Our podcast today focuses on several U.S. Supreme Court rulings involving presidential authority, birthright citizenship, and election procedures. The conversation examines competing constitutional interpretations of executive power, the structure of federal agencies, immigration and citizenship policies, absentee ballot regulations, and judicial reasoning in closely divided court decisions. It also includes extensive discussions on American politics, ideological disputes, government institutions, immigration, capitalism, communism, national identity, and public remarks made by political figures regarding America and its values.
1. Presidential Authority to Fire Officials
A Supreme Court ruling on President Trump's authority to remove officials from independent federal agencies strengthened presidential control over the executive branch by overturning or limiting previous precedent that restricted a president's ability to remove agency officials. It is characterized as a major constitutional and political victory for presidential power. The Federal Trade Commission (FTC) should be fully accountable to the president because they are part of the executive branch. Bipartisan commissions may become less common as a result of these decisions.
2. Commentary on Zohran Mamdani and Progressive Politics
His Fourth of July remarks were anti-American and compare progressive or socialist policies to communism. Communism produces poverty and authoritarianism and contrasts "American exceptionalism" with what we characterize as Mamdani's worldview.
3. Birthright Citizenship
Another major topic is the Supreme Court's handling of birthright citizenship. Children born in the United States to undocumented immigrants should not automatically receive U.S. citizenship. Current policy, an argument for restricting birthright citizenship, expresses support for either a constitutional amendment or federal legislation to change it.
4. Mail-In Ballot and Election Law Case
Supreme Court case concerning absentee ballots in Mississippi. The Court upheld a law allowing ballots postmarked by Election Day to be received and counted afterward. The ruling will make it harder to make elections fair and argue for stricter election procedures and federal election reforms.
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Speaker 1 (00:00):
Welcome.
Speaker 2 (00:00):
It is Verdict with Ted Cruz week in Review. Ben
Ferguson with you, and here are the stories that you
may have missed that we talked about this week. First up,
the Supreme Court gives a major win to President Trump
that he actually has the authority to fire whoever he wants.
We break that down. Also, there was a fourth of
July message from the President that was about hope. And
then there was a grim outlook of America from Mundani.
(00:23):
Why did the Democrats choose him to be their mouthpiece?
We explain it. And finally, there's a big fight over
birthright citizenship and the Supreme Court gave their ruling. So
what did they decide and what does it mean for
the future going forward. It's the weekend review and it
starts right now. All right, So, Senator, let's talk about
some of the victories. And one of them was a
(00:45):
very interesting case. It's about the president having the ability
to fire people. And this was one of those that
maybe wasn't a lot of people's radar screen, but it's
a really important case.
Speaker 1 (00:56):
Well, let's start with two decisions, and this is a
big victory, Trump versus Slaughter and Trump versus Cook. And
had dealt with the ability of the president to file
fire people in his administration. So almost one hundred years ago,
the court decided a case called Humphrey's Executor. Humphrey's Executor,
(01:17):
which ninety one years ago, the Court concluded that the
president cannot fire a commissioner of the Federal Trade Commission,
and the Federal Trade Commission was set up as a
so called independent agency. It was an agency with three
commissioners appointed by the President, confirmed by the Senate from
(01:37):
the majority party, and two commissioners appointed by the President
confirmed by the Senate from that minority party. And the
so called independent agencies arose coming out of the Woodrow
Wilson era, coming out of the Progressive era, as a
way to limit presidential power. And Humphrey's Executor said, the
(01:59):
president doesn't have the ability to fire an FTC commissioner
without cause. Well, in my view, Humphrey's Executor was wrong
the day it was decided ninety one years ago, and
it has been wrong every day for nine decades since then.
Why because under the Constitution the Constitution, the first three
(02:22):
articles of the Constitution, Article one vest all legislative power
in the Congress of the United States. Article two vests
all executive power in the president of the United States,
and Article three vests all judicial power in the judiciary.
What Humphrey's executor did is severely limit the president's Article
(02:45):
two authority over the executive branch. Anyone in government, you
are either in one of those three buckets. You're either
a legislative official. I'm a legislative official. I'm elected by
the people of Texas to represent them in the Senate legislature.
I'm an Article one. You could be a judicial official
that is appointed by the President confirmed by the Senate.
(03:06):
You're a judge with life tenure adjudicating cases. That's an
Article three. Everyone else is an Article two. Article two
is the executive and under the Constitution, the president has
authority over the executive. Humphrey's executor said, no, no, you don't.
There could be someone that works for the executive and
yet somehow Congresses take it over the ability of the
(03:29):
president to control that person. Well, when President Trump came
in in the second term, he fired two FTC Directors
commissioners rather than one of which was Rebecca Slaughter. Rebecca
Slaughter is a Democrat. She was one of the five
FTC commissioners, and he fired her. He said, you know what,
(03:50):
I just want Republican commissioners. I'm not appointing Democrat commissions. Now.
He did that knowing it would prompt a legal challenge,
and anticipating that it would be a legal challenge. He
was prevailing. I will tell you, I've said publicly multiple
times for a long time. Trump was going to prevail.
And you know, as I talked to reporters, they said, well,
(04:12):
what do you think about this case? They said, Trump's
going to win, and he's going to win because Humphrey's
executor was wrong. The president has the authority over the
executive branch, and I believe the Court is going to
overrule Humphrey's executive. Well, this week, that prediction came true.
By the way, we talk on this podcast a lot
about the predictions we make, and the vast majority of
(04:35):
the predictions we make come true, and we hold ourselves accountable.
When they come true, we lay them out. When they
don't come true, we lay them out. In this instance,
Chief Justice Roberts wrote the majority opinion. He was joined
by Justice Alito, Justice Gorsuch, Justice Kavanaugh, Justice Barrett, and
(04:56):
Justice Thomas. In parts. It was a six to three decision,
and the Court court overturned Humphrey's executor said, the president
can fire an FTC commission That's a big victory. That's
a big victory for presidential authority. That's a big victory
for the text of the Constitution. That's a big victory
for the original understanding of the Constitution. Now here's kind
(05:19):
of a weird wrinkle. There was another case that was
Cooked versus Trump. So Lisa Cook was a Federal Reserve
governor and Trump also fired Lisa Cook. Now interestingly enough, look,
(05:40):
you would think the same principle should apply that if
Trump can fire an FTC commissioner, he got to be
able to fire a federal Reserve governor. Well you'd be
wrong on that. The Court, by a vote of five
to four, held that Trump could not fire Lisa Cook.
