Trump Loses Birthright, Wins a Power Grab (with Joyce Vance)

Welcome to another edition of The Oath and the Office Podcast. I am John Fugel Sang and friends. Something interesting just happened. A few hours before this recording. Donald Trump's biggest constitutional moonshot of his second term got rejected by Donald Trump's own Supreme Court. The judges he personally hired looked at his idea and said, you know what, We're going to go with the constitution instead. For more, let's go to the star of this show, the author of The Oath and the Office and the Presidents and the People, America's favorite IVY League, Polly Cybe, Professor Corey Bretschneider. Hello, Professor, good to see you.

Hi John, good to see you.

And of course we're going to start off talking about the amazing birthright citizenship case.

Well, I shouldn't say amazing.

Expected I've been saying for weeks now, and really months since it started, that the court really has no choice. It's so clear that the Fourteenth Amendment says that if you're born in the United States, you're a citizen. I urge listeners to go back and listen to our amazing discussion with the lawyer Cecilia Wang, who argued the case for the ACLU, and we dissect exactly why it had to be what it is. But there's a lot of disappointment today too, because you know, there should have been nine zero, and of course that pleasant and we'll talk about that, and then we'll have Joyce Vance on the podcast in the second half. She begins her book Giving Up Is Unforgivable by talking about why this executive order provoking birthright citizenship is nothing less than an attack on the Constitution. So she's really the perfect guest to join us today.

Well, you know, Donald Trump spent years core acting like he could rewrite one hundred and fifty years of congressional law with the same sharpie he used to redraw a hurricane map in Alabama once, and constitution doesn't run on sharpie. Chief Justice John Roberts joined the three samee justices at Damy Cony Barrett Brett Kavanaugh concurred. I mean, imagine that for Donald Trump, professor like Trump watching the lineup like it's fantasy football, and he realizes that half of his draft picks switch teams. But it is a bit terrifying. It was only six to three, But from a constitutional standpoint, Corey, how significant is this ruling. Does this settle this issue at least for the foreseeable future.

Look, they should have said it much sooner. There are a lot of people who had to wait in limbo for the court to say what's obvious, which is at the fourteenth Amendment, with a very narrow exception, says if you're born in the United States, we're a citizen. I'll say what that exception is. It says, subject to the jurisdiction. Well, as we talked about with Cecilia Wang, and we've argued on this podcast, subject to the jurisdiction is a very narrow idea. So the children of ambassadors, for instance, who have immunity are not obviously subject to the jurisdiction of the United States, and so don't become citizens if they're born here while their parents are ambassadors, for instance. But everyone else, the point of the Amendment was, like the Equal Protection Clause itself, to say we're all equal. And what better way to make that clear than to say, if you're born in the United States, you are a citizen, full stop. Now the court did say that. I'll say part of the disappointment, it's not just the three dissenters although you know to what we expected one. Of course, that is definitely a disappointment, especially his supposed allegiance to the tax and exactly what the text is everything that that hurts a little a little, But.

It also is three Supreme Court justices basically argued that a president can change the Constitution to executive decree if he's a Republican. Am I getting that right? If it's a Republican president, they can change the Constitution when they feel like it. Three out of nine feel that way. I mean they and that's mag and numbers.

That they laid down the law that although they claim to care about reading the tax more than anything, that they just ignore the plane meaning of what I said. There is a complication here too that makes it a little worse than it seems at first, because six y three.

Sounds not that bad.

But one of those votes Kavanaugh is not a vote on the Constitution in itself. You really actually stood with the dissenters and saying that the text of the Constitution does allow Congress to limit birthrights citizenship, and it's just that Congress hasn't limited it has a protection for all those who are born in the United States.

So that's another vote.

That's like what you know, these supposed regionalists or textualist justices.

The good news is that.

The originalists when it comes to the white supremacy, professor, you know this. You're too polite to say it.

Wow, I mean, you know, it's definitely not possible to defend those I would say, not just three to make it clear, it really is a five to four decision on the thing that should matter, the Constitution itself. Justice Barrett will give her credit for siding with the majority.

That was a good thing.

To do, and I also just praise the importance of the decision itself. You know, often what matters here is not just the vote, but what said and the reaffirmation of the idea that the second founding of the United States is Justice Jackson puts it in her brilliant concurrent something that will be taught that I urge all listeners to read that the second Founding, you know, was about nothing less than the affirmation of the idea that if you're born in the United States, who are a citizen because it was part of the idea of resisting subordination.

She's so clear in laying that out.

Part of her Brilliance, too, is hammering at Justice Thomas, who, in his dissent. You know, remember this is Justice Thomas who always claims to be colorblind, and then she points out he makes this only about Black Americans.

Yeah, we are colorblind. What better example of color blindness. They don't mean it that it applies to everyone.

He says color blindness because he's not man enough to be color conscious. And when they call themselves originalist, it just I'd look at this and it just seems like, no, no, you're not original It's like states' rights. It's just a cloaking device, piece of language they use to make a selfish agenda sound somehow virtuous. I mean to me, it's just like states' rights. I mean, you look at the rage they're showing it Amy Coney Barrett, but I mean it looks like it's. This just suggests to me that originalism, right, textualism, these phrases they love to use, well, sometimes they lead to outcomes that don't align with conservative political goals. And that's what they can't stay on because they believe originalism is going to be the respectful term they use to just do whatever they wanted in the first place. And sometimes originalism does not lead to what a right wing minority wants.

Yeah, I'm going to.

Savor the victory a little, and I'll agree with you first of all that you know, when it comes to that characterization, it is definitely true of those four justices who were dissenting. And then I'll add to Alito, Thomas, and Gorsich. Of course Kavanaugh, who really does join them on the constitutional issue, although he thankfully joins on the judgment, joins the decision. But you know, the good news is that there are five justices who are saying who know how to read, and who aren't doing this pretend originalism thing, and who really do give us a constitutional lesson and the idea of a second founding that after the Civil War there was a commitment to the idea of we the people being an inclusive idea, multi racial idea. And I'll I really want to praise this concurrence by Justice Jackson, because what it says is the meaning of the terms are not just found in the words themselves, but in those who argued for them, including she talks about the Black Conventions, which I also talk about in the presidents and the people throughout the United States, Black Americans really saying not just that we want equal protection, but that we want birthright citizenship. And she gives a great quote from Frederick Douglas to the effect that this really is the way that will instantiate the idea of the resistance to slavery, of anti subordination, of equality, and the idea that if you are born on American soil you are a citizen.

