In Bed With The Right - January 29, 2025


Episode 55: Emergency Episode: Mark Joseph Stern on Executive Action

Topics
Episode 53: The Moynihan Report Episode 57: Mark Zuckerberg

Episode Stats


Length

48 minutes

Words per minute

168.88

Word count

8,176

Sentence count

409

Harmful content

Misogyny

7

sentences flagged

Toxicity

9

sentences flagged

Hate speech

24

sentences flagged


Transcript

Transcript generated with Whisper (turbo).
Misogyny classifications generated with MilaNLProc/bert-base-uncased-ear-misogyny .
Toxicity classifications generated with s-nlp/roberta_toxicity_classifier .
Hate speech classifications generated with facebook/roberta-hate-speech-dynabench-r4-target .
Topics generated with Qwen2.5-3B-Instruct.
00:00:00.000 Hello, I'm Adrienne Dobb.
00:00:16.440 And I'm Moira Donegan.
00:00:17.600 Whether we like it or not, we're in bed with the right.
00:00:19.760 So, Adrienne, we are coming to our listeners today, nine days into the second Trump administration.
00:00:28.140 We're recording on Wednesday the 29th, which is important because by the time this comes
00:00:33.100 out, what we're saying here will probably already be out of date.
00:00:37.460 There have been a whole flurry of executive orders coming out of the new Trump administration,
00:00:42.940 many of them touching on RB, you know, gender, identity, inclusivity, the way these things
00:00:49.700 are constructed by and limited by citizenship, right?
00:00:54.920 So we thought we wanted to have somebody on the show who could sort of hold our hands and walk us through this new emerging legal landscape.
00:01:06.580 And I'm so glad that we got a hold of Mark Joseph Stern, the intrepid legal reporter at Slate, one of the smartest and most principled and insightful legal writers working for my money and also a really sweet guy.
00:01:22.800 So, Mark, thank you so much for being with us here today.
00:01:25.660 Thank you so much for having me on and for those kind words.
00:01:28.460 I am truly delighted to be here, even though we'll be talking about so many awful things.
00:01:33.160 Yeah, I do wish it was under better circumstances.
00:01:35.500 Yeah, and I guess so many is already giving us the first keyword.
00:01:38.280 We're going to have to narrow things down.
00:01:39.620 This is basically the first few weeks of any Trump term at this point are essentially decorative
00:01:45.300 gourd season for the very niche slice of person currently comprising like 100 percent of this
00:01:50.060 podcast, which is queer people who like, uh, constitutional rights. Uh, it's just, there's
00:01:55.640 like, there's a lot to pick from, uh, there's basically a new outrage sort of down the pike
00:02:00.580 every 20 minutes. And, uh, you know, we're already, we've planned to talk about a thing that has
00:02:06.080 already been rescinded like an hour ago. So, um, one thing that I think we should probably do at
00:02:11.320 the beginning is to kind of just delimit what really we're going to be talking about and what
00:02:15.940 we're going to focus on as you walk us through it, Mark. I agree with Moira that I've been
00:02:22.980 dying to talk to you about these because with some of them, I really can't make heads or tails of
00:02:28.020 them. But there's just too many of them. And that appears to be part of the design, isn't it?
00:02:33.680 Oh, I certainly think so. I mean, Steve Bannon, one of Trump's advisors, has said the plan is to
00:02:39.380 flood the zone. That is precisely what he's doing. This is really unprecedented. I mean,
00:02:45.260 typically presidents sign a handful of executive orders on day one, Trump just started and never
00:02:51.060 stopped. And a lot of these orders are poorly drafted. They are sloppy. They look like they
00:02:56.620 were written with the help of chat GPT. There are weird grammatical errors and repetitions
00:03:02.160 and formatting errors. And the one renaming the Gulf of Mexico to the Gulf of America
00:03:06.620 truly sounds like it was written by AI doing its best to sound like maybe a seventh graders book
00:03:12.680 report. And so they're not all created equal. Some of them are more serious than others. Some
00:03:18.400 of them are more sweeping than others. Some of them sound really bad. And then I read them and
00:03:21.960 I say, I'm not even sure what this does. Some of them don't sound so bad. And then I read them and
00:03:26.240 I'm like, this is horrifying. And so it's a real mixed bag. And I do kind of wonder if Trump is
00:03:34.520 forever changing how new administrations begin with this, because the next president, if he or
00:03:41.060 she is a Democrat, it's going to have to repeal all of these on day one. And I do think we're
00:03:45.320 entering maybe an escalation cycle where the first 24 to 48 hours of every presidency is just
00:03:51.500 consumed by repealing and replacing a massive number of executive orders.
00:03:57.640 You know, like you, Mark, I've been like reading these and reading about them and trying to parse
00:04:02.540 out exactly what they do. Right. And it seems like a lot of these are really ambitious,
00:04:08.580 expansive um orders that seek to sort of you know sometimes really change or expand the powers of
00:04:16.940 the presidency itself um but then some of them are a little weird and the extent of their uh reach
00:04:26.160 is kind of unclear to me and one of these was trump's dei order could you tell us a little
00:04:31.380 bit about this because it's opaque to me how much this expands, like what it would do for federal
00:04:40.240 programs and then also what it would do for the private sector.
00:04:44.700 Yeah. So before I get into the details, I just want to sort of remind everyone when we talk
00:04:50.420 about executive orders, we are just talking about something that the president tells the executive
00:04:56.860 branch to do. The executive branch is not the only branch of government. As of this moment,
00:05:02.160 the other two still exist. So an executive order cannot change existing law that Congress has
00:05:09.380 enacted, although they can certainly try. An executive order cannot overturn a constitutional
00:05:15.640 amendment. All that Trump can do with these is tell other agencies or the armed forces,
00:05:22.420 here is how you have to operate. And they're all susceptible to legal challenge, as we've seen.
00:05:26.860 Some of them have already, in fact, been blocked.
00:05:29.220 So the DEI initiatives or repeals, I should say, that Trump has enacted are first and
00:05:37.240 foremost aimed at ridding DEI of throughout the entire government, forcing every single
