But Who Will Execute the Executer? The Supreme Court.

Transcript

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

0:00:02 Matt: You're trying to fire a member of the FTC for something other than cause. That's exactly what FDR tried to do 90 years ago, and the Supreme Court said he couldn't.

0:00:18 Thomas: This is President Camacho land. Like, we're in such stupidville.

0:00:29 Thomas: Hello and welcome to Opening Arguments. This is episode 1215. I'm Thomas Smith. That over there is real-life immigration attorney Matt Cameron. How you doing, Matt?

0:00:37 Matt: Well, once again, I've been listening to Supreme Court oral arguments about the entire structure of government, so I'm doing great. I'm fantastic.

0:00:43 Thomas: Yeah, these were long ones, too.

0:00:45 Matt: Two and a half hours.

0:00:45 Thomas: They're normally like an hour, hour and a half, maybe, I think. I don't remember them being two and a half hours. Am I wrong?

0:00:51 Matt: A lot of this could have been an email.

0:00:52 Thomas: Yeah, dear U .S. citizens, we are f***ing the whole system. Signed, the conservative assholes on the court.

0:01:00 Matt: Stare decisis means nothing. We're redoing the government. Plenty to discuss on this.

0:01:05 Thomas: Yeah, it's not a good day. It's not good. It's just a bad court. It's a bad court, and it should feel bad.

0:01:13 Matt: They are bad and should feel bad. It's true.

0:01:15 Thomas: Well, we're going to check out some of those oral arguments so we can see what's going on there, what Matt's talking about. We're also going to talk about this big merger and why I think it's a good example of how maybe Trump shouldn't have all the power in the world to be the kingmaker and the dealmaker. There are people who just have to go bring him a gift like a bounty.

0:01:35 Thomas: Might as well be bringing him like a dead animal that they hunted as a trophy, you know, for this feudal crap.

0:01:41 Matt: Right. Incredible timing on this merger, because it shows exactly why the FTC, which is the agency under review in the slaughter case, needs to remain independent and should not be controlled by the president, let alone this president. We got to talk about that first, I think. And then I've got a great footnote about the Trump gold card, which you might have heard about. The details have come out. The website has come out, you've got to see this thing. It's quite a story.

0:02:02 Thomas: Is it, wait, the immigration one?

0:02:04 Matt: Yeah.

0:02:05 Thomas: Oh, okay. I'm still waiting for my Trump cell phone. Have you heard about that?

0:02:10 Matt: No, there's Trump's cell phone. I remember the Obama phones.

0:02:13 Thomas: Those are real though. He sold a Trump phone.

0:02:15 Matt: There's only one color it could possibly be.

0:02:18 Thomas: Yeah, it is gold.

0:02:19 Matt: It's gold. Okay. All right. Yeah.

0:02:19 Thomas: You've got that right. I think it's supposed to be. In June, the two failed sons announced a Trump phone, like a made in the USA Trump phone with an American flag on the back. And that's, you know、 that's value right there.

0:02:30 Matt: Made entirely in America, I'm sure.

0:02:33 Thomas: You can't get a stupid piece of plastic that you put on on your phone that has American flag on it. You have to get specifically this phone. And it was the 10th anniversary of the escalator, by the way, that's, that's fun. That's when they decided to make that announcement. And so they got a bunch of orders. And also I love this because the news agencies were like, well, okay, we'll order one to like, to like keep up with the story.

0:02:53 Thomas: So it's like NBC news placed an order for a T1 phone. That's the name of it in August paying a hundred dollar deposit for the purposes of tracking the $499 phones development. So in the the time since there's been no updates like at all until like finally there was one they're like well we'll ship it in the beginning of december you'll never guess whether or not that happened

0:03:16 Matt: Now I can imagine. It turns out if they're trying to make an American -made smartphone, I don't think you can do that. I think some of the parts have to come from abroad. There's no way you can have a fully American smartphone. You can have some tariff problems.

0:03:29 Thomas: There's no way it's obviously made in china they're gonna be sued to death again the caucasity the audacity of just being like a phone we'll just launch a phone that's easy just do it and then nothing happens it's not like this is a small you know like the music man Is that the right one? Like the traveling, you know, monorail salesman that's going to go from town to town like the Simpsons episode.

0:03:32 Matt: Yeah, for the president, of course. Yeah the music man. Yeah right. Wow

0:03:51 Thomas: It's not like that, you know, that I can at least understand you're scamming and getting away with it. You're on the national stage, you're on the worldwide stage and you're promising a phone and it just doesn't, it's not going to happen.

0:04:02 Matt: It's gonna go the way of Trump air and Trump vodka and Trump steaks I'm sure.

0:04:04 Thomas: Yep. Somewhere in hell, there's somebody who is using their Trump phone and drinking their Trump water and their steaks and everything. All right. Well, that bit of fun fun aside, we better get to our less fun topics. Hey, thanks for listening to the show, everybody. Thanks for supporting it. I guess I'll make a little announcement. I've been mean to come back for the rapid response Fridays. It's something I've missed and felt like I needed to do and wanted to do. Jenessa, of course, still sick, but getting better. And I figured, ah, why not? Now's the time to do it. Look, I have ADHD. It is one of those things where it is like,

0:04:08 Matt: A boutique with all these products.

0:04:36 Thomas: Oh, I was going to do this. It has nothing to do with Jenessa or anything like that. I want to make very clear.

0:04:36 Matt: Of course.

0:04:41 Thomas: It is just something I wanted to do. Jenessa is great. She is still going to be on the show. Of course, people with ADHD will probably relate when it's like, oh, this thing forced me to do this because we needed to. And I'm like, Oh yeah. Okay. Well, I meant to do that anyway. So now I'm back on the Friday show, everybody. So I am looking forward to that. It's good to be back. With that said, if you want to support the show, if You want to get the goodies, you want skip the ads, go to patreon .com slash law. Thanks so much to those who support more important now than ever. All right. After this, we'll get to the merger.

0:05:10 Ad: [Ad break 1 — ad music]

0:05:10 Thomas: I'm not going to live. I've heard three podcasts on this and my ears glazed over just to coin a new phrase my ears glazed over the whole time like I know the gist of it but it's like three different billionaire assholes or two different billionaire assholes and they all want to buy a thing and ruin it it's hard to keep track of which asshole is ruining which thing in what way so give us the basics what are we talking about here

0:05:35 Matt: I want to focus on the fact that both of these assholes are trying to do something illegal. There's no way that this is legal. The reason that really matters is because this would be, of course, decided by the FTC, the Federal Trade Commission, which we're going to be talking about for the most of the episode. And Trump has indicated already that he would like to be involved in this decision because, of course. Why wouldn't he? Everything comes through Trump.

0:05:53 Thomas: Yeah why not can I can I say that I would also still like to be involved in the decision. Can people just say that? No, I guess not.

0:05:56 Matt: Sure. Sure. Yeah. Call me up. Ted Sarandos of Netflix already came to meet with him and he's already tight with the Ellisons on the other stuff. Very quickly though, just so people know what we're talking about, we're talking about Warner Brothers Discovery, which you just have to add discovery, unfortunately, to Warner Brothers every time you talk about it now. Warner Brothers, of course, being one of the oldest and most prestigious and storied studios in Hollywood history, they are spinning off their streaming and studios division, and they're going to be spinning that off from their networks, which includes CNN and others. The proposal here, I think, is for Warner Brothers Discovery to merge with Netflix, which is, of course, the largest streaming provider in the world. A couple of problems with this. First of all, Warner Brothers Discovery already owns HBO, so they've got a massive streaming market, a big share of the market already. Basic DOJ guidelines, Supreme Court precedent, the Clayton Act, for what it's worth. There's a presumption of illegality when you're trying to concentrate an already concentrated market, when you've got direct competitors that are merging, right? This is where the FTC is supposed to come in, as we'll talk about throughout the entire history of the FDC. This is what it it's four. There's something called the Herfindahl-Hirschman Index, and

0:06:58 Matt: It uses some fancy math to get you a metric number of how concentrated your market is in a given thing.