There's nothing about blood here.

Douglas, who had before the Civil War made it so much a part of his argument that the original Constitution also had these ideas, and he looked in particular at the idea of the corruption of blood. It's one of his main arguments that we in England you can inherit the crimes of parents. In the United States, we don't. We don't have this idea of blood being corrupt. And how toiate that we used to we used to How did instantiate that in the Constitution? Do it through this idea of if you're born in the United States, you're a citizen. So she talks about that, and so, yeah, John, I'm feeling kind of good.

Oh no, so am, I I mean, I mean, the administration's one of their legal arguments was that the promise of potential US citizenship Cory had led to this birth tourism industry. The Solicitor General said uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the US in recent decades. So this week some scholars at Penn State released a study based on all official data. They found fewer than zero point three percent of all US births in any given year were given to tourists. They're out of arguments, I think now they're either going to let this go or we'll hear a few people calling for a constitutional amendment to end birthright citizenship, which will never happen.

Yeah, and it's good good for I think democracy when they proposed that, because that's our chance to say no, way to say that the idea that is in the Constitution itself is something that we affirm. You know, one worrying idea is that Justice Kavanaugh gives away. I mean, there are not five votes for this, thankfully, but he's really saying to the Congress, well, if you want to, you know, get rid of birthright citizenship for the children of undocumented, then.

Do it through legislation.

But hopefully the message will be received by Congress that yeah, that's one guy's view, but there are five votes that say the Constitution prohibits this. So to answer the question that you began with, I didn't want to lose track of that.

Yeah, this should be the end of the issue.

The Supreme Court has spoken, They've reaffirmed the obvious meaning of the fourteenth Amendment, and.

That's really it.

Certainly it's a rebuke to Trump, but it also should be a rebuke to those in Congress who think that they can legislate birthright citizenship away.

There's a lot of news that's not good the passical days, including the Court now says the president can fire commissioner. Is that independent agencies? So they're not really independent anymore? Rest in peace, Humphreys Executor Corey. I learned so much about it from you, and now it's been executed. Why is overruling the nineteen thirty five Humphrey's Executive President such an historic moment? I mean, what constitutional principle did it establish and why did this court feel threatened by it?

I want to get to the legal arguments here, and this really is nothing less than a massive aggrandizement of presidential power. But given the bad news, I also have to appreciate your joke. That is definitely the best Humphreys executor joke that.

Oh I wrote it. You're the only person in America.

And as you're writing it, I knew how you must have realized how much I was going to appreciate it when that I will share with generations of students as we teach this.

Unfortunately now, Oh, I can hear their eyes rolling even as we speak, Corey. But really, I mean, I've learned so much about this from you, and the majority on this court really appears to embrace a much more imperial version of presidential control over the executive branch.

That's right, And in the slaughter case, you know, what the administration is saying is that the Federal Trade Commission, although it's protected by laws and has been for one hundred years that say, this is an independent agency, meaning a very specific thing, which is that the head of this agency can't be controlled by the president to do his political bidding and therefore can't be fired for political reasons. They can only be fired if they're negligent or doing a bad job.

Hired for cause is.

The way of putting it, and what the Supreme Court said here, unfortunately, is that that law protecting this independent agency is no longer valid. That under the Constitution's Article two, all of the executive power is vested in one person, a president.

And what that means is the ability.

To hire and fire the heads of these agencies. It essentially gets rid of a vast amount of independence of agencies, including the sec for instance, that protect us and insulate us from the president's corruption.

Now, when you combine that ruling with.

The fact that this president is a want to be authoritarian who's obviously going to use his hiring and firing power to spread his corruption and his threat democracy, it's.

A big deal.

This is an agency that's charged with fighting consumer fraud, bad practices, has roles in.

Ensuring competitive behavior.

And you have a president who's only concerned with his own financial interest and his own narrow political interest, and so what he'll try to do is to fire anyone that doesn't do his bidding.

And I can't emphasize enough.

This just reshapes, it changes completely the structure of the federal government.

For you said, can you impodcasts could insulate these agencies.

For listeners who don't follow constitutional law, as obsessively as you and me. Why should the average American care whether a president can fire an FTC commissioner? I mean, how how can this affect for those who don't know how it affects consumers or workers or financial markets.

Well, put it this way, Congress passed the law creating an agency to protect all of us, to protect a competitive environment, to protect against monopoly, to protect against fraudulent and abusive practices, going.

Back again about one hundred years.

And when it did that, it realized something, which is that if you have a bad president or corrupt president who's just intent on his own power, or even a good one, they might try to get in the way of the public good by using these agencies for nefarious purposes.

So what did they do?

They created a protection against political firing. But essentially, what the bottom line of this opinion is. It now gives the president of green light to fire anybody who say isn't helping his family when it comes to their own business and their own anti competitive practices.

And what's to stop him now?

It just basically, you know, there are more than two million people in the executive branch, and if you include independent agencies, it's even more. And what this does is it just gives the president more and more control over them. He still doesn't control civil servants, who are protected from firing unless there's cause. But this is also opening the way towards that to complete control of the entire federal government by the president, to opening the way to his.

Corruption exactly right. So, I mean, before we hit the break, I do have to talk to you about this other disturbing factor. We're not disturbing. I can't make up my mind on this. To the same day, the court dramatically expands presidential removal power. It allowed Federal Reserve Governor Lisa Cook to stay in office and say, Okay, Trump, you can fire anybody you want, but the Federal Reserve is the apparent exception, right, Like, this is the constitutional doctrine unlimited presidential power unless Wall Street gets nervous. And it seems like that's where these justices discovered moderation. Is that is it fair? I mean, like, like, was this really a victory for Federal Reserve independence or was this just a narrow procedural ruling in one case?

