January 1, 2025 • 36 mins
Peter Shamshiri and Michael Liroff, hosts of the podcast 5-4, examine the key developments from the Supreme Court this session. Author and historian Mary Ziegler discusses what lies ahead for reproductive rights in the coming year.
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Speaker 1 (00:00):
Hi, I'm Molly John Fast and this is Fast Politics. Well,
we discussed the top political headlines with some of today's
best minds.
Speaker 2 (00:08):
We're on vacation, but that doesn't mean we don't have
a great show for you today. Peter Sham Sherry and
Michael Grew of the podcast five four stop by to
tell us what they are seeing from the Supreme Court
this session. But first we'll talk to author and historian
Mary Ziegler about the coming year reproductive rights.
Speaker 3 (00:23):
Welcome back to Fast Politics, Mary Ziggler, Thanks for having me.
Speaker 1 (00:28):
One of the things that I think is so interesting
is the first Trump administration. They tried to do a
lot of stuff and they had no legal framework, but
it didn't much matter because they couldn't you know, they
just kept losing in court, right because they had no
legal framework. They were unable to make the sale on
a lot of these policies and they never really got
(00:50):
up to the Supreme Court. Now, over the last four years,
I feel like Trump world has found all of these
different ways to sell some of their ideas and they're
kind of these Victorian era laws that were never taken
off the books.
Speaker 3 (01:09):
Is that right?
Speaker 4 (01:10):
That's right? I mean so I think there was obviously
a moment when people in the anti abortion movement believed
that they could get policies at the federal level like
the ones they were getting at the state level, especially
for Republicans controlled the Congress, right and you know, a
write to conception acts, fifteen week bans, and I think
increasingly people in the anti abortion movement realized that voters
(01:33):
would hate that, and that as a result, Republican politicians
and competitive districts are not likely to go with that route.
So these laws became really compelling because one they didn't
require lawmakers to do anything, and two they sort of
allowed lawmakers to pass the buck and say, we're not
actually passing these laws, We're just allowing prosecutors who are
(01:56):
nominally independent, that discretion to force the law, right.
Speaker 3 (02:01):
To enforce a law that hasn't been enforced in one
hundred years.
Speaker 4 (02:05):
Yeah, So it became this sort of if you think
sometimes about how Trump will talk about Tom Bondi, it's
often I'm not going to tell her what to do.
She'll be making these decisions independently. And anti abortion groups
followed that up by saying, it's just the rule of law.
Of course, it's not just the rule of law, because
the interpretation of these zombie laws is often not actually
(02:27):
what courts have ever thought they mean. It's making new
stuff up, and two it's enforcing laws no one actually
remembered existed in ways they're ever enforced. So it's definitely
not just rule of law or prosecutorial discretion. But that's
the kind of argument we're going to hear, right, right.
Speaker 1 (02:46):
Right, So explain to us a little bit about some
of these zombie laws.
Speaker 3 (02:51):
Let's start with Comstock.
Speaker 4 (02:52):
Yeah, Clemstock's the most important. It was in eighteen seventy
three obscenity law, and abortion made its way into this
law because the people who framed it saw abortion and
contraception and other drugs that were sort of ambiguous in
terms of how they worked, like period regulators, as the
sort of thing that made it easier for people to
have illicit sex because they worry about getting pregnant. So
(03:16):
even though the statue was really about obsession with sex,
it didn't have anything to do with fetal protection, abortion
still made its way into the statute, along with any
other item for indecent or immoral use, whatever that means.
So anti abortion groups have basically cherry picked the abortion
language out of this statue to say, this is a
ban on mailing any abortion related drug or paraphernalia that
(03:42):
is federal right, and not just mailing it, receiving it,
ordering it online. That would apply to anybody in any state,
even a state with a balid initiative that passed, even
a blue state. So if courts buy this argument, and
it would have and if the Trump administration enforces the lawnay,
it would have incredibly sweeping effects because it would affect
(04:03):
everyone across the country.
Speaker 3 (04:04):
Okay, so what it would do.
Speaker 1 (04:07):
I want you to talk from a minute about these
Victorian obscenity laws. Since you are both a legal historian
and a legal historian, can you give us a little
backstory on sort of how they came to be.
Speaker 4 (04:21):
Yeah, well, there was a lot of anxiety that these
conservative Christian activists at the time had about sex and
the city literally, so they were this was the moment
where there's a lot of urbanization and immigration and a
fear that young men were being kind of corrupted, that
children were being corrupted, and that women were being corrupted
(04:42):
because they were choosing to leave the home, leave their
rightful roles as mothers and wives, and so the idea
was you could purify the country by controlling not just
when people had sex, but what people actually read it
and thought. So the Comstock Act part of that push.
It was an overtly Christian movement too. This was at
(05:05):
a time when many of the figures who were behind
this law were also trying to write an amendment to
the Constitution stating that the US was a Christian huntry
with a Christian constitution. But it was also a really
important moment in a creation of a surveillance state, because
if you think about it, this was the federal government
getting into everybody's sex lives at a time when there
(05:26):
was no internet, no data collection, and so it really
spawned this massive network of snitches and bounty hunters and
catfishers who used this law to go after people, along
with other people who just used the law to get
revengish on people they didn't like. So it was sort
of authorizing a lot of really nasty starting behavior. So
(05:49):
we would expect to see that come back if the
laws used again.
Speaker 1 (05:52):
Yeah, so I have a theory about these Victorian laws.
If you think about Jim Crow, which is not Victoria
is later than the Victorian era.
Speaker 3 (06:01):
But I think it.
Speaker 1 (06:02):
Speaks to this idea America was able to craft some
of the really the worst, most racist, most heinous legislation
in the period from the Victorian era, I mean even
before that, but some of the legislation that was passing
this country would so incredibly heinous that it was the
(06:23):
model for the Nuremberg Laws.
Speaker 3 (06:25):
So can you talk about that a little bit, Yeah.
Speaker 4 (06:27):
I mean the Comstock Act became a model for a
lot of things. It was a model to begin with
for state Comstock acts. So one of the kind of
morifying things about this story is that I don't even
think states know what Comstock acts they have. They're often
even more invasive than the regular old Constock Act. Like
a lot of them prohibit possession and use of birth control,
(06:47):
for example, and no one has really thought about it
because they haven't been enforced, but some of them are
still sitting there on the books. And the Comstock Act
also became a model for a lot of later invasive
law enforcement techniques that we see used to entrap a
lot of other people, people for example, who are queer.
So the Comstock Act became a blueprint for a lot
(07:11):
of things that we don't like the look of Another
thing that's really important about the Comstock Act was that
it wasn't used just to censor sex and reproduction. There's
also used to sensor speech. As you can imagine, it
was really hard to enforce the Comstock Act. Like of
course people were doing all the things the Comstock Act city,
you couldn't do all the time without getting caught. So
(07:32):
a lot of the people who were invested in it,
like Anthony Comstock, tended to go after their political critics
and not just for you know, what they were doing,
but what they were saying for criticizing the Comstock Act.
So it's a reminder that this is obviously has a
lot of present day residents that civil liberties and free
(07:52):
speech are not sort of hived off from reproductive rights
in any kind of meaningful way. They tend to travel together,
and that was definitely true in the Comstock Hera too.
Speaker 1 (08:00):
One of the things when you look at these old laws,
and I'm hoping we can talk now about the Alien
Insurrection Act, so a lot of these laws are like
grouped together by time, you know. So the Alien Insurrection
Act starts in the War of eighteen twelve, right around
then is the first time it's used.
Speaker 3 (08:18):
It's used to.
Speaker 1 (08:19):
Go after the British, but it has that same kind
of speech thing. Can you talk about the speech thing?
In that law? They have alien enemies that are from
the countries that are supposedly the countries at war with
so the British and War of eighteen twelve, or Germans
during World War one and two, or Japanese during World
(08:41):
War two, which was the thesis for those internment camps.
But there is also another section in the Alien Enemies
Act of people who are journalists.