0:06:58 Thomas: There a metric number? Do you just mean a metric or a number? Or is it in kilometers? They don't use the queen system or the hell. How many farthings monopoly are we?

0:07:10 Matt: Yeah, it's in ounces, actually.

0:07:18 Thomas: I don't know.

0:07:18 Matt: Yeah. It's concentration in ounces. Yes. A metric that you can just sort of objectively assess the concentration of a market. With streaming, there aren't that many companies, as we all know. There are just a few of them that are actively producing streaming. And in terms of subscription -based streaming, it's a pretty narrow market. And I've seen numbers somewhere around 1600 to approaching 1800, which is when DOJ believes that a market becomes highly concentrated. And if one of these mergers were to go through, because both Paramount and WBD have streaming services, Paramount's much smaller, potentially the HHI on this could go to above 2500, which has historically where DOJ will step in and absolutely try to block a merger.

0:07:54 Thomas: Well, hypothetically, yeah.

0:07:56 Matt: Right. Hypothetically, this DOJ would not do that, I don't think, unless obviously the people that Trump didn't want. You know, it really comes down to FTC as well and how they feel about it, because they regulate antitrust. And then there's also the issue of the studios, because Paramount has, obviously, Paramount and Warner Brothers are two of the biggest studios in the country. On the one side, you've got the issue with the streaming subscription services with WD and Netflix. On the other side, you've Got Paramount as a studio. Both of these are a real problem. Potentially, too, no matter who wins on this one, we're going to be seeing real hits to theater productions.

0:08:26 Matt: Netflix doesn't want competition in the theaters. They've made some noise about maybe putting some things in theaters sometimes, but that's not what they're for. We all understand that. I like seeing movies in theaters.

0:08:34 Thomas: I do too. I love it.

0:08:35 Matt: I really would miss it. And it seems like that would really be a hit all around. And Netflix, I think rightfully, for its business model, does not see any benefit whatsoever to going into theaters. You know, it's expensive to make big movies and market them and put them in theaters, and you can lose a lot of money.

0:08:48 Matt: This merger, just on its face, raises real problems. And It's just the kind of thing the FTC should be reviewing. Trump is not happy, obviously, with CNN and with CBS. He says he's had a lot to say about these media companies. You know, he sued 60 Minutes because he didn't like the way that they edited one of his interviews, right? He's very involved in these things. He likes having control over media companies. This whole thing is an absolutely textbook example of why you should not allow the executive branch to just have complete control over things like the Federal Trade Commission or the FCC. You know, we saw obviously the issues with the FCC with Brennan Carr during the Jimmy Kimmel debacle, right? And then the Charlie Kirk stuff where he's talking about pulling licenses over commentary on the Charlie Kirks shooting.

0:09:28 Matt: If we're being honest and applying the law properly, I do think there's a reason to block this. I'm not going to comment really on the cultural or other business sort of impact of all this because it's not really my department. I just thought straight up and down, there's a presumption of illegality here.

0:09:41 Thomas: I think what's useful for us law -wise, and don't worry about the culture. I'll make the cultural commentary, Matt. Don't worry.

0:09:48 Matt: You got it.

0:09:48 Thomas: Or I'll not, because who cares about it? It's also not that important. Give us legally, and you already have, but just to sum up before we move on. Legally speaking, if we were in normal times, I think that's what often everybody wants to know in this Trump era. If we're in normal terms, TM, trademark, 1995 or something, I don't know, what would have happened in this case would they have not even like tried to do this and keeping in mind you know I think we've talked about on the show in the show's long history that democrats haven't been amazing on monopolies either like monopolies are a problem across the board and as always there's a context there's shades of like both parties might have been bad in the 90s but then there's outright crony capitalism and paying favors to trump in order to get your monopoly done you know like there's different shades of how horrible this can be keeping that in mind too I guess. Right.

0:10:10 Matt: I think they might've tried. Oh, sure. In normal times, the Department of Justice would actually bring an antitrust suit.

0:10:40 Thomas: Just right away.

0:10:40 Matt: Yeah. You remember the Microsoft one that took so long and didn't ultimately come to that much. But also there's the pre -merger and then merger review process that the FTC carries out where they're supposed to give clearance and actually work through a deal. So they have a lot of power to stop these things or to help them reach settlements that holistic. I don't know what that would be in this case, but it's supposed to have teeth. That's supposed to be the purpose of it, as we'll talk about the history of the FTC. So both of these agencies are supposed to protect us against these kinds of things. Unfortunately, I've come to accept the Department of Justice is under the control of the president. Now, that's arguably more so than the FDC, which has never been under the controls of the President. That has never been the point of it. It's always supposed to been independent. You can really see the problem here when you have a compromised DOJ and then potentially a compromised Federal Trade Commission. So we should talk about what that compromise is looking like and how it's happening. But I'll talking a little bit about the history of the FTC so you can get a sense of where it came from, because there's kind of an irony built right into the slaughter case, which is the Supreme Court case that was argued on Monday. The Federal Trade Commission has been around a long time. It's the first in the world, I believe, of its kind to regulate trade at a national level.

0:11:44 Thomas: Monopoly

0:11:45 Matt: And other countries have really looked to us for how to do this. It was created in 1914 because they were finding that...

0:11:51 Thomas: Man owned all the railroads and the hospitals and the schools.

0:11:52 Matt: That's right, exactly. Yeah. And the legislation wasn't doing it. So Roosevelt, Taft, and Wilson all tried to do something about it. Wilson finally takes action. They pass this, and the Federal Trade Commission is in an independent body. Now, as we'll come up in slaughter, there is this idea going back to George Washington and the first Congress that you can have sort of independent commissions or committees that aren't completely controlled by the president that are outside. You know, there's basically, there are a number of financial institutions that were independent more or less in the early Republic. The Federal Trade Convention in its current format is made up of up to five people. No more than three of them can be from any one political party. It has remained bipartisan and the terms are for seven years. It's been that that way since the FTC was created, essentially, and that was upheld in a case called Humphrey's executor, which is what's on the chopping block today, as

0:11:57 Thomas: After Humphrey

0:12:39 Matt: Of this week with this argument. Yeah, it's actually, it's a dead guy, William Humphry.

0:12:41 Thomas: Bogart. I would have guessed that.

0:12:47 Matt: By the time it gets there, that's why it's executor. Yeah.

0:12:49 Thomas: There are no living people named Humphry. I've checked. They're all dead.

0:12:53 Matt: And usually your executor does only get involved if you have passed.

0:12:56 Thomas: That is a good point that smart people would probably have known. Yeah.

0:12:58 Matt: That's how it works. Actually, it is Humphreys executor? Yes. So just, I can't get enough of that joke. Joke. It will always come back.

0:13:04 Thomas: I know. It's so funny. You can't call him Humphrey. You have to call him.

0:13:09 Matt: The irony that's built into this, though, is that FDR, when he's trying to get the New Deal going, was stuck with an FTC. He was stuck mit a number of different sort of deep state agencies and courts that did not like the New deal, that wanted to protect business. And so William Humphrey was an old school Republican who'd wanted hands -off business, didn't think that FTC should get involved in almost anything. Despite the text, the same text we're looking at here of the Federal Trade Commission Act, FDR fired him.

0:13:33 Matt: And he challenged is just firing exactly as Slaughter is. So it's an interesting kind of way this has come around because you've got one of the most liberal presidents firing an FTC commissioner who's interfering with liberal policies. And then you have one of those conservative presidents firing an FDC commissioner in 2025, who's interfering with conservative policies. The idea to overrule Humphrey's executor and to restructure the FTC was not Trump's idea. You'll not be surprised to learn. Yeah.

0:13:55 Thomas: Way. He didn't crack the law books that you have in the background of your office for all your commercials. He wasn't thumbing, paging through those and talking about, hey, I think I found in the bylaws, this Humphreys executor has got to go.