No, it's I think it well, it's both. It's technically procedural ruling. But really it is a victory for FED independence. But the reason why you're rightly feeling mixed emotions about this is because it doesn't make any sense. In one breath, we just explained that the essentially, the Supreme Court said that the executive power includes the ability to engage in any kind of firing, even political firing, of all agencies, including those that are supposedly independent. Well, the main independent agency, arguably the most important one, is the Federal Reserve. Now what did the courts say about that? It said, yes, he has the power to fire anyone.

In any independent agency except this one. Now, what's the reason? That's what?

You're a pragmatic economic one. A pragmatic economical I don't know if they didn't tell us a massive constitutional distinction. Yeah, I mean it just seems like theilators like it. Well, they occupy, you know, unique categories.

Right, if they would have said that, I would have been.

For get Congress, independent agencies, no interest rates.

Whoa there, cowboy?

I mean, right, Corey. You know, like democracy is negotiable, but the Dow Jones is not.

Right. I mean that this is about.

One thing that you do get in the sort of some sense of the back and forth between the justices, because you know, they're going back and forth about how much of an explanation they owe the American people.

They've given us almost none. I imagine that.

The explanation is going to be, and I'm getting this from the Lisa Cook opinion, that the Federal Reserve is so old that it really, you know, dates back. The Federal Reserve itself has its roots in the Bank of the United States, and that has its roots in an even earlier bank from George Washington's period of time. And so there's something about its age. I guess that the Court is going to try to play with or if they're going to be honest, at least say what you said, which is, look, you know, we have this kind of crazy we have this originalist jurisprudence that says there's no independent agencies.

But we're not that crazy.

The same way we're not that crazy in the birthright citizenship case that we're going to go against the text of the Constitution. We're pragmatic enough that we're not going to just destroy the Federal Reserve and allow want to be dictator president to have control over interest rates.

Okay, tell us that right.

But again, I'm more cynical than you because as soon as I hear originalist, I assume they're not going to be honest. So you got to read through what they actually say. We have to hit a break. Let's come back and talk about all the other hillacious things and maybe maybe one or two positive things that this Supreme Court has done. But boy, it ain't great. We'll be right back.

Hi, everyone, it's Corey.

I'm jumping on here to let you know that Amazon is featuring my book The Presidents and the People. Five leaders who threatened democracy and the citizens who fought to defend it. It's only two dollars and ninety nine cents on Kindle, so.

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It's a book about why the presidency itself is a danger to democracy and why five times before Donald Trump, we've seen presidents threaten democracy. Even some of the supposed hero presidents, people like John Adams and Woodrow Wilson. I argue, actually, we're deeply authoritarian in their understandings of the Constitution. But this isn't a book without hope. In fact, it's a book all about hope. It's a book about citizens who fought back some of whom you've heard of, like Frederick Douglas, others that you likely haven't, like Sadie Alexander. I interviewed Daniel Ellsberg for the book, and it's about his role. And my argument is that these citizens not just fought back against authoritarian presidents, but they prevailed. They prevailed by appealing to recovery presidents who put the constitution back.

So in a dire time, check it out.

This is a book about hope, and I think it's really a remedy to what we're facing every week with Donald Trump.

At any rate.

I hope you liked the book, and thanks so much for listening to this podcast.

And for making it so successful.

So once again, the name of the book is the Presidents and the People. Five leaders who threatened democracy and the citizens who fought to defend it.

Welcome back to the Open the Office. I'm John Fiegel, sang Professor Corey Bretschneider. I'm so excited Joyce Vance is going to join us in the next act. But I got a lot of other things to tug on your coat about, and the big one came late last week. We've talked a lot on your show about temporary protected status. How three hundred and fifty thousand Haitian brothers and sisters, overwhelmingly Christian, were invited to stay in this country after the devastating earthquake and the murder of their president. Our own State Department says Haiti is not safe to visit. These folks have woven themselves into the economy. They have taken jobs, paid taxes, raised very American children, followed the laws, done everything we tell migrants and asylum seekers they have to do. And the same White House that spread racist lies about them stealing and eating pets has not yielded in trying to drive these people from our home. Even the Republican governor of Ohio, Mike DeWine, has come out to say, please don't take these people. We've seen Republicans like Don Bacon come out and say, hey, these people are propping up our healthcare industry during a labor shortage. It's going to hurt your grandma if you deport them. To say nothing of the moral catastrophe of the soulless ghouls of the world, like Meg and Kelly rejoicing that we're sending families and children to a place that it is not safe for families and children to go while remind out everybody that the Haitian people are overwhelmingly Christian, and the court ruled late last week that this administration can end their temporary protected status hundreds of thousands of people, thousands of Syrians. Does the decision primarily concerning immigration policy or is this really about judicial review?

Well, I've got to say, you know, we have this I think decent opinion in the birthright citizenship case that we talked about the idea of the Second Founding, and then we also in the same breath have a betrayal of that last week in this TPS case, and we have been covering it, I should say, and we'll continue to cover it. If you haven't subscribed, subscribe because this is.

The place we get this in depth kind of conversation. So let's get into it.

You know, I'm celebrating the birthright citizenship case. It wasn't as lopsided as it should have been given the issue. But the other thing that the Fourteenth Amendment said so clearly is that if you're engaged in pernicious discrimination, if you deny equal protection of the law, it doesn't matter what kind of legal authority you've been given from various laws or statutes, or what kind of authority you have as president of the United States. So to my mind, the real issue in this case was exactly what you just said that this president told us the reason why he wants to revoke temporary protected status for Haitian Americans, especially given the devastation and danger that they face in Haiti, And the answer is because of his own racism. So when he says they're eating the dogs, they're eating the cats, you know what is that but pure racism. And this was a moment where the Supreme Court, as it did in the birthright citizenship case, could have said what the second founding was about. I just want to clarify that term. We had the original founding in the eighteenth century, and then in the nineteenth century after the Civil War, we have three amendments that refound the United States on the idea of democracy, multi racial democracy. Thirteenth Amendment ending slavery, Fourteenth Amendment guaranteeing birthright citizenship and equal protection, and the fifteenth Amendment guaranteeing a right to vote for at least.

