Category: 3-LawSometimeCommentary

OA1082 - Donald Trump recently promised that he and House speaker Mike Johnson have a “little secret” about how they are going to win next week’s election. Is he just trolling, or have Republicans identified real vulnerabilities in our federal election system? We assess the legal realities surrounding one particularly doomerist prediction in The Nation to try to understand just how concerned we really should be.

The Washington Post has just revealed that Elon Musk has his own little secret: his numerous past violations of federal immigration law. How much does this matter, and what would happen if ICE received this information about someone who didn’t happen to be the world’s wealthiest person? 

Finally, for our dessert course Matt has the scoop on a tasty footnote from this week’s news about how the Librarian of Congress just helped to fix the ice cream machine at your local McDonald’s.

 

• “That “Little Secret” Between Trump and Johnson? Here’s What It Could Mean,” Elie Mistal  The Nation (10/29/2024)

• “Election certification under threat,” Citizens for Responsibility and Ethics in Washington (8/12/2024)

• “Elon Musk, enemy of ‘open borders,’ launched his career working illegally,” Maria Sachetti et al, The Washington Post (10/26/24)

• “Melania Trump modeled in US prior to getting work visa,” AP News (11/4/2016)

• “They Hacked McDonald’s Ice Cream Machines—and Started a Cold War,” Andy Greenberg WIRED (4/20/2021)

• “Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies,” U.S. Copyright Office Docket No. 2023-5 (10/28/2024)

 

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It's OA Bar Prep with Heather! First we get the answer to last week's Mario Kart easement question, and then we get question 46 - The Fraudulent Flight to Florida

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It's 200 episodes for Amarica's Constitution, and we mark the occasion by bringing you a key expert for an in-depth exploration of a breaking development.  Ruth Marcus, long-time Washington Post columnist, editor, Pulitzer Prize nominee, and insider, joins us to explore the inexplicable:  the last-minute decision by the Post and its owner, billionaire Jeff Bezos, to withhold what would have been an endorsement for Vice President Harris for election to the Presidency.  What goes on in an editorial board?  What is the role of the owner?  What are the alternatives for editors, columnists, and reporters? Was Bezos intimidated by Trump?  What does all this mean for the nation?  We have the perfect means to explore this shocker: a frank and unhurried inquiry with our friend, Ruth Marcus.  What a way to mark our bicentennial.  CLE credit is available from podcast.njsba.com.

After an emergency intro looking at the Fifth Circuit’s bonkers mail-in ballot decision, the ladies do a deep dive on two books. First, they speak with New York Times correspondents Lisa Lerer and Elizabeth Dias about The Fall of Roe: The Rise of a New America. Then, David Pozen of Columbia Law School joins to talk about The Constitution of the War on Drugs, his book about how the war on drugs influenced the constitutional law we have today.

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

• 6/12 – NYC
• 10/4 – Chicago

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Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes

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OA1081.

We're taking a broad survey of the 2024 elections, starting with the many, many 2020 election deniers who are still in--and seeking--public office. How many of these people are still around, and how many are up for re-election? What kinds of threats to democracy are still built into the system and how could we do better? What would real reform look like, and what is it going to take to get there? 

• “The Story of Election Denial in America," ElectionDeniers. org

• SCOTUS decision in FEC v. Cruz for Senate (2022)

• “Interactive U.S. House Election Map,” 270towin. Com

• “At least 30 election deniers and 2020 fake electors serving as Trump electors this year,” CNN (10/17/2024)

• Fifth Circuit’s decision in Lamb v Wetzel (10/25/24)

• “A Comprehensive Look at the Freedom to Vote Act,” Jonathan Diaz, Campaign Legal Center (9/17/21)

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It’s easy to dismiss nativist rhetoric as mere Trumpy “locker room talk.” But when it comes to immigration, deportation and even detention, rhetoric about foreigners and violent invaders is actually a legal long game. Toward the end of the summer of 2023, Katherine Yon Ebright, counsel in the Brennan Center’s Liberty and National Security Program, noticed that rightwing anti immigration groups and the Trump campaign had started talking in earnest about using a very old law with a very dark history, in order to do very chilling things to immigrants. She started researching the Alien Enemies Act of 1798, the sole operative part of the notorious Alien and Sedition Acts. By October 2024, Donald Trump was invoking the statute in most of his stump speeches, saying he intends to use it to carry out the mass deportations of non-citizens, without due process and with domestic law enforcement deployed to full effect. We are already seeing Texas trying to use the language of “foreign invasion” to achieve exactly these ends. On this week’s Amicus podcast, Dahlia Lithwick asks Katherine Yon Ebright to help the rest of us catch up with her deep dive on this dangerous law, and to explain why we should take the threats to use it literally and seriously.

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OA1080 - As a weary nation watches the world's richest man try to buy a federal election in plain sight, we stop to consider the question which has so long plagued Elon Musk: There's gotta be a crime here, right? Somewhere?

There has been plenty of debate this week about the legality of Musk’s $1 million daily lottery for registered US voters in swing states, but there is something far more insidious going on in this story beyond the headlines. Matt explains how the Federal Elections Commission has recently taken the Supreme Court’s perfectly good joke way too far before we consider what the rapidly evolving rules around super PACs could mean for the future of fair elections in the United States. 

Finally, we drop a seasonal footnote to discuss how some Massachusetts 8th graders recently helped to close out a 332-year-old criminal case.

• “Judge Aileen Cannon, who tossed Trump's classified docs case, on list of proposed candidates for attorney general”  ABC News (10/22/2024)

• “Elon Musk’s Big Business and Conflicts of Interest With the U.S. Government” The New York Times (10/20/2024)

• “A Democrat, Siding With the G.O.P., Is Removing Limits on Political Cash at ‘Breathtaking’ Speed,” Shane Goldmacher  The New York Times (6/10/2024)

• The Illusion of Independence: How Unregulated Coordination is Undermining Our Democracy, and What Can Be Done to Stop It, The Campaign Legal Center (11/30/2023)

• FEC Advisory Opinion 2024-01 (3/20/2024)

• FEC Vice Chair Ellen Weintraub’s dissent from Advisory Opinion 2024-07 (addressing Lindsay Graham campaign’s question re: super PAC campaign fundraising coordination)

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We are approaching our 200th episode and completing our 4th year of “Amarica’s Constitution,” and it seems appropriate to take stock.  By coincidence, the Yale Law School is celebrating its own anniversary, and these things come together as Akhil is part of a big event and presents a “big idea” that sounds like a strange saying: “the Constitution is a thing.”  We explain, elaborate, and celebrate a little bit.  We look back, and we look ahead to some real excitement over the next few months (besides the election, that is).  CLE credit is available for lawyers and judges from podcast.njsba.com.

It's OA Bar Prep with Heather! First we get the answer to last week's pizza predicament, and then we get question 45 - the case of the uneasy easement!

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If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Melissa, Kate, and Leah recap October at the Supreme Court, diving into the sewage-infested waters of City and County of San Francisco v. Environmental Protection Agency. What did clean water ever do to Brett Kavanaugh? Also recapped: cases about the judicial review of immigration visas and veterans benefits. Finally, the hosts finish off with a peek at what’s going on in state courts around the country.

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

• 6/12 – NYC
• 10/4 – Chicago

Learn 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 Vibes

Follow us on Instagram, Threads, and Bluesky