Advisory Opinions - Shibboleths and Executive Orders

Episode Date: January 21, 2021

Can Joe Biden heal the rampant degree of polarization that’s currently plaguing our nation’s politics? “There is an element on the left side of the aisle that is every bit as hostile to their fellow citizens as there are on the right edges,” David tells Sarah on today’s episode. “But the thing is, Biden won the primary by specifically shunning that part of the Democratic base.” After their post-Inauguration Day reflections on Biden’s swearing in ceremony and the state of polarization in America, our hosts chat about the NRA’s bankruptcy status and Biden’s flurry of first-day executive orders. Show Notes: -Divided We Fall: America's Secession Threat and How to Restore Our Nation by David French. -Take our podcast survey Learn more about your ad choices. Visit megaphone.fm/adchoices

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We work with animal care experts and work towards a sustainable future. That's Dairy Farming Forward. You ready? I was born ready. Welcome to the Advisory Opinions Podcast, day one of the Biden administration, and day one of rethinking a lot of Christian prophecies. Sarah, that's not the topic of our podcast, but I did like this Babylon Bee tweet that came across, uh, just seconds ago. Someone texted me, evangelical prophets clarify that Trump's second term will be spiritual, not literal. Okay, that's funny. That is good. That is good.

Well, this is the Advisory Opinions Podcast with David French and Sarah Isker. And we're going to cover a pile of things today. We're going to talk about a day after reflections on the inauguration. We're going to talk about the NRA bankruptcy. And the Biden administration began its working operations with a flurry of executive orders that we're going to walk through all of the key orders one by one so that you can kind of know at least what we think about them and what they actually say as opposed to some of the spinning about them that you're seeing on Twitter. But let's dive in, Sarah, with the inauguration. We are now almost 24 hours removed as we record this, and it'll be more than 24 hours when you listen to this

from the inauguration itself and from the events of yesterday. And there's been some time that they've kind of sat and marinated in your mind. And what are you thinking today? And what are you thinking today? So as a young person, I used to watch the White House Correspondents Dinner, the inaugural balls on C-SPAN, like all the cool kids do.

Of course. And last night I thought was actually just so much fun because the inaugural festivities were very similar to the convention and they were, it was all online. So it was all just C-SPAN. And so you weren't missing anything by not being there because there was no there. Well, unless you were Joe Biden or his immediate family, in which case they were there at the White House and the Lincoln Memorial, the performances were all really wonderful. I mean, I'm trying to think of like what my, I mean, Yo-Yo Ma playing at the Lincoln Memorial was incredible and playing Amazing Grace, by the way.

And what else? I mean, Justin Timberlake was incredibly talented. The Foo Fighters were a great nostalgia band for me. And then you had, oh, the Broadway cast. They did the song from Rent, 525,600 minutes that then went into Let the Sunshine, which was just flipping cool and wonderful and sort of this inspiring coronavirus darkness and thinking of all the people that we've lost into hopefulness and positivity.

And then it ended, of course, as it had to, with Katy Perry singing fireworks against a backdrop of the most fireworks I have ever seen ever on television or in person. It just like was enormous. And it was it was wonderful. It was so great. And it made me start reflecting on some of what perhaps both sides of the aisle have learned. And I don't mean the, you know, super woke Twitter left or the super conspiracy Q right. I mean, those of us who... Is anyone left? Who go about our days, who have jobs and mortgages and children and things like that. So I watched Jen Psaki's press briefing last night and someone texted me and was like, oh, do you know her? What do you think of her? And all of a sudden it occurred to me. I think I was on some was on, you know,

some panels or something with Jen Psaki back in the day, but I remember watching a lot of her briefings while she was at the state department. It was sort of my job at the RNC to sit there and watch the white house briefing and watch the state briefing, uh, both because the state briefing is considered sort of be like Jv briefing in terms of substance the state department is very important at this point but gazi was going on and because generally the state department spokesperson someday becomes the press secretary and so you want to sort of see you know check being not all that impressed, like meh, and no doubt tweeting a bunch of snarky stuff about how I wasn't all that impressed. And I watched her last night and I

thought to myself, like, gosh, that was ungracious of me and not necessary. Like, it's totally fine to disagree on the substance of what she may say from the podium. But it occurred to me that, like, I have substantively changed since, you know, watching her press briefings back in, you know, the 2012 to 2014 days. And the change has been for the good. days. And the change has been for the good. And I wonder how many other people are going to take that step back, have already taken that step back of like, you know what? I thought these people were, you know, kind of my enemy and that sort of, it was all fair. They were going to go after me. So I'm going to go after them. And it was just going to be this cycle. And how many people have stepped back over the last four years or the last 24 hours or whatever it might be and said, you know what? I'm going to keep this really substantive from now on. And Jen Psaki is going to be doing her very best for her boss

and for the country. And I'm going to make that assumption as I approach criticizing what she may do, what the administration does instead of assuming bad faith. Yeah. I mean, no, I think that the last four years, what the last four years have done for a lot of us is sort of, it's been like a reboot in an interesting way, because I think one of the things that we realized in the last four years is that we took a lot for granted, a ton for granted. And so we were conducting this political back and forth without giving any credit at all, or very little credit, to sort of the background level of integrity of our opponents, and their sort of background level of patriotism, and their

background level of commitment to the country. And so we were focusing and diving in on the differences completely to the exclusion of everything else, and often unwittingly contributing to this idea that takes an opponent and turns them into an enemy. And so, you know, one of the things that I, as I look back and I think about my response to Obama, there were things, there were multiple things he did that I agreed with, but I'd often be quiet about that. Right. And then when he did, when, when he did something I disagreed with, I would really speak up. But looking back on it, there were things that I... I finally, towards the end of his term, I began to say, wait a minute. At the end of his term, there are a number of things, especially in national security, aside from the Rand deal, that I like. And I started to begin to say, hey, I like this aspect of what Obama did. And the pushback was furious for that, just furious that you can't give him any credit at all.

