Born in the USA

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1:04Hello and welcome back to main justice. It is Tuesday morning, September 8th. I'm Andrew Wyspin and I'm here with my co-host Mary McCord at one. I say here, it doesn't feel different for you and me because we always would look at each other, but now everyone else can look at us too. You're in and see us too, exactly. This is episode two of our YouTube extravaganza. It does make the mornings more stressful because you got to look like camera ready. So it's not the same as it used to be, but especially because we're doing it earlier this morning. Yes, and one of us is more camera ready than the other. I actually wanted to say thank you to obviously to all of the loyal listeners who have been listening for years and years because we've been doing this for almost three and a half years. God, wow, it's amazing. But we started doing this on YouTube on video last week and our numbers sort of

2:09popped. And so for all of the new people, a big welcome and thank you. And also, Mary, I know you mentioned this to me. Both of us had very personal issues this summer with bizarrely both of our mothers having died this past summer. And you really feel like the community is out there and I wanted to thank and I'm sure you do marry through the number of people who sent emails and cards and angelic messages. Yeah. I just wanted to say thank you. It really is lovely and we know you're out there. It is so lovely to feel the reciprocity. It's great. So thank you all very much. And I would also say two things in addition to that. One is that it just, you know, sometimes you and I talk about so many terrible things happen in the world and sometimes I get a little bit down on humankind. But when things like this happen and you get a handwritten card

3:13from somebody, you're like, okay, they're a good people out there. Thing two, I have got to start writing cards, not emails, like cards written by hand now. I won't promise anybody. We'll ever be able to read it. But when you get a card in the mail, the regular mail, somebody took the time to write, that is just such a thing. And it's kind of a lost art and lost tradition that I think we should bring back. So I'm totally afraid of all of you who sent comforting wishes to me. Okay. So this is a weird thing to say, but that's a really good transition. Too bad. Because we have lots and lots of updates on cases that we have been following now for the past two weeks. And, you know, we had said to people, these are like stay tuned because things will be happening imminently. So with that transition, because it really, I think first up is decisions involving the mail and what Donald Trump and the United States Postal Service are trying to do. So

4:18Mary, what's on our dance card? Right. This is so interesting. Because we've never had issues that have had so many developments week after week all in a row. A lot of times we'll come back to things like a month later or two months later. And this is literally every week. There's so much more we need to talk about. So we will start with the continuing drama over the new mail-in ballot rule, which is a result of President's executive order from earlier this year. It is now up in the Supreme Court. But I mean, it's been up there twice since we talked last week, right? So we will fill you in on the dramatic developments over the course of the week and where that stands. We will also talk about developments in the case of Minnesota versus Castro. This is what the start we were talking about the last two weeks, Minnesota versus Abbott, because the state was trying to get extra edition of somebody who was wanted on criminal charges from the state of Texas and Governor Abbott was not signing that request. And Christian Castro. Now the federal government has indicted Christian Castro and he has in fact been arrested appeared and he will be appearing in

5:20Minnesota later this month. Then we will update you on what has happened in the birthright citizenship case, the executive order, the new executive order, the judge in our case, Kasefi Trump, issued a preliminary injunction last week. Congratulations. Thank you. That protects the citizenship of everyone in the plaintive class. And we will talk about that because this has not been an injunction against the entire executive order for anyone it might apply to who is not in the plaintive class from the Kasefi Trump and Barbara V. Trump classes. And I think that's important for folks to know, but attorneys are working on potentially another challenge. Beautiful decision just a bit of a spoiler alert and we'll try and quote some of it, but I was telling Mary just as they say in the green room, which you know, we have no green room. My room's okay. Beautiful beautiful decision. And obviously that's going to I think go all the way back up.

6:22We'll see whether Supreme Court takes it. So what else? Yes. And then we debated whether we should start with this and probably if we'd have recorded last week on Tuesday instead of Monday, maybe we would have started with it, but the ballroom decision. We of course had the Supreme Court stay the injunction against construction of the ballroom. The dissent included the chief justice who wrote the dissent. And I think it's important for us to talk about and none of this is about the merits about whether the president actually has authority to build that ballroom. In fact, one of the things that chief says in dissent is likely he does not. And that's one of the things so troubling. Yeah. So we actually have four justices who say likely he does not and the majority let's go forward, but they're they are not saying that it is lawful. That's right. I have a spoiler alert and this is this is one of these things where I'm not sure if I say this, people are going to like, gee, I can't wait to hear Andrew on this. But I really want to talk about

7:22people are going to be like, what are you talking about? How does this relate? But here it is. I'm going to talk about the French constitutional court. Okay. They have a different way. And I'll be really interested, Mary, in what you think because they have a way of avoiding the situation that we're in and that happened here where you have all of these where I'm sure people who are non-lawyers are going, what is with this stuff goes up to the Supreme Court goes down, it goes up, it goes down. If they want to delay it, they say, oh, you have no standing or oh, it's too soon or it's too late. I mean, all of these procedural mechanisms or the wrong person brought this case, somebody else needs to bring this case. That's not the French system. And the French system to me makes a lot more sense. And not saying they're all everything's like all upside, but that's my spoiler alert. Well, the Parisian in you is coming up. As a friend of mine says, and it's so well hidden. That's right. Hey,

