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Okay.

2 "DHS CLOUD R C2370 ELA" (3178811392)
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Good afternoon, everyone. I'm already thought maybe we would start on time. I think the two professors have quite a few things to cover, so I want to get.

3 "DHS CLOUD R C2370 ELA" (3178811392)
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Direct to it and turn it over to them. I'm Mighty Gathalee and co chair of the office training committee. I'd like to welcome you back.

4 "DHS CLOUD R C2370 ELA" (3178811392)
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It seems that lots of things have changed in those recent times, but one thing that hasn't changed is how long you and I and Professor Connor's Teamwork have been doing this for quite a few years. And so I appreciate you both coming back.

5 "DHS CLOUD R C2370 ELA" (3178811392)
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I know it's gonna be harder to decide which cases to cover, but we appreciate you coming back in in person. The 90 min program we have been approved for CLA credits. It's 533513 is the event code. It's on your handout for those who are here in person.

6 "DHS CLOUD R C2370 ELA" (3178811392)
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We will post the event code number as well as the link.

7 "DHS CLOUD R C2370 ELA" (3178811392)
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To the materials on the chat periodically throughout the program for those who are viewing online. We encourage you to ask questions and put them on the chat if you're here in person to raise your hand. The professor is welcome that.

8 "DHS CLOUD R C2370 ELA" (3178811392)
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And, with that, Professor Steamson and Corner Steamberg are longtime professors at constitutional Law at Mitchell Handling Law School. I always like to remind Professor Corner Steamberg used to work at the General's office way, way back, so we like to.

9 "DHS CLOUD R C2370 ELA" (3178811392)
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Happy waiting we have a London and come back.

10 "DHS CLOUD R C2370 ELA" (3178811392)
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And, they're going to cover, Supreme court decisions of last term of interest through public law attorney. So I just handed it over then to them to pick which cases and with that, I will turn it over to Professor Spinkson who's going 1st.

11 "DHS CLOUD R C2370 ELA" (3178811392)
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Thanks Marty. And good afternoon. It's nice to see you all here and Nice to see those of you who are online sort of. Let me just make sure my clicker works here, the slide clicker.

12 "DHS CLOUD R C2370 ELA" (3178811392)
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It's not working. Technical problem which will get which will get fixed. All right, so this is going to be a screen Court review of 2024 2025 October term.

13 "DHS CLOUD R C2370 ELA" (3178811392)
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I'm Although in pretty short order, I'm going to talk about one of the cases that I decided just a couple of days ago that you might be interested in from the Supreme Court of the United States. On the emergency doc that's the desk is.

14 "DHS CLOUD R C2370 ELA" (3178811392)
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Per Domo case. So we'll spend a little bit of time on that. Now, just a few preliminaries. Last year, last term, I should say about 65 opinions depending on how you count them itself a little bit from the previous year. Lots of cases and Professor Connor Steamberg is gonna spend some time.

15 "DHS CLOUD R C2370 ELA" (3178811392)
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I'm specifically on this. Lots of cases on the shadow docket.

16 "DHS CLOUD R C2370 ELA" (3178811392)
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Sometimes called Justice Cabin, I would prefer to call it the interim docket. Thanks for the emergency docket. Alright, now in those cases, as professor Konard Steamberg will point out the court's deciding cases quite rapidly without full briefing.

17 "DHS CLOUD R C2370 ELA" (3178811392)
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And without full rural argument, and those opinions nonetheless, are obviously minding law. Although sometimes judges are just are just handing down their opinions.

18 "DHS CLOUD R C2370 ELA" (3178811392)
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Of, why they did what they did in a case on the emergency docket, and this will be pretty clear in the basket as part of case. Talk about that shortly. Alright, regul Garcia is one of those cases from is another. Most of the cases, as you know, come from the United States courts.

19 "DHS CLOUD R C2370 ELA" (3178811392)
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Of appealed. And some of them really are taking it to beating. Let's see, the 1st 4th 9th, and ten circuits are over. And maybe it's a little bit surprising, I suppose especially for the 4th.

20 "DHS CLOUD R C2370 ELA" (3178811392)
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It's not surprising that the 9th circuits though for seven. Generally the Supreme Court of the United States doesn't take cases from the 9th circuit to a firm. Alright, opinions authored by Justice's, Justice's Thomas Jackson had written the most opinions for the court.

21 "DHS CLOUD R C2370 ELA" (3178811392)
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Chief Justice Robert's belief. The number of opinions has gone up a little bit this year, the number of total opinions, and of course as you're, as you're well aware, there are lots of descense, Korean opinions, and it makes for really lengthy opinions, sometimes hundred pages.

22 "DHS CLOUD R C2370 ELA" (3178811392)
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Of opinions in a given case. And of course this administration's agenda, I guess there's nothing unique about the prompt administrations prompted numerous lawsuits. A lot of these end up on the courts.

23 "DHS CLOUD R C2370 ELA" (3178811392)
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Emergency shadow interim document, and again that's just as preferred term interim. From 7 October 25 through 9 August, hundred 19 emergency applications that multi case is 47 everyone denied.

24 "DHS CLOUD R C2370 ELA" (3178811392)
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I believe we filed emergency applications, 29 always denied, and the other ones involve court work of the, of the court. And typically what happens is that in these cases, what.

25 "DHS CLOUD R C2370 ELA" (3178811392)
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The court is asked duese to stay the implementation of a lower court or maybe the court issues a preliminary injunction or a temporary restraining order and so there's an emergency application to the Supreme Court to stay that injunction.

26 "DHS CLOUD R C2370 ELA" (3178811392)
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So the administration can get about its business. Alright, and about 44 % of those emergency applications are granted and more from Professor Coronard Steverg later on. Alright, so we have several cases to talk about. I'm not sure that I'm going to do, going to get through all.

27 "DHS CLOUD R C2370 ELA" (3178811392)
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In a relatively short period of time.

28 "DHS CLOUD R C2370 ELA" (3178811392)
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That we have and we promise we won't we won't keep you over. One thing that I want to point out at the outset is the key notion of written the listen, and we've been reading the newspapers in the last day or two, I think, let's see today is the.

29 "DHS CLOUD R C2370 ELA" (3178811392)
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And maybe yesterday that was a really interesting article on the New York Times by Adam Lippack about a new book that's coming out. And this new book is being published by the Heritage Foundation. You're familiar with that, right? The Heritage Foundation.

30 "DHS CLOUD R C2370 ELA" (3178811392)
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And project 2025, and so this is a compliment to that particular book. It's 800 pages long, and it analyzes the constitution of the United States clause by.

31 "DHS CLOUD R C2370 ELA" (3178811392)
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Applause and extels the virtues of originalism. Justice Solido writing a preference of the preface, says that this is a profounded.

32 "DHS CLOUD R C2370 ELA" (3178811392)
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Beneficial changed the concept of original was profound and beneficial. You may agree with it, you may disagree with it, but this book is written by some 30 federal judges, several of whom are candidates for the Supreme Court of the United States.

33 "DHS CLOUD R C2370 ELA" (3178811392)
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Sort of a litmus test of belief in originalism. Alright, now we won't diving into this so much today, but originalism original meaning history and tradition will drive constitutional interpretation. It does drive constitutional interpretation.

34 "DHS CLOUD R C2370 ELA" (3178811392)
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And if just for your own purposes, in fact, I think I was talking to Professor connor Steambert, maybe I'll just end up using that in a paged book as a as a casebook in a constitutional. Why bother with the alternative point of view? But I haven't seen the book yet, so maybe it's, maybe it's great. It will have a certain bias.

35 "DHS CLOUD R C2370 ELA" (3178811392)
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I know, but.

36 "DHS CLOUD R C2370 ELA" (3178811392)
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Then lots of casebooks have those biases. Well, alright, so if you want a quick view of originalism, there's case beside of last turner, year ago, United States versus Rohini R A H I M R It's a second amendment types.

37 "DHS CLOUD R C2370 ELA" (3178811392)
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Go to Justice Cabinos concurring opinion in the United States versus Rahini and you'll see a short course on originalism. And in fact in that opinion, he, he elevates Justice Scalita to Payon of originalists including John Marshall and James Mass.

38 "DHS CLOUD R C2370 ELA" (3178811392)
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He's a pretty good company.

39 "DHS CLOUD R C2370 ELA" (3178811392)
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Alright, so if you want a quick view of originalism, take a look at justice Cavenor's concurrence, and obviously there are lots of other things that you could really do. Alright, now before we get into birthright citizenship, the case which really after all didn't involve birthright citizenship.

40 "DHS CLOUD R C2370 ELA" (3178811392)
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I want to just comment briefly on Supreme Court's opinion in november versus Baskets Predomo from a couple of days ago. This case came out of the central district of California.

41 "DHS CLOUD R C2370 ELA" (3178811392)
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And it involves the issue of what authority immigration agents agents have to detain people. So can immigration agents in Los Angeles County, whether some presumably 2 million.

42 "DHS CLOUD R C2370 ELA" (3178811392)
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And the court always uses the term illegal alien, illegal aliens. How do you, how do you find out how do you identify these people? Well, maybe a good thing would be to go to the places where they line up to try to get jobs. Home Depot parking lot.

43 "DHS CLOUD R C2370 ELA" (3178811392)
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Maybe where people are looking for day work just to stay alive or maybe get a car wash. And maybe they speak Spanish or maybe they speak English with a Spanish accent. All right, so there are a number of of things that ICE agents might.

44 "DHS CLOUD R C2370 ELA" (3178811392)
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Take a look at in detaining people. Well, they have the authority under the immigration and Nationality Act to detain people. Now, does it sound them all in, I don't know, maybe it's just me, does it sound like racial profiling to some extent? Profiling based upon ethnicity?

45 "DHS CLOUD R C2370 ELA" (3178811392)
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Alright, well, maybe it is, but nonetheless, there's a pretty good argument and Cavanon justice Cavanon makes this argument that, well, after all, these people are in this country illegally.

46 "DHS CLOUD R C2370 ELA" (3178811392)
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And how else are you going to try to determine who ought to be deported? So these are just abbreviated detentions. Well, go back and read the full opinion of the district court in in the case and find out what these detentions look like. It's not excuse me, man going to see her ID and then it's handed back usually gets braced up against the wall by heavily arten people.

47 "DHS CLOUD R C2370 ELA" (3178811392)
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And it goes on. So the question is, can embracing agents engage in this kind of profiling based on ethnicity or could it be enjoyed? Well, central District of California federal District judge.

48 "DHS CLOUD R C2370 ELA" (3178811392)
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Issues a temporary restraining order. Case goes to the Supreme Court. This is the emergency interim channel docket, and the court in a63 opinion.

49 "DHS CLOUD R C2370 ELA" (3178811392)
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Stays that temporary restraining order. So this is how these cases come about and again more from Professor Pulley's Teamberg on that later on. So the court stays that temporary restraining order, justice Cabina writes a fairly lengthy concurring opinion and keep in mind that this is not a fully briefed fully argued case.

50 "DHS CLOUD R C2370 ELA" (3178811392)
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Justice Cabino says, after all, these people are, and this country illegally. 2 million of them, and I'm sure where the statistics are coming from, but 2 million. And so this is a legitimate exercise of power under the immigration and Nationality Act.

51 "DHS CLOUD R C2370 ELA" (3178811392)
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Alright, so it's a profiling based on ethnicity? Well it certainly sounds like it, and if you want the full view, take a look at justice sodamaid yours descending opinion, joined of course by Justice's Kagan and Jackson.

52 "DHS CLOUD R C2370 ELA" (3178811392)
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Alright, so that's that's as the normal. So that stayed depending a full resolution of the issue, it's not appealed a 9th circuit, so the 9th circuit may decide this case, and then the case may come back to the Supreme Court of the United States.

