Will SCOTUS Say No to Trump’s Tariffs?

Summary

Strict Scrutiny: Will SCOTUS Say No to Trump’s Tariffs?

Podcast: Strict Scrutiny (Crooked Media)
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Special Guest: Rep. Lamonica McIver
Date: November 10, 2025

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Overview

This live episode, recorded at CrookedCon, centers on the Supreme Court’s oral arguments in the high-stakes challenge to President Trump’s sweeping use of tariffs—specifically, whether the International Emergency Economic Powers Act (IEEPA) authorizes the President to impose broad reciprocal and punitive tariffs in response to trade deficits and the fentanyl trade. The hosts break down the legal, political, and practical implications of the arguments while also highlighting the Court's complex relationship with presidential power and judicial independence. Additional topics include the aftermath of recent elections, other headline Supreme Court actions, and a live conversation with Rep. Lamonica McIver about congressional oversight in the Trump era.

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Key Topics & Discussion Points

1. Setting the Scene: Political and Legal Context

• [03:20] Recent blue wave elections provided energy and possibly pressured the Supreme Court, especially the Republican appointees, to consider judicial restraint and the optics of independence.
• [04:16] Due to time, the episode forgoes coverage of the DC "Sandwich Guy" acquittal and a shadow docket order allowing the administration to issue passports with sex at birth, which Justice Jackson criticized.
• [14:07] Leah Litman notes parallels with past moments where the Court softened after electoral backlash (e.g., post-Dobbs midterms).

Memorable Moment:
Melissa Murray: "It was like everyone woke up from this collective stupor and recognized that the eggs are still expensive, the kids all have measles, there is no Department of Education, the government is shut down, and... it's all their fault." (03:15)

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2. The Tariffs Cases: Legal Framing

Background:

• [06:36] The Trump administration claims IEEPA authorizes tariffs to address "national emergencies"—trade deficits (reciprocal tariffs) and fentanyl trafficking (punitive tariffs).
• [07:29] Kate Shaw: IEEPA lets the President "deal with any unusual and extraordinary threat to the national security, foreign policy or economy" upon declaring a national emergency.

International Drama:

• [08:54] Trump retaliates to a Canadian anti-tariff Reagan ad by threatening a 10% tariff increase. Justice Sotomayor references his public “shitposts” in oral arguments, questioning if the tariffs are about economic threats or presidential pique.

Quote:
Leah Littman: "The President is just doing some global economic hotboxing." (09:00)
Kate Shaw: "[Trump] declared bathroom vanity tariffs necessary and he linked tariffs on upholstered furniture to national security, which does raise the question—is national security a code word for J.D. Vance?" (10:03)

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3. Oral Arguments Recap & Analysis

Predicted Outcomes & Justices' Positions

• [16:38] Leah: >50% chance the Court will strike down at least some tariffs; Gorsuch a likely vote, so watch Barrett or Roberts as potential swing votes.
• [18:06] Skepticism about Barrett’s reliability; she floated the possibility that tariff power is included in the President’s embargo powers.

Justice Barrett Watch:
Melissa: "Everyone who's writing their Justice Barrett independent, originalist thought pieces should just put the pen down for right now." (18:47)

Major Questions Doctrine

• [21:31] Kate: Will this doctrine—used to curtail broad executive action under ambiguous statutes, especially against Biden—apply here? Are tariffs taxes, and does abdicating to the executive branch over tariffs amount to an executive power grab?
• [24:35] Thomas: “Tell us why the major questions doctrine doesn’t apply to the President at all.” (24:55)
• [25:34] Leah: Discussion of a possible “foreign affairs” exception to the doctrine, and whether it devolves into a tool for partisanship.

Quote:
Melissa: "The Republican appointees and their emotional support billionaires are absolutely united in their mutual antipathy for taxes and flying commercial." (26:09)

What Counts as ‘Regulate’?

• [36:12] IEEPA authorizes regulation of importation. Barrett/Kagan skeptical if “regulate” includes imposing tariffs. Solicitor General struggled to find precedent, resulting in icy pushback.
• [39:42] Kagan: "It has a lot of verbs, it just doesn’t have the one you want." (39:44)

Presidential Power, ‘Emergencies’ & Hypocrisy

• [29:06] Sotomayor raises global warming as a hypothetical emergency to test the principle-neutrality of the administration's arguments.
• [30:00] Kate—Gorsuch shocks by hypothetically accepting climate change as a real “emergency,” suggesting rare willingness for principle over partisanship.

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4. Key Themes & Tensions

Doctrine as Political Weapon

• The discussion reflects on the Supreme Court’s opportunistic deployment of doctrines like "major questions"—robust against Democrats, porous for Republican aims.
• [27:38] Leah: "Major questions doctrine might not just end up being a doctrine that says Democratic presidents can't do things and Republican presidents can. It could also... say Republican presidents can do all things except raise taxes."

Hostility to Taxes & Congress

• The justices' aversion to taxes is a throughline—Republican justices seem likely to find tariffs unconstitutional because they're a species of tax.

Judicial Independence or Performative Restraint?

• [17:22] Striking down tariffs would:
  • Protect the legal legitimacy of the right-wing project.
  • Protect the Republican Party and donors from Trump’s reckless economic policy.
  • Let the Court posture as independent, even when motivated by politics.
• [28:07] Melissa: "Read my lips: no new taxes. No new tariffs either." (28:07)

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5. Notable Quotes & Moments

• On administration’s legal logic:
  • "John Sauer is the David Harbour of Solicitors General." (31:26, Leah Littman)
  • "Trickle down tariffs—piss all over the country while insisting that it's raining." (31:07, Leah Littman)
• Justice Kagan, ice-cold:
  • "It has a lot of verbs. ...It just doesn't have the one you want." (39:44, Justice Kagan)
• On the president’s view of trade:
  • “Trade deficits are country killing.” —Paraphrased (31:07)
• Droll historical reference:
  • Melissa likens the argument over “regulate” to the Princess Bride: "You keep using that word. I do not think it means what you think it means." (37:14)

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6. ‘We Need to Talk About Justice Thomas’ Segment

• [43:09] The trio notice Thomas, Alito, and Kavanaugh operating as a pro-tariff block, with Thomas running interference for the administration. Alito floats new statutory ideas post hoc instead of evaluating what was actually invoked.
• [45:00] Barrett massages Kavanaugh’s “common sense” argument into the “lesser included” theory: if embargoes are allowed, tariffs should be too.

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7. Lightning Round: Quotes and Rapid Fire Games

• [62:01] Tariff trivia and “Truth Social or John Sauer?” rapid-fire round, full of signature Strict Scrutiny wit and ribbing among the hosts.

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8. Interview with Rep. Lamonica McIver ([48:17])

• Rep. McIver discusses DOJ prosecution for performing routine congressional oversight—visiting a DHS detention facility in Newark.
• The surreal aftermath: facing criminal complaints after receiving a facility tour and soda from the same ICE agents she allegedly impeded. Describes the stress, the cost (no pro bono defense due to ethics rules), and the political goals behind targeting Democratic representatives.
• Affirmation of the need for political courage, continued oversight, and constituent focus despite threats and chilling effects.
• On the blue wave: “I keep saying it was the first day of the last days of this president and his administration.” (57:24)

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9. Breaking Down the SNAP (Food Assistance) Litigation ([75:58])

• Leah Littman and Steve Vladek explain the procedural wrangling around SNAP benefit orders, the administration’s noncompliance, and the significance of Justice Jackson’s administrative stay and procedural ingenuity.
• [80:02] Steve Vladek details the role of circuit justices in emergency applications, why Justice Jackson’s order is notable, and the race against time to deliver food aid.

Quote:
Steve Vladek: "For once, here's actually something tangible that folks who have the ability...can actually do to try to mitigate at least some of the damage: support your local food banks." (91:05)

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10. Uplifting Endnotes & Favorite Things ([70:18])

• Shoutouts to judicial moments of resistance, organizing efforts in hopelessly gerrymandered districts, and election night parties.
• Kate reads from Carl Sandburg’s “Chicago” to celebrate a court victory against DHS overreach in Chicago.
• Zoran Mamdani’s victory speech lauded for its inspiration, pro-solidarity message, and petty digs.

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Notable Quotes (with Timestamps)

• "These tariffs are a joke. And like so much of this clown car of an administration, the jokes just write themselves." —Melissa Murray [11:01]
• "The Supreme Court never does anything that doesn't serve its own purposes." —Melissa Murray [17:22]
• "Justice Barrett later notes that licenses are like licensing fees, which are kind of like tariffs. ...Maybe if the statute does specifically grant the President the authority to regulate by tariff-ish power, maybe that includes the power to straight up tariff as well." —Kate Shaw [38:07]
• "It's those women ruining the workplace by being so difficult to tell apart." —Leah Littman (after Roberts confuses Justices Kagan/Sotomayor) [46:19]

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Timestamps for Major Segments

• Tariffs Case Background: 06:36-11:01
• Political & Legal Context/Impact of Elections: 14:07-15:49
• Oral Argument Recap & Doctrinal Analysis: 16:38-47:34
• Live Interview with Rep. McIver: 48:17-58:46
• SNAP Litigation Breakdown: 75:58-91:14
• Favorites/Uplifting Moments: 70:18-75:12

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Takeaways for Listeners

• The court seems more skeptical than usual of unchecked presidential economic powers, but arguments also revealed the flexibility with which the Court applies major doctrines, especially depending on partisan contexts.
• Certain justices still seem determined to rescue the administration with creative interpretations, while others use sharp questions to test logical and principled consistency.
• The ongoing food assistance litigation shows both the stakes of executive overreach and the practical power of lower-court and procedural moves.
• The episode illustrates the importance of continued advocacy, oversight, and organizing, even in the face of official retaliation or performative judicial independence.

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Mood & Tone

• Irreverent, sharp, insightful, laced with pop culture and historical references, but also passionate and deeply engaged with the stakes for democracy and ordinary people.

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For more, subscribe and check the show notes for helpful links, essays, and book recommendations from the hosts.

