The Supremes Step In

Summary

The Commentary Magazine Podcast: "The Supremes Step In" – Detailed Summary

Release Date: April 8, 2025
Host: Jon Podhoretz
Guests: Abe Greenwald, Seth Mandel, Adam White

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1. Introduction and Current Geopolitical Developments

Hosts and Guests:

• Jon Podhoretz: Editor of Commentary Magazine
• Abe Greenwald: Executive Editor
• Seth Mandel: Senior Editor
• Adam White: Senior Fellow at the American Enterprise Institute

The episode opens with introductions and a light-hearted remark about the constitutional requirement for an AI presence, setting a collegial tone for the discussion.

2. Netanyahu-Trump Summit: Expectations vs. Reality

Key Discussion Points:

• Prime Minister Benjamin Netanyahu's Visit to Washington: Jon Podhoretz critiques the apparent lack of substantive outcomes from Netanyahu's meetings with President Donald Trump, particularly regarding tariffs and Iran.

Notable Quotes:

• Jon Podhoretz [02:05]: “...as Jewish Insider puts it, this morning, he came away with nothing. He got nothing.”
• Abe Greenwald [05:51]: “He said something like, well, I'll just say that if they say no, Iran's in a lot of danger.”

Analysis: Podhoretz expresses skepticism about the effectiveness of the summit, highlighting Netanyahu's inability to secure tangible results. The conversation touches on the complexities of direct talks with Iran, the absence of high-level negotiations since 2015, and the ambiguous nature of Trump's foreign policy maneuvers.

3. Supreme Court's Intervention in Immigration Cases

Key Discussion Points:

• Supreme Court Decision on Deportation Cases: The discussion centers on a recent Supreme Court ruling that halted deportations under the Alien Enemies Act due to procedural missteps by lower courts.

Notable Quotes:

• Seth Mandel [12:06]: “The Supreme Court said these are basically habeas corpus cases. And the right place to file that case is where the plaintiff, the detainee is being held.”
• Jon Podhoretz [13:44]: “...the Supreme Court is ruling on this habeas corpus thing, this saying these really habeas cases, but that's not really a clearly settled area of law.”

Analysis: The panel delves into the implications of the Supreme Court's decision, emphasizing the importance of proper jurisdiction in habeas corpus cases. Seth Mandel compares the current judicial climate to past administrative expansions, noting the judiciary's struggle to keep pace with executive actions. Jon Podhoretz underscores the significance of due process, arguing against labeling it as "nonsense."

4. The Administrative State and Judicial Overreach

Key Discussion Points:

• Administrative Overreach: The hosts discuss the tension between a swiftly moving administrative state and the slower judicial system, drawing parallels to previous administrations' challenges.

Notable Quotes:

• Seth Mandel [27:06]: “One last quote for you, John. At the very start of it all... presidents have a unique capacity to create an antecedent state of things.”
• Jon Podhoretz [33:16]: “...creating a sense of emergency among his opponents that is leading them into places they probably do not want to go.”

Analysis: Seth Mandel provides historical context, referencing Tocqueville and recent Supreme Court actions to illustrate the judiciary's attempt to impose order on the rapidly changing policies of the executive branch. The conversation highlights concerns about the Supreme Court's "shadow docket" and its role in managing emergency rulings.

5. Due Process and Constitutional Crisis Concerns

Key Discussion Points:

• Due Process in Deportation Cases: The panel examines the Supreme Court's unanimous stance on the necessity of due process for detainees, contrasting it with the administration's expedited deportation efforts.

Notable Quotes:

• Seth Mandel [38:56]: “The court's holding is limited to due process under the Alien Enemies Act...”
• Jon Podhoretz [43:44]: “...this is the crux or the hinge of the liberal argument that Trump is using authoritarian powers.”

Analysis: The hosts discuss how the Supreme Court's emphasis on due process challenges the Trump administration's aggressive deportation strategies. They explore the legal boundaries of presidential authority and the judiciary's role in enforcing constitutional protections, particularly under the Alien Enemies Act.

6. The Impact of Previous Administrations on Current Policies

Key Discussion Points:

• Obama Administration's Influence: Seth Mandel draws parallels between the Obama administration's EPA regulations and the current administration's immigration policies, highlighting a decade-long trend of executive overreach.

Notable Quotes:

• Seth Mandel [55:43]: “It's a problem of a world in which the restraints of custom and process and the Constitution, everyone is just now operating without internal restraints.”
• Jon Podhoretz [65:09]: “...this is a problem of a world in which the restraints of custom and process and the Constitution, everyone is just now operating without internal restraints.”

Analysis: The conversation traces the evolution of administrative power from the Obama era to the present, emphasizing how successive administrations have pushed the boundaries of executive authority. Seth Mandel discusses the perennial struggle between swift administrative actions and the judiciary's slower, more deliberate processes.

7. Political Strategies and the Future of Due Process

Key Discussion Points:

• Bipartisan Concerns Over the Administrative State: The hosts explore how both conservative and progressive factions are increasingly concerned about overreach in the administrative state, albeit from different angles.

Notable Quotes:

• Seth Mandel [72:04]: “It's a rule of law versus all administrations thing. And I hope we see more of those.”
• Jon Podhoretz [69:36]: “Rogue Judges is a 60 year issue on the right, 65 year issue on the right.”

Analysis: The panelists argue that issues surrounding the administrative state and due process transcend traditional partisan lines, becoming central to both conservative and progressive agendas. They anticipate a growing focus on judicial reforms and the limitations of executive power as key battlegrounds in future political discourse.

8. Conclusion and Forward Look

Key Discussion Points:

• Ongoing Constitutional Debates: The episode concludes with reflections on the persistent challenges in balancing executive power, judicial oversight, and the protection of individual rights.

Notable Quotes:

• Seth Mandel [72:56]: “This is such a huge problem from one administration to the next. The constant collision of fast moving executive power and fast moving trial judges.”
• Jon Podhoretz [72:56]: “...bringing us home with your homespun wisdom. I love to...”

Analysis: The hosts acknowledge the complexity of the constitutional issues at hand, emphasizing the need for continued vigilance and dialogue. They express hope that the Supreme Court will play a pivotal role in addressing the tensions between the branches of government, safeguarding due process, and upholding the rule of law.

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Notable Insights and Themes

• Balance of Power: A recurring theme is the tension between the executive branch's rapid policy implementations and the judiciary's role in ensuring constitutional adherence and due process.

• Due Process as a Pillar: The importance of due process is underscored as a fundamental element of the common law, essential for preventing abuses of power and protecting individual rights.

• Judicial Independence: Concerns about potential biases and conflicts of interest within the judiciary highlight the ongoing debate about judicial impartiality and integrity.

• Historical Context: References to historical figures like Tocqueville and past administrations provide a broader perspective on current challenges, illustrating how enduring these issues are.

• Bipartisan Relevance: The discussion reveals that concerns over administrative overreach and judicial processes are not confined to one political side, indicating a shared interest in maintaining constitutional checks and balances.

