Joyce Vance (3:27)

You know, I'm like you, Jill. I love to play wordle at night. And I also play Connections, the game I love to hate where you have to take 16 words and sort them out into four groups of four. And it's sort of a brain twister. I really enjoy doing that. But, you know, I am a confirmed physical book reader before bedtime. And I always have something. I always read a few pages. Sometimes it's serious. Right now I'm just like reading fiction that's fun and, you know, not of any literary value, but deeply enjoying. Cause I'm really committed to this notion. And it's especially true right now that we just have to have these little corners of peace and relaxation in our lives to preserve our sanity. So I try to do that before I go to sleep.

Jill Wine-Banks (4:15)

Yeah. And Barb, I'm with you on Connections. But sometimes there are sports teams, names or mascots, and I have to try to figure out I can recognize maybe one, and then I don't know what the others are, but it gives me a clue. And so I start checking. What could it be? I also use some newsletters, like Nice News, wordsmarts. That's one of my favorites. History facts, interesting facts, and inspiring quotes. But I also try to read an actual book sometimes on my Kindle or my iPad. But I now have. I just got Kamala Harris's book. And it's really. I mean, it may sound like it's sort of what we do for a living, but it is actually. It's very lightly written so that it's not heavy reading. And a friend just recommended to me Pamela Harriman's autobiography, so I'm looking forward to that one. I'd love to hear from all of our listeners as to what kinds of things you use, because it might be just the ticket for one of us to try, too. Thanks for listening. If your sleep schedule's been all over the place recently, you're not alone. I'm right there with you. The deluge of news about events threatening everything I believe about our democracy and our rights keep me awake every night. But the shift into your Post Summer routine can be the perfect time to reset your nights. Starting with calm. I am doing that. Join me Calm is the number one app for sleep and meditation, giving you the power to calm your mind and change your life. Everyone faces unique challenges in their daily life and that's why CALM offers a wide range of content and programs to help you navigate life's ups and downs.

Barb McQuaid (6:08)

Jill, I like the way you refer to the fall or the autumn as post summer. You haven't really.

Jill Wine-Banks (6:13)

I'm holding on to summer.

Barb McQuaid (6:14)

I am. Me too. Like me. I like. I refuse to acknowledge it's fall or autumn, so I'm gonna call it post summer.

Jill Wine-Banks (6:19)

I like that.

Barb McQuaid (6:20)

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Joyce Vance (7:05)

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Barb McQuaid (8:04)

Well, the first Monday in October is just about upon us which means the opening of the October 2025 term of the Supreme Court. We have some cases already set for oral argument and and more will be added and no doubt we will see more of the so called shadow docket, the emergency docket. So let's talk about some of the big cases that we're expecting this term already. Jill, there are a number of cases relating to presidential power. The first one I want to talk about is the tariff case, which the court has agreed to hear in November. Can you tell us what the issue is in that case, what we ought to be looking for?

Jill Wine-Banks (8:42)

Yeah, it's really a big issue, and not just because of the tariffs, but because of it. As you said, it is generally about presidential powers and is a test of Trump's continuing testing of the limits of his authority and his use of what we used to think were the powers of Congress. So it's really important. But that's the general overview, and there are several cases in this context, but specifically, this case involves Trump's signature initiative about tariffs that he said are essential for our economy and that we will be not a country if he doesn't get them. But those exact powers that he's trying to use may infringe on Congress's powers under the Constitution. And the tariffs at issue in this case were promulgated under iepa, the International Emergency Economic Powers Act. And there's another source of power for putting in tariffs that is not at issue in this case. It is the first of the presidential powers cases to be heard. In the past, the court has been doing things like avoiding actual substantive decisions and looking at whether certain actions can be allowed to continue during the process of the appeals. So this one has two specific questions, whether I eapa authorizes the tariffs that Trump has imposed, having claimed a national emergency. And the other question is if it authorizes the tariffs, whether the statute unconstitutionally delegates legislative authority to the president. So these are going to be very interesting about his power and what it means for our separation of the three branches of government and the powers of Congress.

Barb McQuaid (10:39)

Yeah, no, I think it's going to be a really big case because, of course, President Trump has used tariffs for everything from trying to, as he calls, level the playing field when it comes to the trade deficit to punishing Brazil for criminally prosecuting J.R. bolsonaro. So it's. It's going to be a very interesting case to see what those limits are.

Jill Wine-Banks (11:02)

And whether they can find that there is any national emergency. Factually, that will be. You know, they may try to avoid that, but it should be talked about.

Barb McQuaid (11:14)

Yes, we will wait and see. That'll be interesting coming up in November. Joyce, Also along the lines of presidential power, we have some cases challenging the president's efforts to fight your members of independent agencies like the nlrb, the Federal Trade Commission, and the Federal Reserve. What are you looking at in those cases?

Joyce Vance (11:32)

Yeah, I mean, this is a fascinating and important grouping of cases because it's all about a precedent called Humphrey's Executor, that says presidents can't fire folks in quasi independent agencies that were established by Congress. And if Humphrey's Executor, which is an, if you can believe it, a very old case, it's from FDR's administration, and reversing that decision would give Trump greater power over the executive branch. There are a lot of signs, by the way, that the Supreme Court is headed that direction. So even though you would think Humphrey's Executor, which was actually about another FTC appointee, is long established, unchallengeable precedent. Well, you know, with this Supreme Court, you never know. So recently, Justices and also some scholars have really been talking about the result in Humphrey's Executor. And what they've been doing is trying to assess on a case by case basis whether agencies where employees raise these lawsuits are in fact, independent. That was the rationale that the Court used in a case in 2020 called sila law. It involved the Consumer Financial Protection Bureau. And what the Court did in order to permit firing those appointees was they just said it didn't meet Humphrey's standard for agency independence. CFPB Johnny Come lately just had a single head, not this group of bipartisan appointees that they had talked about in Humphrey's Executor. And so they actually gave the executive power over that agency. In other words, the point of that sort of nerdy legal discussion is that the Court doesn't have to outright reverse Humphrey's executor to grow Trump's power over agencies that won't fall in line with his views. And so that takes us back to the Federal Trade Commission and its independence and Trump v. Slaughtered this term. The Court can update their analysis from Humphreys and say that the FTC no longer qualifies as independent and they can permit Trump to fire him. I think, by the way, that that may be where this is headed. It's always murky business, right? Reading a Cryst crystal ball about Supreme Court decisions before the Court even hears argument. But something that lurks in the background here is that the Court may not want to do away with the independence of the Federal Reserve. And of course, that case is coming at them, too, in the form of Lisa Cook, one of the Fed governors, a case that they've just agreed to hear. So there's this sort of subtle approach at work here because the Court is concerned about independence at the Fed. We know that because they said so in a shadow docket ruling. They could draw this sort of interesting line technically, keeping Humphrey's executor in place, but hollowing it out without reversing it so that they can simply pick and choose from among these independent agencies and decide who a president can control and who he can't.

