Unraveling the Legal Dramas: From Unprecedented Covid Shutdowns to Trump's Riveting Election Showdowns! | Jay Wexler (Author & Constitutional Law Prof.)

[00:00:00] I am so confused. I have never seen so many important national even world issues debated

[00:00:16] over their constitutional merit. Like the Constitution is like starting to be in the

[00:00:21] news like take the Texas border, Fed versus the past 24 years, 25 years, I'm thinking

[00:01:44] like Gore Bush, that election. invite cases which they can use to kind of rethink the law. So I can see how you can perceive that. Because I don't know if it's true or not, but I think it probably is true. Let's start with a very broad question. Like the Supreme Court in the Constitution didn't have the power

[00:03:00] to decide what was constitutional or not.

[00:03:02] Well, it's unclear.

[00:03:04] Yeah, right. I mean, until 1803,

[00:03:08] that wasn't clear, right? the statute that was arguably in violation of the Constitution, he read them to conflict with each other so that he could come up with a, you know, announce the power of judicial review. I don't think most people know that, but it's not at all clear when you look at the language of the constitutional provision about original jurisdiction and appellate jurisdiction, and then the statute, which purported to give the Supreme Court original jurisdiction, but

[00:04:24] not appellate jurisdiction, to do this thing, to order the delivery of an appointment of

[00:04:28] a judge. because of the separation of powers. How come it's the case that you can be in the executive branch and at least in this case, the judicial branch? Yeah, so for one thing, I don't think anybody cared about the issue in 1803, so nobody, I don't know,

[00:05:42] maybe I'm wrong, maybe some people did say,

[00:05:43] hey, you can't do both of these things,

[00:05:45] but I don't think it was particularly controversial

[00:05:47] at the time. or decided for some reason it wasn't as important. Maybe there's a story there. There probably is a story. I don't know it. But I've never heard, you know, I've never, I also don't know all the historical kind of scholarship about Marbury versus Madison and John Marshall. I've read some books and things about it, but I don't remember anybody, you know, being a big deal that he was doing both things at once. Maybe,

[00:07:03] and you know, maybe it's because at the time the Supreme first one is this Texas border thing. So, you know, Texas has this one area near a town called Eagles pass, I guess, where the, the Texas border patrol or the Texas national guard has put up razor wire on the wall and the Biden administration wants to take down the razor wire.

[00:08:23] And this has gone all the way up to the Supreme court ruled that the federal government does override the state in this case, but there was loopholes and so on. So it's still ongoing. Right. And that's a great question because it raises this issue about how constitutional provisions who even people teach constitutional law, you know, for 10 years or whatever might

[00:09:44] not even really thought of or paid attention to. But that could be incorrect as well. I'm not an originalist, so I don't know, you know, everything about why they put that in there. But it is, it's fascinating, right?

[00:11:00] So, and then if it were an invasion,

[00:11:03] then what effect would that have on the federal government's

[00:11:05] ability to go in and cut the wire, right? I think that's probably why the Supreme Court held the way it did, that this is a federal government, the states in a conflict over something that's really about federal law and the states can't get in the way of the feds to take care of the border. So it was just an illustration of this age-old or 200-year-old principle that Marshall announced.

[00:12:23] And does it specify in the Constitution that the federal government is in charge. Right. So the question is though, I guess there's Greg Abbott's question, which is, which you're addressing, which wasn't an invasion or not, in which case he could say the federal government's not acting how it should. So he needs to take over.

[00:13:40] And then there's, I guess, I guess, well. I'm not sure the state made the invasion argument in its briefs in that case, or if it was a later thing that Abbott was talking about that might make its way into the case later. I'm not sure about that. The court didn't say anything about it. Its decision was one of these orders without explanation. So it's unclear

[00:16:06] Back in 1800 or 1790 or whenever, the federal government sometimes couldn't muster an army fast enough to act and hence this clause.

[00:16:09] It was the real original reason for this clause.

[00:16:13] But it's interesting, can the federal government, like Texas is the main state, I guess California

[00:16:20] also that essentially protects the border.

[00:16:25] I guess it's an interesting question.

[00:16:26] Well, that's highly solicitous

[00:17:41] of state's rights.

[00:17:42] And I, you know, I understand that,

[00:17:45] but I think on's kind of the whole reason why marijuana can be legal at the state level while it's not legal at the federal level because the federal government can't order states to make it illegal because that would violate the 10th Amendment. That's the sort of the 10th Amendment's quiet power that we, I think most people don't recognize.

