Episode Transcript
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Speaker 1 (00:00):
Let me do this.
Speaker 2 (00:00):
It's the same time because this wasn't going to be
our topic. But my next guest, Josh Hammer, is, among
other things, an attorney, so it'd be great to bring
him in on this, even though it's not the primary
thing we're.
Speaker 1 (00:12):
Probably gonna talk about today.
Speaker 2 (00:13):
So, Josh, in addition to being senior editor at Large
at Newsweek, you also hosts his own podcast, The Josh
Hammer Show, and he's the author of a book.
Speaker 1 (00:21):
Is Reel and Civilization.
Speaker 2 (00:23):
And I always enjoy having Josh on the show, and
we actually we agree most of the time on stuff.
Speaker 1 (00:30):
And I saw a.
Speaker 2 (00:31):
Tweet of his the other day that I didn't really
well that I half agreed with, and I thought it
would make for a fun conversation. And we'll get to
that in a second. So, first of all, Josh, welcome back.
It's good to see you here. Ros's great to see
you as well.
Speaker 1 (00:46):
My friend.
Speaker 3 (00:46):
Always appreciate your very informed takes, whether we agree or disagree.
Speaker 2 (00:50):
So let me just share this with you and then
you can comment, as somebody who's smarter on the law
than I am. So the Supreme Court a couple of
weeks ago so basically said no, nationwide injunctions from district
court federal judges more or less. So this today, says
a federal judge named US District Judge Joseph Laplant, has
(01:13):
just issued a new nationwide injunction against President Trump's executive
order seeking to end birthright citizenship. And it looks like
the way he's trying to do it is he has
turned it into a class action, and he has said
that he will.
Speaker 1 (01:26):
He has granted a.
Speaker 2 (01:27):
Request from immigration rights attorneys to certify a nationwide class
that quote will be comprised only of those deprived of citizenship.
Speaker 1 (01:38):
That's quoting from CNN.
Speaker 2 (01:40):
So, mister attorney Josh Hammer, what are your immediate thoughts
on this that you might not even have seen.
Speaker 1 (01:48):
Before I just shared it with you.
Speaker 3 (01:50):
So this is breaking just over the past twenty thirty minutes,
give or shake. So I haven't had a whole lot
of time to read and digest, but I can kind
of give you my very quick initial assessment. So, the
the issue of turning injunctive relief into Rule twenty three
class action was pressionally foreseen by Justice sam Alito, who
had his occurring opinion in the nation wide and judge case.
(02:12):
I don't want to call it the birth right scision
case because they can actually talk about berthose inati. But
Alito spends his entire concurrence here talking about how we
actually are also going to have to crack down on
Rule twenty three.
Speaker 1 (02:23):
Class action.
Speaker 3 (02:24):
Now, this has been an issue how to define a
legitimate class for class action purposes, essentially since the federal
rules of silk procedure were first implemented roughly ninety years
ago or so, back during the New Dealing, back when
I was in law school studying silk procedure. These were
debates between the conservatives and the liberals in the court.
These were Scalia Ginsburg, you know, majority versus to scent
the opinion. So there's a long standing difference of opinion
(02:47):
between shall we call it Article three hawks, people who
are a little bit more reluctant to give massive access
to federal digital reliefs. Those are typically the more conservative
judges versus the standing and Article three. The liberals were
typically more willing to just kind of, you know, free
wheel and give more relief.
Speaker 1 (03:04):
So I'm not surprised that this is happening.
Speaker 3 (03:06):
I will also say that the majority opinion from Amy
Cony Barrett in the Nasue junctioning case. While it was
it was very good. It was very good. I would
gret it probably a B plus win a minus. It
was not an A plus because it failed to do
what I think I many others wanted to do, which
was just very cleanly and unapologetically say the judicial power
(03:28):
of Article three means this, it does not mean that.
And there was some literally legalies there in the inmy
coony Barret majority pinion, essentially saying that Nation one junctions
are presumptively contrary to Article three unless they are truly
absolutely necessary given the nature of the litigation, the belief
there's basically some runway there.
Speaker 1 (03:48):
Ross is what I'm saying. There was some runway for liberal.
Speaker 3 (03:51):
NGO's ACLU type outfie to try to take it from there.
So I'm not shocked that we're here. I am a
little surprised at how soon it's got on in back though.
All right, so two quick things.
Speaker 2 (04:00):
So First, when Andy McCarthy, who you probably know I'm
a good friend of mine and of the show, wrote
about the Supreme Court recent opinion, what he said was, yeah,
now they're going to turn to class action lawsuits and
then he said, but normally, at least it's a they're
a little bit more in terms of guidelines and eyes.
(04:22):
You have to dot and tease, you have to cross
to certify a class versus just this willy nilly stuff
that had been going on before. But it sounds like
you think that doesn't offer as much protection as maybe
Andy had been hoping.
Speaker 1 (04:38):
Well, we'll we'll see how it plays out.
Speaker 3 (04:40):
Again, the class action part of the Nachwind ju just
opinion was really just sam Alita's been curring opinion. Barrett
doesn't really spend much of any time on any HR opinion.