Barb McQuaid (14:33)

Yeah, I think, again, this is such an important issue when it comes to presidential power. We've got all of these independent agencies created by Congress to serve as a check on the President's power. And. And now we see in. In one. In one presidential administration, just the. The complete eradication of these things. These are going to be some really important cases. Well, we've also got some cases this term relating to LGBT rights. Jill, there are a couple of cases regarding state bans on transgender girls playing on girls sports teams. What are the stakes in those cases?

Jill Wine-Banks (15:08)

Well, you know, some people are saying that it is of de minimis value because of the more than 500,000 collegiate athletes in the nation, fewer than 10 are actually trans. But that misses, I think, the importance of trans rights and LGBTQ rights. So there are two cases on the subject of trans sports teams or of trans girls playing on girls sports teams, and they're both really interesting. One is. Well, one is out of Idaho and one's out of West Virginia, and they kind of raise the same issues. One of them raised an equal protection argument. The other raised equal protection and a Title IX issue. And in one of them, the plaintiff has said she has suffered so dramatically from her efforts that she no longer wants to play on a girls sports team, which is really, really sad. One of them asks that Idaho law banning transgender women from competing on women's sports teams violates the Constitution. And the other says basically the same thing, but adds a Title 9 claim as well. And I think one of the important things is, aside from this trauma that one of the girls has suffered, is that these are really kind of ideal plaintiffs. One of them, although the case bears her name, WV vs BPJ, her name is known, Becky Pepper Jackson. And she's challenging the case in West Virginia. She has taken puberty blockers and has never experienced the effects of testosterone associated with puberty. So she does not have any of the physical advantages of a trans girl who went through puberty. And so that makes it interesting. The other student couldn't qualify. She was not fast enough to compete against the boys. And so she really also has a good argument for why she's not endangering the possible wins by biological girls. And so many say this is the best case for challenging the state bans. But if the court goes along with upholding these two laws, there are something like 700 other states laws pending that will be allowed to go into effect. So that it will definitely have an impact.

Barb McQuaid (17:56)

Yeah, I think this is going to be some interesting case law and we're going to get probably some, you know, just looking at the tea leaves, don't you think that these bans are going to be upheld by the court?

Jill Wine-Banks (18:09)

I, I, I hate predicting, as Joyce said, you can't predict a case outcome in a court where precedent no longer matters and where, I mean, recently Justice Thomas said precedent, it doesn't matter. So it's really weird. There is, you know, on this other, there's one other case that involves counseling and conversion therapy. And strangely enough, the Trump administration requested that the Justice Department be given time during oral argument to back the counselors position that the First Amendment rights, her First Amendment rights are being violated. And I'm sort of wondering, I mean, how is the Justice Department going to argue on behalf of allowing conversion therapy? So I'm a little concerned about what that means.

Barb McQuaid (19:00)

Yeah, I guess, I guess we'll see. You know, I, these are hard issues, right? I mean, when it comes to the competition. But so much of this seems to be just a deliberate effort to stoke the culture wars. I saw a really interesting presentation by a legal scholar who talked about thinking about these things at various levels. Right. For young children or for teens who want to compete on their, the, the, the, the gender of that matches their identity. Like, who cares, right? I mean, let them be, belong, let them be part of a community. If we're talking about the Olympic level, maybe that's something different and we measure testosterone levels. But the idea that we're going to just have these blanket rules, especially at a time when, as you said, it's a small handful of people who are affected. It really just seems like the court in choosing its cases is choosing to engage in the culture wars.

Joyce Vance (19:56)

I think that's dead on the money. Look, with all of the problems that face us as a society, the fact that we're hyper focused on a very small number of people and our focus on those people is to marginalize them and demonize and prohibit them from participating in something that they love. I would prefer to live in a culture that's a little bit less mean spirited and more focused on things like, you know, a president who's starting to blow up people in the Caribbean with increasing frequency.

Jill Wine-Banks (20:27)

Right, Yeah, I agree with you, except I would take issue with one word you use, which is our, it's not you and me and Barb or Kim.

Joyce Vance (20:37)

Well, girl, we live in it though. I mean, it may not be, you know, something that we would prefer, but I mean, it just, I think, has become a mean spirited world.

Jill Wine-Banks (20:46)

I agree with that. I totally agree.

Barb McQuaid (20:51)

Well, Joyce, I know that voting rights is something that you often pay attention to there with your, your roots in the South. This is an issue you've paid attention to for a long time. And there's a significant voting rights case on the docket as well out of Louisiana. Tell us about that case.

