The Birthright Citizenship Case Is Actually Something Differently Terrible

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:57 Thomas: Hello and welcome to Opening Arguments. This is episode 1158. I'm Thomas Smith, not a lawyer. That over there is Matt Cameron, lawyer. How are you doing, Matt?

0:01:07 Matt: Is listening to the Supreme Court argue about nothing for no reason, so you tell me.

0:01:11 Thomas: Oof, yeah. I am still mad about the last one, the religious case. Like that one has me so mad that I need more time before I can listen. But you know what? That time has come and today we are going to listen to a little bit of some terrible opening arguments. Can't wait.

0:01:26 Matt: But it'll be a good episode of Opening Arguments because we've got that, we've got some patron questions, and we've got a tasty footnote.

0:01:32 Thomas: Course loving the patreon questions loving the tasty footnote yeah patreon .com slash live hey every time we post that like rapid response friday thread please uh if you haven't make sure to hop on check it out you can post a question you can ask like you know request something for matt to talk about to break down and that's been great lately you know it's like really good way for us to make sure we're covering the right stuff so thanks so much for that patrons

0:01:49 Matt: Yeah, love it. This morning's argument, though, just to tease this, was not actually about birthright citizenship at all.

0:01:58 Thomas: Ah it's weird because the label on it seems to be birthright citizenship

0:02:00 Matt: So yeah, false advertising. And it's actually about something even more important, potentially. So we have to talk about it. And I think the Supreme Court's trying to give the Trump administration, well, I think some kind of compromise, but it's a really bad one, as you might expect. So We'll have to Talk About It.

0:02:16 Thomas: Oof not looking forward to that all right well we have that plus we have some patron stuff and we got that as you said tasty footnote those have been I'm excited those have just knockouts lately it's my favorite segment so can't wait I like being surprised I don't even know what matt's going to talk about on any given footnote that makes it all the better and so uh yeah well why don't we get to it if you want to avoid the breaks including the one you're about to hear uh go to patreon .com slash law avoid the ads get the goodies all the stuff we are trying to make high court happen I don't want to jinx it but we're trying to try to avoid where it's scheduled it still hasn't been recorded but I'm so excited about it. I just wanted to share. And also, I think we're going to do the traditional YouTube Q &A thing this time, this month, finally. Because it's just, yeah, I miss it. I miss It. So that'll be a lot of fun. And you can get details and all that on Patreon .com slash law and no ads. So thanks to those who pledge. And we'll take our break and get to it.

0:02:31 Matt: That's the way. Oh, it's happening. Sure. Let's do it.

0:03:10 Ad: [Ad break 1 — ad music]

0:03:10 Thomas: All right, Matt, what are we starting with?

0:03:11 Matt: Well, let's start with a set of patient questions, actually related questions. So I do appreciate these and it's kind of continuing conversation. This question has been coming up a lot recently, I Think for pretty obvious reasons. So I want to make sure that I'm as definitive as I can be on how to deal with ICE in your community, because we're getting so many different questions about that.

0:03:28 Matt: And there was actually just a statement from my US attorney here in Massachusetts yesterday about interference with ICE, because you might have seen there was a very well -publicized case out of Worcester, about 50 miles west of here, in Central Mass, where officers, there was particularly brutal arrest, and the neighborhood showed up to try to protect these people, and there was young girl who was hurt.

0:03:45 Thomas: Was this the lady with like a baby and stuff?

0:03:47 Matt: Yeah, it was bad. It was bad."

0:03:48 Thomas: What in the world was that, Matt? What is happening?

0:03:50 Matt: So of course, the US attorney's response to that is not to say that ICE is going to be more careful in the future, but to issue a fascist statement about how the interference with ICE operations around Massachusetts has been disturbing, to say the least. This conduct poses significant public and officer safety risks. It is conduct that should be vilified rather than glorified.

0:04:08 Matt: Vilified. We should be Vilified for being concerned about our neighbors. I will not stand idly by if any public official, public safety officer, we've been talking a lot about how much they want to come for public officials, organization or private citizen acts in a manner that criminally obstructs or impedes ICE operations. The U .S. Attorney's Office, along with our federal partners, will investigate any violations of federal law and pursue charges that are warranted by such activity. So I've been getting a number of questions along the lines of what one of my favorite patron names for May has asked. And this is from Wit of Haziest Porpoise. Wit of Hazeist Porpoises. That's fun to say. It's pretty good. It's very good. And I'm sure that will be suspended soon enough, too. But but enjoy your hazy porpoise wit while you can. Oh, fascism is funny. So, I would really appreciate a deep dive in what actions private individuals can legally take questioning and challenging ICE agents performing arrests, particularly when they're not in uniform. The stories about them refusing to produce warrants, badges, or ID, but claiming that anyone even asking for them is committing a crime are very distressing. And not a gun owner, but I happen to live in an open carry state. What would happen if an innocent bystander thought she was stopping a crime and pulled her weapon on or even shot at a non -uniformed ICE operative? Quick addition, the question of whether or not the operatives assisting ICE are actually ICE agents or reassigned agents of other federal agencies or just non -law enforcement enlisted to act as ICE is pretty huge as well. And he links to an Alison Gill piece that I have serious issues with, which maybe we'll talk about.

0:04:43 Thomas: Wit of haziest porpoise. I love it. That's great. Oh, OK.

0:05:32 Matt: Not personally a fan, but that's, I know maybe some of our listeners are. But Mr. Haziest Porpoise, let me just address this because first of all, this is not going to be a deep dive. There is no deep dive to be had. You should not interfere with ICE. Do not get yourself in the way of an arresting officer making an arrest. Now, Now, you should be prepared to face federal charges if you do, I should say. I mean, if you want to face civil charges, that is up to you, but you should know that could happen. And we talked about this a couple of weeks ago as well. But what he's asking really is about when they're not in uniform, when they won't identify themselves and when they are just in masks and dragging people away, right? Because that does look a lot like a kidnapping. And I am going to be very careful about answering that question. I don't think there is a deep dive to be had, like I said. I think a lot of the community members think that they need to tell everybody around them who they are and identify themselves. But the right goes to the person they're arresting. Now, again, as a member of the community, you have a right to be concerned about your neighbors. You certainly if there's a language issue, you Have the right to try to help to translate or to try to make sure that person understands their rights to know who's arresting them. But I guess if you really think there's a kidnapping happening, officially, my advice is call the police because they will come

0:06:31 Matt: And investigate and because they have to identify themselves to local law enforcement if they're going around dragging people off the street, write down the plate number and do your best to identify them. But you know, I'm not sure why people seem to think I'm going to say go ahead and attack an ICE officer. I'm not gonna say that. Sure.

0:06:41 Thomas: It's I think everyone is expressing and I totally get it, too. I feel the same way. Like they want to express like, hey, this is a reason why it's not a good idea for ice to be unidentifiable and picking people up off the street, which is how do we know it's a good thing? Kidnapping but then when it comes to like well what how will that change or would that change like our actions there's not really anything there I mean it's like if you're witnessing kidnapping then do what you would do in that situation like matt says I mean you probably call the police I think we're all thinking there's going to be some altercation that happens where someone in an open carry state shoots somebody and maybe that'll happen but there's Not really anything to say other than you do what You do if you think it's a kidnapping and then if it's not a kidnapping that's ice and you can't do that so there's no I don't you know it's everybody Everybody seems to be like trying to get at some different answer, but that's pretty much all there is, right?

0:07:29 Matt: And the official answer of this podcast and from both of us is do not touch an ICE officer, do not shoot an ICE officer, don't do anything illegal at all. But I do want to address the other question, which I've been seeing a lot, and I just want to talk about this for a second, this idea that maybe some of these people aren't ICE or aren't even law enforcement at all, and that's something that Alison Gill is spreading.

0:07:34 Thomas: Yeah. It's not a good idea. Really?

0:07:49 Matt: And I think that's a dangerous thing to say.

0:07:51 Thomas: Based on what?

