It's Still the Shadow Docket, Despite Kavanaugh's Pathetic Rebrand Attempt

Transcript

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

0:00:01 Matt: Because the school disciplined him for using what they considered to be the wrong bathroom, and they made him take online classes, and he was miserable. And now he gets to go back to school. I wish him all the best.

0:00:18 Jenessa: If you can't be sued and you know you're not going to be disciplined and you know you'RE NOT going to BE fired and you KNOW you're NOT going to be prosecuted, there's LITERALLY no check on your behavior.

0:00:37 Jenessa: Welcome to Opening Arguments, the podcast that analyzes law and the news. With me is Matt Cameron, immigration attorney.

0:00:44 Matt: And, of course, he just heard from Jessa Seymour, former scientist, current voting rights attorney. Today we're going to be taking a close look at the shadow docket this week. These days the Supreme Court doesn't just follow the school year calendar anymore. We just got Supreme Court all over the place. Got shadow dockets all day. So we got plenty to talk about. Got a couple of other items here, and then I promise, if you all hold on for the end, we've got a fantastic footnote. I will just say that in case you've ever wondered if it's illegal to get married by a dead bear packed to the brim with cocaine in a Kentucky shopping mall, the answer may not surprise you.

0:01:17 Jenessa: I didn't know we were doing this one, so I will be equally pleasantly surprised. Authorized

0:01:21 Matt: Well, it's a really important part of the footnote is it always has to be a surprise. I meant to say that as part of The Format. If you knew what the footnotes was, then that's a whole different game. So we'll be back to talk about The Shadow Docket. And I promise, if you hold on, you'll get to hear about Cokie the Bear.

0:01:43 Ad: [Ad break 1 — ad music]

0:01:43 Matt: So, we got some good news, but mostly bad news on the shadow docket this week let's start with the good news very specific good news as to one 14 year old boy this is the first time in u .s history of which at least of which I'm aware and I could have missed something but I think it's the first time the supreme court has issued orders as to where someone can pee I don't think that's ever happened before one person specifically yeah it

0:02:03 Jenessa: Yeah there's that musical Urinetown that tried to make this joke and apparently it's everything that was a joke is real life now yeah

0:02:14 Matt: Was not like a dystopian future where the government controls where you'd be I think that's actually pretty relevant.

0:02:18 Jenessa: You have to pay to pee

0:02:22 Matt: Man, honestly, in Boston, I would pay good money to pee. I wish we had public toilets that you could pay for. I don't know how it is with you, but I, we have such a dearth of public toilets and I have a small bladder famously. So, so I really feel for John Doe in this case. He was 13 when this was filed. He's now 14. This is in South Carolina. And we've got, of course, one of the ridiculous bathroom bans, the usual stuff, right? And the proviso in this case is in a budget bill which says that 25 percent of the school district's budget will get yanked if they allow students to pee in the wrong bathroom yeah I see that look on your face I wish I could just explain that look in your face to the audience yeah

0:03:00 Jenessa: So yeah sometimes I forget this is not a visual medium and I need to somehow communicate my horror so this is a state law telling the local school districts because I know not every state operates their schools the same way like new york we have local school district and a state department of education so the state what

0:03:25 Matt: Yeah I mean literally the question on appeal this is still in front of the fourth circuit and I'll tell you why that matters in a minute but the actual issue is whether the supreme court should stay a federal appeals court's injunction that requires a public school in the state to allow a transgender boy to use the boy's bathroom while he challenges a state law that requires students to use bathrooms based on their biological sex advert. So once again, Republicans way too concerned about what kids are doing in bathrooms.

0:03:49 Matt: I think it's weird and creepy personally, but conveniently in the fourth circuit, we've already got the case of Gavin Grimm. I don't know if you remember that name, very famous plaintiff. He won the right in 2020. He fought a similar sort of provision.

0:04:03 Matt: I think it was the local level, but it was pretty much the same thing. And the court notes this as I went back and read the Fourth Circuit decision, and the Fourth Circuit says, look, we don't have any choice here. Gavin Grimm's case controls from 2020. Like, this is the same thing.

0:04:03 Jenessa: I do yeah

0:04:15 Matt: Yeah, except this is, you know, it's a state law, I guess, but in 2020, the Fourth circuit said that the Title IX and the Equal Protection Clause protect the student's right to do this, and now they're saying that they don't, I suppose. I actually have some language here. The state resists this conclusion on multiple grounds, none of which are persuasive. For example, it argues Grimm is not the analogous precedent President Doe purports it to be, raising a host of subtle factual distinctions and new arguments for why the proviso operates differently or is based in different interests than the policy at issue in Grimm. In large part, these arguments ignore Grimm's holding, straining for a reason not to be bound by what it said. Pretty simple. Now, what's interesting about this is that this is established Fourth Circuit precedent, and the other shadow docket cases we're about to look at are the Supreme Court spitting in the face of its own precedent. But in this case, the Supreme Supreme Court of the United States, as of the day we're recording, on September 10th, decided that it was going to respect the precedent of the Fourth Circuit for this one kid.

0:04:14 Jenessa: It's identical right sure all right cool you know what I can never figure them out because I mean normally what we would do right is I would say when it seems like sometimes they're doing something conservative and sometimes they are doing something liberal you'd be like yeah that's because the law isn't inherently conservative or liberal and following precedent can sometimes take you one way or the other but with this court it has felt especially recently like well they're just conservatives so they're going to do conservative stuff it's the obvious correct answer this is controlling precedent and I guess because because it's the fourth circuit they're above the circuit they don't have to respect it

0:05:40 Matt: Yeah, sure has. Yeah. But they do have to technically respect the standard that's required to grant a stay. And again, think about this. The entire state of South Carolina was like, no, we don't want this boy to pee in this bathroom. The entirely state. It's terrible. I know, like, we're laughing, but like, I really, and like, good for this kid, good for his family, because, you know, I was reading about John Doe in this case, like he had to leave school, he could not continue to go to school because he was being bullied, because the school disciplined him for using what they consider to be the wrong bathroom. And they made him take online classes, and he was miserable. And now he gets to go back to school. I wish him all the best. The order in thiscase, I just wanted to note, it denies the stay of injunction. And it says the denial of the application is not a ruling on the merits of the legal issues presented in the litigation. Well, no shit, guys.

