Discourse-E1-MIXED

[00:00:00] Welcome to Discourse, where we cut through the noise and make sense of the chaos. I'm your host, Wayne Unger. I'm a law professor and former Silicon Valley nerd, and I've spent years breaking down complex topics into digestible takeaways. And on this podcast, we'll take a deep dive into the pressing issues shaping our world in law, politics, technology, business.

No echo chambers, no corporate influence, just thoughtful analysis and respectful civic dialogue because understanding different perspectives isn't just important. It's necessary. Let's get started on today's episode. Our first for the discourse podcast, we have some breaking news out of Toronto where a Delta regional jet has crash landed, flipped upside down.

On the runway in Toronto. Now this prompts a greater question, which again, we'll talk about today on whether the department of government efficiency or doge. And their rapid reductions in the federal government, both in money spent as well as employees has likely led or [00:01:00] caused anything related to this crash.

And we'll also discuss in kind of broadening the conversation, how and why Trump is doing things that are. Unlawful and unconstitutional. We'll explain how this administration is setting up legal challenges that will result in Supreme Court precedent, either precedent being affirmed or precedent being overturned.

If there's anything that the Trump administration is good for, it is setting up constitutional questions that this Supreme Court has never had to answer before. First, because it's our first episode, let me start by explaining why I am starting this Discourse podcast. Well, first. I noticed after the election, after the 2024 election, that there was a gap in the podcast market.

We have podcasts that certainly cater to the right, for example, Ben Shapiro, Tucker Carlson. And we have podcasts that cater to the [00:02:00] left, for example, Pod Save America. And strict scrutiny. Now, these podcasts all have their place in the market and that's completely fine. I'm not attacking them, but really what I saw was a lack of thoughtful analysis and respectful civic dialogue, one that focused on the issues and not on the Put downs of the other side, or not just complaints about the other side.

And so my goal with this podcast is to have respectful discourse about the world's most pressing issues. Most of the time, it will be a solo hosted with yours truly professor Wayne Ungar. But some of the time we may have a guest appear and my goal is to have some guests that, you know, are names that you don't recognize because we want to hear from kind of ordinary everyday individuals coupled with Um, To be clear, though, some experts in various areas, [00:03:00] depending on how the news and current events shape up.

So that's why I'm starting this course. And like I said, I'm professor Wayne Unger. I'm a law professor at Quinnipiac University School of Law. But I should add a disclaimer that nothing I say on this podcast is a reflection of my employer. On today's docket, we have breaking news, the regional. Jet for Delta Airlines crashing in Toronto on the runway, and we'll look at more specifically whether that crash was caused by, or was any way kind of tied to the Trump administration and the department of government efficiency or doge led by Elon Musk.

Now I argue that that's unlikely. But we'll see how the Trump administration is doing things that are unlawful and unconstitutional in perhaps setting up legal challenges that will result in Supreme Court precedent. But first, let's turn to the Delta Regional crash. According to the Associated [00:04:00]Press, a Delta Regional plane Has crashed in Toronto.

It has flipped upside down on the runway. Now, luckily, luckily, everybody has survived. So that is great news. Unlike unfortunately the news out of Washington, DC. Just a few weeks ago where we had that unfortunate plane crash where an American Airlines regional jet crashed into a U. S. Army Blackhawk helicopter.

And if you've been following the news, we saw that unfortunately everyone perished in that crash over the Potomac River. So very unfortunate on that front. We have now seen several incidents over the last four weeks of kind of air traffic or airline safety compromises where we have, for example, the delta regional jet turning upside down in Toronto or the plane crash in Washington D.

C. With the Blackhawk helicopter. [00:05:00] Now, of course, of course, airline safety is a big, big deal. And of course that is tied to the federal aviation administration, air traffic controllers, for example, all help keep our skies safe. Now the Associated Press is also reporting today that the Trump administration has terminated several hundred FAA employees, a lot of them being on probationary status.