From me free from racial discrimination.

Now, what the Court did here was it just ignored a huge part, maybe the main part of that second founding, which is the idea that you can't act based on racial base. It just ignored him.

And so that's really the bottom line of this case.

That's why the hero of this said ruling for me is Justice Selena Kagan. In her descent, she argued that these allegations of discriminatory motive deserve a lot more scrutiny, and because they didn't get it, she elected heroically. Everybody needs to read this. Everybody needs to read this. In her discent, she decided to make sure the Supreme Court record recorded the actual racist lies of the president. She writes, so, here are some of those statements. Haitians are reading the dogs, they're reading the cats, they're eating the pets of people that live in Springfield, and she goes through everything Donald Trump. Haitians in the US probably have aids Haiti is a shithole country, which is filthy, dirty and disgusting. Haitians are poisoning the blood of our country. Why do we only take people from shithole countries like Haiti and Somalia? Justice Kagan nailed it. She listed verbatim Trump's specific acts of racism that are deeply relevant in this case, and I'm just so grateful someone in a position of authority finally acknowledged the stark, black and white of the racism that's been out there in front of us all this time. Seemed like it made a Ledo quite angry that she did that.

You know, even when you haven't won, there's a sense in which telling the truth is a kind of victory. And we're going to talk with Joyce Vance about how to have resilience in the face of threats to democracy while they're.

Seeing it right there, tell the truth.

I do think there's a frightening parallel with Trump's first term, which is that we also had a travel ban case, the case that I was involved with writing an amicus brief that was with several colleagues that was cited by Justice Soda Mayora in the Descent.

She did a similar thing. She went back over.

All of his tweets and talked about how, yes, this is the same guy who's engaged in a travel band that called for a complete and total shutdown of Muslim immigration into the United States. And we talked with Kate Shaw by the way, about this case in that about this issue. But there really is a direct parallel both in the violation of the equal Protection Clause and the racism of the president, explicit racism. And then here's the unfortunate parallel in the cover up by the majority refusing to do anything about it, refusing really to enforce the law against racism that is the fourteenth Amendment.

Yeah.

Maybe the scariest ruling quiry, maybe the one that impacts our lives the most, came on Tuesday, on the last day, where the court lifted limits on how much political parties can spend on advertising and other expenses in coordination with candidates six to three. You know it, the Dirty six. There are no more limits on campaign spending. The last remaining barriers between wealthy donors sending unlimited funds to federal political candidates has fallen. I don't really know how to wrap my brain around how big this is. Critics say this is going to allow the rich to have even greater control beyond Citizens United. Supporters say it's just protecting free speech.

How do you re No, it is kind of a Citizens United on steroids. I mean it just you know, takes the argument there and expands it to eviscerate so much of what's remaining. I should say, you know, part of the recovery from the Nixon period was meant to be in campaign finance laws. Nixon, you know, money was coming from all over the place. You hear them on the tape saying, Oh, we need to cover up Watergate. Don't worry, I'll get the money. Essentially, I'm going to find you know, campaign money wherever I want it. And the idea of this sort of open corruption was meant to be curbed by laws that said, you know, we're going to control how this money is spent, we're going to document it, we're going to have transparency. And what the court did here is it took limits, sensible limits on how much money there can be given by the national parties to candidates and coordinated contributions, combined with you know, strategy, and said, you know, this is an area where we're not just going to allow unlimited money to the parties themselves to then flow unlimited to the candidates. And yet all of a sudden, let's just get to what their argument is. The majority is saying here, well, this right to free speech, which I thought was actually about talking, is actually about how we structure our elections which I thought I should say too, I'm being sarcastic. It's not that I think what I know the idea of the First Amendment is about is enabling democracy, and it's not compatible with an idea of the First Amendment that is meant to be part of our democratic rights to allow that idea to corrupt the way our system works. And that's exactly what's happened here, that they're just expanding and expanding the First Amendment to basically make almost no room for campaign finance reform.

And yes they're.

Saying that, So what's I mean one thing you know, you just have to come back to, and I think it just sounds ridiculous, but I'll say what their argument is that the coordination the speech of the of the political parties of RNC or the DNC and specific candidates, that that's the speech that's being violated by these campaign finance limits.

You know, if that's.

Valuable speech, it's not as valuable as saving our democracy. So it's just an area where you know, yes, this is what they've said, Well, we'll keep talking about it on this show, but it is a destructive moment.

Citizens United was destructive.

Citizens United didn't give rise to super packs, but it gave the ballast to a lower court opinion that did protect super packs, which of course can spend unlimited amounts of money in independent expenditures.

One question I have is Republicans cheating the midterms. They're just helping their own party cheat in the midterms. That's all they're doing, Corey and.

One Just sorry, John, to throw are bad news onto the fire. But why would these independent expenditures have to remain independent? Isn't there a free speech right of super packs to coordinate with campaigns? I think that's what they might be headed to saying next. So they've been citizens united, you know in the independent expenditure. No, we might be talking about coordinated expenditures very soon.

It's completely coordinated. Yeah, that's how it is now. We've only got like a minute before the break, but really quick, Corey. The court also ruled that states may count mail ballots arriving after election day if they're postmarked on time. How shocking. Justice Barrett wrote that federal election statue was established when a vote must be cast, not when it must be received. This wasn't really controversial. It just upset people who want to cheat.

Correct, We talked about this case as well. We'll keep talking about it. It's one of those issues where, look, election day means get your ballot in by then, or cast your vote by then. It doesn't mean that the ballot has to be received or counted by election day. And yet the words were being twisted by pro Trump forces that wanted to obviously win an election. And it was another one of these cases where I thought to myself, Wow, the text is so clear, it's not about counting ballots or receiving them. And the Supreme Court agreed thankfully that you know, wasn't totally totally crazy.

We didn't even have time to talk about the good news Egen Carol got this week. Let's take a quick break. We'll be right back with the One and Only Joyce Span. This is the Oath in the Office.

