GOOD THINGS HAPPENS! 100% GOOD NEWS OA DAY!

Transcript

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

0:00:03 Matt: I'm starting to think that maybe people don't like it when there's, you know, secret police in the streets wearing masks, kidnapping people, and sending them to torture camps.

0:00:17 Jenessa: Bucks County, Pennsylvania, which is the swingiest county in that swing state. The single county with the largest number of people charged for being in January 6th. They elected their first ever Democrat district attorney.

0:00:38 Matt: Hello, and welcome to Opening Arguments. I'm Matt Cameron, and with me is Jenessa Seymour, and I think we've got some good news this Friday.

0:00:44 Jenessa: I agree. Yes. Lots of good news to share. Very excited.

0:00:48 Matt: I think we may actually have nothing but good news.

0:00:51 Jenessa: I think so.

0:00:52 Matt: Been a while since we had a good news Friday, but I think we earned this one. America earned this one. Good work, everybody, on Tuesday. We'll talk about how that plays out and what that means for the future and the law and everything else. Got some exciting updates from Voting Rights Attorney Jenessa to see more. I'm going to do my best to explain a complex argument this morning in front of the Supreme Court that really isn't all that complicated. I think it's actually about as easy as it gets about whether or not the president gets to do something that's unconstitutional. We'll talk about the tariffs, and I will do my most to explain the state of things with the tariff case and why it looks like it's very likely the Supreme Court is actually going to go against the president on this one. And then we've got a fun footnote that I'm calling Smells Like Summer Judgment. And it is about one of the most famous album covers in history and some litigation that recently resolved over the cover of Nirvana's Nevermind.

0:00:54 Jenessa: Yeah. Yes, I might know the tiniest bit about that.

0:01:38 Matt: So good times. Yeah. There is something very tiny involved. All right. We'll come back in just a moment to get started with some good news from the week.

0:01:54 Matt: As we're recording this, it's the day after election day, Tuesday, November 4th, and I woke up to some amazing results. Not that I'm surprised, I have to say, but I'm a little surprised. So what's the top line here? What's the takeaway from this week of elections?

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0:02:07 Jenessa: Pretty much universal good news. I'm really excited about this. Obviously you can't expect 100%, but expectations were overperformed and expectations were high. Really, really exciting to see this, particularly not just the successes, but the swings, the extent of that success and And seeing it happen in more purple and red areas. So yeah, top line, really happy with what we're seeing.

0:02:42 Matt: Are there any unexpected red pickups?

0:02:44 Jenessa: Not that I'm aware of a Democrat surprisingly losing. I have, not that I saw.

0:02:50 Matt: Okay. That's a good place to start. So tell me about the rest of it.

0:02:53 Jenessa: Yay, Mom Donnie, we all know. You're going to see a ton of reporting and analysis of that. So I'm going to focus on some things you might not hear about other places, particularly the significance of it.

0:03:04 Matt: I think it's best because New York City is now going to be a smoking crater in the ground.

0:03:06 Jenessa: Of course, yeah, naturally, you know.

0:03:07 Matt: So why even talk about it? Yeah. It's just fireball of socialism has overtaken the city and you can write it off the map.

0:03:13 Jenessa: If you get a chance, listener, check out the front page. The cover of the New York Post today is satisfying knowing that he won. God, it's delightful. I'm sure people have also heard Prop 50 passed in California. Right now, 75 % of the vote is in. California takes a while to count their absentees. And that's 64 -36 margin right now. And I think those mail -in votes will probably be mostly four. So it could get to be an even bigger margin. And in case you've, I don't know, been living under a rock, that's the redistricting one. The important detail there, it will precisely counter Texas when they did a legislative redistricting. They added five probably added five seats for republicans in the house coming up in 2026 california will be almost certainly adding five democrats so just cancel that right out yeah you know I hate to celebrate partisan gerrymandering but that's the environment we're in and I think that was marketed in a way that made a lot of sense like it's just fairness they're doing it it five we're doing it five I think that really helped to to get it passed

0:04:33 Matt: Well, also for what it's worth, I love ballot questions. They put it to the people and the people decided. So they want want more districts, don't argue with the people.

0:04:39 Jenessa: Yeah hey if you didn't want this the supreme court needed to not say it was okay pennsylvania we got the three democrats on the supreme cour their seats were retained by big margins I put out the call on our facebook patreon reddit hey everybody uh give me the local races because the statewide it's all all over the news and user solo4114 let us know Krasner kept their or won their seat as the district attorney and also quite a few court seats uh in the lower courts in Pennsylvania were also retained for Democrats so big win there

0:05:20 Matt: So last week I learned that judges in Pennsylvania are not, they are elected, but then they also are retained in retention elections, which you like to keep your judge, basically. And the more I think about it, that's not a bad idea if you're going to elect judges, although I still don't really think electing judges is the best idea.

0:05:35 Jenessa: Compared to making them run against somebody every single time I I see the logic and like do you like them or do you not like them yeah they've been doing their job

0:05:43 Matt: Yeah, recall votes a lot of work in most places. So I guess this is kind of a compromise there. Makes sense. All right. What else you got?

0:05:50 Jenessa: Yeah dustin in the facebook group let us know about in bucks county pennsylvania which is the swingiest of the districts or the swingest county in that swing state apparently are also at one point held the distinction of being the single county with the largest number of people charged for being in january 6th um yeah

0:06:11 Matt: Oh, wow. I've been there. I would not have known on that. Okay. Cool.

