Trump Ends His Shutdown — What’s Behind Jackson’s Puzzling SNAP Call?

I want to clear this up and I thank you for this professor because boy I I was on a boat and people were all flipping out about Cathy Brown Jackson. She did not vote against food stamps. She issued a temporary stay >> to let the appeals process work. Right? I mean that's that's due process and and it's not it's not defunding it. And so what happened? >> The first circuit court of appeals ruled against Trump's efforts to stop the November SNAP payments because Judge Katangi Brown Jackson sent them back the case. That's a full narrative we have to explain here. Right.

>> Right. Right. And that, you know, that's moving forward from from her initial decision, which was what what senators were thinking about. I mean, I I assume it's too late, but I I feel like if they would have seen that move, and she was acting in the strategic way to try to put pressure, I think, on the first circuit, the wide the court above the district court to make a decision here and empowering them essentially to stop Trump rather than just leaving it in the hands of this district court judge.

[music] Welcome to another edition of The Oath and the Office. I'm John Fugles. Uh, and everyone, it finally happened last week. The American voters looked fascism in the face and said, "You know what? I've seen this movie before. It sucked the first time. Democrats didn't just win elections last week. They they had an exorcism from California to Maine to Bucks County, Pennsylvania to freaking Mississippi. So, it's exactly the right playing field to completely cave on all your demands in exchange for a promise to maybe do something in two months. To help make sense of this, let's go to the star of our show, Professor Corey Brett Schneider, the man with a PhD in politics from Princeton, a law degree from Stanford, who has classed up the polyai department at Brown, and of course, you've read him in Politico, the New York Times, CNN, Time magazine. get a hold of the book, The Oath in the Office, a guide to the Constitution for Future Presidents. Professor Brett Schneider, it has been a crazy week.

It's great to see you again. Thanks so much, John. And uh you know, I love starting with hope and what these election results show. Uh really, it was a referendum no matter how local the election on Trump and the administration and the assault on democracy. And I think the assault on democracy people are learning partly through the shutdown um has economic consequences. It has consequences for the fact that the government is involved in all sorts of places in our economy uh from the tariffs and the question of inflation to of course basic employment. When the government shuts down a lot of people are missing paychecks and we're going to talk about SNAP as well. But what I will say is, you know, the one of the our themes is of course to be honest about this assault on democracy and that's why we call it the oath in the office to hold a president to account to respect the law even though this president is doing anything but but one of the real questions how do you do that and elections are I think you know if I had to pick one thing that's the way and so this is now uh not just a pie in the sky

hope that we'll defeat this attempted self coup this attempted dictatorship uh but it's looking uh I'd say even even The momentum is on our side. >> Well, professor, I spent last week uh on the Nation magazine's 160th anniversary cruise because if you're a comedian, at some point you have to work a cruise ship. I don't know if you know this, [laughter] uh but I election night I spent at a great big event in San Francisco on dry land with Governor Jerry Brown and labor secretary Robert Rich and Ellie Mal and Joan Walsh and a lot of great writers and and uh and journalists. I mean, the elation at California voters approving Proposition 50 to um out gerrymander the gerrymanders. In Georgia, Democrats flip two seats on the public service commission. Mississippi flipped two Republican Senate seats. Mississippi professor uh to say nothing of Zoron Mandani's decisive win in New York.

Abigail Spanberger is now the first woman governor of the great state of Virginia where my mom and grandmother were born. Mikey Cheryl in Jersey. I mean, this was going to be the tight one. This race was called 13 minutes after the polls closed. That's that's that's like Trump has marriages that last longer than that. I mean, it seemed like it wasn't an election. It was an intervention. And these people that were so happy week ago, professor, are now a bit crestfallen. The longest government shutdown in American history is over.

Not with a bang, but with a promise of doing something, maybe wrapped in a press release. Maybe they'll talk about healthc care again in December, right after Santa and the tooth fairy and Mitch McConnell all deliver universal dental care. Uh, professor, I I you know, look, I I'm not going to stand on a ledge like so many people on the left that I know, but what do you make of this uh rather rapid capitulation after crushing Republicans in the elections? It seemed like the narrative was finally working. Yeah, I mean that I think that's exactly the right setup that to understand these uh eight senators who have really defected from the rest of the Democratic party. What's problematic to say the least about it is the momentum from the election was so strong. Uh and you know the issues were being highlighted Trump's assault on the poor through uh SNAP benefits refusing to provide for them um even though there was an emergency fund to do so. the um of course highlighting the issue this is

what the shutdown did that Trump was trying to essentially destroy Obamacare without revoking the law but by taking subsidies away the American people were deeply tuned into this as the shutdown started to affect their lives and that was the strategy of the wider party now these eight I think you know I I also want to just understand I've heard from listeners too who are sympathetic to the aid and I think we have a >> sure >> wide wide said of listeners and of course watching people the cruelty of Trump uh taking away SNAP benefits from the most needy among us from children uh is very painful and I think that was part of what was going on with the eight. They were worried uh as well about the survival of civil service uh entities within the uh government including the government accountability office and and various jobs. But the momentum was so on the side of the Democratic party that I can't help but feel that this onre reflection this defection was a mistake. especially

