How an obscure legal theory shaped the immunity decision and Trump's second term

Summary

Consider This from NPR: Supreme Consequences Episode: How an Obscure Legal Theory Shaped the Immunity Decision and Trump's Second Term Release Date: March 23, 2025

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Introduction

In the inaugural episode of NPR's new series, Supreme Consequences, host Scott Detrow delves into how recent U.S. Supreme Court rulings, particularly the controversial decision in Trump v. United States, have profoundly impacted the structure of the federal government and the daily lives of federal employees. This episode examines the intersection of legal theories, executive power, and political maneuvers during President Donald Trump's second term.

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President Trump's Reshaping of the Federal Government

Immediately upon returning to office, President Trump embarked on a mission to overhaul the federal government, aiming to "shrink the size and scope of the federal workforce and eliminate programs he doesn't like" (Scott Detrow, 00:44). This aggressive approach included:

• Executive Orders: Trump issued approximately 200 orders, directing agencies to implement extensive changes swiftly (Amanda Hollis Bruski, 00:23; Kim Whaley, 00:27; Mike Davis, 00:29).

• Mandating In-Person Work: A new memo required federal employees to return to full-time, in-person work immediately (Scott Detrow, 00:32).

• Mass Firings: An anonymous USDA employee revealed plans for large-scale firings, reflecting Trump's intent to remove "unnecessary, incompetent and corrupt bureaucrats" (Scott Detrow, 00:41; Charles Cooper, 00:54).

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Impact on Federal Employees

The administration's actions led to significant turmoil among federal workers:

• Testimony of an Anonymous USDA Employee:

  • Sudden Terminations: An employee from the USDA, who had been involved in critical programs supporting maternal and infant health, was abruptly fired with a generic termination notice citing "poor performance" (Anonymous USDA Employee, 01:37; Scott Detrow, 02:32).

  • Emotional and Financial Strain: The employee expressed distress over losing her job, concerns about her family's financial stability, and the potential halt of vital programs like child nutrition and food security (Anonymous USDA Employee, 02:14; 04:06; Kim Whaley, 04:31).

• Legal Battles and Uncertainty:

  • Court Orders: Federal judges ordered the reinstatement of thousands of employees, including those from USDA, initiating a contentious legal battle with the Trump administration (Scott Detrow, 02:01; 02:32).

  • State of Limbo: Employees face uncertainty as their reinstatements await the outcome of ongoing appeals, leaving their job statuses hanging in balance (Scott Detrow, 04:31).

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The Unitary Executive Theory and Supreme Court Ruling

At the core of Trump's administration is the unitary executive theory, an obscure legal doctrine asserting that the president possesses broad, nearly unchecked executive power. This theory was pivotal in the Supreme Court's decision in Trump v. United States:

• Supreme Court Decision:

  • Immunity Ruling: In a 6-3 decision, the Court granted former presidents absolute immunity from prosecution for actions taken within their official duties, effectively placing the president above legal accountability (Scott Detrow, 06:47; Kim Whaley, 15:02).

  • Implications: The ruling implied that executive actions could not be constrained by Congress or the judiciary, fundamentally altering the balance of power (Kim Whaley, 17:15).

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Historical Roots of the Unitary Executive Theory

The unitary executive theory traces its origins to the Reagan administration, where it was developed as a response to perceived overreach following the Watergate scandal:

• Reagan Administration's Influence:

  • Formation of the Theory: Young attorneys in the Reagan Justice Department felt that post-Watergate reforms excessively limited presidential power. They sought to restore "presidential authority to its true scope under Article 2" (Amanda Hollis Bruski, 08:02; Charles Cooper, 09:11; Charles Cooper, 09:27).

  • Federalist Society's Role: Founded in the 1980s by conservative law students, the Federalist Society became instrumental in promoting the unitary executive theory, advocating for limited government and strengthened executive powers (Amanda Hollis Bruski, 10:02; Scott Detrow, 06:47).

• Judicial Pipeline:

  • Court Appointments: Through decades of strategic nominations, the Federalist Society influenced the federal judiciary, ensuring that judges sympathetic to the unitary executive theory occupy key positions, including the Supreme Court (Charles Cooper, 09:48; Mike Davis, 13:06).