Speaker 4 (08:51):
Basically, yeah, I mean, so there's provisions of the Insurrection
Act that allow the president to deploy troops even if
states don't request them. I mean, it makes sense. Parts
of it make more sense if states actually are being
invaded and they can't use their own troops, they ask
the president for help. That makes sense. But they're parts
of the law that allow the president to deploy troops
against the states wishes when there are things like unlawful obstructions, combinations, assemblages,
(09:17):
or rebellion that make it impossible to enforce federal law.
And of course part of the fear is that the
term assemblages, right or could be something that could be
used just against protesters or journalists. Right, absolutely, yeah, especially
so there's some fear that this could be used in
ways that it hasn't been used before. It's also not
(09:41):
clear who gets to decide. The Supreme Court seems to
think that the president alone really is the one that
gets to decide, even though courts have sort of later
suggested that they can review whether the military did something
lawful after the fact. That might not be much of
a check.
Speaker 3 (10:01):
That's like the understatement of the year.
Speaker 1 (10:04):
What happens, So let's just talk for another minute about
zombie laws. So what's going to happen? Firdsting's first Alien
Insurrection Act I think is going to get the most
play because as much as Trump wants to use Comstock,
Trump is not an anti choice Zalad the way a lot.
Speaker 3 (10:20):
Of people in the party are.
Speaker 1 (10:21):
So I think a more likely scenario as we start
with alien enemies, so he's going to have to declare
war with Mexico.
Speaker 4 (10:29):
Right, potentially, I mean it could come up even with protests, right,
I mean, I think one of the more likely ways.
He's hinted it. Lots of different ways he might try
to invoke this, he scented that he could use it
to assist in this kind of mass deportation program he
has in mind. He scented that he could use it
not in response to that, but in response to protests
(10:50):
that might greet that or other things he's doing, because
the more common applications of the Insurrection Act have been
in response to protests. Right, So, the most recent invocation
of it was in nineteen ninety two when there were
riots in la following the beating of Rodney King. And
it wasn't the scenario where the President just imposed this stuff.
It was the state of California asked for help. Usually
(11:11):
it's when they're protests or riots, not just you know,
people who are here un instrumented. So it depends on
how aggressive Trump wants to be and whether he wants
to sort of be in it expanding radically a category
that we've seen in the past, or applying the law
in an even more novel way.
Speaker 3 (11:29):
What would the pushback look like to that.
Speaker 4 (11:31):
I think there are different forms of pushback depending on
what the order is. There may be pushback from within
the military. That's not something that you know, we would
see unfolding in the courts. But that would be one
form of pushback. We know that when Trump was invoking
the Insurrection Actor the Pose Committist Act in his first administration,
(11:52):
there were moments when some people within the military were hesitant.
It's unclear if that'll happen again. There could be legal
channallenges too, whether or not again, and sort of unclear
whether those legal challenges will actually affect the behavior of
people on the ground being given these orders or not.
(12:13):
And it's also unclear what courts will say, because it
seems as if the president has a lot of discretion
under the Insurrection Act, even according to what courts have
said in the past, not unlimited. But I don't know
what court challenges would look like. So there's a lot
of uncertainty, to be honest, because we haven't seen the
Insurrection actually invoked by anyone since nineteen ninety two, which
(12:37):
is the longest period in our history that we've gone
without it being invoked, and we haven't really seen it
invooked in some ways in the past that Trump has
hinted he might want to again, we don't know if
he's going to follow through. He's ex lots of possibilities,
he doesn't actually follow through on. But if he did,
and some of these were unprecedented, we also don't know
(12:57):
if there were court challenges, if that would change you
know again, I don't think it would, but it's hard
to say because it would be unprecedented.
Speaker 1 (13:05):
Right, I mean, that's the thing. It's like a lot
of this stuff, it's hard to imagine. I mean, will
you talk us through what this sort of landscape looks
like in the courts for a minute.
Speaker 4 (13:15):
It's complicated too. The Supreme Court is obviously very conservative.
It already has three members selected by Donald Trump. It's
likely to wind up with a majority selected by Donald
Trump by the end of the substation.
Speaker 3 (13:27):
Forever and ever until we die.
Speaker 4 (13:30):
The one thing that's not going to be as game
changing about that is the most likely justices to be
replaced by Trump are Justices Thomas and Alito, who are
actually more conservative than the people Trump already picked. So
it may not really change the Court's partisan complexion that much.
Even if Trump finds people who are just as conservative
as Thomas or Aledo, or even more conservative than Thomas
(13:52):
or Alito, it won't necessarily so, I mean, the only
way the US Supreme Court becomes radically different is if
there's an unplanned retirement by someone like Sonya Soto Mayor
or even John Roberts, who are both in their early seventies,
that's not super likely because they're not particularly old, they're
not likely to want to retire of their own volition.
(14:15):
The federal courts in general are still quite conservative, although
less so than when Joe Biden took office, because Biden,
like Trump before him, put a record number of people
on the federal courts. But in the next four years
the pendulum is obviously get to swing very dramatically in
the other direction because Trump is going to again rush
(14:36):
to fill the federal courts that were already very conservative.
So these challenges are going to increasingly be going before
judges that Trump put on the court, who are likely
to be predisposed to agree with him on whatever the
questions are.
Speaker 1 (14:50):
There's a very conservative circuit that kicks a lot of
stuff up to the Supreme Court, right.
Speaker 4 (14:55):
So the Fifth Circuit Court of Appeals. Oh and just
to be clear, do you mean the Alien Insedition the
Insurrection Act?
Speaker 3 (15:01):
Wait say it again.
Speaker 4 (15:02):
It's well, so there's the Alien and Sedition Acts, which
were about the press. That's what I'm thinking about well, okay, well,
so I was talking about the Insurrection Act, which is
also useful for protests, but we can talk about the
Alien and Sedition Acts. Yeah, let's talk about that for
a minute. Those were the acts that were used to
start the internment camps in the Japanese. Trump wants to
(15:22):
deport people using what's called the Alien Enemies Act. Yes,
the Alien which was yeah, so I wasn't sure what
you meant. That was why I was confused. So there's
actually an Insurrection Act too, So that was what I
was saying.
Speaker 3 (15:34):
Yes, Yes, that's the one he tried to use last time. Yeah,
and you might use that too.
Speaker 4 (15:38):
So the Alien Enemies Act was passed in seventeen ninety
and it allows presidents to apprehend and remove people who
are foreign nationals when the US is at war. The
only time it's ever been used has been after Congress
has actually formally declared war, so in eighteen twelve and
World War one and two. Trump has been hinting that
(16:01):
he wants to use it to make it easier to
deport people, because it would allow him to bypass immigration courts. Usually,
if you're deporting people, they have certain due process interests.
Before those deporportations take place, some of them might have
been trying to invoke the asylum. If he's allowed to
invoke the Alien Enemies Act instead, he could remove a
(16:22):
lot of people much more easily because the law gives
presidents pretty broad authority to remove non citizens if they're
not minors at a time of declared war. It's a
little different from the Alien and Sedition Acts, which were
passed at the same time and largely kind of criminalized
political dissent. Most of those either were repealed by Congress
(16:44):
or expired, but the Alien Enemies Act, which came from
that same kind of dictatorial impulse, survived and is available
theoretically for a president to use.
Speaker 1 (16:56):
Wouldn't Congress have to declare war before he could do
it or not?
Speaker 4 (17:00):
Well, yeah, it's never been used before in the way
that Trump is proposing. But the text and history of
the law will make it very hard to justify what
Trump's trying to do. So it generally says you need
an invasion or predatory incursion. That's the language by a
foreign nation or government. And here, you know, Congress obviously
(17:22):
hasn't declared war on anybody. There hasn't been an evasion
invasion against US territory in a really long time. And
even if Trump tries to say, you know, drug cartels
are declaring a war, they're not actually national governments, so
they don't seem to be the criteria of the law.
It's also so there's no real precedent for using this
(17:43):
the law this way historically, there doesn't appear to be
a textual justification for doing it.
Speaker 3 (17:50):
But that doesn't mean Trump won't do it.
