Rational Security: The "Whale of a Tale" Edition

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Well, guys, it is officially the first week of September.

Summer is over. Spirituality, if not, technically, as a matter of a season. Hopefully, all are winding down. Your summer is well, you're still like strangling the last gas so summer out, as I know, you're still out and about on the last bit

of summer vacation, right? Well, vacation, I suppose, is what you can call it when you're working. Ignore the poor watching. It made you work today. No, I've not actually taken any time off work, but it's a tough situation.

I'm up here in Maine. It's very beautiful. We're on the water. I can sit on the porch. There was a humpback whale.

It's been lovely. But I feel simultaneously guilty for not enjoying the outdoors. And then when I go enjoy the outdoors during work, there were some times I feel very guilty for not working. So it's still a good trade off.

“Do you see heat and humidity for the beauty of mid-coast Maine?”

There you go, this is your making of men. So now you can feel free to go goof off this afternoon outside. Parking on the podcast today. I'm incredibly just, you actually saw the whale. I have been chasing whale sightings, most of my adult life,

and have never succeeded in saving them except for,

I went on one whale cruise once. I saw like 20 GD whales. And since then, I've been trying to chase that high. And I haven't seen literally a one anywhere on either coast. So that's kind of amazing, humpback, wow.

That's a real main experience. And then I'm assuming you reach into the surf at your feet, put that lobster, just took a big bite. Yeah, yeah, yeah, yeah, shell and all. There you go, exactly.

Our colleague speaking of whales, our colleague Annette Bauer posted on Blue Sky a couple of days ago that she went on a whale watching tour from sheep said Bay Brooklyn, which is where my father spent part of his childhood. And she posted videos of a humpback whale.

What? I know, it made me feel like it's not very special anymore. I spent all summer excited about this whale. And then it was like, all right, might as well-- Might put fake on high rises in the background.

It was very impressive. That is infuriating.

“I spent hundreds of dollars on the whale cruise.”

I'm not exact. I'm like hundreds of dollars in the whale cruise that's inciting efforts and failed miserably for two decades at least at this point. I went on one whale watch cruise once when I was a kid.

And when I remember most vividly it was getting like seasick for the first time, so-- Hello, everyone, and welcome back to Rational Security. The podcast we invite you to join members of the law fair team as we try to make sense of the week's big

national security news stories. Whether they are in our lanes or not, thrilled to be joined by some of my very talented law fair colleagues. This week tried to make sense of some very wonky, very legally complicated stories in the news this week

on the domestic front. Joining me this week, once again, is law fair senior editor, Eric Columbus, Eric. Thank you for coming back on the podcast. Thanks for having me, Scott.

And of course, another law fair senior editor, Molly Roberts, also joining us. Molly, thank you for coming back on the podcast. Thank you. From beautiful Maine, coastal Maine, where you're suppressing

I'm pursuing the main or accent that you probably have at this point. And I've been spent enough weeks there. It's like a contagious sort of accent I feel like, both impossible to imitate when you want to.

And yet when you're around Maynard, I feel like you can't help it. That's my experience at least. Well, they say you're either from here, from away,

but you can never be from here no matter

if you spend a lot of the summer here. So I wouldn't dare to pretend. There you go. All right, good policy, good policy. And joining us as well as law fair contributor,

editor, Renee, Doresta, for the first time in a while. Renee, great to have you back on the podcast. Thanks for joining us. Great to be on. Thanks for having me here.

And you can choose any regional accent you prefer. And you're always, always New York. It's always a little bit of an New York. I'll take it. I like it.

I like it. Well, we have some big stories to dig into this week's event as get into a topic one for this week's science field undelivered as the first mail-in ballot of the 2026 midterms go out this week.

A fast-moving legal fight over President Trump's effort

That issue is a new US Postal Service rule

stemming from a Trump executive order.

“There are choir states to submit absentee voters information”

to a federal portal before the US Postal Service would deliver their mail-in ballots. The federal ruling Massachusetts block he parted through last week, which the administration is currently appealing, and a separate challenge

is pending in Washington, BC, meanwhile an anonymous whistleblower in the Postal Service has now come forward and warned that the hastily built portal it intends to use to vet these mail-in ballots is so untested and unforgiving

that a single scanning error could stop tens of thousands of ballots from reaching voters. How do we get here and what is it likely to mean for November's election? Topic 2, Metacolpa.

Last week, Metacolpa abruptly settled a landmark child safety case midway through trial, agreeing to pay a bipartisan coalition

of state attorneys general, as much as $17 billion

into overhaul how teenagers experience Instagram and Facebook. The proposed consent judgment, which has been approved by federal judge and California, would require a default two-hour daily template for users under 18. A midnight to 6am, night mode, hidden like count,

“stronger age checks in a school hours notification, cutback,”

most fit locked in for a decade. It's being built as the largest big tech settlement ever, but some advocates are warning that it's terms don't touch the recommendation algorithms that were arguably at the heart of the problem behind the lawsuit.

Is this a turning point for a social media regulation or just a manageable cost of doing business? At Topic 3, strictly ballroom. On Monday, it divided Supreme Court cleared the way for President Trump

to keep building his enormous new White House ballroom, staying a lower court injunction that had halted construction on the site of the now-democracy swing. But the 5-4 ruling in National Park Service and the National Trust for Historic Preservation

didn't actually decide whether the project is lawful. Instead, the majority simply held at the challengers led by an architectural historian who regularly walks for a dog past the White House, lacked standing to sue, deemed her objection to the ballroom mere offense

rather than a concrete aesthetic injury. In an unusual twist, Chief Justice Roberts wrote the principal dissent, joined by the Court's three Democratic appointees, arguing that the court has less standing doctrine even murkier than it found it.

So what did the court actually decide and what might it mean for other legal challenges that Trump's refashioning of our nation's capital and beyond?

So for our first topic, Molly,

I know you have been following this story very closely. This battle over a male imbalance, you've written about it for law for her. I talked about it. I think on this podcast previously,

a couple of weeks we have made with the topic arose, bring us up to date. We've seen a couple of major development. We had a ruling from the Supreme Court but last week or the week before I can't remember exactly now,

that kind of was maybe less of a big deal than it was initially perceived to be basically did away with one challenge on procedural grounds. I was quickly kind of mood it out. We now have this final rule.

We also have this whistleblower account, pie it all together for us all the different pieces of the story and where they seem to be headed. - That is not so easy to do, Scott. Okay.

“- That's why I'm making you do it, Molly.”

- So what is going on now that matters? All right, so I guess the best thing to do is start with what the Supreme Court did and what the reaction to it was. So, there is Judge Andrew Tawani in Massachusetts

who had issued two separate injunctions prohibiting the postal service from implementing the part of this rule that applies to the postal service, which you were just describing how that works. The Supreme Court stayed one of those injunctions.

That led to a bunch of headlines saying, Supreme Court clears the way for the President Trump to bar male and voting in the elections, which is an exaggeration of what the ruling does, even if there hadn't been another injunction in place,

which there was. So even at that point, there was still an injunction in place. There was briefly for about a day not an injunction in place when the government asked the judge to vacate or other injunction because the Supreme Court had vacated

the first one. But the Supreme Court did this all on ripenous grounds. It sort of conflated right this in standing, but effectively it said, we're not talking about the legality of the order, we're just talking about the fact

that there's no final rule yet. The postal service has an issue to final rule yet. That was super weird because the Supreme Court did this on a Monday and actually it turned out that on 9 p.m. on Friday, the postal service had indeed issued a final rule,

but when the briefing had happened and presumably when these opinions were written, the rule hadn't been written yet. But because in the interim it had the plaintiffs in multiple cases, all went back to the courts

to Indira, Talwanian. Massachusetts and also to Judge Kronnickles in D.C. and suit again, asking for new injunctions with this final rule existing. So presumably avoiding this rightness argument

and having to actually address the merits. At the moment, there's a temporary restraining order that Judge Talwanian has issued, that there will be a hearing tomorrow in Boston

And the government has appealed the T.R.O.

“which is weird because T.R.S. aren't done really appealable,”

but presumably, she'll issue an injunction and then that will be appealed and it very well might end up with the Supreme Court again. - Then relatively short order, no less. - Well, what have to, right?

