Leah, Kate, and Melissa are joined this week by Elie Mystal, justice correspondent for The Nation, whose new book is Bad Law: Ten Popular Laws That Are Ruining America. They talk about what rotten laws should be done away with while touching on the latest news, including the detention of Mahmoud Khalil and the dismantling of the Department of Education.

Hosts’ favorite things this week:

• Melissa: The Trouble of Color: An American Family Memoir by Martha Jones; Paradise (Hulu)

• Leah: Bad Law by Elie Mystal; The Bee Sting by Paul Murray; Martyr! by Kaveh Akbar; Corruption & the Maximalist Theory of Presidential Power by Bob Bauer (Executive Functions); Five Questions about The Khalil Case by Steve Vladeck (One First)

• Kate: Character Limit: How Elon Musk Destroyed Twitter by Kate Conger and Ryan Mac; Interview with Lindsay Nash on Mahmoud Khalil by Isaac Chotiner (New Yorker)

TRANSCRIPT

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Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when a argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Melissa Murray Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Melissa Murray.

Leah Litman I’m Leah Litman.

Kate Shaw And I’m Kate Shaw. And we have a jam-packed episode for you today featuring a great interview with one of our absolute favorite repeat guests. Friend of the pod, Elie Mystal, is back to discuss his new book, Bad Law, 10 Popular Laws That Are Ruining America.

Leah Litman And in the course of discussing the book, we’re also going to be covering breaking news, including the attempted deportation of lawful permanent residents for expressing views with which the administration disagrees. Other breaking article two news from our favorite move fast and break the constitution doge bros, including the destruction of the Department of Education. The new federal regulations for federal contractors apparently make America great again, requires empowering contractors to maintain segregated workplaces. We’ll also cover some cert grants that you should be aware of, and we’ll end on a hopeful note. One of the great things about Elie’s book is that it proposes some concrete solutions to many of the problems we are witnessing now, which is part of why we’re excited to talk to him and to link current events to his book.

Melissa Murray That was quite a preview, Leah. I don’t even know where to start. Let’s just start by welcoming our favorite repeat guest, friend of the pod, maybe best friend of the pod, BFF of the pod. He’s also a columnist for The Nation and a New York Times bestselling author. So please join us in giving a warm, Strict Scrutiny Welcome to Elie Mystal.

Elie Mystal Hello professors, how is fascism treating you today?

Leah Litman As fascism does, I guess.

Kate Shaw It’s rough out there. Yup

Elie Mystal I’m stocking up on cigarettes because I’m gonna have something to trade when they come get me. That’s for sure.

Melissa Murray Yeah. Well, listeners, Elie has a new book out and it’s not called fascism or how to trade cigarettes for good treatment while in the gulag. It is instead called bad law, 10 popular laws that are ruining America. And I’m not going to lie. At first, I read this and I thought the title was bad law, 10 unpopular lawmakers who are ruining America. And I immediately thought 10 seems kind of low for this administration and Congress and the Supreme Court. But then I put my readers on because I’m an older person and I was like, oh, okay, bad laws, 10 popular laws that are ruining America. And it all seemed to make more sense. But given that very provocative title, we decided that we had no other choice but to bring Elie into the studio to talk about his latest work post-haste. So let’s get to it, Elie.

Elie Mystal Thank you so much for having me and for doing this. Yeah, but Professor Murray, you kind of get at the problem with the book, right? There’s a scoping issue, right? There are lots of laws, lots of them are terrible. How do you pick just 10? And so my way of scoping the book was, well, what law can we just be rid of, right? I’m not talking about reform. I’m not talking about massaging it. I’m not talking about like re-triangulating the forces. I’m talking about just like take the white out. get rid of the law and move forward and the country is better. So I tried to focus on laws that are not the 10 worst laws I can think of, but the 10 laws that I could research that we could just be rid of and things would kind of immediately the next day be a little bit better for most people.

Leah Litman It’s almost like if a party needed a legislative agenda, you kind of proposed one for them.

Elie Mystal You know, just saying, if you want it to run on actual laws, if you want it to run on actual policies, if you want it to do something other than orange man is very bad. Or holding up paddles. If you want it to.

Leah Litman Or just stay out of sight and hope that all the bad will redound to the detriment of the guy in office. Those are, you know, approaches, those are theories of governance, but they’re not as good as yours, Elie.

Elie Mystal The point is there are things that we can do. The point is, and you guys know this so well, our country looks the way it does on purpose, right? It’s not an accident, it’s not an act of God. These things are not inevitable. People die in the streets from guns because we allow the guns to be on the streets. We could not, we could do things differently. And so the book is really about 10 things that, again, we could just do differently today and things would be better tomorrow.

Leah Litman So we actually want to ask you to drill down on some of those laws. But I kind of wanted to ask a sort of framing question first. And this is based on something you said in the introduction. You have this kind of provocative claim about how we should all think about laws that were passed before 1965 and the Voting Rights Act. And again, you’re not saying that all laws today should be struck down. You’re not really even talking about court challenges to these laws. But will you just articulate that claim and then we’ll ask you to talk about some of the specific laws you want to see gone?

Elie Mystal Yeah, so before the 1965 Voting Rights Act, which is what finally, for the first time in American history, made the 15th Amendment real, made the idea that you could not be barred from voting because of your race, color, or creed. The Voting Rights Act makes that real. It extends the franchise, not just to black people, but also specifically to black women who really had no right to vote before the 1965 Voting Rights Act. So. Before that act, before 1965, America is functionally an apartheid state. It’s functionally a white supremacist apartheid state where not everybody living here gets to participate in the choosing of laws. Therefore, every law passed before 1965 is inherently suspect. Every law passed before 1965 is inherently a hangover white apartheid law. So I don’t respect any of them, right? Now, I’m not saying, as you pointed out, Professor Shaw, they’re not all bad, but surely if there’s a good law that we passed before 1965, we could pass it again, this time with everybody getting a vote and a say and a representative and whatever. As my favorite fictional character, Kermit the Frog, says, we need more dogs and cats and bears and chickens and things, right? So if you have a good law, like for instance, the 1964 Civil Rights Act, surely we could pass it again. But just saying like, oh, we passed this law in 1798, I’ll give a damn, I’ll give a damn what only white bourgeoisie men said in 1798. I don’t care.

