Strict Scrutiny - Will SCOTUS Say No to Trump’s Tariffs?

Episode Date: November 10, 2025

Live from Crooked Con in Washington, Leah, Kate, and Melissa unpack the surprisingly not-awful oral arguments for Learning Resources, Inc. v. Trump, which put the president's tariffs in the hot seat. Then the hosts are joined by Representative LaMonica McIver of New Jersey to discuss the bogus charges against her for “assaulting” federal agents while conducting an oversight visit of an ICE detention center. Finally, friend of the pod Steve Vladeck joins Leah to break down the 3D chess behind Justice Ketanji Brown Jackson’s Friday night order granting an administrative stay in a case about the funding of SNAP benefits. Read Steve’s excellent piece on the subject here, and enter Leah’s Lawless giveaway here.Favorite Things:Kate: Judge Sara Ellis’s reading of Chicago by Carl Sandburg; How to Be a Good Citizen When Your Country Does Bad Things, M. Gessen (NYT); The 25 Young(ish) New Democrats to Watch, Matt Stieb and Kaleigh Rogers (New York Magazine)Leah: Zohran Mamdani’s Victory SpeechMelissa: The Can’t Win Victory Fund Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 3/6/26 – San Francisco3/7/26 – Los AngelesLearn more: http://crooked.com/events Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad VibesFollow us on Instagram, Threads, and Bluesky Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

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Welcome to Crooked Khan, which is just like BravoCon, except with furloughs instead of facelifts. We are strict scrutiny, your podcast about the Supreme Court. And the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. And D.C., we are so thrilled to be here.

I will be honest. We don't always feel that way about visiting D.C. in the age of Trump. But this week, D.C. just hits different. We love all of our D.C. see listeners equally, but we do have a special message. Just four words, only one of them four letters, for one of our favorite friends of the pod, Sam Alito. Since we know you're listening, Sam, turn the volume up. More seriously, has anyone checked on House Alito since Tuesday's elections. Any freak flags frying? Affirmative.

All right. So last Tuesday felt so energizing and encouraging. It was like everyone woke up from this collective stupor and recognized that the eggs are still expensive, the kids all have measles, there is no Department of Education, the government is shut down, and it's all their fault. The elections really did feel like a Lily Allen-level diss album for fascist freaks. And it was glorious. It is true. It was like, oh, wait, there's another track obliterating him and then another, but for election returns. But because we have only got an hour and 15 minutes before we get the hook, let's get down to business.

So, in this show, we're just going to be able to focus on a few things from this past week. We're going to recap the oral arguments in the tariffs case, which were surprisingly not terrible. Although we did have to sit through the Solicitor General trying to convince the court that the president can, in fact, throw the global economy into chaos because he's triggered by Canadian television. This is Kate's very nice way of telling you that because of time constraints, we're not going to be able to do all of the things that we typically do in an episode. So we're not going to cover all of the relevant legal news. So, for example, we are not going to be covering the acquittal of the D.C. sandwich guy.

And this one hurts because I've been wanting to tell you all that if the condiments don't hit, you must acquit. We're also not going to be able to cover all of the shenanigans that have been happening at one first street, including the most recent shadow docket order that the court issued, allowing this administration to continue harassing trans people. So this is the passport case. Thank you. And there we are. As you know, in that shadow docket order, the court said that the state department can continue to issue passports with sex assigned at

birth and defiance of what trans people like. And Justice Jackson, I think appropriately said that this court, quote, failed to understand the assignment. There was like a brief shining period of about 24 hours after the tariff arguments, where it seemed like the Roberts Court might be interested in doing something vaguely approximating law. And then, psych, they're fucking with us.

Just the tip. back to their BS, insisting that the president is irreparably harmed by not being able to misgender trans people. Okay, so in addition to not covering the legal news, it also means we are not going to be able to recap all of the cases that the court heard in the first week of the November sitting, which means you will have to wait until next week's episode for us to cover those. And that means you will have to wait especially for our coverage. of Coach Kavanaugh's epic meltdown in the case about military contractors. And spoiler alert,

Bwett was velly-velli-velli upset. Upset. Those admissions are going to make room for some great live content. We are going to be joined live by one of New Jersey's finest. Representative La Monica McIver is here at CrookedCon. to discuss the president's efforts to squash dissent and stymie congressional oversight. But first, we are going to the oral arguments on tariffs. So the tariffs cases concern the president's reciprocal tariffs and trafficking tariffs.

The administration claims that these reciprocal tariffs are being imposed in response to trade deficits, while the trafficking tariffs are punishing countries that they're not doing enough to stop the fentanyl trade. The president claims that the international emergency economic powers, Act, or AIEPA, gives him the authority to do both. Aieba, I don't even know a. And apparently, neither does the president even Noah, because Aipa, by its terms, only authorizes the president to take action to, quote, deal with any unusual and extraordinary threat to the national security, foreign policy, or

economy, and then when the president declares a national emergency, Aipa authorizes him to take various steps, including steps to regulate importation. Coincidentally, we are discussing the tariffs cases here in this building, the Ronald Reagan building and international trade center. And this is incredibly fortuitous because Ronald Reagan noted liberal squish. Among many of the things that he hated, tariffs were at the top of the list. And incidentally, because they continue to have what we called book learning in Canada, the province of Ontario decided to do the funniest thing ever. So they made a television ad in which they invoked Ronald Reagan, and the ad was basically

an anti-tariff ad. So absolute king shit, right? And then our president took that personally, and he was so triggered that he announced that there would be a special maple leaf Canadian punishment tariff and to which I say queen shit so the actual posts one read quote the Ronald Reagan Foundation has just announced that Canada

has fraudulently used an advertisement which is fake featuring Ronald Reagan speaking negatively about tariffs they only did this to interfere with the US Supreme Court tariffs are very important to the national security of the USA based on their egregious behavior all trade negotiations with Canada are hereby

terminated And the second one, quote, Canada was caught red-handed. Ronald Reagan loved tariffs for purposes of national security in the economy, but Canada said he didn't because of their serious misrepresentation of the facts and hostile act. I am increasing the tariff on Canada by 10% over and above what they are paying now. In case you were wondering if all of this shit posting was a good idea while you are in active litigation, at oral argument Justice Sotomayor pointed to the second. shitpost and suggested that retaliation and peak rather than economic global emergencies may have

been the real reasons for the tariffs. She knows what's up. The president is just doing some global economic hotboxing. And to be clear, those clearly Canadian shitposts were not the first or the only time the president has said and done things that make clear that the national security bases for these tariffs is a little sketchy. So do not forget that he declared bathroom vanity tariffs necessary and he linked tariffs on upholstered furniture to national security, which does

raise the question is national security a code word for J.D. Vance. We will let you decide and thank you in advance for your attention to the next slide, which was, quote, we will be imposing a 50% tariff on all kitchen

cabinets, bathroom vanities, and associated products. Additionally, this is is the Vance part. We will be charging a 30% tariff on upholstered furniture. We must protect for national security and other reasons our manufacturing process. And of course, thank you for your attention to this matter. We say all of this to just remind you that these tariffs are a joke. And like so much of this clown car of an administration, the jokes just write themselves. And so the Supreme Court finds itself in the unenviable position of either a upholding the tariffs and endorsing a series of bald face lies,

or shutting this farce down and risking the president's noncompliance. And I'm not one to generally be sympathetic to the court, but this does seem like you're stuck between a rock and a hard place. They did this to themselves, though. True. True. All right. Yes, you can clap for, they did it to themselves. Thank you. strict scrutiny is brought to you by MintMobile. Most holiday gifts end up in a drawer, or the back of your closet, or accidentally left at your cousin's house. Not this one. MintMobile is offering unlimited premium wireless for $15 a month. That's their best deal of the year, aka the only holiday gift you'll actually use every single day. Mint Mobile's best deal of the year is happening right now. Get a three, six, or 12-month unlimited plan for $15 a month. All mint plans come with high-speed data and

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See mintmobile.com. We need to do a little more table setting, though, before we get into this. So let's lay the scene. Okay, so the tariff argument happened the morning after Democrats ran the table with sweeping electoral victories in Virginia, New Jersey, in New York City, California, Georgia, Pennsylvania, Mississippi, and more. And at least in my opinion, it is impossible to divorce the skepticism of some Republican justices. And I'm looking at you in particular, John G. Roberts, from the context of the previous night's election results.

