The Lawlessness, Chaos, & Cruelty of Trump 2.0

Summary

Podcast Summary: Strict Scrutiny – "The Lawlessness, Chaos, & Cruelty of Trump 2.0"

Episode Release Date: February 3, 2025
Hosts: Leah Litman, Kate Shaw, Melissa Murray

In this compelling episode of Strict Scrutiny, hosts Leah Litman, Kate Shaw, and Melissa Murray delve deep into the tumultuous actions of the Trump administration, highlighting a surge in legal and executive maneuvers that have significant implications for U.S. governance and the Supreme Court. Titled "The Lawlessness, Chaos, & Cruelty of Trump 2.0," the episode meticulously examines the administration's unprecedented moves to undermine key governmental institutions, the repercussions of these actions on federal agencies, and the broader impact on American democracy.

1. Targeting Inspectors General and Independent Agencies

The episode opens with a critical analysis of President Trump's aggressive efforts to remove Inspectors General (IGs) from various federal agencies. The IGs serve as crucial watchdogs, overseeing waste, fraud, and abuse within government departments.

• Kate Shaw introduces the topic by comparing Trump's actions to the infamous 1973 Saturday Night Massacre, underscoring the severity of the administration's attempts to silence oversight:

  "We are going to start this episode with some breaking news, largely involving the torrent of lawlessness, chaos, and cruelty emanating from the Nation's capital, Washington, D.C." (00:52)

• Melissa Murray emphasizes the disregard for legal protocols:

  "The law very clearly does not permit these firings in this way... Trump did not adhere to this procedure." (04:41)

The hosts discuss how Trump’s refusal to provide the legally mandated 30-day notice to Congress for IG removals not only violates post-Watergate reforms but also sets the stage for potential Supreme Court challenges.

2. Executive Orders Undermining Federal Agencies

The discussion shifts to Trump's executive orders aimed at dismantling diversity, equity, and inclusion (DEI) programs and weakening federal agencies like the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC).

• Leah Littman highlights the impact on the NLRB:

  "This is an awful development if you care at all about the labor laws of this country being enforced." (10:27)

• Kate Shaw predicts judicial pushback:

  "I'm going to keep doing it. And I will tell her, Kate with." (11:48) (Note: This timestamp may refer to ongoing dialogue about legal challenges.)

The hosts lament the administration’s strategy to provoke legal battles that could reshape the constitutionality of independent agencies, potentially granting the executive branch unchecked power.

3. Washington National Airport Plane Crash

A significant portion of the episode is dedicated to analyzing the tragic plane crash at Washington National Airport, drawing connections to the Trump administration's weakening of the Federal Aviation Administration (FAA).

• Melissa Murray links the crash to FAA staffing issues:

  "These are all of the things that are going on at the Department of Transportation, but there's still more." (24:43)

• Kate Shaw criticizes the administration’s handling of aviation safety:

  "This overarching, just like insane, monomaniacal commitment to downsizing government, hollowing out the civil service and destroying the regulatory state, may already be yielding tragic life and death consequences." (26:19)

The hosts argue that rapid cuts to FAA personnel and resources directly contributed to the inadequate response during the crash, highlighting the dire consequences of dismantling regulatory bodies.

4. State Court Battles: North Carolina and Wisconsin

Moving beyond federal issues, the episode examines contentious state court races that have broader implications for judicial independence and election integrity.

• North Carolina's Jefferson Griffin:
  Kate Shaw describes Griffin's relentless efforts to contest election results despite losing to Justice Allison Riggs, aiming to undermine the state's Supreme Court judiciary:

  "Jefferson Griffin is continuing to press these theories about why tens of thousands of votes should be thrown out, even though none of those arguments were offered before the election." (61:20)

• Wisconsin Supreme Court Election:
  Leah Littman discusses the high-stakes race for a pivotal Supreme Court seat, noting significant financial contributions from figures like Elon Musk:

  "Elon Musk has dipped his toe in because it's not enough to be co-president of these United States." (64:30)

These state-level conflicts underscore the administration's broader strategy to influence judicial outcomes and maintain partisan control over the courts.

5. Executive Orders Targeting the Transgender Community

The hosts examine new executive orders explicitly targeting transgender individuals, critiquing their discriminatory nature and constitutional violations.

• Melissa Murray outlines the orders:

  "The administration has now issued multiple additional executive orders targeting trans people in truly vile, despicable and unconstitutional ways." (50:13)

• Kate Shaw points out First Amendment concerns:

  "The school executive order seems like an obvious and flagrant violation of the First Amendment." (53:28)

These orders aim to restrict transgender individuals' rights in the military and educational institutions, sparking widespread legal and societal backlash.

6. Public Reaction and Polling

Despite the administration's aggressive policies, early polling suggests significant public disapproval.

• Kate Shaw references polling data:

  "Ending birthright citizenship is very unpopular. So 59% oppose." (58:47)

• Melissa Murray echoes this sentiment, highlighting the disconnect between Trump’s policies and public opinion:

  "It just does suggest to me that the stuff that they're serving up is not wildly popular with most of the American public." (59:18)

This data indicates potential challenges for the administration as public support wanes against controversial measures.

7. DOJ Developments and Legal Challenges

The episode also touches on the Department of Justice's unraveling, including the resignation of key officials and the dropping of cases against Trump allies, further destabilizing federal law enforcement.

• Leah Littman remarks on DOJ morale:

  "This was the worst day or the worst week in the department's history." (15:11)

• Melissa Murray mentions settlements benefiting Trump:

  "Facebook/meta settled a lawsuit against Donald Trump... paying him $25 million even though... the lawsuit is meritless." (18:26)

Such actions undermine the DOJ's integrity and signal a troubling shift towards political favoritism.

8. Supreme Court Ethics and Recusals

Attention is given to Justice Barrett’s recent recusal from cases involving former colleagues, emphasizing growing concerns about the Court’s ethical standards.

• Melissa Murray notes:

  "Justice Barrett recused herself from the consideration of the case." (66:20)

• Kate Shaw adds:

  "The Justices are being more careful about when they recuse what the appearance of impropriety might look like." (67:28)

This behavior reflects heightened scrutiny of the Court’s impartiality amidst a backdrop of contentious administration policies.

9. Notable Quotes

• Kate Shaw on the severity of Trump’s actions:

  "Not one, not two, but three different symbolic massacres since we last gathered." (03:21)

• Leah Littman expressing concern over the Court's future:

  "I worry it means the Republican appointees will feel less constrained and less bound by public opinion and politics." (07:24)

• Melissa Murray on the administration’s disregard for legal procedures:

  "It's like the DACA case. Like you could do this, you just have to follow the right procedures and they never follow the right procedures." (06:21)

10. Conclusion

The episode culminates with a somber reflection on the erosion of institutional checks and balances, the increasing concentration of power within the executive branch, and the urgent need for judicial and legislative responses to restore accountability. The hosts urge listeners to remain vigilant and engage in the democratic process to counteract the administration's destabilizing policies.

Key Takeaways:

• Erosion of Oversight: The Trump administration’s systematic removal of Inspectors General and independent agency officials poses significant threats to governmental accountability and transparency.

• Disregard for Legal Protocols: Executive orders and actions frequently bypass established legal procedures, prompting potential Supreme Court challenges and undermining the rule of law.

• Impact on Federal Agencies: Critical agencies like the FAA, NLRB, and EEOC are debilitated, leading to reduced enforcement of labor laws and aviation safety, with tragic real-world consequences.

• State-Level Judicial Influence: Contested state court races in North Carolina and Wisconsin highlight efforts to manipulate judicial outcomes and maintain partisan control over the judiciary.

• Public Disapproval: Polling data indicates strong public opposition to many of the administration’s controversial policies, signaling potential political vulnerabilities.

• Supreme Court Ethics: Increased recusals by justices reflect growing concerns over the Court’s impartiality in the face of politicized administration actions.

This episode of Strict Scrutiny provides a thorough and incisive examination of the Trump administration's strategies to dismantle institutional safeguards, offering listeners a detailed understanding of the multifaceted challenges facing American democracy today.

Transcript

[Kate Shaw]

Mr. Chief justice, please report. It's an old joke, but when an argument man argues against two beautiful ladies like this, they're going to have the last word. She spoke not elegantly, but with unmistakable clarity.

[Melissa Murray]

She said, I ask no favor for my sex. All I ask of our brethren is.

[Kate Shaw]

That they take their feet off our necks.

[Melissa Murray]

Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray.

[Leah Littman]

I'm Leah Littman.

