Category: 3-LawSometimeCommentary

Next month, the Supreme Court will hear arguments in the birthright citizenship case, Trump v. Barbara. It’s still somewhat unbelievable that the high court will entertain arguments in favor of gutting an utterly clear constitutional commitment. Nonetheless, our motto on Amicus is “legal knowledge is power,” and in this case, historical understanding of legal knowledge … is power. On this week’s show, Dahlia Lithwick interviews constitutional and immigration scholar Anna O. Law about her forthcoming book, Migration and the Origins of American Citizenship.

In preparation for a lot of very bad originalist takes, Lithwick and Law discuss how immigration actually worked in the colonial and pre-Civil War eras and why the framers of the Reconstruction Amendments (including the birthright citizenship clause of the 14th Amendment) meant exactly what they said and said exactly what they meant. Law also explains how and why Wong Kim Ark affirmed birthright citizenship for children of Chinese immigrants, and emphasizes that the words “subject to the jurisdiction” had narrow historical exceptions. Finally, a reminder that the framers of the 14th Amendment chose to constitutionalize citizenship rather than establish it in statute—in anticipation of exactly the situation America finds itself in today. 

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OA1243 - The lawsuit that was supposed to break up Ticketmaster and Live Nation’s obvious monopoly over live music throughout the U.S. has just ended in a settlement so surprising that even DOJ’s lead counsel didn’t know it was happening. Is this deal as bad as it looks?  What does it mean for the future of live entertainment, and what will happen if the dozens of states which joined the feds in this case don’t sign off on it?

Also: An insurance company sues ChatGPT for telling someone to fire their lawyer, the first (known) instance of a DOJ lawyer writing a brief with AI, and Kristi Noem’s Marvel-ous new job.

Finally in today’s footnote--did thousands of people really just bet on the death of Ayatollah Ali Khameni? We take a closer look at the legal basis for “prediction markets” like Kalshi and Polymarket.

1. Statement of Objection to Ticketmaster Live Settlement, Matt Cameron (Nov. 30, 2011)(Matt’s actual filing into the 2011 Ticketmaster litigation demanding a handle of Jack Daniel’s and “a personalized letter drafted and personally signed by Ticketmaster CEO Nathan Hubbard which contains at least two (2) credibly apologetic statements, to be reviewed prior to delivery for quality of spelling, grammar, and penitence by an objective arbiter designated by the Court” for each class member)

2. Complaint in United States et al. v. Live Nation (2024)

3. Term Sheet for the Resolution of United States et al. v. Live Nation (2024)

4. “Trump convenes ‘Shield of Americas’ summit with 12 Latin American leaders,”  The Guardian, (3/7/2026)

5. Show cause order in Fivehouse v. US Department of Defense (2025)

6. Complaint in Nippon Life Insurance Company of America v. OpenAI Foundation (2026)

7. Complaint in Risch v. KalshiEX LLC (2026)

Check out the OA Linktree for all the places to go and things to do!

VR25 - This episode is dedicated to the memory of Cricket, the 14-month-old wirehaired pointer murdered in cold blood by Kristi Noem on an unknown date in a gravel pit in South Dakota.

One week after Donald Trump took now-former DHS Secretary Kristi Noem’s job out to the gravel pit, Thomas, Lydia, and Matt get together for a post-mortem. After a brief amuse douche from Noem’s (ahem) closest advisor, Matt plays the one excerpt from her 2024 campaign book “Not Going Back” which should have disqualified her from a Cabinet seat. (No, not that one! But we also revisit that story too and it’s so much worse--and involves twice as many animals--than you may  remember.) We then review some of the most notable lowlights of Noem’s time as DHS Secretary, from completely failing to understand the ancient  legal concept which allowed federal judges to release so many of the people she was illegally detaining without bond to her disturbing enthusiasm for calling US citizens concerned about killer ICE agents “domestic terrorists.” Also: why exactly did Noem lose her job last week, and where did the $220 million of our money handed over to a shell company run by her former press secretary’s husband go?