Transcript

[Host 1 (Ad/Promo Voice)]

Strict scrutiny is brought to you by Planned Parenthood. The courts matter. The law matters. But so do the people behind the cases, the patients, families and communities Planned Parenthood serves every day. This year, attacks on reproductive freedom have been relentless. President Trump and Congress have defunded Planned Parenthood, a move that harms the health and lives of 1.1 million patients across the country. Planned Parenthood is in court to keep this disastrous law from taking away care from millions of people. But they urgently need your help. You can rush your gift by visiting plannedparenthood.org defend no matter the size, your donation makes a real difference, helping Planned Parenthood meet this moment and protect access to care when it matters most. Don't wait. Donate today at plannedparenthood.org defend www.plannedparenthood.org defend.

[Leah Littman]

Mr. Chief justice, please report. It's an old joke, but when I.

[Ad Voice]

Argue, a man argues against two beautiful.

[Leah Littman]

Lad like this, they're going to have the last word. She spoke not elegantly, but with unmistakable clarity.

[Representative Lamonica McIver]

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

[Leah Littman]

That they take their feet off our necks.

[Melissa Murray]

Welcome to Crooked Con, which is just like Bravocon, except with furloughs instead of facelifts. We are 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. And D.C. we are so thrilled to be here. I will be honest, we don't always feel that way about visiting DC in the age of Trump. But this week, DC just hits different.

[Leah Littman]

We love all of our DC listeners equally, but we do have a special message. Just four words, only one of them, four letters for one of our favorite friends at the pod, Sam Alito. Since we know you're listening, Sam, turn the volume up more. Seriously, has anyone checked on House Alito since Tuesday's elections? Any freak flags flying?

[Melissa Murray]

Affirmative. All right, so last Tuesday felt so energizing and encouraging. It was like everyone woke up from this collective stupor and recognized that the eggs are still expensive, the kids all have measles, there is no Department of Education, the government is shut down, and.

[Leah Littman]

It'S all their fault. The elections really did feel like a Lily Allen level diss album for fascist freaks. And it was glorious.

[Kate Shaw]

It is true. It was like, oh, wait, there's another track obliterating him. And then another. But for election returns. But because we have only got an hour and 15 minutes before we get the hook, let's get down to business. So in this show, we're just going to be able to focus on a few things from this past week. We're going to recap the oral arguments in the tariffs case, which were surprisingly not terrible. Although we did have to sit through the Solicitor General trying to convince the court that the President can, in fact, throw the global economy into chaos because he's triggered by Canadian television.

[Melissa Murray]

This is Kate's very nice way of telling you that because of time constraints, we're not going to be able to do all of the things that we typically do in an episode. So we're not going to cover all of the relevant legal news. So, for example, we are not going to be covering the acquittal of the DC Sandwich guy. And this one hurts because I've been wanting to tell you all that if the condiments don't hit, you must acquit. We're also not going to be able to cover all of the shenanigans that have been happening at 1 First street, including the most recent shadow docket order that the court issued allowing this administration to continue harassing trans people. So this is the passport case now. Thank you. There we are. As you know, in that shadow docket order, the court said that the State Department can continue to issue passports with state sex assigned at birth in defiance of what trans people like. And Justice Jackson, I think, appropriately said that this court, quote, failed to understand the assignment.

[Leah Littman]

There was, like, a brief shining period of about 24 hours after the tariff arguments where it seemed like the Roberts court might be interested in doing something vaguely approximating law and then psychological. They're fucking with us. Just the tip. Back to their BS insisting that the President is irreparably harmed by not being able to misgender trans people.

[Melissa Murray]

Okay, so in addition to not covering the legal news, it also means we are not going to be able to recap all of the cases that the court heard in the first week of the November sitting. Which means you will have to wait until next week's episode for us to cover those. And that means you will have to wait especially. Especially for our coverage of Coach Kavanaugh's epic meltdown in the case about military contractors. And spoiler alert, BWET was vely, velly upset. Upset, wet.

[Leah Littman]

Those admissions are going to make room for some great live content. We are going to be joined live by one of New Jersey's finest. Representative Lamonica McIver is here at CrookedCon to discuss the President's efforts to squash dissent and stymie congressional Oversight. But first we are going to the oral arguments on tariffs. So the tariff cases concern the President's reciprocal tariffs and trafficking tariffs. The Administration claims that these reciprocal tariffs are being imposed in response to trade deficits, while the trafficking tariffs are punishing countries that they're not doing enough to stop the fentanyl trade. The President claims that the International Emergency Economic Powers act, or ipa, gives him the authority to do both. Aipa, I don't even know her.

[Kate Shaw]

And apparently neither does the President, even Noah, because ieba, by its terms, only authorizes the President to take action to, quote, deal with any unusual and extraordinary threat to the national security, foreign policy or economy. And then when the President declares a national emergency, AIPA authorizes him to take various steps, including steps to regulate importation.

[Melissa Murray]

Coincidentally, we are discussing the tariffs cases here in this building, the Ronald Reagan building, an international trade center. And this is incredibly fortuitous because Ronald Reagan noted liberal squish among many of the things that he hated. Tariffs were at the top of the list. And incidentally, because they continue to have what we call book learning in Canada, the province of Ontario decided to do the funniest thing ever. So they made a television ad in which they invoked Ronald Reagan. And the ad was basically an anti tariff ad. So absolute king shit, right? And then our President took that personally and he was so triggered that he announced that there would be a special maple leaf Canadian punishment tariff. And to which I say, queen shit.

[Leah Littman]

So the actual post one read, quote, the Ronald Reagan foundation has just announced that Canada has fraudulently used an advertisement which is federal fake, featuring Ronald Reagan speaking negatively about tariffs. They only did this to interfere with the US Supreme Court. Tariffs are very important to the national security of the usa. Based on their egregious behavior, all trade negotiations with Canada are hereby terminated. And the second one quote, Canada was caught red handed. Ronald Reagan loved tariffs for purposes of national security in the economy, but Canada said he didn't. Because of their serious misrepresentation of the facts and hostile act, I am increasing the tariff on Canada by 10% over and above what they are paying now. In case you were wondering if all of this shitposting was a good idea while you are in active litigation oral argument, Justice Sotomayor pointed to the second shitpost and suggested that retaliation and peak rather than economic global emergencies may have been the real reasons for the tariffs. She knows what's up. The President is just doing some global economic hotboxing.

[Kate Shaw]

And to be clear, those clearly Canadian shitposts were not the first or the only time the President has said and done things that make clear that the national security bases for these tariffs is a little sketchy. So do not forget that he declared bathroom vanity tariffs necessary and he linked tariffs on upholstered furniture to national security, which does raise the question, is national security a code word for JD Vance? We will let you decide and thank you in advance for your attention to the next slide, which was, quote, we will be imposing a 50% tariff on all kitchen cabinets, bathroom vanities and associated products. Additionally, this is the Vance part. We will be charging a 30% tariff on upholstered furniture. We must protect, for national security and other reasons, our manufacturing process. And of course, thank you for your attention to this matter.

[Melissa Murray]

We say all of this to just remind you that these tariffs are a joke. And like so much of this clown car of an administration, the jokes just right themselves. And so the Supreme Court finds itself in the unenviable position of either upholding the tariffs and endorsing a series of bald faces lies or shutting this farce down and risking the President's non compliance. And I'm not one to generally be sympathetic to the court, but this does seem like you're stuck between a rock and a hard place.

[Leah Littman]

They did this to themselves though.

[Melissa Murray]

True, true. All right, yes, you can clap for they did it to themselves.

[Host 1 (Ad/Promo Voice)]

They do.

[Steve Vladek]

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[Steve Vladek]

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[Melissa Murray]

We need to do a little more table setting, though, before we get into this, so let's lay the scene.

[Leah Littman]

Okay, so the tariff argument happened the morning after Democrats ran the table with sweeping electoral victories in Virginia, New Jersey, New York City, California, Georgia, Pennsylvania, Mississippi, and and at least in my opinion, it is impossible to divorce the skepticism of some Republican justices, and I'm looking at you in particular, John G. Roberts, from the context of the previous night's election results, because this is not the first time that a court, or even this court, has put a finger in the electoral wins and made some adjustments. So back in 2022, in the aftermath of the Post Dobbs midterms, the court seemed to get that the rest of the country wasn't picking up what they were putting down. You know, nothing like a little electoral backlash to give you a sense of how people feel about you. And after those Post Dobbs midterms, the court postponed ending section 2 of the Voting Rights act, and they did not go full Leroy Jenkins on the independent state Legislature theory.

[Melissa Murray]

All right, so this is all to say that the massive blue wave likely cultivated the conditions under which the Court may actually be bestirred to exhibit at least a superficial appearance of judicial restraint and judicial independence with this particular administration. So that's something.

[Leah Littman]

And the election also may have led some of the Republican appointees to realize that there might be a Democrat in the Oval Office in the future, and hence the renewed interest in limiting presidential authority.

[Kate Shaw]

Yeah, the sort of dawning realization that Democrats can still win elections really did sort of feel like it might have colored those arguments. And President Trump earlier had made some noise about attending the arguments at the court, but alas, he chickened out and instead truthed through the pain. I'm not sure he could have sat still for the three hours it takes to listen to a Supreme Court argument, but he took to Truth Social the night before to declare that, quote, Tomorrow's U.S. supreme Court case is literally life or death for our country. And again, of course, thank you for your attention to this matter.

[Melissa Murray]

Very demure, very mindful. We are not going to make our thoughts on this inconspicuous. We have lots to say about the tariffs argument. So now let's get into it. Okay, sure.

[Leah Littman]

So I'll start. And I'm not super confident for reasons I'm sure we will get into, but I do think there is a greater than 50% chance that the court is going to invalidate the tariffs, at least some of them. The three Democratic appointees are definitely on board. I think Neil Gorsuch is already there. So really it's just one more of Barrett or the chief. And I think some Republican justices would view striking down the tariffs as good for them and good for the Republican Party because the tariffs and resulting chaos aren't popular. Striking them down is a way of protecting the right wing legal project. It saves the president, the economy, the Republican Party from Trump and the justices emotional support. Billionaires too.

[Melissa Murray]

So before we clap about that again, this Supreme Court never does anything that doesn't serve its own purposes. So taking down the tariffs would be a service to all of us, but it would also be a service to this administration that can't seem to get out of its own way. So the court will do it for them. And it's also a major service to the court because they really could use a win right now. And a win against the president in an extremely high profile case like the tariffs case could give the court the patina of independence that it really needs right now. So don't clap too hard for this one. I mean, nobody wants to tank the economy, but the court has other things going on.

