Strict Scrutiny - The Meme Lives

Episode Date: January 11, 2021

Leah, Melissa, and Kate discuss the insurrection, their new BFF Joe Manchin, the upcoming January sitting, and the 25th Amendment. Follow us on Instagram, Twitter, Threads, and Bluesky...

Transcript
Discussion (0)
Starting point is 00:00:00 How was your TikTok tutorial? It was good. I still haven't done my TikTok yet, but I'm going to try to do it this weekend. Not that I know much about TikTok, but your welcome videos suggest to me that you have a natural aptitude for TikTok. I think those are not different from TikTok videos, really. The interface is not that user-friendly or intuitive. Yeah, there's just a bunch of different things you can do.
Starting point is 00:00:29 And my sister gave me an idea for one that she says would be good that I am to try to do. But I don't know. I just, I might try to do it this weekend. So I made an account like a couple months ago, literally following one person, Claudia Conway, because she was like breaking all this news about all the COVID outbreaks. But otherwise, I'm not like, I don't even really know how to find people. It's an old joke, but I argue men argues against two beautiful ladies like this they're going to have the last word she spoke not elegantly but with unmistakable clarity
Starting point is 00:00:59 she said I ask no favor for my sex all I ask of our brethren is that they take their feet off our necks. Welcome back. This is Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. And we have a huge show for you today. As always, we will start off with some breaking news and spoiler alert. There is a lot of breaking news. And then we will do a preview of the January sitting. And then finally, for court culture, we're kind of going to go a little court culture adjacent. Given all of the breaking news, we thought it would be useful for you all if we talked a little bit about the 25th Amendment because it seems slightly relevant. All right.
Starting point is 00:02:00 So, Leah, do you want to kick us off with the news? Sure. So what is breaking? Everything. Everything. Everything. Everything almost broke this week, I guess you could say. So one thing we wanted to note that happened after we recorded our last episode is the president's call with Georgia Secretary of State in which the president shook him down, urging him to find 11,780 votes in order to flip the election to President Trump. It's hard to believe. Was this a week ago? Was this two weeks ago? This is like five days ago. This is it is insane. Yeah,
Starting point is 00:02:34 it feels like another lifetime. They're just doing so many crimes on their way out and such serious crimes. It's just hard to keep track of them all. But this was, I mean, one thing, it's the president urging a state official to commit election fraud. So which sounds kind of familiar, Kate, because I believe about a year ago, you and I were hanging out on an ABC set talking about the president allegedly making a call to shake down a foreign official to dig up some dirt for him. And that seemed like it was an unusual circumstance, but maybe it wasn't. Yeah, I mean, this is clearly Ukraine redux, except it's on tape.
Starting point is 00:03:12 And it's domestic. It's domestic, and it's really explicit. I don't know if you guys have listened to that. You know, it's an hour. Raffensperger had the presence of mind to record the conversation. You know, it's a full hour. And I don't think the headlines or
Starting point is 00:03:25 the little clips that have been played on the radio and the television really do justice to the experience of listening to the president sort of circle around and then just plunge into an explicit request for election fraud. It is, even if you think you're beyond shock, it's still shocking to witness. I mean, one more observation to make, I think, about the place where he basically stops, you know, making these ridiculous claims about voting machines and other, you know, obviously debunked and baseless, you know, fraud allegations, and basically just goes forward and says, look, I just need you to find me 11,780 votes. It is just such a funny thing to ask for, because say Raffensperger had agreed to do it
Starting point is 00:04:06 and said, okay, you know what? We redid the calculation and it turns out, Trump, you won by one vote. Like he's asking, no one would have thought that was suspicious. Just ask for 12,000, right? But no, he asks for 11,780, which is exactly the number he wins, he needs to win if Raffensperger decides to somehow claim he has rerun the numbers, which of course he declined to do and held onto the tape until the president started making more untrue statements about Raffensperger on Twitter and then decided to release it. And I think that was absolutely the correct call. And I think people are appropriately talking about what state criminal exposure the president may have in the wake of this phone call.
Starting point is 00:04:43 And that's not even like the 10th most important thing that happened this week. Well, also to note, even if the president does decide to pardon himself, which would give us a whole special emergency episode preview, spoiler alert, if there were state level charges, those would not be pardonable by the president. So that's a completely different animal altogether. Absolutely. You know, and I think it's so interesting that Georgia is one of the, I think the only state of all of these states that were close in the 2020 election that is controlled at the statewide level by basically just Republicans. And I think that's why he felt comfortable running this play in Georgia and not elsewhere, at least not exactly the same play. But I don't think that the fact
Starting point is 00:05:21 that they are co-partisans is going to shield the president at this point. I think the Georgia Republicans are all out of patience with the president. And there are local Democratic DAs who I think could also potentially have jurisdiction over this investigation. So I think there's a lot of potential criminal exposure. And exactly as Melissa says, the pardon power has nothing to say about it. Well, it wasn't just that Georgia was on the president's mind in search of 11,780 votes. Georgia was also the site of a special election. And not everything broke in that special election because Stacey Abrams delivered Georgia to the Democratic Party. Raphael Warnock
Starting point is 00:05:59 and John Ossoff are going to be the newest senators from the Peachtree State. And of course, that will be enormous for us here on the pod because we have been talking all about the composition of the federal courts. And as our faithful listeners know, the composition of the federal courts depends a lot on the composition of the Senate. So with these two new additions, the Senate will be equally divided 50-50 between the GOP and the Democrats and Vice President-elect Kamala Harris will be the tie-breaking vote. So I think this means we will likely see some movement on the Supreme Court, maybe Justice Breyer at the end of this term deciding to step back from active duties, allowing this new Democratic majority to usher in a new
Starting point is 00:06:48 replacement. End of this term? I don't know. I think it comes... You think earlier? I do. I think there's a real chance it comes earlier. Really? Yeah, yeah, I do. I mean, things can change... Why do you think earlier? Look, I mean, I just think that I don't see the Biden administration, you know, taking a Democratic senator and putting them in the cabinet and opening up a seat that a Republican, I mean, they're too smart to do that. But things can change quickly, I think, in politics. And a 50-50 margin is just so close that I think that you want to move quickly. And if you're the White House, of course, that doesn't mean you control Breyer. But I think that, you know, February-March announcement is more likely than end of term. Also, maybe a February-March announcement. but I'm thinking if you're Steve Breyer
Starting point is 00:07:26 and you've been in this job for a while and you've never been the senior member of your wing and now you are, that's going to be hard to give up right away. So I think he wants a couple of good months. We can do hard things. Steve Breyer can do hard things, I think. I mean, look at you with your Peloton.
