00:00:51.200I plan to be flying in an F-5 fighter jet painted in Freedom 250 colors along with four other fighter jets flying over the nation's capital.
00:00:59.200Listen to Newt's World on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.
00:01:06.380Why should you listen to Armstrong and Getty on demand?
00:01:29.200Yes. Listen to Armstrong and Getty on demand on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.
00:01:37.140Welcome. It is Verdict with Senator Ted Cruz, Ben Ferguson with you as well. It's nice to have you with us.
00:01:42.280And Senator, we are going to have a really interesting show today because we have so many extremely important rulings that have come down from the Supreme Court.
00:01:50.180We're going to break them into the wins and into the losses category here and let people know exactly what many of these rulings mean going forward.
00:01:58.740Well, this was a landmark week in front of the U.S. Supreme Court.
00:04:07.080All right, so Senator, let's talk about some of the victories.
00:04:10.140And one of them was a very interesting case.
00:04:12.900It's about the president having the ability to fire people, and this was one of those that maybe wasn't on a lot of people's radar screen, but it's a really important case.
00:04:24.480Well, let's start with two decisions, and this is a big victory, Trump versus Slaughter and Trump versus Cook.
00:04:30.560And it dealt with the ability of the president to fire people in his administration.
00:04:37.100So almost 100 years ago, the court decided a case called Humphrey's Executor.
00:04:42.900Humphrey's executor, actually 91 years ago, the court concluded that the president cannot fire a commissioner of the Federal Trade Commission.
00:04:54.800And the Federal Trade Commission was set up as a so-called independent agency.
00:04:59.460It was an agency with three commissioners appointed by the president, confirmed by the Senate from the majority party, and two commissioners appointed by the president, confirmed by the Senate from the minority party.
00:05:12.900And the so-called independent agencies arose coming out of the Woodrow Wilson era, coming out of the progressive era as a way to limit presidential power.
00:05:25.120And Humphrey's executor said the president doesn't have the ability to fire an FTC commissioner without cause.
00:05:34.260Well, in my view, Humphrey's executor was wrong the day it was decided 91 years ago.
00:05:40.180and it has been wrong every day for nine decades since then why because under the constitution the
00:05:48.960constitution the first three articles of the constitution article one vests all legislative
00:05:54.300power in the congress of the united states article two vests all executive power in the
00:06:01.480president of the united states and article three vests all judicial power in the judiciary
00:06:06.920What Humphrey's executor did is severely limit the president's Article II authority over the executive branch.
00:06:16.160Anyone in government, you are either in one of those three buckets.
00:11:02.760But it is a fairly narrow exception to the much broader precedent, which is Trump versus Slaughter, which overrules Humphrey's executor and upholds the president's authority to fire executive branch employees at his discretion.
00:11:23.060That's going to obviously have big impact moving forward, right, over the next couple of years for the president as well.
00:11:29.020Yeah, no, no, it's a big deal, and it's going to mean as a practical matter going forward,
00:11:33.940I think there's a real possibility, in fact, a likelihood that these so-called independent commissions will not have bipartisan commissions.
00:11:42.860I think going forward, you're going to see commissions like the FTC, the FCC, potentially the FEC, the various commissions that are bipartisan.
00:11:54.060Anderson, what we've seen with Trump is that he says, I'm not going to appoint Democrats to it.
