Ground Control to Major Questions Doctrine

Transcript

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

0:00:01 Thomas: But I will be damned if I propose to be at the beck and call of every itinerant scoundrel who has two cents to invest in a postage stamp. This, sir, is my resignation.

0:00:17 Matt: In its own way, this is the most important decision of this kind about the structure of our government, really, in our lifetimes. It has been suggested that this is the biggest loss a president has ever taken on the Supreme Court, and I think it actually is.

0:00:38 Thomas: Hello and welcome to Opening Arguments. This is episode 1239. I'm Thomas Smith. That over there is real-life immigration attorney Matt Cameron. How you doing, Matt?

0:00:46 Matt: Hey, I'm doing good, Thomas. Having a week and ready to talk about, I think what might be one of the most important Supreme Court cases of our lifetimes. Right now. Yeah. Not to pump it up too much, but yeah, this tariffs case is huge. It pretty much came down the way we said it was going to back in November, but a lot to get into with it.

0:01:01 Thomas: No kidding. Wow. I can't wait to get into it. Yeah. Once again, if the justices' wallets are at stake, then, you know, all of a sudden they remember how to do law stuff, so that's cool.

0:01:12 Matt: We're going to find out who they really work for, because it's it's not Trump.

0:01:16 Thomas: Yeah. I mean, yes and no.

0:01:18 Matt: To a point.

0:01:19 Thomas: It's like some people have a side gig. It is like they got their main job, their day job, and then they got their side hustle kind of thing.

0:01:28 Matt: Can I recommend podcasting? It's a great side hustle. They should.

0:01:31 Thomas: Oh, God. How close are we to Supreme Court Justices Who podcast? I am just realizing as, that's not not happening.

0:01:37 Matt: Ooh. Yeah, I shouldn't have said that. Yeah?

0:01:43 Thomas: We're somewhat close to that. We'll see.

0:01:45 Matt: The Alito cast, that's bad news.

0:01:47 Thomas: And oh boy, no, I think it'll be the next generation of awful people that do that. We're not quite there. The Supreme Court is a lagging indicator or whatever. It's like, it's always slightly more like how things used to be, but we'll get there. We 'LL get there eventually. You teased another Supreme Court decision that certainly flew under the radar for me that I didn't even know what you were talking about, probably because I I was too distracted by both the terrorist one and the State of the Union, which, you know, it's not even worth talking about.

0:02:16 Thomas: But I watched it so that you don't have. I don't know. I just watched it. I don'T know why. Yeah.

0:02:20 Matt: I watched the last 30 or so, and yeah, I got the idea. Oof. Hour and 48 minutes.

0:02:27 Thomas: Local man yells about fantasy cloud. Like it's just it's just him talking about stuff that's not real.

0:02:30 Matt: It's just lying.

0:02:34 Thomas: And for two hours and then and then Republicans just kissing his ass as to degrees you previously didn't think possible. Or maybe you did. But still, it'S sad to see. And it's and it's it's just and I mean, sad in the sense that like sad for them. I'm not. Yeah, it's juste sad.

0:02:48 Matt: Yeah. Well, I mean, state of the union, it's not great folks. I think that's sad for all of us.

0:02:54 Thomas: Yep. But that nonsense aside, that's not even worth talking about. What's this other Supreme Court decision we're going to talk about?

0:03:01 Matt: It's the weirdest one in a long time. I thought it'd be a good balance against the tariffs case. I started talking to Jenessa about it and I got obsessed because it's a perfect case for English majors, but it comes down to whether or not the postal service can steal your mail and you'll never believe what Clarence Thomas said.

0:03:15 Thomas: Can steal your mail? Huh?

0:03:17 Matt: Just take it.

0:03:18 Thomas: Huh. I mean it seems like the answer should be no, but I mean this is this is what happens with the Supreme Court is often trick question stuff. It's like should they should police be able to just kill you for no reason?

0:03:22 Matt: Yeah, you would hope.

0:03:32 Thomas: And then you're like, well, I want to say no, but the way you're asking me the question, Supreme Court, makes me think you're trying to put more into it than that. So we'll find out. I'm interested to hear how they can steal our mail.

0:03:42 Matt: Just to tease this, it gets even better because it's not just can they steal your mail, but can they actually steal your mail because you're black?

0:03:47 Thomas: Oh, my gosh.

0:03:48 Matt: Yeah, even better.

0:03:49 Thomas: Well, I was already a no. And now I think I would be an even firmer no, Matt.

0:03:54 Matt: That's a hell no. Yeah, you would think.

0:03:54 Thomas: I think. Yeah. What are we doing here? Is that going to be enough content? How can we make an episode out of talking about something that's so obviously just no?

0:04:03 Matt: Well, Clarence Thomas has got the goods.

0:04:05 Thomas: Oh, great.

0:04:05 Matt: He's provided plenty of content for this one. It's quite a case.

0:04:09 Thomas: All right. Right. Well, I'm excited, sort of, to talk about that. And then footnote as always.

0:04:15 Matt: Yes, we've got a fun one today. Thanks to another ice whistleblower. We're going to do a little Thomas takes the ice exam.

0:04:21 Thomas: Oh, great.

0:04:21 Matt: See if you've got what it it takes.

0:04:23 Thomas: More questions that should be obvious answers that then the tone in which you're asking them makes me seem like they're not somehow. Can't wait. That's the theme of not only today's show, but the entire world that we live in now. More obvious questions. Can'T believe we're asking them.

0:04:39 Matt: Today's footnote should take about as long as the average ICE training these days, so that should work out.

0:04:42 Thomas: Oh God. Well all that to look forward to. We'll take our first break and we'll get to it. Hey, support the show, patreon.com/law, get the law off of movies, get the goodies, skip the ads, and most of all, support what we're doing here. Every day, the world gets more and shitified and the media gets less good. In fact, I, as always, hate listen to the daily and I got to hear the asking the really tough, relevant questions of did Trump convince the public in a state of the union that he's turned things like that's for nobody. That's not for anybody. Who's that for? Who needs to answer that question? Who tunes in to hear some reporter's take on, did a hypothetical American that doesn't exist watch this, which they didn't, and have their minds changed? It's just an irrelevant question, an imaginary question answered by someone who doesn't even know that's nothing. That's the news today. So support maybe other good people who try to bring you actual information.

0:05:40 Matt: We're not chasing an invisible needle. We're going to try to tell you the facts, so let's do it.

0:05:44 Thomas: All right. Well, we'll take a break and we'll get to it.

0:05:49 Ad: [Ad break 1 — ad music]

0:05:49 Thomas: OK, which which case are we starting with the tariffs?

0:05:52 Matt: Got to start with a big one, with a marquee big release. So yeah, we listened in on the oral arguments back in November. It was a fun episode. And like so many of these oral arguments these days, it was pretty obvious where they were going and what's going on here. Also, one of those, as you were saying before, where it should be a pretty easy no. The president cannot impose tariffs. That is absolutely, under the U.S. Constitution, Congress's job.

0:06:15 Matt: So that's the short answer. But of course, we have to have a lot of blathering. This case is really about the major questions doctrine, which we'll get into a little bit here.

0:06:21 Thomas: Oh, God. You mean that made up thing that doesn't exist?

0:06:24 Matt: Yes, that made-up thing that has existed since at least 2022. I know what you're talking about.

0:06:29 Thomas: Well, but then they decided it did. Wait, did they? I'm trying to think now. Did they just re-decide it does exist or did they decide it doesn't exist?

