SCOTUS Likely to Strike Down the Law Used to Convict Hunter Biden

Transcript

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

0:00:00 Clip: Thank you.

0:00:03 Thomas: They accused hillary of was stuff he's doing but worse openly but it doesn't matter because it's like well when he does it it's it's fine like

0:00:17 Matt: You've got Democrats coming out and saying, well, well, of of course, course, the Ayatollah was bad. And of course we don't want this terrible theocracy that's murdering protesters. Yeah, no, we can all agree on that. But again, like, we don't just get to do this.

0:00:32 Thomas: Welcome to opening arguments this is episode 1241 I'm thomas that over there is a real life seagull how you doing yeah

0:00:39 Matt: Just in the middle of a seagull party outside here in Boston, Massachusetts.

0:00:42 Thomas: I a little uh that I wasn't invited to the seagull party yeah there yeah funny I could hear that yesterday in the in the video recording as well but we get on and matt's like um there's some seagull there's there's seagulls there's a a lot of seagulls. There's nothing. The funny thing is recording wise, there's nothing you can do if a group of seagulls has decided to descend upon your recording.

0:00:47 Matt: Me too. It's right outside. Didn't even knock. Could get a gun, except maybe we're going to find out from today's Supreme Court case that maybe I can't get a gun.

0:01:15 Thomas: That's good.

0:01:16 Matt: I would shoot birds anyway, but you know, it's an option.

0:01:18 Thomas: Well, the only way to stop a seagull with a gun is a good seagull with a, I don't know, gun wielding seagulls outside. Um, it's real life immigration attorney, Matt Cameron. How are you doing Matt? The

0:01:31 Matt: I'm great. And nobody has asked me under oath about my sexual relations today. So I'm doing even better than Kristi Noem.

0:01:38 Thomas: Day is young. Oh, Kristi Noem. Oh wow, I missed that. What was that?

0:01:44 Matt: She was asked under oath if she's had sex with Corey Lewandowski. She refused to answer that.

0:01:50 Thomas: Why was she asked that?

0:01:51 Matt: A day she's having. Quite quite a week she's actually having in front of Congress this week. I don't have time to cover it right now, but I might come back to it.

0:01:57 Thomas: Was that related to her airplane or something?

0:01:59 Matt: Think it was at least somewhat related to that very nice bed that we all saw on our airplane. Yeah, and chance to ask your questions under oath.

0:02:04 Thomas: It's like the Austin Powers jet. Hey, you know, I will say it's good for a woman to have a scandal like that, you you know, good for her. Feminism. Yeah.

0:02:14 Matt: Feminism. We We got some good stuff today, though. Very important topics. I'm really into the Supreme Court case I'm going to be telling you about. It's an incredible intersection of gun rights and cannabis rights that has united those two lobbies in a way that I've never seen before. For.

0:02:31 Thomas: Our guns smoke weed? Okay.

0:02:33 Matt: Then, of course, we've got to talk about the war, as we are now calling it, that we are in as of this week.

0:02:40 Thomas: I was told there would be no new wars. So I don't know what you're talking about.

0:02:44 Matt: I was too. Did occur to me as I was getting on here that question does arise, legal analysis of war, what is it good for? Absolutely nothing. But the thing is, if you want to tell people this war is illegal, which I think you should, you should know why. So you'll know why after we talk about it.

0:02:58 Thomas: Yeah, I I think I could do that opening arguments. Says, okay, that's it. No, there's the War Powers Act. There's some other stuff to talk about for sure.

0:03:05 Matt: Go a little deeper than that, but there's that. For

0:03:09 Thomas: But just on a basic level, I don't think we need an expert to say it's definitely illegal. We'll just find

0:03:16 Matt: It's all the different ways and how it could be legal. As of today, there's a War Powers resolution as of the time that we were talking right now, being voted on. Maybe by the time we finish, I'll give you an update.

0:03:25 Thomas: I Don't Think They Want to Do That. I actually don't think Republicans want to do that, but we'll see.

0:03:29 Matt: I don't either. Either way, what we've just already done was completely illegal, legal, so we've got to talk about it. Of completely illegal, we've also got a Todd Blanch update. ProPublica did some great work, as always, exposing this. And I meant to mention it earlier, but this is just one of like 3 ,000 things that would have been a capitalist scandal under previous administrations involving Todd Blanch in this case. Attorney General, former defense, and as you pointed out on Wednesday's show, current Trump defense attorney, still his own way. We're going to talk About that very quickly. And then we've got a footnote in which I would be interested on your opinion about this because I think I kind of almost agree with RFK Jr. on something in direct betrayal of my Massachusetts values. For dunks, folks. He's going for Dunkin' Donuts, and got to talk about it.

0:04:16 Thomas: Just don't have much experience with Dunkin' Donuts, to be honest with you. It's not a big thing out here. I mean, it's here, but we don't worship it. You not In -N -Out.

0:04:24 Matt: It's on every corner here. And we don't have In-N-Out, out and I'd rather have it in and out, honestly.

0:04:29 Thomas: Man.

0:04:29 Matt: So it's what you get.

0:04:29 Thomas: You should, you should rather have In-N-Out. It's really good.

0:04:32 Matt: It's so good. I know. Yeah.

0:04:34 Thomas: I love it.

0:04:35 Matt: So yeah, we got plenty today, but

0:04:36 Thomas: I wish they had fake meat. I don't, I can't eat the burgers anymore. Sad. Yeah. Shakes are good. Fries are good, I still just get a grilled cheese just to remember what the burgers were like.

0:04:40 Matt: The shakes, shakes fries. They were good.

0:04:50 Thomas: Oh boy. When we first turned vegetarian, like when we first turned vegetarian we're like let's get um patties and buy and out grilled cheeses take them home and make our own fake burger and we did it was it was delicious but it was so much work we never did it again we should we should you know it's just uh you know one of those little things but okay yeah I'm excited to talk about that and also hey you You might have heard Matt on a certain 5-4 podcast, by the way. Amazing appearance. Really good stuff.

0:05:05 Matt: That worked? Yeah. Legal podcast that we'd recommend you listen to. Out this Tuesday.

0:05:26 Thomas: Screw all the other ones. They suck.

0:05:28 Matt: There are some other good ones out there, but yeah.

0:05:30 Thomas: Until we go on them.

0:05:32 Matt: But Wheel of Five, Four, it was a great opportunity and I had a great time with Michael and Rannon talking talking about the current realities of immigration practice. Practice. Another attorney also in Texas that had a second interview in the same episode, well worth a listen.

0:05:44 Thomas: Absolutely. It was great. I loved it. Already massive but it was cool to uh it was more like hey awesome that matt got to go on a show a that we're big fans of so really cool um well with that said I think we will take our usual first break which you can avoid at patreon.com/law support the show get the word out um share the show please that's awesome but uh support the Show skip the ads get the goodies and we'll take a break and be right back yeah right, Matt. Matt, well, let's talk about Trump's definitely illegal war. Boy, where do we even want to start? I mean, there's so much to be said, but I steer you off in any different direction. What do you want to talk about legally here?

0:06:23 Matt: Well, I thought this is actually a good time to remind everybody about how this actually works because we touched on some of this with the Maduro -Venezuela invasion, which was justified, of course, as a criminal action, basically serving a warrant through the FBI.