0:14:09 Matt: No. He's working from the old guy book, Project 2025, the mandate for leadership. This is straight from Project 2025, so I'm just going to read you the relevant part. The next conservative administration should embrace the Constitution and understand the obligation of the executive branch to use its independent resources and authorities to restrain the excesses of the legislative and judicial branches. This means ensuring the leadership of the Department of Justice and its components understand the separation of powers, etc., etc. One example includes potentially seeking the overruling of Humphrey's executor of the 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 Humphreys' executor in cases like CELA law. But the precedent remains. The new conservative administration should formally take the position that Humphrey's executor violates the Constitution's separation of powers.

0:14:51 Thomas: It was right there, huh?

0:14:52 Matt: What do you know? You'll never believe the position they've taken.

0:14:54 Thomas: All right. Well, after this break, we'll get into it. A little cliffhanger there and we'll get into the oral arguments.

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0:16:39 Ad: [Ad break 2 — ad music]

0:16:39 Thomas: We come back, I don't know if I can ever do an oral arguments, Matt, without remembering the smartest person I've ever heard talk who used to be the advocate for the government, Elizabeth Prelogger. Boy, do I miss her. I just want to, again, just light a candle. They'll just say in memorial. No, she's probably doing fine. We don't get to hear genius like that. We get to here an asshole who sucks.

0:16:59 Matt: Yeah. Yeah, we do. So we've got John Sauer arguing for the government and for Slaughter. We're not really going to hear him, but we do have an interesting tactic here that Rebecca Slaughter, the FTC commissioner, took. She hired a lawyer who used to be a clerk for Alito and Kavanaugh at different times. A conservative who served as a Florida solicitor general under Bondi is now all on board for this argument. And I think that was not a bad idea to kind of try to appeal to the conservative mindset and to try to bring it the best way he could. I mean, he's making a pretty solidly originalist argument, which isn't a bad ideia. Unfortunately, he did get kind of torn apart, but I think he's in a difficult position no matter what. I wouldn't say it was a slaughter, but it was not great.

0:17:37 Matt: But he also has a pretty good standing here on the stare decisis issue because there is nothing here that suggests that they should overcome stare decisis, the traditional idea that we follow precedent. That's the thing we're supposed to do. Let's listen to Sotomayor first because, of course, we've got to get some sanity here.

0:17:51 Thomas: But that's nice. Thank you. I appreciate that.

0:17:54 Matt: So she's just going to cut through the noise and let us know what's at stake here.

0:17:57 Clip: Why is that severability the issue? Meaning, if you think they're wielding power that is inappropriate, why don't we sever that power? I think those very arguments — Instead of the removal power. Well, for example, consider an agency like the FTC, which is before the Court, virtually all of its powers. I can't think of a power that exercises — But most of those powers were part of Humphrey's, this Court even, and Seila Law, and all of the cases you've mentioned since have said that that humphries is good is controlling law you're asking us to overturn a case that has been around for over 100 nearly 100 years correct uh 90 years I believe 90 years what other cases have we overturned that have had a pedigree of a hundred years pannoyer against neff was overruled by schaefer against heitner on its hundredth That was an economic case. What other case? For example, Erie overruled a Swifty Tyson 96 years later. But which other case has fundamentally altered the structure of government? For over 100 years, actually since 1887, we've had multi-member boards, and that's the entire government structure. The distortion of the structure of government, respectfully, that Humphrey, the philosophy... Aren't you asking us to distort it a different way? Neither the king, nor parliament, nor prime ministers, England at the time of the founding, ever had an unqualified removal power. Power. You're asking us to say that at a time, the founding, when the Constitution doesn't speak about this at all, where there was robust debate over this issue among legal scholars at the time, that we ourselves have said repeatedly in Humphreys and other cases, Wiener, even

0:18:41 Thomas: Oh, so it doesn't count. He's just she's just calling him a wiener.

0:20:05 Clip: Even in Myers, that those cases you mentioned did not establish this absolute power of the president. You're asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent.

0:20:34 Matt: Just want to remind everybody there are about two dozen independent executive agencies, and there's a very good reason. Trump is already trying to tear them apart. He's already fired, which the Supreme Court has already held on the same basis, Democratic appointees for the first time ever from the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission. And there are dozens of others that go on from there. The conservative complaint is that these are sort of quasi -legislative bodies that are not actually within the executive branch. They think there should be a unitary executive, that the president should have complete control over every agency in the executive branche. And that's not really how it's supposed to work when you're talking about something like regulating unions or consumer product safety, right? You can imagine how corrupt that could get if you have somebody like Trump in charge or the FTC or FCC like we're talking About. A couple of cases she's talking about just for context here. Myers v. U .S. was in 1926. That was Justice Taft writing that there's a statute that required the president to get the consented the Senate before firing a postmaster, which is a little much. In that case, because it was an executive thing, the postmaster just is overseeing a part of the postal system. He's a postmaster of Oregon, I believe. Now, this is not like the other independent bodies that we're talking about here, where they have their own regulations, where THEY have hearings, and where they have a full structure. This is what these independent bodies are about. It was pretty straightforward. They just said, look, the Postmaster is basically an employee of the President. He works for the Post Office. You can't have the Senate interfere with the President's ability to fire. It's sort of the limit of that.

0:21:55 Matt: And then Humphreys, of course, was about the FTC, which is a multi -member agency. She also mentioned Seila Law, which is from 2020. And that was challenging the structure of the Consumer Finance Protection Bureau, which of course has been a bugbear for conservatives for a long time, as we know. They found in Seila Law, the conservative majority found, that you couldn't have an agency like this that is run by one person. There's a single executive director of the CFPB who's only removable for cause. So they found that you can have a multi member agency. But of course this is sort of paving the way for the slaughter argument here where we're talking about a multi -member bipartisan agency.

0:22:27 Thomas: I don't think I understand why. How do they make that distinction? Really?

0:22:31 Matt: So they're saying it's a separation of powers issue when you just have one person in charge of it versus when you have this sort of bipartisan, long -term, independent agency.

0:22:39 Thomas: Oh, OK. I guess that makes sense.

0:22:40 Matt: I mean, I don't agree with that. The liberals obviously dissented from that, and they said that four -cause removal is reasonable.

0:22:46 Thomas: Yeah, just across the board. Like, that's what it should be rather than whatever this gerrymandered rule is.

0:22:48 Matt: Right, that's how it should work. But they carved out this exception. One way we can kind of see where the wind is blowing with all of this is in Morrison v. Olson, which is from 1986, which is going to come up in this in kind of a funny way in the Gorsuch part we'll get to. Scalia Scalia was the only dissenter in Morrison, and that was about the independent counsel statute. It's one of the most important cases of the Reagan era. The independent counsel is what we call an inferior officer. I'm sure you remember all this discussion about whether somebody's a principal or inferior officer with Jack Smith stuff.

0:23:14 Matt: But you could have an officer who's outside the president's control because it's a prosecutor. You can have this idea of an independent counsel. They upheld this. It was not a separation of powers issue. Didn't actually explicitly rely on Humphreys, but it was the same idea. And it's pretty important case for all of this as well. But this is the Scalia dissent, where he famously wrote that sometimes the wolf comes as a wolf.

0:23:35 Matt: It's not a wolf in sheep's clothing. This thing is just a wolf, it's dangerous. Scalia called it the most wrenching case that he participated in, the one he thought was the most wrong, when they found that the president couldn't fire an independent counsel. This really kind of set up the unitary executive theory as we know it on the conservative legal stage right now. And unitary consecutive theory is not, go back to the beginning of the republic, it is a pretty new idea, but it is the basic idea that Sauer and the government are pushing here. And Sauer puts this very explicitly in his brief, that the president should have absolute authority over everything that goes on in the executive branch. And that is dangerous. I really think so.