8:24anything that has to do with France, including French food, I'm here for it. So we do a quick like get everyone up to speed. I think when last we left the saga of the men, that was. We had had Judge Talwanne in the District of Massachusetts had issued a temporary restraining order against the final rule. You know, she had originally tried to enjoy things. This had gone up to the Supreme Court. They had said too early. We talked a lot about this last week because the final rule hadn't been issued. The final rule got issued. It got challenged again by California. It got challenged again by the League of Women voters and other voting rights groups. She issued a temporary restraining order. And that would have been only good for 14 days against this rule going in effect. So of course, the US Department of Justice quickly ran to the first circuit and asked for a stay. And when the first circuit didn't act immediately, ran to the Supreme Court and asked for a stay. Can I just stop there for a second? So this is the Department of Justice who is focusing on procedural niceties when it's to their

9:28advantage. We'd have the help of the Supreme Court that will say, oh, you brought the case to soon. There's a problem. Or when you get to the ballroom case, the wrong person brought the case. And they're like all about procedural niceties. And the Supreme Court is with them on that when it's helping the department like, oh, yep, you brought it too soon. Even though the final rule was issued like or the wrong person brought it. But here, just to people are focusing on what you said, there was a temporary restraining order issued at the trial court. Normally, that's not even appealable. I say normally, it's not impossible, but it's normally, it's not. They, as is their right, the government takes it to the first circuit. But before the first circuit even rules, they run to the Supreme Court. The normal reaction from the Supreme Court should be, you know, Mr. procedural niceties. Yeah. I'm sorry. What? We will rule and decide or decide whether to take this after, not before the first circuit rules, especially

10:33since you've been in the first circuit for a New York minute. That's right. Even if even that. I'd say a nanosecond. But yes. So yes, yes to all that. So they run up to the Supreme Court. Meanwhile, Judge Tawani, then on Friday, I believe, issues in actual preliminary injunction. Because as I mentioned, a temporary restraining order is only good for 14 days. Well, that is obviously not going to be adequate when we're talking about a rule that applies to this election November 3rd. So she issued a preliminary injunction, which says you cannot apply this rule to this November 3rd election. We'll talk later on the merits in a full decision about future elections. But right now, I find likelihood that this is unconstitutional in violation of the elections clause. And just to, you know, remind people, the elections clause says the times, places, and manner of holding elections for senators and representatives shall be prescribed by each state in each state by the legislature thereof. But Congress made any time by law make or alter

11:36such regulations. What it does not say is the president made any time or the US Postal Service made any time by law make or alter those. So basically it's, it's kind of a repeat. And this is the decision she had initially given it is basically like, okay, I said what I meant, I meant what I said. And now there's a final rule that's been issued. So it is ripe. She goes through why it is now ripe. It satisfies the requirements. And it's not speculative, which was the Supreme Court's concern. And she issues the same rule and to her credit, by the way, not only does she do the TRO, but then as you said, it goes to the preliminary injunction. But that's very much sort of, and I think in full faith to and not playing games with the Supreme Court saying, you know what, I'm going to make sure there is a preliminary injunction that that is something that can be appealed. There's no issue about. And it's not sort of saying, oh, I'm going to play some sort of gotcha procedurally. I'm going

12:38to act very, very quickly so that the parties do have all of their appellate rights without procedural hurdles in there. So I gave her a lot of credit for acting so quickly and doing this. And then what you want to see that judicial group doing. Yeah, and the reason you've said that just so listeners know about making sure the appellate rights are there is that there is some question about whether a temporary restraining order is actually appealable. And generally it's not unless when the Supreme Court just decided to say except this one acts like a preliminary injunction. So it's appealable. So it's not until it is. But preliminary injunctions clearly are appealable, right? So what this did, and I should just say the other thing and we'll come back to this when we talk about really the merits. The other thing she found is that this would be just a reprobial injury for the states and the plane of voting organizations if we did not stay this for the November election. Because among other things, we have states who by state law already are having to, you know, mail out the mail in ballots, including North Carolina, which I believe mail them out already already has mailed them out.

