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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm good. How are you?
J. Aughenbaugh: Well, I'm good in large part because, one, I get to talk about the United States Supreme Court, and two, we get to talk about some really fascinating recent decisions handed down by the Supreme Court before they attempted to get out of Washington, DC.
N. Rodgers: I'll tell you, they had some interesting cases this time. They always do. The funny thing is, we usually focus on 10 or 12 cases. We don't usually do all 60 because we're not trying to bore people to death with the 50 or so tax cases that five people in the world care about, and I'm trying to be dismissive, but not in a rude way, I hope. Those cases, they're not in any way salacious, but they're also usually pretty tight. Those cases have very focused 4.2.1.2.6.6 B says of when it should say and, or whatever. It's that narrow. Tax lawyers probably need their own podcast because they would have a whole separate view of it.
J. Aughenbaugh: Well, not only that, the questions are really narrow, and the impact may only be on the parties in the case. Some of the cases that we're going to be discussing this episode have the potential to affect millions of Americans, a large number of government and private sector institutions, and deal with issues that have, again, long bedeviled the US Supreme Court. The first one out of the chute, if you will, is a case some of you guys
N. Rodgers: Nice radio reference. Well done, Texas.
J. Aughenbaugh: I thought about this. This is one of those rare times where I actually gave some thought as to how I would lead into a particular case. But the name of the case is the Free Speech Coalition versus Paxton. This is a case that arose in the State of Texas. Paxton is the attorney general for the fine State of Texas. Texas passed a law that required age verification to access Internet porn, and the Free Speech Coalition argued that the law violated the First Amendment. In particular, the First Amendment rights of adults. Because the way the law is written is that even if you're an adult, you would have to provide verification that you wanted to access an Internet porn site, which means that this isn't really free speech because you are notifying the government that you want to access what?
N. Rodgers: A porn site or anything on the Internet.
J. Aughenbaugh: That's right.
N. Rodgers: While porn is the question here, what they're really saying is Internet in general, you should not have to verify your age to get on any Internet website. What if you had to verify your age to get on Amazon or to get on Google News or whatever?
J. Aughenbaugh: Yes.
N. Rodgers: That's their argument. Their argument is no adult should have to tell the government what they're looking at on the Internet, unless you're looking on the Internet for how to murder your podcast partner with mushrooms or whatever, in which case, the government does have the right to know that if Aughie turns up dead from mushrooms, they have the right to search my computer and find out that I did that, and you should see Aughie's face because he's laughing so hard. But generally speaking, what I'm assuming that the Free Speech Coalition difficulty is, is there is no way to set up an age verification that does not also force adults to verify, because if all it said was, click "Yes", click through if you're an adult, kids would go click, and then they would never have to age verify. In order for a system like that to work, it would have to apply to all 31 million people who live in Texas, regardless of their age.
J. Aughenbaugh: That's right. At that point, according to the Free Speech Coalition, you are banning the adults' ability to access the speech that they want to, right?
N. Rodgers: Got you.
J. Aughenbaugh: The Free Speech Coalition did not deny that Texas might have a legitimate state interest in age verifying young people.
N. Rodgers: Because I would be really dumb if they tried to argue that. We keep children away from certain materials because they're children, and we'd like them to stay children as long as they are children, for them not to see certain materials.
J. Aughenbaugh: As you and I discussed Nia, in a previous podcast episode, we discussed how the courts have historically given great deference to state governments trying to protect children, whether it be a particular age before they can get married or drive a car or drink alcohol or smoke, etc. The logic is, state police power is designed in part to protect the most vulnerable in society. There's a whole bunch of literature that has suggested that a whole bunch of young people are not ready to access the variety of pornographic speech that is available on the Internet.
N. Rodgers: The other side of that is that you could conceivably try to force Internet websites to have tiered access to, well, this is just people kissing, and then further on more adult themes, you have to show your age is appropriate to access. No company wants to deal with that. That, I think, was one of the early suggestions, was that there could be tiered levels of pornographic access, and the companies were like, that is a nightmare beyond a nightmare. What you should be able to do? What the companies said was, we're willing to have you have to sign in in one spot, and then you can access all of it. You can access whatever we have on our website.
J. Aughenbaugh: The Supreme Court in a 6-3 vote upheld the constitutionality of the Texas law. The vote was on the conservative versus liberal spectrum. The six conservatives said Texas law did not violate the First Amendment. The three liberals disagreed. What is interesting to note is though the court upheld the constitutionality of the law, the court did say that the law should have received at least intermediate scrutiny. This is one of the first times where the court said a free speech law, a law that, if you will, regulates free speech, deserved more than the rational basis review.
