3-20-25 - 8am - 17th Amendment Talkback and A Judges Powers

Episode Transcript

Speaker 1 (00:00):
Good morning, Brownie and Dragon from the three oh seven.
Did I just hear you call camera a Karen, I
mean college educated white woman.

Speaker 2 (00:11):
Urban. I'd be careful if I were you. Urban white
women have a great day. Urban white women like.

Speaker 3 (00:18):
You said that white college educated women didn't vote for
Trump in the numbers that were for or something. My
wife has more education than anybody I know than she.

Speaker 2 (00:30):
Voted for him.

Speaker 3 (00:31):
So there's one.

Speaker 2 (00:33):
Does she live in downtown Denver, downtown Chicago? Does she
live in Los Angeles? It's urban white women, college education educated,
urban white women. You can go look at Gallup, you
can look at Pew, you can look at any of
the any of the outlets. Those that's the one identity

(00:53):
group that voted overwhelmingly for Donald Trump. I would not
put Tamera or your wife or anybody else in that
group because they don't fit that category of the poster.
We're going to do con law this hour. But before

(01:15):
we go into the con law regarding these injunctions and
temporary restraining orders, I want to go to a talk
back that was left at the very end of last
yesterday's program that I was completely confounded by. And then
I got in the car still thinking about this talkback

(01:38):
and got onto the twenty five and went, oh, that's
what he's referring to, even though I happened to disagree
with the point he was making. If you recall the talkback,
it was something about, Hey, what we need is something
about the seventeenth Amendment.

Speaker 1 (01:55):
What do morning, Dragon, morning, Michelle H.

Speaker 2 (02:00):
Coober here four four four zero. Why don't you guys
look up the seventeenth Amendment. Let's go from there. Uh
tell me what you think, Thank you, good love you
guys play. Both of us were just bum fossled as
to what And I actually read the seventeenth Amendment. The

(02:22):
entire time that I'm reading the seventeenth Amendment, and I'm
trying to figure out how does that, how does that
fit with the impeachment process? I totally missed what he
was actually trying to say, and that was that I
am a staunch supporter of a repeal of the seventeenth Amendment.

(02:44):
Back to Woodrow, Wilson convinced Americans, you know, one person,
one vote bull crap, which is not how this country works. Yes,
we have one person, one vote, but when when you
vote for president, that one vote that you cast is

(03:05):
not for Donald Trump. It's for people to go participate
in the electoral college to vote for Trump. You vote
for a slate of electors. So yeah, it's one person,
one vote, but not in a republican small art form
of government. We vote for our representatives. And the perfect

(03:29):
symmetry prior to the repeal of the seventeenth Amendment was
that you and I in congressional districts voted for the
House of Representatives. They get elected every two years. They
have the power of taxation, of raising revenue, they control
the purse strings, so you and I have the most

(03:51):
direct vote for them. Now, because we live in a
country that's based on federalism, meaning that we have a
federal government that is of limited and enumerated powers, they
wanted to create a bicameral legislature to a lower house

(04:12):
that is voted on by the people, and then an
upper house, the Senate, which would be voted on by
the people's representatives to represent the state. So for example,
and let me give you the worst example, because it's
not always going to be perfect, but the way it

(04:35):
operates I think is perfect. In Colorado, John Hickenlooper, let's
just say that John Hickenlooper is up for re election
next year. Prior to the seventeenth Amendment, the Colorado Legislature,

(04:56):
whom we vote for, You and I elect the Colorado House.
You and I elect our senators in the upper chamber.
So the people that we elect, they would then choose
a US Senator. Why is that important? One we still

(05:18):
one vote, one person still counts. But set that aside
from because that's totally immaterial. We elect a We elected
state representatives. Those US Senators are supposed to represent the
state of Colorado, the government of Colorado. That's what they're

(05:38):
supposed to represent. Why, in order to have some sort
of of pressure, valve some sort of protection, some sort
of a dividing line between encroachment by the federal government
onto states rights and states abilities to govern as they choose.

