways, me neither, Ben.

00:58:15.000 But, you know, we're celebrating the 250th this year.

00:58:19.000 And I know we're going to have a lot of fireworks and it's going to be a lot of fun.

00:58:22.000 But 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.

00:58:40.000 And 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.

00:58:46.000 Well, 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.

00:58:52.000 That's the inspiration for the book.

00:58:54.000 That obviously gets you into Weirdly contentious territory now.

00:58:58.000 When I was growing up, this was not contentious at all.

00:59:00.000 The people who wrote the Declaration were heroes who are risking their lives, fortunes, and sacred honor, as they literally say in the Declaration.

00:59:07.000 That's obviously become sort of a controversial proposition.

00:59:09.000 What 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?

00:59:16.000 Well, first of all, they need to know why they were doing it, right?

00:59:19.000 And there are three big ideas in the Declaration one, that each and every one of us is equal.

00:59:26.000 Two, that all of us have inalienable rights given to us by God, not by government.

00:59:33.000 And three, that the people have the right and the capacity to rule themselves wisely.

00:59:39.000 And those were incredibly Radical ideas at the time.

00:59:43.000 Yes, political theorists had talked about them.

00:59:45.000 Yes, England was struggling toward them.

00:59:48.000 But those were really ideas that were completely at odds with the social and political order of Europe and the world.

00:59:55.000 And every democracy that had come before it failed.

00:59:57.000 And yet, here were these brave men, women, and children who were willing to give it a go.

01:00:03.000 And those individuals are incredible individuals, some of whom we know, right?

01:00:08.000 The amazing stories of Jefferson and Adams and their.

01:00:11.000 Though they disagreed on so much, came together during the Declaration and worked together.

01:00:17.000 And then people you don't know, like Cesar Rodney with cancer, riding through the middle of the night to break a tie.

01:00:23.000 You've got to remember this is a close run thing.

01:00:25.000 There was nothing inevitable about the Declaration.

01:00:27.000 You had to break a tie by riding through the night in a thunderstorm.

01:00:31.000 Or 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.

01:00:44.000 They, they, they sacrificed tremendously.

01:00:46.000 That last line in the Declaration, Ben, you were talking about.

01:00:49.000 When they signed the Declaration, they knew it was an act of treason.

01:00:53.000 That they were subject to being hung for their, for their, for what they did.

01:00:57.000 And they were hunted men.

01:00:59.000 About a third of them lost their homes.

01:01:01.000 They were burned.

01:01:03.000 Many of them had children who were captured.

01:01:05.000 Some of them were too.

01:01:06.000 And many, many of them gave their fortunes to the cause.

01:01:10.000 We 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.

01:01:22.000 Think about that.

01:01:23.000 And on his deathbed, people asked him, Do you have any regrets?

01:01:27.000 And he said, I'd do it all over again.

01:01:30.000 And there are tales of virtue in those people that have something to teach us today.

01:01:35.000 I know we look back at the framers sometimes and think, Oh, what they didn't know.

01:01:39.000 They didn't know our present world.

01:01:41.000 But they did know a lot about humanity, human nature, and the virtues required to sustain a republic.

01:01:48.000 And I think we would do us all well to spend a moment with them during this year.

01:01:52.000 I 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.

01:02:02.000 One of the things that separates the American Revolution from, say, the French Revolution is not the aspirational tone.

01:02:06.000 The 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.

01:02:15.000 But 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.

01:02:28.000 I completely agree with that.

01:02:29.000 But these are virtues that all of us, anyone, can admire and aspire to.

01:02:35.000 I mean, think about George Washington.

01:02:37.000 He led a successful revolution against incredible odds and then laid down his sword and retired.

01:02:47.000 He could have become a dictator easily.

01:02:50.000 And he may have been the first successful leader of a revolution anywhere to walk away.

01:02:55.000 And then they elected him president many years later.

01:02:58.000 And after two terms, setting a precedent that stands to this day, with one exception, he did the same thing.

01:03:05.000 Those kinds of virtues are things that each of us can think about and reflect on for our own lives.

01:03:11.000 And those are the kinds of virtues that are essential, I think, if this crazy American experiment is to continue.

01:03:19.000 So, 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.

01:03:27.000 And 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.

01:03:36.000 Overreach, and then we look at the nature of American government now, which is, you know, in many nooks and crannies of our daily life.

01:03:41.000 And 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?

01:03:48.000 Obviously, overstretching its boundaries in an awful lot of ways.

01:03:51.000 What 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?

01:03:58.000 Because it wasn't just tax rates.

01:04:01.000 No, it wasn't just tax rates.

01:04:02.000 It included the denial of the right to trial by jury.

01:04:06.000 That was very important to them.

01:04:08.000 It included things like quartering troops in their homes.