0:07:52 Matt: Nothing. She says that in the piece, too. She said this is just pure speculation, but I just think that there must be be some, you know, white supremacists, J -sexers, Proud Boys that are getting deputized going out there and covering their faces. The thing is, ICE officers are not professional. Like, the people keep saying, well, they're so unprofessional. They're wearing shorts. You know, they are wearing masks.

0:08:07 Matt: It can't be real with federal officers. Well, I've known a lot of ICE officers. Like that's kind of how it is. I mean, this is what they do. And it is dangerous. I mean, again, maybe we'll find out at some point. There is no evidence. It's never happened. Now, there have been people, private citizens individually. There have been a few cases where people are impersonating ICE officers to commit crimes and scare people and arrest people. There was unfortunately a sexual assault from somebody who claimed to be an ICE officer. Like, this is bad. It's very rare, but it has been happening. I'm sure it's always happened. But there's no proven instance of ICE actually just deputizing private citizens off the street. Maybe not that that couldn't happen, but perpetuating this idea, because I keep seeing this on social media over and over again, like every response. I don't know if you've seen this, but people keep saying, these can't be law enforcement. This must be deputized extremists.

0:08:46 Matt: These must be people off the streets that Trump is allowing to do this. And all you're doing by doing that is encouraging people to commit acts of violence against them and I just don't want to do that because that is going to make everything so much worse besides the fact that you shouldn't you know obviously attack people so I guess I just wanted to say that I think it's really dangerous to speculate about that and you know maybe wait for some proof right

0:09:05 Thomas: If there, it would be one thing. Yeah. If there was any proof of that. I mean, I think once again, it's everybody just identifying the very clear issue with this happening is how the hell do we know what it is? But that doesn't mean, you know, you can just assert that without proof. I think, are we hoping, I mean maybe just trying to think of like what the, what the the best version of this is, are we hoping someone can, who can pass a law? Congress could a state pass a lot. That's like ICE has to identify themselves. Could, who could actually pass a law that would require that or something? And that would kind of infere on federal. Yeah.

0:09:33 Matt: Yeah it would really have to be congress or ice could have its own regulation yeah yeah

0:09:34 Thomas: It might have to be. Yeah, yeah. I don't know. I almost, I feel like a state.

0:09:37 Matt: I mean I guess it's technically a state could pass a law could say that anybody making an arrest in that state as a valid law enforcement officer has to identify themselves to whoever but yeah no I mean as it is right now, they're absolutely acting shady. They're acting badly. And as we talked about before, there's 80 % of the ATF and 25 % of the DEA is running around doing this, like a third of the FBI is doing this. And they're trying to get the National Guard more involved, 20 ,000 more people that Trump is asking for now in that super fashy executive order, which is purporting to give money to people to leave. I don't know how that's going to work. There's no legal provision for that whatsoever, but they're purported they're going to basically allow you to go to an airport and have like a concierge, as they call it, a conierge service that will help you buy a ticket back and then give you $1 ,000 once you prove you're back in your home country. In conjunction with that executive order, they're saying they want to increase by another $20 ,000, and they're talking about using National Guard to do that. All kinds of legal issues, potentially, with that, obviously, which we'll talk about if they start to actually look like they're going that way. As we talked about, Texas National Guard is using 287G agreements, potentially. And Florida and other states are stepping up their agreements with local law enforcement, state law enforcement. It's bad direction. That is the state of things. That's about as deep a dive as you're going to go on that. I have a related question here I want to talk about from Joe, patron. I was wondering what would happen if a citizen declines to provide ID to ICE or to speak with them during questioning? What can ICE legally do? If ICE was doing a checkpoint, can't I just ignore them and drive through? Will they break my window if I refuse? Can they make me leave my car? How bad can ICE make my day if I am disobedient? Pretty bad. Let's just say that.

0:09:45 Thomas: That would be nice. Yeah hmm.

0:10:57 Matt: They made Raz Baraka's day pretty bad. Mayor of Newark, yeah, when he was in a public parking lot. And that was the first arrest of what I anticipate are going to be more of a blue city mayor because he was going to try to enforce basic inspection. And members of Congress are going with him who are absolutely entitled by law to go into ICE facilities anytime to inspect them. But just to answer Joe's question here, this touches on a few things I've been wanting to talk about. First of all, the difference between ICE and CBP. ICE, of course, is the internal deportation force, and CBT is the one who sets up checkpoints. Right now, ICE has no legal right to set up check points. So if you see an ICE checkpoint where they're stopping people on the highway, please let everybody know, because that would be completely illegal. Maybe we're getting there.

0:11:00 Thomas: I wanted to ask you about that. Interesting.

0:11:36 Matt: CBP can do those within 100 miles of the border. So you've heard of things like Deep Inside Washington State or Deep Inside New Hampshire. Vermont, they've been able to set a just basic highway checkpoints, they picked up a a lot of people doing that. And one of my favorite genres of YouTube video is asshole white libertarians and what I call the, am I being detained videos?

0:11:53 Matt: You might've seen some of these and it's only white guys who actually are brave enough to do this because they know that, you know, it's generally safer for them. But I wanted you to play a quick clip of one of my favorites here. Pretty good model of how to dothis honestly, at a checkpoint.

0:11:53 Thomas: Yeah of course. Yep. What? What?

0:12:19 Clip: No, I'm asking you a simple question. I'm Asking you a question, you need to answer my question. You need to Answer my question, sir. I would like to go on my way if I'm not being detained.

0:12:34 Thomas: What's that noise? What is that noise like doing a picture

0:12:44 Clip: I'm just asking you for the purposes of an immigration, I need to ask you in what country Am I free to go?

0:12:45 Matt: He's taking pictures. Yeah.

0:12:46 Thomas: With a with what?

0:12:56 Matt: Yeah, so you can stop there. It keeps going for like two more minutes. He just keeps asking that question over and over and again, which is perfect. And then finally she's he's like, no, fine. And he leaves because that's all they can do.

0:13:00 Thomas: So good. Wow.

0:13:08 Matt: Like they can't actually stop you. They have to have reasonable suspicion that there's some reason to think that you're violating immigration or criminal law, but they can always get your consent.

0:13:08 Thomas: OK, you're saying that's the way to do it.

0:13:17 Matt: It works. That actually works if you just keep asking. Now that's again at checkpoints. I'm not saying you can do that when you're coming back into the country, obviously. You have to actually show proof of citizenship to reenter. But if you're just encountering ICE out on the street or CBP out in the community, you know, if they don't have any kind of reasonable cause to believe in reasonable suspicion, that you are in violation of these laws, they can detain you. And you can can confirm that they can't detain you.

0:13:37 Matt: And so, you know, these asshole white libertarians aren't always wrong. Like, I mean, there's a point to this. And we do live in a country where we don't yet have to show our papers all the time. Now, I will say, if you are in any immigration status other than citizenship, you do actually have to prove your status at that point. If you're undocumented, you don't because you don't have any.

0:13:53 Matt: You don't HAVE to show any papers at all. But if you ARE in any other status, you ARE legally required and they CAN hold on to you because, you KNOW. And CBP has also allowed to use things like a foreign accent or even looking Mexican. The Supreme Court has upheld that, that they CAN be at least somewhat racially biased in how they decide reasonable cause. So that's why it's mostly white guys doing this.

0:14:09 Matt: But I just want to show that as an example, because this was actually in the news this week with streamer Hassan Piker. You might've seen this, getting stopped coming back through the airport. He was held for two hours by CBP. And again, this is a man born in New Jersey, flying back in from Paris. And he was asked a lot about his political beliefs, his views on Gaza. Obviously he's pretty far left and probably one of the most popular leftists on the internet. And I'm not saying that Hassan piker did anything wrong because I generally agree with him. I think is a good guy, but

0:14:35 Thomas: I'm not a huge fan to be honest with you.

0:14:36 Matt: I don't have a problem with him. But he had no reason that he had to talk to them. As a US citizen, just to be very clear, when you're coming back in, you've presented your passport, that is your proof of citizenship. And if they start asking you about your politics and everything else, you just don't need to answer. You can just say, am I being detained? Is there some reason that you're holding me? Otherwise, I want a lawyer. If you're actually going to detain me, and then they'll let you go. But just a caveat to that, though, and I just want to be very clear about this, because I'm getting this question a lot.