[Kate Shaw]

And I'm Kate Shaw. The Supreme Court is on recess this week. The White House, regrettably, is not. So we are going to start this episode with some breaking news, largely involving the torrent of lawlessness, chaos and cruelty emanating from the Nation's capital, Washington, D.C. obviously, we will also cover the executive order lowering the price of eggs. Just kidding. There has still been no executive order or other executive action addressing the cost of basic goods, despite the fact that we were told that is what this administration would inaugurate. But why would they?

[Leah Littman]

And yet somehow the vibes or the price of eggs apparently don't feel so high when the leader of the free world is blaming black people, women, and people with disabilities for all of the world's problems. Maybe that's the executive action on eggs that we've all been waiting for. But after we survey whatever is happening at 1600, we are also going to check in on two different state courts. The continuing saga that involves North Carolina Judge Jefferson Griffin's twirl villain mustache here, refusal to acknowledge his loss to Justice Allison Riggs on the North Carolina Supreme Court. We will also talk about the fast approaching election for a crucial, pivotal seat on the Wisconsin Supreme Court.

[Melissa Murray]

First, the fire hydrant of news from D.C. and I say fire hydrant and not fire hose because literally this administration is taking a dump on all of us. This week, the chaos and cruelty were ratcheted up, way up, beyond what previous American democracy dials could have registered. So we will walk through some of that. And because the administration is definitely pursuing the Steve Bannon, Steve Miller, flood the zone with absolute bullshit strategy, we probably won't be able to cover everything that they've done, or certainly we won't be able to cover everything in the amount of detail that we'd like. But we will get through as much as possible.

[Kate Shaw]

So let's dive right in. First up, we have had not one, not two, but by my count, three different symbolic massacres since we last gathered. So you've perhaps heard of Richard Nixon's 1973 Saturday Night Massacre in which Nixon directed Justice Department leadership to fire special prosecutor Archibald Cox because Cox was getting uncomfortably close to the truth about Watergate and the President's involvement in the COVID up. So the top two officials at DOJ resigned rather than carry out what they believe to be an unlawful order from the President, because that's what government officials of conscience of whatever political striper party used to do. Well, last week Trump said hold my Diet Coke and began filling out the other days of the week with his.

[Leah Littman]

Own massacres, just across many different fronts. This administration is truly, truly committed to making Richard Nixon great again. Of course, it began with, if the president does it, it's not illegal immunity Rul. And it has snowballed way beyond that as we are about to cover. So first iteration, on a Friday night, Trump sent messages asserting without legal authority, because who needs law anyways, that he was firing many of the inspectors general in the federal government. Inspectors general, or IGs, are important federal government watchdogs who look for waste, fraud, abuse, and also protect whistleblowers. So obviously this administration wants to show them the door, slash, give them the Heisman, even though some of the inspectors general question were people Trump himself appointed the last time he was in office? Which really shows you, right, like, how much escalation I think there has been between Trump 1.0 and 2.0.

[Kate Shaw]

Because that was a squish and this is a real hardcore version. No, that's basically what he was communicating. Or he just like, didn't notice or care and was like all the edges. I want them out. Except interestingly, there were some exceptions, like Michael Horowitz at doj, for reasons I still don't think we know was not on the list. Although maybe there's a second batch coming. They wanted, you know, sort of spread the. The deeds out over five working days might be the problem.

[Melissa Murray]

But anyway, the other two are for golf.

[Kate Shaw]

Yes, true, true. So just to underscore something that Leah just said, to be crystal clear, the law very clearly does not permit these firings in this way. One of the many post Watergate reform laws, like we're definitely talking about Nixon and Watergate a lot today and probably for years. So one of these laws was passed in the late 70s and amended since then, but it creates these positions inspectors general, and it does let the President remove IGs. But the President is required to notify Congress 30 days in advance. And this is for good reason, like to protect any investigations the IGs may be in the middle of. And it also gives Congress the chance to object to the removal of an IG if Congress thinks the removal is not on the up and up. But shockingly, Trump did not adhere to this procedure. So my view, for what it is worth, is that by law, these IGs still have their jobs. The head of the IG Council, an organization called Sigi, sent a letter saying as much late Friday. And some of the IGs in the fired batch actually seem to have agreed and refused to vacate their offices. At least one IG of the AG Department was subsequently escorted out of her office by security after she refused to leave. And even though I think she was right on the law and so was the SIGY head, unfortunately the short term resolution to this kind of legal standoff often turns on who is armed, which is obviously the security guards in this instance. But for again, what it is worth, I think if one or more of these IGs wants to fight this out in court, I give them good odds even in front of this Supreme Court because they're not, the President's not actually prevented from firing them. He just has to take some steps first. And even that was too much for Trump.

[Melissa Murray]

It's like the DACA case. Like you could do this, you just have to follow the right procedures and they never follow the right procedures.

[Leah Littman]

So I am glad to hear you think, Kate, that the IGs have good odds in front of this court. Obviously I agree that this statute is less restrictive of the President's ability to remove executive branch officers than the kinds the court has struck down recently, like in Saylo Law and Free Enterprise Fund. Those actually limited the substantive bases that the President could remove these officers. But I will note that two things are kind of giving me pause here, really. Three things. One is, I have seen some smart right leaning commentators, Jack Goldsmith among them, say he thinks this court would not rule for the IGs and would probably strike down this law also. That's just like one predictive piece of evidence. And then second is if you take their unitary executive bullshit seriously, then why could Congress impede the executive's ability to execute the law as they see fit by removing these officers? Obviously, I totally agree, the extent of the burdens are different and different in kind. But if you are a full blown unitary executive whatever, who knows. And then the third thing that, and I feel like I'm going to keep coming back to this is I'm just very concerned about what this Trump victory and a Republican Senate and Republican House mean for this court, because I worry it means the Republican appointees will feel less constrained and less bound by public opinion and politics and political pushback and more emboldened to let their freak flags fly and just do whatever moves them because they don't think they will face consequences for doing that. And so all of that makes me a little nervous. I don't know.

[Kate Shaw]

I have used the IG example for years, as you know, a modest kind of constraint that Congress can place on the President. Congress places qualification requirements like the FAA administrator is supposed be knowledgeable, a real.

[Leah Littman]

World Road Rules contestant.

[Melissa Murray]

That's a faa. That's the Secretary of Transportation.

[Leah Littman]

Of course, my bad.

[Melissa Murray]

Pauly Shore is being confirmed.

[Leah Littman]

How about DJ Pauly D? DJ Pauly D. Yeah.

[Kate Shaw]

So. So anyway, so these front end qualifications Congress has put in for hundreds of positions and these occasional back end modest requirements, procedural ones the President has to follow while still getting to fire whomever he pleases, you know, at least in these kinds of positions. And I don't think until recently that was controversial. And for what it's worth, I think that Goldsmith, who this piece in Lawfare about this is wrong. But my prediction is nevertheless probably still too optimistic.

[Leah Littman]

What if the president just really needs to get rid of the woke deep state, Kate? Right.

[Kate Shaw]

He can't.

[Leah Littman]

No, those.

[Kate Shaw]

Those 30 days.

[Leah Littman]

No, those 30 days. Right. Like, not.

[Melissa Murray]

Okay, as much as I would love for you two ladies to debate Kate's optimism versus a real world view of things, and as much as I'd love to hear more about the deep state versus the sheep state, this does feel a little bit like a sheep state with all these guys just falling into line. But there's more news. So in addition to all of that, Trump illegally fired several other executive officers as well. And he did so in a way that seems designed to provoke a test case that would allow the Supreme Court to revisit the constitutionality of independent agencies. Yes, this is a question that we have talked about on this podcast a lot over the last couple of years, and they haven't broken through. But this, this may be the opportunity. So what did he do? Donald Trump fired the Labor Relations Board member, Gwyn Wilcox. And as you know, despite board members having statutory removal protection, he took this extraordinary step anyway. What this means is that the NLRB no longer has a quorum, and accordingly, the agency can no longer do its work. And what is its work? Its work is enforcing labor laws. Because obviously this election was all about working people, workers, the rights of workers, and all of those union leaders who are all in line for Donald Trump. I hope you feel really supported now, because this is what supporting labor looks like under this administration. Congratulations.

[Leah Littman]

This is an awful development if you care at all about the labor laws of this country being enforced. And the nlrb, like many boards and commissions, must by law be bipartisan. So the Democratic board members are technically appointed by the President. But by tradition, those names come from the other party. So, for example, in the Obama White House, you know, they got the names from Mitch McConnell, but Trump doesn't care about those traditions and it's not hard to imagine him just never filling those vacancies.

[Kate Shaw]

Or maybe those bipartisanship requirements are unconstitutional as well. I really look forward to the Jekylls.

