Will SCOTUS Join the GOP War on Mail-in Ballots?

You're not alone if it feels like Groundhog Day every morning when you read the news

“or even listen to what we're talking about here on Strix scrutiny.”

And while it's overwhelming, seeing the trajectory our country is on, we all show up every day, trying to find ways to make it better, to educate our neighbors and to fight for a democracy. Our friends at Americans United have been doing the same thing day in and day out for almost 80 years. This year alone, they filed three separate lawsuits against Trump's anti-Christian bias task force, which spoiler alert is anything but unbiased.

AU has been tracking every mention of Christian nationalist rhetoric from this administration, and partnering with many allied organizations to sue and protect our constitutional right of church-state separation. The right that protects all of our abilities to be who we are and live as we choose, so long as we don't harm others. It's easy to get apathetic, as we're all seeing in hearing these attacks on our freedoms every single day, and watching a religion be weaponized

for a power grab. Now isn't the time to give up, though. Now's the time to fight back, against the growing authoritarianism in our country. Consider joining Americans United for Separation of Church and State. Learn more by visiting AU.org/Cricket because church-state separation protects us all. In moments like these, it's easy to fill overwhelmed and even easier to fill powerless. But we are neither. I'm Stacey Abrams, and on my podcast,

assembly required, I take on each executive action, legislative battle, and breaking news moment by asking three questions. What's really happening? What can we do about it? And how do we keep going together? This is a space for clarity, strategy, and hope rooted in action, not denial. New episodes of assembly required drop Tuesdays, tune in wherever you get your podcasts and on YouTube. I can't wait to invest in. For all of you, go to the post-test.com/shopify.de.

All I ask of our brethren is that they take their feet for fun next. Hello and welcome back to Strick scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I am your loan regular host today, Kate Shaw, but fear not, I have with me a fantastic guest host, the founder and executive director of the Invispensible Organization Protect Democracy, Ian Basin. Ian, welcome to the podcast. Hey Kate, it's great to be

on with you. So happy to have you. And listeners later in the hour, we're going to be joined by

“returning guest, Alora Mukherjee, who is going to help us make sense of two critically important”

immigration cases before the court. An asylum case that was argued last week, and this week's enormous case on the future of birthright citizenship. But first, Ian. Ian is an old friend. We worked closely together in the White House Council's office under the Obama administration as baby lawyers. And he now, as I mentioned, runs Protect Democracy, which if you don't know you really should, it's a nonprofit organization that has been working for years on defeating authoritarianism,

showing up democracy, using litigation and advocacy and tech. And always these cross-ideological

coalitions with the kind of general goal to meet the ever-shifting and right now ever-present threats to American constitutional democracy. I've worked closely with PD on various projects. I really do think the world of them. I'm in so I've been wanting to have Ian on the show for a while.

“And this is actually a great time to do it because the Supreme Court heard a very important”

voting case last week, RNC versus Watson. So we're going to spend some time talking about that, as well as other democracy-related developments. And that'll be a perfect segue to a report, Protect Democracy just issued about efforts to undermine democracy in advance of the midterm elections. But before we get to all of that, let's cover some breaking news from the last week

because as ever, there has been a lot. First up, let's talk about the ruling in the challenge

the new Pentagon Press Policy. So after Leah and Melissa and I recorded last week's episode, a DC District Court struck down the Pentagon Press Policy. So let me remind folks of what that policy was. It was adopted last fall by the Pentagon. And it was a dramatic break with long-standing

access to the Pentagon. The new policy provides the Pentagon will only give press credentials to individuals whose sign agreements pledging not to solicit information. The administration has not approved for release, aka, you know, agreements not to do journalism. Sirious press outlets just refuse to sign. The instead relinquished their passes, which meant Pentagon official coverage was left the likes of Laura Lumer and Matt Gates. And the outlets that refused to sign,

then filed a challenge alleging that the new policy violated the first and fifth amendments,

as well as the administrative procedure act. Ian, you read the District Court opinion. What was

“the reasoning and how important a ruling do you think this is? Yeah, well, as you alluded to the”

technical reasoning here was that the judge found that the Pentagon was essentially retaliating against media outlets because it didn't like the way they were reporting. They were loyal enough to the regime and it was first, you know, first amendment viewpoint discrimination. They also said that the Pentagon's policy was so vague that reporters couldn't even know with any degree of, you know, reasonableness, what Mike loosed them their press access and therefore it violated the

new process rights. But more importantly, what the, what the ruling basically said was that the Pentagon was trying to barge journalists from doing journalism. That was what Judge Friedman

ultimately said. And I think importantly, he also underscored that this was happening at a time when

we are at war. When we are, we've been engaging in military strikes in Venezuela, where we've launched a massive military campaign and I would note, unlawful war in the Middle East. And it's at times like that that Judge Friedman said that it is at the maximum level of importance that the public have unfettered access to accurate reporting on the Pentagon and that that was a harm to the country and there's a great opening to the opinion which Judge Friedman

says for 250 years. We, the founders, have basically insisted that the people get access to reporters going and finding the information that they can from the government reporting on it to the people without the sort of interference and that we shouldn't turn back on that legacy right now. Yeah. So really good and important opinion. Obviously, just a disregard opinion as we have seen time and again in the last 14 months, those disregard opinions are often not the last word.

“Let's still a really important word. And I think there was a ruling in a very similar spirit that I”

also wanted to mention. So we're recording on Friday morning and last night. There's a night we got a ruling actually in the unthropic case, also again, the Department of Defense. So what Ian happened there? Yeah, I mean, it's actually remarkably similar. So in this case, the Pentagon was negotiating a contract with anthropic to use Claude in the classified setting at the Pentagon.

And in frappic basically said, you can use our system for anything you want except there's

two things that we really don't think Claude is ready to handle and shouldn't from an ethical and constitutional standpoint. One is master of hell instead of Americans. And the second, but it locally is killer robots, right? Autonomous robots that kill without a human in the loop. And the Pentagon and the anthropic were negotiating the terms of this. The negotiations seem to be amicable. Then they both in the press talked about what they were disagreeing over. And then

Secretary Heggseff basically and President Trump basically said, you know what, forget it.

“Anthropic doesn't want to let us do this. Then we are going to in the words of one of the”

Amicus briefs filed in the case. Importantly by the chief AI advisor to Trump during the second terms organization, said the Pentagon decided to put corporate murder and try to kill and frappic because it wouldn't give it unfettered access to the tool. And the judge last night, Judge Lynn, and there were just California found that that also was first amendment retaliation. Then in fact, the Pentagon went way beyond what it actually had the lawful power to do.

That the Pentagon could have chosen we don't want to contract with Anthropic and that's fine. We're going to go find another vendor, but it didn't do that. It went beyond that and both Secretary Heggseff and the President tried to basically bar any federal agency from contracting with Anthropic, any federal contractor from using Anthropic, designated them a supply chain risk, which is a statutory designation that here to forehead been reserved for foreign adversaries.

And the judge basically said that that was all wildly excessive, wildly unlawful, and in retaliation for anthropic raising some public concerns about safety that the Pentagon didn't like. And an issued preliminary injunction, basically, in joining the administration from taking any of those steps and said they can simply choose not to not to contract with Anthropic. Yeah, so classic First Amendment and also statutory violations.

And I should note, protect the market as you filed a brief in that case. This is notable on behalf of some of the leading research AI researchers at Google, DeepMind, and at OpenAI, who are the competitors to Anthropic. And I want to just shout out, you know, sort of the researchers who are willing to do that, because what we saw there was something that we haven't seen enough of in this Trump era,

which is collective action, right? The authoritarian move is to divide and conquer, right?

hoping that if they go after one, the rest of the sector will scatter and try to hide rather than come together in defense of the person who's been attacked. And what we saw here from the researchers at Google and at OpenAI, was essentially a NATO article five move, saying if you're going to attack this ecosystem, we're going to stand together, because we believe in warning the public about the safety concerns.

We have about this powerful technology and we're not going to let the government shut down that discussion.

Yeah, and the NATO article five obviously self sort of collective self defense reference. A really, really important sort of under-utilized tool of resistance and response in this timeline, but maybe that is a harbinger of more of that to come. We need more of that to come. And there was a little bit of that in the Pentagon case, too. Yeah, that's true. You had Fox, ANCNN, and a bunch of other, you know,

not ideological fellow travelers together are challenging this policy. Well, most of the mainstream outlets refuse to sign, heggs that's loyalty of, although notably, only the New York Times filed suit.

“I think this was interesting, right? Fox News, Washington, and they already --”

They didn't sign. They gave up their badges, but the lawsuit was just the times. They gave up their badges, but they didn't sue. And so let's just also take one moment and shout out that the people who did, right? The New York Times was willing to challenge. And not only did the New York Times challenge, but the decision that Judge Friedman made rested on two other precedents, one from the 1970s, where the nation had its White House press

pass revoked, but another from the first Trump term, when Brian Karam, the journalist, had his press pass revoked. He was at Playboy at the time, right? Isn't he? Yeah. And he's soon. And that press that was important years. Let's shout out that people who are standing up and fighting, Karam's put the font in New York Times' font, the open AI and Google Researcher's font, we need more of that. Yeah. Amen. Last bit of breaking news also just like as we sat down to record,

and that is a bombshell story that ran on Friday morning in the times about secretary petexats, personal intervention to block the promotion of four army officers to the position

of one star general. So this kind of intervention, the secretarial level, literally never happens,

even the administration's own appointees seem totally agast at it. So Ian, don't know if you've had a chance to look this morning, but I wonder if you have any guesses about the identities of the four officers that the secretary singled out to block the promotions of in a sea of dozens of promotions. Yeah. And I'll explain what to go with who are not like men for a thousand dollars. Sting Ding Ding. So to our black, to our women, it is just further evidence that when this

administration talks about merit, it is talking about the restoration of all the status hierarchies in which leadership positions go to white men full stop. So it's shocking, but not surprising,

“sort of news developments, but there are, I think, genuinely shocking revelations in the story,”

including one about an earlier incident, not actually these promotions that Hegseth blocked, one involving the promotion to the position of the command of the military district of Washington, which has some ceremonial dimensions, including presiding over events at Arlington Cemetery, and according to this story, Hegseth's chief of staff evidently told the secretary of the army, also a Trump appointee, that Trump wouldn't want to appear next to a black woman at military events.

So anyway, that is not even what the story is about. It is just in it, but the story is about these efforts to block these promotions. Shocking story, very much reading, I hope the Congress does some investigation, and obviously more evidence that it hugely matters that the press is able to cover the Pentagon and also sort of helps explain why the administration is fighting so hard against that. Well, you know, I mean, yes, of course Congress should conduct oversight, but you know,

this is all horrific and immoral and embarrassing and awful, and also you don't need to investigate,

because these people do it so openly, their racism, their misogyny, their disdain for the first amendment.