0:15:01 Matt: With your devices, even as a US citizen, now, if you're anything other than a citizen, they can hold on to you until they they figure things out. But as a citizen, you can't be denied re -entry as soon as you show your passport, but they can take your devices. Now they can't make you put your biometrics on it. They can't put your password on it, they can hold it up to your face and unlock it if you have a face unlock. So don't do that.

0:15:19 Thomas: Really? Holy crap.

0:15:21 Matt: Yeah, law enforcement can always do that if they have your phone, but they can Take your device and they can Hold on to it, you want to get a receipt. If they do that, they can go under for months, and they Can potentially keep a copy for up to 15 years. So generally speaking, I've been advising clients and certainly myself, I'm going to be traveling with a burner if I leave the country at all in the next three years. And I'm not sure about that, honestly.

0:15:39 Matt: But I'm going to be taking a device that has no access to any of my client information or any of my personal information or any of my logins, because I don't need CBP holding on to that. And you don't either. You don't ne d them having copies of your stuff.

0:15:49 Thomas: And again, that's as a citizen, right?

0:15:52 Matt: Yeah, right.

0:15:52 Thomas: I feel like as a non -citizen, that doesn't exactly work. I feel like I've seen discussion that that, cause that'll just be suspicious and then they'll just deny you entry or something

0:16:00 Matt: No, they can definitely. Yeah. Because there's a constitution freeze on. They can do whatever they want at that point once you're a non -citizen.

0:16:05 Thomas: Or yeah. So, but as a citizen, you're saying as long as you present your proof of citizenship, you have to be able to be allowed back in, but they can take your phone. Wow. What do you do if they do that? Like what do you, how does that work? Who do you sue? Nobody?

0:16:20 Matt: Suits. There's really no rights at all. Like I said, the best you can do is get a receipt and just hope to get it back. But people should be aware of that.

0:16:27 Thomas: Yeah. Yeah. Yeah. I mean, that's really important. I might be traveling this year. I think I'm going to, boy, I don't want to have to take a whole different phone, but man, you make a compelling point.

0:16:36 Matt: Maybe be if you can wipe it on the way back in.

0:16:37 Thomas: Just talking on pure practicality, I have to imagine there's reasons they're going to stop certain people and not just based on their own xenophobia. So maybe somebody as white as me is okay, but I don' t know.

0:16:44 Matt: Well, you're also a loud mouth, so I don't know. As am I.

0:16:51 Thomas: When I'm in a public place, no, I couldn' t be quieter. Someone would have to recognize me. I'm the quietest person in public. Never made a sound in public once, not ever to this day.

0:17:01 Matt: Oh, I just meant the thousands of hours of you on record complaining about the Trump administration.

0:17:05 Thomas: I know, but I'm saying someone would have to actually recognize my face. That would be the odds of that low

0:17:10 Matt: The Thomas Smith. That'S true. That' s true.

0:17:11 Thomas: Or my name. Wow. The one of 10, a hundred of those I've seen today. It's the one guys.

0:17:19 Matt: Yeah. Hassan Piker is a little easier to spot probably.

0:17:21 Thomas: Plus if someone hears me and recognizes my voice, I'll be like, Oh no, you don't understand. I'm Norm McDonald. Oh, Norm. Yeah. You can come back in. Thought you were dead, but yeah, come on in.

0:17:30 Matt: So in short, don't drive through a checkpoint. First of all, that's a really bad idea.

0:17:35 Thomas: How do you not drive through a checkpoint? I feel give me more trouble than just going through it. Like if you see it and you're like, and you like, oh, great. Now the helicopters or something. I don't know.

0:17:44 Matt: ,I meant just don't like speed through it, like actually stop and say I'm being detained and then leave. I just wanted to make sure to say that. Yeah, right. Don't bust through it.

0:17:49 Thomas: Oh yeah. Okay. Okay, yeah. We're on the same page. I say, am I being detained annoyingly and white libertarianly?

0:17:54 Matt: Yes, that's right. As you can. That's right, this one weird trick will get you through.

0:17:58 Thomas: There's very much a white libertorian tone to it. You could just say, am I getting detained? I'm just asking if I'm being detained. Am I being, you know, it's like, God, dude, just, okay. Yeah. They do everything in their life with that tone, I think.

0:18:07 Matt: Did I accidentally drive into Soviet Russia? Yeah, that kind of thing. Yeah. It's actually on there somewhere, I think. There's like a 14 -minute supercut I sent you if you want to watch more Am I Being Detained videos. So there's our patron questions for this week, some good ones. Thank you. And I hope that's a little more clear. But this is really important important to watch. And I appreciate people asking because we're going to be seeing more and more of this in our communities and we have to know what to do.

0:18:22 Thomas: Maybe my off time

0:18:41 Matt: You got it.

0:18:42 Thomas: All right we'll take a break and then we'll get on to what I can assume is gonna be a really annoying clips of uh the justices that I hate this episode is brought to you by quince you know last time I was telling you about quince I believe that I was talking about summer clothing from a more theoretical perspective and now since we're in checks watch that I don't have may that means the california summer is already well underway and that's why why I'm so glad I have the right clothes. And my clothes from Quince are the first things I reach for in my closet now. They're lightweight, they're comfortable, and here's the most important part to me. They last. I don't know what's going on. Other clothes, they just seem to wear out so quickly. But all my Quince clothing lasts and looks as good as it did the first day I got it. And Quince has all the things you actually want to wear. We're talking European linen beach shorts, organic cotton silk polos, and comfortable pants that work for everything from backyard hangs to nice And the best part, everything with Quince is priced 50 % to 80 % less than what you'd find at similar brands. By working directly with top artisans and cutting out the middlemen, Quince gives you luxury prices without the crazy markups. And Quince only works with factories that use safe, ethical, and responsible manufacturing practices and premium fabrics and finishes. So elevate your closet with Quonce. Go to quince .com slash OA for free shipping on your order and 365 -day returns. That's q -u -i -n -c -e dot com slash o -a to get free shipping and 365 day returns. One more time, quince .com slash oa.

0:20:14 Ad: [Ad break 2 — ad music]

0:20:14 Thomas: So, first thing, it's the birthright citizenship thing, but you're also saying it's not somehow.

0:20:19 Matt: It's not, it's actually not. So the ostensible purpose of this litigation is litigating the January 20th, 2025 order. Remember that they basically promised on the first day that he would be trying to cancel birthright citizenship and he did. So just to remind everybody that this was the executive order entitled protecting the meaning and value of American citizenship and how they're going to protect it is by trying to remove it from a bunch of people.

0:20:39 Matt: So obviously the 14th amendment, as we all know starts with the very simple words that anyone born or naturalized in the United States is a citizen. So what he tries to do to cancel that by executive order, which again is just not possible, it shouldn't be legally possible, is that the privilege of U .S. citizenship does not automatically extend to persons born in the U .N. One, when that person's mother was unlawfully present in the US and the father was not a U. S. citizen or LPR, that's lawful permanent resident, at the time of said person's birth. Or when that persons mother's presence in the the US at the time of said person's birth was lawful, but temporary. So if you're visiting a tourist or a student visa or whatever, and the father was not a US citizen or lawful permanent resident. Now, I went back and read this again today as I was preparing for this, and I realized it's just a built -in equal protection issue right there. Because you have a lawfully present father doesn't get to have his child automatically recognized as a citizen, but a lawful present, but not long -term resident mother does get to Have her child recognized, I guess.

0:21:33 Thomas: Why did they do that?

0:21:34 Matt: It's very very confusing. I guess because it's easier to prove that the mother is the mother than the father is the father. I really don't know, but it's messy. Like all of the executive orders, as we've been talking about from the beginning, it's a mess. And of course, Trump has set this record for meaningful executive orders that actually do things. No president has ever issued this many. So when he's complaining, as you're going to hear the government complaining in this about these injunctions, there's a reason for it. It's because he's doing lots of things by executive order and the courts are responding.