(laughs) - Exactly, and talk to us about this whistleblower case that we've heard seeing come forward this week. These allegations that we have someone who works for the Postal Service, we don't know who.

It's been channeled through Congress, which is a kind of common venue for these whistleblower claims, alleging that the system they've set up is right with flaws and is gonna cause lots of problems beyond what it's intended to affect us.

Talk to us a little about that and the impact that's having. - Yeah, it's interesting that you say beyond what it's intended affect us because if you ask the whistleblower, if you read the whistleblower's disclosure,

the whistleblower says, "Well, I think it's intended effect "is to disenfranchise more people." - Well, officially, it's important to do. But yes, it's officially intended effect, exactly, exactly.

So essentially, part of this rule is to have the states submit to the Postal Service lists of voters they plan to transmit absentee ballots too. And the Postal Service's whole argument is, "Well, that leaves states in charge.

"We're not gonna say who's eligible "and the states, the states get to say that."

But the Postal Service will ultimately only transmit ballots

to people who appear on those lists that states get to them if states don't give them lists, they won't transmit ballots to anyone. In order to make sure that they're actually transmitting ballots only to the people on those lists,

the Postal Service has to do some form of verification.

“So that's what this whistleblower complaint is about.”

The Postal Service has developed a portal and into that portal, the states are supposed to upload their lists and then ultimately, when they send in all these ballots, the Postal Service is going to verify, okay, does the information on what's in these lists

in the portal match the ballots? So the whistleblower has said kind of two main things. One of them is that the portal was developed have hazardly, these are all quotes. Sloppyly, he says that multiple people in the Postal Service

have called it a quote unquote "chit show" and that this issue combined with a zero percent tolerated failure rate. So if they say, all right, we got a batch of ballots, we don't know how big the batch is going to be yet,

it could be 100, it could be a thousand, it could be 10,000. If one of the ballots doesn't match up perfectly with the information in this portal, we're going to reject the whole batch. We're going to send that back to the states, if just one.

So these batches of great numbers of voters could end up getting sent back. If there's just one problem, and that's bad enough, if you have a functional portal, because even if something

has been developed carefully, first of all,

if there's a correct discrepancy flagged, you're still putting a lot of other voters, ballots, and risks. Because of it, but secondly, it's more likely that it's going to be incorrect, because this is developed poorly, according to the whistleblower complaint.

So that's the first big bucket in the complaint. The second is that this portal development had been paused after Judge Talwani's court order, they said, we got a court order, we got to stop, and then they started right back up again.

And so the whistleblower says, and Senator Blumenfall, who the complaint was routed through, says, this is very clearly a violation of the court order. They shouldn't have continued to develop this portal in the interim.

I think that it's not as clear cut as all that. In fact, with the recent TRO, Judge Talwani made it clear that they can continue working on the infrastructure that they would need, which sort of makes sense, because that also weakens

the argument of the government that they're suffering, a reprobable harm, as long as there's a TRO in place. They're saying, oh, we can't develop this,

and she basically said, well, you can.

But there are arguing that it's a violation of her order. Already, they had issued this final rule when the order was in place, which seemed a little iffy.

“So that's kind of where we are, that's what's alleged.”

I think the 0% failure rate is the big news item from it. - So Eric, I want to come to you on this sort of narrative we've heard so far. Because I'm kind of curious by your perspective,

somebody who's spent a lot of time thinking about courts, executive branch, judiciary, and our acting. What are the dynamics we're seeing here about how eager the administration just seems to be to push for these efforts?

We've seen them push the limits of these prior TROs issued by Judge Talwani in issuing the order and pushing for this expedited action and developing the system. We also see the courts, the Supreme Court

haven't taken this one initial ruling. I mean, is there an avenue here where is there a strong incentive here to get final resolution of these issues in the near future? Are we going to get this in a week or two?

Is it seem that people are content to let the legal fight happening? Keep happening.

Keep the legal fight happening. And then in the interim, it seems like, so long as Judge Talwani's order stands, mail and ballots are going to start getting distributed at least in normal fashion.

Or do we have a sense about where this is likely to lead about where the actors are responding? And what does this whistleblower claim do? I mean, what does Congress seem likely to do? What will they be doing to use this claim

or to amplify this claim in a way that might impact these proceedings or is that not the case?

Well, to take your last question first,

I doubt Congress will do anything because it is controlled by Republicans who are very low to do anything that will anger the president as you well know. In terms of how quickly this be resolved,

I assume it will be resolved fairly quickly because I don't think it's in anyone's interest for it to drag on or for it to be perceived as dragging on. Well, sorry, I should say that maybe in the administration's interest,

“but I think the litigators will push it forward.”

They were very quick to appeal to the first circuit. And I don't think the first circuit will take too much time in issuing an opinion. And then we'll get up to the Supreme Court and I think this will be a struck down.

Once it gets there, or rather, I should say the executive order, the relevant portions of the executive order. I think that Congress's role, or rather I should say, the president's role in election administration is virtually zero.

That's fairly clear from the Constitution. And I think it's a huge stretch too. Obviously, the Congress created the U.S. Postal Service-- I just started to say the Constitution created the Postal Service, but Congress has stood it up and has allowed it to make rules

for itself, et cetera, et cetera. But I don't think that it could that those rules would allow it consistent with the Constitution,

and the elections to promulgate rules to basically

butt in to the administration of the election. I think it might be a closer decision than I would hope for. Given that there was a recent Supreme Court case,

“I think it was decided, I think, in June,”

regarding the state of Mississippi, and whether Mississippi could, like several other states, maybe it does and other states do. I think, accept ballots that were postmarked on election day but that were received days later.

And that was a question about interpretation of a statute. And it seemed like an easy case to me. It was closer than I expected. It was a five-four decision with Roberts and Barrett joining the Liberals.

And the dissenters led by Justice Alito.

At the very end of his opinion, he--

right, Melon Ballad has quite large potential for fraud. And we see, and allowing states to accept ballots that are arrived afterwards after election day, it just raises the possibility of fraud, makes it more likely.

And with that in the mind of at least four justices, they may kind of import that awareness about Melon voting and find some way to write a sense. So I would predict a five-four decision. Interesting.

So I'd be kind of curious about where the line is. You're right that they aren't likely to be--

“I think if this were the present time to start this,”

it's a subland of rule imposing it as a hard burden on states that that would raise a lot bigger questions. But here, in the fact that they're leaning on the president's role or the executive branch is rolling, controlling the postal service, which is just one avenue

by what you could do, quote unquote, "Mailon Ballads" in theory, although in practice, off it is a dominant one. In theory, you could have states that ex or UPS ballots to people, or you could do what happens in at least Washington, and you see I'm sure other places as well,

where you can pick up and drop off Melon Ballads. Like I can do a quote unquote, "Mailon Ballads" absentee ballot without ever touching the Meloposal service. So none of these rules would affect that. To me, that's the point that gives me anxiety,

because that gives this space for the court to say, "Well, look, this isn't directly regulating the election. It's just regulating this one avenue that is more in the executive branch's control." But it sounds like you're your less persuaded

that they're going to be able to use that tool. I'm just kind of curious if I'm wrong that that's kind of the avenue where the court might be more find it easiest to rule the administration's favor or if there's other avenues that you think make that hard.

- Yeah, I doubt that that would work. I would also know one thing that when you said about, you mentioned drop boxes like we have here in DC, you could just go to the big drop box and put your ballot in, and therefore not have to deal

with the postal service in mailing in. But what this rule, governs is the postal service mailing out the ballots.

the postal service doesn't like or believes it's an eligible under its rule,

you'll never get your mail in ballot

to drop in that drop box unless the DC is going to house to house, giving people their ballots, which I doubt DC would do, and I doubt is feasible on a larger scale. - Yeah, that's a fair point, absolutely.

I mean, there are ways you see in other states and jurisdictions do mail in ballot distributions, including like at some point some states were going with like electronic distribution. Because I know I think I got that in a couple of elections

a couple of years ago, others you can do pick up, but agree to be logistically much more difficult and burdensome. And particularly this late in the game where state electoral systems have built around the assumption

they'll be able to use to postal service, even if maybe they could adapt to other tools it gets really harder this late in the game.