Finally, we take a closer look at Trump’s choice to replace Noem at DHS: an Oklahoma Senator with two first names and a temper even shorter than his MMA career. 

1. Watch this episode on YouTube!

2. “NO GOING BACK: The Truth On What’s Wrong With Politics and How to Move America Forward,” Kristi Noem (2024)

3. DHS ad filmed at Mount Rushmore featuring Kristi Noem on horseback

4. “Firm Tied to Kristi Noem Secretly Got Money From $220 Million DHS Ad Contracts,” Justin Elliott, Joshua Kaplan and Alex Mierjeski, ProPublica (Nov. 14, 2025)

5. “Markwayne Mullin is for Trump--and Indian Country,” Graham Lee Brewer, High Country News (Dec. 9, 2019)

6. “ICE Barbie Replacement Mark Mullin Makes a Killing From Trump’s Wars,” Harry Thompson & Tom Latchem, March 9, 2026

7. “Mullin’ It Over” column archives on Markwayne Mullin’s Senate website

Check out the OA Linktree for all the places to go and things to do!

We announce an exciting new partnership with SCOTUSblog and introduce the show to new listeners. We then return to the mysterious origins of the Chief Justice's "no, no, a thousand times no," debate the Court's new policy designed to maintain secrecy, and then take a close look at Galette v. New Jersey Transit Corporation, a sovereign immunity decision in which the Court may, or may not, have paid attention to Will's amicus brief.

Amarica’s Constitution has joined with two other great podcasts! We’re still ourselves, but today we bring all three podcasts together to look at a recent case, Mirabelli v. Bonta, which brings substantive due process back to center stage.  And because we are who we are, we take a look ourselves at some more aspects of - what  else? - the birthright citizenship case.  Learn what the future holds for our listeners, as we bring you what we always have, and more.  Attorneys and judges can gain CLE credit from podcast.njsba.com.

• Kate: This judicial order in Urquilla-Ramos v. Trump
• Leah: Upcoming Sarah J. Maas books; Melissa’s upcoming book (link below)

• Melissa: [REDACTED]

OA1242 - Ever heard of the “major questions doctrine”? Most lawyers sure hadn’t until a few years ago. So how did it get that important-sounding name? Where did it come from? What even is it? How can we call something a “doctrine” or a rule if we don’t have a clear rule statement to cite to? (Hint: You can’t). If you’ve been feeling like maybe this is all made up and the points don’t matter, you can get your vindication here as we trace back the history of this ever-changing heavily-politicized increasingly-disputed amorphous blob. Jenessa read way too many cases and law review articles to tolerate this nonsense today.

Timeline, each citing the one below it:

1. “Major questions doctrine” first appearance in any court case: West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022)

2. “Major question doctrine” [not plural] in an EPA statement on deregulations: Repeal of the Clean Power Plan, 84 Fed. Reg. 32520, 32529 (proposed Jul. 8, 2019) (to be codified at 40 C.F.R. pt. 60).

3. “Major rules doctrine”: U.S. Telecom Association v. F.C.C., 855 F.3d 381, 422-423 (D.C. Cir 2017), Kavanaugh dissent. (Note: There are many decisions by this name, including one from the D.C. Circuit in 2016, all of which are more prevalent online. Only this exact citation, minus the “422-23” pincite, will get you to the right case. Unfortunately I cannot find it outside the paywall to provide a link).

4. “Economic and political significance” allegedly the first unnamed use of the concept: F.D.A. v. Brown & Williamson Tobacco Co. 529 U.S. 120 (2000)

5. “Major questions” first appears in any legal scholarship… well those words appear in that order, at least: Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363 (1986).

Meanwhile, in another timeline:

1. Cass R. Sunstein, There are two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, (2021).

2. First ever use of “major questions rule/exception” in a positive light in legal scholarship. Would become more mainstream around 2013-2016: Abigail Moncrieff, Reincarnating the "Major Questions" Exception to Chevron Deference as a Doctrine of Non-Interference as a Doctrine of Non-Interference (Or Why Massachusetts v. EPA Got It Wrong), 60 Admin L. Rev. 593 (2008).