I mean, one of the things that is almost the salvation here is in the infropic case, in the Pentagon press case, in the Mark Kelly case, I know you guys have talked about in the show, in all of those, what ultimately did the administration him, was that it is so openly, you know, obvious about what it is doing, that the judges are like, the animus here is so clear, and the double standard is so clear. One of the wild things, the Pentagon press pass case,

is the administration basically said that the Washington Post was violating its policy by having a tip line posted at the bottom of every one of its stories so that people could give a tips, and that was horrible and acceptable. But when Laura Lumer posted a tip line, the Pentagon said, "Oh, yeah, that's totally fine, because we like her." And so the judges were like, "Come on,

“you gotta be kidding me here," and I think, you know, hopefully those, those are our offices”

are able to get the promotion that they deserve, because the racism and misogyny here is just so obvious. Yeah, no, and I think it's obviously right that a lot of the lawlessness is happening, kind of, you know, in broad daylight, I still think congressional attention is useful in helping the public education, but certainly from the perspective of litigation, like,

to break out as magnifying glass to figure out what's happening, but maybe some motive,

“capital, and make a stink out of for sure. Yeah, I think that can be really productive.”

Okay, so a handful of additional pieces of news to cover. One is kind of a big, like, whoops from DOJ/IS, and that is the DOJ made an important concession of error on a key issue about the administration's, sort of a specific kind of location and strategy of immigration enforcement, and that is arrest at courthouses. Now, DOJ had relied upon and relied in court upon, an ice memo in defending ISIS practice of making arrest at courthouses in particular in New York City.

So it turns out DOJ announced in this court filing that the memo on which it was relying,

you know, including relying in court, quote, "Does not and has never applied civil immigration

enforcement actions in or near immigration courts?" The filing also says, quote, "We write respectfully and regretably to correct a material mistake and statement of fact that the government made to the court and plaintiffs." I mean, I think they'd like to say no harm, no foul,

“but I think this means that many of the arrests that we have seen, and maybe also even deportations”

and criminal cases are invalid. This could require reopening cases, which DOJ seems to concede. That includes the case of Brad Lander, the former New York City Controller, and now congressional candidate who was himself arrested by ICE at a courthouse last year. So I guess in, like, is DOJ okay, do you think? Well, I mean, what's wild about this letter that the SDNY filed is boy, do they throw their colleagues in administration and bots,

right? And this is not a we the administration deeply regret our error and we want to bring this to the court's attention corrected, which should normally, you know, well, I should say you don't normally see because DOJ normally is incredibly careful about not making misrepresentations, but in the rare event where it might have happened inadvertently, it would be like over so sorry,

but here SDNY basically says, hey, this wasn't on us, right? They go out of their way in the letter

and say, this was on DHS. They basically misled us and they did it repeatedly over a long period of time and don't play us, those people stick. And that was pretty wild. I think it suggests a little bit of a sign that at least the lawyers, the SDNY lawyers and DOJ, see the writing on the wall about this administration, see what the future holds, and they are trying to distance themselves from the lawlessness and dishonesty of the administration and preserve their

professional integrity for what might come after. And that's a that's a positive sign slightly certainly about SDNY and DOJ, and a sign about the atmosphere right now in terms of people realizing that the ship they're on with this administration is going down and they got to find themselves alive for after. The strict scrutiny is brought to you by smalls. We've talked on this show about how the girls are fighting and the boys are fighting. In other words,

there's a lot of cat fighting, meow, and in order to bring their best kitty girl to these fights, your cat needs smalls. Smalls fresh cat food is protein pack recipes made with preservative free 100% human-grade ingredients. You'd find in your fridge and deliver it right to your door.

“That's why cats.com named smalls they're best overall cat food is protein pack, so they can pump”

up for the cat fights. And for a limited time, get 60% off your first order plus free shipping

when you head to smalls.com/strik. Starting with smalls so easy, even a supreme court just could do it. You just share info about your cats diet, health, and food preferences. Then smalls puts together a personalized meal plan for your cat. No more picking between random brands at the store. Smalls has a right food to satisfy any cat's cravings because kitty girl, it's your world. Still not a believer in smalls, Forbes ranks smalls the best overall cat food. While BuzzFeed said quote,

"My cats went completely ballistic for this stuff." After switching to smalls, 88% of cat owners reported overall health improvements. That's a big deal, way bigger than the oversized shoes being worn in our shunitary executive. And the team at smalls is so confident your cat will love their product that you can try it risk-free. That means they will refund you if your cat won't eat their food. So stop guessing which meals will upset their stomach for a limited time because

you are a strict scrutiny listener get 60% off your first order plus free shipping when you head to smalls.com/strik. While last time that's 60% off your first order plus free shipping when you head to smalls.com/strik. Strik scrutiny is brought to you by one skin. We've talked before about why one skin really stands out as a skincare company. Not hype or just fancy packaging, it's the real science. The founding team or longevity 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 cells to slow the aging process down instead of just covering it up. That research led to OS1, one skin's proprietary

slowing skin aging directly at the source. This is a stuff Samolito wishes he would have used.

“This is serious science that fifth easily into my existing routine. And every time I use one skin,”

I'm giving my skin a clear signal to repair damaged cells, support collagen and strengthen my skin barrier. Only skin care better than reading the constitution and, you know, abiding by the constitution, OS1 and one skin. One of the reasons one skin contact my attention is that it's founded by a team of women and PhD scientists. Plus, the OS1 face moisturizer doesn't feel just rejuvenating. And I feel an extra snap after just a few uses. It's easy to go on after my swim.

It immediately feels hydrating but not too oily. And this isn't just my experience. One skin's products are backed by extensive lab and clinical data, including four peer-reviewed

clinical studies to validate their efficacy and safety on all skin types. Plus, they've got over

10,000 five-star reviews, and have been recently featured by Bloomberg. And as a leader in skin longevity. It really shows you don't need a complicated routine to achieve healthier, younger looking skin. Orange from over a decade of longevity research, one skin's OS1 peptide is proven to target the visible signs of aging, helping you unlock your healthiest skin now. And as you age, for a limited time, try one skin with 15% off using code strict. At one skin.co/strict,

that's 15% off, one skin.co with code strict. At you purchase, they'll ask you where you heard about them. Please support our show and tell them we send you. Okay, handful of additional developments. One also since we last recorded, we learned of a death of former FBI director and special counsel Robert Mueller, and also we witnessed Trump's response to it. So the news of Mueller's death occasion, a particularly vital reaction from Trump

if listeners didn't hear it, or see it, I'll just quickly quote his truth, social post. Robert Mueller just died. Good. I'm glad he's dead. He can no longer hurt innocent people, and then not thank you for your attention to this matter, but he did sign a president Donald J. Trump. And I have to say, I thought I was pretty numb to Trump's rhetoric, sort of however odious it gets, and I didn't know Robert Mueller. I had no particular kind of attachment to him. I thought the Mueller

report was too long and very loyerly and tortured in certain respects, but there was still something about the obscene spectacle of Trump celebrating the death of an American who served his government in all these different roles over decades that, honestly, in somewhat embarrassingly, like I was, I looked at my phone and I was out with my kids last weekend and was brought to near tears on a Brooklyn sidewalk on a beautiful sunny, can't remember if it's Saturday or Sunday.

And I'm just curious, Ian, if this hit you hard to just the Trump response or what your reaction was. Yeah, I mean, you know, even 10 years into this, we see something. We go that can't be real, right? That must be some sort of AI-generated fake with a president said. And as a good rule of thumb, if you have that reaction when you see something that Trump has said because it's so outrageous,

“you should assume it is in fact a trio. I wouldn't caution, I wouldn't suggest you do that about”

most information you got, but typically the more outrageous it is, the more likely it is that he actually

did it. But here's the thing I would say about it. Look, when Donald Trump was getting five

deferments from serving a Vietnam, Robert Mueller was getting a purple heart, right? Robert Mueller served this country honorably for his entire adult professional career in life and deserves to be honored by this country in his passing and it is, it is just disgusting and outrageous that the president, this country wouldn't honor that and would do the opposite, but, but there's part of me that goes, okay, good, you do that Trump, not because I think it's ethical or moral or supplementary that,

but because it is so disgusting that people can really see who this man is and what it's about. And you know what, here's the thing, I know for all of us and probably a lot of our listeners, it feels like, you know, he's Teflon, nothing sticks to him, here he is, he's back in power again, there are no consequences and I want to suggest that that's not entirely true. People don't want what he is offering and it's statements like that that really turned people off. And, you know,

there was a Fox News poll yesterday validating that of all the other polls that we're seeing, he is wildly unpopular, he is 20 points underwater and approval in all of these polls and in this poll, he's 44 points underwater among Latinos, he's 10 points underwater among white men, he's underwater among white voters without a college degree, that says base, he's even 50, 50 among rural voters in the poll. The guy is wildly unpopular and every time he does make that,

“he becomes even more unpopular. And so while I think it is vile and disgusting,”

I'm glad people are seeing who he is because they are repelling in response. Yeah, okay, all right, well, as ever, like actually a very positive spin on something like truly foolish and so yeah, I'll take it. We got a decision from the eighth circuit on mandatory

this campaign to edge the fifth circuit out as America's worst circuit court. And in this case, the eighth circuit reversed a district court and joined the fifth circuit in upholding administration policy change that purports to require detention instead of bond and release

for non-citizens arrested in the US. This has never been the practice. It is an insane and unadministrable

rule. I mean, there is an on-bomb petition pending the fifth circuit, challenging this conclusion, you know, seems like only a matter of time before this question goes up to the Supreme Court. So we're going to keep an eye on that. And another kind of immigration and court-related development last week, the court added two cases to its docket. And this is kind of the latest installment in this trend of taking cases that come up in an emergency posture, but the court

then sets them for argument instead of resolving them on the shadow docket. And at issue here, is the administration's attempt to end temporary protected status or TPS for Syria and Haiti. So the court granted several for judgment in these cases and set them for argument, but without granting stays, which is strikingly different from its disposition of earlier TPS cases involving Venezuela. So that was like a big wind up in. There were some TPS designations when we were

government lawyers on this is something presidents have long done. Can you just remind listeners of what the designation means and then just briefly what the case is about in the significance of the court setting them for argument this spring? Yeah. So TPS does for temporary protected status. It's a humanitarian designation that Congress created for people who are already in the United States whose home countries have become too dangerous or unstable for them to return to safely

right. So there's earthquake or war or systemic violence. So the Haiti TPS designation goes back.

“I think to the earthquake in 2010, you know, killed hundreds of thousands of people at Haiti.”

And the United States government going as you and I remember going through sort of a process of applying the congressional statute to say, "Hey, have the standards here been met to say that the conditions in these people's home countries are too dangerous and stable to safely

force them to go back." In which case we will basically grant the humanitarian relief and say

you can stay here until those conditions stabilize. And while they're here, you know, let's point out these are people who are working. They're paying taxes. They're raising families. Oftentimes they were here legally, right, at the time that the disaster struck, right? So you can see a situation where you're in the United States and you go overseas on a vacation, on a visa to work temporarily and then some catastrophe happens back home. And it's basically the other country that's saying,

"Oh, yeah, you got to go back there in the middle of the cast." Like, "No, we'll let you stay here for a little while until things stabilize." And in these cases, the Trump administration basically just revoking these things. And what I think, you know, the courts are looking at here is like, were they doing it because, as you and I saw, there'd been an actual analysis about whether the conditions had changed, Haiti, because I'll tell you that the conditions in Haiti have not

fundamentally changed, it is still an incredibly unstable chaotic place to go back to, or were they doing it for some other reason. And I think what the court is sort of signaling here. And I think this is a trend we're seeing, you know, and all the things that we're talking about is

“it looks like this designation was made for reasons based on animals, right? That's what the”

lower court basically found that the Trump and the administrations talked about, you know,

Haitian immigrants eating dogs and cats and all this like vile disgusting stuff. So just that actually what's going on here is not an analysis of the facts and applying the congressional statute, but just again, sort of like what we saw from Secretary Henson, just racism. And I think it's notable that the court, the Supreme Court in this case, is keeping the lower court decision in place unlike what happened with the Venezuelan decision that went up. Ryan Goodman has written a

really wonderful piece of our just security talking about the presumption of regularity. This notion that the court's traditionally assumed that when the executive branch acts or says something, that it's acting in good faith. It presumes that there's probably something to it, right, that it's at least honest. And what Ryan and Justice Security start documenting is that in case after case after case, that's just not the case. That the administration not acting different.

