Dude Process, Not Due Process

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[Music] Welcome back to Strix Beauty, your podcast about the Supreme Court and the legal culture that surrounds it. I'm your soul regular host for today, Leo Lippin. We're still on summer break and summer schedule. Hot Strix's scrutiny summer and all, so while Kate has been holding down the fort for the last two weeks, this week is just me. And joining me today in the guest host chair is Emily Amick. Emily is former

counsel to send it minority leader Chuck Schumer, but better known to you all as Emily in your phone. On Instagram and Substack, she's also the co-author of Democracy and Retrograde, a self-help guide to building a better civic life for everyone. Welcome back to Strix Beauty, Emily. Hey, Leo, I'm so happy to be here. I am happy you're here as well. We should say we are recording this on kind of a hot spot on Emily's phone, so unclear exactly what is going to happen,

“but that is the situation, and that's how committed we are to getting this to you.”

You know, technology is, and you know, making life wonderful, but also challenging us at every moment. Indeed. So later in the episode, you'll hear a conversation I had with Equal Employment Opportunity Commission Commissioner, the soul remaining Democratic appointed EEOC Commissioner, Kalpina Kodegal, about the fallout from the court's decision in Trump versus slaughter, and the demise of agency independence focused specifically on the EEOC as a formerly independent agency.

But before that, Emily and I are going to chat legal news and we're going to cover a lot of immigration related developments in the courts and the executive branch, and I think the basic themes of the episode are going to be dude process instead of dude process, and why are men's? And I should just say, bring on the emails telling me I am too mean to men. I can take it. I just got back from vacation. I am happy. Don't send me those emails because I

don't just mean, I already know, and so I hear this all the time.

“You know, men, I think they should just stop doing bad things and then we won't be mean to them anymore.”

This is my theory. That sounds like a plan. I'm not sure about that. But if you're thinking, I listen to these episodes all the time. What am I getting out of them? Well, do I have news for you? If you're a lawyer looking for fun new ways to get your CLE

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to access it for course credit, happy continuing educationing to all. That seems like a great solution to an ever-present problem. I love this idea. I'm hoping it works and takes off. Because, yeah,

it could be clear. I feel like I'm always cramming to do those CLEs in the last 24 hours before

everyone wins. Okay. Now, the segment I am calling, do process down/do process in retrograde.

And yes, that is a callback to Emily's great book, Democracy and Retrograde. So the New York Times ran a story documenting its analysis of hundreds of cases that have been brought by the Trump administration against protesters and immigrants, often related to dubious allegations that people supposedly assaulted immigration officers and the Times analyzed more than 500 cases. And of the 400 that have already wrapped up, almost half went nowhere.

“Are they because defendants were acquitted or charged as were dismissed by courts or prosecutors?”

As the Times notes, that's like an astonishingly bad record for the federal government, which rarely loses incremental cases and resolves more than 90% of those cases through guilty please. And the Times concluded that, quote, "the review suggests that the administration's use of the law has often been less about protecting federal agents than about providing legal cover to cow protestors and immigrants into submission." Yeah, thank. Yeah. And, you know, these cases

are getting dismissed, 191 or dismissed, 22 acquittals. Normally in prosecution, there's a 90% success rate. So we're seeing, you know, what is obviously these prosecutors are bringing cases they know they can't win. And in a huge number of these cases, in a shocking number, the people that they are going after, there was no assault. There was no even touching of these federal officers. People are driving their cars and beeping and yelling things and then

getting accused of these shenanigans. And this is clearly part of this ongoing effort by the administration to use the idea of threatening the public from going against immigration officials. They don't want the oversight. They don't want all of us to be recording these bad acts by these immigration officials. And there was sort of a little bit of time that they started

“letting up on immigration enforcement. But I think as we've seen from recent killings in Texas”

and in Maine, they are clearly ramping back up again. Yeah, no, they are back at it. And even though most of these cases resulted in dismissals or acquittals, which is terrific, we should still say like the process of undergoing all of that is still a punishment. And, you know, it's important not to ignore that. But the federal government still seems to be really looking for a way around the due process freaks that are the grandjuries, juries, law, and federal courts because it is

now trying to make use of an entirely different court that has never actually been operational.

And that is just so-called alien terrorist removal court. That court was created by Congress in 1996 and it's a court with five federal judges who were appointed by the Chief Justice and it reviews applications for the removal from the United States of quote alien terrorists. The attorney general or the deputy attorney general files those applications under seal. And actually the government can try to remove someone on the basis of secret evidence, national security information that the

individuals will never see. And that allows the United States to quickly deport foreign nationals deemed to be quote alien terrorists and maybe some of their family members. And it defines, you know, as quote alien terrorists, not just people who have committed terrorism, but people who plan to. You know, this is very much a conceptual cousin of FISA courts. And it's fascinating to me as someone who worked in anti-terrorism litigation for a very long time ahead of her, even heard of this

“secret court either. Of course, that's because it's never been used. And so why would you hear of it?”

I loved the line from the judge in their decision in this case. So I want to read it. It is so sassy

and lawyers in the audience will appreciate this. The answer is persuaded the court that the government

could benefit from the opportunity for more thoughtful consideration. Help me help you. It could go back and reconsider. So you know, this is like an interesting thing to comment on because fundamentally we know nothing. We don't know who is being charged. What they are are like, what is terrorism with this administration, you know, in their effort to go after quote unquote, left wing terrorism, who knows what this person is being accused of. As commentary,

this is also confusing because on the one hand you would think, okay, this is part of the administration's efforts to fast track their deportation efforts because this secret court is moves conceptually quicker. However, it's also a court that employs article three judges. Yes. Who are not going to engage in the shenanigans that these Trump loyalist deportation officials, you know, the Trump administration as a side note has ramped up their hiring of immigration

of judges. We are almost at 200 so far in this fiscal year. That is more than the three previous fiscal years combined. You know, they are clearly trying to ramp up the system. That's something

multiple pending lawsuits for discrimination against women and people of color for being to per being fired. We can all guess what's happening there. Yes. Yeah. Should say, our

“friend's divided has a great explainer on the alien terrorist removal court if you want to”

learn more. And as Emily, you were alluding to, while it does allow for more expedited procedures, there are also some additional protections, you know, like the fact that it's staffed by article three judges. But I do want to get to the like ramp up you were alluding to, which is the administration taking a buy any means necessary approach to depriving people off to new citizens of their due process, right? So Boston's primary NPR news station, WBU are actually where we recorded one of our

first live shows. I know anyways. And I was a fun. They had a super important story about the

developments in immigration proceedings. The administration is initiating mass proceedings. Immigration lawyers are calling these mega masters hearings. The WBU are a story focused on Boston, but additional stories have described the same in New York and Chicago. Basically, the administration is loading up immigration documents. Just to take one example, one immigration judge had more than