Because giving him any credit at all is giving aid and sort of aid and comfort to the enemy. And that's when I began to realize, wait a minute, hold on just a second. And that's when I began to realize, wait a minute, hold on just a second. There's something that is really beginning to verge on the pathological in our political discourse. costs of making assumptions about um taking for the cost of taking for granted the kind of political system that we had before as flawed as it was and as many mistakes as people did make to a lot of the discourse was responsible the prior to trump a lot of that discourse was responsible for this impulse to burn it all down. And then we had a four-year look at what it looks like when you kind of have this almost nihilistic rage against the system. And it's not pretty. It's not pretty at all. My hope is that there are people on both sides of the aisle who feel this way.

And I feel like there are. So last night, I love country music, David. I don't know if you love country music. I like a lot of different kinds of music, but I love country music. Now, I like Texas country better than Nashville country, but I'm not going to be too picky. I'll take what I can get. So Tim McGraw and Tyler Hubbard performed last night, the song called Undivided. And I want to talk a little bit about the Poet Laureates poem, which was just gorgeous. Amanda Gorman, she's 22. Okay. So I just want to be clear. I'm not comparing Undivided's poetry to Amanda Gorman's poetry, but I'm almost exactly going to do that. So it's a song called Undivided, and yes, it's a little hokey, it's a little cheesy, the lyrics aren't, you know, all that deep, but I want to read some of it because this is what people were choosing to perform last night, what the Biden team wanted performed last night, and I think this is meaningful. I think it's time to come together.

You and I can make a change. Maybe we can make a difference, make the world a better place. Look around and love somebody. We've been hateful long enough. Let the good Lord reunite us till this country that we love is undivided. Yep, you either go to church or you're going to go to hell, get a job or work, or you're going to go to jail. I just kind of wish we didn't think like that.

Why is it got to be all white or all black? And then there's fast forwarding a little. And we're all the same to God, no matter what we get his love okay well that i mean it's country there's a little bit of poetic license i suppose and uh country lyrics and we're all the same to god no matter where we get his love i'm tired of looking left or right so i'm just looking up and basically it's a song about how the country's been hateful long enough, and they want a country that comes together undivided. And again, that's like the hokey version of what Amanda Gorman's poem was that was read during the inauguration itself. But this was kind of

the theme throughout a bunch of those songs. And you and I talked about this yesterday on the Dispatch podcast, but there were a lot of religious overtones in Biden's inauguration. Amazing Grace played the night before at their COVID victims ceremony. Garth Brooks sang it at the inauguration. Yo-Yo Ma played it last night. was mentioned several times in his inaugural address. Faith was mentioned. Faith was mentioned by the performers. To me, that signified a change because for so long, the left has been moving away from faith having a place in American discourse.

And very much the left part of the party has been trying to sort of shun as sort of stupid, superstitious, anyone who does go to church or believe in God or whatever else. And at the same time, the right has been using it as a cudgel for a couple decades now.

You know, you are sinful, un-American, all sorts of things that I find incredibly distasteful on the right. And it was sort of another symbol to me of this idea of undivided, which maybe is a better term than unity, which I know Jonah took issue with. Right. Because there's a difference between being unified, which I agree can lead to some of the mob mentality that Jonah is against. But being undivided is something different. And that is this idea that you can be different, but there are strands that bind us together that are indivisible. But there are strands that bind us together that are indivisible. Well, you know what? I think what really began and one of the reasons, again, why I wrote my book and was beginning to see these trends of disunion that caused me to write my book.

Is you really began to see and this was always something that existed on the extreme partisans, but you began to see mainstreaming sort of this idea that the America that I love only exists when my party is in power. And this is where you get terms like the real America. Well, all of America is real America, or that there are certain American institutions that you believe, and this is something that my friend Kevin Williamson has hammered on correctly about for years. If you're, say, a red state American and you believe there's a real America and that many aspects of American society, like our most successful corporations, our most economically dynamic cities, and our world-leading elite universities are not part of real America, you've got a problem. Because you're talking about some of our most successful institutions and some of the most successful institutions in the whole world are not real America. It's a really divisive framing

of our life. And look, I know full well that there is an element on the left side of the aisle that is every bit as hostile to their fellow citizens as there are on the right edges. But the thing is, Biden won the primary by specifically shunning that part of the Democratic base. He tacked away from them quite specifically. And the other thing that I think is really interesting, and I write about, you know, as most listeners know, I write about religion and politics and culture a ton. The way in which the elements of the right have sort of used support for the Republican Party as a litmus test for Christianity is a little bit ironic given that the two most church-going segments of America are white evangelicals and

black Democrats. So the Democratic coalition cannot take power without the support of one of the most church-going segments of American society? And who is it that rescued the Democratic candidacy? I mean, but Joe Biden candidacy. Who rescued Joe Biden's race for president? It was Black Democrats in South Carolina and Super Tuesday. So when you have a president who moved away throughout the primaries through the inaugural festivities. And I expect that we'll continue to see that through the Biden presidency. Just one thing, though, as you're sort of running through all of the performers, it just keeps reminding me. The Democrats have an unstoppable edge in A-list celebrity support.