Speaker 4 (17:52):
Yeah, number one and number two, I think what Trump
would try to argue would essentially be to say, hey,
you know, the courts shouldn't be intervene in what is
a military decision of the president. That there should be
a lot of discretion in to national security matters decided
by the president. So I think that's the risk that
courts just our hands off, even though both history and
(18:17):
text of the law seem to point in the direction
of Trump not being able to do this.
Speaker 3 (18:22):
Yeah, Mary, thank you for joining us. I hope you'll
come back.
Speaker 4 (18:26):
Okay, of course, my pleasure.
Speaker 2 (18:31):
Peter shab Sherri and Micha Olier are two of the
hosts of the podcast five.
Speaker 1 (18:35):
Four Welcome Back Too Fast Politics. We have two of
the three members of the five to four podcast, which
is one of my absolute favorite podcasts in the entire world.
Speaker 3 (18:49):
Probably you know.
Speaker 1 (18:49):
What, fuck it, it's the best part. Don't listen to this,
just listen to that. Okay, that will.
Speaker 3 (18:55):
Make you smarter. I will only do terrible things. And
I know no, I'm just kidding. I'm very smart to NATA. Yeah, welcome, Michael, Welcome, Peter.
Speaker 5 (19:04):
Thank you, Balin, thanks for having us.
Speaker 1 (19:06):
I wanted you guys so much because of all the
terrible things that are coming, and many of them have
a bizarre zombie legal framework discuss.
Speaker 5 (19:21):
Sure, Okay, So I mean, I guess the way I've
been thinking about this is like, what do the different
worst case scenarios look like, and what are the potential
roadblocks between here and those worst case scenarios are. That's
actually like, it's not a very encouraging exercise, so.
Speaker 3 (19:39):
Like, oh yeah, so let's do it please.
Speaker 5 (19:42):
One example I've been thinking of is like, so Trump
deshot tries to deport twenty million people. There are countries
that could take twenty million people in the next two three,
four years, So there will inevitably be camps. There will
be images of the camps the conditions will be bad.
There will be lawful, permittent residents and even citizens who
(20:03):
end up in the camps because they're centralized orre you catabise.
Speaker 1 (20:08):
Yes, likely journalists will be later in the camps, and
the earlier camps will just be people who they think,
look Maxican.
Speaker 5 (20:16):
That's correct. This will lead to widescale protests, especially in cities, which,
as we saw during the BLM movement, might lead to
Trump trying to deploy the US military on US soil
to control protests. Right, and so you think about that,
that's sort of a worst case scenario, is the US
(20:38):
military being used to quell domestic unrest? And how we
get there? And then you so, what are the roadblocks
to this? Well, it cost a lot of money. Congress
is already appropriating a lot of money to the border. Well,
there are laws that prevent the president from deploying the
military on US soil. Well, the Supreme Court said that
he has immunity, so that law doesn't. And you can
(21:00):
just go down the line and be like, well, actually,
the guardrails between here and there are very few, and
a lot of times relying on like Amy Cony Barrett
or John Thune you know, some random Republican senator or
something like that, and it's just scary. But it's also
(21:23):
very uncertain because we don't know what Trump's actually can
get a try, and we don't know how far he's
willing to go, and so a lot of it just
feels like being tied to a train track and you know,
just watching the train come in.
Speaker 3 (21:37):
Peter taunts.
Speaker 6 (21:39):
I agree with all of that. I also think that
if you're taking the cynical approach, which I do, what
Trump wants out of the Judiciary, for example, is for
it to function essentially as a legitimizing operation for him.
Right he was very irritated in his first term by
(22:00):
the resistance he got from the Supreme Court. I think
it's safe to say that he does not particularly I
don't want to say stand behind, but he's not particularly
a fan of his initial choices to the Court, especially
Kavanaugh and Barrett. A big part of that is because
they did not stand behind him during the Stop the
(22:20):
Steal endeavor. I think what he wants out of the
Judiciary this time around is for it to be loyal
to him, just like he wants the rest of the
Republican Party to be loyal to him. I think that's
what we should expect out of his nominees and appointees
to the judiciary. And I think that it's important to
understand that, like the judges throughout the federal courts, the
(22:43):
conservative judges throughout the federal courts are now part of
a political movement that is essentially just the Donald Trump Show,
and what gets you ahead in that political movement is
loyalty to Donald Trump. So it's very hard to predict
exactly how much friction is going to exist between the
judiciary and Trump, but I would say it's a safe
(23:04):
bet that it's going to be less than last time.
And that's what has me worried, And I think the
exact contours of it are very hard to predict. But
I'm not looking forward to learning exactly what the dynamic
is between the judiciary and Trump this time around.
Speaker 3 (23:18):
Yeah, I just want to sort of pull back for
a minute.
Speaker 1 (23:21):
It seems like the big difference between Trump one point
zero and Trump two point zero is that Trump two
point zero has the sort of somebody at the Heritage
Foundation cooked up a few ideas of like racism that's
worked in previous centuries and have decided that they are going.
Speaker 3 (23:39):
To use that as a legal framework. Do you think
that's correct.
Speaker 6 (23:43):
There's definitely some truth to it. I mean, I think
that what we're seeing now is the result of a
conservative political movement that has spent what's almost a decade
now being a little bit more proactive, thinking that a
lot of barriers that they previously thought existed are now
being shattered or can be shattered. I think Trump has
(24:04):
sort of brought to the forefront of their minds a
lot of political possibility, and one of those possibilities is, well,
we can peel back major elements of the New Deal,
we can peel back major elements of these civil rights movement,
these things that we thought were sort of done deals,
Maybe we can fight over them. And they are now
(24:25):
putting in an effort to, for example, attack birthright citizenship
right and we'll see how far that gets them. But
they believe that it's on the table.
Speaker 5 (24:33):
Yeah. I wanted to talk about birthright citizenship when you
started this whole line of thought, because it's worth emphasizing
that this is like one part of the settlement of
the Civil War, the reconciling of that, you know, very
costly conflict the breeding of African Americans into full citizenship status.
(24:56):
So attacking it is very much like trying to unwind
quite literally the settlement of that.
Speaker 1 (25:03):
Yeah, and also just the sort of it's a blow
against the civil rights movement, yes.
Speaker 5 (25:08):
Go on, but also that it is one of the
most unambiguous provisions in the Constitution and has very settled
meaning in constitutional law or since it's been around, you know,
both in like writings and in practice, and so so
the idea that they could attack that is you know,
(25:30):
I think in basketball they would call that like a
heat check, right, like they're feeling very good right now
and seeing just how much they can get away with.
And that's scary in it of itself.
Speaker 1 (25:42):
Yes, now, as I'm the only person, I keep saying
this because it's annoying to me. But since I'm the
only person who ever looked at their priors with this
election and was like, how did I go wrong? Whereas
everyone else just was like how did other people go wrong?
I think I'm too optimistic when I think about what
Republicans could cook up and also what the American voters
(26:05):
might reject. So I want to couch this in my
own optimism and what that means, but it does seem
like not specifically the Koch brothers, but the Koch Brothers
esque wing of the party has decided that this wrecking
ball can fulfill a lot of their fantasies, the wrecking
ball being Trump. But if we remember anything from Trump
(26:29):
one point zero, it's that my man cannot do much
because he gets very distracted.
Speaker 6 (26:35):
Yeah, that's the reality of Trump, and I think it's
probably the only reason for optimism is are they so
incompetent that they're not going to be able to really
pull any of this off. Obviously we will see chaos
in the Trump White House. We will see incompetence in
various forms. But when your primary objective is to destroy,
(26:57):
competence doesn't always matter that much. And I also think
that the first Trump term was really defined by a
tug of war between the Trump wing and the establishment.
Part of that was just because he had to bring
establishment elements into the fold because there weren't enough loyalists
(27:18):
in twenty sixteen, twenty seventeen. That's no longer the case.
Right now, the Trump wing of the party has effectively
won and they are in control politically, and I would
imagine that that means that we're going to see a
little less friction within the Trump White House, within the
administration itself, and a little more of people ready to
(27:43):
say how high when he says jump. So we'll see
exactly what plays out. It's again one of those things
that's just really hard to predict because these people are
all absolute nut jobs politically and also in their personal lives.