Because this is not the first time that a court or even this court has put a finger in the electoral wins and made some adjustments. So back in 2022, in the aftermath of the post-Dob's midterms, the court seemed to get that the rest of the country wasn't picking up what they were putting down. You know, nothing like a little electoral backlash to give you a sense of how people feel about you. And after those post-Dobbs midterms, the court postponed ending Section 2 of the Voting Rights Act,

and they did not go full Leroy Jenkins on the independent state legislature theory. All right. So this is all to say that the massive blue wave likely cultivated the conditions under which the court may actually be bestirred to exhibit at least a superficial appearance of judicial restraint and judicial independence with this particular administration. So that's something. And the election also may have led some of the Republican appointees to realize that there might be a Democrat in the Oval Office in the future, hence the renewed interest in limit. committing presidential authority. Yeah, the sort of dawning realization that Democrats can still win elections

really did sort of feel like it might have colored those arguments. And President Trump earlier had made some noise about attending the arguments at the court, but alas, he chickened out and instead truthed through the pain. I'm not sure he could have sat still for the three hours it takes to listen to a Supreme Court argument, but he took to Truth Social the night before to declare that, quote, tomorrow's US Supreme Court

case is literally life or death for our country. And again, of course, thank you for your attention to this matter. Very demure, very mindful. We are not going to make our thoughts on this inconspicuous. We have lots to say about the terrorist argument. So now let's get into it, okay? Sure. So I'll start, and I'm not super confident for reasons I'm sure we will get into, but I do think there is a greater than 50% chance that the court is going to invalidate the tariffs, at least some of them. The three Democratic appointees are definitely on board. I think Neil Gorsuch is

already there, so really it's just one more of Barrett or the Chief. And I think some Republican justices would view striking down the tariffs as good for them and good for the Republican Party because the tariffs and resulting chaos aren't popular. Striking them down is a way of protecting

the right-wing legal project. It saves the president, the economy, the Republican party from Trump. And justices emotional support, billionaires, too. So before we clap about that, again, this Supreme Court never does anything that doesn't serve its own purposes. So taking down the tariffs would be a service to all of us, but it would also be a service to this administration that can't seem to get out of its own way, so the court will do it

for them. And it's also a major service to the court, because they really could use a win right now. and a win against the president on an extremely high-profile case, like the tariffs case, could give the court the patina of independence that it really needs right now. So don't clap too hard for this one. I mean, nobody wants to tank the economy, but the court has other things going on. Fair enough. All right.

I also want to be clear that you just mentioned Justice Barrett as a possible fifth vote. Again, I am not sure we can count. on Justice Barrett here. So she seemed very skeptical of the prospect of really sweeping presidential power, but she also floated the theory that maybe the president did have the power to impose tariffs as part of his broader power

to impose embargo. So I will just say, I do not think that Justice Barrett is a sure thing. I think everyone who's writing their Justice Barrett independent, originalist thought pieces, should just put the pen down for right now. Are you saying she has an arrangement during arguments to be discreet and not be blatant? That is a Lily Allen reference.

There will be a lot during this show because if you didn't know a few years ago when the court overruled Roe, Olivia Rodriguez was on tour and she brought Lily Allen on stage to one of her concerts where they performed, fuck you, and dedicated it to the Supreme Court. specifically by name the justices who voted to overrule Roe, it's epic if you haven't seen the video pull it up and watch it.

I hate you and the things that you do I hate your whole crew I keep saying we all hate you I am actually more pessimistic about the likely outcome in this case although I agree that at the arguments there was kind of much

rougher sledding for the administration than I expected going in I agree that the chief justice seemed pretty incredulous at some of the arguments that the Solicitor General was making on behalf of the administration, and that Gorsuch does seem to have reacquainted himself with his deep skepticism of extravagant claims of executive authority.

And I did think that Neil Cottrell, who argued on behalf of the small business challengers, was excellent. But I agree with Melissa on Barrett. I don't think that we can take her oral argument questions as predictive. And I also think the fact that there was the kind of Tuesday night hangover on Wednesday really did color the tenor of the arguments, and by Friday, when the justices actually sit down to cast their votes, things might look a little bit different. So I am not ready to say that they're likely going down, although there's certainly a chance. This is all fair, but just like

one more piece of evidence than I don't know which way this cuts. So on Thursday evening, before the justices met to discuss the tariffs case at conference, Barrett was hanging out with Brett Kavanaugh. And a part of me thinks hanging around the guy who likened tariffs to donut holes during the might make you see the arguments in support of the tariffs as kind of dumb. Like Brett Kavanaugh has no Riz. On the other hand, she was speaking, Barrow was speaking, with Brett Kavanaugh, to an audience at the Federalist Society about how being a conservative woman at a law school, quote, shows more feminism than anything else.

And the idea, I know, the idea that you would think, Brett Kavanaugh is the person who can tell women law students what feminism is, and that feminist is, and that feminist is, you means embracing the ideology of ending protections for reproductive freedom reminds us she's down for some pretty intellectually bankrupt arguments, reclaiming feminism with Brett Kavanaugh and whining about criticizing conservative students and the criticism they face on campus. But maybe we can turn to big picture argument themes. Yeah, yeah, sure. So let me just maybe say one more thing and then we'll turn to big picture, which is that I am a little worried that there were not more practical questions about what it would mean to strike down the tariffs, right? You know, would

there be a need and how would tens or even maybe hundreds of billions of dollars be refunded. There was one question about that laid in the argument. I thought that Cajell handled it well, but I think that that was basically it. So, okay, we have given our opening impressions, let's now turn to some big picture themes. One, does the made-up major questions doctrine

apply in this case, or is the doctrine only for Democratic presidents? The question is sort of bound up with the more existential question of whether tariffs are taxes and therefore are an executive power grab because only Congress actually possesses the power to tax. And spoiler alert, yes, tariffs are taxes, they just are. All right. So just to recap, the major questions doctrine is a court invented bit of fan fiction about how to interpret statutes that grant authority from Congress

to executive agencies. And during the Biden years, the Supreme Court was really enamored of using the major questions doctrine to strike down many Biden administration's programs. So they argued that where you have broad, very general statutes, like basically any statute that was passed in the 1970s, you can't interpret that statute to offer the executive a broad grant of power for a major policy program, particularly in circumstances where those programs would be economically or politically salient. Instead, you have to have Congress, make a specific grant of power in the statute to do that particular thing. And again, a statute from the 1970s that Congress wrote,

sort of trying to be broad and broadly textured so it could be used in the future, is not going to anticipate and contemplate everything that might come down the pike. But this is all to say that the court relied on the major questions doctrine to strike down several Biden administration policies, including the student loan plan. And the student loan plan, the logic kind of went like this. You can't do this, Joe Biden, because the statute, the Patriot Act, just says to modify student loan provisions. It doesn't say you can waive them entirely.