Oh, yeah. I mean, Tom Hanks was the host of it. He was delightful. Yeah. Yeah. And by the way, Tom Hanks wasn't wearing a coat. And yeah, we've had colder inaugurations in D.C., like plenty colder. But it was still in the 20s last night, and he had gloves on, but Bernie Sanders was dressed more warmly during the day than Tom Hanks was. I saw someone tweet,

it's such a shame after he spent all those decades stranded on that island by himself and survived to succumb to the cold in a major American city for lack of a coat. You know, David, there was one other thing that someone mentioned to me that I think segues us nicely into our next topic, which is that on the left side, there had been this trend of like, there is no objective truth. There is my truth. I'm speaking my truth. And what someone else took away from the inauguration yesterday is this idea that, no, actually now both sides have a vested interest in there being objective truth.

Sometimes there are just objective truths. And that when it comes to policy or law, even that having that even as a shared concept might be helpful moving forward. And the idea that there are my truths and your truths, and they don't have to line up kind of is one of the reasons we got here. And yes, misinformation is different than I think what is ever intended by my truth versus your truth, but it was never just about misinformation. It was also about trust. Right. And when someone can just say like, look, I don't have to listen to your facts because I'm speaking my truth. Like, well, that erodes trust right well that is very true and by the way david before we move on to the law there also was just one piece of amazing news that we need to share with our

listeners which is that we have a new advisory opinions listener oh one of our do i know this what yes you do one of our fabulous couples that listen to this podcast yes uh gave birth to a wonderful baby boy named joey and joey in his first couple hours on this planet was listening to our podcast which look uh that's one way to start off in the world. Yes. Yes. I like the way you said that. That is a way to start off in the world. I am a little concerned about the dynamism of our content, however, Sarah, if it was a way to soothe Joey to sleep. He did go to sleep immediately, they said. Oh.

Oh, no. Oh, no. So, Joey, if you're listening to this, just go to sleep, buddy. Just go on because right now we're going to talk about venues and bankruptcy law and there is, now is the time. Good night. Joey, no perk up, perk up, Joey. I need some validation that discussions of bankruptcy law and executive orders is not sleep inducing. So give a little cry of exultation at this conversation. All right. So David, the NRA filed bankruptcy in the Northern District of Texas last week. They are saying that they are going to regroup down in Texas. This is after

the New York Attorney General's office filed a lawsuit several months ago in August, roughly, seeking to dissolve the NRA for alleged insider violations of the state's nonprofit laws. So there have been all sorts of shenanigans coming out in the press about what's been happening at the NRA. And then fast forward, they filed this bankruptcy in Dallas, which of course is not where they're headquartered. Right. And Lop here also then puts out this statement, don't believe what you read from our enemies. The NRA is not insolvent. We are as financially strong as we have been in years. Huh. I mean, I come from a bankruptcy family.

Not a bankrupt family, listeners. A bankruptcy family. Yeah. I don't... It's a little hard to square that peg. Don't believe our bankruptcy filing. Yeah, so instead he says, we seek protection from New York officials

who illegally abuse and weaponize the powers they wield against the NRA and its members. You can be assured the association will continue to fight to protect your interest in New York and all forums where the NRA is unlawfully singled out for its Second Amendment advocacy. Here's the problem, David, and there are quite a few. You can't just file bankruptcy anywhere you want. There are venue provisions.

So what the NRA did was that they created an affiliate is what they're calling it in Dallas in November. And then they filed bankruptcy along with this affiliate here in January. Bankruptcy courts absolutely do not have to just accept that. If any of the creditors wants to raise that this was a bankruptcy filed in bad faith because the venue or the affiliate was created to file bankruptcy two months later, I can imagine some bankruptcy judges would be quite amenable to that idea that you don't just get to run around the country creating fake affiliates to file bankruptcy in a jurisdiction you think might be more amenable to you. Although I got to tell you, David, I think if they just think that Texas is a bunch of people with, you

know, guns firing in the air, pew, pew, pew. I'm not sure they've been to Dallas. Texas, it's a bunch of people with guns firing. I mean, that's, you know, when I cross the border, when I drive into Texas, I'm always struck by the number of people just sitting in the back of their pickup truck, just firing in the air, you know? Well, also, you know what Texans also don't like love is, you know, defrauding donors and investors and organizations, maybe allegedly stealing money and using it for improper purposes. So I don't think this is really about the Second Amendment. Certainly the bankruptcy isn't going to be about the Second Amendment. The issues in New York,

I understand the Second Amendment sits on top of anything the NRA does, and New York has never been friendly to, well, the Second Amendment as a whole. But my goodness, did the NRA give them an opening? I mean, the lawsuit alleges that LaPierre illegally diverted tens of millions of dollars through excess expenses, contracts, to benefit not just LaPierre, relatives.