Joyce Vance (21:08)

Yes. So this is a really interesting case. They're all interesting, right? If they're at the Supreme Court. I'm not sure why I start by saying that, but for me, this one is a big deal. October 15th, the Supreme Court will not hear Louisiana versus they will rehear Louisiana v. Calais. It's a pivotal voting rights case that centers on Section 2 of the Voting Rights Act. That's the central safeguard against racially discriminatory redistricting which impacts, among other things, races in the House. And what makes this case so important is that it comes to the court at the same time that Republicans are engaged in mid decade gerrymandering. So a ruling that guts Section two in the court could help to secure this huge tranche of safe Republican seats in the House of Representatives. And that would cement one party control in the House for a long time, maybe for a generation. So the issue in this case is whether Louisiana's court ordered creation of a second majority black congressional district drawn to fix a proven Voting Rights act violation is unconstitutional. There are some folks, white folks in Louisiana, who've sued and said this new majority black district should never have been drawn. The problem is this is a Louisiana case, but the Supreme Court's ruling will have nationwide impact. And so it really could cement Republican political control in really a way that nothing since, well, Probably Shelby county versus Holder, the Section 5 case, or the case on dark money that permitted its infusion into our politics. The way that nothing since those cases really has impacted our politics. I think in my judgment, this is really the case to watch this term. The rehearing thing is interesting. The court heard the case last spring and then in a very rare move at the end of term, instead of deciding the case, it said, oh, we'd like you to brief it again next term and we'll hear argument again next term asking the parties to re brief this issue on the constitutionality of Section 2. That's so unusual that it feels to me like a signal that the far right majority on this court is preparing to hand down yet another court, quote, landmark decision in the area of voting rights. Yeah.

Barb McQuaid (23:32)

And this is so on brand with John Roberts, isn't it? It's you chip away in, in multiple steps. So it, it looks like the court is moving incrementally. It looks like everything is all very reasonable, but ultimately you find yourself without a Voting Rights act. You know, Shelby county versus Holder, which is like 2012 or something like that.

Joyce Vance (23:51)

11.

Barb McQuaid (23:52)

Yeah, we're just, you know, moving in this direction and he is patient and in it for the long game. But I, I tend to agree with you that we are seeing this erosion of voting rights. Well, and you mentioned campaign finance. Jill, I just want to ask you about the big campaign finance case that's on the docket this time. So many people I know say the worst Supreme Court case ever decided was Citizens United. Right. And now there's another one that could actually extend it. Is there any chance the court will overturn Citizens United or are they just going to make it worse?

Jill Wine-Banks (24:28)

Overturn Citizens United? Not at all. Not even remotely. And of course, campaign finance reform was the result of Watergate and it was needed. And, you know, as Joyce said, dark money. That's what it was. There were secret donations in cash being hoarded by the campaigns back then. This one is sort of, not sort of. It's very interesting. It was initiated in part by none other than our current vice president, who was then a senator. And it had to do with the GOP saying that campaign finance rules need to be changed. And they have changed since 2001 and have led to virtually unlimited spending by super PACs, but have restricted the Republican Party. So this is brought by the Republican Party. And they argue that political parties have been weakened and that donors are turning away from the party and going to super PACs that act as shadow parties. And so they want to bring back the power of the Republican Party and presumably also the Democratic Party. I mean, you can't even the Supreme Court can't say, yeah, Republicans can do it and Democrats can't. So if the court agrees, the practical implications will be that presidents who, as Donald Trump, have control over their parties can exert more influence over elections. And I think it is a really dangerous precedent. And, you know, I was one who thought that Citizen United was the worst ever. That was until the immunity decision, which I now think is the worst ever. But that doesn't mean that Citizens United wasn't awful and that we certainly don't want it expanded to cover Political parties being able to collect any money they want and to go forward with anything they want in coordination with candidates.

Barb McQuaid (26:27)

Yeah, that coordination, you know, it, I, I don't know that it's going to, as a practical matter, make it all that much worse. Right. Because already we had unlimited spending by, you know, these political action committees, super PACs. They couldn't coordinate the messaging with the campaign, but everybody knows what the messaging is. Right? You know, like, I'm anti immigrant, that'll help the Trump campaign, or you know, going after transgender rights, those kinds of things were all, they weren't directly coordinated, but now I guess they'll actually be able to overtly coordinate the spending. So that'll be another interesting case to watch that will make it even, you know, add to the disparities. Don't you guys think that Citizens United goes against this idea of one person, one vote? The amount of power it gives to people like Elon Musk to influence the outcome of an election. I mean, I can't afford to pay $270 million to support the candidate of my choice. So the idea that, you know, somebody's First Amendment rights to spend trumps my vote to my rights of vote is really appalling to me.

Joyce Vance (27:35)

You know, it absolutely goes against Reynolds versus Sims, which is the one man, one vote case, which weirdly enough, my father in law, who was a lawyer, was involved in as a very young lawyer way back when and even before I met him, that case had always resonated really powerfully. The idea that my vote matters as much as, for instance, say, Elon Musk's vote or Donald Trump's vote. That's a powerful component of our American heritage. And, and Citizens United has done more to erode confidence in the vote and Americans belief that the system is fair than any other case in the Supreme Court's history. It's a real tragedy.

Barb McQuaid (28:15)

Yeah. Well, Joyce, let me ask you wrap up our conversation by asking you a different kind of question. So we've talked about some of the specific cases that are on the Court's docket, but it seems that more and more we are seeing these cases come up on the Court's emergency docket or the shadow docket. How do you see that playing out this term? I mean, certainly we have not seen the last of the shadow docket. What are your thoughts about what we should be looking for there?

Joyce Vance (28:40)

Yeah, I mean, the shadow docket, which is really where the court is supposed to decide emergency cases, but increasingly resolves important issues without full briefing or oral argument or Opinions explaining the reasoning, it's going to have a major impact again this term. I mean, the court is clearly evolving this docket for. From a place where it decides emergencies to a place where it cloisters its decisions in mystery and then expects the lower courts to follow them. Something that's just really the opposite of how courts are supposed to operate. So currently, there are at least three significant Trump cases that are pending. And at the rate the administration is using the shutdown to push illegal moves and the ongoing extra. Extrajudicial execution of supposed drug traffickers, I think we'll see more cases sitting on this docket before the term ends. So we'll get probably decisions involving transgender rights, deportation orders, and vaccination requirements in schools and who knows what else. And, you know, if I were an optimist, I would say, well, maybe the court will try to sort of equalize. Right. The need for speed with the desire for case law that can actually be followed by the lower courts. But they seem to be unapologetic for their use of the shadow docket. In fact, Justice Kavanaugh wrote, I think, just about a month ago, saying, well, of course we use this docket to decide cases that we don't really have enough time for, and that's why we don't want to commit our reasoning to writing, which seems to me like he sort of pulled back the curtain and revealed what's going on here. And it's just. It's not a good process for the country at this time where people's confidence in the rule of law is at low eb.