0:22:01 Matt: So there are three consolidated cases that we're we're looking at in this case that was argued on Thursday. This is the 15th that was argued. And the case is generally called Trump v. CASA, which is an immigration rights organization. And it also includes a group of pregnant mothers, and it also includes states. So there's about, I think it's 22 states are included. And that's one thing that would get really weird about this is if this injunction were allowed to stand only as to the states that brought the suit, then in 22 states, birthright citizenship would be preserved. In 28, it would not be.

0:22:30 Thomas: Huh. That'd be weird. Yeah.

0:22:30 Matt: So that's fine. Obviously, that would not cause any kind of weird chaos for the rest of time. And again, we're talking about when they're saying that they're not citizens, all that the executive branch can do to enforce that is just not issue them documents, which is obviously a problem. So no passport, no social security card, just not recognizing them. And if their own countries haven't recognizing them, then you're talking About stateless babies, which is obviously A significant problem. That's a lot worse than being undocumented.

0:22:52 Thomas: Just to make clear, this is all bullshit, obviously, but even the bullshit they're trying trying to do isn't trying to take citizenship away from anyone who was born here before this, right?

0:23:00 Matt: No, no, that's not on the table so far. And that would be a lot. That'd be a huge extra leap.

0:23:05 Thomas: Just important to say, just important to says that we know which, where we are in the fascism scale.

0:23:07 Matt: Yeah, no, it is. It is. I am seeing people spinning it about this. And I understand it's very annoying to hear lawyers saying, no this isn't like that. But you know, so many people when I talk about this will tell me online that, well, I never expected that my reproductive rights would be canceled essentially, right, by Dobbs. But that was a 50 -year -long project to put those people in.

0:23:27 Thomas: I was going to say that I'm honestly, maybe you should have expected that just in the context of this argument.

0:23:30 Matt: You should have, to be frank. I'm sorry, but right.

0:23:32 Thomas: I'm not saying anyone, I maintain the constantly, we should be shocked, but not surprised, but the shock is important.

0:23:37 Matt: Decades.

0:23:37 Thomas: But when it comes to actually predicting what's happening, they told us they were going to do that for quite a while. This has no bearing anywhere in anything and it's completely made

0:23:42 Matt: Right. And the difference too between Roe, just because I do want to make sure, because people do kind of spin been out of the Supreme Court sometimes. And again, I'm not trying to well actually this, I promise. I'm just trying to remind people there are differences and there are tiers here. There's categorically different things going on. Roe v. Wade originally was not directly based in any law or constitutional provision.

0:23:51 Thomas: Up yeah

0:24:03 Matt: It was within the ambit of the right to privacy, and it was all kind of loose and squirrely. It's something that I think people of conscience can agree with, that the right of privacy should be interpreted as broadly as possible, that it should include medical autonomy, that should include reproductive rights.

0:24:03 Thomas: Yeah yeah 100 yeah it was a good decision and correctly decided at the time just just important to say but it's not the the amendment about the quartering soldiers or something like isn't which which this is actually almost

0:24:24 Matt: This is the the 14th Amendment. This is straight up, yeah, if you're a textualist.

0:24:24 Thomas: It's pretty close like it's it's so plainly written if you're anything not even sorry to quibble but even even the intent at the Time was very clear like there's just all kinds of historical evidence textual evidence that this is what it was meant to be this is a made -up thing that has been astroturfed into existence that you pointed out. You know, like these arguments were not serious or anywhere until somebody writes a stupid something somewhere. And then now that gets to be, well, now some, some lawyers are saying, it's like, God, this is nothing. Yeah.

0:24:50 Matt: Exactly. Exactly, and it's the one out of 5 ,000 scientists who thinks that people aren't affecting the climate, right?

0:24:57 Thomas: Yeah. Please.

0:24:57 Matt: It's the same thing. And I actually just want to shame the New York Times for just a moment, as we love to do here, before we get going in the actual argument, since I do want to talk about birthright citizenship, and we're not going to really get to. At Supreme Court, a once -fringe birthright -citizenship theory takes the spotlight. Before the Trump presidency, there was broad broad consensus that the 14th Amendment established birthright citizenship for children born in the US. No, there still is. There still is." That's the SSF head. And I'm sorry, but I can jump up on the stage on a Broadway show and take a shit, and I'll take the spotlight.

0:25:02 Thomas: Oh, by all means. That's the other name of the show. There still is. Yeah. Yeah.

0:25:30 Matt: That's going to happen, right? Anybody can take the spotlight.

0:25:30 Thomas: Well, you bring up the climate change example. Yeah. It's like they don't, climate change coverage isn't great, but they wouldn't put it that way. And this, this administration is just as in denial about that. It's the same thing. They don't say, well, it was once a scientific consensus that it, but no, it's still that it's just this administration's wrong.

0:25:47 Matt: Absolutely. And if you follow Anthony Michael Kreese and Evan Berwick on social media, they're outstanding scholars, and they specialize in this stuff. And they've been going to war on this, pointing out the fact and demanding. When people say things like, well, there are some people that believe this, they're like, who? Show me. Show me any credible person who actually has made the historical research work in their direction to actually say that this is a credible argument that at the time when this was written, because Trump, of course, is now taking the standard line that they're using about how this is actually just about the former slaves, the enslaved people that they were making sure would have birthright citizenship. But no, it was for everybody. It was supposed to be for everybody. And I'll just read you a couple of excerpts here because, again, I cannot express enough how much consensus there is and how recent this thing is. John Tanton was responsible for the network of hard right, xenophobic, anti -immigrant organizations like Fair and Numbers USA. He's a Michigan dentist who's really obsessed with immigration. He is the only person that I'm aware of that I can think of who's been carrying the torch for trying to repeal birthright citizenship in a really organized way, as

0:26:44 Matt: Opposed to the massive movement behind getting to justices on the court who would repeal Roe, who would overturn that basic right. This is is not necessarily the same kind of organized thing. And there's not like this network of scholars. Now, the Federalist Society is starting to pick it up a little bit. They're starting to get a little more interested in it, but this is pretty recent. And we need to shut it down now because it's stupid.

0:26:44 Thomas: Jesus. Yeah. Well, thanks, New York Times. You're doing your part. You're during your part, totally normalizing this shit. They do this with everything now. It's, it drives me insane.

0:27:11 Matt: Yes. The notion that the amendment might not do so was once considered an unorthodox theory, still is, promoted by an obscure California law professor named, you guessed it, John Eastman. Here we are. Again, one guy, a known insurrectionist, uh somebody who's already known to have violated the law multiple times in many ways right

0:27:20 Thomas: Oh, oh yeah. Yeah. Yeah. They might as well say if it's like Timothy McVeigh, you know, it is. It's like, well the, he thinks that. And so now it's not, he's an insurrectionist. Come on. Yeah.

0:27:39 Matt: It also might as well just be somebody on tiktok at this point like it's one guy

0:27:41 Thomas: Yeah. I mean, I'll grant that he's at least connected to Trump, like, you know, slightly better than TikTok, I guess.

0:27:45 Matt: Well that's what they're saying the story of how the theory moved from the far edges of academia to the oval office and on thursday to the supreme court offers insight into how mr trump has popularized legal theories no you're popularizing the legal theories by doing this right by repeating it all you have to do is shut it down they've got john hughes saying they finally got a president that agrees with them

0:27:54 Thomas: But still, yeah, there doesn't have to be any consensus for this to have reached the Supreme Court. All it takes is the Trump administration willing to do this and then the Supreme Courts taking it up. There's no threshold of, like acceptability that the legal theory has to get to to be in the Supreme court. But the article treats it like there is like, well, now and now it's all the way at the Supreme courts.

0:28:25 Matt: Yeah no I mean literally right here birthright citizenship the practice of granting citizenship to people born in the United States to parents who are not citizens has long been considered a tenet of immigration law. No, no, it's not. It's not immigration law, it's the Constitution, it is the 14th Amendment. It is not the Immigration and Nationality Act, it is not something that Congress made up 60 years ago.