Conclusion

In "The Supremes Step In," The Commentary Magazine Podcast offers a nuanced examination of the interplay between the executive branch and the judiciary in the context of recent immigration policies and Supreme Court decisions. Through insightful dialogue, the hosts and guests dissect the implications of the Supreme Court's interventions, the evolving nature of the administrative state, and the enduring significance of due process in American governance. The discussion emphasizes the necessity of maintaining a balanced power structure to prevent constitutional crises and uphold the rule of law.

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Note: This summary excludes advertisement segments as per the directives, focusing solely on the substantive discussions and analyses presented by the hosts and guests.

Transcript

[Jon Podhoretz]

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[Seth Mandel]

Preach and pain Some die at first.

[Jon Podhoretz]

The way of knowing which way it's.

[Seth Mandel]

Going Hope for the best, Expect the.

[Jon Podhoretz]

Worst Hope for the best welcome to the Commentary Magazine daily podcast. Today is Tuesday, April 8, 2025. I am Jon Podhoritz, the editor, Commentary magazine. With me, as always, Executive Editor Abe Greenwald. Hi, Abe.

[Abe Greenwald]

Hi John.

[Jon Podhoretz]

Senior Editor Seth Mandel. Hi, Seth.

[Adam White]

Hi, John.

[Jon Podhoretz]

And senior fellow at the American Enterprise Institute and our old friend Adam White. Hi, Adam.

[Seth Mandel]

Hi, John.

[Jon Podhoretz]

Because neither Christine nor Matt is on, we of course are obliged by law. It's actually, I believe, the 29th Amendment to the Constitution of the United States that someone from AI must be on the Commentary Magazine podcast. And so Adam has kindly agreed to fit the bill so that we do not find ourselves in a constitutional crisis. We are going to discuss questions relating to possible constitutional crises in a minute. But before we do that, of course Prime Minister Benjamin Netanyahu was in Washington yesterday for meetings in the White House and in the Oval Office with a spray with Donald Trump in the afternoon. And I think it is fair to say that, as Jewish Insider puts it, this morning, he came away with nothing. He got nothing. He came I don't know what he wanted. I don't know why Trump wanted him here, but he came to see if he could do something about the tariffs. He got nothing on the tariffs. He may have come to talk about doing something with Iran. He doesn't seem to have come up with anything on Iran except being told in his presence that the United States has decided to launch what the President referred to as direct talks with Iran. Now, direct talks with Iran have not taken place in between America and Iran, I believe in nine years. I mean there haven't been direct, formal, high level talks since 2015. 20. I don't think the Biden people actually did anything that could be Constitution called direct talk. So that would leave John Kerry negotiating as Secretary of State for Barack Obama with. Help me out, Seth. What was the guy the Iranian Foreign Minister to? Whoever loved can remember his name Again, no one remembers his name. Foreign Minister.

[Abe Greenwald]

Oh my God.

[Jon Podhoretz]

It's bad. I can't remember his name anyway. How art the mighty fallen. How. How brain cells die as you approach your 64th birthday, nonethele less. Seth and Abu are both too young to be having the same problem that I'm having. Anyway, Iranian Foreign Minister and John Kerry negotiating together to create the of course, horror. Oh, but you looked it up. Yeah, I was killing the reef. Thank you. Okay. Anyway, so we're now going to have direct talks at a very high level. Apparently that high level is Steve Witkoff, which is to say high level the way that QVC is a high level television channel. It's high level because Trump seems to like Witkoff. It's low level because Witkoff is a low level fourth rate joke. But nonetheless, here we are going to be having negotiations with Iran over God knows what Trump wrote the Ayatollah letter. The Ayatollah said, I will destroy you and kill every Jew and blow up the planet. And we're still having direct talks with them. Maybe it's a last warning before we give Israel the green light to do something. Maybe it's a last warning before we join in Israel doing something. Kind of doubt. It didn't sound like that was where Trump was headed based on what he said. But of course, what Trump says and what he means can be two different things. So I said yesterday, maybe this is all about Iran. I was wrong. So congratulations to me for being wrong. I'm admitting that I'm wrong. And I hope that maybe he would wag the dog to avoid the topic of tariffs was like all such pop culture inspired hopes, foolish. So what do we have to say about this, Abe?

[Abe Greenwald]

Well, I don't think it was as. I mean, he did look, he said we're gonna talk to Iran, very high level, can't tell you any more than that. And then he was asked directly if the Iranians don't agree to a deal, whatever that means, would you attack or support an Israeli attack on them? And he said something like, well, I'll just say that if they say no, Iran's in a lot of danger. So there was, you know, it was one of those Trumpy Hell. Hell, you'll be in hell. Yeah, you know, vague things, which. Look, he's told that to a lot of people who still aren't in hell, so.

[Jon Podhoretz]

Well, better that I suppose than not saying you're in hell if, if you're, if you're dealing with Iran.

[Abe Greenwald]

Yes, I'm saying he was there. What he was backing it up with, with something.

[Jon Podhoretz]

Right. And I should say when I say that Bibi got nothing, it is actually not fair to say that. Bibi, it is very meaningful in the world context. Even in 2025, even with the change in government, all of that, for the American President to have the Israeli Prime Minister in his office saying, we are with you, we are with Israel. Like this is, we are the only country in the world aside from Argentina and Czechia, which moved its embassy to Jerusalem this weekend, and Hungary, which moved its embassy to Jerusalem. Like there are like three countries in the world that are willing to say that they stand with Israel. The United States is the fourth. It doesn't mean nothing. And I shouldn't pooh pooh it. It means a lot. And this weird world in which we keep being told by people like Michael Roth of Wesleyan and Yair Rosenberg of Moronhood that it's really terrible that Trump is so philo Semitic cuz he isn't really, he's anti Semitic. And Jews shouldn't fall for it because just because he's fighting for Jews on campuses doesn't mean that he's not terrible. Since Michael Roth has done absolutely nothing to fight for Jews on his own campus, attacking somebody else who is actually trying to do something to fight for Jews on campuses is yet another mark of his unspeakable leadership, of that of his and his intellectual and solipsistic disgrace nonetheless. So I'm not saying it's nothing. So I wanted to take back my nothing. Seth. Yeah.

[Adam White]

I saw a video of Donald Trump pulling the chair out for Bibi to sit down on and then pushing it in. And, and I, and I was thinking to myself, that's reason enough to come to America to have Donald Trump pull a chair out for you. And Push it in as you sit down, you know, like you're sitting down at a, at a, at a fancy restaurant. I don't, you know, I don't know what's going on, what they even mean by the direct talks. Exactly. But the problem is less about what Trump will accept and more about the time waste, because there is a window now where, you know, as Jonathan Chanzer says when he comes on the podcast, you know, the skies above Iran are naked is the phrase that he always uses. There's a window where it would, you know, the US could, if it needed to dispute, dispense with Iran's nuclear program, half asleep, you know, sleepwalking in the middle of the night. They could do it. There's literally nothing blocking them. That changes, and everything changes. So I think, you know, Trump is being pulled in a couple of different directions here because he likes deals and he wants peace and he wants to be the deal guy. But you can actually, it can be a mistake, a genuine mistake, to have talks for the sake of having talks if the clock is going to run out on a particular opportunity.