00:05:44.960 agency as well as the military to abolish DEI programs, to abolish DEI councils, to
00:05:53.120 abolish any kind of position or contract or program that mentions or reflects upon diversity,
00:06:03.480 equity, or inclusion. And I'll just add, troublingly, he has inserted an A into this,
00:06:09.760 D-E-I-A. The A stands for accessibility. Well, accessibility is required under the Americans
00:06:16.160 with Disability Acts and follow-up legislation. So that's one area where Trump might try to
00:06:22.520 legalize discrimination against disabled people through these orders, but he really can't. Now,
00:06:26.980 whether there will be a pushback is another story. So the main goal here is to just purge
00:06:32.500 all DEIA from the federal government. And I think he succeeded. I mean, again, this is an area where
00:06:38.000 the president has very wide latitude. And I think that he has scared most agencies into submission.
00:06:45.420 We've seen a lot of agencies already fire people, lay people off, put them on leave,
00:06:49.140 who had work in the DEIA area. And notoriously, his administration also sent around an email
00:06:56.400 telling every federal employee, you have to report colleagues who are covertly engaged in DEIA work.
00:07:07.180 And if you don't, there will be discipline and penalties for you. So they've set up a snitch line
00:07:11.840 requiring reporting of this kind of work. Now, I'd say that's the main thrust of the orders so far.
00:07:19.140 Again, less than two weeks in, a lot could change. There have not been as many orders aimed at the
00:07:26.920 private sector here. But what I think Trump is doing is laying the groundwork for a lot of
00:07:32.980 investigations into the private sector if it continues to use DEIA. So these orders are filled
00:07:38.780 with language claiming that DEIA is itself discriminatory, that it is a mandate that the
00:07:47.460 race be considered, that sex be considered, that people of color be given special privileges,
00:07:53.420 and that it is therefore a violation of various civil rights laws. And he has begun to order
00:07:58.640 both the Justice Department and civil rights offices within different agencies to look into
00:08:04.300 and investigate alleged violations of civil rights law that take the form of DEIA. So I think private
00:08:10.540 employers are worried right now. They have not been directly targeted, but I think they are very
00:08:16.960 much up next. And a lot of their offices of compliance that have been doing DEIA for a while
00:08:22.980 in part to try to shield themselves from liability to argue, hey, we're inclusive. We are following
00:08:27.480 civil rights laws. They are now doing a 180 and trying to erase the existence of these programs 0.84
00:08:32.660 in the first place. So let me get this straight, because my understanding was that a lot of these
00:08:42.300 you know DEI human resources um like you know diversity and recruiting uh and like sensitivity
00:08:50.000 parts of the employment world right these like large sectors my understanding was these were
00:08:57.780 initiated in response to civil rights laws that arose sort of in the latter half of the 20th
00:09:06.640 century that sought to end historic forms of discrimination and harassment based on these
00:09:12.560 various identity categories that were historically excluded from positions of like dignity, power,
00:09:19.340 you know, remuneration, right? So we're talking about like people of color, we're talking about
00:09:23.060 women, we're talking about anybody who might be LGBTQ, right? And these are efforts to remediate 0.97
00:09:31.040 Their historic exclusion, first in the law and then in this kind of broader industry or sector of inclusion, diversity and HR professionals that stepped in to try and assist employers in complying with that law and dealing with the fallout when they don't.
00:09:53.960 Right. But now what you're telling me, Mark, is that the Trump administration is sort of like a re-envisioned civil rights law that was meant to ameliorate those historic exclusions into something that can be used, like maybe even to reaffirm them.
00:10:08.460 Right. To say it's, in fact, the attempt to not discriminate against women and people of color that is a violation of civil rights law.
00:10:16.940 Can you tell me a little bit more about that line of thinking and where it comes from?
00:10:19.940 Yeah, I mean, I think you've interpreted it correctly. I might put it a little bit more cynically. I think that a lot of corporations have used DEI as a shield when they are accused of racism or sexism or discriminatory hiring practices. They will put money into these programs and trainings. And then if someone claims discrimination, they say, well, we couldn't be discriminatory because, look, we do all this DEI stuff.
00:10:41.700 And that was to some degree encouraged by the federal government up until about January 20th.
00:10:47.560 I mean, the Equal Employment Opportunity Commission, which is sort of like the chief enforcer and interpreter of civil rights laws, it has been promoting DEI work in the workplace and not for the cynical reasons I just laid out.
00:11:01.060 I mean, I think that there was a hope that some of this would really break through.
00:11:04.600 it would encourage employers to think critically about implicit bias and harassment and hostile
00:11:10.120 workplaces and root out some of the ongoing discrimination that exists. But as soon as
00:11:15.340 Trump took office, he fired much of the EEOC and has now anointed a new acting chair who
00:11:23.260 considers DEI to be discrimination, reverse discrimination against white people and against
00:11:29.220 men. And now she is putting out all of this guidance saying that if you have DEI, then you're
00:11:34.560 going to be susceptible to enforcement actions. And that is real whiplash that I will say, I think
00:11:40.040 corporate America just doesn't like. They really like stability. It's now feeling to them a bit
00:11:45.740 like they were tricked into adopting these policies that now are going to follow them around
00:11:50.940 and mark them as discriminators. But I do just want to add before we move on one stinger to this,
00:11:57.180 which is that to me, to some degree, the DEI orders are a distraction from Trump's bigger,
00:12:05.060 broader repeal of all existing affirmative action programs in government employment and
00:12:11.380 contracting. So a couple of days after he issued the DEI orders, he repealed a series of executive