Starting point is 00:07:41 I know, that was amazing. It hasn't even arrived yet. And you are your Peloton. I know. That was amazing. It hasn't even arrived yet. And you are already in it. Do you think Steve Breyer has a Peloton? And if not, should he? Yes. I think, of course he has a Peloton. I'll get him one as a retirement gift if he doesn't have one. And we can Peloton together, you know, in all of his free time.
Starting point is 00:08:01 I say this with the greatest respect and affection. I love me some Steve Breyer. He's one of my favorite fellow Cassandras. But Steve, you deserve some time off. So, you know, speaking of appointments, there is one other piece of good news that we should mention before we really descend into the darkness, which is that this week... Is that the plan to make Joe Manchin my BFF and get him to do all of the good things? No. Hope springs eternal. You are so charmingly. I wouldn't put the good things. Hope springs eternal.
Starting point is 00:08:27 You're so charmingly. I wouldn't put it past you. We will see. Are you going to get him a Peloton? I will. Joe and I will be sending you high fives. You get a Peloton and you get a Peloton. Those endorphins, they work magic, let me tell you.
Starting point is 00:08:43 Oh, my God. So other news in magic that has already occurred as opposed to you know that we we think could be in the offing um is an amazing set of department of justice uh personnel announcements out of the biden harris transition operation um so dc circuit judge merrick garland will be the attorney general. Have we heard of him before? His name sounds familiar. He's finally going to get that Senate hearing. Wednesday started with the announcement, you know, both with the fact that, so Warnock, it was pretty clear on Tuesday night had won. Ossoff's victory wasn't really clear until Wednesday morning.
Starting point is 00:09:19 So the news of likely two pickups in the Senate and then of this DOJ team broke. And so Garland, both Ossoff and Warnock, but also Garland had a couple of hours to really shine. And then obviously the day took a really dark and dystopic turn. So it wasn't just that Merrick Garland was nominated to be the AG. They also named the whole team that would be under him. So that team includes my NYU colleague, Lisa Monaco, who will be the deputy AG or is nominated to be the deputy AG, as well as NYU
Starting point is 00:09:51 law alumna, class of 2001, Vinita Gupta, who is the head of the Leadership Conference on Civil and Human Rights, who's been nominated to be the associate attorney general. And then there's also Kristen Clark, who is the head of the Lawyers Committee. She is not an NYU alumna. She is an alumna of Columbia Law School, but close enough. They're in the same city. I'm really psyched for her, too. And she would be the head of the Civil Rights Division. So, Leah, do you think this is necessary to enforce the Voting Rights Act? I think this is how you actually enforce the Voting Rights Act. Are we going to have to retire the joke? No, because now we're going to be talking about how you actually enforce the Voting Rights Act. The meme lives. Yes. So just a wonderful team.
Starting point is 00:10:35 And, you know, the morning this is announced on Wednesday, you know, someone tweeted, you know, on Wednesday morning, Merrick Garland woke up thinking, today is Merrick's time to shine. Alas, that lasted for only a few hours because on January 6th, 2021, the day that will live in infamy, there were some events. Do you think Merrick Garland's just at home watching the news? It's like, damn it. These guys won't let me have a Senate hearing.
Starting point is 00:11:11 Now they won't let me have 24-hour news cycle. Come on. Come on. No, I don't think he's doing that. He's probably shocked and horrified like everyone else. And I'm sure thinking immediately about what the Department of Justice is going to do in the very beginning of this administration as soon as the team is in place to respond. Like everyone else. ceremonial occasion. The election is long over. The electors on December 14th cast their votes in the states. Nothing of consequence apart from the opening and the counting of the ballots is supposed to happen in Congress on January 6th. But nevertheless, this was a day that President
Starting point is 00:11:55 Trump had been riling his people up for with these vague promises that he could somehow still pull out a victory in the election and that Mike Pence had some role to play in ensuring that. So that morning, gosh, a lot happened that day. So that morning, Pence for the first time in four years, I would say, you know, kind of grew a spine and released a letter explaining that under the Constitution and consistent with his oath of office, no, he could not unilaterally decide which electoral votes to count and which ones to throw out. And that giving the vice president that authority, right, the authority literally to throw out an election would be, you know, antithetical to constitutional design. And I have to say,
Starting point is 00:12:34 it's an amazing testament to how low the bar is that this was viewed as an act of principle and integrity. But, you know, there you have it. And one thing to flag about that letter is that basically the main authority on which the vice president relied in his big constitutional moment was a tweet thread the day before by what may or may not be the actual Twitter account of former appeals court judge Michael Luddig. I think it probably is his account. But it's wild that that was the authority that the staffer who put that letter together relied upon. Is it? Maybe not. Entirely how this era ends. This is a Twitter administration. This is a Twitter administration. You've written about this. Yeah, no, no, no. But a lot of the time, the administration is busy disclaiming the sort of legal significance of things the president tweets. And here, you know, it's not even an academic article. It is literally a Twitter thread. But again, I think a former
Starting point is 00:13:28 appeals court judge, not even sure it's him. You know, it was wild. But that announcement, right, that seemed to basically put to rest this idea that anything of consequence was going to happen to upend the election, didn't stop a number of Republicans led by Josh Hawley and Ted Cruz from mounting an effort to object to electoral college votes. So Ted Cruz in the announcement and in the speech stating that he was going to object cited to the 1876 Election Commission as a model to emulate. If that doesn't sound familiar and or horrifying, that was the election commission and the election that resulted in the Compromise of 1877 that included a compromise whereby the North essentially agreed to withdraw from the South and abandon Reconstruction. It
Starting point is 00:14:20 ushered in the period known as Redemption, in which Southern states were given freer reign, you know, to suppress Black political participation and Black voters and usher in the era of Jim Crow. And Ted Cruz was like, yeah, let's do that. a lack of faith and irregularities in the process. But the irregularities, of course, were just their allegations of irregularities, not actual irregularities. And it was their own allegations that eroded faith in the process. Yeah, I mean, there's like amazing circularity, right? To sort of drum up distrust and suspicion and then to point to distrust and suspicion as justification for invalidating these votes is just shockingly cynical. And that you had it on the floor of both the Senate and the House in the couple of hours in which this process was ongoing before,
Starting point is 00:15:11 you know, it's hard to even know how to talk about what happened next. Right. Well, let me wade in. Last but not least, there was an insurrection. I mean, is that a fair way to put it? There was an insurrection. Oh, yeah. Absolutely. I don't know whether to correctly call it an insurrection, violent mob, attempted coup, some combination of all of the above. Certainly there was a storming and a siege of the Capitol, right? I think that those things make clear what physically happened on the grounds of the seat of government on Wednesday. So following a rally at which President Trump explicitly directed his followers, and they numbered in the thousands, to go to the Capitol, he told them to march down Pennsylvania Avenue
Starting point is 00:15:56 and go to the Capitol and demand that Congress confront what he called an egregious assault on our democracy. Actually, should we just play part of his speech here? I feel like I'm not doing it justice. So that's a good idea. Let's let the tape roll. We're going to walk down to the Capitol. And we're going to cheer on our brave senators and congressmen and women. And we're probably not going to be cheering so much for some of them. Because you'll never take back our country with weakness. You have to show strength and you have to be strong. After this appeal to his many followers, they marched to the Capitol, stormed
Starting point is 00:16:41 the Capitol, scaled the walls of the Capitol, entered the building, destroyed property, delayed for many hours the counting of the votes, trashed offices. I think there was one tweet where someone posted a selfie of himself sitting with his feet up on the desk of Nancy Pelosi. A Capitol police officer was killed and there were four other deaths that morning. And it's not clear what is going to happen in the wake of all of this. There have been significant resignations from the House Sergeant of Arms, the Capitol, the chief of the Capitol Police Force. But, you know, this is an ongoing criminal investigation right now. I mean, that's the only way to put it.