13:42Yep, that's that actually easy. Yep. It was sort of like this is impossible. We can't just, we just can't do this for this election. So. And can I just say on that the impossibility, there's both the impossibility because of what the states would be required to do because they they're mailing things out. And if they want to create these lists and give them to postal service, there's just so much mechanically they have to do. That's on sort of the state side as you would say thing one thing to is that on the postal service side, it's not clear they're ready and that their website and portal is ready still under construction, I believe the portal. Exactly. One of the district court points is that there isn't even a time frame in terms of when the postal service, so if he gets the list from the state, when they're going to get back to the state, they basically said, we'll try to do it quickly. I mean, yeah, that's, you know what? That's not a timeline. And so both of those things are sort of crazy, just as a practical matter,

14:44even if you thought this could be done in the future, this is too late. And there's a consequence to that, which is what Judge Tawani found, which is that the result could be that voters will be disenfranchised, right? In other words, if the ballots that the state has used, the mail-in ballots are not the ballots that got pre-cleared by the postal service. And those that have gone out and that are going out this week are not ballots that have been pre-claired by the postal service. And that the rule is, if the rule is not enjoyed, the rule says we, the postal service will not accept ballots that are not part of our system, where we've pre-cleared them and where the state has provided a list, uploaded a list of eligible voters into the portal. Their plan under the rule is to then essentially compare the voters on that portal to the mail, the ballot envelopes to make sure they sync up. And if it's not on that list, we're not going to deliver it. What does that mean? That means voters will be disenfranchised. And that was an important part, I think, of her finding a reputable injury here. And we can talk more about this, just get us

15:49procedurally to where we are and we can talk about what the S.G. the solicitor general is arguing. So she does this on Friday. So that meant that the emergency motion for us day that the Department of Justice had already gone to the Supreme Court on with respect to the TRO was now moot, meaning it's been overcome by events. It doesn't matter anymore. Because there's no more TRO, it's now an injunction, right? Yeah, it's dissolved. It's now an injunction. So then the solicitor general had to go into court and tell the Supreme Court as did actually the plaintiffs. In the original case, this is now moot. The judge had put out our decision on Friday and then Sunday morning, the solicitor general, the Department of Justice, Sunday morning, and Liberty files again, another emergency request to the Supreme Court seeking a stay of Judge Talwanis decision. He also sought an immediate administrative stay. And listeners will know that sometimes while the Supreme Court is deciding whether to actually grant a longer stay, whatever justice this comes to, and the justices take cases from different circuits, they're divided up by circuit.

16:53Whatever justice it comes to, can say, well, I'm going to administratively stay it right now in the short few days while we the rest of the court consider it. Judge Jackson refused to give that administrative stay. Because Justice Jackson is the justice that oversees the first circuit, which is where this is. And we talked about how different justices have oversight for those sort of emergency stay applications. And she put justice for DC, which we saw in the ballroom case. But here it's Justice Jackson for the first circuit, which is up and busted. Yeah, that's right. But what she did do is she said, both of you, the plaintiffs, again, I'm clinging the plaintiffs because they were plaintiffs in district court below. They're not the petitioners. The petitioners is the US government. Everybody needs to file whatever additional things they want to file by four o'clock Wednesday. But with every passing day, we're just getting closer and closer to the November 3rd election. So what did Solicitor General John Sauer say to

17:54the Supreme Court to try to convince the Supreme Court that they should stay this in junction? First, they said, it's not too late because they pointed out how various states can comply with this. I thought they did a particularly poor job in that. But that was sort of like, when you think one is like, oh, no, no, no, it's not too late because lots of states can do this. They didn't do a really good job of saying like why every state can do this. And so, and then you really need to because the point is you're going to disenfranchise people if they can't. So I suspect if there is argument on this in the Supreme Court, that is going to be a major focus is the practicalities of this. And it's the kind of thing that you can imagine, justices who are trying to duck or not sure about the merits could basically, enough of them could get behind that issue. And before you move on to that, because you mentioned you thought not too persuasively that argument, I should have mentioned that Judge Talwanee, when she was ruling about what the states could do and what they couldn't, she had been provided

18:56by the plaintiffs, declarations from state after state after state saying, we can't get this done in time, right? And on the other side, maybe there was like one saying we can do it, Alabama, maybe there was more than one, but there was very, it was not a balanced scale. I thought it would have been interesting to have a hearing at the district court level about the postal service's ability to do this because I am really not sure that they're ready. And I just think a hearing would have been kind of interesting to say, you know, what I need you under oath to be like saying how you're going to actually be able to do this. And so, you know, I again think that side of the equation would be the focus of oral argument. The second thing that John Sauer, the solicitor general, did is he tried to sort of minimize what the rule is and spent a lot of time saying this has nothing to do with voting. This is just about traditional things that the postal service regulates. So if you want to send

19:59cremated remains of relative, if you want to send sort of apparent explosives, they're also to require replica weapons. And so he tries to say this is no different than that. I mean, I didn't find that terribly persuasive. I could just hear the chief here going like I'm sorry, you're going to analogize mail-in ballots to remains. But here's something I wanted to point out because I thought I really want to sort of focus on this because I want if there are any judges or lawyers who are going to be arguing this, I really want them to focus on something that I think is a slight of hand. And this is from John Sauer's papers to the Supreme Court where he's minimizing what he says are the real import of the final rule by the postal service trying to say, oh, this is not a big deal. The states get to sort of always remain in control. And this is I'm going