53 "DHS CLOUD R C2370 ELA" (3178811392)
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But we already now had a pretty good idea on how the coordinate decide that particular case. Alright, so birthright's citizenship. What is a 14th amendment says that persons who are born or naturalized in the United States and subject to the jurisdiction thereoff are citizens of the United states.

54 "DHS CLOUD R C2370 ELA" (3178811392)
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States. All right, so that would encompass probably a pretty good number of people who would encompass people are naturalized citizens, also their citizens of the United States. And the key case is an 1898 case involving this person, Juan, Wong Kim Org.

55 "DHS CLOUD R C2370 ELA" (3178811392)
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And that's just a page reference. So the question can whose parents were lately in this country? And let me emphasize to make the to make the comparison so you can see where the kind of argument's coming from. They were legally in this country. They couldn't be citizens because they were Chinese.

56 "DHS CLOUD R C2370 ELA" (3178811392)
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Was born in this country, so he has birthright citizenship. Alright, so the side question you should be asking yourselves is, well, what if somebody is not leavely in the United States, and they get birth to a child, can that child claim birthright citizenship? Alright.

57 "DHS CLOUD R C2370 ELA" (3178811392)
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So born here, and he's automatically a citizen, and that's it. Now it's a really, really lengthy opinion, and from the standpoint of originalism, it's a pretty good opinion, very lengthy, but from the standpoint of originalism, the original meaning of the constitution.

58 "DHS CLOUD R C2370 ELA" (3178811392)
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Court takes a pretty clear position that long Kim Arc is covered. Alright, well, Trump versus Costa. The president issues an executive order and carves out if you look at the, at the underlying language.

59 "DHS CLOUD R C2370 ELA" (3178811392)
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People where the or where the birth takes place when the mother was lawfully present in the United States or was unlawfully present in the United States I'm sorry. So it goes back to subject to the jurisdiction of the United States. This is the argument.

60 "DHS CLOUD R C2370 ELA" (3178811392)
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Alright, if you're in this country unblawfully, then birthright's citizenship doesn't apply because people who are here unlawfully, so the argument goes are not subject to the jurisdiction of the United States.

61 "DHS CLOUD R C2370 ELA" (3178811392)
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Alright, well if you sort of feel like you're chasing your tail, join the club, that's the argument. Okay, but this case had nothing to do with birthright citizenship. It had everything to do with procedure.

62 "DHS CLOUD R C2370 ELA" (3178811392)
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Although the the government lawyers in the case, the solicitor general, got grilled immersively, particularly by the liberal justices on the court on the question of birthwise citizenship. Why don't you bring the case up so we can decide the issue on the merits the court says?

63 "DHS CLOUD R C2370 ELA" (3178811392)
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And gets a sort of indication that at some point the case will go up to the corp and decide this question on the merits. But all the government has to do is to play whack a mole.

64 "DHS CLOUD R C2370 ELA" (3178811392)
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In light of the actual holding this lawsuit and contests that issue in every jurisdiction where it rises. Okay, now question is whether or not a universal injunction can be issued in this case, and so that's.

65 "DHS CLOUD R C2370 ELA" (3178811392)
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What trump versus Costin is all about? Can the federal district Court saying the district of Minnesota or any other district issue a nationwide junction against the statue, executive order?

66 "DHS CLOUD R C2370 ELA" (3178811392)
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Regulation. Alright, and federal courts have been doing this. Alright, now obviously this frustrates the administration would frustrate any administration. I mean this has happened over and over again. The by the administration will not suits to be filed in Texas.

67 "DHS CLOUD R C2370 ELA" (3178811392)
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Not the western district because there are some liberal judges there that would be filed in the eastern district and so on. Alright, so you want judges who are going to go your way? Well, that certainly happens when people are challenging the positions of the trumpt administration and of course what they're saying is we can't get anything done.

68 "DHS CLOUD R C2370 ELA" (3178811392)
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Because we're being a joint person into these universal or nationwide injunctions all the time. Alright, so can courts issue nationwide injunctions and the 6th three opinion, Justice Barrett writing for the court?

69 "DHS CLOUD R C2370 ELA" (3178811392)
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My court says No, you can't. And what's the authority for the nationwide injunctions? Well, we go back to the Judiciary Act of 1789 and looking at history and tradition, the court says it simply doesn't support the authority of federal judges to issue nationwide injunctions.

70 "DHS CLOUD R C2370 ELA" (3178811392)
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Alright, now that's it. So then the question is what happens? Nope, by the way, that, the court's not taking the position, 1st part of the slide, whether or not those injunctions are consistent with the judicial town under article three.

71 "DHS CLOUD R C2370 ELA" (3178811392)
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With the constitution. All right? So even if universal injunctions are inconsistent with the judicial power as a matter of history and tradition. So what do you do if you're looking at this now I started running down cases after come versus cost.

72 "DHS CLOUD R C2370 ELA" (3178811392)
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To see what's happening in in the in the lower courts, and it's pretty interesting, you haven't had time to, to run them all down but creative use of class actions is one of them. And through creative uses.

73 "DHS CLOUD R C2370 ELA" (3178811392)
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The class actions, which the court actually suggests is an alternative, a junked relief might have a broader reli a broader reach than with respect to just one particular litigant. So that's one thing that's happening. And the court hasn't decided.

74 "DHS CLOUD R C2370 ELA" (3178811392)
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On the merits, the question whether birthright's citizenship is constitutional or not. Okay, so federal courts are getting weighed in rained in as a result of the supreme court's opinion in this case. Alright, 1st amendment freedom of speech, you've all seen a lot about.

75 "DHS CLOUD R C2370 ELA" (3178811392)
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TikTok versus Garden, and, I won't ask for a show of hands because Tiktok user, but a lot of people obviously are hundreds and 70 million users in the United States is.

76 "DHS CLOUD R C2370 ELA" (3178811392)
00:20:08.399 --> 00:20:26.129
Like almost as many as untruth social I think. Okay. And people can interact and share information and and so on. And I know this just about reading about it. I don't have a TikTok account myself. All right, now one of the problems is.

77 "DHS CLOUD R C2370 ELA" (3178811392)
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Is that by dance, in this particular case, a private owned company that has operations in China is being asked by the Chinese government to turn over data. Well alright, so private data is being turned over by an American company to the Chinese government. Well.

78 "DHS CLOUD R C2370 ELA" (3178811392)
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That obviously creates some really interesting issues from the standpoint of security. Alright, but the question is, is there any kind of a, any kind of a 1st amendment issue? And if you're thinking I'm not seeing one at the outset then.

79 "DHS CLOUD R C2370 ELA" (3178811392)
00:21:00.389 --> 00:21:17.489
Join the club. Where does the 1st minute issue rise? Okay. Well, we have an executive order followed by a statute that Congresson acts that protecting Americans from foreign adversary controlled Applications Act, and it makes this unlawful. Alright, seven.

80 "DHS CLOUD R C2370 ELA" (3178811392)
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President has a right to grant an extension, which the president's owned and another extension which mayor might may may not be lawful but nobody seems to be challenging it, trying to figure out what happens concerning a qualified divestitcher.

81 "DHS CLOUD R C2370 ELA" (3178811392)
00:21:32.549 --> 00:21:48.839
Alright, so by dance Tiktok users say, Look, this violates the 1st amendment. If you're shutting them down, you're shutting down our access to this particular platform. That infringes on our right to free speech.

82 "DHS CLOUD R C2370 ELA" (3178811392)
00:21:48.839 --> 00:22:05.189
DC circuit assumes without deciding that scrutiny applies in this case and says that the laws have done less constitutional because there's compelling government of interest in national security. One of the strongest interests probably the government can assert.

83 "DHS CLOUD R C2370 ELA" (3178811392)
00:22:05.189 --> 00:22:23.429
In a case involving regulation under the 1st amendment. Alright, so this is the 1st amendment apply and and the court is kind of dancing around. It doesn't really want to say yes, it doesn't really wanna say NO, but if it's analyzed under the 1st amendment, how does the court look at it?

84 "DHS CLOUD R C2370 ELA" (3178811392)
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Court says this is a situation, not where there's a direct regulation of expressive activity, that pretty clearly would triggered scrutiny under the 1st amendment, but this is a regulation of activity don't turn information over to foreign powers that has an impact on the 1st amendment.

85 "DHS CLOUD R C2370 ELA" (3178811392)
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Alright, so where do we look for an analogy? Makes a graph card burning case, you're all familiar with that, right? From law school to the United States versus oak Brian? All right. So Brian gets prosecuted for burning his graph card to protest for Vietnam war.

86 "DHS CLOUD R C2370 ELA" (3178811392)
00:23:03.569 --> 00:23:23.569
Alright. Well, prosecuting in for burning is draft card and convicting of him of a felony, he has an impact on his expression, but that's not the purpose. Well, it's sort of this is not the real purpose of that statute. It's to facilitate the draft, right? But it has an impact on what Brian's.

87 "DHS CLOUD R C2370 ELA" (3178811392)
00:23:23.569 --> 00:23:43.969
Right to free expression. Okay, so what standard of review applies? Because it does some have some impact on freedom of expression, street scrutiny won't apply, but intermediate scrutiny will, not rational basis review, but intermediate scrutiny.

88 "DHS CLOUD R C2370 ELA" (3178811392)
00:23:43.969 --> 00:24:00.839
Alright, and so that's essentially what the court applies in this particular case. Assuming without deciding the application of the 1st amendment, this satisfies intermediate scrutiny. And the court also notes.

89 "DHS CLOUD R C2370 ELA" (3178811392)
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The importance of giving substantial deference to congrational judgments in this particular area. Okay, so, for these continuing extensions, are they, are they legal or not? Well, I don't know, Somebody would have to challenge.

90 "DHS CLOUD R C2370 ELA" (3178811392)
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Extensions and everybody is playing a waiting game, right? Oh my goodness, free speech coalition ink versus pasting, and this is such a toddly area of the law.

91 "DHS CLOUD R C2370 ELA" (3178811392)
00:24:33.749 --> 00:24:51.449
I'm involves the question of whether a state can limit access by minors to material that's obscene, not as to adults, but as to minors. Okay, and if you remember from law school.

92 "DHS CLOUD R C2370 ELA" (3178811392)
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This is really even the supreme Court headaches. How should the court deal with internet regulation of this kind of material? Material that's not obscened under the prevailing standard of Noverse of California.

93 "DHS CLOUD R C2370 ELA" (3178811392)
00:25:09.059 --> 00:25:24.269
Alright, so that's pretty familiar test, right? How do we know whether some things I've seen? Does it appeal to the pervant interest and contain sexual conduct displayed in a, in a patently offensive way?

94 "DHS CLOUD R C2370 ELA" (3178811392)
00:25:24.269 --> 00:25:44.269
And just lack political artistic or scientific value. If so, then work is obscene and not the possession of the sale of that obscene material can be recruited. Okay, now the problem arises because if governments try and restrict the.

95 "DHS CLOUD R C2370 ELA" (3178811392)
00:25:44.269 --> 00:26:03.059
The access minors to this material, then adults are also going to be restricted to some extent in accessing that material that's obscene only as to minors, not obscene as to adults. Alright, and so there's a huge market.

96 "DHS CLOUD R C2370 ELA" (3178811392)
00:26:03.059 --> 00:26:18.599
For this, as a court indicates, a huge market on the part of adults, a lot of adults access material regularly on the internet. It's not unscene under motors is California but wouldn't be obscene.

97 "DHS CLOUD R C2370 ELA" (3178811392)
00:26:18.599 --> 00:26:34.289
In test that's geared specifically toward minus. Alright, so it sounds a little bit again, I suppose like maybe the United States versus Obrian. Alright, so let's see what happens here. Texas and X.

