Episode Transcript
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Speaker 1 (00:00):
Michael, I wonder what the founders thought about birthright sitting
inship with regard to illegals. I mean, is this ever discussed.
I mean you think they just glossed over it somehow.
But I wonder type ain type. I want to go
back real quickly just to a couple of things.
Speaker 2 (00:17):
I want you to again listen to this is This
is MSNBC.
Speaker 3 (00:26):
Over the weekend.
Speaker 2 (00:27):
They're really upset about the Supreme Court ruling and Trump
the cause that's the case in which the Court ruled
sixty three that these trial court judges, these individual federal
trial court judges, cannot issue nationwide injunctions. And without going
(00:50):
over the entirety of what I discussed on Saturday, go
listen to the podcast. I'll just put it this way.
The Judicial Acts of seventeen eighty nine and the US
Constitution both say that these what are called Article three courts.
(01:11):
These are courts that are authorized by the Constitution, but
it's up to Congress to establish them. The only court
in the count that is established by the Constitution is
the US Supreme Court and such inferior courts, meaning the
appellate courts and the trial courts. As Congress may from
(01:34):
time to time establish So the fact that we have
federal district trial courts is solely because Congress decided to
create those and in our complex reltigious society, I'm not
advocating to eliminate them, but because they probably are necessary
in order to Otherwise, all of those cases would fall
(01:56):
over on You'd have to rearrange all sorts of things
in terms of jurisdictional issues, and it would kind of
fall in state courts, and you would kind of overwhelm
the US Supreme Court on major constitutional issues, which may
or may not be a bad thing. I'm just not
convinced that's something we should do. But those courts are
(02:17):
creatures of Congress. They're created by Congress.
Speaker 3 (02:22):
Only.
Speaker 2 (02:22):
The Supreme Court is created by the Constitution, the seventeen
eighty nine Judiciary Act, and over the years, Congress has
established those courts and has limited their jurisdiction to cases
and controversies, which means to the parties in front of them.
(02:49):
So if it's Dragon versus Michael in Federal District Court
in Colorado, then the remedy, whatever the ruling is, applies
to Dragon versus Michael. It can apply to you know,
Billy Bob somewhere else. Now, if you want to if
(03:11):
you want to follow a federal rule of Civil Procedure
twenty three and you want to establish a class you know,
for example, if you think that there is some you know,
the example I gave you know, the typical class action
is that you think that Apple Computers has a design
flaw in its batteries, which I actually think may have
(03:34):
been a subject of the class action.
Speaker 3 (03:35):
One time.
Speaker 2 (03:37):
You have to go through all the Rual twenty three
procedural steps and meet all the requirements to define a
particular class of people that will be you know, damaged
by and could result in conflicting rulings.
Speaker 3 (03:55):
Blah blah blah.
Speaker 2 (03:56):
All these different reasons just suffice it to say you
have to establish a class of people and that class
has to be certified by the judge. And the judge says, okay,
my ruling will only affect all of the It could
be ten million people in the class. If ten million
(04:17):
people bought Apple computers with a faulty battery design, then
the ruling in that case would apply to those ten
million people in that class. And the court said, that
seems to be the remedy you ought to be pursuing,
but then cautioned the litigants that don't just think that
you can willly nearly just establish classes. You've got to
(04:40):
follow the rules precisely in order to establish a class.
Speaker 3 (04:44):
So there is a remedy.
Speaker 2 (04:47):
It's just that it's a convoluted, difficult remedy because class
action lawsuits are not the easiest thing in the world
to establish. You have to establish all sorts of commonality
that the very exact same issue applies to everyone. It's
(05:07):
actually stricter than that. But just putting it in layman's terms,
that's the easiest way to understand it. The exact same
legal issue applies to thousands of people all across the country.
Speaker 3 (05:21):
You well define that class.
Speaker 2 (05:23):
That class has to be certified by the trial judge,
then your case can proceed.
Speaker 3 (05:30):
So there is a remedy.
Speaker 2 (05:32):
But to listen to MSNBC, you would think that the
Supreme Court just took away any oversight by the judiciary
of anything that.
Speaker 3 (05:42):
The President does.
Speaker 1 (05:44):
Do you agree?
Speaker 3 (05:46):
I completely agree with this.
Speaker 4 (05:48):
I want to go back to what Andrew was saying
about the silver linings. I don't think there are soilber
linings here, and I want to be very clear with
the viewers at home, this is a really grave situation.
This court has effective taken the restraints off of this administration.
We don't have a Congress that is stepping in to
reign in this administration.
Speaker 1 (06:08):
All we've had.
Speaker 2 (06:09):
Now, you know what she is right about that Congress
is not doing anything to restrain him in terms of
because well, because they've already established that when it comes
to immigration policy, that's within his jersey. Here, here's the statute,
you can go enforce it. And in terms of how
(06:31):
you're going to enforce it, that's kind of up. We've
given you the authority to do that. She just doesn't
like what Congress has done, and she totally ignores that
the court, the Supreme Court in Trump Vicasa, actually established
some guardrails. But she's not going to say that. Instead,
she wants to fear monger that this allows Trump to
(06:54):
just go do anything. In fact, I saw one point
where Soda my Ore believes that what's next, and of
course she threw in gun rights, Oh, this will allow
Trump just to take away people's gun rights. Well, one,
that'd probably actually make her happy, But two, does she
really believe that or she just fear mongering. She's fear mongering.
Speaker 4 (07:17):
Our lower court judges who are looking at the lawlessness
of this administration, saying, not.
Speaker 2 (07:22):
Wamen, the judges are looking at the lawlessness, aren't the
judges instead supposed to be looking at the case in
controversy before them and then determine whether or not it's lawless.
See she thinks that the judges have already predetermined the outcome. Oh,
whatever Trump's doing, it's got to be lawlessness.
Speaker 4 (07:44):
Oh my watch, imposing these nationwide injunctions to stop the damage.
Speaker 1 (07:48):
In its tracks.
Speaker 4 (07:50):
And this court has now said that limited tool, that
limited judicial remedy, goes too far and instead what individual
litigans are going to happen.