“one hundred people's immigration cases on her Docket one morning. Obviously several times the”

typical case load. And, you know, she would call in about a dozen people every half hour. That is shocking. You know, and these people are not being afforded what I would consider proper due process, right? Like they are not being given translators to help them understand

what's going on. And it is part and parcel of this larger project we're seeing. I'll say the

Washington Post also recently reported on the conditions under which people are being held in detention. And they're reporting that more than 80 people are being kept in a single detention room. There's increasing needs for hospital visits. Of course, we've all heard the stories about what's been going on in this sort of ice detention camps overseas. But this is overseas. Emily, Texas is not a overseas, I've been Texas. I understand the mistake. I mean, like this is

a state where Ted Cruz is listed as right there. We can all talk to my therapist later. But, you know, it's also happening in these detention facilities in New York, for example, where people are just being crowded in, and this is something we'll talk about later, which is the detention itself is meant, and the horrific conditions is meant to be a deterrent. Because this administration wants people to quote unquote self-deport. And this too seems to be that is like the

max hearings and mega masters. It's part of an effort to ramp up deportations, you know, in addition to those self deportations. Because this ramping up could generate removal orders, because what the administration is doing, they take a huge group of people that have hearings that might be scheduled for, you know, the next several years. And they send them a letter that a physical letter, rescheduling all of their cases, you know, two next week. And some people probably

aren't going to be able to get there, and they will miss court, and then they will be ordered removed, deported in absentia. And then, right, they can say, well, we get to remove them. Okay, so the administration has really been on this anti-duo process kick, which borders our Tom Homan made clear in an impromptu presser. We'll play some clips and Emily, I'll get your reaction, though I also have some thoughts. Yes, let's do it, let's do it.

It comes on the one simple fact, these people fail to comply with law enforcement. Even so in the major chiefs in this country who don't necessarily agree with this administration,

says you always comply with law enforcement, but the hateful Reddit that I,

isn't a real law enforcement agency. I see these signs of a resist. I started, you know, let's abolish some new fascists. When you keep the hateful Reddit up for you and have, there's going to be that percentage of that population that it's going to be in both and take action, because they're not real law enforcement, the inseation of the system. All they had to do is simply comply with law enforcement. If you don't like what law enforcement did yet, then go to the court,

sue, call the ACLU. Do everyone want to do? We should always comply with law enforcement. If they did,

“they'd be alive today. Emily, what do you think about that?”

Well, like, hey, if you don't comply, will kill you? You die when you pay your die. I was, I was in my mind while he was talking, thinking about like, what are we going to talk about bivins now? You know what I mean? And like, are there malicious prosecution claims that could be brought here in blah, blah, blah, blah, but like, oh, I'm sorry Tom, you're you're just murdering people. Great. What is it fucking matter if you're dead? What is René Nicole Good, or Alex

pretty supposed to do when the agency is shooting at them? Like, file a habeas petition? It's just, like, it makes zero sense. And also, like, his agency doesn't obey court orders,

You know, and this is something we see from the Trump administration in many, many instances, where it's essentially, I don't know what I would call it, regulatory gaslighting,

perhaps, which is like, he's like, the problem is you guys. And you're, you're just claiming

we're all fascists. And so it's your fault. We have to kill, yes. Exactly. It's like, it's just a brand of abuser politics. Yeah. Right. Like, the problem is not me. Right. The problem is not my violent use of force. The problem is you pointing out I am violently using force, right? And attempting to tell me to stop. Right. And this type of gaslighting, it's so, it's so interesting when you're reading the litigation. And you see it going on in the litigation as well. In so many

different areas coming out of this administration and their efforts. And as now we've had, you know, 18 months of the new Trump administration, we really, we really are getting this long record

“of where they're going things. And I think to a significant degree, we're finally seeing the realization”

of, you know, ADF and that Ilk's efforts for impact litigation and how they've been changing things.

The precedents are there from Trump won. And it is getting to the point where it's like, is what is real anymore? Right. Yes. Right. Exactly. It's, it's wild. So speaking of just like making shit up in courts. So we thus far kind of mostly been focused on the executive branch and immigration. But there is some going on in the courts as well. So the Fifth Circuit, America's worst circuit court also jumped into the fray. The Fifth Circuit decided to get up to

no good in some cases that are related to the big mandatory detention issue. That has been making its way through several courts an issue on which there is now a circuit split that will likely

be resolved by the Supreme Court in the near future, which should cause a chill down the spine

of everyone who cares about civil rights and liberties. Emily, but since you gestured to this,

“the detention conditions, could you remind people like what the issue in these cases is?”

So last summer around July of 2025, ICE adopted this unprecedented mass detention policy in which it would, it said it would detain, it not only would, but it had to detain tens of thousands of people who had been in the U.S. for a long time. People, these are not people who have criminal records, right? They're just like people who have been living here, people who have children, people who have been contributing, and they're going to be held in

detention without bond, subjecting essentially them to indefinite detention. So for the last like 30 or so years, most administrations have understood a provision in federal law that were acquired the government to detain without bond only people who crossed the border illegally. And there's sort of reason, right? Like there's two provisions. Are you in A or B? Are you an applicant for admission or are you a person arrested in the interior? And now the Trump administration

has been arguing that mandatory detention without bond applies to everybody, because if at any point you enter the U.S., you are then an applicant for admission. And it doesn't matter whether that's one month or 30 years ago. And having U.S. citizen spouses or children or, you know, perfect attendance at check ins, that doesn't matter. And the vast, literally hundreds, four hundred federal district judges have rejected this argument. But nonetheless, we are having

a circuit split. There's been a really complicated sort of argument over substance and process and constitutional questions and people, different courts are deciding these cases on different

“merits and different legal grounds. And so I think you're a hundred percent right, whereas there's”

only one outcome here. And that's, I don't know, hopefully Roberts writing a decision. I don't even know if that would guarantee a correct outcome. But there have been some previous immigration cases where the court was skeptical of theories that reversed, let's say, several decades interpretations of immigration law. So at least there is there is that going for it. But as I said, the fifth circuit waited in, but actually like even a panel of the fifth circuit concluded

the federal government could not indefinitely detain without bond. All of these people, because doing so would violate the federal constitution. But because this is the fifth circuit, we're both the Constitution and all good things go to die. The on-bond fifth circuit vacated that opinion within a week and set the case for a super fast on-bond re-hearing this fall like re-hearing before the full court. But even that was not enough. So the federal government filed

with the fifth circuit what it called a motion to stay district court judgments. Did that more than three months after the district courts had entered said judgments when in the interim the

with family and friends. And the federal government asked for a stay from the fifth circuit when they

had not asked the district court for a stay which under the appellate rules you are supposed to have to do in order to get one from the appellate court. The government also asked for a presidential order to block all due process habeas claims by people in the fifth circuit, even before the on-bond court fully considers the merits. And the fifth circuit granted it. But in true fifth circuit fashion, this is what I'm talking about when I said making

sure up. They issued a published decision with zero reasons and zero opinion. This makes zero fucking sense. A presidential published state order with zero reasons is not a thing. It's like if the fifth circuit just stood up and said I declare bankruptcy but they were like I declare there's

“no due process. That's I think the equivalent of what they did. And as far as I'm aware and as far”

it's other people I spoken to about this are aware, like this just has not happened elsewhere. I do wonder where this appellate court got the crazy idea that they could go ahead and just impose their views ASAP on the litigation before actually resolving the issue. That was me looking at you John Robertson's go to his shadow docket but the fifth circuit really took this to the next

level since they are always the worst and doing the most. I don't know, I don't know, yeah.