98 "DHS CLOUD R C2370 ELA" (3178811392)
00:26:34.289 --> 00:26:51.569
The statute. Minnesota apparently does not yet have such a statute. 21 other states do restrict access on certain point of graphic websites to adults. Well I'm finally prove that somebody is a, is an adult when you have to then have some.

99 "DHS CLOUD R C2370 ELA" (3178811392)
00:26:51.569 --> 00:27:11.569
Sign on provision, some recognition provision, alright? So you want to make sure that the people who sign on are in fact adults. Alright, now, this is an aged verification requirement. Alright, now the purpose.

100 "DHS CLOUD R C2370 ELA" (3178811392)
00:27:11.569 --> 00:27:17.759
For this statute is to regulate material that is obseen as minors.

101 "DHS CLOUD R C2370 ELA" (3178811392)
00:27:17.759 --> 00:27:32.909
The purpose isn't to stop adults from gaining access to this material, but it does interfere with the ability of adults to gain access because they've got to go through these annoying steps of age verification.

102 "DHS CLOUD R C2370 ELA" (3178811392)
00:27:32.909 --> 00:27:51.179
In order to gain access to that material. All right, so while Texas can regulate access to that material, it has an incidental impact the United States versus a Brian, an incidental impact on the right of adults to access this material. Is that constitutional?

103 "DHS CLOUD R C2370 ELA" (3178811392)
00:27:51.179 --> 00:28:07.889
Alright. Federal district Court applies scrutiny this circuit, rational basis review. Supreme Court and a63 opinion. Although as far as the outcome, it's more like a nine oh. The court says.

104 "DHS CLOUD R C2370 ELA" (3178811392)
00:28:07.889 --> 00:28:23.219
Excuse me, the court says, Well, certainly states have a very specific interest in regulating access of minors to sexually explicit speech and court rides the Ginsburgh case going all the way back to 1967, which.

105 "DHS CLOUD R C2370 ELA" (3178811392)
00:28:23.219 --> 00:28:42.869
Upholds New York's criminal upsanity statute. All right, so city has a right to prevent minors from accessing works that are seen as to minors. Alright, so it's the California standard with minors tagged on, so I've seen as to minors.

106 "DHS CLOUD R C2370 ELA" (3178811392)
00:28:42.869 --> 00:28:58.199
Not as to adults adults have right to access that material. It's not obscene as to adults. Alright, history tradition and precedent. History tradition and precedent recognized that.

107 "DHS CLOUD R C2370 ELA" (3178811392)
00:28:58.199 --> 00:29:17.279
States have power to regulate children from accessing sexually explicit speech. Certainly Gigsburg is one of the strongest cases for that particular proposition. Now, this doesn't directly, as I just noted, regulate the access adults to this speech.

108 "DHS CLOUD R C2370 ELA" (3178811392)
00:29:17.279 --> 00:29:36.809
But it hasn't looked at the United States versus a Brian. So intermediate scrutiny applies under these circumstances, and under the intermediate scrutiny standard, which the court cites TikTok versus Gardleton for court says that this is a plainly legitimate legislated choice.

109 "DHS CLOUD R C2370 ELA" (3178811392)
00:29:36.809 --> 00:29:52.079
So an immediate scrutiny is satisfied. Now, from a personal standpoint, I certainly don't weep for the adults, you have to go through this extra step to access this this material.

110 "DHS CLOUD R C2370 ELA" (3178811392)
00:29:52.079 --> 00:30:10.889
You want to avoid that, just watch HBO. Okay. Now, justice Cagan would would apply street scrutiny in her descending opinion and then suggests that it doesn't necessarily have to be a death sentence almost always the application of street scrutiny.

111 "DHS CLOUD R C2370 ELA" (3178811392)
00:30:10.889 --> 00:30:26.849
In the 1st amendment area is, in fact, a death sentence. So maybe this is an important enough interest like national security in TikTok versus Garland that would justify regulation even underscored scrutiny standards. That's where the dispute is between the majority.

112 "DHS CLOUD R C2370 ELA" (3178811392)
00:30:26.849 --> 00:30:42.449
Oh my Freedom of religion. And I'm gonna spend a fair amount of talking, a fair amount of time talking about the case that wasn't. Now, 1st amendment.

113 "DHS CLOUD R C2370 ELA" (3178811392)
00:30:42.449 --> 00:31:01.439
Has two parts, the religion clauses, the pre exercise clause and establishment clause. Pre exercise clause, key case here is memoud versus tailoring. All right, now in this particular case, the County Board of Education introduces.

114 "DHS CLOUD R C2370 ELA" (3178811392)
00:31:01.439 --> 00:31:16.619
Certain LGBTQ plus inclusive story books and has lesson plans designed around those storybooks.

115 "DHS CLOUD R C2370 ELA" (3178811392)
00:31:16.619 --> 00:31:31.739
I'm trying to get rid of that little X up there. Oh, it's not that yours. Okay, it's just a minor. Alright, so these are what the books look like. Andy Ort goes into actually a fair amount of detail.

116 "DHS CLOUD R C2370 ELA" (3178811392)
00:31:31.739 --> 00:31:49.469
And explaining what's in these particular books. Alright, now there are lesson plans, as I said, revolving around these particular books. So what they're supposed to do is to try to disrupt standard thinking about sexuality and gender.

117 "DHS CLOUD R C2370 ELA" (3178811392)
00:31:49.469 --> 00:32:04.889
Alright, so think about that. You got fairly young kids who are gonna be exposed to these books, and if you're a parent and this conflicts with your religious beliefs, what do you do? You're not gonna be able to control the curriculum of the school. But what you can do is say I don't want my kid in there.

118 "DHS CLOUD R C2370 ELA" (3178811392)
00:32:04.889 --> 00:32:20.849
You let me know what's gonna be covered and then I have to have the right if this conflicts with my religious beliefs to opt out my kid from that particular lesson, what the school does, I don't know. Okay, student sessions.

119 "DHS CLOUD R C2370 ELA" (3178811392)
00:32:20.849 --> 00:32:40.849
In my Gumbry County here, the, the board says that the parents don't get notice about when this material is gonna be covered and they can't opt out their children. They initially said NO, and then they said yes. Now there are other areas, and I think the court could make more out of this, but it didn't, so I'll just put that aside. Other areas where parents are.

120 "DHS CLOUD R C2370 ELA" (3178811392)
00:32:40.849 --> 00:32:57.239
To opt their kids out. Sex education, e.g.. All right. Well, what if this conflates with the religious views of parents? Alright, and it did. They soon, they thought to enjoy the policies of the board.

121 "DHS CLOUD R C2370 ELA" (3178811392)
00:32:57.239 --> 00:33:16.619
They said it impermissively burdened their free exercise of religion. All right. So Wisconsin versus yoga, and you may not remember this from law school, now it by and large ends up essentially all it maybe brought back as kind of a little NO case.

122 "DHS CLOUD R C2370 ELA" (3178811392)
00:33:16.619 --> 00:33:35.189
Buried the constitutional law casebook. Old order Ramish had Menanides in Wisconsin wanted to pull their kids out of Wisconsin public schools after the 8th grade, NO argument up to the 8th grade, but after the 8th grade, the education there is superfluous, they've learned everything that they need to know.

123 "DHS CLOUD R C2370 ELA" (3178811392)
00:33:35.189 --> 00:33:50.969
And what they then need to know is to come back, work in their community so they can be effective members of that community. Alright, but Wisconsin says is you have to go to public schools until you're 16. Alright? Well, this grades against their religious beliefs.

124 "DHS CLOUD R C2370 ELA" (3178811392)
00:33:50.969 --> 00:34:08.849
All right. So what happens under those circumstances? Does it violate their right to free exercise of religion? Alright, and the court in the over says yes, it does. Government needs compelling government one in the rest under these circumstances nearly tailored and so on.

125 "DHS CLOUD R C2370 ELA" (3178811392)
00:34:08.849 --> 00:34:27.119
And compulsory education in Wisconsin isn't gonna suffer if these amish kids get pulled after the 8th 8th 8th grade. So the court says that yogare combined with this is West Virginia Board of Education versus Barnet, the 1943 case.

126 "DHS CLOUD R C2370 ELA" (3178811392)
00:34:27.119 --> 00:34:47.119
Involving mandatory flag salute in West Virginia that worked to the significant detriment of kids who were jehova's witnesses who would not salute the flag. Alright, so putting Barnet together with yoga, the court says this is a view of religious liberty that comports with fundamental values of the.

127 "DHS CLOUD R C2370 ELA" (3178811392)
00:34:47.119 --> 00:35:04.349
American people. Alright, Substantial interference, in these particular cases while certainly it turns on specific religious beliefs and practices that people who feel that their religious beliefs are being gladed.

128 "DHS CLOUD R C2370 ELA" (3178811392)
00:35:04.349 --> 00:35:20.729
It's not the religious beliefs of the kids, by the way, it's the religious beliefs of the parents. So imagine parents who are teaching their children one thing at home. Teaching things to their children that are consistent with their religious beliefs and then the kid goes to school.

129 "DHS CLOUD R C2370 ELA" (3178811392)
00:35:20.729 --> 00:35:40.729
And a teacher, maybe in a second grade, maybe in the 3rd grade is saying, well, you know, you really need to think about things in a broader way, which is perhaps one of the purposes of the public school education, the court's saying you can't do that, not under these circumstances. So you have to look at all of these factors and decide whether or not there's a substantial interference.

130 "DHS CLOUD R C2370 ELA" (3178811392)
00:35:40.729 --> 00:35:42.269
Yeah.

131 "DHS CLOUD R C2370 ELA" (3178811392)
00:35:42.269 --> 00:36:02.269
So what do you advise a school board in in Minnesota? OK, now, these do seem to be neutral policies and the supreme court's decision employment versus employment division versus Smith from.

132 "DHS CLOUD R C2370 ELA" (3178811392)
00:36:02.269 --> 00:36:21.179
Thing that you would suggest that these are neutral and not intended in any way to interfere with people's religious beliefs, that follow up would be subject to nothing more than national basis review. The court, I wouldn't say, resurrects.

133 "DHS CLOUD R C2370 ELA" (3178811392)
00:36:21.179 --> 00:36:38.369
Yoda? But reinvigorates. Yoda. Yoda says we don't even get near employment division versus Smith because if you have a yoda like burden on religion, it's irrelevant whether the policy is generally applicable.

134 "DHS CLOUD R C2370 ELA" (3178811392)
00:36:38.369 --> 00:36:57.539
Alright, so stretch scrutiny applies, cases remanded for further proceedings. Cases says justice so to myore, and I'm not sure how school administrator would try to figure all of this out, can imagine. Curriculum review under Minnesota on.

135 "DHS CLOUD R C2370 ELA" (3178811392)
00:36:57.539 --> 00:37:14.159
There are situations where there have been these sorts of accommodations, but not the subject of formal litigation yet. Alright, here's the case that wasn't. This is the Drumming case, and the question in Drumming is whether or not a religiously based chartered school.

136 "DHS CLOUD R C2370 ELA" (3178811392)
00:37:14.159 --> 00:37:33.899
Violates the United States Constitution, the Oklahoma Constitutions. Alright, so Oklahoma's got a charter school's act, and this is part of allowing Oklahoma to carry out its duty of providing a, a system of education, public education for its students.

137 "DHS CLOUD R C2370 ELA" (3178811392)
00:37:33.899 --> 00:37:53.459
Charter School is a public school according to Oklama law. In the iseast of Oklahoma City, the diaces of want a charter, same Asidora, which is a religious virtual charter school. It's gonna be operated as a charter school. Alright, so.

