Main Justice – "Upending the Law"

MSNBC • Hosted by Andrew Weissmann & Mary McCord
September 10, 2025

Episode Overview

In this episode, hosts Andrew Weissmann and Mary McCord, both former top Department of Justice officials, delve into the latest legal controversies arising from the Trump administration's return to power. They focus on four central legal developments:

• The Fifth Circuit’s limiting interpretation of the Alien Enemies Act.
• The legality and precedent of a U.S. military strike on a boat, resulting in 11 deaths.
• The Supreme Court’s “shadow docket” order allowing ICE to resume certain raids in Los Angeles.
• A Harvard legal victory over the administration’s termination of federal grants, raising First Amendment concerns.
• A discussion about the use and legal status of the National Guard in D.C.

With both expert analysis and exasperation, the hosts illuminate how current actions are pushing legal and constitutional boundaries, normalizing extraordinary government conduct, and placing American legal norms in jeopardy.

Key Discussion Points & Analysis

1. Fifth Circuit Ruling on Alien Enemies Act (06:14–14:20)

• Case Summary: The Fifth Circuit, typically a conservative court, ruled 2–1 against the administration's interpretation of the Alien Enemies Act for removing alleged "Trend" gang members, holding that “invasion” or “predatory incursion” as cited by the president requires a military action by a foreign government, which was not present here.
• Majority Reasoning: Interpreted terminology from the statute using originalist methods (dictionaries and constitutional clauses from 1798), concluding that the Act applies strictly to military actions, not criminal organizations or drug cartels.
  • Mary McCord (09:45): “Invasion is an act of war involving entry into this country by a military force directed by another nation with hostile intent.”
• Dissent’s View: Asserted that the president has broad authority, and individuals should only be able to challenge if they are citizens of the targeted foreign country – not whether they are actual gang members.
• Due Process Angle: Court found that providing seven days’ notice of proceedings was “close to comparable” and generally sufficient, though one judge believed 21 days was needed.

Notable Quote:

“The government has been taking these sort of very, very outlandish positions about what happens to extracting residents of our country.”
— Andrew Weissmann (14:20)

2. Legality of U.S. Military Strike on Foreign Boat (15:34–23:44)

• Incident: U.S. military conducted a presidentially-ordered strike on a boat, killing all 11 people onboard, who were alleged drug cartel members. The administration argued it was an action against a “designated terrorist organization.”
• Legal Analysis:
  • Domestic Law: No clear congressional or statutory authority for such a strike; traditionally, something like the Authorization for Use of Military Force (AUMF) is required, which is not invoked here.
  • International Law: Lacks justification; self-defense seldom applies to suspected drug traffickers unless there’s evidence of an imminent threat.
  • Precedent: First-ever drug cartels designated as foreign terrorist organizations, but McCord warns, “Being a member of a foreign terrorist organization does not under U.S. law allow the government to kill you. Full stop.” (16:56)
• Normalization & Public Response: The hosts note the potential slide toward normalizing extra-judicial killings, with public acquiescence to such acts under the guise of combating “bad people” or “terrorists,” and the risk of “slippery slopes” in justifying lethal force.

Notable Quotes:

“Aren't we normalizing killing?... Why isn't this just a flat out case of murder?”
— Andrew Weissmann (19:56)
“To start saying we can just kill people to thwart the drug trade when there's no congressional authority for it… we are really on a slippery slope here.”
— Mary McCord (21:27)

3. Supreme Court "Shadow Docket" on ICE Raids in Los Angeles (24:13–40:36)

• Background: Previous court rulings limited ICE from stopping individuals in LA solely based on four factors: appearance of race/ethnicity, speaking Spanish or accented English, being found at day labor locations, and doing certain jobs.
• Supreme Court Action: 6–3 (likely) decision to stay the lower court’s block, with no majority opinion—just Kavanaugh’s concurrence and a dissent by Sotomayor, Kagan, and Jackson.
• Key Issues:
  • Fourth Amendment: The legal basis required "reasonable articulable suspicion" for stops, and the Court below had found none of the four factors were enough, solo or combined.
  • Standing: Kavanaugh argues plaintiffs aren’t likely to experience future harm (Lyons precedent), but the hosts point to evidence and factual records of ongoing tactics.
  • Absence of Explanation: The majority provided no reasoning, leaving lower courts and affected communities in legal limbo.
• Dissent Focus: Warned against legitimizing indiscriminate stops based on ethnicity or language, making the country dangerous for anyone fitting those broad descriptors.