[Host 1 (Ad/Promo Voice)]

Fair enough.

[Melissa Murray]

All right. I also want to be clear that you just mentioned Justice Barrett as a possible fifth vote. Again, I am not sure we can count on Justice Barrett here. So she seemed very skeptical of the prospect of really sweeping presidential power, but she also floated the theory that maybe the president did have the power to impose tariffs as part of his broader power to impose embargoes. So I will just say I do not think that Justice Barrett is a sure thing. I think everyone who's writing their Justice Barrett independent, originalist thought pieces should just put the pen down for right now.

[Leah Littman]

Are you saying she has an arrangement during arguments to be discreet and not be blatant? That is a Lily Allen reference. There will be a lot during this show because if you didn't know, a few years ago when the court overruled Roe, Olivia Rodrigo was on tour and she brought Lily Allen on stage to one of her concerts where they performed Fuck you and dedicated it to the.

[Kate Shaw]

Supreme Court, specifically by name, the justices who voted to overrule Roe. It's epic. If you haven't seen the video, pull it up and watch it.

[Melissa Murray]

I hate you and the things that you do. I hate your whole crew.

[Kate Shaw]

She kept saying, we all hate you.

[Host 1 (Ad/Promo Voice)]

Yeah.

[Kate Shaw]

I am actually more pessimistic about the likely outcome in this case, although I agree that at the arguments there was kind of much rougher sledding for the administration than I expected going in. I agree that the Chief justice seemed pretty incredulous at some of the arguments that the Solicitor General was making on behalf of the administration and that Gorsuch does seem to have reacquainted himself with his deep skepticism of extravagant claims of executive authority. And I did think that Neil Kochel, who argued on behalf of the small business challengers were, was excellent. But I agree with Melissa on Barrett. I don't think that we can take her oral argument questions as predictive. And I also think the fact that there was the kind of Tuesday night hangover on Wednesday really did color the tenor of the arguments. And by Friday, when the justices actually sit down to cast their votes, things might look a little bit different. So I'm. I am not ready to say that they're likely going down, although there's certainly a chance.

[Leah Littman]

This is all fair, but just like one more piece of evidence, and I don't know which way this cuts. So on Thursday evening, before the justices met to discuss the tariffs case at conference, Barrett was hanging out with Brett Kavanaugh. And a part of me thinks hanging around the guy who likened tariffs to doughnut holes during the argument might make you see the arguments in support of the tariffs as kind of dumb. Like, Brett Kavanaugh has no riz. On the other hand, she was speaking. Barrett was speaking with Brett Kavanaugh to an audience at the Federalist Society about how being a conservative woman at a law school quote, shows more feminism than anything else. And the idea I Know, the idea that you would think Brett Kavanaugh is the person who can tell women law students what feminism is and that feminism means embracing the ideology of ending protections for reproductive freedom reminds us she's down for some pretty intellectually bankrupt arguments. Reclaiming feminism with Brett Kavanaugh and whining about criticizing conservative students and the criticism they face on campus. But maybe we can turn to big picture argument themes.

[Kate Shaw]

Yeah, yeah, sure. So let me just maybe say one more thing and then we'll turn to big picture, which is that I am a little worried that there were not more practical questions about what it would mean to strike down the tariffs. Right. You know, would there be a need and how would tens or even maybe hundreds of billions of dollars be refunded? There was one question about that late in the argument. I thought the Kajal handled it well, but I think that that was basically it. So, okay, we have given our opening impressions, let's now turn to some big picture themes. One, does the made up major questions doctrine apply in this case or is the doctrine only for Democratic presidents? The question is sort of bound up with the more existential question of whether tariffs are taxes and therefore are an executive power grab because only Congress actually possesses the power to tax. And spoiler alert, yes, tariffs are taxes. They just are.

[Melissa Murray]

All right, so just to recap, the major questions doctrine is a court invented bit of fan fiction about how to interpret statutes that grant authority from Congress to executive agencies. And during the Biden years, the Supreme Court was really enamored of using the major questions doctrine to strike down many Biden administrations programs. So they argued that where you have broad, very general statutes, like basically any statute that was passed in the 1970s, you can't interpret that statute to offer the executive a broad grant of power for a major policy program, particularly in circumstances where those programs would be economically or politically salient. Instead, you have to have Congress make a specific grant of power in the statute to do that particular thing. And again, a statute from the 1970s that Congress wrote sort of trying to be broad and broadly textured so it could be used in the future is not going to anticipate and contemplate everything that might come down the pike. But this is all to say that the court relied on the major questions doctrine to strike down several Biden administration policies, including the student loan plan. And the student loan plan. The logic kind of went like this. You can't do this, Joe Biden, because the statute, the Patriot act, just says to modify student loan provisions, doesn't say you can waive them entirely. That is something that is of sales serious economic salience. Therefore, Congress in the Patriot act has to specifically allow you to do that. Exit out, strike it down. One would think that the logic of the student loan cases would be pretty applicable here because IPA broadly grants the authority to regulate, but it doesn't specifically mention a program of tariffs or taxes. And so this seems like a policy intervention of major economic consequence. And for that, under the major questions doctrine, you would need specific congressional authority. And that would mean that the Trump administration loses. And apparently some members of the Court took that personally.

[Kate Shaw]

Well, you know, the major questions doctrine didn't get a ton of airtime during the argument, but it was invoked in a couple of different directions. So Thomas actually asked in his first question about the doctrine, in what we really call a very leading question, he basically said to the Solicitor General, tell us why the major questions doctrine doesn't apply to the President at all.

[Melissa Murray]

A magical thinking question.

[Kate Shaw]

Exactly. But then several of the Chief Justices questions of the Solicitor General, John Sauer really seemed to suggest the Chief thought the major questions doctrine did apply. So the Chief noted that past Presidents and have never used IPA to impose these kinds of tariffs and that tariffs are consequential and controversial and those are important buzzwords in major question doctrine land. So novelty and significance are the key criteria that the Supreme Court has used when it is invoked the major questions doctrine in other cases, again at least involving Democratic administration. So the big question is, are they relevant at all?

[Leah Littman]

So a related sub theme was whether there is a foreign affairs exception to the major question. I think John Sauer tried to sideline the major questions doctrine by suggesting that it just isn't applicable because tariffs are foreign facing and because the President has a broader range of powers, both from Article 2 and from whatever Congress has delegated in IPA in the context of foreign affairs. And the Chief pushed back by picking up on something Justice Sotomayor had previously noted, namely that tariffs are taxes, taxes that are paid by Americans as taxes on goods.

[Melissa Murray]

The tax argument I think is especially significant here because the Republican appointees and their emotional support billionaires are absolutely united in their mutual antipathy for taxes and flying commercial.

[Leah Littman]

Right.

[Melissa Murray]

So this is really critical here. So if the major question doctrine applies here, it would be because these dudes hate taxes in whatever form it comes.

[Leah Littman]

Yeah. So I want to elaborate this on a little. Let's just take stock what this Court thinks the President's foreign affairs power allows presidents, or at least Republican presidents to do the foreign affairs power allows Republican presidents to discriminate against trans people by denying them passports. They literally invoked Foreign affairs, you know, to explain their decision, as if France gives two shits about whether trans people have a passport corresponding to their gender identity. But I digress. Foreign affairs also gives Republican presidents the power to decline to spend funds that Congress appropriated. That was the barely. Their logic the Court invoked to allow the president to cancel foreign aid funding. But this foreign affairs power, whatever it is, doesn't give Republican presidents the power to raise revenue. So Major questions doctrine might not just end up being, you know, a doctrine that says Democratic presidents can't do things and Republican presidents can. It could also end up being a doctrine that says Republican presidents can do all things except raise taxes.

[Melissa Murray]

That's not a Republican thing to do.

[Leah Littman]

Right, exactly. And so I want to lay this out preemptively because I feel like it is a response, a preemptive response to something we are going to hear, which is if and when the court invalidates tariffs, that's somehow going to mean the Court is above politics. And the fact that the Republican appointees pick the Chamber of Commerce and their billionaire best friends over the White House is not, in my humble opinion, exactly the best evidence that the Court is apolitical.

[Melissa Murray]

Here's a deep cut for you. Do you remember this one?

[Host 1 (Ad/Promo Voice)]

I don't know.

[Melissa Murray]

Read my lips. No new taxes. No new tariffs either.

[Leah Littman]

Okay, that's an article, too.

[Melissa Murray]

That was for all the folks over the age of 50.

[Leah Littman]

I see you.

[Host 1 (Ad/Promo Voice)]

Yeah.

[Melissa Murray]

All right. So in addition to the we hate taxes. No, seriously, we really hate taxes, there was again, this whole question of what can the President do in the context of foreign affairs? And is foreign affairs basically a get out of jail free card? And Justice Sotomayor brought this up when she said, you know what? If you invoked foreign affairs and said it three times, like Candyman, and then linked it to global warming, would that be a situation where you had something global warming that was foreign affairs related and significant in consequence? And that could get you out of the major question doctrine. Because if that was the case, the major questions doctrine doesn't apply to anything as long as you link it to foreign affairs.

[Host 1 (Ad/Promo Voice)]

Right.

[Kate Shaw]

And that would have meant that the Biden administration could have just pointed to foreign affairs and maybe global warming to justify the greenhouse gas regulation the Court struck down under the major questions doctrine, Student debt relief, even, who knows? And actually, Sotomayor was not the only justice to bring up global warming and climate change in this argument. So one of the most shocking revelations to emerge from the argument was the possibility that Neil Gorsuch believes in climate change. So, so, so, I know, I know, but listen, we're going to play you some tape. So Gorsuch asked the Solicitor General whether a president could impose a tariff on gas powered cars to address the threat of climate change abroad. To which Sauer said, obviously this administration would say that's a hoax, it's not a real crisis.

[Leah Littman]

But I'm sure you would.

[Kate Shaw]

You heard the disdain in that voice, right? That was, that was striking our little stop clock.

[Melissa Murray]

Neil Gorsuch.

[Leah Littman]

Neil Gorsuch drew the right lesson from Tuesday's election results. It's time to live out America. Shout your pronouns, get woke and stay woke.