[Leah Littman]

Because unitary executive theory, right. Like the executive branch is Republican for all time and so Democrats don't get to propose executive branch nominees.

[Melissa Murray]

No qed. Nope.

[Kate Shaw]

Yeah, so that seems like where we may be headed with respect to these bipartisanship requirements. But as to this particular instance, beyond just the NLRB's inability to do its important work in the absence of a quorum, it's clear that on existing law, the statutes passed by Congress and not invalidated by the Supreme Court.

[Melissa Murray]

Stop talking nonsense. Why do you keep talking about the law?

[Kate Shaw]

I'm going to keep doing it. And I will tell her, Kate with.

[Leah Littman]

Another hashtag, take, hot take from Kate.

[Kate Shaw]

That my hot take is the law says the president has to give some reasons to fire a member of the nlrb. I know we need to make this.

[Leah Littman]

A recurring segment like Kate's Hot Kate.

[Melissa Murray]

Kate and the Law.

[Leah Littman]

Yeah, I just like Kate's hot take. I'll do it.

[Kate Shaw]

I'm happy. We could have me eat some, like, hot vegan wings maybe while I do.

[Melissa Murray]

Oh, hot ones with Kate.

[Leah Littman]

Love it.

[Melissa Murray]

Hot ones with Kate.

[Kate Shaw]

I need to think through how to do this. But anyway, I am going to press on and remind people that that's the law. The Supreme Court's, you know, conservatives have been gunning for an opportunity to overrule the precedent that it's okay to constrain the President's ability to remove members of these boards and commissions. So that case they're gunning for is the 1935 decision, Humphreys executor. And this might be the actual vehicle for the court overruling that case. And I'm going to, I don't know, disappoint you guys by suggesting here I'm not going to make an optimistic prediction about Humphrey's executive surviving. So I think, you know, it's a question of whether the Commissioner Wilcox, who has said she will challenge her firing actually proceeds with it. And if so, we are, I think, very likely looking at the demise of one of the last real internal checks on the president, which, you know, couldn't come at a better time. So there we are.

[Melissa Murray]

In addition to all that, there's more. Donald Trump also fired two EEOC commissioners. And the EEOC is the Equal Employment Opportunity Commission and is basically charged with administering all of the laws that deal with fair employment. Trump also got rid of officers at the Privacy and Civil Liberties Oversight Board. That is an arm of the federal government that is charged with, among other things, safeguarding data privacy. And obviously, this is an administration that cares a lot about your data privacy. The TikTok ban. In taking these steps, the Trump administration denied the EEOC a quorum. So as with the nlrb, they can no longer do things, including voting on any of the issues that come before them. And that too, is bad for workers in many respects. But maybe not so bad because the new EEOC acting chair has recently announced that instead of dealing with all of the different things that come before this particular commission, the EEOC is now going to be focused on whether or not private businesses allow trans people to use bathrooms that correspond to their gender identity. That is now the commission's top priority. So on balance, maybe net zero.

[Kate Shaw]

See, now you're looking for silver linings.

[Leah Littman]

You're really looking for silver linings here.

[Melissa Murray]

I am. I am.

[Kate Shaw]

All right, so just to finish rounding out the list of massacres that we alluded to up front. So on Monday, the White House sent an email that purported also in clear violation of the civil service laws to fire and stop won't stop, dozen plus members of Jack Smith's team. The letter, as I read it, just throws some like, vaguely law like language atop the claim. I have an article, too. It says I get to do what I want and then says I can't trust you to carry out my policy priorities. So you're out. And you know, these were civil servants. They have statutory protections against being removed in a fit of presidential peak. So we will once again see if one of them brings a challenge. I mean, just as to all of these developments, I have to say, I'm sure you guys have had similar conversations in the last week, but I've heard multiple former DOJ officials basically say this was the worst day or the worst week in the department's history. Just like I don't think we can overstate how devastating and disruptive these moves, and in particular, just the summary firing of all of these career prosecutors were to kind of the morale inside that operation. And obviously that's the point.

[Melissa Murray]

And these were people who worked for Jeff Sessions, so they've seen some things.

[Leah Littman]

And the toilet bowl.

[Kate Shaw]

Matthew Whitaker.

[Leah Littman]

Matthew Whitaker, right. So don't forget him.

[Kate Shaw]

His portrait is still hanging there. Who knows, he may be back in.

[Melissa Murray]

DOJ's seen some things, but not this.

[Leah Littman]

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[D]

Strict this podcast is supported by Comedy Central's Emmy Award winning series the Daily Show. Jon Stewart and the Daily show news team are kicking off 2025 with brand new episodes covering a brand new administration and a not quite brand new president. While it may feel like we've all been here before, it's never been covered like this. With Jon Stewart behind the desk kicking off every week, Comedy Central's the Daily show new tonight at 11 on Comedy Central and streaming next day on Paramount.

[Leah Littman]

There are even more DOJ developments. We wanted to note that again speak to just how quickly they are unraveling this major institution of American governance. So the department moved to drop the special counsel's cases against Trump allies Walt Nada and Carlos de Oliveira, which were of course related to the obstruction of justice, unlawful retention of classified documents, slash America's Secrets in Mar a Lago Bathroom's case out of Florida. Yeah, that one. And then also the person who is in charge of prosecuting public corruption resigned, which is great because there's definitely no corruption going on right now in front of our eyes. So I just wanted to mention a few examples of things that are definitely like, not corrupt and don't come anywhere close to corruption. One is Facebook slash meta settling a lawsuit against Donald Trump. You know, Trump sued Facebook slash meta when he was deplatformed and they agreed to pay him $25 million even though it's clear, pretty clear the lawsuit is meritless. So this seems kind of like a freebie. And that's a tip, right? It's a gratuity. Gratuity, right. And that's apparently not the only example of entities thinking about settling suits in ways that seem like windfalls for Trump. So the New York Times reported that Paramount is in talks to settle a $10 billion lawsuit Trump filed against CBS for how 60 Minutes edited Kamala Harris's interview. Right. If you wanna talk about a meritless lawsuit, Right.

[Melissa Murray]

Taylor Sheridan would never like sullying the Paramount name right there.

[Leah Littman]

But again, this seems like a mechanism to basically funnel payments to the President to make him happy. And we are also seeing in real time.

[Melissa Murray]

Well, Paramount has some other stuff going on like. So one of the things happening is that there is a potential merger between Paramount and Skydance that obviously.

[Leah Littman]

And whose approval do they need? Ah, ah, the federal governments.

[Melissa Murray]

Interesting. It seems like there's a connection.

[Leah Littman]

No, can't be. These things are totally unrelated. This is just how government works. People just exactly throw tens of millions of dollars at some institutions.

[Melissa Murray]

They settle meritless lawsuits about how you edit an interview for which you likely have First Amendment protection. But no piggy.

[Leah Littman]

Yes, no biggie.

[Melissa Murray]

Deal.

[Leah Littman]

And this is also happening at the same time that we are witnessing Elon Musk's very ever present role in fairly significant personnel decisions at the federal government. And this of course is the person who poured tens of millions, right, Just like substantial sums into electing Donald Trump and seems to have purchased himself the role of being effective free leader of the world, slash co president or varsity president, you know. And so all of that is happening again at the same time. The head person for public corruption at DOJ has decided. I'm out.

[Melissa Murray]

I have to say, just back to the Elon Musk thing. I never thought I would find myself on the same page as Steve Bannon, but I too am a little uncomfortable with how much South African influence is pervading this.

[Leah Littman]

A little South African influence that's sympathetic to the German far right could go on here.

[Melissa Murray]

But, I mean, like, Bannon said it first, but I was like, oh, wow, am I. Like, are we on the same page? Like, we might be. Interesting.

[Leah Littman]

I just wanted to draw a parallel here in the strange Bedfellows Allies thing, because what this is showing is just how absurd, outlandish, horrific it is to effectively put, you know, one of the richest men in the planet in control of the government after he's paid his way to do that. And he's basically throwing the public under the bus and. And doing what he wants. And this is leading to a strange allyship between you, me, and Steve Bannon in the same way that, like, when the Supreme Court inevitably knocks down one of the insane things out of this administration, it will not speak to the reasonableness of the Supreme Court. Just like we are not here saying Steve Bannon, voice of reason. Right, Exactly. Exactly. It is just a reflection of where the Trump administration is trying to move.

[Kate Shaw]

The goalposts to just how shark jumping all of this is. Yes. Back to Paramount for just one second. There is something so insane about the president as plaintiff. Right. Like, just that, you know, he.

[Leah Littman]

The idea that.

[Melissa Murray]

That's a law review article right there.

[Leah Littman]

Let's do it.

