← The Josh Hammer Show
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Some key wins for the administration in recent days at the court, but the number one takeaway, a massive loss in the birthright decision case. This loss was expected, but there is a silver lining. That silver lining points a possible path forward towards a restoration of the truth. I'm Josh Hambur and this is the Josh Hamber show. So there have been some real victories for the Trump administration, for conservatives in these final two days of the current US Supreme Court term. Just yesterday we were speaking about a genuine victory in the slaughter case in the FTC when it comes to the ability to fire the head of a so called independent agency. A 90 year old president called Humphreys executor finally overturned. And there was a huge victory this morning as well at the Supreme Court when it came to the issue of transgender athletic competition. We will get to that a little bit later on the show. That definitely deserves a fuller analysis because it's actually fascinating, in fact, to give away the lead here, the top level question in the transgender athletes case, these two cases out of Idaho and West Virginia, essentially whether or not you can quote, unquote ban biological males from competing against biological females on the actual main question, the statutory question of Title 9 of the Civil Rights Act. All nine justices agree. Again, we'll get to a full analysis later on the show. But the takeaway that you are likely hearing about today, and you'll probably hear about it for some days and weeks to come come is that the Trump administration has lost in expected but also kind of not fully expected fashion when it comes to the issue of birthright citizenships. This is the case of Trump versus Barbara. It goes back to Donald Trump's day one January 20, 2025 executive order and executive order that he signed where he attempted to limit the scope of constitutionally mandated, AKA automatic birthright citizenship. He was saying that if you are the child of an illegal alien, then you are not automatically entit to birthright citizenship. He said that if you are the child of someone who is Here on a temporary visa. If you are a birth tourist, which is, yes, that's actually an industry. It's horrific. If you are here on a short term travel visa or some other sort of less than permanent domicile situation, then you do not get permanent citizenship. And immediately we knew that this thing would make its way to the U.S. supreme Court. And we've discussed this issue many times on the show before. My basic take is that the administration is entirely correct. In fact, if anything, I think that the Executive order frankly does not go quite far enough. Now, a lot of the apologists for the all in birthright decision review go back to an 1898 case called Wong Kim Ark. This was a case out of San Francisco, California pertaining in that case to the child of legal alien immigrants from China. And in that case the court did say that the child was was guaranteed citizensh but they emphasized that was only due to the fact that the parents who were Chinese nationals had had made the United States their permanent domicile. If you go control F and you search the Supreme Court opinion as to domicile, you'll see that it appears a dozen or more times throughout the opinion. Personally, I think that Wong Kim Ark was actually wrongly decided. They were robust dissenters. But the point is that the apologists for illegal alien birthright citizenship for anchor baby citizenship repeatedly cite and they subtly Twist. Wong Kim, Arkansas. I predicted that this would be a 7 to 2 loss for the administration for the very simple reason that this, this fallacious notion, this erroneous, erroneous conclusion that Wong Kim Ark mandates and dictates anchor baby birthright citizenship has seeped its way throughout our legal culture. Unfortunately, even to many legal conservatives. I grew up in this milieu. I came of professional age in this milieu. I saw it with my own eyes. The good news is that I underappreciated the extent to which the alternative view of the 14th Amendment, the correct view, the view that says that in the actual text of the citizenship clause of the fourth Amendment, subject to the jurisdiction thereof, the view that that actually means subject to allegiance and not just being in a physical territory. That's the view that I've articulated on this show many times. Why have I said that? Very simple. Because the fourth Amendment was trying to constitutionalize a statute that was drafted and rather by the Congress two years PR in 1866 called the Civil Rights act of 1866. And that particular statute in its similar citizenship clause said in the equivalent of subject to the jurisdiction thereof, it said and not subject to a foreign Power. That was language they used. And then the drafters of the amendment said that the amendment was declaring no new right, establishing no new principle. They were just trying to constitutionalize the Civil Rights act that had passed Congress two years prior. So it stands to reason that if you are subject to a foreign power, if you're allegiance to a foreign power and you are just here illegally or on a short term tourist visa, student visa, then you shouldn't be able to just pop out a baby and get citizenship. That's the theory that I've said, although I admitted that I thought that was a fringier view. It's less of a fringe view we now know today because that view has the support, kind of sort of of four of the nine justices. So Brett Kavanaugh and Neil Gorsuch surprising me and surprising a lot of others by more or less agreeing with their more conservative colleagues, Clarence Thomas. And on the Fourth Amendment question, unfortunately, unfortunately, by a 5 to 4 decision in the Trump versus Barber case, the court has ruled on constitutional grounds that the 14th Amendment, with John Roberts and Amy Coney Barrett joining the three liberals, they have ruled that the citizenship clause does guarantee that anyone here for any reason, even if they are here illegally, they are guaranteed to have birthright citizenship for their, for their children. Brett Kavanaugh would concur separately on statutory ground, trying to do one of his classic moves of trying to split the baby, no pun intended, in this particular case. There I don't find it particularly convincing. But the point is that this is a, is a huge loss at a top line level when it comes to the administration, albeit there is an interesting silver lining that you get. You got four votes more than the two that I was predicting