[Kate Shaw]

So you heard a little excerpt from the Solicitor General John Sauer on the tape we just played. And in the course of answering some pretty pointed questions, he just outdid himself saying some pretty ridiculous things. So he denied that Americans would pay tariffs at all, said it would just said they would just stimulate the rebuilding of our hollowed out manufacturing base. Okay. Although in that same response he did admit that that estimates of how much tariff burden is paid by Americans range from 30 to 80%. This is the administration's own lawyer.

[Leah Littman]

I mean, Sauer tried to characterize the tariffs as something like trickle down tariffs. Again, we are at the Reagan Building claiming that they don't cost money because they actually benefit Americans. He is essentially trying to make it so the trickle down tariffs piss all over the country while they are insisting that, that it's raining.

[Kate Shaw]

So Sauer also referred to the President's determination that trade deficits are country killing, insisted that addressing those deficits would make America a strong, financially viable and respected country. It was just rhetoric that you don't ever hear in the Supreme Court. It was pretty wild in the briefs and it was even wilder in the halls of the Supreme Court.

[Leah Littman]

Basically, John Sauer is the David Harbour of Solicitors General.

[Melissa Murray]

We cannot trust anything that comes out of his mouth. We're not convinced he's not a shill for the White House.

[Leah Littman]

Again, just listen to Madeleine.

[Kate Shaw]

If you haven't listened to this album 50 times, like start to finish right now, what have you been doing with your time? Yes, please do it.

[Leah Littman]

So, you know, in many cases, a Republican administration, or at least this one, can get away with presenting Stephen Miller's diary and innermost thoughts as legal arguments because nothing matters. But in this case, the Republican Justices may go meatloaf. They would do anything for Trump, but they won't do that because in this case the Republican justices are cross pressured by their economic interests, their billionaire BFFs interests, the electoral landscape, and the need to sack up. So that kind of nonsense is not going to cut it. No intelligence insulting garbage.

[Melissa Murray]

All right, but speaking of intelligence insulting garbage, we have to talk about John Sauer's rebuttal, right? Yes. Okay, so in the rebuttal, John Sauer advanced the view that tariffs are lawful because they are regulatory in the sense that they aren't intended to raise revenue. They're just intended to encourage foreign countries to change their behavior. This is the carrot inside stick kind of theory in this case. He says, since they're just changing behavior, no one is actually paying the tariffs, therefore there's no revenue raised. And this is not a tax because I know how much you guys hate taxes.

[Kate Shaw]

So this is one of those unfortunate lawyer moments when your biggest problem is your client. Because as much as Sauer wants to engage in magical thinking about these tariffs, the President has four months of erratic changes to tariff policy, trumpeted the tariffs as a way to raise revenue, among other things.

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[Kate Shaw]

So let's move on to the second question theme in the argument. And this is where a lot of the action was, which is that Mr. Warren G. Question. Mr. Warren G. We're trying to find Mr. Warren G. Regulate.

[Melissa Murray]

Regulate.

[Kate Shaw]

That is the question. What does it mean to regulate? As we've noted, IEEPA gives POTUS authority to, among other things, regulate importation. So the Justices need to decide whether regulate importations includes levying tariffs.

[Leah Littman]

So Justices Barrett and Kagan had the most pointed questions on this issue. Barrett's initial questions, as we noted, suggested she was skeptical that regulate importations includes levying tariffs. She asked the Solicitor General whether any other statute uses the term regulate to grant tariff power, and the Solicitor General couldn't come up with one. So he just like riffed on history for a little with some originalist hotboxing, which prompted a pretty epic intervention from Justice Sotomayor.

[Kate Shaw]

If you look at that history, the history of delegates.

[Steve Vladek]

Could you just answer the Justice's question?

[Melissa Murray]

I mean, the whole episode. Have you seen the Princess Bride?

[Leah Littman]

Duh.

[Melissa Murray]

You have?

[Host 1 (Ad/Promo Voice)]

Yeah.

[Melissa Murray]

Have you?

[Kate Shaw]

Yes, many times. Really many times.

[Melissa Murray]

Okay. All right. So it reminded me of that moment in the Princess Bride where they say, you keep using that word regulate, but I do not think you know what it means. Like it was that over and over again.

[Kate Shaw]

No, the line is, I do not think it means what you think it means. Oh, okay. I have seen it.

[Melissa Murray]

Okay, okay, okay. You've got some boots on and you're feeling yourself okay? I sure am.

[Kate Shaw]

But so look. So, Justice Barrett, if you thought she was on board to shut this down, I'm going to tell you what the word was. That's basically inconceivable. That was the word, or at least it's not guaranteed. Because her later questions did suggest a possible opening for the federal government. So skeptical early on. But later, she notes that AIBA does allow the President to, by means of instructions, licenses or otherwise regulate. And she noted that licenses are like licensing fees, which are kind of like tariffs. So you can sort of see maybe if the statute does specifically grant the President the authority to regulate by tariff ish power, maybe that includes the power to straight up tariff as well.

[Melissa Murray]

So I really thought this was a stretch on her part, but she really did seem to think that she was doing something. But again, I don't see how a license is like a tax unless you think about the tariffs as just generally a license to make everything cost 40%.

[Kate Shaw]

More than it should.

[Leah Littman]

Also, her intervention there is, I think, completely inconsistent with her bananas take in the National Institutes of Health case. So there she insisted that challenging canceled NIH research grants require grant recipients to go to both federal district court and the court of claims, an arrangement that makes zero sense. And when the other eight justices told her that made no sense, she was like, oh, well, that's just the decision Congress made. But now she's trying to interpret the law so that Congress's choices make some sense to her, like these two things just do not coexist. But on this question of regulate, Justice Kagan got in on it as well, and she was ice cold, even for her. At one point, the Solicitor General said, look at all the verbs in I eapa, all the actions the President can take. To which Justice Kagan responded, it has a lot of verbs.

[Steve Vladek]

It has a lot of actions that.

[Kate Shaw]

Can be taken under this statute. It just doesn't have the one you want.

[Leah Littman]

Ouch.

[Kate Shaw]

Ice cold. But then the kind of true dagger might have come later when Sauer tried to tell her that there are limits on the President's tariff authority because AIPA can only be used for national emergencies. And Kagan shot back, well, you're arguing the President's declaration or determination of an emergency is unreviewable. And then she said, we've had cases recently which deal with the President's emergency powers. And it turns out we're in emergencies, everything, all the time, about, like, half the world. So that's not really the limit that Sauer seemed to suggest it was.

[Leah Littman]

Yeah, she was pointing out all of the Trump cases that insist there are a kajillion different emergencies.

[Kate Shaw]

So Kagan also pointed out that the Trump administration's claim that IPA authorizes tariffs would allow the President to basically avoid the many limitations Congress has created in the corpus of actual tariffing statutes. Because IPA says nothing about tariffs, but there are lots of statutes that do give the President some tariff authority. And it doesn't make any sense to read AIPA to allow the President to disregard all the conditions and limits that exist in these other statutes that really are about tariffs, or all those statutes would be totally meaningless.

[Melissa Murray]

There were also questions at the argument about how to read the statutory context. So what were the animating principles behind ipa? And Justice Jackson really pressed this point, noting that, quote, some of us care about legislative history. And then she shot a look at Brett Kavanaugh. No, I'm not. I don't know.

[Kate Shaw]

I don't know what she did.

[Melissa Murray]

I'm making that up in my mind. She did. Correct. Anyway, this is all to say that this nod to legislative history opened the door for Coach Kavanaugh to decide to get to the free throw line and toss some air balls. So he had some incredible.

[Leah Littman]

Melissa, did you just do a spot sport?

[Melissa Murray]

I did. I did a sport.

[Leah Littman]

So nice of you to put this in words that Brett will understand.

[Kate Shaw]

And sports and also Tricky Dick really are his metier sports and Nixon. Yes, because in Kavanaugh's view, aipa's origin story is actually that Nixon imposed some balance of payments tariffs. Court of Appeals upheld those, and in response, Congress enacted aipa, which, according to Kavanaugh, ratified Nixon's theory of presidential power to tariffs.

[Leah Littman]

I honest to goodness, did not realize that Brett Kavanaugh was such a fan of legislative history. This is a little bit like the guy holding a book looking at a butterfly meme. But with Brett Kavanaugh pointing at legislative history and asking, is this textualism? The way Brett Kavanaugh stumbles through oral arguments makes me think we're like an argument or two away from him just interjecting at some point. Six, seven. It could happen.

[Kate Shaw]

And it's also at least conceivable that there are that many votes against the administration, like it is possible. But Kavanaugh's attempts to rely on legislative history just didn't really square with the history of What Congress was doing vis a vis tariffs at the time, it limited tariffs in response to what Congress had done. So it would be weird for Congress then a few in response to what Nixon had done. It'd be very strange for Congress then to authorize much more sweeping tariffs. And even. And even Sam Alito seemed to recognize this.

[Melissa Murray]

Now it is time for our regularly scheduled segment. We need to talk about Justice Thomas with an addendum and his band of lost boys. So at various points during the oral argument, it sounded like Justice Thomas, Justice Alito and Justice Kavanaugh had decided to join forces to find a way to rationalize the tariffs. And have to say, I'm not sure that they really hit this one. This was not terribly successful. So during John Sauer's argument, Justice Thomas was basically serving as his second chair, running interference, throwing out friendly questions, throwing out lines of argument in support of the tariff. So he was putting in work, more work than I've seen from him in a while.

[Kate Shaw]

It was also Alita was basically doing the same thing. At one point. He started just throwing out possibilities of different statutes the President might invoke that the President hadn't actually invoked as authority for the tariffs, which if you're a government lawyer, asked to find some authority to tariff beforehand, that's fine. But if you're a SCOTUS justice reviewing the legality of already imposed tariffs, it is not how it is usually done.

[Leah Littman]

Yeah, so Kavanaugh was like really also struggling, struggling to figure out the whole textualism thing. So he attempted to invoke common sense, which is what he gestured to, of course, in the ICE racial profiling case. And we know how well that went. And on the common sense tariffs issue, Kavanaugh acknowledged that maybe the text of the statute doesn't really give the President the authority to tariff, but he insisted it does give him the authority to do some really big things like cut off all trade. So if it gives him that bigly authority, then maybe it also secretly and silently and not so much in the text, but who cares about that also gives him the authority to tariff.