00:12:17.320 orders that go back decades and decades that required the government to be an inclusive
00:12:23.800 employer, I think affirmative action is almost a misnomer to attempt to build out diverse workplaces
00:12:29.400 to ensure that they were not discriminating against people of color and against women to
00:12:34.280 make a conscious effort to bring underrepresented minorities into the government into government
00:12:39.460 work. This is stuff that survived Ronald Reagan, that survived George W. Bush. Trump has repealed
00:12:46.060 that. And I think that is going to have an even bigger and immediate detrimental impact on the
00:12:50.440 lives of a lot of Americans who aren't straight white men. And I just think all of this comes
00:12:55.180 straight out of like the Republican Party and the Project 2025 ideology that sort of takes the
00:13:03.040 idea of colorblindness to a new extreme and argues that really it's straight white men who are being
00:13:08.900 discriminated against today, that they are the ones who face violations of their civil rights
00:13:13.560 and that there's way too much wokeness and it's going overboard and it's elevating mediocre people
00:13:20.580 of color and women over qualified straight white men. And this is an attempt to sort of right the
00:13:26.700 ship. And this is, I think, rampant throughout Project 2025, throughout a lot of the Republican
00:13:32.120 Party's policy documents and Trump speeches. I'm not surprised that they're trying to put it into
00:13:36.940 law, but all of this stuff can be reversed by the next president. The big question is, will they
00:13:41.860 push something like this through congress that really sticks for decades right you're saying
00:13:45.900 this is like you know this project 2025 it's clearly an sort of a very old GOP talking point
00:13:51.320 at the same time it is also clearly how someone like Elon Musk sees DEI right where like DEI sort
00:13:56.800 of becomes just code for the presence of non-white non-male people in positions of authority and 0.81
00:14:04.620 power right and you see that I think very very well in the military ban which we're going to get 0.96
00:14:10.040 to where it's clear that like the presence of women in the military is taken to be a negative 0.95
00:14:16.820 by itself it's not an indicator of bad practices only through bad practices could these women
00:14:21.340 possibly have risen to these to these um uh to these positions of power and you got that with 0.99
00:14:27.680 in hexeth's confirmation hearing right where um he kept going on about quotas that that didn't exist 0.85
00:14:32.760 because like to him there was just no way that the ladies were just succeeding on on on the merits
00:14:39.200 that they were measured on um i also i do want to briefly point out that like the um i always love
00:14:46.400 it when the free speech to you know snitch line pipeline strikes again like i feel like republicans
00:14:52.320 cannot ever safeguard anyone's freedom of speech should you maybe report on your neighbor do you
00:14:57.100 do you need a 1-800 number you can call just uh very very fun and and i think you're right that
00:15:02.120 that's of course how the chilling effects of this like will be suffused well beyond what the federal
00:15:08.080 government is really able to direct the influences, the fear of being singled out, the fear of the
00:15:13.200 bully pulpit, the fear of having bad stories about you circulate through these kinds of
00:15:19.860 tip lines seems to me is going to be a bigger motivator for extremely publicity-averse
00:15:27.040 corporations than any federal regulation ever could. Yes. And I think it'll encourage
00:15:32.340 discrimination against women and people of color, right? Because it causes suspicion
00:15:36.280 over all women and people of color and power for the reasons you just laid out. 0.93
00:15:40.260 You know, there's going to be a suspicion that they weren't they didn't earn their place. 0.62
00:15:43.800 They were DEI hires. And so I think, you know, moving forward in order to avoid being accused of wokeness and DEI,
00:15:51.880 there will be perhaps even more over discrimination against non-traditional candidates applying for positions.
00:15:57.120 And that is, again, the intent of these orders.
00:15:59.720 Yeah, this strikes me as a function and part of like the like cynically wielded capaciousness of the term DEI. Like, Adrian, you were pointing this out that like, you know, there are these corporate programs. I think those of us on the left tend to specifically and like, you know, those of us committed to identity based social movements tend to kind of mock. Right.
00:16:19.760 They are about covering your ass for litigation liability, sort of DEI industry was actually invented specifically by Sears, which at the time in the 1980s was one of the biggest employers in the country, as a way of forestalling this massive strike that was going to be put on organized by the National Organization for Women. 0.86
00:16:44.580 It's a really interesting story. And, you know, it was it became it was invented as a sort of counterpoint to these social movements. But then in the conservative imagination, it's come to stand in for them. Right.
00:16:57.540 And so because DEI can mean either a like sort of specific corporate initiative with sort of capacious goals or because it can be kind of a euphemism just for the presence of women and people of color in positions of like dignity, power, authority, right?
00:17:16.220 that means that something like this snitch hotline you know i'm trying to i'm trying to
00:17:21.240 imagine like if you are a corporate employee with some right-wing grievances um or a federal
00:17:28.360 employee with some right-wing grievances and you want to call the snitch hotline like what would
00:17:33.660 you report exactly how do they delineate what is and is not dei because there's a whole vocabulary
00:17:42.000 now, which has, you know, some place of prominence in the new Trump administration that just
00:17:47.860 sees DEI as the moral offense to any white man who might have a non-white man boss, you
00:17:53.800 know?
00:17:54.220 Well, historian of the term political correctness here, they've been doing that to us for 50
00:17:59.140 years in academia, right?
00:18:00.380 Like people report these things to mostly conservative foundations and like no one knows 0.92
00:18:05.100 what the fuck any of it means. 0.94
00:18:06.420 And in the end, it was like, well, this person taught a class that has the word queer in 0.99
00:18:09.400 it.
00:18:10.040 That's all that happened.
