Executive Disorder: Supreme Court Edition  🔗 **Source:** [Executive Disorder: Supreme Court Edition](https://share.snipd.com/episode/f049d3ed-bd6b-49b1-82a9-a7c3aa03a836) ## Highlights - **Parties Can Now Coordinate Huge Campaign Spending** - The Supreme Court overturned a long-standing campaign finance limit precedent, allowing parties to coordinate spending with candidates more freely. - The 6-3 decision resurrects major-party spending advantages by letting parties use candidates' cheaper ad rates unavailable to super PACs. Transcript: Garrison Davis In a 6-3 ruling, the conservative Supreme Court justices struck down a law limiting how much money political parties can spend on campaigns in coordination with candidates, citing The First Amendment. This order overruled the court's 5-4 decision back in 2001, which upheld campaign finance limits. Essentially, this will allow political parties to spend vastly more money while utilizing candidates' low advertising rates that are not awarded to super PACs. This will also make it harder to do campaign finance reform or super PAC reform based on this interpretation of the First Amendment, that court reform might be ([Time 0:08:51](https://share.snipd.com/snip/0afe2633-1494-4c4a-a1a6-fa2e433f4a1a)) - **Court Lets States Ban Trans Girls From School Sports** - The Court upheld state bans excluding trans girls from girls' school sports on Title IX grounds while leaving room for narrower challenges under Equal Protection. - Kavanaugh tied 'biological sex' to sex assigned at birth; Thomas wrote a hostile concurrence amplifying transphobia. Transcript: Garrison Davis Kavanaugh wrote the majority opinion, finding that the Constitution and Title IX allows for school sports to be separated by sex, and that the quote-unquote sex in Title IX, quote, Cannot possibly be interpreted to refer to anything other than biological sex, unquote, because that was the quote-unquote ordinary meaning of the word when Title IX passed in the 70s. And quote-unquote biological sex is related to sex assigned at birth in this ruling. Do they actually say that? They do tie biological sex to sex assigned at birth, yeah. So they're not proposing like a chromosomality definition? Robert Evans Not in my reading of the ruling that I see chromosomes. Because they also cited the IOC definition, right? Which is a distinct thing from sex assigned at birth. The IOC definition considers chromozonality and then also androgen sensitivity. So we're, I guess, approaching a situation where someone could be eligible for the Olympics, but not eligible for high school sports. I haven't read the entirety of this decision. I need to, but I've read three other ones yesterday. Garrison Davis In the second paragraph, it states that biological sex is, quote, sex assigned at birth. Robert Evans Okay. So yeah, we are approaching like a disparate situation with IOC understandings of sex, which is not, I guess, a particularly new thing. We had Maria Jose Martinez Patino was disqualified from, she would have been an Olympic athlete in the 80s, based on a misunderstanding of how chromosazoneality works, I guess. You'd have to have the person who would split that difference, right, for a national organizing body to then decide how they would deal with that person competing. Nonetheless, this fucking sucks for lots of young people. Garrison Davis Yeah, and biological sex, even as a category, is itself constructed. This has actually no basis in biology. Yeah. Justice Sordomer, Kagan and Jackson agreed that the state bans don't violate Title IX, though on a narrower basis than the conservative majority. But the three liberal judges dissented under the 14th Amendment's Equal Protection Clause. Now, like importantly, the ruling itself does not mandate a ban, right? The court's not saying that schools must ban trans athletes, but rather that Title IX claims cannot be used to oppose bans on trans athletes from participating in school sports. This is a narrow, limited ruling. It's kind of like the least ([Time 0:09:44](https://share.snipd.com/snip/3fcbe7af-d5f7-49e5-94a5-0edb13eef151)) - **TPS Cancellations Largely Shielded From Judicial Review** - The Court ruled DHS TPS terminations are not reviewable in court even if procedural interagency review was allegedly skipped. - The decision leaves tens of thousands from Haiti and Syria without recourse and vulnerable to return to unsafe conditions. Transcript: Robert Evans I want to start, I guess, with temporary protected status, TPS, right? So the case in front of the Supreme Court concerned the Trump administration's attempt to remove the TPS of Syrian and Haitian nationals. I think we need to begin by addressing a lot of the misinformation and misunderstanding here. TPS is a renewable non-permanent status with no pathway to permanency. It can last between six and 18 months, and it's renewed currently by the DHS secretary, right? That power passed to them when DHS began overseeing immigration. It was created in 1990. And at its core, it's supposed to be a way of protecting people who are in the United States when disaster befalls their country of citizenship. If you are in the US when they declare a TPS, you can apply, get granted a work permit. The longest that will last is 18 months. And two months before it runs out, DHS has to determine if they will reauthorize it or not so some folks for instance from El Salvador have been in the U.S. For decades on TPS but they have no permanency they have no sense of stability it is very hard for them to like make progress in many areas that would be easy for citizens or even permanent Residents or visa holders, right, because of that lack of the ability to plan to become citizens. So they wanted to pass to permanency. Like, there are a couple of ways to do that, but they might have to risk leaving and coming back on another status, which many of them are not willing to do. I wrote about the Venezuelan TPS in my first Dining Gap series. So if people want to hear an immigration lawyer, actually an immigration lawyer from one of the cases we're going to talk about next, explaining that that they can. The TPS as ruled by Sanchez versus Mayorkas is not the same as lawful admission to the country, right? People have