The Federalist Papers, The Constitution and Supreme Court Wrap-Up 2024-2025 w/ Dorollo Nixon, Esq & Jesan Sorrells

Episode Transcript
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(00:00):
Hello, my name is Jesan Sorrells, and this is
the Leadership Lessons from the Great Books podcast, episode
number 156.
Now, you will note if you're watching the video of this
podcast, you will notice my
lovely face. And then you will not see the face of

(00:22):
our of our guest today
because he is in the car headed back to the office. So if
you just stick with us for a little bit on the video, on the audio
or not on the audio on the video, you will eventually join us
via video. For right now, we are doing as he said before we got
started here, we're doing radio

(00:44):
to my intro. The month of June is, of course, the month that
comes before the month of July. And in July this year,
as is every year, the Supreme Court of the United States of America
releases its decisions on major court cases to the breathless
reporting of the United States industrial media
complex. And this year, it was no

(01:06):
exception. From decisions around books, education and
parental rights to decisions about what role the judiciary branch has,
in contrast to the executive branch, around injunctions
and executive orders, the majority decisions of the Supreme Court
reflect an attitude the court has taken to the relationship between
the Congress, activists, lobbyists and the culture over the

(01:28):
last few years. And the attitude the court
has taken is focused on, in my opinion, attempting to course correct
a national Congress filled with politicians more focused on having Tony
dinners, fundraising and being popular on Twitter and TikTok that aren't actually
doing the job we all hired them to do, that is making law
and then retiring and returning home to the districts from which they

(01:51):
day came. Fortunately, the court is acting,
at least the current court is acting as a speed governor, a check, a
break on congressional laziness and, quite frankly, moral
turpitude. It remains to be seen how many more decisions
need to be made before Congress actually absorbs
and acts on the lesson.

(02:14):
We will examine the lessons doled out during the most recent
Supreme Court session, as well as discuss the role of the executive
in our system of government by looking at the Federalist Papers
and, of course, the U.S. constitution. With our returning
guest today, just in time for July, de
Rolo Nixon, Jr. Esq.

(02:37):
Hello, de Rolo. How are you doing today?
We're doing lovely.
It's a beautiful day in the neighborhood,
which means Tempe, Arizona, where it's 108.
You know, are there a lot of, are there a lot of Baptists in Arizona?

(03:00):
I've never asked you this question. There are some. There are some.
There's a lot of Mormons. There are some Baptists.
Yep. You see some and different varieties.
But, you know, Arizona's interesting demographically because
effectively, you can separate the state into two parts,

(03:20):
and then you can separate the larger of those two parts
into many segments. Okay. The
two parts are Tucson and
Southeast versus everywhere else.
And everywhere else is Arizona, where I live.
And so I promise you, it's quite fascinating. And

(03:44):
so I'm amazed by how little
intercourse there seems to be between,
obviously, no pun intended, between people who live in Phoenix and
points north with people who live in Tucson and point
Southeast. This is no real intersectional intercourse.
Nothing. So I'm not. And apparently,

(04:04):
culturally, it's a little different. And how it became part of the United
States, of course, is different. Do you remember the Gadsden Purchase of
1853? If I'm not mistaken, that was
how that little Southern bit became part of the United
States. Right. The rest of it came a different way. But anyway,
I digress. Yes. So it is a beautiful

(04:26):
day in the neighborhood, and we are in that part of
Arizona where it is hot and
there are lots of people from. All over the place. Well, from what
I hear, two things. From what I hear is mostly a dry heat,
unlike the state of Texas, where I hail from, where we
have 80% humidity in the shade.

(04:50):
I also hear that the reason why
the Baptists established such a strong foothold in Texas,
and maybe this is the same in Arizona, is because they have
experienced the heat and they are interested in salvation
rather than eternity of sweating.

(05:11):
Well, that would assume that there's water in hell. So, yes,
it probably more accurately put a. An eternity
of roasting. But, yes,
it's possible. I mean, you get people's attention on a really hot day. You're
like, you really want more of this. But let's see, because the last time I
checked this morning, we had 39% humidity, which

(05:34):
is probably double the day before, and we have clouds. So
there's some remote possibility might actually. Rain,
which would actually be really nice. Let's see.
Where. Where are we at? Nope,
it went down 28 humidity. Ah.
Well, there'll be no rain today. All right. No. Well, all

(05:56):
right, well, let's. Let's jump right into
our. To our podcast today, because we are on a. On a
little bit of a tight schedule, which is.
Okay. And I want to jump in here with
quoting directly because I want to ask you. Today, we're going to start
off with this idea of the power of the executive. So we want to start

(06:18):
off with that before we. We flow into the current Supreme
Court decisions in particular the one we're going to focus on today, Trump
v. Casa and
Amy Coney Barrett's reading of the majority opinion
from the bench. And I
quote, by the way, we're going to quote from we're going to read from today

(06:41):
The Federalist Number 69 by
Alexander Hamilton. By the way, if you read the Federalist Papers and you
can check out the links to the Federalist Papers in the show notes below, this
the the player of the podcast
service that you happen to be listening to this podcast on

(07:02):
the Federalist Papers that cover a lot of the
duties, the requirements, or the thoughts that the Founding Fathers had
around what the chief Executive's role would be in a
tripart government with a judiciary, a legislative
body, and an executive. Are federalist
numbers 68 or 69

(07:24):
all the way through 73 or
74. And I might be missing a few in there. And I'm sure all of
you who are listening will correct me when I.
Well, will correct me. I'm sure you will, and I look forward to that correction.
But I'm going to start off with Federalist number 69 by
that great fellow about whom a musical

(07:47):
was made a few years ago, Alexander Hamilton.
And I quote from Mr. Hamilton and de Rollo will appreciate
this to the people of the State of New York, I
proceed now to trace the real characters of the proposed Executive as they are
marked out in the plan of the Convention. This will serve to place in a
strong light the unfairness of the representations which have been made in regard to

(08:10):
it. The first thing which strikes our attention is that the Executive
authority, with few exceptions, is to be vested in a single
magistrate. This will scarcely, however, be considered as a point
upon which any comparison can be grounded. For if in this particular
there be a resemblance to the King of Great Britain, there is not less
a resemblance to the Grand Signor, to the Khan of Tartary,

(08:33):
to the man of the Seven Mountains, or to the Governor of
New York. That magistrate is to be elected for four
years and is to be re eligible as often as the people of the United
States shall think him worthy of their confidence. In these circumstances there is a total
dissimilitude between him and a King of Great Great Britain,
who is a hereditary monarch possessing the crown as a patrimony,

(08:55):
descendable to his heirs forever. But there is a close analogy between
him and a Governor of New York, who is elected for three years and is
re eligible without limitation or intermission. If
we consider how much less time would be requisite for establishing a dangerous influence
in a single state than for establishing a like influence throughout the United
States. We must conclude that a duration of four years for the chief magistrate of

(09:18):
the Union is degree of permanency far less to be dreaded in that office
than a duration of three years for a corresponding office in a
single state. President of the United States would be
liable to be impeached, tried, and upon conviction of treason, bribery,
or other high crimes or misdemeanors, removed from office, and would afterwards be
liable to prosecution and punishment in the ordinary course of law.