00:18:11.120 But it's the same as everything else, right? It gets lumped together. And I think you're exactly right. The point is it increases risk. And as Mark is saying, these are some of the least risk-happy actors in America. And they're hearing the signals loud and clear, I think.
00:18:33.300 so one theme we've seen i think moving on is the you know the attempt to give like culture war
00:18:41.360 grievance and like outgroup animus the force of like executive branch policy right and that i
00:18:49.680 think brings us nicely to the trans executive orders adrian and i were texting last night and
00:18:55.540 he kept talking about like oh i'm reading i'm writing about this trans executive order and i
00:18:59.400 was like, which one? There's been so many. So Mark, could you like walk us through a little bit
00:19:06.240 about the new administration's attacks on trans people and their civil rights and access to the
00:19:12.340 public sphere? And then we can get into the nitty gritty about these different orders.
00:19:16.620 Yes. So they fall into two buckets. Essentially, there's the first order that attempts to ban
00:19:27.040 transgender people from serving in the military, that seems to threaten ejecting the many
00:19:36.500 transgender people who are currently serving in the military, because under President Barack
00:19:44.400 Obama and then under President Joe Biden, they were allowed to enlist and to serve openly in
00:19:49.440 the military. And this order directs the new Secretary of Defense, Pete Hegseth, to craft
00:19:55.220 some kind of policy that is anti-trans. We'll get more details in the coming weeks. This is
00:20:00.360 already being challenged in a few different lawsuits, but the obvious goal is to prohibit
00:20:06.020 trans people from enlisting, exclude and eject trans people who are already serving, and if
00:20:12.020 somehow any trans people remain, to bar them from obtaining gender-affirming care. And I just want 0.57
00:20:17.820 to read from this order because I think it's quite striking. This is straight from the executive
00:20:23.080 border quote beyond the hormonal and surgical medical interventions involved adoption of a
00:20:28.740 gender identity inconsistent with an individual sex conflicts with a soldier's commitment to an
00:20:34.180 honorable truthful and disciplined lifestyle even in one's personal life a man's assertion that he
00:20:40.300 is a woman and his requirement that others honor this falsehood is not consistent with the humility
00:20:45.880 and selflessness required of a service member. So this is horrific language, sheer animus,
00:20:53.340 and it's really quite different from Trump's first effort to enact a trans military ban in
00:20:59.560 his first term. In that go round, he tried to dress this up in a deep concern for military
00:21:09.560 readiness and unit cohesion and also some concern for the budget. He argued that covering transgender
00:21:15.580 people's healthcare was really expensive. He argued that it was demoralizing for troops to
00:21:20.920 have a transgender person among them, that it was a problem in showers and other intimate areas to
00:21:27.240 have transgender people, and that it prevented them from being able to train properly, to deploy
00:21:32.200 correctly. All of that was pretext. All of that was bogus, right? There were no actual problems
00:21:37.360 with transgender people in the military, but he tried to dress up in a pretext. Now it is all 1.00
00:21:42.020 out there, right? He is not holding back. He is not pretending. This is just openly rooted in
00:21:48.820 hatred and bigotry toward transgender people. And that is also very much true of his other order, 1.00
00:21:55.440 which is an attempt to severely restrict the provision of gender-affirming care to people
00:22:01.660 under the age of 19. And just note, that includes 18-year-olds. That includes legal adults.
00:22:06.440 This order folds in people who are 18 and of legal age. And the order attempts to deny coverage for gender-affirming care on various federal health insurance plans for federal employees, for members of the military.
00:22:22.280 It attempts to defund all medical and research institutions that support or provide gender
00:22:29.440 affirming care to people under 19.
00:22:31.400 So withholding appropriated money, withholding grants to hospitals, for instance, that have
00:22:36.000 gender clinics for use.
00:22:37.640 And it also directs the Justice Department to consider prosecuting doctors who have provided
00:22:42.880 gender affirming care under a few different laws that actually don't fit this purpose
00:22:47.200 at all.
00:22:47.700 And I don't think that will work, but that's a whole other story.
00:22:49.980 Um, that too rooted in, I think, obvious animus toward transgender people. And I also think that
00:22:57.240 by folding in adults, 18 year olds, that is a trial balloon for a future order that would expand
00:23:03.800 this way beyond young people that would apply to all people, including all adults and attempt to 0.68
00:23:09.980 kick them off of, uh, you know, gender affirming care by denying, uh, health insurance coverage
00:23:16.380 or some other legal mechanism of enforcement. 0.89
00:23:19.480 The last order is the one that I've been really reading carefully over the last 12 hours.
00:23:24.260 And it's really interesting, right?
00:23:26.600 Like the fact that like there now is supposed to be a category of young people who are over
00:23:33.660 the age of 18, who can buy guns, smokes, start an OnlyFans, all that, but who mysteriously 0.69
00:23:41.860 cannot consent to gender-affirming procedures of any kind. They mean even puberty block, I mean, 0.89
00:23:49.440 yes, yes. That includes hormone therapy, I should be very clear.
00:23:52.960 Yeah. I mean, you're right. It's already an adult trans care ban, right? So it's really
00:24:01.040 quite amazing how, you know, I thought they would have been more incremental. And I think you're
00:24:05.700 absolutely right to say that, like, they're just really barely bothering to hide their animus,
00:24:10.440 Right. There is the the version of this argument that you can sort of launder where it's like about the very young and about, you know, they're so impressionable and they're all exposed to social contagion and all that shit. 0.94
00:24:22.420 You can get people to nod along with that, but they didn't go for that. They went for a far more maximal version.
00:24:26.820 I think that's that's really worth pointing out. 0.69
00:24:29.400 The second thing that I think is so interesting is, you know, I had forgotten that the first trans ban and the first Trump administration had been all about unit cohesion.