The Federal Reserve was different, and it was a different majority.
(06:03):
Chief Justice Roberts wrote both opinions, which did not surprise me.
Trump versus Cook was joined Roberts joined by Justice Soda, Mayor,
Justice Kagan, Justice Kavanaugh, and Justice Katanji Brown Jackson. So
it was five to four. Now, Clarence Thomas descendant he
called the ruling incorrect. He pointed out that it was
(06:26):
inconsistent with the Slaughter decision. I got to say, this
did not surprise me at all. And indeed I had
predicted Humphrey's executors would be overturned. But at the same time,
the Court would be reluctant to accord the president carte
blanche over the Federal Reserve. And in my view, look,
(06:49):
Chief Justice Roberts had different distinctions about the statute of
the Federal Reserve. I actually think those distinctions did not matter.
This was, I believe, in significant respects, a results driven outcome.
I think at the end of the day, you did
not have five justices that were willing to accede the
(07:11):
power to the President to fire a Federal Reserve governor
because the role of the Federal Reserve with our currency,
with our economy was significant enough that they were reluctant
to do it. That doesn't surprise me. The consequence of
these two decisions is Trump versus Cook pure and true
to the Constitution? Probably not, but it is a fairly
(07:36):
narrow exception to the much broader precedent, which is Trump
versus Slaughter, which overrules Humphrey's executor and upholds the president's
authority to fire executive branch employees at his discretion.
Speaker 2 (07:53):
That's going to obviously have big impact moving forward, right
over the next couple of years for the president as well.
Speaker 1 (07:57):
Would you agree, Yeah, it's a big deal and it's
going to mean is that practical matter going forward? I
think there's a real possibility, affected a likelihood, that these
so called independent commissions will not have bipartisan commissions. I
think going forward you're going to see commissions like the FTC,
the FCC, potentially the FEC, the various commissions that are bipartisan.
(08:25):
What we've seen with Trump is that he says I'm
not going to appoint Democrats to it, and he leaves
those seats vacant. My guess is if and when we
have another Democrat president. Unfortunately, we will likely have another
Democrat president. I'd rather not. I think the Democrats policies
are really damaging. But if history is any guide, we
will see the Democrats in charge of the White House
(08:47):
at some point. And I think it is quite likely
that when the Democrats are in charge, they will appoint
to the independent commissions three commissioners from the Democrat Party
and zero Republican commission And look, I'll say what twenty
five years ago, when George W. Bush was elected president,
(09:07):
I came in. I was a young campaign staffer. I'd
been down in Austin, Texas on the campaign team within
Governor Bush. I met Heidi on the Bush campaign. She
and I came to join the Bush administration. I spent
about six months in the Department of Justice, and then
I went over to the Federal Trade Commission, and the
FDC is what was the subject of this litigation. My
(09:29):
boss at the time was the chairman, Tim Murris. Tim
is a brilliant conservative lawyer, economist, and I was the
head of policy at the FTC when I was thirty
years old. I was a young kid. It was a
fascinating job. I did that for a little over two years,
very much enjoyed the job. At the time we had
three Republican commissioners, two Democrat commissioners, and to be honest,
(09:51):
to be a minority commissioner in the Petit Commission. It's
kind of a weird job because you don't have the votes,
but you can nonetheless express your views. You can sent
you write opinions, you press back within the executive branch.
I think the consequence of this decision is you're not
going to see minority commissioners from the party out of power.
(10:12):
You will see the independent agencies operate much like the
rest of the executives. So just like in the Department
of Labor, you don't have a Republican Secretary of Labor
and then a Democrat Secretary of Labor who argues against it. Instead,
you just have appointees of the president. I think you
will see in the independent agencies the same sort of thing.
(10:34):
They will just be appointees of the majority party.
Speaker 2 (10:37):
Now, if you want to hear the rest of this conversation,
you can go back and listen to the full podcast
from earlier this week. Now onto story number two, very
dark dark fourth of July speech from Mandannie. Whereas by
the way, a desk was backwards. If you didn't see that,
it's hilarious. But here's Mandanni in his own words.
Speaker 3 (10:56):
Yes, we see America in a health insurance industry that
exploits the sick, but that is not all we see
when we look for America. We see it too in
the nurse who works a double shift and then stops
on our way home to check on an ailing neighbor. Yes,
we see America in corporate landlords, for whom negligence is
a business model, We see it too. And the father
who tucks his children into bed beneath the ceiling stained
(11:19):
with leaves, who wakes before dawn to go to work
and still believes his country can do better by his family. Yes,
we see America when we spend our tax dollars on
bombs and bailouts, when we sell our elections for the
highest bidder.
Speaker 2 (11:33):
I mean that. You hear that and it's like, wow,
you really genuinely hate this country and it's scary what
you want to do with it.
Speaker 1 (11:41):
Well, and he's contrasting everything about America is bad. But
then he says, you know, we care for the nurse,
we care for the individual person. And this is the
classic lie of the communists, that the communist comes and
says where for the little guy? Where for the poor?
Where for the down truck? And yet what you have
(12:02):
every time you have communism, you get poverty and misery
and suffering and death. You get more poor people, you
get equality, but you get a quality of misery. And
in fact, the only people that are not equal are
the rulers. Ironically, you know, Mandami put out a decree.
(12:24):
It told told New Yorkers turn your air conditioning up
to seventy eight degrees because it's going to be hot
this fourth of July, and a watchdog group came and
checked on Mandami's offices, and of course they were not
up at seventy eight degrees. They were turned down to
seventy two because with the Communist decrees. For you, he
never lived by his own rules.
Speaker 2 (12:46):
You know, by the way I was laughing you were
on vacation. I didn't send you the clip, but it exploded.
I was on at CNN on Abbey Phillips Show on
Thursday night when they were celebrating Mandani saying to turn
your AC up to seventy eight, and I just asked,
are you are you in favor of this? And they
(13:06):
tried to, you know, like yeah, well yeah. I was like, well,
it's not seventy eight right now in this studio, so
let's crank up. I looked on everybody on set. All
the liberals are like, all right, let's crank it up
in solid area with Mandani, like let's go to seventy
eight and sweat. Let's go, if you guys are going
to be all in favor this, why is it sixty
seven in here right now instead of seventy eight and
(13:27):
it goes to the point you're making. They'll go on
national TV and say that he's a hero for saying this.