0:06:14 Jenessa: Super super cool and chill thing they elected their first ever Democrat district attorney. They beat a Republican incumbent sheriff who was promising to work with Trump on immigration. Their school districts have been at the center of a lot of book banning, pronoun banning pride flag banning and their districts recently flipped to a Democratic majority, their school board, a lot of good stuff going on in an extremely important county in Pennsylvania, so that's great to hear. Moving on over to Maine, two propositions on the ballot by a two -to -one margin. Voters in Maine rejected requirements for voter ID, restrictions on mail -in voting, and then approved a very sensible gun control measure. So that's great.

0:07:11 Jenessa: Colorado, two propositions. Again, two to one margin. Kids should have free school lunch. Love it.

0:07:18 Matt: Good job.

0:07:19 Jenessa: In Georgia, Reddit user Jimalette, I don't know how to pronounce that, let us know, two seats flipped on the Public Service Commission. This was very surprising. I looked it up and apparently this is the first time a Democrat has won a non -federal statewide statewide office since 2006 in Georgia.

0:07:44 Matt: And this is for just like utility stuff? Public Service Commission?

0:07:46 Jenessa: It's a statewide office. So it's doing something for the Georgia state government. And it was previously all Republicans. And there was kind of it was very much an upset to get two out of five Democrats now. Gary in the Facebook group letting us know in Georgia, his city has gotten two council seats replaced with some newcomers. So that looks good and apparently the atlanta city council elected a self -described democratic socialist atlana obviously a very liberal city but that's where we want to see the most progressive candidates making progress so that's happening in georgia new jersey first woman governor very exciting she won by 13 points that's a nine point increase in margin compared to the 2021 governor's election. Their Senate was not up, so they're retaining a 25 -15 Democratic majority. Their General Assembly was previously 52 -28 in favor of Democrats. Right now it is 53 -19 for Democrats and there are eight undecided. So they're going to gain anywhere from 2 -18 margin in their their assembly. This is retaining a trifecta, assembly, senate, governor, retaining a thing I just learned was a phrase, a triplex, meaning the governor, the attorney general, and the secretary of state, which really

0:09:27 Jenessa: Affects the executive branch governance. Virginia, oh, I did some data analysis for you. First woman governor, again, very exciting.

0:09:36 Matt: Abigail Spanberg? Yes, very good.

0:09:38 Jenessa: This this is a flip. We had a Republican governor in Virginia. This is a 16 point swing. Youngkin last won by two points. She just won by 14 points.

0:09:47 Matt: Hell yeah, love it.

0:09:53 Jenessa: The attorney general flipped six point swing, the lieutenant governor just flipped 12 point swing the Senate was not up. So that is a 2119 Democratic majority. Really? By a hair, right? House of Delegates goes up. Currently, 51 -48 Democrat majority. Oh, just by a hair. There's one vacancy. What is happening right now is 64 -35 with one undecided.

0:10:24 Jenessa: That margin is going from three seats to either 25 or 27.

0:10:23 Matt: You'll love to hear it.

0:10:30 Jenessa: Yeah, 13 to 14 flipped, none went blue to red. Everything either maintained or went red to blue.

0:10:38 Matt: You know, I'm starting to think that maybe people don't like it when there's secret police in the streets wearing masks, kidnapping people and sending them to torture camps, or maybe when Congress is shut down so they don't release the evidence that the president might have been involved in child sex abuse. I'm just working on a theory here. This seems to be a trend.

0:10:54 Jenessa: Yeah, perhaps if you live in Virginia and like overwhelmingly there's people there who work for the federal government, maybe they're not like thrilled right now.

0:11:04 Matt: They've been getting a rough year,

0:11:05 Jenessa: 100 seats in that House of Delegates, 71 were contested in both 2023 and 2025. The average swing this year comparing those was nine points towards the Democrats. Of the seats that flipped, the average swing was 11 .5 points. Only two districts swung more red. Now, they were red before.

0:11:30 Matt: Brian.

0:11:30 Jenessa: There's one that went four more towards Republicans. One went six more towards Americans. Otherwise, every other district was towards Democrats swinging. The average win percentage for Democrats, obviously, there's huge variability, but the average win percentage was eight points and the biggest swing was 34 points. Huge change. That took me forever to put into a spreadsheet, so you're welcome, everybody.

0:12:00 Matt: Good work. I would rather lose parts of my body than try to do statistical analysis in a spreadsheet. So thank you for doing that. Sure.

0:12:07 Jenessa: I love it so much. Mississippi. I am planning to do the same thing soon. It's going to be a little difficult because in 2022, a judge ordered their maps redrawn because of of accusations of racial gerrymandering that were substantiated, comparing their previous breakdown of their legislature. In terms of flips, one member of the House, two members of the Senate, that does break the Republican supermajority in the Mississippi Senate, so that's great. What I'm hearing is there are also big swings happening in all these districts. So even if Democrats didn't win, it is a big deal if we are seeing a big percentage swing.

0:12:52 Jenessa: When an election is really not even close, unfortunately, people are less motivated to try to get out there. When you show that that election was close, next time people are really more motivated to get in the primaries and try to pick out the most competitive candidate to knock on doors for people.

0:13:14 Matt: Was wondering about that because this isn't a blockbuster election year. This isn't where you get the big ticket stuff. This is a pretty minor election year in the scheme of things. It seems like this kind of turnout, I mean, obviously you've got an exciting candidate like Mamdami that's like generationally people are excited to vote for. I think New York is kind of a fluke there, but maybe not because we're seeing Virginia, New Jersey, all these other places where people came out in big numbers. I mean, how did the actual turnout compare to the usual voter turnout in America?