I mean, not good. Yeah. I mean, you know, of course the American National Rifle Association needs to spend, I'm looking at one of these reports, $253,000 for luxury travel

to Italy, Budapest, and the Bahamas. $275,000 in personal charges at a Beverly Hills men's store. You know, Sarah, I feel like this NRA thing is, in many ways, kind of it encapsulates this recent era on the right, because you both have, you have ridiculous corruption. And it's not a both, there's multiple things. You have ridiculous corruption, you have grotesque incompetence. So you have millions and millions and millions of dollars flowing into this organization, and it is in the red. It's just in the red. me of sort of this continued deep loyalty that a lot of people feel towards Donald Trump

after he accomplished what nobody has accomplished since what, Herbert Hoover? In one term, the loss of the presidency, the House and the Senate. I mean, and yet it's as if the captain sits there, steers straight into the Titanic. Iceberg. And everyone, I mean, yes, what did I say? Captain steers straight into the Titanic. Iceberg. And everyone, I mean, yes, I say, captain steers straight into the Titanic.

If you run your ship into the Titanic, you also will have some problems, in fairness. It's like, okay, it's like the Titanic steers straight into the iceberg, and then the entire crew just gives the, well done, sir, polite applause as the ship starts to take on water. Well done, sir. Polite applause as the ship starts to take on water. It really is this remarkable aspect of the parts of the American right that have become, truth be told, a giant financial scam. Taking important issues and important causes like support for the Second Amendment in the Bill of Rights and turning it into a years-long junket for its leaders. It's really remarkable.

It'll be interesting to see what the NRA's creditors put in their filings and how the judge, assuming, by the way, that this isn't kicked for venue pretty quickly, judge, assuming, by the way, that this isn't kicked for venue pretty quickly, but that there is, you know, set up kind of this budget that has to be approved from this point forward. You know, I don't see a world in which any bankruptcy judge would agree to Wayne LaPierre's current level of spending as being a reasonable budget for an organization that is insolvent. Yeah. I mean, I'm just looking at these numbers. I mean, it brought in like $412 million. $412 million 2018, the NRA and its affiliates. And that wasn't enough. In a single year.

In a single year. And now they cannot pay their creditors. And now they cannot pay their creditors. It's astonishing. And yet, the loyalty remains within the organization to the people who have steered this particular activist ship into the iceberg. I mean, it's really amazing. It'll be interesting.

I mean, truly, it will be interesting to see. I mean, bankruptcy, the purpose is you cannot pay your creditors. You now need to reorganize your business if you want to not liquidate, which it sounds like they do not want to liquidate. And that is, you know, bankruptcy judges get involved in that. Your creditors get to be involved in that. Does the NRA know what they're doing here? Well, one thing that we've learned through watching a lot of the legal maneuvering on display on the ride in the last several years is you can't always take that for granted.

But we'll see. They have superior knowledge about the needs of their own client than we do, certainly. So maybe they have just struck a legal masterstroke. And we don't know it, but time will tell. Well, creating an affiliate in November and then filing bankruptcy using that affiliate as the hook is not a legal masterstroke. So chucking that right off the bat. You're laying down a marker.

You're laying down a marker. I am now. But you could have a situation where the creditors actually also, all of them, I suppose, think they're better off in Texas for whatever idiosyncratic reasons. I just think you're going to have one creditor out there who's like, you know what? I might be better off in Texas than New York, but I just want to stick it to them. And so I'm just going to do this because it is

correct. And I want to make them jump through the hoops and make them go to New York because they clearly didn't want to. And so I'm just going to do that. I just don't see a world in which one creditor doesn't think that way. Yeah. Yeah. I'm with you. It's going to be, we will follow it because it is, it's fascinating. Oh, eco-friendly towels? And they're quick dry. Yeah. You know, HomeSense always has a lot of great towels.

Let me see that. Quick dry. Will it dry quickly enough that I won't notice when you use my towel? Okay. That happened once. Maybe more than once. Anyways, these are only $13. $13? Okay.

Let's get you this navy one, and for me, this soft beige one. Deal so good, everyone approves. Only at HomeSense. All right. Now, speaking of incompetence versus competence, we have a lot of executive orders here. Yes, we do. Yes, we do.

And they're all over the map. I mean, there are quite a few. It's an interesting menu of executive orders. Yeah, so David, on the one end of the spectrum, you have something that everyone knows about, and that is DACA. And there's an executive order to ensure the continuation of the DACA program and basically end the Trump administration's attempt

to have a memo to end DACA. On the other end of the spectrum, again, is a first day executive order reinstituting the temporary protected status, which is a specific type of legal status. We give folks who are fleeing a temporary emergency, like a hurricane hit or something else. And this is for Liberians, who since 1991, as a result of the armed conflict and widespread civil strife, were given temporary protected status. The armed conflict ended in 2003, and TPS ended in 2007. But then President Bush deferred enforcement of TPS, of the ending of TPS, on those Liberians who had TPS status.

That was extended to 2018, yada, yada, yada. President Trump then attempted to end it. So this is basically ending that. Right. So, I mean, that is such a niche issue. Yeah. But it was a first day issue for President Biden. Some of this stuff is niche, some of it niche, niche, whatever. Some of it's pretty consequential. And let me, before we dive into them, one of the interesting things that when you see the sort of the ping pong of

executive orders that occurs whenever there's a presidential transition, it demonstrates simultaneously both the way in which in the short term, presidential elections can seem so consequential, but in the long term, they're less consequential than you think. In the short term, you hear this, oh my, there's a sort of collective realization of, oh my goodness, a giant chunk of my presidential legacy is about to be wiped away with these stroke of a pen. And then you realize, well, wait a minute, if this could be wiped away with the stroke of a pen, it wasn't much of a legacy to begin with because you should never be under any illusions that your party is going to maintain permanent control of the executive branch.