(09:41):
The person of the King of Great Britain is sacred and invaluable. There is
no constitutional tribunal to which he is amendable, no punishment to which he
can be subjected without involving the crisis of a national revol Revolution. In
this delicate and important circumstance of personal responsibility, the President
of Confederated America would stand upon no better ground than a Governor of
New York, and upon worse ground than the Governors of

(10:03):
Maryland and Delaware.
Close quote from Alexander Hamilton,
Federalist paper number 69.
The reason I opened up with this today is because due to the current
occupant of the White House, Donald John Trump,
there have been a lot of protests around

(10:27):
the country from disaffected folks on the other side of the political
spectrum, folks who identify themselves as being more
progressive or Democratic or liberal, declaring that
they want no kings in the country. And yet
we have a system that is already set up
where the power of the executive can be checked. And by the way,

(10:50):
there have been attempts during Trump's first administration and even
when Trump was no longer president to, and I quote,
make Donald Trump liable to be impeached, tried,
and upon conviction of treason, bribery or other high crimes and misdemeanors, removed from
office. There were multiple attempts and even after he was in
or out of office, removed by the

(11:14):
voters of the United States of America after the first four year term, there were
several attempts, which is called in our time, lawfare,
to prosecute this man and put him behind bars. By
the way, I do not think that this is an unfair statement. I think we
can look at this on the basis of the facts and appeal to those.
And so, upon coming back and winning the re

(11:36):
election last year in 2024, we are
now having a discussion in our country. And this is where the Supreme Court then
steps in on what the nature of executive power actually is.
Now, executive power has been defined, expanded since the time of the
Federalist Paper's original writing and of course the original drafting of the Constitution
and even abrogated by the other two branches of government

(11:59):
in our Time, the executive branch has become more and more focused on rule through
executive orders. By the way, this started most notably
in the George W. Bush administration and really ramped up
during the Barack Obama administration. And the
counter to these orders has in the last 10 years come from the
judiciary in particularly through district and federal

(12:20):
courts. This leads specifically into the
case that we're going to talk about today that was before the court, Trump v.
Casa, where the supreme court of the US decided in a 6, 3 decision that
they had seen, quite frankly, enough
of this from the judiciary. So the
question to open up today to de Rollo, who is still in his

(12:43):
108 degree vehicle in Tempe,
Arizona, waiting for the rain. The question here is de
Rolo, how exactly? Walk us through with your
fertile mind and your understanding of history, politics and the law. How
has the executive power, how has executive power in the United States been transformed
in the last 20 years, in your opinion? Good

(13:05):
question. So the expansion
has been. So I'll say two things. One, the expansion has
been massive, okay? If we back
up into the 20th century and we look at
post Vietnam, the limited engagements, with one
exception, the limited engagements with which

(13:27):
the US Military was used in different parts of the world, I'm thinking things like
Palma Graneda, right? The Balkans,
okay? These were
relatively minor. They were smaller in scale, they were limited in
scope and in time. The one exception, of course, is Gulf War one,

(13:48):
which was a colossal effort. It was, I think, the largest mobilization
we had since World War II. But obviously there's a congressional
authorization there. Okay? So other than that one, post
Vietnam, we had one picture, okay? And even someone like
President Reagan, famous for his tough stances, there was not that
much non clandestine use of US Military or other types

(14:10):
of forces that bring violence, right. Without congressional
authorization. And then we come into the 21st century and then it's an entirely different
picture, right? Certainly there was a congressional authorization
with respect to, I believe, both Afghan and
Iraq off the top of my head in 2000,
November 15, 2001, because that was

(14:32):
not mistaken. And then I believe in March of 2003 for
Iraq, the second time. But anyway, but then those turned
into, you know, colossal boondoggles that took way, way, way too many
years. And where we can question the effectiveness, I saw a meme
recently where
you've got, you have President slash Vice

(14:56):
President Cheney on one side and then you have President
Trump on the other, and Vice President Cheney is saying, I need half a million
men, $2 trillion and a whole lot of time to accomplish something.
And President Trump in his meme says, I need about 20 guys in 45
minutes, and it will cost you virtually nothing. And of course, it's referring to the
recent engagement in Iran. But anyway, I digress. I

(15:18):
think you see a much broader
scale, certainly longer scale in terms of time, broader in terms of
scope, in terms of use of US Military forces all over the place. Right.
And Congress not seeming. Not seemingly doing
nothing or, you know, some post hoc approval or
whatever, but basically the way it appears is that Congress is

(15:41):
effectively a non entity, and
so almost akin to
Congress's response to tariff changes, which of
course is absolutely nothing. So there you go. Now, here's the
irony for me, and this is the second point.
Given the nature of how the 21st century seems to be

(16:03):
structured, it's a digital century. Forget about AI. We're not even there yet.
It's a digital century. It's the century of now. It's the century where you can
be around the world in half a day with air travel that is
relatively affordable. Okay. And so halfway around the world.
Excuse me, and half a day with airfare that is
relatively affordable. Great. The ability to

(16:25):
respond quickly to threats, therefore, I think
is greater. The ability to be able to foresee
and prepare over a timescale has basically been obliterated
by technology. We need a fast
response, whether it's preemptive or whether it's defensive.
And it's almost like in the

(16:47):
Fourth Amendment context, do I have time to run and get a
warrant? This guy's running from me and he's pulling
out a gun and he ran into a building. Do I have time to go
get a warrant? Or am I just gonna kick in the door and do what
I need to? So he doesn't kill innocent people. Right.
Right. Now, I'm actually against that in the Fourth Amendment
context. Right? Yeah, yeah, absolutely. Yes.

(17:11):
But that's, you know, in general, how I see the lay of the
land playing out in the 21st century. That's how
I see the lay of the land in the 21st century. It's how I see
these issues playing out. Do I think that Congress could
reassert itself? Sure. It's going to be really difficult to do against
this president because of his, you know, great popularity and also

(17:32):
his acerbic personality where he's just going to shoot it down. No pun
intended. But, you know,
on some level. Audit to be done? I would say yes. And
maybe it's just, you know. And how do you gauge which level of
engagement? Let's say it's going to be sub nuclear. And I don't know how you
would guarantee that, but let's just say it's going to be that way. Well,

(17:55):
how much say so do we want beforehand?
How much actually works with our national security given the nature of the threat? I
have no idea. And so it's
tough. But in this digital century, I can't expect
things to reverse course really easily.
Now you said a couple of things there that

(18:18):
I would pull out from there. First off, every single time
the opposing party in the United States
Congress or in the media
has caterwauled in the last, I would say 20
years about whatever the party in the
White House, the executive in the White House that represents that party is doing every

(18:40):
single time. The executive in the White House has expanded the executive
power, not contracted it every single time.
So if Donald Trump's hand picked
successor, whoever that may be, J.D. vance, whoever it is that comes out of the
Republican primary, if that person loses in
2028 to someone from

(19:02):
the rabble that is the Democratic Party currently,
look at you guys. If someone emerges from that chaos to actually
run coherently and rationally and
manages to beat whoever Donald Trump's hand picked successor is,
that person will not reduce executive power. They will
merely take the things that Trump is doing right now and put it more

(19:25):
on steroids. And every single. And the
opposing parties seem to fail to understand this. This
is the first point that I would and, and I
think they fail to understand it for self serving and venal reasons. You know,
being a person who's looking at this from the outside. But I also
think they fail to appreciate or fail to have curiosity

(19:47):
or even a theory of mind about how the opposing party might use
these expanded or these expansions
in executive power in, in a future
administration. That's point number one. Point number
two is this. I agree with you. It is a digital
century and digital includes everything from

(20:11):
Netflix all the way to AI,
Right? And we are going to have more and
more of these types of digital
communication tools be thrust upon us and
maybe even into the physical world in the form of robotics and autonomous vehicles
over the next 80 years of this century. It's, it's going to be

(20:34):
amazing. And I wonder
if the Constitution and the constitutional
understanding of executive power can survive such a
expansion or, or if the nature
of a document that was written in the 18th century
for a slower, agrarian, more thoughtful and more

(20:57):
critical, more critical culture
is exactly what we need. I wonder if that's exactly what we need
in our digital age. Right, right
now, the follow up point to there. And I want to ask you a follow
up question to this. What is Congress's role in checking the executive?