Starting point is 00:17:27 Yeah. I mean, people were also posting pictures of themselves with letters they took from Nancy Pelosi's office. So they took things from the Capitol. There were images of people with wrist ties, plastic ties in the Capitol. I mean, we don't know what would have happened had they not actually evacuated and secured, you know, members of the House and Senate. And it was truly horrifying to watch and watch it play out. And then now for there to be thus far, you know, very little done about it. A police officer, right, a Capitol Hill police officer was murdered by participants in
Starting point is 00:18:13 this mob. And we don't know exactly how many people were involved or how this all transpired. But this is an unbelievably serious thing. And there were a number of other deaths, it seems, exclusively of participants in the rioting. But we don't really have all the details there either. I think a couple of other additional facts that I think are really important is that we have real questions about whether the president deliberately slow walked approval for the National Guard to be able to augment the clearly insufficient numbers of Capitol police who were on the premises. He released a statement suggesting that he had immediately authorized the National Guard. That seems not to be true. And if it is,
Starting point is 00:18:54 in fact, the case that the facts bear out his having deliberately slow walked that approval, he, you know, after having incited this mob, he delayed the sending of aid to members of Congress and materially endangered, I think, the lives of congressional leadership and maybe his own vice president. And that is just unbelievably serious. It is very difficult to think of presidential misconduct that could be more serious than that. Yeah, I mean, Governor Hogan of Maryland, you know, gave a press conference at which he said, you know, they were trying to get permission to send in National Guard, and that was initially rebuffed or declined. And it's truly appalling. So not surprisingly, all of this has set in motion a renewed set of calls for impeachment, possibly the invocation of the 25th Amendment. We're going to talk about that at the end of the episode.
Starting point is 00:19:43 Events are moving fast. So we're recording this on Friday. I think it's possible that articles of impeachment sounds at least, it sounds actually likely that articles of impeachment may be voted on in the next couple of days. So I think probably not before this episode drops, but we will see. And if we need to, as Melissa suggested, get an emergency episode together, if all this is moving quickly in the coming days, we'll do that. Also to mention factually, in the wake of this episode at the Capitol, a number of individuals from the administration began issuing their resignations. And on Thursday, it seemed that those resignations even went as
Starting point is 00:20:19 far up as some of the original Trump cabinet members. So Elaine Chao, who was also married to Senate majority, I guess now minority leader, Mitch McConnell, resigned from her post as Secretary of Labor. And Betsy DeVos also resigned as Secretary of Education. And we can talk about what that might mean for the invocation of the 25th Amendment at the end of the episode. And we should also note that after this violent mob, you know, put the Capitol under siege and endangered the lives of many people in the House and Senate, some members of Congress still elected to go through with the absolutely baseless objections to the election that had been used as part of the incitement for this mob, including Josh Hawley and Ted Cruz, and a significant number of Republicans in the House as well. Yeah. I mean, Mitt Romney, who spoke on the Senate floor after the Senate reconvened right in the evening, I thought really explicitly drew the connection between what had just happened with
Starting point is 00:21:21 the storming of the Capitol and these objections. They're not two different things. They're two sides of the same coin. The individuals who had been riled up to storm the Capitol were doing so in part based on a lie, which is that the election was illegitimate or fraudulent, and to continue to perpetrate that lie in the context of these objections, that there's no way in good faith these members of Congress believed were justified. I just can't, I can't credit that. So it seems to me really hard to avoid the conclusion that they were absolutely complicit in what had happened and in some ways, you know, offering their endorsement of it
Starting point is 00:21:52 after the fact by continuing to press these baseless objections. What do you make of the comparisons that are going around between these quote-unquote protests and the protests that occurred over the summer with regard to Black Lives Matter because one of the things that I've seen, at least from conservative Twitter, is sort of an equation.
Starting point is 00:22:14 This is just like that. This is nothing more than the same kind of peaceful protest. But I recall the National Guard being heavily involved in Black Lives Matter's protests over the summer. And it just seemed like the treatment of these protesters was wholly different from that experience. The militarized police response to all of these predominantly peaceful protests in every city in the country was just wildly out of proportion to any, you know, public safety threat that any of them posed. And here, the response to this, you know, not demonstration, right, but actual insurrection or mob action was grossly insufficient, right, to meet the actual threat. So I think that's distinction one. I mean, one point I think we should make is, if I'm not mistaken, the number
Starting point is 00:22:59 of active duty police officers who were killed in the George Floyd and Black Lives Matter protests over the summer, which, you know, occurred over many months in every American city, was the same. I think it was the same. I think it was the same number as occurred yesterday in two hours. And so, you know, to suggest that somehow the kind of threat to public safety and order was analogous in any way is, I think, just preposterous. But certainly there's no comparison in terms of there were five people died on Wednesday, including a police officer. So should we switch to the January case previews? That's a great segue, Leah. Very artfully done. Very well done. I mean, what is there even to say after that?
Starting point is 00:23:45 I don't know. I'll start it off. So one of the cases in the January sitting is Uzegbenem versus Przewski. And this is a really important civil rights case, even though the issue it presents may seem very technical and dry. The question in the case is whether a claim for nominal or symbolic damages becomes moot when the government subsequently modifies the challenge policy going forward. And this is a really important issue for those who do civil rights litigation, because it determines whether a court can reach the merits of a civil rights plaintiff's claim and determine whether the government's challenge policy is unlawful. And it might be useful for listeners to think about this case in the context of last term's decision in NYSERPA.