frequently been claiming, I've seen, that the Haitian TPS pertain to the 2010 earthquake. This is not correct. This was in the courts in the first Trump administration would be the simplest way of saying it. The current TPS pertains to the 2021 killing of Juvenal Moise and the subsequent violence thereafter. So it came about under the Biden administration. If people want more context, at the time I was writing op-eds for NBC, and I will include one that I wrote in the show notes, at the time of the announcement in 2021, they were exceptionally Clear that they did not want more Asian people coming to the US. Like genuinely, some of the most repugnant language I've seen from the executive branch outside of this administration. In one instance, Mayorkas said, those who attempt to travel to the United States after this announcement will not be eligible for TPS and may be repatriated. There were some more explicit and, in my mind, uglier statements. Again, I've cataloged those in previous writings so you can read it. This case pertained to whether an administration could terminate a TPS without going through interagency review, something court records show they didn't do in case of the Haitian TPS. The court heard that argument and effectively said that the courts could not challenge the failure of DHS to do that. ([Time 0:12:59](https://share.snipd.com/snip/54bed8e0-dc92-481e-9679-4560026596b9)) - **Asylum Applicants Must Cross Border To 'Arrive'** - The Supreme Court sanctioned 'metering' by ruling asylum applicants must physically cross the border to 'arrive' and apply, not merely stand at a port of entry. - That legal framing incentivizes dangerous crossings between ports of entry and will likely increase migrant deaths. Transcript: Robert Evans The law says anyone who is in or arrives in the USA may apply for asylum of course CBP can inspect people seeking admission to the USA in practice what this means is that asylum seekers Have metered this process of physically preventing people entering the USA so that they cannot then arrive in the USA and apply for asylum is called metering, right? There have been various types of metering over the years. The Ninth Circuit had previously held that when someone encounters US border officials, they may apply for asylum. In practice the difference here is between entering a port of entry versus having to have passed through a port of entry or around a port of entry port of entry is the thing with the like I'm thinking of the sanicetera one but like the big revolving doors right where the cbp people stand where the blue shirt CBP stand. CBP has previously said that they did this for capacity reasons, but those capacity claims have been contradicted by reports of their own Office of the Inspector General. Effectively, the Supreme Court has blessed the practice of metering asylum applications by saying that people have to have arrived in the usa versus arriving at the border and this Is being portrayed as a very very straightforward decision let me read from the opinion here an alien standing in mexico does not arrive in the united states by attempting and failing To set foot in the country an alien quote arrives in the united states only when he crosses the border the ira it's the immigration naturalization act thus neither entitles an alien Standing in Mexico to apply for asylum nor requires an immigration officer to inspect him. They later said metering does not permanently bar any alien from arriving and applying for asylum, despite the fact that many migrants have died and will die or suffer tremendous harm Due to the practice. They go on to say, last, respondents' argument that the government might someday prevent all potential arriving asylum applicants from reaching the point where they could file an Application addresses a hypothetical future policy, not the rescinded metering policy at issue, which merely delayed entry to improve conditions at certain points of entry. Let's listen now to this clip of Stephen Miller. Mia Wong So America's doors are closed fully to asylum seekers. Robert Evans That's not a hypothetical future policy that Stephen Miller is saying it, right? Yeah, that's absurd. That's very clearly what was going to happen. You're being deliberately naive. It's obscene to say that that's a hypothetical. Garrison Davis It's not. You're just like flatly laying out the mechanism in which all asylum seekers can be denied the chance to even ask for asylum by just magically saying, no, you're actually not talking To us when you're talking to us at the border. Robert Evans Yeah. And like, I want to address this like standing in Mexico claim, right? Because they're standing at the port of entry so this building quote unquote in mexico is paid for by the united states it contains armed united states personnel right are we therefore Invading mexico like have we therefore seized mexican territory like just because you have not definitionally crossed the border it is misleading to say that you're standing in mexico Right the The port of entry is clearly a liminal space. It's not like you're in fucking Chiapas shouting on a megaphone, hey, can I have asylum? This framing is oversimplifying, to put it mildly. What this means is that we have created a de facto incentive to enter the United States between ports of entry. People who do so will have arrived in the United States. This is what happened under the Biden administration, right, with CBP-1, where they effectively use CBP-1 as a metering tool. The metering tool, because they and the Trump administration have both defended Title 42, was completely insufficient to keep up with the backlog of asylum applications. And so people entered between ports of entry, right? Thousands of them. I reported on this a very great deal at the time. There have been many other forms of metering. The Obama administration did metering. That's when this case began. CBP1, the migrant protection protocols, many others, right? In every single incidence where there has metering we have seen that people enter between ports entry we have seen escalations in border deaths with wall construction continuing Many of the places where people previously entered are now closed um we will see more people entering along