0:13:36 Jenessa: Well, so obviously New York City was historic for a local election. I don't actually know for other places. Like the vibe I'm picking up is it was big. The general issue is that unfortunately on odd years on local elections, turnout on average is substantially lower than what we expect in a midterm, which is substantially lower than what we respect in a presidential.

0:14:04 Jenessa: I will say, like, temper everything the tiniest bit with Democrats are more likely to show up for these.

0:14:11 Matt: And people who like to vote or generally vote are going to be more likely to show up for these.

0:14:15 Jenessa: Yeah. Also, young people and people of color tend to be less likely to show up. There's all kinds of disenfranchisement that makes it even more difficult on the odd years compared to investing once every four years, investing on a regular basis for some people that requires taking time off of work and going through all these hoops to overcome barriers to disenfranchisement. Yeah, it's not super surprising that turnout tends to be lower. There's some groups who maybe if they're super motivated, we will hopefully see higher turnout. That the lower turnout in general in local elections is not like, oh, that's going to swing the other way as soon as it's an even year. I am not seeing a trend that convinces me of that at all. Yeah.

0:15:01 Matt: Speaking of particular groups, I did see some good news about Latinos in particular. It seems like Trump has lost a lot. Now, again, Trump wasn't on the ballot, but Republicans certainly were. And there's a lot to vote against right now. And certainly for Latinos, I can tell you that the community is very aware of what ICE is doing right now. And Trump won more Latinos in 2024 than he did in 2020, which I still don't personally understand, but I don't really need to. But 70 % of Latino voters voted for the Democrat in New Jersey compared to 31 % for the Republican. And this is a state in New jersey that Trump was within six points of winning New Jersey in 2024, which is disturbing as somebody who lived there for a few years. Yeah, I just think that's promising. I would hope that if he could at least, if we could reverse the trend of Latino voters coming coming out for Republicans, coming out for Trump, and if there's some memory of how bad this has gotten and how much worse it's probably going to get, that that'll be a big help next time around.

0:15:52 Jenessa: And I think 70 -30 is generally what I would have expected pre -Trump. That's a pretty typical number, and we would probably see, if you broke it out by gender, Latina women are going to be more in favor of Democrats than that breakdown. A few others, just to quickly rattle some off. Connecticut, huge shifts in town and city mayors, city councils. Georgetown, South Carolina, city council picked up three seats. Orlando, Florida, the city council is now 100 % Democrats. New York, Onondaga County, the legislature is under Democratic control for the first time in 50 years. Huge deal.

0:16:37 Matt: I do live in one of the bluest cities in America, of course. I know big surprising news out of Boston last night, but we did re -elect a woman for the first time in Boston history as mayor. Michelle Liu is back. Of course, she didn't, her opponent dropped out a few months ago, but still great to welcome her back,

0:16:51 Jenessa: That's awesome. Some. Looking over at our Patreon, Todd the Odd let us know, my tiny little town voted to raise taxes to fund our local library and got a Democrat on the town council. I'm going to have to censor this name for our broadcast, but Slurpee Kaye, mother, you can guess. The race is going to go to a runoff, but with the current spread in Silicon Valley, we have a tech bro douche who is not going to become the Santa Clara County Assessor from William Yeske. Santa Fe just elected a new mayor in a crowded ranked choice election. Very progressive winner there who's campaigning on affordable housing. Wes Mills let us know in Seattle the basically Republican city attorney is on their way out. Erica Evans will be taking over someone focused on restorative justice and alternative pathways. That's great. We had two people reminding us, Nathan Saritsky and Make Fascism History Again. The Seattle mayor is not yet decided, and it's neck and neck, but that may end up going to a very progressive candidate. Finally, super exciting, council member elect Michael Jenks, aka Vehicular Man's Laughter, one of our patrons, just won a council seat, beat a Republican incumbent with over 60 % of the vote.

0:18:15 Matt: Which is incredible news and big, big fan. But I do want to be very very clear that newly elected council member Michael Jenks has nothing to do with vehicular manslaughter. That was vehicular man's laughter, which is one of my all -time favorite patron names, so we don't want to get that wrong. But let's just tank his new career by associating him with vehacular manslaughter, good work, but congratulations.

0:18:33 Jenessa: Oh, I pronounced it wrong. Yes. Oh, geez. Yes. Thank you. Super exciting to have a patron win a seat. Over on our Facebook group, Tom letting us know local school board tossed out some extreme Christian nationalists. Nicholas letting us know the Westside Buffalo School District. Talia Rodriguez got onto that school board, so that's great. Daniel Burian, Washington, small town. The results are showing progressives swept all four city council seats. Jeanette letting us known Democrats in Delaware County, Pennsylvania, won all races. The county council stayed in unanimous control. And Chris finally letting us know, I just lost a city council race by three votes, but it's okay because Dick Cheney is still dead.

0:19:37 Matt: Nice work though, Chris, I mean, three votes, that is very respectable.

0:19:40 Jenessa: Yeah, that's still, man, that is a win. Even getting out there there is a win. That is hard work.

0:19:47 Matt: Yes, we have a friend, Keith Linares, who ran for city council in Worcester and didn't quite make it, but he put up a great campaign. And I going to have a better luck. He's an outstanding guy. And thanks to everybody who voted for him, because he's the real thing. And Worcester has an entrenched political system that needs to be returned, like so many Massachusetts small Democrat towns. This is great stuff. And I loved also the emphasis on school boards. I love hearing from patrons about local elections. But you know, we were being told that school boards are going to be overrun by these Moms for Liberty nuts. And maybe some of that happened, but I didn't hear anything about it.