(21:17):
What do you think Congress's role is here in, in this digital
era? The, the 400 and whatever it is, 450 people,
490 people that are between the House and the Senate. And I'm not talking
about the fourth branch of government. Leave those monkeys uncles over there for just a
minute. Just the Congress. What should Congress
be doing? If you had a, not a magic wand, but if you had the

(21:38):
ability to consult with both the Democratic and Republican parties,
not the President, not the head, not the people running the
DNC or the rnc, the, forget those people as well, the
actual people sitting in the seats
from the districts. What's their role in checking executive power?

(21:58):
So, you know, the irony is that they actually have
the central role in the process. Okay? They make the
laws. That's why they're there constitutionally. And of course
the Constitution preceded the current
bureaucratic, administrative, deep state that we deal with. Right.
And so they have, pun intended, the trump

(22:21):
card. If they don't like it, change the law and then
he can't do it, period.
And of course they won't for several reasons. Right, right. There are
political reasons, like fallout from constituents who actually
support what he's doing. Okay? The ability
to actually get elected again. So there's political, there are political

(22:44):
reasons, okay, There may be other reasons, you
know, where they object to something
informed, but in substance they actually agree with what the President is
doing or to put a slight nuance on it,
they were against it until they saw that it
worked and that everybody was happy. And then all of a sudden they were for

(23:05):
it. Right, Right. The onus is on Congress
to act. And they don't. They don't, they, they, they
gripe, they complain, but all they have to do is change the law. All they
have to do is change the law. And if they won't change the law, they
shouldn't complain about it. Literally. Don't complain about
it or try suing over it. Fine,

(23:26):
but don't complain about it. That's how I look at it. They, they,
they're the ones in, they're the ones in the driver's seat. And there
have been periods in our recent enough history, last hundred
years when the leaders of Congress understood that they
were in the driver's seat and they acted like it. When the real king
in D.C. didn't sit at 1600 Pennsylvania Avenue

(23:48):
but for, you know, was in the speaker
of The House's chair. Right. Understanding every single
fiscal bill comes from me. Every budget has to start here, period.
Okay. I don't know why I read it to you. Headlines talking about, oh,
the Senate passed the budget bill and then the House's version has to come out.
No, no, no, no. That's not what the Constitution says. They have to

(24:11):
originate in the House. Great. That's the guy in the driver's seat here, Speaker
Johnson. Right. So if Speaker Johnson really doesn't want some of this stuff to
happen, there are things he can do.
Right. And so if they don't do anything,
don't complain about it. They have a
necessary role in checking executive

(24:34):
and checking the use of executive power. Right.
And what it is, is they're the ones who get to determine the channels
through which it flows, certainly domestically. Right.
They determine the channels through which it flows. They determine
which acts allow the president and other bits of the executive branch
to do things. They also fund or don't

(24:58):
fund certain programs.
And so where they're really losing, Haysan,
is that in this
digital age, there's been
effectively a collapse of

(25:19):
the polls of political power
in a way that it's. Everyone is now in one
arena, and whoever has the loudest voice, the biggest
personality, gets to determine everything.
Right. So the ability of a Speaker of the
House to say, no, no, no, no, here's the power we wield and we're going

(25:41):
to start wielding it, and we don't care what you say. That's really difficult to
do. When everything is all in one pot,
It's a massive stew. Right. Or it's a
massive swamp. Okay. Rather than a
buffet or some other.
Some other type of situation where

(26:05):
there's independence between the branches, to put it slightly
differently, because it's getting unwieldy,
though nominally and legally, there is
separation of powers. If all of the politics
upon which that is built is all in one common pot, then there's no real
separation of powers. You follow me? Yes, yes. And I

(26:27):
would. I would assert that. I would assert two things. One that gives
different definition to drain the swamp
or. Or defines frames in a different kind of way. But I would also assert
that this is what our relatively
conservative, currently relatively conservative

(26:47):
judiciary, least at the Supreme Court level,
is actively seeking to do. I think they are
actively seeking, at least I'm seeing this over the last,
I would say five years of. Of decisions, fairly significant
ones, particularly around the Chevron doctrine,
West Virginia versus epa, which was about the fourth branch of government,

(27:10):
and in this, oh, the abortion decision.
And of course, President of the United
States at all, Recasa Inc. Which we're about to read from.
I'm looking at these as the judiciary, particularly if you look at the
language of the majority opinion. The judiciary is
literally yelling at Congress to do their job,

(27:33):
and Congress is failing. That's why I opened up with that when we
started this, this episode today. Congress is failing
to listen. And I don't know
when they're going to start. Like in your opinion, and
we'll go into Trump because here, I'll start reading from, from the majority opinion here
in just a moment. In your opinion, what will it take for Congress

(27:55):
to actually start to drain that swamp or,
or separate out that stew?
So the driver is always political. So right now,
the issue, the way I see it, to the extent that it's actually a problem,
because I'm not necessarily in agreement that is a problem right now,

(28:15):
meaning with the way things are going
with this administration, with very few
exceptions, that the judiciary seems capable of handling quite well.
There's no real issue, but that's because I share
their politics politically for the other side. There's an issue, but
it's a political issue. So I don't see any change happening until

(28:38):
the politics work out such that the party that runs Congress and
the party that placed the president and the White House are different parties.
Then all of a sudden, there's an impetus, a political
impetus to do something different legally
in Congress. And so until that happens, we're in a

(28:59):
situation where, again, we're all, everything is in one pot. It's one big
massive political stew than one party has. And so that's how it is
now because one party, the Republican Party, controls all.
Literally. The two political branches are under the
control of effectively one party that is under the control
effectively of one man. Right, right, right, right,

(29:21):
right, right. I don't think that that is a constitutional crisis,
though. Not that you've asked. I'll try to keep this point narrow and short.
But I don't believe that's a constitutional crisis because at any
moment, any one of those congressmen can say, one, I disagree.
Two, here's what I'm going to do. Three, here are my principles. Four, I'm going
to stay here, meaning I will run for reelection. I'm not going to quit.