0:06:35 Thomas: You know what, Matt? It was, and that's why we have all these examples of that exact thing happening. Every president has, I don't know why we made a big deal about it. Every president ha s just taken out, arrested a leader of a foreign nation. Constantly.

0:06:47 Matt: History and tradition. That's Right. Was not a destabilizing action for the entire region. It wasn't this massive thing with no plan. It was in and out for what it's worth. Still illegal, still disagreed with it, but it was not on the scale of what we're talking about here. And of course, Democrats correctly came out immediately and said, this is illegal. And I wanted to actually explain why so that if arguing about this with somebody, so you know why it's illegal and how it's supposed to work. Because I couldn't believe in the lead up to this, the headlines that were like, Trump is still considering whether or not he's going to go to war with Iran. I'm like, what are we doing?

0:07:18 Thomas: The headlines are unbelievable. Like the amount that normal, unquote, normal media has just decided he can do what he wants. One they always do too, is the firing, you know, where it was like, they just ruled that there was something where they ruled he couldn't have fired a judge or whatever, or something like that. And then like that same day he tweeted, you're fired again, even though it's like, obviously he couldn't, it was something like that and the headlines were like, Trump fires judges immediately after being told. It's It's like, no, he did a tweet. Just say that he did it. He said you can I could do that, you know, like me saying it and him saying it were the same thing in that moment.

0:07:48 Matt: He said things. Right. Hey, Sam Alito, you're out. Done.

0:07:55 Thomas: So you can't just say, oh, I guess he's fired. You know, it's like there's these things they do where they think they're so unbiased and they think there's so fair, but they take on all kinds of that they aren't aware of in favor of this freaking fascism drives me nuts. Oh,

0:08:12 Matt: Yeah, I mean, it's just Trump is contemplating whether he can kill hundreds of people, thousands of people. And that's what the headline is. He can't. Fun, just sort of pub trivia for you before we get started. This could be a great final Jeopardy question, something I just learned today. I guarantee you're not going to get this, and it's okay. Somebody listening might get this, but the the last time that Congress declared war, which is of course what the Constitution says is supposed to happen for whatever it's worth, is that you get an actual declaration of War against other countries. Was 1942. were three countries that we declared war and that was our last declaration of the war. Can can you guess one of them?

0:08:23 Thomas: Sorry. Yeah. And 1942. I would think it would be something like Germany or Japan, Italy, something like that.

0:08:50 Matt: Would think, but we'd already declared war on them.

0:08:52 Thomas: Oh, 1942.

0:08:53 Matt: So by that point, we got three more countries that joined the Axis and we were required to declare war on those. So our last declaration of war was actually in Romania, Bulgaria, and Hungary.

0:08:54 Thomas: Oh that's the trick. Gotcha. Oh cool.

0:09:04 Matt: Countries I didn't even know that we were officially at war with, but of course that makes sense. They were part of the AxIS. So there you go. That is just for context, the last time I checked the list, Congress has declared war 11 times. And three of those were the ones I just told you that nobody knew about. That's not happening anymore. But that would be sort of the originalist understanding of what the Constitution requires is that Congress declares war.

0:09:25 Thomas: Call that originalist.

0:09:26 Matt: Yeah, well, that is true.

0:09:26 Thomas: I mean, that's just how it works.

0:09:29 Matt: That is how it is.

0:09:30 Thomas: You don't need to even besmirch it with the originalism label. That's just what it says, right? Right?

0:09:36 Matt: Yeah. The founders did not want a standing They were cool with a standing navy because it is so expensive to build ships. But they thought that we should raise an army every time we go to war. I think going to war should be a big deal. But once you have the military -industrial complex, you just can't not use it. Was exactly what Eisenhower was warning about on his way out, and here we are. So I want to look at how it's been justified, because of course, this is a bipartisan problem. As usual, the Democrats have paved the road to hell in their own way.

0:10:01 Thomas: I mean, sure.

0:10:04 Matt: But I mean, always, it's always bipartisan somewhere.

0:10:07 Thomas: I think that given what Bush did after 9 -11 and how at the time popular that was until obviously later, I presidents have started a new fresh war, you versus Republicans. I know there's a few, but like, I It's not like it'S equal on both sides on this.

0:10:25 Matt: There's also no no legal definition of a war, which is part of the problem for constitutional purposes. Office of Legal Counsel, of course, the part of Department of Justice that signs off on all of the worst stuff that the government does, that's kind of its job. OLC determined that the definition of war requires a fact -specific assessment of the anticipated nature, scope, and duration of planned military operations. And of course as we learned from the congressional briefing this week, and it was classified, but a bunch of Democrats came out and told us what happened, there's no planned military operations. There's no plan at all for this.

0:10:56 Thomas: Oh, that, ah, one weird trick. There's the loophole. Yeah. I don'T have a plan. Checkmate libs.

0:10:57 Matt: But at same time, Trump is telling us that we should expect more casualties and more time.

0:11:07 Thomas: That's weird. Cause that sounds like a plan of some kind, even if it's not a good one.

0:11:11 Matt: I want to remind people how this works otherwise or how it has generally. It's to the point that somebody from the Pentagon was half joking that they're going to call it a special military operation, which is what Putin called the of Ukraine. Like, that's really bad. That's the point we're reaching. But generally speaking, there's this theory under Article 2 of the Constitution that the executive has this sort of general authority for national security, for one thing, under the take care clause. He's the commander -in -chief of the military, which means if we're in a war, then he directs the military.

0:11:41 Matt: But he's not supposed to also direct whether we're not in a war or not. This is getting kind of fuzzy. There's also the idea that, this is kind of of funny, but the president has the power to conduct foreign relations and apparently sometimes just bombing a country.

0:11:53 Thomas: It'S of foreign relations of sorts, I guess. Yeah.

0:11:56 Matt: Sure. That was one of the things that was justified for Syria, which we'll get to. There's a national interest behind any kind of illegal attack, and obviously the Iran thing, they're not even trying. They're not Even really pretending. They've given us a bunch of different things. It's regime change and it's not regime change, then it's in anticipation of retaliation, and then it is thwarting the nuclear program.

0:12:17 Thomas: Anticipation of retaliation. That's boy that, you know what? You could simplify the fraction there, Matt. Uh, that's just you doing something.

0:12:27 Matt: If I hit you, you're going to hit me back.

0:12:28 Thomas: And so therefore I've got to hit you. I, cause I, because you're, cause I might be hit otherwise.

0:12:34 Matt: And on March 2nd, Trump in which he said that they unable to reach a diplomatic solution to Iran's malign behavior, the threat to the United States and its allies and partners became untenable. Now, this is the other thing. Iran was sitting down for weeks now trying to negotiate with us, and it sounds like they were willing to give up quite a lot at the point at which we decided to strike.

0:12:53 Thomas: I've heard speculation that that was just BS on our part. Kind of distracting them one of the reasons that the what's ayatollah was like not really safe was might have been because we were kind of pulling a trick

0:12:56 Matt: Just stalling, I'm sure. And that makes sense, foreign relations. Just anecdotally, When I was in Minneapolis in the airport, just hanging out, my flight was delayed by a few hours. I'm just hanging on the bar making friends. And I met two different guys who weren't even together. They were just passing through, who were both in the Coast Guard, both being deployed to the Middle East. And they were being very secretive about what they were doing there.