when it comes to the actual constitutional question. So where do we possibly go from here when it comes to doing something about this? Is this actually the end of this dispute? Is there really nothing that can be done at this particular point? We'll get to that in just a second. But for now, folks, I want to tell you about our sponsor of today's show, which is Angel Studios. You know, we spend a lot of time talking about what's gone wrong on this show in modern culture, modern media, and frankly, the way that American history is often distorted. And that's why I'm genuinely excited about this brand new release from Angel Studios called Young Washington. It comes out this Friday, folks. I have seen the trailer. I've actually seen the entire film. I watched it about a month ago and it is absolutely fantastic. I am a total American history buff. I love American history. I geek out to American history and I actually learned a lot from this film. It's a story of George Washington before he became the indispensable man. Back before the presidency, before victory. He was shaped by hardship, failure and the unmistakable hand of providence guiding his path out on the frontier. Young Washington feels like the kind of big patriotic summer blockbuster that Americans have been waiting for. And don't take it just from me. You can go ahead and see it for yourself. So join the Angel Guild, folks. It's just $15 a month. You'll get two free tickets to young Washington, plus streaming access and tickets to future angel releases all year long. So visit ang angel.com hammertoday make sure to join the Angel Guild for $15 a month and check out Young Washington in a theater near you starting this Friday. It is the perfect Independence Day weekend blockbuster film. You will not regret it. So where do we go from here? So the short answer is that this is a loss. Yes, there were more votes for the administration than I and most others had predicted. Gorsuch and Kavanaugh coming through here for sure. Amy Coney Barrett, yet again, disappointing. She disappointed conservatives yesterday when it came to the mail in ballot case. That is one top takeaway here. John Roberts at this point, it is hardly unexpected, but Amy Coney Barrett disappoints yet again what that means when it comes to judicial nominations if there is a Supreme Court vacancy. And by the way, this morning there was some confusion. So you had Nina Tottenberg, who was one of the most discredited reporters out there when it comes to the beat of the Supreme Court and the legal profession more generally. She prematurely, and we think as of now erroneously published an article saying that Sam Alito was retiring and she cited the US Supreme Court's own public statement. But at the time she clicked publish on her article, there was no public statement. And then NPR ended up having to retract the story. So that's a whole mess. And if that happens, if Alita or Thomas retires, we will have to have a conversation about what that means when it comes to Amy Coney Barrett and how to avoid Amy Coney Barrett, like disappointments, moved moving forward. For now, there are a few things that come immediately to mind when it comes to the actual question of the 14th Amendment and birthright citizenship and Congress public policy. There is a lot to think about and to mull about. First and foremost is only a 5 to 4 loss on the actual constitutional question. Roe versus Wade, when it came out, was a 7 to 2 loss. There were only two dissenters to Harry Blackmun's atrocious ruling in 1973. Those two dissenters were William Rehnquist and Byron White. Those two dissenters were ultimately vindicated in the Dobbs case that came out. So there is the ever enticing prospect of just getting a retirement from one of the five votes in the majority. If you look at the actual lineup, the most likely candidates of those five who will likely retire before the others would be John Roberts or Sonia Sotomayor. You also could try to pass a constitutional amendment. Notably, because this case was decided on constitutional and not on statutory grounds, Congress cannot simply pass a statute to overturn it. That was my prediction. I thought that Congress would actually just rule on the mid 20th century statute that incorporated the 14th amendment's language. I'm a little surprised they went full bore 14th amendment. That makes it tougher to overturn. But in theory, the proper remedy in such a situation is a constitutional amendment. We haven't gotten one of those in three plus decades. It was the early 1990s when the 27th Amendment was ratified. Easier said than done is very much a long slogan, but in theory it could happen. Finally, I want to raise a topic that has been something of, let's call it an infatuation bordering on obsession of mine ever since I was in law school. And that is this. That is the dangerous, insidious notion of judicial supremacy. We live in a world whereby we think that the courts are supreme. We think that among other reasons, because they told us that. They told us that in a somewhat obscure, little known 1958 case called Cooper vs. Aaron. And more generally, our society, our elite culture, our press, have said time and time again that the law is final when the Court decides on it. And the implicit assumption, or the takeaway is that the Court's ruling, even as in this, in a 5, 4 case, binds the other two branches, binds the President, binds the Congress. That's actually not how it works. Really, it's truthfully not. Abraham Lincoln in his first inaugural address in 1861 famously said that if you are intellectually honest, you must recognize that when the Supreme Court issues a judgment, he was referring to the infamous Dred Scott case, that it binds the parties to the suit. After that, it's actually not binding. It's really not. Perhaps you will respect it out of norms of comedy and respect for your coronate branches, but you're actually not bound by it. This is called departmentalism. The notion that Article 1, Article 2 have a separate independent authority and obligation to the Constitution. They take an oath as well. They must uphold it. The Trump administration should be looking for ways to subtly using this Lincolnian departmentalism, try to undermine this ruling. That should happen in coordination with an amendment process and various other statutes to try to criminalize birth tourism and that as well. But there's a lot more to unpack on this, folks. We're going to do a quick break and then start going to be joined by Elon Wurman to give us some more feedback. Stay with us, folks. We'll be right back with Professor Elon Wurman.