N. Rodgers: I was going to ask you, I thought free speech was one of the lowest levels of scrutiny.
J. Aughenbaugh: Well, yeah, because in general, though a lot of the justices believe free speech is necessary for democracy, in this particular instance, the court went ahead and said, but what you are doing here potentially bans adults' consumption of speech. But even using intermediate scrutiny, we think that the Texas law does not violate the Constitution. The majority opinion was written by Justice Clarence Thomas, and as Thomas points out a number of times in the majority opinion, the court has said historically, young people do not have as robust civil liberties as do adults.
N. Rodgers: Age verification is a reality for young people in a way that it is not a reality for, forgive me, you and I as old people.
J. Aughenbaugh: That's right.
N. Rodgers: You and I are clearly over 21. If we go into a bar to get a drink, we're going to be carded because it's a professional thing that they have to, but not because they're thinking that we are young enough that we can't drink. That's not what's in question. What's in question is whether they follow the letter of the law by carding everybody. It's a normal thing that happens in society, and it does not alter. I can see where the justices are saying. That's just a normal thing we do. We card people before we sell them alcohol, before we sell them cigarettes. There's no reason we shouldn't card people before we sell them porn, and adults just have to deal. Adults just have to deal with the fact that if you want to protect young people who are questionable age. Your kid looks 12 or 13 she looks her age. But if she were 17.5 she then it becomes a lot more complicated about trying to look at her and figure out whether she's old enough to have a drink or not or whether she's old enough to buy whatever it is which is why verification becomes important.
J. Aughenbaugh: Yeah. Again, this is pretty fascinating to me in the sense that from a policy aspect, Nia, there are already 20 plus states that have similar laws. Again, you're talking about a Supreme Court decision that not only affects a really large state, Texas. But potentially, where you're talking about millions of people, and not just young people trying to look at porn on the Internet.
N. Rodgers: Billions of adults who this is their pastime, and that's what they do. You're allowed to read or look at whatever as an adult. You want to read within the legal boundaries. You can't look at illegal pornography, but you can look at legal pornography.
J. Aughenbaugh: It's a huge industry.
N. Rodgers: They have a whole convention in Vegas and they have awards. They have the Oscars for the porn industry. There's a whole thing there. I think it's unenforceable because VPNs allow you to access materials as if you were from somewhere else. Unless this becomes a complete federal law in the United States across all 50 states, then people will simply set up their VPN as if they are coming from California or wherever it's legal. Then if you think kids don't know how to do that, you are a silly person.
J. Aughenbaugh: Part of Texas logic is, well, then we're still going to go ahead and embarrass and shame parents who don't have good controls over what their kids access on the Internet. Do you really want to be charged in a state court where you go ahead and say, yeah, but I'm of age. You went ahead and accessed this porn site at 1:30 in the morning. Well, who else in your house may have done so. Again, this is part of the logic. We're going to force parents, okay, to have better control over what sites their kids look at. I got to tell you, as a parent who has a child who is frequently on her tablet, I can't police everything.
N. Rodgers: If you could police everything, there would be no cyber bullying.
J. Aughenbaugh: Yes.
N. Rodgers: You could prevent a huge amount of the cyber bullying that ends in child suicide, if you could police that sort of thing but it is extraordinarily hard to police. I think that Texas is overreaching by saying, we're going to prevent children from accessing porn. I'm like, no, you're not. You know how I know? Because I know I'm a trillion-years-old. When dinosaurs roamed the earth when I was in middle school, boys would bring their dad's Playboy magazine and pass it around to each other. They already had.
J. Aughenbaugh: Listeners, just think about the stuff that you attempted and were sometimes successful even though you knew it was against the law, it was against your parents' rules of the house.
N. Rodgers: I had my first beer when I was 14. You get it from a friend. You get it from an older brother or sibling of the friend that you have, because everybody's got older siblings and they don't care. They're like, here, have a beer. This idea that you're somehow going to prevent children access to porn, I'm like, I don't think so.
J. Aughenbaugh: I'm skeptical.
N. Rodgers: You might prevent casual access, but you are not going to prevent intentional access.
J. Aughenbaugh: Because again, I'm skeptical.
N. Rodgers: Half the stuff they see on Instagram is pretty dang near porn anyway. I don't know if it's all that far. Dude, there is so much out there in the world that is.
J. Aughenbaugh: Yeah. Again, when you compare what we had access to compared to what's readily available on websites that would not be covered by this age verification laws I'm like, my goodness. I don't know what my reaction would have been at that age to stuff that I'm like, huh? What?
N. Rodgers: You can do that that way? I have to admit when I was young, probably followed by ew. I'm not sure I'm buying what they're selling. Equally, I'm not sure I'm buying what they're selling in the next case.