more risky routes and that will lead to more deaths. ([Time 0:20:13](https://share.snipd.com/snip/3d0e7161-e989-4d8a-a3b6-60da9f3af9f7)) - **Birthright Citizenship Upheld But Future Limits Teed Up** - The Court rejected Trump's executive attempt to strip birthright citizenship for children of unlawfully present parents, reaffirming Wong Kim Ark precedent. - Kavanaugh signposted a congressional path to limit birthright citizenship, creating future political leverage. Transcript: Robert Evans All right, we're back. And we are back to talk about birthright citizenship. Trump versus Barbara. In this decision, the court held that, quote, children born in the United States to parents unlawfully or temporarily present are, quote, subject to the jurisdiction of the United States and are citizens at birth under the 14 Amendment citizenship clause. The court was a bit split on how they got here, with a 6-3 majority holding that Trump's attempt to remove citizenship by executive order was illegal and a 5-4 majority agreeing that It was unconstitutional. Actually, I spoke about this just before we get onto this with Robert and Sophie in November of 2024, talking about things that Trump administration might do. Here we are. Here is the relevant part of the 14th Amendment for people who aren't familiar. Quote, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. The majority opinion somewhat based in Jusoli. I think that's how you say it. I haven't done it. Jusoli. Jusoli, yeah. I did Latin. I mean, the good news is with Latin is nobody really knows how it was said. Yeah, sure. The bad news is that people still have strongly held opinions. Well, it was ecclesiastical Latin and whatnot. But like, if you take classical Latin, there's not a pronunciation test at school. James Stout Yeah. But just solely is fine. Robert Evans When I did my GCSE exams, I didn't do Latin oral like I did for French. The idea here is anyone born here is a citizen, unless are not subject to jurisdiction of the USA. That qualifier has generally applied to diplomats and their children. That is the main group. Because someone is here in an undocumented fashion, they are still subject to jurisdiction of the USA, as can be fairly obviously understood from like a plain text understanding of That phrase, I think. Let's hear Mike Johnson. I guess Mike Johnson was in a presser when this decision came down and someone got to tell him. Oh dear, what do they rule? Here we go. Garrison Davis As children born in the United States, parents unlawfully or temporarily present are subject to the jurisdiction of the United States and are citizens at birth under the 14th Amendment Citizenship clause. Mia Wong What's your reaction to that? James Stout Well, I need to read the opinion. OK, but obviously that's I mean, you could say that's a textualist, originalist view. However, I do think that this has been grossly abused in recent years. He's so pissed. He's so pissed his his little growl yeah he's so mad and the joy in that reporter's voice as he realizes he's getting number one i get to be the person to read the opinion out to the to fucking Robert Evans Mike johnson and number two i get to ask mike johnson for a response which is beautiful i'm so happy for them yeah and as he said right like a plain text understanding of this is all you really Need a textual misunderstanding for sure very clear yeah like so there was discussion of the wong kim art case which ruled that uh quoting here a child born in the united states of parents Of chinese descent who at the time of his birth are subjects of the emperor of china but have a permanent domicile and residence in the United States, and are there carrying on business, And are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States with virtue of the first clause Of the 14th Amendment of the Constitution. It's the first clause of the 14th Amendment that I read earlier, right? It is important to understand the context of this case. This Wong Kim Ark case happened in the context of an assault on birthright citizenship and especially on Asian migrants, right? This is the era of the Chinese Exclusion Act, for example. The decision in the Wong case was that the 14th Amendment was declaratory of the common law understanding of citizenship. The decision holds that, quote, aliens who travel to the United States for, quote, business or pleasure receive no, quote, exemption from the jurisdiction of the country. Or born on foreign public ships or of enemies within and during a hostile occupation of part of our territory and children members of Indian tribes. It's not until 1924 that we get the Indian Citizenship Act, right? I thought they might have gone harder on that than they did, but they did not. Much of the dissent focused on that use of the word domicile and whether that was in the USA, but as the majority argued, citing precedent and English common law, which is the basis for The law we have now in the United States, right? Quote, there is scant evidence for this dramatically revisionist view. Sources from 1766 to 1868 defined, quote, allegiance by birth, just as the British did, as the tie or duty owed by one who is born within the dominions and under the protection of a particular Sovereign. And, quote, sources after the ratification of the 14th Amendment do not put in doubt the understanding of the citizenship clause at the time of and after its ratification. Certainly the US has not used this domicile test for other things, right? Like it doesn't use a domicile test, for instance, when it taxes its citizens extraterritorially. It is not the basis, by the way, children of citizens becoming a citizen uh that is based on a law passed by congress that's not based in this constitutional amendment right it is worth Noting that the way trump's executive order which was what was struck down here was written it would have included people who are domiciled here based on any understanding of the term Domicile that i think is genuine uh like his was written not even in this sort of more focused way, focusing on what they perceive to be a weakness in that Wong decision. So who was the floater from the 6.3 to the 5.4? The floater was Kavanaugh. He opined that, quote, Congress could, consistent with