(06:03):
And that's what this upper house in the US Congress
was supposed to be. The US Senate. They were supposed
to represent the states. Who does John hickenloop represent. John
hickelob were things he represents po Dunk individual Michael Brown
in Highlands Ranch, Colorado. Well, yeah, because of the seventeenth Amendment,

(06:25):
he's supposed to represent the state of Colorado. He's supposed
to represent the Colorado Legislature, and he's supposed to protect
the state of Colorado from encroachment onto our state's rights
by the federal government. So you see, it's not always
going to be perfect, but the idea is perfect. It
was perfectly symmetrical. We represent in elect the lower chamber

(06:50):
the what we call what we refer to in our
vernacular as the congressman, the representatives, and the legislature would
appoint the senators. Now, think about think about that in
a divided state, in a in a state where the
legislature is divided between Republicans and Democrats, and let's just

(07:14):
let's use Colorado for an example. Let's go back twenty
years maybe longer, when Colorado was represented by Republicans in
either the House or the Senate, and Democrats represented either
the House or the Senate controlled either the House or
the Senate. That means, in order to choose a senator
to represent Colorado, Republicans and Democrats would have to come together,

(07:41):
They would have to sit down, They would be required
to come up with a name that the lower House
all republic the Republicans that control the lower House, and
the Democrats to control the upper house, the House and
the Senate. They would have to agree among themselves on
an individual to represent the state of Colorado. They would

(08:01):
have to compromise, they would have to set aside their
political differences, and it's like choosing an arbitrator. You know,
when you're involved in an arbitration, each side has to
come up with one individual that they both can agree
upon that will arbitrate the dispute. That's kind of what

(08:23):
the seventeen that prior to the seventeenth Amendment, that's kind
of what the US Senate was. And that's the point
that I think he was trying to make yesterday about
the seventeenth Amendment, which went right over my head because
I was thinking in terms of what does it have
to do with impeachment. I think his theory was that
if we had senators that represented the states, they might

(08:47):
be more likely to protect the states and maybe vote
for impeachment on some of these judges because they see
these judges as what taking away the power of the executive,
which means they could also be taking away the power
of the executive at the state level, and that they've
got to stop this overreach, this unconstitutionality. These unconstitutional actions

(09:11):
being taken by these trial judges. Now I don't necessarily
believe that, but that's the point he was trying to make.
But it gets back to what are these judges doing.
I want to briefly walk you through someone that I follow,
an ex professor, Margaret Cleveland. Margot I'm sorry, Margot Cleveland.

(09:36):
She did a series of she did a thread about
the unconstitutionality of what these judges are doing. She starts out,
let me just read through these real quickly. Pay attention.
She writes first that more temporary restraining orders and permanent

(09:57):
injunctions have issued against the Trumpet administration in two months
than four years of Biden. And while the appeals process
is still ongoing for many of those, appellate courts have
already stayed several orders, showing my point reference the unconstitutionality

(10:19):
is not spin but his reality. In other words, she's
pointing out that many of the appellate courts, whether it
be in the Second Circuit, of the Fifth Circuit, of
the tenth Circuit, doesn't make any difference, but many appellate
courts have already overruled and said you cannot do this.
She goes on to point out that the Supreme Court

(10:40):
has already stayed. Now, when I use the word stay,
that means that an upper court, an appellate court, has
told a lower court stop it. It can't do that.
I'm going to stay your order. In other words, I'm
going to nullify your order and I'm going to take
away the effect of your order. So that's what I

(11:02):
mean as a lawyer when I use the word stayed.
She points out that the Supreme Court has already stayed
one judge. That was the judge that ordered the payment
of two billion dollars in foreign aid within thirty six hours,
and the Supreme Court told the judge to be more specific.
Three appellate judges said that Trump was likely to prevail

(11:26):
on the firing a Special Council Dellinger and rule that
he remained out of office and not be reinstated. Another
example where the appellate courts were saying Trump is lawfully
exercising his executive authority. She gives another example. Another appellate
court stayed the order of one judge, undoing Trump's dei policies.

(11:53):
Another judge reversed his own temporary restraining order and refused
to grant an injunction on putting USAID's workers on administrative leave.
So even here an appellate court with respect to DEI
policies said no, no, no, no, you can't stop him
from doing that. And even a judge on his own said,

(12:16):
now that I reviewed this, yeah, I don't think I
have the authority to do it, And he reversed his
own temporary restraining order at the request of the government.
She gives another example. Many other injunctions, she writes, will
be overturned on appeal because lower courts lack jurisdiction to
decide employment and grants or army policy. The breadth of

(12:41):
overreach by the lower court one judge district court injunctions
interfering with Trump's Article two power cannot be overstated. I
explained the jurisdiction yesterday. If if I work for in
Car in Boulder, and I get fired, and I file

(13:01):
a lawsuit in Colorado Federal District Court trying to stop
my firing, and the judge grants a temporary restraining order,
that restraining order should only apply to me as the
plaintiff in that one case. In front of that one
judge in federal District Court in Colorado, that federal District

(13:22):
court in Colorado has no jurisdiction over in car employees
that are working in Houston or Boston or Cleveland or
anywhere else that get fired. He's exceeding his jurisdiction. He's
exceeding his statutory jurisdiction. And I think it's unconstitutional. And she,
Professor Cleveland is pointing out exactly the same thing. She

(13:46):
then goes on, again, you can see all this on X.
Yet not once did the Trump administration declare, fine, then
enforce your order. In other word, what she's saying here,
Not once did Pambondi or a US attorney or anybody
else say to a judge, yeah, you go enforce it.