Look at the, you know, when we talk about the policy, we just talked about where the Southern District basically said we were mislad by DHS. And the court's not starting to be like, "Maybe we can't take the administration a good faith and I wonder," you know, maybe this is me being hopeful, that the shift in the court's handling the Venezuelan TPS to the Haiti, Seri, one is the court saying, "You know, we're not going to give the administration the benefit

of the doubt here. We're going to leave this protection place, so nobody gets sent back to a horrific situation that I'm country until we can actually consider this on the grounds."

“Yeah. And I think also the criticism of the shadow docket is landing to some degree.”

So, you know, it is better for them to set for argument, a really important question. Like this, although also doing it on this really like expedited timeline just means that in one of the cases, it's like an oral order being challenged. They're not, they don't even have an administrative

on the shadow docket with zero reasoning. So I guess tiny, tiny bit of credit we're do. Two more news items to flag. One, we learned this week that the federal government funded, of course,

by taxpayers, has agreed to pay $1.25 million to one Michael Flynn, a former, of course,

Trump National Security Advisor, pleaded guilty to lying to the FBI about conversations with Russian diplomat. He later filed a civil lawsuit alleging wrongful prosecution. And this is the result. This, you know, I don't know if you've listened to our last couple of episodes,

“but this is what Leah has been referring to as a deal-do. And I think it's pretty ominous as a”

signal of what is to come in the multiple lawsuits, including a $10 billion suit that Trump himself has filed against the IRS, which people sort of shrugged and laughed at, but like, is an actual lawsuit that Trump has filed, and it's just as a department, like, is going to respond to in some fashion. He also has a separate claim of his own, sort of, like, Flynn's arising out of the investigation into him. And then finally, just want to mention some pretty ominous, but also non-sensical,

Trump rhetoric on judges just a couple of days ago. So I want to play a clip from something that Trump said on Wednesday during a meeting with congressional Republicans. The time has also come for Republicans to pass a tough new crime bill that imposes harsh penalties for dangers, repeat offenders, cracks down on rogue judges. We got rogue judges. That are criminals. They're criminals. What they do to our country. The decisions that they hand down and hurt our country.

“Ian, what is he talking about, slash, communicating here? And is it another example of what you”

were talking about with sort of the Mueller episode, which is, I mean, this is, like, really scary and horrifying rhetoric, but that there is some utility or value, and people sort of seeing it and hearing it all laid out? Yeah. I mean, the Democrats have a pattern of what they do around the world, which is that they use the power of the government to retaliate against anyone, people institutions that they perceive could stand in the way between them and total power and total control.

And they intimidate those actors, those institutions, and by doing that, they create climate of fear. And then that climate of fear, people decide to engage with what Tim Snyder is referred to as anticipatory obedience, right? Stepping back and not challenging power and not just, you know, anyone, but institutions. Because as you and I know institutions are not marble buildings with Ianna columns outside, they're the people inside them. The Supreme Court has nothing without John Roberts.

And when people are afraid, when Lisa Murkowski is saying we're all afraid up here, when former Senator Romney is saying that he spoke to members of Congress on the floor of the Senator of the House who said that they were voting the way they were voting, not because they thought it was the right way to vote, but because they were afraid for the physical safety of their families,

“then institutions fail to check power and power gets consolidated. And that's what Trump's doing here,”

right? He is threatening judges with criminal prosecution. You know, when he names them, they get death threats from, you know, his, his, his thugs and mobs out there. And he's trying

to get institutions to step back and not do their jobs. But here's the thing, you also see around

the world that there's a virtuous cycle that can reverse that vicious cycle, which is when you see grave sort of actors willing to stand in the face that fear, not engage in anticipatory obedience and challenge that power, whether those are litigants going into court, whether those are citizens going into the town halls and holding the representatives feet to the fire or frankly, whether those people are Alex Pretty and Renee Good, who model for everyone or what it looks

like to stare down the face of authoritarianism and demonstrate how not to be afraid. And in that case, making an incredible ultimate sacrifice for the American people. But when they do that, when people like that do that, and they're backed by a broad and diverse coalition of the rest of society. And we saw this in Minnesota right after the horrible killings of Renee Good Nowx, pretty. You saw 70,000, Minnesota and brave, negative fortune degree, whether to get out there and

and get their backs. And when you see that, when you see hundreds of businesses shut down, people pull their kids out of school, the entire state of Minnesota say, we're going to get their backs. Then all of a sudden, the cloud of fear left in the people inside institutions feel that they actually can do their jobs. And that's when you see Congress doing its job and the courts doing their job. And then power gets disrupted. And so there is a cycle out of this. But make no mistake,

what Trump is trying to do here is he is trying to use fear and intimidation to get institutions to not play their checking role. And it's our job to reverse that cycle. And look, I'm confident that we as a country are up to it, that we are doing that, that brave people are leading the way, that everyone else is getting behind them. And we'll do it here, even as he rattles the saber,

as the way he is doing. And you know, the other Achilles heel, but he has, is just the incredible

corruption, which is, which is animating people to get out in the streets. And you know, as you know,

brings out, it cracks down around the world. It's when that corruption just exposes them as vectors, as the vectors that they are. Right. Because, you know, obviously the countries divide it on a lot of things. But corruption is a pretty unifying question. People really, really don't like

“the kind of rank corruption that we are seeing right now. And I think we are only seeing some of it.”

So as more of it is exposed, I think that the reaction will sort of reflect the displeasure. And let's see his moment to note, not just what you know, which is the sort of, when they are called, the Dildo, right? Which is one version of the group. You use that properly, yeah. I mean, you know, I think I'm trying to channel here. I have the Dildo. I'm going to challenge the Dildo when she comes back to come up with a phrase for the other form of corruption we're seeing

right now a lot of, which is, every time Trump says something, with the administration does something, especially with respect to Iran, Mr. DiMuso. You were seeing massive movements in prediction markets, where it looks like people either inside the administration or friends are connected to the administration are betting massive amounts of money, seemingly knowing what Trump is going to say or do and making enormous sums by the leaking of this confidential information. So Leo, when you get back,

“we're going to need a phrase to capture that level of corruption because it is absolutely insane,”

the level of corruption in there. And it's, I'm glad you brought it up and we just sort of have to cannot emphasize it enough. So we're going to turn to the Supreme Court, and we have a lot of scotists to cover. I'm going to just briefly mention the two opinions that we got last week. I'm none of the

very biggest ones we've been waiting for, but first, Riko versus United States, the court in an

eight one opinion authored by Justice Gorsuch, held that an individual who obskons during a term of supervised release, doesn't thereby extend their term supervised release. There might be other ways of dealing with individuals who violate supervised released terms, but automatic extension is not one of them. And then Cox Communications versus Sony, a Justice Thomas opinion for a unanimous court that sided with internet service providers against music labels and publishers who had said

that those providers hadn't taken sufficient steps to guard against and also respond to the downloading and distribution of copyrighted music. Okay, lots to say about those, but we have no time. So we're going to move on to oral arguments. And we're going to mostly talk about Watson versus RNC, a challenge to a Mississippi law that allows the counting of ballots cast by election day, so long as the ballots are received within five days of election day. More than half of states allow at least some

counting of ballots that arrive after election day. So obviously, this case is about much more than just Mississippi. The challenge was brought by the RNC and the State Republican Party and in the Supreme Court, they were joined by the Trump solicitor general, also again, arguing against the Mississippi law. Ian, what argument are they making against this Mississippi law? Well, I'm going to do my thus to give you the argument, even though it's entirely bunk, but I'm going to do the argument.

They're basically saying that there's three federal statutes from the late 19th, early 20th century

that basically say that elections for presidential electors for Senate and for the House shall be held on the first Tuesday after the first Monday in November, what we know to be election day every two years. And what the with the RNC is basically saying is that means that all ballots have to be completed, the cast received a by election day because election day means nothing can happen after it. And therefore any ballots that are received after election day are in violation of that statute

and camp count, even if the states make a provision to do that, which Mississippi did, during COVID, right? Because during COVID, a lot of some states already had provisions that allowed for mail ballots to be received after election day as long as they were cast and mailed and postmarked before election day, but some states like Mississippi made that adjustment during COVID and the RNC is saying no, you can't do that. And you said Ian, what we could look really know is election

“day and that that's what this is about, but actually the statutory term is the day for the election”

and that's the first Monday after the first Tuesday in November every other year. But that somehow

the day for the election pre-empts by its own force, all of these other state laws that, you know, provide in various ways for people to be able to vote in response to lots of different background conditions. And it just seemed as a textual argument that like these spare words pre-empted, just like massive numbers of state laws, just seemed so a textual and also in such tension with the Constitution's basic allocation of authority to the states to act as the primary

regulators of elections that the initial challenge wasn't taken very seriously by a lot of people like including us on this podcast, it seemed like even the fifth circuit wasn't going to embrace this outlandish argument. But alas, it did. And even more concerningly, there was just like much more openness to this argument last week than I expected. What were your top-line reactions to the argument, sort of with, you know, kind of the stipulation, which we share, which is that

this is a bad and borderline frivolous argument, was I alone in thinking the court was pretty

break it down this way. So the three liberal justices, Kagan, son of a y'r and Brown Jackson, we're clearly opposed to the RNC's argument. And the three kind of wildly crazy right when Justice Alito, Thomas and Gorsuch embraced pretty much clearly the argument. And so as with a lot of cases, the question is, what are Kavanaugh and Roberts and Barrack could do? And that was the question. I think of the three of those, the one that seemed most open to the RNC's argument was Brett Kavanaugh,

I think that Barrack and Roberts were a little cageier and harder to see where they're going to go. So bottom line is, I don't think we know how this is going to come out. Now, I share, however,

your reaction of like, but this is not a hard case, right? So as you know, first, just start with

basic constitutional principles, which is the constitutional allocates to Congress, the ability to set the time-place manner of elections, and then everything else is delegated to the states.

“And I wouldn't even put it differently. It gives the states the power, so that's why it's a matter”

in Congress can override. Yeah, Congress moved right, right? Yeah, with federal elections. That's right. And Congress enacted these statutes back in, you know, in the late 19th, early 20th century to solve for two problems, basically. So problem one was back then when there wasn't a national day that elections were held, you had a higher holding elections on one day, you had New York holding elections on another day, and by holding them like a higher held its election, everyone voted.

They announced the winner, and then the people in New York knew the result in Ohio, and it influenced how people in New York were voting. That was one problem. The other problem you had is that people would go vote in Ohio, not a lot of people, but there was a concern, some people would vote in Ohio, and then maybe, maybe honestly, like then moved New York and then the election was held in New York, maybe they would vote in New York. So called that floaters is what they were called. And so Congress

basically didn't want that to happen. And so he said, like, let's basically do this at the same time.