  • Key Figures: Notable justices like Neil Gorsuch and Brett Kavanaugh, who were pivotal in advancing conservative legal philosophies, exemplify the Society's long-term impact (Mike Davis, 13:09; Scott Detrow, 14:00).

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The 2024 Immunity Case and Its Aftermath

The Trump v. United States immunity case marked a significant expansion of presidential power:

• Court's Rationale: The Supreme Court reasoned that the president's actions, even if potentially illegal, are protected under the unitary executive theory, effectively removing legal consequences for official acts (Kim Whaley, 15:02; Kim Whaley, 17:15).

• Reactions and Critiques:

  • Justice Alito's Dissent: The ruling was met with sharp criticism from dissenting justices, highlighting concerns over unchecked executive authority (Kim Whaley, 18:18).

  • Impact on Other Branches: Legal experts warn that this decision undermines the system of checks and balances, granting the executive branch unprecedented autonomy (Kim Whaley, 19:59).

• Ongoing Legal Challenges: Multiple lawsuits challenge Trump's authority to dismiss federal employees, questioning the limits of executive power and the judiciary's role in reining it in (Scott Detrow, 18:43).

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Expert Analysis: Constitutional Law Perspectives

Kim Whaley, a constitutional law professor, provides insight into the broader ramifications of the immunity decision:

• Undermining Checks and Balances:

  • Separation of Powers: The ruling disrupts the traditional balance, positioning the president above Congress, the judiciary, and even jury verdicts (Kim Whaley, 17:15; 19:59).

  • Constitutional Crisis: Whaley likens the decision to enabling a "machine hiding in the bushes" where presidents can act without fear of legal repercussions (Kim Whaley, 20:37; 21:18).

• Future Implications:

  • Judicial Predictions: Whaley anticipates that future Supreme Court decisions will continue to erode constraints on presidential power, further entrenching the unitary executive theory (Kim Whaley, 18:29; Kim Whaley, 18:43).

  • Congressional Inaction: She criticizes Congress for failing to uphold its constitutional responsibilities, thereby ceding power to the executive branch (Kim Whaley, 19:59).

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Conclusion: A New Presidency and the Erosion of Democracy

The episode concludes by emphasizing the transformative impact of the Trump v. United States decision on American governance:

• Empowered Executive: The Supreme Court's endorsement of the unitary executive theory has effectively granted the president carte blanche to exercise expansive authority without judicial or legislative checks (Kim Whaley, 17:15; 20:48).

• Democratic Concerns: This shift threatens the foundational principles of democracy, where no single branch should hold disproportionate power (Kim Whaley, 19:59).

• Ongoing Struggles: As legal battles continue and the administration pushes the boundaries of executive power, the future of American governance remains uncertain, highlighting the critical role of the judiciary in maintaining balance (Kim Whaley, 18:29).

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Notable Quotes:

• "We're removing all of the unnecessary, incompetent and corrupt bureaucrats from the federal workforce."
  — Charles Cooper, 00:54

• "It is a power that was expanded by the Supreme Court last summer through its ruling in Trump v. United States, the immunity case."
  — Scott Detrow, 06:47

• "This is so much bigger than Donald Trump. This is so much bigger than one presidency. This is about the presidency."
  — Mike Davis, 13:06

• "The court essentially put the president above the Constitution, above the rule of law, above Congress, above the judiciary, above juries, above everything."
  — Kim Whaley, 17:15

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About the Hosts and Contributors

• Scott Detrow: Host of Consider This from NPR and the Supreme Consequences series.
• Amanda Hollis Bruski: Politics professor at Pomona College, specializing in the Supreme Court.
• Kim Whaley: Constitutional law professor with experience in high-profile investigations.
• Charles Cooper: Deputy Assistant Attorney General from the Reagan administration.
• Mike Davis: Conservative legal activist and former chief counsel for judicial nominations under Senator Chuck Grassley.

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Production Credits

This episode was produced by Tyler Bartlem, edited by Tin Beat Irmias with assistance from Courtney Dorning, Christian Def Calimore, and Eric McDaniel. Audio engineering was handled by Neil Tivolt, and Sammy Yenigun served as the executive producer.