the 14th Amendment, amend the law, or otherwise, I'm saying the law here, he gives a citation for the law right otherwise enact New legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country but congress has not yet done So the law in question as the nationality act of 1940 it says quote the following shall be nationals and citizens of the united states at birth a person born in the united states and subject To the jurisdiction thereof, and then another clause further down, a person of unknown parentage, founder of the United States, were under the age of five years until shown prior to His attaining the age of 21 years not to have been born in the United States. He argues that Congress clearly did not want to make more exceptions than existed in the Wong Kim Ark case and that they would have done if they did. ([Time 0:29:57](https://share.snipd.com/snip/682746c5-1a0c-4533-92cc-faafa1e4e7ac)) - **States Can Count Valid Mail Ballots Received After Election Day** - The Court held states may count properly postmarked mail ballots arriving after Election Day, leaving receipt deadlines to state law. - Barrett's opinion rejects a 19th-century strict 'receipt by Election Day' reading and preserves many modern absentee practices. Transcript: Garrison Davis Another blow to the Trump administration is the ruling on mail-in voting, where the Supreme Court ruled 5-4 in favor of counting valid mail-in votes that arrive after Election Day. Glad we got a 5-4 in favor of counting people's votes on the election day. James Stout Glad that that's at least still a 5-4. Garrison Davis This case focused on a Mississippi law that allows mail-in ballots to be counted as long as they are postmarked on or before election day and arrive within five days after election day. A district court previously ruled in favor of the law, but the Fifth Circuit reversed the ruling, finding that votes must be received by Election Day. But for the Supreme Court, Justice Amy Coney Barrett wrote the majority opinion, finding that, quote, the Election Day statutes require the electorate's choice to be made on Election Day. That occurs so long as Election Day is the deadline for individuals to vote, as it is in Mississippi. But the Election Day statutes do not set a deadline for ballot receipt. So they do not prevent Mississippi from counting ballots postmarked before election day yet received afterward, unquote. Alito, Thomas, and Gorsuch dissented with Kavanaugh joining their dissent in part. Much of this case rested on what, quote unquote, election day means in federal law. The Republican Party, who was the plaintiffs in this case, among a few others, like the Mississippi Republicans, the Republican Party nationally, and also in part the Libertarian Party, but mostly the Republican Party, tried to argue that because federal statutes use the term, quote unquote, election to mean that ballots are both cast and received, and by setting A day for an election, then that also sets a deadline for votes to be received. But as already stated, the majority found that, quote, nothing in the federal election day statutes requires ballots to be received by election day, unquote. Amy Coney Barrett notes that, quote, although the election day statutes refer to a particular day for the election, plaintiffs do not contend that everything must occur on that day. For instance, they do not object to early voting or dispute that officials may count votes and certify a winner after election Day, unquote. Now, in this case, the Republicans aren't even directly challenging absentee voting as a general practice, but their argument to restrict the counting of some absentee ballots, Quote unquote, relies heavily on historical practice, precedent and policy from the mid-1800s, because that's around when the first two federal election statutes were enacted. Basically, during the Civil War, states that authorized absentee voting did impose strict election day deadlines for ballot receipt. The opinion notes, quote, but plaintiffs admit they cannot precisely tie this historical practice to the text of the election day statutes, unquote. So to quote Barrett, the Republicans' theory here is, quote, because we are governed by 19th century election day laws, we are also governed by 19th century voting practices. Carried to its logical conclusion, this theory would call into question the way modern elections work, unquote. She goes on to note how this would jeopardize everything from voter qualification to early voting to how we count votes, despite the Republicans' focus on this 19th century election Day practices, because that's around when the first two election statutes were enacted on a federal level. The Republicans also ignore that right after the third federal statute was passed in 1914, mail-in voting rose in popularity because of the First World War. And some states started counting absentee ballots that were received after Election Day. So their argument both doesn't actually refer to real federal statutes, but also is not consistent. Ultimately, Barrett writes that the quote-unquote defining element of a quote-unquote election is the electorate's act of choosing a candidate and that an election day just sets The deadline for making that choice. Quote, the electorate's choice is made when voting is complete, not when ballots are received, unquote. Per federal statute, the deadline to vote is election day, but the deadline for when ballots must be received is up to state law. Like what this case focuses on is the Mississippi state law on when ballots can be received. That's a state issue. Finally, the Republican plaintiffs tried to argue that requiring ballots be received on Election Day or by Election Day helps protect election integrity and increases voter confidence In election results. However, Barrett notes, quote, policy arguments are properly directed to legislatures, not courts. The question today is not whether requiring ballots to be received by election day is a good or bad idea. The question is whether the idea has made its way into the U.S. Code, unquote. So regardless of whether Republicans think this is a good idea or not, as Barrett says, that would be a question for the legislature and not one that can be decided on in