So they were relatively new to the FAA and they were kind of in that probationary period. Now, the Associated Press says that the impacted workers include personnel hired for FAA radar, landing, and navigational aid maintenance. I'm not entirely sure what that means, as I'm not an airline safety slash FAA expert, but what I can say is I just think it's impractical.

To [00:06:00] conclude that the reductions in force over the last four weeks with the FAA somehow contributed to the unfortunate accidents that we have seen. Certainly, we will look back and we will scrutinize, as we should, every little detail with respect to the crashes. And we should, and we should, assess whether these were human caused, weather caused, or mechanical.

Errors that led to these crashes. I think some of the preliminary reports coming out of Washington, D. C. and the National Transportation Safety Board, the NTSB, which of course leads the investigations into kind of these massive incidents, the preliminary reports are saying that The helicopter pilots of the Blackhawk, the U.

S. Army Blackhawk helicopter, likely [00:07:00] confirmed visual of an incorrect airplane, meaning that the air traffic controllers warned the Blackhawk helicopter to keep a lookout for a particular regional jet that was kind of crossing in front of it. And the initial report said that the pilots likely made con made eye contact really right made eye contact with a regional jet that was not the regional jet that the FAA.

air traffic controllers we're referring to. Now, if that's the case, of course, then that's a pilot error that potentially caused that crash. There's also a mechanical error issue that could have caused that crash. And we will know when more information comes out from the NTSB as Are there any systems aboard a Black Hawk helicopter?

This, actually, I do not know, but we know that at least commercial airliners have [00:08:00] warning systems when a plane in the air comes too close to another plane. And it, for example, yells at the pilot, move up or move down or whatever is necessary there to get out of the way to avoid a crash, a crash alert system, if you will.

And I don't know whether one exists with a Blackhawk helicopter, but let's say one does. We know it exists with the commercial airliner. So the American Airlines plane definitely had one in its system or in its cockpit. And did it work as designed? I don't think we have enough information yet from the NTSB on whether there was a mechanical error, but that aside, it certainly seems based on the information that is in the public domain, that it was pilot error on the behalf of the Blackhawk helicopter.

Now, with respect to the Delta [00:09:00] regional jet crash in Toronto, One, it originated here in the United States. It originated in Minnesota. And for anyone who is relatively familiar with kind of the airline industry for international flights, which of course this one is originating here in the United States, terminating in Toronto, California, excuse me, Toronto, Canada.

Any international flight that originates or terminates in the United States is subject to the federal safety standards and maintenance standards put forth by the Federal Aviation Administration. Any domestic plane, right? Any plane going from point A to point B where both points are in the United States, of course, are subject to the FAA regulations.

Now, any plane that is never touching, so to speak, never touching U. S. airspace may not be subject, right, to the [00:10:00] safety regulations and the maintenance regulations that the FAA Has promulgated. So since the Trump administration in the first four weeks of office here have terminated several hundred FAA employees, and we are certainly still learning what those employees were supposed to be doing, what their job and what their role was.

Here, the reports of potentially weather like winds flipping the plane and a mechanical failure, potential mechanical failure with respect to a flap. I would certainly think that as anyone who has flown, you have seen planes and pilots, for example, run the plane through a pre flight check where they have a whole process.

Going through checking safety systems, checking flaps, making sure everything works, and then they essentially sign off before they can take off here. I [00:11:00] would think right if it was actually caused by a malfunctioning flap, as some reports on social media have indicated, well, that would have been caught any malfunctioning flap would have been caught on that pre flight safety check.

Of course. Even if something operates correctly on a pre flight safety check, that doesn't mean it won't malfunction mid flight or when that item like a flap is turned on or needs to be ready to go to serve its purpose, right? So we currently, it is possible. I'll just say that it is possible that this plane met all FAA regulations, all safety checks.

The pilots did their safety checks before they took off. And if it is a mechanical error, again, as some reports have said that this was just kind of a freak accident. And that's unfortunate, but we're glad that everyone, of course, [00:12:00] is safe. Now, if it's pilot error, I'll be curious to know how pilot error results in a plane flipping upside down on a runway.