That is something that is of serious economic salience. Therefore, Congress in the Patriot Act has to specifically allow you to do that. Exit out, strike it down. One would think that the logic of the student loan cases would be pretty applicable here. because AIPA broadly grants the authority to regulate, but it doesn't specifically mention a program of tariffs or taxes. And so this seems like a policy intervention of major economic consequence, and for that, under the major questions doctrine,

you would need specific congressional authority, and that would mean that the Trump administration loses. And apparently, some members of the court took that person. Well, you know, the major questions doctrine didn't get a ton of airtime during the argument, but it was invoked in a couple of different directions. So Thomas actually asked in his first question about the doctrine in what we really call a very leading question. He basically said to the Solicitor General, tell us why the major questions doctrine doesn't apply

to the president at all. A magical thinking question. Exactly. But then several of the Chief Justice's questions of the Solicitor General, John Sauer, really seemed to suggest the chief thought the major questions, doctrine did apply. So the chief noted that past presidents have never used IEPA to impose these kinds of tariffs and that tariffs are consequential and controversial. And those are important buzzwords in major question doctrine land. So novelty and significance are the key criteria that the Supreme

Court has used when it is invoked the major questions doctrine in other cases, again, at least involving Democratic administration. So the big question is, are they relevant at all? So a related sub-theme was whether there is a foreign affairs exception to the major questions doctrine. I think John Sauer tried to sideline the major questions doctrine by suggesting that it just isn't applicable because tariffs are foreign facing and because the president has a broader range of powers, both from Article 2 and from whatever Congress has delegated in AEPA in the context of foreign affairs and the chief pushed back by picking up on something Justice Sotomayor had previously, noted, namely that tariffs are taxes, taxes that are paid by Americans as taxes on goods. The tax argument, I think, is especially significant here because the Republican appointees and their emotional support billionaires are absolutely united in their mutual antipathy

for taxes and flying commercial. So this is really critical here. So if the major question doctrine applies here, it would be because these dudes hate taxes. in whatever form it comes. Yeah, so I want to elaborate this on a little. Let's just take stock what this court thinks the president's foreign affairs power allows presidents or at least Republican presidents to do.

The foreign affairs power allows Republican presidents to discriminate against trans people by denying the passports. They literally invoked foreign affairs, you know, to explain their decision, as if France gives two shits about whether trans people have a passport corresponding to their gender identity, but I digress.

Foreign affairs also gives Republican presidents the power to decline to spend funds that Congress appropriated. That was the barely their logic. The court invoked to allow the president to cancel foreign aid funding. But this foreign affairs power, whatever it is, doesn't give Republican presidents the power to raise revenue. So major questions doctrine might not just end up being, you know, a doctrine that says Democratic presidents can't do things and Republican presidents can. it could also end up being a doctrine that says Republican presidents can do all things except raise taxes.

That's not a Republican thing to do. Right, exactly. And so I want to lay this out preemptively because I feel like it is a response, a preemptive response to something we are going to hear, which is if and when the court invalidates terrorists, that's somehow going to mean the court is above politics. And the fact that the Republican appointees pick the Chamber of Commerce and their billionaire best friends over the White House is not, in my humble opinion, exactly the best evidence that the court is apolitical.

Here's a deep cut for you. Do you remember this one? I don't know. Read my lips. No new taxes. No new tariffs either. Okay. That's an article too. That was for all the folks over the age of 50. I see you. All right. So in addition to the we hate taxes, no seriously we really hate taxes,

There was, again, this whole question of what can the president do in the context of foreign affairs? And is foreign affairs basically a get-out-of-jail-free card? And Justice Sotomayor brought this up when she said, you know, what if you invoked foreign affairs and said it three times like Candyman and then linked it to global warming? Would that be a situation where you had something global warming that was foreign affairs-related and significant in consequence? And that could get you out of the major question doctrine, because if that was the case, the major question's doctrine doesn't apply to anything, as long as you link it to foreign affairs. Right. And that would have meant that the Biden administration could have just pointed to foreign

affairs and maybe global warming to justify the greenhouse gas regulation the court struck down under the major questions doctrine, student debt relief, even, who knows. And actually, Sotomayor was not the only justice to bring up global warming and climate change in this argument. So one of the most shocking revelations to emerge from the argument was the possibility that Neil Gorsuch believes in climate change. So I know, I know, but listen, we're going to play you some tape. So Gorsuch asked the Solicitor General whether a president could impose a tariff on gas-powered cars to address the threat of climate change abroad, to which Sauer said. Obviously, this administration would say that's a hoax. It's not a real crisis, but... I'm sure you would.

You heard the disdain in that voice, right? That was striking. Our little stop clock, Neil Gorsuch. Neil Gorsuch drew the right lesson from Tuesday's election results. It's time to live out, America. Shout your pronouns, get woke, and stay woke. So you heard a little excerpt from the Solicitor General John Sauer on the tape we just played. And in the course of answering some pretty pointed questions, he just,

outdid himself saying some pretty ridiculous things. So he denied that Americans would pay tariffs at all, said it would just, said they would just stimulate the rebuilding of our hollowed-out manufacturing base. Okay. Although in that same response, he did admit that estimates of how much tariff burden is paid by Americans range from 30 to 80 percent. This is the administration's own lawyer. I mean, Sauer tried to characterize the tariffs as something like trickle-down tariffs, again we are at the Reagan building, claiming that they don't cost money because they actually benefit Americans. He is essentially trying to make it so the trickle-down tariffs piss all over the country while they are insisting that it's raining. So Sauer also referred to

the president's determination that trade deficits are country-killing, insisted that addressing those deficits would make America a strong, financially viable and respected country. It was just rhetoric that you don't ever hear in the Supreme Court. It was pretty wild in the briefs, and it was even wilder in the halls of the Supreme Court. Basically, John Sauer is the David Harbor of Solicitor's General. We cannot

trust anything that comes out of his mouth. We're not convinced he's not a shill for the White House. Again, just listen to Madeline. If you haven't listened to this album 50 times, like start to finish right now, what have you been doing with your time? Please do it.

So, you know, in many cases, a Republican administration, or at least this one, can get away with presenting Stephen Miller's diary and innermost thoughts as legal arguments because nothing matters. But in this case, the Republican justices may go meatloaf. They would do anything for Trump, but they won't do that.

Because in this case, the Republican justices are cross-pressured by their economic interests, their billionaire BFF's interests, the electoral landscape, and the need to sack up. So that kind of nonsense is not going to cut it. no intelligence insulting garbage. Right, but speaking of intelligence insulting garbage, we have to talk about John Sauer's rebuttal, right?

Yes. So in the rebuttal, John Sauer advanced the view that tariffs are lawful because they are regulatory in the sense that they aren't intended to raise revenue. They're just intended to encourage foreign countries to change their behavior. This is the carrot and stick kind of theory. In this case, he says, since they're just changing behavior,

no one is actually paying the tariffs. Therefore, there's no revenue raised, and this is not a tax, because I know how much you guys hate taxes. So this is one of those unfortunate lawyer moments when your biggest problem is your client, because as much as Sauer wants to engage in magical thinking about these tariffs, the president has four months of erratic, changes to tariff policy trumpeted the tariffs as a way to raise revenue, among other things.

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and use the code strict at checkout for 15% off. So let's move on to the second question slash theme in the argument. And this is where a lot of the action was, which is that Mr. Warren G question. Mr. Warren G. We're trying to find Mr. Warren G. Regulate. That is the question. What does it mean to regulate?

As we've noted, IEPA gives POTUS authority to, among other things, regulate importations, so the justices need to decide whether regulate importations includes levying tariffs. So justices Barrett and Kagan had the most pointed questions on this issue. Barrett's initial questions, as we noted, suggested she was skeptical that regulate importations includes levying tariffs. She asked the Solicitor General whether any other statute uses the term regulate to grant tariff power, and the Solicitor General couldn't come up with one. So he just, like, riffed on history for a little with some originalist hotboxing, which prompted a pretty epic intervention from Justice Sotomayor.

If you look at that history, the history of delegation. Could you just answer the justices question? I mean, the whole episode, have you seen the Princess Bride? Duh. You have? Yeah. Have you? Yes, many times.

