Transcript
39 segmentsLet's talk to Josh Filler because that's a good thing to do at the midpoint on a Thursday. Josh, how are things this morning? Doing well. How are you? Not too bad. Appreciate it. Happy 4th of July weekend. Happy 250th to you, Josh. One thing I'd like to celebrate and talk about here a little bit on this 250th anniversary of our nation. is one of the key pillars of it, one of the key institutions, the Supreme Court. This was a big Supreme Court week, Josh, and I always love your Supreme Court analysis, so it's not like we don't have content here. This week we got plenty of cases to go over. I want to start, though, with the big one that many of us were waiting for. Many of us were not shocked by the outcome, but there does seem to be. I think a pretty significant political backlash on the right to several of the justices that decided the way they did on the birthright citizenship case. I'd love to get your thoughts on it because it was a big one, you know, dissents of 91 pages and, oh man, there's just lots of things to unpack. What's your take on the birthright citizenship case, Josh Filler? So as with you, no big surprise. This was always a long shot, particularly coming from the executive. So the Supreme Court basically did what a lot of us expected it to do, which was to declare President Trump's executive order on birthright citizenship unlawful. What did surprise me, or what I guess not so much is surprise, I was hoping for possibly a slightly different outcome. So let me just back up for a second. You mentioned the criticism from the right. Some of it I think is well-founded, but some of it I think misses the larger point. You know, the Supreme Court's job is to interpret the law. It's not to make policy. And I think a lot of the criticism against the court, particularly the majority, is focused on the policy outcome, which I agree is abhorrent. It's awful. It's terrible, and it's going to be very hard to undo, although not impossible. But the majority opinion is well-rooted, at least in part in the law throughout most of our history, including up to and after the ratification of the 14th Amendment in 1868. Citizenship was determined based on where you were born. And this was reconfirmed in 1898 with the ARC decision by the Supreme Court, again, upholding citizenship by birth on U.S. soil. What I thought could have happened but didn't is reflected in Brett Kavanaugh's concurring and dissenting opinion. He is right where I have been for this entire year, which is the president does not have the authority to alter who is or is not a citizen by birth under the 14th Amendment, but Congress does. And I was hoping that a majority of the justices would get there.
But alas, they didn't. And this is where I think John Roberts and Amy Coney Barrett in particular made a mistake by declaring outright that the only way to get around this now was to do a constitutional amendment. Yeah, I know that that's I think the source of a lot of people's ire related to that decision. You know, when you're talking, though, about the case itself, I've seen some analysis, Josh, that said that part of this. in a way is Trump's fault because he kind of went for all of it with the executive order that he that he crafted. If he had gone after just say birth tourism, for instance, or if it was a more narrowly tailored or differently crafted executive order, the speculation in some circles is that there may have been a lot more room and flexibility at the Supreme Court to ultimately... Maybe chip away at some of it rather than trying to go for all of it as he did. I don't know if there's anything to that. What do you think about that particular theory? Having read the opinion, I just don't see it. I mean, John Roberts was pretty airtight here. He wrote the majority opinion. And he said, you know, it's the just solely doctrine where you're born on the soil. You're a citizen of the country on whose soil you're born. And it really didn't matter if it was just birth tourism or anchor babies, as the case may be. And he basically reaffirmed what the Supreme Court held in 1898. And, you know, the problem with this, of course, is that the citizenship based on where you're born, that was the way the world looked at it for much of its history. But over the last hundred years, we've moved away from that. We've gone to blood and lineage, and it makes sense because when the Fourth Amendment was adopted and ratified, and even in 1898, There were no airplanes. There were no ships that could move thousands of people around at high speed on the seas. Human movement was much more difficult, so there was no notion that it would even be something to care about. It was basically where you lived was pretty much where you were born, yeah. Yeah, I mean, mass migration. And this is what Brett Kavanaugh was getting at and what I've been getting at, which is that the Congress does have authority under the 14th Amendment to pass implementing legislation. And in that, I think they could have passed a law that carved out another exception to where you are born, which is if you're born to illegal migrants in particular. You're not a citizen by birth in the United States. But that's been foreclosed, and I think that's where a lot of people are angry. And I'm disappointed, but not shocked.
As for the dissent, I know that a lot of people have been focusing in on Thomas' dissent because it's, of course, as usual, well-written and very, very, I think, important and interesting. You know, he made a pretty strong argument in there that, like, the political allegiance, or the primary allegiance of an individual, is a pretty important part of the mix in terms of deciding what that language in the 14th Amendment ultimately says. And obviously what he's referring to here is, you know, the clause. states subject to the jurisdiction they're in. Do you think that he's right about that? Like, how do you evaluate Thomas's dissent, if you could? I think, look, I agree that political allegiance is an important factor in determining whether you're a citizen of a country based on your birth. The problem with that analysis is it was raised back in 1868. It was raised in 1898 in the art decision. It's been rejected. Okay, it's been rejected time and again, and that was the conundrum that the majority had, which was, okay, we've got all this history, all this law that says it really isn't about allegiance so much as are you subject to the power of a foreign sovereign, which is why the children of ambassadors are not deemed citizens by birth, even if they're born here. So I agree in theory with Clarence Thomas. The problem with that theory is it's been summarily rejected time and again every time it's been raised at the Supreme Court and beforehand. So, yeah, I wish that had been the prevailing argument in 1898, but it wasn't. Obviously not the only case at the Supreme Court this week. One that I definitely want to bring up here was one that had people howling earlier. The decision related to the independent agencies and what the executive branch. You know, ultimately, how it runs. I mean, like, is the president empowered to actually fire people who are technically in the executive branch? Congress has set up these independent agencies, which are intended to be... quasi-governmental basically. They're sort of the government. They're sort of not. They're beholden to the executive branch, but they're not actually beholden to the executive branch. You know, they're meant to operate independently and Congress designed it so that the president couldn't interfere with it. But the Supreme Court seems to have said here in this ruling that I'm talking about that that was a violation of the separation of powers and that they were never able to actually design things that way. Therefore, the president does have authority to fire those. people. Can you tell me a little bit more about that case?