21:01to just directly quote, the postal service will not perform any verification of voter eligibility. Its role is limited to ensuring that envelopes comply with the rules design and informational requirements. And it goes on, state election officials will thus retain full control over who is permitted to vote in federal elections in their state by US mail. Why am I raising this? Because repeatedly the brief says the postal service will not do it. It doesn't say the United States government will not do it. And to me, that was such a tell. So if I were one of the justices, I would be pointing that and saying, are you telling you use postal service, but are you representing nobody in the federal government? This is what's going to happen. When you read this, I think this is not meaning cynical. The postal service has the information. The whole point is they're going to give it to somebody else and they will do it. If you meant to say the United

22:06States government won't do it, then why didn't you say that? And it's not like I picked at one sentence. I mean, it's repeatedly that way. And there are other places where they say the United States government. So to me, it is like, I think this is like, they were hoping people wouldn't focus on this. And to say, well, the postal service wouldn't do it is like, who cares? That's not the issue. It's well, the, with the United States government interfere. And the reason I think you're bringing this up is because even though right now it's not this US postal service telling the states who can be on the list, it's the, the states having to tell the US postal service. But still, that is providing the US postal service with a whole bunch of information about eligible voters in each state that the postal service that can then share. And that's part of like so many things that we've been seeing, including a new OLC opinion issued last week, which basically said under, you know, reversing a opinion that dates back to the Clinton administration that it interpreted

23:06some provisions of essentially the immigration nationality act to say used to be that said, if a state takes what used to be called food stamps, it's now called TANF temporary assistance for needy families. If it takes government assistance from the US government, used to be that only the agencies that actually administered that assistance within the states needed to report up if somebody was a non-citizen because they weren't eligible for the benefits in those states if they were non-citizens. This new interpretation, believe me, stay with me. You'll see where I'm going with this. This new interpretation is no. If any state takes that benefit, that assistance to provide that assistance to their to their residents, that the whole state, every agency in the state has to report up to the federal government any non-citizens in the state. Why do I bring this up now? It's all about benefits and assistance for needy families. It's because again, what the federal government is trying to do through every possible way is to amass data about

24:07Americans, or this appears to me what they're trying to do, and about those who may be non-citizens, partly so they can help their mass deportation program, partly so they can make sure benefits are cut off, and partly so they can try to overlay that onto data about voting and support this notion that has been debunked over and over and over again that non-citizens are voting. It just seems like the clause of getting information about people in this country just is using every possible manner, and that's why I think this idea of all this information with the US Postal Services concerning. So we will no doubt next week be doing episode four of this continuing episode of mail-in ballots. I just wanted to put a fine point on this to your last point, which is all of this is predicated on this false notion that there's this rampant problem of fraud in the election, and this is where the solicitor general didn't have the temerity to actually repeat that

25:11in the Supreme Court and said, well, this is just a prophylactic measure to make sure that we're helping to deter fraud, but he couldn't even bring himself to make the claim that Donald Trump has made that there's this rampant fraud going on, and that's why you need this. And so that's where you're seeing what gets presented to the court is not in fact what gets presented to the public. Okay, let's take a break and we'll come back some good news. Hi, I'm Sean Evans from Hot Ones and I want to tell you about YouTube Premium. It has offline downloads so you can watch without Wi-Fi, background play, so you can lock your phone and it still plays baby. Oh, and it is completely ad-free.

26:17Yes, I said it ad-free. Try YouTube Premium for two months free at youtube.com slash premium. Trial eligibility varies, terms apply, cancel anytime. Pick up a pack today, Angel Soft. Mary, so congratulations because you got this win. What happened? What did the court rule? I've obviously read it. There's some wonderful, wonderful language in the decision,

27:18trumpeting, birthright citizenship, but what did the court actually do here? What was enjoined? Who is protected? And as you mentioned, the outset, who is, I will say not yet protected? Right. So the court issued a preliminary injunction against the application of the new 2026 executive order that attempted to limit birthright citizenship in primarily in three ways. She said that cannot be applied to the plaintiff class of babies born or who will be born in the United States even when they are, they don't have a citizen parent or they don't have an LPR parent and whether the parents are here unlawfully or lawfully but temporarily here. Right. So people here on student visas, work visas, asylum seekers, temporary protected status. That was the plaintiff class in not only our case, cost of the trump, but also the case, Barbara V. Trump, which went to the Supreme Court on the merits. That's the plaintiff class that

28:22challenged the 2025 order. So that covers lots and lots of people, right? Babies born or who will be born when neither parent is a citizen or LPR, right? And they were either unlawfully or lawfully but temporarily here. And what the court said is the Supreme Court has already held in Barbara V. That's the minimum parents. Yes. The quote, children born of parents unlawfully or temporarily present in the United States are citizens at birth under the Constitution. And so she said, so I'm joining the 2026 executive order as to those children. Now, who is not covered by that? It's not entirely clear because we don't have all of the implementing guidance that is do now wish the Department of Homeland Security did put out an interim final rule on Friday, I believe it is, with respect to one category of people covered by the new executive order, but rules need to come out and guidance from all kinds of federal, Department of and agencies. Because what the new executive order purports to do is remove citizenship or deprive children of citizenship. If either parent