0:24:07 Clip: The dominant line of authority that started in ex parte Hennen in 1839 when this court said that it's a settled and well-understood construction of the Constitution that the president alone can remove executive officials. That was reaffirmed in Parsons, for example, where it described it as settled beyond the power of alteration. Again, in Shurtleff, similar language. Myers says the same thing. And even Humphrey's executor itself paid lip service to this principle. Humphreys described this power as unrestricted and illimitable in order to get out of that rule, which the court has recognized in those nine decisions is going back to 1789. You still haven't answered my question. Where else have we so fundamentally altered the structure of government? I think what the fundamental alteration of the structure of the government was ushered in by Humphreys and then the Congress kind of took Humphrey's and ran with it in the building of the Montessori administrative state and the proliferation of independent agencies that are insulated. Independent agencies have been around since the founding, the sinking fund, the war commission. We've had independent agencies throughout our history. So this is not a modern contrivance. As in our brief, we disagree with

0:25:26 Thomas: Okay, well, you're wrong.

0:25:28 Clip: Example, was composed of three us how the president's will could have been thwarted by that amicus brief that shows us how that the president will by that structure

0:25:47 Matt: I love the way she just repeats it. And he's just not able to come up with an answer on this, Amicus.

0:25:51 Thomas: I'm not sure what she's saying. Can you help me out there? Translate this into English for us. What's going on here?

0:25:56 Matt: The former members of the Equal Employment Opportunity Commission, another one of these bipartisan independent agencies. And they make the point that the sinking fund, which we're talking about here, it had members that weren't removable by the president. That was sort of built in. They still could turn on him. I think that's the point she's making is that he's trying to say they would be removable. And he's saying there's still members of it that would not be removable by the president because, you know, you can't fire the vice president, unfortunately, or the chief justice. And these people were all on the commission. This is always the problem with originalism, right, is there's never a direct corollary. And even the Federal Trade Commission, I think this is one of the better arguments in favor of the government's argument here. The Federal Trade Commission does more than it used to do. It used to be more of an executive agency, arguably, and it's more of a legislative body now that does rulemaking and some judiciary functions as well, which is going to come up. This is complicated stuff.

0:26:43 Clip: Considered in this court's case from, you know, free enterprise fund and Seila Law and so forth. So what do we do with Morrison and Wiener and Perkins? Well, Morrison, for example, I think is a really critical precedent here because what Morrison did is it repudiated the entire logic that supported the holding of Humphrey's executor. It repudiating correctly the idea that there are these quasi-judicial and quasi-legislative powers that are outside the executive power and yet they're wandering around the executive branch. You answered the Chief Justice by saying that maybe we just need to look at each agency individually. So we can't leave that area. By the way, your logic, you're putting at risk by this. You're saying there's uncertainty. I think the uncertainty in the lower courts was not over Humphrey's executor. It has been over the court's most recent decisions, not because of Humphrey's executor. But you're putting at risk the independence of the tax court, of the federal claims court, You're putting a risk the civil service. I don't see how your logic could be limited. As to the non-Article III courts, as the non Article III court in this case. And we recognize that there are some line drawing issues

0:28:05 Matt: So this is a good point right here about the not yet.

0:28:06 Thomas: Yeah, that's wow. Wow.

0:28:08 Clip: Issues as to those that came up in cases like Freitag and Ortiz. Again, those aren't presented here. Those aren't briefed here.

0:28:17 Matt: One compromise that Roberts is actually potentially promoting here is the idea that we can keep Wiener from 1958, Wienervieh, U .S. And that case was about the War Claims Commission, which is essentially, it was a tribunal that helped to settle claims from American prisoners of war and people who'd been interned in internment camps. Like a lot of these courts that Sotomayor just mentioned, the tax court and these other Article I bodies, like the Social Security Court, things like that, that are the administrative law judges. And she's saying, well, you're not coming for them yet, but your logic is going to kill them. You're not going to be able to have these bodies that Congress creates that are not Article III courts that do the jobs that Article III chords don't want to do.

0:28:52 Thomas: Obviously, I don't know the finer legal points of it. But the posture of this Trump administration and this guy is trying to get them to do something insane that is way against precedent. We've kind of covered that it's against almost 100 years of precedent. So what often happens is the sane people on the court are like, well, okay, but by your logic, then like this other thing that's obviously good, that's been around forever, that will also go away. And he's like, oh, but we're not asking for that. It's like no, we want to have our cake and eat it too.

0:29:18 Matt: I wouldn't touch that. No, of course not. Yeah. Yep.

0:29:22 Thomas: We're not saying do the stuff that would be the bad consequences of what we want. Yet, to her point,

0:29:28 Matt: No. And the way she said that was so knowing and so obvious, like, not yet. We know. We know what you're doing here.

0:29:31 Thomas: Yeah, it's so good. That's someone with a... I won't say she's out of to give, but she's low, low on to give.

0:29:38 Matt: Yeah. Her tank is running empty.

0:29:40 Thomas: Her are at a critical low. The engine light is blinking, the fuel gauge, the F gauge.

0:29:43 Matt: Well, now we'll go on to somebody who's quickly getting to that stage. Other fan favorite, Ketanji Brown -Jackson.

0:29:49 Thomas: I just listened to, I mean, the Daily today. I know we always love to hate the Daily. You'll have to give me your take on it if you end up listening to it, but it was about the kind of difference in tactics between Katonji Brown Jackson and Kagan. For some reason, they just left Sotomayor totally out of it. They presented it as Katonji Brown Jackson has entered into the court out of Fs.

0:30:10 Thomas: The bag of F's that she came in with was empty and that Kagan is kind of still grappling with that. So it was kind of interesting. I'm curious your take if you ever listened to it. To that point. Let's hear this empty bag of Fs.

0:30:21 Clip: I'm trying to understand why you think that Congress is somehow less democratically accountable for the way in which it constructs these agencies and determines the term of office of the officers. You seem to think that that there's something about the president that requires him to control everything as a matter of democratic accountability, when on the other side we have Congress saying we'd like these particular agencies and officers to be independent of presidential control for the good of the people. We're exercising our Article 1 authority to protect the people by creating this independent structure. And I don't understand why it is that the thought thought that the President gets to control everything, can outweigh Congress's clear authority and duty to protect the people in this way? Congress has a broad authority in structuring the Federal Government Board. What it lacks authority to do is to create these headless agencies, agencies who have no boss and are not answerable to the voters, and confer on them. Why does it lack — the Constitution does not say that Congress cannot create an independent So, what is it about your argument that requires us to reach that result?

0:31:38 Thomas: Oh, we're just saying it

0:31:41 Clip: We think the text of the Constitution confers the executive power, all of it, on the president. As Madison argued compellingly in the decision of 1789, the power to remove is an aspect Further, the text the Constitution includes the take-care clause. The take- care clause, as the Court has said virtually every time it's discussed this, The text of Constitution includes necessary and proper clause, which gives Congress the authority to determine, set up, et cetera, these agencies to protect the interests of the people. So we have a conflict, I guess. And I'm just wondering why the president's interests in the way that you described them win. You can answer the question. It is not proper under the necessary and proper clause for Congress to peel away executive power from the president and give

0:32:17 Thomas: Because we want it to. But they're answerable to the voters.

0:32:30 Matt: So this is a very good point that she's making because they love talking, and Gorsuch is going to be talking about this. Gorsuche, of course, I have to point out, is the most motivated of these because he hates the administrative state. He wants to kill it completely. We are talking about the administrative estate here, about congressional agencies as set up by Congress that help to regulate and interpret the law and enforce it, all in this sort of independent way that is outside of partisanship, because we have to have some parts of the government that are preserved from this partisanship. You've got the conservatives saying that you're removing executive power and Congress is taking this power, and that somehow the president would be more accountable than Congress when, in fact, we do elect members of Congress. None of these people are really accountable.