0:13:24 Matt: I didn't even know that we deployed the Coast guard past Nantucket. But apparently, we do send them to the middle east.

0:13:28 Thomas: Yeah I thought that was the one you got in for like you less serious time I

0:13:31 Matt: Yeah, to guard the coast, you would think. It's kind of there in the name.

0:13:34 Thomas: Do we have coast in the middle east how much coast do we we have out there yeah no do we have coasts out there is what I'm asking yeah we don't guard all the coasts in the world do we coast guard is required to go to every coast

0:13:37 Matt: They do have coasts. Yeah, right. They have ghosts. Opening up the ambit there. I started pushing politely. These are nice guys. I didn't want to be rude about it. I had to really restrain myself because one of them had been telling me that he was involved in the strikes on the boats in the Caribbean. And were people around me thanking him for his service, and I just couldn't bring myself to do that. Yeah, that's not service. Sorry.

0:14:08 Thomas: My are you kidding me hey

0:14:12 Matt: Have no disrespect, but that's not something you should have been doing.

0:14:15 Thomas: Thank you for your murder do we just ask murder do we just tell murderers thank your local murderer lately you know they don't get enough enough recognition tur

0:14:18 Matt: Thank you for remembering. Yeah. Guard, what are we doing? This has been coming for a while. I definitely got the sense from the way both of these guys were independently talking about it, that there was a buildup happening. And then I started reading more about this buildup, and it seems like this is exactly what was expected. Point is, we, what it's worth coming from me, we can't do this, but let me just tell you about some of the ways they say that we can do things like this. I still have not seen anything resembling a compelling legal reason that we could do this in particular. Just some past examples, right? I think you know about the authorizations for use of military force. There are more of them than I might have realized before. Iraq invasions were justified by separate authorizations for use in military force, and in both cases, the president properly went to Congress and got joint resolutions to do it. W. Bush Desert Storm 1991 was actually even a little bit more justified because there was a UN resolution giving we went in about a week before the end of that deadline using this AUMF. Congress And can authorize and the difference between a declaration of war and the AUM is a The AMF is a fairly, I was going to say limited, but the other one we're going to talk about is not, but it's more circumscribed. And we're not declaring war in Iraq. We're just saying there's a reason that we can go in. And that was that they are, of course, as we know, harboring weapons of mass destruction, except maybe not, and

0:15:36 Matt: Enter. That they're also harburing Al -Qaeda, which is interesting because the previous AUMF in 2001, the one that people are familiar with, the very famous one, the most broad odd thing that has ever been passed in this direction, was passed seven days after 9 -11, so you know it was carefully thought through. Yeah, right.

0:15:55 Thomas: Sorry stupid anyway that famous day anyway

0:15:59 Matt: Yeah. The president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines, planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons. Now,

0:16:19 Thomas: Also have like a footnote that was like also you don't have to try that hard to be right about it like to be accurate about who you're determining did that best guess just give me as long as your best guess yeah

0:16:27 Matt: Just it literally says he determines, right? So if he thinks...

0:16:31 Thomas: That's what I'm saying oh

0:16:32 Matt: Right, yeah, exactly. You're right, you're right. Al -qaeda, of course was not officially a country. And so it was not the traditional declaration of war we couldn't do. And that makes sense. You have an AMF for that. They should have limited this a little bit more. Was a mistake and member of of either house of Congress to vote against it, yeah. Lee from California, yeah, original sort of very bad AUMF, the one that's extremely general, the one the Trump was still using in 2018, 17 years later, right, it's still in effect.

0:16:51 Thomas: There's it's still active right that's insane ah

0:16:57 Matt: No, it absolutely is, and that's what happens when Congress passes a blank check like this, right? And this is not a mistake that we should make again. That is legal in that sense, but of course, illegal in the sense that it's extremely broad and the he determines part has been a real problem, obviously. Then you get these sorts of other less clear things, right? So that the War Powers Resolution requires that Congress actually pass something to regulate the action by the president, which is what he's doing with these AMFs. War Power's Resolution gives Congress, for what it's worth, the veto, basically. And then the president can actually override that veto, but Congress has the opportunity to cancel a war essentially, which is what they're trying to do now.

0:17:36 Thomas: We're double booked sorry we gotta yeah cancel well

0:17:39 Matt: That the one being voted on today is actually the ninth attempt by Congress to stop Trump from doing military operations in this term.

0:17:46 Thomas: You say it's an attempt to stop him like what's the actual thing being voted on yeah

0:17:51 Matt: Bill is from Tim Kaine, Adam Schiff, and Chuck Schumer. It's a joint resolution to direct the removal of United States armed forces from hostilities against the Islamic Republic of Iran that have not been authorized by Congress, making the very reasonable point that Congress has not yet... I don't like the sound of that. Congress has not yet declared war upon, nor enacted.

0:18:07 Thomas: That's unnecessary I'm not sure why they put that word in there yeah

0:18:10 Matt: Don't need to say yet. Should be answered following a full briefing to Congress and the American public. And come and do what both Bushes did with Iraq. Get a joint resolution. Get them to actually say, you can do this. It's not that hard. If you think it's a righteous cause, it worked before. Where we're at with that. But the kind of middle ground between declaration of war and a resolution from Congress that gives you this authorization is the Article 2 kind of powers that, for example, Obama relied on for Libya. We were doing airstrikes in Libya, and Muammar Gaddafi had obviously carried out acts of terrorism before, but he didn't pose a threat to the United States. Actually from the OLC memo on that. We'll link to all of these. Left unchecked, we have every reason to believe that Qaddafi would commit atrocities against his people. Many thousands could die. Humanitarian crisis would ensue. The entire region could be destabilized, endangering many of our allies and partners. Determined in this case, the OOC gave Obama the right to do, in 2011, limited airstrikes on Libya because this wouldn't amount to a quote -unquote war for constitutional purposes. And this is what I was saying before about a fact -specific assessment. There was a similar question when troops participate in a joint operation in 1994 to go to Haiti. And that was a pretty limited duration thing when there's a military coup in Haiti that took out Aristide and international community sent in troops essentially to restore democracy. It was just very straightforward. Forward. That was not considered to be a war, but Congress allowed that to happen, basically. Are all pretty good examples, I think, of how these things... And in the 2011 OLC memo, they point out that this happened a lot. There's a lot of precedent to this, a lot different ways that we have used military force in other countries that was not specifically authorized. And then we get to 2018 in Syria. That Was a Little Easier to Justify because there was real evidence that Assad was using chemical weapons, or about to, or was transporting chemical weapons. They said, essentially, they were looking at weapons that the UN has already made illegal that we can stop, and that's what we're going to do. None of this is supposed to be how any of it works, but we have developed this whole sort of framework, this justification.

0:20:19 Thomas: A difference between like Like, okay, it probably should be illegal and not really how the Constitution should work, but it was done in the manner consistent with what the country has kind of decided was legal for a long time versus what Trump's doing.

0:20:37 Matt: Actually from the Libya memo. They say it as directly as possible. The historical practice of presidential military action without congressional approval precludes any suggestion that Congress's authority to declare war covers every military engagement, however limited, that the president initiates.

0:20:51 Thomas: Kind of true.

