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TRANSCRIPT

Jane Coaston: It’s Wednesday, April 9th, I’m Jane Coaston, and this is What a Day, the show that would like a direwolf puppy. Yes, I know that the de-extinct puppies are not actually direwolves, but greywolves that have had part of the genome changed to look like direwolves. And I do not care. Gimme that puppy. [music break] On today’s show, Elon Musk and President Donald Trump’s top trade advisor are fighting on the Internet like real masculine men. And a judge orders the White House to allow the Associated Press back in the building. But let’s start with the courts and the United States Supreme Court. Over the last few days, the justices handed the Trump administration a few major wins, but in a weird, specific way, kind of a you can’t put a knife on that side of your plate at the dinner table, but your dinner table is on the Titanic thing. On Monday, Chief Justice John Roberts paused a deadline set by a lower court to return a Salvadoran man who had been wrongly deported back to his home country. And the Supreme Court ruled that the White House could resume deportations of alleged members of the Venezuelan gang, Tren de Aragua, to El Salvador under the centuries-old Alien Enemies Act. But the actual ruling was fairly narrow and didn’t focus on the Alien Enemies Act at all. Instead, despite what you may have heard from President Trump, the ruling focused on procedure. Basically, the people being deported under the Alien Enemies Act had sued in Washington, D.C., but the Supreme Court’s conservative majority thinks they should sue where they were being held, which, for most of those being confined, was Texas. But those people who were being deputed should still have a right to a hearing and an opportunity to challenge their deportation. As Justice Brett Kavanaugh said in a concurring opinion, quote, “Importantly, as the court stresses, the court’s disagreement with the dissenters is not over whether the detainees receive judicial review of their transfers. All nine members of the court agree that judicial review is available. The only question is where that judicial review should occur.” On Tuesday, the Supreme Court ruled again in the Trump administration’s favor on the case of thousands of fired federal workers. But again, sort of. Stay with me. The court blocked a ruling from a lower court judge that had ordered the federal government to rehire thousands of probationary federal workers because the court found that the nine non-profit groups that sued over the firings didn’t have standing. Only two justices dissented. But, as The New York Times noted, another federal judge, James K. Bredar of the Federal District Court in Maryland, also ordered the Federal government to reinstate federal workers. So what this ruling actually means is, TBD. So what does any of this mean? While the Trump administration is crowing about its wins, I’m more confused than anything else. It seems to me like the Supreme Court is trying to rule in Trump’s favor without getting everyone all upset that the Supreme court is ruling in Trump’s favor. So I had to call Leah Litman, host of Crooked Media’s Strict Scrutiny and a long time friend of the pod to explain. Leah, welcome back to What a Day. 

Leah Litman: Thanks for having me. 

Jane Coaston: So let’s start with a decision from the court Tuesday to let the White House move forward with firing thousands of temporary workers, at least for now. What did the justices say? 

Leah Litman: The justices said very little. They said that the plaintiffs in the case, who were a group of nonprofit organizations, had not established standing, meaning they had not proved that they as nonprofit organizations would be injured by the firing of these thousands of federal employees. I think this kind of gets to why courts were never going to be the solution for a lot of what the Trump administration is doing. the reality is is that courts have limited powers to like roll back and staunch some of the more aggressive moves that the administration is making. And this is an instance where it seems like more justices were just uncomfortable with ordering the federal governments to rehire that many federal workers at a time. 

Jane Coaston: So there’s like another nearly identical case playing out in Maryland, which was not part of this decision. So what does this mean for those workers who were hoping that they’d be rehired? 

Leah Litman: So not only is there another case in Maryland, there’s actually still part of the case in California that is live because it wasn’t just nonprofit organizations that had sued, it’s just that the district court in California had focused on their claims. So at least for now, some of those federal workers are not going to be rehired, but others of them could be because of the ruling in Maryland and possibly because of some additional rulings in California. So it’s creating this substantial period of uncertainty for so many federal workers. whose jobs are in jeopardy, they’re fired, they’re rehired, but no, they are not rehired. Maybe they will be fired. And it’s just all an awful lot. And that’s part of what they’re trying to do is like traumatize bureaucrats. 