[Jon Podhoretz]

So that's where we are in relation to this question. I do think that we are in a very bizarre circumstance in which we have a Secretary of State of the United States who appears not to be negotiating for the United States on anything. And then there's this New York real estate guy who is going around the plant. Now, if the president, if that's what the President wants, that's what the President wants. I hope Marco Rubio likes, you know, I mean, he's, he's, he's, he's working on immigration. Ordinarily, not really a huge issue for Secretary of State. And there is a lot of brass and silver on the seventh floor of the Foggy Bottom that needs to be polished. And maybe he's, he's, he's doing that. But really, you know, one might want to activate one's diplomats to do the diplomatic negotiating, but, you know, it's just me.

[Seth Mandel]

I don't know.

[Jon Podhoretz]

I mean, if you're going to have them, you might as well use them. But that, and that gets to our friend Adam White, our constitutional scholar, our legal expert, our friend, Supreme Court whisper. Yeah, Supreme Court did a big thing last night. Five, five to four decision that froze that essentially said, no, no, no, you don't have to return anybody from El Salvador yet. Don't have to do it. I don't care what the judges, the lower court judges said you needed to, you don't need to. So it seems Big, and it was a split decision. However, A, it's less big because of the reasons. Right, Adam. And then B, there is an important what appears to be nine, nothing, I wouldn't call it concession, but step going forward, represented by the one agreement that all nine justices seem to have had in this case. So can we talk about what the procedural thing was and then what the consensus was of the Supreme Court going forward with these cases?

[Seth Mandel]

Absolutely, John. And can I start on a philosophical note, please? You know, about 200 years ago, Tocqueville's writing about the American judicial system, and he says in America, there's scarcely a political issue that doesn't sooner or later become a judicial case. And so it's a timeless, a timeless point. But today, if you were writing that he might cut out or later. Right. It sooner or later ain't what it used to be. And what we're seeing right now, and this latest Supreme Court order, is a reflection of that. We're seeing this constant foot race between an administration that wants to make and implement wild changes in policy or dramatic changes in policy as fast as possible. Trial lawyers who want to outrun that and get to court, pick their judge, pick their court, try to get a TRO before the administration can act. The trial judges who, once they get the cases, want to move as quickly as they can to stop as much as they can. And then while that's happening, back to the administration, which is doing its best to almost Dukes of Hazzard style, outrun the law before the courts can catch up with them. And so this Supreme Court order last night, the short opinion, is the latest effort by the Supreme Court to try to impose some kind of structure and process and proper pace on the administration and the lower courts. But within the court, you have the dissenting justices like Sotomayor and Kagan and Jackson complaining that now it's the Supreme Court that's moving too fast. And so that's sort of overall what's happening right now. Now, can I get into your actual question?

[Jon Podhoretz]

Can we talk about the moving too fast? Because I think flesh this out.

[Seth Mandel]

Yeah.

[Jon Podhoretz]

So administration began. We're not even three months into the administration. It's April, right. So we're almost three months into the administration, and the courts are there are dozens, I think now literally of court cases dealing with all these aspects of doge and immigration and this and that and the other thing. And the decision yesterday was on a specific matter to deal with this one controversy regarding the deportation of the accused trend Aragua people to El Salvador and what the court said was the lower courts moved too fast or, you know, have made too definitive a ruling that the, the, the jurisdiction.

[Seth Mandel]

Yeah.

[Jon Podhoretz]

Is a problem. Right, the jurisdiction is a problem. And then, and so they need to. Jurisdiction needs to be resolved before we can move forward. And then the liberal justices are saying, why are we getting involved here? Let, let, let the lower courts work and then we'll rule on the controversy. We don't need to intervene. We can rule on the controversy in due course. Right.

[Seth Mandel]

This is Judge Borisburg in D.C. his famous order from a little less than a month ago trying to stop the deportation of these Venezuelans to the South Salvadorian hellhole as the planes were loading up and taking off. And quite frankly, well, I'm not the biggest, I'm not the president of the Justice Sotomayor fan club on this podcast. Her opinion in this set of opinions that came out last night does a nice job of the sort of tick tock, play by play, how things were playing out. But the basic point, as you said, is this. The Supreme Court said the plaintiffs filed in the wrong court. They raced to get all of their cases in front of Judge Borsberg in D.C. but what they really should have done is they should have filed their cases in the district courts where the individual prisoners were being held, whether it's in Texas or elsewhere. The court said that's required because these are basically habeas corpus cases. The plaintiff styled this as more of a class action lawsuit under the Administrative Procedure act and other things, and of course, challenging the use of the Alien Enemies Act. But the court majority in this short opinion last night said these are basically habeas corpus cases. And the right place to file that case is where the plaintiff, the, the prisoner, the detainee is being held. So you can't pick your judge willy nilly. You can't pick your court willy nilly. You have to go refile this case in the original in the proper venue. That will take these cases away from Judge Boersburg. I think, to the dismay of many who really rallied behind his order on the bench, that they needed to turn the planes around as they were taking off. Who knows how the lower courts in Texas and elsewhere will rule. The Fifth Circuit seems more hospitable to the Trump administration's view of the law.

[Jon Podhoretz]

That is a circuit in Texas.

[Seth Mandel]

Yeah, that's right. But the dissents in this case, which Justice Barrett joined for one very small part, they said the court is deciding too much too quickly, that the Supreme Court is ruling on this habeas corpus thing, this saying these really habeas cases, but that's not really a clearly settled area of law. The court should have slowed down, gotten more briefing on that. And also the dissenters said this is not the stage at which the Supreme Court is supposed to intervene. This is just a temporary restraining order from the district court in D.C. it's going to expire in a couple of days. The court should have waited for things to play out properly in that trial court. To which the majority responds, no, no, no, no. This is not really just a little Trojan. This is in essence something different called a preliminary injunction, which the Supreme Court can definitely weigh in on. Again, it gets down to the Supreme Court trying to impose some real order and some realistic sense of what's happening in the district courts and not just allow the plaintiff's lawyers and a bunch of random trial judges in D.C. or California or Rhode island or whatever.

[Jon Podhoretz]

Rhode island, yeah.

[Seth Mandel]

To just single handedly take over federal policymaking indefinitely. It's the second time in about a week the Supreme Court's issued an order like this. And I don't know that it'll be the last.