0:33:10 Matt: Nobody's going to not vote for the president because of one decision they made about firing one member of an executive agency. I just don't see that. Sauer, in the beginning of his arguments when he's talking to Thomas, talks about how even if you think that there's some sort of arguably bad reason that the president has removed an officer, that would be subject to the political process. It might be subject to judicial review. That I just think is taking it too far. And that's what KBJ is saying here too.

0:33:32 Matt: The first question we knew that we'd be considering was as to whether Humphrey's executor would be overruled and the FTC could be be subject to just being removed. But the second question introduced by the court was, I thought, very strange, and I'll just read it to you. Whether a federal court may prevent a person's removal from public office, either through relief and equity or at law. That's a big question. That's much bigger than Humphrey's executive.

0:33:55 Thomas: You translate that for me?

0:33:56 Matt: Yeah, you're just saying any removal from public office. Not just these independent bodies, right? And I mean, if the president came out and said, I am firing every single female member of the FTC, every female employee of the FCC, because I just don't think women are good at business.

0:34:10 Thomas: That's a crazy hypothetical, Matt. That would be like saying he's firing everyone who's not white because they're DEI, which has already happened.

0:34:20 Matt: I mean, if it's such an obvious violation of the law and of equal protection and of our basic statutes that protect employees, a federal court can prevent removal from public office.

0:34:29 Thomas: You would hope so. Yeah they're really arguing that they just can't at all? He just can do whatever he wants?

0:34:35 Matt: Yeah, the executive branch is just, you know, I don't know how far up against the other statutes I would run, but it just seems like kind of an inartfully phrased question, to be honest. I feel like they should have tied it in more, but the fact is they're not going to get to this question because they're going to find that Humphrey's executor was wrong. So it doesn't matter. The remedy doesn't really matter. And that's at this point, because they're just going to say that the president can fire people.

0:34:54 Thomas: Why do you say that? I've seen that being the general coverage and having not listened to opening arguments yet. We haven't heard any of the bad guys talk, so. Why are you certain that they're going to do that?

0:35:00 Matt: We've talked about this a few times now on OA, but in the shadow docket decisions in which the Supreme Court is considering all these many illegal firings, they've said that they don't think Humphrey's executor is good law, basically. And then they actually got mad at one of the lower courts for not following their shadow doocket decision. And they were like, didn't you hear us the first time? We're saying Humphreys executor isn't good law. And we talked about this on the show before about how they didn't overrule it. And you can't really blame the DC Circuit and these other courts for being like, Well, this is the law. The D .C. Circuit decision below is basically like, we can't overrule this. This is strong stare decisis. This is exactly on point. You're trying to fire a member of the SDC for something other than cause. That's exactly what FDR tried to do 90 years ago, and the Supreme Court said he couldn't. So until we hear otherwise, that's what we're doing. For contrast, though, I want to note, because this is a related topic, the Federal Reserve is also arguably a similar sort of body. Lisa Cook of the Federal Reserve was fired for some made -up nonsense. And something that no criminal charges or investigation was ever brought for it, having something to do with their mortgage, just some noise that they made about it. The DC Circuit granted a preliminary injunction, kept her in the job, finding reason to believe that this was arbitrary. It seems like it was not for cost.

0:35:30 Thomas: Oh, that's right. I remember this. Yeah. Oh, probably because it was arbitrary.

0:36:12 Matt: It was totally arbitrary. But the Supreme Court declined to stay that, and a scheduled argument in January, and they found that the Federal Reserve is different. And they'd better find it's different, because that'd be terrible. I mean, I'm not an economist, but I don't think you can have the president controlling the central bank of a country. That's a really bad idea.

0:36:27 Thomas: Yeah, so that's the one I remember it just being kind of, well, you know, that might impact us as justices and with retirement accounts. That was kind of the thinking. My memory is that there's There's not really any logical distinction. If they were to go with this reasoning that the president can just do whatever that if he wants, he controls everything. Look at me. I'm the captain now. I can do anything I want with all this stuff.

0:36:46 Thomas: There isn't any reason why to carve out one little agency, right?

0:36:46 Matt: The Federal Reserve is a very unique institution. I mean, it is sort of different in kind from these. You could certainly apply the same logic here if you wanted to, but they don't because they know it'd be an economic disaster to have this Federal Reserve controlled by Trump or anybody.

0:37:02 Thomas: Well, I guess what I was getting to is if they overturn Humphrey's executor, doesn't that just mean he can? I was under the impression that this one would mean that that was out the window. But are you saying they would still kind of gerrymander it in a way where they can overturn Humphrey's executor and yet still somehow keep him from firing FTC people?

0:37:22 Matt: Let me just read from the court's decision in Wilcox in which they found that Gwen WilcoX of the National Labor Relations Board was properly fired because Wilcoxt made that argument. She said about what's to stop the Federal Reserve from being subject to this. They said, we disagree. The Federal Reserve is a uniquely structured quasi -private entity that follows the distinct historical tradition of both both the first and second banks of the United States. So totally different.

0:37:43 Thomas: Because we said so. Yeah.

0:37:44 Matt: It is an unusual institution. So her argument, Lisa Cook's, is going to be challenging the four cause firing itself, not the concept of four cause firings. The statute at issue here with the Federal Trade Commission requires that the commissioner may be removed by the president only for inefficiency, neglect of duty, or malfeasance in office. So of course, Trump was completely ignoring that. Humphrey's executor upheld that and said it's reasonable to have these kinds of restrictions that you can only remove somebody if they're bad at their job. To remove this would mean that we no longer have any kind of restriction on who can be fired at it also means that the entire purpose of this bipartisan outside of the executive branch structure is gone.

0:38:17 Matt: Nobody's really talking about the bipartisan part of it enough, I feel like.

0:38:20 Thomas: Oh yeah, that's true. I haven't really heard people talk about that.

0:38:23 Matt: And I think that's really bad. So as of now, the Federal Trade Commission has two members. It's down to two out of five, because obviously you lost Slaughter. You had Alvaro Bedoya was also fired, but he ended up resigning instead of fighting it. She just kind of let her take the fight, I guess. And then Republican Melissa Holyoak resigned to become acting U .S. attorney for Utah. She was a Republican and appointed by Bondi. Andrew Ferguson, who's got, he's only 39, by the way. He explicitly calls it the Trump -Vance FTC. Now, Ferguson was appointed by Biden because Biden had to appoint a Republican at that point because of the balance of power here.

0:38:53 Matt: Ferguson has not acquitted himself very well. He held a hearing actually on gender -affirming care just to talk about deceptive trade and even try to jam it into FTC jurisdiction. He's apparently brought up gender stuff just gratuitously in conversation like all these people.

0:39:06 Thomas: Cool, cool, cool. All their brains are rotten. Yes.

0:39:09 Matt: Yeah, exactly right. The FTC opened an investigation of media matters after it criticized Elon Musk, typical kind of stuff. And I'm really appreciative of this quote. He told the New York Times, I think we're being very honest about the constitutional framework in which I am an inferior officer of the United States. I love that he said that out loud. Even Judge Rao in the DC Circuit said in her dissent that everyone agrees that FTC commissioners are principal officers, not inferior officers, because they have to be Senate confirmed.

0:39:34 Matt: And that's pretty much the dividing line between principal and inferior. And they have substantial executive power. That's where we're at with all of this. Let's hear Gorsuch now. We finally reached that.

0:39:43 Thomas: Yay, we get to hear the bad guys. Wolves? Oh, okay. Well, let's see where we go here.

0:39:45 Matt: Yeah, let's talk about wolves. Yeah.

0:39:48 Clip: It to someone who's not answerable to the voters. Justice Gorsuch. General, let me suggest to you you, that perhaps Congress has delegated some legislative power to these agencies. Let's just hypothesize that. And let's hypothesize, too, that this Court has taken a hands-off approach to that problem through something called the intelligible principle doctrine, which has grown increasingly toothless with time. Is the answer, perhaps, to reinvigorate the intelligible principle doctrine and recognize that Congress cannot delegate its legislative authority. Is the water warm, General?