0:06:03 Jenessa: Yes jesus yeah

0:06:36 Matt: We know, it's the shadow docket, right? Just to remind everybody, the shadow docket is when you're making preliminary decisions based on things of cases that are pending, right, that are not actually before the court in full. And they're just reminding everybody, rather, it is based on the standards applicable for obtaining emergency relief from this court. So it's almost like reluctantly they're saying, like, we have to follow around the precedent. And, of course, Thomas Alito and Gorsuch would grant the application if they could. But they wanted to make sure that's clear, that, you know, they would spit in the face of Fourth Circuit precedent if they had the chance to make sure that this kid has to stay at home and not be in the bathroom assigned, you know.

0:07:09 Jenessa: Yeah I think I see the distinction you're making now so it's the fourth circle is saying we're going to grant the preliminary injunction and say while the case plays out, you have to let them use the bathroom because that's our controlling precedent. You're probably going to succeed, blah, blah. The usual preliminary injunction rules. And when you go to the Supreme Court and say, get rid of the preliminary injuction, the standard is going to be not the regular old preliminary injunction rules, but specifically, what are the odds you're going to succeed in the Fourth Circuit, which again is very high.

0:07:52 Jenessa: We're not looking at if you win in the Fourth Circuit and appeal to the Supreme Court and then we think you're going to lose when you come to us. Like that's way too many steps in the future.

0:08:03 Matt: Right to basically likely the success and also the irreparable harm. And there is irreparable harmful if he has to continue to go to school from home. Right. I mean, that does seem like that's pretty bad. And that certainly the Fourth Circuit believe that. So, yeah, small win, but a good one for this kid and good for you. Of course, we do hope that the Fourth circuit, it sounds like, is going to uphold its own precedent. And we'll see what happens at the Supreme Court when it takes this up. So let's talk about some more shadow docket nonsense. Not so good here. We've got two big ones that came up this week that we really do have to talk about. The first is in Slaughter, which is a terrible name for the FTC commissioner. Now, this is, again, the Federal Trade Commissioner. And this is especially important because I don't know how much we've talked about this, but Humphrey's Executor is the case we're talking about here from 1935 is the controlling case. This has come up a few times on this program, but Humphrey's Executor is specifically a a case about the FTC. That's why it really matters. Directly on point, this could not be more on point. FDR tried to fire one of his FTC commissioners who was not appointed by him because this person opposed the New Deal and was trying to do everything he could to keep the New Deal from going into place. And there were a lot of people like this who were trying to stop the New Deal, including members of the Supreme Court at the time. But even the Supreme court, which was fairly New Deal skeptical at this point, 935, they were unanimous in Humphrey's. This was a 9 -0. The liberal justices didn't want a unitary executive, and the conservative justices were against the federal intervention, just being able to have FDR control business that way.

0:09:28 Matt: And of course, the FTC, as was pointed out, is kind of a quasi -judicial or quasi -legislative body. Now, the conservatives had a real problem with this for a long time, and to the point that in Project 2025, it is actually cited specifically as one of their goals. I think we even talked about this in the Project 2025 episode when we were catching up on what they want. Want. I'll just read, I actually copied in from page 560 of Project 2025. It says the next conservative administration should embrace the Constitution, yeah, great story, and understand the obligation of the executive branch to use its independent resources and authorities. This will mean sharing, etc., etc. One example includes potentially seeking the overruling of Humphrey's executor via United States. This case approved so -called independent agencies whose directors are not removable by the president at will. The Supreme Court has chipped away at Humphney's executor in cases like CELO Law via Consumer Financial Protection Bureau, but the president remains, the next conservative administration should formally take the position that Humphrey's executor violates the Constitution's separation of powers. And you'll never guess what this administration did. It took the position That Humphreys executor violates, the Constitution separated powers. That was a trick question. Yeah. No, I mean, you got project 2025 in one hand and your brief in the other hand, and you're standing up in front of the Supreme Court, letting them know that Humfrey's executor should be overruled. And the the reason I wanted to feature it this week is because we've talked before about Wilcox v. Trump, in which he was firing a member of the National Labor Relations Board, which never happened before in the entire history of the NLRB, clearly on partisan grounds. And at the time, you know, again, you had FDR firing an FTC commissioner because he disagreed with him, not for cause, which as we talked about last time with Lisa Cook. Lisa Cook is back up in front of all this, by the way, to

0:10:34 Jenessa: Every once in a while I'm like, wait, wait. Puzzle it out. Yeah okay this one was easy right and

0:11:12 Matt: Come back to that. Not for cause. Not anything that happened on the job, but firing him because he disagreed with his policies, which is what happened here with the FTC. FTC. No.

0:11:18 Jenessa: He didn't have any pretext of like oh it's it is for cause he was just openly I just want you gone

0:11:22 Matt: Yeah. Didn't even have anybody dig up any fake mortgage fraud. And I've seen arguments that the FTC is now not what it was, but I don't know the FDC to know if that's true. But what I do know is that Humphrey's executor is controlling precedent. And that matters because this is not a case on the merits. Once again, this is on the shadow docket where the commissioner of the FCC is saying, hey, Trump fired me. I'd like to keep my job while you figure this out because what's the harm, right? I'm the appointed commissioner of FTC and of course the lower court said, hey it turns out Humphrey's executor controls here. Let's keep her in her job. And the Supreme Court, in its infinite wisdom, stepped in on the shadow docket and said, no, this is too much of an emergency. She has to go for

0:12:04 Jenessa: Okay this is what's so wild to me so like the emergency on the other end is like if you're gonna have to consider this very serious question am I going to overturn this precedent that like heavily takes us towards the unitary executive which should scare people and this person if they lose their job it's not like oh they're going to be gone for a year you're goingto have an acting director which is exactly what trump wants because you don't have to get these people through the senate when he He gets to slip somebody in for a little bit.

0:12:41 Jenessa: And that person's not coming back. It's not like a year later you're going to reinstall them. They have to go get a job and live their life. There's the emergency. But apparently it's an emergency that Trump wants to do something and he can't. And we just have to panic every time this toddler is throwing a tantrum that he can'T do something. Thing like I don't I don'T EVEN UNDERSTAND HOW YOU COULD INVENT THE WAY THAT THIS IS AN EMERGENCY RIGHT THEY'RE

0:13:12 Matt: Yeah. And, you know, as we talked about in the vapid response about this with Adrian Vermeule, the Supreme court said in Wilcox, essentially, it didn't say anything particularly, but it suggested that Humphreys executor was not going to be lied. It didn't Say that. And it can't say that on the Shadow docket. It has to to go through the merits, has to have briefing and argument and actually determine that it's going to overrule its own precedent, which it didn't do. And yet, here we are, where they got kind of mad in another case where they're like, well, you should have noticed. And Adrian Vermeule said this directly. He said, well they should have taken notice that the Supreme Court was going to overrule Humphreys and acted accordingly. No, that's not how it works. It's the shadow docket. It's not real. It hasn't happened yet. They haven't explained themselves yet. And here we have the clearest evidence that Humphrey's executor is going to be overruled, obviously, because they're acting like it doesn't exist. They're just pretending it doesn'T exist.