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Welcome back. So it's a momentous day at the U.S. supreme Court. Just a massive, massive day for better or as the case may be, for worse. And there is one individual who we are please bring on now to unpack it or help us unpack it. And that is Elon Wurman, who was a very smart man. He is the Julius E. Davis professor of Law at the University of Minnesota. He's also the author of three books, most recently the Constitution of 1789, a new introduction. He's also the host of the Rationally Based podcast. And Professor Wurman joins us now to talk about what has happened today at the US Supreme Court. So, Elon, there's been a few decisions, been a lot of decisions frankly, over the past couple of days. But I want to focus on the Birthright Citizenry case. You've been talking, writing a lot about this case. What are your high level takeaways? It's obviously a tremendous loss for the Trump administration, but there is a silver lining to the extent it matters that the 14th Amendment theory that many of us, yourself, myself have been arguing for actually got four votes, which is more than the two that I had cautiously predicted.
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C
Yeah, I actually think this is a pretty good way to lose. So when this all started, when Trump did this, at the beginning, everyone thought this is 9 0. This is obvious. There's no argument on the other side after oral argument, people are thinking maybe 8 to 1. And but you know, between Trump issuing the executive order and this being decided, a lot of scholars came out of the woodwork, including myself. I wrote a book on the 14th Amendment in 2020, and I wasn't tenured at the time, but I finally said, okay, you know what? I have tenure. Trump is doing this. Let's investigate this issue. I dug deeper into the materials that I'd previously found, and the Overton window clearly moved. Right. People realized that for 40 years, people weren't allowed to talk about this. It was just a verboten topic. And so scholars came out of the woodwork, and we got four votes on the Supreme Court of the United States. The judgment was 6 to 3, because Justice Kavanaugh would have ruled on the statutory grounds, but on the constitutional grounds. He had an even more aggressive reading of the citizenship clause than I have purported. So the breakdown is Justice Kavanaugh seems to suggest that the clause actually required that your parents be citizens. That is like an older version, which would be even more restrictive, which suggests that Wong Kamarc was wrongly decided. Wong Kamarc's parents were not citizens. They were lawful domiciled residents.
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B
Which he doesn't actually say that. Right. But he does imply his logic would dictate that you're saying correct.
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C
He doesn't say that in the. Kavanaugh does not say that. But the logic suggests that wonky Mark would be wrong. And then the Gorsuch Thomas dissent suggests that the lawful domicile is the standard with an asterisk. They. They leave aside for another day the question of whether people here illegally, who have been here for 20 years, 30 years, 40 years, whether they can unilaterally establish a domicile right, or maybe not unilaterally because the executive has refused to enforce the laws. But they say this is a facial challenge. We leave that question for another. Clearly, temporary visitors, birth tourists, cannot be domiciled. They haven't made this their home. Justice Alito, I've not gotten through all of the opinions I'm trying to read, like, the topic sentence of each paragraph. It's 200 pages, you know, collectively. And it came out, what, an hour ago? Justice Alito seems to have the same. I have not gotten to his bottom line yet, but he seems to get very close to Kavanaugh's view. He says, you cannot have been subject to a foreign power based on the Civil Rights Act. I don't yet know if his view is that means your parents had to be citizens or lawful domiciled residents counted. So I haven't gotten to the end of that yet, but the point is four votes for a view that people called frivolous. Josh, Josh, you remember the district judge in Seattle, was it Seattle? And there was like, it was like, this is frivolous. This is borderline sanctionable. He said Rule 11, Rule 11. Judge, you're a lawyer. Rule 11, sanctionable. Four votes on the Supreme Court for the view that he said was borderline sanctionable.