0:40:31 Thomas: What?

0:40:32 Clip: Sorry, what was the last? I couldn't hear the last bit. Is the water warm?

0:40:37 Thomas: What does that?

0:40:39 Clip: Suffice to say, let me say one thing in response to that.

0:40:39 Matt: Am I getting close, I guess? Yes.

0:40:43 Clip: It is much easier to cure. Obviously, members of this Court have debated the scope of the the non-delegation doctrine, the challenge of finding the right standard there is something we've discussed in the past. Here, though, this wolf comes as a wolf, right? I mean, the restriction on executive power is right there in the statute. It's easy to remedy by excising the removal restriction. There are a lot of wolves around here, General. But one thing our framers knew is that every political actor seeks to enhance its own power.

0:41:11 Clip: We all know that to be true from our own experiences.

0:41:06 Thomas: Except Congress. Fenris.

0:41:16 Clip: And this Court, as part of this bargain, has allowed these agencies to exercise both executive and legislative. Justice Sutherland, whose name hasn't been invoked around here in quite a while, his language about quasi-legislative and quasi-judicial and quasi this powers. And this court has allowed that for a very long time. But if we're not going to allow it any longer, I take the point that this is allowed a bargain where a lot of legislative power has moved into these agencies. But if they're now going to be controlled by the president, it seems to me all the more imperative to do something about it. And I can't address all the wolves in the world, but this wolf when it comes to constitutional structure is Fenris, the most dangerous wolf in the history of Norse mythology.

0:42:06 Thomas: What?

0:42:08 Clip: And let me ask you about the judicial power. To the extent we're worried about the tax court or the court of claims, maybe, maybe despite what people think, maybe some of them might be, I don't know, but maybe they're Article III courts and the removal restrictions are impermissible. Thoughts? There are, there definitely could be arguments on that. I really, I'm not taking a position on the validity or non-validity of any of those which are not presented here, but certainly Certainly commentators have argued that things like the federal magistrate judges and the bankruptcy courts seem to be real adjuncts to Article III courts, and the argument might be made of that nature. There are line-drawing problems there. I don't have the federal government's concerted answer to that, but certainly those line-drawing problems would go to whether what is going on is judicial power or executive power. The adjudication of private rights is different, we have said, than the adjudification of public rights. And again, yes, those would implicate all those line drawing problems.

0:43:07 Matt: Let me explain a few things here.

0:43:08 Thomas: Yeah, please.

0:43:09 Matt: Gorsuch is, obviously, he just doesn't want anything like regulation. He doesn't wanna administrative bodies. He's saying, even if the president gets the power to control these things, isn't that still too much? Won't they still do too much legislative stuff?

0:43:21 Thomas: Really?

0:43:21 Matt: Can't we change the way they do things? They're still wolves. Yeah. Clearly, he wants the president to have that authority so he can strip them down. The intelligible principle doctrine is about non -delegation, right? So it's one of the ways that we interpret it. It hasn't been used for a little while. It's kind of out of favor. It was always kind of broadly interpreted. The idea that the Congress has to provide clear guidelines when when it delegates. And the non -delegation doctrine generally is that Congress can't delegate away its legislative powers, which they're arguing in some of these cases that it does because of the regulatory rulemaking here. That's Gorsuch's solution is he wants to bring that back so that we can say that most of these administrative agencies were improperly created or too broad. We can narrow them as much as possible. The Wolf thing though, I had to get that in there because honestly, it was kind of a good ad lib from John Sauer there, but Fenrir, Fenrir, he's referencing there, the Norse wolf, is the wolf who is directly responsible for bringing on Ragnarok, the End Times. I mean, we're talking about the Federal Trade Commission here, guys. I just don't think it's the same thing.

0:44:18 Thomas: He said Fenrir? That's funny, because I know that name, but I didn't recognize what he said.

0:44:23 Matt: Yeah, he mispronounced. I think he said Fenris. That's what I heard.

0:44:25 Thomas: Oh, Fenris? Oh I was wondering.

0:44:28 Matt: It's funny. It goes in the transcript as Fenrir.

0:44:30 Thomas: No, the transcript says Fenris on this video.

0:44:32 Clip: This wolf, when it comes to constitutional structure, is Fenris.

0:44:35 Thomas: Fenris, how did you know he was talking about Fenrir, because you're a dork?

0:44:40 Matt: It's in the transcript. That's how I read it. And I just heard Fenrir when he said it.

0:44:42 Thomas: Oh the, so some transcript dork fixed it. So what's funny is in this video that you've sent me, they have their own, this says Supreme Court Oral Argument Transcripts. It's a YouTube channel. And they have Their Own like in the screen, not on like the transcript transcript, but on the screen. They have it as Fenris because it's clearly what he says.

0:44:59 Matt: You know, you're right.

0:45:00 Thomas: But I love the idea that some transcriptionist somewhere along the line was like, idiot. Just like fixed it.

0:45:07 Matt: No, actually, that was me.

0:45:09 Thomas: Oh, you fixed. Okay. So it is you.

0:45:09 Matt: I fixed it in my mind because I'm looking back at the transcript now. It does say Fenris. I just couldn't believe it went down as Fenris because that's just not what he's called. Yeah.

0:45:14 Thomas: Your nerd autocorrect did it.

0:45:17 Matt: My brain just corrected it.

0:45:19 Thomas: Also known as your brain.

0:45:20 Matt: It's a little extra to say that this is the most dangerous wolf in the history of the world. This constitutional structure. Yeah.

0:45:26 Thomas: It does feel like he just happened to like see Fenris in the news lately. And it was like, oh, I'm going to work this one in. I just heard someone talk about Fenris on a podcast. I'm gonna work it in. Yeah, were

0:45:37 Matt: Right. Right? Yeah. Just saw a Marvel movie or something. Yeah, these arguments, honestly, they went on forever. There aren't a lot of terrible moments from the conservatives. They're just kind of going through their points the way you'd expect. What's going to happen is going to have this is one of the most predetermined cases, I think, in either Trump term.

0:45:51 Thomas: People that certain of it a month ago? Or is it just because of these arguments?

0:45:55 Matt: No, No, it's because of the stays, because the way they're behaving in the shadow docket. They made it very clear that this is where they were going with it. I think without that, there might've been more drama about it, but this is very much predetermined.

0:46:05 Thomas: Well, this sucks. I'm not a fan of that.

0:46:08 Matt: Yeah, no, it does. I think we need independent bodies, and I'm very concerned about potentially getting into the stuff that Sotomayor's concerned about with these quasi-judicial bodies.

0:46:15 Thomas: If I said we need an independent body, would you hold it against me? Oh, sorry.

0:46:20 Matt: I'm an independent body inspector. Is that anything?

0:46:20 Thomas: I don't know, folks, this is bad. It's all bad. We're just trying to figure something out. I don' t know.

0:46:29 Matt: Yeah, we got to find the jokes here somewhere. But Gorsuch, he kind of had a weird kludgy fix here in that part we listened to, where where he's like, well, how about we just say that the bankruptcy court is an Article III court? Because it's pretty close. It's pretty much there. That would be a solution, I guess. But I think that's up to Congress to say that. I guess he's saying maybe the courts could say they're also courts. Kind of weird. Because they have to do something with the fact that we do have these quasi -judicial bodies that even Roberts and Gorsuch seem to be saying we don't necessarily want to excise them from all of this. And Roberts is suggesting that we just uphold Wiener and overrule Humphrey's executor, which is more about the quasi -legislative functions. And Gorsucha seems to be suggesting that would just throw them into Article III.

0:46:42 Thomas: Look, I don't know much, but that feels constitutional to me. Or that feels like a constitutional issue to me, like You could just, we'll just decide this thing goes in the other part of the Constitution for some reason.

0:47:11 Matt: It does. Wrong branch government.

0:47:17 Thomas: Am I missing something? That seems not doable. What am I missing, Matt?