0:28:31 Thomas: A tenant yeah yeah

0:28:45 Matt: So, Wednesday of the week that we were recording was officially the last day for oral arguments, and they held this on a Thursday, the day after. They thought this was worth going beyond their usual calendar. And, to be clear, this is the part I really want to stress, this is not the merits of the case. This is the shadow docket. They're holding a full two and a half hour oral argument on the shadow docket on an injunction.

0:28:43 Thomas: Really whoa

0:29:06 Matt: Not very often.

0:29:03 Thomas: Do they do that is that normal okay wow

0:29:08 Matt: It's extremely rare. So I think people need to understand that I think I know what's going on here after listening to it. And I think that we had obviously with Leah Whitman on earlier this week, had a great conversation with her and she, very respectable constitutional law scholar, seems to agree with pretty much everybody that I've seen, every lawyer that I've seen who studies this stuff at all, including myself, does not think the Supreme Court on the merits is going to find that birthright citizenship does not exist. But they might, I'm afraid, do this other thing that the government's asking for. And this could ultimately be worse than actually striking down birthright citizens because it would affect a lot more kinds of cases and people. So what they did is they brought a request for a partial stay. Now, there are three different cases that are on appeal here. They all basically work out to the same thing of three judges, including a Reagan -appointed judge in Washington who was very prickly about this, all saying in no uncertain extreme language in some of these cases that this is flatly unconstitutional and there is no way that it should be allowed to stand. And that's what they're appealing right now. And the circuits in every one of those places let this go. They said this injunction is appropriate. So it's an injunction pending a full discussion of the merits. And they wanted to talk about what they

0:30:18 Matt: Call a modest request.

0:30:19 Thomas: A modest proposal yeah oh boy

0:30:20 Matt: And I'll read here what what the request is. That's right. Let's just eat the babies.

0:30:25 Matt: Yeah, let's eat the undocumented babies. While the parties litigate weighty merits questions, the court should restrict the scope of multiple preliminary injunctions that purport to cover every person in the country, limiting those injunptions to parties actually within the court's power. That sounds good, except what you're saying is that you should only allow the states that brought this challenge to have that injunction apply in their states, which makes no sense because you're talking about babies and parents throughout the United States. There's no difference in undocumented babies being born in Rhode Island than there is in Texas, right? I mean, it's the same issue. That's right. And fetuses, if you're listening, I got some advice, which Stacey might want to pick.

0:30:53 Thomas: Yeah well but but matt they do give the baby a choice when when it's going to be born, of which state to be born in. So they can, it's a, you know, laboratories of democracy. Yeah. Yeah.

0:31:08 Matt: But what they're annoyed with is the idea of a universal injunction. And so this is what the entire two and a half hours is actually about, is whether a single district court judge should be allowed to issue a universal injunction against something that pretty much everybody understands is extremely, if you don't think it's flatly illegal, it's extremely controversial. And maybe we should hold on to it until we decide, right? Because the danger, of course, is that you do actually have something that is unconstitutional, and the justice has asked this several different directions, and you're allowing babies to be born without documents and to be stateless. So why would you do that? Why not just have a national injunction? And of course as we've pointed out more than once to the point that it's almost a cliche, Judge Matthew Kazmarek had no problem stopping the FDA from allowing mifepristone onto the market for a period of time. He tried to do that, right, and that was one judge in one place, but that was different of course because I don't don't know why. So this is an interesting thing because it's a very technical question, but it's actually kind of interesting when you think about what the government is saying and what the parties are arguing about. They actually played the whole thing on our public radio this morning on WBUR, and my friend was telling me she actually listened to quite a lot of it and thought it was pretty interesting. I wouldn't have thought that a non -lawyer would think this was interesting at

0:32:10 Matt: All, to be honest. But it is because this has enormous implications. If the Supreme Court were to find in this case, it'd be really unfortunate if they did it in this cause, if they're to find in this caso that a district court judge can't issue universal injunctions, then fundamentally Fundamentally, the way that we challenge Trump's actions would change, and it would become much more complicated. This would be a huge win for Trump, in a way almost bigger than birthright citizenship. And I got to tell you, after reviewing these arguments, I'm not sure how it's going to come down. There is some swinging going on here.

0:32:38 Thomas: Well, my question is, and maybe this will become clear, why now? Like they've been mad about this for a while and it just seems like a weird one. Is there some strategy in using this very heated thing we all know is bullshit to decide this? And maybe, I guess you kind of hinted, is it that if they make some weird decision on this, then And they just feel like they're giving Trump a bit of a bone.

0:32:57 Matt: They get a win. Yeah, because they're going to find, I am sure of this at this point, because even when the Times, they were just touching on the merits, the government basically did not want to talk about the merits. Just wanted to focus on this. And this was the point of the briefing as well. And I think that they know they're gonna lose in the end, but they want this win, and this would be a big one. And it's a messy one. I mean, it's very messy win if they end up with a win on this The government's main argument, though, is that universal injunctions have reached what they call epidemic proportions since the start of the current administration, for some reason.

0:33:22 Thomas: We got to flatten the curve. Yeah.

0:33:25 Matt: Right. I means, can you imagine all these judges trying to stop all these disorders just because they're completely unconstitutional.

0:33:30 Thomas: So weird.

0:33:31 Matt: So there's some really good work going on here from our favorites, Sonia Sotomayor and Katonji Brown -Jackson. So I'm going to play a couple of clips here.

0:33:38 Clip: If a set of claims satisfies the rigorous criteria of rule 23 rule 23 is the modern analog of a bill of peace we have something very different here what what no but we don't because the argument here is that the president is violating an established not just one but by my account out four established Supreme Court presidents. We have the one ARC case where we said fealty to a foreign sovereign doesn't defeat your entitlement, your parents' fealety to a sovereign doesn't to defeat your entitled to citizenship as a child. We have another case where where we said that even if your parents are here illegally, if you're born here, you're a citizen. We have yet another case that says, even if you parents came here and were stopped at the border, but you were born in our territory, you're still a citizen, and we have another case that says even if parents secured citizenship illegally, So as far as I see it, this order violates four Supreme Court precedents. And you are claiming that both the Supreme Court and no lower court can stop an executive universally from violating those holdings by this court. We are not claiming that, because we're conceding that there could be an inappropriate case. Can I hear the rest of his answer? A Rule 23 class action, and then the more fundamental point as to all those Supreme Court decisions you referred to. Temporarily, the court may issue, the lower courts may issue injunctions that remediate the injuries to the plaintiffs that appear before them. Lower courts, in appropriate cases, may certify class action without new precedent. So when a new president orders that, because there's so much gun violence going on in the country, and he comes in and he says, I have the right to take away the guns from everyone, then people – and he sends out the military to seize everyone's guns. Guns, we and the courts have to sit back and wait until every name plaintiff gets or every

0:36:20 Matt: So good.

0:36:21 Clip: Plaintiff whose gun is taken comes into court. In appropriate cases, courts have certified class actions on an emergency basis. We found at least four cases in recent years where that was done. But more fundamentally, we profoundly disagree with the characterization of the merits. This is now fully briefed in the Ninth Circuit in case number 25-807, where we describe how that characterization of the holding of Wong Kim Ark and the other decisions is profoundly incorrect. Counsel, could I ask you about a different type of—

0:36:47 Matt: All right, we can stop for a second. A couple things here. You heard him right. He's saying that plaintiff by plaintiff, these parents should come forward and say, we're going to be harmed by this. This is bad. And they should get different district courts in different states to issue individual injunctions. So you're going to have different rules in Rhode Island and Texas. He really keeps coming back to the idea of Rule 23, three, which is for actual certified class actions, that this should require class action, which of course would require enormous amounts of legal work and lawyers. Whereas Sotomayor is saying this is obviously legal. It's an emergency. They have every right to stop it until we figure out what's going on. And I love the gun analogy. It is perfect. That is exactly right.

0:37:20 Thomas: Yeah, obviously. Yeah.

0:37:21 Matt: Just hit right in the center of the right -wing psyche.