29:30is not a citizen, LPRs are not protected under this. Either parent is not a citizen. And one parent is an alien enemy, which remains undefined. And as we know, this government likes to use that term alien enemy quite liberally, including with respect to Venezuelans, alleged to be members of Trende Aragua without any real evidence, except maybe at tattoo, or alleged to be members of other cartels recently, denominated foreign terrorist organizations, again, on pretty dubious types of analysis. So of course, none of, you know, nobody scared about this is going to say, hey, I'm a member of a foreign terrorist organization, but they fear reasonably that the government will say they are, they're from someplace like, say, Venezuela, that's one category. The other category is children of not just ambassadors who are already excluded from citizenship because they have diplomatic communities. So they're not really subject to the jurisdiction of the laws in the US, but also just children of other foreign government employees who work for a foreign government, who work for an

30:32international organization that has diplomatic immunity for the organization, but not the people. So that's a big new category of people who the parents are here certainly, lawfully, they're working, you know, for a foreign, you know, for their foreign government. And their babies who always in the past been citizens would not be citizens under this new rule. And then the other category is people who engage in a commercial transaction to come to United States to have a child or engage a surrogate in the United States to have a child. And this is trying, I think, to be getting at this idea of birth tourism, but it stated much more broadly than that. So people who bought a plane ticket and came here and later got pregnant and had a child are worried, well, will this apply to me? So there are people within our class who are part of all those groups, but there could be people outside of our class, particularly, you know, children of LPRs and in other circumstances who were not part of that plane of class. Yeah. And this is one where, as we've said, you know, if you're concerned about sort of birth tourism, you know, that can be criminalized. It is criminalized and you can go after

31:37that. And so it's like, where's the data? And what makes you think that you aren't having the deterrent effect? And if you think there's a huge problem out there, where are all of your prosecutions that you are supposed to be bringing to deter all of this? To me, reading this decision and seeing the judge talk about, you know, this is a simple case because it's like the Supreme Court has already helped this and you're just basically doing something that Supreme Court said you can't do. And with a fig leaf of pretending it's different when it's not, you know, CEG, you're not following the rule of law is like, this is all about politics is blaming the court being able to politically say, see, I'm against immigration. That's right. And it has nothing to do with the law. I thought one of the most poignant pieces of this that was not totally new to me, but I thought it might be new to some of the people who are viewing is the court gives a brief overview of

32:38why it is in the 14th Amendment that we have this idea of birthright citizenship. And she mostly relies on the Supreme Court majority opinion, right? I mean, she just basically quotes from it, yes. Absolutely. And she's quoting from the recent Barber case. And she said, as the civil war approached, came the odious decision in Dred Scott. In Dred Scott, the Supreme Court held that free black Americans born in the United States were not citizens of the United States because as descendants of slaves, they were not included and were not intended to be included under the word citizens in the Constitution. In 1868, I'm continuing to read from her decision, Congress passed the 14th Amendment to repudiate Dred Scott and to put the great question of citizenship beyond the legislative power altogether to settle the issue once and for all. And the ultimate

33:38conclusion was a child born on American soil and subject to American law was made an American citizen. So that is the history of this provision. And it's useful for the people who, like me, view a lot of what the Trump administration does through a racial lens. It is useful to remember that is the history of the people who have monkeied with and toyed with this idea of a birthright citizenship. And it's useful to remember the history of why it is that this country with its unique problem of slavery was countering this and what we are dealing with now, which is a Trump administration going back to the court on something that the court says, this was decided. You're running directly contrary to what the court know admittedly five to four decided

34:44constitutionally. That's right. And you know, even before getting to Dred Scott, and I think one of the things that's so important about that is like this birthright citizenship came over from from Europe came over from England where anyone born on the soil. It's called Jews solely in Latin born on the soil and subject to not only the allegiance to the king, but the protection of the king. If you were on that soil and you weren't like an ambassador who was still being protected by your home country. So it created this fiction that you won't really on the soil because you were you were an ambassador from another country. You had diplomatic immunity. That's why ambassadors, children don't get citizenship, but that fiction doesn't apply otherwise. You're on the soil, you're subject to the kings, jurisdiction, you're subject to the protection of the king, you're a citizen. And that came over and as Judge Deborah Bordman out of the district of Maryland said that was just not controversial until Dred Scott, right? Exactly. And that's when you know,