Leah Litman Elie, I have to say, what you just said sounded a rare note of optimism, which is you think we would currently pass the 1964 Civil Rights Act. And I look at Congress and the White House, and I think.

Elie Mystal Oh, oh, Professor Lipman, I said-

Melissa Murray I’m looking at the show note, and I’m thinking, would they? Stay tuned. There’s more.

Elie Mystal I said could not can

Melissa Murray Okay, that’s fair, that’s fair.

Leah Litman Um…

Elie Mystal There is a chance that we could pass it again. I’m not saying that we necessarily would not in this current environment. Although I do think, you know, let’s not to get beyond the book so quickly. But does anybody sitting here honestly think that the 1964 Civil Rights Act is going to survive a direct challenge to it in front of this particular Supreme Court? Because that is absolutely where we’re heading with all of this anti-DEI, all this Doge bullcrap. Because as I keep saying, the fight here, at least for me, is not for DEI. I don’t care about DEI. DEI was something white folks invented to make them follow the 14th Amendment and the Civil Rights Act. So if you want to get rid of your white policy of DEI, go right ahead. How are you to follow the Civil Rights Act. How are you going to provide equal employment opportunity? And when that case gets in front of the Supreme Court, that is, arguing that these anti-DEI policies violate the Civil Rights Act, I’m not sure the Civil Rights Act is gonna survive the six conservatives on the Supreme Court. Certainly it’s not gonna survive Clarence Thomas, Sam Alito, and Brett Kavanaugh, or Neil Gorsuch. Whether or not Roberts thinks the 1965-64 Civil Rights Act is good, or whether he thinks it needs to go to the way of the dodo. like he thinks the 1965 Voting Rights Act needs to go, that’s still an open question.

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Melissa Murray So Elie, I will note that many of the bad laws that you chronicle in this book are actually enacted after the Voting Rights Act. So these are relatively recent laws. Many of them passed with bipartisan support. So they’re not presumptively sus, like some of the other laws that you have mentioned. Can you go through some of these bad laws quickly, like the ones that you selected here, and maybe tell us why they’re so terrible?

Elie Mystal Sure, so you wanted me to go through all ten?

Melissa Murray Yeah.

Elie Mystal More briefly, briefly. All voting registration laws are, should be repealed. Like there’s, we’re the only country that does it this way. Other advanced democracies, they have automatic voter registration for anybody who is eligible to vote. Our extra step of voter registration is just stupid. We should be done away with it. That’s chapter one. Are the penalties for a legal reentry in the immigration context? that is a literal Nazi policy. And when I say Nazi policy, I mean the American the Nazis brought in to tell them how to do things is the guy who put forward this policy illegally reentry is immoral and wrong. It should be done away with the airline deregulation act is what gave away the skies and most of our federal government to corporate oligarchs. think that should be done away with. The Armed Career Criminals Act, everybody likes to talk about-.

Melissa Murray No, no, no, Leah is literally melting. That’s her favorite law ever.

Leah Litman I’m good, I’m good.

Kate Shaw She’s very happy repealing ACCA.

Melissa Murray But what will we talk about, Leah? If we don’t have ACCA, what will you have to get mad about? Oh, wait. Oh, wait.

Elie Mystal Everybody talks about the 1994 crime bill. The ACCA is what started it all. That should be gone. Obviously, I think the PLCAA, the Protect Lawful Commerce and Arms Act, the giant liability shield for gun manufacturers, that should be gone. Now getting into some state issue laws, I think our precepts and concepts around felony murder is one of the most grotesque aspects of criminal law. We are, again, the only Commonwealth nation that still has it. Canada got rid of it in the 90s. Ireland and England, they got rid of it in the 50s. We are behind the times on felony murder. That should be gone. Stand your ground. One of the most racist laws we have evidence for, provably racist laws that we have evidence for, That should be gone All the don’t say gay, don’t say this, book ban, all of Florida should just have its entire legislative code just X’d out with a big red marker. All of that is bad, but specifically, don’t say gay, that should be gone. The Hyde Amendment, the idea that the federal government cannot use funds to provide abortion services. It’s the only law we have in this country where there is something that you can legally do. get an abortion. But the government is not allowed to legally assist you in doing it. That’s stupid and wrong. And the Democrats’ refusal to get rid of the Hyde Amendment is one of the reasons why the abortion fight has been lost in this country. And then finally, the Religious Freedom Reformation Act, the thing that allows Hobby Lobby to say, like, I’m not going to give you contraception, because my God wants you to buy yarn and clay, but not have birth control. That’s ridiculous. And the RFRA should also be gone. Those are the 10, I think.

Leah Litman Those are the 10. So, well, that was a good 10. I’m slightly worried that on the current courts, 10 would be the Voting Rights Act of 1965. But we want to go deep on the ones you are proposing to do away with. And as we mentioned, at the top, current events kind of underscore the pressing nature of some of the case you’re making against these laws. So. As listeners likely know, in the last week, the administration recently detained Mahmoud Khalil and now is trying to remove him from the United States. Khalil’s a graduate of Columbia, was one of the organizers of the student protests against Israel’s military campaign in Gaza. Khalil is a lawful permanent resident married to a citizen who was eight months pregnant. And the Trump administration arrested Khalil and announced they plan to deport him. He was arrested in New York at his Columbia apartment. He later disappeared for a period of time. when his lawyer and family did not know where he was. And he is now being detained at the Genna Detention Facility in Louisiana. So his lawyers have challenged his detention in the Southern District of New York and the judge issued a modest order halting the immediate removal from the United States while courts are looking into this. And apparently as all of this was happening, you know, Khalil was removed to the Louisiana facility which is located in the Fifth Circuit, curious and curious.