(29:45):
I don't have to deal with what happened. Say what you want about Liz
Cheney. Okay. The late. Not late, sorry, my bad. Still,
thankfully, former. That's the word I was after. Former
Representative Elizabeth Cheney from Wyoming.
Right. She still stood for reelection she may have gotten hoed, but she
stood for reelection. She didn't say, oh, I'm retiring. Here's everything I think is

(30:07):
horrible, and I'm out. Leave me alone by him. No,
here's what I think. Here's what should be done. Here's what I'm doing. And the
voters did what the voters are entitled to do. No thanks. You're out of here.
Great. But each part in that
scenario, each party played the part it's supposed to.
The representative was representative and just representative of

(30:29):
politics that a majority of the voters in her district, okay, we're
in violent disagreement with. So,
but each party, each, in that circumstance, each, each
factor involved did his or her part. And so that
to me is unusual. What's usual is, oh, I'm not running for
reelection, then here comes a book about something or whatever. You know what I

(30:51):
mean? Right, right, right, right. The tell all hagiography that
you should have where you should have. You should have released like 10,000 years. Yeah,
yeah, yeah. The nonsense. Yeah, right. Or it's Jacques
here. Here are all my denunciations and who. Everybody did
what. But you're leaving. Okay, right.
And so it's like that actually doesn't serve

(31:14):
us. It doesn't serve we, the people of the United States.
The representatives will only take a principal stand on the way out.
Take the stand while you're in and try to stay in. And
maybe you'll get support. Maybe you will help that stew
congeal into recognizably separate parts
so that they can be then be separated again into different pots,

(31:36):
which is the only way, in my opinion, you effectively get
strong, robust politics. Okay. Everything in one pot, one
big stew. One big beautiful stew. Okay.
Is a bad recipe. Is a bad recipe. It's an even worse
pun, but it's a bad recipe. Okay, well, well,
I'm sure, I'm sure Tom Tillis on his way out the

(31:59):
door. Actually, probably not on his way out the door. I'm sure Thom Tillis,
two to three years from now after the Congress
has switched parties and they are breathlessly trying to impeach Donald Trump,
I'm sure he will release his. To your point, Jacques,
and he will. He will do the podcast and

(32:22):
right wing media complex tour
talking about how he knew it was a bad deal all along.
I agree with that part. Anyway, I've had about enough of that.
Okay, let's, let's pick up a little bit. Let's read.
I'm going to read a long piece here speaking of the
judiciary, because I do think that this is, this is the core, and I want

(32:45):
to stay focused on this today. I do think this is the core of, of
where our challenge is. I think the judiciary is
attempting and even weirdly enough at the district court and
at the federal court level, I think the courts are
attempting to separate out this stew. But because of the nature
of how the judiciary was originally

(33:06):
conceptualized and has, through
the exegesis of the last 250 years,
moved and grown and evolved with the country,
the judiciary is to a certain degree
powerless to do

(33:28):
more than to demand that the Congress take
a particularly larger role, particularly in this conversation that we're having now with the
Rolo, or that the executive put down some of their power
and, and pull out, pull something out of the mix. And you
can see some of this I think you can see some of this in
the, in the majority opinion

(33:51):
from from that was released from the Supreme Court
this June. You can go online and check this out. The case
is Trump, President of the United States et al. V.
CASA Incorporated et al.
The issue before the court was whether or not a district court,
any district court in the United States, but specifically, I believe

(34:14):
district courts in the any of the district
courts in the various districts of the United States, whether or
not judges in those courts can in essence
be compelled or be asked actually not compelled be asked
by plaintiffs against the government, no matter which party the government
currently represents, whether those courts, those

(34:37):
judges can can issue injunctions to stay
executive orders. Now, in particular, this is focused
around the issue currently in front of us that we're a national royal
around immigration, deportation, ICE
raids, all of those kinds of things. And
the question before the court was, or at least the way the

(35:00):
court framed the question before it was not can
the president exactly can the executive
in the United States exercise the ability to boot people
out of the country? Instead, the question before the court
and the majority opinion actually ruled on this 6, 3 in
favor of the particular direction that I'm going in.

(35:23):
The issue before the court was can a district judge
or can a federal court judge stay executive
power? Do they have the power to do that? And so
I'm going to read just a few things here. And again, I would encourage you
to read the entire the entire
case there, the entire decision. And you can go get that on

(35:45):
supreme court.gov I believe is where you can find that.
But I want to read from the majority opinion and it was read, by the
way, from the bench, which is kind of unusual in a case like this by
Justice Amy Comey Barrett Yes. A Trump
appointee. Yes. A very Catholic woman. And yes, I
believe she has something like 14 kids. And

(36:07):
that's neither here nor there. She's just seven. Seven. Something like that.
Okay, seven children. Seven children.
Okay. All right. God bless her and all the ships at
sea. So let me read from the majority opinion here and a quote.
Respondents, meaning those folks who brought the case to the court,
raised several counter arguments which the principal dissen echoes.

(36:29):
First, they insist that the universal injunction has a sufficient
historical analog, a decree resulting from a bill of peace.
Second, they maintain that universal injunctions are consistent with the
principle that a court of equity may fashion complete relief for the parties.
Third, they argue that universal injunctions serve important policy
objectives. The principal dissent focuses on conventional

(36:52):
legal terrain, like the Judiciary act of 1789 and our cases on
equity. Justice Jackson, however, chooses a
startling line of attack that is tethered neither to these sources nor, frankly, to
any doctrine whatsoever. Waving away attention to the
limits on judicial power as a, quote, mind numbingly technical
query, unquote, she offers a vision of the judicial

(37:14):
role that would make even the most ardent defender of judicial supremacy
blush. In her telling, the fundamental role of courts is
to, quote, order everyone, including the executive, to follow the law full stop.
Quote, the function of the courts, both in theory and practice, necessarily includes announcing
what the law requires in suits for the benefit of all who are protected by

(37:35):
the Constitution, not merely doling out relief to injured private
parties. Close, quote. And she warns, if courts lack
the power, quote, to require the executive to adhere to law universally,
courts will leave a gash in the basic tenets of our founding Charter
that could turn out to be a mortal wound.
Rhetoric aside, Justice Jackson's position is difficult to pin down. She might be

(37:57):
arguing that universal injunctions are appropriate, even required, whenever the
defendant is part of the executive branch. If so, her position goes far
beyond the mainstream defense of universal injunctions. We will not
dwell on Justice Jackson's argument, which is at odds with more than two centuries
worth of precedent, not to mention the Constitution itself.
We observe only this. Justice Jackson decries an

(38:19):
imperial executive while embracing an imperial judiciary. Justice
Jackson skips over that part because analyzing the governing statute involves
boring, quote, unquote, legalese. She seeks to answer a far
more basic question of enormous practical significance. May a federal court in the United States
of America order the executive to follow the law?
In other words, it is unnecessary to consider whether Congress has constrained the judiciary.

(38:42):
What matters is how the judiciary may constrain the executive. Justice
Jackson would do well to heed her own admonition. Everyone from the
President on down is bound by law. That goes for judges
too. The principal dissent disagrees, insisting
that, quote, it strains credulity to treat the executive branches irreparably harmed
by these injunctions, even if they are overly broad.

(39:07):
That is so the principal dissent argues, because the Executive
order is unconstitutional. Thus the
Executive branch has no right to enforce it against anyone. Close quote.
The principal dissents analysis of the Executive order is premature
because the birthright citizenship order or
citizenship issue, I apologize, is not before

(39:30):
us. The majority
decided that the judiciary does not have the power, that
a universal injunction does not have the power to stay
the President's or the Executive's hand, and that
to ask it to do such a thing is beyond the pale of the
judiciary. And the majority opinion, if you

(39:53):
read further, also indicated
that the court
itself can only compel Congress to stay
the hand of the Executive.
The Supreme Court holds that lower courts do not have the ability to place injunctions
on executive orders. Now this is all focused around the idea that the

(40:14):
President has authority to police the borders and to enforce immigration law. By the way,
this is what the dissent is in a panic about. From Justice Jackson,
Sotomayor and Elena Kagan.
And I would quote to Ms. Kagan, Ms. Sotomayor and Ms.
Kataji Brown Jackson, the following from Federalist
Number 70. There is an idea which is not without its

(40:37):
advocates, that a vigorous executive is inconsistent with the genius of republican
government. The enlightened well wishers who the species of government must at least hope
the supposition is destitute of foundation, since they can never
admit its truth without at the same time admitting the condemnation of their own principles.
Energy in the Executive is a leading character in the definition of good government. It
is essential to the protection of the community against foreign attacks is not less

(40:59):
essential to the steady administration of the laws, to the protection of property against those
irregular and high handed combinations will sometimes interrupt the ordinary course of justice
to the security of liberty against the enterprises and assaults of ambition, of
faction and of anarchy. Every man, the least conversant in the
Roman story knows how often that Republic was obliged to take
refuge in the absolute power of a single man under the

(41:22):
formidable title of dictator, as well as against the intrigues of ambitious
individuals who who aspire to the tyranny and the seditions of whole
classes of the community whose conduct threatened the existence of all government
as against the invasions of external enemies who menaced the
conquest and destruction of Rome. There could be no
need, however, to multiply arguments or examples in this head. A feeble executive

(41:45):
implies a feeble execution of the government. A feeble execution is
but another phrase for bad execution. And a government ill
executed, whatever it may be in theory, must in
practice be a bad government.
Close quote From Federalist Number 70
by your friend and mine, Alexander Hamilton.