A lot of these plaintiff, especially when they're suing Trump
administration executive orders and policy there they're not actually filing classes,
they're not actually organizing classes the traditional rule twenty three
class actor. They're basically just putting out an NGO or
(05:02):
a left wing plaintiff and then essentially banking on a
judge to declare a name you want junction, which is
probably not an unreasonable bet. Frankly, I mean, it'll be
based on the president of what we see thus far,
so we'll see how it plays out. But look, the
class action debate again has been a debate in federal
courts for a very very long time. I feel like
it's not going to go anywhere anytime soon. I am
a little surprised, though, with just the pure hutzba ross frankly,
(05:25):
the hutzba of this opinion coming out what like a
week and a half, two weeks the most after the
last opinion. I mean, that's a bold move from a
fairly robe that I would presume lower court judge.
Speaker 2 (05:34):
All right, one last thing on this, I wasn't planning
on talking with you about it, but clearly you I mean,
I knew you would know a lot, but it seems
like you know even more than I thought you would
about this particular area of law. So I do have
one more question. All of these people who work in
the federal government take an oath to protect and defend
the Constitution, and you could probably count on one hand.
Speaker 1 (05:57):
That might be a little cynical.
Speaker 2 (05:58):
You could probably count on two hands out of the
five hundred and thirty five members at the House and Senate,
how many of them really put the Constitution first.
Speaker 1 (06:06):
That might maybe one hand.
Speaker 2 (06:08):
So, and federal judges are supposed to do that too.
And one of the things I wonder. I'm not saying
the Supreme Court was wrong in their rolling, but what
I wonder about is whether four years from now, if
a Democrat is president, that whether Republicans are really going
to rule this. For example, I'm just going to make
(06:28):
up a hypothetical. Let's say President Kamala Harris. I don't
think it's going to be Harris. I do think a
Democrat could win. I don't think it'll be her. President whoever,
does an executive order that bars the federal government from
answering any requests from states for background checks for gun purchases,
(06:51):
effectively making it.
Speaker 1 (06:52):
Impossible to buy a gun.
Speaker 2 (06:54):
And then let's say Josh Hammer wants to buy a gun,
and Ross Kaminski wants to buy a gun, and Josh
is a smart lawyer, and he does the paperwork and
he's pro se, and he goes and files in court
in fifteen minutes, and he's at the front of the line.
And meanwhile, more on, Ross Kominski's a little slow. And
by the time Ross Kaminski gets his case to court,
(07:15):
there are seven thousand people in front of him in
line at the federal court.
Speaker 1 (07:18):
And then the federal judges hearing.
Speaker 2 (07:20):
Josh's case, even though the facts of your case in
mind are identical. Here's Josh's case and said Josh can
buy a gun, but Ross caad even though the fact
the facts are the same, because the Supreme Court is said,
I can't do a nationwide injunction, and Josh is in
you know, whatever court circuit you're in, and I'm in
the tenth circuit, and so only Josh can.
Speaker 1 (07:39):
Buy a gun. So this is a great question.
Speaker 3 (07:42):
So my response is basically twofold, which is, I do
not begrudge conservative originalist constitutionalist judges for taking advantage of
the tools for relief for plaintiffs at their disposal while
all the options are on the table. So to give
kind of a very concrete example, back when Barack Obama
was prisent, so I was in Lolsch with twenty thirteen
to twenty sixteen, so towards the sect the tail end
(08:03):
of the Obama presidency, and I remember back then a
lot of Obamba executive ors were oftentimes challenged by the
Attorney General and Slicter General of Texas. The Texas s
Lilster General's office ends up being one of the most
effective tools.
Speaker 1 (08:14):
It's still to.
Speaker 3 (08:14):
Say, actually against democratic presidents engaging in various forms of
executive overreach, and the Texas Lister General's Office typically litigates
in very specific divisions of North Texas. I know as well,
because I clerked for a federal appeals judge in the
Dallas Fort Worth area, Judge James Hoe, amazing judge. So
back then it was oftentimes Judge Read O'Connor. These days,
(08:35):
and sometimes it's Judge Read O'Connor, sometimes Judge Matthew Kasmherck.
They're both amazing judges. I don't begrudge judges like that
from issuing a nationwide in junction at least prior to
like a week and a half weeks ago, given that
this was the reality that we are living in. But
I would prefer to live in a principled reality where
these tools are simply not on the table. Ultimately, in
(08:55):
a situation the like switch or hypothetical like you've described there,
and you know, I'm I'm a SEC Amendment guy, Ross,
I want my gun, and I'm sure that you want
your guns as well. There the best way to fast
track that would be to try to seek some sort
of emergency relief at the United States Supreme Court, because
once the Supreme Court's rules, the lower courts are essentially
just going to immediately follow and the order will simply
(09:17):
not be enforced really in the first place. There, So
that would be the proper mechanism to try to see
them seek emergency relief and on what the lawyers call
the rocket docket for emergency appeals at the Supreme Court there.
But I hear you, unfortunately, I'm sure that you can
appreciate this kind of the The inherently slightly slower working
of the gears of government is very much a feature,
not a bug, of our system, and so too, I
(09:38):
think it would be here as well.
Speaker 1 (09:39):
And I'll add one other thing.
Speaker 2 (09:42):
Part of the reason some of this stuff happens is
that Congress doesn't do its job reigning in the president.