[Melissa Murray]

Right. So that was something I think Justice Barrett really picked up on, and she actually massaged it into something that almost sounded kind of smart.

[Leah Littman]

Right.

[Melissa Murray]

So basically she refashioned this Kavanaugh thought bubble into what I call the lesser included argument, which is the idea that if Congress grants the President the power to levy embargoes, cutting off trade, why would it balk at letting the President do something lesser like impose a tariff? So this is kind of Like a Lily Allen move that I think Justice Barrett was doing. She took the pain of being subjected to Brett Kavanaugh's thoughts and turned it into art.

[Kate Shaw]

Okay, we are going to do a lightning round of a few final notable quotables or moments from the argument. First, just like I don't get this, but it's true. Some of our listeners cannot tell Melissa and Leah's voices apart. I know. But it seems the Chief also struggles to tell Justice Sotomayor and Justice Kagan apart. So after Sotomayor finished her questions, the Chief proceeded to call on the next most senior justice, who would be Kagan. Only he. Well, we will play the clip here.

[Melissa Murray]

Thank you, Kelsey.

[Leah Littman]

Justice on me or.

[Steve Vladek]

No, she's Justice Sotomayor.

[Kate Shaw]

She just finished Justice Kagan. General. And they're friends.

[Leah Littman]

Awkward. It's those women ruining the workplace by being so difficult to tell apart.

[Kate Shaw]

Briefly, we should just mention, since we haven't, that Justice Gorsuch, as Melissa predicted on an earlier episode, tried to make the 1930s great again by invoking and gesturing towards the non delegation doctrine. This idea that there are limits to what Congress can grant the executive branch the authority to do. In general terms, the idea threatens to undo most of the federal government as we know it today. And of course, that means that Neil Gorsuch is hot to trot with it.

[Melissa Murray]

Well, I hated it. But what I did not hate was the dulcet sounds of Samuel Alito slapping the lecture turn with his hand out of sheer annoyance and frustration because he felt so defeated on the heels of Tuesday evening and so annoyed that this court could not find it in themselves to uphold these tariffs. His heart wasn't even in this argument. Like he was completely checked out in somewhere.

[Leah Littman]

Sad, Sad Man. It's giving 4, Chan Stan or 4, Chan Sam deep cut.

[Melissa Murray]

Deep cut.

[Kate Shaw]

All right, so we will, I think, leave it there. That was the tariff argument. I actually feel more optimistic after this conversation than I did after listening to the argument. So maybe.

[Representative Lamonica McIver]

What a surprise. What a shock.

[Leah Littman]

She doesn't usually feel more optimistic after hanging out with her. That's true.

[Kate Shaw]

Usually they very far down.

[Host 1 (Ad/Promo Voice)]

Yeah.

[Leah Littman]

You know, it's not clear if the President was briefed on how the arguments went. You know, on one hand, it was reported that he, quote, heard the arguments, went well. On the other hand, later on Wednesday afternoon, he was threatening to go to war with Nigeria. So who is to say.

[Kate Shaw]

And speaking of the President having a normal one, we need to talk about the president's efforts to not only usurp congressional power, but Also, to stop Congress from using its powers.

[Melissa Murray]

And to have that discussion, we are joined by a very special guest, one of New Jersey's finest. Better than the Boss, better than Bon Jovi, and certainly way better than Samuel A. Alito. We are joined tonight by representative Lamonica McIver of New Jersey's 10th district. So we should just set the scene a little bit. Someone we often talk about on this podcast, the Attorney General, Pamela Joe Bondi, has decided to unleash the DOJ against you for doing your black job, which is being a representative.

[Kate Shaw]

Deep cut, pre election cut.

[Melissa Murray]

Being a representative and being a member of a committee that literally is charged with doing oversight of the Department of Homeland Security. And so tell us a little bit.

[Kate Shaw]

About what happened here.

[Representative Lamonica McIver]

First of all, thank you so much. It's a pleasure to be here with you all. Thank you. So, as many have been following, you know, I showed up to Delaney hall, which is a detention center in my district, in my city that I represent, to do my job. We have as members of Congress and on over on Homeland Security, we have the right to go to a detention center and inspect these facilities, make sure that they're running up to par. You know, people always talk about this whole immigration thing with me and like, hey, you know, what's your policy? Look, I didn't come to Congress with a strong immigration policy. I didn't have that on my number one list. I came to Congress to protect the people who elected me to protect them. And that is the reason why I went to Delaney hall, to go and make sure that folks who were being brought there were being treated with dignity, to make sure that they were following process and procedures. And that's what brought me there, to simply do that along with my colleagues. And so, you know, everything else was what they caused. You know, but really I was just there to protect the people that elected me to do so and to make sure things were going right at that facility.

[Kate Shaw]

So, okay, so as you alluded to, House rules and an appropriations rider actually contemplate committee members getting involved with overseeing DHS activities. So this is, is squarely within the scope of your legislative authority. And on that day, the day that you visited this facility in Newark in your district, you and two other members of Congress were there. The mayor of Newark, Ross Baraka, came to the facility, wound up getting arrested, and the federal government alleges that in the course of his arrest, you came into physical contact with ICE officers, but you were not arrested on that day. Right. You actually got a tour of the facility after all of this transpired and, and almost two weeks later you find yourself charged by criminal complaint with assaulting, resisting or impeding a federal law enforcement officer. This is so surreal. I can't believe who later gave her a tour the same day gave you a tour. So can you just tell us a little bit about what your reaction was to learning of that complaint and what it has meant to have this criminal case hanging over you?

[Representative Lamonica McIver]

Yeah, so yes, we got a tour after we like beat up officers. Well, I beat up officers. They then gave me these same people that I beat up then. I, then they then gave me a tour and they offered me a soda because we were parched. So just imagine that. I mean, we were getting, you know, Haba, Alina Haba. Who was the. Well, I don't. Is, was Haba. I don't know.

[Melissa Murray]

Who is to say?

[Representative Lamonica McIver]

I don't know. She was serving as the acting assistant attorney. She was calling my lawyer every day for two weeks, threatening, like, hey, we're going to do this, we're going to do that, we're going to charge her. I mean, literally it was back and forth for so long. But then like one night I'm like, just got from the Capitol, winding down for dinner and I just get like all of these massive text messages of screenshots from Twitter and I'm like, wait, what's happening? Like why are people sending me screenshots from Twitter? I mean usually it's of like Donald Trump stuff and I'm like looking and it's a tweet from Alina Haba's account saying that I'm being charged. And I'm like, oh shit, I'm being charged. Like, I can't believe this is happening. And so it was just really surreal, number one, to be learning about these charges on Twitter. My legal team at that time was trying to find the actual complaint, which was nowhere to be found. They didn't find it until the next morning when it was like, I guess loaded into like the system or whatever. And it was just really shocking. It's been, you know, extremely stressful at the same time because, you know, I'm facing 17 years for doing my job. It's been stressful on my family, you know, stressful on my 9 year old daughter and you know, just going through this just for simply showing up to do my job. So. And it's been expensive to say that because we actually have to fundraise to pay for our legal defense. We can't get free of pro bono help. That's against House ethics. And so we're like, busting our buds trying to pay. Well, I am, and my team and you know, the folks that are here with me, my lovely ones who are helping with this, but we have to pay for it.

[Melissa Murray]

You might need an emotional support billionaire.

[Representative Lamonica McIver]

Yeah, I do.

[Host 1 (Ad/Promo Voice)]

I do.

[Representative Lamonica McIver]

Anybody out there see me after, please?

[Melissa Murray]

I know some folks who might be.

[Kate Shaw]

Able to make a referral. Fundamental problem is that's not how we roll.

[Leah Littman]

Right, Right.

[Kate Shaw]

That is the fundamental problem. And we should just say, as to the case you have, there is pending motion to dismiss on the grounds of indictive and selective prosecution, a motion to dismiss on the grounds that the Constitution explicitly protects members of Congress from being punished for the speech and debate that they engage in. And I will note that that is in real contrast that specific constitutional immunity to the wholly fabricated presidential immunity that the Supreme Court announced back in June of last year. And so those mot to dismiss the case by your excellent legal team are pending right now.

[Representative Lamonica McIver]

Yes. Yeah. So we're literally waiting for an opinion from the judge to come down any day now. It was supposed to be on Tuesday.

[Leah Littman]

Hopefully it won't be announced on Twitter.

[Representative Lamonica McIver]

I highly doubt it, but we're waiting for an opinion any day.

[Leah Littman]

Yeah. And it was, you know, the immunity opinion, the atextual immunity opinion that Kate is alluding to. I think that has enabled, you know, some of this administration's abusive exercises of. Of law enforcement authority. Because if you look at the list of Democratic officials or candidates that this administration has arrested or charged, it is staggering. You know, it includes, I mean, not a former Democrat, but FBI Director Jim Comey, California Senator Alex Padilla, New York City's Comptroller Brad Lander, New York Attorney General Tish James. And of course, Trump has threatened, you know, other arrests or charges. You know, I guess. Representative McIver, how do Democrats challenge ICE enforcement, you know, whose abuses we are seeing every day, many fold, including those aspects that appear illegal while contending with the prospect of retribution.

[Representative Lamonica McIver]

Well, one, we have to keep doing our jobs. Right. That's the number one thing. This whole situation, while it's. I'm going through it, it's bigger than me. Right? This is a systematic effort to try to scare leaders from doing their jobs, to try to make them shut up, get out of the way, stay in the corner. And since this has happened last May, I tell colleagues and some of my colleagues have stepped up. They've gone to these facilities, they've challenged what they are doing, and we have to continue to do that. We have to hold this administration accountable and not be scared to do that. And I can understand why it's scary, right? I mean, no one wants to be, you know, facing 17 years, years in prison for just doing their job. And so it scared the hell out of people, you know, and people have the right to be scared. But when you're a leader and you have been elected, people have chosen you to represent them. You have to find your political courage to step up and represent them, you know, and use your power to do so.

[Melissa Murray]

Speaking of holding the this administration to account, the people did so on Tuesday with that big blue wave that in true Hurricane Melissa fashion crashed all over New Jersey. Right. So we saw big wins all across the country in unlikely places. What do you think this blue wave should mean for the Democratic Party and how it messages going forward?