since and and you know I don't know if you want to get into this yet but the court was still at least on the SNAP benefits it's really unclear it was an illegal decision to refuse to provide for the SNAP benefits and there has been a lot of back and forth in court and around the time that the decision was made Justice Katanji Brown Jackson made a strategic decision uh to undo a district court order to um order Trump to pay those benefits. Now, it looked like Trump had won at that point, and I wonder if the the senators misread that and started to think there's no way to provide these SNAP benefits without a deal in Congress. The truth is, we're still waiting to see what's going to happen in that case. And I think they jumped the gun because it could very well be um that uh Trump loses in court and is ordered to continue those payments. Um there uh Katanji Brown Jackson the latest has ordered um it looks like the the Supreme Court is in now ordering the Trump administration um

and those who are challenging the Trump administrations with withholding the benefits to provide briefs. >> So we don't know what's happening and to me jumping the gun here was exactly the wrong move. There would have been a lot less pressure on the Democratic party if they could be assured that those payments were going to continue to flow. And I I get the pain of watching constituents in need. Um these were also eight senators um who you know are in purple states although they weren't really many of them up for reelection. So there's a question of accountability but in my view yes they they made a mistake in not in not waiting here.

>> So I mean I think you're right. These geniuses had Trump cornered a week ago. He was flailing. He was babbling about mailing checks and abolishing the filibuster. The polls all showed the public blamed Republicans for the shutdown. Trump's approval rating was plummeting harder than Trump's eyelids at a White House press conference. Uh but Schumer appears to have engineered this in such a way that he could claim no involvement and boast that he voted against it. And yet of the eight, two of them aren't running for reelection. Three of them up for re-election in 2028. Three of them up for re-election in 2030 when this uh deal will be long long forgotten. I I do think, professor, if people want to say that Republicans won something, they won owning all that is to come, they will now own all the price increases in people's premiums.

They will own the millions of Americans who are thrown off of their health coverage. The Democrats did manage to protect SNAP benefits for another year, and that's something Republicans didn't want to do, and they haven't gotten enough praise for that in this capitulation. They they they are safe for another year. But I mean, can you Corey outline the basic constitutional and statutory framework for food stamps, the the supplemental nutrition assistance program? Who funds it? What are the legal obligations of the federal government? And and how is a shutdown supposed to interact with that?

Well, um, Congress is supposed to fund SNAP, but of course, and the qu was the question now before the court, before various courts of whether or not in an instance of a shutdown, money that had been allocated for emergencies like this to ensure that aid wasn't shut off. Um, the argument of those who are challenging the president's refusal to to to to pay the benefits say that the law requires him to do so and that this isn't discretionary. Now the president saw it a different way. They you know under the theory of the unitary executive they'll argue article 2 power have the discretion to to spend the money or not especially in an emergency.

So that's the issue and the courts have gone back and forth. There was as I said a Rhode Island district court order that said the law is clear you have to spend the benefits and even absent um a final decision and appeals. Uh in the meantime, the idea was supposed to be that the the administration was ordered to continue to pay the benefits. Now uh and I mentioned this earlier, but Justice Jackson uh undid that order and allowed the Trump administration to uh to continue to withhold the funds. And that's around the time that all this action was going on about negotiation. So those senators clearly felt pressure. Uh what's going to happen in the long run? This is this is my point. I you know I'm not sure and I think actually the the case is extremely strong for whatever you think about whether it made sense to cave in to Trump here make a deal or not. They should have waited to at least see how things are going to play out in court. A lot of people were critical by the way of Justice Jackson because why would she

side with the Trump administration and that is a p puzzle that analysts and are are debating. And one theory which I I think is kind of interesting is what she was trying to do was to put pressure on the courts to make a decision about this to to to ultimately I think in her view enforce the requirement that that the president pay for these SNAP benefits. And so allowing the money to be halted might have put pressure. That's one theory. I don't think that she was genuinely thinking that Trump had was was the winner in this case. So, right, >> that's where we are that that she, you know, but I guess here's my big point about all of this because, you know, this show we're trying to do something more than just report on on the news dayto day and I think trying to get at the dynamic, which is that she's acting in a strategic way, thinking about the courts and various ways of pressuring the Supreme Court and lower courts, Justice Jackson is, and then the Senate and especially these eight are thinking about how they can make a deal or not

make a deal, the pressure on them. and these two ecosystems were kind of operating in parallel and and I think both sides weren't aware of the other. I think Justice Jackson's mistake was not getting that her move might have triggered it did trigger uh this decision by the eight senators to to make a deal. >> At the same time though, I mean Brown Jackson, she did not vote against food stamps. She issued a temporary stay >> to let the appeals process work, right? I mean, that's that's due process and and it's not it's not defunding it. And so, what happened?