Hi everyone, it's Corey again. This time I'm jumping on to let you know about the Oath in the Office Substack. If you're not on substack, you should be and check it out. What we're doing every week is taking our stories that we're talking about, taking the interviews that we're talking about, and we're providing some context and we're also providing links to different articles that really explain the issues. So the Oath in the Office Substack, check it out.

Welcome back to the Oath in the Office, Professor. I'm incredibly excited about this next guest, Do you have some magic in your rolodex?

What a pleasure to invite and have join us Joyce Vance on this historic day. As you'll see, her book couldn't be more on point. What she has to say about the cases that we've been talking about and about the book itself really belong in this historic week. Joyce Vance, of course, is a former us A term for the Northern District of Alabama. She's a professor at the University of Alabama Law School. You've seen her on television on MS now. She is, to my mind, one of the best legal commentators out there. It's been my pleasure to be on with her, including on Morning Joe. First interview I gave in my book, The Oath in the Office came out way back, and I'm especially pleased to introduce her book, a best selling book, Giving Up is Unforgivable, a manual for keeping democracy. So welcome to The Oath in the Office.

Joyce Fans, thank you all so much.

For having me. You're right, what a great day to be talking about democracy as she's.

I mean, I have to ask you, just as a way of jumping off that one of the things that you say very early on in this important book, which really fits the theme of this podcast so well, because it's both honest about the assault on democracy that we're seeing from Donald Trump, but it's also a deeply hopeful book about our institutions and about our resilience as a democracy, and about the value of democracy itself.

So we're kindred spirits. You begin early on by talking.

About Donald Trump's attempt to revoke birthright citizenship through executive order, and you talk about it as an assault on democracy. So I have to just ask you in the beginning for your reaction to the ruling today.

Yeah.

So I wrote a piece earlier this week and I said, when the Supreme Court rules against Donald Trump on birthright citizenship, do not clap right. This is not a proud moment for the Supreme Court, which could have ended this case months ago when it showed up on the shadow docket. In fact, litigants invited them to. This should have been a nine zero decision. It was not the fourteenth Amendment is clear, and it has been clearly interpreted since it was adopted. And the fact that there's any dispute about this let alone. And we've had so many opinions crammed down in the last couple of days. But I believe it's sam Alito in dissent who engages in some handwringing and talks about Terri's path we're walking down. Look, this is just it's just crazy talk, and I think it's a symbolic of how deeply democracy has been degraded.

Yeah, I was telling the professor earlier in the broadcast, we had essentially three, maybe four justices arguing that a chief executive is now allowed to change the Constitution through executive degree if he's Republican. And that's why I'm so grateful to have you here, because one of the great themes throughout your book is that democracy, as we like to describe it, it isn't self executing. It completely depends on us keeping it alive and using it. And we've grown up hearing that these institutions are strong enough to withstand almost anything. But it feels like one of the grand themes of your book is how that assumption has really been fundamentally challenged over the past decade, with all the tattered duct tape holding these guardrails together. How are they looking to you? This week?

You know, I teach a class on democratic institutions at the law school, and something that happens predictably every semester. We begin by talking about the institutions and what are they and how do they work, and we sort of reach the preliminary conclusion that they're the architecture that democracy is draped on top of that it's how it functions. And then at some point long about class four or five, a brave student will raise their hand and tentatively offer the notion that the institutions, in many ways are the people that populate them. And that's a very astute observation and something that we're seeing in practice now. American democracy is built on a number of assumptions, and one of them is that a sufficient number of people of good faith will be trying to execute democracy at any given moment. And so in many ways, the tests that our institutions are facing are personal challenges for individuals who find themselves in these roles in a moment that demands exceptional bravery. Some of them are to the moment, we've seen United States attorneys walk away from treasured careers, and others of them flunk the test entirely willing to sacrifice their integrity and democracy just for another ten minutes of fame in Donald Trump's orbit. So that, I think is the test that the Institution's face in many ways.

I have to ask you, Joyce about you know, couldn't agree more about the need for citizens to defend democracy, but of course it's difficult when you have a Supreme Court. And I also were in heated agreement about the fact that one of the travesties of today is that that birthright citizenship case, of course.

Should have been unanimous.

And not only did we have the three descents, but we also had Brett Kavanaugh saying that the Constitution itself doesn't protect birthright citizenship, only a statute does.

Another moment of really.

Which just really horrible, right, because it leaves open the possibility there's your challenges. It's like Kavanaugh was trying to have his cake and eat it too, and.

I exactly exactly go into the fifties.

Yeah, I mean to me, it is an invitation to Congress to try again.

You know.

Now, on the one hand, they don't have five votes to uphold a statute that would revoke birthright citizenship. But Kevin was essentially saying, well, maybe I could get an extra vote, and you know, on that statutory question, and I don't think he could. But there is a kind of worry, So I guess you know on this balance of And I love in your book too, of course, you tell the story of Benjamin Franklin saying, you know, the institutions won't hold in the end if people won't demand it. So a republic, if you can keep it that brilliant moment in American history.

What do we do though, and I know.

You've been talking about this on your own shows, when the Supreme Court really does directly undermine democracy itself, and I'm thinking in particular about the use of the First Amendment to really eviscerate so many of the reforms that we did get when we demanded our own democracy.

So yes, as listeners know and have.

Heard me talk about, after the crisis, there was a push for all sorts of reforms, the creation of the Independent Council, National Emergencies Act, but also campaign finance reform, and we've had some really important pieces of legislation where citizens have done exactly what you're calling for. But yet in this FC case, what we have is the expansion of the First Amendment to really shut down the kind of limits on excessive corruption, on limits on campaign funds flowing.

So, I mean, what do you make of that? And how I want? Hope?

But I also been looking in that case. I'm feeling kind of down.

So do I get a whole semester to answer that? I mean, look, this is not a great day. I don't know, y'all might be a PG rated podcast on No, No.

Dis encouraged, dis encouraged, feel free, please.