And also impeachment has gotten so cheapened that you know,
supporting you know, some if if a president were to
issue an executive order that was intentionally designed to prevent
everybody from being able to buy a gun, the impeachment
(10:03):
paperwork should be filed within ninety minutes, but it won't
be and we don't really have.
Speaker 1 (10:09):
The checks and balances.
Speaker 2 (10:11):
And despite the implications of my question, which is more
reflection of reality than how I would like it to be.
We are all far more dependent on the judicial branch
branch than we should be because the other branches don't
uphold their oaths to the Constitution. We're talking with Josh Hammer.
He is senior editor at Large at Newsweek. He hosts
the Josh Hammer Show podcast. Josh, give me before we
(10:34):
get to the other topic, give me forty seven seconds
on the book.
Speaker 1 (10:38):
That I see over your right shoulder.
Speaker 2 (10:41):
Yeah.
Speaker 3 (10:41):
So the book ross is Israel and Civilization, The Fate
of the Jewish Nation, the Destiny of the West. It
came out in March, but it's truly timelier than ever.
And in fact, I had someone in Congress message with
me a couple of weeks ago and said, Josh did
depression into the orchestrate the events of the last month
just to sell more book copies there. So you know,
the book really is, I think, timelier than ever. There's
a whole chapter making the America first nationalist realist case
(11:02):
for US israelations, which is a very, very very hot
topic on the political right these days.
Speaker 1 (11:07):
So it really is timely.
Speaker 3 (11:08):
Israel and Civilizations a lot of Bible, a lot of scripture,
a lot of foreign policy.
Speaker 1 (11:12):
We touch a lot of topics. Rospit. It's available everywhere
books are sold. Israel and civilization.
Speaker 2 (11:16):
All right, so let's do like five minutes on the
topic that I actually asked here to be about. But
I thoroughly enjoyed that conversation. I'm glad we did that.
You posted on x formerly Twitter, and I'm gonna paraphrase,
and you can tell me if I've misquoted you, but
that if Trump goes down the road of amnesty, we're
(11:37):
talking about illegal immigration now, that will be a betrayal
of what people were voting for when they voted him
into office.
Speaker 1 (11:45):
Is that correct enough? That's definitely correct enough. Yes, Okay,
So describe what's.
Speaker 2 (11:52):
Going on and do this briefly here, not in the
lawyer mode, but in the podcaster mode or something. What
you are, what you were contemplating as falling into the
category of amnesty.
Speaker 3 (12:04):
So to me, I would define ANEZ as either not
choosing to not enforce immigration law against people who are
here illegally wilfully, kind of what Barack Obama did to DAPPA,
DACA programs like that, or to actually go ahead and
affirmatively codify some sort of legal status that could be
sure of citizenship. But to either deliberately and wilfully announce
(12:25):
that you are non forcing the law against people here
are illegally or to affirmatively codify legal status.
Speaker 1 (12:30):
Okay, So let's start with.
Speaker 2 (12:31):
The second then, because I think what you were reacting to,
and I didn't see if there was context in that thread.
But President Trump said recently that he was looking at
possibly creating some kind of special visa that would allow
people to stay here and work.
Speaker 1 (12:45):
I did not see it.
Speaker 2 (12:46):
And by the way, I would not support something that
put illegal immigrants, say farm workers, he was talking about
farm workers, hotel workers.
Speaker 1 (12:52):
I wouldn't support.
Speaker 2 (12:53):
Them being on any kind of past the citizenship. I
would support something that lets them stay and work. Saying
that either you wouldn't or at least Trump's voters probably wouldn't.
Speaker 1 (13:05):
Well both, I would not support that.
Speaker 3 (13:07):
To be clear, I can't speak for every Trump voter, obviously,
but I definitely think. I definitely think that the median
Donald Trump voter supports essentially the Tom Holman position of
systematically deporting as many illegal aliens as possible, subject to
budgetary constraints and just general realities of personnel and the
amount of ICE agent and so forth. So it naturally
(13:27):
follows that you, of course would start with criminals. But
I think the key thing ross is that this policy
that Donald Trump ran on, it's not necessarily just a
deport criminal aliens policy. It's to deport as many illegal
aliens enforce immigration law, which again the law requires that
they be deported. That's black letter immigration law as much
as possible, given the amount of resources that ICE and
(13:47):
DHS has from Congress and so forth. There and the
polling on this, the thing is actually quite instructive. If
if you look at the the aggregate of polls, roughly
sixty percent, sometimes up to two third, and some polls
of Americans now tell polsters they support deporting all alll
like literally all illegal aliens in this country.
Speaker 1 (14:04):
It's a very high percentage.
Speaker 3 (14:06):
It's one of the biggest shifts in American public sentiment
over the past decade or so.
Speaker 2 (14:09):
It has been absolutely remarkable to see how Joe Biden
is personally responsible for that polling by opening the border
so wide that a lot of people, I mean me,
I'm not an immigration hawk, so I'm very much against
illegal immigration, and I'm very much in favor of increasing
legal immigration. We need more, especially skilled immigrants, and we
(14:32):
need more people to prop up our Ponzi scheme of
a government. But Joe Biden did what he did and
turned a lot of people like me more in favor
of more aggressive deportation.