>> The first circuit court of appeals ruled against Trump's efforts to stop the November SNAP payments because Judge Katangi Brown Jackson sent them back the case. That's the full narrative we have to explain here. Right. >> Right. Right. And that, you know, that's moving forward from from her initial decision, which was what what senators were thinking about. I mean, I I assume it's too late, but I I feel like if they would have seen that move, and she was acting in the strategic way to try to put pressure, I think, on the first circuit, the wide the court above the district court to make a decision here and empowering them essentially to stop Trump rather than just leaving it in the hands of this district court judge. If that was the strategy, it wasn't understood, I think, by these eight who move forward with the deal. You know, we're all trying to analyze this from afar, and I understand those commentators and and citizens who saw her do this and thought, why is she siding with the Trump administration, but you know, she's playing 3D chess.

She's got this massive understanding of how the entire system works and she's thinking about in the long run, I have to believe I we don't know this. I'm speculating that her move there to to uh allow the Trump administration to continue to block SNAP funding that in the long run that was going to play out for the best interest of the law that Trump I think ultimately would be hold held to account. But again, you have this whole other process happening in the Congress and the dynamic of those senators and did they understand what was going on there? I I don't know. I think my worry is that they looked at what she did and thought, "Oh, that case is lost." When of course it wasn't.

>> Yeah. I mean, what does this legal fight here say about the power of the executive branch in a shutdown scenario, Cy? This is becoming our favorite subject. I mean, >> it feels like this time a shutdown was >> was sort of just like a political lever to help break governance. I mean, is there still a judicial check if a judge orders full SNAP funding and the president resists and disobys? What constitutional options are left for Congress or the courts? >> Well, I should say first of all, there's a legal battle about that question. The Trump administration [snorts] and the architects of 2020 project 2025 are really look back to Nixon and all the various ways that Nixon abused power and then was held to account and they're trying to resist it. So there's something for instance called the empoundment act that says to a president that it's not up to you whether or not to spend money that's allocated by Congress. You can't use your executive power to resist the will of Congress.

That's part of the dynamic here. The Trump administration was saying no, we can essentially impound funds even if they were allocated in an emergency for SNAP benefits. They're using that article 2 power of the unitary executive as they see it and trying to eviscerate the power of Congress to make laws. Do nothing less than that. Now, that's what the court was going to start to handle. That's what the uh district court and the the first circuit were engaged in and was thinking about that problem. I don't know who was going to win that, but I think there is a very good chance that Trump's refusal to spend uh to to abide by Congress's demand that the SNAP benefits be provided even in an emergency. That that wasn't going to be a winning argument. Now, you say, "But isn't in the final analysis, couldn't they just disobey the court order?" I'm not sure about that. They did definitely disobey the court order. We've talked about this extensively in the deportation case of Venezuelans to u this gulag in El Salvador. Um but that was not the Supreme Court. I think once

you start to get at the level of the the um the full the first circuit, the Supreme Court certainly it's much harder to defy a Supreme Court order. And I don't think they would have at this point. They were I think chastised. and the idea of openly defying the Supreme Court. We're not I thought for a long time they might be there, but I'm not hearing that uh as much. I think the more the light is shown on them that that they won't do that. So the the bottom line is yes, there there are is still law and it requires um limits on the president's power to deny the poorest among us uh the most vulnerable among us uh you know SNAP benefits, benefits to provide for food. I'll tell you what, Corey, the best part for me about being trapped on a cruise ship for a week was that they had TV with cable and I got to watch you on MSNBC the day that the Supremes were having their really fascinating hearings uh regarding Trump's tariffs. Props to Neil Katiel

for uh for presenting the case. Uh I I found it fascinating and I you were great on MSNBC as you always are. Corey, it seems like uh Neil Gorsuch is trying to be a real life boy who uh who isn't beholden to his master. These judges seemed very suspicious of Donald Trump's tariffs arguments. What did you make of that extraordinary day we had last week? >> It was extraordinary. It was one of the most important cases I think in Supreme Court history because actually parallel to the discussion that we've just had, it's about whether or not we're going to allow the executive to completely destroy the power of Congress. And as you know, I had an amicus brief in the case along with eight other scholars and and worked with an amazing team uh of of litigators at um uh uh a a great nonprofit um uh that that does democracy defense. And we begin the brief by talking about no taxation without representation. Think of that.

>> Think of that idea that that's what the American Revolution was fought about. um the idea that a tariff and after all the tea on tax during the American Revolution was a a tariff um couldn't just be arbitrarily imposed without representation. Well, what what did the American Constitution do eventually to make good on that principle of no taxation without representation? It put the tax power and the tariff power in the hands of Congress. And if I had to pick one way of beginning to illustrate what was going on, Congress also used that power after Nixon to reclaim in an emergency um it its own uh uh powers to resist the idea of inherent emergency power or powers granted to the president to do whatever he or she wanted in emergency including willy-nilly um creating tariffs at you know in arbitrary way. Things were pulled back.