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Note: This summary excludes advertisements, intros, outros, and non-content sections to focus solely on the episode's substantive discussions and analyses.

Transcript

[Scott Detrow]

It's Consider this from npr. I'm Scott Detrow. And today we have something a little different for you. It's the first episode of a new series we are calling Supreme Consequences, where we explore how recent rulings by the U.S. supreme Court Shape people's everyday lives. As soon as he returned to office, President Trump began to remake the federal government swiftly, aggressively, in his image.

[Amanda Hollis Bruski]

The president has been talking about his day one actions, and it's believed 200.

[Kim Whaley]

Orders will be executed.

[Mike Davis]

A requirement that federal workers return to.

[Scott Detrow]

Full time, in person work immediately. The administration plans to issue a new memo in the coming days directing agencies.

[Anonymous USDA Employee]

To prepare for large scale firings.

[Scott Detrow]

Trump has made it clear that one of the key goals of his second term is to shrink the size and scope of the federal workforce and eliminate programs he doesn't like.

[Charles Cooper]

We're removing all of the unnecessary, incompetent and corrupt bureaucrats from the federal workforce.

[Scott Detrow]

Tens of thousands of federal government employees have already been fired.

[Anonymous USDA Employee]

Thursday is when things started coming to a halt. We started pausing meetings. There was a palpable tension in the air, and we started receiving emails from our new acting administrator, that is a.

[Scott Detrow]

Federal employee who was fired in the early days of Trump's second term. She's with the United States Department of Agriculture, USDA and spoke to us on the condition of anonymity because she fears retribution in the workplace. For the past couple of months, she was doing a fellowship program that had her working at the United States Agency for International Development, or usaid.

[Anonymous USDA Employee]

I logged on and I got an email which was just a copy and paste template that they sent to probationary employees, telling me that because of my, quote, poor performance, I was determined unfit for the civil service and that's why I was being terminated. My supervisors did not know. I had to be the one to notify them that I was no longer under their employment.

[Scott Detrow]

And to her, that felt strange. She says she had received glowing performance reviews. She felt her work was important. She was doing things like helping new mothers and infants with nutrition and food security in developing countries.

[Anonymous USDA Employee]

The priorities that this office works on is the first 1000 days of life. So when a woman finds out she's pregnant, all the way up until a child is 2 years old, the US government funds programs that do breastfeeding, promotion and support for moms, maternal care and newborn care.

[Scott Detrow]

Soon, nearly the entire staff had either been put on paid administrative leave or fired. And the majority of the department's programs ended.

[Anonymous USDA Employee]

This is soft diplomacy, but it's also lifesaving critical care and it is democracy and peace relationships.

[Scott Detrow]

The loss, she says, is hard to calculate.

[Anonymous USDA Employee]

It's devastating. We worked on child wasting, for example, is when a child has a low weight for their height. There are kids who will no longer receive treatment, who will slide back into wasting. There are families who really, really relied on this care.

[Scott Detrow]

The choice to unilaterally dissolve a federal agency, one established by Congress, was a shock to Washington. But the concept at the heart of it, that the president has broad authority to act unilaterally without consequence, that the executive branch should reflect his priorities, stems from one the unitary executive theory. It is an idea at the heart of a recent landmark Supreme Court ruling, Trump versus the United States, the immunity decision. And it is an idea that we are going to explore on this episode of Supreme Consequences, a series about the real world impacts the Supreme Court's rulings. One consequence for many federal workers career stability.

[Anonymous USDA Employee]

Do I need to just make money where I can and hope for the best? But it would be sad to give up my version of what my career path was. But at this point it seems like we just need the money. I mean, who cares about a dream.

[Scott Detrow]

At this point and her family's well being?

[Anonymous USDA Employee]

I have an 18 month old little boy. He's enrolled in a great daycare and I don't think we're going to be able to afford to keep him there anymore. And my son has to get a procedure and I'm already really stressed about the copay. We have to pay for that. I have no idea how we're going to pay that. I'm already looking at the bills and it makes me sweat. I, I don't know.