Speaker 2 (07:58):
It's interesting she called it a limit to tool because
it is a limited tool established by the Constitution. You
decide cases and controversies that are before you. You don't
you know if if again Dragon versus Mike, Federal District
Court in Colorado, that ruling effects Dragon versus Mike. It
(08:21):
doesn't affect anybody living in New Mexico, taxes, or anywhere else.
It's applied to the cases and controversies to the people
that are in that court litigating that issue.
Speaker 4 (08:32):
I do is go to every district in this country
to litigate to stop the administration in its track.
Speaker 3 (08:40):
Is that what we're supposed to do?
Speaker 2 (08:42):
Well, that's kind of interesting because let's go back and
listen to.
Speaker 3 (08:48):
Oh Sonia's no, I'm sorry, this is Elena Kagan.
Speaker 2 (08:54):
When she in twenty twenty two pointed out thatationwide injunctions
are wrong. Now, what's the difference between twenty twenty two
and twenty twenty five, Oh, Democrat versus Republican.
Speaker 5 (09:13):
That can't be right that one district court, whether it's
in you know, in the Trump years, people used to
go to the Northern District of California, and in the
Biden years they go to Texas. And it just can't
be right that one district judge can stop the nationwide
policy in its tracks and leave it stop for the
(09:33):
years that it takes to go through normal process.
Speaker 3 (09:40):
This is so important.
Speaker 2 (09:42):
She's speaking at Northwestern University and she's talking about how
it just cannot be right that one judge sitting in
you know, the Northern District of California can do something
that just stops a president's authority all across the country.
Speaker 5 (09:59):
Right, that one district court, whether it's in you know,
in the Trump years, people used to go to the
northern district of California, and in the Biden years they
go to Texas. And it just can't be right that
one district judge can stop the nationwide policy in its
tracks and leave it stopped for the years that it
(10:21):
takes to go through normal process.
Speaker 3 (10:24):
In fact, she.
Speaker 2 (10:25):
Goes right, she goes even further to say, and not
only is it not right that one judge should be
able to do that, but then it would have the
effect of stopping a nationwide policy while that one judge
goes through the entire process of maybe or maybe not
ever getting to the US Supreme Court. Are There's there's
(10:49):
so many tracks I could take from just that one SoundBite.
I'm trying to figure out my brain which one to
jump on. But think about she's saying this in twenty
She says, it's just it's not practically, just cannot be right.
We can't stop the executive branch. We shouldn't allow one
judge from stopping an executive branch decision that's a national policy.
(11:12):
We can't allow one judge to do that and then
have to wait all those years, you know, before it
goes through all the appellate you know, through all the appeals,
and then may Or may not be accepted on certain
by the US Supreme Court. She's exactly right. Yet when
it came to Trump, suddenly she flips her position and
(11:33):
she concurs with Soda Mayor in the descent and says, oh, no, no, no,
you know, this is horribly horribly, horribly dangerous. But that
was twenty twenty two. Now the Democrats are actually reliant
on judicial overreach because they in their mind, they would
(11:53):
to prevent the country from dramatic altering the disastrous course
that they actually put us on. Ssequently, she did vote.
Kagan did after having said that, she did vote with
her fellow dummies on the court, including Kaitanji Brown Jackson,
the self described wise Latina in favor of letting irresponsible
(12:14):
you know, political apparatics, but on the bench by the
likes of Biden Obama paralyzed the Trump administration. But unlike
Kaitanji Brown Jackson, Elena Kagan cannot plead or claim that
she's got some sort of cognitive disability like that Dee
ii Er Associate Justice.
Speaker 3 (12:35):
Does you know the only.
Speaker 2 (12:37):
Explanation for her vote on the Trump vi. Kasa case
is that she herself is an irresponsible politician hiding behind
a black rowe. It's Kaitanji Brown Jackson who unsurprisingly sided
(13:01):
with the other two radical leftists on the court. Is
it was so bad that Amy Komy Barrett, as I
pointed out Saturday, he's had enough writing that. And this
is let me tell you why this is so astonishing
to me. The process by which these opinions are written
(13:24):
is that once you know, the oral arguments are had
and the case comes up, the justices go into their
conference room and by themselves, and they sit down and
they talk about, okay, well where are we kind of
where it's almost like a jury. They go in and
they sit down and they kind of take an initial vote.
Well what does everybody think? And the Chief Justice recognizes that, oh, well,
(13:47):
we're split five to four. Well let's talk about it
a little more. And you know, maybe it stays five
to four, or maybe it's pretty obvious it's seven to two.
Maybe it's some majority opinion, but whatever it is, he
lets everybody talk it out. And if it appears to
be that at sixty three, then normally in a case
this big, he will write the majority opinion himself and
(14:10):
assign the descent to whomever those dessenting of judges, you know,
if if it's the three women, he'll let those three
women decide, you know, okay, which one of you wants
to write the descent, And then they start circulating the opinions.
The majority will circulate a first draft, the descent will
circulate their draft opposing the majority opinion, and then it
(14:34):
kind of goes back and forth and back and forth
until finally the descent gets their final shot at the
majority opinion. Then the majority can, in response to that
final draft of the minority, write their majority opinion.
Speaker 3 (14:51):
When that occurs, in all who.
Speaker 2 (14:55):
Are going to join that majority get to join in it,
and they can join it and not say another word,
or they can join in it and write their own
concurring opinion in which they say, I concur in the majority,
but I concur in this separate opinion because I want
to emphasize a couple of things, which is exactly what
Alito and Gorsuch did. But I say all of that
(15:17):
because I want you to understand that what was left
in the opinion where Amy Komi Barrett just eviscerates Katanji
Brown Jackson was read by all of the other justices,
including the Chief Justice, and they allowed that language to
stay in She wrote that Kaitanji Brown Jackson chooses a
(15:44):
startling line of attack that is tethered neither to these sources,
the Constitution or the statue, nor frankly, to any doctrine whatsoever,
waving away any attention to the limits on judicial power.
As a mind numbingly technical query, she offers a vision
of the judicial role that would make even the most
(16:07):
ardent defender of judicial supremacy blush. Well, she has been
making the most ardent defenders of DEI blush. Barrett suggested
that Jackson either believes that universal injunctions are appropriate whenever
a defendant is part of the executive branch, a position
that goes far beyond the mainstream defense of universal injunctions,
(16:29):
or more extreme still, she wrote that the reasoning behind
any court order demands universal adherents, at least where the
executive is concerned, and then she went on to insinuate
that former President Biden's DEI appointee to Tanji Brown Jackson
was so ignorant of the relevant American legal history and president,
and may have skipped analysis of relevant readings because they
(16:51):
involved boring legal ease. In other words, you were too
lazy to read the arguments. Now, Judge Katan is on
the court to simply be a left wing black woman.
