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- [00:01]
Scott R. Anderson
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com lawfair also check out Lawfare's other podcast offerings, Rational Security Chatter, Lawfare, no Bull, and the Aftermath.
- [00:34]
Adam Grant
Hey, it's Adam Grant from Work Life, a podcast from Ted. This episode is brought to you by freshworks. Freshworks believes that complexity is the enemy of efficiency. So stop wrestling with bloated, expensive service software that takes forever to implement an update where ROI is someday, not today. You've been overcharged and underserved for way too long. Uncomplicate with Fresh Service for IT and Fresh Desk for customer support. And with Freshworks AI assisted service software, you'll work smarter, not harder. Freshworks uncomplicates.
- [01:07]
Molly Reynolds
Learn more@freshworks.com did you know adults 60/plus lose more than $60 billion each year to financial exploitation? Greenlight's new Family Shield plan empowers you to monitor your accounts for suspicious activity, protect yourself with up to $1 million identity theft coverage, and reassure loved ones safe with location sharing and place alerts. Get peace of mind today@greenlight.com protect. That's greenlight.com protect.
- [01:38]
Alan Rosenstein
So I don't know about you all. I had a lovely week off last week, including from Rational Security. Apologies for anyone listening. I got to spend a little week on the beach with my family and kids. Although, as is well established Rational Security lore at this point, it is local precedent that in fact traveling with young children is not vacation, it is just traveling with young children.
- [01:58]
Adam Grant
My. My wife will die on this hill. This is not a vacation. It is a trip. How old is your oldest? Because mine is four and I gotta say, I just came back from a trip with him. It was just the two of us and it was kind of delightful. Like I can see the light. I can imagine a world in which I took my kids somewhere and came back and legitimately felt that it was a vacation. I mean, I am not in that world, but I could imagine being in that world. Molly, your kids are older.
- [02:24]
Unnamed Speaker
I have just one and he's five. So yeah, I get what you're saying. Also, just the part where like you don't need as much crap to go places is like, that's the, for me, the real game.
- [02:36]
Alan Rosenstein
That is the real clutch. Yeah, but my 16 month old, that does not play out. We had like, like just bags of oodles of stuff going everywhere. Where did you guys go? Anywhere Exciting beach. Was it a beach week? Was it a exotic European vacation week? Get out of the country for the Fourth of July. Weird way to celebrate. But that's on you guys.
- [02:52]
Adam Grant
We went to the city. Oh, yeah. The exotic city of Detroit, Michigan.
- [02:56]
Alan Rosenstein
Ooh, wonderful.
- [02:56]
Adam Grant
It was great, actually. Yeah. No, that's gonna be my object lesson as a little preview, a little Detroit object lesson for.
- [03:03]
Alan Rosenstein
I hope it's pizza related.
- [03:04]
Adam Grant
It is not pizza related. You know, I don't love Detroit style pizza. I feel I want my pizza either thin or I just want it. I want to go full Chicago deep dish like I want.
- [03:13]
Alan Rosenstein
I don't.
- [03:13]
Adam Grant
I don't want the middle.
- [03:14]
Unnamed Speaker
Detroit gives you two opportunities to talk pizza. There's Detroit style pizza, and then there's like the weird provenance of chain pizza that all originates in southeast Michigan. I believe Object Lesson was once a podcast about the amount of chains that comes out of southeast Michigan.
- [03:32]
Adam Grant
What's from southeast Michigan?
- [03:33]
Unnamed Speaker
Little Caesars and Domino's as, like, national chains. And then there are a number of other regional chains that are based in southeast Michigan. And the Domino's world headquarters is in Ann Arbor, Michigan, in one of the strangest office parks you will ever encounter. It has a petting zoo. The petting zoo includes some buffalo. It's a trip.
- [03:55]
Alan Rosenstein
If you go to the Domino's office park, is there a tribute to the noid anywhere?
- [04:00]
Unnamed Speaker
I don't know.
- [04:01]
Alan Rosenstein
Are they still avoiding the noid? They're still on that old, old, old hobby horse.
- [04:06]
Unnamed Speaker
What I will say there is, or at least there within the past decade, was at Domino's Farms. That's what the Domino's world headquarters is called, is a place where they bring new franchise managers to train them and they want to, like, give them a sense of how stressful it is to try to deliver a pizza while it's still hot. So if you go all the way.
- [04:26]
Adam Grant
Downstairs so they light the car on fire.
- [04:28]
Unnamed Speaker
Not quite. But if you go all the way downstairs and you, like, want to go to the cafeteria, that's, like, underneath this office park, you will find new franchise owners, like, rushing around carrying pizzas.
- [04:41]
Adam Grant
Guys, this is just corporate hazing. To be clear. Like, this is pure raising foreign.
- [04:51]
Alan Rosenstein
And welcome back to Rational Security, the podcast where we invite you to join members of the lawfare team as we try to make sense of the week's biggest national security news stories. I am thrilled to be joined here once again by two of our all star guests here on Rational Security, my lawfare colleagues. First, of course, we have senior editor Brookings senior fellow, general congressional guru. So you know what we're talking about. It's back on the agenda. Molly Reynolds. Molly, thank you for coming back on the podcast.
- [05:17]
Unnamed Speaker
You guys can't see the two giant thumbs up I just made, but it's good to be back.
- [05:21]
Alan Rosenstein
Every time a man mentions Congress, the thumbs just come right up.
- [05:24]
Adam Grant
We said the magic word Guru. The guru.
- [05:27]
Alan Rosenstein
It's like a big foam finger sort of principle idea. The one person who's out there for article one every day.
- [05:32]
Adam Grant
I forget, Molly, do you prefer guru or maven? I always go with the first one.
- [05:35]
Unnamed Speaker
I prefer maven.
- [05:36]
Adam Grant
You prefer maven?
- [05:37]
Alan Rosenstein
I like maven. That is what I usually go with.
- [05:39]
Adam Grant
I think it's maven.
- [05:40]
Alan Rosenstein
It's one of my favorite ones.
- [05:40]
Unnamed Speaker
Ben prefers guru. But here we are in his honor.
- [05:44]
Alan Rosenstein
In his honor. In memoriam of sorts. We did it for Ben.
- [05:47]
Adam Grant
And now the opposite of a guru and maven, Alan Rosenstein.
- [05:51]
Alan Rosenstein
Exactly. And also we have this other guy, our co host, emeritus University of Minnesota law professor, among other things, senior editor at Lawfare as well, or director of our research initiative. What do we call that?
- [06:02]
Adam Grant
Research czar.
- [06:03]
Alan Rosenstein
Research czar. And our research czar here at Lawfare, that is harder to say than people give it credit for. Alan Rosenstein. Alan, thank you for coming back on the podcast. It has been a while. We're happy to have you back on.
- [06:13]
Adam Grant
It is it has been a while. Good to be back? I forgot the joy of 10 minutes.
- [06:17]
Alan Rosenstein
Of banter before B roll is a good cathartic exercise. And the fact that you're being recorded just gives it a little bit of pressure to perform that. We all need to actually be social online because otherwise it's just complete silence. But when you're being recorded, you're like, okay, I got to step up just enough.
- [06:32]
Adam Grant
I brushed my hair, I took a shower for this.