Right they cannot all sit in a room together and
hash something out out. Something will go wrong. We just
don't know what's going to go wrong yet.
Speaker 3 (28:05):
Yes, for sure. Do you have another thought here, Michael?
Speaker 5 (28:09):
There's so much going wrong in our country right now.
I think it's a mistake to, you know, be like X,
Y or Z are like the big problem. But like
one issue that is very real is that Congress has
been somewhat dysfunctional for decades, and that dysfunction leaks out
into other branches. And the longer it festers, right, the
(28:33):
longer this sort of infection grows, the bigger our reforms
have to be. The harder the lift is to fix it. Right,
there is a point in time when you probably could
have gotten away with some modest gerrymandering and filipbuster reform
and things like that, and the federal government could have
(28:54):
just limped on moderately functional. Now it's like you got
to reform the Supreme Court. You might have to rethink
the entire administrative state at how that works, which affects,
you know, everything in this country. And the next four
years are going to be an opportunity cost where things
(29:14):
are just going to get worse. The government's capacity is
going to degrade, and it's going to give us more
to do when we do get powered back.
Speaker 3 (29:22):
Yeah, if we get pack.
Speaker 5 (29:24):
If we get bout that.
Speaker 1 (29:25):
Yeah, I mean I shouldn't talk like that because obviously
there are going to be elections, they'll be midterms, they'll
be presidentials, and we have to protect norms and institutions.
Speaker 3 (29:33):
Speaking of protecting norms and institutions, I.
Speaker 1 (29:36):
Want to go back to Congress actually for a second,
because I think, Michael you had a really good point
about Congress. So the last Congress, Mike Johnson had this
very slim majority. It was one of the stupidest Congresses ever.
I know it was stupid because even Jake Sherman from
punch Ball said he couldn't believe how stupid it had gotten. Right, So,
like clearly, very very very stupid. He has less of
(30:00):
majority now, so legislatively and in the last session they
couldn't even name post offices, so legislatively, nothing is going
to happen.
Speaker 3 (30:10):
Do you think that's correct?
Speaker 1 (30:11):
And does it necessarily even matter if Trump is going
to just do eos.
Speaker 5 (30:15):
My guess would be that they're not going to be
able to muster the votes for big social legislation. I
think they're going to be able to smuggle in a
lot of stuff into budgetary bills.
Speaker 4 (30:25):
You know.
Speaker 5 (30:25):
That was why the example I used was mass deportation,
because that's one where they can just remark a lot
of money for the border and let Trump go wild.
And that's my concern. That's where I think the biggest
concerns should be, is that things are going to be
bad with deportations, with rounding people up in large numbers.
(30:47):
I don't know that it's for sure going to happen,
but I'm very scared of it.
Speaker 6 (30:51):
I would also say that a lot of the conservative
project can be done through the executive branch in conjunction
with the judiciary. So if you're talking about stripping the
administrative state down to its bones, that's something that they
don't need Congress for. In fact, Congress is a thorn
in their side, and the entire point of the conservative
(31:12):
project is to box Congress out of the process. So
what you do is challenge Congress's authority to exert influence
over administrative agencies and then drag that into court. So
I'm concerned about that. I am concerned about what they
can accomplish, not just through executive orders but just by
sort of your standard operating procedure control over the administrative state. Right,
(31:34):
many conservatives believe in a very centralized mode of control
in that regard, and it's pretty disconcerting.
Speaker 3 (31:42):
And this is the Ross Vaught story, right.
Speaker 1 (31:44):
Rots Vought moved into omb one of the architects of
Project twenty twenty five, and he is a person who
in Trump one point zero was like, let's just not
write the check.
Speaker 6 (31:56):
There are a lot of people like that who ten
years ago, even within GOP ranks, would have been dismissed
as cranks, who are now getting a lot of attention.
And I think will be a big story in the
years to come because you're I think you're right, Molly,
legislation is not really going to happen They're not going
(32:17):
to pass anything major other than I would imagine another round.
Speaker 1 (32:21):
Of tax cuts for rich people, as one would hope,
because that was why they were put there.
Speaker 6 (32:26):
Right right. I think there are a lot of things
that can happen with the administrative state. I don't want
to get into a place where I'm just trying to guess,
but part of the conservative project for many, many years
has been to sort of rip out the civil servants
that compose the administrative state and replace replace them with hacks,
replace them with conservative patronage jobs. That's something you could
(32:48):
see happening in the coming years. I wouldn't be surprised
if you see core challenges and sort of a little
bit of back and forth over what exactly is allowed
and what isn't. But they're going to want They're gonna
want to do that.
Speaker 2 (33:01):
There.
Speaker 6 (33:01):
You know, Trump's been talking about firing Jerome Powell. There's
there's a lot of things they want to do.
Speaker 3 (33:06):
Yeah.
Speaker 1 (33:06):
I would like to point out one of Trump's biggest donors.
Speaker 3 (33:10):
The one guard rail any of us have.
Speaker 1 (33:14):
Is that one of his biggest donors, named a hedge
funder from Chicago whose name now escapes me, was a
deal book and was like, Trump, you don't get to
fire the head of the fad. That's good And I
was like, oh good, I felt much better.
Speaker 6 (33:31):
You is that who is that that Ken Griffin or
is that someone else Griffin?
Speaker 3 (33:34):
It's Ken Griffin.
Speaker 1 (33:35):
Ken Griffin A deal book said we really would be
disappointed if.
Speaker 3 (33:38):
Donald Trump fired Jerome Powell.
Speaker 1 (33:40):
Which is as good as a guardrail as far as
I can tell.
Speaker 6 (33:45):
Yeah, it's always a disconcerting thing when we're hoping to
rely on the largess of right wing billionaires to save us.
But I guess those are the breaks in some respects.
Speaker 3 (33:56):
Yeah, that's where we are. It's pretty dark.
Speaker 5 (33:58):
Yeah. The foot side of that, though, is you know,
I think the billionaires they want economic stability. I think
they benefit from economic stability. Another thing that I think
Trump has a lot of leeway with is tariffs, which
can bring a lot of instability and also create a
lot of opportunity for graft, which is very much Trunk's thing.
(34:21):
He can give special exceptions to companies on the tariffs
and give them a competitive advantage in exchange for some
sort of payoff, which is this is what he wants
to do. He wants to personally profit off his position.
So this is like a quintessential Trump thing. So I
assume we are going to get some tariffs and that's
going to be hard on the American economy. We're all
(34:44):
going to feel that pain.
Speaker 1 (34:45):
When you look at the inauguration pay for play. That's
what's going on there too, Right. Tech companies are like,
he's going to pick the winners and losers. We want
to be winners, that's right.
Speaker 6 (34:56):
Yeah, I mean not just tech companies.
Speaker 3 (34:58):
ABC News, Yes, yes.
Speaker 6 (35:01):
You know you're seeing the sort of broad concern that
he is going to lean on actors within the private
sector in various regards, and those actors want to get
in his good graces and also get in on the
grift wherever they can. I mean, the sort of his
billionaire donors are sort of in two different camps. One
(35:23):
is the Ken Griffin types. You know, he's the head
of Citadel, which is like this big market maker and
hedge fund and they probably want market stability. But the
Silicon Valley side doesn't necessarily want stability. They might want
chaos because they want to be able to rip out
enough regulations that they can commit massive securities fraud. And
you know monetize every single aspect of human existence. So
(35:47):
there's there's a lot going on in the trunk camp.
Speaker 3 (35:50):
I laugh to keep from crying.
Speaker 5 (35:52):
Yes our tagline, Yes, I hope you guys will please
come back soon, absolutely whenever you want to.
Speaker 6 (36:00):
So happy, too, happy too.
Speaker 3 (36:02):
That's it for.
Speaker 1 (36:03):
This episode of Fast Politics. Tune in every Monday, Wednesday,
Thursday and Saturday to hear the best minds and politics
make sense of all this chaos. If you enjoy this podcast,
please send it to a friend and keep the conversation going.
