The Plan to Fight Trump's Second-Term Agenda

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Jon Favreau
Welcome to Pod save America. I'm Jon Favreau.

Jon Lovett
I'm Jon Lovett.

Kate Shaw
And I'm Kate Shaw.

Jon Favreau
On today's show, Joe Biden makes a big move on immigration that will create a pathway to citizenship for half a million undocumented immigrants. The president also takes on the Supreme Court's right wing majority, which just basically ruled that machine guns aren't really machine guns. And a new resistance movement is preparing to fight magazine 2025 in the courts if Trump wins a second term. Does that sound like a lot of legal news? Well, who better to hatch it out with than crooked's very own Kate Shaw, law professor at Penn and even more impressively, co host of strict scrutiny. Kate, welcome.

Kate Shaw
Thank you so much for having me. And you're right, the crooked tenure process is a lot tougher than the Penn one. So I did make it through, but just barely.

Jon Lovett
There's a few ideologies. It's great to hear.

Our tenure process.

Kate Shaw
Yeah, that's right.

Jon Favreau
And so, yeah, I should say that we're in New York, which is why we're here with Kate in person.

Kate Shaw
And I actually have a question for you guys, which is why exactly are you in New York?

Jon Lovett
What a beautiful, what a beautiful seamless transition to our plug.

Thank you, Kate, for being part of this.

The three of us are on Colbert tonight.

Kate Shaw
Not the three of us with, including, oh, no, a different three.

Jon Lovett
Tommy is recording pod save the world somewhere, also in the serious studio somewhere. But we'll be on Colbert tonight. And we're here to launch our book.

Jon Favreau
It's Tuesday afternoon, so we're on Colbert this evening.

Jon Lovett
Oh, we're on Colbert tonight. Wait, no, last night. Last night. Last night. We're on Colbert. Last night. You said this evening. We're on Colbert last night.

Jon Favreau
We can tell the people that we're actually, when we're recording this, would you.

Jon Lovett
Believe that we're some of the most successful people at this?

And we're also here to launch our book, democracy or else, which you can buy@crooked.com. slash book. And if you don't.

Is that right? Book or if book doesn't also redirect.

What are we even doing here? I just work here. Let me try it. I feel like this promo is going great.

John, Tommy and I wrote a book. I kind of think we should leave as much of this crap in maybe not so democracy, or else it comes out this week.

Jon Favreau
Nope.

Kate Shaw
Comes.

Do you want me to try it? I can talk about the book.

Jon Favreau
I'll give it a work.

Jon Lovett
It's coming out next week. Oh, and we worked on it so hard.

And it's good.

Jon Favreau
Kate, it is probably a lot shorter than almost any legal opinion you have read.

Kate Shaw
That's great. Short, punchy, hopeful, practical. These are the things I think your book is going to be.

I have not read it yet, but this is my sentence.

Jon Favreau
It is a how to guide.

Kate Shaw
Yes.

Jon Favreau
If you want to get involved in this election and hopefully future elections without losing your mind, that's it. And we got some tips. We got some advice from some really smart people. There's some jokes. There's some illustrations.

Kate Shaw
This is a public service, you guys. Seriously.

Jon Lovett
Yeah. And all the profits from the book, they go to vote. Save America. And organizations protecting democracy on the ground. So supporting the book is supporting a good cause.

Jon Favreau
And, Lovett, you know that when we are on Colbert tonight, you cannot do more than one take of this book promo.

Jon Lovett
Right? Right. Well, you know what they do? Trim it down a little bit. They do tighten it up. They do tighten it up. You could take another shot at it. They don't love it. They don't love it. Advertise it, but you can do it.

Jon Favreau
Well, this is why we practice here. Okay. Big news today. President Biden is announcing that his administration will offer a pathway to citizenship for the undocumented spouses of american citizens who've been in the United States for at least ten years. The policy will give about 500,000 immigrants legal status, protection from deportation, and the ability to work here legally. As of right now, undocumented immigrants can apply for citizenship if you're married to a citizen, but you usually have to leave the country for ten years to do it. Biden's new action will also help about 50,000 undocumented stepchildren of those undocumented immigrants who were married to american citizens. He's also expected to announce a separate action on work permits for Dreamers. The White House announcement comes right around the 12th anniversary of President Obama taking action to protect the children of undocumented immigrants. The program, known as DACA, and the Biden campaign used the occasion to set up the immigration contrast with Trump in a new ad.

Donald Trump
We did family separation. A lot of people didn't come. They're bringing drugs, they're bringing crime, they're rapists.

When you say to a family that if you come, we're gonna break you up, they don't come. They're destroying our country. They're destroying the guts of our country.

Jon Favreau
The Biden administration unveiling a task force.

Jon Lovett
Tuesday to locate and reunite families who.

Jon Favreau
Were separated at the border under the.

Jon Lovett
Trump administration zero tolerance policy.

Donald Trump
They got separated from their parents. Violates every notion of who we are as a nation.

Jon Favreau
So love it. This is a big deal. Uh, it's happening a few weeks after Biden's new policy that closes the border to asylum seekers when crossings get too high, which is now also being challenged in court by the ACLU and other groups. What do you make over all of the policy and the politics here?

Jon Lovett
So one fact that jumped out at me, according to the administration, the majority of people who will be impacted are mexican nationals who have lived in the United States for an average of 23 years. 23 years. These are people who've been given this abominable choice, which is to stay in the country, that they know where their children and husbands and wives are, who are often citizens themselves, or leave for ten years to become legal, which means they stay and they're at risk of being taken advantage of by landlords and by employers. They're afraid to go to the police to report a crime, afraid that they could be separated from their families at any moment. And what I appreciate about Joe Biden, and I know, look, we all, everyone's spent a lot of time worrying about Joe Biden. What I really appreciate about Joe Biden and the way that he has run his administration is that even when he's being criticized from the right for being soft on immigration, he's not afraid to take a step like this because he believes in the policy and the politics. And also what I appreciate is that he isn't afraid to take steps on border security, even though he knows he will face criticism from advocates because he also believes in the policy and the politics there so well.

Jon Favreau
As you know, doing the right thing policy wise is always good politics.

Jon Lovett
You know, sometimes it is. Sometimes it is so. 77% of Americans in a Monmouth poll said that the executive actions on border security that President Biden took were right or didn't go far enough. Most said didn't go far enough, but that 77% thinks it's right or doesn't go far enough. Only 17% said that he went too far. Americans also, in a bunch of polls, they prefer Republicans on border security, and they believe Trump will do a better job on the border than Joe Biden will. So I see advocates saying that Biden is sort of buying into a republican narrative on border security.

But, and it's true that Republicans are demagoguing the issue and exaggerating and lying and fear mongering, but it's also democratic mayors and governors who are calling for greater border security. And the thing, the reason I think it's so important to highlight that is because border security has risen to be one of the top issues on voters minds. And it is a view that is not just held among MAGA Republicans and Axios. Ipso's poll found 64% of Latinos said they support giving the president the authority to shut us borders. 38% support sending all undocumented immigrants in the US back to their country of origin. And these numbers are all going up. But at the same time, in poll after poll, Americans more broadly continue to have an impulse towards compassion. They support a path of citizenship. They want America to be a refuge for people seeking a better life. And so what it says to me is that the two democratic positions can't be too far or not far enough on border security, because the only way we will get to the more compassionate and generous and welcoming and sane and humane immigration system that we all believe we need to have is if we can prove that we can also secure the border. They're not separate. A secure border is not a contradiction to a progressive immigration system. They have to go together. And that, to me, is what I took away from the fact that Joe Biden was willing to do this, what, two weeks after taking the steps he took on the border?