And if your legacy depends on permanent control of the executive branch, it ain't a legacy. And so what we're having here, and often because Congress, we can't pass legislation, substantive legislation, we have ping pong regulatory and executive actions that come into play in one administration are reversed in the next, reversed in the next, reversed in the next. And it's just this ping pong back and forth. And it's a symbol of sort of, and then what ends up happening is it then goes to litigation and litigation sort of slows down the process and we delegate to the judges sort of essentially sorting out what's permanent and what's not permanent. And it's a mess. It's a mess. Interesting on that congressional point,

by the way, David, we've talked about how Schumer and McConnell have to create this power sharing agreement. McConnell wanted to, in their power sharing agreement, have an agreement to preserve the legislative filibuster. And Dick Durbin, this is his quote from today, Thursday, we're not going to give him what he wishes. If you did that, then there would be just unbridled use of it. I mean, nothing holding him back. So that's sort of interesting that Democrats are already in the Senate showing that they want to get rid of the legislative filibuster. There are arguments on both sides about the legislative filibuster, but it will at least, if they get rid of it, be very interesting to see whether legislation starts moving again and whether there might be some positive consequences of that and not just negative

ones, as I know some people have pointed out. I'm not disagreeing there would be negative consequences to getting rid of the legislative filibuster. Our founders, in a way, preferred stagnation to moving too quickly on things, but I'm not sure they meant this level of stagnation. to moving too quickly on things, but I'm not sure they meant this level of stagnation. Right. Yeah, I would agree that I don't think that this level of stagnation was quite contemplated. Although I also think that passing sweeping changes

in a super divided America on tiny slim majorities is a recipe for further division and polarization. I also know that if the legislative filibuster goes away, then that's just like, do we want Joe Manchin to rule the United States of America with an iron fist or do we not? Because if you do away the, and Kyrsten Sinema for that matter, I mean, you're going to take that sort of center, the moderate Democrat will then become the kingmaker, the absolute or the lawmaker in the short term. Doing away with the legislative filibuster in the long term is a gamble. It's a gamble. It's essentially saying it's going to be better for America

that we can pass significant legislation over the objections of 49% of the country than it is the current status quo, which is an unacceptable gridlock. And so it's a gamble if that happens. I'll believe it when I see it in the short term. In the short term, I'll believe it when I see it. Now, you also talked about how, yes, if your entire premise of your legacy rests on keeping the executive branch in perpetuity, that that's not a thing. Mm-hmm. At the same time, what we saw for the last four years was an inability to even wield the powers of the executive branch to create that legacy in the first place. Yeah, it's true. The DACA example being one of the executive branch to create that legacy in the first place. Yeah, it's true. The DACA example being one of the best.

So the administration's DACA rescission memo wasn't written the way that an administrative lawyer would have said to write it in order to make it sort of court-proof. For instance, if you really wanted to make an administrative action court proof, you'd say, I am taking this action today because I believe the statute is unambiguous. But even if the statute's not unambiguous, the agency is reading it that way. And even if the agency is not reading it that way fairly, then it's my policy preference to do so. And my policy preference gets the widest latitude in the history of the world. But that's not what happened. What they would do is take one piece

of that and do that one at a time on any number of issues. And the courts would say like, well, no, the statute's not an unambiguous or, you know, no, the way you did this didn't follow the APA. If it had just been your policy preference, that would have been fine. But that's nowhere in this memo. And I mean, I was just struck, David, looking at some of these orders that Biden did that like they're so tied up with bows. Right. Like almost like, you know, administrative agency lawyers reviewed them ahead of time. Right. Well, they're not only are they tied up with bows, but a lot of them don't do what Twitter is saying they do. Well, there's also that. Yeah. So we, of course, have the DACA executive order that you've talked about. Some of them, I think, do have some real immediate applications. So, for example, termination of the emergency with respect to the southern border and

redirection of funds directed to border wall construction. You know, that's something, or terminating President Trump's punitive actions towards sanctuary jurisdictions. Those are actions with immediate effect. Now, what a lot of people in social conservative world are looking at right now is this executive order on preventing and combating discrimination on the basis of gender identity or sexual orientation. And it declares a policy. So it starts with every person should be treated with respect and dignity and should be able to live without fear no matter who they are or whom they love. Children should be able to learn without worrying about whether they will be denied access to restroom, the locker room, or school sports. Adults should be able to learn without worrying about whether they will be denied access to restroom, the locker room, or school sports.

Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes. And a lot of people are saying that this is a super, super broad executive order. This is a super, super broad executive order. It's actually directing, what it's actually doing is directing agencies to respond to the Bostock decision in accordance with the policy I just read. We've talked about a lot in this on this podcast that says that the Title VII prohibition on discrimination because of sex covers discrimination on the basis of gender identity and sexual orientation and says that the Bostock reasoning should also apply to Title IX and the Fair Housing Act and the Immigration Nationality Act. In other words, if discrimination, if a prohibition on discrimination because of sex

covers gender identity and sexual orientation in the workplace, there's no limiting principle to the Bostock reasoning, which means it wouldn't cover gender identity and sexual orientation because of sex in education and fair housing, etc. Which everyone who read Bostock knew was the implication of Bostock. And so I think that what you're looking at here in this executive order is a direction. It's sort of a pledge to create rules. It doesn't actually create the rules themselves.