0:06:37 Matt: It is a mess. It turns out, this is one of Those decisions where you have to sit down and draw a chart to figure out who is signing on to which part of which decision. We got enough of a majority to strike down most of the tariffs, but the conservatives are pretty badly split on what the major questions doctrine is. And I was talking to Jess about this, and I think this is going to be a great subject for a deep dive because at this point, as of this decision, I would love to have her explain to me what the Major Questions Doctrine is because, well, I'm just saying that's right. I don't know. I mean, her concurrence makes no sense in this Yeah, no.

0:07:02 Thomas: Well, don't blame her. What's what did she do? Too. Jenessa, you need to answer to us. Tired of your shit, Jenessa. We need to get Jenessa on the Supreme Court, damn it.

0:07:15 Matt: Yeah, it's true. It's true This is for a longer discussion and it actually would be a really interesting hour just to talk out the recent history of the major questions doctrine because it is like originalism. It is one of those tools that they whip out when they need it to make the decisions they want to make and it has never been more transparent. That's what this is. We've got a whole host of decisions here. That is why I really wanted to talk about this because, yeah, sure

0:07:35 Thomas: Can you at least, I know we're not going to deep dive into it, but can you give us ostensibly the quick definition?

0:07:40 Matt: Major questions is the idea that separation of powers requires requires that what they call questions of major political or economic significance can't be delegated by Congress. And so this is where we're coming down on tariffs because the IEEPA, the Emergency Economic Powers Act that Trump is using to claim that he can impose all these ridiculous tariffs does not mention the word tariffs. So if you're a textualist who cares about legislative history, and Jackson's entire concurrence is just about the legislative history because it's pretty obvious this is not what they intended. Even the one time that Nixon did something that looked like this. It was not tariffs. They didn't call it tariffs, and it was very brief. Generally, the IEEPA is supposed to be for things like the Iranian hostage crisis.

0:08:19 Matt: We can retaliate against Iran when they literally kidnap our citizens, which is something that happened. That was one use of it. Or when there's a trade war going on that the president feels like we need to impose something, and Congress is supposed to come back every six months and sign off on whether any kind of regulation. The word regulate and regulation comes up a lot in this. Remember, these are conservatives at the end of the day. They don't like taxes. This is a form of taxation on all of of us. I'm just going to suggest upfront that this decision really brings out who the Supreme Court works for, because I think it is kind of, you know, nothing against people that keep saying this, but I think frankly, just kind of a baby brain take to say that the Supreme Court is always going to do what Trump wants, because they do have different interests. They don't like him that much. What they like is the Federalist Society and the Chamber of Commerce and the people who gave them their jobs.

0:09:01 Thomas: I think some of them like him a lot, but yeah, not as a whole, I guess. Yeah.

0:09:03 Matt: Yeah, maybe, I'm sure. Sure, sure. Yeah. But it doesn't mean they love everything he does. And we saw this coming when we listened to the oral arguments that they're very skeptical of this idea. And again, as a conservative who reads the text of laws, it is very hard to say that IEPA allows anything like what Trump is doing.

0:09:21 Thomas: Sorry, did you say you're a conservative? Who's as a conservative. Oh, OK. I thought you were making an announcement. Hey, announcement, everybody. Matt's coming out of the closet.

0:09:23 Matt: As a conservative, if you are one of these people, yes. I'm coming out, yes, that's right. I don't know why I didn't mention this, but I've been the chapter president of the Federalist Society in Massachusetts for for years now. But yeah, I mean, this is one where the Federalist Society came out hard against Trump. Leonard Leo hasn't talked to Donald Trump in about five years. Trump has not been happy about him. I thought it was pretty funny. We talked way back in May of last year when a court, which I definitely knew existed, no question, the International Trade Court, we all knew that existed, of course, in DC.

0:09:53 Thomas: Right. Sure didn't. I don't have to pretend. 10.

0:09:56 Matt: No, I didn't either. The Court of International Trade, Trump appointed three of the 12 of those judges in his first term and then another one recently. He had this weird weird rant about Leonard Leo after that May decision in which they stopped the tariffs. The Supreme Court, of course, allowed them to continue on appeal while they were considering it, even though it was pretty likely they were going to strike them down. But Trump was really mad at Leonard Leo for advising him to appoint some of these judges. He had this long rant about how Leonard Leo of the Federalist Society is a sleazebag, a bad person, probably hates America. America. Yeah, true. You got it. Accidentally correct.

0:10:26 Thomas: Yeah. I mean, yeah, sure. True. Agreed. But yeah.

0:10:33 Matt: Stephen Calabresi, who's one of the big co -founders of the Federalist Society, submitted a very strong amicus with some others on this case in favor of not having these tariffs under the IEEPA. And this is generally bad for business. It's bad for the economy. The people who actually run this country are not happy with them. So this is not a surprise. And the New York Times is trying to spin this as some kind of great Declaration of Independence from John Roberts. I think it's just John Roberts working for the people he works for.

0:10:58 Thomas: Yeah. Oh my God. What was that headline? It was literally that, wasn't it? Oh, useless. Useless. The Supreme Court's declaration of independence from Trump.

0:11:01 Matt: Oh yeah, it was. Yeah, pretty much like Declaration of independence. Yeah. Come on. Come on. Yeah right. Uh-huh.

0:11:10 Thomas: Come on. Do you have to? Do you Have to?

0:11:11 Matt: Yeah no, you don't. You don't and I don't want to adopt that framing. I just want to say that they just did the incredibly obvious thing. It is very hard to take an honest look at this law and say this is what Congress intended for it to be used for or that in our constitutional system that the president is supposed to be imposing tariffs. Like that's It's just not how it works. But I want to break down for a minute a couple of interesting things here. There are so many different decisions, but my favorite, and this might be a fun gavel at some point just to read it, but Gorsuch turns in a scorching 43 -page diss track, just goes after everybody.

0:11:46 Thomas: He is the biggest asshole in many ways. In many ways,

0:11:49 Matt: Yes. No, he's really prodigious, and he's not stupid. I mean, I agree with a lot of it. Yeah, I know. He's just a handsome, smart asshole.

0:11:52 Thomas: Really prodigious asshole. Yeah. Yeah, yeah. It's sort of like back when Bill Maher would make a point that you agree with. You're like, well, you're an asshole, but okay. I mean, I do appreciate you yelling about Trump or something sometimes, but now you're just an asshole most of the time.

0:12:09 Matt: I mean, I also appreciate that he spends a lot of the decision taking shots at his own side, including the people who agree with him, right? Because Neil Gorsuch is the true law understander, the only person who understands tariffs. Yes. And he's written some pretty funny concurrences and dissents before, but this one is so funny to me because it's just literally, I'd have to read you, pull up the introduction to it because it's very funny, especially with Barrett. I feel like maybe they had a falling out recently or, you know, yeah.

0:12:18 Thomas: Yeah. The only one. Yeah." I can't wait. I think he's just an arrogant prick. I means, I think I think he's the most arrogant prick. He's always come across that way to me. It's like any arrogant prick, I think, if he's not being listened to, if he'S not being regarded by everybody as the foremost expert, I'm sure he's going to be, you know, pissed off about it.

0:12:52 Matt: Having read his book overruled. That was a fun episode. I certainly agree. That is his default tone of voice, even when he's running non-judicially. So Gorsuch is basically just pointing at every other member of the court and being like, you're a hypocrite. You're inconsistent. You think we should have a king, right? He's just like, it is a diss track. It's incredible. But let's just, yeah,

0:13:08 Thomas: Oh, man. You know, again, when the asshole goes after other assholes, sometimes it's like, okay, let him cook.