Well, I can tell you, Woodrow Wilson is rolling over. Oh, he hates this, yeah. And Antonin Scalia is smiling down upon us because he has been, Scalia was one of the chief advocates for the unitary executive theory, which basically holds that the president and the president alone holds executive power and to exercise that power. He has to be able to fire people who are, you know, at odds with him on policy, whatever the policy. may be. And so, you know, the unitary executive is basically rooted in Article 2, Section 1, which provides that the executive power is vested in the president. Not most of it, not nearly all of it, not just about all of it, but all of it, as Scalia said in Morrison v. Olson. So, you know, the FTC, this case, Humphrey's executor, which was overturned. I remember reading it in law school and thinking, This doesn't make any sense. There's three branches of government. What is this fourth branch of government that Congress has created? And so, yeah, the court overthrew, overturned Humphrey's executor, as you said. And now, you know, these agencies are beholden to the president. In some ways, they always were. But now it's clear that the president has control. This is our system. This is how we instill political accountability. But I'll tell you, Matt, one of the most interesting parts of this decision was the concurrence by Neil Gorsuch. Borsuch raises the larger question of the administrative state. And would Congress have blanted all these powers to these agencies like the FTC, the SEC, and others, if they knew that the president would have executive control over them? And should they be allowed to delegate? judicial and legislative powers to these agencies, which is music to my ears. I think the administrative state is totally out of control and unconstitutional, and maybe we'll actually get to that next. Yeah, that's a really good point. And ultimately, the core of that case to me just, I mean, it comes down to the question of whether or not Congress, the legislative branch, one of the three branches, the checks and the balances, right? Are they able to basically say that the powers of one of the other branches are unable to be used and we're creating something outside of their purview? That's nonsense to me. And it always was nonsense. I mean, you know, you hear things like unitary executive theory and you think, oh, good Lord, dictatorship. Like, oh, here we. we go with more presidential executive power, but the branch is the executive branch and the guy in charge of the branch is the president of the United States. Is he or is he not in charge of the executive branch? Because if the answer to that is yes, Congress can't just say, well, except for this. And over here, not so much, because that's actually taking the powers of a different branch and taking them away unconstitutionally. This seemed clear as day to me. Yeah, I mean, I've written about the administrative state for years. You know, at this stage, the executive branch under the president exercises executive power, judicial power, and legislative power. The FCC has the authority to promulgate criminal regulations, okay, out of whole cloth based on a delegation from Congress. So, you know, this was not what the founders intended.
Yes, what the SEC does is subject to judicial review, but as a practical matter, these agencies within the executive branch now under the complete control of the president, which is correct, I believe. However, I think what is questionable is their authority to exercise both judicial and legislative power, which is a practical matter in so many cases is not subject to anybody's review. Finally, before I let you go, Josh, I also want to get up to speed a little bit on the transgender athlete case here. You know, this again seems very common sense. And there were two decisions within this case, ultimately about Title IX and whatnot, which was interestingly 9 to 0. I liked that. But can you kind of detail a little bit about what was actually at stake in this case and what it now means for states that are considering... how to deal with athletes, whether or not to ban the participation of biological males in female sports, etc. What does it all mean now? So I was not surprised by this at all. I mean, basically the plaintiffs in this case, which were boys wanting to play in girls' sports, argued that Title IX required the states to allow them to play in girls' sports. And if not, the Equal Protection Clause required it because they were being discriminated against based on their sex if they weren't allowed to play in girls' sports. And the Supreme Court, six to three, rejected both. No big surprise there for the obvious reasons that allowing boys and girls sports is unfair. The girls don't get the equal opportunity to compete, to win, and so forth. So all the arguments we've been making now for years about why this is not a good idea. The bigger question I had coming out of this case, and I'm trying to... sort of almost inverted is what about states like Maine that allow boys in girls sports? Does that violate Title IX? And if you read Brett Kavanaugh's decision and the rationale behind it, I think it's unquestionable that the answer is yes, it violates Title IX because allowing them in does all the things why the states don't allow them in, which is because The girls can't compete. They don't get an equal opportunity to win. So I think it's a setup for the next case, which is going to decide whether states like Maine are in compliance or in violation of Title IX. All right, Josh, unfortunately, I have to end there because we're a little long, and I appreciate it as always. Hope you have a wonderful Independence Day. Thanks for joining us as always. And we will talk again next Thursday, sir. Appreciate it. See you then.