So it comes back to the American founding. Anyway, the one thing I've just loved from the beginning of that oral argument to Neil Katiel who um was the one who invited us or on the team that invited us to provide this brief is he started with that. He started with no taxation without representation. And from there it was such a powerful argument. A lot of people are saying and I I agree. I've listened to a lot of Supreme Court arguments. It was easily one of the best I've ever seen. He just had complete command of this and it couldn't come at a more important time. And then when it came to the justice's questions, I just didn't see a lot of sympathy for the government. I saw a huge amount of skepticism. It said, you know, you shouldn't read too much into their questions, but they seemed incredulous actually at the government's argument that um these tariffs that the president had sort of a universal emergency tariff power uh in any case in any amount and the the arbitrary nature of the tariffs too didn't help the president. So, it was a great day and I I am feeling very excited uh that although the court has let us down again and again that that here it's finally

going to be too embarrassed to not do the right thing. >> Well, meanwhile, let's talk about another case that may affect our democracy even more because the court has agreed to hear this case challenging Mississippi's rule that counts mail-in ballots postmarked by election day if they arrive within 5 days. Um, now we know that the right-wing does everything they can do to make it just a little bit harder for Americans to exercise their rights here and there, but for those who don't follow election law too closely, why is this case such a big deal and so terrifying?

Well, you know, it has to be understood too in the context of the Trump administration's and the Republican party, frankly, is assault on democracy because what they're doing again and again is um and and the Trump administration is leading this is looking for ways to illegally, in my view, get an edge. And so, we've seen that in the evisceration of the Voting Rights Act. We've talked about that before in the gerrymandering battle that was initiated by Texas in many ways. Uh and now this is a new front. Um so um the court has taken up the question about whether or not ballots can be counted after election day if they arrive late for instance because they were sent by say military uh overseas uh soldiers uh or sent by people or or the mail just was delayed. Um and you know there were all sorts of reasons why. So this Mississippi's legislation says, you know, yeah, you can count it after election day when you don't have this firm deadline. And what the U challenge

to this is saying is no, election day is election day and the ballots have to be counted by then. It's an attempt to kind of use the the idea of election day in this narrow literalist sense to really eviscerate the um ability to what have our votes counted. Anytime somebody's against counting ballots, I feel like, wow, this is a real suspicion that you're trying to undermine, not protect democracy. >> And the same government that delivers the mail ballots is the government saying, oh, if the mail ballots are delivered too late, the government won't count your vote. I mean, Mississippi and about 30 other states allow some kind of grace period for ballots that are mailed and postmarked by election day. So the fifth circuit court of appeals, one of the most conservative in the country, struck down this grace period. They're saying ballots have to arrive by election day. To me, this is a great opportunity for Democrats to push back against this by saying, "Why do you guys want our brave veterans serving overseas to not have their votes counted if the

mail slow?" You have written about the balance of power between Congress and the states in running elections. Who really has the authority here, Corey? Is it Congress or is it the states? Well, you know, I think that you there there's federal legis federal law, my understanding in the case is at issue and you know, it is right to say that it that there there can be federal limits on what the states are allowed to do. But when it comes to the question of whether or not the federal law disallows the counting of ballots if they're postmarked by election day, that strikes me as a narrow reading of of the law.

And it's an attempt to try to reshape legislation that wasn't meant, in my view, to undermine the ability to count these ballots 30 days later. I don't think there is anything in federal law that says that, but it the case is an attempt to to reshape the law for those ends. And you know, here's the wider issue that's going on here that we see again and again that how you read a statute, how you read an act of Congress, that's there's an open debate about that. Um, what the people in the Scalia textualist tradition try to do is to use the way laws are written, for instance, the description of what what election day means to narrow the law in a way that might undermine the whole point of it. And >> so for me that that's the wider issue here. Like it's really a test of the justice's ability to to understand that what democracy is about is not narrow words but the broad point of a law. And we've seen that in the voting rights act cases. We've seen that you know across the board. This attempt to read

legislation in the narrowest possible way. I you know used to teach at Ford and law school a class called legislation and regulation. It's all about that. I don't know if listeners eyes are glazing over, but they partly want us not to listen, not to care when you hear about how to read a law. That sounds like the most boring topic in the world, but it really is the difference between whether or not we're going to you allow legislation to be co-opted by the Supreme Court to destroy our democracy or not. So, if your eyes are glazed over listeners or you, John, I'm sorry, but this this is what it's all about.

>> No, no. Oh, I mean I I I get it and it's wonky and it can be overwhelming, but I mean I just before the break, I just want to say this case did not just appear out of thin air, professor. This is part of a coordinated longtime national strategy led >> by the RNC >> and Trump and the Heritage Foundation, all of them, to limit mail-in voting. Trump can't stop lying about mail-in ballots. Some Republican strategists now admit discouraging mail voting actually hurts Republican turnout. Before we hit the break, h how does this fit into you to the court's current term? Because we've already got these challenges to the voting rights act and mail ballot laws in other states like Illinois and Louisiana. I mean, are we for all the mundane uh drudgery of it, watching this court quietly rewrite how America is allowed to vote?