Speaker 1 (14:42):
That said, Josh, I bet you that.
Speaker 2 (14:45):
Wants not for all, not for the Trump based, but
I bet you the majority or at least plurality of
the American public if asked at this point, do you
want the federal government to do workplace enforcement on farms, hotels,
and home depot parking lots to round up people who
are working and not committing crimes. I bet you most
(15:07):
Americans would say no to that. And I think that
this will be a negative for Republicans in coming elections.
Speaker 1 (15:15):
I also think that part of the problem.
Speaker 2 (15:17):
And tell me if you agree here Stephen Miller, it
sounds like, by the way, I can't stand him, but
Stephen Miller seems.
Speaker 1 (15:25):
Like he has put a quota on this.
Speaker 2 (15:26):
We want three thousand a day or something like that,
and it's quite hard to go find lots of criminals
they're hiding, so if you're just going for sheer numbers,
you're gonna go to the farm, you're gonna go to
the hotel, you're gonna go to the home depot, and
because you need to meet this moron's quota. And so
I think that Stephen Miller is going to actually hurt
(15:48):
Republicans in the next election with this.
Speaker 3 (15:51):
Well, I actually love Stevean Miller, but that's a very
you know, that's a very reasonable person for us to
disagree on. So no, no harm, no foul there. Look,
I mean, Ross, I think that immigration is a politically
winning issue for Trump, but if anything, I think it's
arguably his number one winning issue right now. The last
I checked the Real Clear Politics data as far as
approval disapproval on immigration, Trump is up double digits in
(16:11):
a lot of polls based on his approval rating. So
whatever he's doing right now, and the rhetoric is tough.
We've all seen these Christy nome DHS ads on TV.
If you're here illegally, get out before we find you.
At at least here in Florida where I live. Those
ads are all over TV. And the people see this,
they see the iations, they see Tom Holman talking the
big game and apparently they love it there. And I
think it's worth noting ross looking up at the legal
(16:34):
immigration issue that as Republican Party has moved in this
Trumpian direction of being very tough in both word indeed
enforcing immigration laws and deporting legal aliens, the Hispanic vote
has moved historically tooth Republican Party. It's actually the exact
opposite of the twenty twelve Republican National Committee so called
autopsy after Mitt Romney lost there. So it's very counterintuitive.
(16:55):
A lot of kind of DC belwet consulting case street
types maybe don't necessarily understand why that is happens to
be what's actually happening out there in real time, right.
Speaker 2 (17:02):
And I should say I'm kind of quibbling around the
margin because in the big picture, I'm in favor of
the overall kind of goal of the Trump administration on
and I want illegal immigration stopped. There's again, it gets
a little subtle when you start talking about should we
deport people who have been here for twenty years and
(17:22):
are working and whatever, And the Fed just put out
a report about how much that might hurt GDP. And
I do care a little bit about a little bit
about that. So I am kind of quibbling on the margin,
and I'm not, of course, it's it's I'm not at
all surprised that it's one of his best issues.
Speaker 1 (17:36):
And I'll say one other thing. Can I toss out
a possibility to you?
Speaker 2 (17:39):
Actually?
Speaker 1 (17:40):
Yeah, sure, go ahead?
Speaker 3 (17:40):
So one way, I think, because I hear what you're saying,
right with these twenty years here home, depot work or whatever. Fine,
I'm not gonna say that I would be willing to
grant them legal status.
Speaker 1 (17:51):
That's not my stance.
Speaker 3 (17:52):
But I wonder if something like the Taiwan Policy of
Strategic Ambiguity or you know, however the form policy people
phrase that, yeah, you know, basically deliberately not saying what
your actual stand is. I wonder if that is actually
a somewhat reasonable middle ground position that I'm not terribly
I'm not.
Speaker 1 (18:09):
It could be right, It could.
Speaker 2 (18:10):
Be, as long as they don't suddenly start showing up
at workplaces and taking away the people. I'll mention one
other thing, and then I'm out of time. I'm not surprised,
and you're probably not surprised either actually about the Hispanic
vote moving towards Trump. Because when you're talking about the
Hispanic vote, you were talking about people who are allowed
to vote, which means you're talking about citizens, which means
(18:33):
you're talking about people, almost all of whom did it
the right way. Very few illegal aliens become citizens, not impossible,
but it doesn't happen a lot. And so the people
who are here and voting did it the right way.
And there's no reason for a Hispanic immigrant who did
everything the right way to suddenly, you know, carry the
(18:54):
water for an illegal alien trying to cut in line
and doing it the wrong way just because they also
happen to be a Spanish.
Speaker 1 (19:01):
No, that's totally right.
Speaker 3 (19:01):
And you know, more generally, ross just kind of zooming
out a little bit here. Hispanic citizens like any other
US citizen. I mean, they see the crazy direction of
the current woke Democratic Party, so they're probably trending left
for the same red or trending right for the same
reason that anyone else basically is trending right these days.
Speaker 2 (19:15):
Josh Hammer is the author of Israel and Civilization. Go
buy It wherever you buy your books. You can check
out his writing it Newsweek as well, and at the
Josh Hammer Show podcast. You can listen to it more.
Thanks for being here. There was a fabulous conversation. You
bet brother, all right,
Let me do this.