(42:07):
So there's a lot there the majority
pulled on to create its
opinion and that the dissent in Trump v. Casa
objected to. I sent the documents to
deroll. I don't know if he had a chance to look over the case itself
or what familiarity he has with this, the case.

(42:29):
But I'm going to ask him the basic question that was before the court de
Rolo. Can the powers of the executive branch be checked by district
court injunctions?
Oh, without a doubt. It's just.
Solely as they apply against a
party that is actually under the court's jurisdiction

(42:52):
and part of the suit before it. Okay. And in a way,
it touches on the case or controversy doctrine. The
judiciary can't touch anything that doesn't come
before it in the form of a case or controversy. Right.
An actual case filed or perhaps

(43:14):
a petition for relief, which is the technicality, the difference. But
that would be, for example, where someone is being held
arguably without just cause, a petition
for their release. There's your controversy. Right. Rather than
a case. But anyway, so long as the court has jurisdiction
over the person, absolutely. They can grant

(43:37):
an injunction to prevent, or to
temporarily prevent the
judicial, excuse me, the executive from doing something. Right. That
wasn't the issue here. The issue here was
have they issued an injunction that protects anyone
from the enforcement of a law? And

(43:59):
to me, and in my review, but I haven't seen the word yet. But
I admit on the face of it that that's not a comprehensive review.
I have not yet seen the word veto. But how it comes across to be
is a judicial veto of the law.
And that itself would actually provoke a
constitutional crisis. Okay.

(44:22):
So, yeah, it's,
it's, it's interesting. I agree with the reasoning of
the majority. I think Justice
Barrett did an excellent job being
both a
complex Anglophile as well as someone who actually lived in the UK and studied their

(44:44):
laws while in law school for a time. I
like the history. And also being an
originalist, I understand the point that, hey, when Congress grants this
power in 1789 to these courts, this
thing was not done. And thus we are looking to that
grant and trying to determine if this modern usage

(45:06):
actually is
authorized right or not. Not would have
been authorized, but is authorized or not. I think that you know, is
the correct way to begin the analysis. But yeah,
strange because when I read it, I'm also
frustrated against media presentation of things.

(45:29):
Okay, Right, right. This case seems to touch not at all
upon the actual birthright citizenship issue. It's just
addressing whether one person who doesn't work
for the federal government, he's actually part of the federal government.
If he has the power to say this law
is bad and nowhere in these United States may it be

(45:52):
enforced. Right. It sounds like veto.
It is directly analogous to what the President does when a bill comes before
him or her one day, her perhaps, and
then that president gets to say, oh, do I wish this
to become the law of the land or not? If the answer is no, he
knows it. This seems like a post hot

(46:14):
judicial veto of either
executive orders or of enforcement of an
actual law. I mean INS has been the law for more than half a
century. Right. I think it's 1952 when it was passed
in. It's arguably that law is central
to the current composition of the United States of America.

(46:36):
Legal composition of the United States of
America. That law is central to an extremely important law in the
20th century. Okay. And effectively what
the judge is doing is saying no, that, that, that's a bad law. That's not.
That, that cannot be enforced. Who made you king?
Well, let me, let me, let me. From whence cometh that power? Well,

(46:59):
let me, let me steel man the defense. Not from English equity.
Well, but not from English common law. Well, let me, let me, let
me steal man, not the defense. Let me steal man the dissent. Let me do
this for just a moment. Normally I wouldn't do this, but I'm going to put
myself in the, in the mind, in the, in the,
in the, in the argumentation of the dissenters,

(47:21):
Kagan, Sotomayor and
Jackson. What you are saying, De Rolo, is so much
legalese
and I don't have time to get involved in the weeds of the legalese
of what British and the Crown. You said a lot of nice
fancy white supremacist sounding words.

(47:43):
Don't you know? Don't you understand that
that is a mind numbingly technical query? Because what,
what the Executive actually wants to do is what we
should rule on. Because the Executive has shown intent.
Because of the nature of the Executive power as it has grown over the last
hundred years, the Executive has shown continuing intent. And, and

(48:07):
we don't have to know what's in the Executive's mind of either party. All we
have to do is look at the pattern and Predict the pattern into the future.
That's all we have to do. And so don't get me, don't get me pulled
into the weeds of legalese or technical queries.
We need someone because the Congress has
failed in its duty. I agree with you about that. The Congress has failed in

(48:28):
its duty to check executive power. So if the Congress will not do it,
what branch of the government would you propose do it? Because we
can see from the patterns that have been
developed over the course of time that the executive will not stop and we will
have an imperial executive. What say you
to this assertion, which I believe is the assertion,

(48:50):
by the way, that Jackson cake. And this is the core of the assertion, actually
I don't believe it is the core of the assertion that Jackson, Sotomayor and
Kagan are making in the dissent.
It's overblown. Even if I
didn't take issue with how they

(49:10):
divine what someone is going to do,
even if I don't take issue with that, it's
overblown. The imperial presidency and their fears of
an imperial presidency seem entirely to be political.
Not legal and not even constitutional, just political. Meaning

(49:31):
they disagree with what this man is doing, therefore he's a tyrant.
Not the way this man is going about doing what
he's doing is tyrannical. That's just a very different
assertion. And you know,
it smacks of high sounding rhetoric on their part.

(49:52):
Right. But at the end of the day, they can't know what he's
going to do. They can't know what he's going to do. They can
know what a statute authorizes him to do. Right.
And when the federal officials, okay, the officers
of the executive branch, like ice, when they then
actually take action pursuant to what the law allows them to

(50:15):
do and someone thinks that that action itself
was done wrong, there would have you, they can sue, right? And then an injunction
can issue granting some form of relief. But of course it's only going to
be temporary because if the law remains constitutional, well
then you know, the, the law is going
to be executed. You know, they would be better

(50:38):
served by calling on Congress by, sorry, by calling on voters
to vote for different people who will then get a. To Congress and do something
different. But de Rolo Derolo, again, to quote from Justice
Jackson. Actually, no, I'm sorry. To quote from Justice Sotomayor. It
strains credulity to treat the executive branches irreparably harmed by these
injunctions, even if they are overly broad.

(51:00):
Sorry, say that again from, from, from Justice
Sotomayor's opinion In the dissent, it
strains credulity to treat the executive branch as
irreparably harmed by these injunctions, even if they are overly broad.
I don't think it's merely the executive branch who's harmed.

