Category: 3-LawSometimeCommentary

This week, the ladies react to the ransacking of the federal government by Elon Musk and his fleet of DOGE dorks. Then, Kate and Leah speak with Jonathan Gienapp, professor of law and history at Stanford University and author of Against Constitutional Originalism: A Historical Critique, about what originalists get wrong about history and how the founders thought about the law.

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OA1123 - Insurrection enthusiast Donald Trump sure seems to be looking for an excuse to invoke the Insurrection Act of 1807 in a little-noticed section of one of his flurry of Inauguration Day executive orders. We review the history of how the Constitution and subsequent acts of Congress were written specifically to keep the President from deploying troops on US soil without a very good reason, and how and why the Act has been invoked 30 times in US history. When does civil disorder become an “insurrection” and when, if ever, can the President send in troops that a state hasn’t requested? And why is Trump so determined to declare an insurrection on the border?

• 10 USC 251-255 (colloquially known as “The Insurrection Act”)

• “The President’s Authority to Commit Troops Domestically Under the Insurrection Act,” Harold Hongju Koh & Michael Loughlin, American Constitution Society (September 2020)

•  “Policy Brief: The U.S. Military May Be Used to Secure the Border,” Ken Cuccinelli & Adam Turner (3/24/24)

• Insurrection Act of 2024 (IA updates proposed by Democrats)

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DOGE is running wild in the District of Columbia. Chaos reigns supreme. Trump 2.0 has been frightening and it’s all been happening so fast. But there are lots of people fighting back, as they try to slow the damage. And the courts are exactly where the pushback has been most fierce. One of the teams of people leading the charge includes former Judge Nancy Gertner, one of the many legal professionals suing the Trump administration. Judge Gertner's case is about the list of rank and file FBI agents threatened with retribution and the public disclosure of their names, because they did their jobs and prosecuted January 6th cases. Gertner is involved with a slew of cases from the State Democracy Defenders Fund. She talks with host Dahlia Lithwick about the many wins against the administration in court this past week, and whether they matter. Next, Slate senior writer Mark Joseph Stern joins Dahlia to update us on the DOGE litigation and the Birthright Citizenship cases.

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OA1122 - We’re not even three weeks into the second Trump administration and already well into our first Constitutional crisis. How was the world’s richest man given access to the nation’s checkbook and the total authority to shut down a $40 billion federal agency with 10,000 employees--and can he be stopped?  After a quick review of some recent good news, we try to understand how Donald Trump and Elon Musk are illegally reshaping the federal government before closing out the news sandwich with a big L for the Proud Boys.

• D.C. District Court judge Royce Lambert’s order in Doe v. McHenry protecting trans prisoners (2/4/25)

• Trump’s executive order establishing the Department of Governmental Efficiency (1/20/25)

• “The Trump-Musk power grab has happened before--in Hungary,” Zach Beauchamp Vox (2/5/25)

• “U.S. Agency for International Development: An Overview,” Congressional Research Service (1/6/25)

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In the aftermath of a scathing ruling by the Federal District Court and its issuance of an order blocking President Trump’s executive order which attempted to abridge birthright citizenship, one might think the matter closed. But appeals await, no doubt.  Last podcast we offered Professor Amar’s arguments in support of his interpretation - and the interpretation of most legal experts - of the matter, but obviously there were arguments made in opposition.  We address these arguments, starting with those made in Trump’s brief in the case, and going beyond them as well.  In doing so, we revisit a familiar name: Justice Joseph Story, who Trump’s lawyers attempt to enlist in support of their position, with arguments that perhaps don’t tell the whole story.

OA1121 and T3BE57 - Senator Bill Cassidy is one of the few remaining Republicans in national politics that resembles a normal human being. He is a doctor, and is very pro-vaccine. And he had a critical hand in RFK Jr.'s confirmation process. There seemed to be a decent chance he might not vote for the brain worms that run RFK Jr.'s flesh suit, but in the end, he did. How did he get there? How did he justify it? It's an interesting story and it says a lot about where we are right now.

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Melissa, Kate, and Leah continue to assess the fallout from the second Trump administration, including his blatant disregard of the law in firing many inspectors general. They also discuss the mental gymnastics required to blame Wednesday’s tragic plane crash on DEI, the repercussions of the administration's executive orders targeting trans people, and two crucial state supreme court races.

Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 

• 6/12 – NYC
• 10/4 – Chicago

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OA1120- This episode was first published on our sister show, Gavel Gavel, and has been made available at no charge for our wonderful Opening Arguments patrons!

Folks, we and you deserve a little treat. And let me tell you, this is a treat. Mwuah! Chef's kiss. Here's a triple episode for ya! Rudy Giuliani is such a piece of shit that the last real lawyers he could find quit. And so, enter... some guy from Staten Island. He gave us, and the world, truly one of the stupidest, worst written legal documents in recorded history. And in such a serious case, as well! We spend the entirety of this recording digging into it. Come for the weird typos and endless sentences, stay for the lecture on the evils of liberal democracy and wildly unnecessary references to the judge’s father!  Superstar public defender Liz Skeen joins us to draw from her past life as a NY litigator to provide the local and legal context for… whatever this is.

• “Defendant’s Memorandum of Law in Opposition to Plaintiffs’ Motion to Hold Defendant in Civil Contempt and Impose Sanctions,” Ruby Freeman & Wanshae Moss v. Rudolph W. Giuliani (12/19/2024)(SDNY)(today’s reading)

• Plaintiff’s summary judgment brief (10/2/24)

• Plaintiffs’ request for sanctions (10/29/24)

 

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If you’re punch-drunk and disoriented this week, come on in. Donald J Trump’s second administration is materializing at frightening speed and recklessness and it is hard (and stressful) to keep up with it all. Kim Lane Scheppele, the Laurance S. Rockefeller Professor of Sociology and International affairs at Princeton University, explains that the speed and viciousness of the legal orders in Trump 2.0 are evidence that America switched over to the fast track for autocracy on January 20th, 2025. An expert in the law of autocracy, Scheppele has seen firsthand what happened to constitutional courts and the democratic norms that governed them in Russia and Hungary and she joins Dahlia Lithwick on Amicus this week to explain how Trump’s executive orders on everything from government funding to transgender people in the military reveal a familiar global playbook that has chillingly familiar endpoints. 

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OA1119 - Trump's executive orders are bad for humanity--and just plain badly written. We survey some of the 20 major legal challenges which have been filed against this nonsense--including two early wins, and a few others which might be wins soon.

Matt then explains a recent proposed Trump enforcement tactic with concerning new potential for integration of local and federal authorities with immigration enforcement which the media seems to have missed. In related news, Trump has announced that a little-known section of the US military base at Guantanamo Bay will be used to house up to 30,000 immigrants facing deportation. We consider the history and legal issues around this far-from unprecedented plan.

Finally, our closing Bigfootnote takes a closer look at a rare intersection between cryptozoology and the law.

• OMB memo dated 1/27/25

• “Influx of aliens” memo

• “Offshoring Human Rights,” International Refugee Assistance Project (Fall 2024)

• Trump Litigation Tracker, Just Security (2025)

• Bigfoot-Ordinance-69-01.pdf (Skamani County)

 

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