Barb McQuaid (30:30)

Hmm. Cloistered in secrecy. You heard that? That doesn't sound like the way our transparent democracy is supposed to work. But keep your eye out for the Supreme Court. I'm sure we'll be talking about those cases as the term unfolds.

Jill Wine-Banks (30:53)

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Joyce Vance (32:09)

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Jill Wine-Banks (33:35)

I want to know, Joyce, if you're going to make vanilla extract when you.

Joyce Vance (33:38)

Grow that, you know, I mean you actually can. And there's a little bit of information on the website, so I'm sort of excited about that.

Jill Wine-Banks (33:46)

If you do, I want it as a gift. Give me a little teeny bottle cause I've had fresh and it's so much better.

Joyce Vance (33:51)

Okay, it's a date.

Barb McQuaid (33:53)

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Jill Wine-Banks (34:55)

Okay, let's talk about what happened at Quantico and also how the government is using its governmental powers for political purposes and that aren't legit. We've already talked about the Department of Justice and how it's being used for political purposes. It's going after Trump's perceived enemies, even in the absence of facts or legal support. Comey's indictment shows that, as do threats to indict New York Attorney General Letitia James, who successfully won a fraud case against Trump and his company against Senator Schiff, who's in the crosshairs for his role in Trump's impeachment. He and subpoenas for Georgia DA Fani Willis's travel records, surely as a result of her role in Trump's RICO indictment, which was about his efforts to overturn the 2020 election results in Georgia. Those are all examples of the government using its powers and weaponizing government agencies. The Internal Revenue Service was used to pursue perceived enemies, including once again, Comey, and Trump may have been inspired by Nixon on that one. He used IRS to go after those who were on his official enemies list. But Trump has gone much further. He used the FCC to threaten ABC to get rid of Jimmy Kimmel the easy way or the hard way. And now he's using the government shutdown to ramp up closures of agencies he doesn't like and that he calls Democrat agencies and to do mass firings of federal employees and punish blue states by cutting off federal funds. I know Nixon would approve, but Congress shouldn't. I wish they would take some action, but let's look at some of the creative new examples. One, Joyce is the FAA just barred private drones over Chicago to aid ICE operations. That is an announced reason why they did this. I I want to know if it's legitimate to use FAA for this or is it more like using the FCC to get rid of Kimmel?

Joyce Vance (37:05)

Yes. So I am not a drone loss specialist, so I had to look up the answer to this and it's really pretty interesting. The FAA's drone restriction in Chicago is to support a large scale Immigration and Customs Enforcement operation. And that makes it a legitimate use of its authority. The agency has the ability to issue something called temporary flight restrictions or TFRs, and they can do that for a number of security reasons here. DHS did that properly. They identified the situation and the reason for it, and they got their restriction. But there are also limits. For instance, it only applies in a 15 mile radius. So drones can still be up in Chicago, just not over this area for this period of time while the operation is ongoing.

Jill Wine-Banks (37:56)

Okay. In addition, I just want to mention, because this is Chicago and I'm here, what is happening here is really worse than you are reading. And it's getting really close to home because they are, first of all, ICE agents are all over tourist areas. They're on Michigan Avenue, Millennium park, but they're also in high end neighborhoods. They had a raid in Glencoe. They arrested nannies in a Winnetka park, which happens to be across the street from where my husband's first store was. And a Glencoe man, shame on him, was walking his dog and heard someone speaking Spanish and started yelling, I'm calling ICE on you. Just because he was speaking Spanish. And the man answered in perfect English, not even any accent. But there was also a raid on a five story apartment building on South Lakeshore Drive, South Shore Drive, where, you know, they're claiming there were gang people, but there's of course, like all of this, there's no evidence. It was at 1am they zip tied children together. They brought out naked people because they were sound asleep and they were held outside for hours. And when they were released, some of them, not all of them, their apartments had been trashed. I mean, it's really terrible. Conditions at the detention center are awful. And they are destroying the tents and supplies brought by those protesting. And today they started arresting protesters. Now, there is some indication that they were blocking traffic that protesters. So that may be. There's a great video of a bicyclist who yelled something at ICE agents and they ran after him and he jumped on his bike and he got away. So things are really bad here. But there are some legal questions that were raised by the Trump and Hexess speeches to military leaders. And I want to delve into that. Barb, I want to start with you because although I've been very upset about everything that Trump said, he did give you some great publicity in a way because, you know, your book is called Attack from Within. And he repeatedly said that defending the homeland is the military's first and most important priority, because America is under invasion from within. And so that, you know, I just want to know what he told the generals. That those cities are in safe places and we're going to straighten them out. This is going to be a major part of what you in this room are doing. It's a war from within, and we should use those cities, those dangerous cities as training grounds for our military National Guard. So, Barb, that sounds more like law enforcement to me. Can the military be used for that purpose? Is it legitimate?

Barb McQuaid (40:50)

Yeah, no, of course not. And in fact, I think it's so telling that the generals who were in that room, you know, did not applaud, they did not laugh at the jokes. They showed the proper decorum and the apolitical tradition of the military that they are supposed to do. And afterwards, I know there were generals talking about how incredibly inappropriate everything was, from the speeches to the assembly to the focus on politics. And as you just said, using the military for an illegal purpose. So since the Posse Comitatus act, it has been a crime to use the military for ordinary law enforcement purposes. There are some emergency authorities that the President can invoke to call up the National Guard in certain circumstances. You know, certainly during the civil rights movement, we saw presidents calling up the National Guard to help children be allowed to enter school houses. So it is and authority the President has under emergencies. We saw George H.W. bush call up the National Guard during the Rodney King riots to restore order to the streets of Los Angeles. We saw President Trump invoke one of these authorities calling it an emergency. When we saw civil unrest this summer in Los Angeles in response to some of the ICE arrests of immigrants recently after a trial, the judge in that case found that the President improperly invoked one of those authorities, that there was not an emergency, that there was not a rebellion as it is defined in the statute, and that therefore the use of the National Guard in Los Angeles violated the Posse Comitatus Act. I would think the same thing is likely to happen in a city like Chicago. You know, Washington, D.C. which is where we've seen another one of these invocations, is a little bit of a different animal because of some special rules about the seat of the federal government. But for Chicago and some of the other places they're talking about going, Memphis, Tennessee and Baltimore and other kinds of places, I really have a hard time seeing them ending up in any way that's different from what we saw in Los Angeles. I think Portland, Oregon is another one. So, no, it's unlawful, and I Think it's, you know, even just the suggestion of this, this idea that there's an enemy within and these are, you know, being perpetuated by Democratically led cities is just an effort to, as Trump himself said, make this an issue for the 2026 midterms. Trump, I think, wants to portray his party as the law and order party and bait Democrats into opposing him so that he can point to them and say, look, they're in favor of chaos, they're in favor of lawlessness, but they're in favor of illegal immigration, and we're the side of law and order. And so it's a really cynical political ploy, I think.