[Representative Lamonica McIver]

Yeah, well, look, I'm not a pollster. I don't know, like, what the polls are saying or what Democrats should be doing, but I know the one thing we should really be doing is, number one, continuing to focus on people's problems and focus on making people's lives better. When I was out there campaigning with Mikey Sherrill, which we had some on top of getting Mikey Sherrill elected, we had wins up and down New Jersey. We flipped a lot of red assembly seats. I mean, just wins. And we needed it.

[Host 1 (Ad/Promo Voice)]

Okay?

[Representative Lamonica McIver]

We needed it. It was like a renewed hope for me. I was like, yes, I almost forgot what it felt like to win. And so we're truly excited about it. But many people were very frustrated about, like, what is happening nationally. I mean, we were in the middle of folks not getting their SNAP benefits, people receiving letters for healthcare, premiums rising. I mean, all of those things matter to people. And they were tired. And so I think they totally rejected Trumpism that day on Tuesday. And I keep saying it was the first day of the last days of this president and his administration. And so we have to keep it up, right? We have to keep it up. We can't just, you know, take the win on Tuesday and go crawl back underneath our beds like. No, we gotta keep the momentum going, keep pushing, keep moving forward until we get to midterms. And so that's what we need to keep pushing and worrying about people's lives and how we are really focused on people's problems.

[Kate Shaw]

Well, so I think that's a good place to leave it. We basically have to keep the fight, both politically and legally. And it's an incredibly inspiring message that even as you are being targeted in the way you are like you're not going to do anything different or stop fighting for your constituents and for the values that you believe in. And so we all need to follow your lead. So thank you so much, Representative McIver.

[Representative Lamonica McIver]

Representative Lamonica McIver.

[Host 1 (Ad/Promo Voice)]

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[Leah Littman]

And now as we promised in our last episode, it is time for a short game. We have some fun tariff related games in store for you.

[Host 1 (Ad/Promo Voice)]

Here's how it's going to work.

[Leah Littman]

I'm going to share a grab bag of tariff related questions. I will put the questions to Kate and Melissa. Obviously audience, feel free to play along and quiz yourself. But here are the stakes for you too. Whoever loses has to say something nice about Sam Alito or John Lovett other than his SAT score. Melissa, say nice things about John Lovett.

[Kate Shaw]

Even if I win.

[Leah Littman]

Okay, first question. Which of the following items has Trump not tariffed? 1. Fentanyl. 2. Upholstered furniture.

[Host 1 (Ad/Promo Voice)]

3.

[Leah Littman]

Small trucks. 4. Wines, champagne and alcohol products coming out of France.

[Melissa Murray]

Ding, ding, ding.

[Leah Littman]

Which one?

[Melissa Murray]

Small trucks.

[Leah Littman]

Kate.

[Kate Shaw]

Trucks.

[Leah Littman]

Okay, that is correct. He has only tariffed medium and heavy duty trucks or heavy. All caps. Big trucks. Okay, next one.

[Kate Shaw]

We got a tie going. We need to break this tie.

[Leah Littman]

Which item has Trump specifically announced he is not tariffing? 1. Coca Cola products or ingredients. 2. Gold.

[Host 1 (Ad/Promo Voice)]

3.

[Leah Littman]

Computer chips.

[Host 1 (Ad/Promo Voice)]

4.

[Leah Littman]

Silver Gold.

[Kate Shaw]

First of all, I really like this voice you're doing, Leah.

[Leah Littman]

Thank you.

[Kate Shaw]

I'm going with Coca Cola. Doesn't sound like me at all. He's a big Diet Coke drinker. I'm going with Coca Cola products.

[Representative Lamonica McIver]

I'm going with gold.

[Leah Littman]

Melissa wins. Kate, start thinking of your compliments.

[Melissa Murray]

The gold, Kate. Everything in Mar a Lago is covered in gold.

[Kate Shaw]

But he does drink, I think Diet Coke. Anyway. You're right. Gold clearly was right there.

[Leah Littman]

Okay, number three. The President has announced a number of products that will be tariffed in the name of national security. Which of the following products did not make the list? 1. Bathroom vanities. 2 steel. 3, Upholstered furniture, 4 kitchen cabinets.

[Kate Shaw]

I literally just did this one. So steel. No steel tariffs.

[Melissa Murray]

Bathroom vanities.

[Leah Littman]

You just did that to be nice. Melissa. The correct answer is he didn't tariff steel in the name of national security. Only bathroom vanities, upholstered furniture.

[Melissa Murray]

I have to take the train back with Kate tomorrow.

[Leah Littman]

Okay, that's true. Yeah, it's fine. We have a few others.

[Kate Shaw]

Already asked me for the window seat, and I. Frank.

[Leah Littman]

Guys. Okay. The president has a real brain trust advising him on tariff policies. Which of the following people is not among the brain trust he has explicitly turned to? One, Scott Besant.

[Host 1 (Ad/Promo Voice)]

Two.

[Leah Littman]

Jared Kushner.

[Host 1 (Ad/Promo Voice)]

Three.

[Leah Littman]

Wayne Gretzky.

[Melissa Murray]

I'm David Kushner.

[Host 1 (Ad/Promo Voice)]

Right.

[Melissa Murray]

NYU law grad Jared Kushner.

[Kate Shaw]

Correct.

[Leah Littman]

Jared Kushner is the one person the President has not explicitly invoked as a source of how he should tariff and what he should tariff.

[Melissa Murray]

Wayne Gretzky is a hockey player from.

[Leah Littman]

That's correct.

[Melissa Murray]

Canada.

[Kate Shaw]

Yep.

[Leah Littman]

Yep. Right. I wonder how Wayne Gretzky felt about being punished as a Canadian.

[Host 1 (Ad/Promo Voice)]

Anyways.

[Kate Shaw]

And Melissa just did more sports. Yeah, that was awesome.

[Steve Vladek]

Well done.

[Melissa Murray]

We're all growing.

[Leah Littman]

Okay, so for the next series of questions, the question is, did the following statement come from a Truth Social post or one of Solicitor General John Sauer's briefs?

[Kate Shaw]

Is both an option?

[Melissa Murray]

No, only one.

[Kate Shaw]

Either.

[Leah Littman]

Or, quote, one year ago, the United States was a dead country.

[Kate Shaw]

Both. Okay, fine. That's Truth Social media. Truth Social.

[Melissa Murray]

John Sauer.

[Leah Littman]

John Sauer is the answer. What Donald Trump said is, quote, one year ago, America was a dead country, not, the United States was a dead country.

[Kate Shaw]

So I think I should get credit there. You're slicing the baloney awfully thin.

[Leah Littman]

I'm just saying. Okay, one more. No, two more.

[Host 1 (Ad/Promo Voice)]

Okay.

[Leah Littman]

What? How about a ruling against the tariffs? Quote, would mean the economic ruination of the United States.

[Melissa Murray]

Ruination is a big word.

[Kate Shaw]

Okay. Sour.

[Melissa Murray]

I'm gonna say sour, too.

[Leah Littman]

Donald Trump.

[Melissa Murray]

They have a thesaurus over there.

[Leah Littman]

Sauer's version was the economic consequences would be ruinous instead of unprecedented success.

[Melissa Murray]

Not gonna lie.

[Kate Shaw]

Works better.

[Leah Littman]

Okay, last one. Who's winning at this point?

[Representative Lamonica McIver]

Me.

[Leah Littman]

Okay. I thought so. Okay, I guess if it's a tie, you both have to say nice things about Sam.

[Melissa Murray]

So think about that workshop and love it.

[Leah Littman]

Okay, next question. The tariffs are, quote, being paid by countries that have so badly abused us, end quote.

[Kate Shaw]

I'm doubting myself, but that has to be Trump.

[Melissa Murray]

I'm gonna say Trump, too.

[Leah Littman]

John Sauer.

[Melissa Murray]

It's like that thing where Dogs start to look like their owners.

[Leah Littman]

Okay, so Melissa wins. Kate.

[Melissa Murray]

Well, I want to say something nice about John Lovett, though.

[Leah Littman]

Okay. I mean, you can do that.

[Kate Shaw]

You can do that anytime.

[Melissa Murray]

You go first, you say something nice about Sam Alito.

[Kate Shaw]

No, I want to say something nice about Lovett.

[Melissa Murray]

You have to say something nice about both of them.

[Leah Littman]

Okay.

[Kate Shaw]

Sam Alito. Okay. This is Inspired by Representative McIver. Sam Alito genuinely loves the great state of New Jersey. He does. And I think that's nice.

[Melissa Murray]

Sean Lovett.

[Kate Shaw]

He once helped me rewrite a presidential memorandum to really make a it sing. And I'm. I'm grateful. I don't know if I've ever thanked him for it. Yeah, I, like, drafted it, but I want. I need. It needed a little poetry, and he could really inject that into some presidential statements, so.

[Leah Littman]

Yeah.

[Melissa Murray]

All right, my turn.

[Leah Littman]

Yes, it's your turn.

[Melissa Murray]

Well, obviously, I think Sam Alito has amazing skin for a septuagenarian, so I've said that about John Lovett. So I think it was maybe a year and a half. Half ago I showed up for Pod Save America in Brooklyn, and John was there, and he was wearing this shirt that was made out of terry cloth, and I thought, wow, that's great that he recycles his towels.

[Leah Littman]

Is that something nice? Yes.

[Melissa Murray]

I thought it was upcycling, and I thought that was inventive and clever.

[Leah Littman]

Wow. I hope you never copy compliment my fashion choices. Melissa.

[Melissa Murray]

It was a compliment.

[Leah Littman]

It was okay. Okay, so, like, if you're sweating and.

[Melissa Murray]

You already got a towel on, that's amazing.

[Leah Littman]

Again, it's not registering.

[Kate Shaw]

We're gonna have to invite him onto the show now to kind of respond to Melissa.

[Leah Littman]

Please, come on.

[Representative Lamonica McIver]

John Lovett.

[Kate Shaw]

We do.

[Leah Littman]

Loved it. We do. He graciously played J.D.

[Host 1 (Ad/Promo Voice)]

Vance.

[Leah Littman]

He play acted J.D.