“Interestingly, and this is really court of the argument, is during the Civil War,”

the Union and states allowed for soldier serving in the Civil War to cast male ballots and allowed for those male ballots to be received after the sort of the day of the election. And Congress was fine with that. Congress didn't address that at all. When it passed its statutes that we were talking about, it didn't address that at all. And then more recently, more importantly, and we actually with the campaign legal center filed a brief in the case,

making this point, which is we in the campaign legal center were intimately involved in helping Congress enact what's called the Electoral Count Reform Act in 2022, which was a piece of legislation that Congress passed on a bipartisan basis, President Biden signed into the law, that tried to correct for some of the ambiguous in the original Electoral Count Act, which President Trump in 2020 tried to use to say things like Mike Pence, the Vice President,

can decide the election, right? That obviously was not true, but the statute was poorly drafted. And so a bunch of senators got together and said, like, let's clarify the statute. So in 2022, after the election of 2020, Congress looked at all of this, looked at states that were allowing ballots to be cast before election day received after election day and was totally fine with that. Could very well have fixed this problem and said nothing? Or if it thought it was a problem,

it didn't think it was a problem. It didn't think it was a problem. And importantly, now let me get to your kind of alarm at the case, is what was alarming about the case,

is you had Justice Alito and Justice Kavanaugh, basically channeling info wars, right? I mean,

they were basically saying, well, wait a minute, there's like all this concern about sort of like rampant mail ballot fronts. Like no, there's not all those concern about merit, but no ballot front. There's a president who lost the election and is making up conspiracy theories to sue his ego about it. And that's being trumpeted in kind of the corners of right wing media. And, you know, Justice Alito and Justice Kavanaugh are like taking that right into their veins.

And then using it as justification for sort of constitutional interpretation, when if Congress was concerned about that after the 2020 election, it had the opportunity when it passed this area to address it. And it did it. And that's pretty much game set match, right? Yeah. Congress has the ability to override states here. They didn't do so. Otherwise, states get to decide and to story. Yeah, I totally agree. And I want to come back to play a couple

of clips that do, I think, reflect this sort of brains having been pickled by sort of too much immersion and right wing kind of media ecosystems that I think you're right that kind of a leader in Kavanaugh in particular seem to be afflicted by. But okay, so let's maybe just drill down

“on a few key sort of themes that I think are implicitly what we were just talking about. And so”

you have a little text in a statute. It clearly doesn't sort of in particular in the context of the history and the other statutes in particular this 2022 electoral count reform act that you were talking about in. But the text we have pretty clearly doesn't resolve this case. And so these of out textualists had to kind of look elsewhere if they kind of wanted it at least float the

but not really the history in you were talking about but a very sort of convenient and selective subset of the relevant history. So there was an acknowledgement that sort of elections today

look very different than elections when Congress enacted the first of these laws in the

1840s and then you know the sort of subsequent laws in the ensuing decade and centuryish. But so the kind of selective use of the history included things like saying, well the lack of history on absentee or male imbalance being counted after election day. So we don't have like a long history of this or an early history of this contemporaneous with the enactment of these early statutes that that is somehow significant. But then the absence of history that is analogous to other

common voting practices today actually doesn't matter. So think about things like the use of touched green voting machines or the secret ballot itself. Like we actually don't have historical practice that supports those practices. But there's no interest in challenging them. And actually

“here's I think maybe another kind of more on point sort of piece of selective reliance on history.”

And that is the lawyers all concede in this case that there's a common historical practice, which is to assess a voter's qualification at the moment they cast their ballot, like determining whether this ballot can be counted. But the federal government and the RNC are totally fine to allow the state to reject ballots after election day. So long as the ballots are cast on or just buy election day. So it's not clear why one that is the casting has to

happen by or on election day. But the other that is the challenging can happen after election day. If both were elements of kind of election practice at the time that the relevant laws were enacted, not totally clear. We also just got some I think pretty dubious characterizations of the historical record in particular by this research general John Sauer. So to my or really pressed on that. And then there's also something that I want to return to from an exchange

that we already had in which is kind of changing the text or even inventing text. And that is on Alito's part. So again, you know, the relevant statute that sort of the key one that we're talking

about talks about the election being Tuesday next after the first Monday in November as the day

for the election. So Sam Alito thinks he has this big gacha question for the state. So let's play that clip here. We have lots of phrases that involve two words the last of which the second of which is day. Labor Day Memorial Day George Washington's birthday in Independence Day, birthday an election day. And they're all particular days. So if we start with that, if I have nothing more to look at, then the phrase election day, I think this is the day in which everything

is going to take place. And we're almost everything. So I mean, this maybe would be an okay point, not, you know, sort of a winning one. But maybe it will keep going if the statute said election day, but it doesn't even say election day. It's the day for the election. I wish that I could give Sam Alito some friendly advice, which is if you're going to be really smug and cocky about your actual argument, it's best not to invent text. Thank you from your lips to Sam Alito's ears.

It's also the case that like, you know, election day, even if election days were the phrase in the statute, like, it just isn't the same thing as throwing out the phrase like my birthday, because I think in part, based on his idea that election day is just a day, like these other days, my birthday, they're pretty clearly couldn't be early voting either, which maybe he would be fine

“with, but like, is I think a really, really important, and I mean, maybe fatal outgrowth of the”

challengers argument here, but maybe let's come back to that. Well, not to belabor Sam Alito's invention of the statute, but like, even my birthday, right? I mean, Washington Lincoln's birthday is actually on one day and honored and celebrated on another day. We both know this plenty of times when like the kids birthday us on Thursday, but you hold the party on Saturday, so like, evenly, this argument doesn't really work. Like, we do all sorts of things, we're like,

wow, we're going to do this on this day and this on this. So, even if the statute said what you said, but I want to linger for a minute on your point about early voting, which is, you know, this current challenge, the Watson challenge, there's 14 states in the District of Columbia that currently allow mail ballots that are postmarked before election day to receive that election day. If they were to sign with the RNC here, that's going to up and vote in practices in 14 states.

And to your point, it's very hard and sour wasn't able to really do this at our argument,

to distinguish why this argument wouldn't apply to early voting as well. And a hundred million

Americans vote early. You're talking about totally upending voting practices in this country.

“Let's just be clear that's what they're trying to do, but important for listeners. However,”

the case turns out, the best way to solve for whatever they decide is mail your ballot at least seven days early if you're mailing your ballot. And we need to start talking about that now because if they do up and mess, I know you know we may want to talk about the percent point of this,

just going to have to cast their mail ballots in plenty of time for a ride for election day. And that means at least seven days in advance, and we should start talking about that now. That's right because, you know, November is not that far off, and it's I would not put it past them, and we both can talk about Brazil, but to really fundamentally upend the way voting has been administered in a lot of states now for years. And if that's a case like that has to be the response,

but I don't want to go too quickly to the response and let them off the hook for the kind of the truly insane thing that they are considering doing. And you know, when it comes to kind of early voting, they sour try to do this, Clement, for the challengers try to do this, which is just to say, don't worry, you're pretty little heads about it. We're not challenging that here, but the logic of their argument doesn't allow us to put it to one side. I don't think,

which I don't want to make the maximalist version of their argument for them, but I don't think that we can pretend that if they say election day is a day, then they can conveniently decide that that matters after the election, but not before the election. If it's a day, it seems like it's just one day, and that would throw, at least into question, the entire edifice of early voting, which is how many states, in particular in the West, like conduct the majority of their elections,

and increasingly large number of us, have voted now for many cycles, and so that they're even entertaining the possibility of introducing this kind of chaos, even in steps, even if not all in

“one fell swoop, is just like a stunning indication of, I think, the kind of unlimited hubris”

that afflicks this court majority at this moment in time. It's insane that we are even talking about this as a serious challenge, and maybe just to say kind of one more thing about the kind of epistemic universe that it's clear that some of the justice is now in habit, that is them sort of seeming like they're just kind of regurgitating maga talking points about voter fraud from

the 2020 election. Let's just play a couple of clips that I think illustrate that point. So the first

is Justice Alito? Do you think it's a legitimate for us to take into account Congress's desire, Congress's passage of the election day statutes for the purpose of combating fraud or the appearance of fraud, and will, and some of the briefs have argued that confidence in election outcomes can be seriously undermined, if the apparent outcome of the election, on the day after the polls' close, is radically flipped by the acceptance later of a big stash of ballots that

“flipped the election or, yeah. And here is Justice Cavanagh. I think Justice Alito referred to,”

and I think this quote refers to the appearance of fraud. And is that a real concern? Is that something we should be thinking about? Confidence in the election process just curious how we factor that in here? So, I mean, I think we've sort of covered this, but just to be really, really clear, is there any chance these statutes passed away before Trump started poisoning everyone's brains? Somehow reflect this fraud fear or are they just trying to sort of use this, you know, 2020 election

denial gloss to understand statutes that are about something totally different?

Yeah, I mean, so first off, no, these statutes were not a response to the big lie. As we talked about

earlier, these statutes were dealing with like unique problems from the 19th century. They had nothing in two with a big lie. And then more importantly, the argument that the R&C making is making isn't even responsive to an actual fraud problem today, right? There's just not any evidence, and the R&C didn't put forward any evidence, that there is some fraud problem with people who are casting mail ballots that are being counted, that are being received after election day,

somehow allowing for fraud, right? There's just no evidence of that. So, this is a solution in search of a problem, which is basically a lot of the sort of Trump kind of election corruption situation, which is they are inventing phantom problems, and then proposing solutions to those phantom problems that just so coincidentally are designed to inventage the voters that they like and

disadvantage the voters that they don't like. And the fact that the judiciary is now basically being

“co-opted into this sort of big lie architecture is I think a notable and troubling development,”

because really, you know, you have a six justice, very conservative majority that, you know, going back a couple of years ago was a six justice majority that was conservative in the ways that we would define that term in sort of the pre-2016 era, like hyper-federalist society, very much on the far right when it came to issues of gun rights and abortion and, you know, sort of environmental regulations, but they generally weren't maga, Trumpist, kind of autocratic,

you know, populace. And now you're starting to see certainly with the leader on Kavanaugh and the

Anna Collins outside, they're the people inside them, and you know this, you clicked on the court, the justices are actually human beings. I know sometimes it's surprising, but indeed they are actually human beings, and they live in the world, and they sit in the soup of our culture and some of them, Samolito and Brett Kathina, sit in the soup of the right-wing Trumpist movement that is now curdling, as you put her pickling, the brains are so much this country. Remember,

Samolito's hanging upside down flag outside of his house on January 6th, right? They're living in this world, and you're starting to see them shift from pre, well, Salida, Alida's been long there, but Kathina shift from pre 2016 conservatives to Trump manga conservatives, and that is a notable

development in terms of where the court is. Okay, first, I have to correct her Martha Ann Arrager,

she was actually the flag hanger, not Samolito. But it was the Alito, it was house Alito.