- [06:34]
Alan Rosenstein
There you go. Hey, we'll take it. We'll take it. There's no way to verify that, and I have my doubts, but by all means, you make whatever claims you will. Well, I'm excited to have you here because we have a couple of big topics from the Fourth of July week, a quieter week than we've had compared to recent weeks. No new major military offensive happening out there, no major new prosecutions. But a couple of big developments up our alley we thought was worth talking about. Topic one for this week. One bill to rule them all, one bill to find them, one bill to bring them all, and in the darkness bind them. Republicans in Congress narrowly enacted President Trump's one big beautiful Bill act last week, just in advance of the July 4 deadline he had set earlier in the year. What will its contents mean for elements of Trump's national security agenda, including his immigration policies? And what does it say about his influence over fellow Republicans in Congress, among other things? Topic 2 even a stop clock is right more often than this letter. In response to a FOIA lawsuit, the Justice Department has released copies of the letters that it sent to tech companies regarding President Trump's pause on the enforcement of a statute intended to curtail TikTok's availability in the United States. In the letter, the Trump administration not only suggests that the law may unconstitutionally interfere with the president's authority over foreign affairs, but suggests that the president can waive the enforcement of civil penalties and otherwise commit not to enforce the law. How persuasive are these legal arguments and what explains tech companies continued willingness to rely on them now, months and months later, from when they were initially issued? And topic 3 nationwide not on your side at the end of its term, last week the Supreme Court issued a long awaited decision in the birthright citizenship cases, wherein it sided with the Trump administration in ending the practice of universal or nationwide injunctions pursued by lower courts in many cases regarding challenges to government conduct. What will this holding mean both for the birthright citizenship cases and for the broader legal system moving forward? So our first topic Molly, of course we will turn to you as our congressional maven, our congressional guru, our master of all things. Article 1. It has been a big week for President Trump, I think it's safe to say, for his administration, or big week and a half now, because I guess a lot of the action actually happened a little over a week ago at this point. This was a bill that I think a lot of people had doubts was ever going to get completely across the finish line. In as close to its final form as it is, it does not look at all like what the House initially enacted, or it does look like it. There's big differences between what actually happened in the final version, what the House originally enacted, what the administration was originally asking for. But a lot of the substance, a lot of the main priorities are still there. Talk to us about what this bill does, how it came across the finish line, and what the big takeaways for you are in terms of its implication, but both from a policy perspective, although a lot of the policy stuff it's most important for, frankly, is a little out of lawfare's lane, although it's a big immigration chunk of it. We are going to talk about, but also what it tells us about the dynamics that President Trump has and his degree of control over Congress. Even though the Republicans there of his party have such a narrow hold, this was still a pretty resounding legislative thing to pull across the line along narrow margins. So at least that's how it's being reported. So I'm curious about your thoughts about that.
- [09:41]
Unnamed Speaker
Yeah, I think I'd start by saying that while President Trump and sort of his support for the bill is a really important part of the story of how it got passed, we should not think of the whole thing as being like the things Trump cares about or sort of. We should not think of it as containing the policy ideas that are of most importance to Donald Trump. It certainly contains some of those things. But then frankly, it also contains things that he has ever said he did not want to see Congress do, like enact enormous cuts to Medicaid. So, you know, he came out, including, not all that long before the bill was passed, and said, you know, you shouldn't cut Medicaid, like that's bad for our prospects for winning elections. One of the I'm not a person who thinks that Donald Trump has like a ton of magic, but one of the places where he is perhaps most interesting is the way in which he has rejected a lot of long standing Republican orthodox around advocating for entitlement cuts. But that is really important to lots of congressional Republicans. And this bill certainly does do that the same time. It contains lots of the kinds of things that Donald Trump spent the campaign talking about. So you mentioned a massive, and I mean like truly massive increase in spending for immigration enforcement. It also contains versions of a number of the sort of Trumpiest tax proposals. So things around no taxes on tips, no taxes on car loan interest, that sort of thing. So it, yes, it sort of is a creature of Trump, but it's also not a creature of Trump. And in that way, I think illustrates some important things about the way in which Trump, for all of the things that he is, is not a legislative president who has really concrete, actionable policy ideas. He's a legislative president who gets convinced to put his weight behind expl y or z. And then we generally see Republicans fall in line from there. I think the other just sort of like macro point that I would make is a somewhat historical one, which is that so this is what we call a reconciliation bill. The reconciliation process is what allows certain legislation to move through Congress without the threat of a filibuster. And we have seen an evolution in the use of the reconciliation process over time to the point where when a party has unified party control of the White House, the Senate and the House, the process becomes the sort of like one neat trick for trying to accomplish as much of what a party wants, often in sort of one fell swoop, as humanly possible. One big constraint on the humanly possible involves, and we can talk about this sort of the role of the rules, of the process and of the Senate's parliamentarian in adjudicating those rules. And so there are things that sort of get put in, things that get taken out. We're going to talk about this provision related to the preemption of AI regulation. But when you have that mode of legislative development where you sort of get to the end of the game and you have someone whose job it is in part to say this part of the bill complies with the rules, this part doesn't, things have to come in, things have to come out. And then the party in power has to respond to that by saying, okay, well, this came out in this form. We got to rework it in a different form. One thing that definitely happens is you end up with a bill that not everyone understands or knows what's in it. And there's almost certainly unintended consequences of things in this bill that we will only find out about later. There'll be things that sort of, there'll be inevitable drafting errors. There'll be things that Congress will sort of wish it did differently. And then it's really hard to come back and fix those problems, particularly because it's seen as this really partisan exercise, because it was, it was a thing that Republicans did themselves. So that's just sort of like looking into the future. But those are kind of like the big observations that I would make about the legislation.
- [13:55]
Alan Rosenstein
So I want to take a step back and think about the dynamics of what it tells us about this agenda. And this gets into a lot of issues that aren't lawfarers bailiwick. But I think it's worth understanding the dynamics around kind of like the legislature and the administration's interactions with it, where to get this passed. Essentially, this package contains a bunch of Trumpian agenda items that continuing tax cuts and extending, making permanent tax cuts, major surgeon, immigration enforcement, a few other things here and there, combined with, like you said, very conventional conservative and kind of like far to the right fiscal conservative agenda items, cutting entitlements and the things that Trump has historically been opposed to. And then importantly, like plenty of Senate and even House Republicans have historically been Opposed to. It's been something that a lot of they have had reservations about in the past that have prevented these from getting enacted through the regular legislative process on Congress's own initiative. So we've seen the folks kind of on the right in Congress really drive home be able to capture a real goal here. They're the ones who have really come out of this, it seems like able to capture and advance an agenda item that they have been really pushing for a long time that's not even supported by the president who wants this overall bill. That's the cost of them doing business and the fact that they can't get any support from outside their party. They're not really interested in getting support from outside the party. They just need that cohesion to get 50 of their 53 senators on board. Plus Vice President this is kind of a continuing shift. We've seen this conservative faction in both the House and the Senate more in the House verbally, and I want to probe it. That's kind of inner chamber dynamics a little bit. But really we've seen this dynamic where they've been leveraging their internal control over the Republican Party to try and push for agenda items, but never quite as successfully. I don't think is here, at least to me, it seems like this is like the biggest win they've gotten so far. Am I wrong about that? Is this a continuation of this trend? Is there more sign of moderation here, particularly when you compare the House and the Senate? Because the House did have to back down from a whole lot they wanted, and they ultimately did, once the Senate came back with their package of like, here's what we can actually do with the parliamentarian, like, how big a win is this for that sort of tactic of being, you know, to the right of the right and frankly, holding out and being willing to deep six your own party's agenda unless you get your way?
- [16:21]
Unnamed Speaker
Yeah. When I think about sort of the tactics here, the thing that I actually think is most interesting is the degree to which Republican leaders, frankly, in both chambers basically got this thing done by just continually punting on the hardest questions and assuming that sort of the sheer force of momentum would drive people to something that everyone was willing to vote for when they approached what should be noted as like a pretty fake deadline. The July 4th thing was just like that's when they said that they wanted it done by. To the extent there was a real deadline, it was probably something more like before the August recess. And that's only if they were committed to using this as the way to increase the debt limit, which they did do. So some of it was just the Republican leadership, I think, took a gamble on the idea that they could keep telling everyone that you just have to vote yes now and we'll figure it out later, and then betting correctly that when leader arrived, everyone would cave. So I think that's a lot of the tactical story. The other thing I would say is that I think we also saw a fair amount of kind of different blocks of people deciding what the one most important thing that they cared about in order to get to yes was. So when you think about sort of how did we end up in a place that had pretty draconian cuts to Medicaid, which again, is outside Lawfare's issue space, but it's still really important to talk about is that a lot of the House members who you might have thought would have been like, relatively moderate on Medicaid questions are also the Republican House members who are from states with really high state and local taxes, who decided that, like, the thing that the Hill that they were going to die on, like, pretty literally was how high could you get the cap on the state and local tax deduction?
- [18:27]
Adam Grant
As a Minnesota resident, all I can say is thank you for that. I don't love this bill, but I am a Minnesota resident and that is a high tax rate.