J. Aughenbaugh: Our next case, another First Amendment case is Mahmoud versus Taylor. This is the case that arose in Montgomery County in Maryland. It concerns whether or not the First Amendment free exercise of religion is violated when a school district failed to give parents notice and time to opt out before classroom readings of books on gender and sexuality.
J. Aughenbaugh: The court ruled in favor of the parents against the school district. The court held that the parents have a free exercise of religion to opt out of elementary school age children from instruction that includes LGBTQ+ readings with those themes. Again, the vote was on the 6-3 conservative versus liberal. The parents were a combination of, if you will, different religious faiths, Muslim, Catholic, Ukrainian Orthodox, and they challenged the Montgomery County School Board's refusal to give them that opt out option.
N. Rodgers: They just want the right to take their kid out of the reading. Not they were trying to remove the readings from the school. They just wanted to be able to control what their child accessed and the environment in which that child accessed it. Maybe some of them wanted to have that discussion at home, not at school.
J. Aughenbaugh: School led by a teacher, etc.
N. Rodgers: Who may or may not be of the same faith.
J. Aughenbaugh: Now, the majority opinion was written by Justice Alito, and he readily acknowledged that per Supreme Court precedent, courts are not school boards, and they're not legislators. However, the issue the court had here was that the school district allowed some parents to opt out their kids for other reasons, but not allow parents with religious objections to opt out.
N. Rodgers: That's not okay.
J. Aughenbaugh: What the school district was arguing was that if they allowed parents with religious objections to opt out, then it would become almost impossible to manage.
N. Rodgers: Which kids are reading what.
J. Aughenbaugh: The instruction of these readings. But what the Supreme Court said was, the problem that we see with what the school district is doing is you allowed some parents to opt out their kids for other reasons. Once you went ahead and did that, you can't exclude parents who for religious reasons.
N. Rodgers: This is an all or nothing thing. Either all parents get to have an opt out option, or no parents get to have an opt out option. Not some based on what we think is a reasonable objection and some based on what we think is not a reasonable objection. Then you're policing people's religion, and that's not okay. We don't do that in the United States.
J. Aughenbaugh: As Alito pointed out, the court's ruling in this case should not have been a surprise because there was a precedent from 1972, the Yoder decision, Y-O-D-E-R. This was the infamous case, Nia, we've talked about off recording. This is where Amish parents challenged a Wisconsin state requirement that all kids attend school, compulsory attendance through 10th grade. The Amish parents argued that after eighth grade, their kids should be allowed to be home-schooled and work on the farms. The Supreme Court, and this is 1972, so you're talking about the transition from the liberal Warren Court to the very conservative Rehnquist/Roberts Courts. It was the court led by Chief Justice Warren Burger. The Burger Court just came out and said, no, the Wisconsin law violates the free exercise clause of the First Amendment. We understand why schools want to have compulsory attendance, but why are you not allowing the Amish to opt out when they have legitimate reasons to do so? According to Alito, it's the material in question. It's these particular readings which are part of the larger, if you will, culture war debate going on in regards to public school curriculum, books, and libraries, etc, which is, should parents have a right to say I don't want my kid to be exposed to X. You have school districts that say, but we're trying to create community, if you will, values where everybody is appreciated, etc. We're trying to get these kids ready for the communities and workplaces that they are going to encounter as they get older.
N. Rodgers: Because they are going to meet LGBTQIA people in real life.
J. Aughenbaugh: That's right.
N. Rodgers: Unless you are going to keep them cocooned in some sort of compound for the rest of their lives, they are going to meet people and they are going to need to have some understanding of those folks' points of view and life and everything else. Theoretically, that's how we get along as humans, is we learn about each other, and then we say, oh, that's cool or oh, not for me or whatever.
J. Aughenbaugh: It's almost impossible to find common ground if you're not exposed to others who might be different than you for any number of reasons, but at the same time, go ahead and say, hey, I like soccer, too, or hey, I like Shakespeare, too, or, hey, I'm a math geek just like you are. Cool.
N. Rodgers: Or for gay kids. I'm gay, too. Good. I'm not alone.
J. Aughenbaugh: That's right.
N. Rodgers: Most gay kids come from families where their siblings are heterosexual. If they can find somebody who's like, yeah, you're cool, I'm cool. It's all good. That means I'm not alone in the world, and I'm not weird. I'm not broken. I'm fine.
J. Aughenbaugh: I can move forward with confidence. This world, this community, this system works for me, just like it works for somebody who's, for instance, not gay. Cool. What we're describing there is what Justice Sonia Sotomayor pointed out in her dissent, which is the court's ruling, if extended to its logical conclusion, would allow parents to opt out kids, which would defeat the purpose of public education.