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No. Fair enough. And for the non lawyers out there, I presume most of you are non lawyers. Rule 11 is a way of sanctioning attorney for making a patently frivolous argument. And the judge when this case was first tried after the, after the January 2020 executive order out in Seattle, as Professor Gorman is saying, essentially said that this is so frivolous as to be borderline sanctionable. And now we have four justices of the nine who are agreeing with the administration to some extent. Gorsuch, not fully, some of them, not fully, perhaps others as well, but to some extent they. That the executive order comports with the 14th amendment. So I think the question, Elon, to kind of cut the chase a little bit, is where can all those patriots who for various reasons object to this underlying policy, this policy of birth tourism, this policy of giving birth or citizenship to the children of legal aliens, where can they go from here? You can go the constitutional amendment route because the decision is made on constitutional grounds. That's the biggest obvious problem for conservatives moving forward is that you can't just write a statute to clarify this. Something has to happen at a constitutional level. To me, it seems the most obvious thing, in addition to potentially trying to get a constitutional amendment, which is very, very difficult to do, would be to just try to do it the old fashioned way to try to overturn Roe versus Wade style. And I say that because it is a 5 to 4 decision. So in theory, you actually only need one more retirement from the majority. Is that kind of where your head is at right now?
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C
Well, you're asking me on the fly here, so let me have a radical proposition. They should do a city of Bernie v. Flores. What am I talking about here? In 1990, the Supreme Court changed their interpretation of the free exercise clause of the First Amendment. They now said generally applicable laws without accommodations for religious exercise are constitutional. Congress in the Religious Freedom Restoration act reversed this decision in congressional legislation basically unanimously. House, Senate, bipartisan, President Clinton signed it. It went back up to the Supreme Court and the Supreme Court in like a 5 to 4 vote, I think it was said, hey, we just decided this issue. You can't come back to us and say we got it wrong. And people have attacked City of Burnaby, Flores, that decision, as the court being judicial supremacists, like, they should give some deference to Congress under the 14th Amendment. I think Congress should try again. Congress. Well, it would have to get rid of the filibuster. It should pass this law, okay, that basically reverses this decision by saying, no, we think you got it wrong. And here's what we think birthright citizenship is. And I dare Justice Barrett and Chief Justice Robert, who joined the liberals on this One, for this 5, 4 decision today to go the City of Bernie approach, where they say, we, the Supreme Court, are supreme. We have final say. We don't care what Congress thinks. I have a feeling that they'll balk. I don't think they are. That's the view that they want to take. I mean, City of Bernie is a much maligned case. So that's one possibility. But it's hard. It's hard. Other than you fight for 30, 40 years. And look who said. I just read this recently, and I apologize for not knowing who exactly made this quote, but it's a paraphrase of what Max Planck, the physicist in there, early 20th century, said. Science advances one funeral at a time. Okay. It's not just that, like, the old hands suddenly become converts to the new ideas. No. The way science advances is that the new generation grows up only knowing what these new, better ideas are. Right. Well, for the next 40 years, they're going to have my work, Amy Swear's work, Kurt Lash's work, you know, the work of other scholars writing in this area. They'll have the four dissenters in this case. Right. In the previous 40 years, everybody said, conventional wisdom, open and shut, open and shut. How dare you write anything to the contrary? So I don't. I don't know. Justice Thomas says this will not stand the test of time. Today's decision. So that's interesting. He thinks there's some prospect of overruling in the future. It's very, very interesting.
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D
Yeah.
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B
And he devotes 91 pages to it, which, again, you're the law professor. I'm not. I just play one sometimes on camera. But this is literally the longest ascent I think I've ever seen published at the United States Supreme Court. It is just remarkable that the second longest tenure justice in Skoda's history has chosen now to write his longest opinion. I personally have not gone through the entire thing yet. What I've seen is absolute F, which you'd Expect from Clarence Thomas, but definitely some ways to go, folks. Follow elon Wurman on Xlawerman. His brand new book is the Constitution of 1789. A new introduction. You can see it sitting behind him. He's also the host of the rationally based podcast Elon. I want to zoom out a little bit here. You've emphasized correctly that this was considered a quote unquote fringe theory. It's now gotten four votes at a constitutional level to some extent at the Supreme Court. I remember when I was in law school arguing this, I felt like I was in the fringe. I feel like I'm less in the fringe today. And that is a silver lion, despite the level loss. I want to ask you what what does this say about let's call them Fringier or edgy constitutional arguments more generally? So you've written a lot on the 14th amendment, as you said. You propose that the Bill of Rights is not quote unquote, incorporated against the states, meaning that they don't apply to the states. We probably don't have time to tease out what that means in practice, but let's just stipulate that is a Fringier view. Let's call it in the legal academy. So does this, does ruling today give hope for those of us who find ourselves sometimes on, let's call it the constitutional fringe of the Overton window?