I don't think she was put there the way through
all the tedious legal arguments, and for her probably incomprehensible
(17:13):
legally is that she just simply can't understand. Her jurisprovence
her legal philosophy can be summed up in her.
Speaker 6 (17:21):
Favorite So I don't understand. Can I just understand? And
I don't understand? And so what I don't understand? I
don't understand. I don't understand your argument. I'm just trying
to understand your answer. I don't understand. I guess I
don't understand. I guess I don't understand. I don't understand,
and I'm just trying to understand. I don't understand, but
I'm just trying to understand. I'm trying to understand. So
(17:44):
I'm trying to understand. I'm sort of with Justice Kagan
trying to understand. I don't understand. I don't understand that
I'm still trying to understand. Maybe I'm just not understanding.
I don't understand. I'm trying to understand, and I don't understand.
Speaker 2 (17:56):
This goes on for four minutes, four freaking minutes. She
doesn't understand.
Speaker 3 (18:05):
She's so in.
Speaker 2 (18:05):
Over her head. This is the EI on the United
States Supreme Court. Wow, I haven't practice long twenty years,
and I think I could do a better job than
she does.
Speaker 7 (18:29):
Michael, If a Left wants to argue that district court
judges rulings should apply nationwide, that shouldn't the district court
judge ruling in California that overturn your ten round magazine
band and the district judge in Illinois that overturned your
assault weapons band shouldn't those two rulings apply nationwide?
Speaker 2 (18:49):
Well, you're conflating two types of rulings. One is a
ruling that has to do with a case and controversy
involving two parties in front of that judge. So no,
following the standard judicial jurisprudence of this country, it only
(19:14):
applies to those parties. Now, had one of those parties
asked for an injunction, a judge.
Speaker 3 (19:21):
Could have until the Court ruly on.
Speaker 2 (19:24):
Friday, could have applied that nationwide but they weren't seeking
a nationwide injunction, and probably deliberately so because they knew
that at some point that was going to get overturned anyway.
Speaker 3 (19:39):
It just shows that you.
Speaker 2 (19:43):
Have to adhere to the case and controversy philosophy of
our judicial system, and that is that judges decide issues.
Speaker 3 (19:55):
In front of them, and the only time they can.
Speaker 2 (19:58):
Apply that Now, I shouldn't say the only time there
might be a few exceptions here or there is in
a class action lawsuit. Now what pisss off the left
about that is class actions are pretty difficult to an
expensive to litigate, and you have to be able to
prove to the court that you have a very well
(20:19):
defined class where the legal issue is precisely and exactly
the same for everybody in that class. That's why the
Apple battery class is so easy, because an Apple battery
is the same no matter who bought the MacBook Pro
(20:42):
or the iPad or whatever, or or an iPhone. They
it's a standard manufactured battery came out of wherever, and
then everyone who bought that has that battery. And then
and if they have that issue, then that decision in
(21:04):
that class action applies to them. If I have the battery,
but my issue is not the issue that's in the class.
I'm not a part of that class. I can't claim that,
you know, the five dollars or whatever the stupid amount is,
that the class action is eventually going to distribute to
the entire individual members of the class. My issue might
(21:28):
be different. So class actions are difficult. But I want
to move on because I want to get to the
citizenship the citizenship clause of the fourteenth Amendment, because and
I know I'm swimming upstream on this, but I'll explain
why in just a minute. But that clause only contains
(21:51):
fourteen words, but for more than a century now we
have allowed the interpretation to be inflated way beyond its plain.
Speaker 3 (22:01):
Meaning, here's the clause.
Speaker 2 (22:04):
All persons born or naturalized in the United States comma
and subject to the jurisdiction thereof COMMA are citizens of
the United States. Now, just hearing that, you would think that, well,
(22:25):
that's pretty simple, almost patological. But constitutional interpretation is not simple,
and it's rarely, if ever patological. The critical hinges of
the phrase subject to the jurisdiction thereof, and right there,
Trump through Executive Order fourteen one sixty did what jurism
(22:48):
legislators have been too timid to attempt, and that is
to simply reclaim the original meaning of that language, subject
to the jurisdiction thereof. Again, keep this at the time
up your mind. All persons born or naturalized in the
United States, and so it's got to be both. You're
(23:08):
born or naturalized in the United States, and you're subject
to the jurisdiction thereof. You are a citizen of the
United States. Now, the critics alleged that executive order is radical,
that it's cruel, that it's Unamerican. It's none of that.
(23:30):
It's constitutional, it's rational, and it's long overdue. It does
not revoke citizenship. It doesn't do anything retroactively. It merely
resets the legal understanding of citizenship moving forward by insisting
that a child born on American soil must have at
(23:53):
least one parent with a permanent legal tithe to the
United States in order to be granted citizenship. That parent
has to be a permanent legal resident or a naturalized
citizen or an American born citizen. The other parent doesn't
(24:14):
have to be, but just one parent has to be.
So let's walk through it. But let's walk through it.
I want you to listen carefully. First, the constitutional text,
the phrase subject to the jurisdiction thereof was never meant
to cover everybody that's in the United States. The framers
(24:37):
of the fourteenth Amendment could have said this that anyone
born in the United States is a citizen. That's not
what they said. Remember, that's not what they said. All
persons born or naturalized in the United States and not
(25:00):
or and subject to the jurisdiction of are citizens of
the United States. Now, why do I emphasize that, Because
they could have said that anyone born in the US
is a citizen, but instead they inserted a jurisdictional qualifier.
(25:23):
Why would you insert a jurisdictional qualifier. Well, we have
a historical and we have a philosophical answer to that.