[Jon Podhoretz]

Okay, so I want to ask about disingenuousness because I see the possibility of saying that both sides in this matter are being disingenuous that they've lined up except, as you say, for Barrett. And Barrett's very becoming a more interesting justice by the day, as far as I can tell, in terms of her interests, her procedural interests, and the underrating of her potential ideological or juridical independence over the course of her career. But yeah, you have on the one hand this ruling which is, we're going to stop this, but we're stopping it because it was filed in the wrong court. Is that really why they're stopping it? Or are they stopping it because they're attempting to slow down the coming of the potential constitutional crisis? So that would be disingenuousness. Number one classic. As Seth, a student of the Talmud, would say, it's a classic Talmudic dispute where one judge, one, one person could say to the other, you're full of it. That's a factitious reason you're giving. You just want the end. You want the end that you want and you're coming up with whatever argument you can come up with to provide the means to that end. And the same could be said in reverse for the dissenters who are saying, no, no, no, no, we need to slow down. This isn't the way we do things here at the Supreme Court like They're so concerned with process and doing things in the right way and making sure that the process of the Supreme Court is followed adequately. There is, as far as I can tell, one justice and one justice alone who is really consumed with that issue for the most part, and that's Roberts, the chief justice. But does one really have to take Ketanji Brown Jackson seriously when she says this isn't the right way to deal with a controversy or an emergency? Like, it's not even really an emergency. Let it go, let it ride. If the shoe were on the other foot and something else were happening, she could just as easily be on the other side. So that would be my. Do you agree with this analysis, or am I being cynical and unfair to both sides?

[Seth Mandel]

Oh, John, you'd never be cynical or unfair. I'd say I don't know that I want to cast aspersions on either side here. What I'll say is each side makes a good point, and I suppose they've settled on their point for reasons of their own. I mean, there's a great line that Kagan, she used in a dissent last week in another one of these cases, cases involving a lower court's attempt to freeze Doge spending cuts, and the Supreme Court, you know, vacated that district court order. Now, I can't find the line in front of me, but it was, it's a. Yeah, it's, it's in. Sotomayor quoted it last night. She said the court is proceeding quickly on bare bones briefing, no argument and scarce time for reflection. And frankly, like sort of the classic sense of the Supreme Court's work, of any court's work, is to take your time, allow the things to sort of settle on the ground, and then actually decide what the facts were and what the law was. And so court observers should always worry that the court is being forced to decide too much too fast and that it might make mistakes. That's a, that's a great point.

[Jon Podhoretz]

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[Seth Mandel]

Is that the Supreme Court isn't the first court involved in this process. And when you have lower courts making sweeping, categorical decisions with their own sort of minimal briefing the Judge Borsberg order in this case, there wasn't even a written decision. It said. It was the transcript that everybody had to sort of parse for his actual reasoning to understand. Well, was the whole part about turning the planes around, was that really part of his decision or was that just something he spouted off from the bench? You have all the lower courts racing way too fast on this and Justice Alito and others saying, come on, let's be realistic here. Let's actually get our hands around what's really happening here and try to impose some order on it. So I wouldn't say it's disingenuous. I'd say each of them is focusing on a different part of the problem for reasons that I'll leave up to you to decide.

[Jon Podhoretz]

That's very, very kind of you. Thank you. We're all here just trying to make sense out of a very complicated situation.

[Seth Mandel]

John, let me compare this to something else that happened. Okay, but 10 years ago, what really sent this whole Supreme Court, it's called the shadow docket, the emergency docket. The court really cracking down quickly on lower courts and administrations. Here's the moment that really triggered that. About 15 years ago in the Obama administration and as you and I keep repeating in my articles and when I'm on the show, this all started with the Obama administration. There was a huge EPA case. The EPA announced sweeping new regulations of power plants and it went to the Supreme Court on the usual slow, ordinary course of business. And the EPA ends up losing it. One of Justice Scalia's last opinions, it would have been 2015. The court says, no, no, the EPA totally screwed this up. Go back and do it over. And as soon as the court decided the case, the Obama EPA issues a statement saying, well, you win some, you lose some. But the most important thing here is while the case was pending, we forced the entire industry into compliance, and they're not going to undo that. So even though we lost the case, we won the war. And that seemed to be the wake up moment for a lot of the lower courts and also for the Supreme Court to say, wait a second, the administrative state can move very fast. It can outrun a lot of judicial review. We need to find ways to slow that down. Then a few years later, we went through it over and over again in Covid, where you had Governor Cuomo and others just quickly announcing executive orders, making and unmaking them on the fly. And the court's constantly trying to keep up with that, including the lower court. And in the last few years, progressives have obsessed over the Supreme Court's role in this, denouncing it as the shadow docket. And this is, again, I was on the Supreme Court Commission. I had to listen to a lot of this people saying, the problem here is the Supreme Court. Well, no, the problem here is an administrative state that can move amazingly fast. District court judges who can move amazingly fast. We're seeing over 10 years the Supreme Court trying to figure out how to get its hands around that. Again, one last quote for you, John. At the very start of it all, back when Hamilton was debating Madison over the Washington administration and neutrality, there's a great line in there. Hamilton said presidents have a unique capacity to create an antecedent state of things. Presidents have always had a first mover advantage that changes the facts and circumstances on the ground for both presidents. Sorry for Congress and courts, that's been there from the beginning, but never quite like this. We've never seen anything like this before. And the Trump administration, as in all things, has taken these trends that have been growing and growing and just exploded them in ways that are forcing a reckoning.

[Jon Podhoretz]

Abe, when we look at the panoply of cases or the cyclopedia of cases that have risen since 20 January, and because of the move fast break things, do what you can, create facts on the ground. As Adam would say, the Trump version of the administrative state moving and moving and moving and moving and trying to sort of like bludgeon the liberal culture into submission simply by just constant coming at them, coming at them and coming at them. And this then created, I think, conditions in the courts or in or in liberal jurisprudence, as then reflected by the bar looking for the judges that they like and the judges that they like being kind of all interwoven with those lawyers, including Judge Boasberg who seems to have a daughter who works on immigration issues, which I'm not sure is a reason that he would have to recuse himself. But I wouldn't say it looks good. I wouldn't say that it's like Caesar's wife, that, that his, that his daughter is basically is a, Is an activist, is an. Is an immigration activist, and he's ruling on this, on this case, which would. Would have once been something that judiciary worried about its reputation in that way might have been much more pristine about. But they, once again, what Trump has created, and maybe deservedly so in this case, is a sense of emergency among his opponents that is leading them into places they probably do not want to go, though they don't know that, which is, this is all a crisis. The country is about to become an authoritarian state. We have to stop what's happening using whatever powers we have at least to slam the brakes on or do something like that. And then maybe sweet reason can be seen or like the sweet meteor of death will hit the White House or something, and therefore this can all be stopped. And that Justice Trump has created a lot of chaos that might come back to bite him. It seems to me that this legal strategy has weird echoes of the Democrats and liberals going way out on a limb, making claims and making. That are going to. Yeah, the anti. Are going to help him. Yeah.

[Abe Greenwald]

We've always talked about how, you know, Trump inspires these anti Trumps who, Who will sort of rise up to be heroes in ways that, that are. That sort of mirror his outside of the bounds approach. Right.

[Jon Podhoretz]

Yeah.

[Abe Greenwald]

And then they end up not getting away with it. And while, while he does, or stranded.

[Jon Podhoretz]

Him or actually what they do ends up implicitly making him look better or at least firming up his resolve and his support or something.

[Abe Greenwald]

Right. But it also sometimes brings them down.

[Jon Podhoretz]

Yeah.

[Abe Greenwald]

And now the anti Trumps are judges. We are seeing that. It's an interesting twist.