Jon Favreau
I also think that, you know, you talk to some immigration advocates and some have a problem with the border move that Biden made a couple weeks ago. But some have said to me, look, I understand why he's focusing on border security the challenge is we've conflated the debate about the border with the debate about immigration. And a lot of latino voters and activists and advocates in that space don't see them as the same debate. And we haven't been having a debate about immigration policy inside the United States or what to do about the 1012 million, 15 million undocumented immigrants in this country. And the polls don't really capture this unless you take a poll that's only about immigration. But people feel very differently about new migrants crossing the border and what's happening at the border and what's happening now in a lot of american cities than they do about undocumented immigrants who have been here, who have families here, who have been working here for years. Some of the very same people that Biden is helping right now. And I think, as you saw from that ad, as you heard in that ad, that the Biden campaign is running, I think also on the political side, it is a better contrast for them to say, okay, here's Donald Trump, who wants mass deportation forces in every city in America to expel 10 million undocumented immigrants who've been here working and living for years and years. And by the way, you know, he's gonna do that because this is the guy who separated families at the border.

And here's Joe Biden, who, he's gonna make sure that all of these undocumented immigrants who are married to american citizens, who have children here, who've been working here, who've built lives here, this is the only country they know they can stay here, as opposed to going back to the country of origin that isn't even their country anymore for ten years before they come back. And I think that just politically is a much better contrast. And it gets to that place that you were speaking about with that. It's just more compassionate. Of course, like, we know how this has gone from the Obama years. We had similar fights. The Republicans weren't as Trumpy back then. But, Kate, it took years for our old boss to announce the DACA program, partly because I think the Obama administration was trying to craft the policy in a way that would withstand legal challenges.

Twelve years later, DACA is still tied up in the courts. Do you think this new Biden policy will fare any better?

Kate Shaw
Well, a couple of things about the new policy. So it's a really important new policy that's going to affect a lot of people, but it's also very grounded in existing law. Right. So these spouses can already get a path. They have a path to a green card in citizenship. They just have to leave the country to avail themselves of it. So I think that that's what's important is that this is a process that exists. This is a modification to it that lets people stay while they adjust, as opposed to having to leave to adjust. So I think that actually helps the legal argument in defense of this policy. The other thing to say is there was a similar change made some years ago with respect to spouses of members of the military. So an undocumented spouse of a military member can already do what this new proposal will achieve, which is to say, adjust while staying as opposed to leaving for up to ten years to their home country. It's a very popular policy. I think something like 20,000 undocumented military spouses have taken advantage of it.

Well, Congress actually reaffirmed the authority of the homeland security secretary to do this. It's called parole in place with respect to these military spouses, and that's bipartisan. So that's not as to this particular group. But I do think it's a, you know, there's at least some, you know, this will be used in litigation to sort of shore up the administration's position that this isn't like taking Congress's prerogative. This is something Congress actually wants the executive branch to have the power to do. So I think that, again, it's grounded in existing law. There's lots of good, you know, supporting evidence of its legality. But, like, of course it's gonna be challenged because everything that a democratic president ever does on immigration will be challenged from one direction or another. Of course, we should say the new border policy is being challenged, as you said, John, by the ACLU and others. But, you know, I do expect there'll be a challenge here, and we don't yet know what the policy looks like as we're recording this episode. But if it's done like DACA, a secretarial memo, it'll likely be challenged as exceeding the executive's authority. And maybe because it didn't go through notice and comment rulemaking, it's going to be announced as a policy that'll go directly into effect. And those are challenges that had some success over the last dozen. You know, the DACA path has been a really winding one. It was, you know, it was challenged, and then the Trump administration tried to rescind DACA.

The Supreme Court said they couldn't rescind Daca. Biden then redid DACA as a notice and comment rule, and it's again tied up now in front of the Fifth Circuit, but it's critically been in place all this time. So DACA has been in effect. People have had, dreamers have had that status. DAPA, by contrast, the parents of Americans, a related policy from 2014 was challenged and actually never went into effect. So as between those two, I think this new policy probably looks more like DACA. It does actually go into effect. It's ultimate legal fate. I don't totally know, but it does seem sound to me, at least in.

Jon Favreau
Terms of what we know so far, so on DACA. So if you currently enjoy the protections of DACA, if you are a child of an undocumented immigrant, does that mean you can continue to, I know you have to renew for those protections. Are you allowed to keep renewing now that it's tied up in the court?

Kate Shaw
So, yeah, so the policy has, again, it's been, the renewal process has been paused and then the pause lifted. So, yes, right now, there are, I think, you know, it was at the high point half a million. I think it's a little lower than that. People who dream who have the DACA status, but a lot have married Americans and gotten citizenship that way and gotten other, taken other paths or left for other reasons. So the number has sort of gone up and down, but it is currently a status that is in effect and people can continue to apply for it. But again, it's pending before the fifth Circuit right now. There was a brief filed, I think, today or yesterday by actually the Biden administration saying because of the Miffa Pristone case, I don't know if we're gonna talk about that. But that basically said those doctors didn't have standing. This case should be tossed on standing grounds. So anyway, it's a very live legal dispute still, all these dozen years later.

Jon Favreau
Do you think, you mentioned Biden's executive action at the border being challenged. Do you think that will survive legal challenges? And from a legal perspective, I was wondering, how is it different than what Trump did, which did get struck down?

Kate Shaw
Yeah, well, the advocates say it's basically the same, right? Yeah. So that there is a right to cross over and seek a refugee or asylum status and that this policy is inconsistent with that and inconsistent with a statute. So I think the ACLU and the others who have sued say it's basically the same and it should suffer the same fate.

It's not exactly the same.

There's a trigger. It goes into effect if there's a certain number of border crossings as opposed to kind of a blanket kind of prohibition on crossing over. So I think it's structured a bit differently.

Jon Favreau
But would that be the administration's argument? Do you think that because there's a trigger in place that we are still allowing asylum seekers to seek asylum?

Kate Shaw
Just not all the time.

Jon Favreau
Not all the time.

Kate Shaw
Yeah, maybe it sounds tough. It does sound tough.

Jon Lovett
But Republicans went wild on DACA because they viewed it as a kind of legislating. And then there's all this fighting from the other direction that the law makes certain requirements of what the administration has to do, and this is a violation of that. And it really does all boil down to, this is not how we're supposed to be running our immigration system. It is not supposed to be running by a series of kind of gray area executive actions from the right or from the left that sometimes maybe survive judicial scrutiny. Because in one way or another, like whatever stands up or whatever doesn't, like this is various administrations trying their best to legislate with executive power because they are so bound up in Congress. Failure. I mean, it is the collective failure to actually be honest about this problem. And this is why, like, I was, I just was catching up on the news and just having space from it, seeing these fights over whether or not Joe Biden is going too far on the border and whether or not he's, like, living up to our values. There are valid criticisms of Joe Biden's policies on the border, but you just look at how the politics have constricted already because of the chaos at the border, that the possibility of a path to citizenship was so off the table. The bipartisan negotiations didn't get anywhere near that. A bipartisan bill that Joe Biden and a bunch of Democrats are willing to get behind if we want to get to a place where we are going to actually address the fact that there are tens of millions of people living in a kind of gray zone because our economy is built on basically a working caste that has no legal recourse and that can be underpaid to build homes and work in restaurants and do lawn care and do transportation and all the other industries, agriculture, that are on the backs of people that have no rights here.