138 "DHS CLOUD R C2370 ELA" (3178811392)
00:37:53.459 --> 00:38:13.459
Here's the problem. It's a charter School to be a state school? Is it a de a state actor? And if so, does the state have the authority to create religious schools? Alright, really, really interesting issue. People really looking forward to seeing what the Supreme Court had to say.

139 "DHS CLOUD R C2370 ELA" (3178811392)
00:38:13.459 --> 00:38:31.770
But as it turned out, the court never reached the issues in the petition for Sershi Ryan because justice any very recused her sons. The various theories about why she did, but it was a44 opinion and a44 opinion affirms the lower court.

140 "DHS CLOUD R C2370 ELA" (3178811392)
00:38:31.770 --> 00:38:46.980
Okay. Well, what if, what would happen if the court got to the issue? What would the court be likely to say? Is there anything left of, the wall of separation? Like tell my kind of law students, well.

141 "DHS CLOUD R C2370 ELA" (3178811392)
00:38:46.980 --> 00:39:05.340
Maybe a speed book. Alright, now, religious region has been consistently expanded in particularly since supreme Court's decision in the Trinity Luthering case in 2017.

142 "DHS CLOUD R C2370 ELA" (3178811392)
00:39:05.340 --> 00:39:20.670
I don't want to get into the details, but the court is squeezing the establishment clause by expanding its interpretation of the free exercise clause. The broader rights to free exercise of religion.

143 "DHS CLOUD R C2370 ELA" (3178811392)
00:39:20.670 --> 00:39:36.930
Then the less a state is going to be able to rely on the establishment clause and trying to regulate the infusion of religion into the public schools. Alright, so.

144 "DHS CLOUD R C2370 ELA" (3178811392)
00:39:36.930 --> 00:39:56.640
What about this? What about the ten commandments in a courthouse? We've got the Recurbia County cases is that I wonder a longer good law. What about in a in a school? Rope versus Rome Litton his circuit says known Nathan versus Almo Heights Federal District judge.

145 "DHS CLOUD R C2370 ELA" (3178811392)
00:39:56.640 --> 00:40:16.640
20 August says the Texas statutes, not constitutional. And I'm not sure why I put this in, but I just found this really compelling point the judge says in the last opinion, the last paragraph of the opinion. For those who disagree with the court's decision and would do so with threats luggarities and violence recent piece.

146 "DHS CLOUD R C2370 ELA" (3178811392)
00:40:16.640 --> 00:40:33.570
Until you make humankind all face beliefs and non beliefs. Be reconciled with one another amendment. Alright, and it's just a reminder of the constant stretch.

147 "DHS CLOUD R C2370 ELA" (3178811392)
00:40:33.570 --> 00:40:52.740
That are federal judiciary state judiciary and, and even youths. Public employees are are under on a consistent basis. Well alright, what about prayer on the public school? Attorney General Paxsen issues this press release on a second.

148 "DHS CLOUD R C2370 ELA" (3178811392)
00:40:52.740 --> 00:41:09.420
And he's encouraging Texas schools to begin legal processes of putting prayer back into the public schools. And what prayer? Well, he's specifically recommending the Lord's prayer and the gospel of Matthew of chapter six versus nine through 13.

149 "DHS CLOUD R C2370 ELA" (3178811392)
00:41:09.420 --> 00:41:29.100
The Lord's prayer, the new Testament. Alright, and then President Trump, two days ago, in his address at the, at the museum of the Bible says that the Department of Do we still have the Department of education? Well, apparently he's got some functions. So they will soon issue.

150 "DHS CLOUD R C2370 ELA" (3178811392)
00:41:29.100 --> 00:41:46.350
New guidance protecting the right to prayer in public schools. So let's see what happens. And one of the questions is whether or not, given, the fact that the Supreme Court has through the application of originalism.

151 "DHS CLOUD R C2370 ELA" (3178811392)
00:41:46.350 --> 00:42:05.880
This application of history and tradition been particularly recepted to the infusion of religion in public life and in the public schools, whether or not some of the previous school prayer cases would be subject to overwhelming, and this goes back a long way all the way back to angle versus my Tal 1962 bioverse reading.

152 "DHS CLOUD R C2370 ELA" (3178811392)
00:42:05.880 --> 00:42:25.880
The shemcaves in 63 Lee versus Weissman, 86 sand then Santa Fe versus Doe and 2000. So it's gonna be interesting to see what happens. Ultimately there's gonna be a bit before the Supreme Court that asks us whether or not prodigiously based charter schools.

153 "DHS CLOUD R C2370 ELA" (3178811392)
00:42:25.880 --> 00:42:45.240
Can consistently with the establishment clause be targeted by the States. Employment discrimination, and I'm really gonna spend very much time on this. This is Aims versus Ohio Department of Youth Services, and this is certainly not one of my strongest areas, but.

154 "DHS CLOUD R C2370 ELA" (3178811392)
00:42:45.240 --> 00:43:02.220
In general on the type of seven phase, somebody has to show that they've been discriminated against based upon race. Well, can somebody who's white, who is in a majority status be discriminated against on the basis of race or perhaps on the basis of sex?

155 "DHS CLOUD R C2370 ELA" (3178811392)
00:43:02.220 --> 00:43:18.120
And the issue here concerns whether there's a discrimination on the basis of of sexual orientation. My heterosexual, she says, well, there are, she sounded adverse.

156 "DHS CLOUD R C2370 ELA" (3178811392)
00:43:18.120 --> 00:43:33.720
Employment actions. She was passed over for a couple of different positions by people were getting and she sued under title seven and Court appeals, the safe service says, Well, look, she's in the majority.

157 "DHS CLOUD R C2370 ELA" (3178811392)
00:43:33.720 --> 00:43:49.740
This is intended title seven as initially conceived is to try to provide protection for minorities, not people who are in the majority, and if you're in the majority, you're gonna have to prove something extra. Kind of a background or a pattern of harassment.

158 "DHS CLOUD R C2370 ELA" (3178811392)
00:43:49.740 --> 00:44:05.670
Or of discrimination and the supreme Court of the United States United opinion says that's wrong. And you can certainly see this. I guess it's the title seven equivalent of the students for fair admissions versus Harvard and North Carolina.

159 "DHS CLOUD R C2370 ELA" (3178811392)
00:44:05.670 --> 00:44:20.910
Okay, Equal protection. And actually I think this is just the last case that I mentioned briefly, so I'm gonna make sure that I leave plenty of time for my, for my colleague. Alright.

160 "DHS CLOUD R C2370 ELA" (3178811392)
00:44:20.910 --> 00:44:39.090
We know what the 14th amendment says. It's the 14th amendment part of it discrimination on the basis of transgender status is a key issue. Transgender status. We know what part of its discrimination on the basis of race. We know that if there's discrimination based on.

161 "DHS CLOUD R C2370 ELA" (3178811392)
00:44:39.090 --> 00:44:54.330
Sex, that heightened scrutiny, not scrutiny, but heightened scrutiny will be curtained. But what if you had a state, unlike Minnesota restricts resources, medical resources available?

162 "DHS CLOUD R C2370 ELA" (3178811392)
00:44:54.330 --> 00:45:11.760
To kids who are transgender, what happens? Can the state restrict that? Lots of states do. Okay, so that's the key issue in the case. So the question is, does this constitute?

163 "DHS CLOUD R C2370 ELA" (3178811392)
00:45:11.760 --> 00:45:26.820
This Tennessee statute that precludes transgendered kids from gaining access to certain sorts of hormonal treatments or surgical procedures. Does this discriminate against them based upon sex? Does it discriminate against them?

164 "DHS CLOUD R C2370 ELA" (3178811392)
00:45:26.820 --> 00:45:46.350
Based upon their trans gender status. Well, hang on. Now, right at the outset, Chief justice Roberts is laying the foundation by talking about the inconsistency in the available evidence. Some states allow these sorts of treatments and some states.

165 "DHS CLOUD R C2370 ELA" (3178811392)
00:45:46.350 --> 00:46:05.610
Don't. There's some difference with respect to medical opinions on the viability, on the safety of treatments for transgender kids. And so what Chief justice Roberts is doing is strongly suggesting that this is the case where there should be difference.

166 "DHS CLOUD R C2370 ELA" (3178811392)
00:46:05.610 --> 00:46:25.290
Alright, now, does it violate statue because it discriminates on the basis of sex or transgender status and the court says NO. There are two classifications, one is based upon age and one is based upon medical use.

167 "DHS CLOUD R C2370 ELA" (3178811392)
00:46:25.290 --> 00:46:42.510
The age based classification doesn't have anything to do with transgender stats, it has to do with age. If you're over 18, you get the treatments. If you're under 18, you don't. But that's not discrimination, isn't it? Based upon sex or transgender status discrimination based upon age.

168 "DHS CLOUD R C2370 ELA" (3178811392)
00:46:42.510 --> 00:46:59.280
That's what the court says, ok? And then what about transgender status? Is this a quaison suspect classification? Alright, well this is a really tough argument to me. When was the last time the Supreme Court of the United States?

169 "DHS CLOUD R C2370 ELA" (3178811392)
00:46:59.280 --> 00:47:18.150
Said that a particular classification would have triggered heightened scrutiny. Okay, Craig versus born. Craig versus born all the way back to 78. And in between, NO, there have been some suggestions in intermediate cases that maybe there should be a.

170 "DHS CLOUD R C2370 ELA" (3178811392)
00:47:18.150 --> 00:47:36.510
Sort of a sliding scale depending on what the classifying fact is, but this course rejected that notion, in city of Cleverbon versus Clevern Living Center. So how likely do you think it's going to be that the Roberts Court is going to say hide the scrutiny? Sure in case this involved in.

171 "DHS CLOUD R C2370 ELA" (3178811392)
00:47:36.510 --> 00:47:53.730
On Sexual orientation, we're sure in cases involving transgender status. Courts not going there, alright? And in any event it doesn't really discriminate the court says on the basis of that status in the 1st place. Alright, so.

172 "DHS CLOUD R C2370 ELA" (3178811392)
00:47:53.730 --> 00:48:13.730
The last two cases deal with Bidens cases. Bins is dead, and it's not going beyond where it already is. And, and 1983 cases, is, I just simply won't talk about it. You can see it in the slides. All right, I'm pleased to be able to turn this over to my friend and colleague, Professor Manto.

173 "DHS CLOUD R C2370 ELA" (3178811392)
00:48:13.730 --> 00:48:15.240
More standard.

174 "DHS CLOUD R C2370 ELA" (3178811392)
00:48:15.240 --> 00:48:34.200
Okay mike. I'm just gonna click through the Evidence's dead slides.

175 "DHS CLOUD R C2370 ELA" (3178811392)
00:48:34.200 --> 00:48:51.990
There we go. All right. So I'm gonna, I'm gonna talk about cases that, and the way Mike and I have done this over the years is we sort of divided things up into Mike does the the Liberty's cases and then I I show up and talk about the, the, the powers and administrative law cases, and we're gonna do that again this year.

176 "DHS CLOUD R C2370 ELA" (3178811392)
00:48:51.990 --> 00:49:11.990
A lot of the cases I'm gonna talk about, come up under the emergency docket that Mike was talking about before, and so just as sort of a, not all of them do, but just as kind of a preview, I want to talk a little bit more about the the notion of the emergency docket. Erwin Shemoranski, who is now the dean, I believe at.

177 "DHS CLOUD R C2370 ELA" (3178811392)
00:49:11.990 --> 00:49:31.050
At Berkeley Law school. I wrote a piece in Scotisblog where he talked a little bit about some of his concerns regarding the use, the expanded use of the emergency docket. And just a, just a couple of the bullet points he he makes there do get some, some food for thought. So one observation is just the raw numbers.