(14:09):
You go enforce this order. How are you going to
enforce it? They never did that, She writes, for every
MAGA person screaming, ignore those illegal orders. The Trump administration
has not done that, and we are talking about clearly
illegal orders that do infringe on his executive authority. She

(14:34):
continues instead, every single time, that every single time, Trump
has worked to find a way to read the order
so he could comply and not pit Article two the
presidency against Article three the judiciary. He did that in

(14:54):
grant cases by reading exceptions, the court allowed for otherwise
terminating funding, and he did that in the alien Enemies
at case too. So, yes, the Trump administration did not
turn planes around. But it isn't saying you can't order
me to do that, but that you didn't order me
to do that, because only the minute order is binding

(15:17):
and it cites case law to support its point. Now
that requires some clarification. You may or may not realize
that a judge issued the order about you cannot just
deport these people to El Salvador. That's a written order

(15:39):
that cites case law. You have to have a written
order because in order for an appellate court in this case,
either the Court of Appeals or the Supreme Court, they
have to have something to see. They have to see
the basis upon which you entered an order. They have
to read the order in order to adjudicate the order.

(16:01):
That's not what the judge did about the planes going
to El Salvador. The judge just said from the brint
from the bench. It's like he pounded his gavel and said,
all right, tell those planes to turn around. That's not
an enforceable order. You can't appeal something the judge just

(16:22):
said in court it's it's like it's it's uh, it's
not justisiable. It's it's not. You can't adjudicate it. There's
no basis for it. It's just something he blurted out,
she writes, And once the planes left US territory, Trump

(16:44):
said the order didn't apply because the removal had taken place.
Throughout entire drilling by the judge and even the judge's
request for Trump's team to say, we just disagree, Trump
never said we just disagreed. He said, the removal's already
taking place. We're already in international waters. We've already landed

(17:04):
in nel Salvador Boom. He had no jurisdiction. Now what
does all this mean? Two more points, nic.

Speaker 3 (17:15):
But what I don't understand is all these women that
Tim Walls rallies or whatever it is specifically, but generally speaking,
these leftist meetings or whatever they are, We're all these
apparently young women are just screaming like it's John bon
Joviy up there, it's Tim Walls. Does anybody need to

(17:35):
explain to them it's Tim Walls. Stop screaming please?

Speaker 2 (17:41):
But he does such a wonderful perette across the stage.
He goes floating. He's got great jazz hands. I happened
to walk into the family room and The five was
on TV, and I heard one of the hosts. I'm

(18:03):
not sure who it was, but somebody's talked about, how
do you know any men that wave with both hands?
Have you ever waveded somebody with both hands? Only? What
I'm doing this. That's not exactly waving with both hands,
that's waving with two middle fingers. Yeah, yeah, doing that.

(18:24):
I don't think I've ever looked at you and God,
I Dragon, Hi Dragon. Maybe you know maybe a two
year old, the old lady, or maybe a newborn. You
lean over the crib, well, hellou hallu? Back to Professor Cleveland.
From waving hands to Professor Cleveland, she writes, while article

(18:45):
three the judiciary is going out of its way to
trounce an Article two, the executive Trump is going out
of his way to show komaty to Article three the
judiciary even when the judges don't deserve it. Judges are
not just looking for a fight, but have hit Trump
with several sucker punches. Yet Trump, she says, Trump is

(19:09):
refusing to engage. This cannot continue for much longer, however,
as lower courts are framing injunctions more and more wildly,
leaving the Trump administration little room to maneuver in a
way where he can comply without sacrificing his executive authority,

(19:30):
she says, Which is why I said in the earlier
cases before the Supreme Court, their attempt at prudence was
imprudent by letting it play out in lower courts and
not putting a halt to judges who are clearly illegal
engaging in illegal orders. Judges have now been emboldened. That's

(19:52):
pretty good, during good insight into how this kind of
just starts spreading all across the country. Oh well, a
judge over that jurisdiction did that. Well, I think I
could probably push it just a little bit further over
here in this jurisdiction, she says. And that's exactly why

(20:13):
I said in the earlier cases before the Supreme Court,
their attempt at prudence was imprudent by letting it play
out in lower courts and not putting halted judges clearly
illegal orders. Judges have been emboldened the appellate courts and
the Supreme Court must step in now and forcefully step
in because the problem is one of judiciaries making it.