0:14:00 Jenessa: LIKE SAYING YOU HAVE THE LIKELIHOOD OF SUCCESS ON THE MERITS OF THE TRUMP ADMINISTRATION IS HIGH THAT THEY'RE GOING TO WIN BECAUSE LIKE PS WINK WINK WE'RE GOING TO get rid of this is where I guess people are probably often confused by this because this whole shadow docket thing like that makes it sound so spooky and mysterious like prior to this court abusing it it was a normal thing like yeah sometimes you have to decide injunctions while we're figuring this whole case out like we do need to figure out what we're going to do in the the meanwhile cases take forever help us out here and it is normal to make an emergency temporary decision it's just that now the the problem is that they're making substantive decisions the fact that somebody said you should have taken notice of that here that's what really gives the game away is the idea that you should Have treated this like some previous emergency emergency docket case should have been treated like it was substantive ruling. No. What?

0:15:04 Matt: Yeah. Yeah. Yeah.

0:15:16 Jenessa: Go back to law school.

0:15:18 Matt: Yeah, no, people keep saying that, you know, these district courts and appeals courts are overruling the president because they just don'T like the president. But the president's never done anything like any of this. Like so many of these things are completely new and they're just coming before the Supreme Court and they'RE like, yeah, that'S fine. Sure. Let'S let that stand. And of course, as we've talked about before, when it'S something like slashing the Department of Education, when that stands, that stands. Stance. That's going to be harder to get that back. Same with all these other grant funding things, you know, these ridiculous orders. We haven't had time yet to talk about the grant funding thing in which Kavanaugh basically said you have to go through several different hoops before you can keep your grants. I want to come back to that at some point. But I just want to point out the FTC thing, the slaughter thing, is such a boring one paragraph order that just says it's so ordered that, you known, it stayed pending further order. And they just don't feel feel like they have to explain themselves.

0:16:08 Jenessa: Because technically on the emergency doocket, they don't. Which is why it's not supposed to be a substantive ruling, gah.

0:16:16 Matt: But here they are making big decisions. Kavanaugh said the other day, actually, I think it was last week, he talked about the interim docket. He really doesn't like calling it the shadow docket, and he points out that not everything is an emergency, but he's basically defending the idea that presidents are trying to advance their agenda despite inaction by Congress, because it's true. Obama did this to some degree as well, and certainly I'm sure Biden did as well. But nobody did it like this.

0:16:38 Matt: And he said that essentially because the executive is doing these kinds of things, it requires more intervention for the Supreme Court, but I don't know.

0:16:44 Jenessa: Yeah, but when you're saying the executive is doing this so much that we have to intervene, intervene what you're supposed to mean is we're intervening to stop him not if you're like oh he's running rampant so we intervened to affirm his right to do that what like you could just as easily shut up and do nothing and it wouldn't change anything with like shadow docket yeah okay it does I can fine be mad about that emergency docket is correct because it's supposed to be an emergency interim like that's trying to get away with this of like well it's not always an emergency but I still want to say something like no shut up if it's non -emergency then you don't get to say

0:17:05 Matt: I'm with him. Yes. I would like to know what Brad Kavanaugh thinks an emergency is. Cause as we'll talk about in the next case, he doesn't care very much about a lot of terrible things that are happening to people, but yeah, no, in this case, you're talking about somebody who literally wants to know if they have a job or not. That seems like an emergency. I mean, like, can I show up to work tomorrow?

0:17:31 Jenessa: Anything yes it's an emergency for them and it is just so fundamentally not an emergency for

0:17:49 Matt: No, like he can survive having the person who was appointed to the federal trade commission to serve out their usual term, finish that term for a few months while the Supreme Court gets around to overruling Humphrey's executor, which it's clearly going to do, but it owes all of us an explanation as to how it's going to doing that and why, because I think Humphreys' executor makes a lot of sense. And when you're talking about boards like the FTC, they're supposed to be beyond the reach of the unitary executive. They're supposed be somewhat in between. And I also understand the argument that Humphry's executors is the birth of the administrative state. It's the idea that that you can have, it's like a semi -autonomous branch of government that has to deal with a lot of the dirty work of the government.

0:18:28 Matt: Maybe not the dirty word, but you know, the work of the executive branch. Most of it was pretty dirty and I can see both sides of that one. But at the same time, if you're going to overrule it, you have to tell us why.

0:18:28 Jenessa: Trump just

0:18:41 Matt: Yeah, that's right. So we'll come back in a minute and talk about a case in which only Brent Kavanaugh had the balls to explain himself and no one else.

0:18:39 Jenessa: Have the balls say

0:18:49 Matt: And we'll give him very partial credit for that, but he's still not a passing grade. Be right back.

0:18:46 Jenessa: It can't

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0:20:36 Matt: So we got to talk about Nome v. Vasquez -Perdoma, which is the appeal that was taken up to stay Charles Breyer. Charles Breier has been in the news a lot recently between the Posse Comitatus Act case that we talked about recently and this very lengthy, very well -written decision in which he explained why ICE and the Associated Federal Agencies just can't run rampant, running around greater Los Angeles, just picking people up who look Mexican. In fact, the Supreme Court, in a 9 -0 decision, as we'll talk about, has already decided that You can't just pick people up before because they look Mexican directly on point, but you do. A lot of things we get to say a lot of these days. The Ninth Circuit spent 61 pages. I've got to say, they put this together very quickly. The NinTH Circuit got that. And again, this is on a stay. This is just a decision on a state, not on the merits. Just a state to determine what ICE can do in LA right now, in California.

0:21:07 Jenessa: Believe I have to say that like yeah Yeah.

0:21:26 Jenessa: See, now there's an emergency. They're there. They'RE doing things. You're telling them to stop. They 'Re saying, I don't have to stop." Yeah, we need to figure this out right now while the whole larger case proceeds. Doesn't that make sense?

0:21:42 Matt: I think so. But, you know, what do I know? I just practice law.

0:21:47 Matt: So Charles Breyer, brother of Stephen Breyer from the Supreme Court, had this very reasonable decision in Los Angeles in which it was brought before him that ICE and CBP and at this point DEA and IRS and ATF, I mean literally IRS, they're all running around with no training, just kind of picking people up who look Latino.

0:22:03 Jenessa: Wait, wait, wait. Rewind. I thought you were just joking listing agencies.

0:22:13 Matt: I would not joke about the IRS.