Jane Coaston: Yes. Because I know I would love it if my job status was just going up and down and up and down and down for months at a time. That sounds great. On Monday, the court handed the Trump administration two temporary wins on immigration. The big one was that the justices cleared the way for the White House to resume deportations of alleged gang members under the Alien Enemies Act. A lower court had blocked the use of the wartime statute for deportations. But based on my reading of the justices’ decision, the Alien Enemies Act wasn’t really up for discussion. What did the justices actually say? 

Leah Litman: So the justices didn’t say whether the president was lawfully using the Alien Enemies Act. That is, they didn’t that it actually could be applied to you know an organization that isn’t a foreign state. Uh. It didn’t say you know what the exact process is for individuals that the administration tries to summarily expel under that proclamation. The big thing that they did say is these challenges have to happen in individual cases. That is any individual subject to these summary expulsions has to challenge their own summary expulsion, right? You can’t do so and like block the policy wholesale and they have to proceed through what are called habeas petitions rather than these frontal challenges via the Administrative Procedure Act. 

Jane Coaston: Justice Amy Coney Barrett joined parts of the three liberal justices’ dissent, much to the chagrin of the worst people on the internet. Where did she find common cause with them, and what do you make of that? 

Leah Litman: Yeah, so I think that there are just a few reasons that gave her and the other justices pause. One is that what the administration was asking for is what’s called emergency equitable relief, right? They were asking for the court to put on hold or stay the lower court order. And the reality is, is like when you ask for equitable relief you’re supposed to have what’s called clean hands and the government doesn’t have clean hands here. Right? There are very serious allegations that they have not complied with the lower court ruling in this case. and I think the balance of the equities. Right. Like, there’s no real harm to the government in telling them you can’t use this proclamation to deport people because they can still deport people just using other laws right and other processes. But the harm to the individuals is immense because we don’t know at this point whether the Supreme Court is going to say lower courts have the authority to order the government to return individuals who are wrongfully deported. So allowing the administration to do this without definitively saying it’s legal when the risk of errors are so staggering, right, is more than enough to get Justice Barrett to say, whoa, whoa whoa, like, what are we doing here, guys? 

Jane Coaston: The justices also said the government has to give potential deportees reasonable time to challenge the charges. And the reason why I’m doing air quotes is because this is the Trump administration we’re talking about. Like, these are people who tweet excitedly about deporting people, making it into weird ASMR videos. So I do not trust them. So what does that mean? 

Leah Litman: We don’t know what that means because at a minimum, we know they deported two planefuls of people without giving them notice. And indeed, the government’s briefs in this case to date have said nothing requires the government to delay removal to allow people to file habeas petitions. So what this means on the ground is, I don’t know we’ll see. It basically means we are just playing Russian roulette like with people’s rights and their lives banking on their ability right to I don’t know carry around a habeas petition in their boots so if they are right like swept off the street and shoved on a plane they can somehow get that habeas petitions right at a court filed in time to get a court to pause their summary expulsion and I think we should be confident that at least in some cases. Some individuals are not going to be able to, or be in a position, to file habeas petitions because the notice that the government has been giving people thus far contains a sentence that tells them you have no right to judicial review. 

Jane Coaston: Also on Monday, Chief Justice John Roberts paused a deadline set by a lower court to return a Salvadoran man who had been wrongly deported back to his home country, which kind of goes to what we were just talking about. 

Leah Litman: Yes. 

Jane Coaston: Years ago, an immigration judge had blocked Kilmar Abrego Garcia, from being deported back to El Salvador on the grounds that he’d likely be targeted by gangs. Why did Roberts pause the deadline? 

Leah Litman: So he issued what’s called an administrative stay, which technically is just designed to give the court enough time to figure out what it wants to do. But right, the specter of the court saying in this case that a court cannot order the government to return someone who has been wrongfully subject to an extraordinary rendition that sends them to a foreign torture prison, combined with their ruling that says courts cannot block on a wholesale basis the summary expulsions and every individual right who is subject to these summary expulsons has to challenge their individual summary expulsions is creating a situation where I mean what is to stop the president from just knowingly putting a United States citizen on a plane to a foreign prison, and then saying, ha ha ha, no backsees, right, if the Supreme Court says, you courts don’t have the authority to tell the government to return people to the United States if they’ve been wrongfully expelled. And I think the combination of these rulings or the possible ruling in the Abrego Garcia case with the Alien Enemies Act case is just terrifying. 