- [18:36]
Unnamed Speaker
Yeah, you can thank Mike Lawlor and his band of Mary blue state Republicans for that one. But anyway, so then once it was clear that that was the thing that they cared about and that they weren't gonna drag this all out on other Medicaid issues, then you figure out like, well, where's the. Where's the thing that you need to work with them on to get to yes? And then the last thing I'll say, because this is, I think, actually an underappreciated thing that's important for understanding this bill. And frankly, much of Republicans major legislating in recent years is that a lot of this only happens because you basically buy off Lisa Murkowski. And you buy off Lisa Murkowski because Alaska has an entire list of things that only matter to Alaskans. And so if you can figure out what combination of those things that only matter to Alaskans will get her to vote for the bill, then you can do that and not have to worry about gaining or losing larger groups of votes from elsewhere in the conference because you can just make the play for Murkowski and what she cares about. So there's some tax provision about commercial fishing boat pilots. I don't even know. But there's a number of things that really only matter to people in Alaska, and that's what she held out for. And so I think that's also an important part of the story.
- [20:02]
Adam Grant
The lesson for me is just that Donald Trump, despite in many ways being a very strong leader of the Republican Party, is also an incredibly weak leader of the Republican Party. Kind of simultaneously, he's very good on vibes. He really has set the vibes of the Republican Party and made it very difficult for any Republicans to publicly oppose him and undermine the dear leader vibes. But on policy, it's actually remarkably undisciplined. And the fact that Donald Trump would allow the Republicans to push through massive Medicaid cuts, that will be unbelievably unpopular with his base. I mean, forget the fact that he promised. He's a liar. Who cares about that? But just politically, it's a big problem for him. And I just think it shows that through a combination of laziness and also an obsession with having deals, whatever the contents of those deals actually ends up being, he is actually quite, when it comes to policy, extraordinarily weak. And so that, I mean, that is my main takeaway from all this.
- [21:06]
Unnamed Speaker
Yeah, I think that's. I don't disagree with that. I mean, it's also worth saying, because no one has said it yet, that the centerpiece of this bill is a massive extension of tax cuts for very wealthy people.
- [21:18]
Alan Rosenstein
And.
- [21:19]
Unnamed Speaker
And if you were to make a list of the things that are most important to Republicans of all stripes, I think that is at the top of the list. That includes Donald Trump and other members of the Republican conference. And they, like, played some real games with the budget rules to make that extension of the 2017 tax cuts permanent.
- [21:37]
Adam Grant
As opposed to. We're doing dynamic scoring. Oh, no, that makes it worse. We're going to do static scoring just like that.
- [21:43]
Unnamed Speaker
And we're going to, because we think the parliamentarian is going to tell us no if we ask if we're allowed to define the baseline in a certain way. We're just gonna refuse to meet with her on that question. So if we never ask, she can never say no. Which is like a real dynamic familiar to all of us. Parents of young children.
- [22:04]
Adam Grant
Yeah, I was gonna say it works for my 4 year old. Why not for the Republicans?
- [22:07]
Unnamed Speaker
I have said basically since becoming a parent that nothing has prepared me better for parenting than being a professional watcher of the United States Congress. And sometimes the opposite is true as well. But, yeah, I, I agree with you, Alan, that we should associate this with Trump, but we should associate it with Trump, I think, tactically more than we should associate it with Trump on a policy basis with some exceptions, including the tax cuts and again, this like truly massive increase in spending on border enforcement.
- [22:40]
Alan Rosenstein
Well, I do want to talk about that because obviously that is a part of his policy agenda and something that is uniquely something that I think a lot of Republicans in Congress support to some extent. But this went to a scale that is very unique to the Trump administration and its million deportations a year target, which seems so outlandish and all of a sudden now seems maybe not so outlandish depending on how quickly you can spend this money. Before we turn that though, let's turn to another dog that doesn't bite because we talked about on the podcast before and that is this idea of preempting AI regulation. This was a recurring idea. We saw it introduced in a number of different iterations after initially encountering some parliamentari objections and is initially encountering some objections from other folks in Congress. We know it was an idea strongly backed by a good part of the AI industry. And a lot of people looking at AI in good conscience saying we think state interference with AI development and AI usage is just going to stymie an industry that is seen as central to competing with China, rightly or wrongly. That's the way that a lot of people see it. Alan, talk to us about what ultimately happened to AI provision and what it tells us about the dynamics in Congress in particular. But I suppose the broader country as well around AI regulation and the absence thereof and the preemption thereof.
- [23:56]
Adam Grant
Yeah. So this issue is something we've written a lot about at Lawfare on all sides of the issue. So we'll drop some links. So basically just to give a little bit of background on this issue. So a year ago or a year and a half ago now, California nearly passed a pretty sweeping AI safety bill, SB 1047. And although that failed because Gavin Newsom vetoed it, that really put this question of federal preemption of state AI regulation on the map. And so kind of fast forward to a few months ago, the House, as part of the one big beautiful bill included it called a moratorium or a pause or whatever it said. So basically it was going to be a 10 year period where the federal government was going to preempt state regulation of AI, specifically state regulations that treated AI differently than comparable technologies and activities. So it's not like states couldn't do anything about AI, but they couldn't single out AI and say, in this particular domain, you can do general things, but you can't do them with AI or other kind of regulations about that. And this was obviously a quite big deal. The problem is, and Molly spent a lot of time on our slack explaining to me the intricacies of this. This, like everything else, runs into the buzzsaw, that is reconciliation and the Byrd rule, because you were never going to get 60 votes in the Senate for a clean preemption. It wasn't clear that you were going to get 50. And to fast forward, you didn't get any in the end. But the problem was that a general moratorium was not going to satisfy the Byrd rule. So, so what ended up happening, largely led by Ted Cruz, who has also been thinking about introducing kind of standalone preemption legislation, was, okay, we need to tie it to funding. And so it went through various iterations, where initially it was going to be tied to $42 billion of broadband funding, where basically, if a state wanted the broadband funding, they were going to need to abide by this moratorium. Then the parliamentarian complained. And so in the end, it got whittled down to $500 million of AI funding, which is actually not that much money and is especially not that much money for the states that actually matter, largely California. So by the end, the whole thing was kind of performative in the most useless way possible. And even some of the tech industry began to be not huge fans of it because it was just enough to annoy blue states and just states generally into regulating AI, but it wasn't enough money to actually get them to not so, like, it was the worst of all possible worlds. In the end, the thing failed because Senator Blackburn from Tennessee realized that as the bill was written, it might preempt Tennessee AI law. And people, you know, Tennessee is not a hotbed of AI, but it is a hotbed of music. And so Tennessee had passed something called the Elvis act, which was basically a way to help Tennessee musicians. And obviously Tennessee's the, you know, Country Music and Recording Music Music Center. It was going to give musicians extra protections over their voices, right, because they're this new generation of AI music tools. And so Senator Blackburn realized that this piece of legislation might preempt that. And so she pulled out. And then by the time she pulled out, that kind of everything unraveled. And in the end, the Senate voted, including Ted Cruz, who previously had been supporting this, voted 99:1 to strip the moratorium out of the bill. Now the one vote, and I Forget who it was. Molly, do you remember who it was? It was the guy, it was the senator who's voting against all amendments to the bill. Cuz he hated the whole thing. He's a Republican, but he's resigning. He's not.
- [27:39]
Alan Rosenstein
Oh, Thom Tillis.
- [27:40]
Adam Grant
Thom Tillis, yeah, it was Thom Tillis. He was the one that voted to keep it in. But that's cuz he hates this bill entirely. So it's basically a unanimous repudiation. Now the question then is, okay, what does this really mean for the future of preemption? I don't think you should read that as there are 100 senators who hate preemption. It's just that it's actually very, very hard to do and it's very hard to figure out exactly what level of preemption. Now. A year and a half ago I co authored a piece with Dean Ball, who actually is now in the Trump White House doing AI policy, in which we argued that the way to do this is to preempt regulation of AI development, but not preempt regulation of AI use. So basically say California, you can't tell OpenAI how to build its models, but you can do whatever you want about regulating how AI tools are used within California or Tennessee, as the case may be. And we thought that was the kind of correct balance that would both be administrable. Like you can write that down in a piece of legislation. And also that is going to meaningfully allow AI to develop at the national level but still respect the traditional equities that states have. Right. California may want to regulate on employment discrimination and Tennessee might have music stuff and Minnesota might have whatever it has. So I suspect that we still will ultimately have some degree of preemption because I think that there is broad consensus in Congress that AI is important and it is net beneficial and we need to be China and all of that sort of stuff. And especially if in particular California were to start imposing real regulations on AI development of the big foundation models, that could be a real problem for that. But hopefully I think this exercise shows why trying to go farther than that and start micromanaging states in how they regulate AI enabled activities, which is going to be all activities pretty soon, is just not going to work because you're just not going to be able to cobble it together. But it was certainly a wild ride because those like AI watchers, like I was in many group chats where like we were getting like every 12 minutes there'd be this new update and in the end it just like falls apart so dramatically. But, you know, such as watching Congress.