“Yeah, and I think you're right about this sort of, but we have seen in terms of the evolution of”

Brett Kathina has just been like incredibly disturbing and really, you know, stark in the last few years. So the fraud, you know, they kind of manufacture of this fraud objection so that you can then offer a solution to a non-existent problem. There's many troubling things about it, but also one thing that's troubling is that there's also this suggestion that it's not even necessarily just about fraud, but somehow the kind of like appearance of fraud, which is self-fulfilling,

if they're going to suggest that that is a legitimate thing for people to fear. But they suggest that confidence will be harmed, confidence in election outcomes. If, you know, there's going to be some change between the apparent winner on election day and the ultimate winner after kind of counting happens, but their theory doesn't even actually address that because they're not challenging the counting of ballots received on or by election day, which many, many states do, and maybe that's

another sort of like second order challenge they might bring, but right now their theory doesn't

even address that problem. And so again, it just seems like cover to disenfranchise voters that they think are not going to be their people. If the Supreme Court wants to build confidence elections, it can come out and say all this big lie nonsense is about, you don't need to believe it. That would do it. Yeah. I'm not going to hold my breath for them to do that. Okay, a couple more clips I want to play. One, here is Justice Kavanaugh, basically making clear

that the kind of the meanest thing you can do, this is sort of like recurring bit here, is to sort of call something what it is, and that is to call disenfranchisement disenfranchisement. So let's play that clip here. Would you say that the states that require receipt by election day are disenfranchising voters? No, you're not, they're not your honor. I mean, a reasonable ballot deadline does not do that. I would ask risk just, there are the practical barriers for those overseas

military voters. But for the citizens who are not within that class, you would not use the term disenfranchisement to say, it has to be received via election day, November 3rd, rather than,

“I hope it gets to be five business days, November 10th, you would not use that term to describe that, correct?”

And I'm going to just try briefly that channel lia's reactions to the repeated invocation of kind of consummation of an election. So I'm going to, again, channel lia by voicing her coining of the phrase, the consummation court, which is just way more than just the tip court. And I guess we'll just leave it there just to say that they are making sort of puns in anyone knows, just kind of too subtle. They just like write out there and talk about consummation.

Let me briefly ask about Perselle, which Kavanaugh asked about, and that is the case that's understood to create a rule against changing election procedures to close to an election. Might that be a problem for a ruling that really changes election administration that comes down in June and would go into effect for the November midterm elections. Kavanaugh asks, "Last one, if you were to prevail here and say our decision was issued in June,

Perselle issues with the states for the upcoming fall elections?" I don't think so. I think this issue because it really sort of just deals with the state and the

“receipt of the ballots. I think June would give them plenty of time and remember, it only affects”

the issue, only affects the general election. It doesn't affect primaries. So like the only thing I can even think of that would raise like a lurking problem is you won't want the states if this court decides in our favor, you won't want a state absentee ballot that's misleading about the receipt deadline, but those deadlines, those ballots have to go up 45 days before the general election. So what's that? Like mid-September or something, so there's plenty of time.

I don't think there's a Perselle problem. Thank you. So Kavanaugh doesn't seem disagree. Like Ian, what did you make up for? Perselle is one of the most nakedly results oriented doctrines

in modern election law and this exchange really crystallizes it. I mean, the rule is basically

disrupts voters. But when you watch how the court actually applies it, there's a very clear pattern.

It's always too close to an election to protect voting rights. It's never too close to an election

to restrict them. And that's pretty much how this comes down. Another part is in gloss on it is just like it's you know, it's never going to be a problem if it's going to help or publish candidates and it's always going to be a problem. It's going to help Democrat candidates. Either way, like in disenfranchisement of the population, like should be something that's been court cares about, and it does not seem to be a particular motivator. There's also this, I thought, real asymmetry

in terms of the concern of the justice is not just sort of from the Perselle perspective, but kind of, you know, the implications of actually embracing kind of the the party's theories, sort of some of the kind of, you know, consequences or or or or sort of slippery slope issues that we've been talking about. Here's what I mean by that. So at various points, the

justice has came up with hypos that would result from adopting the Mississippi's position that,

you know, they are allowed. Gorsuch was really into his hypos. Yeah. Oh my god. There's this fixation that Gorsuch had in particular on this idea of recall, like what if people who mailed their ballots in requested them back after election day and then resent them in? I got to say, Gorsuch lost them. I mean, he was making up all sorts of weird things about the Cookie Monster eating ballots and like, I was like, what is this guy talking about? Like these are not actual things that are taking

in the world. These are not, there are things out there that they want. This is not one of them. So so let's play just a few of kind of Gorsuch and fixating on this recall issue. I want to ask you

“about the recall problem. That doesn't preclude recall. But where does it say recalls not permitted?”

If recall could happen, that would be a problem for your position. So somebody,

that my hypothetical happens and everybody recalls their ballots. Would it be illegal for a state

to permit absentee voting, but permit recall? Is it possible for a portion of Mississippi's statue to be unlawful, not just go with me here? A portion of Mississippi's statue to be unlawful insofar as a potentially permits recall? Okay, so we'll stop there but actually there were more that was a subset. And again, to be clear, this is madness. It doesn't happen in Mississippi. Law doesn't allow it. This apparently didn't even come up until very late in the litigation. Other absurd

hypos like this one? Why can't a state say, how about a timestamp video showing that I voted on election day? Here I am filling up my ballot and then my brother or maybe some aggregator of ballots brings it in a week or three later. As we saw, they were very concerned with these outlandish possibilities that would sort of follow from embracing Mississippi's theory. But when it came to the kind of implications of embracing the RNC and federal and the federal government's theory,

they just sort of dismissed and brushed aside these very serious questions about whether the theory would call into question early voting. Since at least according to Sam Toledo election day is one day, we've already sort of covered this but I just really worry that they could say something here that in the next case allows for a successful challenge to even early voting which would just dramatically change and reduce participation in elections. I mean, that's clearly where

“the implications lead. But I think the more important point here is that the justices shouldn't”

be involved here. As we said before, like the state set the time face and manner of elections, Congress has the choice to override it. There's no role here for the justices and I think it's illustrated by the fact that they have no idea what's actually going on on the ground. Right? And so of course it's just hypotheticals where like in La La Land for anyone who actually has involved in running elections, the justice just really don't know how this works. And they're complete

attachment from the fact that there's actually no fraud that's been documented with respect to male ballots that are postmarked before election he received after, just suggest there's some distant from the facts on the ground that they're just not in a very good position to assess any of this. So they end up talking out in the left field and that's why they really there's just no role for them to play here. Congress has role as we said in the brief. Congress had an opportunity

to deal with this. It did it. That's that end of the story, leave it to the states. If the danger as we've been talking about this case is at least in part that it reveals and kind of might further baseless narratives around early voting and fraud, it also clearly connects to broader themes regarding the upcoming midterm election. And as I mentioned up front,

“product democracy just came out with a pretty alarming but I think really important report on”

that. So can you just talk about that for a little bit in? Yeah, I mean, look, we're living in an era in a moment where authoritarianism was on the rise around the world. Obviously, we're experiencing it here at home. And what you see is a very clear pattern across the world. We're autocrats do seven things everywhere in the Smith democracies, right? They politicize independent institutions. They spread disinformation. They aggrandize power in the hands of the executive. They

quashed a cent. They scapegoat vulnerable populations. They stoke violence. And then, of course, they corrupt elections, right? They hold elections, but they tilt the playing fields that

of intrenching the autocrats of power. And we've obviously seen attempts at that here in the

United States, right? January 6, 2021, where Trump refused to accept the results of an election inside of the violent insurrection on the Capitol. And there's a pattern here in how Trump does this.

“And I think we should anticipate that that is going to play out here. And that pattern is to”

invoke Sesame Street and the letter of the day, the letter of the day, the letter of the day is deep. Okay, there's three deus here. It's deceived, disrupt, and deny. And that is the president's playbook. And, you know, we saw in January, we saw in 2020, which when the president lost that election, he tried to deceive people with the big lie into thinking that the election was stolen, right, that they were, they were stealing the election and Philadelphia and Milwaukee and Detroit,

yet a shutdown of an accounting. But he actually only persuaded that 28 to 32% of the population with his big lie immediately, we said it, according to the SNAP polls taken out of the time. Now, on the one hand, that's actually a largely large number of people, but on the other hand, it wasn't enough, because in our decentralized system, where there's no national election authority, a president can't steal an election on their own.

Thanks to the, you know, the founder's vision, we have thousands of elections around the

“country. And if the president wants to steal election, the president needs accomplices”

throughout the system. The president needs secretaries of state, governors, members of Congress, judges, county election clerks. And after 2021, the president claimed the actual stolen tried to deceive people and thinking that and reached out to all these accomplices, Brad Raffin's burger, the Republican leaders of the state assemblies in, you know, the blue wall states, the federal courts, all of them with the exception of 147 Republican members of Congress, said,

yeah, no, yeah, there's no, we're not going to do that. And so the president understands, he's got to up that number of people who think that there's something corrupt going on in order to get a couple of says willing to actually join him and try to steal the election. So he's going to engage in deception. He is going to try to convince people that there's something wildly on torturing. He's going to, you know, they're seizing ballots in front of the county,

they're going to come out at the sixth sense and see, we see dead people on the rolls. You're going to see Nicholas Maduro cop some police and Venezuela interfered, you're going to see all, you know, releasing of, you know, all say gathered conspiracy theories saying, you know, there's dead Chinese voters on the rolls, all this stuff. That's going to be to convince people there's something wrong. So you can enter the disrupt phase, which is where the president

tried to get these accomplices to change rules to tell the playing field. He's trying to do that with the RNC in the case we just talked about. They're trying to do it by getting the senate to pass the save act. He's going to lean on states around the country to change their voter role in voting practices. That's the disrupt. And if that doesn't work, and the election still turns out the way the president doesn't like, then the deny phase happens, where the president is going

to basically try to deny the results. So that's the three D's to see if disrupt deny. We should

expect that to play out over the next couple months. But there's a fourth date. This is the good news.

“The fourth date is defeated, which is what we're going to do, because we've done it before, right?”