Really? Many times. Okay. So it reminded me of that moment in the Princess Bride where they say, you keep using that word, regulate. But I do not think you know what it means. Like, it was that over and over again. No, no. The line is, I do not think it means what you think it means. Oh, okay. I have seen it. Okay. Okay. Okay. You've got some boots on and you're feeling yourself. Okay. I sure am. she was on board to shut this down,

I'm gonna tell you what the word was. That was, that's basically inconceivable. That was the word. Or at least it's not guaranteed. Because her later questions did suggest a possible opening for the federal government, so skeptical early on, but later she notes that IEPA does allow the president

to by means of instructions, licenses, or otherwise regulate. And she noted that licenses are like licensing fees, which are kind of like tariffs, so you can sort of see, maybe. If the statute does specifically grant the president the authority to regulate by tariff-ish power, maybe that includes the power to straight-up tariff as well.

So I really thought this was a stretch on her part, but she really did seem to think that she was doing something. But again, I don't see how a license is like a tax unless you think about the tariffs as just generally a license to make everything costs 40% more than it should. Also, her intervention there is, I think, completely inconsistent with her bananas take in the National Institutes of Health case.

So there she insisted that challenging canceled NIH research grants require grant recipients to go to both federal district court and the court of claims, an arrangement that makes zero sense. And when the other eight justices told her that made no sense, she was like, oh, well, that's just the decision. Congress made, but now she's trying to interpret the law so that Congress's choices make some

sense to her. These two things just do not coexist. But on this question of regulate, Justice Kagan got in on it as well, and she was ice gold even for her. At one point, the solicitor general said, look at all the verbs in IEPA. All the actions the president can take, to which Justice Kagan responded. It has a lot of verbs. It has a lot of actions. can be taken under this statute. It just doesn't have the one you want. Ouch. Ice cold.

But then the kind of true dagger might have come later when Sauer tried to tell her that there are limits on the president's tariff authority because Aiba can only be used for national emergencies. And Kagan shot back. Well, you're arguing the president's declaration or determination of an emergency is unreviewable. And then she said, we've had cases recently which deal with the president's emergency powers.

And it turns out we're in emergencies, everything all the time, about like half the world. So that's not really the limit that Sauer seemed to suggest it was. Yeah, she was pointing out all of the Trump cases that insist there are a cagillion different emergencies. So Kagan also pointed out that the Trump administration's claim that AEPA authorizes tariffs would allow the president to basically avoid the many limitations Congress has created in the corpus of actual tariffing statutes. because Aipa says nothing about tariffs, but there are lots of statutes that do give the president some tariff authority, and it doesn't make any sense to read AEPA

to allow the president to disregard all the conditions and limits that exist in these other statutes that really are about tariffs, or all those statutes would be totally meaningless. There were also questions at the argument about how to read the statutory context, so what were the animating principles behind Aipa? And Justice Jackson really press,

this point, noting that, quote, some of us care about legislative history, and then she shot a look at Brett Kavanaugh. No, I don't know. I don't know what she did. I'm making that up. Your mind she did. In my mind she did, correct. Anyway, this is all

to say that this nod to legislative history opened the door for Coach Kavanaugh to decide to get to the free throw line and toss some airballs. So he had some incredibly... Melissa, did you just do a sport? I did. I did a sport. I did a It's so nice of you to put this in words that Brett will understand.

And sports and also Tricky Dick really are his metier. Sports and Nixon. Yes, because in Kavanaugh's view, Aipa's origin story is actually that Nixon imposed some balance of payments tariffs. Court of Appeals upheld those, and in response, Congress enacted Aipa, which according to Kavanaugh ratified Nixon's theory of presidential power to tariff. I, honest to goodness, did not realize that Brett Kavanaugh was such a fan of legislative history. This is a little bit like the guy holding a book looking at a butterfly meme, but with Brett Kavanaugh pointing at legislative history and asking, is this textualism?

The way Brett Kavanaugh stumbles through oral arguments makes me think we're like an argument or two away from him just interjecting at some point, six, seven? It could happen. And it's also at least conceivable that there are that many votes against the administration. Like, it is possible. But Kavanaugh's attempts to rely on legislative history just didn't really square with the history of what Congress was doing vis-a-vis tariffs at the time. It limited tariffs in response to what Congress had done. So it would be weird for Congress than a few, in response to what Nixon had done. It would be very strange for Congress then to authorize much more sweeping tariffs.

And even Sam Alito seemed to recognize this. Now it is time for our regularly scheduled segment. We need to talk about Justice Thomas with an addendum and his band of lost boys. So at various points during the oral argument, it sounded like Justice Thomas, Justice Alito, and Justice Kavanaugh had decided to join forces to find a way to rationalize the tariffs. And I have to say, I'm not sure that they really hit this one. This was not terribly successful. So during John Sauer's argument, Justice Thomas was basically serving as his second chair,

running interference, throwing out friendly questions, throwing out lines of argument in support of the tariff. So he was putting in work, more work than I've seen from him in a while. It was also, Alita was basically doing the same thing. At one point, he started just throwing out possibilities of different statutes the president might invoke that the president hadn't actually invoked,

as authority for the tariffs, which if you're a government lawyer asked to find some authority to tariff beforehand, that's fine. But if you're a SCOTUS justice reviewing the legality of already imposed tariffs, it is not how it is usually done. Yeah. So Kavanaugh was like really also struggling, struggling to figure out the whole textualism thing. So he attempted to invoke common sense, which is what he gestured to, of course, in the ICE

racial profiling case. And we know how well that went. and, you know, on the common sense tariffs issue, you know, Kavanaugh acknowledged that maybe the text of the statute doesn't really give the president the authority to tariff, but he insisted it does give him the authority to do some really big things, like cut off all trade. So if it gives him that bigly authority,

then maybe it also secretly and silently and not so much in the text, but who cares about that, also gives him the authority to tariff. Right, so that was something I think Justice Barrett really picked up. on. And she actually massaged it into something that almost sounded kind of smart, right? So basically she refashioned this Kavanaugh thought bubble into what I call the lesser included argument, which is the idea that if Congress grants the president the power to levy embargoes

cutting off trade, why would it balk at letting the president do something lesser, like impose a tariff? So this is kind of like a Lily Allen move that I think Justice Barrett was doing. She took the pain of being subjected to Brett Kavanaugh's thoughts and turned it into art. Okay. We are going to do a lightning round of a few final notable quotables or moments from the argument. First, just like, I don't get this, but it's true. Some of our listeners cannot tell Melissa and Leah's voices apart. I know. But it seems the chief also struggles to tell Justice Sotomayor and Justice Kagan apart. So after Sotomayor finished her question, the chief proceeded to call on the next most senior justice who would be Kagan, only he, well, we will play the clip here.