N. Rodgers: Sorry, I know this is not what they ruled on, but it's something that I feel strongly about. One of the reasons that I took a world religions class in college was that I had absolutely no knowledge of religions outside of my own. For anybody who doesn't know I was raised in the LDS faith, and I didn't know about other religions. It didn't mean I was going to go out and join every religion that I read about. In fact, I didn't join any of the religions that I read about. But it was good for me to know more about why other people do what they do and believe what they believe. It was empowering and important. I think that is a public education. That's me being forced to take physics for dummies, which I took in college. It wasn't called physics for dummies. It was called physics for non-majors. It was for people like me who were a poly sci major who I'm like physics, that's hard to spell. That's where I started with that class, but we did all kinds of cool experiments, and I was like, I see why people like physics. I see why they want to study this engineering stuff. It's not for me, but I get it, and it's interesting. That is what I think you can't stop with these cases. One of the things I was saying at the beginning when we started this case was, I don't know that I'm buying what the parents are selling here.. You opt your kid out from reading this material. But if your kid continues to go on in school, your kid is going to meet a fellow kid who is in the LGBTQIA community. They're going to be exposed to this idea anyway because you can't isolate them from the rest of the world. You can either have them learn about it in a professional way that is non-judgmental and talks about people are people, and we should all respect each other and that sort of thing, or you can have them learn about it in the way that you and I, forgive me, I'm throwing you under a bus here with me Aughie learned about sex which was through porn rather than through a reasonable teacher talking us through the process of sex. We learned about it from older siblings and from magazines and we learned bad information.
J. Aughenbaugh: I went to a Catholic school. Sex ed in a Catholic school was not very educational.
N. Rodgers: Wasn't it don't?
J. Aughenbaugh: Well, yeah. It was pretty much you should wait until you're married. But moreover, it's pretty hard to go ahead and learn valuable sex education lessons from individuals who were priests and nuns.
N. Rodgers: Who don't engage in that. I don't think it's helpful in the sense of your kids still going to experience or your kid is still going to run into these themes because they're going to be surrounded by people who are either reading these books and talking about them or who that's their lived experience or whatever. You know what I mean? I don't know if you can really control it.
J. Aughenbaugh: Yeah. I don't know if it's good policy, one. But two, the problem is, and you see some of this in Alito's majority opinion, the basic argument made by the school district was we know best and you can't challenge our opt out decisions. Really struck the conservatives on the court as constitutionally problematic. I don't imagine Alito liked the readings that were assigned. What I know about Justice Alito, I don't imagine he did. But for him, the case becomes really easy. This is a lesson for school boards and legislatures, is if you're going to allow exceptions for one group, you have to allow them for all, or you have to have a good reason. With this court, making exclusions for opting out opportunities for parents with religious objections, you're basically just putting a bull's eye on your policy decision. For me, that you can't challenge us in this day and age, and we've seen this in a number of contexts, Nia. Unless you're going to go ahead and say that parents don't have privacy rights to decide how to raise their kids, which cuts both ways, ideologically. Unless you're willing to go ahead and say that, then you have a whole bunch of Supreme Court rulings that are like, no. You got to treat all parents and their decisions about their kids the same, or you get rid of the policy. You just got to get rid of it.
N. Rodgers: You can't opt out.
J. Aughenbaugh: I understand from administrative perspective. Montgomery County School District is, I think the largest in Maryland. I think I read that somewhere.
N. Rodgers: You're dealing with thousands of children probably that you have to manage, whether they're allowed to see certain things or not see certain things.
J. Aughenbaugh: I understand the logistical nightmare allowing a whole bunch of parents to opt out their kids from certain readings or instructional class time, etc., I get that. But that's the same logic that is used by schools that don't want to go ahead and give disabled children a quality education. Well, this would create a logistical nightmare.
N. Rodgers: Too bad.
J. Aughenbaugh: Too bad.
N. Rodgers: In that instance, too bad. But in this instance, I think it's slightly different because you can avoid this logistical nightmare without deleterious effect by simply not having this logistical nightmare. This is what we're teaching, period. Take your kid and put them in private school. That's what charter schools, private schools, religious schools are for.
J. Aughenbaugh: Or you elect different members to the school board who make decisions about the curriculum. Again, this is Democracy 101. If you don't like the policy, fine, then get new government officials who are accountable to the people to make new policy.
N. Rodgers: Can I say one last thing to the parents?
J. Aughenbaugh: Yes.
N. Rodgers: My mama, who I love very much. My mama, when I was a kid, said, don't read, and there were things I was not allowed to read. I would like to tell you that the first thing that I did after my mama said something like don't read that book was to get that book, stick it in my room, hide it, and read it when I wasn't supposed to be reading it because the more you tell a child not to do something, the more attractive that thing is. Part of me also wants to say to parents, if you don't make a big deal out of this, your kids won't either. When you say turn that rap music off, all you're doing is saying buy more rap albums to a teenager. That's what you're saying.