- [29:56]
Unnamed Speaker
True.
- [29:57]
Alan Rosenstein
So let's, before we move on to our next topic, let's circle back to the big item that's most squarely in the bill that is also in lawfare's domain, and that is ICE funding. We have seen ICE get a massive surge in funding, making it among the most well funded law enforcement agencies, possibly the most well funded, better funded than nine other law enforcement agencies, including Customs and Border Protection, including a number of other agencies that do similar missions. Even if you throw them all together, that's just how much money ICE has gotten in hand. Now, it's an incredible, incredible investment in an agency that has always been very controversial. It's not too long ago that we had people very publicly calling for the disbandment of ice. Now it's back in a big way to say the very obvious. It's obviously about to grow potentially exponentially. And it is, if you actually can use this money to increase the agency's capacity, that is a harder question than just getting the money in hand. But if you can, then in theory, you can open the door to a lot more the sort of activities that ICE does, which is raids, arresting people and facilitating deportation of people here in the United States, all very controversial activities. And remember, we have seen ice, at least purportedly according to the Trump administration, interfered with so much by public protests already that they've called in the military in Los Angeles to help defend them. And so it is a certainly fuel on what is already a fairly big fire here in terms of ramping up those activities. But one essential, if you take the Trump administration's goal, stated goals at their face, which is to massively increase the number of deportations. So that's a lot of wind up. I kind of want to hear your reactions and thoughts on this, how big a development this is and where this fits into the politics. I mean, this is a topic where you've seen the Republicans lean into this much more than Democrats, although there are plenty of people, Democrats that are very vocal on border security and border concerns as well, although that is a little different than deportations. But this is just of a scale that I don't think anyone was fully expecting to get through at this sort of level. So Molly, let me start with you on that. What are the politics that led to this sort of outcome? And then, Alan, I'd love your thoughts on kind of what it means from a policy perspective and a kind broader perspective.
- [32:10]
Unnamed Speaker
Yeah, so we are talking about $165 billion for DHS over the next decade. DHS has said that they plan to use about $44 billion of that in the next fiscal year. So in fiscal year 2026, by comparison, the sort of rest of the DHS budget that's handled through the annual appropriations process, the request for that for the next f year is about $115 billion. So that should just like give you a sense of what we're talking about here. And I'm going to. This is me sort of a little bit of a weedsy answer to the question, but I actually think it's super important. So this money that DHS is getting from this bill is the kind of money that historically would not have been allocated through a reconciliation bill that moved on this last like fast track process through the Senate. Historically, the kind of spending that Congress would deal with through the reconciliation process was like entitlement spending. So spending on Medicare, spending on Medicaid, spending on the Children's Health Insurance Program, spending on student loans, spending on farm price supports. So the kinds of spending where like how much goes out is determined by some sort of of formula or some set of eligibility rules that Congress wrote at some point in the past. And then that money just sort of flows based on those eligibility rules, regardless of what Congress does on an annual basis, unless Congress chooses to change the underlying law that says like 65 year olds are eligible for Medicare and like this is what Medicare covers and like that kind of stuff. In 2021, when Joe Biden was president, Congress Democratically controlled Congress recognized that there was a whole bunch of stuff that they wanted to spend money on that they were never going to get Republicans to vote for. And so they took kinds of spending that would have traditionally been handled through the annual appropriations process and sort of dressed it up as the kind of spending that the reconciliation process has generally dealt with in order to get it done on a filibuster proof basis. And the Democratic appropriators at the time weren't wild about this idea, but they sort of came around to the idea that this is the only way you were going to get all that Covid money for schools and all the stimulus type stuff that was in the American rescue plan. The only way you were going to get that out the door was to erode this previous boundary between the discretionary appropriations process and the reconciliation process. Fast forward to 2025 and this DHS money is a real example of those chickens coming home to roost. I'm not saying Democrats made the wrong choice because I believe that even if they hadn't made that choice, Republicans might have well made the same choice about how to do this. But there was, was some precedent, a large amount of precedent from 2021 to sort of do this sort of thing. And so that money, the DHS money like that's available now, it's not contingent on the annual appropriations process. It's not contingent on having to build a filibuster proof majority every year to enact one or a set or one big discretionary appropriations bill every year. Like it's that it just got done in this bill. And so I think, so I say all this because in addition to it being substantively important, it's also kind of a sneaky part of the overall story that I think we've been working hard to tell in various forms on lawfare about the erosion of congressional spending power. And so one thing that's happening here is Congress sort of making a choice to privilege policy goals over what I might say is better budget process in order to get a thing done. But that could also come back to sort of bite them. They in general are also standing down in other spending contexts.
- [36:25]
Alan Rosenstein
Alan, what about you? I'm kind of curious about your reactions, your takeaways from this, both either procedurally like kind of a meta context, or in terms of the actual policies it's suggesting.
- [36:34]
Adam Grant
Yeah, my views are, as usual, much less interesting and thoughtful than Molly's. I'm just pretty freaked out by this. And I see this as someone who actually does not, I think, tend to get freaked out by funding enforcement properly. But I think that we will be dealing with this much more broadly than just in the immigration context. Obviously that's very important as a policy issue because I don't actually view this as a, you know, I think you've mentioned a few times, we've mentioned a few times that this is, you know, about border enforcement. This is not actually about border enforcement. This is about internal immigration enforcement. Now, of course, that is legitimate activity. Right. You know, being in this country legally is a crime. Right. A country has a, has a right to deport people who are in the country illegally. Those are not my policy preferences as a general matter, but they are not per se illegitimate. But this is different than funding enforcement at the actual border trying to prevent people from crossing the Rio Grande River. This is about fanning through the country into communities, into farms, into Home Depot parking lots and going and often having masked individuals who are not wearing uniforms, who have unmarked cars, abducting people. Right. And now doing this at a scale across the country that we have never seen. Now, can this be done carefully and legitimately and properly? I guess so. Will it be done in that way? I don't think at all. And so you're going to have a level of fear and terror that, again, I don't think we've seen for decades in this country. I mean, you're going to have a level of pressure on criminal procedure, the rule of law that I think we last saw at the height of the war on drugs. And even then, I suspect this is going to be at a scale that's much, much higher and that doesn't even begin to grapple with the possibility of this becoming essentially the sort of kind of paramilitary force under executive control that I think many of us have feared. I mean, look, ICE is not the Gestapo, but you do now have a situation in which you have a massive number of agents who I also say are now so politicized that one wonders about who would want a job like this and what wonders about their underlying policy, views, Views and their politics that is now going to be able to, I think, terrify not just people who are here unlawfully, but people who have a similar profile. Right. Whether that's racial or socioeconomic or demographic or what else is. And also people who support those individuals. And so, you know, it's just. It's putting me in kind of a dark place that I honestly have not been in.
- [39:35]
Alan Rosenstein
Right.
- [39:35]
Adam Grant
I mean, look, when people like Bill Kristol, you know, famed lefty Bill Kristol are talking about the need to abolish ice, I think that you have to take the concerns that a massive expansion of this apparatus leads to. And I got to say, like, I'm. I'm freaked out. Like, the technical term for what I am feeling is I am pretty freaked out. This is not the agency that I want to see quintupled, certainly not in this administration. But I'm curious, Scott, I'm actually curious, Scott, what you think about this or Molly, obviously.
- [40:10]
Unnamed Speaker
No, I was just gonna say that I'll also note that it was just sort of taken for granted the whole time that this bill was going to include a large sum of money for dhs. Like, when we think about the pieces that got a lot of kind of public airtime and public debate, such as it were, it was things like the Medicaid cuts and the cuts to SNAP and the SALT deduction. But from the jump, the idea was like, oh, no, we're going to put all this money in here. We're going to do that in part.
- [40:46]
Adam Grant
Because elections have consequences, man. I mean, like, he ran on this.