>> I think it's nothing less than that. That if you were to just look at each of these cases, you might think like, oh, that's an interesting conversation. What what is election day? you know, can count the ballots after. Um, you might think, oh, is the Voting Rights Act incompatible with some aspect of the Constitution on the theory of colorblindness? We talked about that before. And, you know, to sort of debate these peace meal misses what's happening, which is that there is an overall assault on the right to vote. Uh I reviewed a great uh book by a scholar at UC Irvine Law School, Rick Hay, who really tries to talk about the need for an amendment to the Constitution to really shore up the power of the right to vote. I think it's a great book, but one thing I said in the review is, you know, even with the best laws on the books and the 1965 Voting Rights Act is about as monumental a piece of legislation as you can have, the result of bloody battles, literally protests uh on the streets uh by John Lewis and

Martin Luther King Jr. and others. Uh you know, huge parts of American history are about this battle for this one law. In fact, in the ballot or the bullet speech, Malcolm X is demanding the right to vote. He's demanding the passage of the 1965 Voting Rights Act. So, even with the best laws, and that was passed, and of course signed by Lyndon Johnson, if you read them narrowly, or you read them in a way to to make them conflict, I think erroneously, with the Constitution, you can undo all of it.

You can undo the right to vote as a whole. And yes, that's what I think is going on in in these cases, especially when you add >> That's why they they need it to be convoluted and boring. So, we'll check out and not pay attention, professor. [laughter] That's how they do it. Let me ask this one last question. We're so late. We have to get to break. Wendy's going to kill us. But if this court upholds Mississippi's law, right, and says, "Nope, you as long as it's postmarked by election day, you're fine." Will that greenlight 49 other states to protect male voters? Or is it just going to invite more lawsuits in red states trying to ban them all over again?

>> I don't think you're going to see an end to this stop on dem on on democracy. Even if the Voting Rights Act case um doesn't strike down um uh the portion of the Voting Rights Act, section two that's being challenged, even if this challenge isn't successful, they'll keep looking and they'll keep finding other ways to narrow their right to vote. So, you know, we have to be vigilant. We have to I think, you know, legislation would be a good thing. I don't think that necessarily solves it. Um, uh, I think we have to talk too about the makeup of this court that it's really green lit, um, through its approach to legal interpretation and constitutional interpretation, these sorts of cases.

Um, but no, it's not going to end. The right to vote isn't something that's just there. It's not secure. Uh, and you know, frankly, it's has to become a partisan battle. And I don't want to lose sight of what you mentioned towards the beginning, which is that California um did come and say, "We're not going to just allow Texas to steal this election." That if you're going to jerrymander, we'll do it right back. That's not the ideal way to protect a right to vote and to prevent vote dilution. But it might be our only choice. And the Democratic Party has to make defense of democracy, including defense of the right to vote, uh, part of what they're battling for.

>> Well, don't go away because we have to take a break, but when we come back, we're going to talk about Kim Davis, the Jonah Varc of not doing her job. This is the Oath in the Office. We'll be back in just a second. Welcome back to the Oath in the Office podcast. I'm John Fugles. Hello, Professor Corey Brush Schneider. Okay, you remember Kim Davis? Remember Kucky's answer to, "Hey, what if clerical incompetence found religion and a camera crew, but didn't care about the Jesus parts?" Um, Kimmy is back in the news because she's been trying to get the Supreme Court, the the same one that just made fetuses more powerful than women and democracy, trying to get the Supreme Court to erase marriage equality again. Uh, and the court was like, "No thanks. We've ruined enough lives for this year." Corey, this woman was not martyed for her faith. She was uh punished for refusing to hand out government paperwork, but the persecution narrative this woman has pushed. I mean, the the pilgrims fled England for religious freedom. Kim Davis fled her HR orientation. And and I I

mean, God works in mysterious ways. And by mysterious, I mean he's micromanaging a county clerk in Kentucky. Now, I get that [laughter] Kim Davis really believes in the sanctity of marriage, which is why she supports Donald Trump and has had four different husbands. I mean, she's like the NASCAR of matrimony. This lady has her vows have more mileage than my old Gran Torino station wagon. Um, and while while still married to husband number one, she conceived twins with husband number three. All right, that's that's that's not a love triangle. That's geometry. Husband number two and husband number four are the same guy. So, at least she recycles. But, uh, Corey, the the court has said no, she has to pay $360,000 in damages now and attorney's fees because it turns out religious freedom doesn't always mean you can use the government to enforce your prejudice.