00:24:39.100 They were still reheating the arguments about gay people in the military and about gay marriage in their first go-around with the trans panic.
00:24:49.020 This time, this seems far more oriented towards—it's far more internationalized.
00:24:55.520 This is looking at how the UK is banning gender-affirming surgery, gender-affirming care, and that kind of thing.
00:25:02.380 Right. Like they've become far more recognizably in their attitude towards towards gender and sexuality.
00:25:08.780 Part of sort of this. This international illiberal movement, haven't they?
00:25:14.400 I certainly think so. I also think that they believe they have the courts in their pocket this time around and they weren't so sure last time.
00:25:21.620 I mean, remember when Trump took office in 2017, that was, you know, the Supreme Court that had decided marriage equality.
00:25:28.180 That was a small with four liberals and Anthony Kennedy, who had some sporadic concern for the rights of minorities.
00:25:35.140 Now Trump enters office with a six justice conservative supermajority.
00:25:40.560 And so I think that across the board, with everything we're talking about today, he and his aides are just less concerned about pretext, less concerned about coherence, less concerned about something they can sell to the courts.
00:25:53.140 They assume that they are starting with implicit approval from the courts.
00:25:57.160 And so, yes, they are adopting this language that the illiberal right has sort of peddled internationally about how this is protecting children from mutilation and from transing and all of all of that stuff.
00:26:11.220 But they also probably don't even think they need a reason. 0.52
00:26:14.020 That strikes me as campaign rhetoric and window dressing.
00:26:17.380 They're doing this because they can.
00:26:19.280 Yeah. This this might bring us to one thought I had about this sort of longer view legal strategy, you know, such that there is any behind a lot of these EOs is that it seems like the Trump administration is sort of like asking for the moon under the anticipation that there's going to be a TRO and that like some of it is going to get thrown out.
00:26:42.460 But I think that, you know, by the time the federal courts are done with some of these executive orders, policy will have still been changed in a pretty significant way. Right. Like I'm thinking about the the Muslim ban in Trump's first term. Right.
00:26:58.080 It was a campaign promise he had made in pretty explicitly racist terms, you know, and then he gets in and he bans travel from seven Muslim majority countries.
00:27:12.440 And what the when the Supreme Court, you know, ultimately does uphold this because they find a way to ignore his stated motivations for the ban.
00:27:23.160 Right. Yeah, I think the Muslim ban is is clearly the model here. 0.96
00:27:27.120 You know, you come out the gate with the broadest possible version. It gets blocked. You refine it. It gets blocked again. You keep refining it until you figure out exactly where the courts are willing to draw the line and exactly what they're willing to let you do. 0.99
00:27:40.500 But again, you know, these are just much more conservative, Trump friendly courts than last
00:27:45.680 time around.
00:27:46.220 And so when they do come out swinging for the moon, they think they're going to get the
00:27:50.740 moon and they don't think they're going to have to make many compromises.
00:27:53.940 And, you know, reading again, that language in the in the trans military ban, I mean,
00:27:59.240 that shows zero concern that the courts are going to be a check on this. 0.56
00:28:03.300 That that shows to me that they just think they're going to win that case and most of
00:28:08.100 these other cases.
00:28:08.820 And so even though that is the model to try, try, try again until you got something that squeezes through the courts with enough votes, I just think it'll be a whole lot of an easier process for them in 2015 than it was in 2017.
00:28:22.020 Yeah, I mean, they might be just going by the fact that they listen to oral arguments and scrimetti, right? And that they're like, well, clearly, they do not give a shit what the arguments are for a trans care ban. They're just going to do it. 0.95
00:28:33.560 So this also brings me, I think, to the third trans executive order, which was issued a few days ago, which now feels like a few decades ago. 0.77
00:28:42.340 But there's one ordering that for the purposes, like for executive branch purposes, the agencies will only acknowledge two sexes, male and female.
00:28:58.060 Yes.
00:28:58.320 And it had a little like a Easter egg of fetal personhood in there, too, didn't it?
00:29:02.720 Yeah, the sex that you are assigned at conception as an embryo, that that is the sex that you are locked to for your entire life under the federal government.
00:29:13.020 And under this order, all government agencies have to assign to you that sex, your embryonic sex, one might say, which, as you just indicated, Moira, suggests that embryos are somehow people that can have, you know, definitive sex and seems to maybe lay the groundwork for some further orders down the road that try to establish fetal personhood or embryonic personhood, as the Alabama Supreme Court has already tried to do.
00:29:43.020 you know, that will have an immediate impact in maybe a narrower way than some of these other
00:29:49.240 orders, but still a really alarming way. I mean, the State Department almost immediately took away
00:29:54.540 the ex-gender marker for people applying for passports or renewing passports. That is wild
00:30:00.740 to me because intersex people exist. Yeah. And that marker was actually partly the result of a
00:30:08.000 court case in which an intersex person sued and said, I am not male or female as a matter of
00:30:12.560 biological reality. Now that it's gone, I have no idea what intersex people are going to do.
00:30:18.620 And the State Department and other federal agencies also claim that they're going to
00:30:23.280 only recognize the so-called birth sex of a transgender person. But, you know, most states,
00:30:30.500 including all blue states, allow you to change your birth certificate when you transition.
00:30:35.420 And normally the federal government doesn't undertake a holistic investigation to ensure
00:30:40.360 that your current birth certificate is the one that aligns with what the government sees as your
00:30:45.180 sex. So I don't know how that's going to work. I'm also not totally clear on whether this only