And so we're going to have to wait and see what the individual agencies do. themselves. And so we're going to have to wait and see what the individual agencies do. But the Bostock decision is the key issue here. Bostock is the key issue. And the question is then, you know, I think a lot of people are missing that piece of it here. They're saying, oh, look at what Joe Biden is doing. And yeah, the Trump administration did not take proactive efforts to conform regulations to Bostock, but Bostock arguably means that these regulations would have to conform. So it's a really interesting, this executive order is not doing quite what people say it's doing and arguably under bostock would have been a lot of this stuff would have been compelled anyway um your thoughts sarah yeah and i think that's also the really the extent of what an executive order could do on that

yeah uh and we'll see what comes of it. You know, as you said, like this is one of those like go forth and send back what you want to do. Right. What you think you can do. Some of which are going to get challenged in court. Some of which are going to be just fine. I mean, basically this is sort of the starting gun. Yep.

But we don't even know like really who all is running the race and where the race goes. Yeah. Well, so let me, let me ask you this, just putting on your, your, uh, your own political and legal philosophy hat. Are there executive orders you particularly liked executive orders you particularly disliked? Do you have a sort of a best worst of them? What, what are your, executive orders you particularly dislike? Do you have a sort of a best worst of them? What are your thoughts about them overall? You know, overall, I guess to some extent, I was surprised there weren't more. Yeah, me too.

And then basically, like, I was surprised that it didn't do either one of two things. One, that you actually have relatively few on day one, but make them all like big sort of hit parade media ones, DACA, border wall, maybe that gender one, gender identity and sexual orientation one, and then keep it at that. For instance, say here, these are my day one priorities. But to the extent you're going to include some of these other smaller ones, then I'm kind of confused why you didn't do even more. But great, whatever. They have a plan. They're doing their plan. The executive order on ethical commitments by executive branch personnel.

That was interesting because, you know, basically every president is now instituting these. The only difference being that Clinton and Trump rescinded theirs when they left office, making them toothless ethical pledges. So that's all to say, like, Joe Biden has instituted a pretty stiff ethics pledge here that everyone's going to have to sign

if they want to work as a political appointee within the administration, not lobbying for two years, all the normal ethical things one might want in a political appointee. But the problem is, as we've talked about with executive orders, in theory, Joe Biden could get rid of this before he leaves. No, I don't think he will. But two presidents have done so. So, you know, always interesting to start off that way. Right. Yeah. Well, you know, when I looked at him, I thought it was a real mixed bag. I think the DACA issue, to me, this is an issue that needs to be resolved by legislation. The status of Dreamers... Yeah, although the DACA statute is some... Or the DACA EO is sort of similar to that gender identity one in the sense that it's not doing anything.

Right. It's maintaining status quo and basically just saying out loud, we're maintaining status quo. Right. Yeah, exactly. The whole DACA issue, going back to the Obama administration, is rooted in a desire to act when Congress has not acted. And we're living with that legacy since the time. And now I'm somebody who believes that I would like to see a permanent residency and a path to citizenship for DREAMers. I also think that constitutionally it has to come through legislation.

And so the continuing presence of DACA creates a sort of a limbo world here and one that is sort of this lingering evidence of the dysfunction of the American lawmaking process. So that's sort of a, you know, it's number one on the briefing room website, and it's just sort of like a blinking light that says, huge issue that should be legislated. Some of these others, I'm for them. So also, by the way, on the DACA issue, don't forget, we have this case in the Southern District of Texas that you and I have been watching in front of Judge Andrew Hayden. He heard arguments in December and has not issued a ruling yet.

And so that case had originally, of course, been sort of put on hold when the administration tried to rescind DACA, then the Supreme Court reinstates the DACA memo that the Trump administration tried to rescind. That put this Texas case back on the fast track where Texas and others are saying that you cannot do this by executive order. They had this previous case for DAPA, which were the parents of DACA recipients. They won that case. which were the parents of DACA recipients, they won that case. And so now the DACA case is going up. It's still at the district court level.

I would expect a ruling from Judge Hayden now pretty soon, now that the Biden administration has issued this executive order, basically saying like, yep, yep, we're just continuing this. So everything that that district court judge has been looking at is still valid. That will then, I think, go to the Fifth Circuit immediately and probably go to the Supreme Court. I think they would accept cert on that given the outstanding issues around executive action. And the problem is the Supreme

Court, I don't think, fully understands that they are just this giant weight on the legislative process. And so when they say they're going to take a case, then that cuts everything to a halt in terms of this legislation moving forward in Congress. So that's this other part. As Biden sends his immigration bill to Congress. This case in Texas is about to swamp it. Yeah. Now, that's a great reminder that there's litigation regarding DACA that is going to be highly relevant to what happens in the next four years. Okay, can I go through the ones that I liked?

Yes. Okay. Proclamation on the termination of emergency respect to the southern border of the United States and redirection of funds diverted to border wall construction. From the beginning, I thought the redirection of funds, well, the president had the right to declare an emergency. There's very little statutory limit on a president's actions,

ability to declare an emergency. And Congress can override, but it requires a veto-proof majority to do it. But the redirection of the funds to border wall construction, I thought was unlawful. And so I think that terminating that unlawful. And so I think that terminating that unlawful

redirection, I think was a proper action by the Biden administration. Also, wait, David, do you think at this point, has the border wall fever kind of left the Republican Party? I feel like I don't hear immigration hawks really discussing that as a high priority in their legislative solutions at this point. I honestly don't know what policy-based fever exists on the right anymore. It was so much was centered around keeping Trump and sort of the person of Trump that I think it's going to take some time to shake out what are the policies that are really sort of motivating people.