35:45the people had to through the constitutional amendment speak. I will say even though as you indicated and as the judge indicated, she was able to rule on this quite easily because the Supreme Court had already said everyone in that plaintive class is a citizen. She did go through the merits and why any of the ancient exceptions, ambassadors like we're just discussing, denouple, indians, American Indians because they had their own sovereign territory. They've since been provided citizenship by the Congress by statute, but they were also an exception. But she's gone through why this alien enemies and children of people who work for foreign governments and people who engage in commercial transactions. That doesn't fit in with any of those historical exceptions, even though she doesn't even have to totally go there in terms of ruling in this case. And last thing I want to say about her ruling is I really like this line toward the end. The Supreme Court has spoken children in the certified class are citizens at birth. Barbara is

36:49the law of the land. The president must follow it. Love it. Yes, I have seen already the Attorney General Todd Blanch speaking on news program Fox News saying that the government felt like this new executive order was authorized by the exceptions that the Supreme Court acknowledged in Barbara and that they if they need to will take it all the way up to the Supreme Court again. So we shall see. So on more good news, the federal government has now charged Christian Castro, the ICE agent who was already had been charged at the state level with making false statements and also assault. And he has now been charged by the federal government with accounts of making a false statement to the FBI about what happened when he shot at Mr. Sosis Salise through this door when there were minors and other people present in his house. And the reason this is relevant is if you remember

37:51Texas had said no, we're not going to extradite him. And it was subheld by the trial court to Minnesota. And then Mr. Castro was released. And so there was a whole issue about like how will he could he flee will he ever have his day in court in Minnesota? I don't know why the federal government didn't step in earlier because they've known about this for quite some time. And normally if you lie to the FBI, the institution that would have the greatest interest in vindicating that crime would be the FBI and the Department of Justice, but they didn't. And then also they could have avoided the situation of his release. But it's six counts of false statements. Mary, you at the outset said there was have been some reporting about some controversy because as I mentioned at the state level, it was false statements and assault. I mean, assault was really the driving charge at the state level because we're talking about shooting at Mr. Sosis Salise hitting Mr. Sosis Salise

38:52as well as in that home through the door. I mean, that is an assault by any measure, right? Exactly. And those allegations are now in the federal indictment that that is what happened. It's very, very specific. This the federal indictment because it's all on video reported so they know exactly what happened. And Mr. Sosis Salise is a pure victim of this in terms of what happened and it's peers. I mean, obviously, Mr. Castro will come up with his defenses, but it appears that he is dead to rights on this. But what's the issue? What else could he have been charged with? Sure. And just to be clear, the extraditionist request was all about the state charges, right? And that's where the court said, well, Abbott hasn't actually denied it yet. He's just sitting on it and maybe at some point he'd sit on it so long we'd call it a constructive denial, but he doesn't done that yet. That's why Castro was released, feds bring their indictment. He appears in court and he's now supposed to be in court in Minnesota in September 18th. And by the way, when he's in Minnesota on because he's extradited on federal charges, he'll be

39:56able to be transferred to also be the state charges there because he will then be in the jurisdiction. That's right. So it sort of fixes that problem, although we still have a problem about a state governor refusing to sign extradition papers, but now he will be in Minnesota. So these false statements, each one has to do directly with what Mr. Castro said to the FBI about what happened that day that turned out to be a lie because it was on video what happened that day, namely. So each count is a specific lie. So the first one, for example, just to give example, to which Castro stated to the FBI that an unknown male grabbed a red groom off the front porch and started hitting Castro with the broom. This statement and representation was false because as Castro then and there knew the following facts were actually correct. No person struck Castro with the broom and that time in place, right? And each of the six counts is like this, a detail that Castro reported which led to the federal government initially charging social police with crimes. The federal government then had to dismiss those because of the lies and

41:02that is now what has been charged. And the reason there was controversy is that at least according to the reporting, and this is completely consistent with how I think you and I know these things would have been handled whenever you have an officer shooting, the civil rights division at main justice looks into whether there should be civil rights charges brought. In other words, attempt to deprive someone of their civil rights. When you shoot someone, you are depriving them of some of their civil rights. What the reporting is is that the civil rights division said no. And that this was controversial because the people in the US Attorney's Office in Minnesota felt very strongly that the facts here supported a civil rights violation. And I think so too, because unlike a case where there's a shooting and the federal agent is saying it was justified because I was acting in self-defense. And so then it's more questionable. Was he really trying to deprive someone of their civil rights? Here we have him lying about the person assaulting him, lying about it. So what

42:03could be more of a trying to deprive someone of their civil rights than not just shooting them, but then lying about it? So to me, this is like one of the stronger cases. Classic case. Right. Yet it was apparently not approved. They did go forward obviously with these false statements charges, not nearly the same sort of significance in terms of the level of the charges and the seriousness of the charges. It's serious. No question, but it's not like a civil rights violation. And the reporting is, well, what we've seen is that apparently the AUSA, Assistant US Attorney who was investigating this in Minnesota had written an email to counsel for the victims, Mr. Socillis and the other people in the house that expressed, and you know, you don't really do this when you're an AUSA, expressed that he was so disappointed and had tried his hardest to convince the civil rights division that they should bring civil rights charges, but that he was overruled. And that's kind of like sharing the how the sausage is made that is really