The president tried this in 2020. We defeated it. There was a microcosm of this, as you may recall, in North Carolina in 2024, where there was a state Supreme Court race at the sitting just as Alison Riggs won by about 725 votes. And the loser, Jefferson Griffin, tried to say, yeah, that's not the result. He actually said the rules that were in place, that we all agreed on, we're actually not the right rules. We should change them. I coach like six little eight teams

and three different sports of like five year olds and nine year olds. And not once, as a kid on one of those teams at the end of a game that we all said, actually the rules were wrong. We should go back and change rules, and we change rules. We would have won because even a five year old knows that you can't do that. But Griffin tried to do it, and we defeated it there too. So the president is going to try to deceive, disrupt and deny, and we all are going to defeat them. Okay, so then I'm

going to ask you one final question. You know, there was obviously a note of optimism, and I want to ask you to kind of elaborate on that and take a sort of broad view for our listeners of kind of where you think we stand 14 months into this administration in the fight between democracy and, you know, call it a talk or see or authoritarianism. Yeah, I mean, let's hear something in order for an autocrat to take over into democracy, particularly one is robust as the United States says,

they have to consolidate power before they become unpopular, right? Because with our division of powers, the separation of powers, the federal level, the federal separation between the states and the federal government, a president can't just take total control like that because the founders built a system that was designed to check exactly that form of tyranny. So the president is to co-opt all of these other branches, all of these other actors as part of his project. And, you know,

the president had a real opportunity to do that after the 2024 election, even though he won a very, very narrow victory, you could feel it in the air in early 2025 that the general direction was,

oh my God, this guy is all powerful, the country's going that direction and you saw all these

institutions basically just hand him the keys and say we will do it every you want. And he had this

a victory that was not even a majority of voters in 2024. He would have lost the election,

“but for 230 votes in three states. And he acted as if he had a 60% majority mandate. And he just did”

things that were wildly unpopular. And he actually became unpopular before he had finished consolidating power. And as we said earlier, according to Wild Fox Newsball, he's wildly unpopular. And so you were now starting to see the institutions say, yeah, we're not going to go along with that. I mean, the Senate right now is refusing his demand to pass the save act. At the time that we're

recording this, the Senate has basically funded all of the H.S. at SEPP, Rice and CBP. They are just

no longer the institutions are no longer doing unmask. What the president wants, he has become unpopular before he consolidated power. And that is the death note. I think for not a cop trying to take it over. So fundamentally, I think we, and by we, I mean, the forces of democracy and freedom, we are going to win. We're going to win this battle for democracy in this country. Fundamentally believe that. We're going to win it because we're right. We're going to win it because the facts and law on our side. We're going

to win it because freedom is a natural human condition that people want. And we're going to win it because the autocrat here is pretty incompetent and made the mistake of becoming unpopular before he consolidated power. But you can track this, you're going to want to know if this is true tomorrow. We just put something up on our protective democracy website. The authoritarian action watch, which is like kind of the weather app, if you wake up in the morning and you're like, what's the weather

today? It's a new, it's a new thing on the site where you can check like what's the weather event in terms of weather democracy or authoritarianism as a send-in. So go on the protective

“democracy.org website and bookmark it and if you want to get even nerdy about it and I know all of our”

strict new listeners want to do that. You can subscribe to our newsletter if you can keep it.org where our team is updating you on this battle between democracy and authoritarian and a regular basis and you can hold me to my word. We're going to win. I love this. So when you're deciding whether you need to bring your authoritarianism umbrella out with you when you leave the house in the morning like check the app to figure out how the weather's right. It's a hard rain going to fall or not.

We're going to take a quick break, but I'll be back with a Laura Mukherjee. strict scrutiny is brought to you by fast-growing trees. Did you know fast-growing trees is America's largest and most trusted online nursery with thousands of trees and plants

and over 2 million happy customers? They have all the plants your yard or home meets,

including fruit trees, privacy trees, flowering trees, shrubs and houseplants, privacy trees that reminds me of a constitutional right I used to have,

“well at least their privacy trees now and they're all grown with care and guaranteed to arrive healthy.”

It's like your local nursery but anywhere you live with more plants then you'll find anywhere else. Whatever you're looking for, fast-growing trees helps you find options that actually work for your climate, space and lifestyle. Fast-growing trees makes it super easy to get your dream yard, just click order, grow and get healthy thriving plants delivered right to your door. Their alive and thrive, guarantee, promises that your plants arrive happy and healthy.

No green thumb required, just quality plants you can count down. Plus you can get on-going support from their trained plant experts who can help you plan your landscape, choose the right plants and learn how to care for them every step of the way. Okay, I've talked about for on the show. How we had to rip up our entire backyard when we moved to Michigan. And then, even worse, we had to figure out what would actually go in there and fast-growing trees was so helpful

and giving us options. When we just enter in information about the extent of the shade, the kind of shade what else was in the yard. Oh, and I could also tell them I needed something super basic that required a very basic level of care because when it comes to plants, I'm like the Brett Cavanaugh of plants. I'm not exactly great with that whole thing. Plus, I knew if things went wrong, their experts would be there to guarantee the plants and support our needs.

Spring is spring, even here in the Midwest, and that means now is the best time to plan. Fast-growing trees can help anyone get their home and yard, ready with spring planting essentials, entries and plants guarantee to thrive. You don't need a big yard or a lot of space, you can grow lemon, avocado, olive, or fig trees indoors. The experts at fast-growing trees have curated thousands of plants for every climate and growing zone so you can find options

that truly work for your yard. Right now, they have great deals on spring planting essentials,

up to half-off on select plants and listeners to our show get 20% off their first purchase when

using the code strip at checkout. That's an additional 20% off better plants and better growing at fast-growingtrees.com using the code strip at checkout. Fast-growingtrees.com code strict. Now's the perfect time to plant. Let's grow together. You strict to save today. Offer is valid for a limited time, terms and conditions may apply. Strict scrutiny is brought to you by disability law united. The history of oppression in this

worthy and unworthy of care and inclusion in society. It's been racial, it's been gendered,

“it's been xenophobic, and it's all been ableist. The idea that a body which deviates from some”

eugenic ideal is worse is the lens through which our nation's laws have used disability to pathologize, disenfranchise, and erase people for being disabled, non-white, non-sists, non-hettmail, or neurodivergent. A grab bag of ways to say their lives mean less. Disability law united works to turn that on its head. Disability is their superpower. They bring impact litigation against systems that harm vulnerable people by using disability

law tools. Disability claims are uniquely powerful civil rights claims because they put the burden

on systems to meet people where they are, rather than forcing vulnerable people to conform to systems that were designed to exclude them. Disabled individuals are entitled to reasonable accommodations so that they can participate in public life, and that means they have powerful cases when those rights are violated. They specifically work to vindicate the rights of disabled people in policing encounters and incarceration in the immigration system and facing climate disaster.

They believe that by holding these systems accountable for their treatment of disabled people, we can dismantle harmful practices and build toward an inclusive, just future for all of us. When we build a society that leaves no one behind, we all benefit. Please go to www.dlunited.org to learn more and consider supporting their work with the financial contribution. For the second half of today's show, I'm delighted to be joined by a Laura Mukherjee

who directs the Immigrants Rights Clinic at Columbia Law School. We're going to talk about the

“arguments that court heard last week in an important asylum case and then turn to the birthright”

citizenship case, which will be argued on Wednesday. Laura, welcome back to strict scrutiny. It's great to have you. Thank you so much for having me, Kate. First up, we're going to talk about Mullen versus Othro Lotho. That at least is what the case will be called when it is decided because if you listeners missed it, Mark Wayne Mullen was confirmed last week as DHS Secretary, even without the support of Homeland Security Committee,

Chair Rand Paul. In this confirmation that deciding votes came from two democratic senators, John Fetterman from Pennsylvania and Martin Heinrich from New Mexico. Also, Mullen voted for himself like for his own confirmation, which I hadn't even noticed, but like, how are they allowed to do that? That is a rhetorical question not one for you, Laura. Okay, so back to the case with the new caption. Can you briefly remind our listeners what the case is about? Sure, so this case is about

whether the United States will continue to fulfill its promise to be a beacon of safety for asylum seekers. In the wake of World War II and the horrors of the Holocaust, Western nations promised

never again. That we would never again return people fleeing to the United States and other

Western countries to be persecuted, to be killed based on their race, religion, nationality, membership in a particular social group or political opinion. And Western nations made those promises to one another through the refugee convention of 1951, the UN refugee convention, as well as the 1967 protocol, which expanded the refugee convention's protections to people around the world, and that promise was later codified into U.S. law with the passage of the refugee act in 1980.

And an issue in Al-Ottorolado is what happens when an asylum seeker comes to a port of entry in the United States. That means an official border crossing. If an asylum seeker expresses fear of persecution on account of one of the five protected grounds where I've agnized in both domestic law and international law, will they get a basic fear screening? It's not a guarantee that they would be allowed to see in the United States, but just a basic threshold screening, or can the United

States completely block an asylum seeker from making any fear claim in the United States at all? I'm so glad you started there because that I think kind of the the historical and international background

is critical here. And despite the valiant efforts of Sonya Sotomayor to remind everyone during

this argument of that backdrop, that felt a little lost on some of the justices during this argument, but that really is what is at stake. This commitment made through a treaty and protocol and federal statutes to facilitate the at least making of claims of asylum against the backdrop that was the horror of the second world war. So that really is what the case is about at a broad level.

“And I think that context is just critical. The other thing you said at the end that so important is”

really all that's at stake is not whether people have to have their asylum claims favorably adjudicated whether they're going to get to stay long-term in the United States just whether they will be able to at the threshold make a claim of asylum. And that is just an enormously important

then in terms of the kind of statutory implementation of these background principles, like what

“does that look like and sort of what are the justices debating in terms of the kind of statutory”

question in the case? Right. So for decades the United States has offered people at the Port of Entry a basic fear screening as required by domestic law and international law. So about 10 years ago this practice changed. So in 2016 there was a rise in the number of Haitian asylum seekers at a Port of Entry called Son Ecythro which is just south of San Diego and at the border of Tijuana in Mexico and in 2016 the Obama administration implemented what it

euphemistically called metering which meant that instead of being able to approach a Port of Entry

and seek a basic fear screening an asylum seeker would instead be turned away indefinitely and

they were turned away indefinitely by armed CBP agents, customs and border patrol agents as well as Mexican immigration officials and in 2017 this metering policy was expanded across the southern border by President Trump's administration and in 2018 it was distilled into a memo, a policy memo that made it official government policy to engage in metering and that is what I'll alter law though the plan to organization in this case is challenging and the statutory question here is

what does it mean to arrive in the United States and justices had different views on what it means to arrive in the United States a number of the conservative justices suggested in oral argument that it means that a person must actually set foot in the United States and what the more progressive justice is said is you can't set foot in the United States at a Port of Entry because the ports of Entry are blocked and simply going up to a Port of Entry and asking for

asylum should be sufficient to satisfy the arrive the in the United States standard so super helpful context and also reminder that this is actually something that is not just a Trump administration innovation this actually begins under the Obama administration and then is sort of expanded in the

first Trump administration and you mentioned arrives in that's the kind of critical language in one

of the statutory provisions that allows individuals to at least come in and claim asylum through this initial fear interview that you referenced as the first step right and then if there is a finding that they've made a threshold showing correct me if I'm wrong but at least historically they're able to enter and then a wrong process commences that may or may not ultimately result in there being granted asylum is that basically right? That's exactly right Kate and under a statutory

change in 1996 those arriving at a Port of Entry and going through this credible fear process or subject to mandatory detention so this is in no way of free pass into the United States. Just whether you get to step essentially across the border and start this long process that

“may or may not result in you getting to stay okay so arrives in is I think admittedly kind of”

awkward phrasing right I don't think either side was able during the argument to make the case that that was like the ideal way to say someone shows up at the border they have an asylum claim right that that's not what the language of the statute is it's arrives in and as you were starting to elude to some of the conservative justices, alito and corsage and maybe to a degree bear it really seem to be taking the position that arrives in must mean in right like you're already

in the United States which would exclude people approaching a port of entry to try to kind of start this process I thought just as cake and really forcefully made the case that if arrives in just means in you've created a problem with like superfluity right this sort of legal term of art that just means well if arrives in means in then arrives doesn't have any meaning and we try to sort of assign meaning to every word in a statute and so that's a problem it's also a problem

because there's another provision of the statute that governs applications for asylum by people who are already in the United States if that was the mechanism for people already here to apply for

“asylum what is this separate provision doing so you know I think that all of that because the”

language is just like a little bit unclear kind of in isolation it seems pretty inevitable at least to me that we have to turn to context broader implications etc of adopting different reading so maybe that was something that came up in the oral argument we talked a bit about the backdrop like what the statute responded to but kind of what are the potential like implications and consequences of adopting the kind of competing interpretations on offer sure so if justices