This amendment was introduced in eighteen sixty six by Senator
Jacob Howard. He explained that the jurisdiction clause excluded. Listen,
(25:44):
he explained that it excluded not only foreign diplomats and
their families, but also Indians not taxed. Indians not taxed
excluded diplomats makes perfect sense. And when you understand what
(26:06):
the phrase indians not tax means you'll understand that the
jurisdictional requirement makes perfect sense because Indians not taxed was
a term of art referring to the tribes that were
still under sovereign governance. So it makes total sense. Jurisdiction
(26:26):
in the constitutional sense connotes not nearly being subject to
local laws, but owing political allegiance. John Eastman, the conservative
legal scholar, has written jurisdiction implies complete, not partial allegiance.
For example, let me give you examples. You're a temporary
(26:49):
visitor to the United States. You're you're a family that
is just temporary. You're a temporary visitor. You're not a citizen.
You're an illegal entrant. You're not a citizen, and both
of those maintain legal ties to foreign sovereigns are not
(27:11):
fully subject to American jurisdiction. Now, that understanding also coheres
with the president most frequently signed to oppose it, and
that's the case of US versus Wang Kim arc. That's
the eighteen ninety eight case where the court held that
a child born to Chinese parents who were lawful permanent
(27:35):
residents was a US citizen. The court emphasized that the
parents were domiciled in the United States. Now, that point
is often conveniently overlooked by the critics who want to
pretend that the case Wan Kim arc settled the issue
for all children of non citizens, regardless of llegal status.
Speaker 3 (27:57):
It did not do that. It settled the.
Speaker 2 (28:00):
Issue for the children of lawful residents. Remember, the court
emphasized that the parents were lawfully domiciled in the United States.
So Trump's executive order far from contradictory. The Wong Kim
Art case actually aligns itself with the very facts that
(28:24):
case deem constitutionally important domicile, lawful presence, and allegiance. A
child born to tourists, temporary visa holders, or those in
the country unlawfully does not meet that threshold. That's not novel,
that's not extreme, that's not bizarre. It was held by
(28:47):
the executive branch in the eighteen eighties. In the earlies
twentieth century, the Secretary of State under President Cleveland denied
passports to US born children of foreign diplomats, and he
denied passports to temporary foreign nationals, stating that they were
not under US jurisdiction. Nobody called it radical. It wasn't radical,
(29:13):
then it shouldn't be radical now. But even more importantly,
the executive voter explicitly disclaims retroactivity. And I think that's
crucial because the opponent's either an error or on purpose
or maybe in malice, continue to circulate a false claim
that Trump intends to strip existing citizens of their status.
(29:36):
He simply is not going to do that. I'll give
you an example after the break.
Speaker 6 (29:43):
Good morning, Michael and Dragon. Aren't nationwide rulings laws, whatever
you want to call them.
Speaker 4 (29:51):
Are they supposed to be made by Congress and signed
into law by the president. Shouldn't it be legislative a
judicial they get those things done, have a good day.
Speaker 2 (30:05):
Well, that would be following the Constitution. We can't do
that kind of stuff. Let's go back to the phrase
indians not taxed. I want to explain that further, they
were not. In the context of the Fourteenth Amendment and citizenship,
they were not considered citizens as the framer, as the
(30:27):
authors of the Fourteenth Amendment said during the debates. In fact,
they did not become citizens until later. But why were
they not considered citizens at the time of the passage
of the Fourteenth Amendment, which was ratified in eighteen sixty eight.
All persons born are naturalized in the United States and
subject to the jurisdiction thereof are citizens of the United
(30:49):
States and of the state wherein they reside. Indians not
taxed appears in section two of the Amendment, which addresses
the apportionment of representatives, excluding Indians not tax from the
population count for determining congressional representation. At that time, Native
(31:09):
Americans were not considered US citizens. Why because their tribal
affiliations their treaties with the federal government put them under
tribal sovereignty. Not fully subject to the jurisdiction of the
United States, they were also subject to the jurisdiction of
their tribe. Indians not tax referred to those living on
(31:32):
the reservations or maintaining tribal ties, so they were often
exempt from certain taxes because of their unique legal status.
So have they become citizens the Indian Citizenship Act of
nineteen twenty four the Snyder Act, signed into law June two,
(31:54):
nineteen twenty four. That act declared all Native Americans born
within the territory limits of the United States were citizens.
Quote that all non citizen Indians born within the territorial
limits of the United States be and they are hereby
declared to be citizens of the United States. But prior
(32:14):
to nineteen twenty four, some Native Americans did get citizenship,
but through other means, treaties, specific acts of Congress that
granted citizenship to members of certain tribes, the DAWs Act,
the Allotments under the DAWs Act of eighteen eighty seven,
(32:36):
that was where Native Americans, including people like my grandfather's
parents accepted individual land allotments and adopted civilized lifestyles, could
become citizens. Military service, marriage to US citizens, other individual circumstances.
But even after nineteen twenty four, citizenship did not fully
(32:57):
resolve issues of tribal sovereigntyvoting rights, or equality. Some states
imposed barriers. Indians not taxed in the fourteenth Amendment excluded
many Native Americans from citizenship and apportionment accounts for congressional
representation because of their tribal status and because they did
(33:20):
where they were not fully subject to the jurisdiction of
the United States. So why would it be any different
for anybody else? And that's exactly what Senator Howard, when
he introduced the amendment in eighteen sixty six, explained. But
(33:41):
this idea that somehow Trump's going to apply this retroactively
is just wrong, and there are a lot of people
in x who do it. The guy the name of
Chaquille goes by the name of his Suleiman augment. He's
a British journalist with academic credentials in philosophy and Islamic law.
(34:03):
He keeps claiming that Trump's executive order would strip citizenship
from people like vi Vike Ramaswami, which is nonsense, although
it's dressed in a bunch of pseudo intellectual guard. Ramaswami
was born in Ohio in nineteen eighty five. The executive
order applies to future births, not past ones. Not only
(34:25):
is Trump's legal team made this clear in the litigation,
but the very notion of retroacting deep retroactive denaturalization, I
think itself is constitutionally dubious and that would of course
trigger immediate judicial scrutiny, and also it would run a
foul completely of the due process clause of the Fifth Amendment.
Speaker 3 (34:46):
That is such a basic fact.
Speaker 2 (34:49):
The fact that that eludes a man with a law
degree is less an indictment of Trump than probably is
a legal British legal education. To say that Vivek should
be sent back to Ndie. It's like Benjamin Franklin should
be deported to Boston because his parents were not yet
Pennsylvania's when he was born.