[Host 1 (Ad/Promo Voice)]

Vance.

[Melissa Murray]

He also did Sam Alito.

[Leah Littman]

Exactly.

[Kate Shaw]

So actually, some of the most epic episodes of our podcast ever.

[Leah Littman]

Great story.

[Kate Shaw]

He is incredible.

[Leah Littman]

Okay, that is all we have time for as far as the game. We wanted to give a very special thanks to our intern, Jordan Thomas, who had to read every Donald Trump Truth social post to help us prepare for that, and for that, we are genuinely sorry. Feels like it might warrant hazard, and.

[Melissa Murray]

I think he had to take a leave of absence from law school Afterwards.

[Leah Littman]

It gets even worse because he did this during his birthday week. So happy birthday, Jordan.

[Melissa Murray]

Let's end with our favorite thing. So in addition to Jordan, who is definitely one of our favorite.

[Leah Littman]

And John Lovett.

[Melissa Murray]

And John Lovett.

[Kate Shaw]

Definitely not Sam Alito.

[Melissa Murray]

Let's do some favorite things.

[Leah Littman]

Let's do it.

[Kate Shaw]

We're gonna try to end actually on a few uplifting notes. So. So one of my favorite things in the last week were the Thursday dispatches from the courtroom of Judge Sarah Ellis in Chicago, who's presiding over the challenge to yes, let's, I mean, give it up for Judge Ellis and the team of lawyers challenging the egregious DHS tactics on the ground in Chicago. So in her ruling granting the injunction against DHS's truly conscience shocking conduct in the city, she read in full in the courtroom Carl Sandburg's poem Chicago. And so as a Chicagoan, you're gonna have to indulge me. Just read like two lines of it. So she read, I turn once more to those who sneer at this my city, and I give them back the sneer and say to them, come and show me another city with lifted head singing so proud to be alive and coarse and strong and cunning. And the dispatches from in the courtroom were like, like not a dry eye in the place. Like this was these lawyers and the courtroom staff have been working around the clock in the last month to put together this body of evidence that makes quite clear how egregious and unlawful DHS's conduct has been. And so this was sort of an uplifting culmination of that process. Two more quick things. 1. M. Gessens, how to be a Good Citizen of a Bad country essay in the Times last week I found really bracing and a really fun spread in New York magazine maybe a week or two ago. But on the 25 youngish New Democrats to Watch is the title of the piece. I knew some I hadn't heard of others. And keeping it strictly Midwest, I'm going to shout out Rebecca Cook running for Congress in Wisconsin's third District. But it this week, you know, gave lots of reasons for hope. And that spread had, you know, 25 or it had had a number of examples in the 25 that I was excited and hopeful about. So they'll stop there.

[Leah Littman]

I think one of my favorite things or my favorite thing is probably going to be in the same register and that is Zoran Mamdani's victory speech. Something for everyone. There was petty wishing Andrew Cuomo the best in private life. There was inspiration. He quoted Eugene Debs. There was pro fight. You know, in order to get to any of us, you have to come through all of us. It was perfection. So that's my favorite thing. I also wanted to, since we were doing some audience shout outs, give a Shout out to David Koss, who is in the audience. He put together a book event for my recent book, Lawless, at the University of Michigan Book Club. So go blue. And thank you, David. And while I have the mic, if you still haven't gotten Lawless, you [e-mail] get it now.

[Melissa Murray]

Show everyone that unlike some people, Brett Kavanaugh, you can read. All right, so my first favorite thing this week are all of the smart ladies on Twitter who just keep dunking on Ross Douthat. So keep it up, ladies.

[Leah Littman]

It's up. Yes, the work ruiners.

[Melissa Murray]

Yes, we ruin the workplace just by being ladies and having lady parts. Speaking of very smart ladies, my second favorite thing is the Can't Win Victory Fund. So there are some ladies in North Carolina, and they have the most epic idea ever. They want to recruit candidates to run as challengers in hopelessly gerrymandered districts. And as they explain, because the maps are so distorted and rigged, these district races are unwinnable. They're also typically unopposed races because they are unwinnable. But uncontested races means that lots of voters don't even show up to vote because they think their votes don't matter. That's part of the problem of gerrymandering. So this is what they're trying to do. They're trying to recruit people to run as challengers. And they're very clear, you're going to lose. You're going to lose big. But by losing, we can actually win. First of all, we will be making these candidates in the hopelessly rigged districts have to work for it and possibly piss them off. So petty as fuck, and I'm here.

[Host 1 (Ad/Promo Voice)]

For it.

[Melissa Murray]

We get to tell the truth about their shitty policies. We get to organize voters. In the process, we recruit future candidates for races that might be winnable. And most importantly, we drive up voter turnout statewide. So it is absolutely brilliant. Basically, it's like love, actually, let's go get the shit kicked out of us for democracy.

[Host 1 (Ad/Promo Voice)]

Right?

[Melissa Murray]

So let's do that. You can check them out. You can Support them at www.cantwinvictoryfund.com all right, so my last favorite thing, election night parties. And I went to a great one in New York City where I met a fan of the show. He was a very tall stricty with dark hair and a beard, and he said he absolutely loved the show.

[Leah Littman]

What was his name?

[Melissa Murray]

It was really loud, so I honestly didn't hear it. I thought it started with a Z.

[Leah Littman]

We'll leave it there.

[Melissa Murray]

We'll leave it there. All right, D.C. you have been absolutely incredible.

[Leah Littman]

So, listeners, after our live show, specifically at 9pm Something on a Friday night, we got some SCOTUS action in the SNAP challenge. Wanted to explain what it is because this is a super important case and the actions are somewhat complicated. So, as you all know, the Trump regime has refused to pay out SNAP benefits, which is the Supplemental Nutritional Assistance Program, to some more than 40 million people. This is truly sustenance for them. It prevents people from going hungry, being malnourished, starving. And this includes people who can't feed themselves adequately even though they are employed. So two district courts found the administration's actions invalid in part because Congress had.

[Host 1 (Ad/Promo Voice)]

Set aside contingency funds that had been set aside to ensure SNAP would be.

[Leah Littman]

Available in the event of a shutdown and whatnot.

[Host 1 (Ad/Promo Voice)]

And Trump initially indicated he would comply.

[Leah Littman]

He said he was just waiting for directions from the courts about how to do so. But then he changed course and on Truth Social said, quote, snap benefits will be given only when the radical left Democrats open up the government. This is basically close to just outright declaring he wasn't going to comply with the lower court orders. So plaintiffs returned to court asking for enforcement, and one of the district courts.

[Host 1 (Ad/Promo Voice)]

Found the administration was in violation of the previous court order and ordered them.

[Leah Littman]

To pay out in full the SNAP benefit. Okay, now things get additionally complicated. Administration went to the First Circuit Court of Appeals asking for a stay. That court, after some initial delay, denied an administrative stay, but they didn't rule on the actual stay request. Same time, the administration is up at the Supreme Court asking for an administrative stay, Slash stay. Okay, so with me to explain what the f is going on is the truly incomparable Steve Vladek, author of the Indispensable One first substack. He has a longer post kind of explaining some of the dynamics here. That's definitely worth checking out. But, Steve, thank you so much for joining.

[Steve Vladek]

Sure. Great to be with you, Leah. Although this whole case makes me very mad.

[Leah Littman]

It's enraging. Okay, so I guess first, can we just set the table a little bit and explain the difference between an administrative stay and a stay? Because that is where some of the action is here.

[Steve Vladek]

Yep. So I actually think it's helpful to talk about three different things.

[Leah Littman]

Perfect.

[Steve Vladek]

So you know, from a sort of big to small. Right. So when a party loses in a district court, the first thing they'll do is they'll appeal. And the appeal is like the whole like, hey, appeals court, you should reverse the lower court. The full case the full case. Right. If there's enough of an emergency. Right. The party might also ask for a stay pending appeal, meaning pause the district court ruling for the duration of the appeal, however long it takes. And that could sometimes be years. And then there's the, oh, by the way, it might take you some time to decide whether to issue a state pending appeal. And so you should issue a what's called administrative stay, which is a stay just for long enough to decide if you need to issue a stay pending appeal. A stay pending a stay, if you will. Although no one likes that formulation.

[Leah Littman]

Right. Okay. So again, just to recap, the US Court of Appeals for the First Circuit denied an administrative stay, but has not, at the time we are recording, ruled on the stay request itself.

[Steve Vladek]

And Leah, one more complication here, which I think, I mean, you know, and was sort of baked in, but we should say out loud. Judge McConnell's order required the Trump administration to fully fund November snap benefit by the end of the day on Friday. And so, as opposed to so many of the other emergency applications from the Trump administration, this one actually did have a ticking clock.

[Leah Littman]

Yeah, it was time sensitive. Okay, so court of Appeals denies the administrative stay, but still has an actual.

[Steve Vladek]

PM somewhere around there.

[Host 1 (Ad/Promo Voice)]

Right.

[Leah Littman]

And then 9:30 9:40ish PM we got an order from, I think, a somewhat surprising source. So, so Steve, can you explain the order we got and who issued it? And then we'll dive into what might be going on here.

[Steve Vladek]

Yeah. Mystery justice. So the order came from Justice Ketanji Brown Jackson, which in the abstract should not, hopefully have surprised court watchers at all, because she is the circuit justice for the First Circuit, which Leah, as you know, means she gets all of the emergency applications from any court, federal or state, within the First Circuit, including in this case, the First Circuit itself. So by rule, the Trump administration's application went to her in the first instance. It's also usually the case that it's the circuit justice and not the full court that will issue an administrative stay in those cases in which, you know, they believe the circumstances justify it. There's only one recent example that I can think of where the full court acted before the circuit justice, and that was the similarly compressed crazy Texas alien enemies ruling from April. Right. And so, you know, it went to Justice Jackson. But Leah, in a context in which she really wasn't acting all by herself, in which, you know, there was the specter that if she didn't act the way that a majority of the court wanted her to, they would have just taken it out of her hands and ruled themselves.

[Host 1 (Ad/Promo Voice)]

Right.

[Leah Littman]

And so there's this convention where like the circuit justice will refer a matter to the full court. But like, let's hypothetically say Justice Jackson had denied. Denied the administrative stay. Like, could the government have then gone to another justice or the full court to request the same?