It's not a thing. It's not a thing. It's not a thing and like what is what is there to say? Like you're not supposed to be doing this. Your judges are supposed to be issuing decisions from which we can understand your reasoning and rationale and from which we can establish precedent. And it's like no, it's just like fiat dick tops, right? Like if this is not precedent. Just just she is too stunned for words you guys. It is Michael Scott. It is Michael Scott serving

“as a judge. That's what it is. It is right. And you know, and I feel really, really bad”

because for the people who are being impacted by this, there was a brief moment in which there was a 90 day clock on this detention and people were, they had their lawyers trying to get them out. And my understanding is people who got their papers in time are being able to get out under that 90 day clock for the brief duration for which it was the presiding law and now the RSOL. And, you know, as we talked about earlier, it's like being in detention isn't in and of itself a punishment. Yes.

Yep. And again, it's because the goal of the administration is to force people out of this country as quickly as possible. In the same way these masked ice agents that looked like really shitty characters in a video game are physically assaulting people when they arrest them. It's because you should want to not be arrested. I just thought, you know, uh, by ice agents. And that is why they're doing it over and over and over again and why they hired these absolutely besongers people.

I mean, this this guy in Maine, who murdered someone when you look at his ex-wives coming forward, saying it's it's crazy. One of the ex-wives is like, I have been telling law enforcement for many, many years that he should not be employed in this capacity and no one would listen to me. I told you this was going to happen. It's like, it's so very bad. I just saw a video right before we started recording of a mother whose child is being taken by these masked men and she's just screaming

hysterically crying. And I was like, we got on this call and I was I was a little stopped for words because I had just watched this video and you know, this isn't I'm not saying this is new information. We've all seen these videos over and over again, but every single time you see them, it's just so appalling. Yes. It's so appalling that I literally lack sufficient words to describe my feelings about it. Yeah. And like you can read the descriptions you can watch the videos

and even like reading the description of the child and the bluey pajamas, right, asking for their

“parent who has just been shot and killed, but it's excruciating, but you have to read it like you”

have to watch it because this is happening and you need to know and you need to be able to tell other people about it in order to make clear this is not how we want things to work. Well and I think that the administration has made some very strategic moves with regards to lowering the temperature a little bit to get people to not pay attention exactly. And then they're starting to ramp things up.

Stephen Miller is as always a evil and strategic human being and he is masterminding behind the scenes

in my opinion. Yeah. Strix scrutiny is brought to you by Zbiotics. Between work, family responsibilities and everyone needing something from you all day. Oh and then there's you know, the state of our constitutional democracy, getting together with friends can feel like a form of self care, whether it's a

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Sundaysfordogs.com/strict. Sundaysfordogs.com/strict or use code stric at checkout. Back to the fifth circuit because they were not done even after doing all of this presidential on-reason, presidential, state order that is in opinion without reasons. So they also sitting on-banc decided they're going to decide whether this federal statute that prohibits people with felony convictions from possessing firearms, violates the Constitution's

commerce clause. On the ground that it potentially exceeds Congress's power to enact laws under the commerce clause. If you're thinking, wait, a federal gun law. Maybe exceeding Congress's powers under the commerce clause. Where have I heard this before? It would be in a concurrence by Clarence Thomas, who floated this idea in Hamani. Because if taken seriously, it would mean that a bunch of other federal laws, like federal civil rights laws, also violate the Constitution's

commerce clause because Congress doesn't have the authority to enact them. Child pornography laws. Yes. Child pornography laws. Explosives, biological weapons, IP, financial regulation. Like they're all resting. Like we're not a regulatory law. It's protecting like health,

“safety, welfare. Right. One of the judges, I think, said, can felons from the other 11 circuits”

now flood the Gulf Coast to rearm themselves? Oh, God. Thomas does this, right? This is, yes,

let's reconsider Griswald loving. We'll work fel, etc. He didn't say loving, but I put that in there. When Griswald goes down, they all go down, just as Thomas. But, you know, he loves to make these

“little signals of of how he'll decide future cases. And Hamani was a harbinger. I think that”

our second amendment interpretation over the last couple of years has been, has been inconsistent.

I would say, that's a generous, generous word, but yes. And, and, and with Hamani, I think we saw, you know, what this courts plans are with the second amendment and that is to slowly eradicate any form of gun violence prevention legislation we have in this country. And if this case goes where Justice Thomas wants it to go, it is, again, chilling, I fundamentally don't understand how it could happen. Like, to get rid of the commerce clause, hook your gutting everything.

I don't, I do think it's a type of thing that Justice Thomas would want. I don't see the other justices standing with him, but it is chilling nonetheless, totally chilling. And if if Circuit is into it, they too are jonesing for a commerce clause freak off. But it's not just the fifth circuit, unfortunately, like other circuits are also trying to make a run for America's worst circuit,

and that includes on due process issues. So, let's just go to the second circuit. For a second,

they decided to get in on the anti-due process wave. In a unanimous opinion, that court weighed in on one of the cases where a non-citizen had been swept into the administration's anti-Palestine fervor. This particular case involved Motion Madawi, an individual whom the Trump administration decided to detain arrest and begin trying to remove when he showed up for his regular and required immigration check-in, a naturalization interview. You know, and essentially what this,

this case is deciding is that the government can use detention as punishment, right? And that's definitely, mentally. Self-deport, rather, endure the grinding aftermath of a removal order.