[00:19:03] What does that mean actually?

[00:19:04] Like, does that mean the federal murder law?

[00:20:22] Like because there was commerce done in New Jersey in order to kill someone in New York.

[00:20:26] Right. Yeah. Now I'd have to look at the federal murder law, but that this then, kind of on the other side of things is Colorado. So Colorado, there's a couple of interesting issues here. First off, Colorado is saying that they don't want to put Trump on the ballot because it says in the constitution that nobody who has been involved in an insurrection can go on

[00:21:44] the ballot.

[00:21:45] And this was in of, court watchers are really interested to see what the questions were going to be because there are a lot of different ways the court could go on it. I think almost everybody thinks the court will say that Colorado can't do what it wanted to do.

[00:23:04] But there are all sorts of reasons why the court asked, asked the Doraog, you know, why should the state of Colorado be able to decide who becomes president or not? And I think everybody has that feeling that

[00:24:20] this is not something that each state, one by one, can do entering the capital without permission, or like what was the law that most people broke? Not really sure. But not the insurrection law. Right. There is a law that prohibits insurrection. It's a federal law. And as I understand it, none of the January six people have been indicted under it, though

[00:25:41] it's been used maybe once or know, in your campaign funds. So if that's a state power, couldn't they decide? I mean, they certainly decide a lot of candidates don't go on the ballot. Why do they have to put a Republican or Democrat candidate on the ballot? Yeah, so I don't know that area a lot that well. What I do know, though, Constitution that the states can't do. And that case came up a bunch during this oral argument. So I don't think the state's going to prevail on that strategy. And I'm just trying to think now from the state's point of view, the state doesn't allow everybody who's running for president on the ballot. Well, because there's thousands of people officially running. So you have to figure out, like RFK Jr. can't get on the ballot in many states. I don't know if he's going to make 50% of the states or not, but the two-party system has never been specified in the constitution, but that seems kind of encased in state law,

[00:29:44] state by state. of the ballot to somebody who was going to be 35 at the time of the election maybe, but it wasn't gonna be 35 at the time of the election, but would have been 35 at the time that they would take office of president. And the argument was that they could not keep somebody off the ballot in that situation.

[00:31:00] This sounds like, you know, I'm wary of getting into

[00:31:05] stuff that I know very little about, case or just sort of the general principles that come, I think it's unclear what the source of the this ruling is going to be, whether it's kind of a general, maybe it will draw on the 10th Amendment, I wouldn't be, you know, who knows. But it just, it seems clear what the court was concerned about

[00:32:21] and what it doesn't want to happen. And then now it's going to figure out kind of a way

[00:33:25] Like I had a business on the streets of Manhattan and New York City, and it was of course shut down by COVID.

[00:33:28] And did that not deprive me of liberty and property with, you know, nor shall private

[00:33:36] property be taken for public use, again, without due process of law and without just compensation.

[00:33:42] So this due process of law part is what bothers me with the COVID shutdowns. a business couldn't hire, use child labor, for example. That might not be the right case to use, but like wage hour laws, those kinds of things, the court struck lots of those laws down in this period. And that period was known as the Lochner era, because there was a case, a famous case about the hours

[00:35:02] that bakers could work.

[00:35:03] And the Supreme Court said that those regulations

[00:35:06] were unconstitutional, One could disagree with that, of course. But that's what the court has said and has never sort of revived this old period for the Lochner era. So there's really little kinds of little in the due process clause that businesses have been able to rely on.

[00:36:21] That may be not a good thing in all circumstances of businesses. And if the court didn't think that they were the same, they treated religion worse than other

[00:37:41] sorts of businesses than the court which had struck are yelling and singing, or are they more like the supermarkets where people are just sort of gathering and doing, you know, their daily business? And Justice Sotomayor said, look, they're treated the same way as theaters and sporting events churches are. And that makes sense because

[00:39:02] people are singing and, you know, so they have keep supermarkets open, you got to keep the churches open to the same extent. That's kind of out next month called The Civil War. And what's, so this is gonna be a question that people are gonna have. What makes it, is it possible for a state to secede legally? Now Abraham Lincoln would say no, and probably correctly for him at that time, he did the right thing.

[00:41:41] But just what's the Constitution say about it?