(51:22):
It's a wrong against our constitutional system. Right.
The judiciary doesn't veto the law
in a case or controversy. The judiciary may hold a
law as unconstitutional. Okay, fine. But the
application of that holding is not necessarily going to apply outside of that district.
Normally, this issue is closer

(51:45):
to what the Supreme Court was dealing with. That is,
how far away from a federal courthouse the writ
runs by that judicial official,
how far away does it go? And normally it stays
in the district. And so if you had a real issue change
district, that, of course,

(52:08):
that's part of our freedoms, that's part of how our republic works. Part of how
its structure protects freedom,
is that judicial overreach is limited
geographically, except when it's done by the US Supreme Court. And then it's a very,
very, very specific evil. And there are, you know, awesome
precedents in the law, like Plessy vs. Ferguson that show you what

(52:30):
happens when they screw it up. Right. Thankfully, it takes a while to get
there, and there's, you know, very few instances of that.
But anyway, here, you know, you haven't, you haven't touched
on it yet, but you can look at the numbers. If my recall
is correct, and I know the.
I actually have it up on my computer. And no, I'm not driving

(52:53):
anymore. So let nobody panic, because I am trying to look at a computer
while driving a truck. I'm not in a truck. I'm in an office.
In case anybody. Here we go. The total
number of. So the first universal injunction. Okay. Was made in
1963. As of the end of

(53:13):
2024, there were 127 of them. But
this year, my understanding is there have been 25 of them, and therefore,
the total number of them. Right.
Is152.
Guess what percentage of them are universal injunctions
against Trump administration action?

(53:38):
Out of the 152. 80%.
80%. 0.44
something%. Wow.
Okay. It was 50% as of
the end of last year, and then there's 25 this year. So we're now
at effectively 80%, slightly more

(54:02):
technically than 80%.
A hair, a smidgen for 80% against Trump administration action.
Now, let that be the background for my argument that this
is merely a judicial veto. And now we see what we're dealing with. They are
vetoing what this administration is doing. They cannot stop him getting
elected. So using the judiciary as martinet, or actually a better,

(54:25):
better. A better metaphor.
As tribunes. Right, as
tribunes. To strike down these actions or
to strike down the legitimate
enforcement of lawful and constitutional
laws, you know, it effectively. So the harm,

(54:47):
it's not just that the executive branch is harmed, the rule of law is harmed.
No one elected that judge in Massachusetts. No one
vested that judge with the authority to say, this law is just
not going to be carried out. Nobody, sorry,
this executive order is not going to be carried out. No one vested the judge
with the authority to say that. Now the judge

(55:10):
is vested with the power, as well, demonstrated by, you know,
Justice Barrett, to say in a case or controversy, I'm
going to grant an injunction against the enforcement of this executive order
pending the outcome of this dispute about
the validity of the order and. Or its
enforcement. Follow. Oh, absolutely.

(55:34):
That's perfectly fine. Right. And what I would. What I would. Well, couple of things.
So the, the,
the, the steel man argument from the dissent
comes from a historical understanding of the
Constitution, going all the way back to Woodrow Wilson, that it should be
a flexible document that conforms and comports

(55:56):
to the times, rather than the
originalist position, which, of course, states that
the Constitution says what it says and we should leave it alone.
And in case after case in the course of the
20th century, the court has trended,
whether it has been Republican appointees or Democratic appointees, it seems

(56:19):
to not matter in a more,
shall we say, progressive direction.
And this court seems to be, on the face of it,
and I mentioned several cases already, the Chevron, the overturning of the
Chevron doctrine in the Loper case, the
overturning of Roe v. Wade, even in cases that did not

(56:42):
involve the federal government, the cases around affirmative action
with the University of Michigan and Harvard University, this court
seems to be trending more and more in the direction of originalism.
What. How is that going to jibe
with. Well, two questions. So, one, how is that going to jibe with our digital

(57:03):
future, which seems to favor a progressive,
fluid,
unmoored and untethered kind of posture?
That's the first question. How is this going to jive with our digital future?
And then because, just to say me, Colby Barrett, she's What, in her 40s,
50s, something like that? She's going to be on the court a long time. So

(57:26):
is Brett Kavanaugh. So is
John Roberts, although he's, he tends to waffle back and forth
depending upon which position he's taking on which day.
But then also, you know, you're also going to have
another opportunity for someone else to be introduced to the court, particularly if
Clarence Thomas retires. And underneath this

(57:50):
administration, to add to the. To the gnashing
of teeth of the progressive movement in our country.
How does it originalist. I'll just. Let's focus on this question for just a second,
because I'll ask you the second one after I get the answer to this one.
How do you see this more originalist
conservative court actually functioning over the next

(58:10):
40 years in an increasingly progressive, culturally and
politically progressive culture?
I'm going to assume the increase in
progressivism will continue for the sake of my comments. Sure.
Okay. It's going royally piss them off, right? It is going to
royally piss them off. And

(58:33):
yet there is a rule of reason
that is easy to discern about originalism,
Right. The majority of your listeners, I dare say, will be
participants in a mortgage for their home, where there is a
lender holding a mortgage. And a mortgage, of course, is a security instrument that

(58:55):
they actually give to the lender. They also,
far as I know, never give to the holder of
the mortgage the right to unilaterally reinterpret it,
however the lender sees it, because circumstances, quote,
have changed. Close quote. Period. No, no, no. It doesn't happen. Doesn't happen.

(59:16):
That's just one contractual example to show you why originalism makes
sense. Okay? And on a gut level, makes sense. We
understand it, okay? We understand it, okay? If
you get a winning lottery ticket, okay? And I don't know why you play
the lottery, we'll leave that on the side. You draw a winning lottery ticket, great.
You show up at the, at the state office because this is a state

(59:39):
run fraud. That's what any lottery is, okay? Except people
voluntarily participate in it. So you show up at the office, hey, here's my
winning lottery ticket. Oh, you're right, it was. But we reinterpreted the
numbers. What? Yeah. Somebody else won. He's over there. You would be
incensed.
Incensed. Someone has stolen your

(01:00:00):
victory by reinterpreting
what in fact was something else. Right? And so
what happens here is our rights get stolen when they can unilaterally
reinterpret what clear,
comprehensive, comprehendable statements
are. Then when they're reinterpreted to mean something, usually it's the opposite.

(01:00:22):
They're reinterpreted to mean the opposite of what was actually said. It
actually reminds me of Genesis 3.
Did God really say this? And then Eve says
what her husband told her, and then she adds a
Gloss. She adds something that at least when you read
the earlier two chapters, you don't see.

(01:00:46):
And then Satan pounces. And of course, you can relate to Milton if you
want to. You can relate to the Bible, which I knew because that's where I'm
getting from. You can also relate it to John Milton's poem, right, Paradise Lost.
But then comes the reinterpretation. And fittingly, the
reinterpretation is the opposite of what was actually stated. That's exactly what
progressives do. There we are. They're not going to

(01:01:07):
be happy now, looking forward with respect
to that digital age. You're right. But it's not merely the Constitution
that could fall, that shall fall foul
of their way of thinking. They're
unmoored, borderless, universal
Catholic without any religious meaning. But the actual use of Catholic.

(01:01:29):
Okay, Use of power. It's an assertion
to use power wherever, whenever and however
the current holder sees fit. Okay? That is
the. That's actually tyranny. That is the. And it's not merely tyranny.
It's totalitarian and tyranny. Tyranny and surrender, okay? It is
the enemy of privacy, is the enemy of the individual, is the enemy of the

(01:01:51):
family is the enemy of the nation as well as the nation state.
And so it's a very, very, very important point, okay,
that the mood, because that's what I'm going to call it, is increasingly progressive
and that that mood is both
totalitarian and tyrannical. That's dangerous.