0:13:16 Matt: He's not wrong. Yeah. Just let him cook. Yeah, no, it's a good read. He's saying straight up that he agrees in full with the decision. He doesn't think the president can do this, but he thinks so because because of his particular understanding of the major questions doctrine, which is the right one. I'm going to read you a bit from the introduction here to his concurrence. Again, well worth taking a look at the concurrence, just for the pettiness of it. Not everyone sees it that way, the way that he sees it. Past critics of the Major Questions Doctrine do not object to its application in this case, and they even join much of today's principal opinion. But they insist they can reach the same result by employing only routine tools of statutory interpretation, and he cites to you the Kagan, and Sotomayor and Jackson concurrences, and Jackson had her own. Meanwhile, one colleague who joins the principal opinion in full suggests the major questions doctrine is nothing more than routine statutory interpretation. He cites to Barrett directly, just in case you didn't know he's talking about it.

0:14:06 Matt: He has a lot to say about Barrett in this concurrence. Still others who have joined major questions decisions in the past dissent from today's application of the doctrine. Kavanaugh dissents. Thomas and Alito dissent, separately. Finally, seeking to sidestep the major questions doctrine altogether, one colleague submits that Congress may hand over to the president most of its powers, including the tariff power, without limit, citing Dick Thomas. It is an interesting turn of events. Each camp warrants a visit.

0:14:30 Thomas: Yeah. I mean, he's right about those assholes. You know, the major question. So going back to that, it's just designed to be able to strike down any administrative state stuff, anything that actually can do stuff or regulate people, regulate businesses, you know, anything like that. Matt, the conservative game plan has been keep saying that the president can't do this, but Congress can because they know Congress won't do anything, right? So it's like another tool in that arsenal. And I just want to ask, Matt, you're a lawyer, you've gone to law school, you should know this. Where in the Constitution is the major questions doctrine? So which article of the Constitution? Hmm.

0:15:07 Matt: I can't even tell you what Supreme Court case it comes from. I don't think that any of these people could either. It just kind of has appeared in the last 10 years or so.

0:15:14 Thomas: Yep. They just made it up.

0:15:15 Matt: They try to claim it goes back to 2000, but it is absolutely not in the Constitution. It's one of those things where they say they're drawing from the structure of this separation of powers and whatever. And And in its own way, this is the most important decision of this kind about the structure of our government, really, in our lifetimes. It has been suggested by Josh Blackman, who I don't usually agree with, that this is the biggest loss a president has ever taken in the Supreme Court. And I think it actually is.

0:15:37 Matt: I think I might agree with him there. You think about the consequences. It's his entire economic policy and how he's doing foreign policy. It's huge. It's a huge loss.

0:15:41 Thomas: Yeah that might be be right I will say I think that's mitigated by the fact that he's just going to do it again but under different authority or you know a different theory and so I don't know how much it'll matter but I I agree especially graded for like how much advantage he has in the supreme court you know like waited

0:15:54 Matt: We'll see how that gets him.

0:16:00 Thomas: For you know it's one thing when uh Supreme Court was trying to strike down what FDR was doing or you know what Obama was doing it's like well okay you figure that they're going to do that whereas this one it's like he has all the advantages he's you know It's like Tiger Woods losing to me at golf.

0:16:15 Thomas: You know, it's like, I can't believe he wasn't able to pull this off.

0:16:18 Matt: Yeah. Yeah, it's embarrassing. Just to answer your question, though. The major question doctrine really in its current form, which again, let me know at some point what its current format is, because after reading all of this, I couldn't tell you. Right. But it's the big one, kind of the contrast, the one that Gorsuch is really getting on the liberals for is Biden v. Nebraska, which is a 2023 student debt case, right, where Biden tried to forgive. It was something like $430 billion in student debt. And Roberts even kind of contrasts $440 billion versus the trillions of dollars that we're talking about here. Yeah.

0:16:26 Thomas: Yeah, no, it is made up. They get to use it however they want, whenever they want. It is fake.

0:16:46 Thomas: Oh, yeah. See, because the founders, they are brilliant. They put an amount in there when they were writing about the major questions doctrine. They are like, well, billions, we will see trillions though.

0:16:57 Matt: Hold on. But of course, in Biden v. Nebraska, they struck down Biden's attempt. And this, as far as I know, this is the first time the major questions doctrine has been used against a Republican president. No surprise. But they struck Down Biden's Attempt to Waive Student Debt. And it was during a national emergency. It was during COVID, right? So they were trying to forgive a bunch of student debt. They can't do that, of course. Gorsuch is really making a big point about how Kagan and Sotomayor and Jackson were all about saying that the language is capacious enough, that it's broad enough that the president should be able to do this during an emergency. Kevin and Thomas are basically saying this is an emergency, it's foreign policy. It's not the major questions doctrine because it's sort of outside of that. But I think that, of course, it isn't totally wrong about Kagan, Sotomayor, and Jackson. But the thing is that Kagan and Sotomaior are very reasonably just saying, we don't have to look at the major questions doctrine. What are you guys doing?

0:17:44 Thomas: I want to make sure I understand that. The major questions doctor and they used it to overrule Biden by saying he can't do this because, you know, we don't want him to. Basically, and Congress should do it. But then what's the gotcha on the liberals who I assume didn't support that?

0:17:54 Matt: Because they dissented and said he should be able to do it at the time. And now they're saying that, right, no, they didn't. So, right. But he's just going after them anyway, because he wants to point out that in this case, they didn't mind in their dissent if the president did this. But in this cas, Kagan and Sotomayor in this dissent are very clear. They don't care about the major questions doctrine. I don't think they're particularly interested.

0:18:01 Thomas: Yep. Yep. So now there's... Oh, but did they sign on to the major questions doctrine reasoning? Yeah, exactly. What the... Yeah.

0:18:21 Matt: They're looking at the law. And Jackson says that too. We can just look at the Law. We don't have to go beyond the text. This is clearly not what it was intended for. I think Jackson's legislative history, it's very short. It's very compelling. Makes sense to me.

0:18:30 Thomas: So the point being that it's one thing to say Congress wrote a law giving Trump the power to do tariff stuff or giving the president the power do tarif stuff. And this is what the Supreme Court did with probably Obamacare, I'm guessing, right? Was that part of that where it's like, they've written a law, it gives the president the power to do this or does certain things. Maybe that's not a good example, but other examples. And we're saying, no, they, Congress couldn't do that. We're saying they, they weren't allowed to do that with this mysterious principle that we're inventing that says they can't do that.

0:19:00 Thomas: But the rules I made up right now. So this is the liberals are saying, well, we don't even need to get there because they didn't do it. They didn't even write the law to say the president could do this. So we're not even, major questions is not even a part of the calculation, right?

0:19:15 Matt: Right?

0:19:16 Thomas: Seems clear to me.

0:19:17 Matt: That makes sense to me. That's why as usual, I agree with Kagan and Sotomayor and Jackson, they've got it right. I just want to point out that I mentioned that the student debt case, but there's also West Virginia, every EPA. And just in terms of what Roberts is sort of relying on. And then there's National Federation of Independent Business versus OSHA from 2022. Again, these are all within the last few years, like post COVID cases, about where the government can act and where it can't. In the OSHA case, that was a really broad use of presidential power.

0:19:43 Thomas: Okay. What's that case?

0:19:44 Matt: That's the one where the Supreme Court found that OSHA's mandate to ensure safe and healthful working conditions could not impose a vaccine mandate on everybody.

0:19:52 Thomas: Which seems absurd to me?

0:19:53 Matt: Makes sense in a way, in the sense that it's like beyond what you might've expected would apply in the OSHA scenario. But no, I obviously agree with the dissent in that one too. The lineage of cases they're looking at, it's very recent, very new ideas. Gorsuch's intent, he's sort of wrestling with this moment to try to write a rule for the ages, as he likes to do, and have his view of the MQD be the one that's going to prevail. And that's why I think he's going so hard on Barrett. He has pages and pages about Amy Coney Barrett, who agrees with him and signs with him on this, but thinks that the major questions doctrine should just be a way to read cases, just a way to look at it, whereas he thinks it's more of a grander thing.