The idea that Democrats aren't getting behind border security is very frustrating to me because I just, I don't see a way to the more compassionate, humane system unless we as Democrats can prove that we understand that a secure border and a better immigration system are not an opposite.

Jon Favreau
Yeah. You just mentioned, like, the mess in Congress, the one group of people we haven't talked about are congressional Republicans. Right. And like as Democrats are fighting each other about, like, like whether Biden's too tough or too soft or doing this or what can survive legal challenges or why hasn't, you know, I saw some people after the border issue was announced, I think Julian Castro said, you know, this was, Biden didn't make this a priority. I said, well, you know, Biden could have walked into the White House and said, my number one priority is to pass immigration reform and to pass a pathway to citizenship. And that's what I'm going to focus on for my first hundred days. And he would have gotten absolutely nowhere because we have Republicans in Congress who do not even want to entertain the idea of possibly granting anyone citizenship or a path to citizenship or legal status. The dreamers, anyone. We were just talking on Tuesday show about how Marco Rubio might not be Trump's VP because the last time they tried comprehensive immigration reform in 2013, Marco Rubio dared on the republican side to say, okay, maybe there'll be some kind of pathway. And everyone was like, absolutely not. And then they, they haven't turned back since. They just, they won't do it.

Jon Lovett
McCaIN and I mean, like, we've gone through this cycle, at least in the.

Jon Favreau
Bush administration, you had Bush, McCain, people who were willing to entertain pathways to citizenship. This republican party is preparing, if Donald Trump becomes president, to, like, launch a deportation force the size of which this country has never seen, that uses the US military to go into people's homes, their offices, rip people apart from their families, and send them back to countries where some of them haven't been for years and some of them have never been.

Kate Shaw
Yeah. Yeah. That 030405 effort, when McCain was sort of in the lead, that was the last kind of best chance. Like, there was actually kind of hope for bipartisan, comprehensive reform. And it's been 20 years and there's been nothing that's even come close.

Jon Favreau
Yeah. And it's really sad. I mean, we have a debate coming up next week. Love it. How would you prep the president to talk about immigration and next week's debate? Because it will surely come up.

Jon Lovett
Yeah. No, I mean, I think what you said is right. So first of all, I think, like, I think embracing the criticism from both sides, you know, he's gotten heat from both sides. He believes he can secure the border. He believes you can do it while keeping families together and being in a beacon of hope for people. There is bipartisan support for it and he knows it because he had a deal that Donald Trump killed because he wants chaos. That that's the choice in the election. You can have a secure border while upholding your values, or you can want chaos and families ripped apart like the last time he was in office.

Jon Favreau
Yeah. And I also think, you know that the time story about this quoted Catherine Cortes Masto, who's the senator from Nevada. She just wrote a piece advocating that President Biden take the exact action he took today. She was telling the story about one of her constituents. She was married. She wanted to get a job. She lives in Nevada, and they have a kid. And as she's applying for the job, they wanted to do a background check. And so they ask her for her husband's Social Security number. And she realizes she cannot give her husband's Social Security number because her husband is undocumented and she is not. She's an american citizen. And if she gives his Social Security number, they will possibly deport him. And so the only option she has is to not take the job or divorce her husband. And so they divorce because of this. And I think, like Biden telling a story like that and being like, so I want that husband to be able to stay with the family and keep the family together because they have been here for a decade working and living and building a family. Donald Trump not only wants the divorce to happen or the wife not to get a job, he wants to have a federal agent knock on that family's door and deport that husband and rip the husband away from the family. And that's the difference in the election.

Kate Shaw
Yeah. So the number 500,000 is the individual undocumented spouses. Right. But when you add in their spouses, their kids, their communities, their workplaces, their schools, it's just like we're talking about people in the millions impacted. And it does have both significant impact, but real kind of like family values kind of essence, that feels like really good politics. And particularly, I think, in states like Nevada and Arizona, where you have a lot of probably mixed status families, where, you know, the politics could matter a lot.

Jon Favreau
More than 100,000 mixed status households in Arizona. Another more than 100,000 in Nevada and Georgia. All three states.

Kate Shaw
Oh, in Georgia, too. Wow.

Jon Lovett
I think, yeah.

Donald Trump wants us talking about and thinking about chaos at the border, and he wants you to associate immigration and immigrants with criminals and terrorists. But when most people, especially when they're asked about on polls, in their daily experience, they're talking about neighbors, they're talking about friends, they're talking about colleagues, they're talking about people in their communities. I think reminding people of that, I think it remains powerful no matter what fear mongering they do.

Jon Favreau
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Okay, now for some nightmare fuel.

You might see some, some poll denialists on Twitter. But in real life, the anti Trump coalition is hoping for the best, but preparing for the worst. The New York Times has a big story about resistance 2.0. Quote, a sprawling network of democratic officials, progressive activists, watchdog groups, and ex Republicans who are already preparing to challenge some of Trump's most extreme second term proposals in court and use every other tool available to fight back. One group, protect democracy, which is led by our friend and White House colleague Ian Basin, is putting together a strategy to fight back against mass deportations that we were just talking about and the gutting of the civil service, replacing all of the non political federal employees, 2 million in the government with MAGA loyalists. The ACLU is also preparing to fight further attempts to criminalize abortion and the possibility that Trump will order the military to use force against protesters. They've also reportedly hired an auditor to make sure they're not vulnerable to Trump weaponizing the IR's against them, we should put that on the to do list.

Jon Lovett
And everybody listen to this. If you've donated to Joe Biden in a way that's online, that's one step we all can take.

Jon Favreau
And five democratic governors, including Jay Inslee of Washington, have started stockpiling abortion medication. Dark so, Kate, I had heard rumblings about this from other democratic officials and governors, and my first reaction was like, what are the chances of success here, given the powers that any president has and the current right wing majority on the Supreme Court, and just the rightward tilt of the judiciary in general?

Kate Shaw
Just in the general prospects for resistance 2.0? Yeah, I mean, let me channel our friend Ian Basin for a minute and just say if we're talking about safeguarding the health and resilience of the democracy and the body politic, like keeping cancer out is really the goal as opposed to mitigation measures. So I think that he would say that if you're here. And so I'm just channeling him. So that is, I think, for all these groups still, the priority is making sure there is not an anti democratic autocrat in a position to actually make all of this real. But contingency planning is a good idea. And I think things like stockpiling MefA Pristone is actually really wise. I don't know how quickly it expires, honestly, but I think that stockpiling is a very good idea in terms of the longer term sort of strategic planning. I think that the article that you referenced suggested that a lot on the left were caught really off guard, obviously, when Donald Trump first took the White House, and no one wants to make that mistake again. And so I think that thinking carefully about legal strategy, about litigation responses and other kind of sites of resistance at the state level and in the grassroots, all of that is really, really important. But it's sort of second order. It should not consume the conversation when the first order task is making sure it doesn't happen in the first place.

Jon Favreau
I already have nightmares about this, and I don't know the legal parameters here because I interviewed, interviewed Liz Cheney on Pod Save America, and she was like, I'm not worried about a right wing Supreme Court majority. She goes, I'm just worried that Donald Trump will say, why would I listen to the court? Why would I listen to any of the courts? Who's going to make, who's going to, with whose army? Right.