Alito Gorsuch and Barrett's reading prevails then asylum seekers would be blocked from having any opportunity to have a threshold screening if instead Justice Kagan's view prevails and I think

basic threshold fear screening and it's worth noting that since 1917 immigration law has been

“understood to require federal officials to inspect all the non-citizens who present themselves at”

a port of entry whether or not they have yet set foot on U.S. soil so Justice Kagan's interpretation of the statute is certainly consistent with more than 100 years of practice so and I want to actually just play a quick clip from the oral argument in which you saw Justice Kagan take a sort of surprising position in light of a position he had taken in Mondays argument in the Watson case so

let's play first that clip from the Alotro Lavo argument on that question that you made a point on

about why Congress would give better treatment to those unlawfully in the country guess one response to that just when he had your reaction would be we should just interpret the rule in front of us for the statute in front of us by its terms and not try to figure out all the things that might be going on with people unlawfully in the country to try to make it all fit in some perfect world rather we should you know there are lots of issues with people are unlawfully in the country

that but the only issue before us is trying to figure out what arrives it means and now worry about that just want to get your reaction to that okay so against the thrust of that question let's re-acquaint ourselves with Justice Kagan all the sort of the Monday version from Watson picking up on Justice Alito's questions professor piled us and others have said that later arriving ballots open up a risk of why might destabilize the election result of the

apparent winter the morning after the election ends up losing due to later arriving ballots charges of a rigged election could explode the longer after election day any significant changes in vote totals take place the greater the risk that the losing side will cry that the election has been stolen and the quote and my question is my questions one is that a real concern two does that factor into how we think about how to resolve the scant text and the maybe conflicting

“or evolving history here I think Justice Alito referred to and I think this quote refers to”

the appearance of fraud and is that a real concern is that something we should be thinking about confidence in the election process just curious how we factor that in here it really does feel as though there is kind of an asymmetrical or uneven kind of concern for consequences and implications in one context versus the other let me ask you a Laura to talk briefly about whether the case should be before the Supreme Court at all Justice Jackson was very focused on that in her

questions but it didn't feel to me like that was getting a lot of traction with anybody else this case shouldn't be before the court at all the metering policy was ended across the country across the southern border by the Biden administration in November 2021 this is not a live case or controversy that issue is moot the Trump administration's position now is that metering is a

critical tool that they might use at some point in the future but this type of speculative might

kind of question doesn't make something alive case or controversy that belongs before the Supreme Court and yet it certainly felt to me given the lack of interest and even asking questions about whether the court had properly had jurisdiction over this case as though that's very unlikely to be an offer at the court wants to take and it did feel like there was a concerning willingness to go along with this profoundly problematic reading that the Trump administration was advancing

let's shift gears because we have a really important also of course immigration case that the court is considering this week and that's Trump versus Barbara about birthright citizenship that will

“be argued again on Wednesday and I think that most everybody thinks that is the biggest or at least”

one of the biggest cases of the term as you know Laura this is the second case before the court

involving the president's day one executive order reporting to end birthright citizenship so before we talk about this case can you just remind folks what happened in the first case involving the birthright citizenship executive order Trump versus Casa from last year in Trump versus Casa the Supreme Court didn't apply on the constitutionality or the legality of the executive order on birthright citizenship instead the court addressed the narrow question of whether district courts are

statutorily authorized to issue universal injunctions or nationwide injunctions and the court ruled no in a six three opinion the court ruled that a district judge may not issue a nationwide or universal injunctions what the court did leave open is the possibility for individuals to challenge

administrative procedure act and the same day that the Supreme Court issued Trump Picasso multiple

class action lawsuits were filed across the country and the executive order never went into

effect it has been blocked as being blatantly unconstitutional in courts across the country. Right and the administration is before the Supreme Court asking the justices to allow it for the first time to implement this again day one executive order that of all of the kind of savagely aggressive immigration enforcement steps the administration has taken kind of all sort of

“looming over all of them I think is this kind of move on day one to radically break with”

longstanding constitutional views beliefs values that you know individuals born in this country regardless of the status of their parents or US citizens a full stop I'm in that again is this

kind of day one executive order so you have lots of other kind of questions around immigration

enforcement both in the courts and out of the courts and then I think just this hugely consequential ask that the administration is taking which is to the Supreme Court essentially let us completely roll back an overhaul existing constitutional law okay so that is what is sort of pending before the court let us in for the administration is asking let us enforce this executive order ending birthright citizenship so I want to talk about the legal arguments and then

also as we did with all of throw law though turn to kind of practical consequences so I obviously maybe sort of put a thumb on this scale in my intro but Laura can you talk about how dramatic a break with existing law you view the Trump's administrations arguments here to be the Trump administrations arguments are radical and will help the Trump administrations arguments are completely at odds with the text of the 14th Amendment the history of the 14th Amendment Supreme

Court precedent statutes and decades of executive branch practice the 14th Amendment's birthright citizenship clause is clear that all persons born in the United States are citizens subject to certain very minor exceptions and there is more than a century of uniform Supreme Court precedent on this point starting with one Kim Ark from 1898 there is also legislation both from 1940 and 1952 that codifies birthright citizenship into U.S. federal law

there are decades of executive branch practice and then there are the reliance interests of generations of Americans who have come to believe based on our nation's foundational principles after the ratification of the 14th Amendment that all babies born in the United States are U.S. citizens it's part of the history and tradition of this country yeah and I'm glad you use the term

“radical because there has been this I think concerted effort to sort of generate a rushed body of”

scholarship that is designed to kind of create the impression that there is sort of a reasonable debate

about both the history and the kind of original understanding of the first sentence of the 14th

Amendment and I just think that it's wildly dangerous to see that ground there is a very recent and manufactured debate against this very long backdrop of settled understanding and the sort of the break that the administration is seeking would be a truly radical one so you mentioned one Kim Ark which I think is an enormous problem for the administration you might say an insurmountable obstacle and look of course lawyers argue about the meaning of cases the grounds for decision right the kind of

how to read particular phrases and lines of reasoning and supreme court opinions but it does feel to me like a pretty audacious and you know I'll just say frivolous argument that the administration is making that long Kim Ark is not only kind of in Super Bowl obstacle to their

“arguments but actually supports them so can you talk about why that argument that they're I think”

with the straight face offering to the Supreme Court is just so wrong. Okay I agree with you this argument that the Trump administration about Wong Kim Ark is fringe it's radical it's frivolous it makes no sense so what the Trump administration is trying to argue is that the Wong Kim Ark holding was premised on Wong Kim Ark's parents being quote domiciled residents of the United States and this is a sentence from the administration's brief that I'm quoting there's arguing that quote

children of aliens lawfully domiciled in the United States fall within the citizenship clause because their parents owe primary allegiance to the United States not a foreign power and quote so the children born to those who are not what they call lawfully domiciled so what they would

children should not be born as U.S citizens and that is just not the correct understanding of Wong

Kim Ark. Wong Kim Ark is very clear that the citizenship clause should be interpreted to include all children of foreign nationals without regard to parental domicile with certain extremely minor exceptions and those minor exceptions are for children born to foreign sovereigns ambassadors children born on warships and occupying armies but everyone else born on U.S. soil is a U.S. citizen. Okay I'm glad that you offered that rejoinder and I you know we'll see exactly how the

justices kind of talk about Wong Kim Ark in the argument. I'm maybe take you to something else that you mentioned that kind of litany of reasons that the administration is so wrong here is that there's not only the kind of constitutional obstacle but there's also the statutes that Congress

“has enacted and those statutes I think are important for kind of a couple of independent reasons.”

One they're just additional evidence like the kind of executive branch practice that you're talking

about that we have always understood really since the forwarding amendment was added to the

constitution that birthright citizenship was the law of the land but they're also just independent legal commands those statutes from the forties and the 50s so this is not the primary argument that the respondents right the individuals challenging the executive order are making or relying upon but I think it's actually a really good and important independent argument which is that maybe sort of you could put to one side kind of resolving in an kind of ultimate way what the constitution

means but you have these statutes enacted in 1940 and 1952 and the clear meaning and understandings of those statutes preclude this executive order even if you didn't have a

first sentence of the 14th amendment so can you talk a little bit about that argument and I'm curious

if you have a theory about why it's not more foregrounded in the briefing in the case sure key

“I agree with you I think the statutory arguments are extremely important and it's worth noting that”

in the legislative history for both in 1940 and 1952 statutes the drafters of those statutes expressly rejected any domicile requirement by the executive branch committee that drafted those bills and then testified and it support before Congress so the very arguments that the Trump administration is now making about one Kim Ark have been rejected in Congress and via these statutes you know I think that this is not the primary argument that

is being made by the individuals in this litigation because the constitutional question is so core to who we are as a nation and if the Supreme Court decides this case based on statutory grounds alone that gives Congress the opportunity to rewrite the 1940 and 1952 statutes and

“that might be disastrous for the future of our country so it is I think better strategically”

to make the argument on constitutional grounds which are so clear and it's shocking that this is in dispute and before the Supreme Court right now strict scrutiny is brought to you by the ACLU. On April 1st the Supreme Court will hear arguments in Trump versus Barbara the ACLU's case challenging President Trump's attempt and birthright citizenship. Yep that's coming up and it's coming up now. The ACLU and partners will argue that the president's executive order violates the constitution

over a century Supreme Court president and a longstanding federal statute. That's true. The 14th Amendment kind of speaks for itself the Constitution not the president defines who is a citizen. The ACLU is proud to defend the integrity of our Constitution and protect birthright citizenship for every generation to come. You can learn more at ACLU.org/Barbara. It's easy to fill overwhelmed and even easier to fill power with but we are neither.

I'm Stacey Abrams and on my podcast assembly required I take on each executive action legislative battle and breaking news moment by asking three questions. What's really happening? What can we do about it? And how do we keep going together? This is a space for clarity, strategy and hope rooted in action. Not denial. New episodes of assembly required drop Tuesdays, tune in wherever you get your podcasts and on YouTube.

minutes ago make I think quite clear. The court is uneven and it's articulated concern for the

“consequences of its rulings. But I think it's important that people appreciate what it would mean”

on the ground for Trump to win here. There's something I've heard you talk about before but I think it can't be emphasized enough. So what would that look like? If this executive order goes into effect, it would affect every person giving birth in the United States, every family giving birth in the United States and every newborn in the United States. Every time a person is in the hospital giving birth, the mother, the father, the parents would have to prove whether they are

lawfully present in the United States, whether they are U.S. citizens, whether they're lawful permanent residents or whether they have some other kind of immigration status or no status at all. Hospitals are not equipped in the delivery room to be checking people's passports to be checking people's birth certificates to be checking people's immigration paperwork. These are not easy straight forward questions. It is complicated to figure out what

a person's status is. Yeah, so that I just really drives home that this is not a ruling that will be sort of cordoned off to kind of affecting a subset of the population. If you give birth, if you have family members who give birth, if you know people who give birth, if you have any professional or other dealings with hospitals, this could be absolutely to kind of return to the idea of radical, radically transformative kind of intervention in ways

“that I think people don't fully appreciate. Just a lot kind of rests on our settled understanding”

of birth rights citizenship and not only do hospitals not have the kind of processing capability that you were just alluding to, but that's assuming people even have with them the paperwork that would be required to even set in motion some kind of verification process and a lot of the time they wound. So just enormous potential practical consequences for literally every person in this country. And that is kind of what's at stake. And I hope that kind of like both the overriding

constitutional principles and values we've been talking about, but also practical implications of their accepting this radical invitation from the administration are kind of evident in the way the justices are reasoning about this case later this week. So finally, Laura, we haven't obviously talking about pretty big questions of constitutional and statutory meaning in the immigration context. But I want to sort of ask you to talk a little bit about something that you have been

working on and writing about and testifying about. And that is the representation of actual individuals including kids and families who are impacted by this administration's immigration enforcement. And I know you've been spending a lot of time working with folks who have been detained

at the Dilly detention facility in Texas. You wrote a really powerful op-ed for the times about it.