0:19:54 Thomas: How does that make sense? Yeah. Yeah, of course. Huh. Wow. Huh?

0:20:33 Matt: Barrett is bristling. She obviously doesn't understand where this is coming from. And I kind of liked at the end where she talks about, and hers is very short, and she asked the most questions. I think I went back and listened to their argument a little bit. She was very active in that one. And it's a pretty short concurrence. She basically thinks that this is a lens of interpretation to make sure that we're reading things in line with how people should read the law, the common sense kind of way. And of course, it's like, no, this isn't about common sense. This is about the rule for the ages. It's about the big questions, the big picture of how our government works.

0:21:02 Thomas: What is the functional difference between those two things? I am really struggling. Like, why do you think she is doing that actually? I am curious. Like from her point of view, she is painted into a corner because she wants to rule against this, right? She was one of the ones that does want to get rid of Trump's tariffs.

0:21:20 Thomas: Is that why? So she's trying to find a way to square that with the major questions doctrine. Gorsuch also ruled against Trump on this, right?

0:21:27 Matt: Yeah. He's concurring.

0:21:27 Thomas: How is he doing that in a way that in his mind is acceptable, but Barrett is not doing that? Like what's the functional difference in their decisions?

0:21:36 Matt: Just to kind of back this up and put this in some context, anybody who went to law school, and I'm sure this has come up plenty on the show, but we've talked about Youngstown sheet in Tube, the big sort of seizure case, right, where Truman seized the steel mills. And there was a debate about whether he had the power to do this during an emergency. And again, the point everybody seems to agree on is you can't do this durante peacetime. It might be different during war, obviously, when there's a real emergency going on.

0:21:58 Matt: But in that case, there's very famous analysis that Justice Jackson, the rubber Jackson, went into about when the president has the most power and when he has the fewest powers, and when there is sort of a twilight in between. You might remember this. Youngstown is a very simple analysis. It's basically, did Congress specifically give you this power? Is it unclear if you have this power or do you not have this Power? And that seems to make sense to me. The way that they're kind of recasting it is that it is in different language and something that's more favorable and allows more judicial control over the situation. If there's clear statutory authority for an extraordinary power, which obviously this is, and there is not clear authority, there's no delegation unless there's a clear delegation. Because obviously if Congress is going to do something as extreme as give away its constitutional authority, because it is designated in the constitution to set tariffs, it had better be clear.

0:22:07 Thomas: Oh yeah. That sounds familiar. Right. Yeah, sure.

0:22:47 Matt: I think we can all agree with that. That's pretty simple. But the way that Gorsuch is characterizing Barrett, she's saying it doesn't have to be understood as a substantive canon. That it's like its own kind of like separate doctrine, but that it's a common sense principle of how you read the law. She accuses him of going after a straw man. She's saying that's not even really what I'm saying.

0:23:05 Matt: He's saying we don't have to reconceive a doctrine that we came up with four years ago.

0:23:10 Thomas: Wow isn't that kind of him admitting like they just came up with this four years

0:23:15 Matt: Oh, I added the four years ago, pardon. But it's just funny when he's saying, yeah, no. Usually when they're saying things like there's no need to reconceive doctrine, they're looking at things from the 1870s, you know, but no, this is 2022.

0:23:15 Thomas: Ago oh okay I thought it would be funny if he's actually saying that you never

0:23:29 Matt: He's accusing her basically of just relying on common sense. God forbid that we just do that.

0:23:25 Thomas: Know right gotcha yeah yeah huh

0:23:34 Matt: She's saying no, I'm just making sure that we're reading things.

0:23:36 Thomas: How dare you accuse me of common sense oh

0:23:39 Matt: No, absolutely not. There was a long hypothetical that she got into, I think we've talked about in November, about if a parent gives the babysitter a credit card and says, make sure the kids have fun, right? And he's saying, well, okay, could they just go off to an amusement park and stay in a hotel for three days? Or does she mean go to a movie?

0:23:55 Matt: How much power are we delegating to the babysitter to decide what fun is? And Barrett was just straight up saying, and apparently this is not the first time she's used the babysitter analogy, but she has a lot of kids.

0:23:48 Thomas: Yeah interesting yeah yeah I was gonna say I actually think I'm remembering a different analogy uh that different times you you use that. I'll think of it by the time you're done explaining it.

0:24:08 Matt: He's saying basically that, yes, it'd be a common sense understanding that amusement parks are fun, but because it's delegated, you can't just use extraordinary power. You can't drive to another state, take the kids in an amusement parks, stay in an hotel for 3 days when you just said have fun, right?

0:24:25 Thomas: Yeah, right.

0:24:25 Matt: That makes sense.

0:24:27 Thomas: We all get the game here. The game is three of the conservatives want this to not happen. My cynical interpretation, which I think is very much justified, but people could disagree. They want to find a reason to not let Trump do this, right? My question right now is why don't they just go with the very obvious reasoning that we talked about that I think the liberals went with, which is, hey, the law doesn't say you can do this. Why can't they just stop there?

0:24:29 Matt: Because they saw a chance to define the major questions doctrine in the way that they want to so they can rely on it forever, and they really want to do this. And I think that's why Gorsuch is being so sharp about this, because he wants to make sure that it is a big principle, that it's one of these big grandiose things like a history and tradition thing they can draw from rather than just like a boring old lens on the text, which is what

0:24:57 Thomas: Interesting. Yeah. That strikes me as really pointless and weird that they did that. Just be like, hey, yeah, I'm a big fan of the major questions doctrine. I love it. It's my favorite thing. I have t -shirts with it on it, but hey, we're not even there because the law just doesn't say that, so we don't have to worry about it. Why not do that?

0:25:16 Matt: Barrett is was how the Supreme Court did things, was you would kind of do the least that you had to do to get to the place where you needed to go.

0:25:33 Thomas: Well, and it's self -serving for them, isn't it? Then they get to maintain their stupid major... Seriously, I am actually baffled by this. I don't understand why why they bothered weird okay yeah

0:25:43 Matt: Yeah, no, it is. It's worth a read to kind of get the full sense of the way they're talking to each other. I haven't seen anything quite like this with the conservatives sniping at each other this way.

0:25:51 Thomas: Maybe there's legitimate disagreement amongst them about this and how they want to get them there must be otherwise I don't know what else would explain them going to this

0:25:54 Matt: Yeah, you know, Roberts is trying to keep it as straightforward as possible, keeping it consistent with the previous three cases I mentioned, just straight up and down, but also talking about the text. And Gorsuch wants to say, no, I am the true understander. This is how it works. It is a much bigger thing that we can draw offer them anytime we want to. That's how I read it.

0:26:03 Thomas: Trouble

0:26:14 Matt: And then just to briefly note, Kavanaugh gets into a dissent in which he's basically saying this is foreign policy, which it isn't really, but it is because Trump is using it as foreign policy. It's economic policy, but I guess it is also foreign policy and he's saying this because it's emergency, because it is foreign policy, it falls outside major questions and it's more than we can do. He also specifically says, this is something we haven't raised yet, but he says it would be a mess. That is the phrase he uses to give all these refunds because we are talking about $175 billion in refunds.