Melissa Murray To be very clear, listeners, Donald Trump personally took credit for Khalil’s arrest and attempted deportation on True Social. And Secretary of State Marco Rubio also was invoked. Marco Rubio cited a provision of the immigration law that allows the Secretary of State to determine that the presence of non-citizens has adverse effects on US foreign policy and that these individuals can then be deported on that basis. As Leah just mentioned, Haleel has challenged his detention and removal, and he initially filed that challenge in the Southern District of New York, where he was initially arrested. The government is fighting to get the case dismissed. And as we know, Haleel has been relocated to the GINA facility in Louisiana, which again, would mean that if this is dismissed and Haleel had to refile, he would have to refile in Louisiana. And if there was a challenge that was appealed, that appeal would then go to the Fifth Circuit. So that is why Leah finds this curiouser and curiouser. Elie, I don’t know what you think about this, but I found this absolutely chilling this week. We are six weeks into a four year sentence and they’re basically black bagging people on the streets.

Elie Mystal Yeah, look, I wrote about this in The Nation this week. This is what fascism looks like. This is exactly what it looks like. It’s not fascism that’s coming around the corner. It is right here because when you can be ripped out of your Manhattan apartment and sent to the swamp in Louisiana without committing a crime. simply because you organized a protest, simply because of your speech rights, and nobody comes to save you, that is what fascism looks like, that is what it feels like, and it supposed to have not just a chilling effect. uh, on the poor life of Mr. Khalil and his eight month pregnant wife. It’s supposed to have a chilling effect on everybody else. It’s the government saying, no matter who you are, no matter where you are, we can come get you. And there’s nothing you can do about it. So that is where we are with the situation. Khalil has good arguments, but, you know, talking about my book again, this is why I’m saying that 1921 Immigration and Nationality Act should be repealed, must be repealed, because the particular legal hook that Rubio is using, that comes from the 1921 Immigration Nationality Act, right? This idea that the Secretary of State, on his say-so… with no evidence, with no hearing, with no proof, can just say, ah, you’re against the interest of the foreign policies of the world, and remove, again, a legal permanent resident, a green card holder, and can just get rid of that entire process on his whim. That is not just a failure of morality. It’s not just a failure of politics. It is a deep failure of law that we have a law like this on the books.

Leah Litman Yeah, and just to unpack exactly like the provision that Rubio is relying on that’s part of the INA that Elie recommends repealing. It is this provision that allows the Secretary of State to say the presence of a non-citizen has adverse effects on the United States foreign policy and therefore can be removed on that basis. And it purports to give extensive amounts of deference to the Secretary of State in making that determination, which is part of why it’s so scary that Rubio is making this claim that, again, organizing a student protest. somehow is affecting our foreign policy. Like really, does France fucking care like about the Columbia protests? I don’t think so. And actually Donald Trump’s sister, Judge Mary Ann Trump-Berry invalidated that particular provision. As a judge, her decision was later reversed by then Judge Alito on the third circuit, but the point is like these laws are on the books and this administration is basically providing us a crash course in identifying various laws that are susceptible to gross abuse that we need to get rid of.

Elie Mystal Can I ask you guys a question? Yeah. So part of the issue here with Khalil is whether or not he has First Amendment protections, right? There is a 1999 case that I wrote about, Reno v. Arab-American Anti-Discrimination League, where Scalia writes an 8 to 1 opinion that protections, speech that would ordinarily be protected by the First Amendment can be the basis for removal for undocumented immigrants. Now that decision doesn’t extend to. documented immigrants like Khalil, but what do you guys think? Do you think that the Supreme Court will extend that precedent to documented immigrants like Khalil when they get a chance to in a few Cheers.

Leah Litman I mean, as a predictive matter, I don’t really know. My guess is there are at least four votes to extend those protections to particularly lawful permanent residents. As to whether there are five, I don’t know. But as a matter of precedent, I think it is very clear that lawful permanent residents have constitutional protections that individuals without documentation lack. So for example, you cannot just simply revoke an individual’s lawful permanent residence status. Like that has to go through in immigration. court and then is susceptible to review in federal court. They possess due process rights that other individuals with lesser status lack. And this is clear in the court’s cases to the point where I think it is just grossly inaccurate to say individuals like Khalil do not have First Amendment rights or other analogous constitutional rights. Now, again, I think part of the problem is this statute purports to give the secretary broad authority to determine what constitutes a threat. And my guess is the administration is going to try all sorts of maneuvers in order to characterize what exactly the threat is and not precisely link it to the content of Khalil’s speech. And so that’s partially how they are going to walk around or try to walk around the First Amendment question. But I think, again, that just underscores the solution here is to get this law off the books. Going to the case against the INA, you kind of alluded to this already in talking about the origins of the INA. Could you expand a little bit more on your case against the INA and some of its origins?

Elie Mystal Yeah, so I like to start from 30,000 feet. The kind of idea motivating the INA is that we should be an exclusionary country, right? That there is not enough space, there’s not enough resources for everybody. And so we need to decide who should be allowed in and who shouldn’t be allowed in, right?

Melissa Murray This is eugenics thinking.

Elie Mystal Right? Well, just at a 30,000 foot level, it’s wrong. It’s a giant country with more than enough space for everybody. And so that kind of premise is wrong. But then, yes, exactly right, Professor Murray. The way they then decided in the INA to figure out who should be allowed in and who should be excluded was based on eugenics. was based on literal studies and congressional testimonies that said there were certain races that were high quality and certain races more prone to degeneracy and all of this literal eugenics and Nazi language is what informed the INA and thus the exclusionary practices that, for lack of a better word, focus on the global south, right? Focus on browner people being thought of as degenerate races, and thus unable to participate in the American experience at the same level as white Europeans. And I just want people to understand, again, I talk about this in the book, I am not being hyperbolic. This is what these people said in real time when supporting, developing, and voting. for this law. There was an entire court case out of the Ninth Circuit where they tried to get a portion of the INA revoked because of this racist language and backstory. And the judge was basically like the Ninth Circuit, right? Which is not, you know, known for its shrinking violets, right? The Ninth Circuit was like, yeah, if we started getting rid of every law just because they were racist, I mean, we’d basically have no laws.