0:22:14 Jenessa: I just picture you're a bunch of nerds in plaid shirts they're physically out there arresting people

0:22:20 Matt: I recently learned that there are some IRS agents that are able to carry guns. So that's a fun fact. For some reason, and IRS agents aren't out on the street looking for people who might appear to be billionaires and profiling them.

0:22:27 Jenessa: I am fascinated okay now see that would make I guess I get that they have to enforce tax law but I don't quite know why that involves a gun most of the time but yeah

0:22:45 Matt: I hadn't thought about this before. I'm just indulging this fantasy now, pulling every Maserati, raiding every penthouse in LA, right? Just like on suspicion of billionaire. We all know Elon Musk and Jeff Bezos aren't paying taxes. They are California residents.

0:22:54 Jenessa: There you go god imagine if you just audited all of them all the time what a world we could live in go ahead

0:23:04 Matt: So, oh, no, absolutely. If the IRS acted like ice, honestly, I still wouldn't like it. But I'm just saying like there are other targets to be a lot more profitable for everybody because we're We're actively harming the economy right now, obviously, by picking up farm workers and cleaners and kitchen workers. What we have here is Charles Breyer's very lengthy order. As I said, the Ninth Circuit worked overtime to put together a 61 -page extremely well -reasoned decision, which upheld that order. But just to be clear about what he ordered. So he was being asked about ICE enforcement and just generally immigration enforcement in his district. And he said, except as permitted by law, the defendants are not permitted to rely solely, solely alone or in combination on the following factors to form reasonable suspicion for a detentive stop. I remind everybody, I think you remember this from law school, reasonable suspicion, reasonable articulable suspicion is a Terry stop, right?

0:23:12 Jenessa: Yeah, there you go. Right.

0:23:52 Matt: The case that this draws from builds on Terry, which we'll talk about, but the factors he identifies are apparent race or ethnicity, speaking Spanish or speaking English with an accent, presence at a particular location, and the type of work one does. So you can't use any of those alone or in combination to profile people to just randomly stop them for immigration purposes. Makes sense. Obviously, we're talking about California, we'm talking about LA, where there are quite a lot of Latino people, a lot of people who speak Spanish, including people who speak English very well, not that it matters, but plenty of bilingual people as well. So just overhearing somebody who looks Mexican speaking Spanish who happens to be on a construction site is not reason to go and arrest them.

0:24:30 Jenessa: So if you stop somebody, that articulable, you're supposed to be able to articulate, give some concrete, conscious reason that you stopped them. And that reason can't be, well, they kind of looked like an immigrant. That's not good enough. You have to explain why you thought they were committing a crime or why you thought they Were I guess for ice purposes why you Thought that how would you just look and know That they're undocumented.

0:24:58 Matt: Oh, you know.

0:24:59 Jenessa: I guess that's the point Literally,

0:25:01 Matt: Yeah. I mean, at one point, there were an astonishing number of undocumented Irish people in Boston, not that long ago, like when I lived here.

0:25:10 Jenessa: How would tell that's all of boston is just I wonder what the percent irish population is. It's high High enough.

0:25:15 Matt: Yeah, and we love them. But again, like, if you're talking about reasonable, articulable suspicion. All right. So my first question, when I was looking at this was about Brignoli -Ponce, which is a case from 1975. And I was familiar with this case already, just as a practitioner. And in this case, it was a 9 -0, a unanimous decision. It was actually one of William William Douglas's last case, he wrote a brilliant concurrence on it. And the holding in that case was that CBP, when they're doing routine stops, can't just stop people because they look Mexican. It's a pretty good decision.

0:25:48 Matt: They can use it as a factor. And they're saying there are any number of factors that could justify a stop. But they did actually specifically say that ethnicity could be used as a fact, which has always been a problem. It's always been kind of the hook that could lead to this kind of decision. Also, there was a note that I pulled out here from Bregnone Ponce. The government also points out that trained officers can recognize the characteristic characteristic appearances of people who live in Mexico, relying on such factors as the mode of dress and haircut. So you're in San Diego, and you can tell the difference between somebody who lives in Mexico and somebody who lives in Saniego, miles away.

0:26:07 Jenessa: Oh what What? Wait. Okay, because at first I thought they were going to say by physical appearance. I was like, literally, how could you possibly tell somebody who lives 50 feet on one side or the other of the border? That's ridiculous. But they're trying to say like somehow just culturally. Also, no, culture crosses borders. Somehow they could. There's

0:26:43 Matt: Really leaving the door open there. Yeah.

0:26:44 Jenessa: A haircut that's more popular in mexico like what are you talking about all right

0:26:45 Matt: The holding was ultimately that Mexican appearance can be a relevant factor. The standing alone does not justify stopping all Mexican Americans to ask if they're aliens. So that's a pretty good holding in the end. I did appreciate it. So, you know, William Douglas, I have a complicated relationship with as a justice. As I've said before, real dirtbag, real champion for justice. This often happens, these combinations. He wrote a brilliant concurrence. It was, I think, the last thing he wrote for the court in 1975. He was the person to hold on the longest with Supreme Court seat. He's very proud of that. He actually kept a note card in his desk reminding him of when the ultimate time was that he would beat that, the record. He said at the time that Terry, which the famous Terry stop, which is when you have reasonable articulable suspicion, when you can just pat somebody down because they look like they're acting weird. Standing outside an electronic store, just like in a way that the cops thought they were casing it, that they were acting very strangely. And they could just stop and, hey, what are you doing? It's like 1130 at night while you're hanging around this TV store, right? And Terry was in 1968 and Brignone Ponce was in 1975. And I think this is very prescient that Douglass said in this case, and Brighone Ponse has concurrence. The nature of this test permits the police to interfere as well with a multitude of law abiding citizens whose only transgression may be a nonconformist appearance or attitude. If in the future the suspicion test is to provide any meaningful restraint to the police, its force must come from vigorous review of its applications and not alone from the qualifying language of day's opinion. For now, I remain unconvinced that the suspicion text offers a significant protection of the comprehensive right of personal liberty in the face of governmental intrusion. And he was making the point this was the first time in seven years that they had actually said that there was a that they'd gone too far with the Terry stuff, that any government agency had gone too hard. And he's saying, good job, guys, A +, but let's remember that this is dangerous.

0:26:54 Jenessa: Thanks yeah oh

0:28:31 Matt: Brett Kavanaugh really points out why, without trying to, why this is actually pretty dangerous. So what we have, of course, because this is a shadow docket case in Noam V. Vasquez -Bredomo, is we have a very, very short majority, which doesn't say anything. The majority stays, the Ninth Circuit's upholding of the stay, and says if cert's denied, then the stay will terminate. If cert is granted, the stay Will terminate after we decide on it, right? So that's it. That's all they say. They don't explain anything. Nothing. Yep.