Michael, I wonder what the founders thought about birthright sitting
inship with regard to illegals. I mean, is this ever discussed.
I mean you think they just glossed over it somehow.
But I wonder type ain type. I want to go
back real quickly just to a couple of things.
Speaker 2 (00:17):
I want you to again listen to this is This
is MSNBC.
Speaker 3 (00:26):
Over the weekend.
Speaker 2 (00:27):
They're really upset about the Supreme Court ruling and Trump
the cause that's the case in which the Court ruled
sixty three that these trial court judges, these individual federal
trial court judges, cannot issue nationwide injunctions. And without going
(00:50):
over the entirety of what I discussed on Saturday, go
listen to the podcast. I'll just put it this way.
The Judicial Acts of seventeen eighty nine and the US
Constitution both say that these what are called Article three courts.
(01:11):
These are courts that are authorized by the Constitution, but
it's up to Congress to establish them. The only court
in the count that is established by the Constitution is
the US Supreme Court and such inferior courts, meaning the
appellate courts and the trial courts. As Congress may from
(01:34):
time to time establish So the fact that we have
federal district trial courts is solely because Congress decided to
create those and in our complex reltigious society, I'm not
advocating to eliminate them, but because they probably are necessary
in order to Otherwise, all of those cases would fall
(01:56):
over on You'd have to rearrange all sorts of things
in terms of jurisdictional issues, and it would kind of
fall in state courts, and you would kind of overwhelm
the US Supreme Court on major constitutional issues, which may
or may not be a bad thing. I'm just not
convinced that's something we should do. But those courts are
(02:17):
creatures of Congress. They're created by Congress.
Speaker 3 (02:22):
Only.
Speaker 2 (02:22):
The Supreme Court is created by the Constitution, the seventeen
eighty nine Judiciary Act, and over the years, Congress has
established those courts and has limited their jurisdiction to cases
and controversies, which means to the parties in front of them.
(02:49):
So if it's Dragon versus Michael in Federal District Court
in Colorado, then the remedy, whatever the ruling is, applies
to Dragon versus Michael. It can apply to you know,
Billy Bob somewhere else. Now, if you want to if
(03:11):
you want to follow a federal rule of Civil Procedure
twenty three and you want to establish a class you know,
for example, if you think that there is some you know,
the example I gave you know, the typical class action
is that you think that Apple Computers has a design
flaw in its batteries, which I actually think may have
(03:34):
been a subject of the class action.
Speaker 3 (03:35):
One time.
Speaker 2 (03:37):
You have to go through all the Rual twenty three
procedural steps and meet all the requirements to define a
particular class of people that will be you know, damaged
by and could result in conflicting rulings.
Speaker 3 (03:55):
Blah blah blah.
Speaker 2 (03:56):
All these different reasons just suffice it to say you
have to establish a class of people and that class
has to be certified by the judge. And the judge says, okay,
my ruling will only affect all of the It could
be ten million people in the class. If ten million
(04:17):
people bought Apple computers with a faulty battery design, then
the ruling in that case would apply to those ten
million people in that class. And the court said, that
seems to be the remedy you ought to be pursuing,
but then cautioned the litigants that don't just think that
you can willly nearly just establish classes. You've got to
(04:40):
follow the rules precisely in order to establish a class.
Speaker 3 (04:44):
So there is a remedy.
Speaker 2 (04:47):
It's just that it's a convoluted, difficult remedy because class
action lawsuits are not the easiest thing in the world
to establish. You have to establish all sorts of commonality
that the very exact same issue applies to everyone. It's
(05:07):
actually stricter than that. But just putting it in layman's terms,
that's the easiest way to understand it. The exact same
legal issue applies to thousands of people all across the country.
Speaker 3 (05:21):
You well define that class.
Speaker 2 (05:23):
That class has to be certified by the trial judge,
then your case can proceed.
Speaker 3 (05:30):
So there is a remedy.
Speaker 2 (05:32):
But to listen to MSNBC, you would think that the
Supreme Court just took away any oversight by the judiciary
of anything that.
Speaker 3 (05:42):
The President does.
Speaker 1 (05:44):
Do you agree?
Speaker 3 (05:46):
I completely agree with this.
Speaker 4 (05:48):
I want to go back to what Andrew was saying
about the silver linings. I don't think there are soilber
linings here, and I want to be very clear with
the viewers at home, this is a really grave situation.
This court has effective taken the restraints off of this administration.
We don't have a Congress that is stepping in to
reign in this administration.
Speaker 1 (06:08):
All we've had.
Speaker 2 (06:09):
Now, you know what she is right about that Congress
is not doing anything to restrain him in terms of
because well, because they've already established that when it comes
to immigration policy, that's within his jersey. Here, here's the statute,
you can go enforce it. And in terms of how
(06:31):
you're going to enforce it, that's kind of up. We've
given you the authority to do that. She just doesn't
like what Congress has done, and she totally ignores that
the court, the Supreme Court in Trump Vicasa, actually established
some guardrails. But she's not going to say that. Instead,
she wants to fear monger that this allows Trump to
(06:54):
just go do anything. In fact, I saw one point
where Soda my Ore believes that what's next, and of
course she threw in gun rights, Oh, this will allow
Trump just to take away people's gun rights. Well, one,
that'd probably actually make her happy, But two, does she
really believe that or she just fear mongering. She's fear mongering.
Speaker 4 (07:17):
Our lower court judges who are looking at the lawlessness
of this administration, saying, not.
Speaker 2 (07:22):
Wamen, the judges are looking at the lawlessness, aren't the
judges instead supposed to be looking at the case in
controversy before them and then determine whether or not it's lawless.
See she thinks that the judges have already predetermined the outcome. Oh,
whatever Trump's doing, it's got to be lawlessness.
Speaker 4 (07:44):
Oh my watch, imposing these nationwide injunctions to stop the damage.
Speaker 1 (07:48):
In its tracks.
Speaker 4 (07:50):
And this court has now said that limited tool, that
limited judicial remedy, goes too far and instead what individual
litigans are going to happen.
Speaker 2 (07:58):
It's interesting she called it a limit to tool because
it is a limited tool established by the Constitution. You
decide cases and controversies that are before you. You don't
you know if if again Dragon versus Mike, Federal District
Court in Colorado, that ruling effects Dragon versus Mike. It
(08:21):
doesn't affect anybody living in New Mexico, taxes, or anywhere else.
