15: Power and the Courts: Can the Rule of Law Survive Trump?

Hi, I’m Jesse Hirsh, and I’m here with my friend Alan Gregg for another episode of Red Tory with a new title screen.

Look at that.

And today we got a special guest, Tobias T. Gibson. And when searching for our guest, it’s important to put the T in there.

Now, Tobias, there’s a lot of reasons why we might have you on the show, but we gotta give a shout out to our producer at large, Miriam, who made this happen by connecting you with us, because she recognized as a professor who looks at law, who looks at conflict, who looks at politics, you’d be right in our wheelhouse. And I think that is very much gonna be the case.

But we start every episode by me throwing to Alan and saying, alan, what are you paying attention to right now? Am the maelstrom that is the news cycle.

Well, I’m very excited to have Tobias here because something I’ve been paying attention for months now is the extent to which there are judicial guardrails against executive power. And if the two of them start conflicting, what will happen?

And given that I have no understanding of that field, I want to get smarter here, but in terms of current affairs, again, as a Canadian, you’re watching this kind of toilet seat response to tariffs. They’re on, they’re off. They’re up, they’re down. They’re on. Down on granola. They’re up on granola and watching it and thinking.

Something that we talked about, Jesse, is that, you know, that Trump being the consummate kind of controller of the media narrative and surrounding himself with people who have similar kind of talents but no substantive talents, and there’s a consequence not fully realizing the implications of a lot of their success in media. So he pulls back on the tariffs. And this, tactically, is smart because it keeps him in the news.

Now it’s another will he, won’t he, that his adversaries are back on their heels? Do I have 30 days? Or is there something good going to happen now?

But then you kind of take your eye off that ball and you look at what happens in the stock market and saying, stock market doesn’t like chaos. So pulling back isn’t good news at all. It actually adds to the chaos. And what does business do in the face of chaos? Nothing. Absolutely nothing.

They won’t spend, they won’t hire, they do nothing, which leads to economic downturn.

So, again, I think you’ve got something here where he’s winning in one level, but in the mid to longer term game, he’s just building up more and more Problems. Tobias, what are you looking at these days? What are you watching?

So I’m just back from an academic conference.

I’m going to be purposefully a little amorphous here just because of the topic, but there’s a very international major conference in Chicago which means that I got to talk to a lot of professors from across not just the United States and North America, but across the, the globe quite frankly.

And one of the things that we’ve, we’ve been that, that was on the thoughts I think of, of everybody there is the sort of state of higher education and the, and the, the dramatic impact and I want to stress that the conference ended before the executive order talking about the, the demolition of the Department of Education.

And so this, this just, this was just in air quotes, concerns about DEI and I mean just the sort of umbrella, the sort of umbrella issues surrounding education.

But the more, the more I’ve been thinking about it like on my drive home, I don’t, I don’t think that the, I don’t think that politicians trump, but also, also, you know, senators and, and representatives are thinking through the, the sort of down range impacts, you know, and so, so Vice President Vance has called the professor at the enemy. And that being said, there are dozens, hundreds, thousands of colleges, including my own, in a rural red state. In a rural portion of a red state.

My apologies, you know, but if, if my college closes, so will many restaurants and so will banks and so will schools. And so, I mean, you know, you get the point. And so I think that there are sort of trickle down effects that are not being thought through.

And the other, I guess even in some ways more concerning part is that there is a consistent concern across the globe about the state of education.

You know, I mean, many different nations have made at best questionable decisions about how to fund, about how to fund their, their universities and such.

And I do want to say, by the way, that I, I got to talk with a fair number of very fine Canadians and I thoroughly enjoyed those conversations as I always do. So thank you very much for letting me be here.

Before we get into the judicial stuff, I mean it’s really interesting you say that because Jesse wrote today in his substack piece how authoritarianism use a little bit more explicit fascism demands an assault on abstract thought and nowhere is that more prevalent and robust than in the academic community. Just expand on that just for a second, Jesse.

Well, it’s this idea of complexity that the more technology the more data allows us to understand the nuances of our world. The complexity of Our world, the harder it is for authoritarians to say, this is black and this is white. Right.