But if it's pilot error, then it's not necessarily linked to these terminations of FAA employees by the Trump administration. Perhaps the greater conversation here, which is agnostic to any one administration. Is the need for additional pilot safety training, but that again is not necessarily caused by four weeks of reducing the force at the FAA.

In other words, if you terminate somebody today that works for your employer, if they were meant to train other employees in doing their jobs. [00:13:00] In theory, the people who are already doing their jobs who have already been trained are not impacted in the short term by that termination. And that's certainly something that we could have here, where, again, the Trump administration only recently, having been sworn into office, Donald Trump being sworn into office for a second term on January 20th, just about four weeks ago, anyone terminating an FAA employee likely did not have anything to do with it.

With the pilot training or lack thereof or shortage thereof that could have occurred that led to the pilot error here again, speculating that it was pilot error that led to the regional jet crash in Toronto. So I just find it a little unbelievable and kind of unreasonable for individuals to automatically blame the Trump administration that we've had this incident [00:14:00] and that incident and that incident.

And for those reasons, the Trump administration has caused all of these airline incidents. Guys, as much as I dislike Trump, and I will say that on this podcast, as much as I dislike Trump, what we have here is a guy who's been in office for four weeks. So if anything, perhaps these incidents are illustrating an unfortunate reality, which is again, agnostic to any one president.

Anyone presidential administration and really illustrates more systemic issues that have been building up over time. That's where I begin to speculate. I begin to speculate on what are some of the root causes here that could have caused these airline incidents, whether that's pilot error, whether that's mechanical error, whether our safety and mechanical standards are up to par to where they need to be in order to prevent situations like this, these crashes from [00:15:00] happening.

Now let's broaden the conversation for a second. I mentioned earlier DOGE, right? The Department of Government Efficiency, which as a legal matter, as a constitutional matter, DOGE is not an official department, so to speak, in the constitutional or legal sense of the word for the federal government. So let's just take one step back.

At the federal government level, there are many administrative agencies. Such as the Department of Defense, Department of State. And underneath those departments, we have again, bureaus and other departments and other agencies. Just how the Commerce Department, for example, has the Internal Revenue Service or the IRS.

How the Department of Justice has the FBI. So there are kind of sub agencies, sub bureaus, sub departments for these administrative agencies. Where the cabinet officials being the heads of each of these main departments all reporting to the president [00:16:00] of the United States now, departments or the administrative state, these departments, these agencies, these bureaus, et cetera, are all created via acts of Congress.

Meaning, that Congress needs to pass a law to establish that agency. That has not occurred here with the Department of Government Efficiency. Congress has not passed any law that created the Department of Government Efficiency. So it is slightly misleading for them to call themselves. Doge or department of government efficiency, if anything, perhaps, as I know the term to mean, it's a tiger team, tiger team being a kind of temporary team that's spun up to do a particular job.

And so here we have the Trump administration potentially creating a tiger, not potentially we know they have creating tasked with [00:17:00] shrinking the federal government. Now, put the policy arguments aside for a second on whether it's wise to shrink the federal government, whether it's wise to cut budgets of some of these agencies or shutter some of the agencies like USAID.

Let's put those policy arguments aside for a second. one of these concerns. Regarding the department of government efficiency is that it has not been created by Congress. And here's why that is important. It's important because when Congress creates an administrative agency, a department, a bureau, and a, an organization within the federal government, yes, they all roll up into the executive branch and the president of the United States has kind of this quote unquote, chief executive officer of the federal government.

That said, Congress creates guidelines or say, uh, guardrails for agencies to abide by. Right. They give specific [00:18:00] tasks and they say, Federal Bureau of Investigation, this is your job, right? This is your task. And this is what you can and cannot do. The FDA. Right. Under the Food, Drug, and Cosmetic Act, Congress has specified what the FDA's purpose is and what it can and cannot do.