00:11:59.980And he leaves those seats vacant. My guess is if and when we have another Democrat president,
00:12:06.500and unfortunately, we will likely have another Democrat president. I'd rather not. I think the
00:12:11.700Democrats' policies are really damaging. But if history is any guide, we will see the Democrats
00:12:16.240in charge of the White House at some point. And I think it is quite likely that when the Democrats
00:12:20.840are in charge they will appoint to the independent commissions three commissioners from the democrat
00:12:26.900party and zero republican commissioners and and look i'll say what 25 years ago when when george
00:12:35.060w bush was elected president uh i came in i was a young campaign staffer i'd been down in in austin
00:12:41.420texas on the campaign team with within governor bush i met heidi on the bush campaign she and i
00:12:48.300came to join the bush administration i spent about six months in the department of justice
00:12:51.900and then i went over to the federal trade commission and and the fdc is is what was
00:12:57.320the subject of this litigation my boss at the time was the chairman tim muris tim is a brilliant
00:13:03.160conservative lawyer economist uh and i was the head of policy at the fdc when i was 30 years old
00:13:10.140i was a young kid it was a fascinating job i did that for a little over two years uh very much
00:13:15.460enjoyed the job. At the time, we had three Republican commissioners, two Democrat commissioners,
00:13:20.180and to be honest, to be a minority commissioner in the Pettit Commission, it's kind of a weird
00:13:24.360job because you don't have the votes, but you can nonetheless express your views, you can dissent,
00:13:30.360you write opinions, you press back within the executive branch. I think the consequence of
00:13:37.280this decision is you're not going to see minority commissioners from the party out of power. You
00:13:42.620will see the independent agencies operate much like the rest of the executives so just like
00:13:48.560in the department of labor you don't have a republican secretary of labor and then a democrat
00:13:55.660secretary of labor who argues against it instead you just have appointees of the president i think
00:14:00.280you will see in the independent agencies the same sort of thing they will just be appointees of the
00:14:06.100majority party it's going to be very very interesting to see like you said how this moves
00:14:09.720forward, but certainly that is a victory for President Donald Trump. All right, I want to
00:14:14.000move on to another one of the victories, and this was a big case. It's one that I was actually
00:14:18.440involved with more than any other case that's ever been before the Supreme Court. My old roommate
00:14:22.820is the West Virginia Attorney General J.B. McCuskey, and they were a part of bringing this
00:14:28.780case. They knew that when they made their decision in West Virginia, it was probably going to reach
00:14:33.180the Supreme Court. Sure enough, it did. I actually went into the Supreme Court for those oral
00:14:37.900arguments that were being made that day with uh getting men uh out of women's sports uh this was
00:14:44.340a massive victory it's a fight the president wanted it's a fight center that you've been
00:14:48.560heavily involved with protecting uh women's sports and it was a huge victory that is going
00:14:54.720to have real repercussions across sports at every level in this country well this is a big big deal
00:15:01.540The Supreme Court has now made absolutely clear that we can protect women from men competing against them in sports.
00:15:09.500We can protect girls from boys competing against them in sports.
00:15:15.160Look, you look at how the world has gone crazy.
00:15:18.840Ten years ago, even five years ago, I don't think people really could have imagined this would be a thing.
00:15:23.880And we're seeing it be more and more often a thing where boys are competing against girls, men are competing against women.
00:15:31.320it is grotesquely unfair and and the good news is 27 states have now passed laws saying this
00:15:38.920is not acceptable we are going to protect girls we're going to protect women in our states uh
00:15:45.300this case west virginia versus bpj concerned the laws in west virginia and idaho two states that
00:15:54.400have passed common sense state laws saying we're going to protect girls and women
00:15:58.260plaintiffs brought lawsuits challenging that and saying the constitution and federal law
00:16:04.180prohibits states protecting women's sports and protecting girls sports and the supreme court
00:16:11.200unequivocally rejected that argument and so the majority opinion justice brett kavanaugh wrote
00:16:16.920the majority opinion uh kavanaugh was joined by chief justice roberts justice thomas justice
00:16:22.140alito justice gorsuch and justice barrett so it was a six three decision and and the court
00:16:28.060concluded that that the laws in west virginia and idaho are constitutional that the equal
00:16:36.340protection clause of the constitution so so the equal protection clause of the constitution is
00:16:41.180part of the 14th amendment if you look at in the wake of the civil war we fought the civil war
00:16:46.840bloody bloody war and then we adopted three amendments to the constitutions the 13th 14th
00:16:54.080and 15th Amendment. The 13th Amendment prohibited slavery. The 14th Amendment, I'm going to come
00:17:00.280back to in a second, the 15th Amendment protected the right to vote and prohibited discrimination
00:17:08.000and the right to vote based on race. What did the 14th Amendment do? The 14th Amendment
00:17:12.880protected the rights of citizens from discrimination by government, and there are
00:17:20.040three key clauses of the 14th amendment there's the privileges or immunities clause which prohibits
00:17:26.480the states from violating the privileges or immunities of citizens of the united states
00:17:31.440there is equal protection clause that prohibits the states and also the local governments
00:17:36.740from from denying americans the equal protections of the law and there's the due process clause that
00:17:43.620prohibits the states and the local governments from denying Americans life, liberty, or property
00:17:51.740without due process of law. The Equal Protection Clause is essentially a provision of the 14th
00:17:58.060Amendment that says government cannot treat similarly situated people differently, cannot
00:18:04.140unfairly discriminate against you. And so it was initially interpreted to protect against racial
00:18:11.300discrimination by the way the equal protection clause is the basis on which the supreme court
00:18:16.980has struck down racial discrimination in college admissions and it's made clear you can't
00:18:22.440discriminate based on race in college admission that was the right decision well in this instance
00:18:28.580the plaintiffs were arguing that stopping a biological male from competing in in women's
00:18:34.440sports violated the equal protection clause the supreme court 6-3 rejected that argument said
00:18:41.280that is wrong secondly there are federal civil rights laws that that protect civil rights these
00:18:49.340are passed by congress uh and signed by the president and in particular there's a decision
00:18:55.080called bostock that is an employment discrimination case uh where justice gorsuch had written the
00:19:01.440majority opinion and had bizarrely i think bostock was wrongly decided but but the court
00:19:08.280in bostock had concluded that the prohibition on discrimination based on sex also covered people
00:19:17.880who are transgendered which which i don't think is remotely within the statutory language i think
00:19:23.440bostock was wrongly decided the court here concluded nothing in bostock requires biological
00:19:32.140males to compete in girls sports. That is a big, big victory. Now, I want to be clear what this
00:19:40.600means. There are 27 states that have protected girls sports and women's sports. Those laws are
00:19:47.660now constitutionally sound, and they are extremely unlikely to be struck down in litigation.