“And that's what this is allowing. Right, because what they say is the federal courts,”

they cannot hear the constitutional claim that Madawi raised to challenge his detention. They were like, "No, you have to do that in the immigration proceedings." But if you have to do that in the immigration proceedings, it's not going to be resolved until they decide whether to remove you. You are going to be detained potentially throughout that super-lengthy process. One of the Trump appointees on the panel, Judge Manashi issued a real pick-me

concurrent suggesting that even if the detention claim could be separated from the deportation claim, like the petitioner was arguing, he couldn't be detained for reasons unrelated to why he couldn't be removed. The petitioner still couldn't challenge his detention because indefinite detention without legal review. I guess that means due process, these days, that's why it's due process,

“rather than due process. And that wasn't even the only audition this week. So, just Lawrence Van Dyke”

of "I made an amosexual video descent showing the assembling a gun." And I once used the phrase, "This case is about swing dicks in a judicial opinion fame." He issued a descent from a ruling where the ninth circuit set at public school could reprimand a social worker who displayed anti-trans books that the state used as discriminatory in Judge Van Dyke in descent wrote, quote, "the school officials real interest in censoring the speech in those cases, something nefarious to give

children the false impression that all the adults in the school personally share the same woke perspective." Like using woke in a judicial opinion, it's just he could not be trying harder

if he tried. The second circuit, not even the only one trying to make their turn as America's

worst circuit court. And what could be a preview of the Supreme Court's upcoming case about whether states can ban the AR-15 platform and other semi-automatic rifles. The third circuit invalidated New Jersey's ban on assault firearms. They are large capacity ammunition magazine that can hold more than 10 rounds of ammunition. And a concurrence by another Trump appointee, Judge Mady cited Thomas Aquinas, like the original originalist. I don't know why that guys

views have anything to do with the Constitution. Right, history and tradition, but like on some separate track, then the Constitution itself. And it also cited perhaps to explain what the F is going on. Work on what's known as common good constitutionalism. This is the idea propounded by, you know, people on the right who don't think originalism is reactionary enough. That maintains the Constitution should be interpreted in ways that advance the common good.

And what do they think advances the common good? A authoritarianism, subordinating women,

right? The common good constitutionalism seems to be achieving. It's almost like they want

a living constitution. Almost, almost, right? But of course, they would never say that.

Scali are rolling in his grave. I realized they want a living constitution. Not a dead constitution, but they want all of us to be dead. Yeah. Right. So, so, both and a living constitution based on the ideas of a bunch of dead people. Yes, yeah. That what they say those ideas are, right? Like not not representative, you know, in even the abortion litigation or what I foresee as the upcoming contraception litigation that I also show up in my nightmares, you know,

“they're like, oh, no one was having abortions. I go on what planet are you on?”

You know what I mean? I guess no men were having abortions. Right. Yes. Right. That's right. Right. That was what they determined and that necessarily resolved the entire case for them. Yeah. Because if men weren't doing it, what is the point? It can't be good. I mean. And, you know, what is sex differences anyhow? It doesn't matter. And we're seeing that legally as well. Yes. Indeed. So, maybe just for more men's, let's go to the lightly round of

news that I'm just calling the men's category. Like are the men's okay? First of all,

another clip to show you. You've probably already seen this one though. It's from Steve's police. It's gotten a good bit of publicity, but we couldn't not include it in the show because it's just so fucking absurd. And this is him attempting to defend the save act, a federal law that would disenfranchise many, many people by requiring them to, among other things, have proof of citizenship to vote. When you think about something like Save America, which is at the

heart of democracy, just saying show picture ID to vote. For God's sake, you can't go get pasta at all of garden without a picture ID. Why not be able to show a picture ID to vote?

I don't know, these last time I went to all of garden, they did not ask to ID me. This is the

question I wanted to be doing. What the fuck he is doing at an all of garden, and with his all you can eat pasta? They're asking for his ID. Like sir, that is too many bread sticks.

“I just, I want to know what is too many bread sticks, or what do you have to do to get”

carted at the all you can eat pasta? Is he confusing, drinking alcohol and voting? That could be, I mean, maybe he just goes to all of garden slashed, and so it all blurs together. I don't know. I would say there's no one would look at Steve Scalise and think he's the under 21. Right. You know, that also seems implausible. The whole thing. Big question Mark, sometimes I wonder what these men had he been to quote

unquote all of garden already that day. Right. Well, since we are in the are the men's okay segment, no segment like this would be complete without a mention of one Pete Kegsbreff. At this point, you've probably heard about Kegsbreff's new testosterone policy for the military, the no-low team military as he called it, or in his words. This is, I mean, again, you just like have to hear it and see it to believe it. I'm authorizing a new screening program for

testosterone deficiency for our service members. Ensuring you have the right testosterone levels to operate at your absolute best. Number one, this is so embarrassing for him. It is so embarrassing. Like, especially when you see those videos of him doing his like little push-ups and pull-ups exercises, and like, I look better doing my bicep curls than pee over here. There's also, of course, illegal, illegal tie in here. We are seeing, you know, I'm sure all of you listeners are immediately

“thinking, hey, what are you saying that people in the military should be able to get testosterone?”

This is inconsistent from your other statements, and you would be, you would be on the nose. Judge Anna Reyes has made similar points that it seems that the DOD's bases for treating trans men and other service members differently between this new policy and the military band is a question mark that she wants to pursue. Obviously, it is far melodically the same intervention on going hormone therapy with monitoring. And on the internet, what we hear everyone say is like,

oh, sounds like gender affirming treatment. But, you know, it both is, right, like, the availability of testosterone, but also isn't because to the extent this is like a mandatory and enforced on people against their will, it's like compulsory rather than something you get with your health here. I don't know what he's envisioning, but it's just all kind of fucked up. Can you imagine, like, the T rankings that are going to talk about, you know, and like

and I just imagine that the way these men talk about women in the locker rooms are going to start talking about each other and their T levels. Yeah. How big is your T level? Oh my god. I'm spilling the T might unfortunately take on a very bad additional meaning.

So it's just like we're in the middle of a $37 billion

“unconstitutional war. Pete Heggseth, don't you have other things you should be doing?”

No, um, this is his number one priority, maintaining a high-team military. Strix scrutiny is brought to you by one skin. We've talked before about why one skin really stands out as a skin care company. The founding team are lung jeopardy researchers who asked a deceptively simple question. If many visible signs of aging like wrinkles, fine lines, and loss of elasticity are driven by so-called zombie cells, what if you could actually reduce those

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“and tell them we sent you. Strict scrutiny is brought to you by Cook Unity. Okay, I recently”

tried the restaurant she will for the first time in Detroit. No joke, I had the best post of my

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off your first order by using code strict or going to cookunity.com/strict. Next on the list of men's Republican Senator Josh Hawley, he decided to make a referral to the Department of Justice in which he asked the DOJ to investigate Plan C. That is the informational educational resource that provides information about how to access abortion pills by mail from anywhere in the country. It's run by a non-profit help campaign

Hawley says the website is in violation of federal law and part because it recommends off-label use of the drugs and also how to access the drug and states that have abortion bands. This is let's say a dubious allegation/interpretation of federal criminal law but the point is it's federal criminal law and it's a threat that carries with it the prospect of jail time. And I wanted to highlight that because it underscores something we have talked about on the pod that had been

flagged by wonderful relatively new independent news source that we've also highlighted before.

that these goons and weirdos are going to limit their vitriol to trans people and trans sports bands,

“you have another thing coming. What Hawley is trying to do here is run the same playbook”

against medication abortion providers that the Trump administration has been trying to run against providers of gender affirming care. Accusing them of criminal conduct by making available or recommending prescriptions for off-label use, I.e. for a drug to be used in ways other than the manufacturer labels the drug. That allegation is behind some of the Trump administration's harassing subpoenas for medical records related to hospitals that provide gender affirming care.