For their propaganda to be so simple, I use the example of gender fluidity, that the more we understand gender, the more we understand culture, the more we recognize that our identities change constantly as we age. And this threatens the authoritarian mindset because they want a very rigid, hierarchical concept of identity.

I sort of use this as a subtext for why they are attacking the humanities, the arts, education as a whole, because that’s what facilitates abstract thinking. That’s what allows people to hold contradictory thoughts at the same time and not self destruct.

And so I will actually use that to pivot to something else that I saw recently, which, to go to your point, Tobias, of the way in which they’re trying to demonize the intellectual class, to demonize post secondary education. I’m worried that they are trying to provoke a confrontation on campuses throughout the United States.

They just withdrew $400 million from Columbia University today.

Well, and they are. They’ve sent out a notice saying, if you have protests like this, we will remove your funding.

But at the same time, Trump signed an executive order which ostensibly is focused on immigration, where he asked the heads of the military to give their thoughts on whether he should invoke the Insurrection Act. And again, the language, everyone’s thinking this is about immigration.

But I could see this being applied to campus unrest as well, because it gets back to that Kent State imagery.

It gets back to, again, trying to make an other, in this case, dehumanizing academics, dehumanizing students, dehumanizing the people who are likely to go to small colleges and small towns.

And Tobias, I thought your point about the economic consequences, the extent to which there are so many towns in America, certainly in New York State, I could list almost a dozen, that they would not exist without the college, without the post secondary education that lives there.

So it goes back to your point, Alan, of do these guys really even understand the consequences of their actions, or do they just think that the press conference will always be a good time, doesn’t matter if society starts to fall apart. So that’s where I think this is all part of a kind of reinforced chaos, which thinks, thankfully, businesses are now starting to push back on.

But whether this prevents the chaos is something I’m not entirely sure. And I think today we’re going to get into the legal, or legal checks and balances that might call that chaos into question.

Alan, do you want to respond or take us elsewhere?

No, I want to go right there.

Right now, because one of the things that many people assume is that within the, the checks and balances, that right now, given what’s going on in Congress and the legislative branch, that the best guardrail, I’d say against executive power is the Supreme Court and courts generally.

I just saw the attorney generals, Democratic attorney generals met in Phoenix, half dozen of them, to talk about what they’re going to do in their court challenge.

Are people being overly optimistic in that hope or that, that expectation that that’s the system of government that we can look at to do the right thing to make sure that chaos is reigned in?

Are people being overly optimistic? I think that it is disconcerting that the final guard rail is the judicial branch.

And, and let me tell you why, and then you guys can ask questions more. So the judicial branch is small and the judicial branch is slow and the judicial branch does not really have its own enforcement mechanism. Right.

And so it takes as a, this, I mean, sort of a general rule, this is, this is not the, the, the sped up per curion decisions and these, these types of, of sort of shortcuts to a, a Supreme Court decision.

But as a general rule, a case is supposed to go through, you know, the, the, the process which just to make it very easy would be a federal trial court, a federal appellate court and then the Supreme Court. Right. It differs a little bit within the states, but not a ton. And so to begin with, we’re talking about a period of months.

Second of all, there are many reasons why courts may not hear a case just to begin with. So there’s this idea of what’s called justiciability. And again, just very simply, it is, is the court the right place for that decision to be made?

So for a couple of examples, there has to be an injury. So for someone to bring a case, they have to have what’s called standing.

And in addition to that, the Supreme Court will not hear what is called sort of a political question in which they decide that the political branches, the President and Congress, are the right places to solve those problems. There are other things, but this is not a semester long class, so I will simplify here.

But so not only is it very long and slow, but there are also lots of reasons why the Supreme Court may not hear a case to begin with even if it is appealed. And so it’s important to know that only about 1% of the cases that get appealed to the court through the Supreme Court are heard at that level.

At that level, right?

Yeah.

So again, roughly 8,000 cases a year, roughly 80 are decided.