01:04:11.000 It included things like duly enacted laws by colonial legislatures not getting the assent of Parliament.

01:04:19.000 It was things like not being able to be represented in Parliament.

01:04:23.000 All 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.

01:04:37.000 They're not things that government can give us or government can take away from us.

01:04:41.000 They belong to us.

01:04:43.000 And that most, maybe, craziest idea of all that people can rule themselves wisely.

01:04:48.000 I know people look around today and say, oh, the world is difficult.

01:04:51.000 Our country is facing troubles.

01:04:54.000 Democracy in the world is a messy business.

01:04:56.000 But 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.

01:05:06.000 It's not a perfect union.

01:05:08.000 Nobody promised you a perfect union.

01:05:10.000 But 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.

01:05:26.000 One of the things that I think is important about this is obviously it is a children's book.

01:05:29.000 It is not meant for adults.

01:05:31.000 And so the question that's kind of obvious here is what gap do you think you're attempting to fill here?

01:05:36.000 Because obviously you wouldn't write the book unless you saw a need, unless you saw a rationale.

01:05:41.000 I assume that you're pretty busy in your day job being a justice on the Supreme Court.

01:05:45.000 And so, writing children's books is definitely a sort of different approach.

01:05:48.000 What is the gap that you see that you needed to fill here?

01:05:51.000 Well, my dear friend Janie has listened to me complain about the state of civic education in this country for a long time.

01:05:58.000 And 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.

01:06:14.000 The pluralistic idea of our country is radical.

01:06:19.000 And it doesn't get passed on by DNA.

01:06:21.000 It has to be relearned by each generation, and each generation has to commit to it.

01:06:27.000 And so I'm distressed when I read things like 13% of eighth graders are proficient in American history at grade level.

01:06:35.000 That makes me worry.

01:06:38.000 And so I wanted to find a way to engage kids.

01:06:41.000 And I think American history is rip roaring.

01:06:44.000 Fascinating, 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.

01:06:54.000 There are so many stories in our founding like that, again, about men, women, and children that maybe you don't know about.

01:07:03.000 Mary Catherine Goddard is one, for example, Ben.

01:07:09.000 The 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.

01:07:20.000 Up to that point, people didn't know the names.

01:07:22.000 They knew who they were, but they weren't on the document.

01:07:25.000 You can understand why you might not want your name to be out in public associated with this document.

01:07:30.000 But it was time they decided, and so they turned to her.

01:07:33.000 She was a patriot publisher.

01:07:35.000 In Baltimore.

01:07:35.000 Why Baltimore?

01:07:37.000 Because Congress had been run out of Philadelphia by the British who were overtaking the town at the time.

01:07:43.000 Things are very precarious.

01:07:45.000 She had always published pamphlets under her name with the name M.K. Goddard, printed by M.K. Goddard at the bottom.

01:07:53.000 But when it came time for the declaration, she put her whole name down, marking herself as a traitor to and a patriot to the core.

01:08:02.000 I just think there are inspirational stories like that in our history that.

01:08:05.000 Each of us can learn from and start to develop and think about those virtues.

01:08:09.000 So I hope to engage little ones, but also maybe, you know, C.S. Lewis said a good kids' book is one where the parents learn something too.

01:08:18.000 So I hope the book accomplishes that.

01:08:20.000 Well, the book is Heroes of 1776, the story of the Declaration of Independence.

01:08:24.000 Justice 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.

01:08:31.000 Justice Gorsuch, really appreciate the time.

01:08:33.000 Thanks so much and happy 250th.

01:08:36.000 You too.

01:08:38.000 All righty.

01:08:39.000 Well, now joining us online to discuss this wide spate of rulings, including this massive ruling on birthright citizenship, is Ilya Shapiro.

01:08:45.000 He is a senior fellow and director of constitutional studies at Manhattan Institute.

01:08:48.000 Ilya, thanks so much for taking the time.

01:08:50.000 Really appreciate it.

01:08:52.000 Great for being with you.

01:08:53.000 I'm still digesting these copious, important rulings this morning.

01:08:59.000 Yeah, so why don't we start with the one that obviously is making all the headlines?

01:09:02.000 That, of course, is the birthright citizenship case.

01:09:04.000 I would have been, honestly, a little shocked if they had overruled birthright citizenship.

01:09:08.000 Considering 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.

01:09:21.000 So I'm not surprised that the court ruled this way.

01:09:23.000 I'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.

01:09:33.000 Justice Roberts has always been this type of justice.

01:09:35.000 It's why I opposed him back in 2005.

01:09:37.000 I may have been the only conservative columnist in America who opposed him back in 2005.

01:09:42.000 Pointing out that he would be precisely what he then became, the author of the Obamacare decision.

01:09:47.000 Not a shock here from Chief Justice Roberts.