[Kate Shaw]

Let's do it. That's it. But I mean, the idea. Now this stuff is not going to end up in court because people are all bending the knee and settling.

[Leah Littman]

Exactly.

[Kate Shaw]

If the Supreme Court is going to invent a doctrine that ex presidents, like, can't ever be criminally prosecuted, I don't think it's too much of a stretch to say they should also invent a doctrine that. You're the fucking president. You can't sue people.

[Leah Littman]

No, no, no, no, no. Because that's exercising the executive power gate, so.

[Kate Shaw]

Right to shake down media companies.

[Leah Littman]

Exactly.

[Kate Shaw]

Got it. Okay.

[Leah Littman]

All right.

[Kate Shaw]

Well, then, I don't know, maybe we can't write the law review article together, because I think we have a fundamentally different view of how this works.

[Leah Littman]

Well, no, we would just need to seriously consider that reasonable position in which there's a deep debate in the literature about.

[Kate Shaw]

Okay, got it, got it.

[Melissa Murray]

And all we're really doing, we're not suggesting a path forward. Were just complicating the inherited narrative.

[Leah Littman]

Yes, right.

[Kate Shaw]

Sometimes, honestly, the news cycle makes me want to flee to those ridiculous tropes of law review of legal scholarship. It just feels like a safer place to be right now.

[Melissa Murray]

Lit review. And then complicating things.

[Kate Shaw]

All right, but we got to get back to the news cycle.

[Melissa Murray]

Okay, Back to the news. Okay, so we've been joking around, but this is actually really important and incredibly tragic. We want to not only acknowledge but discuss the devastating and tragic plane crash at Washington National Airport last Wednesday. As many of you know, a Blackhawk helicopter collided with a regional jet that was traveling from Wichita, Kansas to Washington, D.C. and all 67 persons on board the helicopter and the jet are presumed at this point, we're taping on Friday afternoon to be dead. And this is obviously a catastrophic event, a massive national tragedy. But what makes it worse is that we actually don't know whether or not it was avoidable, although the signs suggest that it likely was avoidable. So here's what we do know. In their first week in office, the Trump administration moved very quickly to disassemble the civil service and regulatory agencies, including many of those housed within the Department of Transportation. And that, of course, is the agency charged with airplane safety. So. So, just to walk through a few things, on the first day of the Trump administration, the faa, that's the Federal Aviation Administration, the head of that administration, the FAA administrator, quit after Elon Musk told him to resign. The administrator and Musk had butted heads over SpaceX many times before, including when the FAA administrator proposed fines for rocket explosions.

[Leah Littman]

And that's not all. Within 48 hours of Trump taking office, he fired the heads of the Transportation Security Administration, the tsa, and the head Coast Guard. He also eliminated all the members of a critical aviation security advisory group, the Aviation Security Advisory Committee, which has over the last several decades made recommendations for improving aviation security, the vast majority of which have been implemented. And the memo, firing committee members said the firings were part of a, quote, commitment to eliminating the misuse of resources and ensuring that DHS activities prioritize our national security. End quote.

[Melissa Murray]

Just time out here. A lot of this stuff was implemented post 911 because a massive terrorism act was affected through the use of airplanes that became targeted missiles. And this is just mind blowing. I still remember all of the Republicans, like, the law and order, secure the homeland Republicans, how are they down for this? Like, what happened?

[Kate Shaw]

Yeah, I mean, this, this overarching, just like, insane, monomaniacal commitment to downsizing government, hollowing out the civil service and destroying the regulatory state, like, may already be yielding tragic life and death consequences like, and maybe actually materialized on the evening of this plane crash. So, again, facts still emerging. But an initial FAA report noted that air traffic control staffing the night of the crash was, quote, unusual. And that a single air traffic controller was handling both helicopters and planes, when those jobs are usually and design performed by two different people.

[Melissa Murray]

They also operate on two different radio systems. So if there are two people monitoring them, they can be on the two different systems. But if one person is charged with dealing with both, they have to toggle back and forth between them, perhaps increasing the opportunity for error. So again, these are all of the things that are going on at the Department of Transportation, but there's still more. So exactly one week before this fatal crash, the Trump administration signed a presidential memo terminating the Biden administration's FAA hiring policy. The Biden administration had tried to hire more air traffic controllers in order to ease this manpower shortage and because of the increase in flight congestion at major airports. The memo, which is entitled President Donald J. Trump Ends DEI Madness and Restores Excellence and Safety within the faa, basically associates the Biden administration's hiring policies with unchecked, unmerited hiring of minorities and other individuals who fall under the broad and continu shifting moniker of dei, which obviously must be eliminated. So how exactly does this great administration purport to restore excellence and safety to the FAA once it's eliminated all of this hiring under dei? Well, first they appoint Sean Duffy as Secretary of Transportation. And if you don't know who Sean Duffy is, wait for it. Duffy began his time in public life as a member of the Real World. And we're not just talking about a sentient being walking around in the world. And we actually mean mtv, the Real World, where you take eight strangers, put em in a house and see what happens. But perhaps more relevant to his credentials is Duffy's time as a contestant on the real World spinoff, MTV's Road Rules. What was this deeply meritocratic appointment doing in the lead up to this tragic plane collision?

[Leah Littman]

He was issuing his own kind of DEI policy, I guess, the permissible kind. So a new Department of Transportation memo directs that the Department of Transportation and Department of Transportation supported programs will, quote, give preference to communities with marriage and birth rates higher than the national average. End quote. Because if there's any way to hire the best people and ensure aviation and highway safety, it's selecting for high marriage and birth rates.

[Kate Shaw]

What?

[Leah Littman]

Like this is some weird shit.

[Kate Shaw]

So, newly installed in the role after the crash, Duffy did, I think, actually shed some real light on this when he said, obviously it is not standard to have aircraft collide. I want to be clear on that. So that was really clear, really for sure.

[Leah Littman]

Message received, sir.

[Kate Shaw]

Knock that first statement right out of the park.

[Melissa Murray]

Not available. Was Puck not available for this position? Do you know who Puck is, Kate?

[Kate Shaw]

I think he was like a villain on reality television early on. Is that right? That's about all I got.

[Leah Littman]

You know, I personally would have gone with Johnny Bananas, but.

[Kate Shaw]

Or Survivor. What was Puck on? He was real world.

[Melissa Murray]

He was on the real world.

[Leah Littman]

Yes.

[Kate Shaw]

All right.

[Leah Littman]

Okay. And of course, now leading the Department of Defense is Pete Hegseth, another DEI hire, at least as we understand DEI and we explained it last episode, which we won't repeat here. The New York Times has reported that the Black Hawk helicopter may have deviated from its planned course. And what was Pete Hegseth doing during his first few days on the job as Secretary of Defense?

[Melissa Murray]

Shoring up America's homeland.

[Leah Littman]

If by going on Fox News to rant about DEI is shoring up America's homeland, then yes, because. And this sets the stage for what I think we also wanted to talk about, which is because there is truly no low to which this administration will not stoop. Trump, in a press conference after the crack crash, blamed the crash on, you guessed it, dei. When asked by a reporter how he knew diversity had something to do with the crash after saying the investigation was still ongoing, Trump said, because I have common sense, okay? And unfortunately, a lot of people don't. So maybe we should talk about what DEI means here and also JD Vance's later extrapolation of this principle. So, so when Trump is saying he's blaming dei, he is blaming racial minorities, women and people with disabilities for the crash. Like, it doesn't seem to matter who the air traffic controllers or pilots were. Like, this is the new all purpose excuse for men's failure. Like, it just cannot be white men's fault.

[Melissa Murray]

Basically. This is the government version of Agatha all along. It was DEI all along. And, and J.D. vance, I thought, just literally took this to a whole new level. A really just gross, disgusting level. So JD Vance, once it became clear that the plane and the helicopter were actually piloted by white men, had this to say.

[Leah Littman]

Something the President said that I think bears re emphasizing, which is that when you don't have the best standards in who you're hiring, it means on the.

[D]

One hand, you're not getting the best.

[Leah Littman]

People in government, but on the other.

[D]

Hand, it puts stresses on the people who are already there.

[Melissa Murray]

I got nothing for this. Like absolutely nothing.

[Leah Littman]

It is not the case that he is saying having non white men in these positions, it's what's causing it. It's that the existence of DEI somehow kills the vibes of white men and rubs them the wrong way to work.

[Melissa Murray]

With people of color and women that you just is like, forget how to do your job.

[Kate Shaw]

Yeah.

[Melissa Murray]

Like, how does this plane work?