[Scott Detrow]

In the past month, two federal judges have ordered federal agencies to reinstate 3 thousands of federal employees, including those at USDA. Decisions the Trump administration strongly disagrees with and is appealing. And that has led to a stressful state of limbo. For the time being, they have jobs, but only until the appeals process plays out. It's not clear to the employee we talk to or others whether this is permanent or just another few weeks. The legal back and forth center on questions about the limits of President Trump's power, power that the Trump administration is testing on a number of fronts. After the break, had the unitary executive theory made its way from an idea in the Reagan administration all the way up through the courts. We'll be right back.

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[Scott Detrow]

Sell your car the convenient way, enter your license plate or vin, answer a few questions, and get a real offer in seconds. Go to Carvana.com today President Trump's drastic moves to reshape the US government stem from a core idea that the executive branch should enjoy broad, sweeping power. It is a power that was expanded by the Supreme Court last summer through its ruling in Trump v. United States, the immunity case.

[Anonymous USDA Employee]

In a 6 to 3 opinion, the Supreme Court ruled the former presidents have absolute immunity from prosecution for official acts related to their core constitutional powers.

[Scott Detrow]

Orders the Navy Seal Team 6 to.

[Kim Whaley]

Assassinate a political rival. Immune.

[Scott Detrow]

This decision was written as if America has never had a corrupt president organizes.

[Kim Whaley]

A military coup to hold on to power.

[NPR Sponsor]

Immune.

[Scott Detrow]

This is one of the worst opinions.

[Mike Davis]

In American history from the Supreme Court.

[Scott Detrow]

Immune.

[NPR Sponsor]

Immune Immune Immune.

[Scott Detrow]

The decision came down to a key question that has big implications on topics far beyond the criminal case. At the heart of it, when a president does something that is potentially illegal while executing his duties, who or what can regulate his actions? Who can hold him accountable? These questions have come up a lot in the first weeks of Trump's second term in different contexts, from dismantling agencies established by Congress to deporting migrants without due process. President Trump is asserting his power, and one idea that seems to be motivating his actions is the unitary executive theory. But where does this idea come from and how does it relate to the Supreme Court?

[Amanda Hollis Bruski]

Many of the judges currently on the Roberts Court who embrace the unitary executive theory, which is a muscular understanding of A President's Article 2 powers. Part of it is how we understand the president's powers when it comes to war emergency foreign policy.

[Scott Detrow]

That's Amanda Hollis Bruski. She's a politics professor at Pomona College, where she teaches classes about the Supreme Court. The theory started to gain traction and developed in the Reagan administration among a group of young attorneys in the Justice Department who thought the presidency had recently been weakened.

[Amanda Hollis Bruski]

The Reagan Justice Department had a deep sense that since Watergate and the post Watergate reforms that sought to really rein in and control an imperial president, right, to prevent another Watergate, to prevent another president from abusing the trappings of their office, to prevent corruption in government, that the Congress that was elected after Nixon resigned went too far.

[Charles Cooper]

The Reagan administration were quite animated about efforts to restore presidential authority to its true scope under Article 2.

[Scott Detrow]

Charles Cooper was Deputy Assistant Attorney General in the Reagan administration.

[Charles Cooper]

And that's where the concept of the unitary executive kind of was born. There is only one president, one chief executive, and that chief executive, under the clear Command of Article 2, possesses all of the executive power of the federal government.

[Scott Detrow]

So how did this idea that was discussed among young government lawyers make its way to the federal courts and eventually to the Supreme Court? Hollis Bruski points to one major factor, the Federalist Society. She wrote the book Ideas with the Federalist Society and the Conservative Counter Revolution. It documents the group's founding by a group of conservative law students in the 1980s.

[Amanda Hollis Bruski]

As the founders of the Federal Society were going through their coursework, they were looking for the ideas that had excited them, that were becoming ascendant on a national level. So ideas like limited government, free market capitalism, anti regulation, and those were largely absent in their conversations in law school. And so they got together and, and said, how do we bring these perspectives into our law schools?