federal court Because it has no basis in federal law. ([Time 0:40:01](https://share.snipd.com/snip/717cb30e-e794-42a0-905b-2eba54add97a)) - **Court Expands Presidential Power Over Independent Agencies** - Roberts's paired rulings let the president fire most independent agency heads at will but carve out the Federal Reserve as protected. - The split logic privileges presidential control broadly while shielding the Fed because justices fear economic instability. Transcript: Mia Wong Now, in addition to the other rulings that we're talking about here, we also got an absolutely wild pairing of rulings in Trump versus Slaughter and Trump versus Cook, which were both Written by Chief Justice John Roberts, and which establish together the rather astounding legal principle that the president has complete power over the jobs of the heads of independent Executive branch agencies, except the ones that Chief Justice John Roberts likes personally. Now, I understand that that is a provocative statement, and I'm going to ask you to withhold judgment until we get to the end of the second ruling, because, oh boy, it's a doozy, and I am Fairly confident you will agree with this opinion by the end. So let's talk Trump versus slaughter. So Trump versus slaughter is a case in which the Supreme Court slaughtered a 91-year president that was set in a case called Humphrey's Executor v. United States in order to allow President Trump to fire the heads of a broad swath of independent agencies, irrespective of Congress's specific instructions regarding how those Heads could be fired. So Trump versus the slaughter began after Trump fired Federal Trade Commissioner, this is the FTC, Rebecca Kelly slaughter without cause. I'm going to quote from NPR here, as they point out, quote, since its creation of the Federal Trade Commission FTC in 1914, Congress has held that commissioners can only be fired for, Quote, inefficiency, negligence of duty, or malfeasance in office, end quote. Slaughter was presented with no such reason for her removal, only told her, quote, continued service on the FTC was inconsistent with the Trump administration's priorities. Now, there is an obvious legal precedent here, precedent that I described earlier, because FDR tried to do literally this exact same thing in the 1930s. He tried to fire an FTC commissioner for political reasons. And the 1930s Supreme Court ruled in Humphrey's Executor versus the United States that in, again, this exact same scenario, the president trying to fire an FTC commissioner for political Reasons, that this was in fact illegal because the FTC is an independent agency whose functions are, you know, outside of the executive. And thus, the president does not have the power to simply remove their heads at will. Now, this 1930s decision, right, is a decision from the notoriously right wing Hughes court facing a central left president. So in the 1930s, it was important that the state be able to operate independently of FDR to prevent FDR from giving too many concessions to workers. Now, in 2026, the also fanatically right wing Roberts Court saw a fascist in power and decided, no, actually, the FTC is an agency that does executive functions and thus is under the Control of the president because of the unitary executive theory, which is, you know, a theory that the president should have complete control over everything in the executive branch, Even agencies that were explicitly designed by Congress to be independent, and that this theory is good now because a right wing president is using it. This ruling allows Trump to wield unprecedented power over the American state. Many of these bodies, you know, specifically, we should talk about the FTC here, right? The FTC has a cap of the number of members of the commission that can be from one party. Trump can now simply ignore this congressional mandate by just firing all the Democrats and leaving only Republicans. As NPR reported, here's Justice Sonia Sotomayor and her dissent, quote, the court gives the president a power unknown even to the English crown against which the founders revolted, Elevating him above his once co-equal branches by transforming a duty to take care that the law be faithfully executed into a license to act in defiance of those very laws. Notably, the court also ruled that this unitary executive doctrine, right, this doctrine that the president has the right to fire the heads of independent executive agencies and Independent federal agencies, that this power does not apply to the Federal Reserve. And thus, Trump could not fire Federal Reserve Board member Lisa Cook because of some extremely nebulous logic about the Federal Reserve being the successor to the First and Second National Bank of the U.S., which establishes, and I quote, our nation's tradition of central banking protected from political interference. Now, in what way, quote, our nation's tradition of central banking protected from political interference differs even conceivably from our longstanding tradition of protecting The FTC from political interference. Other than that, you know, John Roberts likes banks and the first and second national bank are older than the FTC. And by the way, never mind here that Roberts himself admits that Andrew Jackson literally vetoed the second national bank out of existence, which reads making his arguments about The history of protecting central banking from political interference read like a bad joke, I genuinely cannot understand how the FTC is supposed to be different as a independent Federal agency than the Federal Reserve. It's also worth noting that the First and Second National Bank were not modern central banks. They don't do the modern central bank stuff. Oh, God. Here is from a source that would know what the Federal Reserve does because it's the Federal Reserve. It's part of a thing that they wrote in their 100th anniversary history project. Quote, and again, I can't emphasize this enough. This is the Federal Reserve itself from their 100 year anniversary history project. Quote, unlike modern banks, the Bank of America did not set monetary policy as we know it today. It did not regulate or act as a lender of last resort for other financial institutions, and it did not hold their reserves. What