43:07internal information that shouldn't be shared. And it shows to me how strongly he felt about it. And how much he thought that something was wrong about it. But what we are hearing now is that not only has he been fired, and again, this is just what I'm seeing reported, but potentially is himself under criminal investigation, which I find. I guess I'm not surprised, but still it's startling. Right. I mean, unless they come up with something, there's nothing about the facts that you recounted that would suggest a criminal violation. And it, to me, seems like it's being done to a sort of brushback and to instill fear in him, but also others. And it's so clear that this could have been brought. The Department of Justice in announcing the charges does say in their press release that the investigation is continuing, but you know, that's a pretty standard thing to say. And to me, if you were in fact going to bring a civil rights charge, it's like, well, why didn't you do it now? I mean, it's not like there is additional information and facts that

44:13you would need to do if you were able to do this charge. But to be fair, they are saying it's continuing. And so it is possible that we will see those, you know, and it is no doubt it was very belated that they brought these false statement charges. So it is possible that they will belatedly bring civil rights charges. But that is not the reporting. The reporting is that they decided not to, which to me suggests some real tension within the Department of Justice about who's running the show and what they're willing to do. It is at least a case there where they are finally charging a federal agent for doing something that is truly at least allegedly outrageous. And they are bringing it as opposed to just saying, you know, what only the state did it and we're not going to intercede even though we have Texas not producing them. So it is belated by good news in terms of the sort of half measure that they have taken. And it does mean that Mr. Castro

45:19will have his day in court that the victims will have their day in court to see justice done. So, Meredith, should we take a break and talk a bit about what happened in the bottom decision and my talking about the French Constitution court. Yes, that's right. Can we? I know everyone is waiting to hear. Yes, let's do that. Followed by the French Constitution Fall is full of tough choices. Pie or Cobbler, sweater or jacket, compost the leaves or jump in them. Some decisions are easier to make than others, like acquiring your favorite model at the El Certified by Lexus Fall Collection Sales Event. With an unlimited mileage warranty for up to 6 years, it may just be the easiest decision you make. Now through November 2nd, see your Lexus dealer. Vellig for 2 years after expiration of 4 years, 30,000 mile new vehicle basic warranty or 2 years from El Certified to purchase Lee State whichever occurs later. See dealer for details.

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47:23Well, welcome back. So as everyone probably knows by now, the Supreme Court allowed the construction of the ballroom to continue. This was not a merits decision. This was again one of these emergency applications for a stay of the lower courts decision. Here we had had both the district court and the DC Circuit say no, you've got to halt this ballroom construction. But a majority of the Supreme Court said no, it can go forward. Essentially buying into the really into a lot of the government's arguments about this is now a national security issue. You know, we talked last week and the week before about how the government had very belatedly made a national security argument and really belatedly just at the Supreme Court level submitted declarations of people like the CIA director and the FBI director, etc. about how how much you had to have that ballroom to protect the bunker and all the other things that are underground for national security purposes. But the real reason though for granting the stay was in their view,

48:29the plaintiffs did not have standing. Now the plaintiffs here are the national trust for historic preservation of the United States and in particular they highlight that is a membership organization which means that if one member has standing, the association has standing and the other members have standing and the member was a person who is a historian who writes about historical buildings including the US Capitol, who lives in DC, who views that building regularly when she goes by it. And yes, these are aesthetic injuries that the Supreme Court has in the past recognized as sufficient for standing. Standing means you are injured by the thing you are challenging. It's traceable to that thing you're challenging and if that thing you're challenging we're struck down you would not have your injury. That's the what standing means. And even though the majority recognize that yes, we have in other times recognized aesthetic injury one time in particular with respect to endangered species, something that the government was going to do which would have threatened an endangered species that someone who studies that species and

49:32likes to be able to observe that species would be injured. And they give other examples too. But they said here this is basically somebody who wants to look at the Capitol. That's insufficient, that's a general grievance. There's no standing. Never did the majority say this is key that what the president did here was authorized by Congress, authorized by the Constitution, authorized by anything. Never did they say that what he's doing is lawful. And that's what prompted a dissent that it was written by the Chief Justice and joined by Justice Sotomayor, Kagan, and Jackson. And I think that's where it's really interesting to focus. Yeah. So in the dissent, the Chief Justice says one, as you pointed out, that the Supreme Court has recognized this kind of aesthetic injury. And it's not just mere aesthetic injury. And he talks about what's going on here, the uniqueness of both the White House as a symbol, it's a stark relevance to the country, and talks about the