(20:36):
It's not Trump's problem. He didn't do this, and Trump
should be applauded for the links that he has gone
to not create a constitutional crisis by crafting plausible bases
by which he obeyed these illegal orders. I think she's
exactly right. While simply ignoring court orders that he believes

(20:59):
in upper is a response that is open to the
executive and can be a legitimate response in an extreme case.
It should be the last resort. And because we don't
have a huge record, it's likely to play badly with

(21:19):
important constituencies. Mean that, because we don't really have a
long historical record of this problem the cabal. Can you
imagine what MSNBC or CNN would do if Trump actually
defied what he believed to be an illegal court order.
They would go ballistic. Why he's a dictator? Oh, he's

(21:43):
now actually hitler. Now it is true. I mentioned Marbury
versus Madison, the very first case ever decided by the
US Supreme Court. In that case, the Chief Justice John
Marshall was moved to really kind of extraordinary cleverness by

(22:09):
the fact that President Jefferson's explicit and public threat to
disobey a court order to overturn the commission that was
supposed to go to mister Marbury. But the courts were
much weaker politically than they are now. But remember Jefferson
was threatening to disobey a court order. Now, if things

(22:35):
continue in this fashion much longer, that that may no
longer be true, which is another reason for Trump to
play it mildly. So far, all the courts have, all
the courts have, I've said this so many times, But
all the courts have is the perception of legitimacy, and

(22:58):
that legitimacy can be lost. Why do you why do
you not? You because you could be held in contempt?
But why do we generically speaking, generally speaking, why do
we obey court orders even if they're not directed specifically
at you or me? Because we put legitimacy. We want

(23:24):
courts to have authority, and we want we want our
system to work. But the Left has been systematically attacking
the legitimacy of the Supreme Court. How many times do
you mean to play it again? Justicecore, such Justice Justice Cavanaugh,
you will reap the world end if you continue with

(23:46):
this stuff. Or someone who has all the means to
assassinate Justice Kavanaugh standing outside his home, the protesters violating
long held statutory authority that you cannot exercise your First
Amendment right in outside a Supreme Court or other justices

(24:08):
home in order to try to influence their opinion, which
is what they were trying to do. But nobody enforced it.
Biden didn't enforce it, Merrick Garland didn't enforce it. So
now with that legitimacy being whittled away, progressive district court

(24:30):
judges are undermining the very legitimacy of the judiciary on
the right. It's incredibly dangerous. There are a lot of
people calling for the impeachment of lower court judges who
flout the law. There seems to be a lot of that.
And know, the law is not to be found in
something like Taylor Swift or Hamilton, which is a reference

(24:53):
to people's you know, one of these stupid judges cited
Hamilton the play in order. Other judges cited things that
were absolutely factually incorrect about trans people, cited some news
article there was completely incorrect. One judge actually cited something

(25:14):
that Taylor Swift had written that has no place, that
has no place in our jurisprudence whatsoever. But impeachment's probably
a mistake, and it's a mistake because it's not going
to succeed. There's no way that Republicans are going to
get two thirds of the sendant to vote for removal.

(25:35):
And if history is any indication, afe to do is
look at Bill Clinton or Donald Trump failed impeachment efforts.
Do what if you're going to engage in a coup.
And I'm not saying impeachments are a coup. Impeachments are
exactly the constitutional process by which we remove elected officials

(25:57):
or judges for high crimes and misdemeanor. But I would
say in the attempt of particularly Donald Trump, maybe not
so much Bill Clinton, but certainly in the case of
Donald Trump, those were in effect coups. They were trying
to remove Trump on completely baseless allegations. But what happens

(26:20):
when you engage in a coup and you fail to
kill the king, you make the king stronger. Now I'm
not saying I want Donald Trump weaker. I'm just saying
that this is one reason why they will not pursue
impeachment because they know they cannot get it, and if
they try to impeach these judges and they fail. That

(26:43):
will embolden the judges to even make even more wildly
unconstitutional orders, even more wildly inappropriate temporary restraining orders. You know,
there was even once a pretty widespread movement to impeach
Chief Justice Earl Warren because the liberal Warren Court opinions
seem to be so far out of the mainstream. Do

(27:05):
you know who one of the leaders? That was, Gerald Ford,
who later became president. Warren was unscathed. Actually, I would
argue the Chief Justice Warren was made even stronger. Impeachment
is just symbolic, and it's probably going to be self destructive.