So the fact that we've spun up a tiger team, the Department of Government Efficiency, that was not created via a congressional act creates several issues. Number one, it's not necessarily subject to congressional oversight. It's not subject. To Congress's establishment of guidelines, rules, kind of creating these guardrails for what the agency can and cannot do.

That is of great concern, at least to me, because in a way, they are not accountable to anyone. They're accountable, yes, to the president of the United States and ultimately the president of the United States is accountable to the [00:19:00] people and to Congress to some extent. Here we have unelected individuals.

Some reports are that those individuals are very young in age. One report said that one individual on Elon Musk's core team, the department of economics, the department of government efficiencies team is 19 years old. Now, I'm just going to think back to when I was 19 for a second. When I was 19, no one should have put me near the federal government and making big time decisions like this.

Now, 19 year old Wayne would have said that I could serve in that role. That was a little level of hubris that I had. When I was of that age, but now looking back again, 19 year old, Wayne should not touch the federal government. Certainly, I lacked [00:20:00] the knowledge, the experience, the understanding of the world and how government works, how business works to be able to make proper decisions as a federal government actor there.

There are some recent reports that the Doge team has gained access to IRS databases, and of course, IRS databases where we have our information regarding what everyone's refund is, taxes owed, right, social security numbers, bank account numbers, etc. The other issue here That I'm going to illustrate with the IRS database access.

The other issue here is DOJ, again, not being accountable to anyone, is outside the kind of scope of normal government operations. Again, put the policy arguments to the side for a second. I don't want to talk about whether, again, it's wise to [00:21:00] reduce the federal government, whether it's wise to reduce the budgets, et cetera.

But at least from an oversight perspective, here we have individuals. Led by Elon Musk of various age ranges, some as young as 19, as some reports have stated having access to this highly confidential information, this highly confidential personal identifying information comes with these IRS databases or that is stored in these IRS databases.

Now, this is not the first time Doge has had access to highly confidential or highly sensitive personal information. Several weeks ago, we learned that the Doge team. Gained access to the treasury system payments system, excuse me, the treasury payment system, which also presumably I don't know this firsthand, but presumably has a tremendous amount of identifying [00:22:00] personal information.

Of sensitive nature. Now, one thing I do know quite well is privacy law, and I generally advocate in my line of work as a law professor for more robust data privacy protections. I believe, for example, that the buying and selling of data that happens on a daily basis across the world and specifically here in the United States would just blow an ordinary person's mind if they actually knew how much data about themselves was being transferred, bought, sold, et cetera, collected, even collected about themselves on a daily basis.

And I learned this through my professional career being in Silicon Valley where I actually had firsthand experience seeing personal information being bought and sold on a daily basis. Now there are of course good reasons for that. So for [00:23:00] example, when you want to buy a new car. And the dealership runs a credit check for financing.

And that dealership is going to pull your credit report from one of the big three credit bureaus, Equifax, Experian or TransUnion. So here data can work in your favor, the buying and selling of data with the dealership is doing or whoever is the kind of financing arm, what they are doing is buying data about you.

And then looking at that data to make some sort of credit decision, whether they're going to extend you credit or not. And credit in its nature is just based on trust. So the data that they're buying helps the lender identify whether they can trust you. Trust that you'll pay them back, as an example. And what's a good way to indicate your likelihood of paying them back?

Your past payment history on other lines of credit. [00:24:00] Now, again, that is a potentially good reason for the buying and selling of data. On the other side of the spectrum, we have some not so good reasons where data is being bought, sold, transferred, stored, collected, etc. on a daily basis. And perhaps I'll do a future episode That goes into more detail about data transfers, data collection, and the need for data privacy.

It's a little bit outside the scope of this episode. Here, what I can say is, if DOJ has access, as some reports have indicated, to the IRS databases, then they have access to some highly sensitive identifying information about everyone. Every taxpayer across the United States. And when that occurs, number one, there's a risk these individuals on the DOJ team because they are not subject to congressional [00:25:00] oversight.