0:37:24 Thomas: The bull's-eye. Yeah.

0:37:25 Matt: What if they came and took all your guns? You think you would need individual plaintiffs to come to individual courts and stop it? I thought that was just a perfect response. He doesn't really ever come up with an answer for this, obviously. He just keeps hammering on what he can do.

0:37:36 Thomas: Well, and that's where you shift to the merits. And it's like, look, either we're talking about the merits or we're talking about under the idea that this isn't the merit is bad. Let's talk about this other thing, which is how injunctions work. But then when, whenever he's losing, he's like well, but also I mean the merits, you know, though, and it's Like, yeah, yeah.

0:37:47 Matt: We think that Wong Kim Ark, which is 1898 precedent, is wrong. It's still wrong.

0:37:59 Thomas: Of course. Wong Kim Ark famously incorrect.

0:38:02 Matt: We're going to get on to, at another time, the merits on the other side of this because they are so ridiculous. But I do want to talk about the injunction thing. So very quickly, there's a little moment here where Amy Coney Barrett had some interesting moments all through this. And I think that she is certainly not fully committed to the right -wing side on this one. She actually asked him directly about the administration's current commitment to following court orders and circuit precedent. That's an interesting moment here at the

0:38:24 Clip: Did I understand you correctly to tell Justice Kagan that the government wanted to reserve its right to maybe not follow a Second Circuit precedent, say, in New York, because you might disagree with the opinion? OUR GENERAL PRACTICE IS TO RESPECT THOSE PRECEDENTS, BUT THERE ARE CIRCUMSTANCES WHEN IT IS NOT THIS ADMINISTRATION'S PRACTICES OR THE LONG-STANDING PRACTICE OF THE FEDERAL GOVERNMENT? AND I'M NOT TALKING ABOUT IN THE FOURTH CIRCUIT ARE YOU GOING TO RESPECT A SECOND CIR CUIT. I'M TALK ABOUT WITHIN THE SECONDS CIRSUIT. AND CAN YOU SAY IS THAT THIS AD MINISTRATION'S PARTY OR A LONG STANDING ONE? AS I UNDERSTAND IT, LONGSTAND POLICIES OF THE DEPARTMENT OF JUSTICE, YES.

0:38:40 Matt: Oh, good.

0:39:01 Clip: That we generally, as it was phrased to me, generally respect circuit president, but not necessarily in every case. And some examples might be a situation where we're litigating to try and get that circuit president overruled and so forth. Well, OK, so I'm not talking about a situation in which, you know, the Second Circuit has a case from 1955 and you think it's time for it to be challenged. That's not what I'm talking about. I'm taking about in this kind of situation. I talking about this week, the second circuit holds that the executive order is unconstitutional and And then what do you do the next day or the next week?

0:39:14 Thomas: So you don't have to follow stuff when you're.

0:39:35 Matt: Generally.

0:39:36 Clip: And you still think that it's generally the policy, longstanding policy of the federal government to take that approach?

0:39:38 Thomas: Oh my God. Okay. Well, you're an idiot. Do you follow the law? Like when the law is happening? Generally. What?

0:39:43 Matt: Yeah. We try, you know?

0:39:49 Thomas: What's the general? It should just be. Yeah, this was an easy one. Should just be, yep.

0:39:53 Matt: Right. All right. One more from Justice Jackson talking about how we don't actually live in a monarchy.

0:39:59 Clip: —kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights. Justice Kagan says let's assume for the purpose of this that you're wrong about the merits that the government is not allowed to do this under the Constitution and yet it seems to me that your argument says we get to keep on doing it until everyone who is potentially harmed by it figures out how to fire a file a lawsuit hire a lawyer etc and I don't understand how that is remotely consistent with the rule of law. You know, a system, and I appreciate that you go back to English common law and the Chancery Court, but they had a different system. The fact that courts back in English Chancerary couldn't enjoin the king, I think is not analogous or indicative of what courts can do in our system where the king quote-unquote the executive is supposed to be bound by the law and the court has the power to say what the law is and so one would think that the court could say this conduct is unlawful and you have to stop doing it I think the catch me if you can problem operates in the opposite

0:41:15 Thomas: One would think. Hmm?

0:41:20 Clip: Direction where we have the government racing from jurisdiction to jurisdiction having to sort of clear the table in order to implement a new policy a great example of this is in the shilling litigation where the the military had a military readiness policy it was universally enjoined by the ddc it went up to the dc circuit the d.c circuit stayed that injunction to allow that policy to go into effect and then one hour later a district court on the other side of the country universally can I just ask you

0:41:23 Thomas: The Leonardo DiCaprio movie?

0:41:25 Matt: So the catch me if you can thing they keep mentioning is not actually the Leonardo DiCaprio movie. They're actually talking about the idea that the government can just, much like with the Alien Enemies Act stuff, right? They can just keep moving people around in different jurisdictions. And then of course the plaintiffs can come and get an order. And then there's no more of that thing in that jurisdiction. And then they just move them to somewhere else, right? And in this case, the plaintiffs are saying that we have to have a national rule so that you can't have all of this back and forth. You can't have places where the law just doesn't apply. And he's saying, no, the real catch me if you can problem is that plaintiffs, they're just going to go around getting these orders in different places, even though he's that's what they should do.

0:42:18 Thomas: What? That doesn't make sense.

0:42:19 Matt: So yeah, I know. It doesn't. It's messy.

0:42:23 Thomas: Can I just remind everyone that instead of this asshole, we used to have Elizabeth Prelogger, smartest goddamn human being ever. That's who used to do this job.

0:42:33 Matt: Without comment, I will say that it is John Sauer's job to talk. That is his actual paid position. Moving on, there's a lot of discussion about universal injunctions and about the history and about whether they, I mean, again, they're going originalist on this. They're trying to say that, I think you heard it back there somewhere, but he's talking about the Bill of Peace, which was sort of the original class action.

0:42:38 Thomas: What?

0:42:50 Matt: We don't have to talk about any of this. We don't live, as Justice Jackson is very wisely saying, we don't live in a system in which we have a king or a monarchy.

0:42:57 Thomas: So it's gold fringe on the flag, essentially.

0:42:59 Matt: That's right. Yeah, yeah. We live in a federalist system in a tree of 50 states and a federal government. It does not compare. Pair. There's no reason to talk about how they did bills of peace in 17th century England.

0:43:09 Thomas: Does he bring up the Magna Carta?

0:43:11 Matt: No, didn't go that far.

0:43:12 Thomas: That wasn't 100%, Matt. He might have.

0:43:16 Matt: It's true. Then there's this kind of talking point that actually universal injunctions only go back to the 60s, and it's a new idea and whatever. I will point out the administrative state is a fairly new thing, and that's what requires a lot of these things. But universal injunctions go back till at least 1913, and Quince Thomas is just wrong on the record on that.

0:43:30 Thomas: Oh, I thought it was like once that guy discovered LSD, then the judges were like, oh, universal injunctions. The swinging 60s.

0:43:38 Matt: Yeah, yeah. It says opening minds, and yeah, it happens, and you start to see things different. But yeah, just going through the briefing on this and also looking at, there's a great piece by Milla Sahani, which I'll have to link to, called The Lost History of the Universal Injunction. There's a long history of the idea that the entire federal government can be enjoined against doing something when it's extreme like this, when it can cause this much harm. But this is something that has been with us a long time and has become much more necessary since we have so many more administrative agencies and so many different ways that the government can potentially violate people's rights. So I am very concerned that it's possible, and I can't say for sure after you're listening to all of this, that there are going to be five votes for the idea that it's okay to not have universal injunctions. And then there should be other methods that people have to come in and defend their rights that, you know, state by state or with class actions or plaintiff by plaintiff. And this could be really bad to lose this tool. It did seem to me like this is one of those cases where the women on the court were more or less on the right side of things and the men were playing with the idea, at least, that we should completely radically change how we do things now. So we will see.

0:43:39 Thomas: Wasn't that? Yeah. What is the replacement system? I mean, is it really the thing they're talking about with everybody has to go get their own?