Thank you, Kelsen. Justice Sotomayor. No, she's a Justice Sotomayor. She just finished. Justice Kagan. And they're friends? Awkward. It's those women ruining the workplace by being so deep.

difficult to tell apart. Briefly, we should just mention, since we haven't, that Justice Gorsuch, as Melissa predicted on an earlier episode, tried to make the 1930s great again by invoking and gesturing towards the non-delegation doctrine, this idea that there are limits to what Congress can grant the executive branch, the authority to do in general terms. The idea threatens to undo most of the federal government as we know it today. And of course, that means that Neil Gorsuch is hot to trot with it. Well, I hated it. But what I did not hate was the dulcine. it sounds of Samuel Alito slapping the lectern with his hand out of sheer annoyance and frustration

because he felt so defeated on the heels of Tuesday evening and so annoyed that this court could not find it in themselves to uphold these tariffs. His heart wasn't even in this argument. Like he was completely checked out. A sad, sad man. It's giving four Chan Stan or four chan sam deep cut deep cut all right so we will i think leave it there that was the tariff argument i actually feel more optimistic after this conversation than i did after listening to the argument so maybe they're going down what a surprise what a shot she doesn't usually feel more optimistic after hanging out with us usually they bring me very far down yeah um you know it's not clear if the president was briefed on how the arguments went you know on one hand it was reported that he quote heard the arguments

went well. On the other hand, later on Wednesday afternoon, he was threatening to go to war with Nigeria. So who is to say? And speaking of the president having a normal one, we need to talk about the president's efforts to not only usurp congressional power, but also to stop Congress from using its powers. And to have that discussion, we are joined by a very special guest, one of New Jersey's finest. Better than the boss. Better than Bon Jovi. and certainly way better than Samuel A. Alito. We are joined tonight by Representative La Monica McIver of New Jersey's 10th District. So we should just set the scene a little bit. Someone we often talk about on this podcast, the Attorney General Pamela Joe Bondi,

has decided to unleash the DOJ against you for doing your black job. which is being a representative deep cut pre-election cut being a representative and being a member of a committee that literally is charged with doing oversight of Department of the Department of Homeland Security and so tell us a little bit about what happened here first of all thank you so much it's a pleasure to be here with you all thank you so as many have been following you know I showed up to Delaney Hall, which is a detention center in my district, in my city that I represent to do my job. We have, as members of Congress and on Homeland Security, we have the right to go to a detention center and inspect these facilities, make sure that they're running up to par. People always talk about this whole immigration thing with me and like, hey, you know, what's your policy?

Look, I didn't come to Congress with a strong immigration policy. I didn't have that on my number one list. I came to Congress to protect the people who elected me to protect them. And that is the reason why I went to Delaney Hall to go and make sure that folks who were being brought there were being treated with dignity to make sure that they were following processes and procedures. And that's what brought me there to simply do that along with my colleagues. And so, you know, everything else was what they caused, you know. But really, I was just there to protect the people that elected me to do so and to make sure things were going right at that facility. So, okay, so as you alluded to, House rules and an appropriations rider actually contemplate committee members getting involved with overseeing DHS activities.

So this is squarely within the scope of your legislative authority. And on that day, the day that you visited this facility in Newark in your district, you and two other members of Congress were there. The mayor of Newark, Ross Baraka, came to the facility, wound up getting arrested. and the federal government alleges that in the course of his arrest, you came into physical contact with ICE officers. But you were not arrested on that day, right? You actually got a tour of the facility

after all of this transpired, and almost two weeks later, you find yourself charged by criminal complaint with assaulting, resisting, or impeding a federal law enforcement officer. This is so surreal. Who later gave her a tour? The same day, gave you a tour.

So can you just tell you, Tell us a little bit about what your reaction was to learning of that complaint and what it has meant to have this criminal case hanging over you. Yeah, so, yes, we got a tour after we like beat up officers. Well, I beat up officers. They then gave me the same people that I beat up, then they then gave me a tour, and they offered me a soda because we were parched. So just imagine that. I mean, we were getting, you know, Haba, Alina Haba, who was the, well, I don't know, is, was how, I don't know. Who is to say?

I don't know. She was a servant as the acting assistant attorney. She was calling my lawyer every day for two weeks threatening. Like, hey, we're going to do this, we're going to do that, we're going to charge her. I mean, literally, it was back and forth for so long. But then, like, one night I'm like just got from the Capitol winding down for dinner. And I just get, like, all of these massive text messages of screenshots from Twitter. And I'm like, wait, what's happening?

Like, why are people sending me screenshots from Twitter? I mean, usually it's of like Donald Trump stuff, and I'm like looking, and it's a tweet from Alina Haba's account saying that I'm being charged. And I'm like, oh shit, I'm being charged. Like, I can't believe this is happening. And so it was just really surreal, number one, to be learning about these charges on Twitter. My legal team at that time was trying to find the actual complaint, which was nowhere to be found. They didn't find it until the next morning when it was like, I guess, loaded into like the system or whatever. And it was just really shocking.

It's been, you know, extremely stressful at the same time because, you know, I'm facing 17 years for doing my job. It's been stressful on my family, you know, stressful on my 9-year-old daughter. And, you know, just going through this just for simply showing up to do my job. And it's been expensive to say that because we actually have to fundraise to pay for our legal defense. We can't get free pro bono help that's against house ethics. And so we're like busting our buds trying to pay, well, I am and my team and, you know, the folks that are here with me, my lovely ones who are helping with this, but we have to pay for it. You might need an emotional support billionaire.

Yeah, I do. I do. Anybody out there see me after. Please. I know some folks who might be able to make a referral. Fundamental problem is that's not how we roll. Right. That is the fundamental problem here. And we should just say as to the case, you have there is pending motion to dismiss on the grounds of vindictive and selective prosecution, a motion to dismiss on the grounds that the Constitution explicitly protects members of Congress from being punished for the speech and debate that they engage in. And I will note that that is in real contrast that specific constitutional immunity to the wholly fabricated presidential immunity that this Supreme Court announced back in June of last year. And so those motions to dismiss the case by your excellent legal team are pending right now. Yes, yeah. So we're literally waiting for an opinion from the judge to come down any day now. It was supposed to be on Tuesday.

Hopefully it won't be announced on Twitter. I highly doubt it. But we're waiting for an opinion any day. Yeah. And it was, you know, the immunity opinion, the atextual immunity opinion that Kate is alluding to, I think that has enabled, you know, some of this administration's abusive exercises of law enforcement. authority, because if you look at the list of Democratic officials or candidates that this

administration has arrested or charged, it is staggering. You know, it includes, I mean, not a former Democrat, but FBI director, Jim Comey, California Senator Alex Padilla, New York City's comptroller Brad Lander, New York Attorney General, Tish James, and of course, Trump has threatened, you know, other arrest or charges. You know, I guess, Representative McIver, how do Democrats challenge ICE enforcement, you know, whose abuses we are seeing every day, many fold, including those aspects that appear illegal, while contending with the prospect of retribution.

Well, one, we have to keep doing our jobs, right? That's the number one thing. This whole situation, while I'm going through it, it's bigger than me, right? This is a systematic effort to try to scare leaders from doing their jobs, to try to make them shut up, get out of the way, stay in the corner. And since this has happened last May, I tell colleagues, and some of my colleagues have stepped up. They've gone to these facilities. They've challenged what they are doing, and we have to continue to do that.

We have to hold this administration accountable and not be scared to do that. And I can understand why it's scary, right? I mean, no one wants to be, you know, facing 17 years in prison for just doing their job. And so it's scared the hell out of people, you know. And people have the right to be scared, but when you're a leader and you have been elected, people have chosen you to represent them. You have to find your political courage

to step up and represent them, you know, and use your power to do so. Speaking of holding this administration to account, the people did so on Tuesday with that big blue wave. That in true Hurricane Melissa Fatham, crashed all over New Jersey. So we saw big wins all across the country

in unlikely places. What do you think this blue wave should mean for the Democratic Party and how it messages going forward? Yeah, well, look, I'm not a pollster. I don't know like what the polls are saying or what Democrats should be doing, but I know the one thing we should really be doing

is number one, continuing to focus on people's problems and focus on making people's lives better. When I was out there campaigning with Mikey Sherrill, which we had some, on top of getting Mikey Sherrill elected, we had wins up and down, New Jersey. We flipped a lot of red assembly seeds. I mean, just wins. And we needed it, okay? We needed it.

It was like a renewed hope for me. I was like, yes, I almost forgot what it felt like to win. And so we were truly excited about it, but many people were very frustrated about, like, what is happening nationally. I mean, we were in the middle of folks not getting their SNAP benefits, people receiving letters for health care premiums rising. I mean, all of those things matter to people, and they were tired. And so I think they totally rejected Trumpism that day on Tuesday. And I keep saying it was the first day of the last days of this president and his administration.