0:47:21 Matt: Let me double check about the origin of the bankruptcy court. Yeah, the bankruptcy court, of course, like the tax courts and the other Article 1 stuff we're talking about, was created by Congress. Congress can create Article 3 courts. They just have to say they're judicial courts. The Constitution says they can create lower courts, but I don't think that was at all their intention when they did it. If you care about that sort of thing, about the origins of things, if you're one of those people, it might be a problem.

0:47:42 Matt: I don't think anything is going to come out of this. I'm very concerned about all kinds of deregulation and where this could go. There might be legislative fixes, but I do not like the idea of leaving this stuff to the president and allowing any member of any of these multi-member independent bipartisan commissions to be fired.

0:47:57 Thomas: Well, Matt, that sucks. Fuck, I think the only thing that could cheer me up is a footnote. What are you saying? Shall we take a break and get to a footnote?

0:48:03 Matt: Yep. Let's do it.

0:48:04 Thomas: We'll take our last break and then we'll get to the footnote

0:48:09 Ad: [Ad break 3 — ad music]

0:48:09 Thomas: All right, Matt, cheer us up.

0:48:10 Matt: All right. Well, this is obviously illegal to the degree that I think any court that's going to look at this is going to have to say, you can't do this. Check out trumpcard.gov. Let's just all go to trumpcard .gov right now, because this is my new favorite government website.

0:48:23 Thomas: Here we go. Am I going to get a virus from doing this?

0:48:26 Matt: It looks like the scammiest nonsense.

0:48:29 Thomas: I'm genuinely like any other time. Imagine during Barack Obama's government, his administration, if you're like, well, I don't want to go to this .gov site because like, but like I'm generally by logging into the site is Elon Musk tracking me or something, some by something, you know, who knows?

0:48:38 Matt: I mean, This looks like an MLM.

0:48:47 Thomas: Oh my God, this is so stupid I'm seeing the fake eagles flying across the screen right

0:48:51 Matt: Scroll down, it gets stupider, and you'll see the card pop up. Yep. When you scroll down. Yep.

0:48:52 Thomas: Now, oh Jesus, trump gold card oh

0:49:02 Matt: It's an ugly gold card with Trump's horrible

0:49:04 Thomas: My God, graphic design is my passion is basically the who designed this website it's a WordPress plugin to make this website. Oh my God the AI eagle at the bottom I didn't think the eagles could get worse. Wow

0:49:05 Matt: Face and an eagle. And also like, look at the way it's phrased here, special benefits. You're applying for special benefits with the United States. So there's the Trump gold card and then the Trump platinum card allegedly coming soon, which is not contemplated in any of the orders or regulations that have been put out yet. So it doesn't exist. It's a scam.

0:49:28 Thomas: But it gives us a preview of it gold card for $15,000 DHS processing fee, asterisk, additional small fees to the U.S. Department of State may apply depending on the applicant. Are those like the normal like government paperwork fees or whatever?

0:49:42 Matt: Yeah, yeah.

0:49:43 Thomas: Like $5 or something? Yeah.

0:49:44 Matt: They're like 450.

0:49:46 Thomas: But here's our $15,000. And after background approval, a contribution of $1 million receive U.S. residency in record time. What's right now? What's record time? 10 years? Who knows?

0:49:57 Matt: Well, If you're from China or India, yeah, it might be.

0:50:00 Thomas: What's the normal time frame for receiving residency? Like if you're a normal person.

0:50:04 Matt: Well, there's no normal time because there's so many different ways to do it. But if you're talking about it this way, I have to explain about sort of the avenues here about what they're doing. When this proposal came out in September, there's an executive order that we'll link to that outlines it. And we all kind of assumed until we read the order that he was going to be using what's called the investor visa, which already exists. There's already a thing like this. If you pay a million dollars into some kind of a program that creates at least 10 American jobs, and there's all kinds of intermediaries that will help you invest in American jobs. And especially if you invest on a disadvantaged area, it can only be 800,000. And this is such a typical Trump thing to do, to create something that already exists and make it worse. That's what we're doing here.

0:50:37 Thomas: Yep. Well done as always. Yeah.

0:50:40 Matt: Instead of using the investor visa, now the executive order contemplates the idea of considering maybe integrating this into the investor visa program. But instead what they're doing is they're supplanting the EB1 and EB2 programs, which is so much worse. So these are the extraordinary ability visas I was talking to Nicole about in our Thanksgiving episode, the one that she specializes in. Also the national interest waiver visas. As we were talking about with Nicole, this is an extremely complex analysis analysis for people who are super talented, like the top 5 % of your field. If you can show you're one of the best basketball players or soccer players or violinists, there's also a category for business and for sciences. You have to really be able to show, and it's kind of fun. We love doing these cases because you get to show immigration kind of as their agent.

0:51:16 Thomas: Like go beat the devil in Georgia at a violin competition. The fiddle. Yeah, that I support. We should have that.

0:51:19 Matt: Right. And you've got your golden violin to show it. Yep.

0:51:24 Matt: And so the EB1 and EB2 programs are, again, some of the best parts of the system because they do exactly what I think every American would want, which is we find some of the best talent in the world and we bring them here and we make it reasonably easy if they can show they meet these qualifications. What this will do instead is create a presumption. This is incredible. I laughed out loud when I saw this. I mean, you have to. You have no choice. In adjudicating visa applications, Secretary of State and Secretary of Homeland Security shall, consistent with applicable law, treat the gift. Remember, they said it was a contribution that you're making.

0:51:53 Matt: It's a gift you're giving the United States. Not a filing fee, not any kind of fee, because there's no fee like this that exists. They just have to say, basically, bribe us with a million dollars. They will treat the gift as evidence of eligibility, of exceptional business ability. You have a million dollars. So that is just presumption. It is creative, right?

0:52:07 Thomas: That's, that's creative. So it's like, instead of playing the violin, well, we're like, well if you have a million dollars, that means you must be good at something. You know, that's not the stupidest thing I've heard from this administration. I'm just going to say, I'm not saying it's good.

0:52:21 Matt: No, it's creative. It's creative.

0:52:21 Thomas: I'm just saying that's not the dumbest thing they've ever done. It's among the smarter reasoning I've ever heard them use.

0:52:28 Matt: Knowing how incredibly difficult it is to put together these 600-page filings that we have to do for the extraordinary ability visa right now, it is very frustrating to think that you can just write him a check. You could be a drug dealer. You can borrow that money from your parents. You take out a loan.

0:52:39 Thomas: Hell yeah. But you're the best drug dealer, damn it.

0:52:41 Matt: That's right. You made a million.

0:52:41 Thomas: We want the best of the best. Maybe you're a hitman. We want all the best, we want people with a certain set of skills. Like if whatever you do makes you a million dollars, you know, I think you should be here. That's great.

0:52:52 Matt: This is such rich guy logic to be like, well, you have a million dollars, so you are better than everybody else, right. You are good at stuff. This why Trump liked Elon Musk, right, because he is the wealthiest man on earth. He wants to hang out with them. There's no other reason to like him.

0:52:54 Thomas: Yeah, it really is. Yeah, there really is not any other reason to like him.

0:53:04 Matt: Absolutely not. The really pernicious thing about this is that we'll create a massive backlog because right now from China and India, there's already a backlog because you can only give 28.6% of the total employment visas available out in this category. And then they're divided down by country as well. So they're oversubscribed from China to India, which are very large countries that supply a lot of high talent people. Pretty much right off the bat, people from China, India are not going to be able to expect to get this gold card if it's ever allowed. I don't know if it'll ever actually go through.

0:53:29 Thomas: Well, why not? I mean, their reasoning on this is better than the freaking Humphreys executor. Right.

0:53:34 Matt: Sure. Yeah, that's true to some degree. I think that somebody who's going to be jammed up in the backlog, because again, you're going to be creating a backlog and you're actually going to have retrogression. The visas will come backwards because the line will get so long. You're goingto have people that are super talented that actually are qualified for these things and don't just have a million dollars that are going tobe pretty pissed because they're not going tohave the opportunity to come here when they have this program available to them. And they're gonna be supplanted by people that just show up with money.