Kate Shaw
Right.

Jon Favreau
And so I worry about that. I also worry about there's a number of proposals that would involve Donald Trump. The Insurrection act, calling up the military right to act as a deportation force, to use the military to put protests down, to use the military to go fight crime, or the National Guard to go fight crime, to federalize the National Guard in red states, to have them go into blue states, if the governors are in the blue states, are not willing to federalize their National Guard to solve whatever problem Donald Trump wants to solve. Like how much, it seems from my reading that the president has quite a bit of power to do that. But I don't know what you think about the legal, I mean, part of.

Kate Shaw
The problem is there's no Supreme Court case that says you can't do x when no president would ever have dreamed to do x. Right. So a lot of these things, I think, are legally really suspect. But there is not, like, a clear statement from the Supreme Court to that effect. Again, because it's just not come up. So I think there's a range. I think that when it, you know, and you're right to be nervous about, I think, both the Supreme Court blessing some of kind of the largest types of overreach, but also, if it doesn't, just being disregarded. Right. Like the. I think that there were a few checks in Trump's term that were important ones, and the Supreme Court was occasionally a big check like DACA recision and the census citizenship question. And even though the travel ban was ultimately upheld, the lower courts required the administration to redraft that until the third one managed to pass muster. So that's r1, site of pushback. Obviously, the civil service, the bureaucracy was a real site of pushback. And honestly, the incompetence of a lot of the Trump subordinates was a site of kind of pushback or an important check, I would say. And I think that it's right to be worried that all of those look potentially really different if the guiding of the civil service is on the table, if there is a more competent group of loyalists in place, and you now have a supreme Court with a different, a six three as opposed to a five four conservative majority, and the old five four majority, John Roberts, occasionally join the Democrats in the cases that I just mentioned.

And so I think things do look really different. I mean, I honestly think we'll know more when we get the immunity decision from the Supreme Court. I will have, I think, more of a sense this, this court, as currently constituted, hasn't had a big case quite like this about presidential power and presidential protections. You know, and I think there's, the longer, you know, the delay ticks on, the more nervous I get. Not about the trial, which is really important, of course, but also just about what the court is gonna say about how subject to law the president and an ex president is. And it seems like if it says the president isn't really subject to ordinary legal checks, it could be just really emboldening of the most aggressive efforts. So things like, yeah, reclassifying huge swaths of the federal government as political appointees rather than civil servants. I mean, there isn't a case that says you can't do that. I think everything in statutes passed by Congress and related decisions by the Supreme Court suggests that you can't. The statutory authority the president would invoke is never meant to be used this way. And there's a strong principle of nonpartisan service, you know, beyond just the very top echelons of the executive branch that has endured since the late 19th century. So all these things make me think it would be unlawful for him to try, but I'm not at all 100% confident that he would fail in the Supreme Court. And I think you're right to worry that even if he did fail in the Supreme Court, he might just sort of cross the Rubicon of outright defiance.

Jon Favreau
Lovett, how helpful do you think it is to be talking about the strategy? So on one hand, you can make the case like you don't want to make a Trump victory seem inevitable. On the other, it might help wake up some voters who aren't yet paying attention to the threat of a second Trump term, which seems to be one of the bigger challenges of the Biden campaign right now. They are having particular trouble with voters who are not paying close attention and consuming a lot of news. So I don't know, what do you think?

Jon Lovett
Yeah, well, I just, like, I think about that subset of people who are not paying that close attention and just think, well, Trump obviously can't win again.

He did an insurrection and he's been convicted, and he's so terrible, America wouldn't do that again. Kind of people that as much. As much as they lived from 2016 to, to 2024, they have sort of amnesia about how it felt before the election in 2016. My takeaway from reading the story is, and I agree with everything you said, Kate, that every person who is a part of this effort begins by saying the most important thing is stopping Trump from winning. But we want to be prepared just in case. Fine. But I do feel like the realism and, and understanding of the kind of, like, clear difference between what happens if Joe Biden wins and what happens if Donald Trump wins. I feel like the understanding of how stark that choice is seems much clearer in the ways people are approaching this than in the way a lot of people are speaking publicly about the election and their willingness to be a full throated advocate for Joe Biden at this moment, including democrats. Like, yes, like, there should be a mifepristone vault. I was. This is stupid, but, you know, there's a seed vault in Svalbard.

Kate Shaw
Yeah, there's a great New Yorker article about it.

Jon Lovett
Right? So this would be like that anti seat vault, but the.

Jon Favreau
Oh, my gosh.

Jon Lovett
And so I think that's great.

Kate Shaw
Yeah, there's not that many varietals.

Jon Lovett
Right.

Kate Shaw
It's truly just.

Jon Favreau
But, you know, that's a clickable title for this episode, the Anti Sea vault.

Jon Lovett
But there are many different kinds of advocates that are part of this movement that I think are.

I think we have to collectively figure out a way to describe this threat in a way that is clear to people. And I think part of that, yes, is about talking about how bad Trump is. But I think part of it is understanding that, man, we've got four and a half months now, whatever it is, to get Joe Biden over the finish line. And there'll be time for all the kind of intra democratic, like, the intra democratic fighting time is now done. Like, it's just, it's over. It can't be that we're fighting on television about, about worrying about Joe Biden, and then behind the scenes we're fucking building trenches to store abortion pills. Like, it just simply cannot be that.

Kate Shaw
Except if the trenches motivate people. Right? Like, sure, sure.

Jon Lovett
But, like, if you're somebody, like, I'm just trying to understand the person out there who is gonna hear about the fucking Miferystone vault and that's gonna be the thing that gets them out of their house. It's pretty much, it's a bank shot.

Jon Favreau
Look, it's a good point. And sometimes I actually think that for all the criticism, sometimes Joe Biden and his campaign as administration, you can fault them for talking about democracy and democracy, the word being sort of esoteric and more of a theoretical, abstract concept than something that's real. But I do think there needs to be a sense of urgency around, like, all of the rhetoric coming from all the democrats. Right. Because if you're a democratic official and you're acting like, you know, this is just, here's the choice, and there's this guy and this guy, and, like, it, it's not going to feel to people as urgent as this article clearly lays out that, like, a lot of people are preparing for something that seems quite scary. And, you know, it's tough because you always want to calibrate it, right? Like, you don't.

I always think about this when we're talking on this podcast. Like, I don't want to unnecessarily alarm people, but I also don't want to be like, oh, it's fine. Just vote. Show up and vote, and you'll be good.

Jon Lovett
Yeah.

Yes, it is. It is hard. I was thinking about that, too.

And, like, I, because I remember before there was, there was these sort of. There was. What was that? There was like, an Atlantic piece that sent everyone's piece. Yes.

Jon Favreau
And you know what? Barton Gellman, he's now part of this, and he left the Atlantic, and he was like, I'm going in the trenches. I'm digging the mifeprestone trench. Right? No.

Jon Lovett
And I.

Jon Favreau
This has become a running.

Kate Shaw
It's in Seattle, but the trench protects the building. That's not. The drugs aren't in the trench, right? Yeah.

Jon Favreau
They have to be in the vault.

Kate Shaw
The trench just surrounds the vault. Keep things clear.

Jon Lovett
This is just foundation work. Just foundation work.

Jon Favreau
Everyone's. Yeah. Jay Inslee is in the vault.