It's applied to the cases and controversies to the people
that are in that court litigating that issue.
Speaker 4 (08:32):
I do is go to every district in this country
to litigate to stop the administration in its track.
Speaker 3 (08:40):
Is that what we're supposed to do?
Speaker 2 (08:42):
Well, that's kind of interesting because let's go back and
listen to.
Speaker 3 (08:48):
Oh Sonia's no, I'm sorry, this is Elena Kagan.
Speaker 2 (08:54):
When she in twenty twenty two pointed out thatationwide injunctions
are wrong. Now, what's the difference between twenty twenty two
and twenty twenty five, Oh, Democrat versus Republican.
Speaker 5 (09:13):
That can't be right that one district court, whether it's
in you know, in the Trump years, people used to
go to the Northern District of California, and in the
Biden years they go to Texas. And it just can't
be right that one district judge can stop the nationwide
policy in its tracks and leave it stop for the
(09:33):
years that it takes to go through normal process.
Speaker 3 (09:40):
This is so important.
Speaker 2 (09:42):
She's speaking at Northwestern University and she's talking about how
it just cannot be right that one judge sitting in
you know, the Northern District of California can do something
that just stops a president's authority all across the country.
Speaker 5 (09:59):
Right, that one district court, whether it's in you know,
in the Trump years, people used to go to the
northern district of California, and in the Biden years they
go to Texas. And it just can't be right that
one district judge can stop the nationwide policy in its
tracks and leave it stopped for the years that it
(10:21):
takes to go through normal process.
Speaker 3 (10:24):
In fact, she.
Speaker 2 (10:25):
Goes right, she goes even further to say, and not
only is it not right that one judge should be
able to do that, but then it would have the
effect of stopping a nationwide policy while that one judge
goes through the entire process of maybe or maybe not
ever getting to the US Supreme Court. Are There's there's
(10:49):
so many tracks I could take from just that one SoundBite.
I'm trying to figure out my brain which one to
jump on. But think about she's saying this in twenty
She says, it's just it's not practically, just cannot be right.
We can't stop the executive branch. We shouldn't allow one
judge from stopping an executive branch decision that's a national policy.
(11:12):
We can't allow one judge to do that and then
have to wait all those years, you know, before it
goes through all the appellate you know, through all the appeals,
and then may Or may not be accepted on certain
by the US Supreme Court. She's exactly right. Yet when
it came to Trump, suddenly she flips her position and
(11:33):
she concurs with Soda Mayor in the descent and says, oh, no, no, no,
you know, this is horribly horribly, horribly dangerous. But that
was twenty twenty two. Now the Democrats are actually reliant
on judicial overreach because they in their mind, they would
(11:53):
to prevent the country from dramatic altering the disastrous course
that they actually put us on. Ssequently, she did vote.
Kagan did after having said that, she did vote with
her fellow dummies on the court, including Kaitanji Brown Jackson,
the self described wise Latina in favor of letting irresponsible
(12:14):
you know, political apparatics, but on the bench by the
likes of Biden Obama paralyzed the Trump administration. But unlike
Kaitanji Brown Jackson, Elena Kagan cannot plead or claim that
she's got some sort of cognitive disability like that Dee
ii Er Associate Justice.
Speaker 3 (12:35):
Does you know the only.
Speaker 2 (12:37):
Explanation for her vote on the Trump vi. Kasa case
is that she herself is an irresponsible politician hiding behind
a black rowe. It's Kaitanji Brown Jackson who unsurprisingly sided
(13:01):
with the other two radical leftists on the court. Is
it was so bad that Amy Komy Barrett, as I
pointed out Saturday, he's had enough writing that. And this
is let me tell you why this is so astonishing
to me. The process by which these opinions are written
(13:24):
is that once you know, the oral arguments are had
and the case comes up, the justices go into their
conference room and by themselves, and they sit down and
they talk about, okay, well where are we kind of
where it's almost like a jury. They go in and
they sit down and they kind of take an initial vote.
Well what does everybody think? And the Chief Justice recognizes that, oh, well,
(13:47):
we're split five to four. Well let's talk about it
a little more. And you know, maybe it stays five
to four, or maybe it's pretty obvious it's seven to two.
Maybe it's some majority opinion, but whatever it is, he
lets everybody talk it out. And if it appears to
be that at sixty three, then normally in a case
this big, he will write the majority opinion himself and
(14:10):
assign the descent to whomever those dessenting of judges, you know,
if if it's the three women, he'll let those three
women decide, you know, okay, which one of you wants
to write the descent, And then they start circulating the opinions.
The majority will circulate a first draft, the descent will
circulate their draft opposing the majority opinion, and then it
(14:34):
kind of goes back and forth and back and forth
until finally the descent gets their final shot at the
majority opinion. Then the majority can, in response to that
final draft of the minority, write their majority opinion.
Speaker 3 (14:51):
When that occurs, in all who.
Speaker 2 (14:55):
Are going to join that majority get to join in it,
and they can join it and not say another word,
or they can join in it and write their own
concurring opinion in which they say, I concur in the majority,
but I concur in this separate opinion because I want
to emphasize a couple of things, which is exactly what
Alito and Gorsuch did. But I say all of that
(15:17):
because I want you to understand that what was left
in the opinion where Amy Komi Barrett just eviscerates Katanji
Brown Jackson was read by all of the other justices,
including the Chief Justice, and they allowed that language to
stay in She wrote that Kaitanji Brown Jackson chooses a
(15:44):
startling line of attack that is tethered neither to these sources,
the Constitution or the statue, nor frankly, to any doctrine whatsoever,
waving away any attention to the limits on judicial power.
As a mind numbingly technical query, she offers a vision
of the judicial role that would make even the most
(16:07):
ardent defender of judicial supremacy blush. Well, she has been
making the most ardent defenders of DEI blush. Barrett suggested
that Jackson either believes that universal injunctions are appropriate whenever
a defendant is part of the executive branch, a position
that goes far beyond the mainstream defense of universal injunctions,
(16:29):
or more extreme still, she wrote that the reasoning behind
any court order demands universal adherents, at least where the
executive is concerned, and then she went on to insinuate
that former President Biden's DEI appointee to Tanji Brown Jackson
was so ignorant of the relevant American legal history and president,
and may have skipped analysis of relevant readings because they
(16:51):
involved boring legal ease. In other words, you were too
lazy to read the arguments. Now, Judge Katan is on
the court to simply be a left wing black woman.