0:26:12 Thomas: Yeah it's neither of those things yeah oh okay so so you get to just say that something would be too much trouble so I'm going to decide it the other way

0:26:44 Matt: But yeah, now they care. Yes. Now they care about outcomes. Just very selective about when they care about real world effects of the things they do. And then Thomas has a real out there dissent, which Gorsuch rightfully really goes after, in which Thomas is like, look, the president's a king. We all know he's a king. I don't do king stuff. It's fine.

0:26:57 Thomas: Yep yep yep the wokest say no king so therefore I say one king we we do have kings yeah yeah king king him

0:27:05 Matt: That's right. King time. King may. Yeah. And yeah, Gorsuche makes the point, and again, just to get a little originalism, that even the king couldn't impose tariffs by the time that we got to modern, like 16th, 17th, like it was still, yeah, right.

0:27:17 Thomas: Yeah so he's actually engaging with thomas being like oh yeah no granted you think he's a king uh even the king couldn't do this that's really funny

0:27:24 Matt: Parliament still had to do it. Yeah. Yeah, it is funny. I mean, the whole thing is, I mean again, this is an extremely monumental decision. This is obviously the right outcome. I think it's going to be much better for all of us in the economy. Obviously, it's gonna be a huge mess to unwind this. CBP apparently a few weeks ago started to set up a system to start to give refunds. It's gonna take years of litigation to assign them all. And no, we're not getting that money.

0:27:43 Thomas: Yeah we're not giving any of that shit that's just the other companies Somebody's overcharged us to make up for these and then they'll get a refund, even though they charged us for it, I'm sure. Even though we picked up the tab.

0:27:54 Matt: Quite a long con. And I think anybody who's watching this was probably pretty sure this wasn't going to work out in the end, but the Supreme Court allowed it to go on instead of keeping the trade court's decision in place with an injunction.

0:28:03 Thomas: Oh, yeah. It should have been. Yeah, they wouldn't have had this. I forgot about that. We wouldn't even have this problem that you're saying, oh, it's too hard to do the refund. No, you should. This should have Been stayed immediately or whatever, if that's the right term, right?

0:28:14 Matt: That's right.

0:28:14 Thomas: Oh, this is ridiculous.

0:28:16 Matt: It is. No, especially they knew it was a weak case.

0:28:19 Thomas: Yeah, this Is so. It's embarrassing. These idiots. All right.

0:28:23 Matt: It is. Obviously these are lapdogs of foreign powers. As you heard Trump say, that's the only explanation for this decision. Couldn't be that they just read the law. Yeah. That is what we are looking at. Obviously we are sold out to foreign influence.

0:28:36 Thomas: Sure. Well, fun to get into it a little bit with that. That is that is weird stuff, though.

0:28:41 Thomas: I'm I might have to go read that one. That's one of those decisions where I'm like, I might Have to, I have to see what they're doing here, because it seems so silly to me. We'll move on for now. And I think we're going to talk about a decision that I didn't even didn't Even see. I can't wait. I' I'm really curious about this.

0:28:54 Matt: It is. Yeah if you want some petty bullshit shit about shit that really matters, the tariff's case is for you. If you want petty bullshit about nothing, I got a deal for you."

0:28:58 Thomas: All right. Well, we'll take a break and then we'll get to it.

0:29:07 Ad: [Ad break 2 — ad music]

0:29:07 Thomas: All right, Matt. I mean, I'm worried that you're saying this doesn't matter because I feel like if you said it's like, can the post office steal mail from black people? I think that matters. Like, I think the answer would be no.

0:29:17 Matt: It's a weird one, but the real concern, I will just say right up front, and I think there's reason to be worried about this. The reason I was talking to Janice about this is because, as Sotomayor pointed out in her argument, this could apply to ballots. You could have mailmen decide that, you know, hey, I serve a black neighborhood in Philadelphia. Maybe they don't all need the ballots. Maybe I don't need to deliver all of their ballots once they fill them out.

0:29:35 Thomas: Holy crap.

0:29:36 Matt: That could be a problem.

0:29:36 Thomas: Well, let's reset. What's the facts of this?

0:29:38 Matt: Okay.

0:29:38 Thomas: How in the world? What are we doing here?

0:29:39 Matt: The facts are weird. I don' t know what what to think about this plaintiff, to be honest. I did a little digging just to try to understand what's going on here, because this doesn't really comport with my understanding of how landlords and tenants work. We'll just start with that. So we've got a landlord who owns two places in Texas. Her last name is Conan, Labine Conan. She has this weird control issue with the mail in her place, where she insists on having the only key to the mailbox and distributing the mail to her tenants.

0:30:04 Thomas: I would. No, I would hate that so much.

0:30:08 Matt: Yeah, it's not good. It's not great. It doesn't work. It just doesn't work at all. And then she started, because she didn't like the way the mail was being delivered, she started getting all the notifications. You know, they can send you pictures of the mail, and when they scan it in. Yeah, like I don't understand what her deal is. There's something weird about this person.

0:30:15 Thomas: Oh, come on. Petty control freaks who want to seize a little bit of authority they have.

0:30:24 Matt: Yeah. She doesn't sound like a reliable narrator and she sounds like the landlord from hell, to be honest, just reading this decision. One tenant had the audacity to go to the post office and get his own key for his own mailbox and she lost it. She's filed like 50 different administrative complaints with the postal service because what happened was it sounds to me my best read of these facts. And of course, it's hard to find the real story here. The facts consequences are going to be, but she's alleging that she is a black woman renting to white tenants and that the postal service doesn't want to deliver to her. But I think it's really just that everything is her name and the postal services are very confused about who lives there.

0:31:02 Matt: She was trying to keep control over the mail being delivered when the tenant was very reasonably going to the post office and saying, this is in my name, please deliver it to me and give me a key. It's a motion to dismiss. We basically assume the facts are as they were presented. It was dismissed for subject matter jurisdiction, which we'll get into in a second. The legal stuff is is more interesting. I don't really know what to make of the facts, but let's just assume the worst possible thing.

0:31:21 Matt: Let's just assuming for the purpose of this case, let's assume that some of the hypotheticals that Sotomayor gets into on the record, I think are very instructive. She talks about what if you literally have a mail carrier who just is super malicious and hates somebody he's delivering mail to, just rips up a social security check in front of an old person's face, right?

0:31:39 Thomas: Wow.

0:31:39 Matt: Just like maliciously, right? What if you've got somebody who just starts vandalizing your mail, just writing on it. I'll explain why this matters in a minute, but the government was actually in a position of saying that if someone... I was sort of falling asleep, I was listening to their arguments last night. And for some reason, I started imagining if my mail carrier started writing, loves Nickelback after my name on every piece of mail in small letters. Yeah, just something really annoying, but not racist. Because you can imagine the worst version of this, which she mentions, what if people were to write racial slurs on your mail or homophobic stuff or whatever, right? Just horrible things that nobody should have to receive. And the government attorney was in the position of having to say, well, they still got the mail. It's not damaged. They just wrote on the outside of the mail, let me tell you what this is actually about. This is about the Federal Tort Claims Act. And this is a fascinating interpretive question, because the Federal Tort Claims Act allows you to sue the government in certain places.

0:32:01 Thomas: That should have been the extreme, yeah, the parade of horribles. Yeah. Yeah. Yeah. Yeah. Wow. Ah, right.

0:32:34 Matt: The government voluntarily is waiving sovereign immunity and allowing you to sue the government for certain kinds of torts and things that the government does.

0:32:39 Thomas: Yeah. Yeah, see the big deep dive Jenessa did on all kinds of different immunities. Yeah, for sure.