“That's why in part you have usually the personnel rule”

that you don't have ruling on the stuff

so close to elections, which is something we should, I want to come back to, sorry, Molly Jensen. - Oh, I was just gonna say exactly that that I think that if the Supreme Court doesn't want to reach the merits here,

they don't necessarily have to. I think that they can say that it would be changing the electoral status quo for them to get rid of the injunction at the stage that the lower court judge is going to issue

and that if they say that and they say per cell principle, then, at least for these midterms, they don't have to address the statutory arguments, but I also think the or the constitutional arguments, but I agree with Eric that the government

doesn't really have a leg to stand on here. So I don't think they have to, they don't want to, I think that it's possible though, that yeah, that they'll kind of dodge the bigger questions and then we'll be having this battle again

as it relates to future elections. - So Renee, I want to come to you on that aspect of this, you know, you're close monitoring of the kind of conversation that happens around these issues and the waves you're particularly in line,

but rather the other context too, 'cause this is like a weird issue that the president has gotten particularly focused on this administration's particularly focused on, has been for a long time.

In ways that some people question is necessarily even clearly at least within President Trump's interest, probably Republicans may be more in that, in 2024, he carried low-prepensity voters. He actually benefited from a lot of different low-prepensity voters

who could be disproportionately affected by greater barriers to being able to access the vote.

“That may not, I think most people think probably”

doesn't translate to the midterms and Republicans, but we don't want to present no and maybe it could if President Trump were actively out there, but it still feeds into this sort of broader narrative about how the 2026 election is being set up.

So let's say it's been court. Either it doesn't rules against the administration

or never lets this rule get implemented

whether passively or actively, right? It says, "Personal rule, we're not gonna interfere "with this injunction, let's just let it stand." What did that do to the conversation around the election? And what should we expect?

Can we expect President Trump? People will support us around him. How will they likely respond to that, either with a rhetoric or potentially with action as well? It's an interesting question.

I think it's somewhat unpredictable at the moment. I don't think people really understand what's going on. I pay a lot of attention to community notes in this question of what has even happened in here as anybody really is aware of what is going on.

I'm getting these constant note requests for things related to this topic. And then I have to go and Google and try to figure out where things are in any given moment in time. So I think it's very confusing.

I think the other piece of it though is that, for a long time, it was almost an identity marker that mail-in ballading was fraud. It was how the election was stolen. It was part of the rigging, et cetera, et cetera,

on the talking about on the right here. And the party has tried to shift that, as you know, it is easier. It seems like it would be beneficial for them to do it. So it's this question of how do you shift that messaging

that's been prevalent for so long. If you spent so long telling people that all of this is insecure, how do you now say,

“actually know, like you should be doing it also.”

So I think that that aspect of it is going to be a challenge around how they frame this going into 2026 and then 2028. - For Republican voters, it's going to be mobilizing voters to do it mail-in ballots. - Right, oh well, you told us this was all fraudulent.

You told us this was all rigging. You told us that this was like, you know, now what we were supposed to do. And then now you're saying that we should be doing it also. - So I want to come back to you on a similar question.

Like strategically, you've spent a lot of time thinking and looking at how the administration has been building a bunch of myths about the 20, 20 election, the result there, all of which could be justifying, moving into, you know, potentially,

how you put 2026, 2028 elections, concerns about validity. Voting machines, this is just one sort of plank in that ship that we've seen people building that may or may not hold water almost certainly.

but none less is still being put together.

What are the different avenues about where this fits in there? Whatever the given outcome is, does it drive further action?

“Is it a deterrent if this doesn't work for people coming in?”

I mean, where does it fit in that kind of bigger narrative building effort that you've been documenting? - Yeah, I mean, I think there are a few things. I think one of the things is definitely the misinformation, misinformation angle.

They've shown confusion that kind of could have a few effects. One of the effects is if the election doesn't go, the administration's way, the Republicans way, they can say something like, there wasn't supposed to be mail-in voting.

Was the mail-in voting was supposed to have all these rules around it, and these rules clearly weren't followed. There was fraud. And so, you know, just as a creating more distrust in the integrity of the election angle,

that seems somewhat effective. I think also people are already asking now, what does this mean about how I can or should vote. And if this creates a situation where people think, well, either I shouldn't vote by mail

because my vote might not get counted, and I want it to count or whether they think, I shouldn't vote by mail because voting by mail is somehow illegal, or my state might not be complying with these rules.

Basically, people don't vote by mail,

and then they don't make it to the polls, because it's logistically more difficult than fewer people vote.

“So, I think that also is a way that this could cause damage.”

So, I think that that matters, and then I think also there is the issue that states are having at the moment where it's really unclear whether they ought to begin to comply with this, because if they don't, and then it is an enjoying

at the time of the election, then they're in trouble. So, you have this situation where states might want to start submitting their lists to the postal service, even if that couldn't end up being ruled unlawful. And I think it just generally creates chaos

as they're trying to revise how they administrate their elections with this uncertainty hanging over them. - Yeah, Eric, I want to come to you with one last ask because that's pouring move on, which is, what would the remedies be

if this rule does go in and it gets over applied? This whistleblower hypothetical, but no reason to think it's not credible at this point, theory where, okay, states say, yeah, we're gonna give you this list

with the understanding that you're gonna check it, and you will deliver the expectation, is you are going to deliver the mail-in ballots to the people who are registered about. And those are, you know,

admittedly that's who primarily they want to make sure they get those votes of those. And the whistleblower is saying, no, there's a risk that tens of thousands of people who are rich to vote still,

I'm gonna get their mail-in ballots, because of this errors in the portal system. Are there remedies there that a state could pursue that individual voters could pursue, and what would those remedies look like?

I mean, are we talking strictly exposed remedies that would be maybe effect future elections, couldn't do anything about this election? Would it be, you know, something that you might see judicial action on fast enough

to make a difference before the midterm elections? Do we have a sense about what it looks like if this rule does get implemented, but doesn't operate as advertised by the administration, which many people include whistleblowers,

“suspect is kind of a intent to do more than advertised?”

- It would be a mess. And theory, someone could sue a states, could sue individuals, could sue the post office and say, hey, you know, XYZ people were supposed to get ballots, and did not, and you might be able to be remedied

before the election, it was a sufficient time. Obviously, the post office would drag its feet on that in litigation. I could also imagine that there be a specific challenge to that, and I don't know, Molly might know

whether it's already part of litigation, but there could be a specific challenge so that batch processing rule aspect, that the whistleblower has noted. I suspect that that would, since the facts would up and develop,

you needed to do a whole new litigation for that, which would obviously take more time. - Well, there is gonna be more development, in this case, I'm sure we're gonna have opportunities to circle back and talk about it more,

but let us move on to our second topic.

As we're already talking about suing people, today, one less person is being sued, one less corporate entity in America, a less inspector, still being sued, plenty of other places, but if this one litigated at least,

and that is meta, formerly Facebook, operator, Facebook, owner, Facebook, and Instagram, among other services they provide. We've talked previously on this podcast about this major lawsuit,

which I think it's fair to say is kind of like the tip of the spear, what people think are a number of other kind of similar lawsuits, as well as a potential universe of other potential lawsuits you might see coming at social media companies

and different kind of big tech companies. And meta, despite going through and to go to trial, just a couple of weeks ago, has now settled

affect the way these platforms are gonna operate. So Renee, I know you've been following this case, talk to us about the term to the summit, what drove meta here, and how it's being perceived by others in the industry about,

I guess, Africa's opinion as well, about what the ultimate implications are of this settlement for the broader problem set that it's addressing a slice of. - Yeah, so this is a very large multi-state deal. There were, I think, 14 AGs that had,

from 14 different states that had sued meta-settled about eight days after the trial began. The state AGs kind of described the deal

as being about a 17 billion dollar settlement,

but it's a little bit of a complicated settlement that meta is committed to roughly 12 and a half, about 12.7 billion, of that amount, and five billion is contingent upon Snapchat, TikTok, and YouTube adopting comparable youth protections,

or in some cases making payments. So there's these protections that meta has agreed to, is, for example, like a two-hour daily cap, where under 18s will default to sort of combine two hours a day across Instagram and Facebook.

Parents can override this, but, you know, they're trying to sort of limit teen usage. Teens also get interruptions or nudges, kind of prompts after using the platforms for a long time. There are night and school restrictions,

“so I think blocked from midnight to 6 a.m.,”

while push notifications are muted between 8 a.m.

and 3 p.m. which is roughly school hours.