As an example, right, they may not appreciate the privacy and confidentiality that comes with these IRS databases compared to, for example, somebody who's been at the IRS for 20 years. They may not have an understanding of the practices and the procedures and the protocols that exist at the IRS to protect the confidentiality, the security, and the privacy of the taxpayer's information.

Certainly, again, if I were to make a comparison, 19 year old me would not have appreciated any process protocols, governance systems within the organization. Of the Internal Revenue Service that again were meant to protect the privacy and security of that personal information. So I find it a little bit difficult to believe the access to these IRS databases is [00:26:00] somehow unconcerning.

I find it to be quite concerning because the individuals on these teams on the Department of Government Efficiency team. Lack the training, understanding and kind of fundamentals that you need with respect to this information. So is just one thing that concerns me. But overall, we have seen several incidents now where the Trump administration via.

The Department of Government Efficiency has acted allegedly unlawfully or unconstitutionally. We've also seen the Trump administration over the last four weeks act unlawfully or unconstitutionally if we look back at pattern, practice, and precedent. For example, early in the administration, it's only been four weeks, early in this administration, Donald Trump signed an executive order that essentially would, in his eyes, [00:27:00] undo birthright citizenship.

The 14th amendment to the United States constitution is the amendment that enshrines, basically, if you are born here in the United States and you're subject to the jurisdiction thereof, you are a citizen of the United States. Now, there's a bunch of history. That's associated with the 14th Amendment.

Going back to Reconstruction post Civil War, maybe I'll do a future episode on that point. There was a key case on birthright citizenship, and in that case the court defined what birthright citizenship meant. And in that case, the court held that if you are born here, And subject to the jurisdiction thereof, then you are a United States citizen and you've availed yourself to all of the privileges and immunities that come with United States citizenship.

[00:28:00] Now, that case was called in the United States versus Wong Kim Ark and Wong Kim Ark was denied entry into the United States in part due to the Chinese exclusion act. And he challenged this denial on the Citizenship Clause of the 14th Amendment. In short, the court said, nope, you should let him in. Now, Wong Kim Ark is good law.

That is the case that carries the day. The court definitively decided that the Citizenship Clause in the 14th Amendment means if you are born in the United States, Period, you are a citizen of the United States, period. So why would Donald Trump, as an example, knowing, and maybe not him as an individual, but certainly members of his team, like Stephen Miller, Stephen Miller [00:29:00] has more legal background than Donald Trump does.

Why are they pushing an executive order that is blatantly. Contrary to established Supreme Court precedent. Well, this is how you can create a case. Create a case that will work its way up to the Supreme Court. And almost certainly, these cases Whether it's birthright citizenship, the defunding of USAID, the defunding of other agencies, the firing of Inspectors General, who are the watchdogs and the internal investigation arms of government agencies, the firing of several hundred FAA employees.

All the things that the Donald Trump administration has done over the last four weeks. How can they do it when it's unlawful or unconstitutional? Well, it's unlawful or unconstitutional by established law or established court precedent. And how do you get something overturned? [00:30:00] Right? How does a case like Dobbs work its way up when it was contrary to Roe v.

Wade and Planned Parenthood v. Casey? Well, here we have policymakers acting in such a way to cause these lawsuits to happen. And then, knowing that they will happen, their goal is to bring them to the Supreme Court to overturn a past case, a past precedent. That they don't like, and that very much is the case here.

Let's look at birthright citizenship again. The goal here is to, knowing that it's not going to happen in the short term, knowing that they're not going to refuse citizenship in the short term to anyone born here in the United States. Knowing that this case is going to work its way up to the Supreme Court, the Trump administration is trying to get United States versus Juan Quimarc overturned.[00:31:00]

Just how the plaintiffs in Dobbs sought to get Roe v. Wade and Planned Parenthood v. Casey overturned. Whether the United States Supreme Court will actually overturn those cases, well, We'll see. But that's why the government, excuse me, the federal government and the Trump administration is acting in such a way to cause this litigation that align with a legal decision from the court, a constitutional decision from the court that align with the policy objectives that the Trump administration has.