And it was a playbook that could always be used against other health care providers,

disfavored ones, specifically reproductive health care providers, as garnet Henderson warned in March over at autonomy news. That's a relatively new independent news site. Again, autonomy news, great new website whose work we've highlighted before previously they're reporting on the temporary fallout from the Supreme Court's delay in issuing their medication abortion ruling from this past spring. Emily, I know you had also been following other developments on the

relationship or connection between trans rights and abortion rights. Yeah, and frankly there's just so many different things I could talk about right now. I don't even know which one to start with.

Before I get into answering your question, I do want to say, I have some good news on this.

Oh yes, the ruling invalidating the restrictions on. Yeah. And if a person. Yes. Rare, I feel, to be able to say something positive. So we have a good case from a federal court. Yeah. So we have a good case coming out of Virginia that essentially says FDA restrictions on Mipopristone are a coprecious. And they need to be the FDA needs to go back and make sure that people have, there's new regs to make sure that people have access to Mipopristone as an abortion

medication. And it's a really good decision. And it's really well written and really interesting. It is also inevitably going to be setting up the circuit split that we are going to see that

“will run this case up to the Supreme Court. But I think that that's what we've all been”

expecting all these years. There's multiple other cases against the FDA trying to get the FDA to overrule the 20 year allowance of Mipopristone. You guys have discussed this many times on this pod. I'm not telling you anything. You don't know. Though I remain passionate about the topic. But, okay. So there was one other case. The Supreme Court granted cert in this case called International Partners for Ethical Care Inc. versus Ferguson. And this is about a bunch of parents

are bringing this case because the existence of homeless programs for runaway children and those programs offering gender affirming care to those runaway children. The mere existence of that is a threat to their parental rights. And one of the things they cite in this case and that we saw some of the Georgia's picking up on is a Texas case called Denda. And that is about the parental right to not have other people handing out birth control to teenagers. And for those of

us like me who are fixated on the overturning of Griswald as a long-term impact litigation strategy,

that case sort of sticks out there as one of the first things to fall. But there's just a complete

and utter overlap. I mean, the Venn diagram is a circle between these anti-birth control cases and the trans rights cases because the goal like parental rights and also religious freedom are the two main arguments they are going to be using to take all of this down and we're seeing it in across the spectrum in all of these cases. And it's about health care and it's about the right bodily autonomy. And there's a lot to be said when we're thinking about the future of

contraception litigation from skirmitting, right? Like the recent Supreme Court case on trans rights.

“And so I think that when we're going back to one of my favorite topics like the dobs decision of”

history and tradition and who gets to decide what is constitutional in this country. It's a bunch of dead men apparently except for when they're not. But that's fine except for when it's for the common good. But that is the right like the infrastructure that they are setting up under which they are going to decide these future cases. I should say again as Emily was saying so much to say about the relationship between these different rights that are under attack. I did a YouTube short video

with Kate Riga at Talking Point's memo last week and we covered even more of it. But on the are the men's okay. Another frequent flyer in this segment from the liquor DEI cabinet and that would be RFK and now diarrhea. Two words that apparently do belong together. So in case you haven't

been traced to a foodborne parasite. And some contact tracing suggests the parasite might have gone through

“right or been distributed through some lettuce from a tailor farm. So the actual lettuce has tested”

negative and there isn't a positive test on that lettuce. I want to say one of my takeaways from this whole thing is I have personally been so confused about what's happening. Like I do don't want the explosive diarrhea so I have been on an individual level trying to figure out what to avoid. And it's like you don't even know who to trust because the FDA says it's this lettuce and they're like it's Taco Bell. I don't even talk about so that's fine. And then like no way it's back lettuce.

Yeah. And then it's like no, it's not back lettuce. And of course, you know, there's lots of other information in the ether. The FDA was supposed to have a food traceability final rule that was going to be implemented but at the beginning of the Trump 2.0 term the FDA announced an intent to delay the implementation of that coincidentally just you know around the same time

“the head of Taylor Farms made a very, very large donation to make America great again pack”

coincidental almost surely it was about tariffs apparently. And you know to combine that with the gutting of the FDA done by the Trump administration. It's like this is a huge problem. We are not seeing the public communications, the tracing of things. RFK said on a podcast like oh there's an explosive diarrhea outbreak every summer. It's just same old same old. There is not an explosive diarrhea outbreak every summer,

at least as far as I know. Not as far as I know. And you know I'm going to go out on a limb here and say actually I would like to see the government working to end explosive diarrhea. I'm like, "I have heard it is very bad." People are like this is not your normal explosive diarrhea. Yeah. You know I said RFK part of the DEI cabinet we've called it Dixx husbands and imbecils now maybe diarrhea for everyone. Also measles are up so so much going on. I read today

that the thing is now being traced to cilantro and parsley in North Carolina. So it's going to

“turn you vegetables. I think once it gets to the berries the berry mama's will end this and”

I hope that's the case. Okay my mama's we need you. Okay save me from the explosive diarrhea. Yeah I don't even want to know what maha has to say about this but yeah um you're probably like it's a cleanse. Yes um just going down our list of men's just because why not this behavior seem to fit on the list. It's been reported that Bryson Dixxhambo a golfer reportedly wanted Donald Trump to intervene after he received a penalty at the Open Championship. Like he threw a

temper tantrum refusing to sign a scorecard holding the tournament hostage and apparently relayed his request to Donald Trump. Again are the men's okay. Like this is not like if you lose some

sort of sports match the solution is not to call the president to have him rig it for you and yet

this seems to now be a go-to move. You know one more thing for me to hate the Trump administration about they're making me have to learn about sports. Just so you'd get an understand of their fucking it up to. I had to pay attention to the FIFA red part of it all. What a nightmare for me. The hardship. The burden. The burdens we all carry. You know one last one and this is definitely in a different category which is why I put it last but still wanted to note it. Andrew Tate and

his brother Tristan were re-arrested in Miami and British officials are seeking their extradition on charges of rape and sex trafficking. Instead of attempting to describe who Andrew Tate is and what he and his brother have allegedly done. I want to re-recommend Heidi Blake's piece from the New Yorker Andrew Tate's Empire of Abuse. I really don't think it is coincidental that the brothers came under subsequent scrutiny after that piece came out given how deeply it was reported

and all of the allegations horrifying allegations. It describes Mr. Kate Shaw aka Chris Hayes also did a wisest happening podcast episode with Heidi Blake about her reporting. So definitely check out both of those. And the Tate. I don't know which one. One of the Tates.

I'm going to use that. That's good. I'm finally catching on to the shot scrutiny name calling.