Jon Lovett
Yeah, no, he's got a hard hat. He's cutting the ribbon.

But no, but I think. I think, like, I guess what I'm. I guess I'm trying to say is, like, I completely, like, I'm glad that there are people doing this thinking. I am glad that people are taking this threat seriously. I'm glad people are making the decisions you would make if Joe Biden was behind by one point in a bunch of swing states, because he is. That's exactly right. I'm more thinking, like, okay, how do we make this feel as real to the people doing this preparation as to all the people we need to bring on board? And because, look, Joe Biden has given big speeches about democracy. I think they're important. I think it's his motivation. And I think, like, we should embrace, like, Joe Biden should speak authentically about why he's running for president. But I do think it's like, how do we make real for people the threat of schedule f, right. How do we make real the Comstock act? How do we, like, convey this? And I think part of it is, like, finding a space between the kind of broad, abstract, like high dudgeon, like, Donald Trump is a dictator. Donald Trump is gonna. Is an authoritarian, bully, like, broad language that I think is just, honestly noise to people, as true as it is, without underplaying the threat. And I think part of that is just, it is just sort of, this is what the 2025. This is what his policy policies are. This is what he's proposed. How does that sound to you? Like, these. These. These policies are dangerous and scary when they're described without any spin on the ball, with, like, without sweetener?

Jon Favreau
Well, it's one of the reasons I'm, like, so glad Kate is here to talk about this story, because I just recently saw some polling where they presented voters with project 2025 proposals, some of Donald Trump's campaign proposals. And the first order problem is a lot of people haven't heard of them. Right. But then there's a second order problem, which is you present voters with these policies, they don't like them. They're very opposed to them, even the undecided voters, even soft republican voters, but they don't think that it could actually happen. And when you ask them why, the first thing they say is, or most of them say democrats will stop it from happening in Congress. Democrats in Congress. And the second thing they say is the courts will stop it from happening. So I do wonder how we, I think there's another, we have to connect one more dot for people, which is like, and it's not just Trump spouting off bullshit or democrats, you know, crying wolf here. This is how he will have the power to get it done. You talked about, Kate, some of the proposals that the courts should rule against but might not. What are you most scared of in terms of the Trump proposals that you think he really will be able to get done and will pass legal muster?

Kate Shaw
So both his proposals and some of the project 2025 stuff, if I can sort of take those together, I mean, one with mifepristone to stay on the topic, project 2025, it's like 900 page fever dream, has a couple of really scary, I mean, has many, many really scary things in it, but it actually suggests having the FDA to revoke the approval of mefopristone, so rendered an unauthorized drug entirely, like that's in there, and reviving enforcement, which you just mentioned, of the Comstock act, which is this 1873 victorian anti vice law that could be used to basically criminalize sending through the males, anything that could be used in an abortion. So not just pills, but also potentially surgical equipment. Like it could sweep more broadly than just medication, abortion, certain forms of contraception. There was an amendment that took like regular birth control pills out from the Comstock act. But IUD's things like that, those could also very much be targeted. So that stuff is really scary. And will the court stop it? I mean, on Comstock, I think there's lots of ways that enforcement of Comstock, I think, is both inconsistent with maybe the First Amendment and conceptions of liberty that are pretty well settled, although Dobbs unsettled a lot of them. So I think Comstock is obviously unconstitutional in a pre DOBBS world. I'm not sure post dobbs it obviously is. And in terms of directing the FDA to revisit at the Mefpristone approval, you know, the president doesn't typically just give directions to agencies like that.

And there are statutes that say the FDA is supposed to review drugs for safety and efficacy. But courts just, again, back to an answer I gave to you earlier. Courts just have not been confronted with a question of an agency saying, we did what we did because the president told us to, and project 2025. And a lot of the Trump team's rhetoric right now is all about vindicating democracy. It's really pretty perverse. But what they might say to the courts is, we promise to do all of this, and then we did it. And so democracy has been sort of successful. And for a court to undo all of that would be fundamentally anti democratic. And so if there are kind of, like, gray areas in the law, the court should resolve those in favor of, like, a democracy principle and let, you know, let these actions stand, even if they're inconsistent with science and best practices and things like that. So I think I just come back to an answer I gave before, which is that a lot of it is unsettled, and I think there's a very good chance that some of it could be upheld. And I think that immigration is also a place where. So to pivot for a minute to immigration, a place where the executive has a lot of delegated authority from Congress. And so that's a place where. And where courts are not typically, as you know, likely to second guess discretionary judgments made by the president.

And the insurrection act is famously sort of vague and susceptible to abuse and manipulation as written, but it just hasn't been used much. And so courts just haven't been in.

Jon Favreau
A position of, yeah, you want a law that allows the president to call up the military and use it against american citizens to be as vague as possible.

Kate Shaw
That's optimal.

Jon Lovett
But it's all you. Just what you were describing earlier, just all of these laws were written in a way that presumed a certain level of democratic and republican small r, small D, fealty, Mike Pence, being able to overturn the election. Of course, that's not there, but they found it there, right?

In the 2025 document. They talk about basically using that they can ban pornography and define pornography to basically include anything that makes reference to transgender people. Right. That is an abuse of any of the law in any way that you could read it. But not if some republican, not of some MAGA appointed Trump goon who had got their fucking law degree in the mail two weeks before being nominated, decides that it's okay.

Jon Favreau
You mean Eileen Cannon?

Jon Lovett
And she's not the only one. There's a few people in that graduating class. The raisin brand two.

Jon Favreau
Future Justice I.

Jon Lovett
Justice cannon. Oh, Jesus, that's terrible. Yeah, we should have. What was the name of the Bush appointee that got withdrawn?

Jon Favreau
Harriet Meyers.

Jon Lovett
Yeah, we should have let Harriet Myers throw Harriet Meir should have gotten through. That was a mistake. We blew that one.

Kate Shaw
Well, that was. That was him there.

Jon Favreau
We.

What did we do? We didn't do anything.

Jon Lovett
We should have gotten behind it.

Jon Favreau
We should have.

Don't say that, too. That'll be Biden's next.

Anyway. Project 2025 is bad. Go tell your friends about it. Spread the word. Project 2025. It's not great.

That's it. It's not great. Check it out. It's pretty scary. In the courts, you cannot count on the courts and you cannot count on, even if Democrats control Congress, because part.

Kate Shaw
Of this, a lot of it's unilateral executive stuff.

Jon Favreau
Yeah, well, part of what you're referencing is that they believe in this unitary executive theory, right. Which is the idea that all power is invested in the executive branch with the president. Right. And so the entire federal government, everything that's not Congress in the courts, every federal agency, even if it's independent, like the Department of Justice or the FTC or the FCC or any of these, that this theory is. No, no, no. They all work for the president. And so Congress doesn't get to check them and the courts don't get to check them. It's the checks that they have on the president are their only checks, and otherwise, the president has all power.