178 "DHS CLOUD R C2370 ELA" (3178811392)
00:49:31.050 --> 00:49:51.050
Last year, there were 44 cases on the emergency docket, and it's not uncommon for the emergency docket to be populated by a significant number of cases involving capital punishment. So sort of last minute requests from death role prisoners. That tends to make up a lot of what goes on the emergency docket. Last year there were 44 of those.

179 "DHS CLOUD R C2370 ELA" (3178811392)
00:49:51.050 --> 00:49:55.680
This year at the time that chairman's he wrote is saying we were up to 114.

180 "DHS CLOUD R C2370 ELA" (3178811392)
00:49:55.680 --> 00:50:11.760
Hundred and 14 cases on the emergency docket. The number of capital punishment cases has not increased instead it's an increase in all these other areas. And I think even since Chembersky wrote this, we've added a few more. We might be up to like a hundred and 1920 cases.

181 "DHS CLOUD R C2370 ELA" (3178811392)
00:50:11.760 --> 00:50:27.540
On this emergency interim docket. What, what does it look like for a case to be on the emergency or interim docket? Briefing is cursory at best. There is NO oral argument. The opinions, if, if any of you have looked at the opinions that come out.

182 "DHS CLOUD R C2370 ELA" (3178811392)
00:50:27.540 --> 00:50:45.630
And I'll talk about some of these when we get to them, but the the the opinions tend to be on the order of a page, a page and a half, with, with very little reasoning, very little citation to authorities, just simply a we're gonna stay at the lower courts order. We're not gonna stay the lower court.

183 "DHS CLOUD R C2370 ELA" (3178811392)
00:50:45.630 --> 00:51:05.630
Or whatever it might be. So there's, there's very little there in terms of sort of evidence of of the court's thinking and there's an because of that in large part, there's an uncertainty as to the presidential value of these things. What are we supposed to, what imports should we assign to them? And.

184 "DHS CLOUD R C2370 ELA" (3178811392)
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And most recently the Supreme Court has gotten cranky about the fact that lower courts.

185 "DHS CLOUD R C2370 ELA" (3178811392)
00:51:10.200 --> 00:51:30.200
Have not been regarding these things as presidential, when I think there's a fair argument to be made, if you're a lower court judge, you're not exactly sure what part of the opinion you're supposed to point to as the law when there when it doesn't actually contain any principles of law. So, so concerned about this, a number of other.

186 "DHS CLOUD R C2370 ELA" (3178811392)
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Folks are concerned as well. Here are the cases that I'm gonna I'm gonna talk about today. I'm gonna talk about one of those emergency docket cases, Regul Garcia.

187 "DHS CLOUD R C2370 ELA" (3178811392)
00:51:39.420 --> 00:51:59.420
I'm gonna talk about this one because I think all of us have heard about it and it's and it's such an emotionally dripping case. I'm not I'm a little hesitant though to talk about it because this is a CLE. I'm supposed to be here offering you some education and legal developments. I don't know what the law is that comes out of this case. I'm not really sure what we learned as a matter of law from this case, but we'll.

188 "DHS CLOUD R C2370 ELA" (3178811392)
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Talk about that one. We're gonna talk about non delegation doctrine, which is an important principle in both constitutional law and administrative law.

189 "DHS CLOUD R C2370 ELA" (3178811392)
00:52:07.800 --> 00:52:27.800
We'll talk about some of the appointment and removal cases and there we're gonna get into more of the emergency docket cases in particular Wilcox and boil. And if we have time we'll talk about an important environmental law case that whose principles might, you might see them imported into state environmental law as well.

190 "DHS CLOUD R C2370 ELA" (3178811392)
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Take some time, but it'll be, it'll be interesting to see whether that happens. All right, so let's talk about about Abrago garcia.

191 "DHS CLOUD R C2370 ELA" (3178811392)
00:52:35.610 --> 00:52:51.540
I think everybody knows, knows the story in in this case. Abrigo Garcia is the citizen of Salvadore. He's now documenting every living in Maryland with his United States citizen life in the United States citizens children.

192 "DHS CLOUD R C2370 ELA" (3178811392)
00:52:51.540 --> 00:53:08.970
In 2019 an immigration judge finds that he is deportable, or he's subject to deportation, I should say, because he's a an MS 1313 gang member. And that's based mostly actually in the immigration judge's view on evidence from an informant.

193 "DHS CLOUD R C2370 ELA" (3178811392)
00:53:08.970 --> 00:53:28.970
You may, in the news coverage of this case, there's been a lot of attention paid to how is he dressed and so on and so forth. The immigration judge actually bases their opinion mostly on on on communications from an informant. Nevertheless, the immigration judge says, I'm not going to order this person.

194 "DHS CLOUD R C2370 ELA" (3178811392)
00:53:28.970 --> 00:53:42.000
Reported I'm gonna grant a form of relief called withholding of importation. And that's granted because Brago Garcia has made a persuasive case that if he's reported to El Salvador his life will be in danger there.

195 "DHS CLOUD R C2370 ELA" (3178811392)
00:53:42.000 --> 00:54:02.000
And so we have a, we have a mechanism in the United States immigration law by which immigration judges can exercise their discretion and say, even though you are deportable, we're gonna withhold deportation because sending you back would be subjected due to to significant danger. So he has this status of withholding a deportation in March 2025.

196 "DHS CLOUD R C2370 ELA" (3178811392)
00:54:02.000 --> 00:54:04.560
To detained by ice and removed to all salvador.

197 "DHS CLOUD R C2370 ELA" (3178811392)
00:54:04.560 --> 00:54:23.430
Despite the fact that he has this protected status of of withholding of deportation. The United States district court Judge Paul Zennis orders the government in April early April to order the facilitation and, and effectuate the return.

198 "DHS CLOUD R C2370 ELA" (3178811392)
00:54:23.430 --> 00:54:39.480
Of of mr. Agreego Garcia, NO later than 7 April. On 7 April, the government asks Judge Zenness and the 4th circuit and the US Supreme Court all at the same time file simultaneous applications to stay or vacate that order.

199 "DHS CLOUD R C2370 ELA" (3178811392)
00:54:39.480 --> 00:54:58.170
The lower Courts declined to do that, but the Supreme Court grants, and, and is willing to hear that. On the 10th, we get a unanimous Supreme Court order that says we're, we're willing to hear this case, but we are here to say that the lower Court judge mostly got this right.

200 "DHS CLOUD R C2370 ELA" (3178811392)
00:54:58.170 --> 00:55:17.850
The overport judge, is mostly affirmed as she what to what she did. Why? Because the United States has acknowledged that it made a mistake here. The government has admitted that that was not subject to deportation and then deported him. Removal was there for illegal.

201 "DHS CLOUD R C2370 ELA" (3178811392)
00:55:17.850 --> 00:55:37.850
And then the majority opinion says the district court properly requires the government to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. That's as close as the majority opinion gets to using the words due process. The words due process do not actually appear in the majority opinion.

202 "DHS CLOUD R C2370 ELA" (3178811392)
00:55:38.430 --> 00:55:57.960
This language I guess is the stand in for what, for what the majority might think of as, as due process. The majority does go on though to say the district court should clarify what it means by affectuate, and in doing so should give due regard to the difference owed to the executive branch in con in the conduct of foreign affairs.

203 "DHS CLOUD R C2370 ELA" (3178811392)
00:55:57.960 --> 00:56:17.960
And then that's the end of the opinion. That's all the guidance that the Lord Court gets. Clarify what you meant by effectuate and think about the executive's responsibility for foreign affairs. Good luck. So this, this is gonna go back to judge Sennis, but justice so to my own Caken and Jackson jump in and write a longer opinion saying, here's what we think.

204 "DHS CLOUD R C2370 ELA" (3178811392)
00:56:17.960 --> 00:56:33.990
We're all doing. We think this is about due process and we're gonna use the words do process in our, what is called a statement respecting disposition of the application. You might think of it as a concurring opinion, but it's it's it's an additional opinion attached to this.

205 "DHS CLOUD R C2370 ELA" (3178811392)
00:56:33.990 --> 00:56:53.990
We think this is about due process. We think in carrying out the return of a regular Garcia that the government also be mindful of our obligations under the convention against torture, and that that we encourage the district court to ensure that the government moves up to its obligations. But what happens next?

206 "DHS CLOUD R C2370 ELA" (3178811392)
00:56:53.990 --> 00:57:13.440
The attorney General of the United States says, Well his return is not up to us, it's up to the government of Els Alvador. That position obviously creates the potential for a constitutional crisis because you have the supreme Court saying yes, we want the the return effectuated.

207 "DHS CLOUD R C2370 ELA" (3178811392)
00:57:13.440 --> 00:57:32.730
With due regard for foreign affairs but effectuated. And the attorney general's position is well that's up to our Salvador that's not up to us. The crisis is in some ways averted by visit by Senator Manholand, who manages to achieve the transfer of a redo Narcia.

208 "DHS CLOUD R C2370 ELA" (3178811392)
00:57:32.730 --> 00:57:49.230
From the maximum security prison to a lesser lower security prison, and it seems like at that point some wheels start to move. Now, the 1st set of wheels that moves is Abrago Garcia is indicted in Tennessee on federal charges of human trafficking by a grand jury.

209 "DHS CLOUD R C2370 ELA" (3178811392)
00:57:49.230 --> 00:58:04.530
Once that indictment is in place, now Rego Garcia is brought back to the United States and is immediately charged and detained in Tennesssee under these trafficking charges. In August, he is released from custody in Tennessee.

210 "DHS CLOUD R C2370 ELA" (3178811392)
00:58:04.530 --> 00:58:24.240
And in September, the, ICE informed to Rego Garcia that rather than him having to worry about being sent back to the Door, we found a new place to, to potentially deport into. It is the kingdom of Swatini in Africa, formerly swazi land.

211 "DHS CLOUD R C2370 ELA" (3178811392)
00:58:24.240 --> 00:58:41.220
So this case just grinds on and on and on. The government's latest position is that if Abrego Garcia tries to reopen his original immigration case to seek asylum, it will regard the original immigration case of basically null envoyd, and.

212 "DHS CLOUD R C2370 ELA" (3178811392)
00:58:41.220 --> 00:58:56.700
Along with it, any with the olding of departation and just immediately import him. Current status as judge Zinus has basically said nobody does anything. Well, I sort this out for the next couple of months, nobody's going anywhere, it remains to be seen how long that order.

213 "DHS CLOUD R C2370 ELA" (3178811392)
00:58:56.700 --> 00:59:16.110
That can stay in place. So as I said, I'm not exactly sure what law to extract from all of this, from, from these proceedings. Yeah, question, go ahead. Is this, this is all resolved at the Supreme Court level through the emergency doc. This is all happening on the emergency doc, and you maybe getting to this, but.

214 "DHS CLOUD R C2370 ELA" (3178811392)
00:59:16.110 --> 00:59:32.880
What body sets the procedural rules related to that docket? Maybe it's just the supreme Court the supreme court. Yeah. And the Supreme Court has a discretion to use it that docket anyway he wants. It doesn't have to grant the emergency review, and with all the stresses on that process.

215 "DHS CLOUD R C2370 ELA" (3178811392)
00:59:32.880 --> 00:59:52.880
What is the process for changing those procedures? And do you see any changes coming? Maybe you're getting to Yeah well I wasn't planning to get to that, but my my initial thoughts are I'm not certain that any entity can change those processes other than the supreme court. I don't know that Congress could necessarily, I mean Congress had.

216 "DHS CLOUD R C2370 ELA" (3178811392)
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As as jurisdiction of the appellate jurisdiction.