And for folks who didn't have a chance to see the op-ed, can you just talk a little bit about

“Dilly in your experiences with it? Sure. I think most Americans do not realize that as a nation,”

we arrest and detain babies, toddlers, children, and their parents and hold them in an immigration detention center in Dilly, Texas, in deplorable conditions. Over the past year, more than 3,800 children have been arrested and detained by federal immigration authorities, including 20 infants. More than 2,300 of those children have been held in family detention centers, most of them at the Dilly facility. The Dilly facility is a hell hole. It is a prison for babies,

toddlers and children. Children and parents detain their do not have access to sufficiently drinking water. They do not have access to palatable and nutritious food. Children and parents detain their have told me repeatedly that they found live worms, bugs, and mold in their meals. Children and families detain to Dilly do not have access to sufficient medical care. One of my clients, Baby Amalia, just one year's old, nearly died at the Dilly facility in January.

And the lights are on 24/7 making it difficult for children and parents alike to sleep. It is a privately run prison. It's run by the corrections, what was formerly known as the Corrections Corporation of America and now known as Core Civic, Ice Pays, Core Civic,

annually $180 million to run this facility. And this is totally not necessary. There are

cost-effective and humane alternatives to detaining children. Baby Amalia, people may have sort of

was then released and sent back right to Dilly to the same unsafe conditions that had led her to

be so gravely ill in the first instance. Can you talk a little bit about your

another client of yours, another young client, Gile, and his family, I know that's a case

“that you were just working on as we were coordinating this appearance this week?”

Sure. Since last summer, I've represented 75 children and their parents who've been detained at Dilly, Gile is a child who I started working with just this month. He is five years old. He's non-verbal. He was in the process of being diagnosed for autism and he and his parents entered the United States several years ago. They did everything right. They showed up for other immigration check-in appointments. They had pending asylum applications. They are entirely law-abiding. Only law-abiding

people are detained at Dilly, no one with any criminal history is detained there. And they did exactly what they were supposed to do, which is show up for an ice-check-in in El Paso a few weeks ago. And once they did that, they were arrested and detained. And Gile's physical and mental health rapidly deteriorated in detention. He has special needs and debilitating disabilities. And as

“a result of his health conditions, he became extremely constipated and he went nine days without”

pooping at all. And between March 3rd and the time of his release just earlier a few days ago, he did not have a complete bowel movement. And he is non-verbal, but he could really express his distress. He began hitting himself in the head repeatedly to express how unhappy he was. He was clenching his belly. His, I saw his stomach. It was distended. It was bulging. He was really, really uncomfortable. He couldn't sleep at night. The noises of the petroleum guards at night

bothered him the lights on 24 hours a day, bothered him. And luckily, after some extraordinary efforts, he was released. And it took a combination of filing parole requests and media coverage, specifically from Delamundo, Univision, NBC News, and an influencer who focuses on children, Ms. Rachel, covering his case that collectively resulted in the release of this child and his parents. So there are little instances of kind of success and justice and victory. They're few and far

between, but they're really important to highlight when they do happen. Can you just leave us with some words about what folks can do about all of this? I do think that not everyone realizes just how obscene and appalling the conditions are in places like Deli, but you know, if you're not in Minneapolis and you sort of haven't been super following news coverage, I'm not sure people realize quite how bad it is. What can people do to respond to this situation that we find

ourselves in? I think there's so much that ordinary people can do. First, learning about what this

birthright citizenship executive order will do if it goes into effect and how okay, as you said, it will affect every one and telling people who are in your communities about this basic fact,

“I think that's really important. So education is important. As I mentioned, they think most”

Americans don't realize that we're imprisoning babies, toddlers and children. I think sharing this information is really, really important because this is not what we as a nation stand for. And I think it's also really important to help people in our communities and you don't need to be a lawyer to help people in our communities who can check on your neighbors. You can see if they are too afraid to go outside, if they need help taking their kids to and from school, if they need some

help getting groceries, you can join mutual aid organizations. You can participate in the ice watch training so you can be an upstander in case ice comes into your community so you can alert your neighbors and other people about what is going on. I think it's super important not to give up hope in this moment. It's important to come out, to protest, to speak up, to organize. And for those of you who are lawyers, I encourage you to consider getting trained in how to do federal,

habeas litigation. There are thousands of people who are in immigration detention facilities right now, who are there illegally, who are there in violation of the Constitution, and violation of people's

fourth and fifth amendment rights. And there are incredible webinar trainings that take a day or two

to complete that will give you all the information you need so you can represent people in immigration detention. And they think we all need to rise up at this moment and work to save our democracy. Okay, Laura, that is such a wonderful concrete suggestion for our lawyer listeners in particular. Is there a specific organization or training that you would recommend for people who might be

Yes, vecina has created an incredible webinar training series on how to file federal habeas

“petitions. And there are many lawyers experienced in immigration and federal habeas litigation”

who are willing to provide mentorship to lawyers who are new to this space. Okay, so vecina is the organization and they have a training. Okay, so check that out. I mean, we will also put a link in the show note. Thank you so much, Laura Mukherjee. It was wonderful to have you. Thank you for your wisdom and the incredible work that you're doing. Thank you Kate for having me. And before we go, we often, you know, these days always end by

recommending a couple of things that we read or listen to or watched. Recently, this need to be like in the last couple of days. I mean, I'm going to make a couple of recommendations that I'll turn it over to you in. So Ganeshi Daraman had a great uped in the time. This last week called this is why flying is so awful. And he's got a book called "Wi flying is miserable and

how to fix it." And the answer is just like basically deregulation. It's sort of full stop.

But it's a great uped. I highly recommend it. And I also want to shout out to wonderful new books by Penn Law colleagues of mine. One, Dorothy Roberts, mixed marriage project. And the other Sean Osayovusus Law on trial. Dorothy's book is already out. Sean's book comes out in April. They're both fantastic. So check them out if you haven't. Over to you, Ian. Oh, yeah. I'm a books in music person. So I'm going to go books in music. So books I'm going to

do in a old one and a new one. The old one is the world of yesterday by Stefan's wife. This is an incredible memoir of a writer in Vienna writing about the pre-war period in Europe. And it's incredibly resonant today. You know, I was just very hopeful and optimistic about American democracy

“surviving Trump. I think we will. I'm not as optimistic about the state of the world. And sort of”

the geopolitical order in the 21st century. And I think's why captures something about the speaking of whether the atmospheric weather in pre-war Europe. And some of that feels very resonant today. It's a fascinating read. That's the old book. The new book is a book I'm really excited about that. I just read the final draft of "The Lost Founder" by I think our mutual friend, Jesse Wegman. It's a fabulous book that an Earth's a really consequential founder of this country who's been largely

forgotten, James Wilson, who is about as influential in the drafting of the Constitution as Madison, or Frank Leonard, Washington, or any of the founders that we reveal. And this is a fascinating look into Wilson's vision of the Constitution, which is very much a popular sovereignty, democratic vision. I think it's going to be a book that kind of revolutions as a revolutionized as our understanding of democracies roll at the founding. It's not out yet. It's coming out. You can

pre-order it. And then the music. So my friend Simon, a couple of years ago, flagged for me the band Idols, the sort of post-punk British band Idols, when their debut album Brutalism came out in 2017. And I listened to it and it's like loud and it's aggressive and I was like, "I'm too old for this." I was like, "When I was 17, I'm totally there." But like, "I'm 50 now. I'm too old for this." But then there was a great New York Times op ad by Wilma Graath about shuttleing kids to school in

Minneapolis during the I surge. And he said when he was bringing kids to school whose families were too afraid to take them to school they would blast the Idols song Danny and Adelco in the car. So I went and I checked it out. And I urge other people to check out the lyrics to it. It's this really wonderful pro immigrant song. But it's couched in a vibe for lack of a better term of like what sounds like almost toxic masculinity. And it sent me sort of down a rabbit hole listening to Idols.

I've become totally devoted. And the reason I'm so into it is this, you know, when we worry

“about, you know, I think young boys, when we worry about boys today growing up and worry about”

sort of the toxic masculinity there, you wonder, how are we going to get out of this moment? And listening to Idols, I was like, "This is how we get out of it." But we have this really, you know, sort of channeling young male aggressiveness sound with deeply like humanitarian, frankly, very progressive values and then lyrics. I remember as a kid, my politics were shaped by the music I listened to, you know, sort of pink,

Floyding Bob Dylan's suspicion about war, rage against the machines, kind of revolutionary instincts.

And I want my kids, my kids are listening to Idols now, because I want their version of where that, some of that male aggressiveness goes to be channeling the direction that the Idols lyrics are pointing, which is, we can be better to our neighbors, we can be good people, we can, we can have a better world. And so, channel some Idols, get young again. That's a great recommendation, I don't know the song, I will check it out as soon as it's for done.

Well, Ian Basin, what a total pleasure to talk to you. Thank you so much for joining me today. So it's going to be better with you. One piece of housekeeping before we go, about Empire City, the unfold origin story of the NYPD. That's Crooked's award-winning deep dive series into how the New York City police department became the largest police force in the world and why that history feels so relevant

when you're scrolling through stories about immigration crackdowns, federal deployments and major cities and communities facing racial profiling. The show traces how power was built who was built for and what that origin story tells us about public safety today. Now, the show is taking the

which kicks off tomorrow, March 31st. Together, you will dig into the themes of the show,

“connect the dots, wrestle with big questions, and imagine what real safety could look like for all of us.”

Sign up now at Crooked Ideas.org/empirecity.

Strict scrutiny is a Crooked Media Production hosted an executive produced by Lea Lippmann,

“Melissa Murray, and May Cacheal. Our senior producer and editor is Melody Rappel.”

Michael Goldsmith is our producer. Jordan Thomas is our intern, music by Eddie Cooper, production support from Katie Long and Adrian Hill. Magic Road is our head of production. Thanks to our video team, Ben Hathcode and Johanna Case. Our production staff is proudly unionized with the writer's guild of America East. If you haven't already, be sure to subscribe

to Strict scrutiny in your favorite podcast app and on YouTube @strictsfrutneypodcast, so you never

“miss an episode. And if you want to help other people find the show, please rate and review us,”

it really helps. In moments like these, it's easy to fill overwhelmed and even easier to fill power with. But we are neither. I'm Stacey Abrams, and on my podcast, assembly required, I take on each executive action, legislative battle, and breaking news moment by asking three questions. What's really happening? What can we do about it? And how do we keep going together? This is a space

for clarity, strategy, and hope rooted in action, not denial. New episodes of assembly required drop Tuesdays, tune in wherever you get your podcasts and on YouTube.