[Kate Shaw]

I don't, obviously. If, in fact, it was a person of color who was the pilot in one of the instances, like, it would. They would be. They would turn the dial up to defcon. But even in the absence of that, they. They think they have a theory, which is, yes, essentially the environment itself that might contain lingering, you know, Biden hires who might not be white men is somehow responsible. It. It is absolutely vile.

[Melissa Murray]

So in this leadership vacuum that we're calling the news cycle, someone stepped in to fill the void. So former Secretary of Transportation Pete Buttigieg had this response on Twitter.

[Kate Shaw]

Wait, and we should say he does know what he's talking about because there were multiple fatal air crashes on his watch when he was the Secretary of Transportation, right?

[Melissa Murray]

No, no. In fact, there were no fatal air crashes.

[Kate Shaw]

In fact, zero. In fact, when.

[Leah Littman]

And I. I would know because I'm literally paranoid and terrified of flying. So when I saw this news, I literally became physically ill and started panicking about all of my upcoming flights.

[Melissa Murray]

So Buttigieg had this to say, quote, unquote, despicable. As families grieve, Trump should be leading, not lying. We put safety first, drove down close calls, grew air traffic control and had zero commercial airline crash fatalities out of millions of flights on our watch. Watch. Boom. President Trump now oversees the military and the faa. One of his first acts was to fire and suspend some of the key personnel who help keep our skies safe. Time for the president to show actual leadership and explain what he will do to prevent this from happening again. Buttigieg out.

[Leah Littman]

And again, just to underscore, we don't know what exactly was the cause of this crash yet, but we do know it is racist, sexist, ableist to just insist without evidence that obviously the problem is that the FA A didn't have enough straight white men or indeed had any women, minorities, or people with disabilities. So, to return to Pete Buttigieg's statement, this was one of the rare statements from a Democratic political official that actually tried to take the fight to Donald Trump.

[Melissa Murray]

I'm sorry, what is a Democrat? Can you tell me again, what is that? I haven't heard of those recently.

[Leah Littman]

I haven't heard from them if they exist. Sometimes I get texts, right, asking for.

[Melissa Murray]

Money, asking me to chip in.

[Leah Littman]

Yeah, yeah. So the Democratic Party is a dependent. Should I be claiming them on My tax forms.

[Melissa Murray]

Only if it's a fetus.

[Leah Littman]

Right. Fair. Many thoughts about this. One is Sean Duffy. There were people calling for Democrats to hold up his confirmation because road rules.

[Melissa Murray]

Because road rules.

[Leah Littman]

Not just because road rules, but because of some of the things the Trump administration was doing. And Senator Schumer and others were like, no, no, no, no.

[Melissa Murray]

Right.

[Leah Littman]

Like we're not going to do that. We're not going to play hardball. We're just going to confirm him.

[Kate Shaw]

Why are they Democratic votes? Like, not only did they obstruct it most, I don't know, 70 plus people. He had a huge, overwhelming confirmation.

[Melissa Murray]

And it's for a Road Rules contestant.

[Leah Littman]

This is not to apologize for in any sense, sense, the choices people made in the 2024 election. But Donald Trump, people report wanting to vote for him because he pretends to be fighting against this system and fighting for them. And the Democratic Party is just constitutionally incapable of doing that. Right. Like they will not stand up dual politics. Right. And try to fight against a system that is failing, stealing people. Because Donald Trump is literally handing over control of the federal regulatory states to Elon Musk, who wants to dismantle it. And again, this is at the price of the public, public safety, public money. Right. They are stealing our money, stealing our safety. And the Democrats just cannot be bothered to come up with a talking point or a fight about this.

[Kate Shaw]

And one more thing we wanted to flag about the crash. We learned from friend of the pod, Sherrilyn Ifill, that the victims of this crash included a young civil rights lawyer, Kia Duggans, who had been a member of the civil rights corps and was slated to join the faculty of Howard Law School. Our hearts go out to her friends and her family and colleagues at Howard. May her memory be a blessing.

[Leah Littman]

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[D]

This podcast is supported by Comedy Central's Emmy Award winning series, the Daily Show. Jon Stewart and the Daily show news team are kicking off 2025 with brand new episodes covering a brand new administration and a not quite brand new president. While it may feel like we've all been here before, it's never been covered like this. With Jon Stewart behind the desk kicking off every week, Comedy Central's the Daily show, new tonight at 11 on Comedy Central and streaming next day on Paramount. Plus.

[Melissa Murray]

Moving away from the crash for a moment, we should underscore that the FAA isn't the only example of what Leah was just talking about. This idea of handing over control of the government to unelected people like Elon Musk. The Washington Post reports that the highest ranking career official at the Treasury Department announced his plans to leave government. Apparently, the official got into a dispute with Elon Musk and his allies, quote, over access to sensitive payment systems, end quote. Musk's surrogates apparently wanted access to a payment system that the government uses to disperse trillions of dollars. Dollars to which the government official was like, seems like a bad idea and said no, and this caused the dispute. I mean, what on earth, what is happening here?

[Kate Shaw]

Give Musk and his lackeys all of federal government's bank account information and just trust us not to misuse it.

[Melissa Murray]

I mean, this is like literally when you get held up in a park and they're like, give me your ATM card and and only.

[Kate Shaw]

Yeah, only trillions and trillions of dollars.

[Melissa Murray]

Only trillions and trillions of dollars and oligarchs.

[Kate Shaw]

Y Y. All right, well, so don't worry. There's lots more. So related to what is happening at the FAA and DOT is the administration's announced. I don't actually know what to call this Buyout. Slash, maybe bait and switch. Non buyout.

[Melissa Murray]

So I don't think public private partnership.

[Kate Shaw]

We'Ll describe it rather than just parrot buyout. So the Office of Personnel Management, the basically human resources agency for the whole federal workforce, apparently in conjunction with or with the fingerprints of Doge Bro slash co president Elon Musk kind of, you know, all over this initiative sent the federal workforce, maybe all of it, maybe a subset not totally clear, an email basically saying if you resign by next week week you will get paid for eight months or you can stick around and risk being furloughed and eventually fired. So you guys will be shocked to hear me say this. The whole thing is legally dup.

[Melissa Murray]

What's your hot take? What's your hot take?

[Kate Shaw]

How about this though? Like part law aside, it is just wildly counterproductive if you were trying to keep talented people around to to tell to pay them to just leave, just go. I mean I guess if making government employment intolerable and letting attrition weed out a lot of people is too slow, this is one alternative to just grind the capacity of government to a halt immediately. But I'm not sure how else to understand this effort.

[Melissa Murray]

But in that spirit, someone was binging severance. It's okay.

[Leah Littman]

And you know you're calling it buyout slash non buyout because it's not actually a buyout. Right. If you looked closely at it, it was like if you agree to resign, we'll maybe let you work remotely for the next few months, but also your agency head could redeploy you. So JK unclear.

[Kate Shaw]

But then there was some like follow up like kind of Q and A advice that seemed to say you definitely will get to take the time to go get another job or take a vacation. But none of that. That's the public private partner and so definitely don't assume that that is actually the term that they are offering you if you a federal employee are listening.

[Leah Littman]

So moving on to other meshegas, we are only now getting to what happened last Monday night when the federal government, through an Office of Management and Budget memo from the acting director purported to pause trillions of dollars in government spending so federal grants and loans until they could be vetted. To be sure, said grants and loans were not advancing WOKE ideology, including because we are living in the stupidest and deadliest timeline, quote Marxist equity, transgenderism and Green New Deal social engineering polic, end quote. The memo was supposed to go into effect at 5pm last Tuesday, but even before that it was kind of in effect. The portals in the states that process Medicaid payments were reportedly Essentially taken offline, even though the administration initially said payments to individuals like Medicare and Social Security wouldn't be affected. And it said also Medicaid wouldn't be affected. But then the press secretary was like, actually, no, I need to double check that. I mean, just wild check.

[Kate Shaw]

The Medicaid either is or is not included, but we'll find out and get back to you.

[Leah Littman]

Yeah.

[Melissa Murray]

In any normal timeline, Congress might have something to say about a blatant usurpation of its authority. But in this timeline, and we can just summarize all of this, Manu Raju, who reported that a bunch of House Republicans this morning at the Doral talked about this move to freeze federal aid. They were defending Donald Trump. This included the chairman of the House Appropriations Committee, who said he didn't have a problem with the White House decision to pause the aid because that's probably what you ought to do when you're coming in as a new administration. I'm not a lawyer. I can't pontificate on what's legal.

[Leah Littman]

But then the piece de resistance of Representative Coles.

[Melissa Murray]

I'm gonna get there. I'm gonna get there. Appropriations is not a law. It's a directive of Congress.

[Leah Littman]

This is like.

[Kate Shaw]

It's a valentine.