0:28:59 Jenessa: Wow they don't say so they literally just say you put a stay in to stop ice from doing xyz we're staying the stay ice can do it

0:29:11 Matt: No explanation. And so Kavanaugh, when nobody else asked, took it upon himself, took about himself to explain. And it was, it's, it's very funny because, you know, it'S one of those situations where it's like, well, maybe there's some benefit of the doubt we can give. I mean, I don't, but we could give the rest of the court that they're not just being racist, but Brett Kavanauch has to open his mouth and reveal that he just doesn't know what he's talking about. So first of all, he barely mentions to Brignoli Ponce. And as Sotomayor points out in her dissent, he kind of misses the entire point of Brignoni Ponce, and she's saying, like, the way you cite it makes my point about why you don't understand it.

0:29:47 Matt: The thing that really got me with the Kavanaugh concurrence was, you know, I've been wondering for a while where these people get their news.

0:29:45 Jenessa: Again oh

0:29:54 Matt: I think we know where they get their news, probably the same place that our grandparents do. But he's certainly not on Blue Sky, I'll tell you that, because he's not seeing the videos that we're all seeing or the stories we're seeing about U .S. citizens getting detained for days about people being beaten up and harassed. You know, I'm sure you saw the famous video recently of the father of two Marines, like, just getting beaten in the street. ICE is out of control. They're off the chain. But in Brett Kavanaugh's world, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a U .N. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. Would that be nice? Just will be for you. Yep.

0:29:54 Jenessa: Yes yeah except that implies that somehow you magically know I'm a citizen and therefore I am free to go how how like what do you hear yourself yeah of course a citizen would be free to go if they're walking around with their freaking passport

0:30:42 Matt: Yep. Yep. Which you might have to do these days. I will read another report, very similar, but I just want to make the point that he repeats himself. Questioning in these circumstances is typically brief. Yeah, typically. And those individuals may promptly go free after making clear to the immigration officers they are U .S. citizens. I'm sure Brett Kavanaugh could promptly go free. No question. Sure, I could. You could.

0:31:07 Jenessa: Oh my god he's just making it sound like all you got to do oh officer you've misunderstood I'm a citizen and they're gonna be like oh yes okay goodbye like what what world are you living in

0:31:16 Matt: So sorry. There are plenty of citizens who are not completely fluent in English or who just may look Mexican to your esteemed judgment as an ICE officer. And we have heard so many stories of so many different abuses and so many ways of being abused. And that's exactly what Charles Breyer, working from these stories, working for the testimony I had in front of him, why Charles Breier did a very thorough stay in this case, saying, I have heard this testimony. Everything's in front me. I understand the problem. And that's why we're going to set some limits and how you can do this enforcement. And ICE went up and complained and said, no, this is getting in the way of our ability to drag people off the street anytime we want to.

0:31:55 Matt: Here's the part that really made me mad. I got to tell you, this, this was was awful. To the extent that excessive force has been used. I love that. To the extent, you know, if it's happening, if it's even happening. The Fourth Amendment prohibits such action. Thank you, Brett. I'm glad to hear that.

0:32:05 Jenessa: Forbid so what would you like them to do because I know if they sue you're gonna give them qualified immunity and theyre not gonna get to do shit about it

0:32:16 Matt: Well, he doesn't know that, because he says in the next clause, and remedies should be available in federal court.

0:32:24 Jenessa: Are you What did I just say? You!

0:32:28 Matt: Yeah, I thought you'd enjoy that. I thought I'd enjoy that. They should be, shouldn't they? Wouldn't that be nice? But the problem is, and their whole reason, literally you Brett Kavanaugh because in 2022 the very first time that I came on to opening arguments to talk about Egbert v. Boole and Brett Kavanagh joined the majority in that case which ended any possibility of suing ICE or CBP for violations of your civil rights I'm telling you it completely killed yep and it was a Bivens case and he basically they said that BivenS doesn't apply to agencies that are doing anything to do with national security ICE has declared itself to be a national security agency as a CBP so we're not going to look behind it basically you just can't sue ICE for anything and they know it. I'm sure you've seen these videos recently of ICE agents just shoving people in the street, like just being super violent and rude and aggressive because they know that they can't be sued.

0:32:52 Jenessa: Wasn't it exactly a Fourth Amendment case too? Oh.

0:33:14 Jenessa: If you can't be sued and you know you're not going to be disciplined and you know you know, you're going to get sued. You're not gonna be fired and you're gonna be prosecuted. Like there's literally no check on your behavior. Those are the options to get you to stop. That's why we created the lawsuit option, the Section 1983, to sue state officials and Bivens to sue federal officials that if you couldn't trust that somebody was going to be disciplined or fired or prosecuted for their behavior, if the state officials aren't going to do something about it, that you could do something About it. And then we just slowly have walked that back. The idea that he's, he said some vile stuff in that case about the ways that cops need to be able to just open fire on people because, God, their poor little souls are so scared all day. So he's the one who just made it impossible. If he's writing this decision and saying there should be remedies, like the normal law school thing to do would be, I'm going to cite to some cases that tell you what the remedies are.

0:34:30 Matt: Such a

0:34:30 Jenessa: I'm gonna just make a guess here and say there's no citations on that sentence.

0:34:35 Matt: Good guess. He said they should be available in federal court. And if he was going to be honest, he would have cited to the case in which he concurred, in which he signed off on. And I believe he was a bully in which she removed those remedies. But it's such an typical conservative legal thing to do, to be like, well, you know, there's a remedy probably go do something about it it's up to you if this exists but it's dead it is practically dead at this point

0:34:56 Jenessa: Yeah, it's been dead. It's been nearly dead since before that case. That case. Yeah.

0:35:01 Matt: It was on life support no doubt yeah it's typical Brett Kavanaugh kind of approach of here's what you could do and have at it so of course Sena Sotomayor in her usual response 21 pages am I going to read all 21 pages I'll just read you a quick excerpt here pointing out directly that this is yet another grave misuse of the emergency docket because we have a district court that has carefully considered this and made recent and findings. We've got an appeals court that took the time, weeks, honestly, just like, I can't believe how thorough the state decision is, the 61 pages, took the Time to carefully consider everything the district court had to say, review its findings very thoroughly, and upheld them. And she says that decision, this decision that they're making today, is yet another grave misuse of emergency docket. We should not have to live in a country where the government can seize anyone who looks Latino, speaks Spanish, and appears to work a low -wage job. Rather than stand by idly while our constitutional freedoms are lost, I dissent. This is the kind of language she's been using recently. And she goes on to just list a whole bunch of examples for Brett, just in case you missed them, on the record of places where masked agents are just violating people's rights all over the place and beating people up and holding them, you know, for days and abusing US citizens and doing everything else that Judge Breyer was concerned about. But, you Know, remedies should be available. So here we are.