Kate Shaw
Yeah. And again, like, that's really, it's wildly inconsistent with our kind of constitutional tradition. The DOJ has enjoyed a degree of independence since it's existed, but there just isn't, you know, there isn't a Supreme Court decision that says that there isn't even anything explicit in the statute. It's really the norms and customs and practices of the Department of Justice and the forbearance of presidents who have respected this idea of an independent chief prosecutor. And, you know, obviously, none of that is secure under a, you know, project 2025 slash Trump administration. And so weaponizing DOJ, as Trump has explicitly promised to do, to go after political adversaries, is something that, you know, would be challenged and the challenge would rely on, again, an under specified constitutional principle that I think is a very real one. But this really formalistic group of justices that is willing to just sort of read the words of the Constitution and only some of them, like article two, the one that empowers the president, is in some ways the most important one, and there's a few others. Second Amendment, the religion clauses of the First Amendment. There's like, you know, this list of preferred provisions, but I'm not sure there's anything that this court would see as allowing it to second guess a presidential effort to seize complete control of the Justice Department.

Jon Favreau
Very cool. All right, two quick things before we go to break.

If you would like to hear Kate provide more brilliant legal analysis with two people who are much smarter than me and Lovett, listen to strict scrutiny if you're not already, which you're crazy if you're not. You can listen to Kate and Melissa Murray and Leah Litman. I know you guys just did a show at Tribeca. It was a great show.

Kate Shaw
Thank you.

Jon Favreau
And you have a sold out show coming up Saturday. Indeed we do. Any sneak preview you can offer there?

Kate Shaw
I think I'm forbidden from providing any sneak preview, but we have some very exciting guests. That's, I think, all I can say.

Jon Lovett
Interesting.

Jon Favreau
And that will be on Saturday the.

Kate Shaw
22Nd, and then in your ear holes the morning of Monday the 24th.

Jon Favreau
Outstanding. All right, everyone, subscribe to strict scrutiny. Also, Los Angeles listeners, this Sunday, June 23, joined Votesave America and over 20 of your favorite bakers at Bake Save America.

What a segue.

Jon Lovett
I didn't know about this.

Jon Favreau
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Jon Lovett
But that's cool.

Jon Favreau
Yeah, that's very cool.

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Of course they do. When we're out of fucking town.

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Jon Lovett
It's called democracy. Or else.

Jon Favreau
There we go. Defending democracy has never tasted so good. Head to vote. Saveamerica.com. bake to get two pastries in your.

Jon Lovett
Hand and a book in your mouth.

Jon Favreau
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Jon Favreau
So, speaking of the legal stakes in this election, at a big fundraiser in Los Angeles over the weekend with Barack Obama and Jimmy Kimmel, Joe Biden had the audacity to criticize Kate's dear friends on the Supreme Court, probably because Lovett, Tommy and I were there egging him on. Let's listen.

Jon Lovett
So it's been almost two years since.

US Cellular
The largely Trump appointed justices in the.

Jon Favreau
Supreme Court overturned Roe versus Wade.

Jon Lovett
And I think we are all wondering, what can we do about this?

Donald Trump
Elect me again. I tell you why? No, I'm not just saying.

The next president is likely to have two new Supreme Court nominees. Two more. Two more.

He's already appointed. Two that have been very negative in terms of the rights of individuals. The idea that if he's reelected, he's going to appoint .2 more flags upside down. But by the way, not on my watch.

Not on my watch.

Jon Favreau
Yeah, yeah.

Jon Lovett
So the point was good.

The broad strokes argument, I respect.

Jon Favreau
We were there into our last segment. He also, President Biden, towards the end of the night, just interjected and very loudly, institutions matter.

Which I immediately texted, so we love enough. I was like, let's look for another slogan. But I agree with him in principle.

Jon Lovett
I mean, he's, somebody shouted gay rights from the audience. And then, and Joe Biden went, not on my watch. But I think he meant.

Jon Favreau
No, no, no, no. Because someone. No, what happened is someone. Saul, cut this for us. Thank you, Saul. Because that went on for two minutes, and it was Jimmy speaking and Obama speaking. So we just got the good stuff from Biden. What happened is someone yelled gay rights. And then Obama said, because you couldn't really hear them, but Obama could hear them. And he said, oh, he's talking about maybe. Maybe they'd undo same sex marriage. And then Biden said, not on my watch.

Jon Lovett
Because to me in the room, I didn't catch that. Because for me, it sounded like someone said gay rights. And Biden went, not on my watch. I knew he meant more like, not what Trump would do on my watch. You get it? You get it.

Julia Roberts was there briefly for, like, five minutes.

You can't put her on the invite. Never show up at the very top for 5 seconds. She's like, see you later. I'm going to fucking. I'm back to Mandeville Canyon with me.

Jon Favreau
Kate, was Biden's critique of the Supreme Court more or less appropriate than when Obama destroyed the constitution by respectfully criticizing the Citizens United decision in front of the justices during the State of the union?

Kate Shaw
I love imagining Sam Alito's poker face. If he had actually been in the front row of that fundraiser.

What kind of flag? In retrospect, we all should have known a little bit more about what kind of guy that was. Was Sam Alito right? Like. Cause he's. He's shaking his hand. No, he could barely contain himself, control himself in that state of the union. And none of this really should be that surprising.

Jon Favreau
Were you in the counsel's office at the time?

Kate Shaw
I was.

Jon Favreau
Cause I remember for all that whole controversy, by the way, for those who don't remember, this is a big.

Barack Obama, during the State of the union, criticized Citizens United, and Melito was shaking his head in the front.

Kate Shaw
Not true. Not your mouth.

Jon Favreau
And it was this big controversy that followed for the next couple days, several news cycles, where, believe it or not, it wasn't like it is today, where everyone's like, yeah, obviously, Sam Alito is like, you know, flying flags upside down and doing crazy shit. It's like, what did President Obama do to civility and our institutions by bringing up a decision?

Kate Shaw
I hated that news cycle so much. But, like, Isaiah was the villain of that, and somehow the press decided that Barack Obama was the villain. Like, what?

Jon Favreau
We were like, I remember in preparing the speech, and we ran it by you guys in council's office, and we.

Kate Shaw
All we stand by.

Jon Favreau
We really thought, like, we don't want to go too far here. So what can we say that criticizes the decision without really criticizing the court? Like, in retrospect, we were too careful.

But it's like, it's so funny.

Jon Lovett
It was a baffling controversy. It was a, even at the time, it was like I didn't even, he was furious. He said he wasn't ever. He never. Has he been back. He said he wouldn't go back. And then I don't know if he ever came back.

Kate Shaw
I'm not sure he's been back. You might be right.

Jon Lovett
I think that he said that I was wrong to even be there.

Jon Favreau
Put that on the Obama accomplishments list.

Jon Lovett
Then simulito, gotta get home to Betsy Ross.

Jon Favreau
I don't know. I thought Joe Biden sounded like he was listening to Dan Pfeiffer's message box there. I thought that was good. Talking about the supreme Court.

Jon Lovett
Yeah. Dan wants everyone to talk about the supreme Court.

Yeah. Maybe Dan is reading message box or maybe people around. I'm sorry, Dan is reading message box. Maybe Joe Biden.

Kate Shaw
Maybe Joe Biden's not even reading mess.

Jon Lovett
Maybe Joe Biden's reading message box.

Jon Favreau
I do think that talking about the Supreme Court from Biden is part of this takes. So we've asked about this to smart polling people and they'll tell you, well, you start talking about institutions and processes and voters, sort of their eyes glaze over. But I do think talking about the consequences of a second Trump term and what the court looks like there and what the court looks like under Biden, particularly when the court under Trump is not just the court under four more years of Trump Trump, but potentially a couple decades. Yeah, right.