3. Moncrieff, above, cites this as the original coining of “major questions”, not Breyer’s 1986 paper: Cass R. Sunstein, Chevron Step Zero, 92 VA. L. Rev. 187 (2006).

Other definitions from legal scholarship:

• Allison Orr Larsen, Becoming a Doctrine, 76 Fla. L. Rev. 1 (2024).

• Austin Piatt & Damonta D. Morgan, The Three Major Questions Doctrines, Forward Wis. L. Rev. 19 (2024).

• Thomas B. Griffith & Haley N. Proctor, Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions Doctrine, 132 Yale L.J. F. 693 (2022).

• Chad Squitieri, Who Determines Majorness?, 44 Harv. J.L. & Pub. Pol’y 463 (2021).

• Kevin O. Leske, Major Questions about the “Major Questions” Doctrine, 5 Michigan Journal of Environmental & Administrative Law 479 (2016).

• Jonas J. Monast, Major Questions About the Major Questions Doctrine, 68 Admin. L. Rev. 445 (2016).

Other relevant cases:

• Learning Resources, Inc. v. Trump, 607 U.S --- (2026)

• Biden v. Nebraska, 600 U.S. 477 (2023)

• King v. Burwell, 576 U.S. 473 (2015)

• Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014)

Check out the OA Linktree for all the places to go and things to do!

On this week’s Amicus, Dahlia Lithwick explores the rise of Christian nationalism in America, its influence on the Supreme Court , and the implications for democracy and civil rights. Featuring Rachel Laser, CEO of Americans United for Separation of Church and State, their discussion delves into the historical roots, recent legal cases, and the ongoing fight to uphold the separation of church and state in a country that survived two centuries as an open, pluralist refuge for all religions, and then became a Christian nation, seemingly overnight.

Want more Amicus? Join Slate Plus to unlock weekly bonus episodes with exclusive legal analysis. Plus, you’ll access ad-free listening across all your favorite Slate podcasts. You can subscribe directly from the Amicus show page on Apple Podcasts and Spotify. Or, visit slate.com/amicusplus to get access wherever you listen.

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It's our live show at the University of Chicago! Hosted by the University of Chicago Federalist Society, we discuss this week's big shadow-docket rulings about gender transitions in California Schools (Mirabelli v. Bonta) and redistricting in New York (Malliotakis v. Williams), and also break down the recent merits decision about the right to counsel when a defendant is testifying (Villareal v. Texas).

OA1241 - This Rapid Response Friday:* everything you need to know to explain to anyone who will listen exactly why what the US is doing in Iran is illegal. We also review oral arguments in an unusual case involving the federal statute under which Hunter Biden was  recently convicted which has brought weed, guns, and Amy Coney Barrett’s illegal Ambien habit (?) before the Supreme Court at the same time.

Finally, in today’s footnote: A man who drinks unpasteurized milk, swims in sewage, and once left a dead bear in Central Park has some opinions about what we should be putting in our coffee--and Matt might agree with him? Can RFK Jr really stop America from running on Dunkin?

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*N.B.: this episode was recorded before the news of DHS Secretary Kristi Noem’s forced departure, but we’ll have plenty more to say about her and replacement nominee Markwayne Mullin next week!

1. “Top Experts’ Backgrounder: Military Action Against Iran and US Domestic Law,” Brian Egan and Tess Bridgeman, Just Security (2/28/2026)

2. “AUTHORITY TO USE MILITARY FORCE IN LIBYA,”DOJ Office of Legal Counsel memorandum, (4/1/2011)

3. Certiorari petition in United States v. Hemani (6/2/2025)

4. Audio from oral arguments in United States v. Hemani  (3/2/2026)

5. “Six Senators Accuse Deputy Attorney General of “Glaring” Crypto Conflict, Cite ProPublica Investigation,” Corey G. Johnson, ProPublica (1/29/2026)

6. “RFK Jr. wants Dunkin’ to prove drinking its iced coffee is safe,” Tal Kopan, The Boston Globe, (3/4/2026)

7. “Dunkin' Nutritional Facts” (2026) [PDF]