But they wouldn't even in New York City. We were
in New York City, they would not put the studio
at seventy eight degrees because they would never do that
and have a sweaty show.
Speaker 1 (13:41):
Look, Fidel Castro was a billionaire, Buten is a billionaire.
Communist leaders aggregate all the money for themselves. They lived
like kings, and they use the military with guns as enforcers.
I want you to listen to another segment from Coming
Bondami's speech.
Speaker 3 (14:00):
American exceptionalism. American exceptionalism that conventional wisdom tells us makes
our freedom a little more free. Is how we dug
the Erie Canal and irrigated the West. Is why children
in far away lands grow up dreaming of one day
moving here. And yet the irony is that the story
of America has so often been written by those who
were told by others with power and influence and wealth
(14:21):
that they were anything but exceptional. For generation after generation,
we have been told that when the world has sent
its people to our shores, it has not sent its best.
It sent Puritans and Sikhs and Quakers and Muslims and
Jewish people who were banished for praying the wrong way,
worshiping the wrong gods, angering the wrong people. It sent
(14:41):
peasants and serfs from slums and chattels who were treated
as less because they hardly owned clothes, let alone land.
It sent immigrants from whom power was something someone else had.
We are told that America is exceptional because we are richer, stronger,
more powerful than everyone else. Truth with, my friends, is
that America is exceptional because here nothing is fixed into place.
(15:05):
The frontier may be closed, we may have walked on
the moon, but the work of fulfilling the values first
enshrined in the Declaration of Independence. That work endures, and
it belongs to us all. It belongs to to our
newest Americans, those standing here with me today, all of
whom were recently naturalized. Nearly a decade ago, I too
(15:26):
felt what you feel, the joy of no longer being
just a New Yorker, but an American too. You each
hold a special power, the power to determine what America means.
The powerful have always known their answer. America, in their view,
is an arena of supremacy, where only a select few
or allowed freedom, where not all are created equal. America,
(15:48):
if you ask them, becomes less the more people it welcomes. America,
they will tell you, belongs only to those with the
right accent or the right shade of skin. The rest
of us, they insist, should be grateful for merely being
allowed to visit. How small they are, how weak, how unoriginal.
At every moment in our past, those who led through
(16:09):
exclusion and isolation have tried to win power and enrich
themselves by turning us against one another. Division is the
oldest trick in politics and the cheapest. But time and again,
including two hundred and fifty years ago, those forces of
division have been vanquished by the forces of progress.
Speaker 1 (16:29):
You listen again.
Speaker 2 (16:31):
This is a manifesto of why America is bad, Why
America should not, apparently, I guess, be celebrated on the
fourth of July, why you should tamper down your excitement
for the fireworks. And I do believe this is not
a one off. As we mentioned earlier, this is the
new manifesto of the Democratic Party heading into the midterms.
Speaker 1 (16:55):
As I listened to him talk, I think, what a
small and teddy man, filled with hate, filled with ideology,
filled with contempts, not just for you and me and
this fellow Americans, but for the very idea of America.
You know, his remarks there are profoundly dishonest. One thing
(17:17):
he says is, we are told that America is exceptional
because we are richer, or stronger, or more powerful. Boloney,
who has ever said that. I've never heard any human
being articulate that sentence. That's what's known as a straw man.
It's erecting a fake argument to then demolish it. He is,
in fact inverting the causality. We are not richer and
(17:41):
stronger and more powerful. That is not why we are exceptional. Rather,
because we are exceptional, that is why we have become
richer and stronger and more powerful. He's completely misunderstanding the
cause and effect. What is exceptional about America. Number one
is that our rights come from God. And you know,
nowhere in that speech could Mundami bring himself to say
(18:03):
that that God has given the rights. He says, we
are told people are not created equals. Well, really, gosh, comrades,
what is this holiday we are celebrating on the fourth
of July? What was the documents that John Hancock put
his signature on. What did Thomas Jefferson write? We hold
these crews to be self evident, that all men are
(18:27):
created equal, that they are endowed by their creator with
certain unalienable rights, that among these are life, liberty, and
the pursuit of happiness. He claims that America was built
on the notion that we're not equals, and he is
spitting in the face of the Declaration of the Constitution.
Of course, he probably doesn't know that. He is counting
(18:48):
on the people listening to it definitely not to know that.
And his notion about the people that came here. Because
we are built by immigrants, we must let everyone in
with no limits. Listen, my father was an immigrant who
came from Cuba. America was a beacon of freedom for
my family. But there's a right way to come. You
(19:09):
come legally. And the argument that the leftists and the
Marxists say it is because we were built by immigrants,
we have to open up our borders to every criminal,
to every rapist, to every terrorist. That we could have
no laws whatsoever and why And I want to answer
this question, but I want to ask it first. Why
(19:29):
in the speech does Comrade Mandami not reflect on what
is it that makes people from every country on earth
want to be in America? What do we have here
that is different? You don't have other countries people coming
to And it is because of the opportunity, the opportunity
(19:49):
to a have your rights protected, life, liberty and the
pursuit of happiness. And notably, we don't have a right
to happiness. We have a right to the pursuit to
the journey. None of us are guaranteed happiness. But the
American dream is real and alive and it comes from
(20:10):
do you know what gives us the American green Capitalism?
Not communism. If you want communism, Comrade Mondami, go to Russia.
Comrade Mondami, go to Cuba, Comrade Mandami, go to North Korea.
Why do all the communist countries have such misery and suffering?
And you know what, they all also have zero human
(20:33):
rights because those petty little despots, and Mandami is so
eager to use that power when they get power. If
you disagree, if you dare speak to the contrary, they
will lock you up. That is the history, that is
the legacy of communism. You know, Ben, It's been a
(20:54):
while since since I've told the story that my grandmother
told me of what happened in Cuba when Fidel Castro
and the Communists took over. So, my grandmother was a
sixth grade teacher in Cuba, and then she taught sixth
grade for many, many years, and she told me the
story that when the Communists took over, soldiers came into
(21:17):
the classrooms, and she described to me in particular what
they did in a first grade classroom. They came in
with machine guns, and they told all of the kids
in the classroom, they said close your eyes, close your eyes,
and pray to Jesus for candy. And all the kids
closed their eyes, they prayed, and there was no candy.