0:20:16 Matt: It seems like people have heard the crazy and they don't like it. They want sane, progressive policies. All right nice

0:20:19 Jenessa: I got a few more school boards for you. Just turning over to our Reddit, Entrepreneur Eastern lets us know six out of seven progressives to their city council, six out a six on their school board, 50s dad, all blue town council in North Carolina, three local council seats going to Democrats in a 60 -40 red island in a red state surrounded by blue cities, flipping those. And a little brief shout out to Reddit Ratman, letting us know that things are also going well in Quebec.

0:20:59 Jenessa: Not American elections, but But always great to see that our friends to the north are doing well.

0:21:08 Matt: Their proto -fascism is much tastier and covered in cheese curds so yeah great stuff great stuff very exciting honestly and this I did I was expecting good things like you said this is an overperformance this wave that we can all feel right now this this energy that we're feeling behind the frustration and the anger that's out there just seeing it channeled that way and the school board and city council races are so exciting because they're the next generation of our politicians. And to see them getting decisively taken by people with good values who are trying to fight all this, I still think that we can win this thing. I have a lot of faith that if elections don't go too far out of whack next time, there's enough energy here. This feels good.

0:21:47 Jenessa: Absolutely. The vast majority of people do not suddenly run for federal Senate. They start on your town council. They start in your city. They start their way up. Up. This is the beginning, not just of what we are going to see in 2026, in 2028. These are people you are going see in 2050 running for the federal houses. So this is a big deal.

0:22:10 Matt: Yep. Yep, there you go. That's right. Yep! Overcoming that gerontocracy, Getting another generation in there. It's good stuff. And I do think that so much has turned. I mean, just look at the numbers right now. Trump's numbers are so bad. And when you ask Americans about policy right now, the opposition to everything, including the tariff policy we're about to talk about, certainly things like immigration and the ways the Department of Justice has been conducting itself. Great stuff. Thanks for that rundown. And let's move on. And we'll come back and talk about what happened in the Supreme Court this morning. I'll try to unpack the tarif arguments a bit. It.

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0:22:45 Matt: I say unpack, but they don't really need too much unpacking. Honestly, the tariff case that was argued this morning is about as complicated as Scrimeti was. And you might remember that Scrimetti was essentially coming down to, is it a violation of equal protection to allow one gender of child to get medication and the other gender can't? Is that on the basis of sex? Yes, obviously, but they spent three hours arguing about it. We spent an hour taking a look at it a few months months ago. That was a fun episode. They were really being very obfuscate story of the obvious point in the middle of all of this. I will say that was not the case here because there's a very obvious point in middle of this case and they were laser focused on it. It's pretty simple, to be honest. We've talked about it already, but Article I of the Constitution allows Congress to set tariffs. That who is who is in charge of tariffs. And the question before the court here is whether the International Emergency Economic Powers Act, which I'll be calling the for the rest of this conversation. Just too much fun to say. Authorizes the tariffs pursuant to national emergencies, then they list off the national emergencies that he's declared since January 20th. And then if it authorizes the tariffs, whether the statute unconstitutionally delegates legislative authority to the president. The non -delegation doctrine, of course, requires that there are some things that Congress just can't delegate away. And if the Constitution says they have exclusive power over tariffs, I think maybe they have inclusive power over tariffs. I don't know. I'm not a constitutional scholar, but that seems like a pretty good analysis. Liberation Day back on April 2nd. You might remember the executive orders he'd been threatening a while, including 10 % across the board tariffs on most countries we trade with, as well as massive hikes on Mexico, Canada, and China. Something to do with fentanyl.

0:24:19 Jenessa: It's made up nonsense. Yeah.