- [40:50]
Unnamed Speaker
And it's not just that it was gonna be in there. It's like, oh, that's gonna be the carrot that's gonna get some people who are uneasy about one of any million other things in this bill to vote for it is this idea that, oh, no, they'll be assuaged in part because it has such a large investment in immigration enforcement. And I take your very good point, Alan, about it's not just at the border. The other thing I'll just say on your point about can ICE actually hire all these people? The Congressional Budget Office, of all people, in their estimate of the bill's costs, said that there was significant uncertainty on how DHS was going to be able to spend this money because they have had trouble hiring new people in the past. And so I do think that is a. Is a source of uncertainty here.
- [41:39]
Alan Rosenstein
Yeah, I think those are good takes. The only thing I would note about this is the one thing I think we do know it is because we don't know how feasible is to spend this money, how to train it up. It is a sign of brinksmanship on the part of the Trump administration and allies in Congress. They are going to ratchet up and keep putting pressure on this until a certain point where they won't, because there are going to be political costs for this. And I think you might see political costs redound on this. This is the one issue they've really stuck to their guns on. It kind of plays into Trump's rhetoric, his desire to be perceived as a strongman. You see that with them calling the military up. This plays into it. But when you're sending out a year from now, very poorly trained ICE agents doing knocking on doors and kicking in, arresting people, detaining people, Their political risk is actually really high for doing something like that, for something where the actual payoffs for average Americans of removing these people actually not that high, because people blame a lot of immigrants for a lot of things. They're not going to get better when you actually remove a lot of these people, economically or otherwise. So I think it's a much higher risk proposition. I think it may just be enough rope for Trump and his allies to. That they hang themselves with, but we'll have to wait and see. You don't really know. And a lot of people, unfortunately, are going to face.
- [42:46]
Unnamed Speaker
Really, I was going to say. And not before they've extracted an extraordinary human toll on many, many people.
- [42:55]
Alan Rosenstein
Exactly.
- [42:56]
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- [45:23]
Molly Reynolds
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- [45:48]
Unnamed Speaker
Hey, it's Matt here from P1 with Matt and Tommy.
- [45:50]
Alan Rosenstein
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Alan Rosenstein
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- [46:52]
Alan Rosenstein
So let us go on to our second topic before we drill too much further on this. And that is another development involving creative law enforcement actions by the Trump administration, this time relating to TikTok. Another issue we have talked about a bit in the past. We know we have a statutory TikTok ban on the books. Pfaca, my favorite statutory name except up ababa, is up there, certainly with the One Big Beautiful Bill Act I think it is. It has to be to get the.
- [47:21]
Unnamed Speaker
So I do want to note, because I'm all about precision, that one thing that Democrats did do before the bill was passed was strip the short title One Big Beautiful Bill act from the legislature.
- [47:35]
Adam Grant
Thank God for Chuck Schumer. Standing up for democracy, baby.
- [47:39]
Alan Rosenstein
That might be a little petty, but that's okay. Leave it in there we stand, call it the ABBA Bubba.
- [47:44]
Adam Grant
Look, it'll always be the, uh, Bubba. Buh. In our heart, the real ABA Baba was the frenzy.
- [47:51]
Unnamed Speaker
It's a game of bird rule facilitated tit for tat. They've been playing over the past couple of reconciliation bills, but we can still call it that. I just want everyone to know it is no longer technically that in the.
- [48:06]
Alan Rosenstein
Law, for the record. Fair enough, fair enough. So, Al, let me turn to you on this TikTok bill. We have this ban that's been in place. The Trump administration has basically said we're just not going to enforce it. But it's never really explained why or how. Now, because of a FOIA litigation, we have the letters that the Justice Department sent out a short page and a half to every tech company that finally got them back on board with providing the underlying infrastructural services to TikTok, necessary for it to operate in the United States. That was the choke point that Congress tried to throttle down on with this PUFAKA law. And now p' FACA is all FUBAR because of what they've done. Talk to us about what you learned from this letter. What stands out as you is interesting. You wrote a very critical piece about it in Lawfare, which I wholeheartedly agree with, because I had a very strong reaction as well. But I want you to open up with us. Talked about what stands out as particularly strange in this letter that the Justice Department sent out.
- [48:59]
Adam Grant
Yeah, I mean, it just doesn't say anything. So the letter, as you said, is very short. It feels, I mean, I'm sure this is not why they wrote it this way, but it feels designed to just continue to troll me. I feel like every time I talk about this, I just get, like, more and more unhinged. And I've been doing this for a year and a half, so, like, I don't have that much more unhinged in me, but I'll do my best. So basically, the letter says that pursuant to the executive order of Inauguration Day and then some subsequent ones in which Trump has continued to extend the deadline, or I should say he has stated that he will not enforce this for certain amounts of time. He cannot extend any deadlines. That's not in his power. That he and therefore the Justice Department have determined that the law infringes on his Article 2 Foreign affairs powers. That's literally all it says. It doesn't specify which article two foreign affairs powers it is. It doesn't specify on what basis this determination was made. In a normal course of events, there'd be like a very long OLC memo somewhere. I suspect that there is no such memo. I'm actually positive that there's no such memo because you could not write such a memo. But it says, first, we think this law violates the Constitution by interfering unconstitutionally with the President's Article 2 powers. Therefore, we choose to read this law to not apply to this circumstance. Now, what they're trying to say here, and this is a move that's often made in other countries context, is when you have a law that's ambiguous, that could be read in multiple ways, one of those ways might be unconstitutional, and one of those ways is definitely fine. Constitutionally, you should read the law so as to avoid the constitutional question. This is called constitutional avoidance. So I, I take what the Trump administration is doing is that they're saying, look, if you read the laws to apply to TikTok, it would it, we think it's unconstitutional. So we're not going to read the laws to apply to TikTok. The problem, in addition to there actually not being any constitutional issues, which we can talk about in a bit, is that the law is not vague. It cannot plausibly be read not to apply to TikTok. It literally says TikTok in the law. It is as clear a law as you could imagine. So even if the law were unconstitutional, you can't avoid that by reading the law creatively like the law is what the law is. You'd have to say the law is just unconstitutional. So that's another thing that does not make any sense. Sense. And then the third thing that the letter purports to do is it purports to, and I forget exactly the language it's used, but basically irrevocably waive any claims that the Justice Department has against these companies. Because the main enforcement mechanism is that for every user that gains access to TikTok through either like the Google or Apple app stores or through, you know, Oracle cloud hosting, these companies have to pay $5,000. There are 170 million TikTok users in the United States. So. So that's a big number. That's nearly a trillion dollars of liability, which, like, even for Apple or Google, is a lot of money. So DOJ is saying, look, not only does this is this law unconstitutional, not only are we therefore reading it as to not apply to you, but.
- [52:00]
Alan Rosenstein
We'Re.
- [52:00]
Adam Grant
Purporting to never be able to enforce this against you. It doesn't clarify whether that would apply to future presidents because there's a five year statute of limitations. It almost certainly couldn't, legally speaking. But the reason this is important is because. Because what DOJ is purporting to do here, and Steve Ladig actually wrote a great substack piece about this, I think that came out this week, it's purporting to resurrect what used to be called the dispensation powers. This is a power that kings of England claimed for themselves in jolly old England time, where the sovereign could just not enforce a law. Now, this did not survive the Revolutionary War. This did not survive our Constitution because this is a massive expansion of presidential power. And there's actually an important catalyst case from the early 19th century in which the Supreme Court says presidents don't have a dispensation power. They don't have a power to simply veto laws after the fact because they don't like them. So this memo, in a page and a half manages to say nothing because it provides no explanation for any of its arguments, while simultaneously making a series of breathtaking constitutional claims that if you were to take literally, would eviscerate huge swaths of rule of law in this country. Country. So, you know, look, I said this to, like, journalists when I talk to them about this. I don't think the future of TikTok is the most pressing rule of law question in this country. Right. Like, there are much other bigger issues. But for pure kind of clarity of just how contemptuous this administration is of the rule of law and how expansive it thinks its powers are, the TikTok case is the perfect example. And this letter, I just, just, like, it is mind blowing. It is doing an excellent job in continuing Alan's flex spittled rage about the whole TikTok saga.
- [53:48]
Unnamed Speaker
It also has me worked up about, like, where's Congress? Like, Congress wrote this law. Congress passed this law, admittedly, like, this particular bill was part of a larger package that contained some other things, too. So you can't be sure exactly how many of the people who voted for the combined thing in whatever March of 2024, if I have that right. We're thinking. But it was signed into law after it was contained in a bill that got large bipartisan majorities in both chambers. And I don't know, I don't, I haven't followed this super closely, but it does not seem to me like members of Congress are all that worked up about the idea that the executive branch is simply choosing not to enforce a law that they wrote and that the Supreme Court also said could go into effect.