(21:39):
They then told the kids close your eyes and pray
to Fidel Castro for candy. They closed their eyes, and
the soldiers quietly set a piece of candy on the
desk of every child. That is communism. It is based
on lies, it is based on power, It is based
on subjugation.
Speaker 2 (22:00):
As before, if you want to hear the rest of
this conversation on this topic. You can go back and
down the podcast from earlier this week to hear the
entire thing. I want to get back to the big
story number three of the week. You may have missed.
All right, center, let's get to the bad cases. There's
two of them that I think we need to highlight.
One of them and it's one that there's been a
(22:21):
lot of discussion over, and that's birthright citizenship case. My
take on this was, look, the President wanted there to
be a grand debate nationwide on birthright citizenship. I think
a lot of people around him knew that if this
went to the Supreme Court and this was a fight
they were willing to have, that there was a good
chance it was not going to be a victory. But
it did open up a big conversation nationwide on immigration,
(22:45):
immigration status, and birthright citizenship. People coming in birth or
tourism is a simple way of putting it, and it
certainly did, I think educate people on what's happening in
this country. That for me is a victory, but the
re is in the Supreme Court. This was a loss.
Speaker 1 (23:04):
So it was the question is what does birthright citizenship
protect and in particular, are children of illegal aliens entitled
to become US citizens because they were born on US soil. Now,
as a policy matter, birthright citizenship I think is a
very foolish policy. It is a policy that encourages illegal immigration.
(23:27):
It rewards people for breaking our laws. Most other countries
on Earth don't have that policy. If you break in
illegally to another country most other countries, if you have
a kid there, that kid is not a citizen of
that country. It also encourages things, as you noted, like
birth tourism, where pregnant women will get on a plane
and fly to America on tourist visa simply to have
(23:50):
a baby in America so that baby can become a
US citizen. That's a foolish policy. Now there's a legal
question of how can you change birthright citizenship? And I
talked a minute ago about the fourteenth Amendment, and the
fourteenth Amendment says, all persons born or naturalized in the
(24:17):
United States, and subject to the jurisdiction thereof, are citizens
of the United States and of the state wherein they reside.
This case turned on the phrase and subject to the
jurisdiction thereof. What happened there have long been understood, is
really two potential ways to change current law and birthright citizenship.
(24:42):
The one way that is unquestionably permissible and valid would
be a constitutional amendment that changes the Constitution and makes
clear that the child of an illegal immigrant born in
America is not a US citizen. I strongly support that.
I would vote for that. That's good policy. The second,
and there's dispute among legal scholars, is could Congress pass
(25:04):
a law saying the children of illegal immigrants born in
America are not US citizens? That is still a somewhat
murky question. Donald Trump explored a third avenue, which is
he signed an executive order that said, I am ordering
the children of illegal immigrants are not US citizens if
(25:26):
they're born in the United States. Now, to be honest,
prior to Trump coming into office, I've never heard anyone
articulate a legal theory that that could be done by
executive order. The Trump administration knew it was pushing the
bounds of what's permissible. You are right that we've now
had a robust debate on birthright citizenship and what a
bad policy it is. Now the Court unfortunately ruled five
(25:51):
to four that the executive order is invalid and that
the children of illegal immigrants born in the US are
US citizens. That is unfortunate. Chief Justice Roberts wrote the opinion.
I will say that that did not surprise me. It
(26:12):
was clear from the oral argument this was the likely outcome.
This was where the votes were headed. I wrote an
amicus brief, actually two different amicus briefs in the Court,
joined by multiple members of Congress, in which I asked
the Supreme Court to restore the original meaning of the
(26:32):
birthright citizenship clause. And I would encourage anyone interested in
this issue go read the brief that I wrote that
laid out the original understanding of what the phrase subject
to the jurisdiction thereof meant, and that someone who was
unlawfully president in the country did not fall within those parameters.
I think that's the right conclusion. I wish the court.
(26:53):
I think the dissenters have the better argument. I wish
the dissenters instead of having four votes that had five,
I wish we had one more. That being said, I
was not surprised. Now. I will say this, Justice Thomas
wrote a spectacular descent in ninety one pages. It is
incredibly effective, and I will say, Justice Thomas's cited my
(27:16):
brief twice in that descent. I'm glad that the descent
commanded four votes. I wish you had commanded five. Where
does that leave us, Well, there's still some ambiguity on
whether Congress could pass legislation defining subjects to the jurisdiction
thereof to exclude the children born by parents here illegally.
(27:40):
The Court did not resolve that question because it wasn't
presented with that question. But let me be clear, from
my perspective, this is a terrible policy outcome and it's
also the wrong legal outcome. And I would support number
one at constitutional amendment end birthright citizenship. I would support
(28:02):
number two legislation to end birthright citizenship. I hope we
go down the road to both of those. Yeah, yeah,
I agree with you there.
Speaker 2 (28:11):
And finally, we've got to deal with the case that
deals with mail in ballots.
Speaker 1 (28:15):
That's right. This is another case that is Watson versus RNC,
and Watson versus RNC deals with the laws in Mississippi
concerning governing absentee ballots. So the laws in Mississippi say
that absentee ballot have to be postmarked by election day,
(28:37):
and they can be received up to five days after
election day. And in this case, the RNC filed a
lawsuit challenging that and saying that under the terms of
federal election law, election day is understood to be the
actual day of the election. And so the argument you
(28:58):
RNC made is that you could not count ballots received
up to five days after the election. Unfortunately, by a
vote of five to four, the Supreme Court rejected that argument,
and Justice Sammy Coney Barrett, joined by Chief Justice Roberts
and the three liberals, concluded that election day is understood
to mean the day when quote, voting is complete, not
(29:21):
when ballots are received. In other words, they upheld Mississippi's
law allowing ballots to receive be received up to five
days after election day. There were vigorous descents, it was
five to four, but at the end of the day,
what it means is that the Court has concluded federal
(29:43):
law does not limit late received mail in ballots. The
consequence of this is it's going to remain state by
state red States can put real and meaningful limits, can
limit balloting, can limit late received the ballots. Mississippi can
change their law. But it also means that blue states
(30:03):
states like California can have the atrocity they had in
their most recent election, their mayor's election in LA where
they have votes coming in days, weeks as much as
a month later. Look, this decision is unfortunate, but I'll
tell you what it really underscores. It underscores the need
to pass the Save America Act. The Save America Act
(30:26):
would would protect against illegal voting. I'm an original sponsor
to Save America Act. I'm fighting for in the Senate.