00:19:53.840Now, doing the math, if 27 states have protected that, that means 23 states have not. The Californias,
00:20:01.080the new yorks the illinois the blue states in this case now look the court was not deciding
00:20:07.620uh whether there is a problem with california and new york allowing boys to compete in girls
00:20:13.940sports i think there is a massive fairness problem there's a massive public policy problem
00:20:19.700i would like to see congress i voted repeatedly in favor of congress passing legislation
00:20:24.820prohibiting boys from competing in girls sports prohibiting men from competing in women's sports
00:20:29.920I think that's the right policy. The outcome of this this case is those 23 states can continue to let boys compete in girls sports.
00:20:39.420But thankfully, that means the voters can say enough is enough and get their states to pass laws protecting girls sports, protecting women's sports.
00:20:48.140Yeah, it is going to be huge. And like you said, there's still going to be battles going forward, but they're going to be fought in a very different way than what we've witnessed so far.
00:20:58.560And this is, again, this is about protecting women's sports, and now you're going to see a lot of people that have been pushed around who are going to say, hey, I don't have to be anymore.
00:21:07.460I don't have to play in these two worlds.
00:21:09.920I can do what now the Supreme Court says I can do, and that is huge.
00:22:28.540Well, it turns out she's still not a biologist because she dissented here.
00:22:32.740And she said the court did not need to define sex as biological for the purposes of Title IX.
00:22:41.080Title IX is the law that protects girls' sports.
00:22:44.360She would have left the question open for future cases and refused to deny it.
00:22:49.420Look, you've got three liberal judges who, and to be clear,
00:22:55.180If the Democrats win, if they take the Senate, they want three to become five, to become more, who would strike down every law in the country protecting girls' sports and protecting women's sports.
00:23:07.320So we ought to celebrate, celebrate this victory, a 6-3 victory that's important, but it also ought to scare us.
00:23:13.800Not a single one of the liberals, they didn't admit even a moment's hesitation.
00:23:21.540Yeah, it's a great point. And it's exactly why presidential elections are so important, because whoever's elected, they get to appoint people.
00:23:31.140And when they do, they stay for a very long time. And it has major consequences on America.
00:23:33.940And by the way, Ben, it's not just presidential elections. The midterms in November, if the Democrats take the Senate, my prediction is they will block every single judicial nomination for the next two years.
00:34:32.820There are huge benefits to being an incumbent.
00:34:35.720Part of why Congress passed McCain-Feingold is that incumbents didn't want to be challenged.
00:34:42.200They didn't want some upstart candidate to be able to run against them and beat them.
00:34:47.600And so by cutting off the money for an upstart candidate, if a candidate has no name ID and a candidate can't raise money and a candidate can't invest their own money, you know what it means?
00:34:57.060You can't beat an incumbent politician.
00:34:59.260And so the decision in in FEC versus Ted Cruz for Senate, we won that 6-3.
00:35:07.920That was a major precedent that in turn underlay NRSC versus FEC, and what that means now is that the parties will be able to spend and use – look, there are some people who say money isn't speech.
00:37:41.140The question is, what does birthright citizenship protect?