00:30:49.560 applies prospectively. The administration has suggested that it might, but it's been going
00:30:53.300 back on a lot of its promises. So there's a lot of chaos and confusion for transgender people right
00:30:58.060 now, particularly over identity documents like passports and visas, where it's just unclear if
00:31:04.940 transgender people can ever get, you know, legal recognition from this federal government, or
00:31:09.860 if Trump is going to just mandate four years of relentless discrimination against trans and
00:31:15.420 intersex people. I understand this also has some implications for trans people incarcerated in
00:31:20.220 federal prisons. Is that true? I know that there is a lawsuit already challenging the order on
00:31:25.960 these grounds. Yes. So this order purports to force transgender people in federal prisons to
00:31:34.340 essentially de-transition and to be housed with people from their sex assigned at birth. So it
00:31:41.220 purports to cut off all access to gender-affirming care in prison. That includes hormone therapy. 1.00
00:31:48.080 Again, that is just forcibly de-transitioning people. And it will force, for instance, 0.89
00:31:53.380 you know, a transgender man to be housed with cisgender women and force a transgender woman
00:32:00.400 to be housed with cisgender men, which is, we know from years of experience, certain to increase
00:32:07.020 the odds of sexual abuse, of violent assaults, among other inmates. It's going to be really 0.79
00:32:12.500 devastating. It is being battled in court. It's not clear at all that Trump has the legal authority
00:32:17.520 to withhold gender affirming care, especially from adult patients. But, you know, this is the
00:32:25.140 new frontier. And as Adrian said, the Supreme Court sounds like it's going to abandon the
00:32:30.980 rights of transgender people after oral arguments in the Scrimetti case. So this is one where Trump
00:32:35.260 just thinks he'll be able to get away with it. One of the things that looking over these is so
00:32:40.540 chilling, more I just call them Easter eggs. They're these things that have buried further
00:32:44.460 down where you're like, oh my God, this is even scarier. And I guess I'd like you as a legal
00:32:51.440 expert to sort of tell me how that then works. I mean, because ultimately this is just, as you say,
00:32:56.500 these are sort of the marching orders that the executive gives to its organs, right? It's saying
00:33:02.600 like, this is how we will now enforce existing statutes. But, and I guess the question is these
00:33:10.700 really serious kind of hat tips towards, let's say, fetal personhood or the threat to come after
00:33:19.840 parents who let their children transition in the most recent trans care ban. What do you make of
00:33:25.540 those? Is that essentially red meat for someone or does this really have, does that have potential
00:33:30.960 teeth? Well, so some of it is red meat and I think some of it is just chum for the base. And I'll
00:33:37.280 note that Trump has issued some really awful orders on abortion. He has pardoned some extremist
00:33:44.400 activist who blockaded abortion clinics illegally. His Justice Department is going to stop enforcing
00:33:50.780 the federal ban on the blockade of health clinics, reproductive health clinics. He has reinstated the
00:33:56.620 Mexico City policy, the so-called global gag order that strips money from organizations around the
00:34:02.300 world that even mention abortion. But he has not gone further yet. Now, that is a big yet.
00:34:09.760 he's got plenty of time left to wreak havoc, to try to restrict medication abortion, to try to
00:34:15.420 prosecute doctors who provide abortion, especially medication across state lines. But he hasn't done
00:34:21.240 it yet. And I think that some of this stuff, like the fetal personhood, wink, wink, is maybe an
00:34:26.580 indication to his base that he's going to get there, that he can't do everything at once. Yes,
00:34:30.620 he's flooding the zone, but they have to be at least a little bit careful in how they structure
00:34:34.480 this stuff. And by planting these, I don't even know, time bombs, he's just telling all of his
00:34:42.740 coalition, don't worry, I will tend to you as well. I might not be there yet, but I will get
00:34:48.080 there. And I'll also just note, I mean, I'm not usually one for Nazi comparisons, but people may
00:34:55.560 be familiar with the expression working toward the Fuhrer. This was how Adolf Hitler governed.
00:35:01.080 He would sort of set out a broad and vague goal and then encourage his underlings to try to work toward that goal in increasingly extreme ways. 0.62
00:35:11.040 I mean, I think that perfectly describes how Donald Trump operates, right?
00:35:14.460 He is not a stickler for policy details.
00:35:18.440 He doesn't care about or even understand policy.
00:35:21.440 What he does is declare a very, very broad goal or vision and then hire a bunch of people who have extreme and radical views who are in constant competition with each other to work the fastest and the hardest to achieve that vision.
00:35:36.040 And that is a lot of what I think is going on with these orders.
00:35:38.620 Or to even fill that vision with a content it may not have originally had for the very simple sense that Trump doesn't have a whole lot of content.
00:35:46.300 It's not that he was more well-meaning.
00:35:49.120 He just didn't mean anything by it or different people were giving him different wordings.
00:35:55.220 And yeah, I think that different parts of the coalition are going to try to hang different
00:35:58.300 things onto these executive orders.
00:36:00.360 And I definitely see your point that a lot of the sort of the back end of these executive
00:36:06.100 orders clearly is drafted with that in mind.
00:36:08.240 Some freak out in Idaho or wanting to like show up in front of Judge Kuzmarek in Texas
00:36:15.400 can go through that and be like, OK, I got a test case for this one.
00:36:18.560 let's do it speaking of easter eggs i wanted while we still have you mark to turn to trump's
00:36:27.400 orders on citizenship and the border and to talk about his taking up of a little easter egg that
00:36:35.720 had been left by judge james ho of the fifth circuit uh saying that you know in the in this
00:36:43.680 opinion uh judge james ho friend of the pod uh not to be confused with judge dale ho who's a very
00:36:51.200 never judge ho um but uh james ho had made an argument in one of his fifth circuit opinions
00:36:59.200 saying that the 14th amendment's birthright citizenship provision would not be extended