And so we have to keep it up, right? We have to keep it up. We can't just, you know, take the win on Tuesday and go crawl back underneath. our beds. Like, no, we got to keep the momentum going, keep pushing, keep moving forward until we get to midterms. And so that's what we need to keep pushing and worrying about people's lives and how we are really focused on people's problems. Well, so I think that's a good place to leave it. We basically have to keep the fight both politically and legally, and it's an incredibly inspiring message that even as you are being

targeted and the way you are, like, you're not going to do anything different or something. up fighting for your constituents and for the values that you believe in. And so we all need to follow your lead. So thank you so much, Representative McIrvers. Thank you, thank you. Representative LaModica McIver! Thank you. Strict scrutiny is brought to you by Mosh.

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tariff-related games in store for you. Here's how it's going to I'm going to share a grab bag of tariff-related questions. I will put the questions to Kate and Melissa. Obviously, audience, feel free to play along and quiz yourself, but here are the stakes for you too. Whoever loses has to say something nice about Sam Alito. Or John Lovett, other than his SAT score, Melissa. L-SAT score.

Say nice things about John L-Ovett, even if I win. Okay, first question. Question. Which of the following items has Trump not tariffed? One, fentanyl. Two, upholstered furniture. Three, small trucks. Four, wines, champagne, and alcohol products coming out of France. Ding, ding, ding.

Which one? Small trucks. Kate? Trucks. Okay, that is correct. He is only tariffed medium and heavy duty trucks or heavy, all caps, big trucks. Okay, next one. We got a tie going. Next question.

Which item has Trump specifically announced he is not tariffing? One, Coca-Cola products or ingredients. Two, gold. Three, computer chips. Four, silver. Gold. First of all, I really like this voice you're doing, Leah.

Thank you. I'm going with Coca-Cola products. He's a big Diet Coke drinker. I'm going with Coca-Cola products. I'm going with gold. Melissa wins. Kate, start thinking of your compliments. The gold, Kate.

Everything in Mar-a-Lago is covered in gold. But he does drink, I think, Diet Coke. Anyway, you're right. Gold was clearly, was right there. Okay. Number three, the president has announced a number of products that will be tariffed in the name of national security. Which of the following products did not make the list?

One, bathroom vanities. Two, steel. Three, upholstered furniture. Four kitchen cabinets. I literally just did this one, so steel. No steel tariffs. Bathroom vanities. You just did that to be nice, Melissa.

The last answer is he didn't tariff steel in the name of national. national security, only bathroom vanities, upholstered furniture, and kitchen cabins. I have to take the train back with Kate tomorrow. Okay, that's fair. It's fine. We have a few others. Already asked me for the window seat, and I still have.

Okay. The president has a real brain trust advising him on tariff policies. Which of the following people is not among the brain trust he has explicitly turned to? One, Scott Besant. Two, Jared Kushner. Three, Wayne Gretzky. I'm going to say... I think it's Kushner, right?

NYU Law grad, Jared Kushner. Correct. Jared Kushner is the one person. The president has not explicitly invoked as a source of how he should tariff and what he should tariff. Wayne Gretzky is a hockey player from... That's correct.

From Canada. Yep, yep. Right. I wonder how Wayne Gretzky felt about being punished as a Canadian, anyways. And Melissa just did more sports. Yeah. That was awesome. Well done. We're all growing. Okay, so for the next series of questions, the question is, did the following statement come from a truth social post or one of Solicitor General John Sauer's briefs? Is both an option? No. Okay. Only one. quote one year ago the United States

was a dead country both okay fine that's truth social truth social John sour John sour is the answer what Donald Trump said is

quote one year ago America was a dead country not the United States was a dead country I think I should get credit there trick question I'm sorry You're slicing the bologna awfully thin. I'm just saying, okay, one more. No, two more.

Okay, what? How about a ruling against the tariffs quote would mean the economic ruination of the United States? Ruination is a big word. Okay, sour. I'm going to say sour too. Donald Trump! Say how about thesaurus over there?

Sauer's version was, the economic consequences would be ruinous instead of unprecedented success. Not going to lie, works better. Okay. Last one. Who's winning at this point? Me. Okay, I thought so.

Okay, I guess if it's a tie, you both have to say nice things about Sam. So think about that. Or John Lovett. Okay. Next question. The tariffs are, quote, being paid by countries that have so badly abused us, end quote. I'm doubting myself, but that has to be Trump. I'm going to say Trump to you. John Sauer! It's like that thing where

dogs start to look like their owners. Okay, so Melissa wins. Kate. Well, I want to say something nice about John Lovett, though. Okay. I mean, you can do that. I'll let Kate go first. You go first. You say something nice about family. I'm going to say something. No, I want to do something nice about Love it. You have to say something nice about both of them. Okay. Sam Alito. Okay, this is inspired by Representative McIver.

Sam Alito genuinely loves the great state of New Jersey. He does. And I think that's nice. Sean Love it? He once helped me rewrite a presidential memorandum to really make it sing. And I'm grateful. I don't know if I've ever thanked him for it. Yeah.

Yeah. I like drafted it, but I needed a little poetry. And he could really inject that into some presidential statements. So, yeah. All right. My turn? Yes, it's your turn. Well, obviously, I think Sam Alito has amazing skin for a septuagenarian.

So I've sat that before. About John Lovett. So I think it was maybe a year and a half ago. I showed up for Pod Save America in Brooklyn, and John was there. And he was wearing this shirt that was made out of Terrycloth. and I thought, wow, that's great that he recycles his towels. Is that something nice? Yes, I thought it was upcycling, and I thought that was inventive and clever.

Wow. I hope you never compliment my fashion choices, Melissa. It was a compliment. It was. Okay, okay. So, like if you're sweating and you've already got a towel on, that's amazing. Again, it's not. registering. We're going to have to invite him

onto the show now to kind of respond to Melissa. John, please come on. We love John Lovett. We do. We do. He graciously played J.D. Vance. He played J.D. Vance. He also did Sam Alito. Exactly. So... Actually, some of the most epic episodes of our podcast ever. He is incredible.

That is all we have time for as far as the game. We wanted to give a very special thanks to our intern, Jordan Thomas, who had to read every Donald Trump truth, social, post to help us prepare for that. And for that, we are genuinely sorry. Feels like it might warrant hazard pay. I think he had to take a leave of absence from law school

afterwards. It gets even worse because he did this during his birthday week. So, happy birthday, Jordan. Let's end with our favorite thing. So in addition to Jordan, who is definitely one of And John Lovett. And John Lovett, not Sam Alito. Let's do some favorite things. Let's do it. We're going to try to end, actually, on a few uplifting notes. So one of my favorite things in the last week were the Thursday dispatches from the courtroom of Judge Sarah Ellis in Chicago, who's presiding over the challenge to, yes, let's clap.

I mean, give it up for Judge Ellis. And the team of lawyers challenging the egregious DHS tactics on the ground in Chicago. So in her ruling granting the injunction against DHS's truly conscience, shocking conduct in the city, she read in full in the courtroom, Carl Sandberg's poem, Chicago. And so as a Chicagoan, you're going to have to indulge me, just read like two lines of it. So she read, I turn once more to those who sneer at this my city, and I give them back the sneer and say to them, come and show me another city with lifted head singing so proud to be alive and coarse and strong and cunning. And the dispatches from in the courtroom were like, not a dry eye in the place.