And so just, just sort of mathematically it is, if, if someone is thinking of it as a Supreme Court decision, that is not the right way to think of what a successful buttress will be as a general rule. So that, so that’s, that’s one potential reason.

Another potential reason is that the Supreme Court has in some ways sort of added to the powers of the president. Congress is also responsible for this.

The case that ended up leading to the, the demise of the Nixon presidency, which is that the, the, the tapes, the White House, the, the Oval Office tapes had to be released, also included the idea of executive privilege. Executive privilege is not in the Constitution. It is a judicial construct.

And then more famously yet at least currently, is the recent decision in Trump versus United States that basically gave the powers of the recognized a very wide outer limit of presidential powers. So that’s a second, that’s a second reason. Actually, I’ll stop there and then, I mean, to see where you, you all want to go next.

Well, let me jump in there then, because, I mean, you’ve wrote an article in a very interesting article, and it’s consistent with you talking about here under judicial deference to executive authority, especially under areas of national security, and Trump is using his executive orders under the auspices of national security again and again and again and again.

Do you believe the courts will uphold these orders based on what doesn’t look to be all that much national security or even economic security, but in a lot of instances, just political whim.

Also a good question. So let me, let me say now two more sort of big picture answers to that question.

The first thing is, is that executive orders traditionally are supposed to have a particular process. This is again, a very truncated perspective. Part of it is just sort of bureaucratic, and it tends to go through the Office of Management and Budget.

But in terms of the legal, the legal perspective, there is a very small office in the Department of Justice called the Office of Legal Counsel. And part of the charge of the OLC is to review proposed executive orders for form and legality.

Form is, you know, colons and commas and periods type stuff. The legality part is the really important part.

And so traditionally, the Office of Legal Counsel has been sent a draft of the executive order and then opined about the legality. And then there’s been in many cases, at least some back and forth to get the language right to the point that the executive order itself is legal.

At that point it is released. And my dissertation was actually about this process and there were examples of executive orders that were not issued because of the lack of legality.

Fast forward.

And just to quickly interject, am I correct in reading that this was a kind of check and balance, that even though the role of the DOJ is to serve the executive, what you’re describing from a professional civil service perspective is there would be a little checks and balance to make sure that the executive wasn’t overstepping its bounds the way that the current administration has no concern in that regard.

I think that there are two answers to that question.

One of them is just a simple yes, it should be considered at least some version of the olc, sort of giving a directive to the President about what the outer bounds of powers would be. The other part of it is, quite frankly is that executive orders should not be a source of consternation and embarrassment.

But the, you know, so, so that I may have this a little bit off, but something like 20 executive orders in the history of the United States had been overturned by either any, a federal court at any level or Congress.

So roughly 20 by contrast, to provide but one example, and even from the last administration, the last Trump administration, it took three different executive orders to get the so called Muslim travel ban to, to pass judicial muster.

And so again, just to sort of simplify, I think it’s three or maybe four federal courts have already said that the birthright citizenship, the revocation of birthright citizenship, executive order is unconstitutional.

And so again, I mean if you just do this math, right, I mean, you know, of all of the executive orders that have ever been overturned or you know, by, by courts or Congress, you know, President Trump in some capacity is responsible for something like 20% of them.

And this kind of brings me back to where I think our general concern was, which is whether the judiciary has the, the apparatus, the speed, the capability to provide a guardrail, to provide a check and balance.

And not only am I hear no, and you could push back on that in a moment, but there’s two ways in which Trump is playing this one is he doesn’t care if these executive orders are actually going to be effective. It’s the symbolism, the politics, the press of passing them that matters most.

And second, correct me if I’m wrong, but the attacks against the administrative state may be more lethal and effective than I certainly may have anticipated because I think we overestimate the size of the state that we imagine it to be this large bureaucratic organization.

But what I’m inferring from your remarks is that the actual structures of it can be kind of small and the people and the offices that are meant to make sure that these things function could in theory be easily disrupted by a doge or a kind of musk approach to government. So that’s a lot. But please, Tobias, I curious to hear your thoughts there.