[Jon Podhoretz]

I mean, it's an interesting point because Boseberg is a good example. You're pronouncing it differently from the way I am. I mispronouncing his name. Adam. I don't know, it sounded like maybe there's. Anyway, what struck me is Judge James Boasberg, who I would not say is like a down the line based on what I've been reading about him, is not a down the line. You know, he's not some kind of radical consular judge. Like he's thrown. He's thrown terrorists in jail for the rest of their lives. He's. He Ruled against Obama on many occasions. Like, he's not a. He's not a rubber stamp for the left. But yeah, this kind of weird glamorization hits almost to me. Oh, boy, did he do a fantastic cross examination of that Justice Department lawyer. I mean, he just walked that lawyer. Like he was like, grilling. He was like a prosecutor. Boy, that was amazing. Then yesterday, the piece, how could he be anything but wonderful? Because Brett Kavanaugh is his friend and he's a nice guy, and Brett Kavanaugh likes him, so shouldn't we all like him? That was an actual 3,000 word piece in the New York Times yesterday or the day before.

[Seth Mandel]

Yeah. As opposed to just a few years ago when articles like that read slightly differently. It would be, wow. Judge Eileen Cannon sure is a hack. What a hack judge who keeps ruling in favor of former President Trump. That hack. The judge in Texas, Judge Matthew Kacmarek, who heard a lot of cases challenging the Obama administration's financial regulatory policies and so on, issued a number of injunctions or rulings against the administration. And people were so outraged. So outraged that he issued those decisions and that plaintiffs were able to file cases in front of him that the American Bar association actually passed a resolution saying we need to change all the rules about how cases are filed so that Judge Kacmer can't get cases. Now we have, you know, another example of this.

[Jon Podhoretz]

Let me just interrupt you. I saw yesterday there is a story. I don't. This is going to. I just want you to. Want you to sit down because this is going to just blow you away.

[Seth Mandel]

All right.

[Jon Podhoretz]

Apparently, one of Eileen Cannon's law clerks is now working at the Justice Department for Deputy Attorney General Todd Blanche. Clearly, the fix is in because a conservative judge had conservative law clerks who are now working for the conservative administration a year after a case was decided in Florida. Yes. That was decided favorably toward Trump. But I mean, what. Who do you think they're going to hire?

[Seth Mandel]

Yeah, yeah. Meanwhile, the way you described the coverage of Judge Boasberg. Am I saying it correctly?

[Jon Podhoretz]

Now you say Boseberg. I thought maybe you knew something about the pronunciation, but I think it's just your Iowa stubbornness.

[Seth Mandel]

Yeah.

[Jon Podhoretz]

And your, you know, but.

[Seth Mandel]

But, you know, the coverage reminds me of when you get to the oral argument coverage. And we saw a lot of this with Judge Chutkan in the trial 14th amendment, the insurrection trial of Trump. It's almost like the early coverage of Jen Psaki's press conferences in the first few months of the Biden administration. Remember the Saki bombs, people said, oh, wow, she totally owned Ducey or whoever. There is a lot of that. But your larger point, John, about the state of emergency, there's a line just like that in Judge Justice Sotomayor's dissent last night where she teased up the situation. And again, I think she actually does a pretty good job of the TikTok around what was happening in the case, what the judge, the trial judge was doing, the way the Trump administration was trying to get out ahead of that. She actually does a very good job of spelling that. And that, I think, is what ratcheted up the pressure on the trial judge as much as anything. Justice Sotomayor says, quote, recognizing the emergency the government had created by deporting plaintiffs without due process, the district court issued a temporary restraining order that same morning. So it really is there in Justice Sotomayor's narrative of this, the emergency here is not the emergency that Trump declared, the immigration emergency. And I think the facts around that order and a lot of other orders from President Trump are very dubious. But here you have the alternative narrative that actually the emergency here is the emergency of the administration and its actions. And that justifies a very fast pace by trial lawyers and trial courts.

[Jon Podhoretz]

Okay, so now let's move on to what the nine justices appear to have agreed unanimously to across these dissents and concurrences. Right. Which is that due process was somehow likely denied to the people on the plane and the people who are now in El Salvador. Or that. Or that at a very minimum, they. They sound like they will look unfavorably on the idea that because they were illegals or, or because it was not determined precisely who was legal and who was illegal. Maybe that's an even better way to look at it.

[Seth Mandel]

Yeah.

[Jon Podhoretz]

That a due process must be granted in these cases and that declarations of emergency do not overwhelm the demand for due process. Do I. Do I have that correctly?

[Seth Mandel]

Yeah, that's right. That's right. Here's the line from the end of the. Of the majority opinion, quote, for all the rhetoric of the dissents, today's order and procure him the decision confirm that the detainees subject to removal orders under the Alien Enemy act are entitled to notice and an opportunity to challenge their removal. And they go on to say the only question at issue right now is which court to file that in. So there's no the court unanimously, and the dissents reiterate this. Justice Kavanaugh's concurrence reiterates this. The court is, in fact, sort of hearkening back to the Guantanamo cases of the early years of the global war on terror. You have a right to challenge this deportation. You have a right to notice and an opportunity to be heard. And now we'll spell out, now we'll see which courts these need to be in and what that actual process actually is going to look like in the, the courts.

[Jon Podhoretz]

That seems to me to be the most important aspect of what happened yesterday because it goes to what the administration continues to do, particularly in relation to people on college campuses. And of course, I guess the case particularly of Muhammad Khalil, who is arguing that he was, he was denied due, although he isn't really being denied due process because he is, there is a, there is matter is being taken up by the courts which have already ruled that he has due process rights. But.

[Adam White]

Well, this, I mean, that's a good, this is part of the debate, right, which is everybody saying the term due process and nobody being clear about what they mean by it.

[Jon Podhoretz]

Due process. I do not think it means what you think it means.

[Adam White]

You know, we have like, we had a Republican congresswoman say, well, you know, if you're going to be part of a gang, you don't get due process or whatever. I'm not sure that people understand. But, but in these cases, how does the public interpret what they're seeing as. How do we know when someone's getting what is actually due process? How is the public supposed to understand this, this sort of debate when they see, you know, Mahmoud Khalil, like John said, looks like he's getting his day in court, they're also there. They're not moving him out of New Jersey. The court ruled, Right? It seems like that. And the, but the stories are they're snatching people off the streets and stuff. How, what, what is, what is legal here? What, what do we, how do we know what they're doing is, is okay and not okay?

[Abe Greenwald]

I just want to add one complication here, which is that in the cases of the, of there being non citizens too, I mean, that, that, that's what always throws me here.

[Seth Mandel]

Yeah. Well, how, how can people know? Well, they, they should read Andy McCarthy, of course. But as of the question of what the due process is, and we should be really careful here, John, because the court's holding is limited to due process under the Alien Enemies Act. So they're not making a sweeping pronouncement about the other cases, including these, these, these campus protesters and so on. This is about the Alien Enemies act, as the court says people are entitled to Judicial review as to the questions of interpretation and constitutionality of the act. What does the act, what does the Alien Enemies act actually empower the president to do, and is it constitutional? And then the factual question under the act and under President Trump's proclamation that this person is in fact or is not an alien enemy, 14 years of age or older. So a lot of the due process is defined by the statute or by the proclamation, sort of the factual standard in the proclamation. It's not a sweeping promise of due process to challenge any deportation under other laws or other circumstances.