(27:25):
Those are for Democrats, not for Republicans who really do
want to make America great again. But there are some
things that can be done. I don't want you to
think that I've pointed out a problem without a solution.
Here's something I'm not advocating this. I'm just laying out

(27:45):
the entire pasture of things that could be done. They
could expand the courts, and I'm not talking about court packing.
That's not it. Do you know that the National Initial
Council has already recommended, long before all this started, that

(28:06):
we need sixty six additional district court judges. We need
to divide or create two new courts of appeals in
order to remedy what they call the crisis of undermanned
federal courts. Well, Republicans step up and do that, though,

(28:28):
I think you ought to add two new Court of
Appeals judges to every single circuit. And I would certainly
increase the number of district judges appointing to the District
Court of Columbia. You know, the DC District Court is
so incredibly liberal. They just they don't care what your

(28:51):
last name is. All they care is is there an
R A D after your name? So, while you have
the ability to add judges that are that won't be activists,
but instead we'll read and interpret the Constitution based on
the plain meaning of the language, based on the intent
of the Constitution. Why don't you go increase that district

(29:14):
right now? And while you're at it, why don't you
do the Southern District in New York You know where
they went after Trump. Once you add some more judges
over there. Right now, these are things that Republics, while
they have the majority, could be doing. Get off your asses.

Speaker 4 (29:31):
I am a college educated woman actually a principal electrical engineer.
And as to him, if I did not vote for
Trump every single time he ran, So some of us
do have brains and understand what the hell these staffing
Democrats have been doing to us.

Speaker 2 (29:52):
Thank you, I'm not attacking you educated women. I'm citing
the poll which said that urban white education, urban white
college educated women voted overwhelmingly for Donald Trump. Doesn't mean
all of you did. And again he knows Dragon that

(30:14):
everyone that's called in about their wife or as in
her case, they never tell me whether they're urban dwellers
or not. They never tell me about their I mean,
obviously they tell me their political leanings because they voted
for Trump. But I'm just telling you, go look the

(30:34):
polls up. Uh. Well, you said it, so you pissed
them off. I pissed somebody off. Shocking, I know, Holy cow?
So what could what? What? What could Congress do? Right now?
This gets back to my point about the Speaker's a
nice guy, but Trump's fighting this by himself. Trump does

(30:58):
not need to fight him, but this by himself. The Democrats.
The Democrats had a bill back in twenty twenty one
that was going to expand the Supreme Court from nine
to thirteen. Now I'm not for doing that, but why
not reintroduce that bill. The Democrats were for it when
Biden was president, So why not just introduce the bill

(31:21):
and start holding hearings on it. That might shut down
Chief Justice Roberts. He might be like, oh, maybe I
should keep my mouth shut, and it might cause the
lower courts to go up Republicans much they might just
do this. And in fact, if you wanted to be
a real jerk like I would be, don't do it

(31:42):
from nine to thirteen, do it from nine to fifteen.
Shall remind them who controls the judiciary. The United States Congress,
you could bring back, For example, there used to be
a requirement that if a Fed statue was being if
the legality of a federal statue was being challenged, that

(32:05):
had to be decided by a three judge panel at
the district court level instead of just one judge. Bring
that rule, bring that law back. Congress. You can do
that with majorities. You don't need two thirds, you don't
need a supermajority. You can do it with the majorities
that you have in the House. In the Senate. Right now,

(32:28):
Ron DeSantis has pointed out as a former member of Congress,
strip federal courts of jurisdiction to issue temporary restraining orders
or preliminary injunctions in these kinds of cases. Remember, Article
three courts are created solely by Congress. They're not as

(32:54):
the only court that is established by the US Constitution
is the US Supreme Court. The Article three Section one,
the judicial power of the United States shall be vested
in one Supreme Court and in such inferior courts as
the Congress may from time to time ordain and establish.

(33:19):
Congress can also provide that lawsuits the challenge changes to
federal programs or agencies be assigned to randomly selected district
courts from all across the country, rather than just the
District Court of Columbia. You know what, they could abolish
the district court for the District of Columbia for all cases.
They could just abolish that district altogether and just say,

(33:41):
any case that arises within the confines of the District
of Columbia will be randomly assigned to district court judges
in Maryland and Virginia. Oh, I don't care, push it
outter New Jersey or Pennsylvania