0:36:14 Jenessa: You know, I really appreciate her. She's been doing a really great job of of including examples concrete examples that you cannot ignore she did that really well in that case about the homelessness law in washington of like oh you're gonna tell me this law doesn't affect anybody let me list for you specific individuals and the things that happen to them and like tell me this doesn't matter and it's it's really the same thing is like I don't exactly like you're saying I don' t know where you're getting your news from but like open your eyes I have a neighbor who has an outdoor TV that is just on Fox News all the time. As torturous as it is to be listening to that, it actually is pretty revelatory to hear not just the spin on what Fox News viewers are hearing about certain stories, but also just the things that they are flat out not hearing. The number of stories that I'm like, this is blowing up my phone, this particular story and there's fox news is just yelling about mom donnie for the fifth time today about

0:36:28 Matt: It's so good. Exactly. Yeah. Of course.

0:37:24 Jenessa: Nothing the the nothing he's done he's campaigning like it's it does make sense like they're most of them are listening to fox and then alito is listening to alex jones that's becoming increasingly clear

0:37:28 Matt: Naturally. Brett Kavanaugh barely acknowledges Pregnone Ponce, which is controlling precedent in the same way that we have Humphrey's Executor controlling precedent in the Slaughter case. And he's just going on to just kind of blithely do his own thing and explain himself. And it really would have been better if he didn't. I'm glad he did. It's nice to actually get some kind of actual explanation.

0:37:55 Matt: I don't like it, but it's an explanation. It certainly better than we usually get in the shadow docket from the majority. He's got some like weird pointed comments about people jumping the line and whatever. But he basically is taking the position that irreparable harm occurs anytime the government is enjoined by a court from effectuating statutes enacted by representatives of people right if you can say you're enacting a statute which is what ICE is doing right they're saying we're just trying to enforce immigration law here uh yeah as long as you say that then rick kevin will tell you that there's irreparable injury if you can't do it

0:38:11 Jenessa: Well then that means there's always there's literally never not irreparable harm so that would just mean that part of the test there is no burden on the government to pass that part of the test which is like the exact opposite of what it whatever happened to like oh the tyranny of government individual rights like where did that go

0:38:45 Matt: Oh that's so last year Jenessa that was when we had a tyrant in office yeah

0:38:47 Jenessa: I forgot that was a yeah that was a thing we only believed when we had a black president right I

0:38:54 Matt: And the old guy that they didn't like but yes the true tyrants Thanks Obama and Biden. So I got to tell you about this Board of Immigration Appeals case. It's been on my mind, of course, because I am, if I sound a little tired today, it's because I am. I've had a pretty rough week. I had honestly one of the worst days of my professional career today. I don't really want to talk about it, but one feature of my week has been having to tell people who otherwise would have had fantastic bond cases that I could get them out and get them back to their families, that there's nothing that I can do for them. And it's not a good feeling. It's not good feeling at all to be told by someone that, well, I was told you're the person to have the answer. And the answer right now came down on September 5th. And that was in the matter of Yehuri Hurtado. And I just want to talk for a moment about the Board of Immigration Appeals and why this decision matters so much. Now, we talked on OA a couple of months ago. I basically brought the news from the field, from the front, of what ICE is trying to do in court. ICE is taking the position that anyone who crossed the border without permission is subject to mandatory detention. This was news to us. In the 20 years that immigration law has been the way that it is in all the time I've been practicing and in all of the precedents of which I'm aware, nobody had ever said this before. There was one immigration judge in Washington state who was convinced of this, and he ended up getting a habeas against him from a district court that said he was wrong. Otherwise, this has never worked. Now, I'd love at some point after a little more coffee to break down the actual basis of what they're arguing, but it will absolutely make your eyes close over and we will lose listeners, even the listeners who are still with us waiting to find out about whether or not you can get married by a dead bear full of cocaine, which I promise is coming.

0:40:33 Matt: The statutory argument here, this is part of what fascists count on, right? It's so boring. It is so convoluted. It's so confusing. But as someone who actually does know the Immigration and Nationality Act, as I read it, I'm like, what planet is this from? What planet is this argument from? How are they saying out of nowhere that we are now in INA 235 proceedings and that all of these people are applicants for admission when nobody has thought to make this argument in all of this time, except right now we've got some ICE attorneys that have started making it and some rogue immigration judges started accepting it. And then suddenly the Board of Immigration Appeals, which I'll remind you is not an actual court, it's just the appellate body within the Department of Justice that reviews immigration judge decisions. And immigration judges are not actual judges, of course, they're executive judges within the Department Of Justice, just to keep that in mind. In this case, they came and affirmed this this radical previously extremist previously unheard of idea that every single person present in the united states who came here without permission can't be released by an immigration judge on an order of bond and that's news to me having had hundreds at this point of people released on bond and the government never mentioning that before

0:40:33 Jenessa: Forgot yeah it'd be one thing if there was like a new law or a new executive order that like purports to change it but they're arguing every time that's ever happened in the past was incorrect cool all

0:41:55 Matt: That's right it's hard to find a favorite part because this is so bleak and I gotta tell you just because again, I'm a practitioner. I'm coming into the show as a practitioner and I just about had to cry the other day when I, and I've had to do it several times now, but I had to tell somebody for the first time that your husband who has been living here completely without fault has never been arrested for any reason, has a six month old baby at home, has got you at home is a great provider, has great job, has working with a work permit, has pending asylum application. That would have been a great bond case. We probably could have gotten you minimum bond, gotten you back back out within a couple of days. And now I have to tell these families that there's nothing I can do to get you released. The dramatic whiplash of that, how much that hurts for me personally. And again, it doesn't hurt anywhere near as much as it hurts the families, but I'm just telling you the secondary trauma of having to tell people that I'm no longer in a position to be able to help you, which is my entire job. That's why I'm here. And that's what I love to be able to do. So I just have to acknowledge and just feel for all of my colleagues right now who are feeling this, because I know that we're all taking it pretty hard. And it's a tough time And it's going to be a rough few years. But I have faith, at least in the First Circuit where I'm sitting, that we're going to get a reversal on this.