0:20:52 Matt: Of years of history, and this is what we're going to do. Been this kind of dividing line in that 94 OLC memo, this dividing line about whether you're actually putting troops in. And I saw that Carolyn Leavitt said today that she actually said that boots on the ground are not off the table or on the table, she said. Boots on the ground are on the cable. And that seems very rude to put your boots on the table. But I don't know.

0:21:12 Thomas: I love stuff like that.

0:21:15 Matt: Yeah, I mean, really can't mix your metaphors that badly. But whatever.

0:21:20 Thomas: It's on the grass. It's not really that. I get it. You know, uh, boots on the ground or not off the table.

0:21:25 Matt: But maybe find another way to say that. They're on the table. Or they're on the table?

0:21:29 Thomas: Yeah.

0:21:29 Matt: Yeah, that's what it was. Yeah? Either way. But yeah, I just Okay, sure. We just live in ridiculous times. So far from the baseline from where we've come, but there have to be limits. We can't just keep doing this and we can't normalize it. And as much as I know that everybody listening to this, I'm sure is aware that this is an illegal action. I thought it was worth reminding everybody exactly why, because the president is supposed to consult with Congress. Like that's the basic baseline under the War Powers Resolution of 1973. In every possible instance, she'll consult with Congress. I think this was an example of something where they certainly could have done it.

0:22:02 Thomas: Well, in the words of the Onion, which is undefeated, um, just glad Congress wasn't alive to see this. It was so good.

0:22:11 Matt: Pretty much, pretty much. Yeah, that's where we're at. We'll keep a watch. I just from a client that her entire family was taken out and around, they were all murdered. Not by the US, but by the Iranian government because

0:22:25 Thomas: Yeah, the protest, I mean, the protests stuff was awful. I don't know if you're talking about that oh now

0:22:28 Matt: But now, like a couple of days ago, because they're just taking advantage now. They're just using the chaos to go after whoever. But no, 9 ,000 protesters that we know of, I think, that was a number, right? I mean, that's atrocious, obviously.

0:22:32 Thomas: Man yeah yeah but the idea of trump going after someone for how they're treating protesters is just I get any more fascist than that I so illustrative of the fascist mindset you they accused hillary of was stuff he's doing but worse openly but it doesn't matter because it's like well when he does it it's fine like I think they would almost just say that I don'T they just don't care the rules don't apply it's pure fascism yeah

0:23:04 Matt: Really been annoying me, very much like with the Maduro thing where you've got Democrats coming out and saying, well, of course, the Ayatollah was bad. And of course we don't want this terrible theocracy that's murdering protesters. Yeah, no, we can all agree on that. But again, like, we don't just get to do this. Know, if Israel wants to do it, go ahead. That's controlled by their laws and whatever they want to do. But I just don't understand what we're doing here.

0:23:21 Thomas: I think there are a lot of countries who think trump is pretty bad I they be allowed to kind of do whatever they want on that yeah regime change

0:23:27 Matt: Regime change? Yeah. The people are crying out for it.

0:23:30 Thomas: Would involve killing a lot lot of us, you know, because that's what happens when you try to go change someone else's regime. It's not like a simple bloodless thing.

0:23:41 Matt: And at this point, there's even a question of if Israel Israel wants regime change, or they just want to destroy the country. I about as much as I have to say. I means, we started it out pretty much where we're ending, which is that it's illegal.

0:23:51 Thomas: Way.

0:23:52 Matt: Yeah. That is my expert analysis. Shouldn't be doing it.

0:23:54 Thomas: Boy, it's thing on the long list of things he should be impeached over. I What do you think about like it seems solid that we could take back the house? Let's say we take back The House. And regardless of if we take take back the Senate, I don't think it will matter because we'll never have the 60, whatever is a 66 or 67 votes you need for that. I forget.

0:24:13 Matt: I'm asking the wrong guy. Two -thirds?

0:24:16 Thomas: Well, it's, yeah, two thirds is, I guess, 67, right? So we'll Never Have the 67 Votes You Need to Convict, I think it is. But regardless, do you think that the Democrats should have like the articles ready to go, like the ink just when is kind of sworn in. Day one, because there's so many things. Found a way to impeach Clinton on, like there was a number of charges. Think how many, if you were doing an honest, no partisan anything, just like an honest objective assessment of how many things Trump could be impeached for in the second term. Do you think that would be?

0:24:54 Matt: That was a very long document.

0:24:55 Thomas: Yeah. And it should be, and we should be ready with it. And it that long because for one, they're never going to be convicted. It doesn't matter. He's never going To get convicted, but make the list for history. And I think they have to contend with it, like if we put everything in there, there's some amount of process that has to happen around that, right? Like, I hope we're doing that.

0:25:13 Matt: Yeah, no, you got to account for everything. No, had a friend who worked on the tribunal, the international tribunal for Slobodan Milosevic in the aftermath of that. And obviously, there were so many atrocities committed during that. I'm not comparing Trump to Milosevich yet. We're not there. But I thought it was interesting because her job basically, she was on the team that was leading one charge of one time that they rounded up some people and kept them in a warehouse or something for a day or two. It was It was like a very minor, basically unlawful restraint kind of thing, imprisonment, it matters.

0:25:42 Thomas: It matters. Yeah?

0:25:43 Matt: You have to account for it because those people were terrified. They didn't know what was going to happen, right? That was harmful. But it's, you know, right, exactly.

0:25:47 Thomas: We've Yeah, we have done this thing where we grade Trump on a curve where it's like, once he's done so much evil stuff, we're like, well, you know, we'll spot him the first few wars or whatever. You know, it's just like, come on, it should be the opposite. We should be tightening the screws more.

0:26:00 Matt: Account for everything. And, you Know, obviously that was the middle of a genocide, but everything matters and you've got to document it for history. Yeah, we got it.

0:26:07 Thomas: We are on the same page there. I hope hope I that happens. All Right. Well, we'll take a break. And then we're going to get to the Supreme Court case, right?

0:26:14 Matt: Got a fun one, yeah.

0:26:14 Thomas: Really, really interested. Okay. Right, Matt, tell us about the Supreme Court case.

0:26:23 Matt: Got oral arguments this week on U.S. v Hemany, and I'm not sure exactly how to say that, but the immediately interesting thing about this, there's a lot of interesting things about this case. I'm kind of obsessed after listening to the oral arguments, but it involves the same statute that was used to convict Hunter Biden. And we talked for quite a while about that one, a couple of different episodes. And just to remind everybody, Hunter Biden was applying for license, bought a gun, and had to swear under pains and penalties of perjury under 18 U.S.C. 922G, which is the statute at issue in this case, that he is not an unlawful user of or addicted to any controlled substance. Case, there was a whole trial to try to prove that he may or may not have actually been using around the time that he was applying for the license. He was, of course, convicted, lost his law license, and has been suffering the consequences.

0:27:06 Thomas: Didn't it come down to like some little like two-day window of possibility? Like it was even more ticky -tacky than that.

0:27:10 Matt: Yeah, that's right. Statute, I have real issues. And again, I am not a gun rights guy. I am a cannabis rights guy, but I do understand the Second Amendment exists. But this is a very interesting case now because of Bruin, which is, of course, the Supreme Court case from Justice Thomas a few years ago, in which they found that if you're going to restrict somebody's gun rights, it has to be based on some kind of established history and tradition that was around at the time of the founding.