So, I want to ask you, how do you feel about this? Clearly, she was staked to do this by more powerful people, and I hope they'll help her pay her fine. But I mean from a constitutional law perspective, what would be required for the court to overturn or significantly weaken Oberfeld v. Hajes, which was just ruled 10 years ago? How realistic is that risk today, no matter how bad Clarence Thomas wants it? >> I I'll begin by saying she was, you know, the in addition to being hysterical, your opening monologue and talking about her illustrates why this wasn't going to be the case in which they were going to overturn gay marriage. She just was not a great litigant. They didn't want her to be the star of any show that involved a monumental shift. But I have been warning and I I want to talk to our listeners and to you about the danger that this case that we might think of as a super precedent something that's obviously uh so important monumental uh one of the the most important moments in

the last few decades where the Supreme Court said that there is a fundamental right to marriage in the constitution and that it has to extend under our constitution and its values uh including its values of equality and and liberty uh to uh gay couples as well. Now, that decision though was hugely controversial at the time that it was decided uh and um members of the court including uh Justice Scalia um really did not like the decision. Um they they they thought that it wasn't based in the text of the Constitution. Now, think of another so-called super precedent, something that was obviously so fundamental to our law that no longer is there, and that's Row versus Wade, which said that the principles of the Constitution, uh the idea of liberty, the uh division between public and private, the right to contraception, all of that extend to the

right to abortion. And the court looked at the constitution. It looked at that precedent and and now this is not what I think but it's how they put it. They say they chose the text of the constitution over this erroneous ruling. And despite how much we had talked about row as a super precedent. Uh they got rid of it in the dos case. And they could well do the exact same thing here. They could look at the right to gay marriage. They could say it was erroneously decided. It's not in the text of the constitution. And I think they very well might have five votes for wiping it away. Now, one kind of question that a lot of people have is, well, what about all those people who are already married? There's a reliance interest is the way uh that Justice Barrett, for instance, has admitted uh plays into this question. But they could easily say, well, those marriages remain valid.

There are no more future marriages. That would be a way around it. >> And I do think they might do it. This wasn't the place to do it. And she was asking for this. It wasn't going to be Kim Davis that that got the case through, but a better litigant, a better set of facts might happen. >> It seemed like this was not really about the usual incremental erosion of rights via religious liberty BS claims. It seems like they just went for a reckless, stupid, full frontal roll back of marriage equality here. Right. >> They went for both. She made an argument, which is bizarre, I think, because she was saying she had a a free exercise right in her official capacity to deny this license. And then I guess part of her argument was, well, at least I have the right not to be sued for it now that I'm a private citizen. That's how her religious liberty claim worked.

But the what I thought was more significant about her appeal to the court, her her application for Sir Shirari as as lawyers talk about it, the application to the Supreme Court was that exactly as you say, that wasn't that was just part of her claim. Her main claim was that the right to gay marriage isn't in the Constitution. And that's an argument that we're going to see again and again. Um the National Organization uh for marriage, I believe it's called, had an amicus brief. Other organizations are pushing for this. This is in the same way there was a huge push against the right to an abortion um and abortion was returned to the states. That that would be the initial goal here is to return the question to the states.

>> Um and you know it's not that marriage would completely disappear by the way. There are some states that have codified the right to gay marriage, samesex marriage. There are uh courts that have said that the state their state constitution uh supports that right. But having that peace meal state by state, the the the Supreme Court of the United States didn't like that approach. It was unworkable. And they turned to principle that if there is a fundamental right to marriage in the Constitution, it should extend to gay and straight people alike. And so, yes, that is under assault and we need to watch it. And it there is in the same way that it might have seemed far-fetched that we'd get rid of the right to an abortion, we did get rid of it. And so, it might happen here again.

I just want to say also the National Organization for Marriage supported Donald Trump. Okay, folks, think about it. The National Organization [laughter] for Marriage >> supports Donald Trump who has been a lot worse for marriage than the gays. I mean, Corey, I find this fine that Kim Davis has had really kind of poetic. She has spent her career trying to deny people wedding licenses, and now she's going to pay for their honeymoon. Um, this woman is is not a martyr. She is a mascot. She is the embodiment of every fake Christian nationalist who thinks the gospels are a permission slip to be cruel. But I I before we get off this, I just want to ask, how should progressive actors or liberal actors or anti-vil folks, how should we view rights that were once settled but might become vulnerable again? I mean, we're on that playing field now, right? There really are no structural safeguards, are they?

Beyond the whims of the Dirty Six. >> Yeah. And I think that, you know, I I have to say that for a lot of American history, at least since Brown versus Board of Education, Americans thought of their Constitution as protective of their rights. And so, litigating in court was a natural way to seek the end of segregation and public schools in the American South. um a way to seek uh the right to um reproductive freedom uh as um was was one in the 1970s. And so litigation also seemed the way at least to some there was an argument within the gay rights community uh and and looking to the American Constitution as a way to guarantee the fundamental right to marriage for gay and straight people alike. But I think we've got to wise up now. That just is not the way to secure our rights. We need legislation and thinking about a congressional and this isn't going to happen this term, but as we start to battle for uh victory in the midterms as we start to battle in that