Jane Coaston: We were talking about this a little bit before we started recording, but you made a really important point that I want you to get into a little bit more. What do you make of what the Supreme Court has done three times this week to help Trump sort of in this weird like, I made a reference to like Tiki-Taka fouls. 

Leah Litman: Yeah. 

Jane Coaston: You call in a basketball game. Like it’s like, no, no no you just were in the wrong place at the wrong time and you need to do it over here. Now do it over there. Like it seems kind of bullshit to me. 

Leah Litman: It seems very bullshit to me. You don’t do what the justices did in this Alien Enemies Act case if you are at all concerned with what the administration is doing because what the justice’s did is they avoided ruling on the lawfulness of the administration invoking the Alien Enemies Act and avoided saying precisely what sort of process and procedures the administration has to provide. What they did do is they made it much harder to actually enforce any procedural limitations that might apply to the government in these extraordinary reditions. And they made it harder to challenge whether any of these individuals can even be subject to the Alien Enemies Act um at all. And so I think what they did is they avoided saying something on the merits, avoided generating newspaper headlines that say, oh, justices uphold the summary deportations. But instead, they gave the Trump administration a big win by forcing all of these challenges into a less effective forum that is going to all but guarantee some individuals are deported without meaningful process, without due process or judicial review. 

Jane Coaston: Leah. As always, thank you for being here and explaining this nonsense to me. 

Leah Litman: Ugh, were there happier things to explain? 

Jane Coaston: That was my conversation with Leah Litman, co-host of Crooked’s legal podcast, Strict Scrutiny. And hey, WAD listeners, Leah also has a new book coming out next month. It’s called Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. We’ll put a link to preorder her book in our show notes. We’ll get to more of the news in a moment. But if you like the show, make sure to subscribe, leave a five star review on apple podcasts, watch us on YouTube and share with your friends. More to come after some ads. [music break]

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Jane Coaston: Here’s what else we’re following today. 

[sung] Headlines. 

[clip of Karoline Leavitt] Boys will be boys and we will let their public sparring continue. 

Jane Coaston: Yes, boys will be boys. But when it comes to the two boys, White House press secretary Caroline Leavitt happened to be referring to there. Well, one is the richest man in the world and the other advises the most powerful man in the world on trade. Boys, indeed. Leavitt on Tuesday was asked for a comment about the escalating public feud between Elon Musk, age 53, and Peter Navarro, age 75. So not boys. They represent opposite sides of an internal debate over the um wisdom of President Trump’s sweeping tariffs. Musk is in the fewer-to-no tariffs camp. He said on Saturday he hopes for a quote, “zero tariff situation between the U.S. and Europe.” And the other camp is Navarro, Trump’s trade advisor and one of the architects of the President’s hair-brained tariff scheme. He said this about Musk on CNBC Monday. 

[clip of Peter Navarro] When it comes to tariffs and trade, we all understand in the White House and the American people understand that Elon’s a car manufacturer. But he’s not a car manufacture, he’s a Car Assembler in many cases. If you go to his Texas plant, a good part of the engines that he gets, which in the EV case is the batteries come from Japan and come from China. 

Jane Coaston: Ooh, burn! Enter Musk calling Navarro, quote, “a moron and dumber than a sack of bricks,” on Twitter Tuesday in response. He also referred to Navarro using a slur we won’t repeat here. Leavitt acknowledged during her press briefing Tuesday that Musk and Navarro, quote, “have very different views on trade and on tariffs.” She also tried to convince us that we should be appreciative of the public rift. 

[clip of Karoline Leavitt] You guys should all be very grateful that we have the most transparent administration in history, and I think it also speaks to the president’s willingness to hear from all sides. 

Jane Coaston: Sure. The Internal Revenue Service has said it’ll share immigrants’ tax data with Immigration and Customs Enforcement. The two agencies signed an agreement Monday that allows ICE to submit the names and addresses of people they’re trying to deport for cross-verification from the IRS. The plan has been in the works for a while. Here’s Stephen Miller in February telling, or more accurately, yelling at CNN, that the Trump administration would be using tax data to deport people. 