0:27:33 Thomas: Now, my memory is this is the case that was so bad that the lower courts literally don't know how to even use it.

0:27:41 Matt: And a very strong presumption against restrictions, but this really brings out how ridiculous it is because were growing hemp in the colonial times, famously. Doubt people were smoking weed, but it was not a problem that they identified. They weren't thinking about drug problems at the time. This entire argument has to center around what the government can identify as the historical analog. Actually opened up this. I thought this was very funny. Quince Thomas's opening question was about the vagrancy laws because that was one possible historical analog, it wasn't the one that they seem to be going with. But he was citing a vagrancia law at the time about subtle crafts, juggling, palmistry, and fortune telling, basically, juggling.

0:28:20 Thomas: Juggling? Juggling no jugglers can own guns because you know why they'll start juggling them those things misfire you know and who knows who they're gonna take out yeah you're lucky we're letting you have chainsaws okay was

0:28:25 Matt: That's right. Stick to chainsaws, come on. But yeah, this isn't even about gun ownership. This is just about the equivalent kinds of things that other courts have drawn from.

0:28:43 Thomas: It actually juggler though did I hear that right or is it a different it was it wasn't like an old -timey meaning or something like that doesn't mean like you know a prostitute like a like a pimp or something you know yeah

0:28:45 Matt: Juggling, that's that's right, that It does sound like an euphemism, but no, I think it was literally just too much fun, having too much phone.

0:28:59 Thomas: Jugglers they went for the juggler huh all right yeah

0:29:03 Matt: Because other courts, lower courts have been struggling with this, as you've said, and they've looked at vagrancy laws at the time to try to figure out if there were certain classes of people that might have been excluded from gun ownership, right? It is. And it gets ridiculous because the one that the government has to land on is habitual drunkards. Is still there. Now, that I thought was particularly interesting because before you become a US citizen, you have to swear under pains and penalties of perjury that you are not a habitual drunkard. You have to say that in your residency interview, and I believe in citizenship as well. And that means I've had to explain to my clients what the word drunkard means, because even if you speak English pretty well, that's not usually a word you use. Is kind of an established definition that is essentially an alcoholic, right? If you have an untreated problem. And I've definitely had to send people to rehab before we can go through the process, because you have to get a doctor to sign off to say that you don't have a drug problem before you can gain residency and citizenship. I was familiar already with the habitual drunkard thing. They're trying to just kind of collage this together because the statute is not helpful. We've got this whole other complication, as Gorsuch says at one point, that marijuana is sort of legal and sort of isn't. That's the expression he uses, which is of course true because it's sort of legal in 40 states basically, and it's still federally illegal.

0:30:10 Thomas: I fair enough yeah sorry

0:30:16 Matt: And remain that marijuana is a federally controlled substance and anyone who's using it in any way, and of course, they keep pushing hypotheticals about what about the guy who takes a gummy a couple of nights a week to sleep? About somebody who parties with friends on weekends outside the house where the gun is, where he's never going to touch his gun? How do we say that person is dangerous? Makes this, I think, very good point, which is worth playing because as we've discussed before, smart he's guy. He knows his stuff. I really enjoyed the the example he's giving here.

0:30:43 Thomas: You're we're voluntarily listening to gorsuch and you're praising him while we're doing it okay

0:30:47 Matt: To agree with him. I mean, he is a libertarian at the end of the day. He does not want cannabis users to be punished. So I have to appreciate that. Got to be fair here. It's a good question he's asking.

0:30:54 Thomas: All right give him his due do I don't know if I believe that yeah that's what that's why I say too I still

0:31:31 Matt: 16 shots.

0:32:27 Thomas: Hate this by the way well you could let her answer I don' t know rahe for madness

0:32:28 Matt: I'm with you. Can stop there. I thought he was dropping some good knowledge there.

0:32:52 Thomas: But in typical fashion he's even really annoying he turns into a um aaron sorkin monologue you it's like all right I still I hate it when it's the left I hate when it'S the right don't like it it's

0:33:06 Matt: Sorry to make you listen to that, but I thought it was very well stated. Otherwise.

0:33:08 Thomas: All right yeah no a

0:33:10 Matt: And great facts, great stuff.

0:33:11 Thomas: Of people like west wing I get it it's fine

0:33:13 Matt: Never would have thought that eight shots of whiskey a day would be occasional use. That doesn't sound right.

0:33:17 Thomas: I don't believe that but I will see I'll have to look it up later people's biology didn't like you still the body can only process a certain amount of alcohol and the thing is a lot lot of that's based on like body weight and we have only gotten bigger. So like I, I would find it hard to believe that you could just take shots all day and you're like, yeah, I'm a moderate drinker, but okay.

0:33:43 Matt: And hard cider was not probably as powerful as it is now. I'm sure that the breakfast cider was probably closer to apple juice, but who knows? Who knows? It comes down to is the the government is saying, okay, fine, but alcohol is legal and regulated. And by definition, illegal drugs are illegal. That's the main thrust of their argument is that by definition if you're using an illegal drug, this law does not allow you to have a gun. And you can see the problem obviously when there are so many of us in states where you can walk down the street to the marijuana store and purchase something and never think about the fact that you would be lying on a firearms is a real problem for the law.

0:34:17 Matt: Kennedy Barrett raises a hypothetical which sounds incredibly personal. She actually even says it's personal. And I'm really wondering if this is the first time that a Supreme Court justice has admitted on the record in oral argument that she is guilty of a controlled substance offense. Check it out.

0:34:31 Thomas: Right. Let's for example. You say, I can't deal with these nine kids that we have unless I take my your ambient I'm not dangerous I totally normal like a lot of people hey uh for example let can borrow an ambient off me

0:37:06 Matt: Clip. There's another part where she says it's personal basically. And she is using the first person.

0:37:09 Thomas: No she did she said she to me I think yeah

0:37:12 Matt: Yeah, important. Yeah, that's right. That's right, yeah. And She said, and she used the first person. It really made me wonder. And again, whatever. I mean, I have insomnia.

0:37:16 Thomas: If my husband been yeah pretty

0:37:20 Matt: Pathetic. I just thought that was unusually personal for Supreme Court justice. Got the right idea in this line of questioning because she's saying clearly it's not the person that you're regulating, it's the drug. And you're saying it'd be fine for my husband to take it and have a gun, but not for me if I'm taking it and it's illegal for me to take It. And then she gets kind of down the line of, well, why aren't we saying things like PCP or cocaine are more likely to cause you to be violent? Right? We're not making any kind of distinction between types of drugs versus Ambien that puts you to sleep. Makes a lot of good points here. Guess here is that it's going to be a 6-3. That's kind of what I was getting from listening to this oral argument.

0:37:22 Thomas: Funny yeah really uh

0:37:57 Matt: Think they're going to find a way to come down in his favor because this is unconstitutional. It's incredibly broad and vague. And at this point punishing people potentially who are lawfully buying a substance. And again, there's nothing the Supreme Court can do about the fact that it's federally illegal in the states, but at least they can mitigate this. An interesting confluence of issues.