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C
Yes. Though I think more is at stake in the birthright citizenship debate than is over the incorporation debate. Right. A lot of the conservative judges like incorporation of the Bill of Rights against the states. Right. They want the Second Amendment to apply to the states. They want to be able to say Hawaii cannot violate the Second Amendment. But under my view, and I think under your view, Josh, you know, we've talked about this before the 14th amendment. There's a very little evidence that they really intended to incorporate the Bill of Rights against the states. That would totally undermine federalism. But to your immediate question, like that was actually the conventional wisdom until like the 1980s. Right. And then Michael Concurdis and Aquila Marsh started writing and all of a sudden, for 40 years people have assumed that incorporation of the Bill of Rights is obviously within the original meaning of the 14th amendment. I actually think something similar happened with birthright citizenship. Everyone says this was this long standing, longstanding, long standing interpretation. And. But actually when you look at when this view that temporary visitors unlawfully present aliens and their children were citizens, I don't. There was some in the FDR administration, the New Deal era, okay. The Supreme Court yesterday overturned a New Deal precedent, you know, Humphreys executive independent agencies. And really when you look like there were operations to remove temporary visitors in worker programs in the 20s and the 50s, no one claimed their children were citizens as far as I know. It wasn't until the 1980 census where you like explicitly started counting unlawfully present aliens.
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Right. The point is unfortunately where we're at time, but the point is that sometimes playing the long game really does work out to our favor. You mentioned Humphrey's executive overTurned yesterday after 90 years on the books. God willing, many of these precedents will go away as well, including this precedent today of Trump versus Barbara. So folks, follow Elon Wurman on xLongworman, his brand new book, the Constitution of 1789. A new introduction. Host of the rationally based podcast Elon, we really appreciate you joining the show. Thank you so much.
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C
Love the show. Thanks, Josh.
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B
Folks, we'll be right back after a short commercial break. Stay with us.
- [24:00]
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When you're a maintenance engineer in a beverage manufacturing plant, you keep production lines moving and and quality on track because there's no room for slowdowns. With Grainger's vast selection of high quality motors, sensors, belts and hard to find parts, you can get what you need fast and all in one place. So nothing gets in the way of getting the job done. Call 1-800-GRAINGER clickranger.com or just stop by Grainger for the ones who get it done.
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B
Welcome back. So as we've been saying on the show thus far today, you absolutely can indeed, you should try to pass a constitutional amendment to overturn birthright citizenship for anchor babies for the children of illegal aliens. It is an atrocious policy for every reason that a policy can be atrocious, it is grievously immoral. It has the absolute worst perverse incentives imaginable, trying to embolden the criminal cartels in Mexico to traffic these vulnerable women to get past the border when they're eight months pregnant. There is the horrific industry of birth tourism. There is paying surrogate mothers who get a travel visa. The whole thing is awful, absolutely awful. The commercialization of the women's womb, the denigration of the solemnity of American citizenship, the cheapening of American citizen, the undermining, most foundational of the very lowercase, all republican self governance predicated in consent of the governed and in this notion that we the people are sovereign, that there's popular sovereignty. All of this implicated in today's terrible decision. So an amendment in theory is the proper way, as is trying to actually overturn it at the level of the Supreme Court by getting at least one retirement of the five justice in the majority. But there are other ways, at least to chip away at this policy, policy, among other things, that you have to at this point, double down like never before on the deportation agenda. So the same way, as we discussed with Rachel Bovard yesterday, that the unfortunate mail in balance case really should light a fire under the rear end of John Thune and some Republicans to actually get the Save America act passed once and for all. The same exact principle applies when it comes to the deportation agenda. Agenda. This unfortunate setback in the Barbara vs Trump birthright citizenship base should absolutely incentivize the administration and their allies in Congress like never before to make sure that the largest and most expansive deportation operation in American history continues full scale, full speed ahead. You also should try to impose new fines, new laws, new statutes, criminalizing more generally those who come here for the express purpose of giving birth. There's plenty of new laws that should be on the books to try to disincentivize this behavior. The notion that the Constitution guarantees citizenship for the child does not preclude the possibility of trying to criminalize the underlying action in the first place. And frankly, if we're just being honest here, as my Article 3 project, Mike Davis, was explaining yesterday, what you should do is you should start these deportations by focusing thing on birthing age women. I realize that's, that sounds awful. I, I realize a lot, people, they're like, oh my God, how cruel, how inhumane. That's the point. The point is that this entire policy of