It has been a long week. N R s C versus FEC, the case that you just referred to, this terms campaign finance case was a sleeper case that not a lot of people have been talking about. But I singled it out early on as one of the cases that I was the most concerned about because much like we've seen this one two punch where the Supreme Court knocked out the Voting Rights Act Shelby County versus Holder in twenty eleven, twenty thirteen, I'm losing my grip on the dates there and then this term, of course, we saw Calai, which made it open season for political and probably racial gerrymandering too. By that same token, we've seen a one to two punch on campaign finance. You know, we saw Citizens United the First Act, and today we saw the case the second Act that has said open coordination between political parties and candidates is fine. That really blows the lid off the limits on individual contributions to campaigns and says dark money can go all the way. And of course that benefits Republicans who have this huge chest compared to what the DNC has on hand. So this is nothing other than letting the powerful, who already have far too much control in our society governing our politics.

Right aristocracy.

I mean, let me put a fine point on that. We are at a demographic moment in this country where within the next few decades we will be a majority minority country, and that's frightening to a lot of people who want to hold onto power for a variety of reasons. Permitting money to have more rights than people is one way of holding onto power. And so I think this is a case we should be incredibly concerned about because it's one way of really altering the trajectory of our elections but still being able to say, I guess if these folks can say it with a straight face, well, you know, we're still conducting free and fair elections at the same time that they use these fake, these phony allegations about voter fraud that have been dis time and time again to adopt measures that suppress the rights of people who are eligible United States citizens to vote. So it's sort of like on both sides, they're trying to unbalance the scales of democracy.

Right, You, on the wet hand, claim this fake voter fraud at the same time that there is real corruption of course that comes with campaign contributions, and then you simply deny that that would be a reason to have limits on the way money funds elections.

I mean, Joyce, do you have any thoughts?

I mean, one of the really depressing things of course here is that this is a constitutional argument about the First Amendment and why it blocks off all sorts of paths of sensible campaign finance restrictions. So what do you see. I mean, of course, one possibility is an amendment that would reverse not just citizens United but this case as well amendments are very hard to get through. There's public financing. I mean, do you have a way forward for us? I'm looking for the hope in all of this, you know.

So this case came down this morning. I'm going to have to confess that I have not yet read it as carefully as I should, and I want to slice and dice it before I get there. There's still a number of proposals floating around post Citizens United and as you point out, because it's a constitutional argument, many of them hinge on an amendment. Some cases are wrongly decided from their inception and can be reversed by a court. That might be my preferred path, but that's a long range strategy. I think the important issue here. And look, this is going to sound a little bit pollyannish, so I'm going to own that before I go down this path. We have to be a country where people understand that who you vote for in an election, that's a political choice, and it's up to parties and candidates to fight for our votes. But your ability to vote, your ability to vote in a free and fair environment, that's a fundamental element of democracy. And if we lose that, we see far too much of our country and who we are. It's no longer popular this notion that people should go to Congress and come together and work for the good of the American people. You know, there was a congressman who I won't bother to name, who was quoted earlier this week saying I didn't go to Washington to compromise with Democrats. I went to beat them. We had a little bit too much of that mentality. And you know, I take hope from the fact that in Michigan, when it came to this notion of how they should draw their maps, their voting maps up there, they decided on a bipartisan commission that would work together to do that. In Michigan ers seem to be really happy with that outcome. We cannot give up on the notion that people can work together. We have to be clear on it. There are many people who don't want to do that.

But this is a.

Great moment with midterm elections coming up. Every member of the House House to vote, and you know, you don't have to be a Democrat or a moderate or an independent to believe that you should be represented in Washington by someone who's committed to American democracy. Nobody knows who you vote for when you go into your polling place. That's between you and the good Lord. And so if you have a moment of conscience where you want to preserve democracy for your kids, this might be a moment to vote for democracy and not for party.

Sadly, what scares me the most is going back to Obama's first term that for many in the House, bipartisanship and working with the other side is a gateway to being primaried. And we saw with Eric Cantor who went every week to the Obama White House and said no to everything, and then Dave brad primaried him, saying, can you believe that Eric Canter goes and meets with that Obama every single week? They'll always find a way to bring someone more fascistic when bipartisan cooperation, which our system is based on, is so demonized. But you've spoken so beautifully about the expansion of executive authority, and it's true what unites these people, these authoritarian males. They need strong men, rulers. I want to ask you to speculate, willing to how do you feel about these new legal doctrines surrounding presidential power? Are going to reshape the office after Donald Trump eventually leaves, because I can imagine these rulings if a Democrat was serving as chief executive right.

Now, I mean that last clause says everything right. The existential question that we face does the Supreme Court really believe in the unitary executive theory or does it only believe in the unitary executive theory when a Republican is the president? Do Republicans believe in the unitary executive theory or will they roll it back as soon as you know, take your pick AOC is the president in twenty twenty nine. I'm a skeptic about govermitment to this policy. You know, this is a party of family values and law enforcement, and we see where that's gotten them. So let me just say I'm looking for the exceptions to start rolling. And here's a great example. These two decisions that we saw yesterday, Slaughter and Cook both decisions about when a president could hire the leader or a member of an executive quasi independent board created by Congress. You know, Cook on the FED and Slaughter on the FTC. Longstanding a ninety year president out of the FTC from the New Deal era that says the president absolutely cannot fire without cause just because he doesn't like, you know, a holdover from a prior administration, in essence, doesn't like their politics, their personality, how they look. That president was absolutely clear, and the Supreme Court shot it dead. Everybody knew that they were going to do it in slaughter. Donald Trump can fire whoever he wants. Donald Trump, by the way, was quick to seize that moment on truth social you know, beating his chest. Now I'm more powerful than ever. But then the Supreme Court dropped a little asterisk except for the FED because we're worried about our own personal finances. I mean, they didn't say that part, but you didn't have to really listen very hard to hear it. Brett Kavanas sort of came along and set it in concurrence. Right, But if we let Trump fire multiple people on the FED at once, the world financial markets they could be thrown into turmoil.

That that's it, man.

You know, thanks, at least you said the quiet part out loud on podcasts.