[00:41:43] I don't think the Constitution,

[00:41:45] the text of the view is that, but that secession is kind of contrary to the principles of the constitution, but I'm sure there are also well-thought-out arguments on the other side.

[00:43:02] Right, as you said, we have the Civil War precedent, but have we seen anything since?

[00:43:05] You think we will?

[00:43:08] That'd be kind of interesting. or presidential behavior or whatever it is, is not contemplated. So nobody thinks about what the Constitution might say about it. And then someone makes it a decision that's outside of the norm, and then everybody's like, oh my God, what does this thing say about it? And it's got all these little pieces in there, which lay dormant for,

[00:45:23] I know that there's no process in the Constitution for it. Yeah, I don't think the Constitution mentions secession.

[00:45:27] It just mentions, you know, again,

[00:45:29] probably in the context of the Civil War,

[00:45:31] the 14th Amendment, it refers to insurrectionists are bad,

[00:45:35] but it doesn't really define what insurrection is

[00:45:38] and it doesn't equate that insurrection with secession.

[00:45:41] Like there's so many, you know, invasion, insurrection,

[00:46:49] freedom of free exercise of religion, these sort of ambiguous phrases, with the idea that they will be filled up and given content by the generations. But that also, you know, some there, there's, there's definitely a view among some of the justices and a lot of people who study the Constitution that that's not lot of questions there. You know, and one issue that's come up a lot recently, and I shouldn't say recently, it's all the time, basically, but it's struck home in various ways recently is freedom of speech, because you see on all these college campuses, you know,

[00:48:21] people marching and saying, you example, Trump's January 6th speech. Was that an incitement or not an incitement? People have different views about that because it has to have this immediacy for has to be, the government would have to prove that you, I think it's sort of a combination that you really did want to kill somebody and that it was understood by the listener as being, as posing like a real, a reasonable fear that you're going to do it. Like it's sort of a combination

[00:51:00] of kind of an objective standard and a subjective standard. For example, Congress hasn't declared war since World War II, right? So the president has the commander chief power, the Congress has the declare war power.

[00:52:21] Those are supposed to be complimentary,

[00:52:22] but Congress never declares war.

[00:52:25] And then the question is,

[00:52:26] does the president that the Congress gets. Whereas the executive power in Article II, it says the executive power is vested in a president. It doesn't say the executive power is here in granted, rather it says the executive power.

[00:53:41] So the idea, and this for not sort of pushing back, but there is a textual hook in the Constitution for whatever that's worth that would signal that the president has more powers than just what's listed in the document. Okay.

[00:55:00] That explains a lot then about, like what's the deal with executive orders?

[00:55:04] Like when a president makes an executive order, is that law?

[00:55:07] Yeah. And so when a president, you know, issues of executive order tells like the executive branch to do, you know, consider small business considerations, whenever making a rule, the president's just using their kind of their power to run the executive branch to tell the agencies under the president's control, you got to do this. And I'm the head of the executive

[00:56:22] branch. I'm telling you should do this. Now there are some there once in a while there'll be a actually issues, memoranda and decisions of law, most of which are, well, many of which are publicly available on the website that you can look at and read, not all are. But in which the Justice Department, you know, tries to explain why the president has this power.

[00:57:41] Of course, you know, they're biased, right?

[00:57:44] They work for the president.

[00:57:45] So they tend to be pro-presidential power documents, war there for like 20 years. Yeah. Right. And there are many other examples also, right? And I mean, I think the I and there may be specific rationales that apply to Afghanistan, but not Kosovo or whatever. But but I mean, generally, the idea is that if that the president has this sort of inherent power to protect the country through military, through there,

[00:59:04] through the president's commander in chief, they could cut off the money for the military effort. Of course, that, and I think Congress has threatened that on occasion and it's not politically,

[01:00:24] has political problems because you have troops already in the field.

[01:00:25] And so what does that cutting off of money mean for that,

[01:01:21] And he said something very interesting. He said, no, he doesn't like it because he has old parents in China and he basically

[01:01:27] likes the status quo because old people have a harder time with change.

[01:01:31] And as I get older now, I understand what he means.

[01:01:34] Me too.

[01:01:35] For good or for bad, I really don't want a civil war, as exciting as it might sound.

[01:01:40] And so I get concerned about all of for work it was a great it's not really high up right yeah right after freedom of speech of the right to bear arms is like you cannot have what soldiers forced their way into your house and live there and and like it's worked really well right so some people think it's a silly