birthright citizenship is inhumane. It is cruel. It subjects these women to the most horrific treatment at the cartels. They're vulnerable in the first place there. They shouldn't be here. This is a situation that, that, that the court has put us in. We need to start thinking very creatively about where we can possibly go from here. Now, I will switch gears a little bit because there was another huge case this morning and a slightly less big, nonetheless important case that came out in campaign finance as well. So the transgender athletes case came out this morning and it is a, it is a big one. These were consolidated cases out of West Virginia and Idaho. So two very red states, West Virginia and Idaho, they both passed highly commonsensical laws that basically said that if you are a biological male, then you cannot compete against biological males when it comes to athletic competition. And you might think that, okay, this is obviously common sense. And sure enough, it is common sense. Now, the great news here Is, as I tease at the beginning of the show, is that you shockingly got all nine justices, literally all nine. Even Soto, Sotomayor, even Ketanji Brown. Jackson, America. Talking about Jackson at her Senate confirmation hearing in the Senate Judiciary Committee, Marsha Blackburn of Tennessee asks her the Matt Walsh question, says, what is a woman? And Jackson says, I can't answer that. I'm not a biologist or whatever kind of amorphous gobbledygook she spewed out of her. Out of her mouth. Well, ironically, she apparently knows what a woman is well enough to define what it is for purposes of Title 9. So Title IX is the amendment to the Civil Rights act that came out in the early 1970s that basically says, says that federal funding shall be withdrawn from any institution, typically institutions of education, that discriminate on the basis of sex. So the relevant question here was whether these statutes that ban biological males from competing against biological females, do they discriminate on base of sex? And all non. All non. Justice say that at a statutory level, the answer is, no, it doesn't. You got some more nuanced opinions when it came to the 14th Amendment and the Equal Protection Clause. But on the basic question that's presented before justice in this case, it is a 9 to 0 victory for sanity. Now, the majority opinion comes out from Brett Kavanaugh, who is an athlete, who's a coach, who has a lot of reason for caring on a personal level about this issue. It's not surprising that he would want to take the crack at writing this opinion. Clarence Thomas has a very, very short concurrence that basically makes two points. One he says is that transgender status is not a suspect class, to use the nomenclature of the 14Amendment case law. It basically means that there is not heightened scrutiny that legislatures can do whatever they want in this arena because gender dysphoria is just a mental state. It's not the same as an immutable characteristic like race or sex. Very important point. The second point he makes is the culture war point. And I screenshot it, put it out on social media because it's just so, so good. Here's Clarence Thomas this morning. He writes, quote, as the Court recognizes, this case concerns biological men and boys who identify as girls. Men and boys with gender dysphoria are not women or girls, even if they believe that they are. Sex is an immutable biological characteristic. It is binary. And man and woman, boy and girl are the terms that correspond to adults and children of each sex to use language, to obscure reality, to show indifference regarding the truth is to lie to the public and cease to treat our fellow citizens as equals. Really, really powerful stuff from the second longest serving justice in the history of the United States Supreme Court here saying that this is a license lie, this notion, you can quote, unquote, become a male if you're a woman or become a female if you, if you are a man, that this is a lie. It's an assault on truth. We've said this on the show for, for years. It is a lie. It is an assault on truth. The reason I think that this case ends up being 9 to 0 is actually more of a cultural one more than a legal one. Think back to those images, those videos of Leah Thomas, the biological male swimmer at the University of Pennsylvania who was lapping his competitors in the swimming pool. These images, these videos were absolutely shocking. It was that sheer imagery, those visuals that I think really, really made a dent in the transgender causes image, in their public momentum, and ultimately resulted in the reality where this became an 8020 issue. And now we know that, at least on Title IX grounds, is a 9 to 0 issue at the level of the United States Supreme Court. So this morning, Peyton McNabb, who is an ambassador for IWF Independent Women's Forum, was on Fox News offering some immediate reaction to this ruling. Here's what payment McNabb had to say.
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E
No, I'm feeling, I'm just feeling so blessed. Of course, this is something that means a lot to me and if it affected me personally. And, you know, there's a lot of eyes on this across the country. There's families, there's, there's parents and there's coaches and daughters who are watching this decision being made. And I'm just so thrilled, thankful that they get to understand that they are protected and it's okay for their state to protect them, because, I mean, that's all it was, all that they were having to determine is if it was okay if states could protect their girls or if it was allowed. So I'm thankful that is, that states are able to protect their girls. Of course, they shouldn't have been put in that position to begin with. But again, you know, this, this really does help the Supreme Court because to me, if they wouldn't have ruled this way, they would have lost, lost all credibility. So I'm very thankful it went this way and I'm excited to see it keep pushing in the right direction.