0:38:17 Thomas: Who's your 6 -3 do you think it's Kavanaugh Thomas and Alito basically or what is

0:38:21 Matt: No, I think Thomas Alito and I think Roberts was kind of leaning toward the government's argument here, from what I could tell, potentially. They're going to try to find a way. Because Rahimi that she had mentioned, that was a really interesting test as well, because that was, a couple of years ago, about restraining orders. And they they found that civil restraining orders, even though there's no real historical analog, but somebody who's, Rahimi in that case, I think we talked about it briefly at least, but he's a very dangerous man. I mean, he was like, there was no question, but there was not a corresponding criminal offense. So they were saying, how could this be a public safety thing? There's no equivalent. They found a way to get there and they reversed the Fifth Circuit in that one and found that the federal law, again, part of this same statute, that it was okay because they could refine the test. They decided maybe we can't just go with straight one-to-one analogies.

0:38:41 Thomas: He's awful yeah oh they did find a way to get there on that one why that's right. Yeah. Me let me make sure I remember the right one. So this was after. So what was the one that Thomas did that just sucked so much? OK, so this remember now this is the guy is horrible, horrible guy. Right. Did he did he kill something like his girlfriend or something or tried?

0:39:10 Matt: That was Bruin, and

0:39:19 Thomas: Yeah, he's very dangerous. Oh, and then he was like randomly shooting people in like parking lots or some crap. It was something random like that. Yeah. So basically the worst possible person that no one should want to have a gun. But the Fifth Circuit being the Fifth circuit was like, well, I think you can have a gun based on Thomas's decision. And the thing was at the time, I remember now it was wanted to be like, well, yeah, I mean, like I obviously I don't want him to have a gun, but that is how dumb your decision was. Was Clarence Thomas. Like I wouldn't want him to decide this the other way, but you should be forced to reconcile with the fact that your idiot decision would say that this awful person should be allowed to have a gun. But instead they're like, oh no, no, you don't understand special pleading. And I don'T, I'll be honest. I donT remember what that dumb logic was. How did they find a way to justify that?

0:39:18 Matt: Took some shots. Mm -hmm, that's right. Right, exactly. So they had to say that essentially, have to have something beyond 1791. We have to acknowledge that history did continue past 1791, so you don't have to a one -to -one analog from history, but a lot in this argument about whether the law is trapped in amber. And obviously, the law is not trapped in the amber, and that's always the problem with originalism is if you're considering everything as if it's 1791, it's very hard to look at hacking statutes, for example. The new test was that they have to determine whether it's like relevantly similar to laws that we generally permit

0:40:16 Thomas: Weird. Point, they might as well write. You just need to see if the conservatives think it should be good or not. That's all it is. Whose opinion is it? If it's relevant, how do you what are the steps to determining if it's relevantly similar? You know, it's just it's arbitrary. It's nonsense.

0:40:58 Matt: And Roberts, I'm just looking at the decision again, I'm remembering this. He wrote that it just confirms what common sense suggests. When When an individual poses a clear threat of violence to another, the threatening individual may be disarmed because that's what we have to find. That's common sense. When you got a guy like this, he shouldn't have a gun. Early American what guns the gun laws said.

0:41:16 Thomas: Why I didn't count on. OK. Okay. The made sense because the thing we want is common sense. I didn't think about that. Okay.

0:41:22 Matt: Right. Yeah. Just show us a bad enough guy and we'll say that guy shouldn't have a gun and then we're good. But yeah, he was saying that there were public safety limitations. And that that's what Barrett was getting into here. She's saying this doesn't appear to be a public safety thing. You're sort of making it a public safety thing um we don't really have the data to show but exactly and

0:41:28 Thomas: So frustrating. Like, do I look dangerous? I mean, says someone who did that.

0:41:45 Matt: It's just it's funny to hear the government talking about long -term effects of drug use because there are long - term effects to ambien and lunesta which I take uh are long term effects to you know obviously the painkillers and all kinds of other things you can be prescribed so it's not really the best way to look at it and just don't think that heavy marijuana users are associated with mass acts of violence generally but

0:41:54 Thomas: Everything. Yeah. Know. And those things are all relative too. Like I could do a whole lot of drugs before I'd be any more dangerous than my mom with a gun. You could be a hundred years old and buy a gun apparently but if I have like a beer or something then then you're gonna say I'm more dangerous yeah

0:42:22 Matt: And they're kind of probing down how far the schedules it goes. Obviously, they're looking at rescheduling to Schedule 3, as we've talked about, for marijuana from Schedule 1. Does that matter? Or does it matter that ketamine and PCP are chemically related, but obviously somebody on PCP with a gun is way more dangerous than somebody on ketamine? Nuances that are not in this law, which is just one of many reasons why I think it needs to go. I think the whole Hunter Biden thing really showed just how arbitrary this could be. And as we talked about at the time, of course, that was very selectively enforced against Hunter Biden.

0:42:51 Thomas: I was gonna say I was it the law per se or was it the application of it you probably both yeah

0:42:56 Matt: Much on notice can people really be about what this actually means? I think there are so many people, just based on the way the government was kind of presenting, the government saying essentially, this is the law, people should know it's the law. They should know if they're habitual or addicts, right? And the justices were very skeptical of that, as they should be, because are you supposed to know when the government would consider you to be a problem user, essentially? It's so relative.

0:43:18 Thomas: To that the people in the courtwill say shall not be infringed means shall notbe infringed end end of argument you if you take take that fundamentalist view on the second amendment, which a lot of people do a lot more than just like MAGA. You know, a lot, a little bit of people actually do take that. Uh, I think they've been convinced that these words mean something they don't, you and a lot of people are just like, okay, shall not be infringed means shall not be infringed. So you can't ever take anyone's gun away.

0:43:41 Matt: They do. Mean, the First Amendment basically says the same thing, and you still can't threaten to kill people. To have limits. And Thomas was the only dissenter in Rahimi. He basically said, I meant it the first time. There's no legal analog. Back. There's no restraining orders in 1791. So yeah, no, that's me.

0:43:50 Thomas: His decision just read, no, I am this dumb. That was the stupid thing that I said. I'm sticking to it. Don't try to fix how dumb I am.

0:44:03 Matt: Really interesting case and really interesting arguments. So a watch, and I'm sure we'll talk about the decision sometime in a few months here.

0:44:09 Thomas: Well, it was good that we talked about that and not the incredibly infuriating ways that the Supreme Court ruined our lives this week. So thanks for that. Maybe we'll maybe we'll get to those another time in of the redistricting stuff. And yeah, there's some there's some bad ones like it's from for mental health reasons yeah all matt and then you uh also wanted to tell us some stuff about todd blanche one of our favorite you love to hate him they

0:44:22 Matt: That sounds like a Jenessa topic. Leave the drugs to me.

0:44:33 Matt: Always. Always. On Wednesday, we can always talk about a Todd. There's just so much Todd talk. It's a new spinoff.

0:44:40 Thomas: Weirdest thing I've ever read go on oh

0:44:44 Matt: Got to check that episode out about Ian Maxwell and his obsession with people named Todd. Blanche, it turns out, holds quite a lot of cryptocurrency. Surprise. Eyes, it's worth probably something between $158 ,000 and $470 ,000. Very normal asset that could be, yeah, right, exactly, that fluctuates that much. This Democratic senators, including Elizabeth Warren, Sheldon Whitehouse, Richard Blumenthal, etc. asking him basically to explain himself. ProPublica reported on this. This letter was from January 28th, 2026, just wanted to catch up with it. Disclosed these holdings January 18th, just before Trump comes in. Agreed to divest those assets as soon as he could, because obviously the Department of Justice regulates cryptocurrency. He is the Deputy Attorney General of the Department Justice. He's confirmed March 5th. Of course, he'd been serving as the acting before that. And then on April 7th, he issued a memo scaling back DOJ's cryptocurrency enforcement.