Jill Wine-Banks (43:45)

I completely agree, but. And I want to probe a little bit more. Follow up on. You referred to Portland because I'm thinking that Portland is partly dis or misinformation. And since your book talks about that, I wanted to ask you. At Quantico, Trump said, you know, Portland, where it looks like a war zone? He said, I get a call from the liberal governor, sir, please don't come in. We don't need you. I said, well, unless they're playing false tapes, this looks like World War II. And he promised he was going to check when the governor said, no, it's not. And so he was relying on what looked to me like a total fake AI produced video that included some shots of burning one statue In, I think, 2020, certainly nothing that's happening now. And yet he is still threatening Portland. So is this dis or misinformation?

Barb McQuaid (44:47)

Yeah, you know, I haven't been in Portland to see it with my own eyes, but I think one of the things we should respect is the leadership of the mayor and the governor in those states who can tell us whether they need the help on the ground. It seems like a real tell when the local leaders say, we don't want or need your help. I mean, if they really were overrun by crime, you would think they would welcome that assistance. And so the fact that the people on the ground are saying no. I've also seen, you know, lots of beautiful pictures on social media saying, here I am in Portland, walking down the street. Doesn't look like World War II to me. So it's. Unless, you know, you're there, I suppose it's difficult for us to assess that. But it seems like the president is stoking division once again, trying to portray Portland as it was in 2020. There were certainly some civil unrest there following the George Floyd murder. When there was some, they sent federal troops there and there was some opposition to that, trying to stoke perhaps that same visual. And we know that Trump used it in 2020 for political purposes. So it just seems like a rerun of the 2020 season of the Trump reality show.

Jill Wine-Banks (46:00)

Wow. So I will just add anecdotally that the same friend Liz that I play and exchange wordle and connections and the mini with lives in Portland Circle. Yes, I see what you did there. She lives in Portland and she has reported that she safely walks her dog and enjoys every bit of Portland. And there is no World War II or any violence or anything that would justify bringing in federal troops.

Joyce Vance (46:32)

I just remember how lovely Portland was when we were there for our live show. You know, everybody was so warm and wonderful and interested in learning.

Jill Wine-Banks (46:40)

So, yeah, that was the best audience reaction ever in life. I loved the Portland audience. That was fantastic. And you guys all met Liz and her husband because they were there, as well as my grand goddaughter and her boyfriend who were there at the time. Anyway, Joyce Hegseth told the generals that, quote, we also don't fight with stupid rules of engagement. We untie the hands of our war fighters to intimidate, demoralize, hunt and kill the enemies of our country. No more politically correct and overbearing rules of engagement. Just common sense, maximum lethality and authority. For war fighters. Today is another liberation day. Referring to a Trump imposed liberation day for tariffs, the liberation of America's warriors. That sounds like he's talking about an actual war against foreign enemies. But in the context of Trump's desire to use American cities as training grounds for our military, does this legitimize attacks on American cities despite Posse Comitatus and is it an incitement to increase violence by ice, which we are already seeing?

Joyce Vance (47:49)

Yeah, I mean, this is the kind of crazy sauce you get when you get a mediocre Fox News host and put him in charge of the Department of Defense and rename it the Department of War. I mean, this is on everybody in the Senate who voted to confirm Pete Hegseth. I usually think we should look forward, not backwards, but in this instance, I think there needs to be accountability for people who agreed to let Trump put this guy in place because he's just not up to the job. And, you know, yes, it's ICE in some sense. Yes, it's unleashing law enforcement on American streets, but I mean, this is talk about unleashing American troops on American streets, which is clearly a violation of the Posse Comitatus act, which prohibits the use of of the military for domestic Law enforcement absent congressional legitimacy for that. And so all of this, you know, Jill, I guess I view this, and this is at a very macro level, right. I view it as an effort to shift the Overton Window, what political scientists call the political. Or rather what political scientists call the Overton window, which is the aperture for what Americans think are legitimate choices for policy. Right. And it's always been the case that you can't put the military on American streets to enforce law. Well, under Donald Trump's administration, and with Pete Hegseth at the helm of Department of Defense, which I just am not going to call the Department of War, they're trying to shift the window so that Americans will view having American soldiers on our streets is just the new normal. Right. Having a guy in a uniform with an M6 on every street corner is what it's supposed to be about. And, you know, this talk about violence by troops against Americans, it's dangerous, irresponsible talk. The good news is that lawyers are hard at work suing and preparing to file lawsuits. But we need to understand that this isn't okay. We need to be protesting it. We need to be writing to our elected officials. Because the administration, which I think is often very clever, I don't see that say that with approval for them. I think that they're often deviously and maliciously clever about how they position these shifts in the Overton Window. They're starting with what they call illegal aliens. Right? That's who ICE is going after right now is people who don't have legal status to be in this country. And they know a lot of Americans are okay with that. So they're doing it knowing that there will be some approval. But where it starts with this administration is never where it ends up. And today it might be people who don't have legal immigration status. Tomorrow it'll be other marginalized people. Take your pick of anybody that this administration is marginalizing. And I'm reminded of that old post World War II poem by Niemoller, the one where he says, you know, when they came for the trade unionists, I didn't stand up because I wasn't a trade unionist. And ultimately, when they come for him, there's no one else there. So, sure, this starts with ICE and this starts with the military, but really it should matter to all of us.