J. Aughenbaugh: When my mom went ahead and told me that she didn't want me to listen to heavy metal.
N. Rodgers: How many metallic albums did you buy after that?
J. Aughenbaugh: I bought three almost immediately. Then I went ahead and hid them so deep into my album collection that I knew my mom would never look for them. It was like when my mom said, I don't want you, son, to read the book, The Godfather. She goes, if the book's anything like the movie, there is inappropriate stuff for you. You know what I went ahead and did? I went to a yard sale, I saw the Godfather, the book, I bought it, hid it in my room, and then I went ahead and flipped back the pages that had all the good stuff. I'm like, Hey, yeah.
N. Rodgers: It's like the previous case with porn. I'm not entirely certain how much access you can really cut off from a determined teenager. From a casual teenager now, these are elementary kids, and that's a little different. But what I do think is interesting is they didn't make the argument of this material is inappropriate for elementary school, which they might have had a different case. They might have had a different argument there. That will be something I think that will come up will be this is not age-appropriate material, because that's one of the things we talk about a lot.
J. Aughenbaugh: That's going to be a tougher call for the Supreme Court because on those, the court is usually much more deferential to school boards and teachers. These are the experts.
N. Rodgers: They should know what's age-appropriate.
J. Aughenbaugh: That's going to be more difficult. But for this one, I wasn't really shocked by the court's ruling simply because the school board tried to have it both ways.
N. Rodgers: That irritates me, too. You know what? I'm no longer a person of faith, but I respect other people's faith deeply. Let me draw a different example. If you say to certain parents, you can not have your child take vaccines because you have a personal dislike of vaccines, but you say there can't be a religious exception for vaccines, that would be insane. Whatever your reasoning is for not wanting your child exposed to something, that reasoning should stand regardless of whether it's religious or whether it's social or whether it's cultural or whatever. The school board had no business saying, some people could opt out, but not religious people. That is a direct, to me, violation of the First Amendment right to.
J. Aughenbaugh: Free exercise of religion.
N. Rodgers: Right. You don't get to say my religion doesn't count, or my religion's not good enough, or my religion doesn't matter. No, it does in this country.
J. Aughenbaugh: Because the constitution says so. Again, if we don't like it-
N. Rodgers: We could change the Constitution. It would just take us a long time.
J. Aughenbaugh: Get rid of that clause of the First Amendment.
N. Rodgers: I'm with you. They screwed up on that. Can I just say this last case has caused so much heartburn among my friend group and my family because they don't understand what this case decided. This case decided something very specific and it is not birthright citizenship.
J. Aughenbaugh: That's right.
N. Rodgers: It did not decide birthright citizenship. That is an argument for another day, according to the court.
J. Aughenbaugh: The name of the case is Trump versus CASA. CASA is an interest group representing a number of individuals that would have been affected or would be affected by the Trump administration's executive order regarding birthright citizenship. Trump comes into office, he issues an executive order saying, going forward, the United States will no longer accept birthright citizenship, and this would be a different interpretation of the first sentence of the 14th Amendment.
N. Rodgers: For people who don't know what birthright citizenship is, Aughie.
J. Aughenbaugh: The basic idea of birthright citizenship is that if you are born in the United States, whether or not your parents are legal citizens is irrelevant. It's because you were born in the United States.
N. Rodgers: And some of its territories.
J. Aughenbaugh: And its territories. Not all of them.
N. Rodgers: Some of its territories.
J. Aughenbaugh: As we discussed in our series about US territories, which was again something that Nia and I learned. We did not know.
N. Rodgers: Not everybody born in Northern Mariana or wherever is a citizen.
J. Aughenbaugh: That's the basic idea. By the way, the United States is an anomaly compared to most Western democracies. In most Western democracies, citizenship is based on not where you're born, but blood. If you can show that you are an ancestor of somebody who is German, you can get German citizenship no matter where you're born. Here in the United States, historically, the idea was, it doesn't matter if your parents are legal citizens. It's where you are born.
N. Rodgers: This goes to the argument of anchor babies.
J. Aughenbaugh: That's right.
N. Rodgers: Anchor babies is a bugaboo on certain very far right discussions of people come here pregnant to have a child here so that that child is an American citizen and they can get citizenship easier to stay with their American offspring.
J. Aughenbaugh: That's right.
N. Rodgers: That's the theory behind anchor babies, although I'm not entirely certain how many heavily pregnant people are crossing the border, but we can't get into that because that's a whole separate argument.