00:37:06.840 to say the offspring of an invading army right and lo and behold one of trump's first uh actions
00:37:16.440 in uh his new administration was to declare the border an invasion and shortly thereafter
00:37:23.200 attempt to uh functionally like nullify section one of the 14th amendment uh by throwing out
00:37:29.400 birthright citizenship can you like am i crazy and thinking i mean i i should never um underestimate
00:37:36.300 the the potential for like malevolent conspiracism here but i'm am i crazy in in seeing these as
00:37:41.680 linked orders so i don't think you're crazy at all um i think there is a connection what relief
00:37:48.200 i i do i like i i'm with you 100 on that and yet at the same time i do think it's a little bit
00:37:55.560 weird that the administration has not linked the two orders as explicitly as you might expect so
00:38:01.720 just just to back up a little for listeners who aren't aware the very first sentence of the of
00:38:06.200 the 14th Amendment guarantees birthright citizenship to almost everyone who's born
00:38:10.280 in the United States. There is an exception that's long been understood that was
00:38:15.020 discussed by Congress at the time in ratifying this amendment that was recognized by the Supreme
00:38:19.940 Court not long after, that children of diplomats and children of invading armies do not get birthright
00:38:28.280 citizenship because they are subject to foreign jurisdiction. They are not fully subject to
00:38:34.020 American law. There are all of these international laws that apply to the children of invading armies
00:38:39.060 and of diplomats. So they are the exception. But that's it. That's pretty much all that is
00:38:45.680 relevant today. And for years, Judge James Ho, friend of the pod, I suppose, has actually been
00:38:52.920 the most eloquent conservative defender of birthright citizenship. He wrote a really,
00:38:59.280 really good law review article some years ago, explaining this, explaining those exceptions,
00:39:03.620 talking about how they operate, why they're there, and explaining that they do not apply to the
00:39:09.220 children of immigrants, including undocumented immigrants, because, you know, Congress actually
00:39:14.860 discussed and debated the issue of immigrants' children and said, you know, as a rule, they
00:39:19.680 become citizens. But James Ho recently reversed himself last year. He issued this really crazy
00:39:27.100 opinion arguing that there was an invasion of migrants at the southern border. And then he
00:39:32.020 quickly did a follow-up interview with Josh Blackman, a Republican partisan law professor,
00:39:38.880 in which he said, well, of course, you know, when migrants are invaders, they're basically an
00:39:44.380 invading army. And that means that their children can be denied birthright citizenship. Taking all
00:39:49.400 that together, you see this new emerging argument for denying birthright citizenship to the children
00:39:55.400 of undocumented immigrants. All the government does is declare that they are invaders, says that
00:40:00.360 their children are not subject to American jurisdiction and denies them citizenship.
00:40:04.420 I will note that Trump's order purporting to deny birthright citizenship to the children
00:40:09.400 of immigrants also applies to lawful immigrants.
00:40:11.760 It applies to immigrants who have visas, including H-1B visas, immigrants who have been here
00:40:16.260 for years, who are just awaiting their green card.
00:40:19.240 So this does not just apply to undocumented immigrants.
00:40:21.760 But now to tie that all together, Trump did issue an order declaring that there was invasion
00:40:26.300 at the border.
00:40:27.140 He did issue this order I mentioned declaring the end of birthright citizenship.
00:40:30.360 but he didn't link them together at all. He did not say, I'm ending birthright citizenship because
00:40:35.460 there is an invasion. And his Justice Department has not been raising that argument in court so
00:40:40.220 far. So I think that you're not conspiratorial, Moira. You might just be a little bit smarter
00:40:45.180 than the people who are writing these orders who have not yet figured out how to patch together
00:40:50.560 the various sort of legal conspiracy theories that would provide intellectual scaffolding
00:40:55.100 for the end of birthright citizenship. Smarter than a Trump administration lawyer. My God.
00:40:59.520 On your tombstone, it'll say that. I mean, it would be very, very funny to claim that people who hold H-1B visas are outside of the jurisdiction of the United States when they hold H-1B visas on the jurisdiction of the United States.
00:41:19.780 Like their literal status is tied up with the thing you claim they're not subject to. That's amazing.
00:41:24.400 Yeah. I mean, it doesn't make any sense. Right. And undocumented immigrants, too. We can arrest them. We can detain them. Like, of course, they're subject to American jurisdiction. They are not like diplomats. They are very different.
00:41:32.880 With so many of these things, it seems unclear whether or not they're retroactive.
00:41:38.320 Birthright citizenship is not.
00:41:39.780 It's not.
00:41:40.340 It's it's it's prospective, not retroactive.
00:41:44.120 So I've heard like all very various kinds of people pointing out like, OK, well, this
00:41:49.200 would invalidate the citizenship of Usha Vance, for example, who was born in the United States
00:41:54.100 to parents who were on a visa.
00:41:57.000 That's not it's not taking anybody's citizenship away yet.
00:42:01.460 it's about babies who are being born now. Well, I'm told that the people who arrived on the
00:42:05.560 Mayflower did not fill out the correct paperwork either. So I'm thinking I'm looking kind of rough
00:42:11.060 for some Boston Brahmins there too. Great, great, great, great, great, great grandchildren of 0.99
00:42:16.100 border crossers. Yeah. I mean, I think the key word is yet though, right? Because there's nothing 1.00
00:42:22.220 in this order that limits it to prospective newborns, except the sentence, by the way,
00:42:29.120 this doesn't kick in until February. If this were upheld in court, then the Trump administration
00:42:35.000 could, I think, start applying it retroactively as well and stripping people of birthright
00:42:40.520 citizenship, which is especially crazy because birthright citizenship is actually the reason
00:42:45.820 why the vast majority of Americans have citizenship in the first place. When you are born in America,