I don't think she was put there the way through
all the tedious legal arguments, and for her probably incomprehensible
(17:13):
legally is that she just simply can't understand. Her jurisprovence
her legal philosophy can be summed up in her.
Speaker 6 (17:21):
Favorite So I don't understand. Can I just understand? And
I don't understand? And so what I don't understand? I
don't understand. I don't understand your argument. I'm just trying
to understand your answer. I don't understand. I guess I
don't understand. I guess I don't understand. I don't understand,
and I'm just trying to understand. I don't understand, but
I'm just trying to understand. I'm trying to understand. So
(17:44):
I'm trying to understand. I'm sort of with Justice Kagan
trying to understand. I don't understand. I don't understand that
I'm still trying to understand. Maybe I'm just not understanding.
I don't understand. I'm trying to understand, and I don't understand.
Speaker 2 (17:56):
This goes on for four minutes, four freaking minutes. She
doesn't understand.
Speaker 3 (18:05):
She's so in.
Speaker 2 (18:05):
Over her head. This is the EI on the United
States Supreme Court. Wow, I haven't practice long twenty years,
and I think I could do a better job than
she does.
Speaker 7 (18:29):
Michael, If a Left wants to argue that district court
judges rulings should apply nationwide, that shouldn't the district court
judge ruling in California that overturn your ten round magazine
band and the district judge in Illinois that overturned your
assault weapons band shouldn't those two rulings apply nationwide?
Speaker 2 (18:49):
Well, you're conflating two types of rulings. One is a
ruling that has to do with a case and controversy
involving two parties in front of that judge. So no,
following the standard judicial jurisprudence of this country, it only
(19:14):
applies to those parties. Now, had one of those parties
asked for an injunction, a judge.
Speaker 3 (19:21):
Could have until the Court ruly on.
Speaker 2 (19:24):
Friday, could have applied that nationwide but they weren't seeking
a nationwide injunction, and probably deliberately so because they knew
that at some point that was going to get overturned anyway.
Speaker 3 (19:39):
It just shows that you.
Speaker 2 (19:43):
Have to adhere to the case and controversy philosophy of
our judicial system, and that is that judges decide issues.
Speaker 3 (19:55):
In front of them, and the only time they can.
Speaker 2 (19:58):
Apply that Now, I shouldn't say the only time there
might be a few exceptions here or there is in
a class action lawsuit. Now what pisss off the left
about that is class actions are pretty difficult to an
expensive to litigate, and you have to be able to
prove to the court that you have a very well
(20:19):
defined class where the legal issue is precisely and exactly
the same for everybody in that class. That's why the
Apple battery class is so easy, because an Apple battery
is the same no matter who bought the MacBook Pro
(20:42):
or the iPad or whatever, or or an iPhone. They
it's a standard manufactured battery came out of wherever, and
then everyone who bought that has that battery. And then
and if they have that issue, then that decision in
(21:04):
that class action applies to them. If I have the battery,
but my issue is not the issue that's in the class.
I'm not a part of that class. I can't claim that,
you know, the five dollars or whatever the stupid amount is,
that the class action is eventually going to distribute to
the entire individual members of the class. My issue might
(21:28):
be different. So class actions are difficult. But I want
to move on because I want to get to the
citizenship the citizenship clause of the fourteenth Amendment, because and
I know I'm swimming upstream on this, but I'll explain
why in just a minute. But that clause only contains
(21:51):
fourteen words, but for more than a century now we
have allowed the interpretation to be inflated way beyond its plain.
Speaker 3 (22:01):
Meaning, here's the clause.
Speaker 2 (22:04):
All persons born or naturalized in the United States comma
and subject to the jurisdiction thereof COMMA are citizens of
the United States. Now, just hearing that, you would think that, well,
(22:25):
that's pretty simple, almost patological. But constitutional interpretation is not simple,
and it's rarely, if ever patological. The critical hinges of
the phrase subject to the jurisdiction thereof, and right there,
Trump through Executive Order fourteen one sixty did what jurism
(22:48):
legislators have been too timid to attempt, and that is
to simply reclaim the original meaning of that language, subject
to the jurisdiction thereof. Again, keep this at the time
up your mind. All persons born or naturalized in the
United States, and so it's got to be both. You're
(23:08):
born or naturalized in the United States, and you're subject
to the jurisdiction thereof. You are a citizen of the
United States. Now, the critics alleged that executive order is radical,
that it's cruel, that it's Unamerican. It's none of that.
(23:30):
It's constitutional, it's rational, and it's long overdue. It does
not revoke citizenship. It doesn't do anything retroactively. It merely
resets the legal understanding of citizenship moving forward by insisting
that a child born on American soil must have at
(23:53):
least one parent with a permanent legal tithe to the
United States in order to be granted citizenship. That parent
has to be a permanent legal resident or a naturalized
citizen or an American born citizen. The other parent doesn't
(24:14):
have to be, but just one parent has to be.
So let's walk through it. But let's walk through it.
I want you to listen carefully. First, the constitutional text,
the phrase subject to the jurisdiction thereof was never meant
to cover everybody that's in the United States. The framers
(24:37):
of the fourteenth Amendment could have said this that anyone
born in the United States is a citizen. That's not
what they said. Remember, that's not what they said. All
persons born or naturalized in the United States and not
(25:00):
or and subject to the jurisdiction of are citizens of
the United States. Now, why do I emphasize that, Because
they could have said that anyone born in the US
is a citizen, but instead they inserted a jurisdictional qualifier.
(25:23):
Why would you insert a jurisdictional qualifier. Well, we have
a historical and we have a philosophical answer to that.