0:32:41 Matt: Yes, I was going to say that. Very helpful. And I think there's a a lot more to visit here. That's why we started talking about it. I love the amount of detail she was able to get into in these. And I'm just going to gloss over this by saying, generally speaking, the Federal Tort Claims Act covers negligence. And Congress, I think very smartly, added an exception to the Federal Tort Claims Act to be sure that you can't sue the USPS for negligence, because think about it, they deliver over 100 billion pieces of mail a year, something like 300 million a day or something, I don't know, just enormous amounts of, and at this point, as we all know, most of it's junk, unfortunately, but they're still delivering the mail.

0:33:17 Thomas: Great.

0:33:17 Matt: And there's a lot of important stuff in there. In 28 U .S .C. 2680, there's a list of exceptions to the Federal Tort Claims Act and Section B specifically, paragraph B. Any claim arising out of, keep track of these words, these words are going to matter, arising out the loss, miscarriage, or negligent transmission of letters or postal matter. So loss, miscarriage, or negligence transmission. Now, usually the Federal Court Tort Claimed Act does not cover intentional torts. And I was actually went back and checked. There's exceptions for law enforcement, right? If they actually assault you, you may have a claim. But generally speaking, if USPS assaults you or theft, in the case of theft, there doesn't seem to be anything pre -intentional towards there. But the argument for an hour in front of the Supreme Court was about what loss or miscarriage means in this context. And it got ridiculous.

0:34:05 Matt: As Sotomayor pointed out, if I told you that I lost my car, you wouldn't assume that I meant stolen. If I said stolen, I'd say somebody but like lost makes it sounds like I don't know where I parked it, which happens to me all the time.

0:34:18 Thomas: Jeez, man, that's not good. Yeah.

0:34:21 Matt: You can imagine there's lots of ridiculous scenarios, right? Justice Thomas wrote this in a way that I found to be baffling, because again, this is somebody who in the decision we were just talking about, he's happy to read in tariff thing that doesn't exist just because he wants the president to have that power. In this case, when you're trying to sue the postal service, and it's especially amazing because he writes the majority opinion and you've got, you know, obviously the second ever black Supreme Court justice essentially signing off on the concept that the USPS could do racially based delivery of mail, because what he's actually saying is that that loss means deprivation. That's not in the statute, but it's just saying if you're deprived of your mail, that's good enough and you can't sue. When pretty clearly, as Sotomayor points out in her very good dissent, it really seems like Congress was trying to make a point when they said loss, miscarriage, or negligence, because those are not words you associate with intent. You don't intentionally lose something, usually.

0:35:10 Thomas: So in the exceptions to being able to sue the government, they want to make sure that you're not constantly suing the federal government for things that happen to your mail. We just don't want to have a bunch of lawsuits where someone lost your package and now we got to clog up the court system with a lawsuit against the federal government. That makes sense.

0:35:26 Matt: Or it was three days late and I missed my appeal deadline or whatever, right? Yeah, that kind of thing.

0:35:29 Thomas: But the point she's making is that, all right, but that doesn't include stuff that's like intent crimes, possibly, like someone's actually, like a mail carrier is actually intentionally effing with you. That sounds like not that. And boy, already on the little I know from what you're saying, that makes a whole lot of sense to me.

0:35:48 Matt: It really does. And miscarriage, not a word that we use in the context of mail. I've never heard it used in any other except the obvious sense.

0:35:55 Thomas: It seems like the literal sense of the word, though.

0:35:58 Matt: Yeah, right. Exactly. You're not properly carrying the mail. Miscarriage is supposed to cover things like your package is badly damaged or it's three days later, whatever. Right. So it just didn't go well. And negligent, of course, when you just completely lose it or, you know, or you just do something stupid. I don't know about you. I don't know if you use USPS very much. We use it a lot, obviously, here.

0:36:14 Matt: We've had to stop using USPS for anything that is time sensitive in the last six months. It is messed up too many times. We've had so many weird things happen where things like work permits or appeals are getting bounced around. I mean, I was actually starting to wonder, we're trying to send mail to one particular detention facility, and they refused to deliver it to the detention facility. They said that the four -digit ending of the zip code was secret or something, like classified. It's very weird.

0:36:24 Thomas: That's sad. What? That doesn't...

0:36:36 Matt: Even though this is in the middle of a swamp, you know that's where the detention facility is. They get a lot of mail. And I was thinking that exact thought. What if you've got a malicious postmaster or a mail carrier who just doesn't want immigrants to get their mail in detention, right? That could happen in a small town. You could totally see that happening because we're having some fun with this, but then this could really have some consequences when mail carriers know they can't possibly be sued for intentionally messing with your mail. I do want to shout out very quickly, since this is very much an English major kind of decision.

0:37:02 Thomas: The English are constantly stealing the mail. No, sorry.

0:37:06 Matt: There's no fewer than seven dictionaries referenced in these decisions, in these different things.

0:37:11 Thomas: Postmaster General's Dictionary defines...

0:37:15 Matt: I did want to shout out William Faulkner very quickly because one of the greatest American authors, I remember learning this way back in getting my English degree. He was really bad at being a postmaster. Because think about how often would somebody who's supposed to deliver mail just not do that?

0:37:30 Thomas: Yeah.

0:37:30 Matt: He did it to a hilarious degree. They somehow allowed him to be the postmaster at Ole Miss at the university for three years while he was just sitting there. He would do things like just throw out a lot of the mail and burn it. He would read magazines before he would allow them to be sent off just because he wanted to read them first, keep them for a few days. And he hated dealing with the public. So he got this very long performance review, basically in 1924 from his boss.

0:37:35 Thomas: Oh, wow. Why? You're a terrible postmaster.

0:37:56 Matt: Yeah, it's so good it's such a great I'm gonna have to link to it because it's so funny but uh one one quick excerpt here you've been throwing mail in the garbage can by the side entrance near the rear door this has gotten to be such a common occurrence that some patrons have gone to the garbagecan to get their magazines should they not be in their boxes because they just know it's going to be in the trash but I really wanted to mention this because it resulted in I think the greatest governmental resignation letter of all time I'm just going to have you read it because it's very short and funny it's just a good way to cap this one off before we close out.

0:38:11 Thomas: Oh, that's fantastic. Oh, please.

0:38:24 Matt: Glorious sentences.

0:38:26 Thomas: October 1924. As long as I live under the capitalistic system, I expect to have my life influenced by the demands of moneyed people. But I will be damned if I propose to be at the beck and call of every itinerant scoundrel who has two cents to invest in a postage stamp. This, sir, is my resignation. I will been damned if I proposed to be at the back and call every itinrant scoundrell who has 2 cents to invest in a postage stamp. That's incredible. Wow.

0:38:43 Matt: So good. Screw the public. These people that just... Two cents, those were the days.

0:38:56 Thomas: Did someone make him be postmaster? I don't even understand. What a weird thing.

0:39:00 Matt: He was just very lazy. He, he was good at writing and that was about it.

0:39:02 Thomas: What an asshole. Kind of sounds like an asshole to be honest, but I do love that resignation.

0:39:06 Matt: He, He was an infamous, glorious asshole. Yeah, I know, like even for, by the standards of writers. But yeah, no, I just wanted to mention that this did happen historically. Also in 1987, USPS did do a commemorative stamp of him, which I think is very funny.

0:39:12 Thomas: That is really funny.

0:39:20 Matt: Not for his service to the post office, obviously.

0:39:22 Thomas: I hope they grabbed like one of the, like it said like itinerant scoundrel underneath or something, you know, like grab some of the language from that.

0:39:26 Matt: Yeah. Two cents. Those are the days, This is a fun one. It's interesting to look at. The Sotomayor dissent, obviously, as usual, is brilliant. I think that Thomas is intentionally twisting the words around to keep people from being able to sue. And yeah, this could certainly encourage bad actors. Yeah.