Speaker 2 (00:00):
It's the same time because this wasn't going to be
our topic. But my next guest, Josh Hammer, is, among
other things, an attorney, so it'd be great to bring
him in on this, even though it's not the primary
thing we're.
Speaker 1 (00:12):
Probably gonna talk about today.
Speaker 2 (00:13):
So, Josh, in addition to being senior editor at Large
at Newsweek, you also hosts his own podcast, The Josh
Hammer Show, and he's the author of a book.
Speaker 1 (00:21):
Is Reel and Civilization.
Speaker 2 (00:23):
And I always enjoy having Josh on the show, and
we actually we agree most of the time on stuff.
Speaker 1 (00:30):
And I saw a.
Speaker 2 (00:31):
Tweet of his the other day that I didn't really
well that I half agreed with, and I thought it
would make for a fun conversation. And we'll get to
that in a second. So, first of all, Josh, welcome back.
It's good to see you here. Ros's great to see
you as well.
Speaker 1 (00:46):
My friend.
Speaker 3 (00:46):
Always appreciate your very informed takes, whether we agree or disagree.
Speaker 2 (00:50):
So let me just share this with you and then
you can comment, as somebody who's smarter on the law
than I am. So the Supreme Court a couple of
weeks ago so basically said no, nationwide injunctions from district
court federal judges more or less. So this today, says
a federal judge named US District Judge Joseph Laplant, has
(01:13):
just issued a new nationwide injunction against President Trump's executive
order seeking to end birthright citizenship. And it looks like
the way he's trying to do it is he has
turned it into a class action, and he has said
that he will.
Speaker 1 (01:26):
He has granted a.
Speaker 2 (01:27):
Request from immigration rights attorneys to certify a nationwide class
that quote will be comprised only of those deprived of citizenship.
Speaker 1 (01:38):
That's quoting from CNN.
Speaker 2 (01:40):
So, mister attorney Josh Hammer, what are your immediate thoughts
on this that you might not even have seen.
Speaker 1 (01:48):
Before I just shared it with you.
Speaker 3 (01:50):
So this is breaking just over the past twenty thirty minutes,
give or shake. So I haven't had a whole lot
of time to read and digest, but I can kind
of give you my very quick initial assessment. So, the
the issue of turning injunctive relief into Rule twenty three
class action was pressionally foreseen by Justice sam Alito, who
had his occurring opinion in the nation wide and judge case.
(02:12):
I don't want to call it the birth right scision
case because they can actually talk about berthose inati. But
Alito spends his entire concurrence here talking about how we
actually are also going to have to crack down on
Rule twenty three.
Speaker 1 (02:23):
Class action.
Speaker 3 (02:24):
Now, this has been an issue how to define a
legitimate class for class action purposes, essentially since the federal
rules of silk procedure were first implemented roughly ninety years
ago or so, back during the New Dealing, back when
I was in law school studying silk procedure. These were
debates between the conservatives and the liberals in the court.
These were Scalia Ginsburg, you know, majority versus to scent
the opinion. So there's a long standing difference of opinion
(02:47):
between shall we call it Article three hawks, people who
are a little bit more reluctant to give massive access
to federal digital reliefs. Those are typically the more conservative
judges versus the standing and Article three. The liberals were
typically more willing to just kind of, you know, free
wheel and give more relief.
Speaker 1 (03:04):
So I'm not surprised that this is happening.
Speaker 3 (03:06):
I will also say that the majority opinion from Amy
Cony Barrett in the Nasue junctioning case. While it was
it was very good. It was very good. I would
gret it probably a B plus win a minus. It
was not an A plus because it failed to do
what I think I many others wanted to do, which
was just very cleanly and unapologetically say the judicial power
(03:28):
of Article three means this, it does not mean that.
And there was some literally legalies there in the inmy
coony Barret majority pinion, essentially saying that Nation one junctions
are presumptively contrary to Article three unless they are truly
absolutely necessary given the nature of the litigation, the belief
there's basically some runway there.
Speaker 1 (03:48):
Ross is what I'm saying. There was some runway for liberal.
Speaker 3 (03:51):
NGO's ACLU type outfie to try to take it from there.
So I'm not shocked that we're here. I am a
little surprised at how soon it's got on in back though.
All right, so two quick things.
Speaker 2 (04:00):
So First, when Andy McCarthy, who you probably know I'm
a good friend of mine and of the show, wrote
about the Supreme Court recent opinion, what he said was, yeah,
now they're going to turn to class action lawsuits and
then he said, but normally, at least it's a they're
a little bit more in terms of guidelines and eyes.
(04:22):
You have to dot and tease, you have to cross
to certify a class versus just this willy nilly stuff
that had been going on before. But it sounds like
you think that doesn't offer as much protection as maybe
Andy had been hoping.
Speaker 1 (04:38):
Well, we'll we'll see how it plays out.
Speaker 3 (04:40):
Again, the class action part of the Nachwind ju just
opinion was really just sam Alita's been curring opinion. Barrett
doesn't really spend much of any time on any HR opinion.