Melissa Murray You know, you know who really hates eugenics and selected laws? Clarence. Yeah, our boy Clarence Thomas really cannot stand eugenics, especially when it’s being practiced by people like, I don’t know, Margaret Sanger, the mother of the modern birth control movement. And he has conflated the eugenics movement and the birth control movement to the rise of abortion in the United States. It’s not the same history, but don’t let that stop you. And he’s basically suggested that abortion is a eugenics tool that can now be used in this century to essentially deracinate races that we find problematic or groups of people that we find problematic to a, quote unquote, eugenic order. And I guess with that in mind, he’s going to be really against the Immigration and Nationality Act and its eugenic origins. He’s a model for existence. Thank you for your attention.

Leah Litman And he’s the model for consistency, and he, I think, is going to be the first clear vote against the INA, as Elie outlines.

Melissa Murray We’ll ask the first question, for sure.

Leah Litman That’s right. So, Elie, you both make a broad case, I think, against the kind of core precepts of the INA and against illegal reentry, that specific prohibition. I think, as we all learned this last week, there are probably tons of chilling specific provisions in the INA that we aren’t even aware of. I have to say, I know immigration lawyers who, when Rubio invoked this authority as justification for the Khalil detention, they were like, I literally didn’t know that was a statutory provision. It’s so rarely invoked. Again, as Leah mentioned, the one case that anyone has found on it, a district court finds it unconstitutional, as our discussion, I think, makes clear. It seems very hard to square with core First Amendment principles, but we will see what the Supreme Court makes of it. Maybe they are reading.

Melissa Murray Maybe they are reading, I think that’s what we’re learning, they actually can read.

Leah Litman The people inside the Trump administration looking for these authorities? Yeah, maybe, unfortunately.

Elie Mystal Well, I mean, I always go back to Jonathan Mitchell, right? Like the conservatives have people that are scouring, scouring the code, scouring every old piece of statutory code to find any way to take this country back. This is what they do for a living. And as you say, Professor Shaw, like I was not in any way aware of this particular, and again, I wrote a book, I wrote a whole chapter of a book on this. Well, I was not aware of this provision until Rubio invoked it.

Leah Litman Shifting topics, given other current events, we actually wanted to talk to you about the chapter on neoliberalism, kind of generally, but airline traffic in particular. And we think that the chapter really speaks to the current moment in that what we are seeing unfold right now is in some ways the peak pathologies of neoliberalism, right, urges to privatize all manner of public service and here, you know, to pillage along with privatizing it? This is essentially the core of the move fast, break things approach that Elon Musk has cast across government. They’re coming for public education, as well as many, many other services, things like social security, Medicare. All of that is, I think, on the DOGE chopping block. So I wanted to ask you to talk a little bit about what your chapter has to say about the kind of episode involving airline deregulation.

Elie Mystal Yeah, so, Professor Shaw, so just to bring you behind the curtain a little bit, right? This is the first chapter that I wrote for the book. And as I start with every bit of my writing, I kind of look at an issue, look at some badness and think, okay, how did Republicans screw this? That’s always my first kind of assumption, like, you know, where is the evil Republican, you know, hiding behind the curtain, right? And so for this chapter, I literally came up with the idea after being delayed on a flight. And I’m like, how did Robert Bork do this, right? Like, how did he get this law passed, right? And as I was doing the research, yeah, it’s a Robert Bork idea, but then all of these liberal people start popping up in the story, right? Ralph Nader is involved and Stephen Breyer shows up and the liberal lion, Ted Kennedy, how did this happen? How did, and so the chapter is basically about how Bork’s ridiculous, radical, extremist, and untested deregulation idea took over the Democratic Party, right? And it kind of completely changed my framework both for this book and truly for how I understand neoliberalism. I always just call myself a recovering neoliberal because you go back to like 1996 and I’m 18 and I’m voting for the first time. I’m voting for Bill Clinton, baby. I’m voting for triangulation. I’m voting for all that stuff, right? And like my personal journey to realize that I was probably wrong, should have voted for Dennis Kostinich, you know, my personal journey there is also kind of captured in this chapter about airline deregulation. The other big influence I had in this chapter is that as I was researching at Professor Ganesh Siddaraman. came out with a wonderful book called Why Flying is Miserable, right? And he really went into the pre-1978 regulatory environment of the airline industry. And I was like, yeah, that sounds awesome. Why didn’t it work? And that’s how we get to this chapter, where we see in regulatory industry that have been captured, which happens a lot, where a big government industry was captured by the rich people it was supposed to regulate. and it turned into a closed market cartel. That’s Stephen Breyer’s words of what the pre-regulatory environment was. And then we see Bork kind of pushing this kind of, you know, laissez-faire deregulatory environment. And then eventually we see Kennedy who is desperate to run for president, right? Like this is like for your listeners who are younger than us, like Ted Kennedy was supposed to be president. Except he killed a woman is the thing. See, he killed somebody. And so he couldn’t run for president in 1976 when he shoulda. And so he was all prepared to run against Carter in the primary in 1980. And he was looking for an issue to like distinguish himself from Carter. And to the shame of the entire party, deregulation was the issue that Kennedy picked. And we’ve been on almost a downward spiral since.

Melissa Murray Well, so it’s not just airlines that they’re trying to deregulate. We saw this week that now it’s also education and schools that are the subject of their deregulatory impulses. As listeners know, a few weeks ago, Linda McMahon, the former CEO of the World Wrestling Entertainment Group, WWE, the people that brought you The Pile Drive, The Screwdriver, and Hulk Hogan are now running. the Department of Education. And Donald Trump has very explicitly said that Linda McMahon’s charge as Secretary of Education is to essentially dismantle it and put herself out of a job. And they have wasted no time. The New York Times reports massive layoffs and firings at the DOE. Around 1,300 employees have been let go. It is about half the size it was at the beginning of the year, just six weeks earlier. and The DOE actually does a lot of things. It enforces federal laws with regard to education, like the IDEA, the Individuals with Disabilities in Education Act. It provides grants to localities and states for special education. What it does not do, and this I think is the really important part, it doesn’t regulate school curricula. It doesn’t prescribe curricula. It doesn’t certify teachers. States and localities still do that, despite what the Trump administration continues to push about the DOE and why it needs to be. Dismantled. Here’s my question. Why are they coming for education so hard? Why are they trying to make education essentially like the airline industry, where it’s going to be privatized, it’s going to be run by a cabal, and it’s going to be terrible?