Kate Shaw
I mean, because he, when he was in the White House, he understood the imperative of appointing ultra conservative and super young judges in the lower federal courts. And I think his three appointments to the Supreme Court Trumps were, you know, very, very conservative, but still not as conservative as Clarence Thomas and Sam Alito in certain respects. So I think that if he has a chance to make more appointments since Donald Trump does, it will be very, very young.

AilEen Cannon, Matthew Kazmerek, that kind of profile of arch conservative and willing to be quite lawless jurists, because in some ways, Amy Coney Barrett and Brett Kavanaugh have occasionally joined the Democrats. I don't see a future Trump appointee being sort of in that kind of category. I do think it's interesting Biden starting to criticize the court and justices on it. I think that feels like a development, doesn't it? This does not come naturally to him.

Jon Favreau
Well, you know, there's this whole fucking debate after the fundraiser about, like, this deceptively edited video from the New York posted of, like, did Biden freeze as he was walking off stage?

Really? He just stopped for a minute. He was waving, and he looked in the crowd and he just saw Lovett. And he noticed he was back from survivor. So it caught him off guard.

Kate Shaw
Understandable.

Jon Favreau
But what really.

And then liberals fought about that and the Biden campaign got mad about it. But I thought that was the news out of that event. And the Biden campaign tweeted that clip, so they were clearly happy with the answer.

Kate Shaw
Yeah, he's obviously a creature of the Senate and of the Senate Judiciary Committee and I think has had this longstanding respect for the court as an institution. And a lot of people have, I think, myself included. But I do think that at a certain point, reality has to step in, and it's not an institution that is performing consistent with the basic obligations of a court in a democracy inconsistent with a limited role vis a vis the Congress and the president. It's just, it just isn't. And so I don't, I think that Biden may be realizing that it's important to talk differently about the court than courts of yore if the court is not gonna act like a court at all, honestly. And so I really hope that that's a shift that we're gonna see going forward.

Jon Lovett
I hope so. Yeah, I agree. I also think part of this is Dobbs, but part of this is also just the rampant corruption on the Supreme Court that I think is anathema to people. And I do wonder. Right, like, people who understand the stakes around the Supreme Court are probably people that are already part of our coalition. So it's about reaching people and making them understand the stakes for the Supreme Court, especially when there is polling that shows, well, Dobbs happened on Joe Biden's watch. Right. Like, abortion went away when Joe Biden was president. Right? Like, and the question is, do you view that something to get around, or is that this issue important enough and big enough where you actually want to try to do the work to educate the millions and millions of people who need to come to understand the stakes of the Supreme Court in a way that they currently don't?

Jon Favreau
Yeah. Well, just talk about some of those upcoming rulings and the stakes and the consequences.

Wanted to ask you about a few of the recent big decisions and the big decisions still to come. We talked about Preston quite a bit, the vault. But they also, the Supreme Court on Friday, I know you guys did a bonus episode on this. They overturned the Trump administration's regulatory ban on bump stocks put in place after the Las Vegas shooting.

Your take on the decision there?

Kate Shaw
It's a pretty shocking decision. So for 100 years, machine guns have been banned under federal law. And there's also a provision that says that an accessory that converts a semi automatic gun to a machine gun is also band. And Clarence Thomas, for a six three majority in this hyper technical reading of the phrase single function of the trigger, decides that, because what a bump stock does is it internally does actually have a trigger moving many, many times. So they can shoot, these rifles equipped with bump stocks can shoot up to 800 rounds a minute. But it's not, according to Justice Thomas, a single function of the trigger. If you look inside the gun, and he illustrates this with six kind of whimsical diagrams and a gif, truly deranged document. Like, that's the opinion. And I mean, again, they're, like, weirdly playful. The images of the inside of a gun, it's sort of hard to describe, but he's obviously luxuriating in this kind of, like, you know, internal investigation of the mechanics of a bump stock and comes up with, like, well, it's not really a single function because a lot is happening inside. So it's not actually able to be prohibited under the statute. And so the ATF, under the Trump administration, which issued this regulation banning bump stocks, that regulation falls. And the, you know, 500,000 bump stocks, clearly, that are already out there are, again, fully legal. And, I mean, that is just, it's both a terrible opinion when it comes to reading a statute and understanding what a statute is trying to do and interpreting consistent with that.

But obviously, it has enormous on the ground consequences in terms of reintroducing, again, hundreds of thousands of these wildly lethal accessories into the broader population. I mean, we saw what one of these things did in Las Vegas, and it could happen again.

Jon Favreau
And, you know, just to, like, close the loop for people here, Senator Schumer said, all right, I'm going to bring this up. And because basically, I think Alito said in a Congress, Congress wants to ban these, Congress can do it. So Schumer says he's going to bring it up. And Lindsey Graham said, I'll block it no matter what. Even though, again, this was something that the Trump administration did, and then Republicans in the Trump administration supported this when.

Kate Shaw
It happened, and the NRA supported it. This was an NRA was okay with this regulation, although there's some speculation maybe they were okay with the regulation because they thought it'd be easier to undo down the road than a statutory change. But regardless, this is Thomas way, way right of the Trump administration and the NRA in this case.

Jon Favreau
And now the Republicans in the Senate have taken their cue from Thomas, and now they're refusing to do this. And so when people hear about the decision and get upset that the Supreme Court did this thing on bump stocks and Joe Biden couldn't fix it and the Democrats couldn't fix it, it's because Republicans have the votes to block it and they have a Supreme Court that decided to do this. And so it's like, those are the stakes of the election right there. Can you talk about the decision in Vidal versus Elster? Cause it was a little bit under the radar, but I heard you had some larger concerns about it.

Kate Shaw
I do. So it's like this quirky little case. This guy, Steve Elster, tried to get a trademark for the phrase Trump too small after this memorable Marco Rubio Donald Trump debate exchange about Trump's hand size. You guys remember this?

Jon Favreau
Yeah, not so much about hand size, right, right.

Kate Shaw
Explicitly innuendo.

Jon Lovett
That's what we're talking about there. Talking about innuendo.

Kate Shaw
Right.

Jon Favreau
This is like, this is like a. This is like a Lincoln project tweet come to life.

Kate Shaw
Yeah, yeah, basically.

Jon Lovett
Yeah. You walk around the tweet three times while saying a hebrew prayer, it becomes a kind of a monster.

That's about a goal, a golem for Rita, fellow tribe member back there.

Jon Favreau
Anyway, Kate, go on.

Kate Shaw
So this Elster tries to get a trademark on the phrase Trump too small and is turned down by the trademark office because there's a prohibition in federal law on getting a trademark with somebody else's name without their consent. And obviously, Trump does not consent to the Trump two small shirts.

So he brings the First Amendment challenge and says, well, you know, the First Amendment protects my right to make, you know, get a trademark on this phrase. And the Supreme Court had actually struck down other trademark laws that had these provisions that prevented registration of, like, scandalous marks or immoral marks or derogatory marks. So actually, there had been been successful challenges along these lines in recent years. But this guy, this t shirt, a registrant, is unsuccessful. The court rules against him unanimously. But I think what's really distressing about this opinion, it's like the court has so many cases it's deciding right now, it's really hard to keep track of all of them. But there are very scary embedded suggestions in a lot of these opinions, and this is one of them. There's a suggestion in this opinion that when you're deciding whether a law, this is a trademark law, but in general survives a First Amendment challenge, you have to look to history and tradition. So what have we done historically with like, common law treatment of trademarks and whether you could use people's names without their agreement? And the decision, at least for the plurality of the court, is that history and tradition tells us that, yeah, that, no, you don't have a right to basically use somebody's name in this way.