This decision, unfortunately, was a real loss at the Spring Court.
Speaker 2 (30:38):
As always, thank you for listening to Verdict with center
Ted Cruz Ben Ferguson with you don't forget to deal
with my podcast and you can listen to my podcast
every other day you're not listening to Verdict or each
day when you listen to Verdict. Afterwards, I'd love to
have you as a listener to again the Ben Ferguson podcasts,
and we will see you back here on Monday morning.
Welcome.
Speaker 2 (00:00):
It is Verdict with Ted Cruz week in Review. Ben
Ferguson with you, and here are the stories that you
may have missed that we talked about this week. First up,
the Supreme Court gives a major win to President Trump
that he actually has the authority to fire whoever he wants.
We break that down. Also, there was a fourth of
July message from the President that was about hope. And
then there was a grim outlook of America from Mundani.
(00:23):
Why did the Democrats choose him to be their mouthpiece?
We explain it. And finally, there's a big fight over
birthright citizenship and the Supreme Court gave their ruling. So
what did they decide and what does it mean for
the future going forward. It's the weekend review and it
starts right now. All right, So, Senator, let's talk about
some of the victories. And one of them was a
(00:45):
very interesting case. It's about the president having the ability
to fire people. And this was one of those that
maybe wasn't a lot of people's radar screen, but it's
a really important case.
Speaker 1 (00:56):
Well, let's start with two decisions, and this is a
big victory, Trump versus Slaughter and Trump versus Cook. And
had dealt with the ability of the president to file
fire people in his administration. So almost one hundred years ago,
the court decided a case called Humphrey's Executor. Humphrey's Executor,
(01:17):
which ninety one years ago, the Court concluded that the
president cannot fire a commissioner of the Federal Trade Commission,
and the Federal Trade Commission was set up as a
so called independent agency. It was an agency with three
commissioners appointed by the President, confirmed by the Senate from
(01:37):
the majority party, and two commissioners appointed by the President
confirmed by the Senate from that minority party. And the
so called independent agencies arose coming out of the Woodrow
Wilson era, coming out of the Progressive era, as a
way to limit presidential power. And Humphrey's Executor said, the
(01:59):
president doesn't have the ability to fire an FTC commissioner
without cause. Well, in my view, Humphrey's Executor was wrong
the day it was decided ninety one years ago, and
it has been wrong every day for nine decades since then.
Why because under the Constitution the Constitution, the first three
(02:22):
articles of the Constitution, Article one vest all legislative power
in the Congress of the United States. Article two vests
all executive power in the president of the United States,
and Article three vests all judicial power in the judiciary.
What Humphrey's executor did is severely limit the president's Article
(02:45):
two authority over the executive branch. Anyone in government, you
are either in one of those three buckets. You're either
a legislative official. I'm a legislative official. I'm elected by
the people of Texas to represent them in the Senate legislature.
I'm an Article one. You could be a judicial official
that is appointed by the President confirmed by the Senate.
(03:06):
You're a judge with life tenure adjudicating cases. That's an
Article three. Everyone else is an Article two. Article two
is the executive and under the Constitution, the president has
authority over the executive. Humphrey's executor said, no, no, you don't.
There could be someone that works for the executive and
yet somehow Congresses take it over the ability of the
(03:29):
president to control that person. Well, when President Trump came
in in the second term, he fired two FTC Directors
commissioners rather than one of which was Rebecca Slaughter. Rebecca
Slaughter is a Democrat. She was one of the five
FTC commissioners, and he fired her. He said, you know what,
(03:50):
I just want Republican commissioners. I'm not appointing Democrat commissions. Now.
He did that knowing it would prompt a legal challenge,
and anticipating that it would be a legal challenge. He
was prevailing. I will tell you, I've said publicly multiple
times for a long time. Trump was going to prevail.
And you know, as I talked to reporters, they said, well,
(04:12):
what do you think about this case? They said, Trump's
going to win, and he's going to win because Humphrey's
executor was wrong. The president has the authority over the
executive branch, and I believe the Court is going to
overrule Humphrey's executive. Well, this week, that prediction came true.
By the way, we talk on this podcast a lot
about the predictions we make, and the vast majority of
(04:35):
the predictions we make come true, and we hold ourselves accountable.
When they come true, we lay them out. When they
don't come true, we lay them out. In this instance,
Chief Justice Roberts wrote the majority opinion. He was joined
by Justice Alito, Justice Gorsuch, Justice Kavanaugh, Justice Barrett, and
(04:56):
Justice Thomas. In parts. It was a six to three decision,
and the Court court overturned Humphrey's executor said, the president
can fire an FTC commission That's a big victory. That's
a big victory for presidential authority. That's a big victory
for the text of the Constitution. That's a big victory
for the original understanding of the Constitution. Now here's kind
(05:19):
of a weird wrinkle. There was another case that was
Cooked versus Trump. So Lisa Cook was a Federal Reserve
governor and Trump also fired Lisa Cook. Now interestingly enough, look,
(05:40):
you would think the same principle should apply that if
Trump can fire an FTC commissioner, he got to be
able to fire a federal Reserve governor. Well you'd be
wrong on that. The Court, by a vote of five
to four, held that Trump could not fire Lisa Cook.
The Federal Reserve was different, and it was a different majority.
(06:03):
Chief Justice Roberts wrote both opinions, which did not surprise me.
Trump versus Cook was joined Roberts joined by Justice Soda, Mayor,
Justice Kagan, Justice Kavanaugh, and Justice Katanji Brown Jackson. So
it was five to four. Now, Clarence Thomas descendant he
called the ruling incorrect. He pointed out that it was
(06:26):
inconsistent with the Slaughter decision. I got to say, this
did not surprise me at all. And indeed I had
predicted Humphrey's executors would be overturned. But at the same time,
the Court would be reluctant to accord the president carte
blanche over the Federal Reserve. And in my view, look,
(06:49):
Chief Justice Roberts had different distinctions about the statute of
the Federal Reserve. I actually think those distinctions did not matter.