I think it's got to be asylum reform. This idea that, you know, we have these folks coming to the border, 80 percent or more of their claims end up being rejected. But there are so many levels that they go through and it takes so long. I think that's really ripe for reform. I think the other area that conservatives would be smart to focus in on to some extent is the idea that a lot of our immigration system right now is based on familial ties to our current immigrants rather than, you know,

hey, we need a lot of engineers right now to work on environmental issues. So if you have a degree in environmental engineering, raise your hand, we're moving you to the front of the line. And overall, increasing legal immigration, because I think that if you are looking, you want to come to the United States for any reason, and you're basically going to be told at this point, like, that's not going to happen. You know, they're just, it's going to take

so many decades or whatever to get through the red tape to, if you even get it, that that is what really incentivizes a lot of folks illegally coming into the country. It would never be someone's preference to be illegally in the country. There's a lot of downsides to being illegally in the country. So if we make that system both more reliable, easier, and consistent,

you know that in three years you will get an answer one way or the other and you have a 60% chance of being told yes. Whatever it is, that will actually do a lot, I think,

to curb illegal immigration. Right. Which is an issue for the right. No, I agree with you. I agree with you. I absolutely agree with you. I also think it's right to revoke the travel ban.

And look, I think there were two things going on with the travel ban. I think one was Trump had discriminatory intent. I think Trump had discriminatory intent going all the way back to his announced sweeping Muslim ban or his proposed Muslim ban going back into, I think it was 2015 when he first called for it. 2015 when he first called for it. I also think that the travel ban 3.0 that actually ended up being litigated at the Supreme Court was based on some valid concerns about countries that had real difficulty controlling jihadist activity within their borders. And that if you rewind the clock to 2014, 2015, 2016, 2017, feels like ancient history. But ISIS was huge and powerful and striking all over the globe. I mean, you know, it's funny how quickly we move from crisis to crisis to crisis now. But, you know, we forget of the significant terror attacks that occurred throughout Europe during the rise and ascendancy of ISIS.

And we forget that there was a very intentional effort to export those jihadist attacks to the United States and, of course, to our European allies. And so that there was a real and legitimate reason to be concerned about bringing people in from countries where there was an intentional effort to export jihad into the West. But ISIS was, by late 2017, largely smashed. Its geographic caliphate was obliterated. Now, it still exists. ISIS still exists,

and it still has the ability to inflict casualties and losses, particularly in Syria and Iraq. But its geographic center of power has been pulverized. It is not the same threat that it once was. And so when a threat changes, policies should change. And so I think that that was an appropriate order.

And then as far as some of the actions that I disagree with, I mean, this ping-ponging on the Keystone XL pipeline, I've long thought that the climate change argument against Keystone XL was singularly unconvincing. Singularly unconvincing.

And the economic argument in its favor was quite convincing. To me, this is something... I'm sorry, go ahead. Keystone kind of became like Citizens United, the Supreme Court case. It became this phrase that you could use, this shibboleth, which signaled which side of an argument you were on.

ask people for like facts around it, it kind of falls apart. And, you know, as a shibboleth for there's too much money in politics, Citizens United ain't your problem. And as a shibboleth for I care about the environment and I want to do something on climate change, Keystone XL ain't even close to your problem. Right.

But, you know, here we are exactly and you know the paris he's going to re-enter the paris agreement i kind of have a whatever feeling about that i feel like um the the importance of the paris agreement was always over emphasized in both directions in other, its importance to combating climate change was overemphasized, and then therefore, when Trump left it, its importance to greenhouse gas emissions in the United States was the actual brass tacks emission from the United States was dramatically overemphasized. Again, it strikes me as one of these things that is quite symbolic above and beyond the actual merits, real-world merits,

because the Paris Climate Agreement never really bound us to do anything. It didn't really bind anybody much to do anything. Kind of also another shibboleth. That shibboleth, at least, I think, had some things going for it. At least it is actually about the thing that people think it's about, etc. But it is kind of toothless. So a better shibboleth was the Paris Amendment. to see what actually comes out of the executive order on Title IX and Title VII and fair housing,

because there are going to be changes that are the natural inevitable result of Bostock, but there are also going to be important concerns about athletics. There are going to be important concerns about religious liberty. So we're going to have to see what that is. Once Bostock was decided, the die was cast on a lot of this stuff. So we'll just have to see the brass tacks of what comes out. Well, and as I've said, you have the Supreme Court sort of

sitting as a heavy weight on top of all of this, including where the Bostock decision goes in terms of affirmative action stuff that'll be percolating here quite quickly. But there's also, of course, the Biden commission that will look at whether to expand the Supreme Court. Yeah. I have long thought that the court packing issue is mainly going to be an issue of a threat, the switch in time threat, that in essence, while we've got a majority, you really, Supreme Court, you really need to be careful about revolutionary rulings or truly significant rulings, the kinds of rulings that, by the way, an awful lot of people uh on the right who have worked and worked and worked and worked and worked and worked to elect republican