Elie Mystal Two reasons, one, because education makes people smarter and smarter people are more liberal. That’s just a fact. Like, it’s not my fault. It’s not my fault that the Republican agenda appeals to the poorly educated, but it does. The more you learn, the more you know, the more you understand about multiple systems interacting intersectionally, the more likely you are to be a little bit more liberal. Because knowing things right now, the Democratic Party is the party of knowing things and the Republican Party is not. It wasn’t always the case. It wasn’t always that way, but it is that way now. And so Republicans kind of understand at a core kind of survival level that to get their agenda through, they need people to be stupid. right? That’s number one. Number two is the religious aspect, right? A lot of Republican voters are crazy fundamentalist Christian type people or at least, you know, the kind of people who don’t listen to what Jesus said, just use the cross to smash people over the head, which is not at all Christianity, but whatever, it’s their version of it, right? And they’ve always felt that public education has been hostile towards religious indoctrination, which it is because we live in a society. right, and that’s always been a problem for them. So in my book, like I discuss in the anti-Florida don’t say gay chapter, I point out to people that we used to have a place for hardcore religious conservatives who do not think that the public school is promoting the values of their family and their God. It was called homeschool. That’s what you do. But the conservatives have realized that instead of. teaching their religion to their own children on Sundays as God intended, they have to infect Monday through Friday. They have to evangelize their religious precepts to all children, including children with no religion, including children with different religions. And that’s why in a kind of securitas rebound way, Linda McMahon is now ruining the Department of Education and trying to ruin education for everyone.

Melissa Murray [AD]

Leah Litman I should say, I should be clear, Elie is hilarious. And one of my most favorite lines from the book is about conservatives demonization of schools in which you talk about how the most woke elementary school in the world is not sensitizing kids to LGBTQ issues by teaching math through the operation of adding partners with a double-ended dildo and I died. Okay, so not surprisingly, the book gives special attention to the Supreme Court’s role in upholding bad laws and further cultivating a crabbed and limited legal landscape for individual rights. You spent a lot of time discussing the Hyde Amendment. Could you explain what Hyde is and how the court has essentially. made it a fixture of both statutory and constitutional law. And sorry, one other plug that I just remembered, since you brought up Jonathan Mitchell, Elie refers to him as the fetus whisperer in the book. Lucifer’s like, you have to read this book. Everything is bleak and horrible. And this book just, I loved it. I loved it. Anyway, sorry.

Elie Mystal Thank you so much. So the Hyde Amendment was proposed in 1973 by Henry Hyde right after the court’s decision on Roe v. Wade. Henry Hyde was a Republican congressman from Illinois. He was also an adulterous hypocrite who was like, catering on a long-term affair and then was like, Bill Clinton shouldn’t have affairs. So that’s, you know, every accusation. is an admission with these people, and he proposed a budgetary writer that has been part of every single congressional, senatorial, budget passed since, which says that federal funds cannot be used to support abortions. Now, that could just mean that you can’t use Medicaid money to get an abortion. Which would itself, to my mind, be an unconstitutional violation of due process rights and First Amendment rights, right? But the Hyde Amendment has metastasized to be interpreted as stopping not just Medicaid funds from going to poor women who need abortions. It’s been understood to stop any federal funds or programming that would in any way provide or encourage the provision of an abortion throughout the country. And it’s become this real stop on the federal government doing anything. to protect abortion rights at the state level, even in a world where those abortion rights are being taken away or severely restricted post-Roe after Dobbs. It is one of the worst amendments ever. It is one of the worst amendments every single year because it has to be reauthorized every single year, and in a post-Dobbs environment, where states are going out of their way. to restrict abortion access and abortion rights. It is now, I believe, simply untenable because the federal government now must play a role in providing abortion services, especially in states where they’re otherwise outlawed.

Melissa Murray So this is a great point about the Supreme Court and its work in operationalizing the bad laws that the other branches are getting into. And it reminds me of, let me marry that point to the earlier point you made about the privatization of education. Like right now there is a case pending before the Supreme Court, St. Isidore’s, which is all about the question of whether there has to be public support for. religious charter schools. And that’s going to be a vehicle, I think, for the court to operationalize some of the impulses that we’re seeing in the dismantling of the DOE. So this isn’t just about abortion. It goes elsewhere. It also extends, I think, to the Second Amendment. So you spend a lot of time in this book taking down various laws that deal with gun rights. And you talk a lot about the court’s role. in cultivating a Second Amendment jurisprudence that really privileges the Second Amendment as a kind of uber individual right above all others. So can you unpack for us how the court’s interpretation of the Second Amendment has really facilitated a spate of really terrible gun laws in the United States?

Elie Mystal Yeah. So the courts, I have often argued that the court’s interpretation of the Second Amendment is wrong. It’s not even the court’s interpretation of the Second Amendment. It’s the NRA’s interpretation of the Second Amendment. And that only existed from like the 1970s, when there was like a big takeover in the NRA. This idea that the Second Amendment provides a right for gun ownership for personal self-defense. is found nowhere in the Constitution. The Constitution does not say personal self-defense in any phrase, right? If anything, the Constitution says, the Second Amendment says, well-regulated militia. And I argue that in 2008, Antonin Scalia read out well-regulated militia from the Second Amendment and added in. personal self-defense to the Second Amendment, so he took out a word that was there and he added in a word that wasn’t there and all the conservatives like clapped like seals or more likely shot their guns up into the air like Yosemite Sam. Yeehaw! Like that’s where we are in this country and it is disgusting and pathetic and so I’ve argued that if we’re not going to change the conservative interpretation of the Second Amendment, which I believe is wrong, then our only answer is to repeal the second amendment. And you know who agrees with me is John Paul Stevens. Justice Stevens literally in dissent in Heller was one of the centers in Heller. And afterwards, after he was off the court, Stevens wrote the second amendment needs to be repealed. If this is how their conservatives are going to treat it, then the entire amendment is trash. I mean, he didn’t use the word trash, and that’s a me word. but You get my point. Stevens was like, this has to be repealed if this is what the conservatives are gonna do with it.