[Jon Podhoretz]

Fair enough. So that was my illusion and obviously mistaken, but I don't think mistaken in the broader context by which I mean that this is the crux or the hinge of the liberal argument that Trump is using authoritarian powers, not arrogated to him to make moves on green card hold, a green card holder in the case of Khalil, but of simply people who are here as guests or are here illegally, and that he does not have the power to make unilateral calls about this. And anyway, and think how far.

[Seth Mandel]

Think. Think how much the conservative side of this argument has conceded since the Guantanamo cases. Right. 20 years ago, a couple, you know, 22 years ago, there were huge constitutional fights over whether there should be any judicial review of these things. It was not assumed at all. And Justice Thomas and others were arguing very strongly this was an area of core presidential power where the president could take these people, whether out of the US or out of Afghanistan, and put them in Guantanamo indefinitely. Now you have all nine justices saying there has to be some kind of process ex ante. Now, they don't answer the. Or what question. They don't actually answer what happens if, to keep using my Dukes of Hazzard analogy, I won't let it go. Those Duke boys actually outrun the heat, and you actually get these people sent down. The Trump administration actually sends these people down to El Salvador or whatever. The court doesn't answer that question of whether the US Courts actually have the power to force a president to force El Salvador to release these people. And in fact, the Justice Department's recent briefs have really scoffed at, even mocked the notion that a trial judge could order a president to order a foreign country to release these prisoners. That's a huge question. What the court's trying to do here is try to minimize the circumstances where that actually happens by creating a framework where you can actually adjudicate these cases up front. Well, the majority in this last opinion says at the end, we see no value in delaying these Framework questions, these procedural questions about how the trial litigation should work. We don't want to delay that two months from now after the process has begun to play out and we have to restart everything. They're trying to rebuild this from the ground up. Just in the same way as last week when they issued an order around doge spending cuts and education. They said these kind of cases shouldn't just go to random trial judges. They need to go to the Court of Federal Claims that has a very sort of established procedure for people getting money that the government orders them. They're trying to take these cases out of an emergency posture, regardless of the stakes, and try to put them into the familiar, ordinary workings of trial courts. We'll see if it works or not. I mean, if the administration keeps bulldozing this stuff through faster than courts can review, well, then I'll be curious to see what the court does next and what Chief Justice Roberts and Justice Barrett and others write. But right now, the court's just trying to reset the framework.

[Abe Greenwald]

You know, this is not, it's not a legal point at all. But what I find most interesting or pertinent about the question of whether or not the administration can be forced to ask the Salvadoran government to send back this one prisoner is not, is not whether he can be. The administration could be forced to do it. It's why don't they just do it? That is interesting to me. If you made a mistake, if you did this, why would you need your hand forced here? As I say, it's not a legal question.

[Jon Podhoretz]

Okay, so Trisha McLaughlin, the spokesman for the Homeland Security Department, has an answer to that.

[Abe Greenwald]

That they can't do it somehow.

[Jon Podhoretz]

No, the answer is that while, while. I think the answer is while he may have been taken in error doesn't mean that he's innocent, in other words. No, but I mean, it also doesn't mean he's guilty. No. Well, that is the, that that I think is the complicating factor of all of this. If you're going to mass deport 250 people, it's like if you sweep people up on a street in a protest, one of them could be somebody was just walking by and got trapped in the, you know, between the barricades. And therefore one of the many reasons we have due process, why we, why due process exists in common law is the idea that, you know, you have to basically habeas. You have to prove that the person that you have in custody is a person who should be in, who the state has an interest in keeping in custody otherwise should not be in custody. The Guantanamo thing in relation to this is particularly interesting because of course, the issue with Guantanamo was these were people who were taken outside the United States and who were not citizens of the country in which they were detained. Either they were all foreign fighters in Afghanistan that we took prisoner and were stateless, and therefore either we were gonna have to figure out where they came from and send them back to the country of origin that they came from and could not therefore, therefore be sure that they would not simply return to the battlefield to attack Americans. They were taken as prisoners of war, but did not have the status or standing of prisoners of war because they weren't part of a standing army that we recognized as being a legitimate sovereign fighting force. And so we made up for it.

[Adam White]

By sending them to the Bahamas.

[Jon Podhoretz]

Right. But I mean, this was, this was literally a circumstance without any kind of legal, juridical, international law precedent whatsoever. Here we just have a different case because we're taking people who are on American soil and moving them off American soil. And I think the commonsensical argument for the right is people who are on American soil we have a right to invite out. We're allowed to say go home. And we're allowed to say go home to Muhammad Khalil. He may have a green card. We can't say go home to Adam White cuz that the only place for him to go home to is Iowa. But you know, we can say go.

[Seth Mandel]

Home to not bad, not bad, not bad, not the Bahamas.

[Jon Podhoretz]

But we can say go home to Mohammed Khalil because he is not here. He is. And what's more, he's only, as I just edited this morning, a brilliant piece by Mayor Soloveitchik that will be in the May issue of Commentary about the Khalil case. And he makes an incredibly common, sensible point that hadn't even occurred to me, which is that Mohamed Khalil is currently in custody in the United States because he won't simply say, okay, I'll get on a plane and go home. If he said, I'm buying a plane ticket and I'm going to go back to Lebanon and my wife is going to come with me when she has the baby and then we're going to live in Lebanon. He would be released from custody in five minutes and he would be taken in a nice escort to Kennedy Airport and put on a plane and he could get off the plane and there could be, he could have a press conference and everything is wonderful. He is only in custody because he says he has a right to stay in the United States. And I think ultimately, by the way, we can go through all this due process nonsense. Not nonsense, but we can go through this whole process with him over two years and he will end up departing the United States because he does not have a right to be here. Yeah, he has a right to work here. He has a right to be married to an American here. But until he is a citizen of the United States, he does not have a fundamental right to live in the United States. That is not a right that we are abrogating by telling him to go home. This show is sponsored by Better Help. Therapy can be a source of support for any area of your life. It could be time to shift the focus from doing it all to knowing that we're better when we ask for help. I've benefited from therapy several times in my life. I have no difficulty thanking my therapists for the help that they have given me, and I am proud to be someone to recommend therapy to people who are in need of help that they can't get anywhere else. BetterHelp is fully online, making therapy affordable and convenient. Serving over 5 million people worldwide, you can access a diverse network of more than 30,000 credentialed therapists with a wide range of specialties, and you can easily switch therapists anytime at no extra cost. Build your support system with BetterHelp visit betterhelp.com commentary today so you get 10% off your first month. That's BetterHelp. H-E-L-P.com commentary. You know, for some, April is the cruelest month. But I don't think so. April is the month that we bring ourselves back to life. We put our old jackets away, we do a big spring cleaning. Particularly if you're Jewish. You're cleaning up the house for Passover, and when you finish that deep cleaning, you put the jackets away and you get your summer clothing ready for use. We're prepping for warmer days ahead and the most satisfying thing that you can do might be to refresh your bed. I have just done so with new bowl and branch signature sheets. Made with the finest 100% organic cotton. These sheets feel buttery to the touch, breathable to sleep in, and get softer with every wash. They are the perfect foundation for your best sleep this season. A perfect accompaniment to that effort to restart, to renew, to revigorate and to restore yourself to the joys of outdoor life, summer living and a general sense of well being. And I can say this because I just got them and they're fantastic. They are really fantastic. I can tell you this because put them on the bed. We use them for two days. My wife and I immediately we felt the difference. Softer, better. Then got to say our cleaning lady came, did the wash, put the old sheets on and they weren't as nice, weren't as comfortable, weren't as fresh, weren't as, weren't as soft. So they're made better, they're made different so you can sleep better at night with that Hundred percent organic cotton, finest on earth. Crafted by artisans who earn the pay and respect they deserve. Designs and colors for every bedroom style and mattress size. These all season sheets have a breathable, unmatched softness to start. They get softer with every single wash. Perfect foundation for ball and branches, airy bed blankets, cloud like duvets and so much more. And there's a 30 night worry free guarantee so you can try the sheets for an entire month. Seriously, wash style, feel them for yourself, risk free. And if they don't change the way you sleep, you can send them back for a full refund. So upgrade your sleep during Bowland Branch's annual spring event for a limited time, get 20 off at bowl and branch.com commentary that's B O L L A N-D B R-A N C H.com commentary to take 20 off sidewide for a limited time. Exclusions apply. C site for details.