01:09:49.000 With that said, what is the impact going forward?

01:09:52.000 What can Congress do?

01:09:53.000 Doesn'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? 0.82

01:10:01.000 But 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. 0.58

01:10:14.000 I think that's right from a policy perspective.

01:10:16.000 And 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.

01:10:28.000 They ruled on the constitutional ground that birthright citizenship is guaranteed by the Constitution.

01:10:34.000 So you need a constitutional amendment, not just an act of Congress to change it.

01:10:37.000 That actually surprised me.

01:10:39.000 I was expecting a majority to be cobbled together, kind of an interwoven majority.

01:10:44.000 Around Kavanaugh's decision, saying that, I don't know about the constitutional issue.

01:10:49.000 Kavanaugh actually does say that he disagrees with the majority.

01:10:53.000 But 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.

01:11:03.000 I was expecting them to take that off ramp, which would have thrown this back into the political branches, but they didn't.

01:11:09.000 And so at this point, we can debate it, but the only way to change it would be through a constitutional amendment.

01:11:16.000 And you see that Justice Kavanaugh actually tried to take that off ramp.

01:11:18.000 He tries to split the baby by basically saying the 14th Amendment does not mandate.

01:11:22.000 That birthright citizenship be a thing, but under current law, birthright citizenship is a thing.

01:11:26.000 Congress could theoretically change it.

01:11:28.000 That did not end up being the majority opinion.

01:11:31.000 And 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.

01:11:41.000 And in this one, he just went at it with a howitzer.

01:11:44.000 He decided to just blow up the majority's opinion.

01:11:47.000 I will say that having read all of the opinions this morning, that Justice Thomas, I mean, he full scale fisks.

01:11:55.000 The majority opinion.

01:11:56.000 The majority opinion is deeply flawed.

01:11:58.000 It has a sort of read on American history and American legal history that I think is unsustainable.

01:12:04.000 The basic idea that America just imbibed from the British royal idea of subjects and then made that rule the rule for citizens.

01:12:12.000 And then somehow that sort of went into abeyance for some 30 years between Reconstruction and Wong Kim Ark.

01:12:19.000 And then it sort of came back strong with Wong Kim Ark.

01:12:23.000 It makes no legal sense to me.

01:12:25.000 What did you make of the actual legal reasoning from Roberts and crew?

01:12:28.000 Yeah, it seems like a law office history version of Emma Lazarus's poem on the base of Statue of Liberty.

01:12:35.000 You know, it's a lot of, look, it's a close question.

01:12:38.000 I'm not here to say that the, you know, Thomas dissent, which I ultimately agree with, is, you know, it's a slam dunk.

01:12:46.000 I 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.

01:12:53.000 I mean, I didn't have strong views, legal views, one way or another, really.

01:12:57.000 But 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.

01:13:08.000 And 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.

01:13:16.000 But you're right, it is a lot of unsubstantiated stuff that makes leaps in historical logic.

01:13:27.000 And there are two other decisions that came down today.

01:13:29.000 One of them was on trans girls, meaning boys who believe that they are girls competing against girls.

01:13:34.000 In sports, this is a 6 3 decision from the Supreme Court.

01:13:37.000 The fact that this is even a close call is insane, like purely insane.

01:13:40.000 The 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?

01:13:46.000 Boys are boys, girls are girls.

01:13:47.000 Why 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? 0.90

01:13:56.000 All of that, it seems to me, was the wave for that forward. 0.76

01:14:00.000 The sort of bad logic that the court then had to evade was paved by the Bostock decision by Justice Gorsuch.

01:14:05.000 A 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.

01:14:13.000 So, 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.

01:14:19.000 What did you make of the court's decision in the trans case today?

01:14:23.000 Yeah, I did think that Thomas's opinion there was very strong.

01:14:28.000 I 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.

01:14:37.000 There are two genders, and yes, there are exceptions for.

01:14:40.000 You know, people with multiple XXXY chromosomes and all of that sort of thing.

01:14:45.000 But we have to live in the world of truth and reality.

01:14:50.000 And that was very powerful.

01:14:52.000 This was utterly predictable.

01:14:53.000 Nothing was surprising about this based on how argument went.

01:14:58.000 It's also not surprising that the justice who couldn't say what a woman was at her confirmation hearing, Justice Jackson, was dissenting here.

01:15:07.000 And Gorsuch took the time to explain and distinguish Bostock, which I think is distinguishable.

01:15:11.000 I think Bostock was wrong for various reasons that we don't need to get into.

01:15:15.000 But employment law is not.

01:15:18.000 The difference between men's and women's sports.

01:15:20.000 Obviously, 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.

01:15:29.000 Yes, although I will say that without getting back into Bostock, I really look forward to Justice Gorsuch.