Starting point is 00:24:32 That was the Second Amendment case that challenged New York City's previous gun regulation. The court ended up saying that the case was moot because New York City repealed the challenge regulation, and then New York State passed a law that prohibited the city from reenacting a law like that. And important for our purposes, the plaintiffs in the NYSERPA case had only sought injunctive and declaratory relief, the kind of relief that declares the policy unlawful
Starting point is 00:24:58 and prevents the city from enforcing it going forward. And if you remember from the briefing in NYSERPA, the city had argued that finding the case moot wouldn't allow governments to evade merits rulings in every case because if the plaintiffs had sought damages, then the case wouldn't be moot. When you seek damages, you're seeking money to rectify harm that was already caused, harm that was caused in the past. And when the government repeals a policy that doesn't remedy the harm that was already caused by the policy.
Starting point is 00:25:29 So in NYSERPA, the plaintiffs didn't seek damages, but the Solicitor General had nonetheless argued the case was not moot because the plaintiffs in that case could still yet seek damages. So you can think of this case as really a follow-on to NYSERPA. This case asks what would have happened if the plaintiff in NYSERPA had sought nominal damages in the complaint in addition to injunctive and declaratory relief. That is, if the city repealed the regulation but the plaintiffs had sought nominal damages, would the case become moot? And with that in mind, it's worth sort of distinguishing nominal damages from regular damages. And so nominal damages aren't actually tied to the measure of damages or the harm to the plaintiff.
Starting point is 00:26:05 Like, you know, the plaintiff lost X amount of dollars because of someone's action. Monetary damages might be in that X amount. Instead, nominal damages are usually quite small. And in some ways, they're symbolic. But again, they're really important for civil rights litigation because plaintiffs may include them in their claim for relief in order to prevent a case from being mooted if the defendant changes its policies going forward. And the importance to civil rights litigation is really evidenced by the strange cross-ideological bedfellow consortium of Amiki in this case. So the case is actually brought by the Alliance Defending
Starting point is 00:26:42 Freedom. This is a group that has sought religious exemptions from non-discrimination ordinances, protecting LGBTQ individuals, and it's also involved in some anti-trans litigation. But here they're supported by the ACLU as an amicus, along with other civil rights groups, including the federal government as an amicus. So truly strange bedfellows. And again, it really underscores how important this seemingly dry and technical case will be for civil rights litigation going forward. So the actual case involves a college student who wanted to engage in public conversation, public speaking, pamphleting, etc., in support of his religion. But he did those activities in areas that were not designated as free speech areas.
Starting point is 00:27:21 So he was disciplined. He brought this suit along with another plaintiff that challenged the school's policies as violations of the First Amendment, but then the school changed its policies. The overwhelming consensus in the lower courts is that a claim for nominal damages, which was included in this case, right, as compared to like NYSERPA, would mean the case is not moot. But here the 11th Circuit held the case is moot in part by relying on the difference between nominal damages and actual damages, right? Again, nominal damages, symbolic, not designed to compensate for actual harm. So in some ways, this case kind of reminds me of Tanzan versus Tanvir, in that there are really two cross-cutting principles that might push the justices in different directions. One is, as in Tanzan, the conservative justice's real hostility to litigation and to judicial remedies.
Starting point is 00:28:06 You know, they often express concern about the possibility that plaintiff lawyers might abuse the system. But the other principle will be a real felt sympathy for religious liberty plaintiffs and free speech claims, both of which are implicated in this case. So maybe nominal damages when we're talking about a religious liberty claim. Right. Those don't become moot. They can preserve a live dispute in only the subset of cases that the justices are sympathetic to. I'm sure they would love to find that, but I don't think it's possible. I don't think that's far off the mark. I mean, I don't know what kind of reception this case will get before the court,
Starting point is 00:28:39 but it is worth noting that in the NYSERPA case, Alito dissented from that decision and noted that if the court were to rule for the challengers, the challengers would be eligible for nominal damages. And as he said in that decision, it's widely recognized that a claim for nominal damages precludes mootness. And both Gorsuch and Thomas joined that part of Alito's dissent. So at least it seems that there are three people. So religious liberty and Second Amendment claims. And some free speech claims. No, but I'm just saying, like, when the justices
Starting point is 00:29:11 are confronted, you know, with these cross-cutting principles as they were in Tanzan, you know, they reconciled them in ways that led them to be, you know, more sympathetic to their religious liberty plaintiffs. And so I'm
Starting point is 00:29:26 cautiously optimistic that that will happen here. You know, the fact that the court granted cert in this case when it is kind of the lone outlier against the consensus view also suggests that maybe they will see reason. I think also the facts of this case are really going to be important here. The plaintiff is a Christian evangelical. And so it wasn't just a request to pamphlet or to speak, but to speak about particular topics that sound in the Register of Religious Liberty. So that may be important here as well. Definitely. Also of note, we have been talking about nominal damages as oftentimes about symbolic harm, but sometimes nominal damages are also sought for
Starting point is 00:30:05 harms that are difficult to quantify. Like here, for example, how would you measure the damages to the plaintiff for not being able to speak? And some statutes actually preclude compensatory damages in certain cases, making nominal damages the only kind of damages that are available. And there are just, you know, many examples of these kinds of cases where, again, nominal damages are sought for either like minor touchings, assault and battery, or, you know, again, like free speech, religious liberty claims where you have been temporarily precluded from speaking. All right, Leah, do you want to go on to the next case? Sure. So next case is FCC and the National Association of Broadcasters versus Prometheus Radio Project. I'm happy that we have time to go deep on this case because it involves a very important administrative law doctrine, arbitrary and capricious review.
Starting point is 00:31:02 Two of the big admin law cases involving the Trump administration involved arbitrary and capricious review, the census case and the DACA case, but those cases involved somewhat different aspects of arbitrary and capricious review than this case does. Recall that in the census case, the most important case of all time, the court ultimately held the addition of the citizenship question to the census was arbitrary and capricious because the Commerce Department's stated rationale for adding the question that it was necessary to enforce the Voting Rights Act was pretextual. That was contrived and not the actual reason. Then in the DACA case, the court held that the administration's rescission of the DACA program was arbitrary and capricious because the administration had not considered two aspects of the rescission, the option of ending
Starting point is 00:31:43 some parts of the program like work authorization but not others, as well as reliance on the DACA program. Now, this case involves a related but somewhat distinct strand of arbitrary and capricious review that is more concerned with the facts and evidence rather than the government's stated rationale and how it justified its policy. Specifically, an administrative action can also be arbitrary and capricious when it is against the weight of evidence or not supported by evidence. Kate, you're the admin law expert. Did I get that right? Yeah, no, that's all exactly right. And I do think this case is distinct in certain respects from the DACA and census cases, but also shares certain important kind of thematic through lines.