[Seth Mandel]

I mean, how did we get to this point, John, and it didn't just start yesterday, right? It's we've now had a decade of people being welcomed into the country, and I'm an immigration dove myself, but people being welcomed into the country mostly by executive fiat, things like DACA and dapa allowing in and incentivizing the arrival of millions of people, ratcheting up the pressure on the system. Then you have on top of that, efforts to loosen the way that asylum works in immigration law. Sort of trying to encourage more people to come to the US to stake broader claims to asylum. Not that they'd be directly persecuted in their home country, but that they're seeking asylum from horrific political or economic circumstances in their home country in general. For year after year, decade, you know, now decade after decade, you've seen all of that ratchet up pressure on the system. And the pressure is all being brought to bear on the judicial system. Even I don't think that this is an emergency, so to speak, and I certainly don't think it's an invasion in the way President Trump says. But it's certainly an extremely difficult issue for this very small part of our system, the judicial system, to try to sort these things out, to do it in a sensible way, and to protect the due process rights of people who are here because they do have some due process rights, especially when we're going to send them away. And so it didn't just start with this, with this latest emergency or claim of emergency, but the executive branch, from one administration to the next, has pushed this all to the breaking point. And now we're asking excruciatingly hard questions like how do you make sure that some random barber in Maryland or that's where, I think that's where he's from, who's not a member of a gang, it seems most likely, but he is here in the country illegally. What do you do when he gets thrown on a, on a plane that the president and his team are filling up as fast as they can because they know a court order might come down in a few hours? It's a, it's a catastrophic failure of government. And could I add just one last thing I keep filibustering. Let me draw one more analogy, John, to a piece I wrote for you a few years ago, right before the Supreme Court got the Dobbs case to overturn Roe v. Wade. We, you asked me to write a piece about that Texas law where Texas rewrote its abortion laws to take abortion enforcement basically out of the executive branch and outsource it to trial lawyers.

[Jon Podhoretz]

Right.

[Seth Mandel]

To sue over people giving access to abortion. The whole point for that crazy law was that trial judges had found ways to freeze every abortion regulation in red states, freeze it in place during the sort of, in the Roe v. Wade era. And that fast moving trial judges totally distorted the system and the trial lawyers had totally distorted the system. So that Texas ended up having to do, had to create a law that I think in most ways was crazy and in some sense unconstitutional, but it was all done just to avoid that first layer of judicial review. This is such a huge problem from one administration to the next. The constant collision of fast moving executive power and fast moving trial judges. And there's going to be, there's going to have to be a reckoning at some point. And Congress is looking at ways to fix this. I don't know if they will. I think folks are wondering how the Supreme Court's going to fix this problem.

[Jon Podhoretz]

So I use this phrase, regrettably, you know, five minutes ago where I said the due process nonsense, and I really don't think it's nonsense. I think it is as important a basic element of common law as you could possibly have due process. And I bring this up only to say that one of the reasons that we have things like due process or that was it Nancy Mace, I can't remember which Congress was, was Anna Sparts. It was Spartz who said, Victoria Sparks who said, yeah, if you're elite, you don't get, you don't get rights, you know, you know, you don't. Due process, whatever. If you're here, that we, we have things like due process because they're unpopular, it's very important to understand that law exists in order to ensure that things that go against the popular will, that are nonetheless necessary for the, not only administration of justice, but for the simple good working order of a civil society are done. And that's why we enshrine them in law at some point when they are a consensus, because at some point later, the consensus is going to break down and it's going to be, you know what? Everybody gets due process except someone who's accused of pedophilia. And that person can be strung up and, and, and, and lynched, because that's too, you know, that's the crime that I don't even care if some people get roped in unjustly. The monstrousness of it gives us some leeway. Right? It's like triage. You know, maybe you kill some of the patients if you're doing triage, but, you know, better triage than nothing. And this is what the last 15 years, if we start with Obama have brought us to, which is that everybody has the thing that they want to suspend our constitutional order to make sure happens. Some of it's right wing, some of it's left wing, some of it's, you've got to stop the trial judges with the, you got with, with allowing lawsuits. And some of it is whatever on, on the right. And a lot of it is stuff on the left with environmental regulations or something like that. And this is why we're not supposed to do it this way, because that's the constitutional crisis, that there's this whole, we're about to be in a constitutional crisis. And the problem is Trump didn't start this. He is moving it in radical ways or pushing it on 17 different fronts, which makes it seem much more destabilizing. But this is a problem of a world in which the restraints of custom and process and the Constitution, everyone is just now operating without internal restraints. Like I say about Judge Boasberg, who might have said, I can't really hear this case. My daughter is. This is like my daughter's livelihood. And we need to make sure that what people trust that when our court makes a ruling on this, they can't say, well, the judge's daughter is like practically a plaintiff or as a plaintiff's lawyer in these matters. So that's where, I'm sorry, I said due process nonsense. Like, quite the opposite.

[Seth Mandel]

It is interesting to see. Now, you mentioned it, put it that way, the mirroring between the way this administration and conservatives are approaching due process and immigration for progressives. Maybe there's an analogy to something like the MeToo movement, right, where, you know, believe, believe all women. There's this huge problem of sexual assault. And so we're going to, we're going to always, if we have to err, err radically on the side of the accuser, not the, not the accused. At the big macro policy level, Trump is announcing, you know, we have a national emergency that requires sweeping changes to trade. Right? We're going to change all the trade rules. The analogy might be to the way progressives in the Biden administration and Obama administration approach climate policy, that this is the big thing, the big global problem that requires sweeping change. And if Congress won't act, we will just. Just constantly pushing and saying this justifies enormous quick action, let everything else fall.