[Melissa Murray]

This is Rudy Giuliani irrational basis review. The big one. Irrationally.

[Leah Littman]

Literally. The Constitution talks about appropriations by law, but.

[Melissa Murray]

Or directive. Or directive. An instruction from Congress, basically, the people charged with exercising legislative authority are conceding that they dgaf. Let this president do what he wants. Let the executive branch, like, you can just roll all over them. And that is what is happening.

[Kate Shaw]

Yeah. So Congress doesn't necessarily appreciate this, but Congress should be able to see that this directive does fly in the face of core constitutional allocation of authority principles. Congress has the power to spend. The president gets to execute the law. There's also a statute called the Impoundment Control act and the Administrative Procedure Act.

[Leah Littman]

This question, Kate, where. Where was the part that said the federal government gets to hand over trillions of dollars to Elon Musk in disbursements?

[Melissa Murray]

That was a different act.

[Kate Shaw]

No, no, that's right. That's in the cause. No, it's not my act, actually.

[Melissa Murray]

It's Amendment 28, which was the Equal Rights for Elon Amendment.

[Leah Littman]

Great.

[Melissa Murray]

Yeah.

[Kate Shaw]

Sorry. Okay. Yeah. Right. It's more experience.

[Melissa Murray]

Did anyone also have, like, real Youngstown vibes? I mean, like, what a time.

[Leah Littman]

I literally just did.

[Kate Shaw]

And were you able to do it at, like, were you able to put your heart into teaching it? If Congress says you can't do it. That means you can't.

[Melissa Murray]

Or did you just lay down in the fetal position on the podium?

[Kate Shaw]

I need advice for next week. Seriously.

[Leah Littman]

You know, I gave my students an excerpt of the OLC memo that was like, the president doesn't have unilateral impoundment authority and doing the inherent presidential authority analysis. So that was the approach that I took.

[Kate Shaw]

All right, we'll see how it goes.

[Melissa Murray]

Or the fetal position either won't work.

[Leah Littman]

Why not both?

[Melissa Murray]

Right.

[Kate Shaw]

So there are still some lower federal courts that do still dwell in the reality that is bounded by the Constitution, the Supreme Court's articulation of the basic principles contained in it in cases like Youngstown. And in that world, a district judge stayed this order on Tuesday afternoon in response to a complaint filed by a bunch of, you know, service providers who are beneficiaries of federal grants and aid. And this was actually just a brief administrative stay to allow for expedited briefing and argument. But, I mean, as I think our description has already made clear, the chaos and confusion are impossible to overstep State. And then things got crazier.

[Leah Littman]

This was the best part. This was the best part.

[Kate Shaw]

I screamed. I was in my office and I screamed the scream.

[Melissa Murray]

I scrumped.

[Kate Shaw]

They rescinded it with a one line OMB memo that was like, never mind. Oops. And it seemed like, my bad. Yeah, not oops, my bad, more like it. Or maybe like a, you can't fire me. I quit. To the federal courts, who were obviously not buying what they were selling, but wow.

[Leah Littman]

And then things continued from there because White House press Secretary Caroline Levitt tweeted what seemed to want to be a rescission of the recision, leading us to wonder. Love it or leave it, Levitt.

[Melissa Murray]

Always choose love it.

[Leah Littman]

Right, Exactly.

[Melissa Murray]

Always choose love it.

[Leah Littman]

Choose the bear. So it turns out you can't override an OMB memo with a tweet, but you can get federal judges interested in continuing to superintend challenges to whatever it is the administration is doing here when they announce, maybe we're just going to do it after all. So, in part because of this tweet seeming to keep this initiative alive, another federal case, this one brought by a group of Democratic states, is likely to produce another preliminary ruling against the administration. The best people, meritocracy in action.

[Melissa Murray]

It's the fuck around of times. It was the find out of times. Anyway, while all of this was unfolding, Head Start programs, domestic violence shelters, veterans programs, et cetera, et cetera, all of these programs that are funded by federal dollars were basically preparing to furlough staff, notify their beneficiaries and other participants that they would no longer be getting the services to which they had previously previously been entitled. Now it seems that all of these services are on again, but again, that seems only to be because of the whims of this particular administration and the intercession of principled judges. So watch this space at least until the next OMB memo and you know, we'll see what happens. And if you are the recipient of federal largesse, buckle up.

[Leah Littman]

So one, what do these people have against Meals on Wheels? But two, lest you think this OMB saga is over, I want to remind you all of what happened with the travel ban Muslim ban during the first Trump administration, which is remember the chaotic order that Trump just kind of shared that no one knew about, caused chaos at the orders. It was paused by courts. Then they come back with a new modified order that looks slightly more more law, like some additional lipstick on the pig. And that one also gets enjoined by some lower courts. But then it expires and they eventually.

[Melissa Murray]

Produce a third, this one with a little less Islamophobia. Less Islamophobia?

[Leah Littman]

Well, that they claim to have a little bit less Islamophobia and they claim to have resulted from some sort of interagency process. And that third iteration of the same impetus is eventually upheld by the Supreme Court. So we should not lose sight of the fact that again, this might be part of the flood the zone with shit strategy. Again, much to cover here. We definitely wanted to spend some time on the fast moving, cruel executive orders that target the trans community. So the administration has now issued multiple additional executive orders targeting trans people in truly vile, despicable and unconstitutional ways. These are the second act to and follow from a previously announced executive order that declared two genders and purported to defend women from gender ideology extremism. That previous order is already having devastating consequences. As part of the declaration that there are only two sexes and it's insistence trans people don't exist, the administration issued a directive to ensure males are not detained in women's prisons. That was part of the eo. The Huffington Post has since reported on some of the chaos and cruelty this has caused in prisons that described an account from a person incarcerated at a women's facility that maintained officers were taunting trans inmates saying we don't have to call you women anymore, taking them to segregated housing, a form of solitary confinement, possibly to eventually transfer them to men's prisons where they would face Staggeringly high risks of sexual assault, harassment, and more. Also out of fear of some of these executive orders which threaten federal funds, unless, you know, entities go along with the administration's vile pronouncements. You know, some entities have announced they will stop providing gender affirming care because they are concerned about losing out on federal funds. So UVAs have health services, for example, announced that last week. And at the time we were recording on Friday, you know, that announcement was still in place.

[Kate Shaw]

Okay, so that's sort of the fallout from the first executive order. What do these new executive orders do? So they purport to totally ban transgender individuals from the military with just shockingly offensive language about the unfitness of trans people to serve. It isn't totally clear how the order will impact current trans military members, but it clearly would prospectively ban the admission into the military of any trans people.

[Melissa Murray]

That's only the first executive order. The second one purports to crack down on schools ability to support trans students and educate people about gender identity. Although we should be very clear, the order is broadly about education and school curricula, not simply about the question of trans rights and gender and sexuality. But what the EO actually does with regard to gender and sexuality is that it attempts to require all schools that receive federal funds funding to stop any effort to protect trans and non binary students and to abandon any accommodations, acknowledgments, or inclusions of such students. It also says that these schools must stop supporting diversity measures and requires them to advance, quote, unquote, patriotic education, which the order defines as, quote, an accurate, honest, unifying, inspiring and ennobling characterization of America's founding and foundational principles, end quote. It also requires, quote, a clear examination of how the United States has admirably grown closer to its noble principles throughout its history and the concept that celebration of America's greatness and history is proper. End quote. Hmm.

[Leah Littman]

This made me wonder whether the order might make MAGA itself of dubious legality, since the premise of MAGA is that America is not already great, right? And needs to go through some sort of regratening.

[Kate Shaw]

That's an excellent album.

[Melissa Murray]

That's like MAGA is a Jamaican mom who constantly wants you to improve yourself.

[Kate Shaw]

I came a little bit. Yeah. Yeah.

[Melissa Murray]

This order is like, you were always fabulous, sweetie. It's the Kris Jenner of eos.

[Leah Littman]

Actually, it really feels like all of these orders were slapped together by some people between the ages of 18 to 22 who have been deeply radicalized by the manosphere. And it's. That's what I'm picking up.

[Melissa Murray]

And Kate, do you have a hot take about the, about this and the law?

[Kate Shaw]

I mean, we do have a First Amendment still. The justices sometimes seem interested in that.

[Melissa Murray]

And so sometimes. But only on the religion side.

[Kate Shaw]

Typically. But typically money, corporate spending too. There's a few parts of the First Amendment that they're enthusiastic about. I mean, you know, this is a vile. Both, I mean, the kind of trans eos in general are disgusting, discriminatory. And also all of these in particular, the school executive order seems like an obvious and flagrant violation of the First Amendment. And look, are there absolutely a lot of lower federal court judges who will agree with that? Yeah, I don't think there's any question. But the Supreme Court, obviously, who knows?