[Scott Detrow]

Hollis Bruski spoke with many of the Federal Society's founders and explains how they were thinking about growing their influence.

[Amanda Hollis Bruski]

It's the network. It was important that the founders recognized within the law. Specifically, if you want to build and strengthen conservatism in the law, you needed the law schools, yes, but you also then needed folks who were active in public interest law. You need folks who were active in positions of power within the executive branch. And finally, of course, as we know, you need the judges.

[Scott Detrow]

Judges, a key part of shaping American law. Cooper, who worked in Reagan's Justice Department, has been active in the Federalist Society for years.

[Charles Cooper]

The Reagan administration was quite devoted to trying to identify potential nominees to the bench who adhered to the kind of conservative legal philosophy that the Federalist Society was founded to develop, to debate, to advance. And it has become extremely successful.

[Scott Detrow]

And that success has continued over many Republican administrations, creating what some call a pipeline to the federal bench, especially to.

[Charles Cooper]

The Supreme Court Chief Justice Roberts. He was my colleague. He was just down the hall from me. And tonight I'm honored to announce that I am nominating him to serve as Associate justice of the Supreme Court. Justice Alito was in the Reagan administration. I'm pleased to announce my nomination of Judge Samuel A. Alito Jr. Justice Thomas, couple of important posts in the Reagan administration.

[Scott Detrow]

Judge Clarence Thomas to serve as Associate justice of the United States Supreme Court.

[Charles Cooper]

Other justices in different later administrations, but still executive branch officials. Kavanaugh, Judge Brett Kavanaugh. Gorsuch, Judge Neil Gorsuch. There's no question that it has become a very effective organization for the promoting of the tenants of a conservative legal philosophy that conservative administrations understandably are interested in seeing ascend into prominence on the federal bench.

[Scott Detrow]

But Cooper says the Trump presidency took it to another level.

[Charles Cooper]

I believe it was unprecedented that a president actually published a list of names that the president would likely consider for appointments to the Supreme Court.

[Scott Detrow]

With President Trump in the White House and Republicans in control of the Senate, the conditions in 2017 were ripe for the unitary executive theory to go mainstream.

[Mike Davis]

This is so much bigger than Donald Trump. This is so much bigger than one presidency. This is about the presidency.

[Scott Detrow]

That's Mike Davis, a conservative legal activist who once worked as chief counsel for nominations for Senator Chuck Grassley, who chaired the powerful Senate Judiciary Committee. Davis oversaw the floor votes for hundreds of judicial nominees, nominees that reshaped the federal bench that includes now Supreme Court Justice Neil Gorsuch.

[Mike Davis]

Justice Neil Gorsuch is a very close friend and a mentor.

[Scott Detrow]

Gorsuch, who was Trump's first Supreme Court pick, wasn't even on that initial list from the campaign of potential nominations, which is something Davis quickly worked to fix.

[Mike Davis]

And I got him on the second list. And I did it by basically beat down every door I could to make sure he was put on that list and then make sure he was picked and make sure he was confirmed and set up.

[Scott Detrow]

Davis now runs the Article 3 project, a conservative legal group that is trying to install what he calls constitutionalist judges on the federal bench. One issue he cares a lot about, a powerful chief executive.

[Mike Davis]

We can't have a problem. President of the United States worried that what he does as the President of the United States in his official capacity is going to end up having him indicted and thrown in prison by his successor. That would destroy the presidency and therefore destroy our country.

[Scott Detrow]

That argument was a key part of the court's ruling. But what about the other branches of government? Where do they fit in? When a president could do whatever he or she wants to as a leader and not face consequences.

[Kim Whaley]

In that opinion, it said, it doesn't matter if Congress passes laws that constitute crimes. It doesn't matter if a prosecutor would find probable cause to indict a former president. It doesn't matter if the law would be adjudicated in a way and if a jury were to find beyond a reasonable doubt that a former president committed crimes, none of that matters because the Constitution impliedly, impliedly elevates the president above all of that. That is essentially the unitary executive theory in a Supreme Court decision.

[Scott Detrow]

Coming up, a constitutional law professor walks us through why the immunity decision changed the structure of our government and why it matters.