- [54:43]
Adam Grant
Yeah, it's, it's, it's wild to me. I mean, you're seeing this on the Republican side because obviously no one wants to cross Dear Leader. You're seeing this on the Democratic side because they're getting really squishy about this law. I mean, like, right before it came into effect, Chuck Schumer comes out again having voted for this law and saying, oh, but the influencers. We have to, Must protect the influencer influencers. And so, like, I think this is gross. And also, I think it just, it raises real questions about, look, the next time Congress passes a law on national security grounds, much of which is classified, and ask the courts to largely defer to them. Right. Which the court, Both in the D.C. circuit and the Supreme Court did in this case, will they, will they do that? I mean, because the last time they did that, the whole thing was a farce. Right? The president didn't enforce the law and Congress didn't say a peep. And so honestly, it makes the Supreme Court look like a bunch of assholes a little bit. Right. Just holding the bag bag for this. So the whole thing is just so embarrassing.
- [55:32]
Alan Rosenstein
So there are two Parts of this, I think are really interesting. I think almost the legal argument is complete nonsense because there's no feasible way that the underlying legal basis for saying this in any way conflicts with Article 2 is a real issue. I think there's a real big question to say how much can the President actually do withhold on enforcement of this sort of thing, Obviously may be able to while he's in office, the way that he can, to the extent he can preempt future presidents from revoking that sort of authority or seeking to enforce it after the fact, which is really what these companies are worried about. Trump can say now, hey, I'm not going to enforce these civil sanctions. He can't bar a future president from potentially doing it as easily, although that's what he's claiming to do in these letters. The real issue here, I think is a combination of political and legal barriers. The fact that this will never get litigated or seems very unlikely to get litigated. And that's why the company seems be willing to rely on it. On the congressional side, we saw the insane 180 ing that was happening in both parties, in both chambers when this bill came up with people who had voted for it all of a sudden saying, no, I don't like this bill, we shouldn't go forward with it. Such a strong reaction. The TikTok advocacy campaign was working. So the idea of Congress really getting all up in arms about it all of a sudden isn't really there. Then you have the fact that it's not clear who would have an interest or would have the ability to sue the government for not actually enforcing this. And if they would win, and almost certainly they wouldn't because this does seem like discretionary enforcement activity, at least in the near term.
- [56:57]
Adam Grant
Well, I think they might win. They just wouldn't have standing. I think that'd be the harder one. You could imagine they could win. I mean, there are cases in which the courts have, you know, it's hard.
- [57:06]
Alan Rosenstein
Executive branch to enforce a civil remedy. I don't know. Sure there is. Maybe there is. I'd be curious if anybody listeners, if you know, send it in because I don't think there is. But I think the real question. Standing though you're right, is a real question. Although presumably these companies have competitors who actually would have standards.
- [57:22]
Adam Grant
Yeah, I mean Google and Meta, Google and Meta are the people that could, that could sue. Obviously they won't for political reasons. But like those are the, those are the people that have standing.
- [57:29]
Alan Rosenstein
So what's really Interesting in this letter that I noticed is that the. The idea of relinquishing claims, of essentially settling these claims, is an innovation that came into these letters. It only popped up, as far as I can tell, in the April 5 round of letters. And these go all the way back to January 30th. And this is maybe the most compelling legal argument where they're essentially saying, hey, we're settling this issue. It's not that we're like, just not enforcing it. We are positively waiving any claims and settling it. And we have the authority to do that. As a law enforcement authority that binds the executive branch moving forward. I'm not sure that's persuasive. I would want to do a lot more research before weighing in on that. But it is the best legal argument they have available to them for being able to give the sort of confidence to the companies. They only did it for two companies, not all of them. They only did it for Apple and Google in the April 5 letter signed the same day.
- [58:15]
Adam Grant
Strangely, they didn't do it. They didn't do it for Oracle and Akamai. Interesting.
- [58:19]
Alan Rosenstein
No. So the outside counsel for Apple and Google deserves big credit for this for having, I suspect, written angry letters and presented this argument as something that would make them feel a lot better on behalf of their clients, one of whom is Jeannie Rhee, former Biden administration official Ian Gershegoren. People may remember, I believe, from the first, first Trump impeachment around Ukraine, I think he was involved in, as I recall, so a familiar line of lawyers. So they do have a little credit there. As far as, for my quick review, I only saw that provision in those two letters. But long story short, I don't think anything's going to come of this, because even a future administration that doesn't want to see this law enforced, they're not going to retroactively and go hit these companies for the third big factor, the legal factor and the political factor going the third one that would be devastatingly economically for major American companies, they're too big to fail, and so nobody's actually going to want to go back and do it. And the Trump administration, in its savvy sort of way, sniffed out, hey, the balance of interests are there, that nobody's really going to check us on this. But it is. It's pretty remarkable. It's pretty remarkable.
- [59:17]
Adam Grant
No, it is. It is remarkable. I will say the thing that scares me the most, though, is, is that these companies have put themselves in a position where they are now subject to immense blackmail by the Trump administration.
- [59:27]
Alan Rosenstein
Yeah, no, it, that is, that is the question. That's why I think you will see every one of these other companies, if they're smart, go get a letter with that paragraph that has the relinquishing of claims in it because that's the best security you have moving forward to get rid of these claims and prevent a future administration or this administration from backstabbing you and coming back on it. And we're probably going to see that be a more permanent function of these moving forward, which is a slightly, I don't know if it's saner, but like slightly more compelling basis for doing something like this. Although not that compelling.
- [59:55]
Adam Grant
I don't think my, my flex spittled rage continues unabated.
- [59:59]
Alan Rosenstein
Hey folks, Scott here. Just hopping in in the edit for a slight correction. As I say, misrepresented things. The language I am talking about about waiving claims and settling claims does only appear in the Google and Apple April 5 letters, but is also in an April 8 letter to Microsoft and some earlier March letters to other companies. Still very spotty. Not clear to me at all why it is in some letters, not other letters, and I suspect other companies may be asking for it now that these letters are public, but thought I would clarify the record when I realized I misspoked after we finished recording this episode. Thanks. Now back to the action. Well, we are running short on time. Let us go to our third topic before we run out of it, and that is the Supreme Court's major decision in the birthright citizenship cases on nationwide injunctions. While this arose in the context of the birthright citizenship cases responding to the President's policies seeking to end the practice of birthright citizenship, the merits of that was not on the table here. This was strictly a challenge to the practice of universal or sometimes called nationwide injunctions by lower courts, where lower courts will get a certain number of plaintiffs complaining something unlawful happening you almost always on the part of the government and that the district court will then enjoin the government government from engaging in unlawful behavior in regard to anyone or potentially unlawful behavior. Because these are usually preliminary injunctions before final relief, they will bar them from doing that in regard to anyone, not just the plaintiffs bringing the case on an efficiency basis. The Supreme Court, in an opinion by Amy Coney Barrett, pushed back on this and struck it down on a 6, 3 partisan line, essentially saying this practice is overly broad. There may be exceptional cases where it might be appropriate, but really the courts are supposed to focus on just providing relief to the Plaintiffs in front of them, complete relief, potentially nationwide relief, but not relief to a bunch of people who have not bothered to litigate and have not come forward. The exceptions being if this is a class action among a couple of exceptions. Alan, I want to start with you on this as our resident law professor, although I know this is a little outside your usual lane. How compelling do you find this decision, how problematic do you find this decision, and where does it fit in? I'll put my cards on the table. I think it may be right on the merits, but has horrible timing and context. Yes, but. But that's where I kind of fell on it.