Jill Wine-Banks (51:01)

It absolutely should. And I want to say, of course, he was not only going after what were undocumented aliens, but he was going to go after the worst of the worst, those who had criminal records, which has absolutely, absolutely not been the case. And to your point, ICE is dressed in fatigues, carrying rifles on Michigan Avenue, and that's terrifying. And it is setting a norm of, well, yeah, we're used to them being here, so how are we going to tell the difference? When it's the National Guard or the Marines, we won't know the difference. And I want to point out Donald Trump actually said something at this Quantico meeting that is actually, to me, a call to violence. He said, in reference to, you know, he gave ICE these brand new cars with fancy labels and stuff. And he said people are throwing rocks at them. And he said, from now on, if someone throws a rock at you, I say get out of that car and you can do whatever the hell you want to do. That's a quote. Get out of the car and you can do whatever the hell you want to do. That, to me is inciting violence. But, okay, so Barb Trump's speech also mentioned boats from Venezuela that have been blown up because they are allegedly carrying drugs and drug dealers, although he has produced not one shred of evidence of either of those facts. And this morning there was one more hit, and reports are that he has now killed 21 people, all civilians. Is that legal? Is there any evidence of drugs being on board? And shouldn't he be stopping and searching and seizing if there was, instead of blowing them up in international waters?

Barb McQuaid (52:49)

Yeah, this is very problematic. Even here's how bad it is. John Yoo, who was the DOJ lawyer who authorized torture in the post 911 era, is appalled by this. He thinks this is murder. And I think he's right. There is no legal authority for this. Now, first, as you just pointed out, Jill, we don't have any evidence that these really are members of the Trend Aragua gang or that they're transporting drugs. But even if they were, let's assume they were. That they are these gang members. They have been designated by the president as a terrorist organization. I'm not sure how you get from here to there. And that they are transporting drugs. Even if all those things are true, there is still no legal authority to blow them out of the water. Designating them as a foreign terrorist organization does provide authority to freeze their assets and to charge somebody with a crime for providing material support to that group in the form of money, goods, or services. That's the significance of a designation. It is not authority to just kill them. There they are. We get to kill them. You just can't do that there. The other thing that seems so illegitimate about all of this is the claim is that they're bringing fentanyl into the United States. I don't know of any evidence that Venezuela is a source of fentanyl. I think fentanyl is coming from China and Mexico, but not from Venezuela. So it all seems like, you know, a crafted argument here to try to support this idea that somehow we're at war with Venezuela. President Trump, of course, has also said to Congress that we are at war with Venezuela because this trendy Aragua somehow is connected to the government. And then, of course, that means that when we have Venezuelan nationals in the United States, he can invoke the Alien Enemies act, which he's tried to invoke before, calling it an invasion when they enter our border. But that is only for times of a declared war. If he declares war on Venezuela, then he can use the Alien Enemies Act. So the whole thing seems completely distorted to me.

Jill Wine-Banks (55:10)

And, of course, we have to note that these are in international waters. They are not in our waters. They aren't within our borders. And I'm just wondering why we aren't hearing more about someone trying to stop these attacks. Because as far as I know, there is no capital punishment for any drug offense, and that's what this is, and it's capital punishment without due process. There's been no proof, there's been no trial. So it's really outrageous. And of course, this was mentioned at the Quantico meeting because Donald Trump kept saying that you in this room are going to soon be defending the homeland and you're going to be taking out drug boats. So I'm just, you know, I'm. I'm now have now made contact with some real military experts about is that a lawful order? If he said you have to start taking out these drug boats? And I don't know who is actually firing on the drug boat, but I'm wondering why they are doing it. Because even if he has immunity, people under him carrying out his orders do not. And of course, the people who would decide whether it's a lawful order would be the T jags, the head of the JAG Corps for each of the services. But I want to point out that Donald Trump fired all of them. And I don't know who has been chosen as replacements, but I have to wonder if they're all Lindsey Halligans. And that concerns me.

Joyce Vance (56:47)

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Jill Wine-Banks (58:10)

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Joyce Vance (60:15)

So the First Amendment has been getting a lot of attention lately. Unfortunately not for good reasons. This administration doesn't like the First Amendment and it's doing what it can do to tamp down on free exercise. But some good signs emerging here. You know, we saw the pushback when Jimmy Kimmel got taken off the air and then he returned. And this week, senior Federal Judge William G. Young in Boston issued a scathing 161 page opinion in a case called American association of University Professors v. Rubio. It too is about the administration of the First Amendment. So Jill, why don't we start? Can you remind us which case this is? Sometimes it gets hard to keep track of them all. But tell us what this case is about and what the issue Judge Young had before him was.

Jill Wine-Banks (61:03)

This is a great question. It is about whether non citizens lawfully in this country have the same rights of free speech as the rest of us. And Judge Young held in a very colorfully written, I think that might be an understatement, said yes, they have the same free speech rights that the rest of us have. And the First Amendment does not draw any distinction between the rights possessed in this regard by citizens and noncitizens.

Joyce Vance (61:37)

So it's obviously an important case. It's only in front of the district court. But Barb, the judge found a lot to criticize the administration for. And he wrote that Trump administration officials chilled free speech and peaceful assembly rights of non citizens. Then came the part of the opinion that I thought was the most disturbing. He wrote these words I know oh is right. In the golden age of democracy, Judge Young wrote this opinion might end here, but it didn't. Can you explain why he had to go further and what that means about a remedy in this case?

Barb McQuaid (62:14)

Yeah, I don't know why he had to go further. I don't think that he did have to go further. I think he could have ended it there. But this is sort of like the judicial equivalent of a man Opening his porch door and saying, hey, you kids, get off my lawn. He was very cranky. This is a judge who was appointed by Ronald Reagan, and I think he is just absolutely astonished by the abuse of presidential power here. And so, you know, he's drawn some criticism for perhaps not using judicial language. In some ways, though, desperate times call for desperate measures. Right. He frames his whole judicial opinion as a response to a postcard he received from somebody who said, the president has tanks and the pardon power. What do you have? And he writes back, you know, all I have is the. The jurisdiction of this court, and here's how it works in this case. And he goes on to write this opinion, and then he comes back full circle, like, thanks for writing. I hope you'll visit the court sometimes. But in doing that, he kind of goes off on a tangent, you know, arguing about the First Amendment assault here on people in retaliation for free speech, which is appropriate. But then he kind of goes on like, and the mask. I hate the masks. The ICE agents in the mask. That's terrible, too. So I. I don't know. I'm hearing from others, and I kind of share the view that perhaps by being so over the top, he may have diminished what could otherwise have been the power of. Of an opinion because it is causing critics to say, you know, this is just a political rant.