[Jon Podhoretz]

And that gets to my dis. The disingenuous point that I accused the Supreme Court decisions yesterday of, of reflecting. Because Trump knows perfectly well that there's no emergency in relation to trade. He thinks that there is a systemic problem with trade and the trade deficit that needs to be resolved, but it's not an emergency in the sense that if it's not resolved in six weeks, the world is not going to come to an end. That's what an emergency is. Right? An emergency is if we don't do X right now, the consequences, immediate consequences, are going to be destructive. And that is simply. So you use the word emergency to trigger certain things in law, right? In the national security Act of 1952, which is sort of the trigger for a lot of the immigration stuff. The trade stuff is a law from 1977. I don't even really understand what the hell it is. And then, of course, the Alien Enemies Act. But all this, most of us thought didn't had been rendered unconstitutional at the end of the 18th century, though we were wrong because it was the Sedition act that was. And the Alien act wasn't. But I didn't know that. I thought they'd both been found unconstitutional.

[Abe Greenwald]

This was all turbocharged by Covid. That was the emergency to end all emergencies. And that opened the door. You could declare anything an emergency because.

[Adam White]

That was the emergency that both sides at least at some point agreed was an emergency.

[Seth Mandel]

Right?

[Adam White]

Different, maybe had different things to do about. But both sides were like, yeah, the emergency is here.

[Jon Podhoretz]

And that just Centers for Disease Control asserting its power over private contract involving the rental of an apartment. Let's just stop for five seconds and think about that. That the Centers for Disease Control said, you're not allowed to evict someone in Pasquoxy, Alabama. Am I taking crate? Was I taking great. Yes, I was taking crazy pills. Abe is absolutely right. You can't believe the kind of things that were asserted and, and, and people did react. And this is where again, we have this question of whether or not a lot of this stuff is going to be the meat is going to be the hidden architecture of what happens politically in the United States over the next 10 years. The stuff that people are going to react to. Trump may look at this and say, I'm an 8. I have an 8020 issue here on immigration. He has moved the country on immigration. There's no question. And Democrats are gonna move on immigration. If you think the Democratic Party isn't gonna be, isn't already a more right wing party than it was on immigration, it isn't gonna move further to the right as it approaches 2028. I think you're very much mistaken. The open borders world of the Democratic Party, despite its immense amount of money that flows from those people and politicians who really do believe this stuff, they're not gonna withstand this stuff. But and Trump moving on 25,000 different fronts to push the barriers of what government can and cannot do, there's going to be a counter reaction, and the counter reaction isn't going to be that positive for the right unless all sorts of other things go right. In other words, like if the economy booms and the trade war, whatever, if the economy booms, then there's a lot. If there's like, we're safer, we win wars or whatever, there's going to be a lot. But if things don't go particularly well, all this other stuff is going to start leeching into what looks bad.

[Seth Mandel]

And John, I just add one last thing. As we're sort of seeing how this plays out for the last four years, the Biden administration, the Democratic Party became the party of the buzzword was insurrection, right? January 6th was an insurrection. We need the insurrection justifies throwing Trump off the ballot. We need this unprecedented case in D.C. against Trump, which, well, it wasn't technically about insurrection. It was basically about insurrection. The I word for the Democratic Party for the last four years has been insurrection. For Republicans, the I word is invasion. Over and over again we've seen, starting with, with red state attorneys generals and some lawsuits near the end of the Biden administration and now with Trump's proclamation and so on, it's invasion, invasion, invasion. And for both of these things, insurrection or invasion, they're sort of get out of checks and balances, free cards for their respective parties. The insurrection justifies everything. The invasion justifies everything. Was it really an insurrection? I personally tend to think it came pretty close to it, but that's a question of fact that gets sort of, we breeze past. Is this really an invasion? Well, president announced that it was. Is it really an invasion? Well, you know, don't know. We're just, we invoke these words like, like talisman because they unlock either legally or just politically sort of enormous constitutional discretion by our preferred policymakers. And it's not, I don't think it's going to end anytime soon. I think we'll be back talking about insurrection four years from now, one way or another.

[Adam White]

And we add, we add the rogue judges stuff to it, right? The Democrats are talking about rogue judges and now Republicans talking about rogue judges, which is a sign that, you know, this. It's not, hey, they stole that. Even the judges. Stop that.

[Jon Podhoretz]

Rogue judges. Rogue Judges is a 60 year issue on the right, 65 year issue on the right. Not a, not an issue. It's the, the left now finally has a couple of rogue judges that they can have. They, they're having fits about. But you know, this was a major issue for the, for the right from the 1960s onward. The sort of the liberalization of law basically benefiting, turning things toward the benefits of the accused and toward criminals rather than to the victims of crime and to the sort of good working order of a civil society. And they may think that they get the, that they're going to get the rogue judges, but they don't get the rogue judges because every time they look like they're going to move positively on rogue judges. Yeah, you get this like judge in New Hampshire saying, hey, I'm a judge in New Hampshire. No one in the country can do anything. I have spoken.

[Seth Mandel]

But John, maybe to bastardize Abe's timeless line, it's better than that. It's better than that. You know, that's the Iowa version of it's worse than that it's better than that. When I look around at what I'm seeing right now and yeah, I'm seeing suddenly Democrats and progressives are very, very, you know, worried about too much power in the administrative state. We have a president, not a king. There needs to be some law and order around this. Presidents can't just make up their own facts, make up their own laws. We need more due process around administration and in fact, you know, raising questions about whether Congress has violated the Constitution by delegating too much power to the executive branch. There is, there's an opportunity here for conservatives who focus on these issues, the C. Boyden Grays among us, to say, oh, okay, we're always accepting converts. And if you want to talk now about the excesses of the administrative state and why the Supreme Court needs to do more to, to, to, to tighten up what happens at places like DHS and elsewhere, we should welcome that. I think it's great that the New Civil Liberties alliance filed a non delegation lawsuit against the president over the emergency tariffs statute. This is a great time to take those principles and say this isn't just a Robert's Court versus Biden administration thing, it's a rule of law versus all administrations thing. And I hope we see more of those.

[Jon Podhoretz]

You're bringing just on the verge of Passover, you're bringing that positive goyish energy here to the commentary podcast. Adam, bringing us the spirit of the covered bridges and the, and the glories of the disaster, of dealing with the disaster that is a pool table in our, you know, in our, in our fine river city community. And I think it's very important that you have brought this home to us with your homespun wisdom. I love to. I don't know why I'm, why it so amuses me that you're, you're from, from Iowa because of course, you know, James T. Kirk is also from Iowa and nobody ever made fun of him from Riverside, Iowa.

[Seth Mandel]

I've seen, I've seen, I've been to Trek Fest. I know how this goes. And John, I'll be your, I'll be your Midwestern upbeat go away anytime.

[Jon Podhoretz]

Thank you so much. And you, you as always, a pleasure to have you. We'll be back tomorrow for Seth and Abe. John Pavlortz, keep the candle.