0:44:54 Thomas: My god really guy is a tod so it's like two bitcoins hmm huh

0:45:40 Matt: So he's still holding a lot of cryptocurrency. Did not, as they point out here, and they're asking if he can prove that he did, but he didn't seek the advice he's supposed to do when there might be a conflict of interest, a financial interest. Know that there's going to be a Conflict of Interest, it's punishable by up to five years in prison if you're doing something like this. And he's, again, DOJ Department of Justice, which regulates and prosecutes cryptocurrency and has a cryptocurrency enforcement division or had one at least before he scaled it back. So that doesn't look very good. And then as they point out, it wasn't until the end of May, beginning of June that he sold or transferred his holdings to relatives. So he was holding this stuff all that time. There's a very solid period of time where he was scaling back enforcement and still holding on to the thing that they were regulating. So bad. And again, in a previous administration, not to beat this to death, but this would have been an actual scandal at the highest levels that

0:45:56 Thomas: Check yeah god this is a big one

0:46:31 Matt: You've got somebody, huge financial conflict of interest, but these are just kind of baked into government now in a lot of places. I just thought it was worth pointing out. This is what ProPublica is for. We'll link to the story, of course. Great story on this, going a little deeper on it.

0:46:40 Thomas: Not many people doing it better than pro publica we say it a lot but uh it's it's why I I subscribe to them. I pay them money, you know, because we need to do that. There's not enough good journalism. We're losing more all the time. So support the folks that are doing it.

0:46:48 Matt: Good. Yeah, I should do that too. Yeah. That's right. I we need to know what the people at the highest levels, it's easy to lose when we're invading countries every other week. Easy to lose sight of these things, but these are very important. The ProPublica story we talked about a couple of months ago with Kristi Noem giving a massive government contract through DHS to one of her staffers' husbands, right? Just straight up, no bid, just gave the money away, right,

0:47:15 Thomas: Yeah, I already forgot about that. That's how corrupt this freaking administration is.

0:47:17 Matt: That's why we got to keep talking about it.

0:47:18 Thomas: Yeah, crypto

0:47:19 Matt: I almost had to. Just a quick Todd Blanch note, and we'll move on now to our footnote.

0:47:23 Thomas: Continuing to make all the worst people way too wealthy since 20 whatever, 15. I don't know. It's been a while for right. Well we'll take our final break here and then get to your footnote I'm excited I love the footnote always fun all right man I say that and then you'll be like well this week for the footnote the worst thing that's ever happened

0:47:46 Matt: Now, this is a fun one. This is a Massachusetts RFK Jr. footnote I going to mildly betray my people.

0:47:47 Thomas: Good all right the Duncan one okay

0:47:55 Matt: Came to my attention through a very funny tweet this morning from the governor of Massachusetts. I'm talking upfront about Dunkin' Donuts, which is now of course called Dunkin'. I will always call it Dunkin Donuts and its place in Massachusetts and New England. It is a Massachusetts company. It has strong cultural ties. The coffee is... I feel like I shouldn't say that very loud.

0:48:15 Thomas: You're going to be killed those seagulls they're listening

0:48:18 Matt: Love tongues. They eat that stuff all the time.

0:48:21 Thomas: Listening well or and they're just spies I for the state I'm sure they're gonna take umbrage to that

0:48:26 Matt: I mean, I drink this well all the time. But this is a tweet this morning from Governor Maury Healey of Massachusetts of the classic speaking of gun rights. Molenlabe means come and take it, but this is the English version, come and take it.

0:48:33 Thomas: Uh it's what I'm gonna guess is some sort of play on what a flag or something come the star I guess is that part of yeah

0:48:46 Matt: Think that's a reference to the original flag, but yeah. So we've got this classic gun rights flag with an ice dunks cup on it. And I really appreciated this. This is her response to the Globe story this morning, in which RFK Jr. at a conference in Texas said that he's looking at dunks and Starbucks and might try to interfere with their sugar use. Got me wondering how this is possible, how the Health and Human Services could just restrict sugar in coffee. Will say personally, I think there is way too much sugar in a lot of coffees, in

0:48:48 Thomas: I mean I agree with it yeah there's way too much sugar in all of our drinks it's insane saying. Yeah.

0:49:18 Matt: Everything. Yes. I am generally pretty libertarian on a lot of things, generally speaking. I don't think the government should get involved. But this kind of regulation, there's no reason. And the one time I can remember that RFK Jr. has said something out loud that I pretty much agree with. He said, there is just no reason you should have 115 grams of sugar in the cup of coffee that a 15 -year -old is drinking, or anybody really, but obviously kids.

0:49:41 Thomas: Well, the key is that it's you know, it's one thing when it's a soda. I still think it's bad, but like at least it's like, OK, you figure that it's another one. It's coffee. People don't think of coffee as a milkshake, which is what it has become now.

0:49:53 Matt: Is more than a milkshake. I actually checked Shake Shack, which I love my Shake Shack. Most sugar in a Shake Shck milkshake, I was very surprised about this, is about 110 grams, which is a lot. You're supposed to have 25 to 38 grams of sugar a day, maybe. Just for reference, a regular can of Coke has 39 grams of sugar, which is about 10 teaspoons of sugar. If you can imagine putting 10 teaspoons spins of sugar, just dumping it into your drink. Up the Shake Shack nutritional chart, and that is the highest amount of sugar in a milkshake is 113. And he's saying there's 115 in one he was looking at. But the biggest one on the chart is the large triple mocha frozen coffee with 165 grams of sugar. That's so much. The lemonade has 74 grams of sugar. That's twice as much as a Coke.

0:50:37 Thomas: It's not even good. Lemonade is not worth that. That. Lemonade is like a golf course in Arizona. You have to put so much sugar to make it like work. Nature. It us lemons and we're supposed to not like them. That's what it, yeah, we're not supposed, yeah.

0:50:55 Matt: Is that the expression? Yeah, I think that's it.

0:50:57 Thomas: I know we were supposed to make lemonade. No, we should just be like, ugh, lemons. We can use them on some stuff, but don't make them like ridiculously sweet.

0:51:00 Matt: Hold on. I'm sorry. Hold on. Wanted So to actually talk about the legal part of this because in was on board more or less with Mayor Bloomberg's war on sugary drinks in New York City. I mean, again, I know it's kind of paternal and whatever to be stepping in and telling people how much sugar to to drink. But again, buy a product. Don't know. I just don't expect it's going to have that much sugar.

0:51:27 Matt: That's so much, 165 grams. Let's let that pass.

0:51:30 Thomas: Oh shit, they heard you. They heard you talk about Duncans.

0:51:34 Matt: I tried to keep it down.

0:51:36 Thomas: Well it was fun while it lasted everybody. The seagulls called the police.