0:43:00 Matt: We're going to get at least a stay of this. And then because, wonderfully, you might remember, Chevron deference is out the window. Chevron deference applies here or would have applied. Lead. Now, Chevron deference, to remind everybody, of course, is when the judicial courts, the actual courts, have to defer to administrative agencies like the Board of Immigration Appeals because they are the experts in the field of immigration or whatever administrative thing they're looking at. So they have to say, well, you probably know better, so we're going to defer you to a point unless it seems like you're really out of line. But as of Loper Bright last year, which we talked about at length, they no longer have to do that.

0:43:32 Jenessa: Don't have to be wildly out of line they can just kind of disagree agree

0:43:36 Matt: Yeah, they can say, as long as this is not like a core, very straightforward interpretation of the statute, we can do whatever we want with it now. I said at the time, and a lot of immigration attorneys said at that time, that killing Chevron Deference is going to be bad for a lot places, but it's going to be great for immigration, because it means it's gonna render the Board of Immigration Appeals not irrelevant, but it'll make it a lot harder for them to get anything to stick. So I do have some hope, and I just want to, before I move on, say that I do some hope on this point, because the Board really tried they tried very very hard in this case to say that well clearly this is just an obvious interpretation this thing that nobody's ever thought of before so they cited Loper Bright and they said that you know you're going to have to defer to us because this is pretty straightforward I don't think the first circuit's going to agree with that I hope not I don'T think a lot of the circuits well I think probably in the end maybe the supreme court's going find a way to twist itself around to agree but this to me you know I went to law school 22 years ago and it was a different time. I knew in theory, as I was exploring my politics, starting to figure out that I didn't really trust the government very much. I understand that law is a pure exercise of power, but I've never seen it quite like this. I have to say, I've ever seen it play out quite like this for the executive body that gets to determine what immigration law is, which has recently been stacked with Trump appointees. And they yanked most of the people that weren't one of its most extreme members and two others can just step in and say, no, this is the law now. Now. We're the law now. That's where we're at.

0:45:03 Matt: That's what's happening. It was bad enough when ICE was just making the argument to judges and some judges were buying it, but now it is officially law throughout the entire immigration court system until somebody says otherwise. So stay tuned. I'll certainly be watching that, but I just wanted to point it out because it is a catastrophic, and it's the kind of thing that there's going to be a difference between practicing deportation defense for people in custody before this case and after this case. It's that dramatic. So we will see. Very quickly, I wanted to give a couple of Epstein updates because we've got to talk about the Epstein stuff. I don't know if you've been following much of this. Did you get a look at the birthday book?

0:45:02 Jenessa: I happened to see one particular excerpt that um might be familiar to others oh

0:45:44 Matt: An excerpt, which is the subject, of course, of a libel suit against the Wall Street Journal in which the plaintiff, you might remember the plaintiff Donald J. Trump, is claiming that the Wall street journal completely made it up. I want to actually read the excerpt just so we can all enjoy this right now. The defendants, which are the journalists responsible for, you remember the Wall street journal broke the news of not only the birthday, but put up the idea of the general Trump had put in this note, which is exactly as described, the note that we have received now is exactly what they told us.

0:45:48 Jenessa: Identical

0:46:09 Matt: It says in the complaint, I just had to pull this, falsely pass off as fact that President Trump in 2003 wrote, drew, and signed this letter. On the other hand, the defendants failed to attach the letter, failed to attach the alleged drawing, failed to show proof that Donald Trump authored or signed any such letter, and failed to explain how this reported letter was obtained. The reasons for these failures are, are you ready? Do you know why? Because no such authentic letter or drawing exists. That aged badly. I think he's still trying to say it's fake, but it looks pretty real to me.

0:46:08 Jenessa: Oh oh oh that's why every time you see this posted somewhere people are posting comparison signatures of like his signature over the years next to it it might literally just be the libel defense there of like go ahead and sue me the reason I'm saying it's probably you is here's a comparison of your signature on every single one of these it's it's you man like obviously

0:47:06 Matt: I have a wonderful collection of reactions from Republicans who are all basically like, well, he says it's not true. So I guess that's not really true. It's not him. The president says he didn't sign it. So, I take the president at his word, said James Comer. I've heard about it. Of course, we had Mike Johnson say, but no, the white house says it's not true so dot dot dot uh jim jordan says I haven't seen it don't buy it there's a dispute about whether it's a signature it says john thin these people of course completely all captured by the presidency and I will point out that the drawing itself is not of an adult woman at least as I understand the proportions of an old woman and I'm gonna say I'm fairly familiar not to brag but it is uh somebody actually did a brilliant I mean this is kind of sick but it really had it coming they put the line drawing exactly over a picture of Ivanka Trump at basically 14 or 15 and it fits her exact body yeah sorry to point that out yeah but it does make the point

0:47:58 Jenessa: No oh gross oh he has made so many gross sexual comments about ivanka and wanting to date his his daughter.

0:48:10 Matt: Yeah she also as I'm sure you did when you were 17 made her father promise that he would never date anybody under

0:48:17 Jenessa: Yeah, that was never really a concern of mine that I had. No, no, never really had to worry about that. Uh, what the? And he

0:48:19 Matt: 17 never had that conversation your father yeah the fact that she had the the presence of mind at 17 to say you know you can't actually date somebody younger than me

0:48:35 Jenessa: Admitted it. He made, he made a joke about, isn't it so funny that she said that? Like, no it is not, my friend. Ew.

0:48:41 Matt: I bring this up obviously because we've got to talk about the Epstein stuff and the fact, of course, that Republicans are now trying to continue to stop this. There's a bill that looks like it's going to pass when a couple more people are sworn in pretty soon here, sponsored by Doug Massey and Ro Khanna. The Epstein Files Transparency Act. It looks like we're going to actually be able to get it done. There are a few rogue Republicans that, you know, basically QAnon Republicans that are on board with seeing the Epsteins Files. I don't care. Whatever gets you there. Let's get over the finish line. Let's the rest of the stuff out. Because I got to say, when I looked at this birthday book, I was expecting to see the Trump thing. I was expected to see some kind of gross stuff. It is worth, just brace yourself, but take a look because this book, this collection of stuff is the best argument I've ever seen that billionaires shouldn't exist. It is disgusting.

0:49:25 Matt: It is an absolutely disgusting document because there is no doubt that everybody, including Glenn Maxwell knew what this guy was up to and what he was about. And that he was an absolute sex pervert, like, and not in the fun way, like in the bad way, nothing against my pervs here I'm just saying this is bad I mean some of the stuff in here will absolutely make your skin crawl and that's just in the book that they put together to celebrate his 50th birthday so I can only imagine what might be out there that they don't want you to see this is what they're allowing you to say we'll see we'll continue to follow as we go and we'll be right back to talk about whether or not you can get married by a dead bear full of cocaine what

0:49:39 Jenessa: In the predator it her way.