Leah Litman And speaking of Melissa’s summary of Elie’s characterization of how the Second Amendment has taken this preeminent role in constitutional law, just another line from the book that I loved. Elie says, entire swaths of Americans consider the Constitution to be made above the Second Amendment plus a whole bunch of woke liberals to see us suggest.

Leah Litman I also like the term ammosexual, which I had not encountered, but I now know. So the Second Amendment and the court’s hypercharged conception of it forms the backdrop of some of the specific statutory discussion in the book, in particular of a law called PLACA, which might sound familiar to listeners because it was the law at issue in a case we discussed on a recent episode. It’s a case in which Mexico sued Smith & Wesson and some other gun manufacturers for, you know, Mexico alleges, essentially. making sure that guns would get to drug cartels south of the border. And in our discussion, we really focused on whether this exception applied such that Mexico could go forward. But we didn’t really stop and explain and break down this federal statute that confers enormous immunity on gun manufacturers and just truly how bananas the law is. And that was an oversight. But luckily, there’s a corrective, which is Elie has a whole chapter on the insanity that is PLCCA. Okay, I gotta ask a kind of Wrap up question for you, Elie, what can ordinary Americans do to blunt the force of the bad laws you write about and those you don’t have space to write about in order to improve our legal system and our lives?

Elie Mystal Yeah, so obviously, the first answer is vote, and I hate that being the first answer because it’s so like, vote harder, and I don’t want to talk, but people need to vote smarter. People need to vote, especially in the primaries, for politicians who are talking about these laws, right? So don’t vote for the politician who’s just like, we gotta do something about the guns. We gotta take your guns. Don’t vote, that guy doesn’t know what he’s talking about. Vote for the politician who’s like, we have to repeal Plackett. Like, because that’s a specific thing that can be done that kind of gets around some of the other larger culture war issues. There are solutions here. So one thing is vote smarter. But the second thing, because I don’t want to just just vote and then be fine. Like, we have to just be a more informed society. Because so many of these laws, again, these are popular laws. They were popular when they were passed. Because so much of our political discourse kind of goes to the headline and stops, doesn’t read the whole article, right? And then with the laws, it’s they read the protect American freedom job law, right? They don’t realize the freedom is to pick cotton and the jobs are unpaid, right? They never go to the rest of the statute. So we just have to be more informed when talking about our politics, click through to the article. Read the entire law, like become more informed because then you will see where some of these landmines are. I absolutely believe that if people understood how most of these laws worked, they wouldn’t have been popular when they passed. They just wouldn’t have been if people had actually drilled down and looked at what the law would actually do. So don’t get confused, don’t get intimidated by the legal ease, read the laws, read the commentary on the laws, and in real time as they are happening, and then make your voices heard. That would stop a lot of this.

Leah Litman And read and share Elie’s book because that’s part of changing the narrative behind these laws, right, and reducing their popularity and ability to influence the rest of our law too.

Elie Mystal I hope so.

Melissa Murray Elie, I think we’re going to have to leave it there. More people reading, digesting, reading your work and understanding how these bad laws are ruining our lives. The book is called Bad Law, 10 Popular Laws That Are Ruining America. The author is the indomitable Elie Mistal, strict scrutiny, super guest, super fan and BFF of the pod.

Elie Mystal Thank you guys so much, and I guess we’ll do it again in June once the really bad decisions start coming.

Kate Shaw That’s right.

Melissa Murray Time for some bad decisions.

Kate Shaw Thanks, Elie

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Melissa Murray That, as always, was bracing. So maybe let’s just end with a glimmer or two of hope. So as we noted in our last episode, the administration issued an executive order targeting Perkins Coie, the Seattle law firm that it’s done work for, among other people, Hillary Clinton. The EO stripped the firm’s lawyers of their security clearances and denied them access to federal buildings. It’s unclear if that prohibition also included a bar to federal court, which would have been insane and facially unlawful. Obviously, this was a move that was intended to deter other law firms from taking on clients and causes that do not align with the administration’s agenda, so again, very chilling. And we lamented the obey and advance posture that many of the nation’s law firms have taken with regard to Trump the sequel, which is why we were so heartened to learn that Williams and Connolly, the venerable D.C. law firm, is now representing Perkins to eat. Williams joined Arnold and Porter, which has co-counseled several groups on challenges to a number of the administration’s more lawless early actions. And we think that is amazing news. Law firms stepping up to defend other law firms because they are stepping up to defend the rule of law. Good on you.

Leah Litman In a world of law firms that are staying quiet, be a Williams and Connolly, at least with regards to this representation. And I feel the need to say that because another immigration law in the news episode that makes Elie’s book all the more urgent involves Supreme Court advocate Lisa Blatt, who is also at Williams and Connolly, who, according to reporting from Bloomberg, got the Department of Justice to drop a case against alleged child rapists. So as Bloomberg reports, quote. The Justice Department plans to drop a Biden-era lawsuit alleging sexual abuse by employees of a company that houses thousands of unaccompanied migrant children and has received billions of dollars in federal grants to operate the facilities. The decision follows a push by, among others, Lisa Blatt, who represents Southwest Key Programs to get the Trump Justice Department to dismiss the matter. Blatt said it could hobble the administration’s goal of cracking down on illegal immigration, end quote. We’re saying some nice things about some lawyers now at this part of the episode, and this was not one of those times. So getting back to the Perkins-Cooley executive order challenge, the complaint that Williams and Connolly filed was epic. It opens, in part, by saying that the order isn’t affront to the Constitution in our adversarial system of justice. Its plain purpose is to bully those who advocate points of view that the president perceives as adverse to the view.