It's taking me a couple of minutes. You keep it classy and keep it subtle and then you just slide it in and then it gets picked up in the lingo. The Tate's brother catching on before you guys know it. I'll be one of the gals. One of them was like we called Baron. Why we thought we'd get this

and who who they spend their time with this is not shocking right that these types of men would assume that they can call and get special treatment and you know per the previous segment on the sports of it all clearly the Trump administration does offer yes the people special treatment and so I can't imagine why they wouldn't expect this to happen. They got special treatment the first time. Yes. Why won't they get special treatment this time and to be clear these people

deserve to rot in hell and I hope they are served with indefinite detention which is apparently now legal. Unfortunately I'm not sure it's for men's like the Tate brothers but you know they do process not do process or something like that yeah so Emily before I let you go

“would you like to share your favorite things your recent favorite things with our listeners?”

I would. I'm always trying to I'm always reading a few good books. One book that I'm very

very late on but I did just finally finish this week was careless people. Which one? It was a very good book and I highly recommend I thought that that was a very very good read on the more fiction side. I also again very late on it finished God of the Woods. Which is also an excellent excellent book it is my book club book my book club always chooses excellent books and and so that those are two of my suggestions. There's also a new show that I just

had a brain freeze on writer die which is Octavia Spencer and Hannah Wattingham and it is so so good I haven't finished it yet but I highly recommend that series it was a real pleasure and I do believe multiple years ago I was on your pot and I made the same suggestion because it's my single favorite summer recipe but it is the smitten kitchen zucchini pasta yeah and you know what it is

it's still incredible you know for new listeners they got the benefit of this new listeners

make a little tomato guayette with like heirloom tomatoes and then serve it with the zucchini pasta with fresh feta chini and it is to die for and pretty much what I let maybe a sweet corn also and it's just a perfect summer meal yeah that's on delicious yeah okay so I will go in a similar order I'll start with the book so I was on vacation I read the off-campus series enjoyed it immensely except for book four I didn't love book four I also read julienne long's new one game of rogues

loved it and now the like more serious ones gonna re-recommend Heidi Blake undertates empire of abuse and Chris Hayes and Heidi Blake on her reporting also recommend

“autonomy news the new website they're doing important reporting there was a great state supreme”

court decision out of Hawaii that really captured the Aloha spirit it rejected the idea that the Hawaii Supreme Court should interpret their state constitution in the same way that the US Supreme Court has interpreted the federal constitution the Hawaii Supreme Court said they weren't going to adopt the guidance of a court that defines federal due process you know that honors the work of 1857 i.e. dreads got and called you know the Roberts Court's actions quote white noise

said they only see white just pages and pages of these Kendrick level dishes and grievances definitely worth checking out and then on a slightly lighter note one other lost stuff the transcript and the reporting out of the federal court hearing involving the administration sipping a New York Times journalist I don't know if you saw this uh the ones like reporting on

“Trump's use of the kataray jet the Amalia jet or whatnot okay the government ultimately”

withdrew the subpoenas of the journalist and the hearing sounds completely epic um so Matthew Russell at inner city press reported this here's some of what apparently unfolded so the judge says you didn't tell the judge that the subpoena was about reporters about the New York Times federal government lawyer we did not it was an oversight later we did legal research incredible right this is supposed to be like the the best US attorney's office in the country the

Southern District of New York and they're like yeah we didn't really do legal research before we like saw this if you know we like did it after later we asked CHPT yeah indeed indeed um at another point they seem to suggest like they had accidentally subpoena the records of one of the reporters mothers um so the judge is like you're saying there was no attempt to find out these were the numbers of mothers and spouses and the lawyer says that was an error we own it

that was a mistake not in furtherance of the investigation you know what here's the thing um

for you oh yeah you know just know it takes nothing now apparently you you can just bring a

“get don't do legal research don't figure out who you're going after it doesn't matter it's”

fine you just tell the judge whoopsie oopsies exactly oopsie you're not those subpoenas and see what comes maybe make the thoughts of you to summer i mean at least you get the headline right right exactly exactly exactly segment yes um well Emily thank you again so much for joining again listeners Emily Amick you can find her on instagram and substack at Emily in your phone and get her book democracy in retrograde and we hope to hear more from you soon thanks Leah appreciate it

and now stay tuned for a conversation i had with EEOC commissioner calpina codicall this episode of strict scrutiny is brought to you by alloy health here's something nobody tells you the skin changes that start near forties aren't just aging they're hormonal specifically estrogen loss estrogen naturally helps maintain collagen support elasticity and keeps skin hydrated

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specialized doctor will tailor your skin care to your needs plus you get zero dollar unlimited messaging with your doctor head to m-y-a-l-l-o-y.com and use code strict to get $20 off your first order for this segment I am delighted to be joined by EEOC Commissioner Kalpina Kotugal on the podcast we have talked about the momentous significance of the Supreme Court solving the separation of powers and Trump versus slaughter by which I mean the Cavalier demolition of independent agencies and

the follow-up that's likely to have and we wanted to bring that to light slash life by talking about the specific follow-out at one formerly independent agency the EEOC equal employment opportunity commission welcome to the show commissioner thanks Liam super glad to be here thanks for having me so for those who might not be familiar can you share a little bit about what the EEOC is and why the agency matters yeah I absolutely can I should just say at the outset that I'm only speaking

for myself here today obviously not for the commission as a whole you know we at the EEOC have our roots in the civil rights act of 1964 and in the civil rights movement we've thought of ourselves

for a long time is the nation's premier civil rights agency and our job is basically to enforce

the federal civil rights laws right which protect from discrimination on the basis of a bunch of different traits like race and sex also disability gender identity sexual orientation the list goes on we are we're a charge-based agency right so what that means is that workers file charges and then EEOC staff investigate those charges to determine whether the civil rights laws have been violated and then they might negotiate with employers to seek release you know we also bring litigation

particularly in cases where the discrimination is really egregious or systemic or where those workers may not be able to secure or counsel outside the agency just to give you a sense of scale

88,000 charges of discrimination last year alone and secured more than $660 million in relief for workers

so we're a little agency but you know we punch way above our weight I think in terms of relief you know I think a lot I think a lot these days and have thought for a long time about sort of what the role of this agency is and modern times and you know I think about the civil rights act is really giving voice to some of our nation's highest ideals and I think we know that that promise

“has not yet been fulfilled and and also I think that underscores just how important it is that we have a”

fair and impartial EEOC and I know we're gonna talk a lot more about that now you know in the wake of slaughter so let's let's go to that fair and impartial EEOC because while the slaughter decision just came down it's actually reflected the status quo for some time since the Supreme Court in Trump versus Wilcox had allowed the president to fire the heads of several multi-member commissions that order came down on the shadow rocket so Trump had also fired Democratic appointees

on the EEOC and the firings were challenged in litigation but Wilcox allowed the removal to proceed while litigation proceeded and in any case after slaughter the former EEOC commissioner dropped their lawsuit all that is to say you've been the loan democratic commissioner at the agency for the past year and a half so how has the president's removal of your fellow democratic commissioners impacted your work? Yeah it's been an interesting year and a half as as you can

imagine we've been really focused since January of 2025 when my colleagues were removed you know unprecedented by the president that our presence at the agency my team and I feels like a huge it's a huge privilege obviously but a huge responsibility and we're thinking about it in terms of the importance of continuing to advocate for marginalized worker communities but also to describe to express an affirmative view of civil rights like one that's actually grounded

grounded in the law you know their remain workers across the country for whom the EEOC might be their only option to get relief for egregious harassment or for pregnancy discrimination and so