[Melissa Murray]

I thought you were going to mention the federal law that prohibits federal officials from telling schools what they can and cannot not teach. It's not supposed to be up to federal officers. And we've heard ad nauseam how education is a local issue. So I'm really frankly surprised to see this EO existing and. Yeah, and whatever the spending clause would like to.

[Leah Littman]

Exactly. Whatever the Supreme Court says. Right. The federal government is not supposed to be able to impose like novel, out of left field, out of nowhere conditions.

[Kate Shaw]

Or maybe the executive branch isn't topsy turvy.

[Leah Littman]

Right.

[Kate Shaw]

Like the vagueness, the midstream changes. And also it's not even the branch that's supposed to be imposing these conditions. I know it's hard to keep. It's hard to actually provide a comprehensive accounting of all of the constitutional infirmities with an order like this.

[Leah Littman]

Yeah.

[Melissa Murray]

I just want to take stock. So far, George W. Bush, Steve Bannon, and now Kate in the law. And Leah and I have vaguely agreed with all three.

[Kate Shaw]

All of these big ten guys.

[Melissa Murray]

What a world. What a world. All right, we should also talk about the executive order addressing Guantanamo Bay. As many of you might have remembered from the early aughts, Guantanamo detention really worked well for detaining suspected terrorists. That was highly ironic. But because it was obviously problematic, Trump's people decided why not build a huge, bigly new facility. Facility to detain people at Gitmo. Horrible idea. In addition to it being a horrible idea, the order itself is at war with Donald Trump's self presentation that he is going to overcome resistance from other governments and successfully close the border. At the signing ceremony, he suggested that detention is necessary because third countries might refuse to take back their nationals. And because if these individuals weren't detained, they would be able to come back into the United United States. Again, all of this seems to be intention with Trump's talk about taking a firm line at the border. Like why do we need this new facility if you strongman are taking firm steps to secure the border? I'm confused. Just me.

[Leah Littman]

Also, Guantanamo has never been used to detain people who are apprehended in the United States. Sending people there would effectively be a removal from the United States and should be subject to all of the legal protections and review governing removals like this is just insanity. Strict scrutiny is brought to you by Sundays for Dogs Sundays is fresh dog food made from a short list of human grade ingredients. It was co founded by Dr. Tori Waxman, who's a practicing veterinarian who tests and formulates every version of each recommendation recipe and sundaes contains 90% meat, 10% superfoods, and 0% synthetic nutrients or artificial ingredients. Dog parents report noticeable health improvements in their pups including softer fur, fresher breath, better poops, and more energy after switching to Sundays. Stevie my puppy loves her sundaes. She sometimes likes food with a good crunch to mix it up. She's a snacker like me and I feel good that she's snacking on high quality food. Sundaes is also convenient, so unlike other fresh dog food, sundaes does not require refrigeration or preparation because of their air drying process. Just pour and serve. The form makes it super easy for me to put the food in Stevie's puzzle toys without loading her up with junk food. When you start a Sunday subscription, you'll automatically get 20% off and free shipping on every reorder. You can cancel or pause your subscription anytime. With their 100 satisfaction guarantee, every order ships right to your door, so you'll never worry about running out of dog food again. The new year is not only the perfect time for us humans to make healthy changes, but for your pup as well. Get 40% off a two week trial of Sundays. Go to Sundays for dogs.com strict or use code strict at checkout.

[D]

This podcast is supported by Comedy Central's Emmy Award winning series, the Daily Daily Show. Jon Stewart and the Daily Show News Team are kicking off 2025 with brand new episodes covering a brand new administration and a not quite brand new president. While it may feel like we've all been here before, it's never been covered like this with Jon Stewart behind the desk kicking off every week. Comedy Central's the Daily show new tonight at 11 on Comedy Central and streaming next day on Paramount Pl.

[Kate Shaw]

I actually wanted to Point out one piece of good news, which is actually some of the early polling on some of this madness does give the sense that the public actually isn't all that into this dumpster fire. So Reuters and Ipsos did some polling at the end of the first week when a lot of these orders had just been issued. And actually, I think it's fascinating and I don't think it got a ton of play, so I did want to just mention a couple of highlights. So, one, ending birthright citizenship is very unpopular. So 59% oppose. 36.

[Melissa Murray]

Weird.

[Kate Shaw]

Approved.

[Melissa Murray]

So weird.

[Kate Shaw]

I mean, at this point, look, they chose Donald Trump. I wouldn't have been that surprised at any of this. So, actually, I did find it kind of heartening that. That some of the numbers came out the way they did. Pardoning the J6ers. 62% opposed ending all DEI programs and firing officials involved in DEI. 51% disapprove. 44% approve. So still more unpopular, ending federal efforts to hire women and minorities. That's how the question was phrased. Only 37% approve of doing that. 59% disapprove. And here is my favorite. You guys, renaming the Gulf of Mexico. It seems kind of anodyne. People hate it. 70%. 70% of survey respondents are opposed to renaming the Gulf of Mexico. So again, it just does suggest to me that. Does polling mean anything? Who knows? And these are initial impressions, but I do not think that the stuff that they are are, you know, serving up is wildly popular with most of the American public.

[Melissa Murray]

Are we supposed to take from this that the kids are okay?

[Kate Shaw]

No.

[Melissa Murray]

Okay. It could be worse.

[Kate Shaw]

They could be like, yes, give us more.

[Melissa Murray]

You're so good at this. You're so good at being optimistic. I love this about you. So, like, this is bad.

[Kate Shaw]

It's bad.

[Leah Littman]

I have something that isn't good news, but kind of humorous news, kind of. So the Wall Street Journal reported that as the Internal Revenue Service was trying to search and delete references to dei, the IRS removed some mentions of equity and inclusion from the Internal Revenue Manual. That had some unintended consequences, such as deleting language about the inequity of holding on to a taxpayer's money and also omitting references to requiring the inclusion of taxpayer identification numbers on forms.

[Melissa Murray]

All right. It's not just the federal government doing weird stuff. We should also turn to the state courts, where weird stuff also continues to happen, especially in the state of North Carolina. So, Kate, do you have an update from the Tar Heel State?

[Kate Shaw]

Regrettably, I Do so. Jefferson Griffin is still refusing to stop to let it go. Remind, reminder, he was running for the North Carolina Supreme Court. He lost to Justice Allison Riggs, but he is still pursuing, I think now three cases in Wake County Superior Court. The North Carolina Supreme Court has stayed the election board certification so those cases can go forward. Griffin, as a reminder, is continuing to press these theories about why tens of thousands of votes should be thrown out, even though none of those arguments were offered before the election. There was an an oral argument in the 4th Circuit last Monday about whether the whole, whole case should be transferred to federal court. Sounds like that argument was pretty messy and confused. And it seems likely that Griffin's tactic here is trying to get a favorable ruling in one of these many pending state cases and then get a tied vote in the North Carolina Supreme Court, leaving that ruling in effect. I just cannot imagine a more shameless and undignified way to try to get a seat at the top of a state's system of justice. But that seems to be what we're witnessed missing.

[Melissa Murray]

ProPublica had a great piece of reporting last week involving interviews with some of the voters whose votes Griffin is actually challenging in his quest to be North Carolina's next Supreme Court justice. Among Those was a 22 year old who doesn't drive because he has epilepsy and so he doesn't have a driver's license. For that reason, when he votes, he uses his Social Security number and a state issued ID that isn't a driver's license. Obviously, Jefferson Griffin took this personally, wants to throw out his vote because this individual is not using an actual driver's license. There's another voter. This is Frank Jarvis, who says he is extremely upset his wife's registration was challenged. They live in the state's eastern coast and they identify as, quote, traditional conservatives and Republicans. And right now they find that all of this, quote leaves a terrible taste in my mouth. No matter what side is doing this, I don't need that kind of person representing me on the Supreme Court, end quote. So it's not playing well in North Carolina. Jefferson Griffin but you keep, you keep trying, I guess so.

[Leah Littman]

Another state court development. We wanted to talk about Wisconsin elections for their state Supreme Court. So you all probably remember what an enormous deal it was in 2023 when Justice Janet Protesiewicz beat Dan Kelly for a seat on their state Supreme Court. This election is just as big. So Justice Ann Walsh Bradley, a liberal, is retiring. That means there's an open seat, which means that once again control of The Supreme Court of Wisconsin hangs in the balance. The candidates are Susan Crawford, who is a circuit judge in Dane county, and Brad Schimmel. From 2015 to 2019, Schimmel was the 44th Attorney General of Wisconsin, but lost his reelection bid in 2020 18. After the loss, Republican Governor Scott Walker appointed him to a Wisconsin Circuit Court seat. There are already huge amounts of money pouring into the race. Elon Musk has dipped his toe in because it's not enough to be co president of these United States. In a tweet, you have to be.