217 "DHS CLOUD R C2370 ELA" (3178811392)
00:59:55.710 --> 01:00:15.710
Query whether this is the appellate jurisdiction of the supreme court or not or something else. It's a, it's a deep question. I'll have to think more about that one. You post it to you. I would think the lower courts who've been complaining about it will want to be with respect to the lower courts it maybe a different matter, but the, but if you're asking about the process at the Supreme Court level with respect to the.

218 "DHS CLOUD R C2370 ELA" (3178811392)
01:00:15.710 --> 01:00:35.460
Demonstration of the emergency docket, I think that's a very dicey question. Yeah. Alright, so like I said, I don't know what law exactly to extract from that other than it's a demonstration of the emergency docket in practice and maybe the unsatisfying results that we might see there, even in cases where it operates in a way.

219 "DHS CLOUD R C2370 ELA" (3178811392)
01:00:35.460 --> 01:00:53.580
In which the court is using it to actually push back on on actions by the administration. I'm gonna move on to a, to another topic now, and this one we won't have to, we can take a break for a minute from the emergency document. We can talk about a case that actually came up the old fashioned way through a grant of sertiary.

220 "DHS CLOUD R C2370 ELA" (3178811392)
01:00:53.580 --> 01:01:10.320
And that involves the non delegation doctrin. So the, the, the background here, the theory of the non delegation doctrine is it goes something like this. The the argument goes something like this. Article one vests all legislative power and congress. And therefore.

221 "DHS CLOUD R C2370 ELA" (3178811392)
01:01:10.320 --> 01:01:25.560
Congress should not be giving away that power. Congress should not be making wholesale delegations of its legislative power. Congress should be carrying out and effectuating and using its legislative authority. Of course, we know that as a, as a matter of realism.

222 "DHS CLOUD R C2370 ELA" (3178811392)
01:01:25.560 --> 01:01:45.560
We need agencies and so forth to execute the will of Congress, but when Congress gives power, e.g., to administrative agencies, it should not just be turning over all that power. It should bound and cabin that power to some degree, ok? And the way that has been expressed, that notion of non delegation has been expressed most recently.

223 "DHS CLOUD R C2370 ELA" (3178811392)
01:01:45.560 --> 01:01:50.130
Is in the whitman trucking case of any written by the Late justice Scholia.

224 "DHS CLOUD R C2370 ELA" (3178811392)
01:01:50.130 --> 01:02:06.120
He says that when Congress can 1st decision making authority upon the agencies, it has to lay down by statute an intelligible principle. There has to be some intelligible principle delimiting the bounds of the authority that has been sort of turned over to.

225 "DHS CLOUD R C2370 ELA" (3178811392)
01:02:06.120 --> 01:02:21.630
To these agencies. What is, what are examples of that intelligible principle? Well, even in the witnent trucking case, justice Scalia points out, it's not a very high burden. It's not a demanding kind of restriction that we're imposing at Congress here.

226 "DHS CLOUD R C2370 ELA" (3178811392)
01:02:21.630 --> 01:02:37.110
The federal Communications Act of 1934 tells us that the FCC should regulate the public airwaves quote in the public interests, and that survives a non delegation challenge. The Supreme Court said, that's enough.

227 "DHS CLOUD R C2370 ELA" (3178811392)
01:02:37.110 --> 01:02:57.110
In the public interest, that cabin then limits the authority of the agency enough. Even though you might look at that phrase and say, that's not much of a restriction, there's not a lot of detail to the phrase in the public interest. Nevertheless, the Supreme Court has said that's sufficient. SEC should regulate certain transactions in a manner that is not unduly or.

228 "DHS CLOUD R C2370 ELA" (3178811392)
01:02:57.110 --> 01:03:01.620
Necessarily complicated, that's good enough. That's an intelligible principle.

229 "DHS CLOUD R C2370 ELA" (3178811392)
01:03:01.620 --> 01:03:19.980
I ask you to intelligently tell me what the principle is, but I'm not sure what it is. Generally fair enough, but you get the idea here. Justice Schooley is saying it's sort of paying lip service to the idea that yes, non delegation makes sense. Congress should not be able to turn over its authority wholesale, but on the other hand.

230 "DHS CLOUD R C2370 ELA" (3178811392)
01:03:19.980 --> 01:03:35.550
We're not gonna ask for a lot. We're not gonna demand much in the way of an intelligible principle limiting the authority of agencies. Okay, well as you know, the trend and administrative law cases over the last few years has been one of narrowing the authority of agencies.

231 "DHS CLOUD R C2370 ELA" (3178811392)
01:03:35.550 --> 01:03:54.750
Right? We can go back to 2020 and the seala law case where the court found the structure of the consumer finance protection bureau to be to be on constitutional and narrow the removal protections for officers in that agency. We can talk about the major questions Doctrin.

232 "DHS CLOUD R C2370 ELA" (3178811392)
01:03:54.750 --> 01:04:14.750
That, that popped up most recently in the West Virginia case, Loperd Bright overruling Chevron mostly, and then the corner post case in which the Supreme Court found that even when the, the, the appeals period for an administrative rule has expired at a.

233 "DHS CLOUD R C2370 ELA" (3178811392)
01:04:14.750 --> 01:04:25.680
The APA, it's still possible to challenge that rule simply by forming a new corporation. So there's been this erosion and narrowing of administrative agency authority.

234 "DHS CLOUD R C2370 ELA" (3178811392)
01:04:25.680 --> 01:04:45.270
And one question was whether the next shooted drop here might not be the non delegation dr.. That we might not see the Supreme Court say intelligible principle has to have sharper teeth than it's had up to this point. The vehicle that that might have happened in was this case, federal communications commission versus consumered research.

235 "DHS CLOUD R C2370 ELA" (3178811392)
01:04:45.270 --> 01:05:01.440
The issue here involved the universal service fund that Congress established to subsidized phone and internet services in underserved rural areas. This is funded by a charge on telecoms and of course the telecoms passed those charges onto us.

236 "DHS CLOUD R C2370 ELA" (3178811392)
01:05:01.440 --> 01:05:21.440
Congress created a private nonprofit corporation to administer the funds, to basically be the the clearinghouse for the distribution of those funds. And this was challenged. This was challenged on non delegation grounds, and the 5th circuit invalidated this scheme, said 1st of all, we don't think there's enough of an intelligible.

237 "DHS CLOUD R C2370 ELA" (3178811392)
01:05:21.440 --> 01:05:25.650
Simple regarding the amount that the fee should be set at.

238 "DHS CLOUD R C2370 ELA" (3178811392)
01:05:25.650 --> 01:05:44.430
And second, we think that delegating any of this authority for private nonprofit corporation is a kind of per se breaching of this non delegation doctrin. So these issues go up to the Supreme Court and maybe surprisingly, six three majority finds that.

239 "DHS CLOUD R C2370 ELA" (3178811392)
01:05:44.430 --> 01:06:01.890
The scheme is constitutional and reverses the 5th circuit. Justice kidding ready for the majority says 1st of all, and this is probably the most important point, intelligible principle was the standard and it still is the standard. We are not putting, we're not changing that standard and we are not sharpening the teeth of this standard.

240 "DHS CLOUD R C2370 ELA" (3178811392)
01:06:01.890 --> 01:06:21.890
As applied here, she says, Look, the statute is specific about the kinds of communities that this fund is meant to serve. It's specific about the idea that we're gonna give particular preference to educational and public safety and public health kinds of services in this funding. The statute director.

241 "DHS CLOUD R C2370 ELA" (3178811392)
01:06:21.890 --> 01:06:28.590
Ask the SEC to collect the fund in an amount sufficient to execute and, and, and make those functions happen?

242 "DHS CLOUD R C2370 ELA" (3178811392)
01:06:28.590 --> 01:06:46.470
So if that's enough, under our precedence where we have a fairly differential understanding of what constitutes an intelligible principle, that's enough to satisfy, to satisfy that standard. On the question of the private, so called private delegation, justice Katie just rejects the premise, says.

243 "DHS CLOUD R C2370 ELA" (3178811392)
01:06:46.470 --> 01:07:04.050
Yes, sure. Congress created this private nonprofit corporation to, to act as the clearinghouse and bookkeeping entity for these funds. But in every way that matters for constitutional purposes, the FCC is in control. That entity is not deciding who does get money and who doesn't from a policy perspective.

244 "DHS CLOUD R C2370 ELA" (3178811392)
01:07:04.050 --> 01:07:24.050
All it's doing is writing the checks. It's just acting as a clearinghouse for the funding, and she says that does not create the kinds of constitutional concerns that the non delegation dr. was meant to address. Justice Gorsch writes for the descendors here writes for Justice's Alido and Thomas in himself, and we're.

245 "DHS CLOUD R C2370 ELA" (3178811392)
01:07:24.050 --> 01:07:29.910
Would would have used this as an opportunity as the vehicle to put sharper teeth on the non delegation doctrine.

246 "DHS CLOUD R C2370 ELA" (3178811392)
01:07:29.910 --> 01:07:48.540
And potentially further limit the the reach of the administrative agencies and their their powers. He has an interesting analysis here. He says, look, when the statute forces, when the statute is the FCC the ability to force telecoms to contribute to this universal service fund, another word for that is taxation.

247 "DHS CLOUD R C2370 ELA" (3178811392)
01:07:48.540 --> 01:08:08.540
And taxation is classically a legislative function. It's not the kind of thing that should be outsourced, he says, in this manner, to an administrative agency to make these kinds of determinations as to how much, who is subject to it and so forth. And he goes on to say, really, we need a different standard. He says.

248 "DHS CLOUD R C2370 ELA" (3178811392)
01:08:08.540 --> 01:08:18.030
Because, there maybe other guides that we could be drawing upon to get beyond the intelligible principle test. Now this is an interesting criticism, right? Because.

249 "DHS CLOUD R C2370 ELA" (3178811392)
01:08:18.030 --> 01:08:38.030
When we think about, that that pantheon, if you will, of, of justices that that we associate with conservatism at the Supreme Court, this is a criticism of justice Sulia who I think has to be in that pantheon of those kinds of of justices. But this is just the source of saying we need to move beyond what Justice Solia told.

250 "DHS CLOUD R C2370 ELA" (3178811392)
01:08:38.030 --> 01:08:45.660
Was about about the non delegation document and it does something with more teeth. Yeah. Is is his holding or.

251 "DHS CLOUD R C2370 ELA" (3178811392)
01:08:45.660 --> 01:09:02.640
Is that limited to cases in which attacks or a fee is associated? No I don't think so. I mean I think I think he wants more than that. I think I think this conclusion that we need to get beyond intelligible principle and adopt another standard or I think what he's saying is we need something more biting. We need something more restrictive.

252 "DHS CLOUD R C2370 ELA" (3178811392)
01:09:02.640 --> 01:09:21.390
Then the intelligent principle has proven to be. Alright, so that's non delegation document. Let's talk about appointment and removal, and here we will venture back into the emergency document when we get to the removal cases. Just by way of background, what we're talking about here are the appointments of federal officers.

253 "DHS CLOUD R C2370 ELA" (3178811392)
01:09:21.390 --> 01:09:38.370
And I've I've used my tremendous skills of art and and design here to use a highlighting feature in PowerPoint because I want to draw attention to the idea that in the appointment's claused in article two, there are two different categories of federal officers.

254 "DHS CLOUD R C2370 ELA" (3178811392)
01:09:38.370 --> 01:09:56.640
The blue there tells you that the president shall nominate and the senate shall confirm officers of the United States. We're gonna call those people principal officers, ok? The green text tells us that in other circumstances Congress may by law.

255 "DHS CLOUD R C2370 ELA" (3178811392)
01:09:56.640 --> 01:10:12.660
Appoint vest the appointment of power of inferior officers in the president alone, so without the Senate, in the courts of law, so without the president or the Senate or the heads of departments, again without the president or Senate. So we have two categories.