Speaker 3 (36:22):
Thanks for listening.
Hi, I'm Molly John Fast and this is Fast Politics. Well,
we discussed the top political headlines with some of today's
best minds.
Speaker 2 (00:08):
We're on vacation, but that doesn't mean we don't have
a great show for you today. Peter Sham Sherry and
Michael Grew of the podcast five four stop by to
tell us what they are seeing from the Supreme Court
this session. But first we'll talk to author and historian
Mary Ziegler about the coming year reproductive rights.
Speaker 3 (00:23):
Welcome back to Fast Politics, Mary Ziggler, Thanks for having me.
Speaker 1 (00:28):
One of the things that I think is so interesting
is the first Trump administration. They tried to do a
lot of stuff and they had no legal framework, but
it didn't much matter because they couldn't you know, they
just kept losing in court, right because they had no
legal framework. They were unable to make the sale on
a lot of these policies and they never really got
(00:50):
up to the Supreme Court. Now, over the last four years,
I feel like Trump world has found all of these
different ways to sell some of their ideas and they're
kind of these Victorian era laws that were never taken
off the books.
Speaker 3 (01:09):
Is that right?
Speaker 4 (01:10):
That's right? I mean so I think there was obviously
a moment when people in the anti abortion movement believed
that they could get policies at the federal level like
the ones they were getting at the state level, especially
for Republicans controlled the Congress, right and you know, a
write to conception acts, fifteen week bans, and I think
increasingly people in the anti abortion movement realized that voters
(01:33):
would hate that, and that as a result, Republican politicians
and competitive districts are not likely to go with that route.
So these laws became really compelling because one they didn't
require lawmakers to do anything, and two they sort of
allowed lawmakers to pass the buck and say, we're not
actually passing these laws, We're just allowing prosecutors who are
(01:56):
nominally independent, that discretion to force the law, right.
Speaker 3 (02:01):
To enforce a law that hasn't been enforced in one
hundred years.
Speaker 4 (02:05):
Yeah, So it became this sort of if you think
sometimes about how Trump will talk about Tom Bondi, it's
often I'm not going to tell her what to do.
She'll be making these decisions independently. And anti abortion groups
followed that up by saying, it's just the rule of law.
Of course, it's not just the rule of law, because
the interpretation of these zombie laws is often not actually
(02:27):
what courts have ever thought they mean. It's making new
stuff up, and two it's enforcing laws no one actually
remembered existed in ways they're ever enforced. So it's definitely
not just rule of law or prosecutorial discretion. But that's
the kind of argument we're going to hear, right, right.
Speaker 1 (02:46):
Right, So explain to us a little bit about some
of these zombie laws.
Speaker 3 (02:51):
Let's start with Comstock.
Speaker 4 (02:52):
Yeah, Clemstock's the most important. It was in eighteen seventy
three obscenity law, and abortion made its way into this
law because the people who framed it saw abortion and
contraception and other drugs that were sort of ambiguous in
terms of how they worked, like period regulators, as the
sort of thing that made it easier for people to
have illicit sex because they worry about getting pregnant. So
(03:16):
even though the statue was really about obsession with sex,
it didn't have anything to do with fetal protection, abortion
still made its way into the statute, along with any
other item for indecent or immoral use, whatever that means.
So anti abortion groups have basically cherry picked the abortion
language out of this statue to say, this is a
ban on mailing any abortion related drug or paraphernalia that
(03:42):
is federal right, and not just mailing it, receiving it,
ordering it online. That would apply to anybody in any state,
even a state with a balid initiative that passed, even
a blue state. So if courts buy this argument, and
it would have and if the Trump administration enforces the lawnay,
it would have incredibly sweeping effects because it would affect
(04:03):
everyone across the country.
Speaker 3 (04:04):
Okay, so what it would do.
Speaker 1 (04:07):
I want you to talk from a minute about these
Victorian obscenity laws. Since you are both a legal historian
and a legal historian, can you give us a little
backstory on sort of how they came to be.
Speaker 4 (04:21):
Yeah, well, there was a lot of anxiety that these
conservative Christian activists at the time had about sex and
the city literally, so they were this was the moment
where there's a lot of urbanization and immigration and a
fear that young men were being kind of corrupted, that
children were being corrupted, and that women were being corrupted
(04:42):
because they were choosing to leave the home, leave their
rightful roles as mothers and wives, and so the idea
was you could purify the country by controlling not just
when people had sex, but what people actually read it
and thought. So the Comstock Act part of that push.
It was an overtly Christian movement too. This was at
(05:05):
a time when many of the figures who were behind
this law were also trying to write an amendment to
the Constitution stating that the US was a Christian huntry
with a Christian constitution. But it was also a really
important moment in a creation of a surveillance state, because
if you think about it, this was the federal government
getting into everybody's sex lives at a time when there
(05:26):
was no internet, no data collection, and so it really
spawned this massive network of snitches and bounty hunters and
catfishers who used this law to go after people, along
with other people who just used the law to get
revengish on people they didn't like. So it was sort
of authorizing a lot of really nasty starting behavior. So
(05:49):
we would expect to see that come back if the
laws used again.
Speaker 1 (05:52):
Yeah, so I have a theory about these Victorian laws.
If you think about Jim Crow, which is not Victoria
is later than the Victorian era.
Speaker 3 (06:01):
But I think it.
Speaker 1 (06:02):
Speaks to this idea America was able to craft some
of the really the worst, most racist, most heinous legislation
in the period from the Victorian era, I mean even
before that, but some of the legislation that was passing
this country would so incredibly heinous that it was the
(06:23):
model for the Nuremberg Laws.
Speaker 3 (06:25):
So can you talk about that a little bit, Yeah.
Speaker 4 (06:27):
I mean the Comstock Act became a model for a
lot of things. It was a model to begin with
for state Comstock acts. So one of the kind of
morifying things about this story is that I don't even
think states know what Comstock acts they have. They're often
even more invasive than the regular old Constock Act. Like
a lot of them prohibit possession and use of birth control,
(06:47):
for example, and no one has really thought about it
because they haven't been enforced, but some of them are
still sitting there on the books. And the Comstock Act
also became a model for a lot of later invasive
law enforcement techniques that we see used to entrap a
lot of other people, people for example, who are queer.
So the Comstock Act became a blueprint for a lot
(07:11):
of things that we don't like the look of Another
thing that's really important about the Comstock Act was that
it wasn't used just to censor sex and reproduction. There's
also used to sensor speech. As you can imagine, it
was really hard to enforce the Comstock Act. Like of
course people were doing all the things the Comstock Act city,
you couldn't do all the time without getting caught. So
(07:32):
a lot of the people who were invested in it,
like Anthony Comstock, tended to go after their political critics
and not just for you know, what they were doing,
but what they were saying for criticizing the Comstock Act.
So it's a reminder that this is obviously has a
lot of present day residents that civil liberties and free
(07:52):
speech are not sort of hived off from reproductive rights
in any kind of meaningful way. They tend to travel together,
and that was definitely true in the Comstock Hera too.
Speaker 1 (08:00):
One of the things when you look at these old laws,
and I'm hoping we can talk now about the Alien
Insurrection Act, so a lot of these laws are like
grouped together by time, you know. So the Alien Insurrection
Act starts in the War of eighteen twelve, right around
then is the first time it's used.
Speaker 3 (08:18):
It's used to.
Speaker 1 (08:19):
Go after the British, but it has that same kind
of speech thing. Can you talk about the speech thing?
In that law? They have alien enemies that are from
the countries that are supposedly the countries at war with
so the British and War of eighteen twelve, or Germans
during World War one and two, or Japanese during World
(08:41):
War two, which was the thesis for those internment camps.
But there is also another section in the Alien Enemies
Act of people who are journalists.
Speaker 4 (08:51):
Basically, yeah, I mean, so there's provisions of the Insurrection
Act that allow the president to deploy troops even if
states don't request them. I mean, it makes sense. Parts
of it make more sense if states actually are being
invaded and they can't use their own troops, they ask
the president for help. That makes sense. But they're parts
of the law that allow the president to deploy troops
against the states wishes when there are things like unlawful obstructions, combinations, assemblages,
(09:17):
or rebellion that make it impossible to enforce federal law.