[clip of Stephen Miller] The federal government will find every illegal alien who is stealing American taxpayer dollars. And that is what Americans expect to happen. 

[clip of CNN news reporter] Will you find that in the IRS data and share that with law enforcement? 

[clip of Stephen Miller] I don’t even fathom the premise of your question. 

[clip of CNN news reporter] It’s a simple question–

[clip of Stephen Miller] Anyone who is–

[clip of CNN news reporter] When you find that information in the IRS data will you share that with law enforcement? 

[clip of Stephen Miller] If IRS investigators find illegal aliens stealing taxpayer money, of course it will be referred to ICE. Of course it’ll be referred to Homeland Security Investigations. Of course there will be. Surely your position is not that we should let illegal aliens steal taxpayer dollars. 

Jane Coaston: They are paying taxes. That’s why we have their taxpayer information. But anyway, federal law normally protects taxpayer information from being shared with other agencies by the IRS. Conveniently, the IRS’s top lawyer was recently demoted and replaced with someone Trump nominated for a different job. What a coincidence. Undocumented immigrants contribute billions of dollars in tax revenue every year. The disclosure of personal information takes away just about any incentive for them to do so. 

[clip of Robert F. Kennedy Jr.] Fluoride should not be in our water. 

Jane Coaston: Health and Human Services Secretary Robert F. Kennedy Jr. said on Monday he plans to tell the Centers for Disease Control and Prevention to stop recommending fluoride in drinking water. He also mentioned creating a task force to come up with new recommendations. R.F.K. Jr. told the Associated Press about his plans after a press conference in Salt Lake City. He was there to celebrate Utah becoming the first state to pass a ban on fluoride in public drinking water last month. When asked Tuesday about Kennedy’s call to ax Fluoride in drinking water, House speaker Mike Johnson did what he always does and played follow the leader. 

[clip of House Speaker Mike Johnson] From what I’ve read and from what I understand it deserves um real evaluation um. There’s there’s a uh this is a concern that may be having a negative effect on the health of children and obviously we have an obligation at the federal government level to look into that so I’m I’m as interested as you are, I don’t have the answers but I think it’s one that uh the question has been begged and it needs to be addressed 

Jane Coaston: That was a remarkable amount of nothing. The Environmental Protection Agency also announced Monday it will quote, “expeditiously review new scientific information on potential health risks of fluoride in drinking water.” For the record, the CDC says the safety of putting fluoride in drinking water, which the U.S. started doing in the 1940s, has been reviewed comprehensively by several scientific and public health organizations. The CDC says it effectively prevents tooth decay and improves overall oral health. The American Dental Association says fluoride is effective in reducing dental decay in adults and children by at least 25%. So I guess we’re going to make America toothless again, too. MATA! A federal judge ordered the White House to reinstate the Associated Press’ access to cover presidential events on Tuesday. Judge Trevor McFadden, a Trump appointee, ruled that the administration can’t retaliate against the AP for refusing to call the Gulf of Mexico the Gulf of America, per a Trump executive order. McFaddden cited the First Amendment, writing, quote, “If the government opens its doors to some journalists, be it to the Oval Office, the East Room, or elsewhere, it cannot then shut those doors to other journalists because of their viewpoints.” McFadden’s ruling won’t go into effect for a week in order to give the government time to respond or appeal. And that’s the news. [music break]

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Jane Coaston: That’s all for today. If you like the show, make sure you subscribe, leave a review, contemplate the wise words of Treasury Secretary Scott Bessent, and tell your friends to listen. And if you’re into reading, and not just about what he told CBS News about tariffs, quote, “they are a negotiable, but not a negotiating tactic,” like me, What a Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe. I’m Jane Coaston and I don’t know what that means. [music break] What a Day is a production of Crooked Media. It’s recorded and mixed by Desmond Taylor. Our associate producers are Raven Yamamoto and Emily Fohr. Our producer is Michell Eloy. We had production help today from Tyler Hill, Johanna Case, Joseph Dutra, Greg Walters, and Julia Claire. Our senior producer is Erica Morrison, and our executive producer is Adriene Hill. Our theme music is by Colin Gilliard and Kashaka. Our production staff is proudly unionized with the Writers Guild of America East. 

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