the fuck are we doing here? It is also incredibly jarring to read Roberts go from talking about how the president has total authority to choose his subordinates in Trump versus slaughter to him going, well, we Can't let Trump have at will employment of like the heads of of the people who work for him technically of the Federal Reserve. It's it's absolute legal gibberish that only makes sense when you take into account what is actually going on here. Trump versus Cook was a five four decision with Roberts and Kavanaugh joining the liberals in going, Jesus fucking Christ almighty, we cannot give control of the single most important Financial institution on earth directly to Donald Trump. Now, Mia, why are you saying this as if it's fact and not speculation? And to be clear, this is technically speculation. But I'm going to read this from Kavanaugh's concurrence. It serves as an explanation of why he joins Roberts and the liberals in agreeing that the president does ([Time 0:46:00](https://share.snipd.com/snip/8e6e6a74-6749-4bdb-91aa-45104023772e)) - **Prepare For Rapid Agency Purges** - Expect rapid personnel changes at independent agencies like the FTC now that heads can be removed without cause. - Agencies with partisan caps can be hollowed out by firing members and refusing to replace them from the other party. Transcript: Mia Wong As long as the president does not fuck with the money this court holds, that the president can wield executive power to fire the heads of independent federal regulatory agencies. Garrison Davis We will be right back to cover a few more rulings after this ad break. Speaker 6 I'm Jake Brennan, and on the Disgraceland podcast, I explore the wild lives of rock stars and unbelievable true crime stories from music history. These are the stories you haven't heard. The kind you'll end up telling someone else. Like the time Paul McCartney spent in one of the world's most notorious prisons. Imagine that. You're Paul McCartney. It's 1980. You're an ex-Beatle. And you're doing time in one of Japan's worst prisons, right there alongside Yakuza gangsters, and for a ridiculous charge. Or the bizarre crime Lady Gaga is accused of. Who is the artist Lady Gaga is being accused of doing the unthinkable to after allegedly stealing her music and style to become famous. And what about that time Blondie's Debbie Harry escaped a serial killer? The man who had given her that ride she barely escaped from was Ted Bundy. Listen to Disgraceland on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. Speaker 5 My husband is ([Time 0:54:30](https://share.snipd.com/snip/09eacc28-373c-4792-a267-f2bb5406f920)) - **Permission Rules For Carrying Guns Into Businesses Struck Down** - The Court struck down 'vampire rules' requiring permission to bring firearms into private businesses, reasoning they impose undue burdens on ordinary carry. - Several state-level permission-to-enter laws (CA, NY, MD, NJ, HI) face invalidation. Transcript: James Stout So it's time for, I guess, the less, certainly the least upsetting portion of the Supreme Court rulings this go around, which is two different rulings that involve gun rights. And particularly, at least in one case, I think a very common sense ruling. One is a lot more controversial, although I do think broadly speaking, it's still a better ruling than not. So on June 25th, the Supreme Court struck down a Hawaii law that required people carrying firearms legally to get permission before bringing their gun into any private property open To the public. This law had passed in 2023 in the wake of the Supreme Court's 2022-6 Bruin decision. Now, if you don't remember, Bruin ruled that firearm regulations must be consistent with the historic tradition of gun regulation in order to have any kind of constitutional standing. Because Bruin sliced the heart out of a lot of prior gun control legislation around the country, particularly state-level legislation, and particularly like bans on concealed carry, Right? One of the big things Bruin did is that it was basically impossible to get a concealed carry license in a number of states prior to Bruin. And after Bruin, states could no longer kind of arbitrarily make it basically impossible to get a concealed carry license, which is why you saw a bunch of states, including Hawaii, Rush to pass a bunch of new laws. And these are generally referred to as vampire rules, because if you remember your lore, vampires aren't allowed to enter your domicile unless you give them permission. So basically, you're treating legally carried concealed firearms as a vampire. That's kind of like why it got the term. As Hawaii's legislature said when they passed this 2023 law, the legislature enacted this default rule in light of ample evidence that property owners in Hawaii do not want people To carry guns onto their property without express consent. Now, in their coverage, USA Today noted that the legislature argued their law was rooted in older Hawaiian legal precedent. Quote, in 1883, for example, Hawaii's king prohibited anyone from having a knife, sword cane, or other dangerous weapon, Hawaii's attorney general told the court. Unfortunately, the liars defending this Hawaiian law to the Supreme Court also cited less pleasant precedent, bringing up the Black Codes and other laws meant to stop black citizens From carrying guns, to argue that the U.S. Has an established tradition of restrictive firearm laws. Neil Gorsuch in particular took exception to this. This law and similar laws passed in California, New York, Maryland, and New Jersey have all presumably been declared unconstitutional as a result of this ruling. They were already stayed here in California, so I'm guessing they just weren't. Yes, they stayed it pending this, I think, so I guess we'll die now. Yeah, exactly. Gun rights advocates like the Firearms Policy Coalition cheered the result. The court explained that these laws did not merely regulate where licensed people could carry. Instead, they severely burdened the ordinary exercise of the right to bear arms by forcing peaceful people to seek permission before entering the stores, restaurants, gas stations, Pharmacies, and other businesses they visit every day. That burden the court held is incompatible