I think direct messaging is exempt from these time limit, night mode, and school restriction modes though. So what you're seeing is the company kind of still denying that it didn't even wrong,

but also making these changes under the settlement that shift the ways in which teenagers engage with its products. Now, there are certain aspects of it that make some of the civil society advocates who'd really supported this lawsuit a little bit frustrated.

So while they see it as a win overall, you also see a lot of commentary about how this doesn't really touch the recommender system. Which is the thing that has received a lot of the focus around whether they are addictive or not,

whether teenagers are sent down rabbit holes or become addicted through this recommender system pushing very personalized, high engagement, sort of high dopamine type content. That is not really part of the settlement.

There are things like ways in which people will, ways in which teenagers theoretically feel incited or encouraged to use the platform. So for example, likes and reaction counts are going to be hidden by default at this point

and you're going to see, for teens, and you're going to see like some of the extreme makeup filters,

“I think are being affected under the settlement as well.”

There should be more aggressive systems for detecting under 13 users or teens masquerading as adults, and then there's going to be an independent auditor who monitors compliance. So the algorithms do remain this major carve out,

but that is roughly speaking where the terms of the settlement are in the duration for this is, but I think a little bit more than a decade. So there's initially a five-year commitment on some of the provisions, but others last 10 years.

And I guess we'll see now as this kind of comes into effect, what happens, we can talk about what the other companies have said. I was actually very surprised by that. I was sort of like, you know, the company that's like, yes, we were an arsonist.

Also all of these people over here need to be following our lead and getting on board and also promoting fire extinguishers. So it's a little bit of a strange, in my opinion, I don't know, you all are the lawyers that are not me, in which the companies are being encouraged

to adhere to the terms that meta agreed to. So that does sort of give an interesting amount of power to meta. - Would those other, would there be, is there like a waiver of claims associated

“with those other social media companies joining this terms?”

It's kind of interesting. I mean, I guess because they're state AGs, they could be waving all universe of claims that actually these other comes might be worried about unlike those like an individual plaintiff

or the facts or much more complicated. But do you have a, do you know whether that's like part of the arrangement? Otherwise, the incentive does seem a little skew. - I think that TikTok is a TikTok snap in YouTube

or the three that we're talking about here. I think TikTok is already facing some state cases and has settled some of the sort of these addiction cases, AG Bonta from California says that they're interested in talking, you know, snap, I think is also in communication

with some states and has settled some states. New lawsuits are continuing to appear. I mean, they're getting sued quite a lot these days.

So I don't know, I really, this is the first time

I've ever seen anything like this. So I don't wanna kind of misstate how impactful it actually is. I think YouTube maybe is the least likely only because Google has significant litigation resources but also it argues that YouTube is fundamentally

streaming and video service, not a social media network

So I guess we'll, I guess we'll see what happens with these.

- It's a really fascinating settlement and a decision to go, and you know, the big parallels,

“I think you think of that when you're a law student,”

you study are the tobacco settlements of like the 1990s, right? I think that's like the case that hangs in everybody's brains, although there are earlier cases about the specialists and the sort of other sort of cases that have been that were kind of the precedence for the tobacco cases.

And in that case, look, it had a kind of defining quasi-regulatory effect on the tobacco industry. The tobacco industry had to voluntarily take a real pivot towards how it packaged, managed, advertised tobacco products as a result of that.

It wasn't the end of the conversation but it was kind of notable. Eric, I kinda wanna come to you on a part of this. Where do you think this fits in on the universe of the effectiveness of regulation

this particular moment? - We've seen Congress really struggle with how to approach social media regulation, whatsoever we've seen, you know, proposals, there's interests, there's definitely a appetite for it.

There's an interest in it on the hill from people on the left-hand on the right from different perspectives. But we haven't seen much unity around clear approaches that had this sort of comprehensive treatment.

That's why you've seen state step in with a variety of sometimes very controversial efforts, a bunch of other efforts. How do you expect Congress and the regulatory efforts to interact

with these sorts of settlement efforts? Do we have a sense of it from past practice about how this can either motivate additional regulatory activity, deter it, or provide kind of a foundation for Congress to maybe build on that doesn't require as much consensus building

“as to some extent they've regulated any of our degree to this?”

- Well, I think in part, it turns on how these companies are viewed by the public and I think that's still in flux like on the one hand, big tech is not enjoy a strolling reputation. On the other hand, these products are extremely popular.

And if they weren't extremely popular, there wouldn't be the need for such litigation and we all use, or most of us use at least some of these products on our daily lives. And the role with that applicability to kids

is an addiction issue is a lot, I think less, probably a lot less heart wrenching than the harms caused by tobacco, it kind of in the main. And one interesting thing about litigation as opposed to congressional action

is that the companies, if agreed to some things,

that might not necessarily pass first amendment review

if Congress itself was imposing it as a requirement. And I suppose the companies could have, you know, thought this could have obviously could have gone to trial, but for their own cause benefit analysis, they felt that it was best not to challenge,

you know, to voluntarily do some things that might not be a constant with the first amendment. And that dynamic plays out very differently if Congress is acting. And then of course, you've got the big financial power

of these companies that makes members of Congress a lot more hesitant to regulate them. And state AG's, for whatever reason, it seemed to be less concerned about that. And of course, you don't need, in Congress,

you need a majority to get something done. Here, you need only one AG in theory to file suit. And here we had 14, which is obviously far from majority of the state AG's, but that didn't matter, it doesn't matter, you know, in theory for it,

and the courts analysis, and it didn't matter in practice either, apparently. Yeah, I had a question related to something that you said, Eric,

“which is, I remember when there was a lot of conversation,”

I don't know, five years back, about rewriting Section 230, because of all these speech harms on the platforms and the argument then was, you can't do that.

That's a first amendment problem.

And now, it seems like what's happening is this shift to, instead, addressing the design of the platform, but as a mechanism to avoid, maybe not exactly the speech harms we were talking about then, but some of it is having to do with content

that could be harmful to kids mental health. Some of it is screen time, but some of it is content.

or is using this?

Well, we're talking about how the platforms are designed,

we're talking about screen time, even when screen time can sort of be a proxy for exposure to all these types of speech. Does that get around it? And maybe you get around it with settlements where it's voluntary, but if a court were imposing some change

in how platforms structured their apps or websites,

“or whatever, would that be okay from a speech point of view?”

Like, are we over this, this era as long as we're not doing it directly, are we good? I'm not no expert in it. I think there's still open questions. I defer to Renee if she has no more

about relevant cases that have been decided, but I think that's still very much up in the air. Well, I mean, the thing is, I guess my concern with that on the other side is that no regulation is possible if any aspect of a product touches speech, right?

I mean, that just seems very strange to me. Like, there are aspects of the ways in which these platforms engage with young users that are alarming. And I think that is something where it is a product design question. And I think that implying that because there is speech somewhere

in the pipeline or go this must mean that these pursuit on product grounds or product liability or harmfulness grounds is something we just can't touch because there might be speech somewhere in the pipeline. That just feels very dissatisfying to me

that just says this entire class of company exists beyond the reach of regulation or government. I find that ridiculous.

Yeah, no, I mean, I kind of do and always have too.

I guess part of my question is, is there? And I'm not sure that the settlement does it, but is there like this clear and clean distinction between the settlement involves reducing exposure to age-appropriate content, that sounds sort of speechy to me.

But if you just said, don't let it go. Just let it go into the auto scroll, disable likes. That seems more acceptable. I think in this particular case, there's not anything related to content.

“I think it is related to these use and time”

and obscuring certain aspects of engagement and engagement-based activity, so the hiding the likes. I don't know that there is anything. I don't recall reading anything in the settlement that was specific to content.

I believe that this was entirely about product design. Maybe one of you has a more nuanced understanding of that, but my understanding is that in this particular settlement, this is very focused, not on the content, not on what they're seeing, but on mechanics and product design.

You've got a nice voice. I have my mobile phone number. Your child's phone number is higher than me! I don't have my phone number. Just an ice-traum.

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So now it's time to start.

There's always a huge podcast about the podcast.