0:53:59 Thomas: But what's interesting is like, would they have standing? Because I know we don't like to give people who aren't citizens much in terms of rights and legal options.

0:54:07 Matt: It's an open question. At the point at which you've applied, though, you do have more rights. So once you've put in your filing fee and filed the application. I've been thinking about this all day, about the standing issue, about if it's possible. Somebody's got to try because this is so stupid. And it's so illegal because it's immediately in contradiction to what Congress intended for this program. I mean, it's just the opposite of that, right? It's like removing any conversation about talent.

0:54:25 Thomas: You would think it's like if you had a few slots in a university that's like, you know, this is just rich people buy their way in. But like, we want people who get amazing SAT scores. And then you're like, well, but also if you pay a million dollars, that's like, you're good at the SAT. 'Cause you probably had to be smart to get a million. It was like that basically.

0:54:45 Matt: Basically the same thing. Yeah, yeah.

0:54:46 Thomas: Yeah. Cool. That's America for you.

0:54:49 Matt: This website and the way that it makes them both look like credit cards is disgusting to me.

0:54:52 Thomas: That is weird too, because it doesn't relate in any way, shape or form to credit cards.

0:54:54 Matt: So weird. No. It even says good in all 50 states, which is very funny to me.

0:55:01 Thomas: What can we be in California? Oh, there's gotta be one state. It's like we don't actually take diners club. Up.

0:55:07 Matt: Yeah, we're pulling out. Yeah. It'd be funny. And even like the Trump corporate gold card, which would allow you to buy one of these for one of your employees, it's $2 million instead of $1 million. Right.

0:55:19 Thomas: Why don't you just give them the $1 million then?

0:55:22 Matt: I know I'd have them do it.

0:55:23 Thomas: Why would you ever do that?

0:55:25 Matt: There's something I'm missing, obviously. The regulations haven't come out yet, so we're still missing a lot of the details here.

0:55:29 Thomas: Look, I said it was the best reasoning they've ever done. I'm not saying it's well thought out. Don't get me wrong.

0:55:35 Matt: I'm with you. I agree it's still better in many ways than what we just talked about. I like this language here. It's subject to a small 1 % annual maintenance fee and a 5 % transfer fee sounds like a credit

0:55:43 Thomas: Where are these fees going? Why is it a credit card? This is President Camacho land. We're in such stupidville. What does it have to do with credit cards?

0:55:46 Matt: Card. It's stupid

0:55:55 Thomas: We're already on a level of like, OK, does it make sense that you should be able to buy in with a million? Like, that's already one thing. And at least I could see people with a straight face, maybe on the conservative side, being like, yeah, we don't we only want immigrants who have already a million dollars. And I can at least like, OK, that's a that's a position that I can understand. You're like, hey, if you think that immigrants suck away from the system, which you're wrong about, I get that. OK, but if we take rich people, then that'll increase the wealth of our country in some. OK, fine, fine. We could argue about that. But why is it a credit card if there's nothing about it that has anything to do with credit cards why is the whole branding a credit guard the the gold the platinum the

0:55:54 Matt: Yep yeah

0:56:36 Thomas: Fees everything is structured it looks like a credit cards but like is it just because you think it's cool like credit cards are cool I don't trump cards money god we're

0:56:43 Matt: Yeah trump money right I mean I guess it's just it's that

0:56:47 Thomas: All in an idiot's word association game that's all we're doing

0:56:50 Matt: Stupid you want to go ahead and apply for one if you want a quick apply now. You'll see the options. It says choose your card you have to go through with it I just want to show you how what it looks like

0:56:56 Thomas: I don't have a million dollars man, yeah I just have to pay the fifteen thousand dollars. Well, I was going to read earlier. I was gonna read the platinum to differentiate. Did you give us that? I forget. Let's see.

0:57:07 Matt: Nobody knows because that's not in the executive order

0:57:10 Thomas: Okay, it's coming soon. So it's. I love that they're previewing their next unconstitutional bullshit they're doing. Foreign nationals can sign up now and secure their places on the waiting list for the Trump platinum card when launched and upon receipt of fifteen thousand dollar DHS processing fee and five million dollar contribution. Five million dollars. They will have the ability to spend up to 270 days in the United States without being subject to US taxes on non-US income. What?

0:57:38 Matt: So you're getting a big tax break. You can just come and live in this country and you know work abroad not you're like you're not even contributing to our economy

0:57:45 Thomas: I don't think I understand that. Cause like, if you're just visiting and you maybe stay a little long, you're not subject to US tax on your non -U .S. income, are you?

0:57:52 Matt: Right. But if you establish a residency, which I believe would be more than half the year.

0:57:54 Thomas: But it doesn't say that. Oh, so are we to assume this means also residency? It's like on top of the, on top of the gold tier Patreon benefits, You also get, 'cause it doesn't say that it just says you can come be here for 270 days.

0:58:01 Matt: Yeah, right. It's five times as good because it's five times as much. So, you know, it must be great. And the tax exempt stuff, I'm sure, is very appealing, but that's not in the executive order. So I don't know what they're talking about. It's not even in there at all.

0:58:19 Thomas: Right. But I just want to make clear, you think that, so that also means you get to be a citizen?

0:58:24 Matt: I'm guessing they're saying it's residency, but somehow it's like tax exempt residency.

0:58:28 Thomas: It doesn't say that though.

0:58:29 Matt: No, it doesn't. No. Right.

0:58:30 Thomas: I guess we'll assume it's also the gold cardd plus. You get the gold car benefits plus. So what I want to know is where does this money go? So the stuff that's labeled as a processing fee, that feels like a simple answer. It's going wherever those processing fees normally go, I would think. It was probably just going right back into DHS budget or some crap. But like these $5 million contributions. Hmm.

0:58:50 Matt: Gifts.

0:58:51 Thomas: That seems a little less clear.

0:58:53 Matt: They're called gifts in the Executive Order.

0:58:54 Thomas: Where do those go?

0:58:55 Matt: The Secretary of Commerce is going to put them in a special account in the Treasury Department and use them to promote commerce in American industry. So it's just going to be a slush fund, Obviously.

0:59:03 Thomas: So we're going to buy TikTok and give it to Trump or something with it. You know, some stupid crap.

0:59:06 Matt: Yeah. Right, right, right. Oh, yeah. I mean, there's no way they haven't thought ahead to where this money is going. Yeah.

0:59:10 Thomas: Oh, for sure. For sure. They're finally going to make their Trump phones with it. We just need this extra money. We're so close to making the American Trump phone.

0:59:15 Matt: So That's the Trump card. I wouldn't recommend that anybody try to apply for one. Certainly, if you want to get on the wait list for the platinum card, I think we're all waiting to find out what that's going to be, but who knows? Stupid all the way down.

0:59:27 Thomas: Well, that's insane, Matt. That's insanity. That's wow. That's a new level.

0:59:33 Matt: Yeah, this deserves to be a footnote in immigration history, and I think it will be once we have sensible leadership again. But here we are for now.

0:59:39 Thomas: All right. Well, that's our show. Great Rapid Response Friday. Admittedly, lots of bad news. That was fun. Man, what a dumb world we live in, Matt. But thanks for the breakdown. Thanks, everyone, for listening. And we'll see you on Monday with another great interview. Excited for that. So tune in then. Support the show. Share the show, please. Tell a friend. Tell an internet. Tell five internets.

0:59:48 Matt: See

1:00:02 Thomas: Each of you tell five internets about the show and then that will really help. Thanks for listening, see you next time.

1:00:02 Matt: You soon.

1:00:45 Thomas: The fuel gauge. The F gauge.

1:00:51 Matt: Nope. Okay. You got that okay. No worries. Okay,

1:00:53 Thomas: Yep, I'm done. All done with the joke. Sorry, what's next?