00:37:45.200and in particular are children of illegal aliens entitled to become U.S. citizens because they
00:37:51.440were born on U.S. soil. Now, as a policy matter, birthright citizenship, I think, is a very
00:37:57.460foolish policy. It is a policy that encourages illegal immigration. It rewards people for
00:38:04.680breaking our laws. Most other countries on earth don't have that policy. If you break in illegally
00:38:10.480to another country, most other countries, if you have a kid there, that kid is not a citizen of
00:38:14.340that country. It also encourages things, as you noted, like birth tourism, where pregnant women
00:38:22.120will get on a plane and fly to America on tourist visa simply to have a baby in America so that
00:38:28.120baby can become a U.S. citizen. That's a foolish policy. Now, there's a legal question of how can
00:38:37.780you change birthright citizenship? And I talked a minute ago about the 14th Amendment.
00:38:44.340And the 14th Amendment says 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.
00:39:02.320This case turned on the phrase and subject to the jurisdiction thereof.
00:39:06.960what happened there have long been understood as really two potential ways to change current law
00:39:16.520and birthright citizenship the one way that is unquestionably permissible and valid would be a
00:39:22.440constitutional amendment that changes the constitution and makes clear that the child
00:39:27.580of an illegal immigrant born in america is not a u.s citizen i strongly support that i would vote
00:39:32.480for that, that's good policy. The second way, and there's dispute among legal scholars,
00:39:38.460is could Congress pass a law saying the children of illegal immigrants born in America are not U.S.
00:39:45.160citizens? That is still a somewhat murky question. Donald Trump explored a third avenue, which is he
00:39:53.020signed an executive order that said, I am ordering the children of illegal immigrants are not U.S.
00:40:00.680citizens if they're born in the United States. Now, to be honest, prior to Trump coming into
00:40:05.700office, I'd never heard anyone articulate a legal theory that that could be done by executive order.
00:40:11.880The Trump administration knew it was pushing the bounds of what's permissible. You are right
00:40:17.000that we've now had a robust debate on birthright citizenship and what a bad policy it is.
00:40:23.420Now, the court, unfortunately, ruled 5-4 that the executive order is invalid and that the children of illegal immigrants born in the U.S. are U.S. citizens.
00:40:58.820I wrote an amicus brief, actually two different amicus briefs in the court joined by multiple members of Congress, in which I asked the Supreme Court to restore the original meaning of the birthright citizenship clause.
00:41:13.520And I would encourage anyone interested in this issue, go read the brief that I wrote that laid out the original understanding of what the phrase subject to the jurisdiction thereof meant and that someone who was unlawfully present in the country, it did not fall within those parameters.
00:43:09.680So the laws in Mississippi say that absentee ballots have to be postmarked by Election Day,
00:43:15.940and they can be received up to five days after Election Day.
00:43:20.540And in this case, the RNC filed a lawsuit challenging that and saying that under the terms of federal election law, election day is understood to be the actual day of the election.
00:43:38.060And so the argument the RNC made is that you could not count ballots received up to five days after the election.
00:43:44.880unfortunately by a vote of five to four the supreme court rejected that argument and and
00:43:51.260justice amy coney barrett joined by chief justice roberts and the three liberals
00:43:55.840concluded that election day is understood to mean the day when quote voting is complete
00:44:02.060not when ballots are received in other words they upheld mississippi's law allowing ballots to
00:44:09.680received be received up to five days after election day uh there were vigorous dissents it was five
00:44:16.800four uh but at the end of the day what it means is is that the court has concluded federal law
00:44:25.040does not limit late received mail-in ballots the consequence of this is it's going to remain
00:44:32.340state by state red states can put real and meaningful limits can limit uh balloting can
00:44:38.880limit late received ballots. Mississippi can change their law. But it also means that blue
00:44:44.780states, states like California, can have the atrocity they had in their most recent election,
00:44:50.040their mayor's election in L.A., where they have votes coming in days, weeks, as much as a month
00:44:56.360later. Look, this decision is unfortunate, but I'll tell you what it really underscores.
00:45:02.300it underscores the need to pass the Save America Act.
00:45:05.880The Save America Act would protect against illegal voting.
00:45:11.180I'm an original sponsor of the Save America Act.
00:45:59.520I plan to be flying in an F-5 fighter jet painted in Freedom 250 colors along with four other fighter jets flying over the nation's capital.
00:46:07.560Listen to Newt's World on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts.
00:46:14.880Why should you listen to Armstrong and Getty On Demand?