with the Second Amendment's protection of the right to carry firearms for self-defense as Americans go about their daily lives. ([Time 0:59:14](https://share.snipd.com/snip/36935bda-123d-431b-b196-2d37f838455b)) - **Recreational Drug Use Alone Can't Trigger Lifetime Gun Bans** - The Court narrowed prosecutions that disarm gun owners for recreational drug use, ruling the law as applied was overbroad. - The unanimous opinion limits using casual marijuana use to trigger long firearms bans and harsh sentences. Transcript: James Stout For a very long time, it's been illegal to buy and own guns while doing illegal narcotics, even marijuana with a medical prescription. This came out of the Gun Control Act of 1968, which itself was passed after Martin Luther King Jr. And Robert Kennedy Jr. Were assassinated. It banned any person who is, an unlawful user of or addicted to any controlled substance from owning a gun. So when you buy a firearm the normal way up until right about now, you would fill out a form called a 4473. And on it, you have to state that you're not a marijuana user or the user of any other illegal drug. And that you acknowledge even if marijuana is legal in your state and you have a prescription, you're still not allowed to buy or own a gun if you use it, right? That like you have to acknowledge on the form, I know that my state's laws don't matter here. And it's always been, you know, even outside of this, very unclear just how far this prescription goes, right? Like if you're a gun owner who doesn't do drugs regularly, but one night someone offers you a hit from a joint while you're already drunk or like a bump and you take it, have you then broken The law? If you go to buy a gun the next month or the next year, is that still illegal? And this has always been a gray area more often than not because the whole law restricting gun owners from using drugs has always been unconstitutional bullshit and the ATF preferred Not to talk about it in too much detail. Now that era seems to be coming to an end. In a rare unanimous ruling, the court sided with a Texas man, Ali Hamani, who had his home raided by the feds in August of 2022 due to Iran paranoia. I think a lot of people know this is how this case got started, but they like, just because his name is Ali Hamani, thought he and his family, and their Muslim buddy and his family were like Involved with the Iranian government or spies of some sort. And so they searched his home for The New York Times. When agents searched the home, Mr. Hamani told them that he had a handgun locked in a safe inside the house. He also told them that he used marijuana about every other day, pointing them to about 60 grams of marijuana in the house. In addition, agents also found cocaine in his parents' closet. Quite a house. Six months later, Mr. Hamani was charged with one count of possession of a firearm by an unlawful user of a controlled substance based on his marijuana use. Now, all of this made for a decidedly weird Supreme Court case. Hamani's lawyers pointed out that there had never been any evidence that his family was connected to Iran or terrorism, but that the prosecution brought up the word terrorism repeatedly When talking about Hamani and his family. Oh yeah, I'm sure. Yeah. Shocking to hear that. When Hamani appealed and the case wound up at the Supreme Court, the Trump administration actually had its lawyers defend the law because law enforcement relies heavily on this to Be able to tack on extra charges to people they dislike. Hunter Biden. Yeah, Hunter Biden. Meanwhile, the ACLU and the NRA wound up submitting briefs on the other side of the issue. The ruling was narrow. The court declared that the government's use of the law was overbroad and that recreational drug users should not be assumed to be addicts who pose a danger to the public. So the law wasn't declared unconstitutional, but its application was. And the precedent that this sets would seem to necessitate changes to 4473 and to the way law enforcement works. I do want to quote before we end here the last bit of the ruling from Neil Gorsuch. Quote, a gun despite this prohibition, the government insists it may imprison him for up to 15 years to disarm him for life. According to the government, none of this turns on how much marijuana Mr. Himani uses or what effect it has on him. It makes no difference either if he keeps a firearm only in his home for self-defense, never misuses a gun while intoxicated, never poses a danger to himself or others as a result of his Marijuana use. The only thing the government must show, it says, is that an individual like Mr. Hamani regularly uses any amount of a controlled substance. To square that expansive theory with the Second Amendment, the government invites us to draw an analogy between its present regulation and historical laws addressing habitual drunkards. Those laws, the government contends, demonstrate a tradition of firearm regulation consistent with its effort to disarm any regular user of any controlled substance without any Further showing. But the government's analogy fails under every measure it asks us to consider. The historical laws on which it relies targeted different kinds of people, did so for different reasons and operated in different ways, and faced with all these shortcomings in the Government's submission, we cannot say it has carried its conceited burden of showing its prosecution that Mr. ([Time 1:02:36](https://share.snipd.com/snip/2f5a2c28-ff58-48ac-8172-2df50b75eedb)) - **Geofence Warrants Qualify As Searches Under The Fourth Amendment** - The Court held geofence warrants are Fourth Amendment searches because cell-location data forms a comprehensive, non-voluntary dossier of movements. - The ruling follows Carpenter and leaves reasonableness and particularity questions to appeals courts. Transcript: Garrison Davis In a 6-3 ruling, Supreme Court found that police gaining access to location data through what's called a geofence does constitute a quote unquote search under the Fourth Amendment. A geofence is when investigators ask a tech company for location data on all cell phones or cell phone users in a certain geographical range, usually during a certain time frame. The goal is to identify what phones