50:36interest and the expertise of the plaintiff and the plaintiff's organization. And says this fits well within the Supreme Court's jurisprudence. In other words, there are cases that support this is not something new and novel. And he talks about the remarkable nature that you could now have the situation, which is that the president has acted illegally, which he says is likely, which is why he would have enjoined and not issued a stay of the stay. He would not have granted the governs application to be able to continue building. And we're in the situation he said, where we have something that could very much be illegal, which the Supreme Court is ignoring on the ground that, oh, that like we don't have somebody who has the standing, the injury, in fact, to complain about this. And so we end up with the entire East Wing being demolished and a new thing being built. And none of this, whether both the destruction and the building is approved by Congress,

51:39which has the authority to do it. And we're just standing by claiming that the wrong party sued. This is literally the third sentence of the Chief Justice's opinion. That construction is likely unlawful, right? I mean, that is how significant this was to him. Like we're now talking about the majority, like you said, letting the president do something that is likely unlawful. And he goes on to say the statutes that, you know, the government is trying to say, authorize this, they just absolutely don't. And then he criticizes the standing ruling. And remember, I mentioned that in Dangered Species case. And this is what I think is so key. He says, essentially, our presidents have noted that an injury to a plaintiff's mere aesthetic interest can qualify as concrete and particularized harm. And we said in one of our leading standing precedents that if was of course true, that a desired to observe an animal species like a particular crocodile, even for aesthetic purposes was undeniably cognizable interest for purposes of standing. But now what he says is by the court

52:40rejecting the standing of the plaintiff here. It is now the case that quote, I want to look at a crocodile can adequately answer the ever critical, what's it to you? Question of Article 3 standing, while I want to look at the White House cannot, no matter how distinctive the particular viewers interest in looking at it may be. This is just the crucial part. And what he then says is today's decision is no victory for the separation of powers. Right. Because the point is that this was Congress's power and the Supreme Court is not doing anything. Now, of course, you can blame Congress up one side and down the other because they're not doing anything either here because they could be suing, they have standing. But according to the four justices in descent, the plaintiff said standing here too, in France, they have solved this. This sort of restrictive standing rule when you have a congressional statute that is at play can automatically go to the constitutional court for a ruling.

53:42And there isn't sort of restrictive standing. The idea is that before a statute gets implemented or as it being implemented, the court can be asked to opine on, well, is it constitutional? So no one gets hurt by it. And you don't have this problem of, oh, let's wait and see. And it's Congress the only one who can bring the lawsuit. Who's challenging it? Is it too soon? Is it too late? Is it the right person? All of these things? It's like, wait a second. If there's no power because this is a statute that Congress in their case, you know, the legislature has issued, but it's against the Constitution, then the court in the constitutional court gets to say, right up front, no, it doesn't work or some piece of it doesn't work. And this idea of relying in this situation on these rulings about sort of ripeness and standing and these technical

54:42issues, which by the way, the court is happy to look way beyond when it wants to. That's right. And so it's not like the court is totally consistent in terms of how it applies. You know, we both teach in, you know, with the court's standing rules, I one word, thank goodness, I do not teach the standing part of the law school curriculum because I don't know how I would teach it because it's so completely inconsistent. Try being a litigator, like every case will work. Where are we going to have that outstanding, right? And this is a perfect situation where you have law completely on your side and the court just ignores it, which again, other countries have figured out how to deal with this, where you have something that at least four justices have said is legal. And the other five are not saying it's legal. All you need is one to agree with the four and you would have a majority of five saying it's illegal and the court hasn't reached that. And yet, we're going to get saddled with an illegal destruction and construction because of our rules. Put this in the category of things that could change. That's right. Going forward on the 250th

55:47anniversary of our country, you know, we have seen with Donald Trump the inability of the judicial system in so many ways to wrestle with this kind of machinations and abusing the legal system. Yeah. And it's just, you know, if he goes forward and destroys the East Wing, which is what he did here with no authority and starts building something, there starts to become a little bit of a feeling of, I mean, certainly the government argued too late. Like it's 65% done. You've got to continue it now. You know what? You don't. You can tear that thing down. Yes, you can. And yes, does that cost money? Yes. But if you don't do that, then what have you done? You said, it's perfectly fine to go ahead and do a thing and then say, sorry, it's too late now. And what I'm now worried about is this triumphal arch that is supposed to be built at a circle that's between Arlington Cemetery and the National Mall. It is an area that is just an open circle right now so you see this beautiful view if you're at Arlington Cemetery where thousands of our veterans of

56:52wars are buried. It's a seldom and beautiful view. He wants to put this 250 foot triumphal arch right in the middle of that view. And even though that is tied up in litigation right now is suggesting I can go ahead and start doing some things even while tied up in litigation. Right, which is the possession's 9th 10th of the law and the courts need to step it up. That's that's right. In this situation. Well, Mary, thank you so much and thanks everyone once again. Thank you to all of our loyal listeners. Thanks to all of our new listeners and watchers. You can subscribe to MSNOW Premium on Apple podcasts. You can get this show another MSNOW originals add free plus subscriber only bonus content and remember if you're listening to this but not watching it, you can watch it and listen to it on YouTube. Head to MS.now

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