Starting point is 00:32:20 So, you know, so there in the census case, the plaintiffs had argued, you know, both that the addition of the citizenship question was arbitrary and capricious because it was not supported by the evidence. Remember, the plaintiffs there said the addition of the citizenship question would depress turnout. It would make the census information less reliable. And therefore, this policy move was not supported by the evidence. Now, the court in that opinion seemed to reject that argument, although I read the opinion as not being crystal clear on this point. But in any event, it wasn't even necessary to resolve that question to dispose of the case because the court agreed that the pretextual explanation doomed the agency action, right, the addition of the question.
Starting point is 00:33:00 Anyway, the kind of arbitrary and capricious review that is implicated in this case is, you know, as Leah was saying, whether and how the evidence supports the administrative agency's policy decision. We should say that this kind of judicial review of administrative action is, I think some would say this, the kind that strains courts' relative competence the most. Because if agencies are better than courts at anything, you would think it would be at gathering facts, weighing the costs and benefits of particular policies. On this account, it would be hard, I think, for a court to second guess an agency's determination that a policy decision is supported by the weight of evidence unless, and again, the census case, the policy decision is so obviously out of whack or insane. So you all mentioned the DACA case and the census case. I actually have been thinking about this in the context of Gundy and just sort of the general assault on the administrative state and this idea that deference to agency expertise is really
Starting point is 00:33:57 problematic. And, you know, I think it falls into that bucket as well. And like many administrative law doctrines, the kind of valence of these doctrines and sort of how I think that political, legal political coalitions are going to be enthusiastic about or concerned about is going to very much depend on who is sitting in the administration and sort of what the composition of the court is. I mean, I think that arbitrary and capricious review has not been something that has been in the crosshairs of the conservative legal movement, right? There has not been an anti-State Farm is the big arbitrary and capricious case. There hasn't been an anti-State Farm mobilization in the same way that there has been an anti-Chevron mobilization, which I think is interesting. I mean, maybe because State Farm is such a malleable,
Starting point is 00:34:38 arbitrary and capricious review has historically been a pretty malleable standard. But that's true about Chevron too. So I don't think it totally explains the difference. But I had wondered after we saw this doctrine kind of deployed to invalidate certain Trump administration policies, whether we might see that kind of turn among kind of conservative legal scholars to suggest that, you know, it's in some tension with Chevron because to say that courts are being too active in policing what agencies are doing is in tension with an anti-administrativist position or strain that is part of the kind of Chevron skepticism. But this is just, I think, a more under-the-radar but hugely important doctrine or set of doctrines that governs how courts substantively review what agencies have decided to do, right? So where Chevron is about legal interpretations reached by agencies, State Farm is about substantive review, both of the policy decisions made by agencies, the justifications given by
Starting point is 00:35:33 agencies, and the bases on which agencies have relied. And I think that all of those things are connected. So they're somewhat difficult to disaggregate. So maybe let's walk through the policy issue in this case, and that'll help flesh it out a little bit. So basically, the agency here is the Federal Communications Commission, or the FCC. It has broad authority to allocate and to regulate broadcast licenses in the public interest that's in the statute. And in furtherance of that mandate, the commission has limited the number of radio or television stations that a single party may own, both nationally and in local markets. And it has also limited cross-ownership of broadcast stations and other media in certain defined markets. This is in part to avoid
Starting point is 00:36:09 over-concentration, and it's also to ensure diversity in ownership, including along the lines of race and gender. Okay, so Section 202H of the Federal Communications Act says that the FCC shall review its rules adopted pursuant to this section and all of its ownership rules as part of its regulatory reform review under section 11 of the Communications Act, and shall determine whether any such rules are necessary in the public interest as a result of competition. The commission shall repeal or modify any regulation it determines to be no longer in the public interest. Okay, so as part of that process, the FCC reviewed a number of rules over a period spanning a decade and involving a fair number of interim rounds of Third Circuit review. But there are basically four ownership rules at issue here.
Starting point is 00:36:51 One, the local television rule, which governs how many stations can be jointly owned in the same local market. The local radio rule, basically the same thing for radio. A newspaper and broadcasting cross-ownership rule that limits ownership of a daily newspaper and a broadcast station in the same local market, and radio-television cross-ownership rule, which caps the number of same-market television and radio stations that may be jointly owned. So two months after the Third Circuit decided Prometheus III, again, there were many rounds of Third Circuit review, the FCC issued the 2016 order, the first of the three orders that are under review here. There, the FCC found that the public interest is best served by retaining the existing rules with some minor modifications, and that particularly for local news and public
Starting point is 00:37:34 interest programming, traditional media outlets like television and radio continue to serve as the primary sources on which consumers rely. National non-broadcast video sources, the commission concluded, do not serve as meaningful substitutes for local broadcast television, and local news and information available online usually originates from traditional media outlets. 15 months later, a newly composed FCC issued the reconsideration order, relying upon the same facts used by the commission just over a year ago to reach the exact opposite conclusions. This was one of the dissenting opinions from Commissioner Clyburn. The commission eliminated the cross-ownership limits entirely and significantly relaxed the local television
Starting point is 00:38:14 ownership rules. And then the Third Circuit unanimously affirmed substantial elements of the agency's decision. But relaxation of the ownership rules was fatally flawed, the court concluded, because the FCC did not adequately consider the effect its sweeping rule changes will have on ownership of broadcast media by women and racial minorities. The court identified two particular problems. First, the FCC's analysis of changes in ownership by people of color was, quote unquote, insubstantial. The agency compared two data sets created using entirely different methodologies, the court said, and exercise in comparing what the court termed apples to oranges, which it did not make any effort to fix. Further, even if the data were taken at face value,
Starting point is 00:38:55 the commission did not actually make any estimate of the impact of past deregulation. And then second, any ostensible conclusion as to female ownership was not based on any record evidence at all. So there's a bunch of arguments in the case. One of the arguments is actually whether the statutory provision that Kate read regarding the FCC's regulatory review actually requires or even permits the FCC to consider diversity in ownership rather than just competition. So the government and the Broadcasters Association are arguing that the Third Circuit was wrong to focus only on diversity
Starting point is 00:39:33 of ownership, or whether it could focus on diversity of ownership at all. There's also a lot of discussion about the kind of empirical certainty that is required in order for the FCC to visit its rules, given that there has been concerns about the integrity of the data kind of throughout this process and previous data that the FCC has relied upon. So there could be some new administrative law, you know, principles emerging from this case about how closely courts are to scrutinize the empirical findings of agencies in making their decisions. As Kate was suggesting earlier, when we were discussing kind of like the political valence of these doctrines, I think this is something that could prove to be quite important during