presidents and get republican senates want to see happen most notably for example roe uh a reversal of roe and casey and so that that i feel like that court packing threat is something that we've said this a million times, nice little nine-person Supreme Court you got there, hate to see something happen to it. And that's always going to be hovering there when you have the Democratic president and a Democratic Senate with a majority Republican nominee controlled Supreme Court. And I've also thought that the only way that we'd realistically see a true move towards court packing is if the Supreme Court calls that bluff. So if the Supreme Court just throws down the gauntlet on a treasured left judicial doctrine, let's say Roe or Casey, if Roe or Casey is overturned, there would be a wave, a tidal wave of activism on the left to court-pack

if the Democrats held the Senate and still held the presidency. And so I feel like that's the dynamic there. And that any sort of, any Republican who goes, ha ha, we got Amy Coney Barrett on the court and the court's not packing, isn't truly understanding what's hovering. And what's hovering is that nice little nine-person Supreme Court you've got there. That's what's hovering, and which therefore means to the extent that justices care about that, and they're human beings, and I bet more than one of them cares about that. To the extent that justices care about that, it dilutes a lot of the aspirations of those who push to get some of the justices on the court.

And so I think that's just a dynamic that exists and worth acknowledging and understanding that it's going to work its way through the system. All right. I think we've covered. Have we missed an executive order you want to talk about? No. No. Okay.

We will have plenty of time. There will be more executive orders coming out today, through this week, and no doubt for the next, well, four years or so, David. Yes, indeed. Before we go, I have, well, two things. One, I think your scientific assessment of chicken sandwiches, if you have not listened to last advisory opinions, you can fast forward to like the last 20 minutes or so, may have been the single most popular segment in the history of advisory opinions. Well, I'll be publishing all of my photographic evidence, my actual numerical rankings on the dispatch website tomorrow. So you can, I'll be tweeting that out as well. So you can look for that if you need more. I do have to, I don't know if apologize is the right word, but many, many people are upset

that Bojangles wasn't included. Look, folks. What? There's not a Bojangles in Warrington, Virginia, but there is a Bojangles in Stafford, Virginia. So here's the deal. I already said I had to go to McDonald's on February 24th to get their new chicken sandwich

and the KFC chicken sandwich with the, which they've promised will hit this market by the end of February. So for that outing, I will also go, I think to the McDonald's and KFC in Stafford, Virginia, so that I can do this again, but with a Bojangles and those other two, I'm not redoing all of them. I will have a heart attack. But I will add Bojangles. I get it. I hear you. I don't get it. I don't get it.

I mean... By the way, these people, half of them acknowledge that the Bojangles chicken sandwich actually isn't very good. It's just that Bojangles chicken is delicious. No, no, no, no, no, no, no. If you have a Popeyes and a KFC and a Bo bojangles in a row like let's say it's you

know one of these classic fast food streets you're driving past bojangles every time which one are you going to david well popeyes number one yeah and if for some reason you know you know how sometimes you'll go through the drive-thru and you'll say i want you know the nine piece all dark meat and they say well we're out of dark meat well then i'll go to the drive-thru and you'll say, I want, you know, the nine piece, all dark meat. And they say, well, we're out of dark meat. Well, then I'll go to the KFC. Interesting. Did y'all have Hertz's where you grew up? Hertz's fried chicken? No, never heard of it. Okay. That might've been, that might've been a me and my dad thing. Yeah. We, we did a, we did a bucket. We didn't do the scientific test that you did where it's immediate, same day. But on our family, you know, and when we lived in Columbia, Tennessee, we had all the big ones. We had Bojangles, we had KFC, we had Popeyes. And we did that over the course of several days. We did the test and Bojangles was, I'm sorry to say. Now, you know know some people might really might really like it but i

have a tv show recommendation i want to end on oh interesting by the way i'm now looking at where all hearts is fried chicken is my my recommendation is you know netflix and i'm going to butcher the pronunciation lupin lupin l-u-p-i-n i've seen this about a french master thief um a gentleman thief and master of disguise started it last night very good very good now i watched it it was french with english subtitles which i hate you can watch it with english overdubbing, but I hate that. Like I, I hate it when somebody's lips are moving, but the words don't match, you know, the,

the mouth. I can't get, I can't get into that. So I, uh, so I watch it with in French with English subtitles. Really good. Really good.

The first episode, really good. So lupin, lupin, lupin, whatever. I'm not sure that after your parlor debacle, you should be speaking in French at all on this podcast. And update,

Hertz's Fried Chicken is a Houston-based thing. The only other location, there's one in Beaumont, and there's one in Shreveport. So, if you're down there, try some Hertz's Fried Chicken, because I remember it being pretty tasty.

Well, okay. I'm not going to let you fire that parlor shot at me unrebutted. Because I think the history as we were explained at length, almost bell-napped length, but not quite bell-napped length, but was explained at length to us is they started off saying parlay, but that never caught on. So they switched to parlor, but when you tweet something or when you send a message or you do a post on parlor,

it's called a parlay. So on parlor, if you post, you parlay. So it's a lot, it's not so cut and dried. Yeah, all I've heard is that you were wrong, if you post, you parlay. So it's a lot. It's not so cut and dried. Yeah, all I've heard is that you were wrong, which you were, and sit in your wrongness and be wrong.

I shall not sit in it. I shall not. I shall excuse it and rationalize it because it was a justifiable wrongness. Sarah's shaking her head. All right. On that note of dissension, we shall end this podcast,

but please go rate us on Apple Podcasts. Go subscribe. We really appreciate all your ratings. We appreciate your subscriptions. Our audience is ever, ever growing, and we thank you for that.

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