And of course part of the fear is that the
term assemblages, right or could be something that could be
used just against protesters or journalists. Right, absolutely, yeah, especially
so there's some fear that this could be used in
ways that it hasn't been used before. It's also not
(09:41):
clear who gets to decide. The Supreme Court seems to
think that the president alone really is the one that
gets to decide, even though courts have sort of later
suggested that they can review whether the military did something
lawful after the fact. That might not be much of
a check.
Speaker 3 (10:01):
That's like the understatement of the year.
Speaker 1 (10:04):
What happens, So let's just talk for another minute about
zombie laws. So what's going to happen? Firdsting's first Alien
Insurrection Act I think is going to get the most
play because as much as Trump wants to use Comstock,
Trump is not an anti choice Zalad the way a lot.
Speaker 3 (10:20):
Of people in the party are.
Speaker 1 (10:21):
So I think a more likely scenario as we start
with alien enemies, so he's going to have to declare
war with Mexico.
Speaker 4 (10:29):
Right, potentially, I mean it could come up even with protests, right,
I mean, I think one of the more likely ways.
He's hinted it. Lots of different ways he might try
to invoke this, he scented that he could use it
to assist in this kind of mass deportation program he
has in mind. He scented that he could use it
not in response to that, but in response to protests
(10:50):
that might greet that or other things he's doing, because
the more common applications of the Insurrection Act have been
in response to protests. Right, So, the most recent invocation
of it was in nineteen ninety two when there were
riots in la following the beating of Rodney King. And
it wasn't the scenario where the President just imposed this stuff.
It was the state of California asked for help. Usually
(11:11):
it's when they're protests or riots, not just you know,
people who are here un instrumented. So it depends on
how aggressive Trump wants to be and whether he wants
to sort of be in it expanding radically a category
that we've seen in the past, or applying the law
in an even more novel way.
Speaker 3 (11:29):
What would the pushback look like to that.
Speaker 4 (11:31):
I think there are different forms of pushback depending on
what the order is. There may be pushback from within
the military. That's not something that you know, we would
see unfolding in the courts. But that would be one
form of pushback. We know that when Trump was invoking
the Insurrection Actor the Pose Committist Act in his first administration,
(11:52):
there were moments when some people within the military were hesitant.
It's unclear if that'll happen again. There could be legal
channallenges too, whether or not again, and sort of unclear
whether those legal challenges will actually affect the behavior of
people on the ground being given these orders or not.
(12:13):
And it's also unclear what courts will say, because it
seems as if the president has a lot of discretion
under the Insurrection Act, even according to what courts have
said in the past, not unlimited. But I don't know
what court challenges would look like. So there's a lot
of uncertainty, to be honest, because we haven't seen the
Insurrection actually invoked by anyone since nineteen ninety two, which
(12:37):
is the longest period in our history that we've gone
without it being invoked, and we haven't really seen it
invooked in some ways in the past that Trump has
hinted he might want to again, we don't know if
he's going to follow through. He's ex lots of possibilities,
he doesn't actually follow through on. But if he did,
and some of these were unprecedented, we also don't know
(12:57):
if there were court challenges, if that would change you
know again, I don't think it would, but it's hard
to say because it would be unprecedented.
Speaker 1 (13:05):
Right, I mean, that's the thing. It's like a lot
of this stuff, it's hard to imagine. I mean, will
you talk us through what this sort of landscape looks
like in the courts for a minute.
Speaker 4 (13:15):
It's complicated too. The Supreme Court is obviously very conservative.
It already has three members selected by Donald Trump. It's
likely to wind up with a majority selected by Donald
Trump by the end of the substation.
Speaker 3 (13:27):
Forever and ever until we die.
Speaker 4 (13:30):
The one thing that's not going to be as game
changing about that is the most likely justices to be
replaced by Trump are Justices Thomas and Alito, who are
actually more conservative than the people Trump already picked. So
it may not really change the Court's partisan complexion that much.
Even if Trump finds people who are just as conservative
as Thomas or Aledo, or even more conservative than Thomas
(13:52):
or Alito, it won't necessarily so, I mean, the only
way the US Supreme Court becomes radically different is if
there's an unplanned retirement by someone like Sonya Soto Mayor
or even John Roberts, who are both in their early seventies,
that's not super likely because they're not particularly old, they're
not likely to want to retire of their own volition.
(14:15):
The federal courts in general are still quite conservative, although
less so than when Joe Biden took office, because Biden,
like Trump before him, put a record number of people
on the federal courts. But in the next four years
the pendulum is obviously get to swing very dramatically in
the other direction because Trump is going to again rush
(14:36):
to fill the federal courts that were already very conservative.
So these challenges are going to increasingly be going before
judges that Trump put on the court, who are likely
to be predisposed to agree with him on whatever the
questions are.
Speaker 1 (14:50):
There's a very conservative circuit that kicks a lot of
stuff up to the Supreme Court, right.
Speaker 4 (14:55):
So the Fifth Circuit Court of Appeals. Oh and just
to be clear, do you mean the Alien Insedition the
Insurrection Act?
Speaker 3 (15:01):
Wait say it again.
Speaker 4 (15:02):
It's well, so there's the Alien and Sedition Acts, which
were about the press. That's what I'm thinking about well, okay, well,
so I was talking about the Insurrection Act, which is
also useful for protests, but we can talk about the
Alien and Sedition Acts. Yeah, let's talk about that for
a minute. Those were the acts that were used to
start the internment camps in the Japanese. Trump wants to
(15:22):
deport people using what's called the Alien Enemies Act. Yes,
the Alien which was yeah, so I wasn't sure what
you meant. That was why I was confused. So there's
actually an Insurrection Act too, So that was what I
was saying.
Speaker 3 (15:34):
Yes, Yes, that's the one he tried to use last time. Yeah,
and you might use that too.
Speaker 4 (15:38):
So the Alien Enemies Act was passed in seventeen ninety
and it allows presidents to apprehend and remove people who
are foreign nationals when the US is at war. The
only time it's ever been used has been after Congress
has actually formally declared war, so in eighteen twelve and
World War one and two. Trump has been hinting that
(16:01):
he wants to use it to make it easier to
deport people, because it would allow him to bypass immigration courts. Usually,
if you're deporting people, they have certain due process interests.
Before those deporportations take place, some of them might have
been trying to invoke the asylum. If he's allowed to
invoke the Alien Enemies Act instead, he could remove a
(16:22):
lot of people much more easily because the law gives
presidents pretty broad authority to remove non citizens if they're
not minors at a time of declared war. It's a
little different from the Alien and Sedition Acts, which were
passed at the same time and largely kind of criminalized
political dissent. Most of those either were repealed by Congress
(16:44):
or expired, but the Alien Enemies Act, which came from
that same kind of dictatorial impulse, survived and is available
theoretically for a president to use.
Speaker 1 (16:56):
Wouldn't Congress have to declare war before he could do
it or not?
Speaker 4 (17:00):
Well, yeah, it's never been used before in the way
that Trump is proposing. But the text and history of
the law will make it very hard to justify what
Trump's trying to do. So it generally says you need
an invasion or predatory incursion. That's the language by a
foreign nation or government. And here, you know, Congress obviously
(17:22):
hasn't declared war on anybody. There hasn't been an evasion
invasion against US territory in a really long time. And
even if Trump tries to say, you know, drug cartels
are declaring a war, they're not actually national governments, so
they don't seem to be the criteria of the law.
It's also so there's no real precedent for using this
(17:43):
the law this way historically, there doesn't appear to be
a textual justification for doing it.
Speaker 3 (17:50):
But that doesn't mean Trump won't do it.
Speaker 4 (17:52):
Yeah, number one and number two, I think what Trump
would try to argue would essentially be to say, hey,
you know, the courts shouldn't be intervene in what is
a military decision of the president. That there should be
a lot of discretion in to national security matters decided
by the president. So I think that's the risk that
courts just our hands off, even though both history and
(18:17):
text of the law seem to point in the direction
of Trump not being able to do this.