0:24:19 Matt: Who cares? I mean, there's no actual reason. Yes, I will point out that they did actually revise the fentanyl -related tariffs for North America so that anything covered under the U .S.-Mexico -Canada agreement, which Trump did sign in his first term, would be exempt, which is a lot of the trade at this point. So that's mostly exempted. On average, tariffs were about 2 .4 % across the board last year, and they're about 19 % now, just right now. That's before even some of these other ones have kicked in. About half of U .N. ports now have tariffs. And of course, tariffs are taxes that we pay. I don't know if Trump doesn't understand this if he's just listening to Peter Navarro a little too closely, but Peter Navarros was the only person in Trump's administration the first time around who thought this was a good idea. He wrote an entire chapter in Project 2025. I went back and tried to read it. My eyes glaze over pretty quickly because reading about trade really doesn't excite me. Peter Navarros made the case for tariffs in there, mostly against China and mostly as a way to go to war with China. In the Project 2025 document, there's a whole chapter where he debates somebody else about the efficacy of tariffs because there are plenty of conservatives, including including some very leading voices who have filed amicus briefs in these cases. I'm going to list off a few of these names because it's just a superstar lineup. I think it's part of why the Supreme Court was so cynical about this, as they should be. They really were not taking it very seriously because a lot of conservatives have come out against this. And at the end of the day, what you're talking about is the U .S. Chamber of Commerce, because companies like Target and Walmart are going to hit the hardest out of all of this. The U. S. Chamber of Commerce, really, when it comes down to it, along with the Federalist Society, are who put put these justices in office. I get tired, frankly, of people saying without really thinking about it that the Supreme Court is just always going to do what the president wants. That doesn't make any sense. There are times when the Supreme court does have divergent interests, and I think this is really one of them. I don't understand why these people would just do whatever Trump wanted. I do not think they like him that much. There is plenty that he is trying to do that is obviously sanctioned by the Federalist Society and by Project 225, and they will probably continue to do all that. But this brief is serious business, and he filed it all the way up the chain in the lower courts. 44 amicus briefs were filed on this. It's actually fewer than usual, but they pretty much all said the same thing. We've got some big names, though. Stephen Calabresi, who is one of the founders of the Federalist Society. Richard Epstein is a very popular libertarian professor. Former Secretary of Defense Charles Hagel. Harold Coe is a liberal, joined this. There's several other liberals actually involved here, but these are mostly conservative names. Michael McKaysey, former AG. Former White House Counsel Peter Wallace and Florida State Department Counselor and Director of the 9 -11 Commission, Philip Zolikow. That's just a few of them. They have been very strident about this, that this Emergency Powers Act does not authorize tariffs, tariffs is not something the president can be doing, and it's a very dangerous precedent. There was a lot of talk this morning about taking it back, that can Congress take it back once the president has done this? Do they have the power to recall it? And the Supreme Court doesn't seem to think so. They were very concerned about that, that you could have the president basically restructuring American trade policy solo, just kind of freestyling it, when Congress usually sets up these customs schedules very carefully and thinks through the tariffs, instead of just slapping a 10 % tariff across the board on everybody. There's no actual emergency that justifies this. And we've talked a bit about Section 1702 of the IEPA before, but I'll just mention again that what they're relying on here is just so far from what they'RE doing. At times, and to the extent specified in the section, the president may, under such regulations he may prescribe by means of instructions, licenses, or otherwise, investigate, regulate, or prohibit, and it lists off a bunch of things, to regulate importation with respect to transactions involving any property in which any foreign country or national thereof. Now, the word tariffs is not used in the IAPA. And this never has been used this broadly. Nixon used it in a very narrow kind of way, but it's never really been used to impose tariffs by a president, especially in the absence of any actual crisis. And the purpose of this is obviously something like the Iran hostage crisis. Carter used the IAAPA during that time, right? And there was a suit that came up quite a lot, actually, in today's arguments called dames and more, which I just really like. They kept talking about dames.

0:28:10 Matt: Checking out some dames, and this This is a Rehnquist decision that upheld Carter's executive order freezing Iranian assets and finding that this is something that the president can do. The Supreme Court blessed that as a bargaining chip to be used by the president when dealing with a hostile country. And that's really the idea, right? That some country has given us problems. We have this thing that we can squeeze them with, right. It's not just we don't like the fact that we have a trade imbalance. That's not an emergency. That's Not Enough. We don't want the fact of some fentanyls getting over our border that may or may not be, you know, you might have anything to do with.

0:28:40 Jenessa: Emergency is we don't have tariffs. Gotta get it done.

0:28:44 Matt: Need more tariffs. Riffs. Roberts probably, it looks like, helped to write the Dames and More decision when he was looking for Rehnquist. And he jumped in and just shut it down right at the beginning. He's like, you don't understand Dames & More. Like, you clearly misapprehend what's going on here. It didn't go that well for John Sauer today. His brief was pretty ridiculous, I have to say. I did try to read it. It's got a lot of Trumpy language in it. He quotes Trump talking about how one year ago the United States was a dead country.

0:29:09 Matt: He talks about how we're a rich nation and now we're going to be a poor nation. You know, like, it's just, you know, this is not not legal arguments. It's all in his introduction, of course, but like, it's not really based on anything. It'S just stupid. They're just trying to stretch this emergency powers act as far as they possibly can. And they keep saying that it's NOT trade policy, it'S foreign policy, which is something the president has control over. And the justice is really pushing back on this. I don't really think they like this at all. We'll talk about it more when the decision actually comes out. But, you know, it really seemed to me just, and again, I didn't have time to listen to everything. I read a lot of the transcript before we started talking here. Comey -Barrett certainly is very skeptical. Roberts did not seem happy with these arguments. And Gorsuch, Neil Gorsuch, came out swinging hard. This is the thing. Tariffs are taxes. And Neil Gorsuch is not going to sign off on new taxes if he can help it. That's not what the people that he's working for, that he was put there for, are there for. It's not What They Want. The president really is running up against the people who actually run this country in this case. And I think that came out pretty well. Alito had some questions, whatever, typical kind of Alito bit of questions kind of exploring the government's argument and some of the very few people that filed in favor of the government argument. But it really seemed to me now, again, to be honest, the way this is written, it really does seem like the president can just kind of say whatever he wants to make any kind of emergency wants. And the country has been in some sort of state of national emergency since 1933. We constantly declaring national emergencies over one thing or another. And they're usually sort of symbolic, but they just allow certain emergency things to to be used, funds to be directed certain ways, and agencies to do things certain ways. IEPA came out of the Trading with the Enemy Act, which Nixon had used to direct the tariffs I told you about before, and that was supposed to be a wartime statute. It was just supposed to been in times of war, and we amended it, and the IEPa was created for unusual and extraordinary threats, which, again, we do not have in this. There used to be provision in IEP that allowed Congress to veto a national emergency,

0:31:04 Jenessa: Huh. What?

0:31:05 Matt: But the Supreme Court ruled that's unconstitutional. You can't have a one -chamber veto. Yeah, that's an INSV Chata thing. We should probably talk about Chata at some point. That's an interesting case. So now Congress has to actually pass a resolution and then get it signed by the person who declared the emergency, which seems unlikely.

0:31:20 Jenessa: Yeah, that doesn't make any sense.