0:51:43 Matt: I was very interested to know the legal authority that the secretary of HHS would have. And again, this is extra ironic, of course, because it's RFK Jr. who's trying to essentially remove regulations for everything, but he's saying he wants to regulate dunks and Starbucks, he mentioned also. Of course, my ears perked up with dunks. Interesting kind of legal backdrop for this is the GRAS, G -R -A -S exception, the Generally Recognized as Safe exception for food additives. Stuff here. I could probably do a whole episode on this. I kind of got interested in how it all works. But new food additives, you have to put out a report in which you explain the research that you have. There's like three different ways to get it through, but you have work with the FDA. And that's a good thing if you're going to introduce a new additive that was not previously in food. Is a grandfather clause, which I think is going to apply to sugar, because I'm pretty sure, and again, I wasn't around, but I think people were using sugar before 1958. anybody wants to fact check me on that. Substances used in food before January 1, 1958, there's a grandfather clause that as long as it was based on common experience and common use in food, that it's assumed to be generally safe. There's a bunch of stuff that I would think basics like sugar would be included. And I think he's just talking about sugar. He was saying specifically about the sugar in Dunk's drinks. The loophole he's trying to close, he's calling it a loophole, and I think he's right to take a look at this, is that more and more companies have been able to slide things through under the GRS exception, and he wants to close that loophole. Course, the FDA has been cut back significantly. They've already lost one in five of their workers just in the past term just for doing inspections. Don't know how he's going to do this, but he's put in a draft regulation to try to restrict the use of the generally recognized as safe exception. And he was threatening essentially to have Doug's and Starbucks have to file health and safety reports about their additives, about how much sugar they're adding to things. I don't see this as a legal starter. I don't really see this working. I think he's just talking. I actually wouldn't mind if somebody tried to regulate sugar a little bit. When I see numbers like that, it's really bad for you." No,

0:53:36 Thomas: No other way to get this in it just has to be through this there's no other avenue to that the government has the authority to regulate it I but if the food could be deemed unsafe in some way but I guess it's not how it works huh why

0:53:44 Matt: Because it's I right. There's really no regulatory basis for just saying there's too much sugar in your drinks. Have to re -examine. And if you subject them and you take away the GRS, and I just can't see how a court would allow this, but if you take the GRAS exception for just regular sugar, which I think from what I gather from his comments, I mean, I'll just read you what he said. He said, we're going to ask Dunkin' Donuts and Starbucks, show us the safety data that show it's okay for a teenage girl to drink an iced coffee with 115 grams of sugar in it. Kennedy told the applauding audience, I don't think they're going be able to do it.

0:54:21 Thomas: Did you say girl what when he's saying something that that you kind of agree with. He finds a way to be a creep and a weirdo.

0:54:26 Matt: He's got to be sexist.

0:54:27 Thomas: Yeah. Is it like, yeah, they just for their, for their figures, you know, they got to watch their figure. I don't know.

0:54:32 Matt: I think teenage boys also like iced coffee from what we've seen around here, but

0:54:35 Thomas: It's just, it's just weird. It's weird, Matt. He's a weird guy. He needs always weird.

0:54:41 Matt: Can't help it. I say I don't actually put sugar in my coffee ever, but occasionally at dunks I will, just because it is good that way. And it's kind of trash coffee to start with. You've got to sweeten it up a little bit.

0:54:49 Thomas: I know. I mean, I don't know. It doesn't, it doesn't make sense to me. I Like some, some cream, some half and half. I love that. But yeah.

0:54:56 Matt: Of my crankiest old man opinions that I like coffee -flavored coffee. What do you want?

0:54:59 Thomas: Yeah.

0:55:00 Matt: To look a little more into this GRAS exception. This is just a footnote for today, but I'm interested to see how this actually works and what could happen here. Initial take just from doing some background on this today is I don't think this is going to work. I don't this is how it can be done. But I think maybe it wouldn't be the worst idea for Congress to set, I don't know, this isn't my field, but maybe set some kind of baseline limits for can put in drinks just as a starting point.

0:55:25 Thomas: Just as a, like, I don't, again, I'm not the lawyer, but just as a deceptive practice of some kind, I feel like there's got to be something there. Like, too much. It's too many people. It's not good for us. It's really bad.

0:55:31 Matt: Remember that lemonade that was giving people heart attacks because it had too much caffeine? Right that kind of thing right how would you know how

0:55:41 Thomas: Well, I also is caffeine on the list of things that they can do.

0:55:45 Matt: Had to be another one that's grandfathered I would think but

0:55:47 Thomas: Then how'd they get around that? Like actually killing people. Yeah it's poison

0:55:51 Matt: Yeah I don't know about that one but wondered about that too same thing like you're saying it's a separate marketing because you look at the actual caffeine content of some of these drinks I'm very sensitive caffeine I love it I drink a lot of coffee but I try to be careful because it does keep me up look at some of those things where it's like two or three servings of these big cans that are just loaded with caffeine you not trying to spoil anybody's fun, but

0:56:09 Thomas: Well you said it a moment ago I think we should have a congress and I was going to stop you there I think мы should have a congress and I mean I think we should look again if we're ever going to turn this thing around which we're you know we're probably not but we got to try if we ever going to turn this country around we need a real congress filled with real people that does stuff we need to get rid of the filibuster we need pass laws again and talking about this Jenessa on Monday's episode. We're going to talk about the major questions doctrine, which is really interesting, fascinating, deep dive. The court has relied on the fact, it's one of the many ways the court have effed us, is they know that Congress doesn't exist anymore. So all these ways they're screwing us over, like whether it's Chevron deference, or whether it's these major questions thing, they actually are all things that if you had a Congress could be fixed in two seconds. You know, correct me if I'm wrong, Matt, feel free to correct me if I're wrong, but they effective because they know there's no Congress anymore. Because

0:57:04 Matt: Right.

0:57:04 Thomas: If Congress was alive to see this, they could just say, oh no, we meant this and then pass a new law, amend the law, you to just fix it. But have a Congress again. Make Congress existent again yeah yeah it's

0:57:17 Matt: Is radical stuff. I don't know, radical, radical stuff, but there is also the point of the administrative state sort of filling in the gaps when Congress passes a law that sets limits on sugary drinks, and then you have to have an agency that actually oversees that and figures out regulations for how this is actually going to work and what the limits are for different kinds of products. All that stuff makes sense. But of course, as you said, under Chevron, courts don't have to defer to that necessarily anymore if it's ambiguous about just how it all works. So yeah, kind of a strange in -between here where I do want to see some kind of regulation. I don t think he can do the thing he's saying that he wants to do. I think this is kind a toss -off comment, but of course it made waves here in Massachusetts and I had to talk about it.

0:57:51 Thomas: All well Matt uh we'll enjoy recording the next episode from Duncan prison uh from seagull prison I don't know because you've offended your people I'm told but so much for The Breakdown and The Footnote as always and thanks for listening everyone one. Share the show with a friend if you can. We'd love it. And we'll see you on Monday for a really cool deep dive on the major questions doctrine.

0:58:14 Matt: I've been waiting for this one.

0:58:16 Thomas: Fun. See you then.

0:58:17 Matt: See you next time.

0:58:21 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon .com slash law. Contact us through Patreon or openarguments at gmail .com. Make sure to follow our blue sky at OpenArgs. But most of all, please share