01:15:34.000 Again, I like him.

01:15:35.000 He 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.

01:15:42.000 That'll be an interesting explanation.

01:15:44.000 But the other big case of the day was this campaign finance reform case.

01:15:49.000 Frankly, I find these cases entirely bewildering.

01:15:50.000 It 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.

01:16:02.000 It 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.

01:16:12.000 Or maybe they can, but you can't earmark the money for the candidate.

01:16:15.000 You just have to give the money to the Republican Party and hope that it uses it for the candidate and then coordinates.

01:16:19.000 All of this seems like a mess to me.

01:16:21.000 It seems to me that the best position here would be to say that the First Amendment is designed to protect core political speech.

01:16:26.000 Spending money in order to foment your opinion in an election is core political speech done.

01:16:31.000 I would hope that that's the direction the court increasingly moves.

01:16:35.000 Well, 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.

01:16:52.000 But Buckley v. Vallejo itself, rewriting and then upholding in part much of FECA, which is great.

01:17:01.000 It's that acronym because we get to talk about fecal matter and things like that.

01:17:03.000 But it's, yeah, the rule had become outmoded.

01:17:08.000 That was overruled today.

01:17:09.000 And the majority opinion pays tribute to Justice Thomas, who had been in dissent in that 5 4 decision, Colorado 2, 25 years ago.

01:17:18.000 He has finally been vindicated.

01:17:20.000 Okay, so finally, I want to get to one thing that happened yesterday.

01:17:26.000 There are a couple of decisions.

01:17:27.000 One, I think, that's being blown out of proportion, and then two that seem in almost direct conflict to me.

01:17:31.000 The one that's being blown out of proportion to me is this ruling.

01:17:34.000 A 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.

01:17:44.000 That honestly, reading that case, that seemed like a fairly close run legal interpretation to me.

01:17:48.000 I could actually see both sides of that particular case.

01:17:51.000 And 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.

01:18:03.000 What did you make of that decision?

01:18:05.000 I thought that Barrett's opinion was right on the law, and that's a bad policy.

01:18:10.000 I 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.

01:18:18.000 California, who knows?

01:18:19.000 I mean, they're still counting ballots from the, you know, Bush v. Gore 2000 election or something. 0.92

01:18:23.000 It's ridiculous.

01:18:24.000 And as you alluded to, there could be a separate unrelated challenge.

01:18:28.000 To 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.

01:18:38.000 Regardless of whether there is actual fraud, that public perception of the elections being fair and transparent is just as important.

01:18:47.000 And having all of these kinds of uncertainty, counting after ballots without postmarks, all of this sort of stuff really should be reined in.

01:18:56.000 And this, unlike birthright and citizenship, is an area that Congress can step into and fix.

01:19:02.000 And then there were two other cases that came out yesterday having to deal with executive power.

01:19:06.000 I have no idea how we square the circle.

01:19:08.000 It makes zero sense to me.

01:19:09.000 But you have the Supreme Court in which Justice Roberts is writing both opinions.

01:19:14.000 And 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.

01:19:26.000 This makes zero sense to me.

01:19:27.000 If they exist in the executive branch, there is no fourth branch of government.

01:19:30.000 I'm confused why we're pretending there's a fourth branch of government that applies to the Federal Reserve.

01:19:34.000 Again, I think that there are good policies and bad policies at the Federal Reserve.

01:19:38.000 I 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.

01:19:44.000 With 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.

01:19:56.000 I found the logic of the court in distinguishing the two, shall we say, unpersuasive.

01:20:01.000 Well, just to be clear, you can't fire everybody, meaning the lowest level clerk and all that.

01:20:06.000 This opinion applies to principal officers because the logic is the president has to be able to control the executive branch.

01:20:14.000 They have to do his bidding.

01:20:15.000 If he can't control his staff, then we are creating this.

01:20:18.000 Fourth or fifth branch of government.

01:20:19.000 That totally makes sense.

01:20:21.000 Humphrey's executor, the 90 year old case, has been eroded and it was good that it was overturned.

01:20:26.000 It 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.

01:20:36.000 They 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.

01:20:49.000 Uh, 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.

01:21:08.000 Uh, 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.

01:21:20.000 So, I think the core did go too far.

01:21:23.000 And again, Roberts was a gymnast.

01:21:27.000 Well, that's Ilya Shapiro, Director of Constitutional Studies at Manhattan Institute.

01:21:30.000 Ilya, really appreciate the time and the insight.

01:21:33.000 My pleasure, Ben.

01:21:36.000 All right, folks, the show is not over.

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01:21:54.000 They won't use air conditioners for their elderly or something.

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The Ben Shapiro Show - June 30, 2026

LIVE: Ben Breaks Down SCOTUS on Birthright Citizenship

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