Notable Quotes:

“If the officers learn that the individual they stopped is a US Citizen or otherwise lawfully in the United States, they promptly let the individual go.”
— Justice Kavanaugh (35:31, quoted and critiqued by Weissmann)
“We should not have to live in a country where the government can seize anyone who looks Latino, speaks Spanish, and appears to work at a low wage job.”
— Mary McCord, paraphrasing Sotomayor’s dissent (36:46)

4. Use & Legal Status of the National Guard in D.C. (41:49–48:28)

• Issue: D.C. National Guard and units from 7 states mobilized, some reportedly deputized by U.S. Marshals, to perform law enforcement roles.
• Legal Framework: Debate over their true status—Title 10 (Federalized, banned from law enforcement by Posse Comitatus Act) vs. Title 32 (State-controlled, can perform law enforcement).
• D.C. AG’s Challenge: Threefold legal challenge:
  1. Deployment for law enforcement without mayoral consent violates local Home Rule.
  2. Federal command undermines statutory requirements for National Guard status.
  3. Deputizing under federal authority for law enforcement violates Posse Comitatus.
• Risks: Potential for further legal confusion, setting dangerous precedents for military involvement in domestic affairs.

Notable Quote:

“The idea that as a policy matter, you're having the US Military function domestically based on, in my view, a ruse, is so incredibly dangerous in terms of authoritarianism.”
— Andrew Weissmann (48:28)

5. Harvard’s Big Win Against Federal Grant Termination (50:22–58:06)

• Case Summary: Harvard won a district court ruling after the administration cut off billions in research grants as retaliation for the university’s supposed failure to police antisemitism to the government’s satisfaction. The court found this to be a clear First Amendment violation.
• Key Findings:
  • Retaliatory action by the government aimed at forcing Harvard to conform to its preferred campus culture.
  • Grants served critical research in medicine, science, and national security.
  • Judge called out the administration’s “fig leaf” justification as pretext for retribution.
• Wider Implications: The danger of using federal power to punish dissenting institutions, undermining the U.S.'s competitive lead in research and innovation.
• Comparative Analysis: Contrasts MAGA legal outrage over imagined First Amendment harms with tangible government retribution here.

Notable Quotes:

“This is what the court said you cannot do. Again, that idea that there's no bottom to what you would do here in the mechanism… this is what saves lives.”
— Andrew Weissmann (53:35)
“The district court made a real point of saying government, when you're telling us you were doing all these things because of your concerns about antisemitism, you were so obvious about your retaliation.”
— Mary McCord (57:14)

6. Footnote 9 & Judicial Confusion from the Supreme Court (58:06–62:29)

• Judicial Frustration: Judge Burrows, in a notable footnote, openly criticized the Supreme Court’s lack of clarity and the unwarranted scolding of lower courts struggling to interpret confusing or unexplained emergency (“shadow docket”) orders.
• Hosts’ Response: Wholehearted endorsement of the judge’s position, noting the importance of transparency and guidance from the nation’s highest court as essential for rule of law.

Notable Quote:

“Given this, however, the Court respectfully submits that it is unhelpful and unnecessary to criticize district courts for defying the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape and where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.”
— District Judge Alison Burrows, cited at (58:06–61:21)

Notable Quotes & Memorable Moments

• “Being a member of a foreign terrorist organization does not under U.S. law allow the government to kill you. Full stop.” – Mary McCord (16:56)
• “This is amazing that we're sitting there going; this is a judgment against our sitting president for over $80 million ... that's like a little aside.” – Andrew Weissmann (05:19)
• “To start saying we can just kill people to thwart the drug trade ... when there are other ways to actually interdict that boat or the next boat... we are really on a slippery slope here.” – Mary McCord (21:27)
• “We should not have to live in a country where the government can seize anyone who looks Latino, speaks Spanish, and appears to work at a low wage job.” – dissent, as paraphrased by Mary McCord (36:46)
• “It is unhelpful and unnecessary to criticize district courts for defying the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape...” – Judge Burrows, referenced by McCord (58:06)

Timestamps for Key Segments

• Fifth Circuit / Alien Enemies Act: 06:14–14:20
• Strike on Boat and Normalization of Extra-Judicial Killings: 15:34–23:44
• SCOTUS LA ICE Raids – Shadow Docket: 24:13–40:36
• National Guard in D.C. / Domestic Use of Military: 41:49–48:28
• Harvard Grant Termination Win: 50:22–58:06
• Judicial Confusion and Footnote 9: 58:06–62:29

Tone & Takeaways

Weissmann and McCord alternate between deeply informed legal analysis and barely-concealed alarm about the attempted normalization of executive overreach, disregard for constitutional rights, and the Supreme Court’s increasingly opaque conduct. The episode forcefully highlights how dangerous times call for rigorous legal scrutiny and public awareness.

For listeners: This episode provides expert breakdowns of complicated cases driving headlines—or, even more dangerously, being buried in the news cycle—amid an era of legal crisis and democratic stress. It's essential listening for anyone worried about the rule of law, abuse of power, and the rapid transformation of American legal norms.