Starting point is 00:40:12 the Biden administration, given that the Biden administration will likely be pursuing many of its policies through administrative agencies. And now the federal courts and particularly the courts of appeals are much more conservative than the administration will be, and therefore could come down differently on where they think the weight of the evidence and the relevant facts push. Yeah. And I'll say, I think that's a good caution. I'm actually less worried about this, I think, than you, Leah, in part because I think that the reason that these Trump policies have fared so badly under this pretty robust State Farm Arbitrary and Capricious Review is because a lot of these agencies have been pretty dismissive of facts and evidence in pursuit
Starting point is 00:40:51 of their policy goals, and have been pretty disingenuous in giving their reasons. And I just don't really see the Biden administration engaging in, you know, regulatory activity in the same spirit. Now, that's not to say that aggressive courts might not decide to really second guess agency policy judgments, but I don't think they're going to be able to plausibly do it on the basis that, you know, facts and evidence weren't considered. And, you know, I, in terms of kind of disingenuousness, I mentioned earlier that even though this case is somewhat different than Census and DACA, I actually do think that there's kind of a through line, which is that, you know, the agency basically said it was continuing to prioritize diversity
Starting point is 00:41:29 because, you know, it always had, and it didn't, I think, want to sort of make a big policy announcement that it had decided to deprioritize diversity. But, you know, instead of just saying that forthrightly, look, we actually, we don't think this is either a policy objective objective we want to pursue or we're concerned that there might be, you know, constitutional problems with even pursuing racial or gender diversity in ownership. Instead, they went through this decision making that if the FCC basically said, look, we actually don't think diversity is an important goal and we're not going to pursue it anymore, then public participation could respond to that, right? The public would know and they could weigh in. But if they're going to do it in this sort of sub-saliential way and just sort of do shoddy decision-making that purports to rely on evidence that actually doesn't justify the action that they are taking,
Starting point is 00:42:27 that removes the ability of an informed public to really be heard by the agency. So I do think that that's why I think this case actually is really closely connected to the first two cases that we started by talking about. So I think it's exactly right that the Biden administration will certainly be more thorough than the Trump administration and won't dismiss facts. Right, I know, shocking, low bar, banality of low expectations. But, you know, I look back on the Obama administration and, you know, there we did see, particularly on climate regulation, you know, conservative courts saying, well, the administration didn't adequately consider costs. It's not that the administration didn't mention costs.
Starting point is 00:43:01 It's just that the courts happen to think that the costs to addressing climate change were, you know, bigger than the administration did and like weighed against the policy. So in particular, you know, Michigan versus EPA, you know, it's one of those cases that I'm thinking of. And so that is really kind of case that I'm concerned about. And I think you're right, cost is probably in its own category. And if courts want to say, and it's so hard for me to see how with a straight face a court could say when that's so clearly a policy judgment, but that cost is the most important consideration when we're talking about climate regulation or economic impact is the most important consideration when we're talking about climate regulation. But you're certainly right. It's not difficult to imagine conservative
Starting point is 00:43:39 lower courts and the Supreme Court potentially you know, potentially invalidating climate initiatives that happen at the agency level on that basis. But as a broader principle, I think I'm not that worried about agency action being vulnerable, at least on this theory. I think I'm with Leah on this one. Leah, are we going to join our own Cassandra Club on this? You know, it's always good to have a resident optimist. But again, you know, it's not good to have a resident optimist. But again, you know, it's not just Michigan versus EPA. It's a stay of the Clean Power Plan. There were just so many climate initiatives where I think, you know, lower federal courts and the Supreme Court just, you know, went over the agency's work product with an unfair
Starting point is 00:44:20 lens and said, you know, at the end of the day, we just don't think you adequately considered costs when what they really meant is you came to a conclusion about the cost that is different from the ones that we would reach. I love your Pollyanna optimism, though, Kate. It's like Cassandra's versus Pollyanna's, and I'm here for it. This is the tension that we bring. And we should say, obviously, a democratically controlled Senate makes all the difference in all of this. I mean, we should also say there's still a legislative filibuster. So it's not as though, you know, anything you can dream you can do right with the Democratic Congress, because, again, as to legislation, 50 votes is not going to be enough. That's until me and my BFF Joe Manchin work this out. Oh, to abolish the filibuster, right. So that's, yeah, until that happens.
Starting point is 00:45:13 But some of this can happen. I think we are just in a different world, you know, prior to Tuesday than after Tuesday, because prior to Tuesday, it could well have been only agency action that was possible on a lot of these issues. And now legislation becomes at least a live possibility. On that optimistic note. Wait, wait, can I go back and be a pessimist? Yeah, no. Can't legislation be struck down by this court? Absolutely.
Starting point is 00:45:34 Okay, all right. Let me put that out there. Okay. Also, Joe Manchin is not abolishing the filibuster for environmental reforms, as charming as I might try to be and as many Peloton's high f charming as I might try to be, and as many Peloton's high fives as I might send him.
Starting point is 00:45:49 Get Cody Rigsby on the case. Yes! Cody can pull it off. Hey, boo! Kate has no idea what we're talking about. I've heard the name. Find your light, fix your wig, Joe. Now, on that truly optimistic note, we will go on briefly to the third case we wanted to preview, which is Pham v. Guzman Chavez. The question in this case is whether certain categories of immigration detentions are governed by either Section 1226 or 1231 of the Immigration and Nationality Act. Section 1226 governs detentions when the decision whether
Starting point is 00:46:26 the alien is to be removed from the United States remains pending. Alien is a language used in the statute that's not the language that I would choose to use. Section 1231 provides for mandatory detention, but only during the brief 90-day removal period, which Congress defined as the time during which the government shall remove the alien from the United States. So 1231 is mandatory detentions and 1226 is not. And so it's important to know which provision governs because if detentions are mandatory, then an individual cannot be released while immigration proceedings remain pending. And of course, immigration proceedings can remain pending for a long time.
Starting point is 00:47:05 The specific question in this case is whether 1231 or 1226 applies when there is a reinstated order of removal, but a withholding of removal claim remains active. Withholding of removal is available for several reasons, including for individuals who fear persecution or torture upon removal. And reinstated orders of removal occur when a person who was previously removed then unlawfully reenters the United States. Following an unlawful reentry, the INA provides that the prior order of removal is reinstated. And while most defenses to removal are not available for reinstated orders, an individual can still apply for withholding of removal.