But history and tradition is not how we have typically assessed the First Amendment right. Like we've, until the 1960s, there weren't really heightened protections for media if you want to bring a defamation claim. So that's the New York Times versus Sullivan case. Early american history is not at all protective of First Amendment rights. Like, you know, the alien and sedition acts are these very early statutes, right, that allowed that criminalized political speech.

And those were understood as consistent with the First Amendment. So I just think there is, theres potentially a really ominous set of notes in this opinion about how, you know, both Dobbs, which youve talked about, and Bruin, this big gun case from 2022, are both about how important history and tradition are in deciding what the constitution means. And this Elster case suggests to me the court is gonna use that method across maybe every body of law. And our history and tradition is pretty dodgy in a lot of ways. And if that's what answers the question of what the constitution means today, I think we are all in a lot of trouble.

Jon Favreau
This is like they wanna party like it's 1776 coming back.

Jon Lovett
Exactly.

Kate Shaw
Sometimes 1868, depending on the day, coming.

Jon Lovett
Back to the 2025 project and the pornography. Just wanna go back to the porn.

Kate Shaw
Yeah, absolutely.

Jon Lovett
Yeah, yeah, just get that on.

Kate Shaw
It's not exactly history and tradition.

Jon Lovett
All right, you got Joe Biden to say abortion. Next challenge, level two, we're gonna get Joe Biden to say pornography.

Kate Shaw
I don't know that his people should take that advice. I'll just go on limb.

Jon Favreau
We talked a little bit about the immunity case. Is it now officially, like, too late to start a trial before the election if it comes this week?

Kate Shaw
I mean, Judge Chukkin is a very impressive district court judge. I wouldn't rule anything out, but, you know, that's, I would say it's in the single digit percent likely at this point, an actual trial. But, you know, there are ways that she could figure out how to hold a hearing potentially on this question of what is an official act and what is not. Because if that may be how the case gets resolved, yes, official acts get some kind of immunity, but the indictment that Jack Smith brought has some official acts and some things that were clearly just conspiracies by an individual sort of outside. Outside of kind of the scope of the presidency. So some official acts, some non official acts. So it's been at least suggested that she could hold a hearing on this question of what is official and what is unofficial from the indictment, and that that could serve as something like a mini trial with a public facing component. So it wouldn't be a full trial, there wouldn't be a jury verdict, but it would be something.

Love it. Looks like that's weak sauce. That might be right.

Jon Favreau
Boo.

It's opening on Broadway next week.

Jon Lovett
That's how stuffs came to be.

Kate Shaw
Hey, hey.

Jon Favreau
Let's exist in a hopeful world for a minute. Are there legitimate reasons it's taking so long for them to release this decision that aren't just the conservative majority dragging its feet?

Kate Shaw
There are other reasons, but none of them are reasons that are hopeful? I don't think so. Conservative majority dragging its feet is, I think, one and two. Just like writing a complex, complex opinion that sets forth some kind of immunity that has never in american history existed, immunity of an ex president from criminal prosecution is just a wildly novel idea. And so if you're defining what the kind of outer parameters of that are, it might take some time, but, you know, the longer it takes, the less likely you have an opinion that just basically says affirmed, which is, you know, the DC circuit rejected the immunity arguments very forcefully. One word, right? Affirmed is honestly what the Supreme Court opinion should say if it had to take the case at all. And obviously, the longer it takes, the less likely that is. So, you know, dragging their feet and writing something, you know, complex, but protective of the president, I think, are the two theories, and neither is good.

Jon Favreau
I just have, like, a process question about it. Like, I know it was the last case they heard. Is there something to the order for it being like, they could just say, no, this is important, and we want to do this?

Kate Shaw
Absolutely. There's no, they don't have to, like, decide the earlier argued cases first, nothing like that. You know, the complex cases, there are opinions right now flying back and forth inside chambers because I'm sure there are multiple writings and dissent and all that. So it does take time to kind of hash out how the opinions talk to each other. But think about the Colorado disqualification case. Right? Like, that was two weeks, and it was, and it was. It was a short ish and there was two separate writings, but they wanted to move quickly because it was Super Tuesday and they thought they should speak before the actual voting happened on that day, and they did. So if they felt a similar sense of urgency here, we would absolutely have had this opinion weeks ago.

Jon Lovett
Can I ask you. So, obviously, like, you're saying, they're contemplating an argument that has never been made before, but also they're dealing with an unprecedented situation of a former president being prosecuted in some cases for crimes he committed while being in office.

If you were put aside the politics and the reality that we're all living in and the fact that Sam Alito's wife is flying fucking rebellion flags outside or, I don't know, harbor property, but is there a way that you can see to, like, there are complexities here that actually do need to be grappled with that? Like, you know, if this weren't such an sort of obvious situation that a president might be pursued for what was being construed as crimes for while a.

Kate Shaw
President was in office, you know, I think a charitable read would be. They're thinking seriously about this question that there could be edge cases where something we might want to protect that a president engages in is subject to a, you know, spurious prosecution. And so it actually is important that there be some principled protection of the president. But I think they don't have to touch any of that because this is an easy case. So I think they can just write something that says we're not going to. If they want to, they could say we're not going to foreclose the possibility of some kind of immunity, but it's obvious that no such immunity exists here, remanded. I think that that's the principled way the case should be decided. If they want to even entertain the possibility, I think they could also just reject it wholesale affirmed, as I suggested. But either one would be fine with me.

Jon Favreau
So this whole. I think it was Gorsuch that said, we're writing an opinion for the.

You don't have to.

Kate Shaw
No, you're not supposed to. Right. Like, if there are very hard questions that touch these deep kind of constitutional dynamics and relationships and powers, and you don't have to answer them, you're actually really not supposed to.

Jon Favreau
Yeah. What are the other big ones we're waiting on besides immunity that you are thinking about?

Kate Shaw
I mean, there's the other J six case, Fisher, which is not about Trump, but about a lot of other individuals charged with January 6 related offenses. And two of the four Trump charges are under the statute that's being considered here. And so that case and a lot of the other other January 6 defendants cases could be thrown out. That was the tenor of the oral argument. That's another really important one. You have another big abortion case about emergency care for individuals who might, under extreme circumstances, need an abortion to preserve their health. That's the Emtala case. That one we're still waiting for. There are a bunch of cases about administrative agency power that are, again, difficult to talk about in the same way that schedule F is difficult to talk about and communicate about, but are fundamentally about whether government gets to act to protect health and safety and well being. Or the court is gonna decide for itself, like, what a single function of the trigger means on, like, what an acceptable amount of pollution in the air and water really looks like, or whether expert agencies are going to get to make those determinations. Like four different cases the court is considering present variations on that question. And so sometimes dry and technical, but enormously high stakes for people's lives.

Jon Favreau
Well, as you guys say, on strict scrutiny, time for some bad decisions.

Kate Shaw
There's a 23 plus outstanding. I think they're almost all going to be really bad.

Jon Favreau
Attractions. Kate Shaw, thank you so much. Thank you for having me for joining positive America. It was such a pleasure. And we will see you again on Dan and Tommy are going to do Thursday's episode, and so we'll post that on Friday. Bye.

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The Plan to Fight Trump's Second-Term Agenda

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2: Comparing Biden and Trump's Policies

3: Legal Implications and Future Prospects

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