00:42:51.740 the government doesn't demand to know your parents' immigration status. When you send in 0.87
00:42:56.940 your child's birth certificate to get them a social security number. They don't send agents
00:43:00.920 to investigate whether you were on a H-1B visa or a green card. You are a citizen because you
00:43:07.100 are born here. And so if the Trump administration tried to do this retroactively, then a lot of us
00:43:12.780 would suddenly not have a very clear way to prove our citizenship. I mean, maybe we'd say our parents
00:43:18.100 are citizens, but they got citizenship probably because they were born here. So it really does
00:43:23.160 lead to a place of confusion and chaos that I don't think the Trump administration wants to go,
00:43:27.080 at least not yet. Well, I mean, I think what it is, is who's is getting challenged, right?
00:43:31.960 There's already, you know, stories of Puerto Ricans being, you know, being detained,
00:43:37.600 even though they're US citizens. And I mean, that's what it would boil down to, right? That
00:43:42.600 like, if you look right, if you register in the right part of the paint swatch, you basically
00:43:50.580 will not be challenged, but if you look wrong in any way, you could be, right?
00:43:55.140 I think Mark is also pointing out something interesting, which is that the Trump administration
00:43:59.920 has conflicting ambitions, right? Because on the one hand, they want to create this like vast
00:44:07.220 punitive network, which can deprive rights and dignity of all different kinds of people
00:44:14.260 based on, you know, some of the orders that we've gone through today, and then some of,
00:44:19.480 you know, what we know that the rest of their ambitions are. But on the other hand, they want
00:44:23.400 to dismantle the administrative state, right? They're trying to get all these federal employees
00:44:29.000 to take a buyout. They've got Elon Musk trying to, you know, dramatically reduce the federal
00:44:34.840 workforce the way he reduced the Twitter workforce, I guess. And the notion that you can do things
00:44:42.220 like, you know, strip citizenship from people while at the same time firing all the bureaucrats
00:44:48.160 who would be tasked with doing such a thing. Seems to me to be like a contradiction at the
00:44:52.960 center of this project. I certainly think so. And I also think that Trump is overestimating how many
00:44:57.940 capable and competent lawyers and policy experts are waiting in the wings to step in and help him
00:45:04.780 achieve these policies. I mean, he's purging all of these holdovers and commissioners and board
00:45:11.760 members and bureaucrats from every corner of government, right? The inspectors general,
00:45:15.660 members of the National Labor Relations Board, of the Equal Employment Opportunity Commission,
00:45:20.360 of the Justice Department. He's claiming a right to fire civil servants who have merit
00:45:26.980 protections under federal law. The goal is not just to fire these people, but to replace them
00:45:31.340 with loyalists who will do his bidding. But again, I just don't think there are that many people who
00:45:35.700 fit the bill. They've had years to gather this army, and the army hasn't really materialized.
00:45:41.120 it's still a relatively small world, because I just frankly think that most people who are
00:45:46.100 intelligent and competent enough to do this work don't want to do evil, cruel work for the
00:45:52.160 government. Like, that's just not why most government employees are in this. That's one
00:45:55.740 of the reasons you see so many resignations from agencies like the Justice Department that have
00:45:59.560 been taken over by, you know, hacks who want to do bad work. Like, government employees tend to
00:46:04.400 be good people, and they want to help other people. They don't want to inflict harm. So I do
00:46:09.940 think the hollowing out of the administrative state is going to be a persistent problem for
00:46:13.480 Trump over the next four years. I think that as he tries to repeal old policies, as he tries to
00:46:19.040 enact his own policies, he's going to keep running into roadblocks of competence. And then the
00:46:24.800 question becomes, well, will that matter in court, which is where it all kind of shakes out? Or will
00:46:31.720 he have the court so firmly in his corner that it won't matter? I mean, remember, in his first term,
00:46:37.120 Trump screwed up several times in this realm with, you know, administrative law that came
00:46:44.440 back to bite him. He tried to add a citizenship question to the census, but his bureaucrats were
00:46:49.320 really sloppy and they lied about it. The Supreme Court blocked it. He tried to repeal DACA so that
00:46:53.720 he could deport dreamers, but the whole process was really sloppy and illegal and the Supreme
00:46:58.060 Court blocked it. But that was a different Supreme Court. So if he continues to do stuff that's both
00:47:02.460 illegal and really sloppy and he does not have the brightest minds working for him and it all
00:47:07.540 looks like pretty crappy work product and it winds up before the Supreme Court, do they just close
00:47:11.720 the gap for him and say good enough and rubber stamp it? That is perhaps my single biggest
00:47:16.580 question moving forward. Yeah, that might be a decent place to wrap up. You know, a nice high
00:47:25.600 note on the on the notion that these people are mostly too stupid to achieve everything that they 0.99
00:47:30.420 want, even though I do think it's terrifying that now we are at the mercy of the federal 0.99
00:47:33.940 courts.
00:47:34.860 Yeah, that we're at that point where we can't decide whether they're the nine most terrifying
00:47:38.660 words or the nine best words in their most hopeful words in the English language.
00:47:42.620 I'm from the government and I'm a Trump replacement hire.
00:47:46.920 Thank you so much, Mark.
00:47:48.240 Mark, it was so lovely to have you.
00:47:49.740 Thank you for doing this at the last minute and for walking us through the last, you know,
00:47:55.100 days of craziness.
00:47:56.060 I feel like I've got a lot more clarity now after talking to you.
00:47:59.720 Yeah, thank you so much for having me on.
00:48:01.080 A pleasure to be here.
00:48:14.200 In Bed with the Right, we'd like to thank 0.85
00:48:15.720 the Michelle R. Clayman Institute for Gender Research
00:48:17.980 for generous support.
00:48:19.240 Jennifer Portillo for setting up our studio.
00:48:21.680 Our theme music is by Katie Lau.
00:48:23.380 Our producer is Megan Kalfas.