Starting point is 00:47:46 So the government argues that withholding is about where to remove an individual, not whether to remove them. And so therefore, the order of removal is final, and these detentions are governed by 1, 2, 3, 1. The difficulty with that argument is while technically withholding of removal is about where a person is to be removed, in actuality, when withholding of removal cases are successful, they preclude removal in 98% of the cases. And the reason for that is because the INA restricts the countries to which an individual can be removed.
Starting point is 00:48:26 Generally, a person can be removed only to an individual's country of citizenship or last prior residence or birth. But then there is this catch-all that allows the government to remove individuals to another country whose government will accept the person. But if you successfully pursue a withholding of removal claim because you demonstrate you are likely to be persecuted or tortured in your home country, country of citizenship, lost prior residence, or birth, then again, in 98% of cases, you are not going to be removed at all. So this is just kind of the exact kind of argument that I worry the court is going to overlook
Starting point is 00:49:04 because it concerns, you know, not the precise meaning of the text, but actually how these provisions play out in operation and reality, which I think is quite significant. But before this court, I'm just worried that that statistic is not going to have the significance that I think it should. OK, so let's move on to court culture. Melissa, do you want to get us started on that? Well, yes. So today's court culture segment isn't really about the court at all, but rather about a vagary of constitutional law, the 25th Amendment. And traditionally, it is kind of a wallflower at the constitutional cotillion. But now it is having a moment, you guys. It has been mentioned so much over the last four years, but it has been particularly mentioned a lot in the last few
Starting point is 00:49:54 days. People are talking about it. Just to put this in context for those of you who have Netflix, if the Constitution were Bridgerton, the 25th Amendment would be the Duke of Hastings. And if you don't know what I'm talking about, you need to get on this right away. This is not a drill. All right. I still haven't. Have you, Leah? Yes. You have? You watched the whole thing? And you agree with me. Not the whole thing. Oh, yeah. Yeah. Yeah. Duke of Hastings. Most con law classes don't really talk about the 25th Amendment. So we thought this would be a great opportunity to offer a kind of quick and dirty primer on the amendment, its history, its terms, and what it might mean over the next two weeks. So let's start at the beginning. Article 2, Section 1, Clause 6 of the Constitution provides that,
Starting point is 00:50:39 in case of the removal of the president from office or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice president. This constitutional language is a little ambiguous as to some important details. For example, it doesn't make clear whether the vice president becomes the actual president upon the removal, death, or resignation of the president. It also doesn't really clarify whether the VP becomes an acting president in circumstances where the president is temporarily incapacitated or rather... Can I say one thing about... Partly that's just the language. It's so strange to say, you know, if he's unable to discharge the powers and duties of the said
Starting point is 00:51:19 office, the same. Is the same the office or is the same the powers and duties? And it's just never been clear. They could have used an editor in any event. So this has really been an issue, actually, over the course of constitutional history, because while it's obvious that a president can be removed, resigned, or may die, there are cases where we don't really know where a president has actually been incapacitated. So Edith Wilson famously kept the country in the dark when her husband, President Woodrow Wilson, suffered a debilitating stroke. And no one informed the vice president when President Grover Cleveland chartered a yacht complete with physicians and an anesthesiologist to undergo an operation to remove a cancerous tumor. So these questions about what would happen
Starting point is 00:52:06 in the case the president was temporarily incapacitated have been percolating for a while. They became really pressing in the 1950s and 1960s. During that period, President Eisenhower suffered a heart attack in September 1955 and later underwent emergency surgery for intestinal issues in July of 1956. And in both of those instances, he tried to clarify the secession procedures by drafting a signed agreement that he executed with his vice president, Richard Nixon. The agreement, which was drafted by the AG, didn't actually have legal authority, though. But nevertheless, when Eisenhower was temporarily incapacitated in both circumstances, Nixon presided over cabinet meetings and, along when Eisenhower was temporarily incapacitated in both circumstances,
Starting point is 00:52:49 Nixon presided over cabinet meetings and along with Eisenhower aides kept the executive branch functioning and assured that the public understood that the situation was under control and that Eisenhower would, when he recovered, resume his duties. But during that period, Nixon never claimed to be the president or an acting president during those brief stints. So all of this reaches a fever pitch after 1963, which is, of course, when John F. Kennedy is assassinated. Recognizing that medical advances make it increasingly likely that an injured or ill president might live for a long time while being incapacitated, policymakers begin to push for a clear procedure for determining presidential disability, especially in the context of the Cold War, where continued leadership would
Starting point is 00:53:31 be necessary. And so with that in mind, Indiana Senator Birch Bayh, who's the chairman of the Subcommittee on Constitutional Amendments, goes about advocating for a more detailed amendment dealing with presidential disability. And the result is the 25th Amendment, which is ratified on February 10th, 1967. Ironically, 180 days after Lyndon Johnson is admitted to the hospital for a planned surgery and where there is actually no plan for presidential secession. So, wah, wah. Anyway. The amendment itself.
Starting point is 00:54:03 Yes. The amendment has four sections. Section one provides that in case of the removal of the president from office or of his death or resignation, the vice president shall become president. This is like the Selina Meyer office of the vice president, the president shall nominate a vice president who shall take office upon confirmation by a majority vote of both houses of Congress. So that basically just clarifies the whole question of what happens when there's a vice presidential vacancy. And this has actually happened during various points in our history. So Kate, do you want to talk a little bit about? Well, yeah. I mean, just it's an odd thing. Before the 25th Amendment, the vice presidency just sat vacant in the case of a vice presidential vacancy until a new vice president took office. So post 25th Amendment, this is actually how Gerald Ford became president through the 25th Amendment Section 2 mechanism. So Spiro Agnew, who is Nixon's corrupt vice president, you know,
Starting point is 00:55:02 maybe the most corrupt person in the White House until the last four years. So Spiro Agnew resigns in the fall of 1973 as part of this deal in which he pleads guilty to tax evasion and avoids more serious charges for the literal bribery scheme he was running out of the White House. And Nixon needed someone uncontroversial and who could be confirmed by both houses. Like, it is just so strange in the Constitution. We are so accustomed to the Senate being the confirming body, but the 25th Amendment Section 2 has both the House and the Senate confirming the vice president. So Nixon chose Congressman Gerald Ford of Michigan, who fit the bill, and indeed he was easily confirmed by both houses of Congress. So when Nixon resigned in 1974, Ford became the president. He then actually used that Section 2 mechanism to
Starting point is 00:55:45 nominate his own vice president. But we should say that while he was president, Gerald Ford nominated Justice Stevens to the Supreme Court, probably the most consequential thing that President Ford did during his brief term in office. So I, for one, will always have a deep attachment to the 25th Amendment, at least to Section 2. Section 3 of the 25th Amendment provides that whenever the president transmits to the president of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the vice president as acting
Starting point is 00:56:20 president. So this is basically just the voluntary transfer. Like, if like, you know, you're going to the hospital to have an appendectomy, you're going to send this letter to the speaker and the president pro tem to let them know and they'll transmit your duties to the VP until you're able to resume them again. And this is this has happened a number of times, it's usually for a couple of hours or maybe a day. But it's, you know, never a particularly big deal. And it, you know, it's routine. And it is viewed as actually a really good constitutional innovation, that there is a settled practice. So everyone knows at every second who is in charge of the executive branch of government. But it's Section 4 that's really the kind of important section.