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[Scott Detrow]

This message comes from Insperity, providing HR services and technology from payroll benefits and HR compliance to talent development. Learn [e-mail] hrmatters okay, so to catch up, we have an influential group, the Federalist Society, whose members developed and advocated the idea of a powerful chief executive. And a big part of that judicial worldview is something called the unitary executive theory. The idea the president has way more power, way more influence over the executive branch than has previously been utilized. The group helped nominate judges onto the federal bench who, over decades of rulings, have made this theory more and more of a central accepted legal argument. The idea came into focus after President Trump's 2024 immunity case.

[Kim Whaley]

That was an astonishing decision. I think it's it is a turning point not only in Supreme Court law on the separation of powers, but also really in the trajectory of the country and democracy. I don't think it can be overstated how transformative it was because the court essentially put the president above the Constitution, above the rule of law, above Congress, above the judiciary, above juries, above everything.

[Scott Detrow]

That's Kim Whaley. She is a constitutional law professor and earlier in her career she worked for independent counsel Kenneth Starr as he investigated Bill Clinton's presidency. I asked Whaley if she sees a connection between the immunity decision and President Trump's actions. Actions like closing USAID and firing thousands of federal employees.

[Kim Whaley]

Yes, that's a direct line to the unitary executive theory. I mean, Bear in mind, Article 2 says the President can appoint executive branch officials, hire them. It does not say he can remove them for any reason. The Constitution's silent on that.

[Scott Detrow]

Right now, there are a number of lawsuits challenging the legality of Trump's ability to fire federal employees, cases that may ultimately be decided by the Supreme Court. And Whaley has a prediction.

[Kim Whaley]

I think that the unitary executive theory is probably going to, I'm predicting here, give rise to a majority opinion that strikes down restraints on the president's ability to fire executive branch officials.

[Scott Detrow]

But early on, some of the administration's moves have been successfully challenged, at least initially. Already, five justices ruled that the Trump administration must pay $2 billion to USAID contractors for work they've already completed.

[Kim Whaley]

So that was not a good decision for the expansion of executive power for Donald Trump. But there were four dissenting justices, and Justice Alito wrote a very fiery dissent. So I think these are going to be close, nail biter decisions. Whether the Supreme Court will decide that Congress's design of federal agencies is beside the point, that not only can the president just demolish them as he sees fit, but can anoint a private party to do that with no ostensible legal or constitutional authority. And I say that because the courts can't really even figure out what Elon Musk's role is.

[Scott Detrow]

It's an open question on how the court will approach these matters. But in the meantime, Whaley says the immunity decision has emboldened Trump to push the envelope on what the executive branch can do. And in doing so, it's taken power from other branches of government since Donald.

[Kim Whaley]

Trump took office a second time in January 20th. This is just a massive dismantling of a delicately created system of checks and balances, where Congress does its job, passes laws that should be enforced and respected by the executive branch. Congress creates agencies, gives them their power, and that power is restrained by the law. And if you want more power in the president, then you have to go back to Congress. That's what's breaking down. And it's not entirely the Supreme Court's fault. It's also the fault of the United States Congress, which is not insisting on its own constitutional prerogative.

[Scott Detrow]

Whaley says the immunity ruling gives the president carte blanche to do what he wants while in office, and that ushers in a new type of American presidency.

[Kim Whaley]

Laws are only so good as they're enforced because it's the threat of enforcement that makes people comply. If we're not worried about getting a ticket, most of us will go 10 miles over the speed limit. Once there's a machine hiding in the bushes and we get the ticket in the mail, we'll slow down. And Congress isn't handing out any tickets for speeding for Donald Trump. And the Supreme Court has kneecapped, to a large degree at least, the criminal justice system from at any point handing out those tickets for speeding.

[Scott Detrow]

Welcome to Supreme Consequences, a series about how the Supreme Court's decisions affect people's lives. This episode was produced by Tyler Bartlem. It was edited by Tin Beat Irmias with help from Courtney Dorning, Christian Def Calimore and Eric McDaniel. Audio engineering by Neil Tivolt. Our executive producer is Sammy Yenigun. It's Consider this from npr. I'm Scott Detrow.

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