next presidential election, the cotification not only of the right to an abortion to restore it to its national prominence, but also uh the right to gay marriage. That that's what I think we need to see. And so, yes, there has to be not just state legislation. Many states have done that, but codification of these rights at the national level. Yeah, I think you're right. I I do want to move on to um talk about pardons just for a second and immunity and and selling clemency because that's a very real thing right now. Um Donald Trump has pardoned everyone who lied for him helping him try to steal the 2020 election. These pardons obviously like won't help on the state level. It was largely ceremonial, but we've also received so much credible reports of pardons being sold. The pardon power under article 2 I know is vast but I also know that scholars caution that selling pardons you know offering clemency in exchange for something runs into bribery statutes right and now now

these recent immunity reing rulings could they create somehow a loophole where a president could monetize the pardon power and just do it out in the open I mean it seems like that's what's happening here >> it is happening how how does the latest jurist prudence shape this grift? >> Well, I mean, I'm going to go back to American history. When the framers talked, the pro- ratification framers, I should say, people like Hamilton and Madison, they wanted to to defend the idea that the pardon power was given almost without exception. There's one exception written into the pardon power was the phrase except in cases of impeachment, which we can talk about.

But aside from that minimal exception, uh it looked like they just thought, "Let's trust the president." How can And here's how they put it, and it's really sounds naive in retrospect, frankly, with all due respect to Madison and Hamilton and Chay. They called it the benign power of provogative. The the benign power of pardon and a benign prerogative power, meaning a benign absolute power. And what does that mean? It meant like, well, it's only this act of mercy. what what are you going to do that's bad with it? But the anti-federalists, those who oppose ratification of the Constitution, they saw it a very different way. They said, "No, it's the power of the president to pardon, to excuse the crimes of co-conspirators." Because they were always thinking not about a good president, the way the framers were, but about a bad president, or as Patrick Henry even put it, a criminal president.

And so what would a criminal president do with this supposedly benign power of prerogative? they would use it to pardon their friends. And wow, Trump is just doing every nightmare of the anti-federalist is coming true because uh you know he was asked for instance, why did you pardon this Binance um uh um uh head uh in in in the crypto space and he didn't know anything about it except that >> he didn't know about it. >> Mr. [laughter] Autoen seemed to think that was a good way to do it. I mean >> Mr. Biden used an autopen didn't [laughter] even know which criminal bribery he >> I don't really know about that amazing and >> but I mean so he's above the law in this domain Corey there are no checks right public opinion the courts it doesn't matter is there is there a functional difference between the president's discretion and pardons and and and the potential for a corrupt quid proquo I mean there there is no accountability for this >> I mean you know there there are things we could try to do I think and they all fit together. One is to try to start

talking about narrowing that and you asked what can we do when it comes to restoring rights and securing them like the right to an abortion uh restoring it restoring and protecting uh the right to gay marriage assuming that the court might allow a full assault on it. And then we've also got to think about how this immunity decision, which really is turning out to be, you know, DreadScott is the most evil decision in American history, but next to that, this might be the most dangerous because uh what it does is it excuses all sorts of official behavior. And the president has vast powers under the Constitution, including this pardon power. And so, yes, it raises the question, what do we do when the president uses the pardon power in the most blatantly illegal way that of course he should be prosecuted for? Uh so one way to start thinking about it is limiting the pardon power through legislation and um we can talk about that but that phrase in case except in cases of impeachment opens some possibility for narrowing uh the pardon power at least when it comes to impeachable offenses for co-conspirators. I would make that

argument. It's controversial. But the most important thing to do is to narrow the meaning of these official acts that are immune and legislation that would say if you're acting illegally in this blatant way, including the pardon case, that's not an official act. And so the the the the Congress can push back against the immunity decision by by narrowing it significantly. That's a priority, I think, in the next administration once we're out of the woods of this attempted self coup. Okay, we got to take a break, but when we come back, the story that everyone cares about, the sandwich guy walks.

We'll be back in a moment. This is the oath in the office. [laughter] >> Welcome back to The Oath of the Office. I'm John Fugal Sag along with Professor Cory Brett Schneider. Cory, here here's the story we all care about. The case of one Shaun Charles Dunn. He's the guy who threw a submarine sandwich at a Customs and Border Protection agent. Uh went really viral. Um, this week the grand jury declined a felony indictment. He does face a misdemeanor. I I just want to say on this whole story, look, I I appreciate wasting food as much as the next petulant first world white guy, but really liberals really wasting food with the amount of hunger in the world right now. Cy, I'm sorry, but I I'm traditional. Where I grew up, we don't throw food at fascists. We throw our shoes at them. Okay? [laughter] In case Dick Cheneyy's motorcade comes through your town, you throw a shoe at a fascist, don't throw don't throw anything at Customs and Border Patrol.