0:50:06 Ad: [Ad break 3 — ad music]

0:50:07 Jenessa: Much. Nothing. I think I would argue nothing, actually.

0:50:08 Matt: Do you know about cocaine bear it's okay nothing worse than getting ambushed by cocaine bear. Sorry about that.

0:50:16 Jenessa: Oh, wait, wasn't that a movie?

0:50:19 Matt: It did become a movie.

0:50:20 Jenessa: Wait, it became a movie. This was real life.

0:50:24 Matt: This did happen. There was a bear. Now, the movie, I believe, I haven't seen it, but I think the movie involves the bear going on a rampage after consuming a lot of cocaine. Sadly, the bear itself, I'll just read from the autopsy of the bear, which exists. I mean, not the autopsy, but from the guy who did the autopsy. Its stomach was literally packed to the brim with cocaine. There wasn't a mammal on the planet that could survive that. Cerebral hemorrhaging, respiratory failure, hypothermia, acute renal failure, heart failure, stroke, you name it, that bear had it. And I feel bad for the bear. But what happened was there were some drug traffickers that were about to crash their plane that dropped $15 million of cocaine on top of this bear. And the bear went to town and ate it all, or at least a lot of it. There was cocaine everywhere around this bear's body.

0:50:37 Jenessa: Why would the bear eat it?

0:51:08 Matt: I wouldn't think cocaine would be naturally appealing to bears, but I don't know. I've never tried it myself.

0:51:11 Jenessa: I would have thought they would get a little bite and be like, whoa, and run away and go eat some berries or something I don't know oh boy all right god damn it

0:51:17 Matt: Your Hungry Bears package that kind of looks like it might be food. I don't know. It's chemicals.

0:51:24 Matt: Cocaine bear, a.k.a. Pablo Escobar, or Cokie the bear, died of a cocaine overdose in 1985. So this is the bear we're talking about. And I don't know why we're speaking about this on this lab podcast, except that I saw this little news item and I had to talk about it. This isn't really a debug because I don't think you need to be a lawyer, but I'm going to go ahead and read you the official position of the Kentucky Fun Mall about their current status of cocaine bear. Now, a bear, which they claim to be cocaine bear, is taxidermied and on display. Yes, the people who did the autopsy on cocaine bear claimed that the bear was in such a state of disrepair that it could not be the same bear these people absolutely insist that this bear was cleaned up and taxidermied and this is the bear they have from 1985 that is still in the kentucky fun mall why are we talking about this in a lot of podcasts we're talking about this because the official website of the kentucky fun mall which was brought to my attention states kentucks liberal and peculiar marriage laws didn't think we were going to marriage laws did did you? Mean that cocaine bear can perform nuptials at

0:51:52 Jenessa: Oh bullshit all right what

0:52:26 Matt: The fun mall, despite being a bear and also dead.

0:52:31 Jenessa: Okay wait wait all right hang on because I'm not super familiar with the process normally you sign a marriage certificate and you have to do that in front of some right okay yeah because you have witnesses, but then you have to have somebody who's official.

0:52:42 Matt: An officiant. Right, right.

0:52:52 Jenessa: And you're saying there is something about Kentucky law that the officiant could be not just any old person, but any old object?

0:53:03 Matt: Well, you know, I'm going to look it up. I'm here to tell you that this is an extremely dubious legal explanation that has been provided by one of the owners of the Kentucky Fun Mall. As long as you feel that the person marrying you, like cocaine pain bear, has the authority, then that marriage can be binding here in Kentucky. In a sense, I agree. Marriage is very much like Tinkerbell. You have to believe in it for it to work. That's true.

0:53:27 Jenessa: Fair.

0:53:28 Matt: Having tried it myself, you do have to actually believe in it. And it's still working fine for me. But I'm just saying the thing is, that's not true.

0:53:38 Jenessa: Okay, all right. Yeah, because that sounds like nonsense. Got it.

0:53:43 Matt: Yes. Now again, marriage is in the eye of the beholder. And there are lots of ways to do it. But the state doesn't quite see it that way in terms of how you actually get to the point where they can declare you to be legally married. And so there's a story that caught my attention from March 27th, 2023, in which Armando Elizondo and Alexandra Venturino were married by cocaine bear, allegedly. And the official justification was Kentucky revised statutes 402 .070, which is what they say they're citing here. Marriage not invalid for want of authority to solemnize. No No marriage solemnized before any person, got to emphasize, got to have a lawyer tell you this, any person professing to have authority, therefore, shall be invalid for the want of such authority, if it is consummated with the belief of the parties or either of them that he had authority and that they have been lawfully married.

0:54:20 Jenessa: Ah, there it is. Okay. Okay?

0:54:36 Matt: So you can't invalidate a marriage just because somebody told you they were a minister and they weren't a minister, right?

0:54:40 Jenessa: Right. That's not my fault.

0:54:41 Matt: Right. And in my case, of course, we just had my brother -in -law just like did the quick click, you know, I'm a member of the Universal Life Church or whatever.

0:54:47 Jenessa: Right? Yeah, I know people have done that. Right.

0:54:49 Matt: Not everybody needs clergy to marry them, right? You just need somebody that the state will recognize. But the state doesn't recognize a dead bear full of cocaine. It turns out, Bryn,

0:54:56 Jenessa: And that was not a person. This came up in patent law recently where somebody tried to patent something that a computer program had written. And the judge was like, listen, I'm not even going to get into the philosophical question of whether a computer can invent. I'm just going to tell you right now, the law says people and person, and we have never not once held that that means anything other than a human being. So we're done here.

0:55:11 Matt: What do you know? That's what's up with cocaine bear. And now I will say the people in that case, fortunately, they did actually have a person, Griffin Van Meter, officially marry them afterward, quote, just to be sure it's binding.

0:55:37 Jenessa: There you go. Okay. Problem solved.

0:55:39 Matt: Good work. Good work, everybody. That's the way to do it. So moral of the story is don't get married by a dead bear full of cocaine. And if you do have a person, confirm it.

0:55:50 Jenessa: Duly noted. I guess so.

0:55:52 Matt: I think we've all learned something today. All right. This has been fun. We will come back and do it again next week. And in the meantime, we've got more good Supreme Court law coming. Now that we've talked about bad Supreme Court laws, we will see what else the week brings for us. But good talking to you, and we'll see you soon.

0:56:08 Jenessa: See ya.

0:56:49 Matt: You name it, that bear had it. Nothing against my purse here. But the state doesn't recognize a dead bear full of cocaine.