Leah Litman Use of his administration. So we’re recording on Thursday afternoon. And yesterday, Wednesday, Judge Beryl Howell in the district of D.C. issued from the bench a temporary restraining order on sections one, three, and five of the executive order. And I think only those three because those three were the focus of the challenge. And as her oral ruling, I think, very eloquently explained, a personal vendetta is not a legitimate government motive? retaliatory animus here was clear as day. A number of people were in the courtroom providing dispatches and it just sounded as though she was absolutely ripshit is the technical legal term from the bench at the administration both the order and the defense of it she called it chilling among other things. So again this was an order from the bench but it sounded as though she had a written order close to ready to go so presumably that will issue shortly and I really look forward to reading it in its entirety.

Leah Litman Just on the judges being ripshit at the administration, just wanted to add in two other examples. So Judge Alsop told the administration he was getting mad and angry at them for their attempts to obfuscate and not actually provide the evidence that they were claiming existed. And then Judge Ana Reyes in the district of DC told the government lawyer that it was. Something like this is summarizing the quote. It’s generally a good idea to read your sources before you come to court. That’s a free practice tip. Yeah. Wow.

Melissa Murray I mean, Judge Alsop is a pretty even-tempered guy. He’s like, I’m really mad at you. I mean… like he’s coming for you. It’s over.

Leah Litman In one of the other personal favorite moments out of the Judge Reyes hearing, she was attempting to explain the veil of ignorance to the government lawyer who was just, anyway, sorry. Did it need to be explained? Thank you very much. Have a great week. Bye. Back to the positive lawyer, good lawyering developments. So there is other organizing happening. Associates at law firms are gathering signatures, urging their firms to stand up for the rule of law. And I know there were some other developments we wanted to highlight, too. Thank you for watching!

Melissa Murray Well, there was a very important law school development that broke after we recorded last week. So we’ve spoken on this podcast before about USA Dick Ed Martin, who is, in other terms, the interim and acting US attorney for the District of the District of Columbia. Well, USA Dick Ed Martin sent Georgetown Law Dean William Trainor a letter that led the New York Times’ David French to observe, quote, I’ve rarely read a more unconstitutional letter. True!

Kate Shaw It made me wonder what the rare, more unconstitutional letter was, because for me I’m prepared to say that was the most unconstitutional letter I’ve ever read. At the top or near the top.

Melissa Murray That’s a lot of wind up. So here’s what the USA Dix letter said It has come to my attention reliably that Georgetown Law School continues to teach and promote DEI This is unacceptable He then announced that he had launched an inquiry into the school and then issued the following threat quote No applicant for our fellows program our summer internship or employment in our office who is a student or affiliated with the law school or university that continues to teach and utilize DEI will be considered end quote. Do you remember that meme of Arthur the Ardvark clenching his fist like that’s all I can think of USA dick doing wrong.

Kate Shaw You can sort of see him doing that on the page. It’s true. And we want to get to Dean Treanor’s response, but first, actually, we wanted to situate this letter alongside something that happened in February, which was that the GSA, the General Services Administration, which operates federal buildings, it’s kind of like the landlord for the federal government, it also deals with federal contracts, issued a memo that instructs federal agencies to remove a certain long-standing boilerplate language from the contracts that the government enters into with federal contractors. And among the offensive contractual language. This wasn’t just remove your DEI language. No, among the language targeted for removal was language prohibiting contractors from operating segregated workplaces, including segregated restaurants or drinking fountains. Like that is where we are. Not you have to remove DEI language from your contracts. You actually have to allow contractors to bid. And I don’t know, maybe give them a bonus. on their bids if they maintain segregated facilities. It is stunning. It is stunning.

Melissa Murray I don’t think it’s a requirement to impose segregated facilities, but it’s just like if you have segregated facilities,.

Leah Litman  That’s cool.

Melissa Murray It’s good.

Leah Litman No biggie.

Kate Shaw So let’s give him credit for not requiring segregation.

Melissa Murray That would be apartheid. That would actually be apartheid.

Kate Shaw We’re just inching we haven’t actually jumped all the way there yet

Melissa Murray All of this to say that the attack on DEI is not about sort of woke orthodoxies being imposed by law school, it does seem to be like-.

Leah Litman Unless you mean, integration is a woke orthodoxy.

Melissa Murray That’s kind of what I’m saying. The woke orthodoxy to which they object seems to be just the general present. of people of color who are students as opposed to menial employees and that really you know gets their goat. Well you know what really gets Georgetown University Law Center Dean Dean Trainers goat? Unconstitutional letters. Exactly, unconstitutional letters some letters.

Leah Litman So he had a banger of a response that addressed USA Dick Martin as interim US attorney, which is just a fact, but one that Martin very conspicuously omitted from his own letter.

Melissa Murray Should we share with the dean our own moniker for Ed Martin? Yeah, maybe. It’s just an acronym.

Kate Shaw No, he’s a dignified guy. He’s a dignified guy, he’s not gonna call him US agent.

Leah Litman Free tip. But as for the substantive response, Dean Traynor wrote, quote, given the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear, as is the attack on the university’s mission as a Jesuit and Catholic institution. It continues, quote, as a Catholic and Jesuit institution, Georgetown University was founded on the principle that serious and sustained discourse among people of different faiths, cultures and beliefs. promotes intellectual, ethical, and spiritual understanding. For us at Georgetown, this principle is a moral and educational imperative. It is a principle that defines our mission as a Catholic and Jesuit institution.” End quote. Just wanted to-.

Melissa Murray I really feel like-like this was a love letter to Samuel Alito, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett like.