They want you to throw things at them. This is what they want. This is how the fascists get their way. Cory, on the surface, this is ridiculous, I know, but what does this tell us about the state of federal enforcement and protest and symbolic acts and and then the law under this hyper politicized criminal administration? >> Well, I just think some of the facts here are just too good to not mention. And one of them is that the um agent who had the sandwich through thrown at him tried to uh claim in his testimony that the sandwich exploded and you know the lettuce and the mayonnaise and everything got everywhere as if that was sort of an argument for why this was a serious assault. And then I think in the investigation of the facts turned out that the sandwich didn't explode. It was still folded. But the the the [laughter] bottom line of this is it's so absurd of course that this um you know assault kind of military style assault using all these federal agencies um and and the rightful protests that they've triggered

that that you know it it's a symbol I think of resistance in the funniest best way because people aren't um just giving up and they aren't afraid. I think that's the other thing. It's it's you know laughter can be a powerful thing and we've talked often about satire and it's great that this has become such a joke uh that that the Trump administration looks so absurd that they uh were so sensitive to claim that the sandwich exploded when it didn't as if even a [laughter] sandwich exploding would be some horrible act of violence and you know the idea too that the that the protesters are the snowflakes and not the administration I think that that obviously is not true as we look at it so it's an important important. It's not the most important legal case of all time, but it's important for our psyche, for our acts of resistance, and and you know, I'm I'm really uh pleased to see sandwich guy having his day in court and and and doing so well.

>> I mean, it's funny, but I mean, is this it's not really a question of assault statutes, right, or enforcement discretion? I mean, this is about a deeper constitutional dimension. Freedom of expression, selective policing. It's about It's about screwing with people. It's about authoritarianism. And and they frame this as sanctioning law and order. This administration that pardoned men for beating cops for the lies of this administration is talking law and order. I just want to ask from a separation of powers or civil rights lens. I mean, what carries more weight here? That this is federal overreach or that they're enforcing the law? How how does the the ridiculous spectacle of this case interplay with the bigger issues? we study of executive power and and militarization of law enforcement and the limits of civil liberties.

>> Yeah. I mean, I think it we can't analyze it, of course, in the narrowest legal terms of whether or not it was an assault or not. And, you know, he apologized. He shouldn't have thrown the sandwich. It didn't explode in any way. There wasn't any real danger. Uh, I think the agent had a bulletproof vest on to protect him from the sandwich. But, you know, why were they prosecuting this? Jan Janine Piro um from Fox News, you know, who who who's now federal prosecutor made the decision to go after this person. Well, why did she do that? And there is a lot of discretion of course among prosecutors. And the answer to me seems clear that it is to send a message that dissent and an attempt to humiliate uh and protest against um the federal government is is not allowed anymore. And so I see it, you know, the decision to bring these charges, it's not as serious. I mean, they did try to prosecute it as a felony, I should say.

That that would have been quite serious. But, you know, it it's similar to the attack on Leticia James and um Comey and, you know, letting you know that if you resist this administration, we're coming after you. And um that's not really how American democracies supposed to work. >> I'm looking at these stories we've been discussing today, professor, as we bring this to a close. I mean, the food aid shutdown law, the rights roll back, the the pardon power abuse and protest enforcement. I mean, what what is the common thread here in terms of how American constitutional structure is limping along in 2025?

>> Well, I think you know what all these cases have in common, and it's the whole reason why we're doing this podcast, which we launched at the beginning of the Trump administration, is because this isn't a normal period in American history. It is an attempt to use the massive power of the president. Just to remind people, more than 2.5 million employees in the executive branch is way more powerful in terms of size and and powers than than the Congress and than even the courts. um to to to really destroy the other branches to arandise it to use it to shut down free speech to usurp the power of the most basic powers of Congress like the power to tax and that's what the tariff case is about and yet we see these acts of resistance uh not just sandwich guy I'd put that low on the list as funny as it is to talk about but um and and as cathartic uh but you know fighting back in court against those tariffs the election uh what it shows goes about the uh re re uh

resistance and rejection of the American people at this attempt of a self coup. And you know that's how we have to frame it all. Uh and we talked about the attack on democracy itself, the attack on voting rights. We can't just divide these stories up. We always have to bring them back to the common theme. And so that's why I'm so pleased to be doing this show with you, John. >> Professor, I'm pleased as well. And thank you uh for another fact-packed edition. Corey, what is the best way for our listeners to to follow you and keep up with your brilliance the other six days of the week? >> Well, thank you listeners. You pushed us to a new record with the Dalia Lithwick uh episode last week to number four on the Apple charts. Keep leaving your reviews there. That helps to get the word out. Um leave a star rating. I think we have uh five star rating after uh hundreds of reviews, more more than 340 reviews. Uh there is now a Substack uh newsletter of these discussions uh and of course a video episode if you want to watch it not just listen to it on on YouTube. Uh so thanks for joining

us and uh look forward to many more of these conversations. >> I want to thank everybody again. Uh you can hear my show every night on SiriusXM Progress channel 127 or it's a free podcast if you don't have SiriusXM the John Fugles podcast. My book is called Separation of Church and Hate. Now in its uh seventh week on the New York Times bestseller list. Congrat Snider. Thank you. Thank you so much. And thank you Corey for doing this podcast and for making me and our listeners so much smarter. Guys, we we do take your mail. You can you can write to us at either of our social medias and we will read your letters on the air. I want to thank Wendy and Beaolf and everybody who helps make this podcast come to life. And most of all, professor, I want to thank you and thank all of our listeners.