J. Aughenbaugh: That's rooted in the immigration law changes made during the Reagan administration, where the then Immigration and Naturalization Service was supposed to emphasize keeping families together.
N. Rodgers: Which I don't know that anchor babies would matter anymore because we don't necessarily keep families together in ways that Ronald Reagan did.
J. Aughenbaugh: We did in the 1980s and the 1990s.
N. Rodgers: But none of that is relevant to this case because this case isn't about that. I wish people would stop calling it the birthright citizenship case because that's not what it's about.
J. Aughenbaugh: No. The case should be known as the nationwide injunctions case. Why? Because when Trump issued the executive order, almost immediately, interest groups, individuals, states who didn't like the new executive order filed lawsuits in federal court, and a number of district court judges issued nationwide injunctions that would stop the executive order from being implemented. Now, we have a new, if you will, concept, nationwide injunction.
N. Rodgers: All librarians have to do X, and Nia wants to challenge this requirement. She may go to court.
J. Aughenbaugh: All librarians have to wear yellow flowers in their hair. Look at in yellow.
N. Rodgers: She doesn't want to wear yellow flower. She doesn't like yellow flowers in general. But at the end of the day, her argument is, this violates one of my civil liberties. She goes to a federal court and asks for an injunction.
J. Aughenbaugh: Please, don't make me wear yellow flowers in my hair?
N. Rodgers: Yes. All an injunction is a court saying, this law cannot be implemented until we have a hearing on whether or not the law is constitutional. A whole bunch of district court judges, Nia, issued injunctions. Now, historically, most injunctions would only affect your case. But what's been incurring with much more frequency, this millennium we see it a little bit with Bush 43. We see a little bit more at the end of the Obama second term. Then we see it a lot with Trump's first term, Biden's second term, and an explosion.
J. Aughenbaugh: In Trump's second term.
N. Rodgers: Trump's second term. Is district court judges saying we are enjoining stopping this law in the entire country?
J. Aughenbaugh: No librarian has to wear yellow flowers in their hair until we settled about whether that's constitutional.
N. Rodgers: The Trump administration.
J. Aughenbaugh: The Supremes have grown just in case people were wondering, more and more irritated by these injunctions as they have come along.
N. Rodgers: Yes.
J. Aughenbaugh: Starting with Trump one, then Biden, it didn't matter who the president was. That's not about it's not about that. It's about lower courts getting forgive my language here, uppitty thinking that there are Supreme courts that can make Supreme court style decisions for the entire nation. They see it as a I think they see it as a power grab of lower courts.
N. Rodgers: Yes. The federal court.
J. Aughenbaugh: There's a reason we have Supremes.
N. Rodgers: The federal courts in general, but in particular, the lower courts. The Trump administration files an appeal. They didn't focus on the merits of the cases. They went ahead and said, We don't think these lower courts have the authority to issue nationwide injunctions. And that's all this case is about. Do these lower courts have the authority to issue nationwide injunctions? And the court ruled 6-3, they don't don't? The vote was six conservatives, three liberals, Roberts assigned the majority opinion to Justice Coney Barrett, which was somewhat of a shock because usually Roberts keeps the really big cases for himself. But he went ahead and gave it to Coney Barrett. Coney Barrett, I mean, she makes it very clear. We're not addressing the merits of the executive order. Instead, she went ahead and said, according to Article 3 of the Constitution, but also federal law passed by Congress, we are courts of equity, meaning we only get to decide the issue for the parties in this case.
J. Aughenbaugh: We only get to decide it within our district or boundary or whatever courts.
N. Rodgers: That's right.
J. Aughenbaugh: Because otherwise, we would have 554,000 supreme courts.
N. Rodgers: That's right.
J. Aughenbaugh: Because if every court could injunct everything for the nation then why would you have a supreme court? You wouldn't need one at that point.
N. Rodgers: Or at that point, why would you have a Congress or a president? Policy then is being made by which branch?
J. Aughenbaugh: By the courts.
N. Rodgers: By the courts.
J. Aughenbaugh: No, I'm not feeling an injunction for the nation.
N. Rodgers: I don't like the Affordable Care Act, and I'm a lonely District Court judge in West Texas. Well, I think the Affordable Care Act is unconstitutional. I'm issuing a nationwide injunction. All those people who are counting on the Affordable Care Act and the rest of the country sucks for you. By the way, unless you can convince Congress to impeach me, I'm unaccountable. Yikes. And that's what Coney Barrett emphasized. She goes, until recently, our federal judiciary has been very clear. We have a very narrow role in the, if you will, governing of this country. We look at specific issues in particular cases. We don't extend our jurisdiction beyond what is stated in the Constitution or in federal law. Therefore, these nationwide injunctions are more than likely unconstitutional and illegal, and we're sending these cases back down to these district courts, and we're instructing them.