So that’s also a lot. I’m sorry for beginning every answer almost exactly the same way.

So the first thing is that I don’t think that the judiciary has the powers to restrain the President unassisted. That part I think you are reading into my answer correctly. The unassisted part I think matters though.

And so for example, at least historically, the, the, I’m going to say the Supreme Court, but the Supreme Court has been the most, has been seen by the American population as the most legitimate of, of the, the branches. In some ways that legitimacy has been disrupted from within the court.

Just very simply, you know, think things like the, the Dobbs case that overturned Roe versus Wade, Clarence Thomas’s RVs and fishing trips and those types of things, you know, but, but it is not a mistake that there is talk of impeaching federal judges. It is. And, and that being said, it should not be taken as just partisan.

And I, I say that because Brett Kavanaugh was, I mean there was a would be assassin arrested outside of Brett Kavanaugh’s house.

I think it was about two years ago now, you know, but the threat is not just to judges that the current administration disagrees with is, is what I’m getting at. And so, so the, the, the legitimacy of the court is under attack.

And that matters because the legitimacy of the court is, is, is one way that it can sort of have that sort of pushback effect. So that, so that’s the first addendum to, to the, to my answer to your question.

I guess the second thing is, is that as of right now there are other non governmental assists. And so one, one of the, probably the best example currently is is this doge and the appearances in court.

And so because the government attorneys want to maintain their licenses. They are very careful about the way that they answer questions.

And so we learned that Elon Musk was not the administrator of Doge because of a, a, a attorney, I think, in the Southern District of New York. But don’t quote me on that.

Basically say, you know, answering a question of who’s in charge of Doge with I’m not for sure, I’ll get back to you kind of thing.

And so, you know, there, there is because they, I mean, saying something from, you know, Air Force One or from the, the White House Communications room or, you know, at the super bowl or whatever is not the same thing as practicing law in front of a judge and having to be honest within the context of that action.

And so there are also sort of professional constraints that are not necessarily tied to the power of courts per se, but that is, is also something that is, is an assist to the, the ability of courts to push back against, in this particular case, presidential power.

And this potentially goes to Alan’s point about the skill set of the Cabinet, that their greatest skill may be their ability to shoot themselves in the foot and incriminate themselves in a way that their lawyers really can’t deny because of the nature of evidence in court. Am I projecting and saying that because, and the State of the union, Trump did say that Musk was ahead of Doge.

Does that make him, does that complicate things legally for, for Doge at least, if not the regime, there’s, there’s a.

Case, and I don’t remember which one of the 40 or whatever it is at this point, so my apologies for that.

But there is a case in which by, I think by the end of that speech, there was a request to the judge as to whether or not that portion of the speech could be introduced as evidence. So, I mean, I don’t know yet.

And I, I have been, I mean, to be honest with you, I’m just back from this conference and I’ve been stupid busy today, so I have not been just sort of refreshing news all day. So I don’t know if something has come in today about this particular case or not, but the answer is, is yes.

You know, and again, we, we, we’ve seen this for like 10 years of Trump at this point, and so did not work, you know, but there were, you know, testimony of candidate Trump about eight years ago, testimony about candidate Trump wanting to ban Muslims was part of at least that sort of legal strategy, again from the Muslim, Muslim travel ban from his first administration as well. And so President Trump’s inability to answer questions or take consistent positions is, in fact, a legal liability. Yes.

Yeah, Let me take a step back here a little bit, because I, I really want to deal with the potential scenarios that might arise in the case of a court ruling against an executive order and the executive saying, you, we’re going to go ahead and do. And what might happen there, that I think is really, really important before we get there. I mean, first, I was fascinated.

You say that only 1% of these appeals get to the Supreme Court, which is kind of scary in its own right if we’re counting on the Supreme Court to do the right thing. The prospect of the Supreme Court doing the right thing, though, I’m interested in.

I mean, again, you wrote another very interesting piece on originalism. And my wife loves strict scrutiny and listening to the podcast about the Supreme Court, loves the Supreme Court, hates Donald Trump.