Starting point is 00:56:59 It's the section that everyone is talking about these days. This is the Duke of Hastings section, if you will. And so Section 4 provides that whenever the vice president and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the president pro tem of the Senate and the Speaker of the House of Representatives their written declaration that the president is unable to discharge the powers and duties of his office, the vice president shall immediately assume the powers and duties of the office as acting president. Then there's another clause.
Starting point is 00:57:31 Thereafter, when the president transmits to the president pro tem of the Senate and the speaker of the House his written declaration that no inability exists, he shall resume the powers and duties of his office unless the vice president and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the president pro tem of the Senate and the Speaker of the House their written declaration that the president is unable to discharge the powers and duties of his office. Thereupon, Congress shall decide the issue, assembling within 48 hours for that purpose, if not in session, if the Congress within 21 days after
Starting point is 00:58:05 receipt of the latter written declaration, or if Congress is not in session within 21 days after Congress is required to assemble, determines by a two-thirds vote of both houses the president is unable to discharge the powers and duties of his office, the vice president shall continue to discharge the same as acting president. Otherwise, the president resumes the powers and duties of his office. So this is like contemplating the possibility of involuntary relinquishment of authority. And there's this sort of mechanism for the vice president to sort of state the president is unable to perform his duties with the assent of some majority of either the cabinet or some other body that Congress might determine. And then it goes to the Congress and they transmit his powers to the vice president.
Starting point is 00:58:50 But then the president can say, oh, that's not true. I'm actually fine. And then there's a sort of back and forth with the vice president. And then ultimately it goes to Congress. And all of this will happen in like 21 days or so. So like a part of me doesn't really get the enthusiasm for the 25th Amendment versus impeachment, given, you know, the specter of, you know, concern about what this president is going to do during the waning days of the office, given what we saw during the
Starting point is 00:59:16 insurrection. Because, you know, this requires the assent of actually two thirds of both houses of Congress in order to remove the president and the likelihood of getting two-thirds of the House in particular, you know, given that you had a majority of the Republican caucus voting to overthrow the results of the election is, I think, just very minimal. Also, there's considerable uncertainty about whether, you know, who the quorum of principal officers is that could vote with Pence, given that you have a lot of acting secretaries, in part because of the resignations, in part because this administration hasn't confirmed anyone to some cabinet positions.
Starting point is 00:59:49 And so I understand why people would like to remove the president now, particularly, but the 25th Amendment versus impeachment, I don't completely understand. I have agreed on your first point. I have agreed whenever I've heard the 25th invoked over the course of the last four years, I've said it makes no sense to pursue that rather than impeachment because, right, two-thirds in both houses is much harder than two-thirds in the Senate, which is all that's required, majority in the House and two-thirds in the Senate, in order to impeach and remove. But actually, I think given the 21-day window that Melissa mentioned in Section 4, now the 25th Amendment actually makes a lot more sense. Because it's true it requires this two-thirds vote to
Starting point is 01:00:29 oust the president if he tries to hang on. But it's also true that Congress has 21 days to act. And as I read the amendment, during the pendency of that 21-day period, if the vice president has transmitted his initial declaration and then his second declaration after the president tries to take the power back, the power remains with the vice president while Congress considers whether, you know, deliberates and votes. So I actually think the default rests with the vice president. So given that we are only two weeks out from January 20th, I actually think here, if you could just get to a majority of the cabinet, obviously with the vice president, then that would be sufficient and Congress could just run out the clock. That interpretation would be litigated. Don't you think? I just don't think
Starting point is 01:01:04 a court, I don't think it could in time. I don't know that a court would decide it. I just, I wouldn't, I wouldn't, I don't think so. But I do think on the acting issue, which also I think probably wouldn't be litigated and would just sort of, you know, the executive branch should sort of make its best determination. I think people disagree about whether acting officials should count, but I also don't think it totally matters because I think that it's just a majority in the constitution. So I think that if the actings are out of the count, they're out of the denominator too. So I think right now you have, you know, the statutory cabinet is 15 members, three are acting. So, well, I guess after Monday, two more will be acting presumably when Chau and
Starting point is 01:01:36 DeVos are out. But I think that means you either need, you know, eight of the 15 if they all count, or, you know, if it's after Monday and there's only 10 actually confirmed cabinet members, then you just need six, I think. So I think it would be possible either way. And I think, you know, maybe a court would have the final word, but it just couldn't happen fast enough to matter. Wouldn't impeachment, couldn't that happen faster than this and be cleaner? It could in theory. I mean, certainly historically hasn't happened this quickly, but could they do it? Could the House do it in a day? And could the Senate? I mean, I guess there's, I think there's a real question about whether the Senate has to have a trial at all. I mean,
Starting point is 01:02:10 under its own rules, it does, but could it suspend those rules? And the Constitution gives the Senate the power to trial impeachments, but does that make a duty to try or can it just vote? I think you have to have something you call a trial, but it could be a day or half a day long. So the other thing that impeachment brings to the table that the 25th Amendment does not is that you could have conviction and then subsequently disqualification. And that, I think, is a huge advantage of impeachment, right, because it could permit his disqualification from future office holding. And interestingly, under the Senate's rules right now, it requires only a simple majority vote to disqualify. Now, you would still first need the two-thirds to convict, but the disqualification requires only a simple majority vote to disqualify. Now, you would still first need the two-thirds to convict, but the disqualification requires only a simple majority. No, I don't know.
Starting point is 01:02:49 Maybe there are constitutional problems with that interpretation, but that at least is how the Senate currently reads the requirements. That is probably all we have time for today. Stay safe and stay tuned for our new venture, a rational basis review show aimed at those looking to gain more of an entry into constitutional law just in time for the winter or spring semester. We will be breaking down some of the basic concepts
Starting point is 01:03:14 and cases in constitutional law, and we hope it is useful to students and law professors alike. So many thanks to our producer, Melody Rowell, and to Eddie Cooper, who does our music, and many thanks and Happy New Year to our GLOW subscribers. If you'd like to support the pod, please feel free to subscribe at glow.fm forward slash strict scrutiny. All right. Thanks, everyone.

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