0:39:41 Thomas: Well, this sounds bad. So this went that way. This went the bad way.

0:39:45 Matt: Gorsuch joined the dissent. But otherwise, yeah, that was 5 -4. Not great.

0:39:49 Thomas: No, that's bad.

0:39:50 Matt: Just to be clear, it is a crime to actually steal people's mail and to destroy it or to intentionally tamper with it. So potentially, if you had an administration that cared to prosecute that kind of thing, you would have consequences. There was actually, just to point this out, one more thing before we go. The Fifth Circuit actually wrote a very good decision on this, very unusually.

0:40:06 Matt: It's like the best Fifth Circuit outcome I've seen. This is really upside down stuff because they held as basically agreeing with Sotomayor below that no one intentionally loses something, that nothing in here that covers intentional acts, and we can't find that you can't sue over this. For some reason, the First and Second Circuit went the other way on this. So there's a circuit split that had to be resolved over whether they can steal your mail. I just never would have thought that would be a circuit split.

0:40:29 Thomas: Very weird. Yeah.

0:40:30 Matt: It is very weird. So that's the basics. It's worth a read. It is certainly not great.

0:40:35 Thomas: Nope. That sounds bad.

0:40:36 Matt: I understand the concerns. Basically signing off on racial discrimination for postal carriers that might want to mess with elections in swing states. Not saying that's going to happen, but maybe we shouldn't give them any kind of signal that's okay.

0:40:47 Thomas: Yeah. I'll say. Jeez. I don't like that, Matt. I Don't like that at all.

0:40:51 Matt: Not great. That's USPS v. Conan.

0:40:54 Thomas: That is a bummer. I guess, hopefully, as usual, I have no idea what the footnote will be, but I hope it will cheer us up after that bummer of a case.

0:41:01 Matt: I think we can have some fun with it.

0:41:03 Thomas: All right. Well, we'll take a break and we'll get to our footnote.

0:41:08 Ad: [Ad break 3 — ad music]

0:41:08 Thomas: All right, Matt, you fetishistic bastard. What's your footnote this time?

0:41:13 Matt: Today's footnote is an interesting disclosure from Whistleblower. We talked a few weeks ago about how Whistleblowing has told us about the secret memo that allows ICE to arrest people. This isn't that, but this is a similar disclosure from someone who wanted Richard Blumenthal in the Senate to know about reductions in training. And this is really interesting insight because as far as I know, this stuff was not out there before. And so we've got some exhibits. I've just sent you the Blumenthal documents. I want to point out a few things as we go through here and just give you a sense of what it takes to become an ICE officer as of February 2026.

0:41:45 Thomas: God, because we already knew the whole thing about the, oh, it's only 47 days because of that whole nonsense. We already knew that. So it gets worse.

0:41:53 Matt: Yeah. The practical exams, the stuff they actually have to pass to graduate, they've eliminated a dozen of them and they've shortened the courses quite a lot. And I thought it was interesting to look at this because they've got this whole thing set up like a course catalog, like a college course catalog. And there's some really weird stuff in here.

0:42:09 Matt: Page five, you can see that this looks a lot like any other college registration, right?

0:42:14 Thomas: Oh, OK.

0:42:14 Matt: You've got your credits, lab, lecture, practical.

0:42:17 Thomas: So this is like someone's transcript from Nazi school.

0:42:20 Matt: This is your course catalog from Nazi school.

0:42:22 Thomas: Oh, course. Oh, I got you. OK. Course catalog. OK.

0:42:25 Matt: 7025, that looks like fun. Skid control. You get two hours of practical training on skid control, yeah.

0:42:27 Thomas: Skid control. Yeah. Wow.

0:42:30 Matt: Cognitive driving, that's not my favorite kind personally, but yeah.

0:42:33 Thomas: Cognitive driving. What in the world? Do they mean like being cognizant?

0:42:37 Matt: I guess being aware of what you're doing while you're driving, that takes several hours.

0:42:42 Thomas: Cognitive driving.

0:42:43 Matt: That's four hours of lecture. There's actually no practical component to that one. And just to be clear, what you are looking at right now on page five is the 2021 course catalog.

0:42:53 Thomas: Oh, okay. OK, so it already was bad.

0:42:53 Matt: We're going to look at the 2025 one. Yeah, this is the previously good one. This is the one, yeah. We've got one -hand shooting techniques. That's two hours of lab. Yeah. Right. Exactly. I want to be clear when I'm talking about this stuff, I'm not trying to fall into the trap of these people just need better training.

0:43:02 Thomas: Oh yeah. With your phone and your other hand. Yeah.

0:43:09 Matt: We understand by now. We agree that this is root and branch. This thing needs to go. And this kind of really shows it because, you know, remember the picture of the person being pinned down to the pavement, getting pepper spray in his face, like directly in the face.

0:43:21 Thomas: Well, sorry, Matt. Which one of the million of those? Yeah.

0:43:23 Matt: Yeah, right, right. If you go to page 29, head down to page 29 of this PDF. Now, this is a syllabus. Now this is just like any course catalog. You get some details in the course you're going to take.

0:43:34 Thomas: First off, how does this have to be a whistleblower thing? This is government stuff. Like, shouldn't we all be able to know this easily or?

0:43:40 Matt: It's a national security agency. I wouldn't be surprised if they'd, you know, training and methods, I guess they want to.

0:43:42 Thomas: Wow. Oh they get to, yeah, hide everything. That's an underrated thing. I forget if I've said this before. Underrated reform that the the left should push for revamping and revitalizing FOIA laws and making it so there's teeth to the punishment if you don't comply. That's a huge tool in our arsenal for public accountability of these people. So that would be something in the project 2029, I guess it would be, whatever it is that I would love to write. Somebody's probably working on that. FOIA laws. Let's get on it. Okay. What am I looking at?

0:44:16 Matt: So this is the syllabus for the pepper spray course. Check out the length of how long you spend learning about pepper spray.

0:44:22 Thomas: And this is 2023 now.

0:44:24 Matt: Yeah so this is still the old materials.

0:44:25 Thomas: Okay, Okay, so a two -hour lecture on pepper spray, 30 -minute lab on pepper spray, and then P .E.? Oh, okay. It's like a P. Just because these kinds of people, they're like, well, we got to do P. E. class like during this. Guy blows a whistle. Yeah, do dodgeball. Okay, four hours. All right. Yeah.

0:44:33 Matt: And then, yeah, practical exercise. Yeah, not push -ups. Push -ups are another thing. They also do this. Yeah. You're ready. Got to run around with pepper spray. Yeah, yeah.

0:44:50 Matt: Four hours. And just remember that that person in that picture passed this class, and it is pass -fail, as we're going to learn, that most of these classes are pass -fails. You are not graded on your pepper spray abilities. This is four hours where you learn about how to to use pepper spray on non -compliant subjects, students are sprayed and expected to perform defensive tactics with limited vision and capabilities.

0:45:08 Matt: I do like that, that they all have to be sprayed at least.

0:45:09 Thomas: That's the one good thing they're doing.

0:45:11 Matt: Yeah. Check out the page before this, the baton class. This is a fun one.

0:45:15 Thomas: Oh, baton twirling?

0:45:16 Matt: Yeah, no, this is not gymnastic dancing as it might suggest.

0:45:21 Thomas: Nice because that's where the pe would make sense once again yeah

0:45:24 Matt: Yeah I'd really like to know how this is two hours of lecture.

0:45:29 Thomas: You hit the guy with this end or this end actually doesn't even matter which end it's a it's baton just hit the hit hit the other person with this yeah it's the stick the history of sticks goes back I love it yeah I love the like filling the lecture time? Yeah. Yeah.