Leah Litman Look, he knows his audience, and this was just fantastically done in substance and tone. It was perfection. It reminded me of this moment from Judge Myrna Perez’s confirmation hearing. She’s a judge on the US Court of Appeals for the Second Circuit, where Tom Cotton, I believe, was screaming at her about her work on behalf of individuals who were incarcerated. And he’s like, do you think that someone who committed this really bad crime is redeemable? and she was like- I believe every child of God is redeemable and he just like had to shut the fuck up.

Leah Litman It was incredible. I don’t remember that moment, that sounds amazing. Yeah, kudos, it was a fantastic response. I do think that it will speak to the conservatives on the court and sort of in the broader culture in a way that, frankly, like a, you know, non-religiously affiliated law school, like might not be able to at least respond in this register. Like I think that Traynor has the ability to invoke the religious status of Georgetown, which is of course a religious institution. I just fear that Traynor wins this standoff, but it’s not clear to me that the dean of a secular law school necessarily is going to prevail in the same way. But as far as I know, Martin has been real quiet since Traynor responded.

Melissa Murray I think you’re right. Traynor has the advantage of a one-two First Amendment punch. There is the question of Georgetown status as a religious institution and the protections for religious institutions. But there’s also this broader question of academic freedom, which he mentions in the letter, and the university’s freedom to deliver its curricular program in the manner of its choosing, which the court has upheld in the past. And so that is something, I think, even secular institutions. should embrace as they face the onslaught of attacks from this administration, and it is coming.

Kate Shaw Yeah, absolutely. But yeah, I think it’s an important point. It is a First Amendment violation for the federal government to punish, because of the content of their speech, any institution of higher education, not just Georgetown. So I think that that cannot be said clearly enough or often enough.

Melissa Murray Leah, thank you for that call back to Senator cash crop. I appreciate it.

Leah Litman Anytime, anytime, girl.

Leah Litman Before we go, should we do our favorite things we read or watched in the last week?

Leah Litman Yeah, let’s do it.

Melissa Murray No executive orders on my list this week.

Leah Litman Nope, me either. So obviously, I have to say, Elie Mystal’s bad law, 10 popular laws that are ruining America, as the interview suggested, it’s hilarious. It’s educational. It’s incredible. It is going to be available at all major booksellers, including our favorite bookshop.org. It’s coming out March 25th, but you can preorder it now. Also, I was on spring break last week, and I read Beasting by Paul Murray. and Marder, Kate, on your recommendation. And I loved both of them. Oh, that’s great. I’m so glad. And then slightly more substantive, Bob Bauer’s post at Executive Functions, Corruption and the Maximalist Theory of Presidential Power, I found very illuminating. And Steve Vladick’s post on One First Street, Five Questions About the Khalil Case, I thought was very helpful in kind of crystallizing the many issues about what the administration is doing.

Leah Litman Okay, so I am finally reading the book Character Limit about Elon’s acquisition of Twitter. The authors are Kate Conger and Ryan Mack, both investigative reporters at the New York Times. I saw the book. I was sure it was going to be interesting, but I was like, I actually don’t need to know the details of Elon’s acquisition of Twitter. And now, unfortunately, I think I do. And it’s scary because it’s essentially what he’s doing to the federal government right now. And Twitter, like that episode didn’t end well. And I doubt we’re headed for a different outcome here if things proceed. on the current trajectory. OK, and the other thing I will mention is Isaac Chotner did an interview for The New Yorker with Cardozo’s Lindsay Nash, who co-runs the immigration justice clinic there, also about Khalil. And I thought it was just a really illuminating interview in terms of what the law says and where the kind of open questions are.

Melissa Murray So this week, I read Martha Jones, who is an historian at the Johns Hopkins University. She has a memoir out called The Trouble of Color, an American family memoir. And like all of Martha’s work, it is absolutely riveting and beautifully written, and in this sense, very, very personal about her family and their experience with the color line in the South and throughout the country. And she’s just fantastic. highly, highly recommend. In terms of television, I have just started Paradise, which is the Dan Fogelberg vehicle on Hulu starring Sterling K. Brown, and whoo, it’s a ride. And can I just say, I have met Sterling K. Brown before. When I was a law student, Sterling K. Brown, who had attended Stanford, was friends with someone I went to law school with, so. At one point, this guy’s friends from college showed up, and among them was Sterling K. Brown. And he was just like wandering around this guy’s apartment in gray sweatpants and a tank top. And I mentioned this because I read on Twitter recently, someone was just saying that Sterling K. Brown is the most swole guy who is muscular for no good reason because he never plays a role in which he actually has to be super cut up. He’s like always like. a gloyer for greeting card company or something, but he’s got like a 12 pack for no good reason. And so I thought that was actually hilarious and I was remembering he was cut up back then too.

Kate Shaw Oh, it was the same. I thought you were gonna say no, he was like really scrawny.

Melissa Murray No, no, he was super cut out back then.

Kate Shaw So maybe he just comes by it naturally.

Melissa Murray I mean, maybe, but he’s a great actor and this is a great vehicle for him.

Leah Litman So one other note before we go, which is tickets to Strict Scrutiny Live, the Bad Decisions Tour 2025, are on sale now. And this time I actually plan to be at our live shows because I have stopped riding my bike and therefore there is no risk of bike accidents. So join us, all three of us, at a theater near you as we brace ourselves for fresh hell the Supreme Court will unleash this year. We’ll dissect the opinions and analyze the cases that have the potential to reshape our daily lives. We have three great shows planned thus far. May 31st in Washington DC at Capitol Turnaround, June 12th in New York City at Sony Hall, and October 4th in Chicago at Athenaeum Center. So many of you have already bought tickets during the presale and tickets are going fast. So don’t miss out. Go to crooked.com slash events for more information. We can’t wait to see you all soon.

Leah Litman Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell, Michael Goldsmith is our associate producer, audio support from Kyle Seglin and Charlotte Landes, music by Eddie Cooper, production support from Madeleine Herringer, Katie Long, and Ari Schwartz, Matt DeGroot is our head of production, and thanks to our digital team, Ben Hethcote and Joe Matosky. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at Strict Scrutiny podcast. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you wanna help other people find the show, please rate and review us, it really helps.

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