So she thinks all of the Donald Trump’s appointments are crazy right wingers who are there and politically motivated. But there’s others who are more in the intellectual scholar categories yourself. These people are not partisans.

They may be ideological, but they’re originalists, ideologues. And then originalists actually protect things like Congress’s right to spend Congress’s right to legislate in the face of executive power.

What’s your read on the Supreme Court’s kind of outlook on these sort of things right now?

I guess, more specific, how likely is it something that came up that was very strong legally, that said this should not be allowed in executive order with this Supreme Court and saying, you’re right, we’re not going to allow it, and on what grounds?

Let me, let me, let me see if I answer your question. Okay. And I think you asked at least two there. So, so, no, no, no, it’s okay.

I just, I, I just want to make sure that I, Let me, I’ll talk and then you, you tell me what I, what I didn’t answer. How about that?

Okay, so the, the, the last thing is, is that to answer sort of the previous question is that there are still attorneys that won’t make arguments that they think will lose. And, and, and that part’s really important.

And again, that, that’s kind of why the Office of Legal Counsel is important in the exact context of executive orders.

So, so, so that is that a lot of cases shouldn’t get to the Supreme Court because they should, shouldn’t be impacted by an executive order or other executive action that is unconstitutional. That’s the way it’s supposed to work.

And so when I interviewed members of the OLC about the lack of federal courts and Congress overturning executive orders, the answer that I got was basically that means we’re doing our job. All right? We’re not supposed to. See, this is what I’m, is what I’m trying to write. Right, right. Okay.

So, so, so, so let me just say that up front, A B, in my humble opinion, originalism is at best ill conceived and is at worst just. And I say that you read this, this short article, this short article that I, that I’ve published.

I, I won’t, even though it’s short, I won’t, I won’t dive too deeply into that. But part of the issue is, is that originalism has changed since its original inception, which I think is sort of ironic.

So, you know, there’s, there are, you know, there’s this idea of originalism, but originalism used to be the original meaning of the Constitution and then it was the, the like as in the framers, and then it was the original understanding of the Constitution, so know, a sort of more broad, you know, popular understanding of the words from the Constitution. I mean, just, I’ll just leave it there.

Part of it is, is that so called conservatives don’t understand the value of precedent, which is among many other things, it is meant to allow for predictive action taken based on standing law.

And to your, to your all’s point about, you know, things like stock market and businesses and you know, boomeranging tariffs and stuff like that, you know, part of the value of precedent is to allow business to maintain itself. And so I mean, it is, you know, you asked, you asked a little bit about rule of law.

I don’t remember exactly when, I mean, it might have been as part of.

Our promotions, we kept saying, well, Tobias Bacon on the show before the rule of law becomes a part of history.

Gotcha.

So we can, we can talk about that a little bit too, but excuse me, it’s not an accident that John Locke of Life, Liberty and Property fame was a proponent of precedent of rule of law. You know, and so one of the questions that I asked students this semester on a midterm was who benefits from rule of law?

One acceptable answer would be business.

Oh yeah.

But anyway, so originalism is. Oh, sorry.

And then the other part of it is, is that the, the original lists were themselves historians, philosophers, ethicists, you know, et cetera, et cetera. And so they were reading things and understanding things that we no longer read or understand. And so just to sort of simplify again.

So we’re also talking, I mean, this is part of, this is a, a very wide ranging line of questions. And so this is part of the reason why. Alan, I want to make sure that I’m answering your question.

One of the things that is, is important to realize or to remember to know is that the, the Founding Fathers took the oath, the oath any oath took, oaths took to be emphatically important and binding. And binding. And now, I mean, I think this is true of, of most people, not, not just President Trump, but, you know, now.

Oh, I swear to, you know, whatever, you know, you know, of course, I swear to God. Sure, sure, sure, sure, sure, you know, kind of thing. Right.

I just, I don’t think that as, as a society, we take oaths as seriously as the, as the Framers meant oaths to be taken.

Which means that if that is the case, if, if I’m right, it’s, it’s hard to imagine that any member of Congress or someone who has lived in the White House is an originalist.