Joyce Vance (64:01)

Yeah, you know, I. I worry about that, too. I think that could be a problem in terms of the technical ruling in this case. You know, after saying, well, had this been a different administration, all I would have had to do was say there was a violation of the First Amendment by two secretaries, you know, Noman and Rubio. He said, I would have just assumed that the administration would have dealt with that. But now he's taking this unusual step of holding a hearing on the remedy, which he said that he will schedule very soon to try to figure out what's a judge supposed to do when a lawless administration violates the First Amendment and doesn't seem to care about it. So I think that positions this case really differently from the kind of First Amendment litigation we're used to seeing, where everybody sort of shrinks back from that line of being too close to violating the First Amendment and people alter their behavior voluntarily. And now we have a judge who's legitimately concerned that this administration won't do that. Which, Jill, I think, takes us to something that Barb mentioned. Right. The judge spent a lot of time reviewing the arrests of citizens students whose names have become super familiar to us. People like Mahmoud Khalil and Rumeza Ozturk, who were foreign students who protested in favor of Palestine and who got arrested and have become subject to deportation proceedings. And something really interesting that I think the judge writes about, and this is along the veins of Farb's criticism about how he sort of went off onto issues that may not have been directly implicated by the issues the parties raised. But he wrote about masked agents. What did he. And that, by the way, is something that we've all talked about a lot, right. And had bad reactions to agents who were masked and refusing to identify themselves. What did Judge Young have to say in that regard?

Jill Wine-Banks (65:55)

Well, in his colorful, very blunt, candid way, he hated it. He said it's part of the intimidating non citizen students. And he said it's part of a full throated assault on the First Amendment across the board under cover of an unconstitutionally broad definition of anti Semitism. And he also, you know, going back to your point about what the penalty is going to be, he said, yeah, it's clear that they violated the First Amendment. But he didn't order changes to administration policies because he said he would have these proceedings and decide what to do. But he did wonder about if a cease and desist in the future would be followed, whether the rapidly changing nature, he said of the executive branch under Article 2 of our Constitution, whether a remedy might not be obtainable. So all of this is really, I mean, it's depressing. And he did go, as you've all noted, very far in what he said, which could redound negatively on appeal. But it doesn't, in my mind, it doesn't hurt the underlying premise that there is nothing in the Constitution that would stop people from having these First Amendment rights. And one specific thing he said about masks, he said ICE goes mask for a single reason to terrorize Americans into quiescence. To us, masks are associated with cowardly desperados and the despised Ku Klux Klan. In all our history, we have never tolerated an armed mask secret police carrying on in this fashion. ICE brings indelible obloquy to this administration and everyone who works for it. So I think that's pretty strong language, but pretty accurate.

Joyce Vance (67:51)

Yeah, I mean, it's interesting. The judge has a military background. He's a Reagan appointee, by the way, and he really reacts strongly on the subject of masks. He even says it should be noted that our troops do not ordinarily wear masks. When he's sort of rejecting testimony that he heard from an ICE supervisor about, well, we leave it up to individual agents to decide. And he says in his opinion that he, quote, rejects this testimony and finds that it's disingenuous, squalid, and dishonorable. But he also. And look, I am candidly of the same view as Barb, is that he may have gone too far. But in some ways, it's a very reasonable opinion because there's this irony where he's finding that two Cabinet secretaries have violated the First Amendment rights of people in this country. And then he's very careful to say that the Cabinet secretaries have First Amendment rights and that he has to protect their rights and the President's rights. And when it comes down to masking, he goes, I think, to great lengths to say that he has confidence in individual ICE agents and thinks that they're good people, but in essence, that their service is being corrupted by the political leadership. I mean, it's 161 pages. There's a lot to consider. Barb, what do you think? Does it get affirmed on appeal? Are you concerned that some of the meandering that he does could impact it? How do you think the future looks for this case?

Barb McQuaid (69:24)

I think it's okay. I mean, I don't like the meandering. I think it sort of diminishes the decision, which I think is very. On very sound legal ground. And, you know, who reads an opinion that's 161 pages like TLDR did every last page? I know, but I really think that they undermine the power of their words when they write such long opinions. And I think if he had taken out a lot of this stuff, he could have said it far more succinctly. But I think legally on legal grounds, you know, there's a standing argument about this association, whether they have standing as opposed to the individuals who were affected. So that might be an issue on appeal, but I don't think, you know, the. What. What should we call it? The extrajudicial opinions that he shares can undermine his legal analysis.

Jill Wine-Banks (70:18)

Joyce, can I just add one thing, which is you mentioned Kristi Noem, and Secretary Noem is in Chicago or was very early this morning standing on the rooftop of the Broadview Detention center for photo ops, but also probably in response to our governor saying she should be held accountable and she should put herself into a press conference to answer questions. And so, I mean, I just. I mean, I picture her standing in front of the notorious prison that we have sent immigrants to. And now detention centers are photo ops for the secretary. I just think it's a misuse of presidential appointees. Powers.

Joyce Vance (71:13)

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Barb McQuaid (72:53)

You lead a pretty tasty life, Jill, as far as I can tell.

Jill Wine-Banks (72:57)

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Joyce Vance (73:41)

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Jill Wine-Banks (74:27)

It'S time for our very favorite part of the show. Every week our listeners challenge us with really interesting questions that make us think. And if you have a question, please email us@sistersinlawoliticon.com or tag us on social media using Sisters in Law. And if we don't get to answer your question during the show, keep an eye on our feeds throughout the week where we sometimes answer the questions that we didn't get to in the show. Our first question today comes from John in Tempe, Arizona, and it's for Joyce. Joyce. It is reported that FBI agents gave Tom Homan $50,000 in cash while investigating him. Where does the money that the undercover FBI agents use come from?