[Steve Vladek]

So the short answer is by rule, yes. The rules expressly allow to go to a second justice. The convention at the court is, then it goes to the full court. But even internally, I don't even think it would have gotten that far. I think by 7pm if she had not already been kicking the tires, there would have been sort of a vocal, I think, majority of the justices who would have been willing to issue an order without her. And that's what happened in the AARP alien enemies case in April. The court basically ruled without Alito. So, you know, from that perspective, I think that helps to contextualize what she did. So Justice Jackson issued a two page order which by, by the way, is of itself like administrative states are usually one paragraph of boilerplate plate. So the second I saw it was two pages, I was like, interesting.

[Leah Littman]

Yeah.

[Steve Vladek]

And you know, she doesn't say a lot, but she says two things that I think are really telling. So the first thing she says is that she's issuing the administrative stay not to buy the Supreme Court more time to rule on the state pending appeal, but to buy the first Circuit more time to rule on the state pending appeal. Of course, who is she buying that time from? She's presumably buying it from a majority of her colleagues who would otherwise have jumped over the first Circuit. Right, right. So the first thing is that the way she moved by issue of this administrative stay kicks the case, at least for the moment. And maybe by the time people are hearing this, it's done. Right. But at least made the first Circuit the next mover on the state pending appeal. And she says, and I expect you to resolve the state pending pending appeal, in her words, with dispatch. Yeah, and with dispatch. So that was number one. But then the thing that really persuaded me that she had been playing like three dimensional chess here was the last sentence of this order where she says, and my administrative stay will expire 48 hours after the First Circuit rules up or down on the state pending appeal. And, you know, and that's really important because it basically forces the Supreme Court to do something. Right. Even if that something is extending the administrative stay within 48 hours of a First Circuit decision versus the court, maybe just sitting on it indefinitely.

[Leah Littman]

Yeah. And so I wanted to expand a little bit on why I think that aspect of it is quite important. Because one, had the full court been the institution or actor to grant the administrative stay, I think it is quite likely there would not have been a deadline on the administrative stay. And what that potentially allows the court to do is just not act on this SNAP case for weeks, if not months. And that is especially perilous in this situation. As individuals lives are at stake and as states are trying to decide how and when they are going to be able to make representations to people that they will actually receive their SNAP benefits. And so by providing a timeline in which people can expect there to be a decision from the Supreme Court is quite helpful. And second, I think it focuses attention on the court for that duration in a way that is quite useful. Whereas if the court had just granted an administrative stay that might be of indefinite duration, to the extent people want to push the court to, let's say, not let the Trump administration starve people as a bargaining chip in the government shutdown, then saying this is the 48 hours in which they are going to do something, I think makes that easier and avoids some of the lack of accountability around the shadow docket.

[Steve Vladek]

And just to sort of amplify this, I mean, two data points that I think will drive home why that's such a concern. You know, just on Thursday in the in or the passport case, that ruling was decided 48 days after the administration first sought emergency release leaf. And you know, there wasn't an administrative stay in that case, but in Wilcox in which there was an administrative stay, there was fully five weeks between when Chief Justice Roberts issued his administrative stay in the full court ruled. So, you know, it is absolutely true that the full court could still do what Justice Jackson might reasonably have worried about Friday night, that is to say, extend her administrative stay and make it open ended. But your, your last point, Leah, is so important right now. Instead of that being the first thing the Supreme Court does now, that will look like a conscious choice to depart from the compressed schedule that Justice Jackson has created.

[Host 1 (Ad/Promo Voice)]

Yes, no, exactly.

[Leah Littman]

And just one more. I think data point in this administrative stays can sometimes be like the ball game and really meaningfully change. You know, in the foreign aid funding case, you know, the Chief justice issued an administrative stay and that administrative stay lasted past the enforcement deadline in the lower court order. And so what that meant is the administrative stay basically pushed us past the point that the court had ordered the government to pay out the foreign aid funding. So then the court. Right. Doesn't actually have to do anything. And the government isn't under a compressed deadline. Right. To actually pay out the foreign aid funding. They draw out the litigation. They eventually go back to the Supreme Court, you know, like months later, and then the court says, actually you don't.

[Host 1 (Ad/Promo Voice)]

Have to pay out the money.

[Leah Littman]

And I think that that, again, like, really removed a layer of accountability for the Supreme Court's actions in that matter.

[Steve Vladek]

And I think it's fair. I mean, it's more than fair at this point for listeners to say this is a heck of a lot of procedural inside baseball when we're talking about people not getting food. And I hear that. I just think that the question that were sort of circling around is what else could and, or should Justice Jackson have done on Friday night? Because, you know, for better or for worse, it was Judge McConnell's order that created the immediate judicial emergency. I mean, of course, the shutdowns, the real source of the emergency here. But, and Jackson had.

[Leah Littman]

And the Trump administration refusing to use the contingency funds or the money. Right. In the Department of Agriculture fund for the tariffs that aren't revenue raising, etc. Etc.

[Steve Vladek]

As I wrote, as I wrote in my post Friday night, like you could, you know, Justice Jackson is 6 on the list of who's responsible for this.

[Host 1 (Ad/Promo Voice)]

Yeah.

[Steve Vladek]

And I know a lot of folks were very surprised that she didn't do something more critical, that she didn't, you know, stand up for people going hungry. And I think that the reality is, is that her options were limited. If you start from the assumption that, I think you and I both do, that if she didn't issue an administrative stay Friday night, the rest of the court would have.

[Leah Littman]

Yes, exactly. And that administrative stay would have looked different and would have made different.

[Steve Vladek]

It would have looked different and it almost certainly would have guaranteed that the full court would have taken longer. And, and here's, I think, Leah, the most important part, it would have cut the First Circuit out of the loop.

[Kate Shaw]

Yes.

[Steve Vladek]

Right. And. And you know, go back to the sort of what I thought was the first important thing that Jackson did in her order, which was to structure the stay in a way that really kicks this case back to the First Circuit, which now presumably is going to write an opinion. Yes. You know, I mean, I think you and I probably both assume that it will deny a stay pending appeal.

[Leah Littman]

Yes, it will deny the administrative state.

[Steve Vladek]

But that will come with reasoning. And there hasn't been a lot of reasoning in this case yet.

[Host 1 (Ad/Promo Voice)]

No, there has not been.

[Leah Littman]

Okay. So hopefully that helps people Understand, you know, what is going on and also what we are waiting for. Again, what we are waiting for at this point is the U.S. court of Appeals for the First Circuit to issue and probably an opinion about whether they are granting or denying a state pending appeal that will set off the 48 hour clock for the Supreme Court, you know, to then make some intervention in the case.

[Steve Vladek]

And at the risk of, at the risk of saying something that will almost certainly be moot by the time anyone hears it. You know, my best guess, Lee, is probably Sunday or Monday for that ruling from the First Circuit. It which you know, means it's back in the full Supreme Court, you know, Tuesday or Wednesday. And you know, I could see a world in which even Justice Jackson might extend her administrative stay a couple of days if she thinks the court is moving toward a decision. So it's possible that the first thing we'd hear from the Supreme Court is a non indefinite extension of that administrative stay. The key though, and I think this is just maybe the last point to harp on is nothing the First Circuit does or has done by the time people listen to this will change the legal status quo. Right. McConnell's orders remain blocked until they are either unblocked by Justice Jackson or by the full court.

[Host 1 (Ad/Promo Voice)]

Yep, exactly.

[Leah Littman]

Okay. So again, Steve Vladek, thank you so.

[Host 1 (Ad/Promo Voice)]

Much for hopping on to give this.

[Leah Littman]

Update over the weekend listeners. For more, please, please, please subscribe to Steve's One first, he has an excellent post on this. Now that was literally kind of real time with this to help explain everything that is going on.

[Steve Vladek]

And again, yay for plain WI fi.

[Host 1 (Ad/Promo Voice)]

Right.

[Leah Littman]

Yeah. Really appreciate you doing this, Steve, given the stakes of this case are so momentous. You know, we wanted everyone to know.

[Host 1 (Ad/Promo Voice)]

What is going on.

[Leah Littman]

We will include a link to Steve's post and one first in the show notes.

[Steve Vladek]

Thanks for having me. And I'll just say, you know, I know we often feel powerless to deal with the Supreme Court. You know, here's one place where I think we actually can do stuff. If you have the ability, support your local food banks, support your local communities who are I think especially in some states, really feeling the brunt of this.

[Leah Littman]

There are also like community restaurants, right. That are donating meals. Right. You can support them.

[Steve Vladek]

But I mean, I just like for once here's actually something tangible that folks who have the ability and the wherewithal can actually do to try to mitigate at least some of the damage of what's happening.

[Leah Littman]

Yes, agreed. So one other last note as listeners heard I gave one last plug for my book book Lawless at the Live show and I am actually running a giveaway this week. So if you buy a hardcover copy.

[Host 1 (Ad/Promo Voice)]

Of the book this week, November 11th to 16th, you can enter to win.

[Leah Littman]

Your choice of a custom T shirt. There's going to be the life of.

[Host 1 (Ad/Promo Voice)]

A stricty option, adjust the tip mug.

[Leah Littman]

Arbitrary and capricious shirt, you name it.

[Host 1 (Ad/Promo Voice)]

A link to the giveaway will be.

[Leah Littman]

In the show notes. So yeah, anyways, a lot going on and this is I guess us an outlet. So thanks as always for listening everyone.

[Steve Vladek]

Thanks everybody.

[Kate Shaw]

Strict Scrutiny is a crooked media production hosted and executive produced by Leah Lippman, Melissa Murray and me, Kate Shaw Produced and edited by Melody Rowell Michael Goldsmith is our Associate producer. Jordan Thomas is our intern. Audio support from Kyle Seglin and Charlotte Landis Music by Eddie Cooper Production support from Katie Long and Adrienne Hill. Matt de Groot is our head of production. And thanks to our digital team, Ben Hethcote Jomatoski and Johanna Case, 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. In a time full of uncertainty, one thing is clear. Students are ready to learn, to dream, to grow. But they need fully stocked classrooms to thrive. Every pencil, book and paintbrush you help fund unlocks creativity, confidence and a brighter future. Choose students. Shape the Future. Donate [e-mail] backtoschool the holidays mean more.

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