0:44:43 Matt: Yeah, sure.

0:44:43 Thomas: You have to file because there is going to be another Democratic president. You know, I mean I get that they're trying to they're trying to make that not happen, but it is going to happen like they do have to think a little bit about that. Don't they?

0:44:53 Matt: No, they have to think about the future for sure. As we've been talking about within the last few months, they've been relentlessly fighting to keep class actions from being put together for this Alien Enemies Act stuff, right? They want people to individually litigate that, but they're saying the solution in this one is a class action, should be a national Rule 23 class action. Those are hard to put together. They're a lot of work, and they take a long time. And in the meantime, you're going to have lots of babies born stateless. So it just seems so obvious in extreme cases like this that you should have this tool available. We'll see. I really hope that they do not think this is some kind of weird compromise. Compromise this is not the idea of a compromise of denying the extremely obviously wrong thing and then allowing this other bad thing to happen we'll say quick thing from from shad reilly super patron asking about the latest development of the alien is in enemies act cases I did want to mention this just because it's exactly on point for why we need to be able to have universal injunctions the first judge yet federal judge in pennsylvania western district named stephanie haynes in the united states found that there was some reason to believe believe that the trained at Agua from Venezuela are actually invaders under the Alien and Enemies Act.

0:45:08 Thomas: I bet. Oh, wow.

0:45:56 Matt: Stupid ruling. Honestly, very bad. But the weird thing about that was that she had previously certified a class of detainees from Venezuela who met the definition under the Aliens and Enemies Act proclamation. There were Venezuelans over 14 who are alleged to be members of trained at Agua. But by the time this came before her, there were zero people in that class. So she decertified the class in Western District of Pennsylvania, and she found that she couldn't find a class. This is exactly the problem and why we need universal injunctions, because the the government had moved them by that point. They were somewhere else and the government had complete power over their custody. They're in ICE custody. So if the government doesn't want a class to be created in that circuit, in that district, they can just move them out of there. This is exactly the problem.

0:46:30 Thomas: Duh. So frustrating.

0:46:31 Matt: Yeah. Her logic is infuriating about why just because Marco Rubio said train the dog as a terrorist organization, she said that somehow that they're equivalent to like pirates and that pirates would have been covered under the 1798 language about incursions into our territory. But she also talks about how the Maduro government in Venezuela is is cooperating with Tren de Aragua, which is directly contradicted by a memo that was released. And I want to mention this as clearly as I can very quickly. There's a memo that came out through FOIA last week. It was written on the 7th of April, but it was released on the 6th of May. And I was very fortunate that it was released by FOIA. This is what's called a sense of the community memo from the National Intelligence Council. And this is like the entire intelligence community coming together and saying, this is what we think is going on. And they have an extensive analysis here of how the Maduro regime in Venezuela is not working with Tretan de Araua. And in fact, they're adversaries, not allies. Obviously, they're a criminal gang. A whole section that's called Maduro regime, probably not directing TDA activities. And that's being nice about it. I mean, it's really not probably. And the reason I want to mention this memo is because this means that the US government has been aware, at least since April 7th, and I'm sure they knew before, they've been aware that their own intelligence community, when the Department of Justice lawyers are going in to argue this stuff, knows that Trinidad Agua is not directing the Venezuelan government, is not working with the Venezualan government. That they're not sending people here on their behalf, which means that they've being making lies. They've been putting lies into the court about this proclamation and they should know better. They had to know better because this memo exists. And Tulsi Gabbard's response to this as the head of the intelligence community was to fire the extremely high level senior people who wrote this memo.

0:48:00 Matt: This is very concerning, huge alarm bells. I'm going to be extremely alarmist about this one because no doubt the intelligence community has always been somewhat politicized in J. Edgar Hoover and everything else, but this is out the window. This ist so bad. Thisis so much worse than WMDs. This This is saying you accurately analyzed the current state of things in Venezuela and you undermine the president's agenda by doing that. And now this came out through FOIA and we have to fire you because, you know, we're still in court arguing that these people are working with the government of Venezuela. And no DOJ lawyer should be able to make that argument without sanctions again, because it's on paper. I can link to it. I can show you. It's a pretty clear memo.

0:48:11 Thomas: WMD. Yeah, wow, we haven't talked enough about how much she sucks. We haven't. It's been a minute.

0:48:38 Matt: No, haven't had a chance.

0:48:39 Thomas: Been a minute, yeah. Another one Hillary nailed right about literally everything.

0:48:39 Matt: Yeah. I'm sure she'll give us some. Yeah. Unfortunately. Yeah.

0:48:46 Thomas: So in the end, though, you're not loving what you're seeing out of this court regarding these oral arguments. I mean, is that something they would do in just like a shadow docket thing? Wouldn't you think there would need to be a pretty major case to make, because that changes the whole system, doesn't it?

0:48:59 Matt: Potentially. It really could be a problem.

0:49:01 Thomas: And you think they might just do it in a shadow docket weird thing.

0:49:04 Matt: After an oral argument on the shadow docket, I mean, they took it that seriously to take it up to an argument. Very unusual. So who knows?

0:49:07 Thomas: Fair. Yeah. All right.

0:49:10 Matt: Hoping for the best.

0:49:10 Thomas: Well, we'll keep an eye on it. Well that sucked, Matt. Let's take a break and get to the footnote fetish, which always cheers me up. This episode is brought to you by HIMSS. You know, for a lot of men dealing with something like ED can be uncomfortable, which is why HIMSS provides access to a comfortable solution with an all online process and personalized treatment options. You Know How during the pandemic, We found out that a whole lot of jobs can be done from home online and it was like better for everybody involved. It's that principle, but for like kind of awkward conversations that you might feel uncomfortable talking to the doctor about. That's why HIMSS is so great. It's providing you with access to affordable sexual health treatments from the comfort of your couch. It's 100 % online, so there's no need for uncomfortable doctor's visits. Just fill out an intake form on their site and a medical provider will determine the right treatment option. If prescribed, your medication ships directly to you for free. No insurance is needed, and one low price covers everything from treatments to ongoing care. So start your free online visit today at HIMS .com slash opening. That's H -I -M -S dot com slash opening for your personalized ED treatment options. HIMS dotcom slash open. The featured products include compounded products which are not approved nor verified for safety, effectiveness, or quality by the FDA. Prescription required. See website for details, restrictions, and important safety information. Price varies based on product and subscription plan.

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0:50:40 Thomas: All right, what do you got for us?

0:50:41 Matt: Well, this is a food note fetish because I'm hungry. I skipped lunch again. So we're going to talk about food very quickly. We talked back in around Halloween about Reese's and their extremely deceptive practice of advertising that their candies are ghosts or pumpkins and are not in fact ghosts or pumpkins.

0:50:55 Thomas: What was that again? Was it like, was that just about the shape of it or something?

0:50:59 Matt: Yeah, it was, I want ghosts and I'm not getting to eat my ghosts. These are just lumps, lumps of chocolate. So there's a whole genre of cases. This one should not be confused with the McDonald's case that I immediately thought of. Someone was seeking taking $5 million because their quarter pounder with cheese costs the same as a regular quarter pounder. Yeah.

0:51:18 Matt: So I will say one of the reasons that I stopped eating meat was that I, so I wouldn't eat Burger King and McDonald's anymore. And that's, that's worked out pretty well.

0:51:24 Thomas: Well, Burger King has an Impossible Whopper, which I do eat.

0:51:28 Matt: It is pretty good. Me too. Me Too. But it has cut down, I will Say just sort of like excluding it or trying to exclude it from my mind. But we all understand that when they advertise these things that they show us pictures that are different from the product that we're going to get.

0:51:41 Thomas: It is getting pretty crazy though. I do feel I might already be on the side of whoever this is. Because like the pictures are getting pretty, yeah, there's got to be some limit on what much you can say the thing is in the picture

0:51:51 Matt: I'll just read you the uh the explanation here this is a class action against burger king for unfair and deceptive trade practices concerning the sale of certain falsely advertised menu items burger king advertises its burgers as large burgers compared to competitors it is called a whopper and containing oversized meat patties and ingredients that overflow the bun to make it appear the burgers are actually 35 larger in size and contain more than double the meat than the actual burger now they do have some examples I will just send you very quickly of the kinds of photos that are are deceiving people.