Joyce Vance (75:17)

Yeah, so this is really an interesting sort of an operational question. There's actually money in the budget for investigative agencies that they use for stuff like this. But, you know, usually that money gets recycled, right? The $50,000 that they give to Tom Homan, they get back from him when he's arrested and then they use that, you know, in the next case that comes down the pike. And what I think is so fascinating here, and, and look, I need to say, we don't know for sure all the details. I mean, the reporting for, for those who maybe I, I've started in the middle. Tom Homan, who is Donald Trump's border czar, gets caught in a scam before, after Trump has won, but before the administration is in place where he is offered $50,000 by businessmen who want him to steer government contracts to them after he goes back into the executive branch. But oops, the businessmen are actually FBI agents acting in an undercover capacity and there's a case on Homan for taking bribes. So we don't really know what happened. I mean, the, the reporting that has leaked out suggests that the FBI wanted to wait until Homan was back in office and see if he would actually steer contracts before prosecution. It sounds like that $50,000 might have walked and it might have stayed with Homan, which would be very unusual. You almost never let bribe money or buy money walk, at least not for a lengthy period of time. I don't know what the provision for accountability when something like this happens is. I assume that there must have been an operational plan in advance of this that contemplated that he might hold onto the money for a while. And that's something that we want to know the details of. But if in fact Homan did keep the money, I would just say that that's a taxable event for him. In other words, he is required to report $50,000 in income. And if he did not, then the IRS should be taking a good look at Mr. Homan. I mean, that's the gig, right? If you get money, if you profit from criminal conduct and don't report it on your taxes, it's a tax crime. In my office, we use that a time or two in appropriate situations. So this administration won't, of course, go after one of Tom Homan's own. But you know, five year statute of limitations, I mean, there might be a little bit of time left on that depending on the outcome of the 2028 election.

Jill Wine-Banks (77:53)

Great answer, Joyce. And I have a great question for you from Kaya Barb. Okay. Are there any protections against a government shutdown?

Barb McQuaid (78:03)

Oh man, I hate government shutdowns. I think government shutdowns are just an absolute failure of our political system. And we see how more and more common they have become as our country has become more polarized. There really isn't, you know, when the government gets funded by congressional appropriations and it has to be a bill that's signed, passed by both houses of Congress and then signed by the President. And so we now, it seems almost routinely have these impasses where one side or the other wants to use it as almost an extortion play to try to get the other side to cave into their demands. But what I want to say is shutdowns are so incredibly harmful to the American people and to the public servants who are trying to administer the law. So there are some carve outs for people who are considered essential workers. They work, but they don't get paid. Other people are considered non essential and they don't get paid and they don't work. And so all of them are work, are not being paid for their job. It always causes people to leave the government because they say, I can't afford to not get paid during this time. And in the meantime, all kinds of American services for the people get disrupted because they're not doing their work. Among them, in my former work was all of the civil work of the U.S. attorney's offices. Just to prepare for a shutdown. All the lawyers had to file motions with the court saying, I'd like to, you know, have a stay in my case because I'm not going to be able to work during the government shutdown, but national parks and passport offices and so many things are disrupted as a result of government shutdowns. It's really no way to run a government. And we the people ought to demand.

Jill Wine-Banks (79:57)

Better, that's for sure. And I bet everyone listening has some example of how they have been hurt personally by this. And our last question for today comes from Jesse, who asks what law gives ICE the power of arrest? And that's really an interesting question because we're seeing a lot of that now. And they do have the power of arrest under the Immigration and Nationality act, specifically Section 287 of Title 18 U.S.C. 1357, which grants U.S. immigration and Customs Enforcement officials, that's ICE officers, the authority to arrest aliens without a judicial warrant for civil immigration violations. It's a very broad authority and it means ICE officers can interrogate, search and arrest non citizens suspected of violating immigration laws within the United States. So they do have the power and they are surely using them. They are subject to the Fourth Amendment, which protects against unreasonable searches and seizures. And courts have said you have to have reason to believe in order to do this. And unfortunately, SCOTUS has said that that belief could be based on hearing someone speak Spanish near a Home Depot who is apparently of a non white race and that that's grounds for reasonable suspicion. And they lifted a restraining order that previously existed against ICE detaining people on those grounds, not on just interrogating them, but on detaining them. There was a strong dissent, of course, by our three liberal justices saying this was racial profiling and constitutes a violation of our Constitution. So that's the answer for that question. Thank you for listening to Sisters in Law with Joyce Vance, Barbara Quaid and me, Jill Wine banks. Please follow SistersinLaw wherever you listen and please give us a five star review because that's how other people will find the show. And besides, it makes us feel good. So we would appreciate it. Also, please show some love to this week's sponsors, Calm, Fast Growing Trees, Osea, Malibu and Factor. The links, of course, are in our show notes. Please support them because they make this show possible. See you next week with another episode. Sistersof.

Joyce Vance (82:28)

So you know, Jill, I love that you're wearing the pin from my new book, Giving up is Unforgivable. It looks great on you. And I'm so tickled that my publisher made the pins. Did you know that somebody else in the room has just finished a new book and that that someone is Barb McQuaid?

Jill Wine-Banks (82:46)

I certainly do. And I can't wait to read it. But I also will definitely have a pin made for her because I did for her first book. So Barbara, will you wear it?

Joyce Vance (82:58)

Oh, yeah.

Barb McQuaid (83:00)

I was honored to receive the Attack from Within pin. The new book is called the Saving America from the Corruption of a Mob Style Government and I would love to see and wear a the Fix pin.

Joyce Vance (83:13)

You know, is this gonna become a thing where we like write books every other year? I mean, you're prolific, barbed and I know Jill has a kid's book in the works too.

Jill Wine-Banks (83:21)

I do. And it's more for teenagers about all the career options they have and how to sort of sort through what are you going to do with your life. And using, of course, my very multiple career history, it will be called the Ordinary Girl, which sort of is a refrain from the Watergate girl, but you know, I'm an ordinary girl and if I did it, so can you. So that's my new book.