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So the big question now going forward is not whether states can prevent biological males from impinging and infringing upon women's sports. We now know they can. The big question is whether or not that will be compelled. Will that be mandated? Will it become illegal, unconstitutional under the Fourth Amendment for biological males to discriminate against biological females by competing against them and depriving them of their dignity, their honor, honor, their trophies, et cetera, et cetera, et cetera? That is why the liberal ladies end up taking a different stance on the constitutional question. They agree on the statutory question, but but they say that the Fourth Amendment does not guarantee this outcome. They would they would rather leave it to the states. They'd rather leave it to what Louis Brandeis referred to as the laboratories of democracy. That's kind of ironic because liberals don't oftentimes tend to take a pro federalism view here. They're doing though they're doing so for self serving reasons, reasons. Ultimately we on the side of civilizational sanity, we are winning on the transgender issue. We're winning every which way you can look at it. And now, thanks to Supreme Court, it's a very tough day when it comes to the birthright citizenship case, albeit there is a path forward on that as well. But when it comes to biological sadness, when it comes to transgenderism and athletic competition, this was a massive win no matter how way you slice it. Folks, we'll go to one final break. We'll be right back with some more thoughts. I after this,
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here's something most people don't know. When Warren Buffett was just 13 years old, he didn't put his money into a savings account. While other kids were earning next to nothing at local banks, Buffett put $114 into a little known investment. Today, that $114 would be worth over $15 million. And it wasn't a risky trade. It wasn't even insider knowledge. It was an account account that's been around since 1888. And over the last 25 years, it's averaged 29% a year. That's what happens when your money is allowed to compound. Compare that to today's savings accounts paying less than half a percent while inflation quietly eats away at your buying power. Buffett understood early banks are great businesses, just not for savers. If you'd like to see what some investors call the 29% of the account, go now to account29.com that's account the numbers29.com again account29.com.
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Welcome back. So I want to talk about Iran. Steve Wilkoff and Jared Kushner are in Qatar. They've been in Qatar today For the past 2436 hours meeting with Iran through Qatari mediators Law disputes as to whether exactly we're engaging in face to face talks or it's just through the Qatari intermediaries. More on that in just a second. For now though, I want to flag that President Trump has issued at least one statement thus far when it comes to birthright citizenship. So this is what Donald Trump posted earlier today on Truth Social in response to his loss at the Supreme Court in the Trump vs. Barber case. He wrote, quote, the Supreme Court upheld birthright citizenship, which is too bad for a country, but we can easily make it up in Congress through legislation with the support of the President that has now been determined. During this process, no long and unwieldy constitutional amendment is necessary. Congress should start today, today to work on ending expensive and unfair to the country birthright citizenship. So your mileage may vary as to the actual legal analysis. As a general rule, when you have a constitutional ruling, Congress cannot amend this simply via statute. I think the more promising path forward is to go the full Abraham Lincoln approach and to rebuke the court when it comes to saying that this is not binding on anything other than the underlying litigants on the underlying plaintiff in this particular case. There we will see where it goes in the days that we ahead. Finally at the court, I did briefly mention that there was another case that came out this morning. This is a case called NRIC vs FEC. It was a campaign finance case. So basically, interestingly, the plaintiff, the one who sued in this case was actually then Ohio Senator J.D. vance. So J.D. vance suing alongside the National Republican Senatorial Committee, which the campaign committee for Senate Republicans. They were suing on campaign finance grounds to try to make it easier for political parties parties to coordinate with individual campaigns. When it comes to spending. There are these arbitrary caps under the Federal Election Campaign act. And in 2001 the court upheld those limits. Long story short, they overturn the 2001 case, say that these limits are not constitutional. And this is very much in line with the Court's jurisprudence in recent years when it comes to campaign finance. They tend to think of money for political activities as the equivalent of spirit speech. Your mileage may vary as to whether or not you actually think that is the exact same thing as speech, but that is the consistent jurisprudence of this Court of the sixth Justices. And this was a six to three majority opinion written along so called ideological lines will have the effect most likely of benefiting Republicans this cycle more than Democrats for the very simple reason that the Republican the nrc, the nrcc, etc have way more cash on hand than their Democratic equivalents. So they will be able to get cheaper ad buys essentially on radio and television. It also will have the effect, as I saw some very shrewd astute observers known this morning, it will have the effect as well of also emboldening the party itself, of emboldening the actual Republican Party and the actual Democratic Party, in contrast to the grassroots insurgents. So for instance, the dsa, the Democratic Social America, they will be hurt by this because it will allow the DNC to spend more money in some of these primaries. And there's one say in Colorado trying to ward off these Looney tunes Marxist communist insurgents. The same dynamic in theory applies on the right as well, but there's somewhat less intellectual friction in such matters. On the right, the right has its own issues when it comes to all the, all the Tucker Carlson, Candace, Megyn Kelly stuff. But on the left, this is a bigger issue when it comes to the establishment, the Hakeem Jeffries, Chuck Schumer establishment versus the DSA, Zorm Hamzani crazy caucus. So you'll see this play out. The DNC