Speaker 3 (18:22):
Yeah, Mary, thank you for joining us. I hope you'll
come back.
Speaker 4 (18:26):
Okay, of course, my pleasure.
Speaker 2 (18:31):
Peter shab Sherri and Micha Olier are two of the
hosts of the podcast five.
Speaker 1 (18:35):
Four Welcome Back Too Fast Politics. We have two of
the three members of the five to four podcast, which
is one of my absolute favorite podcasts in the entire world.
Speaker 3 (18:49):
Probably you know.
Speaker 1 (18:49):
What, fuck it, it's the best part. Don't listen to this,
just listen to that. Okay, that will.
Speaker 3 (18:55):
Make you smarter. I will only do terrible things. And
I know no, I'm just kidding. I'm very smart to NATA. Yeah, welcome, Michael, Welcome, Peter.
Speaker 5 (19:04):
Thank you, Balin, thanks for having us.
Speaker 1 (19:06):
I wanted you guys so much because of all the
terrible things that are coming, and many of them have
a bizarre zombie legal framework discuss.
Speaker 5 (19:21):
Sure, Okay, So I mean, I guess the way I've
been thinking about this is like, what do the different
worst case scenarios look like, and what are the potential
roadblocks between here and those worst case scenarios are. That's
actually like, it's not a very encouraging exercise, so.
Speaker 3 (19:39):
Like, oh yeah, so let's do it please.
Speaker 5 (19:42):
One example I've been thinking of is like, so Trump
deshot tries to deport twenty million people. There are countries
that could take twenty million people in the next two three,
four years, So there will inevitably be camps. There will
be images of the camps the conditions will be bad.
There will be lawful, permittent residents and even citizens who
(20:03):
end up in the camps because they're centralized orre you catabise.
Speaker 1 (20:08):
Yes, likely journalists will be later in the camps, and
the earlier camps will just be people who they think,
look Maxican.
Speaker 5 (20:16):
That's correct. This will lead to widescale protests, especially in cities, which,
as we saw during the BLM movement, might lead to
Trump trying to deploy the US military on US soil
to control protests. Right, and so you think about that,
that's sort of a worst case scenario, is the US
(20:38):
military being used to quell domestic unrest? And how we
get there? And then you so, what are the roadblocks
to this? Well, it cost a lot of money. Congress
is already appropriating a lot of money to the border. Well,
there are laws that prevent the president from deploying the
military on US soil. Well, the Supreme Court said that
he has immunity, so that law doesn't. And you can
(21:00):
just go down the line and be like, well, actually,
the guardrails between here and there are very few, and
a lot of times relying on like Amy Cony Barrett
or John Thune you know, some random Republican senator or
something like that, and it's just scary. But it's also
(21:23):
very uncertain because we don't know what Trump's actually can
get a try, and we don't know how far he's
willing to go, and so a lot of it just
feels like being tied to a train track and you know,
just watching the train come in.
Speaker 3 (21:37):
Peter taunts.
Speaker 6 (21:39):
I agree with all of that. I also think that
if you're taking the cynical approach, which I do, what
Trump wants out of the Judiciary, for example, is for
it to function essentially as a legitimizing operation for him.
Right he was very irritated in his first term by
(22:00):
the resistance he got from the Supreme Court. I think
it's safe to say that he does not particularly I
don't want to say stand behind, but he's not particularly
a fan of his initial choices to the Court, especially
Kavanaugh and Barrett. A big part of that is because
they did not stand behind him during the Stop the
(22:20):
Steal endeavor. I think what he wants out of the
Judiciary this time around is for it to be loyal
to him, just like he wants the rest of the
Republican Party to be loyal to him. I think that's
what we should expect out of his nominees and appointees
to the judiciary. And I think that it's important to
understand that, like the judges throughout the federal courts, the
(22:43):
conservative judges throughout the federal courts are now part of
a political movement that is essentially just the Donald Trump Show,
and what gets you ahead in that political movement is
loyalty to Donald Trump. So it's very hard to predict
exactly how much friction is going to exist between the
judiciary and Trump, but I would say it's a safe
(23:04):
bet that it's going to be less than last time.
And that's what has me worried, And I think the
exact contours of it are very hard to predict. But
I'm not looking forward to learning exactly what the dynamic
is between the judiciary and Trump this time around.
Speaker 3 (23:18):
Yeah, I just want to sort of pull back for
a minute.
Speaker 1 (23:21):
It seems like the big difference between Trump one point
zero and Trump two point zero is that Trump two
point zero has the sort of somebody at the Heritage
Foundation cooked up a few ideas of like racism that's
worked in previous centuries and have decided that they are going.
Speaker 3 (23:39):
To use that as a legal framework. Do you think
that's correct.
Speaker 6 (23:43):
There's definitely some truth to it. I mean, I think
that what we're seeing now is the result of a
conservative political movement that has spent what's almost a decade
now being a little bit more proactive, thinking that a
lot of barriers that they previously thought existed are now
being shattered or can be shattered. I think Trump has
(24:04):
sort of brought to the forefront of their minds a
lot of political possibility, and one of those possibilities is, well,
we can peel back major elements of the New Deal,
we can peel back major elements of these civil rights movement,
these things that we thought were sort of done deals,
Maybe we can fight over them. And they are now
(24:25):
putting in an effort to, for example, attack birthright citizenship
right and we'll see how far that gets them. But
they believe that it's on the table.
Speaker 5 (24:33):
Yeah. I wanted to talk about birthright citizenship when you
started this whole line of thought, because it's worth emphasizing
that this is like one part of the settlement of
the Civil War, the reconciling of that, you know, very
costly conflict the breeding of African Americans into full citizenship status.
(24:56):
So attacking it is very much like trying to unwind
quite literally the settlement of that.
Speaker 1 (25:03):
Yeah, and also just the sort of it's a blow
against the civil rights movement, yes.
Speaker 5 (25:08):
Go on, but also that it is one of the
most unambiguous provisions in the Constitution and has very settled
meaning in constitutional law or since it's been around, you know,
both in like writings and in practice, and so so
the idea that they could attack that is you know,
(25:30):
I think in basketball they would call that like a
heat check, right, like they're feeling very good right now
and seeing just how much they can get away with.
And that's scary in it of itself.
Speaker 1 (25:42):
Yes, now, as I'm the only person, I keep saying
this because it's annoying to me. But since I'm the
only person who ever looked at their priors with this
election and was like, how did I go wrong? Whereas
everyone else just was like how did other people go wrong?
I think I'm too optimistic when I think about what
Republicans could cook up and also what the American voters
(26:05):
might reject. So I want to couch this in my
own optimism and what that means, but it does seem
like not specifically the Koch brothers, but the Koch Brothers
esque wing of the party has decided that this wrecking
ball can fulfill a lot of their fantasies, the wrecking
ball being Trump. But if we remember anything from Trump
(26:29):
one point zero, it's that my man cannot do much
because he gets very distracted.
Speaker 6 (26:35):
Yeah, that's the reality of Trump, and I think it's
probably the only reason for optimism is are they so
incompetent that they're not going to be able to really
pull any of this off. Obviously we will see chaos
in the Trump White House. We will see incompetence in
various forms. But when your primary objective is to destroy,
(26:57):
competence doesn't always matter that much. And I also think
that the first Trump term was really defined by a
tug of war between the Trump wing and the establishment.
Part of that was just because he had to bring
establishment elements into the fold because there weren't enough loyalists
(27:18):
in twenty sixteen, twenty seventeen. That's no longer the case.
Right now, the Trump wing of the party has effectively
won and they are in control politically, and I would
imagine that that means that we're going to see a
little less friction within the Trump White House, within the
administration itself, and a little more of people ready to
(27:43):
say how high when he says jump. So we'll see
exactly what plays out. It's again one of those things
that's just really hard to predict because these people are
all absolute nut jobs politically and also in their personal lives.