0:31:21 Matt: We talked about that before. That's the only way they can cancel these. Also worth noting that Trump under the statute was absolutely supposed to report this to Congress before he did it. And he concedes in the argument he didn't do that. So for whatever that's worth, he just didn't follow the law. Not the first time, not the last time. This is a collection of small businesses who are being badly hurt by these tariffs that have come together to file this. I thought it was pretty compelling. Again, I came in thinking it was compelling. I think tariffs are stupid. I don't know enough about trade policy to be an expert on this, but I think that pretending that somehow raising the cost of regular consumer goods is better than just taxing the rich is absurd. I mean, that's just a joke. You're just at this point making fun of us if you think that we're going to buy that.

0:32:02 Jenessa: I also have no expertise in this area, but I know people who do and everybody I have talked to about this. It's just universal that there is such a thing as a targeted tariff that can have useful purpose, sometimes economic, sometimes political. But I don't know anybody with any expertise in THIS who is endorsing the idea that blanket Blanket tariffs all over the place are a good idea, let alone that what's happening right now specifically is a good idea. Like, it just makes no sense.

0:32:37 Matt: Yeah, and the government kept arguing that, well, you know, if you cancel these, we're gonna have to give the money back Because they would have to refund it. And the other side was very reasonably like, well, they kept saying when they were seeking a say of this that they'd have no trouble giving the money back. And now they're coming in front of you and saying it's just too much money to give back. Right. So it's not really it doesn't matter. Like that's just a consequentialist argument from something that shouldn't have ever existed. Before we move on, this is the first time that the Supreme Court has gotten around to a full hearing on the merits of any Trump policy.

0:33:06 Matt: All of the other oral arguments they've had so far have been on the shadow docket, on injunctions. So the birthright citizenship thing is certainly major for universal injunptions, but had nothing to do with the merits. Rights of birthright citizenship. But this is the first time they're actually looking at the merits of Trump policy, and they do not like it. I just want to give people some hope here.

0:33:22 Jenessa: Is that a timing thing that just, like, to get to the merits, it takes a long time to get through the courts? How long has he been president now? What what is it, nine months?

0:33:29 Matt: It does. Nine years. Yes, correct.

0:33:34 Jenessa: So like, that seems right timing wise that that's normal.

0:33:41 Matt: The tariffs only kicked in in April. So they're the ones that are being challenged here. So that's, they rushed it. They rushed this on purpose. And they are actually saying that it's very likely they're going to have a decision potentially by the end of the year, because they do understand how important this is. This is a lot of money. In terms of the actual effects, this is probably the most important thing being argued by the Supreme Court this year.

0:33:42 Jenessa: Oh, yeah. So it's almost fast. Yeah. Okay.

0:33:58 Matt: So I think that that's worth noting. As always, when we're talking about oral arguments, it seems like the most consequential ones always happen the day we record, just every time, no matter what day that is.

0:33:58 Jenessa: Yeah, of course.

0:34:07 Matt: But I do think, and just very quickly looking around, I try not to look at too many pundits before I come in and talk about this stuff. It does seem like most people agree that this was not a good day for the Trump administration, and this is maybe not the best week for the Trump administration. So actually, before we move on to the footnote, you had a couple of other small good news items about why this wasn't a great week for Trump administration beyond the amazing election results and the fact these tariffs look like they're on their way out. What do you got?

0:34:15 Jenessa: I got two quick ones for you. And they're quick because they're just so blatantly obvious. The executive order we're going to talk about is like like an 80 page decision, but I can walk you through it real quick because we already knew how this was going to go down. The first one, Trump's executive order from way back, you might recall he issued, well, he issued like a hundred executive orders, but the one we're talking about today was about voter ID and a number of voting policies. So he wanted to require proof of citizenship, alter the federal voter registration form so that you had to provide documentary proof of citizenship. It was basically the SAVE Act that we've talked about before, but in executive order form because he knows that's never going to pass the Senate.

0:35:18 Matt: So illegally, yes.

0:35:19 Jenessa: Yep. He wanted states to have to share voter information with Doge. And one strange provision that states would not be allowed to count ballots that arrive after election day, which is a completely normal practice. When you mail a ballot, if it is postmarked on or before election day the mail is not a teleportation system. So what if you mailed your ballot a week in advance and through no fault of your own it gets there the day after the election? Oh we're not going to count it? This is a hundred percent because his theory was just the universe has conspired against me. And then people gave him BS reasons for it. And one of them is like, oh, when they count ballots after the election, those are the fake ones. And like, this is nothing. This is made up nonsense. But it's something he latched on to.

0:35:39 Matt: Sure, Dinesh, just use a nonsense. Nonsense. And this is obviously, just to say it out loud, the executive branch of the federal government can't just tell states not to count their ballots after they come in the mail. I mean, that's just, how is that possible? What possible justification legally could you ever have for that? Not that it matters. It's an executive order, right? Sure.

0:36:33 Jenessa: No, none. Which is why that's, yeah, something to always keep in mind when a state has the authority to do something thing. And the president tries to say, don't do that. This is why it's really important that you have local officials who are not worshiping Trump, because your county board of elections, your state board of electrons can be like, get bent. I can ignore you.

0:36:58 Jenessa: I'll count the ballots and you get mad about it. Like, OK, who cares?

0:36:58 Matt: So what was this decision this week?