Yeah.

That’s interesting because it speaks to bring it back to our conversation on education, the power of history, and that so often when you hear people talk about the solution to political problems, we need education, we need more education. But I think what we’re seeing now is not just an attack on education, it’s an attack on history.

And it’s an attack on history by essentially rewriting it, which has always been the promise of make America great again is you’re not really dealing with the America contemporary, you’re dealing with the again and people’s perception of again as the justification for that power.

So to keep our kind of narrative consistent, but to blend it back more into the cultural, you’re describing the way in which legally they throw to authority as an entirely political social construct. Right.

They’re manufacturing what they sort of see as the original intent of the Founding Fathers or the original intent of especially Christian America. But how far can they get away with this?

How far can Trump literally try to transform the country into a monarchy, to literally go against what America as a republic, at least mythologically, was about?

If my general argument here is correct, that they are completely rewriting history and taking advantage of a, a lack of historical literacy among certainly their base. How far can they get away with this?

To what extent is there academics like yourself, or even, to Alan’s point, scholars on the Supreme Court who go, wait a minute, this does not match the education, the worldview, the reading that I possess.

My suspicion is that many members of the federal judicial hold a pretty tenable buttress against presidential power.

The most concrete example of that right now is again, it’s either four, three or four district courts have said that the constitutional wording, precedent and history and custom, I guess around the expectations of birthright citizenship are established and that there is no constitutional bound, I’m sorry, no constitutional framework to allow for an executive order that single handedly overrides the Constitution.

Plus all the other things that I just said, there are other examples and I also think that there are five votes on the Supreme Court that will at least with some consistency not so I mean part of that notice I’ve gone from pretty broad to less broad.

But you know, but I think that there are five votes on the Supreme Court that will consistently uphold a less king like presidency than Trump seems to well is is projecting those five being the, the, the three in the liberal block, Kagan Sotomayor and Katanji Brown Jackson, sometimes joined by both the Chief justice and Amy Coney Barrett.

Interesting, Very, very interesting that you say that because we saw a decision just the other day from the Supreme Court that was that exact 5 to 4. Now my understanding is that it was one more procedural and substantive issue.

But, and this is where I was going with originalism, I’m sorry that I kind of used a nomenclature or concept that kind of is just this notion that there are members of the Supreme Court that the lens they, they, they, they use in the interpretation of the Constitution is what was the intent of the people who, who drafted this. And then you look at Article 2 and it’s very, very clear that Congress has the power of spending.

And then if the president of the United States is usurping that power, the Supreme Court, if they use that lens will hold him back.

So you think there is a prospect of a 5, 4 even if only 1% of these appeals get to the Supreme Court and that so I should tell my wife that they’re not all lunatics.

They are not all lunatics.

I didn’t believe that.

No. And, and again, I mean okay, so let me back up by something.

I was something I probably should have said at least like 39 minutes ago in if, if I lived in Canada I would be the hyphen in, in the title of this podcast. I think, you know, that is to say somewhere between red and Tori. And so I should have just sort of said that up front.

So that, that’s the first thing. The second thing is is that there are, there is evidence of, of what I just said.

I don’t have the language in front of me so I won’t quote it but he is concerned about the type of attacks that we’ve seen again from impeachment and it’s not and it’s important to say the the current calls for impeachment are not about performance or character. They are about decisions that go against someone’s political preferences. Those are not the same things.

So Roberts is concerned about how of the legitimacy of the court and has expressed concern about the the type of attacks that that we’re seeing from within the government and and outside the government.

And then Barrett excuse me has us I mean joined the the majority opinion in Trump versus United States that again sort of you know, saw this expansion of powers. But but she also concurred with a very different reasoning than the majority.

And again I won’t get into the to the details of this but she convinced of the breadth that many of her brethren are in in the majority.

So there there I do think that there again that there is some consistency some probability of of those those two conservative justices joining the the three in the liberal block.

So let’s get to the $64,000 question because J.D. vance has conjured up the quote from Andrew Jackson that let the Supreme Court decide that they’re not going to be able to execute it.