Still, the aristocracy protecting itself in both rulings.

It's such an important, such an important point because you know, we've heard from the dissenters the refrain, Look, this isn't an ordinary president. It's a president that is really intent on destroying democracy. And you know, a normal president doesn't issue in executive order trying to revoke the fourteenth Amendment. And of course that's what we have faced. And so you have this sort of pretend going on with Justice Roberts and the majority in the FTC came which is saying, oh, you know, we have to be neutral about who the president is. And in fact Barrett at some point and said, well, I pretend it's not the president that we currently have, but the president of a different party.

And the way that you see, first of all, how can that be? You know, the idea I used.

To teach of Corus Humphreys Executor and Myers and all these cases, and they were a little boring, because if you have a benign president, it's not a big deal. But if you have a president that's really trying to destroy democracy and establish a dictatorship, it's a really big deal. And as much as you hear them saying on Service, I love this point.

Well, when it comes to.

The really important independent agency, the Federal Reserve, that if the president controls it, could destroy not just our economy but the world economy, and they're they're willing to say, well, we're not crazy.

We're not going to give you a legal argument.

And if there is a legal argument in there, I haven't founded. There's some stuff about how the Federal Reserve dates back to the founding and different banks of the United States that.

Were predecessors, but what's the legal argument.

Well, the reality is that it's a fear of authoritarianism.

So yeah, I mean, how joyce is.

Do we get that idea out? I guess you've said it pretty.

Plainly, But I mean, what do we do?

I do find it very challenging and teaching and talking about this that the real reasons that the court is using for its decisions aren't explicit, that they're hiding them. And I can't think of a better example than these two cases.

So what do we do? We just call it out, we talk about how things should be.

Or you know, do you remember when Low or Bright came down and I was having a conversation with a number of friends who teach whether you call it exational law administrativemocrisy, right, and everybody was like, well, shit, I'm going to have to tear up my syllabus. You know. You know, I come from a family of judges. My father in law was on the Eleventh Circuit, my husband was a state court judge. I have this sort of innate respect for the judiciary, and it really troubles me that I'm losing that, not for district judges, because I have just unbelievable regard for the federal district judges, the state judges across the country, no matter who put them on the bench. You know, there are some fabulous Trump appointees out there just trying to do their damn jobs and rule on the basis of the law and the facts and maintain the constitution that served us so well. It's so easy to take the rule of law for granted because it's worked so smoothly. There have been some bumps in the road right at Civil War, but it's mostly worked really well for us for two hundred and fifty years.

We have this.

Incredible stability, We have this incredible financial opportunity. Is it perfect, absolutely not. Is it accessible to everyone, absolutely not? But we have been able to be a country that aspires to always do better in large part because of this bedrock rule of law. That we all take for granted. And now we're finding out what happens when the courts are so comfortable, the courts, the Supreme Court so comfortable that it's willing to in many ways join forces with the president who wants to direct the future of the country and sit back and let that happen. And it's an abomination. It's just we're going to have to be a country that develops the moral courage to have these difficult conversations with people we don't see eye to eye to right, everybody's had the experience of somebody that they have just given up on because they can't take the magabs anymore. And most people like me have had the experience of having close friends or family members who started out as Trump voters who at some point something was a bridge too far for them and they wanted a way back. And the challenge for people like us is to not cut those people off at the knees, to not hold where they were against them, but instead to try and go ahead and draw a circle big enough for everybody to stand on.

So we, oh, don't don't keep democrats from destroying a better coalition, Please, don't we Democrats love destroying the possibility of a larger coalition.

You know, in many ways, Democrats, we are our own worst enemies, right, you know, just think in bumper stickers, if for letter phrases, but damn we insist on having these big, complicated ideas and thinking about what's best for everybody, not just for us personally. If only we could be, you know, more like Republicans, but thank goodness, we aren't.

You know, some people hear this phrase protect democracy and they assume it means, Okay, I've got to be politically active every day. But in the book you argue that no. I mean, civic engagement takes many forms, and one thing I appreciated about the book is that it doesn't stop it just to diagnosis. You offer homework. What are some meaningful ways our listeners can contribute that don't require running for office or necessarily going to protest marches? What do you recommend for the concerned citizen right now?

I mean, I think people should do what comes naturally and what they're passionate about. You know, I have friends who are knitters who have engaged in all sorts of fabulous protests work through their knitting, but they've done more than just protests. They've educated people. Right, you had in public and somebody asks about it, and the next thing you know, you're talking about the red hats that were symbolic in Norway during World War Two. I have a friend who's a musician who wrote a beautiful protest song that was sung by a lot of people when they marched at the No Kings marches. You know, some people write books. Some people decide to volunteer in elementary schools and go and read to school kids. Some people will pack meals at food banks. I think there's a way that we can all contribute to democracy. And for some people it might be overtly political, and for other people it'll be different. And I'll just tell you one of my best friends from my time as a prosecutor. He and his wife, and they are I think liberal by nature, but their form of activism is to volunteer with the Red Cross. And so when people have emergencies, whether it's a fire, whatever it is that happens, they actually get out of their comfortable beds at two in the morning and go to where those people are and help them find stability immediately after a crisis. And if that's not a beautiful way of supporting this country. Then I don't know really what is and it's so perfect for them and who they are, they couldn't have found anything better. The challenge, I think, euch of us is to find what are you suited into doing?

Amen.

I have a couple questions I'm eager to ask you. I mean one, I do want to ask you about the Watson case and election day, and I know you've been thinking about it. But I just following up on this conversation, this last exchange with John. I mean, are there lessons too, concrete lessons you, of course were US attorney in a major position in a red state, And are there lessons from that period of time that inspire you that you think that we can draw on. We think of you know, red and blue, so at odds, and yet my senses having done that so successfully, that you must have seen things and done things that we can draw on for inspiration when it comes to thinking about getting past this awful moment.