0:37:05 Jenessa: The decision is, unsurprisingly, this order violated the Constitution, the National Voting Rights Act and the Help America Vote Act. And so so it is stayed. Some of it is decided on the merits. This is unconstitutional. This is unacceptable. The remedy is to stay it. And of course, we anticipate appeals. The part of the Constitution, I mean, it's so clear. The times, places, and manner of holding elections for senators and representatives, so the federal elections, shall be prescribed in each state by the legislature thereof but the congress not the president may at any time by law make or alter such regulations except as to the places of choosing senators it could not be more crystal clear the state runs the election congress can pass laws about elections elections, the president is not in here. No.

0:38:09 Matt: I mean I thought it was pretty clear that Congress could only impose tariffs, but here we are. This is the whole episode. Which court was this?

0:38:12 Jenessa: This is coming out of the district court for the District of Columbia, making this very clear. You cannot do this under the Constitution, under the National Voting Rights Act. So, hey, Congress can pass laws, right? What if they authorize the president? No, they did not. So under the national voting rights act, they made clear what the rules are about voting, and they very explicitly said what forms of ID, what proof of identity you need to provide, and then pretty much left it up to the states. Under the Help America Vote Act, they created the Election Assistance Commission. They created it as an independent agency, so the president cannot force them to change the federal voter registration form. Congress did pass some laws. Those laws not only did not grant the president authority to do this, they explicitly contradict what the president is trying to do. So our D .C. district court judge has said, on the merits, no. He stayed it a long time ago. The stay is now permanent. And go ahead and appeal. Sure you will. Yeah.

0:39:25 Matt: This was like the birthright citizenship thing to me. It's just so obviously an executive order that was just blatantly unconstitutional, and it was never going to have a chance. And it's good to see that in your world, this is working the same way. All right, what else you got?

0:39:35 Jenessa: Just a very helpful one for the disability community. And of course, when we help one minority group, we help everyone. Lawsuit that's been going on from the National Association of the Deaf. Trump now has to put back ASL interpretation on his press briefings, American Sign Language. So the Biden administration has had interpreters. My organization has been involved in suing officials to get ASL interpreters, many of our sister organizations have done that in other states. It's incredibly important. You can check out the episode of Serious Inquiries Only, number 472, where Thomas and I went over the nitty-gritty of why it is so important, why captions and transcripts are not sufficient. And the judge did find in favor of that, no, it's not enough that TVs have captioning. It's not enough that you're going to put transcripts out. Many, not all, users of American Sign Language, people for whom that is their native language, American Sign language is not English. It is a completely separate, distinct language.

0:40:54 Jenessa: So if somebody uses American Sign Languages as their They are signed language that they use day to day, and then they read English. They are bilingual. Learning to read a different language is hard. So providing captions in essentially a foreign language, that's not true access. That is not effective communication, which the Americans with Disabilities Act requires.

0:41:17 Matt: I just want to mention very quickly, we had a client, an asylum seeker, who only spoke Honduran sign language, and we had to find an interpreter for Honduran Sign Language, which was incredibly difficult because it's something that only a few hundred people seem to actually know. That's where I learned that fact that you just told me. I thought that was really interesting.

0:41:31 Matt: So what court was was this on oh

0:41:33 Jenessa: U .S. District Court Judge for District of Columbia, Judge Amir Ali, I think wrote a really sensitive and thoughtful decision here where clearly he actually listened to the needs of this community. I don't know if he's actually deaf or knows that community well, but clearly took it seriously and learned about this community and expressed their actual needs, not what we often hear that's kind of ignorant, the, you know, oh, I don't, I don't. Why do you need that? Why can't you just read? You know, it's not appropriate. He did a great job with this and ordered that press briefings with either President Trump or the press secretary, Caroline Leavitt, now need to have ASL. And I thought this was a funny characterization of it that Trump argued that it would be a major incursion on the administration's prerogative.

0:42:31 Jenessa: Having ASL interpreters was a problem just because he didn't like the image of someone standing next to him and signing. That looks just...

0:42:38 Matt: Sure competing for attention yep of

0:42:42 Jenessa: Yeah, because he's just... Attention is his... That's for him and him only, and there can't be somebody standing there taking even an ounce of attention. And the judge said, no? Puzzling? Confusing? I don't know what you're talking That's very silly. No, that does not outweigh the obvious need for effective communication under Section 504 of the Rehabilitation Act, under the Americans with Disabilities Act. No, my friend. So yeah, just overall really good stuff. Solid, kind, thoughtful decisions, and big L's for Trump. So that's always fun.

0:42:46 Matt: Course love it we're just full of them

0:43:26 Ad: [Ad break 3 — ad music]

0:43:26 Matt: So we're gonna move on to my footnote today which has nothing to do with donald trump mercifully I'm calling this one smells like summary judgment because we're looking at the cover of nirvana's absolutely classic groundbreaking album of the century well maybe not but it's one of the best albums of our lifetimes of course never mind from 1991 and we can all picture the cover I'm sure everybody of a certain age and even the kids I was asking around about the kids and everybody everybody seems to know Nirvana these days. You see the shirts everywhere. Of course, it's the very famous photo of the naked baby chasing after a dollar that's on a fishhook. And this is Quilly Art. The person who's in the picture, they put this in quotes, so I don't know, I assume this is a real name, Spencer Eldon. That is him. That's the plaintiff that you were looking at. That is his baby penis in the photo. And he's very mad about it, except that he wasn't. I just want to point out, and again, I'm not saying he can't change his mind, but the court in its order last month noted that over the years, the plaintiff has given numerous interviews about the album cover, sold autographed album memorabilia, accepted payment to reenact the album cover, and sent a thank you postcard depicting what appears to be a hand-drawn picture of the album cover to the photographer. So I think that should be taken into consideration. That is not what the case was decided on. But I just wanted to note what he was suing under, because I honestly think this is a little offensive. He's clearly just trying to get some of that sweet Nirvana cash. He's coming after the Cobain estate and Geffen Records and everybody else. That's a lot of money, I'm sure sitting in the, I will say, a little bit of my soul disappeared when I saw Kurt Cobain referenced as the lead singer of Nirvana, LLC.