I mean you mentioned that with assist there is some possibility for enforcement. But where are we Are we in constitutional crisis? If the Supreme Court says you cannot do this and Donald Trump says F you I’m doing it.

I think so.

And but that at this point that’s a big if and and I I say that because President Trump has not necessarily exceeded to judicial mandates about doing things like paying contracts from usaid. However, the administration has also stayed within the bounds of sort of legal norms as in appealing those decisions.

So we are not yet at that at that stage.

What worries me though and this gets into the perception of which stage we’re at and I think Alan, rightfully so is identified a hard line in the sand right that we can all look at.

But it’s the soft lines that have me more concerned and what I’m hearing from you today, which is kind of a similar experience I had with the pandemic, is the limited institutional capacity that we imagine these institutions as having. The agency, the capacity, the expertise that when push comes to shove, it’s really stretched to the limit.

And it really comes down to kind of human dynamics, because on the one hand, whether it’s tariffs and the justification of fentanyl, because he keeps tying the tariffs to fentanyl on the border, which everyone’s like, what are you talking about?

Or the same way, the arguments around illegal immigration and kind of national security, that it feels to me that they understand what you’re explaining to us, that yes, the judiciary could stop them, but if they go through the legal motions, if they make their arguments enough that it doesn’t fall within that 1% that makes it through, they’ll get away with stuff. To what extent can the theatrics of complying with the law allow them to, to disobey the law?

Or is there really a check that makes them comply without just playing the game of bullshit?

So, first of all, and again, I should have said this several minutes ago, but those cases that do not get to the Supreme Court, the last judicial decision is binding and as of right now, again, just to choose the, the birthright citizenship, mostly because it was first and also because, to be honest with you, it’s an easy example that is almost. Well, in some very real ways as of today, My prediction would be that that will not get to the Supreme Court because it’s.

The answer is so obvious that it doesn’t have to. But does that make sense? And so but to push back quickly.

I didn’t mean the logic of which choices get chosen. I just meant the capacity for things to be held. Because if we go back to the Steve Bannon methodology, right. Of just flood the zone.

They flooded the zone with all those executive orders. If they knew that a third, a quarter of those executive orders were going to get stopped by federal courts, that may not be a problem for them.

They may factor that into their strategy, that as long as there are trigger issues that get everyone excited, that focus the limited legal resources on those battles in those courts, then other stuff flies by and people don’t have the ability to stop them, don’t have the ability to go through the process.

What I’m asking is while we are perhaps saying maybe with assist, the judiciary is up to the task, but to what extent, like the media, like Congress, can the judiciary be flooded by all these actions, all these cases and some happen because we just don’t have the capacity to deal with them.

Right. And so because the judiciary is most prone to being flooded again, largely because there aren’t that many judges.

There are, I mean, and, and they are slow. There are, there are lots of other things that also check. And so you, you, you all spoke about the way that businesses have been reacting to tariffs.

And there’s a, I mean, Trump, Trump has said things and then taken them back, you know, hundreds of times, dozens of times. At this point. I don’t, I don’t have that again, I don’t have a number.

But I mean, again, just, just in terms of tariffs, they’ve been on and off and on and off and on and off something like six different times or something. And that’s just with, with Canada and Mexico, who knows what it’ll be if, you know, it becomes the EU and whatever else. Right.

The Cabinet has started to, to, to have pressure on Doge. And so it is inexplicable to me in some ways that, that President Trump has to say that, that, that the secretaries have final firing power.

But it is not just Doge anymore. It is, you know, I mean, Congress has talked about needing to play a role in, in the, in the, in the institutional demolition.

I mean, whether it’s usaid, whether it’s education and those types of things. And if Congress is playing a role, it’ll be, it’ll be much harder to, to, to at least see the end of the actual end.

And I, it’s, this is again, it’s a complex thing about, and it kind of also depends on what, what court we’re talking about.

But there, there are lots of, there are lots of cases in federal courts about, you know, from individuals or groups being fired from, from different bureaucratic agencies. So that, let me leave that to the side, though.