(01:02:13):
Of course, it's also legal,
okay? It's legal in our free country. Legal. It's
legal for you to think in totalitarian lines and want to see
tyrannical uses of power. And both sides do it.
It's totally legal. It's just detrimental to our

(01:02:33):
free system of government. It's detrimental.
And when you lose, you have to deal with the fact that the other side
has the ball. The other side is running the ball. You play defense,
okay? You don't shut the game down. Well,
well, well. But you have. You have a voting segment in this country,

(01:02:53):
an electorate, okay? Who.
And I'll use a small sample size of this electorate
who recently in the New York City mayoral primary
voted for a man who, when asked,
should billionaires exist? Laughed
and said, and I quote, we're going

(01:03:16):
to seize the means of production from them. Close
quote. Every
single voter between the ages of 18
and 40 in New York City in the Democratic
primary clapped and voted for that guy.
That's what we've got coming down the pike

(01:03:40):
right at A national level. And
originalism, you're right, will piss
them off. And so the next step above that. By the way, it's
interesting that you brought up mortgages and you didn't talk about student loans,
interestingly enough, because everybody who's 8 between 18
and 40 is most verklempt not about mortgages, but about

(01:04:02):
student loans, which is also the example of a
promise to pay that cannot be
moved around, interestingly enough, when your
circumstances change.
Okay, my last question here or my next question here. We got to wrap

(01:04:22):
up. We're rolling around the corner.
In looking at these major decisions since
Ms. Jackson, Ms. Sotomayor and Ms.
Kagan have been appointed to the court.
And looking at the way those their decisions have been written, Sotomayor

(01:04:43):
strikes me as probably being the sharpest legal mind out of that group,
followed by Elena Kagan and Justice
Jackson. It, it appears now
at least two, if not three times in a row on a dissension
has, if I may be so gentle, out kicked her coverage.

(01:05:12):
What are the dangers of putting a
purely political appointee on the court?
Well, it's one of the choices. Right. And it's been done before.
There are other and actually arguably
better well known political appointees to the

(01:05:34):
high bench. Right. And yet at the end of the day,
arguably, when that person takes his or her role
conscientiously, you may get some
beautiful surprises. One of the
decisions that I use in my practice often enough

(01:05:55):
comes from the pen of Justice Kagan. Right?
I do. Among the things I do are federal Tort Claims act
lawsuits against that government. Okay. The
United States of America on behalf of veterans who have been hurt by VA
employees. Okay. And there is a
strict and strictly construed statutory framework

(01:06:19):
whose steps are deemed by the high bench to be jurisdictional.
Meaning if they're not done, the court has no power to help you. They're not
done properly before filing suit. The court has
zero power to help you, and that's it.
Your suit cost. So anyway, there
was a question once about whether a six month time

(01:06:41):
frame was six months or 180 days. And that may sound
stupid, nonsensical. Trust me, as a litigator, that stuff is critical.
Okay. And Justice Kagan's opinion
saying six months is six months, that I actually liked,
that was the first decision of hers. I remember reading and saying, I'm glad you're

(01:07:03):
there because this is what I want. And what the dissent
said, written by somebody I generally would like
more, I just disagreed with. No, no, I don't. Six
months is Six months. But not all months have the same number of days.
So what, six months is six months. And six months
helped me rather than 180 days. So was

(01:07:25):
happy as a clam. She wrote the decision. And so. But
yes, generally, and certainly as you change policy areas now, usually
she and I are not opposite ends of the table, so opposite side.
So. But yeah, it's.
Yeah, it's going to be interesting to see how it goes. Oh, and by the
way, Justice Barrett is 53 and they

(01:07:47):
have seven children. She's been married one time to a man named Jesse, since
1999. Okay. Right, right. I mean, she's going to be on
the court. I mean, at least another. At
minimum, 15 years. Average lifespan
for a healthy woman in America
is 75 to 80.

(01:08:10):
Yeah. So it's gonna be a long time. Gonna be a long time.
And I just. I look at the way Justice
Jackson's dissent was written, and the writing
reveals a. Reveals a couple of things. And we've been banging on about
this on the podcast the last. The last few months

(01:08:31):
because I do think it's a genuine problem.
It reveals a lack of
seriousness. I don't mean a lack, and I don't mean
that in terms of professionalism. I don't mean that in terms of knowing
how to use the words. I mean, there's a fundamental spirit
of unseriousness underneath the thoughts that exist in the

(01:08:54):
mind. To paraphrase from George Orwell, when we have lazy
thinking, we write lazy words.
Now, those lazy words could be four syllable words and five syllable words, but they're
still lazy. And so there's a
fundamental lack of seriousness I see
among the progressive members of the bench at the

(01:09:16):
U.S. supreme Court level that I find to be
somewhat disturbed. Disturbing.
Yeah. And I'm no jud. I'm no
legal genius, but I can read a document
and analyze it.

(01:09:36):
Like. I never went to law school. So, you know,
I'm not claiming that, but there should
be some understanding on the part of those three
justices of exactly what the law is. And. And to your
point earlier, what the law is in spite of
political pressures, because I think that's what we want

(01:09:59):
from. We want from the court.
Okay, well, you know, we actually want from the court. Right.
I can tell you in every case what every single person
wants from the court. Well, in reality,
every single person wants the person in black to say they

(01:10:21):
were right, the other party was wrong, and you got it. Then
go away. We want to win. We want to win. We want Judge to
say what we want that's what we want. And when the judge does,
we will defend it to the hilt. Right. And when the
judge doesn't, we will decry it forever until
it's changed or overturned. And, of course, I do this for a living. Right.

(01:10:43):
But that. That's effectively how we all work. And
so there's something, though, to their role,
and it goes throughout the federal judiciary. It's just
as time has gone on and technology and other factors
have come into play. And I also think the homogenization
of the judiciary, the federal judiciary, on the

(01:11:05):
homogenization of it, meaning find somebody who didn't go to
Harvard, Yale, Stanford, to Columbia. Good luck. Right.
That's the homogenization I'm talking about. Yep. Because
of that, there's less philosophizing, there's less
creative and imaginative endeavor. Endeavor in
determining what the law is. To quote

(01:11:27):
Chief Justice Marshall and Marbury vs Madison. That's their job. Say what? The law
is. Great. That is philosophical, it is political.
They're unavoidable considerations. But when they're done, well,
among other things, they're limited to that case or
controversy. Okay. And the
exceptions, of course, are when it's the, you know, Supreme Court is striking down

(01:11:50):
a law holding that a law holding the legal term. Okay.
Concluding this law violates the Constitution, and therefore,
you know, it's not the law. Great. But other than
that, narrower and
narrower as you go down. And so what we have
is now we had an inversion going on, because

(01:12:13):
as I counted, according to this article, there were
127 of those injunctions from 1963 until
2024. And then another article said there were 25 this year. Great.
That means 80% of them were against Trump
administration action. Obviously, this is not
anything other than political opposition through the judiciary. It is a

(01:12:35):
veto of legitimate government
action rather than a limited in
terms of geography, limited in terms of persons
affected, temporary measure to preserve
a status quo. So a decision can be made. Right.
I agree 100% with the decision. It does not

(01:12:57):
touch birthright, anything. Well, and I'm glad you
brought this up here at the end, because I have in front of me my
copy of the Pocket Constitution. Every good member of the republic, whether they
are progressive or originalist, should have a copy of the Constitution and should actually
read the words of the document as it was written. And I
would like to quote from Article 14

(01:13:21):
of the United States Constitution,
and I quote Section 1, all
persons born or naturalized in the United
States and subject to the jurisdiction thereof
are citizens of the United States. And of the State wherein they reside.
No State shall make or enforce any law which shall abridge the

(01:13:44):
privileges or immunities of citizens of the United States.
Nor shall any State deprive any person of life,
liberty or property without due process of law,
nor deny to any person within its jurisdiction the equal
protection of the laws.
No question was before the

(01:14:08):
court this session in
regards to Article 14, Section 1 of the
United States Constitution. Not one, no matter what you've seen in the media,
not one. And
say again. Indeed. And so.