Right they cannot all sit in a room together and
hash something out out. Something will go wrong. We just
don't know what's going to go wrong yet.
Speaker 3 (28:05):
Yes, for sure. Do you have another thought here, Michael?
Speaker 5 (28:09):
There's so much going wrong in our country right now.
I think it's a mistake to, you know, be like X,
Y or Z are like the big problem. But like
one issue that is very real is that Congress has
been somewhat dysfunctional for decades, and that dysfunction leaks out
into other branches. And the longer it festers, right, the
(28:33):
longer this sort of infection grows, the bigger our reforms
have to be. The harder the lift is to fix it. Right,
there is a point in time when you probably could
have gotten away with some modest gerrymandering and filipbuster reform
and things like that, and the federal government could have
(28:54):
just limped on moderately functional. Now it's like you got
to reform the Supreme Court. You might have to rethink
the entire administrative state at how that works, which affects,
you know, everything in this country. And the next four
years are going to be an opportunity cost where things
(29:14):
are just going to get worse. The government's capacity is
going to degrade, and it's going to give us more
to do when we do get powered back.
Speaker 3 (29:22):
Yeah, if we get pack.
Speaker 5 (29:24):
If we get bout that.
Speaker 1 (29:25):
Yeah, I mean I shouldn't talk like that because obviously
there are going to be elections, they'll be midterms, they'll
be presidentials, and we have to protect norms and institutions.
Speaker 3 (29:33):
Speaking of protecting norms and institutions, I.
Speaker 1 (29:36):
Want to go back to Congress actually for a second,
because I think, Michael you had a really good point
about Congress. So the last Congress, Mike Johnson had this
very slim majority. It was one of the stupidest Congresses ever.
I know it was stupid because even Jake Sherman from
punch Ball said he couldn't believe how stupid it had gotten. Right, So,
like clearly, very very very stupid. He has less of
(30:00):
majority now, so legislatively and in the last session they
couldn't even name post offices, so legislatively, nothing is going
to happen.
Speaker 3 (30:10):
Do you think that's correct?
Speaker 1 (30:11):
And does it necessarily even matter if Trump is going
to just do eos.
Speaker 5 (30:15):
My guess would be that they're not going to be
able to muster the votes for big social legislation. I
think they're going to be able to smuggle in a
lot of stuff into budgetary bills.
Speaker 4 (30:25):
You know.
Speaker 5 (30:25):
That was why the example I used was mass deportation,
because that's one where they can just remark a lot
of money for the border and let Trump go wild.
And that's my concern. That's where I think the biggest
concerns should be, is that things are going to be
bad with deportations, with rounding people up in large numbers.
(30:47):
I don't know that it's for sure going to happen,
but I'm very scared of it.
Speaker 6 (30:51):
I would also say that a lot of the conservative
project can be done through the executive branch in conjunction
with the judiciary. So if you're talking about stripping the
administrative state down to its bones, that's something that they
don't need Congress for. In fact, Congress is a thorn
in their side, and the entire point of the conservative
(31:12):
project is to box Congress out of the process. So
what you do is challenge Congress's authority to exert influence
over administrative agencies and then drag that into court. So
I'm concerned about that. I am concerned about what they
can accomplish, not just through executive orders but just by
sort of your standard operating procedure control over the administrative state. Right,
(31:34):
many conservatives believe in a very centralized mode of control
in that regard, and it's pretty disconcerting.
Speaker 3 (31:42):
And this is the Ross Vaught story, right.
Speaker 1 (31:44):
Rots Vought moved into omb one of the architects of
Project twenty twenty five, and he is a person who
in Trump one point zero was like, let's just not
write the check.
Speaker 6 (31:56):
There are a lot of people like that who ten
years ago, even within GOP ranks, would have been dismissed
as cranks, who are now getting a lot of attention.
And I think will be a big story in the
years to come because you're I think you're right, Molly,
legislation is not really going to happen They're not going
(32:17):
to pass anything major other than I would imagine another round.
Speaker 1 (32:21):
Of tax cuts for rich people, as one would hope,
because that was why they were put there.
Speaker 6 (32:26):
Right right. I think there are a lot of things
that can happen with the administrative state. I don't want
to get into a place where I'm just trying to guess,
but part of the conservative project for many, many years
has been to sort of rip out the civil servants
that compose the administrative state and replace replace them with hacks,
replace them with conservative patronage jobs. That's something you could
(32:48):
see happening in the coming years. I wouldn't be surprised
if you see core challenges and sort of a little
bit of back and forth over what exactly is allowed
and what isn't. But they're going to want They're gonna
want to do that.
Speaker 2 (33:01):
There.
Speaker 6 (33:01):
You know, Trump's been talking about firing Jerome Powell. There's
there's a lot of things they want to do.
Speaker 3 (33:06):
Yeah.
Speaker 1 (33:06):
I would like to point out one of Trump's biggest donors.
Speaker 3 (33:10):
The one guard rail any of us have.
Speaker 1 (33:14):
Is that one of his biggest donors, named a hedge
funder from Chicago whose name now escapes me, was a
deal book and was like, Trump, you don't get to
fire the head of the fad. That's good And I
was like, oh good, I felt much better.
Speaker 6 (33:31):
You is that who is that that Ken Griffin or
is that someone else Griffin?
Speaker 3 (33:34):
It's Ken Griffin.
Speaker 1 (33:35):
Ken Griffin A deal book said we really would be
disappointed if.
Speaker 3 (33:38):
Donald Trump fired Jerome Powell.
Speaker 1 (33:40):
Which is as good as a guardrail as far as
I can tell.
Speaker 6 (33:45):
Yeah, it's always a disconcerting thing when we're hoping to
rely on the largess of right wing billionaires to save us.
But I guess those are the breaks in some respects.
Speaker 3 (33:56):
Yeah, that's where we are. It's pretty dark.
Speaker 5 (33:58):
Yeah. The foot side of that, though, is you know,
I think the billionaires they want economic stability. I think
they benefit from economic stability. Another thing that I think
Trump has a lot of leeway with is tariffs, which
can bring a lot of instability and also create a
lot of opportunity for graft, which is very much Trunk's thing.
(34:21):
He can give special exceptions to companies on the tariffs
and give them a competitive advantage in exchange for some
sort of payoff, which is this is what he wants
to do. He wants to personally profit off his position.
So this is like a quintessential Trump thing. So I
assume we are going to get some tariffs and that's
going to be hard on the American economy. We're all
(34:44):
going to feel that pain.
Speaker 1 (34:45):
When you look at the inauguration pay for play. That's
what's going on there too, Right. Tech companies are like,
he's going to pick the winners and losers. We want
to be winners, that's right.
Speaker 6 (34:56):
Yeah, I mean not just tech companies.
Speaker 3 (34:58):
ABC News, Yes, yes.
Speaker 6 (35:01):
You know you're seeing the sort of broad concern that
he is going to lean on actors within the private
sector in various regards, and those actors want to get
in his good graces and also get in on the
grift wherever they can. I mean, the sort of his
billionaire donors are sort of in two different camps. One
(35:23):
is the Ken Griffin types. You know, he's the head
of Citadel, which is like this big market maker and
hedge fund and they probably want market stability. But the
Silicon Valley side doesn't necessarily want stability. They might want
chaos because they want to be able to rip out
enough regulations that they can commit massive securities fraud. And
you know monetize every single aspect of human existence. So
(35:47):
there's there's a lot going on in the trunk camp.
Speaker 3 (35:50):
I laugh to keep from crying.
Speaker 5 (35:52):
Yes our tagline, Yes, I hope you guys will please
come back soon, absolutely whenever you want to.
Speaker 6 (36:00):
So happy, too, happy too.
Speaker 3 (36:02):
That's it for.
Speaker 1 (36:03):
This episode of Fast Politics. Tune in every Monday, Wednesday,
Thursday and Saturday to hear the best minds and politics
make sense of all this chaos. If you enjoy this podcast,
please send it to a friend and keep the conversation going.
Speaker 3 (36:22):
Thanks for listening.
Host
Molly Jong-Fast
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