Like, this was these lawyers and the courtroom staff have been working around the clock in the last month to put together this body of evidence that makes quite clear how egregious and unlawful DHS's conduct has been. And so this was sort of an uplifting culmination of that process. Two more quick things. One, M. Gessens, How to Be a Good Citizen of a Bad Country, Essay in the Times. last week I found really bracing and a really fun spread in New York magazine maybe a week or two ago

but on the 25 young-ish new Democrats to watch is the title of the piece I knew some I hadn't heard of others and keeping it strictly Midwest I'm going to shout out Rebecca Cook running for Congress in Wisconsin's third district but it this week you know gave lots of reasons for hope

and that spread had you know 25 or it had a number of examples in the 25 that I was excited and hopeful about so I'll stop there I think one of my favorite things or my favorite thing is probably going to be in the same register, and that is Zoran Mamdani's victory speech. Something for everyone. There was petty wishing Andrew Cuomo the best in private life.

There was inspiration. He quoted Eugene Debs. There was pro-fight. You know, in order to get to any of us, you have to come through all of us. It was perfection. So that's my favorite thing. I also wanted to, since we were doing some audience shout-outs, Give it a shout-out to David Koss, who is in the audience.

He put together a book event for my recent book, Lawless, at the University of Michigan Book Club. So go blue, and thank you, David. And while I have the mic, if you still haven't gotten Lawless, you can at bookshop.org. Get it now. Show everyone that, unlike some people, Brett Kavanaugh, you can read.

All right, so my first favorite thing this week are all of the smart ladies on Twitter who just keep dunking on Ross Duthat. So keep it up, ladies. It's us, the work-rooners. Yes, we ruined the workplace just by being ladies and having lady parts. Speaking of very smart ladies,

my second favorite thing is the can't win victory fun. there are some ladies in North Carolina, and they have the most epic idea ever. They want to recruit candidates to run as challengers in hopelessly gerrymandered districts. And as they explain, because the maps are so distorted and rigged, these district races are unwinnable. They're also typically unopposed races because they are unwinnable. But uncontested races means that lots of voters don't even show up to vote because they think their votes don't matter. That's part of the problem of gerrymandering. So this is what they're trying to do. They're trying to recruit people to run as challengers, and they're very clear, you're going to

lose. You're going to lose big. But by losing, we can actually win. First of all, we will be making these candidates in the hopelessly rigged districts have to work for it and possibly piss them off. So petty as fuck, and I'm here for it. We get to tell the truth about their shitty policies. We get to organize voters in the process. We recruit future candidates for races that might be winnable. And most importantly, we drive up voter turnout statewide. So it is absolutely brilliant.

Basically, it's like love actually. Let's go get the shit kicked out of us for democracy. Right? So let's do that. You can check them out. You can support them at WWW. can't win victory fund.com. All right. So my last favorite thing,

election night parties. And I went to a great one in New York City where I met a fan of the show. He was a very tall, strictie, with dark hair and a beard. And he said he absolutely loved the show. What was his name? It was really loud, so I honestly didn't hear it. I thought it started with a Z. We'll leave it there. We'll leave it. All right, D.C., you have been absolutely incredible. So, listeners, after our live show, specifically at 9 p.m., something on a Friday night,

we got some SCOTUS action in the SNAP challenge. I wanted to explain what it is because this is a super important case and the actions are somewhat complicated. So as you all know, the Trump regime has refused to pay out SNAP benefits, which is the Supplemental Nutritional Assistance Program to some more than 40 million people. This is truly sustenance for them. It prevents people from going hungry, being malnourish, starving. And this includes people who can't feed themselves adequately, even though they are employed. So two district courts found the administration's actions invalid, in part because Congress had set aside contingency funds that had been set aside to ensure SNAP would be available in the event of a shutdown and whatnot. And Trump initially indicated he would comply.

he said he was just waiting for directions from the courts about how to do so. But then he changed course. Anna True Social said, quote, snap benefits will be given only when the radical left Democrats open up the government. This is basically close to just outright declaring he wasn't going to comply with the lower court orders. So plaintiffs returned to court asking for enforcement. And one of the district courts found the administration was in violation of the

previous court order and ordered them to pay out in full the snap benefits. Okay. Now things get additionally complicated. administration went to the First Circuit Court of Appeals asking for a stay. That court, after some initial delay, denied an administrative stay. But they didn't rule on the actual stay request. At the same time, the administration is up at the Supreme Court asking for an administrative stay slash stay. Okay, so with me to explain what the F is going on is the truly incomparable Steve Vladick, author of the indispensable one first substack. He has a longer post kind of explaining some of the dynamics

here. That's definitely worth checking out. But Steve, thank you so much for joining. Sure. Great to be with you, Leah, although this whole case makes me very mad. It's enraging. Okay. So I guess first, like, can we just set the table a little bit and explain the difference between an administrative stay and a stay because that is where some of the action is here? Yep. So I actually think it's helpful to talk about three different things. So, you know, from a sort of big to small, right? So when a party loses in a district court, the first thing they'll do is they'll appeal. And the appeal is like the whole like, hey, appeals court, you should reverse the lower court.

The full case. The full case, right? If there's enough of an emergency, right, the party might also ask for a stay pending appeal, meaning pause the district court ruling for the duration of the appeal however long it takes. and that could sometimes be years. And then there's the, oh, by the way, it might take you some time to decide whether to issue a stay pending appeal. And so you should issue a what's called administrative stay, which is a stay just for long enough to decide if you need to issue a stay pending appeal. A stay pending a stay, if you will, although no one likes that formulation. Right.

Okay. So again, just to recap, the U.S. Court of Appeals for the First Circuit denied an administrative stay. has not at the time we are recording ruled on the stay request itself. And, Leah, one more complication here, which I think, I mean, you know it was sort of baked in, but we should say out loud, Judge McConnell's order required the Trump administration to fully fund November SNAP benefits by the end of the day on Friday. And so, as opposed to so many of the other emergency applications from the Trump administration, this one actually did have a ticking clock. Yeah, it was time sensitive. Okay, so Court of Appeals denies the administrative stay, but still hasn't acted on the same. Like 6 p.m. somewhere around there. Right. And then 930, 9.40-ish p.m. We get an order from, I think, a somewhat surprising source. So, Steve, can you explain, like, the order we got and who issued it? And then we'll dive into, like, what might be going on here. Yeah, mystery justice. So the order came from Justice Katanji Brown Jackson, which, um,

In the abstract, should not hopefully have surprised court watchers at all because she is the circuit justice for the First Circuit, which, you know, Leah, as you know, means she gets all of the emergency applications from any court, federal or state within the First Circuit, including in this case the First Circuit itself. So by rule, the Trump administration's application went to her in the first instance. It's also usually the case that it's the circuit justice and not the full court that will issue an administrative stay in those cases in which, you know, they believe the circumstances justify it. There's only one recent example that I can think of where the full court acted before the circuit justice, and that was the similarly compressed crazy Texas

alien enemies ruling from April. Right. And so, you know, it went to Justice Jackson, but Leah in a context in which she really wasn't acting all by herself. in which, you know, there was the specter that if she didn't act the way that a majority of the court wanted her to, they would have just taken it out of her hands and ruled themselves. Right. And so there's this convention where, like, the circuit justice will refer a matter to the full court. But, like, let's hypothetically say Justice Jackson had denied the administrative stay. Like, could the government have then gone to another justice or the full court to request the same? So the short answer is, by rule, yes, the rules expressly allow to go to a second justice.

the convention at the court is then it goes to the full court. But even internally, I don't even think it would have gotten that far. I think, you know, by 7 p.m., if she had not already been, you know, kicking the tires, there would have been sort of a vocal, I think, majority of the justices who would have been willing to issue an order without her. And that's what happened in the AARP Alien Enemy's case in April. The court basically ruled without Alito. So, you know, from that perspective, I think that helps to contextualize what she did.

So Justice Jackson issued a two-page order, which, by the way, of itself, like, administrative stays are usually one paragraph of boilerplate. So the second I saw it was two pages, I was like, interesting. Yeah. And, you know, she doesn't say a lot, but she says two things that I think are really telling. So the first thing she says is that she's issued the administrative stay not to buy the Supreme Court more time to rule on the state pending appeal, but to buy the First Circuit more time to rule on the state pending appeal. Of course, who is she buying that time from? She's presumably buying it from a majority of her colleagues who would otherwise have jumped over the First Circuit. Right.