256 "DHS CLOUD R C2370 ELA" (3178811392)
01:10:12.660 --> 01:10:31.290
Principal officers, Principal officers have to be appointed by the president confirmed by the Senate, and then we have another category called interferior officers and Congress may adopt statutes specifying how those folks get appointed, either by the president alone, by the courts or by department heads, ok?

257 "DHS CLOUD R C2370 ELA" (3178811392)
01:10:31.290 --> 01:10:46.950
Kennedy versus brade bradeweight management is a case in which parties try to use that set of clauses, the appointment clauses, as a means to bring an attack against.

258 "DHS CLOUD R C2370 ELA" (3178811392)
01:10:46.950 --> 01:11:06.950
Against the federal agency and try to argue that that agency is operating on constitutionally. And the great thing about this case is that it provides me my 8th opportunity to appear it before you even talk about the Affordable Care Act. It just wouldn't be a visit to the Omar Anderson building in September if we didn't get to.

259 "DHS CLOUD R C2370 ELA" (3178811392)
01:11:06.950 --> 01:11:18.090
Talking about the Affordable Care Act, and so here I am again, the ACA requires insurers to cover certain preventative health care measures.

260 "DHS CLOUD R C2370 ELA" (3178811392)
01:11:18.090 --> 01:11:38.090
Without cost of patience, and to help effectuate that by statute, the Secretary of Health and Human Services is empowered to quote convene closed quote, something called a preventative task services task force that's responsible for identifying what kind of preventative care insurers should I.

261 "DHS CLOUD R C2370 ELA" (3178811392)
01:11:38.090 --> 01:11:58.090
Have to cover for free. And that task force is operated in and is located within a HHS. Well the task force finds that a particular medication called prep, which is a medication used as a, a prophlaxis, to protect against acquisition of HIV. Finds that prep.

262 "DHS CLOUD R C2370 ELA" (3178811392)
01:11:58.090 --> 01:11:59.430
That should be covered.

263 "DHS CLOUD R C2370 ELA" (3178811392)
01:11:59.430 --> 01:12:19.430
As one of these preventative care measures that that insurers should have to pay for and that that patient should not have to pay for. And this entity, this insurance entity called Breedwood management objects on religious grounds. They say, we don't like the fact that we have to pay for, this anti HIV drug because we have certain stereotypes in our head.

264 "DHS CLOUD R C2370 ELA" (3178811392)
01:12:19.430 --> 01:12:30.480
That as to who might, who those people might be that, that make use of this of this medication. And so the challenge of the the categorization of the the prep medication.

265 "DHS CLOUD R C2370 ELA" (3178811392)
01:12:30.480 --> 01:12:50.480
As being one that is that has to be covered for free. They challenge it in a couple of ways. 1st of all, they bring a religion clause argument in the lower courts that fails. But the other argument they bring is an appointment clauses clause argument. And this one, this one works. They say, look, the statute as amended, the age.

266 "DHS CLOUD R C2370 ELA" (3178811392)
01:12:50.480 --> 01:12:56.220
CCA as amended, says that the Secretary of Health and Human Services shall convene a task force.

267 "DHS CLOUD R C2370 ELA" (3178811392)
01:12:56.220 --> 01:13:16.220
It doesn't say who appoints that task force. It just says that the HHS secretary convenes them. It doesn't actually use the word appoints. This is the lynch pin of the argument, ok? Because Congress has not said the word magic word appoint, it has not vested the appointment of.

268 "DHS CLOUD R C2370 ELA" (3178811392)
01:13:16.220 --> 01:13:34.710
Those officials in a, in the president alone, it has not vested their appointment in the courts of law. It has not vested their appointment in the heads of any agencies. So the default must be, I guess the principal officers who have to be nominated by the president with the advice and consent of the Senate.

269 "DHS CLOUD R C2370 ELA" (3178811392)
01:13:34.710 --> 01:13:54.090
And stay with me. And since that never happened, their appointment was unlawful and the district court agrees. District court says yep, that's right. These folks got their jobs unlawfully, and therefore, all the preventative health care stuff under the affordable care echoing back to 2011 is invalid.

270 "DHS CLOUD R C2370 ELA" (3178811392)
01:13:54.090 --> 01:14:14.090
5th circuit upholds most of that ruling but says maybe we don't need to go all the way back to 2011. We're gonna we're gonna modify the remedy a little bit. All right, this goes up to the Supreme Court and justice Cavanaught reverses right for the majority of reversing says look convene works here. Convene does.

271 "DHS CLOUD R C2370 ELA" (3178811392)
01:14:14.090 --> 01:14:18.240
The work of the word appointment, 1st of all, Congress doesn't have to use magic words.

272 "DHS CLOUD R C2370 ELA" (3178811392)
01:14:18.240 --> 01:14:38.240
We've got a bunch of other statutes in the federal system in which we convene under the statute and everybody knows that means appoint. When we convene military commissions, we are appointing military commissions. When we convene the coast Guard Reserve policy board, Department of Commerce personnel board, all these entities.

273 "DHS CLOUD R C2370 ELA" (3178811392)
01:14:38.240 --> 01:14:40.560
Sure Congress has used the word convene.

274 "DHS CLOUD R C2370 ELA" (3178811392)
01:14:40.560 --> 01:15:00.560
That has always meant to appoint, and he says, Look, where the statute says convene, and it doesn't say anything about somebody else being the appointing official, the obvious conclusion is the person with the power to convene is the person with the power to appoint, so pretty much dismissing the lower courts assessment of this.

275 "DHS CLOUD R C2370 ELA" (3178811392)
01:15:00.560 --> 01:15:14.520
Other reasons to to find that these quotes were validly appointed interferior officers, he says look, they're removable at Will, and that characteristic is one we have often associated with with with.

276 "DHS CLOUD R C2370 ELA" (3178811392)
01:15:14.520 --> 01:15:34.520
Inferior officers. We'll come back to that notion in a second. Also the statute charges the secretary of HHS to supervisor to work. And when somebody is supervised by a principal officer, will that suggests they are a duly appointed interferior officer. One thing I want to point out here is what Justice Cabinar has to say about.

277 "DHS CLOUD R C2370 ELA" (3178811392)
01:15:34.520 --> 01:15:35.550
Difference.

278 "DHS CLOUD R C2370 ELA" (3178811392)
01:15:35.550 --> 01:15:54.930
Remember I said earlier that we talked about Loper Bright being the case that overrules Chevron and I said mostly, it's not that deference is completely gone. In fact, in Loper Bright itself, the court said we still as judges should pay some attention to.

279 "DHS CLOUD R C2370 ELA" (3178811392)
01:15:54.930 --> 01:16:14.930
What the agency thinks is the right answer in a given statutory interpretation problem. It's just that we don't automatically defer. And I think this might be an example of that. He says, look, for the past 26 years, why 26 years? Well, it turns out this task force actually predates the ACA. This task force was, was.

280 "DHS CLOUD R C2370 ELA" (3178811392)
01:16:14.930 --> 01:16:20.880
1st came online in 1999 under a different set of statutes. For for more than a quarter of a century.

281 "DHS CLOUD R C2370 ELA" (3178811392)
01:16:20.880 --> 01:16:40.880
Everybody has understood convene to mean a point. And he says that considered an consistent executive branch practice of treating the word convene as a point with NO objection from Congress and nobody in the in the judicial branch has certainly objected.

282 "DHS CLOUD R C2370 ELA" (3178811392)
01:16:40.880 --> 01:17:00.870
Until this point, matters for interpretation of the statute. C loper bright. So it's an interesting gloss, if you will, on where we ended up in loper Bright or an acknowledgement that those parts of loper Bright that said federal Court should still pay attention to what the executive branch thinks.

283 "DHS CLOUD R C2370 ELA" (3178811392)
01:17:00.870 --> 01:17:17.490
The right interpretation is apparently they mean that. This is an example of the Supreme Court saying we we meant that, ok? Alright, the descent here, Justice Thomas, says principal officer, that's the def constitutional default.

284 "DHS CLOUD R C2370 ELA" (3178811392)
01:17:17.490 --> 01:17:33.360
An inferior officer is a constitutional exception. How does he know that? He says because you only get to be an inferior officer when Congress by law vests your appointment in one of these other entities. So failing that by law, vesting.

285 "DHS CLOUD R C2370 ELA" (3178811392)
01:17:33.360 --> 01:17:49.350
The default is everybody's the principal officer. So he says we as courts should presume that default and require Congress to be clear when it prefers the, the, to use the exceptional route of of appointing someone as an interferior officer.

286 "DHS CLOUD R C2370 ELA" (3178811392)
01:17:49.350 --> 01:18:04.650
And he says here the statute is insufficiently cleared to meet that kind of clear statement standard, if you will. Okay, alright. Emergency docket cases. We can talk about removal now, closely related to appointment, trump versus Wilcox.

287 "DHS CLOUD R C2370 ELA" (3178811392)
01:18:04.650 --> 01:18:24.650
Constitution doesn't actually say anything about how we remove officers other than impeachment. Impeachment is the only textual mechanism by which we can think about the removal of officers. But a long time ago, the supreme Court acknowledge that the power of removal is incident to the power of appointment so that there has to be some room for the present.

288 "DHS CLOUD R C2370 ELA" (3178811392)
01:18:24.650 --> 01:18:34.620
To be able to remove officers of the United States. The question that arises is, ok, that's, that's, we can understand that.

289 "DHS CLOUD R C2370 ELA" (3178811392)
01:18:34.620 --> 01:18:50.610
Can Congress limit that authority? To what degree can Congress limit the president's ability to remove officers of the United States? In particular, when we're talking about independent agencies. So as you may know, in a federal system, there are roughly speaking, two flavors of agencies.

290 "DHS CLOUD R C2370 ELA" (3178811392)
01:18:50.610 --> 01:19:06.300
There are the executive branch agencies, those that exist within the departments of the education, then the department of the interior, all the agencies that exist in the executive branch are under the president's direct control. But Congress has also established what it regards as independent agencies.

291 "DHS CLOUD R C2370 ELA" (3178811392)
01:19:06.300 --> 01:19:23.640
Agencies that are deliberately placed outside of any of those cabinet level departments, ok? These tend to be agencies that are led not by a single individual, but are led by a commission of of five or seven or some other odd number of members.

292 "DHS CLOUD R C2370 ELA" (3178811392)
01:19:23.640 --> 01:19:39.510
The commissions tend to be, if not nonpartisan or at least by partisan in their composition. And, and the justification for these these these entities is, is in, is in the word, is in the the the title or independent agencies. The idea is.

293 "DHS CLOUD R C2370 ELA" (3178811392)
01:19:39.510 --> 01:19:57.030
Congress wanted wants sub agencies to exist outside of the political influence of being located in the executive branch, and so deliberately places them outside as independent agencies. Well, in doing this, Congress has also often said.

294 "DHS CLOUD R C2370 ELA" (3178811392)
01:19:57.030 --> 01:20:13.170
And the president can't remove these commissioners at Will, in the way that the president, e.g., could remove Secretary of Commerce at Will. The president cannot remove these commissioners of these independent agencies at Will instead can only remove them.

295 "DHS CLOUD R C2370 ELA" (3178811392)
01:20:13.170 --> 01:20:32.790
For pause or malfeasants or something along those lines. In 1935, President Rozellete tried to remove one of the commissioners of the federal Trade commission and said, I'm the president, I should be able to remove whoever I want to. Congress can't limit me from doing that. Supreme Court disagreed in the case called Huntry's executives, said well actually.

296 "DHS CLOUD R C2370 ELA" (3178811392)
01:20:32.790 --> 01:20:51.480
In the case of these independent agencies, Congress can insulate these folks from presidential removal. Because that's what Congress wanted. Congress wanted independence from some independence from the executive branch. That is the, that was the rule until about 2020 when we got the seal in law case.