[Melissa Murray]

Co governor of Wisconsin too.

[Leah Littman]

Also shadow state Supreme Court justice. In a tweet he said, quote, very important to vote Republican for the Wisconsin Supreme Court to prevent voting for fraud. Exclamation mark.

[Kate Shaw]

I can't believe they're still trying this line like voting fraud. It just, I mean, it's insane. But the fact that he has jumped in at all and is flexing his money and his muscles is just like. Well, it's so worrying.

[Leah Littman]

Well, voting fraud is effectively dei, right? It's code for something. Right. And it's code for letting people. Racial minorities voting. Right, Exactly. And so if you are unsure where to focus your attention since November, since January, if there's so much and it is too much and you have felt just at a loss, this is your moment to get involved. You know, this is the sort of state race where you can make a difference. They often come down to a small number of votes. And getting money in now, volunteering now is a great way for ensuring a happy result in April.

[Kate Shaw]

So another development in the states to mention. Louisiana prosecutors have obtained an indictment of a New York doctor who prescribes in males medication abortion, including to patients in Louisiana. New York has a shield law that should protect physicians like the one named in the indictment. But we will see sort of how this conflict of laws and legal regimes plays out. This is something we knew was coming basically immediately following Dobbs. It seems like it's now here.

[Melissa Murray]

All right. We should also take up some of the new cases that the court will review. The court court took cert on Oklahoma statewide Virtual charter school board versus Drummond and St. Isidore of Seville Catholic Virtual School versus Drummond. These are challenges to the permissibility of a religious public charter school and they'll be consolidated for review. We should note that Justice Barrett has recused herself from the consideration of the case. And to be clear, a justice does not have to provide any explanation for decision to recuse. But it is noteworthy that Justice Barrett got some flack for Failing to recuse herself when the Court heard an earlier case, Dejoy v. Grof, where the Notre Dame Religious Liberty Clinic and a number of Notre Dame professors were involved in either filing briefs or working on that case. And Justice Barrett, as listeners will recall, was a professor at Notre Dame's law school prior to her appointment to the 7th Circuit. Here in this case, there are ties to the clinic again, but I think a more relevant fact is that Professor Nicole Stell Garnett, also a Notre Dame professor and reportedly Justice Barrett's best friend, has been an advisor to Saint Isidore's one of the litigants in this case. So this is all to say that the attention to the Court's ethical practices are not necessarily ill spent. The Justices are being more careful about when they recuse what the appearance of impropriety might look like. And that I think, is to the benefit of the court and the public.

[Leah Littman]

Given this cert grant, as well as the executive order we were talking about on patriotic education, wanted to re recommend work by Professor Caitlin Milott at Arizona State, the Education Democracy Nexus. I also recently read Mike hicksonbaugh's book they Came for the Schools. Extremely topical and very well done.

[Melissa Murray]

Kate, I need some new reading material. Do you have any recommendations? I don't want anything treacly or saccharine, so none of your hot. So what do you have?

[Kate Shaw]

I actually am reading color television, which you recommended to me. Oh, yeah, Danzi sent us.

[Melissa Murray]

But I read that already.

[Kate Shaw]

I know.

[Melissa Murray]

You got anything else for me? I want something that's bracing, gonna get me revved up and maybe keep me a little pissed off. What do you got?

[Kate Shaw]

I am waiting with bated breath for the arrival of my five copies of Leah Lippman's new Lawless.

[Melissa Murray]

I don't think I know her. Who's Leah Lippman? Tell me about Lawless.

[Kate Shaw]

Well, I haven't gotten it yet, but.

[Leah Littman]

I think Mariah Carey, me girl.

[Melissa Murray]

Wait, our girl Leah has a book and it's called Lawless.

[Leah Littman]

It's called Lawless.

[Melissa Murray]

Say more. Okay, more. I'm already intrigued.

[Kate Shaw]

The subtitle has has evolved a little bit. Leah. We remind me of the current subtitle how the Supreme Court runs on conservative grievance. Conservative grievance. Say it with us.

[Leah Littman]

Listen. Fringe theories and bad vibes.

[Kate Shaw]

Okay, and bad vibes.

[Melissa Murray]

That's exactly what I needed. Conservative grievance. Fringe theories and bad vibes injected into my veins. I'm smashing the buy now [e-mail].

[Leah Littman]

Can I tell you the chapter Title of the final chapter. Please tell me my favorite.

[Kate Shaw]

A little peek behind the curtain.

[Leah Littman]

It's called the American Psychos of the Supreme Court.

[Melissa Murray]

Oof.

[Kate Shaw]

Are there body parts in freezers? Metaphorically.

[Leah Littman]

You'll have to stay tuned. Yes. Spoiler.

[Kate Shaw]

Seriously, run, don't walk to either bookshop or your local independent bookstore or if you some behemoth that also provides the signal of books and audiobooks. But get this book. It's gonna be a really, really important pre.

[Melissa Murray]

Order it, download it while it's hot, put it on your nightstand when you get it, and read it rigorously.

[Leah Littman]

Send one to Sam.

[Melissa Murray]

Oh, you can actually gift one to your favorite justice.

[Leah Littman]

Exactly.

[Melissa Murray]

Yeah. Yeah. Congratulations, Leah. We are all waiting with bated breath for this. And Kate, much better than your last recommendation to me, which was Brett Kavanaugh's the Book of Basketball. That was written by Brett Kavanaugh.

[Leah Littman]

I'm just kidding.

[Melissa Murray]

That was actually a very good book. Bill Simmons. All right, we've got a little bit left for you today. A little bit of housekeeping. But we also wanted to note some strict scrutiny in the wild. We always love it when. When we see you guys out in the world and you come and say hello to us and tell us how much you love the pod. And so we are especially grateful to Amanda at Rowan State University, who was at a talk that I gave for MLK Day and gifted me with a lovely crocheted dumpster fire stuffy. And she said she was inspired by Leah and Kate and your favorite thing, recommendations for crocheted stuffies. So many thanks to you, Amanda. It was great to meet you at Rowan U. University.

[Leah Littman]

So, as you may know, the fires in Los Angeles have been devastating. And as someone who loved, loved, loved, loved living in Southern California, you know, we wanted to do everything we can to help those affected and support the organizations rallying around neighbors in need in the months ahead. So we just launched Friend of Los Angeles Merch in the crooked store with 100% of the proceeds going to vote Save America's Actioned Wildfire Relief Fund. Show off your LA pride with a new hat or T tee to pair with your favorite Dodgers merch or those athleisure pants you wear exclusively to erewhon. All while supporting organizations like the LA Regional Food bank, the Los Angeles Fire Department foundation, and Latino Community foundation. Shop now at crooked.com store or donate directly to the [e-mail] relief. This message has been paid for by VoteSave America. You can learn more at votesaveamerica.com this ad has not been authorized by any candidate or candidates committee.

[Melissa Murray]

Also, listeners last week on Assembly Required Senator Cory Booker of New Jersey joined Stacy Abrams for a conversation on how to communicate effectively with your elected representatives and support organizations who are pushing back on the new administration. They also shared tips for amplifying useful democratic information online. It's a terrific listen, incredibly helpful, and it made us feel a little more hopeful. So make sure you check it out wherever you get your pop podcasts and.

[Kate Shaw]

On YouTube strict scrutiny is a crooked media production hosted and executive produced by Leah Littman, Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our Associate producer. Audio support from Kyle Seglin and Charlotte Landis music by Eddie Cooper Production support from Madeline Herringer and Ari Schwartz. Matt de Groat is our head of production and thanks to our digital team Phoebe Bradford and Joe Matoski, our production staff is proudly unionized with the Writers Guild of America East. Subscribe to strict scrutiny on YouTube. To catch full episodes, find [e-mail] strictscrutinypodcast if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

[D]

Hey everybody, it's Rob Lowe here. If you haven't heard, I have a podcast that's called Literally with Rob Lowe, and basically it's conversations I've had that really make you feel like you're pulling up a chair at an intimate dinner between myself and people that I admire like Aaron Sorkin or Tiffany Haddish, Demi Moore, Chris Pratt, Michael J. Fox. There are new episodes out every Thursday, so subscribe please and listen wherever you get your podcasts. Auto insurance can all seem the same until it comes time to use it, so don't get stuck paying more for less coverage. Switch to USA Auto insurance and you could start saving money in no time. Get a quote today restrictions apply.

[Leah Littman]

USA.