and by extension, who was present when a crime was committed. To quote Justice Kagan, writing for the majority, quote, an individual has a reasonable expectation of privacy in records about his cell phone location and police intrude on that Constitutionally protected interest when they demand the information, even though for only a limited time and from a third party tech company, unquote. The fact that this qualifies as a search is important because that means that it's subject to certain restrictions as laid out in the Constitution. This case in particular, the one that Supreme Court was ruling on, revolves around a bank robbery in 2019 where the suspect was seen on his phone before the robbery. Police asked Google to hand over location data for all cell phones or other devices in a 150-meter radius around the bank within an hour of the robbery. This location data would show users' coordinates every two minutes. Nineteen anonymous users were first identified. Police then narrowed that down to nine users whose movements in and out of the geofence were tracked within a longer two-hour period. That was before police then requested personally identifying information on three users, which they then used to arrest the suspect. The suspect asked that the evidence obtained be thrown out on a Fourth Amendment violation, arguing that the warrant authorizing the location data search was invalid. He eventually pled guilty to the whole bank robbery thing, but the Fourth Amendment claim made its way through the district court, appeals courts, and up to the Supreme Court. The district court did agree that this search violated the Fourth Amendment, but it didn't block the location data from being permitted as evidence because they found the officers Acted in quote-unquote good faith. The Fourth Circuit Court of Appeals initially ruled 2-1 that the geofence did not qualify as a search, so a warrant wasn't even needed. One judge dissented from this, arguing that the warrant issued was quote, so lacking in particularity and probable cause that it was invalid. And this could be important later. But the full Fourth Circuit panel re-heard the case again and came out evenly divided, 7-7, half ruling that the geofence warrant violated the Fourth Amendment. But most justices still found that the exclusionary rules, good faith exemption applied in this case. Which leads us to the Supreme Court. Monday's ruling only covers the Fourth Amendment aspect of the case, not the good faith exemption. And the Fourth Amendment question itself is split into two issues. Did the police conduct a search under the Fourth Amendment by acquiring location data from Google? And second, did the multi-step geofence warrant that was issued in that case, did that make the search reasonable? The Supreme Court found that it was a search, quote, because an individual has a legitimate expectation of privacy in his cell phone location data, unquote. But the court did not answer that second question, whether this was reasonable, whether this search was reasonable because of the warrant. Justice Kagan wrote, quote, we leave it to the Court of Appeals. The further question, whether, given the warrant issued, the search here was reasonable, meaning that each of its steps was properly described with particularity and found to be Supported by probable cause, unquote. For reference, the Fourth Amendment protects against the, quote-unquote, unreasonable search and seizures of persons, houses, papers, and effects, and requires that warrants May only be issued upon probable cause and must particularly describe, quote, the place to be searched and the persons or things to be seized, unquote. So to issue a search warrant, a judge must determine there's a, quote-unquote, fair probability, this is according to the Supreme Court, that evidence of the crime would be found and That the search is of an appropriate scope. To quote the opinion, quote, that it is carefully tailored to its justifications and will not take on the character of the wide-ranging exploratory searches the framers intended To prohibit. That wide-ranging aspect is the exact issue with geofence warrants. They cast a dragnet on everyone in a certain area at a certain time. So while in the bank robbery case, a judge did issue a geofence warrant, it was an uncommon multi-step warrant that was co-developed with Google that gave officers a large degree of Discretion on how to narrow down suspects from a wide pool while obtaining additional and increasingly personal information throughout the execution of that warrant. This new ruling by the Supreme Court is largely based on this 2018 case, Carpenter v. United States, which found that accessing cell phone location history based on cell site towers qualifies as a Fourth Amendment search, quote-unquote, given individuals' reasonable Expectations of privacy. Kagan wrote that this case is very similar to the Carpenter case, except that the location data as collected by Google is actually far more detailed and more fine-tuned than what you Can get from cell phone location records. But the government tried to argue that geofencing does not count as a search because of the short time window the location data is pulled from. The court struck this down, a ruling that the Fourth Amendment doesn't kick in only once an intrusion quote-unquote goes too far and applies regardless of the quote-unquote quality Or quantity of the information the government obtains. The other argument the government put up was that because the suspect, quote-unquote, voluntarily gave this location data to Google, he, quote, lost the legitimate expectation Of privacy, unquote. You see stuff like this argued very, very often, right? This is something that comes up a lot, is that we're giving these tech companies all of this data anyway, so how can we reasonably expect it to be private? This is the third-party doctrine, which was originally for bank records and cell phone numbers. But the third-party doctrine was not applied to Carpenter v. United States. So Justice Kagan wrote that for the very same reasons, it should not be applied here to location history collected by tech companies. ([Time 1:08:02](https://share.snipd.com/snip/f697c207-46b6-46a6-8cee-49ff9438a372))