A lot of these plaintiff, especially when they're suing Trump
administration executive orders and policy there they're not actually filing classes,
they're not actually organizing classes the traditional rule twenty three
class actor. They're basically just putting out an NGO or
(05:02):
a left wing plaintiff and then essentially banking on a
judge to declare a name you want junction, which is
probably not an unreasonable bet. Frankly, I mean, it'll be
based on the president of what we see thus far,
so we'll see how it plays out. But look, the
class action debate again has been a debate in federal
courts for a very very long time. I feel like
it's not going to go anywhere anytime soon. I am
a little surprised, though, with just the pure hutzba ross frankly,
(05:25):
the hutzba of this opinion coming out what like a
week and a half, two weeks the most after the
last opinion. I mean, that's a bold move from a
fairly robe that I would presume lower court judge.
Speaker 2 (05:34):
All right, one last thing on this, I wasn't planning
on talking with you about it, but clearly you I mean,
I knew you would know a lot, but it seems
like you know even more than I thought you would
about this particular area of law. So I do have
one more question. All of these people who work in
the federal government take an oath to protect and defend
the Constitution, and you could probably count on one hand.
Speaker 1 (05:57):
That might be a little cynical.
Speaker 2 (05:58):
You could probably count on two hands out of the
five hundred and thirty five members at the House and Senate,
how many of them really put the Constitution first.
Speaker 1 (06:06):
That might maybe one hand.
Speaker 2 (06:08):
So, and federal judges are supposed to do that too.
And one of the things I wonder. I'm not saying
the Supreme Court was wrong in their rolling, but what
I wonder about is whether four years from now, if
a Democrat is president, that whether Republicans are really going
to rule this. For example, I'm just going to make
(06:28):
up a hypothetical. Let's say President Kamala Harris. I don't
think it's going to be Harris. I do think a
Democrat could win. I don't think it'll be her. President whoever,
does an executive order that bars the federal government from
answering any requests from states for background checks for gun purchases,
(06:51):
effectively making it.
Speaker 1 (06:52):
Impossible to buy a gun.
Speaker 2 (06:54):
And then let's say Josh Hammer wants to buy a gun,
and Ross Kaminski wants to buy a gun, and Josh
is a smart lawyer, and he does the paperwork and
he's pro se, and he goes and files in court
in fifteen minutes, and he's at the front of the line.
And meanwhile, more on, Ross Kominski's a little slow. And
by the time Ross Kaminski gets his case to court,
(07:15):
there are seven thousand people in front of him in
line at the federal court.
Speaker 1 (07:18):
And then the federal judges hearing.
Speaker 2 (07:20):
Josh's case, even though the facts of your case in
mind are identical. Here's Josh's case and said Josh can
buy a gun, but Ross caad even though the fact
the facts are the same, because the Supreme Court is said,
I can't do a nationwide injunction, and Josh is in
you know, whatever court circuit you're in, and I'm in
the tenth circuit, and so only Josh can.
Speaker 1 (07:39):
Buy a gun. So this is a great question.
Speaker 3 (07:42):
So my response is basically twofold, which is, I do
not begrudge conservative originalist constitutionalist judges for taking advantage of
the tools for relief for plaintiffs at their disposal while
all the options are on the table. So to give
kind of a very concrete example, back when Barack Obama
was prisent, so I was in Lolsch with twenty thirteen
to twenty sixteen, so towards the sect the tail end
(08:03):
of the Obama presidency, and I remember back then a
lot of Obamba executive ors were oftentimes challenged by the
Attorney General and Slicter General of Texas. The Texas s
Lilster General's office ends up being one of the most
effective tools.
Speaker 1 (08:14):
It's still to.
Speaker 3 (08:14):
Say, actually against democratic presidents engaging in various forms of
executive overreach, and the Texas Lister General's Office typically litigates
in very specific divisions of North Texas. I know as well,
because I clerked for a federal appeals judge in the
Dallas Fort Worth area, Judge James Hoe, amazing judge. So
back then it was oftentimes Judge Read O'Connor. These days,
(08:35):
and sometimes it's Judge Read O'Connor, sometimes Judge Matthew Kasmherck.
They're both amazing judges. I don't begrudge judges like that
from issuing a nationwide in junction at least prior to
like a week and a half weeks ago, given that
this was the reality that we are living in. But
I would prefer to live in a principled reality where
these tools are simply not on the table. Ultimately, in
(08:55):
a situation the like switch or hypothetical like you've described there,
and you know, I'm I'm a SEC Amendment guy, Ross,
I want my gun, and I'm sure that you want
your guns as well. There the best way to fast
track that would be to try to seek some sort
of emergency relief at the United States Supreme Court, because
once the Supreme Court's rules, the lower courts are essentially
just going to immediately follow and the order will simply
(09:17):
not be enforced really in the first place. There, So
that would be the proper mechanism to try to see
them seek emergency relief and on what the lawyers call
the rocket docket for emergency appeals at the Supreme Court there.
But I hear you, unfortunately, I'm sure that you can
appreciate this kind of the The inherently slightly slower working
of the gears of government is very much a feature,
not a bug, of our system, and so too, I
(09:38):
think it would be here as well.
Speaker 1 (09:39):
And I'll add one other thing.
Speaker 2 (09:42):
Part of the reason some of this stuff happens is
that Congress doesn't do its job reigning in the president.