“I think that hasn't changed you know from one administration to the next on the one hand on the other”

hand you know there's a lot happening and I think that means that my my job at the agency has been to advocate for transparency as the administration rolls out these like major changes to the way the agency has operated and to its priorities and then I spend a lot of time advocating on behalf of our career staff who are increasingly doing more with less really under the gun as so many federal workers are and then I think really just constantly being vocal about the demands of the law the reality

is of course that every day my staff and I have to weigh whether voicing descent is worth getting fired by the president it's a strange way to go to work and it's obviously not about me it's not about my employment I think it's really about the vital work that the agency does and that our

workers do and you know I think the reality is that if I'm fired or when I'm fired there won't be

anybody left at the agency to point out you know when the EEOC is strange from its mission and when it's abandoning its responsibilities and I worry all the time right about the public being left the dark I want to come back to the string from the mission in a little bit but brief detour I don't want to go jaccus on you but do you have any idea why you have not yet been removed I mean you know it's a it's a great it's a great question the White House as you might

“imagine hasn't really kept me in the loop on their thinking but I think the bottom line is”

that you're not on the rules chats I'm not I'm not I'm not on the signal chats you know I was the most junior of the democratic commissioners and so I think that's probably part of it and then the other part is that if they removed all three of us their paths back to quorum which is to say their path back to their ability to move this regulatory agenda and their litigation agenda would have gotten you know farther away so I think those are probably the the two the two reasons I think you know

the one thing I would say here is that when Congress confirms a third Republican commissioner

three is quorum at the UC right I think it's likely I'll be fired and then there will be a Democrat left at the agency yeah so we'll come back to how they are using the agency because this isn't a case where they might want to just have the agency do nothing which is an important part of you know the loss of independence but you know you express concern about the agency missing its mission

I mean you know I think Congress there's no question just as a starting point right and I know

that you all have talked about this like the what's the role of independent agencies you know Congress has been was clear right that there was a value to to having agencies that had by partisan representation that there were some issues like civil rights for example or consumer

“protection that should be above partisan politics and and I think we've lost the thread there”

I know I think the other folks who are getting rolled not surprisingly are the American public right civil rights enforcement is better when it has input from both parties and that's been lost so since the American public is also losing out here I did want to focus on some of the reporting we've seen about going on at the EOC and how the loss of independence has led to the loss of civil rights protections and so just to take through some examples the Department of

Justice Office of Legal Council issued what is in my view of bogus memo asserting that disparate impact liability is unconstitutional it's also been reported that in September the EOC administratively closed all charges that solely implicate disparate impact pursuant to the presidency executive order so can you talk about what disparate impact is

“and why those changes matter for workers yeah I mean I think disparate impact is just a”

perfect example right it's a perfect encapsulation of what happens when a civil rights agency loses its independence it's no longer enforcing worker protective laws that happened to be in this case disfavored by this administration you know when we think about disparate impact right this is the way that we can challenge that civil rights agencies and advocates can challenge policies that look neutral on their face like for example a strength test or perhaps the use of AI screening tools

right that's the one I think we're going to be hearing a lot about they look neutral on their face

but the reality is that they have an unfair discriminatory impact on certain groups and that's

what disparate impact allows us to challenge it's not new right I mean goes back to 1971 in Greg's and then was codified in the statute in 1991 and it's interesting it was enforced during the first Trump administration yes there's a you know big $20 million settlement from the EOC involving a physical abilities test at Walmart that was discriminating against women workers so you know I think there's no question and we can talk more about the the details of that OLC opinion memo

but there's no question that the loss of disparate impact means that we're losing this vital tool

“to root out the kind of discrimination that's I think often hardest for workers to see yes”

right and that's part of why even if the charges dismissed by the agency just letting the worker you know still file suit is maybe not a great substitute because they might not be in a position to see the bigger picture right and be able to assemble the full case that's exactly right there's like I think two things one these are often expensive cases right because they involve complex statistical analysis because they might involve retaining expert witnesses this was something that

I did before I joined the commission this was the kind of litigation that I did but as you say also the EOC has much better information about this kind of discrimination the workers do this is the kind of stuff that workers it's the hardest thing for workers to be able to spot yeah okay so since you mentioned it on the OLC memo alleging that disparate impact liability is on constitutional so I guess I would be curious to hear you talk a little bit more about that because in my view

the issuance of that memo is really a key example about how the loss of independence is directly tied to this weakening of civil rights I think it's it's such a it's such a good point you know the part of the story that there are a bunch of pieces of the story here that I think work worth

bringing out but the first thing that I would note is that DOJ's OLC issued that opinion at the

request of the EOC's chair so you know it came from a request from this agency this very agency that is supposed to be enforcing the law when it comes to disparate impact you know there are a lot of things about this memo that are bogus but I think it really is at odds with the law honestly you know if you look as more as recently as 2015 right and inclusive communities the Supreme Court is recognizing the power and the validity of disparate impact that was obviously

a fair housing act case I've had to read that that opinion memo multiple times because it's

to prove disparate impact based on nothing that I can tell and then there's this constitution analysis

and after congress specifically ratcheted down the standard in response to a Supreme Court decision perfect example about how congress is getting rolled here that's totally right it's in the 1991 amendments to the civil rights act congress did that to respond to 1980s decisions like works words cove that it disagree with so I mean yes perfect example of how congress is getting rolled perfect example of how this department of justice and this EOC are fundamentally disregarding the

“law you know I think when you like think about it it feels I mean you know we can look at project 2025 too but”

to me it really feels like the outcome of this memo was predetermined yeah since you mentioned

project 2025 and we are talking about the loss of independence resulting in the loss of civil rights

you know one particular trend that has been observed is the erosion of LGBTQ rights in particular so it's been publicly reported that the commission is not investigating worker complaints of harassment based on gender identity the agency also rescinded its harassment guidance which explain that discrimination based on sexual orientation and gender identity is unlawful what does that backtracking do yeah I mean to me it's it's quite I mean it's devastating right it's shameful

that the very agency that is supposed to be protecting the rights of these workers is abandoning

“them in particular trans workers a couple of things have happened that I think are worth talking”

about at the EOC last year the agency directed the chair directed staff to dismiss 7 cases that the EOC had investigated and filed on behalf of trans and non-binary workers you know the kind of harassment that these workers endured it doesn't matter what your sexual orientation or gender identity right no one should have to endure this kind of harassment you know and I don't have to go into to the details obviously but but people being referred to as it all kinds of unwanted touching

and sexual advances and and imagine right like if you were those workers they either civil rights violated they came to the agency that's supposed to protect their rights and then they are literally re-victimized by having the agency abandoned them in the process of their cases I think it's it's obviously it's obviously shocking right and it's really disheartening you mentioned the harassment guidance the decision of that that was that was literally done because it referenced protections