So go in the book, write through this interview. We'll be back with you. Well, and I kind of want to actually prod that, and ask your perspective on why that might be, particularly when it comes to that question about,

algorithmic method, they have a driving content, which has been an underlying concern of a lot of this. I mean, that was not necessarily the sole part of this lawsuit. My recollection is that, although I may be in this confusion in their case, is that one of the big concerns about this

is that the whole structure of the platform drives constant screen time in interaction. It stimulates in a really, and constant engagement. So that's like a big part of the concern. And that could be, maybe not content neutral,

but it could be benign content that you had interaction with.

“It's just like, that's how I feel about real estate listing.”

So I'm in my 40s on the house hunting. So I'm constantly screaming through real estate hunting, right? But you also are worried about, is it could be steered malicious, harmful content? We know this from the Gonzalez and Tom DeCase is a few years

ago, right, was about sponsored terrorism. Here, it would be something about content that inspires self-harm, right? This horrible story is about the whale thing, and that it was a story that's gotten around

about these media campaigns are kind of inspiring self-harm,

buys algorithms.

The companies don't seem to have settled on those,

and the attorneys general don't appear to have pushed them on that. That's really interesting to me. And if there are a reason why, either the attorney generals might feel like they have less leverage over those,

or the companies might be want to fight for those over these broader use restrictions. Either for a technical reason, for a legal reason, for a business reason, it's just an interesting way this is shaken out, and particularly because this settlement

looks to be kind of industry standard setting. It's particularly notable, because it seems to be saying, the space we want to regulate this is on user engagement, like platform UI, not substantive generation algorithmic sort of content of feeding.

And that's actually a pretty big regulatory choice

that these state agencies appear to maybe have bought into, and I don't know whether that's a win for Meta or what.

“I mean, I think that it is being seen by these civil society,”

advocates who wanted to see that regulated, they see that as the thing that is not being touched here, right? Because the recommender system is not part of the settlement. I did look this up really quickly. It says Meta must keep teens in a default 13 plus content setting,

so that kind of bounded thing, and maintain and improve safeguards against age and appropriate material. So you might be able to make an argument around that. I think that's mostly though bullying and harassment, eating disorder content, and suicide and self-harm content.

So I think those, you know, you could maybe make a speech argument around that, or a slippery slope argument. But for the most part, for the most part, they are these, as far as I can tell, these settlements do not actually take on the thing

that a lot of people, a lot of people in the parenting community, a lot of people in the civil society community wanted to see, which was as you're noting, algorithmic recommendation of content, and that is something where parents can go and make that shift,

but the company itself is not obligated to. When you see the parents can go make that shift, what do you mean exactly? Oh, that, so there's parents can tighten content settings on supervised teen accounts.

Oh, I see, I see what you mean. And that's already a feature built-in to most of these,

“right, I think, on the specific teen accounts, right?”

I believe so, I don't have my, my kid doesn't have social media thank god because we don't want it because we don't want it. That should be, we don't want it, right? Look, I'm like, you know, they're, they're, I understand this from like a regular tourist standpoint,

and from like, this is what I do is my job standpoint, but like, let me just, let's be really, like, I'll be really candid, like, I don't let my kid use the stuff. Absolutely not, I don't want them on it. You know, YouTube, you can't avoid.

I was, I was remarkable experience with him a couple nights ago, where he discovered that he could watch YouTube through Google Maps. Because you can go to Google Maps. You can search for YouTube's address, and then you can watch YouTube because YouTube.com shows up as the address,

oh, sorry, as the, as the web address, in Google Maps for YouTube, the company on its Google Maps listing. And then it completely evades the YouTube block on the iPad, like, it's, you just watch it for hours. You just watch it for hours. - Yeah, my kid is like, he's very into tech, he has, you know, builds a lot of stuff,

has his own website, you know, constantly trying to find ways to evade school bands and blocks, and stuff. He's really, if he spent as much time on a school work as he did on evading bands and blocks, you know, I know he's actually like a straight-a student, too. I shouldn't, I shouldn't make him sound like he's not, but no, he's very, very innovative when it comes to finding these things. And then he has a discord with his friends.

“I mean, there are two of this question of like, what age did he register as for that discord?”

God only knows. I imagine it's 18 plus, right? You know, and so as a parent, you are just constantly trying to chase down, chase down these things in fine ways to, you know, to keep your kids from using them. You can actually play YouTube in Google Docs, right? They sit there on their Chromebooks and class, and they do this. They all share, they paste YouTube's links into Google Docs, and they watch them through Google Docs, which evades the YouTube.com domain block that the school has, right?

So, these are the sorts of things where, yes, parents can control it technically. They can try. They can try, but I'm not, you know, I'm not entirely opposed to the idea that like maybe the companies could do just a little bit more. It's fascinating. Yeah. So, before we move on for this topic, I want to touch on this one other issue about how this intersects with something else we've talked about in the podcast before.

That's this idea of jaw-boning, which is essentially, you know, government using, it's, I think

I'm defining this fairly a bit running, correct me if I'm not. I think it's basically government

using its leverage in a variety of contexts to pressure companies to adopt purportedly voluntary adjustments to how it approaches speech issues and various contexts. The idea that a lot of people believe, and I think there's arguments in there have been court judgments, although the big debate about what actually is in his in jaw-boning, that caused lots of problems. But, bottom to the idea that the government, executive branch,

in particular, when it does some of these things, can be violate the first amendment by compelling speech or compelling of silence of speech. How does that intersect with here? Because this is kind

interpret the first amendment with these terms. And yes, they're being voluntarily,

complied with, but they're being voluntarily complied with because of the course of power of the state to some extent. And this part, because action taken by state attorneys generals, but nonetheless, you know, government actors. So there does seem like there's a little bit of tension here. You know, Jeff Cossuff is written about this a little bit a law fair in last few days criticizing on First Amendment grounds, some of the terms of the settlement. How do you react to that? I mean,

talk to us about a little bit about Jeff's argument and where you where you take it, how you see this fitting in? Yeah, so I think he makes the argument that you can construe this as job-owning because the government made an implied threat, or you made it, that meta was facing

1.4 trillion in liabilities. Ergo, it didn't just choose to settle. It was compelled in some way

to settle, compelled to make these changes to its platform. And because of government pressure, that's the argument that he makes everybody should read the piece. It's a very interesting piece. I feel like it carries some very strange downstream kind of consequences, which is, you know, we alleged that your product violates the law causes these harms. We're going to prove it in court.

“That's what these AG said, right? This wasn't some backroom smokey room. If you don't do this,”

or else kind of situation, they actually sued them. Meta was in court, right? Which is in my opinion, this is very transparent, contestable government pressure. This is the government saying, we are regulating you. We are going to bring this to trial because we believe that these harms have happened. And that's what you start to see. The question is, is this like a backdoor regulation, right? That's the thing that people are discussing. I think that's an interesting question,

but I think applying the labeled job-owning to it goes a little bit too far for me. I feel like it's a kind of an absurd expansion of that term. It really turns it into a maximalist term where any, or any litigation for any kind of harm that might carry a large price tag because of the perceived severity of the harm is then reframed as on toward pressure, as opposed to something that that can be contested in a court and decided by a jury. Meta was not. There was no gun held

to Meta's head to settle this. They have plenty of, you know, phenomenal lawyers. They have taken course that they have, like, followed cases through before. So the idea that because of the price tag, they were somehow unduly pressured. Now, I mean, you can still be found to not have done these

“things to not be liable by a jury. And that I think is the, this is how, this is about courts”

are for, in my opinion, as a, as a layperson, not a law professor. So I always hesitate to disagree with folks who clearly have a lot more domain expertise than I do on this front. I just, I just can't quite get my head around how that, how that works. Like, in what, how, again, how can you regulate, how, not regulate, how can you sue for liability purposes if, if any lawsuit that might come with a settlement is then inherently coercive? Yeah, it's a really good question. And just for

a smart guy, I think the piece is very, I find it fun provocative. I would say, we're, we're my mind left, me on this is that, it's very hard to make this argument as job-boning when people are suing for actual damages that they've received. That would be basically immunizing any sort of speech

from real potential harms. That's never been a part of the first amendment. Calculus, I can say,

fire an empty theater actually can't, but that's about example, but I can say something harmful and no one can stop me from saying it, but I can be sued when it goes and harms people. That's