And also impeachment has gotten so cheapened that you know,
supporting you know, some if if a president were to
issue an executive order that was intentionally designed to prevent
everybody from being able to buy a gun, the impeachment
(10:03):
paperwork should be filed within ninety minutes, but it won't
be and we don't really have.
Speaker 1 (10:09):
The checks and balances.
Speaker 2 (10:11):
And despite the implications of my question, which is more
reflection of reality than how I would like it to be.
We are all far more dependent on the judicial branch
branch than we should be because the other branches don't
uphold their oaths to the Constitution. We're talking with Josh Hammer.
He is senior editor at Large at Newsweek. He hosts
the Josh Hammer Show podcast. Josh, give me before we
(10:34):
get to the other topic, give me forty seven seconds
on the book.
Speaker 1 (10:38):
That I see over your right shoulder.
Speaker 2 (10:41):
Yeah.
Speaker 3 (10:41):
So the book ross is Israel and Civilization, The Fate
of the Jewish Nation, the Destiny of the West. It
came out in March, but it's truly timelier than ever.
And in fact, I had someone in Congress message with
me a couple of weeks ago and said, Josh did
depression into the orchestrate the events of the last month
just to sell more book copies there. So you know,
the book really is, I think, timelier than ever. There's
a whole chapter making the America first nationalist realist case
(11:02):
for US israelations, which is a very, very very hot
topic on the political right these days.
Speaker 1 (11:07):
So it really is timely.
Speaker 3 (11:08):
Israel and Civilizations a lot of Bible, a lot of scripture,
a lot of foreign policy.
Speaker 1 (11:12):
We touch a lot of topics. Rospit. It's available everywhere
books are sold. Israel and civilization.
Speaker 2 (11:16):
All right, so let's do like five minutes on the
topic that I actually asked here to be about. But
I thoroughly enjoyed that conversation. I'm glad we did that.
You posted on x formerly Twitter, and I'm gonna paraphrase,
and you can tell me if I've misquoted you, but
that if Trump goes down the road of amnesty, we're
(11:37):
talking about illegal immigration now, that will be a betrayal
of what people were voting for when they voted him
into office.
Speaker 1 (11:45):
Is that correct enough? That's definitely correct enough. Yes, Okay,
So describe what's.
Speaker 2 (11:52):
Going on and do this briefly here, not in the
lawyer mode, but in the podcaster mode or something. What
you are, what you were contemplating as falling into the
category of amnesty.
Speaker 3 (12:04):
So to me, I would define ANEZ as either not
choosing to not enforce immigration law against people who are
here illegally wilfully, kind of what Barack Obama did to DAPPA,
DACA programs like that, or to actually go ahead and
affirmatively codify some sort of legal status that could be
sure of citizenship. But to either deliberately and wilfully announce
(12:25):
that you are non forcing the law against people here
are illegally or to affirmatively codify legal status.
Speaker 1 (12:30):
Okay, So let's start with.
Speaker 2 (12:31):
The second then, because I think what you were reacting to,
and I didn't see if there was context in that thread.
But President Trump said recently that he was looking at
possibly creating some kind of special visa that would allow
people to stay here and work.
Speaker 1 (12:45):
I did not see it.
Speaker 2 (12:46):
And by the way, I would not support something that
put illegal immigrants, say farm workers, he was talking about
farm workers, hotel workers.
Speaker 1 (12:52):
I wouldn't support.
Speaker 2 (12:53):
Them being on any kind of past the citizenship. I
would support something that lets them stay and work. Saying
that either you wouldn't or at least Trump's voters probably wouldn't.
Speaker 1 (13:05):
Well both, I would not support that.
Speaker 3 (13:07):
To be clear, I can't speak for every Trump voter, obviously,
but I definitely think. I definitely think that the median
Donald Trump voter supports essentially the Tom Holman position of
systematically deporting as many illegal aliens as possible, subject to
budgetary constraints and just general realities of personnel and the
amount of ICE agent and so forth. So it naturally
(13:27):
follows that you, of course would start with criminals. But
I think the key thing ross is that this policy
that Donald Trump ran on, it's not necessarily just a
deport criminal aliens policy. It's to deport as many illegal
aliens enforce immigration law, which again the law requires that
they be deported. That's black letter immigration law as much
as possible, given the amount of resources that ICE and
(13:47):
DHS has from Congress and so forth. There and the
polling on this, the thing is actually quite instructive. If
if you look at the the aggregate of polls, roughly
sixty percent, sometimes up to two third, and some polls
of Americans now tell polsters they support deporting all alll
like literally all illegal aliens in this country.
Speaker 1 (14:04):
It's a very high percentage.
Speaker 3 (14:06):
It's one of the biggest shifts in American public sentiment
over the past decade or so.
Speaker 2 (14:09):
It has been absolutely remarkable to see how Joe Biden
is personally responsible for that polling by opening the border
so wide that a lot of people, I mean me,
I'm not an immigration hawk, so I'm very much against
illegal immigration, and I'm very much in favor of increasing
legal immigration. We need more, especially skilled immigrants, and we
(14:32):
need more people to prop up our Ponzi scheme of
a government. But Joe Biden did what he did and
turned a lot of people like me more in favor
of more aggressive deportation.