- [62:16]
Adam Grant
Yeah, I think that's right. I am. I am so flummoxed. I'm going to go with flummoxed here, both in terms of the decision itself and then just the broader reception that it's received in the kind of the legal commentariat of which I guess I am part. I guess we are. We all. We all are. We all are part of. For our sins professionally, for better or worse. Yeah, I mean, I mean, so look, in some sense it does seem kind of obviously true that nationwide injunctions are a remedy to be used extremely sparingly, and they have not been over the last decade or so. And everyone has been complaining about this on both sides of the aisle. Like, this is the classic example of where you stand depends on where you sit or where you sit depends on where. I always forget where you stand depends on where you sit. I think that's the correct phrase here. Right. They were used to great effect in the first Trump administration to stymie the Trump policies, which raised howls of protest from the Trump administration and, you know, conservative leaning law types. But they were also then used by great effect in the Biden administration to stymie a ton of Biden administration priorities, in which then they raised lots of howls from the Biden administration and lefty legal types. And so, you know, I find this decision to be. Be so confusing in multiple ways. Right. One way it's confusing is the timing. Right. So, okay, you can read the conservative opinion in isolation. And like, Justice Barrett is really smart. Like, she writes good opinions. You just read it like it makes a lot of sense. But of course, why did they wait until now to do this? Right. And they could have done this anytime during the Biden administration and it would have looked a lot better. Right. Had conservative justices struck down something that was harming a Democratic administration. Right. Now, Will Bode of the University of Chicago Law School has an interesting post explaining why he thinks the timing came out the way it did and why there's sort of like, perfectly good, neutral explanations for it. I don't know. It seems reasonably compelling. And I generally trust Will on stuff like this, but I think people can be forgiven from looking, like, a little askance at this. But on the other hand, you read the dissents, right? And I think they were. There was one written by Justice Sotomayor. I think everyone signed. All the. All three, just liberals signed on to that. And then one written by Justice Jackson that only Justice Jackson signed onto, or it was written only for Justice Jackson. And it caused some, like, you know, controversy because Justice Barrett then kind of gave it the back of the hand. I think people are overreading that a little bit. These were fiery dissent. I mean, these were like. These were about as dissenty as you get, which is, like, fine. But, you know, like, some of these justices, including Justice Kagan, also didn't like universal injunctions during the Biden administration. Right. And so I think this is a very long way of saying, scott, I think you're right. I think this is probably the right decision. But, like, in the most awkward timing possible. And I think part of the, I think skepticism on the center or the center left, and I will say I share a lot of the skepticism as well, is we won't know the effects of this for a long time. Like, we won't know if this is just the right, you know, if this is a good decision because. Because it clamps down on this kind of frankly, somewhat abusive injunctive practice, but still leaves adequate alternatives for vindicating constitutional rights either through the class action mechanism. And we should note, literally the same day that the Supreme Court issued this decision, the plaintiffs refiled as a class action. They were ready for this. And actually, it's also important to note Justice Barrett's decision did not end universal injunctions. Right. She was very clear that there may be situations in which. Which universal injunctions are necessary. They are, in fact, despite being universal, the most limited form of injunctive relief necessary to vindicate the rights of the plaintiffs. Now, that would not be the case for individuals in the birthright citizenship cases, but it might arguably be the case for the state plaintiffs. Right. Because if you're a state, if you're a blue state and there were some of these state plaintiffs, you can might say, look, we actually need a universal injunction to vindicate our rights as states. Because, you know, if I'm New Jersey, I need to make sure that my residents who were born Here, right. Maybe children of unlawful immigrants, but they were born here. When they go to Texas, they need to be protected. And similarly I need to know if the Texas person who is being denied citizenship in Texas, well, are they now citizens when they come to New Jersey? So there's one world in which the Supreme Court has just gotten rid of this but keeps alternative channels for vindication of rights in this case and in other Trump related constitutional cases, in which case that's good. And I think the freakout from the left was an overreaction, right. And like a little embarrassing in retrospect. But there's also, right there's also a different world in which the Supreme Court then manages to defang class actions and the rest of the universal injunctions or even you can imagine in real bad faith the next time you have a Democratic president, somehow universal injunctions come back, right. In which case this all looks very partisan, all looks very bad. So I think that we just don't know how this is going to play out. But I'm certainly not feeling very good about it because I think there's a tension here and this is kind of the tension of all Trump law of do you apply the standards you use for all other administrations, which is ideally how you would do things, or do you recognize that Trump is a uniquely malevolent actor and you need special Trump law? But the problem is you're not supposed to have special Trump law. Like that doesn't end well generally for the legal system. And this is a tension in which like Trump makes everyone, like Trump makes everyone around him look, you know, do bad things as well because he's such a chaos muppet.
- [67:52]
Unnamed Speaker
So I certainly have watched the experience of the Biden administration. So I guess one Response to Alan, what you said, which I think is all sort of well reasoned, is that just to really emphasize from again a non lawyer perspective that like if there ever was a case where a universal injunction seemed appropriate, something as basic as the question of citizenship and who was a citizen and who was a citizen, whether that is different depending on where you were born in the United States like that it seems like a pretty big deal. And so I think that again for folks who aren't thinking about this from a more legal perspective, that's where I think a lot of the just like the questions of timing as you put them, are coming from. The other thing I'll just say again is because as I understand it, it is more or less difficult for different kinds of plaintiffs to get themselves determined to be a class. I think One of the things that's going to matter a lot in the near term, putting aside, I think all your observations about the law term, Alan, is just how hard will it be in some of these cases that matter a great deal and where there are existing nationwide injunctions, how hard is it going to be for the plaintiffs in those cases to get certified as a class? And what does that mean for the state of a lot of the existing litigation against the Trump administration?
- [69:18]
Alan Rosenstein
Yeah, I think that's what has people stressed out about this, Penny. I think that's actually very valid, even though I think Judge Barrett lays out a pretty persuasive case. Why the ordinary course you would want injunctive relief generally limited to the parties in front of you if you buy into a narrow cases and controversies vision of the court's jurisdiction, which I actually like, am a little critical of how far that goes and potentially even in this case. But nonetheless, if you buy into that worldview, and most federal judges do, and certainly most conserved federal judges do, this is a natural kind of extension. Extension of that. But it strikes me as two potential problems here, right. Like when you're talking about certain foundational governmental actions that might be unconstitutional, like for example, the willingness to engage in impoundments and to stop, not spend federal money. Right. As we see as an issue in a lot of litigation that affects a really diverse array of potential plaintiffs in really diverse ways. And after this opinion, if those people are going to get interim released relief, which is often the only relief you get from years while an issue is being litigated, they now have to file lots and lots of separate cases potentially, unless they can certify as a class. But we've seen this court, the Roberts court, I should say it's actually a very different composition going back to the Walmart case in 2010, 2011, and really kind of repeatedly in the last few years, really look pretty skeptically at class certifications, be pretty high, demanding, saying they need to have like defendants. This term alone, we saw a decision that ended up getting digged, getting sent back to the lower court without opinion where Kavanaugh dissented, saying you can't have a class where some people don't have standing in it, and that that itself defeats potential class certification. There's all these ideas about what does and doesn't make a proper class that aren't decided, that are still open questions. And so what we're going to end up seeing is that we're going to see lower courts really wrestle with, well, what does Rule 23 actually permit. That's the Rule 20 governing class actions. Right. How alike do these plaintiffs need to be? Realistically, you're just going to have to. Yeah, a lot more plaintiffs have to take the cost of initiating litigation. So take, for example, the AIDS Vaccine Advocacy Coalition case. That is like the main case challenging the Trump administration's block on foreign assistance funding. It's a hugely diverse array of plaintiffs making with a huge amount of diverse legal arrangements with the State Department, with usaid, some contracts, some grants, some direct payouts in certain, certain contexts in certain ways, although a lot of those are in separate cases actually. But, but similar idea. They've been pursuing one litigation so far that has had the effect of liberating the whole sector so that lots of other people are supposed to be getting paid out of this money, too. Although the Trump administration has been challenging that originally on separate grounds. Now on these grounds, now those other companies are all going to have to sue and potentially all of these plaintiffs to get the same remedy together. You know, right now, they're all plaintiffs, they're all participating. But if there's other similarly situated people benefiting against litigation, they have to join as co parties or they're going to have to form a bunch of different classes. So you end up with a ton more litigation around the country. And that's just costly. It's just the cost to the plaintiffs, particularly when we talk about this broad term governmental action in a way that's kind of problematic. And then you have this issue where you end up with a lot of potentially conflicting resolutions and standards across the country, first, first in class 23A or class 23 certified about class actions that's going to get litigated up to the Supreme Court because you're allowed to do interlocutory appeals on those under the Federal rules. And so Supreme Court's going to decide, okay, let's slowly figure out what class certifications are permitted and aren't. We're going to see a ton of litigation about that in the next few years probably. And then you will, as that's getting sorted out, end up with all these conflicting standards around the country in different jurisdictions. Justice Kavanaugh wrote separately to say that's not really an issue here because in the end, the Supreme Court's going to have to decide all these cases and provide a uniform set of rules. Rules and will establish one precedent that will apply to all the people covered by this class. What I think his opinion still misses is that doesn't actually void the problem of having to have a Lot more people litigate. Yeah, you may. When it gets recited by the Supreme Court. Supreme Court says, yes, you can enjoin the executive branch from not paying out federal foreign assistance funds, but if you issue that opinion, in theory, under this opinion, the reliefs can still only be provided to people who are plaintiffs. So even though there's one federal rule, if you have an executive branch that's willing to keep violating the law, even though the Supreme Court says no, you are allowed to join people from this until they get a final decision, which this administration has proven very willing to do, you're still going to have to have individual plaintiffs file suit to actually get relief. Or maybe you can get a class certification at that point for saying everybody who would be covered by or should be covered by this preliminary injunction or the ruling that allows for this preliminary injunction but isn't right. It just creates a lot of weird enforcement questions and puts a lot of burden on individual plaintiffs and a lot of people who are facing costs or other factors that might not allow them to sue, even though what the government is doing against them is enjoinable and potentially unlawful, found to likely be unlawful under the preliminary relief standard, they're not going to be able to get that relief. And that's really concerning at this particular moment. I think that's why people are very reasonable to be alarmed about this. Not in the birthright citizenship context. That's a context you'll have no problem certifying so class, but in all these other contexts, and that's why it's concerning. Even though maybe it's right on the law and that is the Supreme Court's job. In the end, it's just kind of unfortunate if they continue on their trajectory of narrowing Rule 23, if they were willing to accept Rule 23, public interest class certifications more broadly, or Congress could even step in to establish broader rules, then maybe it's less of an issue. And we don't know because public interest class certifications haven't really been that big a thing, in part because we've seen so many universal injunctions be used last several years. So with that, we are just about at time. But this would not be rational security, of course, if we did not leave you with some object lessons to ponder over in the week to come. Alan, what do you have for us this week?