“part of the, the consequence here, and then I can choose to settle that. I think you might have”

a case, in certain cases, where you might have, where you could have a statute that gets punitive damages. Then you have a case where you say, oh, you're Congress and the government is actually stacking the odds away from not just the actual harm suffered, but doing in a way that has this regulatory effect, then maybe this argument has a little more grab to me. And that's not a totally foreign concept here. Again, Tomna and Gonzales, we know where lawsuits under the Anti-Terrorism Act,

the Anti-Terrorism Act has a troubled damages provision. So it's actually a massive punitive damages built into the statute. So I do wonder if something like that could raise a bigger sort of constitutional concern of my mind. But if you're really tying it to actual damages, it does seem like you'll be initiating the usual civil liability system we rely on to address harms with with two broader vision of us, but I don't know. Eric Mali, did you thought to that that was

for you move on? I mean, jaw-boning, this may be definitional, but I don't think jaw-boning necessarily means something that is illegal. I think it is, it means just kind of, you know, perhaps creative ways for the government to get things to get private actors to do things that the government might not be able to impose directly. And I don't think anyone would, well, somewhat. But let's say

there had been no, you know, private controlling by the Biden administration. If Joe Biden had just

“made speeches saying, you know, Facebook, what your guys are doing is terrible. You need to, you know,”

put away all this speech, all this anti-vaccine websites and disinformation. You know, otherwise, you know, parents would start avoiding your products. And let's say that he was able to get them to back down on grounds like that. And let's say that he had, they had the indirect effect of making Congress quite more interested in, in, in regulating Facebook. And then that, eventually, the downstream effect was Facebook backing down. And the, the clotting had do things that it could have

done consistent with the first amendment. I mean, that to me is, is, is, is draw-boning what is

not illegal, anyway. And I think, well, while not having read Jeff's piece, I think the same could probably be said about the AG's actions in this litigation. Yeah, I'm not an expert on this, but I think I broadly agree with Renee that this is an example, not of them taking some channel, but back channel to try to do what they want, but just taking a normal channel. They're litigating it in court. And maybe if there had been some, you know, clearly pre-textual

filing to try to get a kind of unrelated result, then I would feel weirder about it. But it feels like the result is pretty in line with what they were litigating over. So, well, it is an interesting, interesting case that obviously could and it designed to have ripple effects throughout

the industry for a long time to come. So, we'll have to see what comes from there. But we have a third

topic to talk about. So, let us get to that another piece of litigation that has culminated kind of at least for the time being and on the preliminary really phase of the litigation as of this week. And that is a spring court decision over the legal challenge to President Trump's ballroom for which he has already demolished the East Wing for which he has been constructing an underground area that was allowed by the lower courts to proceed on kind of security grounds,

but a lower court in Jenkin had prohibited the president from proceeding with the actual construction of the ballroom itself, which was not tied to military and national security purposes as directly. And now we've seen the spring court strike down that injunction. But on kind of surprising technical grounds, not on the merits. In fact, we saw for just to say, "Expressly, we think this

“was illegal." We think you should reach the merits, but the other five just is declined to do so.”

Molly talked to us about that. Talk to us about where this case had landed, ultimately,

on one of my favorite topics, standing doctrine as long time listeners of podcast will know, which I'm excited to begin to and put probably most listeners to sleep on. But on this question of standing, in what the consequence might be not just for the bottom case, but for the other array of cases about Trump's actions in the nation's capital. Yeah, sure. So it may have been surprising to some that they didn't reach the merits and wasn't all that surprising. To me, I think if you

even look at what the DC circuit did here, it was a two-one decision to keep this injunction in place and Judge Naomi Rao, who wrote the dissent there, also relied primarily on standing, although she spoke a little about what they'd talk about. Here she had kind of a different analysis just speaking to aesthetic standing and sort of the idea of generalized grievances. And then she spent more of her time actually on the idea of a sociational standing and some kind of inventive argument

about how that didn't work out here either, which the Supreme Court did not treat. But I thought that they would use one version of standing to wriggle out of having to address the merits because if their preferred outcome is to enable the president. This is a very cynical analysis, so I apologize. But if a judge is preferred outcome is to not cross the president on an issue that might

“not seem all that important and to kind of save their capital elsewhere, I think that that you”

don't want to get to the merits because the merits here are just terrible, terrible for the government. I mean, there's just no argument that they have the express authority of Congress to do this and there's no argument that they don't need the express authority of Congress to do it. I mean, there's an argument that they're making it, but if you read, Chief Justice Roberts is dissent, he really kind of economically dismantles that argument in a way that's sort of amusing

to read. It's pretty dry and I think as a good impact. But yeah, so what they've done is they've said that this woman walking her dog, as President Trump referred to her, doesn't have standing to challenge the ballroom because this is mere a fence or distaste that a government policy and of you let anyone sue on that basis. Everyone could just sue about everything. The issue isn't

They do. The issue is that the majority doesn't really spend much time explaining why this is just

a fence versus aesthetic standing as it has recognized his basis for getting a hearing in a number of environmental cases and you could draw distinctions that make it clear why this is different from those cases. They don't really do it. They just say her injuries not sufficiently concrete and particularly rise and they also do things like why it's not concrete and particularly

“rise. So I would say that that's the problem there. I think that it's not so clear cut that you”

couldn't say, well, this isn't concrete and particularly rise and here's why. It's the here's why that's missing. So that is led to a lot of people asking, well, it doesn't this mean that aesthetic standing generally is dead. Does this mean that aesthetic standing is dead but for the

environmental cases, which is where most of the Supreme Court doctrine is here or does this not

mean anything at all? Does this just mean that when they don't want to decide something they'll say, hey, it's merifense and when they want to decide something on the merits, they'll say it's just aesthetic standing and I don't have a great answer to that. But I do think that it means that for Trump's other construction projects, when there's not some technical reason that someone has standing like in the Kennedy Center case, she, Joyce Baby, representative Joyce Baby who's

suing there is an ex officio trustee or I think that's the term for it. There might be a technicality in some of these cases that gives people standing. But what it's something similar where it's someone who essentially uses the area as is now, the historical site or wherever as is now and is suing on the basis that their use of it is going to be changed that it's going to have a detrimental effect on their either viewing pleasure or golfing pleasure or whatever,

“I think they're going to run into issues for sure. Yeah, it's, it's tricky to see where”

the line is and I think maybe for folks who haven't been like deep in the weeds, I don't understand that this is worth clarifying what we mean by aesthetic standing and what the court means by it. You know, here the plaintiffs basically were borrowing a theory from standing, which requires them to show that the plaintiff has an injury in fact, which is conceived as saying they're injured in a way that is constantly cognizable whether that is can be economic harm, which is like the

easiest to cognizable physical harm or in this case aesthetic interest, this idea that you are hurt in a way that you're interested in observing and living your life in a certain way that you appreciate has been hindered by it. That's been the basis for a lot of standing and environmental cases where people will say, well, I have an aesthetic interest in preserving, in this case,

the example they always talk about is a given crocodile and there are species of crocodile. I suppose

it would be that gives me standing to challenge, purportedly illegal actions that would threaten the habitat of that crocodile and they were bringing a similar argument here, saying, well, this person who is a professor of architecture and lives in the area, the White House walks by it and about once a month, they said she said in her kind of statement says, similarly, I have an appreciation of the White House of the historical building and this is threatening that because this East

Wing over bears that and they said draw a draw line between those that just teach us Roberts in a opinion that I agree. I actually thought it was quite well done and quite persuasive. I saw their legal people kind of criticizing it but given that Roberts actually mostly agrees with critiques specific standing but nonetheless found this thing which here, I thought he actually did a good job explaining why he thinks he or the rest of the court was going too far. Says, no, actually,

well, in this case, this woman's offense wasn't actually a standardist that I can trust it was just offense and offense is a different category and what that means for aesthetic interest, I have absolutely no idea how do you distinguish between the what is offense and what is the harm to an aesthetic interest? They strike me as pretty much the same thing as synonyms of each