This was, I believe, in significant respects, a results driven outcome.
I think at the end of the day, you did
not have five justices that were willing to accede the
(07:11):
power to the President to fire a Federal Reserve governor
because the role of the Federal Reserve with our currency,
with our economy was significant enough that they were reluctant
to do it. That doesn't surprise me. The consequence of
these two decisions is Trump versus Cook pure and true
to the Constitution? Probably not, but it is a fairly
(07:36):
narrow exception to the much broader precedent, which is Trump
versus Slaughter, which overrules Humphrey's executor and upholds the president's
authority to fire executive branch employees at his discretion.
Speaker 2 (07:53):
That's going to obviously have big impact moving forward, right
over the next couple of years for the president as well.
Speaker 1 (07:57):
Would you agree, Yeah, it's a big deal and it's
going to mean is that practical matter going forward? I
think there's a real possibility, affected a likelihood, that these
so called independent commissions will not have bipartisan commissions. I
think going forward you're going to see commissions like the FTC,
the FCC, potentially the FEC, the various commissions that are bipartisan.
(08:25):
What we've seen with Trump is that he says I'm
not going to appoint Democrats to it, and he leaves
those seats vacant. My guess is if and when we
have another Democrat president. Unfortunately, we will likely have another
Democrat president. I'd rather not. I think the Democrats policies
are really damaging. But if history is any guide, we
will see the Democrats in charge of the White House
(08:47):
at some point. And I think it is quite likely
that when the Democrats are in charge, they will appoint
to the independent commissions three commissioners from the Democrat Party
and zero Republican commission And look, I'll say what twenty
five years ago, when George W. Bush was elected president,
(09:07):
I came in. I was a young campaign staffer. I'd
been down in Austin, Texas on the campaign team within
Governor Bush. I met Heidi on the Bush campaign. She
and I came to join the Bush administration. I spent
about six months in the Department of Justice, and then
I went over to the Federal Trade Commission, and the
FDC is what was the subject of this litigation. My
(09:29):
boss at the time was the chairman, Tim Murris. Tim
is a brilliant conservative lawyer, economist, and I was the
head of policy at the FTC when I was thirty
years old. I was a young kid. It was a
fascinating job. I did that for a little over two years,
very much enjoyed the job. At the time we had
three Republican commissioners, two Democrat commissioners, and to be honest,
(09:51):
to be a minority commissioner in the Petit Commission. It's
kind of a weird job because you don't have the votes,
but you can nonetheless express your views. You can sent
you write opinions, you press back within the executive branch.
I think the consequence of this decision is you're not
going to see minority commissioners from the party out of power.
(10:12):
You will see the independent agencies operate much like the
rest of the executives. So just like in the Department
of Labor, you don't have a Republican Secretary of Labor
and then a Democrat Secretary of Labor who argues against it. Instead,
you just have appointees of the president. I think you
will see in the independent agencies the same sort of thing.
(10:34):
They will just be appointees of the majority party.
Speaker 2 (10:37):
Now, if you want to hear the rest of this conversation,
you can go back and listen to the full podcast
from earlier this week. Now onto story number two, very
dark dark fourth of July speech from Mandannie. Whereas by
the way, a desk was backwards. If you didn't see that,
it's hilarious. But here's Mandanni in his own words.
Speaker 3 (10:56):
Yes, we see America in a health insurance industry that
exploits the sick, but that is not all we see
when we look for America. We see it too in
the nurse who works a double shift and then stops
on our way home to check on an ailing neighbor. Yes,
we see America in corporate landlords, for whom negligence is
a business model, We see it too. And the father
who tucks his children into bed beneath the ceiling stained
(11:19):
with leaves, who wakes before dawn to go to work
and still believes his country can do better by his family. Yes,
we see America when we spend our tax dollars on
bombs and bailouts, when we sell our elections for the
highest bidder.
Speaker 2 (11:33):
I mean that. You hear that and it's like, wow,
you really genuinely hate this country and it's scary what
you want to do with it.
Speaker 1 (11:41):
Well, and he's contrasting everything about America is bad. But
then he says, you know, we care for the nurse,
we care for the individual person. And this is the
classic lie of the communists, that the communist comes and
says where for the little guy? Where for the poor?
Where for the down truck? And yet what you have
(12:02):
every time you have communism, you get poverty and misery
and suffering and death. You get more poor people, you
get equality, but you get a quality of misery. And
in fact, the only people that are not equal are
the rulers. Ironically, you know, Mandami put out a decree.
(12:24):
It told told New Yorkers turn your air conditioning up
to seventy eight degrees because it's going to be hot
this fourth of July, and a watchdog group came and
checked on Mandami's offices, and of course they were not
up at seventy eight degrees. They were turned down to
seventy two because with the Communist decrees. For you, he
never lived by his own rules.
Speaker 2 (12:46):
You know, by the way I was laughing you were
on vacation. I didn't send you the clip, but it exploded.
I was on at CNN on Abbey Phillips Show on
Thursday night when they were celebrating Mandani saying to turn
your AC up to seventy eight, and I just asked,
are you are you in favor of this? And they
(13:06):
tried to, you know, like yeah, well yeah. I was like, well,
it's not seventy eight right now in this studio, so
let's crank up. I looked on everybody on set. All
the liberals are like, all right, let's crank it up
in solid area with Mandani, like let's go to seventy
eight and sweat. Let's go, if you guys are going
to be all in favor this, why is it sixty
seven in here right now instead of seventy eight and
(13:27):
it goes to the point you're making. They'll go on
national TV and say that he's a hero for saying this.
But they wouldn't even in New York City. We were
in New York City, they would not put the studio
at seventy eight degrees because they would never do that
and have a sweaty show.
Speaker 1 (13:41):
Look, Fidel Castro was a billionaire, Buten is a billionaire.
Communist leaders aggregate all the money for themselves. They lived
like kings, and they use the military with guns as enforcers.
I want you to listen to another segment from Coming
Bondami's speech.