- [75:06]
Adam Grant
So I was in Detroit this weekend visiting my best friend who grew up there and was spending July 4th there as well. And so as part of the trip, she took me on a tour of her high school, which is the famous, I guess it's famous Cranbrook schools, which is like some really fancy high school. It is I mentioned as an object lesson because it is the most beautiful grounds I have ever seen in my life. Certainly in the United States. Like top three in the world. Like, it was like walking through a high quality British, like baronial estate. High quality, not those low quality ones like the high quality one. I do not understand. She explained to me the history of this like four times times. I still don't understand why there is a high school. It's just like a high school in the United States with grounds like this. I think they're like multiple Rodin sculptures. It is insane. It's completely insane. But it's also like open to the public, which is why it's my object lesson. So, like, next time you're in Detroit, spend like half a day just wandering around the Cranberg campus. It is unbelievable. To be clear, I don't think anyone, anyone deserves a grounds like that, but it exists. So you might as well go. Might as well go enjoy it.
- [76:18]
Alan Rosenstein
Be warned about your blood pressure if you went to public school because it may off the gears.
- [76:24]
Adam Grant
I went to a great. I went to a fabulous public school, but it was built on Long island in 1963.
- [76:30]
Alan Rosenstein
So it's like me too.
- [76:31]
Adam Grant
Yeah, similar rectangles, right? Like unbelievable.
- [76:37]
Unnamed Speaker
Alan, should you ever find yourself needing to make small talk with Mitt Romney, you now have something to talk about.
- [76:44]
Adam Grant
You know, that is something I've worried about for many years, but now I know. Mitt, Mitt, what was it like, man? What was it like on top of the car, sneaking your chocolate ice cream under the bleachers at Cranbrook.
- [76:56]
Alan Rosenstein
I will say my favorite thing about Cranbrook is that inevitably anybody from Detroit tries to claim a lot of street cred by being from Detroit, by virtue of it being like a real city, hardscrabble city. And then you ask them where they went to high school and then they say credit. And you know, you've caught them in the most severe of lies and exaggeration. I'm not besmirching your friend, but I've met a few. I have a few friends who are Cranbrook.
- [77:17]
Adam Grant
She does not claim to be from. She does not claim to be from inner city Detroit. For, you know, to be clear.
- [77:22]
Alan Rosenstein
Good for her. Good for her. Well, for my object lesson this week, I thought I would plug something a little more lighthearted. Something I've really been enjoying on YouTube in random moments as it's been Force fed to me in the form ofShorts on YouTube, which I usually detest. But these are the only ones I like other than, like very fancy cooking shorts from some chefs I like. Have either of you heard of a Game Changer? This game show? It is.
- [77:45]
Adam Grant
Oh, yeah, I watch it constantly. Oh my God.
- [77:48]
Alan Rosenstein
It is like YouTube understands how much I like it and they just feed it to me. It is a. It's on the Dropout network. It's like, like the college humor for elder millennials. Now, as far as I can tell, because all the college humor people form this other company, which is phenomenal. And I actually, actually paid for a script script. And I have no regrets about it because it's very, very entertaining. Although I don't really watch that much TV. And all these are all free on YouTube, so you can check them out. But Game Changer is a game show where essentially they just bring in a bunch of improv comedians and other very clever people. They don't tell them the rules of the game. They kind of go through a game, do a bunch of scenarios, but they have the most ridiculous people and come up with the most ridiculous scenarios. And it's perfect for like 90 seconds of perfect humor.
- [78:22]
Adam Grant
And they also all like and support each other too. So it's like they're super funny.
- [78:26]
Alan Rosenstein
And yeah, it's like a bunch of nerds who. Improv nerds.
- [78:30]
Adam Grant
Yeah. I want Brendan Lee Mulligan, Zach Oyama or Vic Michaelis on this show. I don't know how we get them on Rational Security, but if you're listening, which you're not, because why would you. Oh my God. Let's find a crossover.
- [78:41]
Alan Rosenstein
The Dream. The Dream. Their most famous product is Dimension 20A Dungeons & Dragons live play that is also hilarious and very entertaining, which I really enjoy. That may have been why I subscribed initially. So. Also worth checking out. But Game changer. Check out the short clips, man. Very, very funny. Worth it. If you're an elder millennial in particular, which appears to be their target demographic, by all means, get on it. Finally bring us home. What do you have for us this week?
- [79:02]
Unnamed Speaker
I have something that is the opposite of lighthearted, which is a Dark nine part Netflix series called Department Q, which is based on a series of, I believe, Danish crime novels reset in in Scotland. It is not for the faint of heart, but it is very good and I, I recommend it.
- [79:27]
Alan Rosenstein
I say Scandinavians are delightful. It looks lovely. I've never been to Scandinavia. I actually am hoping to go in the near future, but they have the best kind of gothic dark tinge on things. Like anytime you read anything that's kind of Danish, and then you put that through the lens of just Scotland, where there's just a lot of just like wind gusseting over hills and people are wearing skirts for no reason. It just.
- [79:49]
Unnamed Speaker
The moors.
- [79:50]
Adam Grant
The moors.
- [79:50]
Alan Rosenstein
The moors, exactly. It is. It's wild. I can only imagine.
- [79:53]
Unnamed Speaker
Yeah. There's without spoiling too much, like a whole major plot point in this series involves like an island off the coast of Scotland and a ferry. And so it's very Scottish but retains all of its very dark Scandinavian origins.
- [80:11]
Alan Rosenstein
Love it. I love it. Well, wonderful, wonderful recommendation. But for us, that brings us to the end of this week's episode. Rational Security is of course a production of Lawfare, so be sure to Visit us@lawfaremedia.org for our show page with links to past episodes and for the written work and the written work of the Lawfare contributors. And for information on Lawfair's other phenomenal podcast series. While you're at it, be sure to follow Lawfare on social media. Wherever you socialize your media. Be sure to leave a rating or review wherever you might be listening and sign up to become a material supporter of Lawfare on Patreon. For an ad free version of this podcast, podcasts and other special benefits. For more information, visit lawfordmedia.org support our audio engineer and producer this week was Noam Osban of Goat Rodeo. Her music, as always, was performed by Sophia Yan. We are once again edited by the wonderful Jen Patchow. On behalf of my guests Molly and Alan, I am Scott R. Andersen and we will talk to you next week. Until then, goodbye.
- [81:07]
Molly Reynolds
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