Speaker 1 (14:42):
That said, Josh, I bet you that.
Speaker 2 (14:45):
Wants not for all, not for the Trump based, but
I bet you the majority or at least plurality of
the American public if asked at this point, do you
want the federal government to do workplace enforcement on farms, hotels,
and home depot parking lots to round up people who
are working and not committing crimes. I bet you most
(15:07):
Americans would say no to that. And I think that
this will be a negative for Republicans in coming elections.
Speaker 1 (15:15):
I also think that part of the problem.
Speaker 2 (15:17):
And tell me if you agree here Stephen Miller, it
sounds like, by the way, I can't stand him, but
Stephen Miller seems.
Speaker 1 (15:25):
Like he has put a quota on this.
Speaker 2 (15:26):
We want three thousand a day or something like that,
and it's quite hard to go find lots of criminals
they're hiding, so if you're just going for sheer numbers,
you're gonna go to the farm, you're gonna go to
the hotel, you're gonna go to the home depot, and
because you need to meet this moron's quota. And so
I think that Stephen Miller is going to actually hurt
(15:48):
Republicans in the next election with this.
Speaker 3 (15:51):
Well, I actually love Stevean Miller, but that's a very
you know, that's a very reasonable person for us to
disagree on. So no, no harm, no foul there. Look,
I mean, Ross, I think that immigration is a politically
winning issue for Trump, but if anything, I think it's
arguably his number one winning issue right now. The last
I checked the Real Clear Politics data as far as
approval disapproval on immigration, Trump is up double digits in
(16:11):
a lot of polls based on his approval rating. So
whatever he's doing right now, and the rhetoric is tough.
We've all seen these Christy nome DHS ads on TV.
If you're here illegally, get out before we find you.
At at least here in Florida where I live. Those
ads are all over TV. And the people see this,
they see the iations, they see Tom Holman talking the
big game and apparently they love it there. And I
think it's worth noting ross looking up at the legal
(16:34):
immigration issue that as Republican Party has moved in this
Trumpian direction of being very tough in both word indeed
enforcing immigration laws and deporting legal aliens, the Hispanic vote
has moved historically tooth Republican Party. It's actually the exact
opposite of the twenty twelve Republican National Committee so called
autopsy after Mitt Romney lost there. So it's very counterintuitive.
(16:55):
A lot of kind of DC belwet consulting case street
types maybe don't necessarily understand why that is happens to
be what's actually happening out there in real time, right.
Speaker 2 (17:02):
And I should say I'm kind of quibbling around the
margin because in the big picture, I'm in favor of
the overall kind of goal of the Trump administration on
and I want illegal immigration stopped. There's again, it gets
a little subtle when you start talking about should we
deport people who have been here for twenty years and
(17:22):
are working and whatever, And the Fed just put out
a report about how much that might hurt GDP. And
I do care a little bit about a little bit
about that. So I am kind of quibbling on the margin,
and I'm not, of course, it's it's I'm not at
all surprised that it's one of his best issues.
Speaker 1 (17:36):
And I'll say one other thing. Can I toss out
a possibility to you?
Speaker 2 (17:39):
Actually?
Speaker 1 (17:40):
Yeah, sure, go ahead?
Speaker 3 (17:40):
So one way, I think, because I hear what you're saying,
right with these twenty years here home, depot work or whatever. Fine,
I'm not gonna say that I would be willing to
grant them legal status.
Speaker 1 (17:51):
That's not my stance.
Speaker 3 (17:52):
But I wonder if something like the Taiwan Policy of
Strategic Ambiguity or you know, however the form policy people
phrase that, yeah, you know, basically deliberately not saying what
your actual stand is. I wonder if that is actually
a somewhat reasonable middle ground position that I'm not terribly
I'm not.
Speaker 1 (18:09):
It could be right, It could.
Speaker 2 (18:10):
Be, as long as they don't suddenly start showing up
at workplaces and taking away the people. I'll mention one
other thing, and then I'm out of time. I'm not surprised,
and you're probably not surprised either actually about the Hispanic
vote moving towards Trump. Because when you're talking about the
Hispanic vote, you were talking about people who are allowed
to vote, which means you're talking about citizens, which means
(18:33):
you're talking about people, almost all of whom did it
the right way. Very few illegal aliens become citizens, not impossible,
but it doesn't happen a lot. And so the people
who are here and voting did it the right way.
And there's no reason for a Hispanic immigrant who did
everything the right way to suddenly, you know, carry the
(18:54):
water for an illegal alien trying to cut in line
and doing it the wrong way just because they also
happen to be a Spanish.
Speaker 1 (19:01):
No, that's totally right.
Speaker 3 (19:01):
And you know, more generally, ross just kind of zooming
out a little bit here. Hispanic citizens like any other
US citizen. I mean, they see the crazy direction of
the current woke Democratic Party, so they're probably trending left
for the same red or trending right for the same
reason that anyone else basically is trending right these days.
Speaker 2 (19:15):
Josh Hammer is the author of Israel and Civilization. Go
buy It wherever you buy your books. You can check
out his writing it Newsweek as well, and at the
Josh Hammer Show podcast. You can listen to it more.
Thanks for being here. There was a fabulous conversation. You
bet brother, all right,
The Ross Kaminsky Show News
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