“from harassment for LGBTQ plus workers a couple of other things that I think are worth noting”

the agency is has been reported is refusing to investigate or to develop for litigation charges that arise under gender identity right discrimination on the basis of gender identity

and so they're basically not being investigated and they're not being developed for litigation

you know we don't have to we don't have to drill too deep into the boss doc opinion right to see quite clearly that that LGBTQ plus workers are protected from discrimination under Title 7 including harassment but the agency has left them and I think in particular trans workers to fend for themselves I think one thing I would want to just make sure that folks here is that even as the EOC is backtracking it's super important for employers not to do that not just because there are courts

but also because a future democratic administration is going to come down on this and probably most significantly because it's just the right thing to do indeed speaking of right thing or wrong thing last week the EOC held a commission meeting on a proposal to rescind demographic data collection the EOC has collected race and sex data from large employers for 60 years using the data to investigate race and sex discrimination you argue that the proposal is quote an attempt to weaken

equal employment opportunity and to undermine progress for women and historically marginalized communities why is that yeah I mean data tells data is just it's so important right it tells us so much it paints the picture and this is data that the agency has collected as you said since 1966 right it's it's data that are staff used to drill down further to look for trends to understand where problems might arise and to use the agency's incredibly scarce resources in the

most efficient and effective ways this is in project 2025 this decision so you know not surprisingly the commission is now proposing to rescind this data despite how important a tool it is in our

protections across the government you know this this notice of proposed rule making it just came out

“publicly to rescind this data it offers you know as you might imagine a number of explanations for the”

decision including the DOJ oh I'll see memo on disparate impact not in them or really not that's right that's exactly right none of them are particularly compelling it's it's quite remarkable it it takes the position that collecting demographic data somehow forces employers to make hiring and other employment decisions on the basis of protected traits so hard to understand what the connection is there there's literally no foundation or evidence for this right there's there's not one scrap not one example

of an employer somehow engaging in unlawful discrimination because they've collected and reported this demographic data for 60 years they're also making these constitutional arguments underlying grounded in equal protection clause that again don't have any basis untethered from Supreme Court precedent you know what this is going to mean and reality right is that a short staffed agency tight resources to go get this data from employers for particular cases right it's going to require

more information work rests more subpoenas you know more battling in court with employers who aren't going to want to produce it so much for government efficiency right like this is this feels like the exact up of apotheosis of that and I think really is going to just make it harder for the agency to enforce the law to protect workers so the loss of data is going to hurt civil rights and harm workers I guess just to make it concrete for people is there an example of how this kind of data has been used

to protect workers yeah there are a bunch as you might imagine a point just to it to one we just

settled a case in May of this year five and a half million dollar settlement involving a big

trucking company it resolved allegations that for at least a decade the trucking company had been hiring less qualified male applicants over more qualified female truck driver applicants and if you look at the court filings in that case it's quite clear that an analysis of that EEO1 data is what contributed to the EEOC finding cause that discrimination had occurred right and bringing this lawsuit

“I think the other thing that is just important to say here is that there's no question that the”

administration is recognizing the value of getting demographic data when it serves their interests right last year the chair of the EEOC demanded that 20 law firms produce a ton of demographic data to to the agency you know in line with these investigations about about their DEI practices and you know just recently the education department has announced that it's going to require universities to produce all kinds of demographic data to so-called you know test their compliance

with with SFFA so there's no problem getting data and other circumstances I wanted to one more thing before I stop which is that just because you stop collecting the data doesn't mean that the discrimination goes away exactly right all the hard news exactly is that we need cap the agency makes it harder to prove makes it harder to enforce the law and leads workers behind yeah since you mentioned you know the investigations into DEI you know as we were kind of

alluding to a pop one possible explanation for why the administration doesn't want to deprive the EEOC of a quorum is that they would also perhaps like to weaponize the agency so not just getting a free pass you know to some people violate the law but also maybe seeking dubious interpretations of the law you know against people in institutions they don't care for and that has often meant taking this administration's culture work grievances and running

them through the agency particularly the attacks on DEI so I guess before we just briefly talk about the weaponization concern you know what are some obviously legal DEI efforts yeah I mean

“there are a bunch right in this administration has has come for them I think the the thing”

about DEI practices is that the devil is always going to be in the details and it's always

going to be in the execution right like it has to be done correctly but there are a whole set of practices that if carefully undertaken are lawful right like expanding and broadening applicant pools right that's uh that's an obvious one what about recruiting at each HBCUs or standardizing interview questions and hiring and promotion criteria to make sure that everybody is on the same page or using skills-based hiring right rather than relying

on particular credentials all of these are DEI practices you know so too is looking at demographic

think about them as really fostering these are these are the things that actually foster a

true meritocracy right these are the things that break down barriers equal opportunity to ensure that every single worker regardless of their background has a chance to work to contribute

“to contribute to their families in their economy so there's like a whole raft I think of DEI”

practices and the risk of rolling them back right is that we erase gains in the workplace that have been made for women and people of color and people with disabilities and let's go on yeah

so mentioned you know that one possible way weaponizing the agency is basically doing these attacks

on DEI and the chair of the EOC Andrea Lucas famously did a direct-to-camera video urging white men to submit complaints of DEI discrimination for money can you elaborate on how you know this kind of speaks to the stakes of the loss of independence and you know how the agency or

“commission can be weaponized yeah I mean I think it's quite clear that this agency is just”

increasingly an arm of the White House okay I think that that's quite quite clear just to give you one example beyond the ones that you know you've mentioned about the chairs video we have a new at the EOC a new national enforcement plan which ensures these priorities these priorities of the administration including remedying what they describe as DEI related discrimination it also includes defending the quote unquote binary reality of sex you know this is where the decision

not to investigate disparate impact is enshrined it also makes explicit that the EOC is not an independent agency so right these things are like clearly going hand in hand I think it's worth really noting that under the guise or the language of prioritizing even handed enforcement which is

what this chair likes to talk about the reality is that the agency is redirecting limited resources

toward prosecuting this administration's grievances and protecting this administration's most favored groups and and I think we see that happening on a day-to-day basis obviously there's a lot

“more to say and actually it's not like to hear more you should check out YouTube where I'm going to”

have an additional expanded conversation with the commissioner but for now commissioner code to call thank you so much for taking the time to discuss what the loss of independence has meant at the EOC. Thanks Leigh I appreciate it. It's clear that the sole remaining democratic appointee on the EOC is also one of my favorite things so add that to my list and that she should be one of all of our favorite things although the fact that there is only one remaining democratic

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