0:45:35 Matt: It's a baton. Yeah it's a stick. You just pull out your stick and for the yeah yeah baton is french for stick yeah uh check out the performance objectives I thought they're kind of funny

0:45:56 Thomas: Performance objective. Okay. Explain why a baton is an appropriate response to the subject's action. Okay, yeah. They're the woke left. Yeah, determine the strike area based on the subject action and totality of circumstances. Okay so it's like it's okay if you're being a real dick then I can hit you here if you if it's

0:46:01 Matt: They're moving they're filming me obviously yeah they're

0:46:16 Thomas: Just a warning hit, I can hit you here. Okay. Demonstrate grips and carries. Well, it's a stick and you hold it. Demonstrate cross drawings, strong side drawing and low profile drawing technique. Oh, for the love of God.

0:46:16 Matt: Breathing

0:46:30 Thomas: Just play with your stick. You just got a little stick and he hit people with it. There's no, there's nothing. Demostrate forward, reverse and middle strikes.

0:46:30 Matt: Right yeah my favorite one is next it's like hold on to it yeah

0:46:39 Thomas: Number six, retain Retain the baton. If you could keep this baton, if you could pull this baton out of the stone, then you get to be an ICE agent. Retain The Baton. It's like you get it. You keep this one. You get to take this home with you. Is it like that?

0:46:53 Matt: It's so good I assume it's literally hold on it during the encounter don't let the

0:46:59 Thomas: Oh, like someone's trying to take it from you. Yeah. I think it would be really funny if it was like, here's your take home baton

0:47:01 Matt: Yeah don't let the enemy take your baton. That'd be very embarrassing. Have fun.

0:47:09 Thomas: Congrats. Yeah. I like my version better. Oh, boy. Good times.

0:47:16 Matt: Previously, they had classes on not just sort of, yeah, that's

0:47:18 Thomas: Well, this is 2022. So it's again, this all predates this. These people suck forever.

0:47:24 Matt: Right. There's classes on the Fourth Amendment, on administrative warrants, how to carry things out. Like it's all the stuff you'd hope that they would know something about before they become ICE officers. Just for contrast though, if you go up to page 10, you'll see everything you have to actually pass as of the previous courses. It's a long list. We'll link to all this so people can see it.

0:47:42 Thomas: Oh, Boy, I can barely read it.

0:47:43 Matt: And notice how many of these are pass -fail pass fail, and how many of them are graded?

0:47:45 Thomas: I'll pass fail or 70%. Yeah. Well to be fair to these people 70 % is as high grade as they ever got in any high school class. So I can't read this. What's what am I trying to look at here?

0:47:56 Matt: Active threat response. And remember, several people determined Alex Pettit to be an active threat, and that's how he was murdered. Pass fail. Judgment pistol shooting. Pass fail, pass fail. And again, this is in the good days, allegedly, right? When they were fully training people. And this is a very, very long list. Now, if you go down to page 12, you'll see the current requirements. They're much easier to read because it's a much shorter list. Bigger font.

0:48:18 Thomas: That's a lot fewer things

0:48:20 Matt: Yes. Much easier to become an ICE officer. And check out the right column there on the remedials.

0:48:24 Thomas: Matt remedials allowed. So you get to redo or something.

0:48:27 Matt: Yeah. So you can fail pepper spray in baton class.

0:48:31 Thomas: Something what's amazing is you don't get to redo the physical fitness assessment that would be like the one thing I'd be like okay fine if they can eventually pass that whatever that'd be the one thing I wouldn't care about I would care if it took them multiple tries to do the like don't hit yourself with your baton class and no

0:48:47 Matt: Or don't pin down peaceful protesters and spray them directly in the face. Don't spray anybody in the face. You need hours of lecture to learn this.

0:48:50 Thomas: They don't have that class man they don't have that class yeah no I don't know what you there's there's that class doesn't exist I don'T know what you're talking about here

0:48:56 Matt: Yeah, that's true. And it's the kind of thing that you can't teach people. If they're going to do it, they're gonna do it. It does kind of give light to the whole thing. The multiple choice exams, they have seven still they have to do, but there were many more before.

0:49:08 Thomas: God and it really matters what those look like because because you have to get 70%. They could be the kind where it's just really effing obvious what the answer is. And I imagine getting not only 70%, but you get another try if you fail. And like, who knows, maybe it'll be the same exact freaking test. I mean, it's hard to know. This could be embarrassingly bad, or like, I guess if they tried to make it hard for some reason, it could be a little harder, but this doesn't even give it all the detail we'd need need to know to know how pathetic this is

0:49:38 Matt: No, it's true. But at least the previous one looks like a college registration thing. They're giving a pretty good sort of academy kind of overview. But this is the reality now, is the much shorter list. So there's a lot more in here we could go through, but I just thought it was an interesting insight into what it takes to become an ICE officer these days, because it's not much.

0:49:59 Matt: There's some other revelations in this that Blumenthal gets into in the cover memo here. Obviously, we already mentioned about the 72 training days being reduced. Blumenthal is claiming that some of this directly contradicts things that Todd Lyons, the acting director, made under oath as to what it actually takes to become an ICE officer and what their plans are for getting new graduates through pretty quickly here.

0:50:18 Matt: The difference between 25 practical exercise exams when you're talking about people that are being deployed out of the street with weapons and nine, that's a big difference. We're removing classes like judgment pistol shooting, removability determinations, which is how they determine if somebody should actually be deported or put in deportation proceedings, detention to removal, and criminal encounters. They're now evaluated. Also, it's now all open book.

0:50:39 Thomas: Yeah you should have led with that so I get to take my baton book into baton class with me which and hold on let's look index which end of stick do I oh boy

0:50:42 Matt: Yeah. I mean, there's a pretty obvious joke here, but I have to be able to read to use the open book."

0:50:56 Thomas: That's about it though that's all they need to be able to do maybe it

0:50:59 Matt: Yeah, not great. And again, it is obviously the position of the show that training isn't really relevant to the problem, but it's not great, it could help.

0:51:06 Thomas: It could help, but it's not where I would care to focus. But yes, point, yeah, point taken.

0:51:12 Matt: Jonathan Ross. And from what we know about the people that shot Alex Pretty, Jonathan obviously killed Renee Good. Jonathan was an extremely experienced officer who had taught some of these classes you know he was a firearms instructor so yeah

0:51:24 Thomas: He was normally on the other end of the baton. He could twirl a mean baton, no, no one, no unlike him.

0:51:27 Matt: Exactly well I think you've got what it takes um should you want a career

0:51:32 Thomas: Oh boy. Yeah, I think I'm going to go get my $50 ,000 bonus that I don't even think exists. All right. I'm not sure. I don't know why it wouldn't though. I see those stories, like people aren't getting their bonuses and I'm like, why? They have a, I was going to say a billion. That's, that's silly. They have $11 trillion of budget. Why wouldn't they be giving people those bonuses? I don't even understand that. But that's another story, I guess.

0:51:38 Matt: Change yeah yeah yeah that 75 billion dollars slush fund that gotta give you some use for something but yeah just keep practicing with that baton you might just get there

0:52:01 Thomas: Will do. Will do, ah boy. These people are morons and I at least get to have a chuckle at their curriculum. Good times. Fun footnote. All right, Matt, great episode. Thanks so much as usual for the breakdowns and thanks everyone for listening and supporting. We will see you on Monday.

0:52:20 Matt: All right see you later

0:52:58 Thomas: Jenessa, you need to answer to us. Tired of your shit. How dare you accuse me of common sense.

0:53:06 Matt: And for some reason I started imagining if my mail carrier started writing loves nickelback after my name on every piece of mail hell.