0:52:20 Thomas: Yeah I'm all ears man I'm I don't know what I'm on this person's side 100 all right I'll be the judge yeah look at that well okay here's the thing though the burger king's maybe the worst one to pick because like burger king burgers actually are still kind of sizable it's like all the other ones have gotten way smaller like mcdonald's please like do the mcDonald's big mac like it's not it's nothing now I haven't eaten it in a hundred years. Cause again, they're not the meat, but like, yeah, Burger King's a weird one to pick. They're the one fast food that is like kind of still giving you a big burger. This one just looks like it needs a makeover. Like it's had a bad day.

0:52:56 Matt: Yeah. Bad meat day.

0:52:56 Thomas: Like this, like the picture, right? Yeah. The picture woke up on the wrong side of the bun. The, uh, the picture is not great, but it's like, okay. Just woke up from a night of partying or something a little unkempt.

0:53:08 Matt: They're also going after the Big King and the Whopper Melt. They are going all the way on the entire Burger King menu.

0:53:14 Thomas: I don't don't know what those are

0:53:15 Matt: They look pretty tasty, I got to be honest. Well, the pictures look tasty. The photos of the products don't look tasty, but this is another one where the person is seeking enormous amounts of money because he's very disappointed by his treats. He wants bigger and better treats as pictured in there. Well, that's what these are. This isn't food. They're treats.

0:53:31 Thomas: Treats oh okay I was like what is this I was like is it a happy meal see and that's where he lost me with a bunch of money because I think they should be required to give him the little bits of burger that he's missing out on you know what I mean like just the like just exactly the extra little bits that it should be yeah your quarter founder of flesh Oh, we found it.

0:53:48 Matt: Your pound of flesh. That's right. Your actual pound of flesh. That's good. Quarter pound of our flesh. Yeah, just like mash it all together and mail you a meatball. Here's everything you missed out on in your life of eating Burger King. Yeah.

0:54:01 Thomas: With interest. You know, here's the compound meat interest that we've got here. That's in this bag.

0:54:07 Matt: So, you know, obviously breach of contract, unfair practices, consumer protection, negligent misrepresentation, unjust enrichment, all the way down. But they're looking for compensatory damages in an amount according to proof at trial.

0:54:12 Thomas: 100%.

0:54:20 Matt: That'd be quite a trial that they'll have to pass out burgers for everybody and let them take a look.

0:54:20 Thomas: Well, I think when we get discovery, we might see it's more than just negligence. Might be some intent here.

0:54:28 Matt: Yeah, yeah. I mean, these photos are pretty deceptive, I have to say. But I think we all understand that the burger's never going to look like the photo.

0:54:34 Thomas: Yeah, but within reason. Like, come on. This is, are you, what are you? You're taking the side of Big Burger. I'm taking the side of the proletariat that is fed up with seeing a picture of a delicious, gorgeous burger and then getting nothing like that. You know, there's got to be a limit.

0:54:50 Matt: You know, he is making the point that the burgers have been getting bigger in the pictures as they go, like since 2017. So I think there might be something to that.

0:54:54 Thomas: And the shrinkflation is real of every product.

0:55:00 Matt: Sure, no doubt. Cutting costs everywhere because private equity is taking over. We'll see. We're going to have to follow the adventures of Walter Coleman,

0:55:13 Thomas: I do, however, agree with you that nobody, if your life is such that you are finding yourself filing this, I don't know. You have a combination of privilege and time and bad priorities that I do question. I do questions. I feel like you should put your effort into something better, but they're not wrong. They're not right.

0:55:31 Matt: We'll see. We'll find out. But I agree. There's like a certain kind of lawyer that just looks for these kinds of cases and I'll never understand it.

0:55:36 Thomas: That's all we got is just that this exists. Do you have an opinion on it?

0:55:39 Matt: I don't think it's great. I mean, it is kind of, I mean technically yes, it does seem to be. If they're right about the advertising like slowly increasing the size of the photos and making everything look bigger and bigger, then yeah, maybe it is unfair. Maybe it is deceptive. I don't know how much That's Worth, but yeah, maybe Burger King should rein it in. I think that's, I'm there. I'm with you.

0:55:55 Thomas: Okay, good. I'm glad I convinced old moneybags here to support the people, you know, Matt, you one percenter. Come on. The people demand burgers that are somewhat close to what we're seeing in the picture. And I think, you Know, they've long talked about not so much anymore, but people used to talk about like, oh, youknow, advertisements ought to not Photoshop women and well, anybody and just give people bad body image stuff. And I think maybe that's true, and this should apply too. It's like, don't stop at the people.

0:56:21 Thomas: Also, the burgers can't be photoshopped. You can't give them good cleavage to the Whopper, you know? Like, give them the perfect Whoppar hip ratio. Less deceptive advertising in general, I think, would be good. It's also something that I'm surprised that the idiot swamp creature who's in charge of our health now, who swims in sewage, that guy. I'm impressed he doesn't take on that kind of thing. I feel like that would be a gimme, you now.

0:56:44 Matt: Yeah, totally. Yeah. But I guess I should close this out by saying that Judge Roy Altman, the reason I'm talking about this is last week found that it's plausible that some consumers could be deceived. He's allowing this to go to trial. He said that the ads go beyond mere exaggeration or puffery, that it is actually potentially deceptive.

0:56:57 Thomas: There you go. What a, okay, a hero to the people, that judge.

0:57:02 Matt: Judge is with us.

0:57:02 Thomas: Thank you, Matt. You had to be talked into it, kicking and screaming, supporting the people for once.

0:57:04 Matt: Well, we got to talk it out. That.

0:57:09 Thomas: I love it. The footnote. Now I'm hungry. I want to go eat an impossible Whopper. And the thing about those is one is not enough. But then when I get the double, like I had him add a Whoppar or I had to add a patty.

0:57:20 Matt: That's a lot.

0:57:21 Thomas: Oh, for one, they're like, I don't think the numbers in the register go that high. They're like this is going to be four hundred dollars. It's weird. I don't know why. If you get a double Whoppa, they're like, that's free. We don't even know. I'm going to to enter it into our system. Do you get a double impossible whopper? You've committed a financial crime. They're seriously, they add another $5 to it.

0:57:39 Matt: What?

0:57:40 Thomas: Yeah, but I'm hungry. I'm going to eat it. And then if you look at what the alleged calories are, it's, I don't know, it could be 1300 calories. I don't get it. Where's all that coming from?

0:57:49 Matt: Well, Impossible Whoppers aren't great for you. They're just tasty. Yeah. But also, I don't get it on the menu. I see these, you can get three or four patties on any given burger.

0:57:51 Thomas: They're not great. They're not great." Yeah. Oh,

0:57:58 Matt: I'm like, that is just so disgusting. Who wants that? Because there is another suit involving Subway where they are saying they are deceiving you about how much meat there is. I don' even want to talk about, yeah, piled high with meat. I just don't want want that much yeah

0:58:04 Thomas: Those are even worse. Yeah. Those are so bad. Well, yeah. Yeah! Oh, I know. I can'T really do Subway, especially not eating meat. Then you see that like really all they're giving you is like paper that's like colored like lettuce and, you know, see -through tomatoes.

0:58:20 Matt: Right very sad vegetables yeah all

0:58:21 Thomas: It's just not really, yeah, not good. All right. Well, that cheered me up and I'm rooting for this hero to prevail. All Right, Matt, thanks for the breakdown. Thanks for another great episode, everyone. Thanks For Listening. And thanks most of all to our patrons. We appreciate you and we will see you on Monday.

0:58:36 Matt: Right later mr hazius porpoise did I accidentally drive into soviet russia I want ghosts and I'm not getting to eat my

0:59:01 Thomas: Woke up on the wrong side of the bun. Here's the compound meat interest.

0:59:06 Matt: Ghosts piled high with meat