essentially is going to be able to crush these insurgents a little more easily there. The ruling is, though, very consistent with all the court's research rulings when it comes to campaign finance and free speech. So I want to talk a little bit as well about the issue of Iran. So Steve Wykoff and Jared Kushner have arrived. They are in Qatar. They are meeting with the Islamic Republic of Iran. It is disputed as to whether or not the United States negotiating team is actually meeting face to face with Iran, or whether or not they're only communicating through Qatari mediators, which is kind of odd, to be honest with you. You might be wondering how in the world is it possible that we don't even know whether we're talking to them directly? And that, of course, is part of the problem, is that Iran has been trying to have this both ways for, well, frankly, the past 47 plus years by now. But now they're trying to have both ways because they are openly working hand in glove with the country of Oman, which is their neighbor across the street of Hormuz, trying to impose tolls and fees on the street of Hormuz. And to reiterate our position on that particular issue, our basic position is that there's literally nothing to discuss here. If the Strait is still subject to piracy, tolls, fees, whatever you want to call it, that is an indispensable Condition is a sine qua non. You cannot have any talks, any deal, any negotiation unless you get a free strait. Now it's worth noting that despite the current situation of the street before Moose that the price of gasoline has gone down as of this morning by roughly 70 cents on the gas relative to the end of hostilities and the announcements of this admittedly quite crappy memorandum of understanding. So some things are going well, but the point is that that is fickle. It could change on a dime unless the strait is actually genuinely, truly open. It's interesting as well that these talks have shifted from Switzerland all the way to Qatar. I'm not entirely sure frankly why that is. It seemed like there was a big PR coup for the Swiss at this bougie five star mountaintop res in the peaks of the Swiss Alps and now they're back to Qatar, which is nothing if not a duplicitous two faced party. Qatar, which is one of the world's largest funders of the Muslim Brotherhood and Hamas and Islamism and Al Jazeera and all the other bad things that the country of Qatar does ultimately. Here's my prediction. I was actually on Piers Morgan's show on Monday and I was asked for my prediction as to where things stand and where things will be more specific, specifically one year from now when it comes to this particular conflict. And my somewhat dour, I would say sober prediction when it comes to the issue of Iran is this song and dance, these negotiations. It's not actually going to get anywhere. But the whole purpose of this, as we've said here on the show, is to kick the can down the road, at least past the midterms, at least buy some time, get gas prices down, get inflation down a little bit and be able to campaign on an economy inflation first agenda. The war, whether you support it or oppose it, when things it's been prosecuted, correctly, incorrectly, whatever you may think, it is not currently polling at a particularly high number. Nor was it frankly for most of the prosecution of the war. Now personally, I don't think that it was ever actually articulated or explained or sold properly to the American people. There was never a concerted effort in the early days of the week of the war to sell this thing to explain what we were doing there. But that ship at this point has sailed. The point is that the administration wants to kick this can down the road and sure enough, they will. Here's the problem. The problem is that Iran has not changed. They are the exact same people in charge. Their leadership has not changed. An IOTA whether it's Mushaba Khamenei, the apparently homosexual and also lacerated and grievously wounded young ayatollah, whether it's him, whether it's his minions in the IRGC led by Ahman Fahidi, whoever it is, they are still the exact same radicals as they were prior to the commencement of Operation Abdul Fury. In other words, Iran is going to continue to act like Iran has acted for the past 47 years. So we might try to wishcast this problem away. We might try to hope that our Iran quagmire will just go the way of the dodo bird, that it will all go away. It's not going to happen. It's simply not going to happen. To to quote Al Pacino in The Godfather Part 3, the more forgotten of the films, the Godfather trilogy, every time I think I'm out, they pull me back in. That's probably what Donald Trump's thinking when it comes to Iran. Unfortunately, that's just the way it is. We will get back involved with Iran at some point. That's not because we necessarily want to. Perhaps we should. Perhaps we shouldn't want to. But I'm saying that's because of who Iran is and what they will do more so than who we are and what we will do. Finally, I want to just flag, before we run in time for today's show, I saw a statement from naf, the organization known as the National Abortion Federation. This is a pro abortion organization, as you can tell by the name. For the first time since the repeal of Roe vs. Wade in the Dobbs case four years ago, the National Abortion Federation has released a policy position that is calling for Congress at a federal level to legalize abortion up until birth. I want to flag this because it shines light on what we were talking about on the anniversary day of Dobbs last week, right here on the show, where we explained that you might prefer this to be a state issue. I don't, but you might. The point is these things will get resolved at the federal level one way or another. When you have the left clamoring for national federalization of abortion up until Monda Burns Worth. And the right is just saying states, states, states, who's going to win that battle at a moral level, at a policy level, obviously, the federalization side wins that battle. Look, as Lincoln said to Stephen Douglas in 1858, you're not going to get a patchwork system where the country cannot long endure, cannot long survive. Half free, half slave, the house divided cannot stand. That's not how it works. Just like on the transgender issue, we're going to win on this issue. It might take a while, but we've had some victories under our belts. And we are in this one, certainly for the long game. Folks, have a great rest of your evening. Josh Hammer signing off. We'll be right back. As always, tomorrow.
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