297 "DHS CLOUD R C2370 ELA" (3178811392)
01:20:51.480 --> 01:21:10.980
In the seal law case which dealt with the, the CFPV, the Supreme Court narrowed the circumstances in which Congress can limit the president's ability to remove these officers to really two circumstances. The 1st is a situation in which the official we're talking about.

298 "DHS CLOUD R C2370 ELA" (3178811392)
01:21:10.980 --> 01:21:29.220
Is the the a commissioner and a multi member by parties and commission lacking executive powers. And all three of those boxes have to be checked, ok? That's what seala law tells us. Multi members, not just something led by a single director, it's gotta be multi member.

299 "DHS CLOUD R C2370 ELA" (3178811392)
01:21:29.220 --> 01:21:44.700
Bipartisan, ok, that has to be some sort of structural statutory structural elements that make sure that it's a bipartisan or nonpartson entity. And the, and probably the most important for this supreme Court is that the agency lacks executive powers.

300 "DHS CLOUD R C2370 ELA" (3178811392)
01:21:44.700 --> 01:22:04.700
At most it has quasi legislative quasi adjudicative powers, but lacks the kinds of powers of policy making that we might associate and and execution that we might associate with the executive branch. So that's category number one, in those situations, Congress can limit the removal of those folks. But failing those kinds of conditions.

301 "DHS CLOUD R C2370 ELA" (3178811392)
01:22:04.700 --> 01:22:24.090
Says the court, the congress, doesn't have the authority to limit the president's power to remove. The other category is inferior officers. Inferior officers who have limited powers Congress can if it wants to, protect those people from at Will removal so that they can carry out their responsibility.

302 "DHS CLOUD R C2370 ELA" (3178811392)
01:22:24.090 --> 01:22:43.740
Please. All right. In February, the trumpt administration told us what it thinks of this idea of independent agencies, describing them as so called independent agencies in this executive order and sort of firing the shop here saying we, we intend to try to bring exec these independent agencies to heal.

303 "DHS CLOUD R C2370 ELA" (3178811392)
01:22:43.740 --> 01:23:03.740
This particular case arises out of the firing of folks from two of these, what we would have understood to have been independent agencies, Willcox at the national labor Relations Board and Harris at the Merit Systems protection board. Both of them are fired despite the existence of staff.

304 "DHS CLOUD R C2370 ELA" (3178811392)
01:23:03.740 --> 01:23:06.000
Actually it's saying you can't fire these folks.

305 "DHS CLOUD R C2370 ELA" (3178811392)
01:23:06.000 --> 01:23:25.320
Except for cause. And, the court acknowledges that NO qualifying cause was given by President Trump in firing these folks. Harris argues that the Merit Systems protection board in particular, doesn't have any executive power. It's mostly an adjudicative entity.

306 "DHS CLOUD R C2370 ELA" (3178811392)
01:23:25.320 --> 01:23:41.790
And that, and that her firing really doesn't make sense even under sealat law, the sealert law case. And she says, look, if, if I can be fired, anybody could be fired. And she says, even members of, e.g., the federal reserve.

307 "DHS CLOUD R C2370 ELA" (3178811392)
01:23:41.790 --> 01:24:01.790
Unsigned opinion on the emergency docket, so I'll back up. Laura Courts agree with her. Supreme Court probably disagrees with her. I say probably because, again, the opinion's about that long. And it says this much. It says the constitution invests the executive power in the pres.

308 "DHS CLOUD R C2370 ELA" (3178811392)
01:24:01.790 --> 01:24:02.580
President.

309 "DHS CLOUD R C2370 ELA" (3178811392)
01:24:02.580 --> 01:24:22.580
He can remove executive officers who exercise executive power, see the seala law case. We're gonna stay the lower courts in junction here because the government is likely to show that both the NLRB and the MSPB exercise considerable executive power, likely to show. They haven't shown it yet.

310 "DHS CLOUD R C2370 ELA" (3178811392)
01:24:22.580 --> 01:24:28.620
Yeah, because again, this hasn't been litigated yet, right? We're at we're at a we're at an injunction stage in the district court.

311 "DHS CLOUD R C2370 ELA" (3178811392)
01:24:28.620 --> 01:24:48.620
But we think that that eventually that will be the showing and the Supreme Court in this very brief opinion says the government faces a greater risk of harm from an order allowing a removed officer to continue exercising executive power than does a wrong fully removed officer face from being able to unable to perform her her duty.

312 "DHS CLOUD R C2370 ELA" (3178811392)
01:24:48.620 --> 01:25:08.100
Okay, so we're gonna let these folks be removed. Now, eventually, presumably this could churn its way up to the court on sociary. But for now, these folks are in the position of being removed. A couple of curiosities in this opinion, one of the justifications that the majority gives is the stay here is appropriate.

313 "DHS CLOUD R C2370 ELA" (3178811392)
01:25:08.100 --> 01:25:28.100
Because it's just too disruptive to have federal officers hired and then removed and then reappointed by a court and then refired but that's just too disruptive. Well, here's the pattern in this case. These folks were hired by President Biden, they were fired by President Trump. They were rehired by the district court, if you will. They were refired again by a three panel.

314 "DHS CLOUD R C2370 ELA" (3178811392)
01:25:28.100 --> 01:25:37.050
The Judge of the appell of the appeals court, they were rehired by the appellate court on Bonk and then the supreme Court so as not to contribute to this pattern.

315 "DHS CLOUD R C2370 ELA" (3178811392)
01:25:37.050 --> 01:25:52.350
Refires stuff Temporarily though, because again, this case has to work its way up on the merits before we have a final decision. So that's a curious curiosity. The other curiosity is the federal Reserve thing. Supreme Court says.

316 "DHS CLOUD R C2370 ELA" (3178811392)
01:25:52.350 --> 01:26:12.030
Those worries you raised about this federal reserve, don't worry. We disagree that what anything we have to say here today affects the, the federal reserve. Why? Because the federal reserve is a uniquely structured quasi private entity that follows in the distinct historical traditions of the 1st and second banks of the of the United States.

317 "DHS CLOUD R C2370 ELA" (3178811392)
01:26:12.030 --> 01:26:28.200
That's all the reasoning. That's why the federal Reserve is different. C and the citation to seal law footnote eight, here's what seal law footnote eight said. Even assuming that those things can claim a historical.

318 "DHS CLOUD R C2370 ELA" (3178811392)
01:26:28.200 --> 01:26:47.130
Different historicals. So the cecile law didn't even actually say what this majority opinion thinks it says, but the federal Reserve is just different. It just is. This points out one of the difficulties I think that that Dean Shemerinski has has sort of developed with the emergency docket, which is.

319 "DHS CLOUD R C2370 ELA" (3178811392)
01:26:47.130 --> 01:27:07.130
The breadthity of the opinions leaves us asking a whole bunch of questions. It's not a great device by which we can make law. It's not a great set of guide posts for lower courts to apply. What is the precedent here? What exactly are we supposed to say? Justice Cagan here is obvious rights of descent is very critical.

320 "DHS CLOUD R C2370 ELA" (3178811392)
01:27:07.130 --> 01:27:22.830
Says, look, you haven't overruled humpfrees, we should be applying humpfrees. Instead you're favoring the president over precedent. I wanna just briefly talk about the Wilcox case. Similar situation as boil.

321 "DHS CLOUD R C2370 ELA" (3178811392)
01:27:22.830 --> 01:27:42.270
And the majority says same outcome and then sites Wilcox. So now the emergency opinion of a page and a half in Willcox that wasn't subject to any oral argument and is really meant to be a placeholder until the whole thing churns its way back up to the court is precedent.

322 "DHS CLOUD R C2370 ELA" (3178811392)
01:27:42.270 --> 01:28:00.420
And it's precedent in a similar case. So it does feel like the emergency docket is making law. It's just very difficult to know what that what that law is. There's more cases we could talk about, but I we're, we're sort of running low on time. I just want to check in and see if there are any questions.

323 "DHS CLOUD R C2370 ELA" (3178811392)
01:28:00.420 --> 01:28:19.170
At this point. So otherwise I can try to proceed through the next one. On the tariff case. Yeah, so the so the the tariff case is going up to the Supreme Court, again, President Trump imposed tariffs under the Iepa, the.

324 "DHS CLOUD R C2370 ELA" (3178811392)
01:28:19.170 --> 01:28:36.450
International economic emergency, something act. And, and, that was challenged by the the terriffs were challenged by some small businesses that said, look, these terriffs are gonna destroy our businesses. The federal Court of international Trade.

325 "DHS CLOUD R C2370 ELA" (3178811392)
01:28:36.450 --> 01:28:54.060
Which many of us maybe didn't even know existed, finds that the terrorists are, are contrary to the statute, not authorized by the statute. The federal court for the federal circuit affirms that and says, also this runs to follow the major questions, dr..

326 "DHS CLOUD R C2370 ELA" (3178811392)
01:28:54.060 --> 01:29:14.060
That the president has now interpreted the statute and found authority in the statute that raises serious questions under West Virginia and the major questions doctrine. That whole message is going up to the Supreme Court on an expedited basis, probably here in the next month or two, that'll actually.

327 "DHS CLOUD R C2370 ELA" (3178811392)
01:29:14.060 --> 01:29:17.550
Be argued and briefed unlike a lot of these emergency docket.

328 "DHS CLOUD R C2370 ELA" (3178811392)
01:29:17.550 --> 01:29:37.550
Predictions? I don't know. It's gonna be an interesting one because of how much members of the court like justice Gorce have invested in in the notion of the major questions, Doctrin. This sure looks like a major question if we believe in the parameters of the major questions, Doctrin, as he has laid out. Major questions.

329 "DHS CLOUD R C2370 ELA" (3178811392)
01:29:37.550 --> 01:29:54.300
Doctrin, I'm being shut down already. Major questions, Doctrin, the notion there is when the executive branch discovers some authority in the statute that historically it has not called upon before and it has not interpreted that way.

330 "DHS CLOUD R C2370 ELA" (3178811392)
01:29:54.300 --> 01:30:10.440
And which has significant political or economic importance, then the Supreme Court will pause and say, is there really clear authorization from Congress to exercise that kind of here to four undiscovered authority?

331 "DHS CLOUD R C2370 ELA" (3178811392)
01:30:10.440 --> 01:30:28.530
Well, NO president in the 50 year history of IEPA has ever imposed tariffs under that statute. It's never been the the source of of executive imposition of of tariffs. Does that have, does the imposition of tariffs have a significant political and economic impact?

332 "DHS CLOUD R C2370 ELA" (3178811392)
01:30:28.530 --> 01:30:45.810
I think obviously it does, and we get some help there because in filing the the papers with the Supreme court, solicitor General says the importance of this case can't be overstated. That suggests to be it's not a lot of economic importance. Feels like a major question to dr. in case to me. So I think it's gonna be a test case.

333 "DHS CLOUD R C2370 ELA" (3178811392)
01:30:45.810 --> 01:31:05.810
To see what whether this the the what's good for the goose is good for the gander on the major questions, dr.. So is this before the court now under the emergency doctrine? My understanding is NO or something else. My understanding, and correct me if I'm wrong, mike. This is not going up on the emergency dr.

334 "DHS CLOUD R C2370 ELA" (3178811392)
01:31:05.810 --> 01:31:22.479
Bucket, this is going up as an expedited granted tertiary to the lower courts. So there will actually be briefing, and there will actually be a rural argument. And presumably, there will actually be an appint. Other question.

335 "DHS CLOUD R C2370 ELA" (3178811392)
01:31:22.479 --> 01:31:33.708
Questions. Alright, thanks everybody. I'll see you next year to talk about the affordable Care Activity.