Speaker 3 (14:00):
American exceptionalism. American exceptionalism that conventional wisdom tells us makes
our freedom a little more free. Is how we dug
the Erie Canal and irrigated the West. Is why children
in far away lands grow up dreaming of one day
moving here. And yet the irony is that the story
of America has so often been written by those who
were told by others with power and influence and wealth
(14:21):
that they were anything but exceptional. For generation after generation,
we have been told that when the world has sent
its people to our shores, it has not sent its best.
It sent Puritans and Sikhs and Quakers and Muslims and
Jewish people who were banished for praying the wrong way,
worshiping the wrong gods, angering the wrong people. It sent
(14:41):
peasants and serfs from slums and chattels who were treated
as less because they hardly owned clothes, let alone land.
It sent immigrants from whom power was something someone else had.
We are told that America is exceptional because we are richer, stronger,
more powerful than everyone else. Truth with, my friends, is
that America is exceptional because here nothing is fixed into place.
(15:05):
The frontier may be closed, we may have walked on
the moon, but the work of fulfilling the values first
enshrined in the Declaration of Independence. That work endures, and
it belongs to us all. It belongs to to our
newest Americans, those standing here with me today, all of
whom were recently naturalized. Nearly a decade ago, I too
(15:26):
felt what you feel, the joy of no longer being
just a New Yorker, but an American too. You each
hold a special power, the power to determine what America means.
The powerful have always known their answer. America, in their view,
is an arena of supremacy, where only a select few
or allowed freedom, where not all are created equal. America,
(15:48):
if you ask them, becomes less the more people it welcomes. America,
they will tell you, belongs only to those with the
right accent or the right shade of skin. The rest
of us, they insist, should be grateful for merely being
allowed to visit. How small they are, how weak, how unoriginal.
At every moment in our past, those who led through
(16:09):
exclusion and isolation have tried to win power and enrich
themselves by turning us against one another. Division is the
oldest trick in politics and the cheapest. But time and again,
including two hundred and fifty years ago, those forces of
division have been vanquished by the forces of progress.
Speaker 1 (16:29):
You listen again.
Speaker 2 (16:31):
This is a manifesto of why America is bad, Why
America should not, apparently, I guess, be celebrated on the
fourth of July, why you should tamper down your excitement
for the fireworks. And I do believe this is not
a one off. As we mentioned earlier, this is the
new manifesto of the Democratic Party heading into the midterms.
Speaker 1 (16:55):
As I listened to him talk, I think, what a
small and teddy man, filled with hate, filled with ideology,
filled with contempts, not just for you and me and
this fellow Americans, but for the very idea of America.
You know, his remarks there are profoundly dishonest. One thing
(17:17):
he says is, we are told that America is exceptional
because we are richer, or stronger, or more powerful. Boloney,
who has ever said that. I've never heard any human
being articulate that sentence. That's what's known as a straw man.
It's erecting a fake argument to then demolish it. He is,
in fact inverting the causality. We are not richer and
(17:41):
stronger and more powerful. That is not why we are exceptional. Rather,
because we are exceptional, that is why we have become
richer and stronger and more powerful. He's completely misunderstanding the
cause and effect. What is exceptional about America. Number one
is that our rights come from God. And you know,
nowhere in that speech could Mundami bring himself to say
(18:03):
that that God has given the rights. He says, we
are told people are not created equals. Well, really, gosh, comrades,
what is this holiday we are celebrating on the fourth
of July? What was the documents that John Hancock put
his signature on. What did Thomas Jefferson write? We hold
these crews to be self evident, that all men are
(18:27):
created equal, that they are endowed by their creator with
certain unalienable rights, that among these are life, liberty, and
the pursuit of happiness. He claims that America was built
on the notion that we're not equals, and he is
spitting in the face of the Declaration of the Constitution.
Of course, he probably doesn't know that. He is counting
(18:48):
on the people listening to it definitely not to know that.
And his notion about the people that came here. Because
we are built by immigrants, we must let everyone in
with no limits. Listen, my father was an immigrant who
came from Cuba. America was a beacon of freedom for
my family. But there's a right way to come. You
(19:09):
come legally. And the argument that the leftists and the
Marxists say it is because we were built by immigrants,
we have to open up our borders to every criminal,
to every rapist, to every terrorist. That we could have
no laws whatsoever and why And I want to answer
this question, but I want to ask it first. Why
(19:29):
in the speech does Comrade Mandami not reflect on what
is it that makes people from every country on earth
want to be in America? What do we have here
that is different? You don't have other countries people coming
to And it is because of the opportunity, the opportunity
(19:49):
to a have your rights protected, life, liberty and the
pursuit of happiness. And notably, we don't have a right
to happiness. We have a right to the pursuit to
the journey. None of us are guaranteed happiness. But the
American dream is real and alive and it comes from
(20:10):
do you know what gives us the American green Capitalism?
Not communism. If you want communism, Comrade Mondami, go to Russia.
Comrade Mondami, go to Cuba, Comrade Mandami, go to North Korea.
Why do all the communist countries have such misery and suffering?
And you know what, they all also have zero human
(20:33):
rights because those petty little despots, and Mandami is so
eager to use that power when they get power. If
you disagree, if you dare speak to the contrary, they
will lock you up. That is the history, that is
the legacy of communism. You know, Ben, It's been a
(20:54):
while since since I've told the story that my grandmother
told me of what happened in Cuba when Fidel Castro
and the Communists took over. So, my grandmother was a
sixth grade teacher in Cuba, and then she taught sixth
grade for many, many years, and she told me the
story that when the Communists took over, soldiers came into
(21:17):
the classrooms, and she described to me in particular what
they did in a first grade classroom. They came in
with machine guns, and they told all of the kids
in the classroom, they said close your eyes, close your eyes,
and pray to Jesus for candy. And all the kids
closed their eyes, they prayed, and there was no candy.
(21:39):
They then told the kids close your eyes and pray
to Fidel Castro for candy. They closed their eyes, and
the soldiers quietly set a piece of candy on the
desk of every child. That is communism. It is based
on lies, it is based on power, It is based
on subjugation.
Speaker 2 (22:00):
As before, if you want to hear the rest of
this conversation on this topic. You can go back and
down the podcast from earlier this week to hear the
entire thing. I want to get back to the big
story number three of the week. You may have missed.
All right, center, let's get to the bad cases. There's
two of them that I think we need to highlight.