But if Congress is charged with, it take, takes charge in doing what Congress can do, let’s do spending, for example, then that will also serve a check.

And that’s actually in some ways why I suggested that small rural, sorry, not small rural red Republicans representatives should really reconsider things like how many colleges they want to kill off.

Because if, you know, every, every person in my county calls, calls the, the their member of Congress, then that, that’s, that’s going to really, I mean, that, that’ll also flood the zone.

You know, and Lisa Murkowski from Alaska has talked about, I haven’t seen this in the last couple of weeks, but, you know, she was talking about how she used to get, you know, what, 300 calls a day or something like that. She’s getting 40, 000, you know, I mean, you know, these types of things.

And so again, the judiciary plays an important role, but it can’t do it alone, kind of regardless of, of who’s, who’s which professional organizations, which civil society institutions, whether it’s the media or, or something else, and, and potentially Congress. But if, if, if, and they don’t have to be in lockstep. Right? I mean, just as long as they’re there, they are.

As long as they’re doing their job.

Right. And again, I think that you’re beginning to see that.

And it doesn’t, it doesn’t hurt that President Trump’s popularity has slipped eight points since he got elected, which is really, I mean, that’s fast. Yeah, that’s fast. You know.

To your point, to buy, as my, my old partner was the Canadian ambassador, United States, he said the single most effective thing they ever did in getting those guys at the table to ensure that they would negotiate the United States, Mexico, Canada, free Trade Agreement was to put big tariffs on the bourbon that was manufactured in Mitch McConnell’s district. So, but that’s, I mean, really, really helpful, really insightful.

I mean, that combination of the judicial balance, congressional balance, and we want you back for sure because again, one of the things we’ve been talking about is Canada is the 51st state. Jesse’s absolutely convinced they’re coming over the border with military armory.

There’s a fascinating piece today in the New York Times with reporting on a conversation between Howard Ludnick and our Minister of Finance, where Ludnick told him after a call with our prime minister and Trump on February 3rd that Trump does not believe that the treaties that created the Canadian US Border are enforceable. So we want you back if this is going to come up and we want to talk about that for sure.

And anything else, you’ve been a fantastic guest and we really appreciate your insights.

And I would sort of end on the closing note that today was the first episode where I genuinely saw hope, a ray of light for how we get out of this to where we ended. It does depend upon American civil society, the Democratic Party, Republicans in Congress to actually stand up and do their job.

But I feel we are seeing the first slip ups of the Trump administration.

I think we are seeing the first stumbles out the block and now really is the opportunity for the opposition to seize upon that, and that includes the legal element of the opposition. Tobias, any last words and, or how our audience can learn more about you and maybe even get in touch.

Sure. So let me say that I, I am sitting within.

I, I mean I, I can see the, the site, uh, from which, uh, Winston Churchill gave his Sinews of Peace speech in which he coined the phrase that described the Iron Curtain descending across, uh, post war Europe. And so let me, let me, if I may read a quote from that speech that is often overlooked.

Courts of justice, independent of the executive, unbiased by any party, should administer laws which have received the broad ascent of large majorities or are consecrated by time and custom. So no, no less than Churchill himself recognizes the value of, of the rule of law, of precedent, of unbiased courts uninfluenced by, by precedence.

For example.

Right on.

And in terms of contacting me, I’m not going to give my, my work email because of the current situations and those types of things, but I, I’ve, I’ve now told you where I work and if you want to get hold of me, please feel free.

A cryptic but effective and to your point. Our numbers on YouTube, on TikTok are trending up, but our comments generally are still from maga trolls.

So anyone who is listening, who likes what they’re hearing, post a comment, give a thumbs up, give lots of ratings. Again, thanks to Miriam for helping to connect us with Tobias.

And if anyone’s interested, we have a WhatsApp redtory group where we talk about this stuff. You’re welcome to join if you email me, which you can figure out how to do so via our website. But thanks again, Tobias, Alan, have a good weekend.

Talk to you on Monday. And hopefully the rule of law continues to have a longevity beyond our own life.

Thank you both very much.