0:44:54 Matt: I don't think he would have been happy about that. I'm just as happy he's not around to see that in print. The actual grounds for this lawsuit were under 18 U.S.C. 2255, which is civil remedies for personal injuries suffered as children. And what he's saying is that this album, it was child pornography, that it was child sex abuse material, that it qualifies as child pornography under the federal definition, which is any visual depiction where the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct, which diving into a pool is not, defined to include lascivious exhibition of a person's whatever, right? Whatever you think is lascivious. So he's saying, that's what he has to say to make this case, that this is a lascivious exhibition of his genitals. And when it was clearly an art picture. Now, again, I know this was taken without his consent and he was a baby, but you can't say it's like inherently baby. I mean, I guess it's a little embarrassing, but it's a baby picture. Everybody knows that's a baby picture. Nobody thinks that's what you look like now.

0:45:45 Jenessa: Probably

0:45:49 Matt: Tortious claim.

0:45:50 Jenessa: Could have been more successful if he just made a a more tempered argument yeah like not that it was child sex abuse but that it was use of my likeness without my consent I was a child I was not qualified to consent to something yes yes I I think you probably could reasonably have gotten somewhere with that

0:46:01 Matt: Yeah, this is embarrassing. It's false light or whatever. Something, anything, right?

0:46:09 Matt: Yeah, I was wondering if there's another route here. I'm not a fan of these lawyers who filed this. I'm not going to name them, but the judge really didn't like them in the summary judgment that was issued. And that's the spoiler here is this was granted summary judgment. He slammed on them for a couple of pages for basically citing the Second Amended Complaint as evidence, as like not really presenting any other actual evidence of anything they were saying, including things like extensive quotations from Kurt Cobain's diary. Kurt Cobain had nothing to do with this album cover. He did not come up with the idea. He wasn't there on the day of shooting. And there's some really gross stuff that they decided to excerpt from his diary just to put in this complaint, which I really did not appreciate, because he was clearly unwell at the time when he wrote those things. And even if he wasn't, I mean, it has nothing to deal with this. At one point, this case was dismissed under statute of limitations, and that was reversed by the Ninth Circuit. It came back in 2023, because they found without finding that it was actually child pornography, they found that there wouldn't be a statute of limitations on this because it's being constantly republished. So there's like, the harm is continuing. And that would be true. That would be true if it were actual child sex abuse material.

0:46:45 Jenessa: Maybe oh oh that's a fair argument yeah sure

0:47:09 Matt: I usually would not be in any way, this is the first time I've ever even made any jokes about this kind of thing, because I just think this is so obviously not that. The summary judgment, I just want to note, there's a California case that controls your federal case called DOST. And the judge found that only one of these six DOST factors applied, which is that the child is fully or partially nude, obviously.

0:47:32 Matt: I mean, it's even just kind of weird for the plaintiffs to say that this is inherently child pornography. Like, what's wrong with you? Like, if you're looking at that picture and you think that that constitutes pornography just because it has a naked baby in it. I know he's just trying to look for money here, but that's just, it's weird. I do appreciate that it was taken without your consent. You're a baby. There's actually a very interesting, for Nirvana fans, if you want to look at the decision, which we'll link to, it actually describes how the picture was taken and sort of the process they went through and the state of mind they were in. The complaint also gets into this a bit too. Interesting stuff. It's not child

0:47:29 Jenessa: Well that yeah seems necessary

0:48:02 Matt: Pornography. And this was dismissed on September 30th and that's the end of it. I think they are seeking review by the 9th. We'll see if that makes it anywhere, but it seemed like a very sensible decision to me. Well, that's our footnote. And I got to say nothing but good news here today. I really appreciate it and happy to talk about better things because better things are, as people have been saying all day, possible. We're here. And there is a mass popular movement against against fascism. It has stopped fascism before, and I think it can again. And I understand the arguments about what's going to happen in next year's elections. I know we're going to be watching as closely as anybody to see what kind of games are going to start playing here with Troops in the Streets and everything else. But the movement is there, the people are there, and all of these new candidates are there. So congratulations to everybody.

0:48:42 Jenessa: I'm super excited about this. I am super excited about what it means for our future. I hope no one will get complacent and assume that that means things will go that same way in 2026. You need to put the same, if not more, energy into that election and into every election going forward. And yeah, Yeah, if black civil rights leaders in the South could get through that in the 60s, I think we can get through this. Whatever they throw at us, I'm going to be at the polls. And I hope you will, too.

0:49:19 Matt: So we're back on Monday with another classic Warren Court decision about what it means to act under the color of law, which will, I hope, be the single most exciting decision you've ever heard about a parking garage in Wilmington, Delaware. And we'll be back after that with with a really awesome and exciting interview. I'm not going to spoil it yet, but fun times today. Thanks.

0:49:28 Jenessa: Thank you. So excited to be here.

0:50:13 Matt: Newly elected council member Michael Jenks has nothing to do with vehicular manslaughter. That was vehicular man's laughter, which is one of my all-time favorite patron names, so we don't want to get that wrong.

0:50:19 Jenessa: Oh, I pronounced it wrong.

0:50:24 Matt: Today's argument's called dames and more, which I just really like. They kept talking about dames. Checking out some dames!