“other and that's kind of the problem here I think for a lot of folks. Eric, well, let me turn to you”

as the other lawyer on the call, like how surprising did you find this from terms of like thinking about standing issues generally about how the court usually approaches these sorts of debates. Like I wasn't totally surprised although I'm kind of dismayed by the outcome. I'd be kind of curious about your reactions to it. So I think we've seen sometimes in the Trump years that being a lawyer can be a detriment to directing, distracts you with all these laws. Well, the side

of case, sometimes when I predict what happens I think I have as a good at track record going on vibes, then on anything else and on on reading briefs, I remember thinking during the the Obama care cases back in Obama's 2012, I think, just like thinking that the court would not strike

and I didn't have a better theory for that and I turned out Justice Roberts to Justice and really

have a better theory either in his opinion upholding Obama care as a tax. Here, just based on vibes, I assume and I think I said in a podcast a couple of weeks ago that is 80% chance that they would

“strike it down and that's what happened and then I said that on social media, 80% and a very”

interesting anonymous lawyer who goes by the handle legal nerd responded by saying that it was a 99.9% chance. Who knows what the actual chance was, but the thing happened. I mean, Chief Roberts did come over the other side, so that's not a zero percent chance, I suppose. But so yeah, I suppose. And actually to stay with with legal nerd, you had an interesting tweet a couple of these, which with a mock dialogue between the Chief Justice and Justice Barrett who will provide

the fifth vote to the majority and the two of them usually vote in tandem, I think this might be

only the third time on the shadow dock in case of that they've diverged and in his tweet, he has

Robert saying, Amy, come on, look at who we're dealing with. Dude hates the Constitution, wants Congress and this court to drop dead and doesn't give us shit about the rule of law. And then in response, Justice Barrett says, you're correct, but I pissed him off before and paid a heavy price. God protect my family. Who knows? Who knows? You know, this, this is just representative, I think of what people on the left for a long time, and now on the right, frankly,

you have a lot of conservative critiques of staying in a docked in a set, I've been saying, which is that it's just as doctrine that has become so fungible and so qualitative and so subjective, that you can draw the lines left and right on all these different cases and can you imagine

a distinction between a fence and a aesthetic arm? I guess you could. Why this line draws here?

I don't know, but is it that different than in environmental cases where you see in, you know, Justice Scalia famously say, well, I didn't see enough evidence that this person who claims

“are going to visit this wet land, I can't remember what the actual thing what I think was wetlands”

is enough. Like, I want to see plain tickets. I want to see receipts. I want to see evidence that they're actually going to go and enjoy this as opposed to just asserting it. I'm not sure this isn't just another species of that. In some ways, I think this is just a move we see in the court and lower courts do for a while around this and other areas of standing. That's why it's such a problem in my mind that, you know, if you are of the view that Justice Scalia not be letting their personal

values and personal perspectives shape who has access to the legal system or not, standing doctrine should be kind of enemy number one. In a certain case, at least in these certain cases, because that's exactly what's happening. But, you know, no court seems really inclined to really pull that back. You've seen little efforts occasionally to say, well, maybe we'll give people more flexibility in adjusting their complaint and some justice take a loose circumception,

others take a strict circumception. But I'm sure, you know, an outcome we're going to get from this is we're going to see a lot of lower court judges probably conservative judges cite this opinion as a basis for looking with even more scrutiny and environmental cases and other cases that based on aesthetic interest. So, you know, Chief Roberts' line that says, well, now you kind of aesthetic interest for wanting to look at a crock dial, you can't for the White House,

I'm not sure that's going to hold, because I suspect you're going to get a lot more push back about the crock dial too, from the lower courts, where justice are inherently already kind of skeptical of this a whole concept of aesthetic interest. But the consequences for who can actually

“bring these claims, I think, can be pretty substantial. So, now of course, this one plaintiff,”

and I should say that the, you know, National Historic Trust channeling the interest of this one plaintiff, or this one individual, now does not have standing in the highest spring court and there's not much anybody can do about that's including Congress, at least not readily. But that doesn't mean other people couldn't still have standing. And that could be a variety of people in my mind. Potentially, there are other private actors that might have a better case of standing, you could

think of property owners around Lafayette Square, who might have a argument that's saying, well, we've reason to believe the aesthetic arm, quote unquote, aesthetic arm will have actual pecuniary harm for us, or just have a much more direct and substantial interest and different more compelling narrative for how these things affect them, that may be harder to just miss a simple offense. They're out there, whether they're willing to sue or not, it's a bigger question.

And then you have Congress, Congress which may be in control, at least one chamber, maybe both chambers of Democrats in, you know, five short months from now. Eric talked to us a little bit about other avenues that we might see people try and revive, at least the, the contours of this lawsuit, if not this specific suit itself. Sure, I could talk about Congress, and this very issue

came up during President Trump's first term when he was building a wall along the southern border,

“and they were lawsuits brought by, believe the state of California, and also a lawsuit brought”

by the House representatives, and the House argued that this was, this spending on the wall was in violation of the appropriations clause because Congress had not appropriate money, and instead the administration had just kind of shuffled things around illegally. And the House lost in the district court on standing grounds, but prevailed in the DC circuit, and there are basically two issues here. One is whether Congress has standing at all to sue for an appropriations clause

violation, which is one of those things that we think would have been decided already after a nearly 240 years of having a constitution, but it has not. And the second question is if Congress does have such authority, must both houses sue or together, or can only, is it okay if only one house sue? And at the time, the House was in Democratic hands, but the Senate was controlled by Republicans. And the DC circuit said that one Congress does have the power and two, it's okay for only one

house to exercise it. And the analogy was that it requires two keys to open up the Treasury to spend

“money, and that Congress, the keys being the House's key and the Senate's key, and that the”

administration, in the words of the court, snatched the House's key out of its hand. And it was a bit of the price that the decision was, the opinion was written by Judge Santel, who's a fairly conservative senior judge in the DC circuit. The two judges who joined him were appointed by Democratic presidents.

But the case never reached the Supreme Court because soon afterwards, the President Biden took over,

and announced that he wasn't going to continue building the wall. So the case was moved and the Supreme Court vacated the district, the DC circuit's opinion, and in full disclosure. By that point, I was working for the House of Representatives, Office of General Counsel, and I was on the brief urging the Supreme Court not to vacate the DC circuit's decision. But that vacator was not on the merits of this space, on the fact that there was no way for the other side, the government

to challenge the DC circuit's opinion because the Trump administration was gone. So, if the Democrats take back one house, they could try this, and they might have at least some success, and even if they eventually lose in this Supreme Court, they would serve the purpose of keeping the issue the news, getting some more headlines, and taking what Democrat leadership would believe is a righteous position on the separation of powers. Yeah, it's a fascinating case. It's Manuchin V. Versus House

of Representatives. I think it's the caption for the DC circuit opinion. The one thing I recall from that case, which I'll flag, which I think might cause some headaches in this case, if it were to be

following per the letter, although there's always something it would be to kind of mood it out,

is that Judge Santel drew a pretty hard distinction between appropriation clause violations, which was what he was adjudicating there, and then statutory violations. And basically said, a single chamber might have standing to do a appropriations clause violation,

“because of the two key structure of the appropriations clause. But I think he was even pretty”

expressly dubious about being able to simply sue because of the non-compliance with the statute, because of the idea that that would be a kind of a generalized injury along with lots of other people affected by statute. That said, that logic bought borrowed from the Burwell District Court opinion that had thought about these issues in earlier context a few years, years earlier, that said, there is this case that there has to be some sort of avenue for some sort of

remedy from awful behavior for these sorts of statutes. I think this is, though. I mean, it depends on how you frame it, but I think you can very easily frame this as an appropriations clause violation, because the argument, and Molly can correct me if I'm wrong. I think the argument is, where is the source of the president's authority to do this? And they point to the White House points of various statutes that they say gives in this authority. I don't think

that the plaintiff is saying is pointing to statutes that says, you cannot do this. It's the more the absence of affirmative authority, which then makes it very similar to the wall cases and it

that Congress did, you're just, you cannot point to a place where Congress authorized or appropriate

money for this. That may be right. I mean, Chief Justice Roberts have been in open with a bunch of statutory barriers that he thought, when his case for a while was unlawful, was focused on the statutory restrictions, and then the lack of affirmative authorization, and the fact that you couldn't refer affirmative authorization from an appropriations as my recollection. But you may be right. Like maybe you could recrap, you could craft this as an appropriations, an effective appropriation

restriction because of the lack of that money. And because most appropriations are implicit, and sometimes explicit, please said, like this is supposed to be spent on authorized activities, not, you know, on authorized activities. I don't just don't know whether that would draw the line the way judge sent held in that case or not, even though I frankly think it should personally.