Right. So the first thing is that the way she moved by issue this administrative stay kicks the case at least first. the moment, and maybe by the time people are hearing this, it's done, right? But at least made the first circuit the next mover on the state pending appeal. And she says, and I expect you to resolve the stay pending appeal, in her words, with dispatch. Yeah, and with dispatch. So that was number one. But then the thing that really persuaded me that she had been playing like three-dimensional chess here was the last sentence of this order, where she says, and my administrative stay will expire 48 hours after the First Circuit rules up or down on the state pending

appeal. And, you know, and that's really important because it basically forces the Supreme Court to do something, right? Even if that something is extending the administrative stay within 48 hours of a First Circuit decision versus the court maybe just sitting on it indefinitely. Yeah. And so I wanted to expand a little bit on why I think that aspect of it is quite important because, one, had the full court been the institution or actor to grant the administrative stay, I think it is quite likely there would not have been a deadline on the administrative stay. And what that potentially allows the court to do is just not act on this snap case for weeks, if not months. And that is especially perilous in this situation as individuals' lives are at stake.

and as states are trying to decide how and when they are going to be able to make representations to people, that they will actually receive their SNAP benefits. And so by providing a timeline in which people can expect there to be a decision from the Supreme Court is quite helpful. And second, I think it focuses attention on the court for that duration in a way that is quite useful. Whereas if the court had just granted an administrative stay that might be of indefinite duration, you know, to the extent people want to push the court to, let's say, not let the Trump administration starve people as a bargaining chip in the government shutdown, then saying this is the 48 hours in which they are going to do something, I think makes that easier and avoid some of the lack of accountability

around the shadow docket. And just to sort of amplify this, I mean, two data points that I think will drive home why that's such a concern, you know, just on Thursday in the, in or the passport case, that ruling was decided 48 days after the administration first sought emergency relief. And, you know, there wasn't an administrative stay in that case. But in Wilcox, in which there was an administrative stay, there was fully five weeks between when Chief Justice Roberts issued his administrative stay and the full court ruled. So, you know, it is absolutely true that the full court could still do what Justice Jackson might reasonably have worried about Friday night. That is to say, extend her administrative stay and make it open-ended. But your last point, Lee, is so important, right? Now, instead of that

being the first thing the Supreme Court does, now that will look like a conscious choice to depart from the compressed schedule that Justice Jackson has created. Yes. No, exactly. And just one more, I think, data point in this administrative stays can sometimes be like the ball game and really meaningfully change. You know, in the foreign aid funding case, you know, the chief justice issued an administrative stay, and that administrative stay lasted past the enforcement deadline in the lower court order. And so what that meant is the administrative stay basically pushed us past the point that the court had ordered the government to pay out the foreign aid funding. So then the court, right, doesn't actually have to do anything. And the government isn't under a compressed

deadline, right, to actually pay out the foreign aid funding. They draw out the litigation, They eventually go back to the Supreme Court, you know, like months later. And then the court says, actually, you don't have to pay out the money. And I think that that, again, like really removed a layer of accountability for the Supreme Court's actions in that matter. And I think it's fair. I mean, it's more than fair at this point for listeners to say this is a heck of a lot of procedural inside baseball when we're talking about people not getting food. And I hear that. I just think that the question that were sort of.

circling around is what else could and or should Justice Jackson have done on Friday night? Because, you know, for better or for worse, it was Judge McConnell's order that created the immediate judicial emergency. I mean, of course, the shutdowns, the real source of the emergency here. But, and Jackson had to do something. And the Trump administration refusing to use the contingency funds or the money, right, in the Department of Agriculture Fund from the terrorists that aren't revenue raising, et cetera, et cetera. As I wrote, as I wrote in my post Friday night. Like you can, you know, Justice Jackson is six on the list of who's responsible for this. And I know a lot of folks were very surprised that she didn't do something more

critical, that she didn't, you know, stand up for people going hungry. And I think that the reality is that her options were limited. If you start from the assumption that I think you and I both do, that if she didn't issue an administrative stay Friday night, the rest of the court would have. Yes, exactly. And that administrative stay would have looked different and would It would have looked different and it would have, and it almost certainly would have guaranteed that the full court would have taken longer. And here's, I think, Leah, the most important part. It would have cut the first circuit out of the loop.

Yes. Right? And, you know, go back to the sort of what I thought was the first important thing that Jackson did in her order, which was to structure the stay in a way that really kicks this case back to the first circuit, which now presumably is going to write an opinion. Yes. You know, I mean, I think you and I probably both assume that it will deny a stay pending appeal. Yes, given that they deny the administrative stay. But that'll come with reasoning. And

there hasn't been a lot of reasoning in this case yet. No, there has not been. Okay, so hopefully that helps people understand, you know, what is going on and also what we are waiting for. Again, what we are waiting for at this point is the U.S. Court of Appeals for the First Circuit to issue probably an opinion about whether they are granting or denying a stay pending appeal. That will set off the 48-hour clock for the Supreme Court, you know, to then make some interim. intervention in the case. And at the risk of saying something that will almost certainly be moot by the time anyone hears it.

You know, my best guest, Leah, is probably Sunday or Monday for that ruling from the First Circuit, which, you know, means it's back in the full Supreme Court, you know, Tuesday or Wednesday. Yep. And, you know, I could see a world in which even Justice Jackson might extend her administrative stay a couple of days if she thinks the court is moving toward a decision. So it's possible that the first thing we'd hear from the Supreme. court is a non-indefinite extension of that administrative stay. The key, though, and I think

this is just maybe the last point to harp on, is nothing the First Circuit does or has done by the time people listen to this will change the legal status quo. Right. McConnell's orders remain blocked until they are either unblocked by Justice Jackson or by the full court. Yep, exactly. Okay. So again, Steve Fladdick, thank you so much for hopping on to give this update over the weekend. Listeners for more, please, please, please subscribe to Steve's one first. He has an excellent post on this now. That was literally issued kind of real time with this to help explain everything that is going on. And again, yay for plain Wi-Fi. Right. Yeah. Really appreciate you doing this. Steve, given the stakes of this case, are so momentous. You know, we wanted everyone to know what is going on. We will, include a link to Steve's posts and one first in the show notes. Thanks for having me. And I'll just say, you know, I know we often feel powerless to deal with the Supreme

Court. You know, here's one place where I think we actually can do stuff. If you have the ability, support your local food bank, support your local communities who are, I think, especially in some states, really feeling the brunt of this. And there are also like community restaurants, right, that are donating meals, right? You can support them. But I mean, I just like, like, for once, here's actually something tangible that folks who have the ability and the wherewithal can actually do to try to mitigate at least some of the

damage of what's happening. Yes. Agreed. So one other last note. As listeners heard, I gave one last plug for my book, Lawless, at the live show. And I am actually running a giveaway this week. So if you buy a hardcover copy of the book this week, November 11th to 16th, you can enter to win your choice of a custom T-shirt. There's going to be the life of a stricty option, adjust the tip mug, arbitrary and capricious shirt, you name it. A link to the giveaway will be in the show notes. So, yeah, anyways, a lot going on. And this is, I guess, an outlet.

So thanks, as always, for listening, everyone. Thanks, everybody. Strict scrutiny is a crooked media production, hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw, produced and edited by Melody Rowell, Michael Goldsmith is our associate producer, Jordan Thomas is our intern, Audio support from Kyle Segglin and Charlotte Landis, music by Eddie Cooper, production support from Katie Long and Adrian Hill. Matt O'Grote is our head of production, and thanks to our digital team, Ben Heathcote, Joe Matoski, and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East.

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