(01:14:30):
Right. And so. And so. The court cannot and
should not. I would assert, rule
or have an opinion about things that are not before it.
I would, I would, I would dissent from the dissension just merely based on that.
I don't need anything else. I don't need to know that Justice

(01:14:52):
Jackson is out kicking her coverage and that there may not
be the sharpest legal minds among the dissent. I merely
need to know that that is not the issue before the court. The
issue before the court is can the district court
create a universal injunction to stop something that a
particular political party does not like? Yes

(01:15:15):
or no. That's it. That was the only thing before the
court. The birthright citizenship
challenge. Can people who immigrated
here, by the way, I would assert born or Naturalized
are the two key words in Article 14, by the way. And if a person
illegally came here and then had a

(01:15:37):
baby, I'm going to make the bold. I'm going to make the bold challenge.
The person who immigrated here illegally
is not a beneficiary of the
benefits of the United States and of citizenship. The
child might be, but that means that the

(01:15:58):
mother and the father. Because even in our progressive scientific
age, you still need a man and a woman to have a baby.
That man and that woman probably need to leave the child in America and
go home and get back in line and
come here legally. But that

(01:16:18):
is a radical position. And who's going to break up
families? Who's really going to send ice to grab some
five year old from some kid hiding in a closet? Although we have done that
before underneath the Clinton administration
with a gentleman. Not a gentleman. He is a gentleman now because he's a
grown up by the time he was a child named Elian

(01:16:42):
Gonzalez. Yeah, everybody,
everybody forgets that. But I don't because I,
unlike those 18 to 40 year olds that fell asleep in history
class or were never taught it, I actually pay attention to history
and things that happened before the Internet.

(01:17:03):
All right. I think the birthright
citizenship question will go before the court within the
Next couple of years, I do think that they are going to focus on those
two words, born and naturalized. And I do think there will be a genuine
struggle. I think it's going to be probably a 5, 4 decision. Then. Yes, the
federal government can enforce illegal, can enforce immigration

(01:17:24):
law against people who are here illegally. And that if parents are here
illegally, they should probably not have children. And if they do have children,
those families can indeed be split up and a riot I
predict will occur at a national level.
Or the Congress could just make some laws like they did in the 80s underneath
Ted Kennedy and solve this problem for us. You

(01:17:46):
know, actually do their job instead of flouncing around on
tick tock and tweeting stupid things.
Yeah, but again, I'm not a lawyer. What the heck do I know, right?
Final thoughts, De Rolo, on this Supreme
Court session. Because this was probably the most explosive decision that came out

(01:18:10):
of, of the Supreme Court this session, other than maybe
the one that said where basically parents can
indeed pull their children out of school if they don't like
the books that are pushing certain themes that they don't want their children
to, to hear about. And by the way, I'm in
favor of that as well. My child is the property of the

(01:18:32):
family, not the property of the state. You don't own
my children, period, Full stop.
But anyway, and I, I was born in the United States.
I am a citizen of this country. Section
1, Article 14 does not apply to a person such
as myself, however.

(01:18:56):
All right, final thoughts on
this Supreme Court session and, or, or
the U. S. Constitution. Anything you'd like to say to wrap up, De Rolo? Because
we got to get going. It's fascinating because
you know, what you do in the era of mass immigration
with the notion of birthright citizenship, it has an

(01:19:19):
old and very old pedigree and it's
quasi religious. Right. The sacredness somehow
conferring something on somebody. I think there's actually
something to that that is beautiful and that
I would not want to see destroyed. At the same time, I have to balance
that against the exigency of dealing with

(01:19:41):
an unimaginable level of illegal immigration. Unimaginable
because technologically it was not possible
40 years ago with what we're dealing with. Sorry. Technologically and
politically it wasn't possible. Much of the
restraints, I would say, on mass immigration,
many of the restraints are political and not merely cultural or technological.

(01:20:04):
Right. And as the politics eroded, all of a sudden
a people's willingness to unilaterally uproot themselves and move
Just like those Gaulish tribes did when Caesar
decided to invade Gaul. Right.
What are they called? It'll flip my mind, but basically
the Ostrogoth, modern Switzerland. And they

(01:20:27):
literally picked up sticks because of Germanic pressure and they were moving into
Gaul. And Caesar, of course, not only did not want that, he was able to
use it as a pretext, faith, goal. But anyway, I digress. Right. So, yeah,
it will be interesting to see what they do and who
is they, you know, what the judiciary does, what
Congress does. There's a whole lot of they. Right. But

(01:20:49):
we're certain we're certainly rightful. But again, to me,
I see this decision as a victory against
that mood, that mood that is totalitarian, that
mood that is tyrannical, that mood that those of us who remember Covid and
the restriction know will come for your

(01:21:09):
freedom, will come from your. For your freedom and tell you
it's your fault and tell you you're an idiot and tell you to follow the
science. When the notion of science is about challenging
orthodoxy. They will come into that
again. And so I see this decision as a victory against
those forces. Yeah, yeah,

(01:21:30):
yeah. We can't have the rule. We talked about this in the. In the episode
with Hannah Arendt, episode number 155, where we
covered Eichmann in Jerusalem,
a report on the banality of evil. And she made the point
that Eichmann was a thoughtless little man,
a nobody who ruled and made rules and

(01:21:54):
enforced rules. Well, not made rules, but enforced rules. But he was a
nobody from nowhere. Right? And that was the most sort of
banal thing about him, thus leading to this idea of
evil being rather than a visceral thing, really a
play come really coming from a place of banality. And
my deep concern, and I talked about this on that. On the podcast episode

(01:22:16):
with Tom Libby around this. My deep concern is
that our. The gentlemen, strations of our large
language model algorithms will.
Will provide the temptation to humanity, particularly Western
humans who cannot solve the mass immigration problem,
to default to an algorithm and thus to claim

(01:22:40):
bureaucratic rule of nobody from nowhere, with no one to appeal
to. And that is totalitarian
tyranny at its peak.
Correct. And I am uninterested in living
under a mode of government where no
one, there's no human, where there's no human who can be held responsible,

(01:23:02):
responsible and accountable, whether that's legally,
morally or ethically, for the decisions
that impact real human beings in the material
world. So that's where I come down on that. And unfortunately, the
progressive mood, the progressive mind seems to be more and more
leaning towards the rule of nobody from nowhere that

(01:23:25):
can never be questioned. And I think
that that's a deep disease and a deep cancer
in the progressive mindset that that has to
be rooted out and. And excised. And I don't know how to do that.
I don't have the tools.
I hear you. All right, man.

(01:23:50):
Well, Derolo Nixon on the phone today,
live. This is like an old school radio show. This is great.
So you're going to have to listen to the audio of it. You're going to
love it. But on
this, our July, kicking off our constitutional July, I want to thank Derolo
Nixon for coming on the show. And with that, well,

(01:24:14):
we're out.
He's out, y'. All.

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