One of them and it's one that there's been a
(22:21):
lot of discussion over, and that's birthright citizenship case. My
take on this was, look, the President wanted there to
be a grand debate nationwide on birthright citizenship. I think
a lot of people around him knew that if this
went to the Supreme Court and this was a fight
they were willing to have, that there was a good
chance it was not going to be a victory. But
it did open up a big conversation nationwide on immigration,
(22:45):
immigration status, and birthright citizenship. People coming in birth or
tourism is a simple way of putting it, and it
certainly did, I think educate people on what's happening in
this country. That for me is a victory, but the
re is in the Supreme Court. This was a loss.
Speaker 1 (23:04):
So it was the question is what does birthright citizenship
protect and in particular, are children of illegal aliens entitled
to become US citizens because they were born on US soil. Now,
as a policy matter, birthright citizenship I think is a
very foolish policy. It is a policy that encourages illegal immigration.
(23:27):
It rewards people for breaking our laws. Most other countries
on Earth don't have that policy. If you break in
illegally to another country most other countries, if you have
a kid there, that kid is not a citizen of
that country. It also encourages things, as you noted, like
birth tourism, where pregnant women will get on a plane
and fly to America on tourist visa simply to have
(23:50):
a baby in America so that baby can become a
US citizen. That's a foolish policy. Now there's a legal
question of how can you change birthright citizenship? And I
talked a minute ago about the fourteenth Amendment, and the
fourteenth Amendment says, all persons born or naturalized in the
(24:17):
United States, and subject to the jurisdiction thereof, are citizens
of the United States and of the state wherein they reside.
This case turned on the phrase and subject to the
jurisdiction thereof. What happened there have long been understood, is
really two potential ways to change current law and birthright citizenship.
(24:42):
The one way that is unquestionably permissible and valid would
be a constitutional amendment that changes the Constitution and makes
clear that the child of an illegal immigrant born in
America is not a US citizen. I strongly support that.
I would vote for that. That's good policy. The second,
and there's dispute among legal scholars, is could Congress pass
(25:04):
a law saying the children of illegal immigrants born in
America are not US citizens? That is still a somewhat
murky question. Donald Trump explored a third avenue, which is
he signed an executive order that said, I am ordering
the children of illegal immigrants are not US citizens if
(25:26):
they're born in the United States. Now, to be honest,
prior to Trump coming into office, I've never heard anyone
articulate a legal theory that that could be done by
executive order. The Trump administration knew it was pushing the
bounds of what's permissible. You are right that we've now
had a robust debate on birthright citizenship and what a
bad policy it is. Now the Court unfortunately ruled five
(25:51):
to four that the executive order is invalid and that
the children of illegal immigrants born in the US are
US citizens. That is unfortunate. Chief Justice Roberts wrote the opinion.
I will say that that did not surprise me. It
(26:12):
was clear from the oral argument this was the likely outcome.
This was where the votes were headed. I wrote an
amicus brief, actually two different amicus briefs in the Court,
joined by multiple members of Congress, in which I asked
the Supreme Court to restore the original meaning of the
(26:32):
birthright citizenship clause. And I would encourage anyone interested in
this issue go read the brief that I wrote that
laid out the original understanding of what the phrase subject
to the jurisdiction thereof meant, and that someone who was
unlawfully president in the country did not fall within those parameters.
I think that's the right conclusion. I wish the court.
(26:53):
I think the dissenters have the better argument. I wish
the dissenters instead of having four votes that had five,
I wish we had one more. That being said, I
was not surprised. Now. I will say this, Justice Thomas
wrote a spectacular descent in ninety one pages. It is
incredibly effective, and I will say, Justice Thomas's cited my
(27:16):
brief twice in that descent. I'm glad that the descent
commanded four votes. I wish you had commanded five. Where
does that leave us, Well, there's still some ambiguity on
whether Congress could pass legislation defining subjects to the jurisdiction
thereof to exclude the children born by parents here illegally.
(27:40):
The Court did not resolve that question because it wasn't
presented with that question. But let me be clear, from
my perspective, this is a terrible policy outcome and it's
also the wrong legal outcome. And I would support number
one at constitutional amendment end birthright citizenship. I would support
(28:02):
number two legislation to end birthright citizenship. I hope we
go down the road to both of those. Yeah, yeah,
I agree with you there.
Speaker 2 (28:11):
And finally, we've got to deal with the case that
deals with mail in ballots.
Speaker 1 (28:15):
That's right. This is another case that is Watson versus RNC,
and Watson versus RNC deals with the laws in Mississippi
concerning governing absentee ballots. So the laws in Mississippi say
that absentee ballot have to be postmarked by election day,
(28:37):
and they can be received up to five days after
election day. And in this case, the RNC filed a
lawsuit challenging that and saying that under the terms of
federal election law, election day is understood to be the
actual day of the election. And so the argument you
(28:58):
RNC made is that you could not count ballots received
up to five days after the election. Unfortunately, by a
vote of five to four, the Supreme Court rejected that argument,
and Justice Sammy Coney Barrett, joined by Chief Justice Roberts
and the three liberals, concluded that election day is understood
to mean the day when quote, voting is complete, not
(29:21):
when ballots are received. In other words, they upheld Mississippi's
law allowing ballots to receive be received up to five
days after election day. There were vigorous descents, it was
five to four, but at the end of the day,
what it means is that the Court has concluded federal
(29:43):
law does not limit late received mail in ballots. The
consequence of this is it's going to remain state by
state red States can put real and meaningful limits, can
limit balloting, can limit late received the ballots. Mississippi can
change their law. But it also means that blue states
(30:03):
states like California can have the atrocity they had in
their most recent election, their mayor's election in LA where
they have votes coming in days, weeks as much as
a month later. Look, this decision is unfortunate, but I'll
tell you what it really underscores. It underscores the need
to pass the Save America Act. The Save America Act
(30:26):
would would protect against illegal voting. I'm an original sponsor
to Save America Act. I'm fighting for in the Senate.
This decision, unfortunately, was a real loss at the Spring Court.
Speaker 2 (30:38):
As always, thank you for listening to Verdict with center
Ted Cruz Ben Ferguson with you don't forget to deal
with my podcast and you can listen to my podcast
every other day you're not listening to Verdict or each
day when you listen to Verdict. Afterwards, I'd love to
have you as a listener to again the Ben Ferguson podcasts,
and we will see you back here on Monday morning.
Host
Ben Ferguson
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