Yeah, I mean, I continue to think we have a lot more in common than we have that divides us. And the trick here is understanding that the people that are trying to drive wedges between Americans. You have to think about why are they doing that and what do they stand to benefit from in that process? And that's typically people who want to seize power make money, and they do it best by dividing the rest of us and making us afraid of each other. And so it's interesting because my reality is a US attorney and a very I was in the proverbial blue dot in a red state, Birmingham, very democratic county wide, almost all of the elected officials are Democrats. Statewide, the reverse is true, and yet I have such great partners in state and local entities to work with. For one thing, we worked heavily with the faith based community, and that was across the spectrum. We worked with the Muslim community and the Christian community, the Jews, you know, the Sikhs. That was a rich source I think of support for our community, and many people who had not been exposed to each other before learned that really, at the end of the day, we just all wanted to do what we could to make sure our kids had better lives. You know that there was that progression, and that's a real eye opening moment for people who might think that they don't have very much in common with somebody else. But I also learned that there were issues that we could work on. Criminal justice reform tremendously popular across the spectrum, and so we did a lot of work on helping people when they left prison and returned to their communities to succeed, because if people return to criminality because they can't get a job or find a place to live, nobody really benefits from that. And so we were able to work with everybody from businesses that frankly in a difficult market where they just could not find employees for jobs that they needed, were willing to step out a little bit and maybe consider training people who had been incarcerated to do these jobs. And the same token, you know, groups, traditional civil rights groups also wanted to engage on those issues. And it was a delightful exercise in finding what we had in common and worrying a lot less about where we were different.

Yeah, there's a sort of guidance that comes from thinking about periods of time where people were able to do policy, to work together to have the rule of law, you know, despite being around those who we don't agree with on partisan politics.

And that brings me to the last question.

I want to ask a case that I know you're thinking about that came down Watson versus the Republican National Committee. And this is, of course the case that comes out of Mississippi, a red state, about whether or not the protection of an election day means that ballots can be counted after election day.

The Supreme Court, I think, and I take.

It you agreed to the right thing here and they said there's nothing about the meaning of federal law that prevents the counting of ballots after election day. I mean, does this give you faith in the rule of laws? This is the kind of we talked about white birthright citizenship we have mixed feelings about because it was so obvious.

How about this one. How does this leave you feeling and what are your thoughts about it?

Well, look, I've never been so happy to be wrong. I did not believe that this was how the Supreme Court would rule, So it was in many ways a pleasant surprise. But I don't think we should overstate what happened. Just a spirit made it clear that it was a very narrow decision, and all she was saying was that the federal election day laws did not preempt Mississippi's ability to pass a law that said we're going to count votes after the day of the election, as with all things voting with this Supreme Court, that means that we can find, you know, down the road, that there's a successful challenge to early voting days, which is really what the stakes were in this case. A decision the other direction could have thrown everything into question. This is a court that has been pragmatic this term. I think that's a fair statement. Had this case come out the other way this close to the midterm elections, many secretaries of States had already begun, some of them quietly and privately, others more publicly, to say that they weren't sure how they would be able to administer elections. And so I think at the end of the day, a narrow majority was cobbled together in an effort to keep from throwing this election into open chaos. You know, there's already plenty of chaos surrounding November. Maybe the Court said no Moss here.

I think thank you so much, Joyce Vance for joining us on the oath in the office. It's been a show about hope and about the possibility of returning to a time when we can work to save our democracy. But we've also been brutally honest about what we're facing, and so we really are kindred spirits and trying to accomplish all these things.

Thanks so much for joining.

Us, and thank you for all the hope you've given so many Americans, Joyce, and for all of the civics lessons you've given so many as well.

Well. Thank you so much for having me. You know, we're lucky to have the opportunity to talk with our fellow citizens like this. I'm constantly aware that with that it's fun right, it's great to get to talk with people, but it's also a heavy responsibility in this moment. So thank you for giving me the chance to share some thoughts with your listeners.

Big thanks to Joyce Vance and Professor Bretschneider. What a packed show. My god, I'm glad the Supreme Court is going to give us a rest for a few months.

Look, you know, the birthright citizenship is a huge victory.

I'm so proud.

I have to say John that we had that in depth conversation with Cecilia Wang Argue the case.

Congratulations to her.

I have to give a shout out to our sponsor, the ACLU, who were one of our first sponsors, and they're a huge victory here and to the American public because what the Supreme Court did here was it protected the Constitution and protected the Fourteenth Amendment and upsetting and so much of this assault on democracy is there's still is room for helpe and this is one of the places where we're seeing it.

And I just want to thank Clarence Thomas for writing a ninety one page tantrum of petulant dissent because that was good for my comedy skills. In my heart, and just the fact that Trump keeps calling these judges his judges, his judges, but I guess they actually belong to the Constitution. Who knew? I mean, imagine buying three smoke detectors and then getting angry because they keep going off during a house fire that you started. That's what Donald Trump did. Corey Bretschneider, thank you very much for walking me through all of this. It's been very inspiring and discouraging. I'm hopeful and scared for what lies ahead. I hope we have a Congress coming in this year that will have the will to take on campaign finance reform. In the meantime, what's the best way for our listeners to follow you, professor and keep up with your work.

Well, if you haven't pushed that subscribe button.

Subscribe to us on Apple podcasts or Spotify or YouTube, be sure to push it. And John, I'd be remiss if I didn't mention, you know, Apple Tracks, at least on Apple what the top trending podcasts are and last week we were that tracks. Who's listening to it, you know as the podcast episode comes out for the specific episode, and what were we last week?

We were number one? So thanks so much for that.

Thank you, Corey. I want to thank Wendy and Beywolf and everyone who puts this beautiful monster together every week. You can hear me on Serious XM Progress every night or maybe every day by the time this ares who knows. And my book is called Separation of Church and Hate. One last plug. I have an article in the new issue of the Nation for America's two hundred and fiftieth birthday. It's a double issue. They have all kinds of great writers, from Jane Fonda to Reverend Barber, to zoor and Mamdani and even me for balance. My piece is called the Separation of Church and State and Erica's best idea, so please pick that up. Corey. We got through another Supreme Court season. Thank you, hold me and I can't wait to see what comes next. We'll see you guys next time on the oath in the office,