This amendment was introduced in eighteen sixty six by Senator
Jacob Howard. He explained that the jurisdiction clause excluded. Listen,
(25:44):
he explained that it excluded not only foreign diplomats and
their families, but also Indians not taxed. Indians not taxed
excluded diplomats makes perfect sense. And when you understand what
(26:06):
the phrase indians not tax means you'll understand that the
jurisdictional requirement makes perfect sense because Indians not taxed was
a term of art referring to the tribes that were
still under sovereign governance. So it makes total sense. Jurisdiction
(26:26):
in the constitutional sense connotes not nearly being subject to
local laws, but owing political allegiance. John Eastman, the conservative
legal scholar, has written jurisdiction implies complete, not partial allegiance.
For example, let me give you examples. You're a temporary
(26:49):
visitor to the United States. You're you're a family that
is just temporary. You're a temporary visitor. You're not a citizen.
You're an illegal entrant. You're not a citizen, and both
of those maintain legal ties to foreign sovereigns are not
(27:11):
fully subject to American jurisdiction. Now, that understanding also coheres
with the president most frequently signed to oppose it, and
that's the case of US versus Wang Kim arc. That's
the eighteen ninety eight case where the court held that
a child born to Chinese parents who were lawful permanent
(27:35):
residents was a US citizen. The court emphasized that the
parents were domiciled in the United States. Now, that point
is often conveniently overlooked by the critics who want to
pretend that the case Wan Kim arc settled the issue
for all children of non citizens, regardless of llegal status.
Speaker 3 (27:57):
It did not do that. It settled the.
Speaker 2 (28:00):
Issue for the children of lawful residents. Remember, the court
emphasized that the parents were lawfully domiciled in the United States.
So Trump's executive order far from contradictory. The Wong Kim
Art case actually aligns itself with the very facts that
(28:24):
case deem constitutionally important domicile, lawful presence, and allegiance. A
child born to tourists, temporary visa holders, or those in
the country unlawfully does not meet that threshold. That's not novel,
that's not extreme, that's not bizarre. It was held by
(28:47):
the executive branch in the eighteen eighties. In the earlies
twentieth century, the Secretary of State under President Cleveland denied
passports to US born children of foreign diplomats, and he
denied passports to temporary foreign nationals, stating that they were
not under US jurisdiction. Nobody called it radical. It wasn't radical,
(29:13):
then it shouldn't be radical now. But even more importantly,
the executive voter explicitly disclaims retroactivity. And I think that's
crucial because the opponent's either an error or on purpose
or maybe in malice, continue to circulate a false claim
that Trump intends to strip existing citizens of their status.
(29:36):
He simply is not going to do that. I'll give
you an example after the break.
Speaker 6 (29:43):
Good morning, Michael and Dragon. Aren't nationwide rulings laws, whatever
you want to call them.
Speaker 4 (29:51):
Are they supposed to be made by Congress and signed
into law by the president. Shouldn't it be legislative a
judicial they get those things done, have a good day.
Speaker 2 (30:05):
Well, that would be following the Constitution. We can't do
that kind of stuff. Let's go back to the phrase
indians not taxed. I want to explain that further, they
were not. In the context of the Fourteenth Amendment and citizenship,
they were not considered citizens as the framer, as the
(30:27):
authors of the Fourteenth Amendment said during the debates. In fact,
they did not become citizens until later. But why were
they not considered citizens at the time of the passage
of the Fourteenth Amendment, which was ratified in eighteen sixty eight.
All persons born are naturalized in the United States and
subject to the jurisdiction thereof are citizens of the United
(30:49):
States and of the state wherein they reside. Indians not
taxed appears in section two of the Amendment, which addresses
the apportionment of representatives, excluding Indians not tax from the
population count for determining congressional representation. At that time, Native
(31:09):
Americans were not considered US citizens. Why because their tribal
affiliations their treaties with the federal government put them under
tribal sovereignty. Not fully subject to the jurisdiction of the
United States, they were also subject to the jurisdiction of
their tribe. Indians not tax referred to those living on
(31:32):
the reservations or maintaining tribal ties, so they were often
exempt from certain taxes because of their unique legal status.
So have they become citizens the Indian Citizenship Act of
nineteen twenty four the Snyder Act, signed into law June two,
(31:54):
nineteen twenty four. That act declared all Native Americans born
within the territory limits of the United States were citizens.
Quote that all non citizen Indians born within the territorial
limits of the United States be and they are hereby
declared to be citizens of the United States. But prior
(32:14):
to nineteen twenty four, some Native Americans did get citizenship,
but through other means, treaties, specific acts of Congress that
granted citizenship to members of certain tribes, the DAWs Act,
the Allotments under the DAWs Act of eighteen eighty seven,
(32:36):
that was where Native Americans, including people like my grandfather's
parents accepted individual land allotments and adopted civilized lifestyles, could
become citizens. Military service, marriage to US citizens, other individual circumstances.
But even after nineteen twenty four, citizenship did not fully
(32:57):
resolve issues of tribal sovereigntyvoting rights, or equality. Some states
imposed barriers. Indians not taxed in the fourteenth Amendment excluded
many Native Americans from citizenship and apportionment accounts for congressional
representation because of their tribal status and because they did
(33:20):
where they were not fully subject to the jurisdiction of
the United States. So why would it be any different
for anybody else? And that's exactly what Senator Howard, when
he introduced the amendment in eighteen sixty six, explained. But
(33:41):
this idea that somehow Trump's going to apply this retroactively
is just wrong, and there are a lot of people
in x who do it. The guy the name of
Chaquille goes by the name of his Suleiman augment. He's
a British journalist with academic credentials in philosophy and Islamic law.
(34:03):
He keeps claiming that Trump's executive order would strip citizenship
from people like vi Vike Ramaswami, which is nonsense, although
it's dressed in a bunch of pseudo intellectual guard. Ramaswami
was born in Ohio in nineteen eighty five. The executive
order applies to future births, not past ones. Not only
(34:25):
is Trump's legal team made this clear in the litigation,
but the very notion of retroacting deep retroactive denaturalization, I
think itself is constitutionally dubious and that would of course
trigger immediate judicial scrutiny, and also it would run a
foul completely of the due process clause of the Fifth Amendment.
Speaker 3 (34:46):
That is such a basic fact.
Speaker 2 (34:49):
The fact that that eludes a man with a law
degree is less an indictment of Trump than probably is
a legal British legal education. To say that Vivek should
be sent back to Ndie. It's like Benjamin Franklin should
be deported to Boston because his parents were not yet
Pennsylvania's when he was born.
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