J. Aughenbaugh: Quit overreaching.
N. Rodgers: To quit overreaching. Now.
J. Aughenbaugh: They can find for me. They cannot find for all librarian. They say, I don't have to wear yellow flowers in my hair until I settle my lawsuit against the federal government for trying to make me wear yellow flowers in my hair. But that does not apply to any librarian that is not within my district?
N. Rodgers: Yes.
J. Aughenbaugh: Or my geographic region, whatever the Federal court.
N. Rodgers: The reality is, okay, so what's going to happen next? I got to asked this question quite a bit. What happens next? Well, what happens next is the district courts are going to have to take a look at the injunctions they issued and if the injunctions were approved by the appellate courts, they will have to do the same. Now, I read a whole bunch of press accounts saying that now it will be impossible to stop Trump's birthright citizenship executive order from being implemented. No, that's wrong. Why? Because you could still try to persuade a district court judge that there is a class of you that's being harmed. Then you could file a class action lawsuit.
J. Aughenbaugh: Which are nationwide. They can or can be nationwide.
N. Rodgers: Yes. Or you can file lawsuits in a whole bunch of district courts. Now, will this require you to have more resources? Yes, no doubt about it.
J. Aughenbaugh: But the ACLU has a lot of resources, and a lot of lawyers all across the nation. They could make a concerted effort.
N. Rodgers: There are a whole bunch of states, most of whom are controlled by democratic governors and attorney generals and or state legislatures that could also file lawsuits. Now, what you get will be a piecemeal in some parts of the country, the birthright citizenship executive order could be implemented, in other parts, it's not and that's the criticism of the court's ruling. What do you mean? The rule of law will mean different things depending on where you live? But as Coney Baer points out, that's basically been the norm for most of our country's history.
J. Aughenbaugh: Well, the legal driving age is different in different states.
N. Rodgers: Yes.
J. Aughenbaugh: In some states it's 15. In some states it's 16. In some states, it's 15, but with an adult. Some states it's 16 but not at night. Like, there's all these different rules, and that's state to state and we've never had a Like we've never said, Oh, the world is coming to an end because there's no universal driving age.
N. Rodgers: Yes.
J. Aughenbaugh: Now, I get that birthright citizenship is far more intense than universal driving age. I'm not trying to suggest those are two same things. But also, don't worry. There will be plenty of legal cases about fighting actual birthright citizenship. Like that question will have to be settled by the court. All the court did was say, Oh, look, a can. Look, a road. Boot and they kicked that can down the road. They didn't they know they're going to have to answer that question at some point, because that's a question that's been brought up over and over. Is it the 14th?
N. Rodgers: 14th Amendment.
J. Aughenbaugh: Does it apply and how does birthright citizenship? Then it calls into question who can be president, because then there's a whole bunch of issues with president has to be born in the United States. There's lots of drama surrounding all of that that will eventually come back to the courts. All the courts did in this instance was they took a chance to smack the snot out of the lower courts. Say, knock it off. Knock it off with your nationwide injunctions. You are not the Supreme Court. You do not have the right to do this.
N. Rodgers: That's right.
J. Aughenbaugh: Which they've been taking cases. If you've been paying attention, they've been taking cases to do this for a while, to slap down the lower courts for a while.
N. Rodgers: As you pointed out, a number of justices before this case, including Kagan, who interestingly enough voted with the dissents in this case, but even Kagan, during the Biden administration, in a couple of the emergency docket cases, wrote opinions questioning whether or not the court needed to take a look at this growing phenomenon of district court judges basically issuing nationwide injunctions and whether or not that that was an appropriate role for a district court judge.
J. Aughenbaugh: Now, you got to know your place in the hierarchy of the court system.
N. Rodgers: But also, what is the appropriate role for the judiciary overall?
J. Aughenbaugh: Comparison to the legislative and
N. Rodgers: Executive.
J. Aughenbaugh: This gets at the heart of what was heated language. Between Coney Barrett's majority opinion and Justice Brown Jackson's dissent. I mean, Brown Jackson basically accused the court majority of not defending the civil liberties. All of these American citizens who were born in the United States and thought that the 14th Amendment protected them. She also accused the majority of letting the president to become an imperial executive.
N. Rodgers: Ring. We're back to Kings.
J. Aughenbaugh: Coney Barrett's response was, not only does Brown Jackson's dissent ignore Article 3 of the Constitution, 200 plus years of precedent and a number of federal laws. Coney Barrett accused Brown Jackson of preferring an imperial judiciary versus an imperial executive. I'm like, throw down.