“Yeah, I don't want to go too far into the weeds on it, but I think I think Eric is right. You could,”

so there's a statute that says you need express authority to do this, and then they look for

the express authority. And one of the statutes that they cite is an appropriations authorization to do like care and maintenance on the White House. And they do this weird thing where they say, we're just going to use that as an authorization. And then, of course, the plaintiffs were arguing, well, actually it's just authorizing Congress to appropriate, and they have an appropriated here. It's not authorizing you to do whatever you want with the money that you have. And then they go to

this other statute, which is National Park Service Organic Act that gives the Park Service the ability to do things that like conserve the land, which Chief Justice Roberts said, you know, raising the East Wingers from placing it with a ballroom doesn't seem likely to be an example of that, but they use that so that they can take money through the National Park Services gift authority.

So ultimately, it does have to do with something that Congress hasn't given you any money to do

and finding creative ways to say that you have the money to do it. Totally, yes, totally fair. There are a few other ways, I think you might, you're going to see the government trying to distinguish the case. And I'm not sure they're all entirely not compelling. These are going to not least, because basically, we've seen an appropriation like battle over getting appropriate funds like we saw at the border wall with an express

rejection here, but that's all just because there are different cases, right? The fundamental principle that Congress should be able to indicate at least some of these constitutional authorities. I think is there, it's compelling, even though it's kind of a surprise DC circuit get there. The real question is, what are the outer limits of that? How do you get away from this idea? This is a generalized injury for a specific injury. But when you're left with no remedy,

“it is up the Congress to step in if you want to see these laws in force. If there's really no”

one else who can have standing or at least such a small unit of people with standing that even though it clearly is affecting a lot of Americans, there has to be some additional remedy. The question is, I guess, whether Congress can actually sue itself or whether it needs to collapse some of the alternative remedies like a more specific cause of action to enforce these sorts of things. And if it's the latter, then obviously it's a much heavier lift. But we'll have to wait and

say, all around I'm supportive of the idea of the Congress of standing at this, even though I have concerns about how far the court will take that argument. Well folks, we are close to at time to the day. This will not be rational security if we do not leave you some object lessons who ponder over in the week to come. Eric, what do you have for us this week? If you're like me and you have a sweet tooth that sometimes can be hard to contain, especially in the evening,

you're looking for something that will give you a little boost of sweetness without packing in

“far too many calories or sugar. And I promise I'm not getting paid for this, even if you're”

standing like a flag, but but we will take sponsors. So please reach out to us, whatever company Eric is about to endorse. Outshine fruit bars, they are delicious. They have these mini bars that are fairly thin. And if you have some discipline, can kind of fill your mouth for a little while. I the best ones in my view are pineapple and lime. I like pineapple, the pineapple in products often is very frequently sweet and this one is not. You can really taste it. They also have

strawberry, canned green, raspberry, grape, black cherry. And maybe they'll send me a free box by I'm obviously not expecting one. I love it. I love we take it out of China. I don't think I stay frozen. No, no, we're going to figure that out. But we'll figure it out in the way. They're really good. There was recently a recall of some of the flavors because they had glass in them. I'm very up to date on my outshines. The grapes have been recalled just terrible

because I recommend grape, but you can still get lemon lemons fine, but it's a little frustrating not to be able to get grape at the moment. I learned that 30 seconds ago, actually, as I was looking at right before before this. But it suffices say that if it has not been recalled in the cell in the shelves, it is probably glass free. Look carefully, but I'm aware it's still a little still fans about China or at a rational security. Molly, what would you bring for us this week?

summer tomato. I just think that I'm really not a fan of slices of like large tomatoes on my

“sandwich during the off-mumps down in DC, but I think that there is nothing better in the summer”

than an heirloom tomato with just a little bit of salt, maybe a little bit of olive oil, can make it tomato sandwich. Anyway, I think it's just like fooded. It's pureest and most delicious. And I recommend it now, especially because it's this sort of thing is going to taste gross and not that long. So get it. Well, the getting is good. I agree, tomato season. My favorite season. I have two different types of tomato growing in my garden. Nothing quite as nice as that tomato you're

holding up, but this is the time to do it. And I think, I'll throw out there. I think it's an object less than a couple years ago. The cream of tartar trick, if you have tomatoes that aren't quite as good as you want to do, a little cream of tartar with a like sugar salt pepper on them, like changes the acidity. It's amazing. So even like, Matt, tomatoes get a lot better. So drag out that tomato season as long as you can. For my object lesson, I will go to a related culinary topic with

people who listen to raps. It's going to be regularly probably been following my saga of being in a pizza chef. I love to make pizza. I make a lot of pizza. I'm constantly experimenting and trying new methods.

“I mentioned, I think last at the end of last summer, bought a very fancy outdoor 1,200 degree pizza”

oven that I've been making the appalatin style pizza. Which has been great. I love the oven. It's

fun. It's easy. But I never got quite like the rise in texture. I want on my crust. I found a

very frustrating because the appalatin crust is just foreign gradients. Salt, water, flour, yeast, and I was like, I've tried a couple different Asia. I couldn't really get it. Nothing quite got like the full rise. The chewiness I really wanted. And then I found this other recipe that was the exact same ratio as the recipe I had been using. But it gave me a specific method trick. That was so amazing. It's outcome. I thought it warranted an object lesson. Which is this. Do not do.

What lots of recipes say and just take your dry ingredients, your wet ingredients, and then combine one to the other. And then mix it together. Doesn't work. What I did at its instruction is put all the wet ingredients together. Then put in the salt in the yeast just a little bit to get it all wet. Let it admit to soak in and saturate. And then sift your flour and super slowly into the water. And stir it slowly to make like first a flour slurry. And then you add a little bit more a little bit

a little bit more. It is crazy the difference of mix. I sound like a crazy person. This is a very

odd object lesson. But I swear to God, it makes such a huge difference. It's amazing. I had the best

of my life this past weekend just by making this one little change. Because it all ends up much more hydrated, much more evenly mixed. I just kind of shifted all in, did a little bit of kneading, put in a bowl, covered it, left it overnight. And I had like perfect pizza to do the next day. So strongly recommend this particular method for any other Neapolitan pizza heads out there. It is really, really worth it. You do need that like 900 plus degree. 98985900s where you

want the temperature in the oven. You need that hot oven. So like at home, do the New York pizza or some other recipe. If you don't have one of those, but if you got it, you're going to need a pot and style. This method is 100% the way to go. I was super impressed by it. And with that a little bit of pizza enthusiasm, Renee, bring us some of what you bring us for your object lesson this week. Does not have to be pizza or culinary related, but I also have heirloom tomatoes in my garden,

but I got a kind this year that's green and red and really don't do that because it's impossible to

“tell them they're ripe. Actually, you should kind of like heal them. Like otherwise you can't tell them”

I'm like, what's still green on top? I don't know. Anyway, no, I guess I'll just like pop up as a little guy. I my daughter gave me a needle which I sort of made fun of her for collecting these because of like, why are kids obsessed with squishies? But I've just been sitting here like, ha ha ha ha ha ha ha. This was a crazy question for the last, you know, hour. And I will say that there is something to be said for I feel like really stress balls have come a very long way since we were mixing flour and water and throwing it into balloons when I was a kid and and yeah, so no, this, the needle company actually they should sponsor us too.

It's a good product. You could get a bench, respawn made. It'll be perfect. A little, little, little, little doctor, but we'll see, we're open to it guys. We're open to it. It's a sponsorship. It's only reach out until then that brings us to the end of this week's episode of Rational Security is of course a production of law fair. So be sure to visit us at lawfirmede.org for our show page for links to past episodes for our written work and the written work of other law fair contributors and for information on lawfirs, other phenomenal podcast series.

While you're at it, be sure to follow law fair on social media wherever you socialize your media. Be sure to leave it rating or review wherever you might be listening and sign up to become a material supporter of law fair on Patreon for an ad version of this podcast among other special benefits. More information visit lawfirmede.org/support our audio engineer and producer this week was known as Van of Goat rodeo and our music as boys was performed by Sophia Yan and we're once again edited by the wonderful Jen patcha.

By half of my guest Molly Eric and Renee, I am Scott our Anderson and we will talk to you next week till then goodbye.