N. Rodgers: Girl fight. Either one of them are girls. Women fight. Well, and two very smart people. Butting heads. It's always fascinating when the Supreme Courts argue vociferously among themselves because they are all very smart people and very deeply knowledgeable. They're not coming at this with emotion. Their opinions are based in.
J. Aughenbaugh: Logic.
N. Rodgers: They can point to constitutional precedent.
J. Aughenbaugh: This kind of language was very unusual.
N. Rodgers: Well, but I do think we'll see this question again. I hope we won't see this question, but we will see the question of birthright citizenship. I think we're going to see that question come up before the Supremes. I doubt next year, but maybe the year after, we'll see a case that percolates up through the system of Okay, well, let's settle the actual question of birthright citizenship now that we've had the discussion about who gets to decide about injunctions.
J. Aughenbaugh: Because by all accounts, according to constitutional law scholars, very few have argued since the 14th Amendment was ratified after the Civil War. Very few have argued that birthright citizenship does not apply to those born in the United States of parents who were not US legal citizens. It's a new argument. On the other hand, as I remind my students, we don't get constitutional change until people make new arguments.
N. Rodgers: One of the arguments on the not side is that that was specifically to give citizenship to the children of slaves.
J. Aughenbaugh: Slaves.
N. Rodgers: That was the point of the 14th Amendment was that those folks would have citizenship, and therefore the citizenship rights, that you have to own property to vote to various that rights, that it wasn't intended to be you show up, you get off a boat, you get born, and you're an American. Like, after the Civil War, it was intended for a very specific group of people. That's what the current new argument is being made.
J. Aughenbaugh: That's the reason why at some point, I agree with you, Nia. The Supreme Court's going to have to come out and say, this argument.
N. Rodgers: What does the 14th Amendment apply to?
J. Aughenbaugh: Who does it apply to? This is our interpretation going forward. But I mean, again, at the same time, I understand the the harm, the anxiety this is causing.
N. Rodgers: Especially for Daka kids. I here not of their own volition, but raised here. When people say, Go home, they're like, I am home. This is reasonable.
J. Aughenbaugh: This is me and I apologize, listeners if you've heard me say this before. This is why I think the Congress and the president needs to go ahead and pass an updated immigration law. That includes provisions about how we process and treat all of these, if you will, sons and daughters, children of individuals who came here with no legal rights. There are just too many of them. To your point, they don't know another country.
N. Rodgers: You can't send me back somewhere. This is my country.
J. Aughenbaugh: Yes.
N. Rodgers: You can send me to another country, but it will not be repatriation. It will be exile.
J. Aughenbaugh: Yes.
N. Rodgers: That's what that is. Also, at some point, if the Congress could agree on what color the sky is, they could conceivably write legislation that would clarify birth.
J. Aughenbaugh: Yes.
N. Rodgers: This is what it means to be born in the United States. These are the qualifications of being born in the United States. This is how it and then it would take this all out of the hands of the courts because you would either tick those boxes or you would not. And if you didn't, then okay, and then here's how you obtain citizenship, which we already have. We have those. You're right. I think they are going to have to deal with that special group of folks who were brought here not by choice because they were very small children or not yet born, they were born here or very, very young and didn't have a choice about where they grew up. They grew up here because they're American, as far as they are concerned. Many of them don't speak a second language. Many of them don't their culture is the American culture. What do they do?
J. Aughenbaugh: They don't even know their family from another country.
N. Rodgers: They've never been to Indiana. They don't know anything about Guatemala. They don't you know. Well, thank you, Aggie. It's been an interesting season with the Supremes.
J. Aughenbaugh: We'll put a bow on that interesting season with our next episode where we look at summary statistics, other observations, and a little bit of foreshadowing of the next Supreme Court term. Thanks, Nia.
N. Rodgers: Is that how that how they used to Oh, it's like a cliffhanger. Remember the serials that used to have a cliffhanger where something terrible was happening, and then it would go off to dark screen, and you're like, No. Then you had to wait till the next week. Who shot JR? You had to wait the whole summer? Summer to find out who shot JR.
J. Aughenbaugh: Three words you never wanted to see on a TV screen in our youth to be continued.
N. Rodgers: To be continued.
J. Aughenbaugh: You're like, What?
N. Rodgers: No.
J. Aughenbaugh: The entire generation of Americans are you only watch.
N. Rodgers: Exactly. They only ever watch all the episodes when they come out. They don't have any idea what the cliffhanger Summer was where you spent actual time thinking about who it could have been or what could have happened.
J. Aughenbaugh: Did they get together? Did so and so actually die. Who's gonna get arrested? You guys don't have to worry about that, we do that and we had conversations about it. But nevertheless. Until next time, thanks, Nia.
N. Rodgers: Thank you, Aggie.
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