Now, there's another component here worth mentioning, which is just last summer. The United States Supreme Court ruled on presidential immunity, specifically with respect to criminal prosecution. Now, the mainstream kind of narrative around that case was the United States Supreme Court has given absolute immunity to [00:32:00] President Trump.

Well, that's not exactly what the United States Supreme Court held. The United States Supreme Court in that criminal immunity case said, if any exercise of power by the President of the United States is conclusively and preclusively well within the domain of the executive branch, then those official acts are subject to absolute immunity.

Now, when the president acts. In a way, that's not necessarily the exercise of a conclusive and preclusive authority given to the president. Then, at the very least, the president is afforded presumptive immunity that can be rebutted. Meaning that a prosecutor, for example, could bring the case and then make the argument he should not be immune to those charges.

In last, [00:33:00] That case also clearly stated that any unofficial acts by the president of the United States, whether you're in office or out of office, any unofficial acts are not immune from criminal prosecution. So again, that, that mainstream narrative that one, this case applied to president Trump individually.

Yes, it did, but it also applies to every past president. And every future president or as long as that case exists and possibly until either we pass a constitutional amendment or the Supreme Court overturns that decision. So here we potentially have a federal government, an executive branch, President Trump and his administration acting in such a way.

To test that presidential immunity decision from the United States Supreme Court right knowing that they can act in such a way that disregards [00:34:00] the rule of law that disregards the law and what it says they can act in such a way. Because the president is immune. So I think that those are the two big things at play here.

Explain at least to a certain extent why the Trump administration has acted unlawfully and or unconstitutionally over the last four weeks. And I'll expand on these, uh, more specifically as. Uh, these episodes roll out, but for today's conversation, I just wanted to hit on those highlights. Now I've also heard the mantra, perhaps it's because Elon Musk is leading the department of government efficiency or the doge team.

The mantra that comes out of Silicon Valley is being applied to the federal government and that mantra is move fast and break things. Now there's some debate on the origin of this mantra, move fast and break things. Some [00:35:00] argue that it was founded kind of with the Facebook culture. Where they wanted to move fast and break things, innovate, innovate, innovate, sort of thing, regardless of its origin, whether it was Facebook or someone else who created in Silicon Valley or who first said it in Silicon Valley, it very much is the mentality of Silicon Valley.

And I know this as somebody who worked in Silicon Valley, who lived in San Francisco with the tech bros, so to speak. Who worked in big tech as well as software startups and that mantra, while I understand it in the tech industry in Silicon Valley, right, move fast and break things while it works there and I generally support it from an innovative and entrepreneurial perspective, it doesn't necessarily work when it comes to the government because the government is in Silicon Valley, Silicon Valley [00:36:00] has the benefit of being able to experiment.

And being able to push boundaries, being able to innovate things like self driving cars. But the government doesn't have that same luxury. Because when we move fast and break things in the government, people's lives are impacted. Social programs like Medicaid programs, Medicare, Social Security, food stamps, right?

All of these things are programs. Or government services that people rely on daily and for some it's life and death. So we cannot move fast and break things comes to government because when we do move fast and break things, we interrupt. People's lives and [00:37:00] quite simply, I don't mean to be super dramatic here, but, and quite simply, people can die, right?

Because they're so reliant. People may rely on the income from the federal government through the federal government. various programs and that federal government funding may be administered by a state government program. And perhaps the ordinary taxpayer, for example, the ordinary person doesn't know that it's actual federal funding that is funding, maybe a rent subsidy that is administered by the state or local government, but that's actually federal money.

So when we put a pause on federal funding or various programs that has downstream implications. For how that could impact, for example, a rent subsidy program that a state or local government puts on. So, all of this is to say, I hate that mantra of move fast and break things [00:38:00] with respect to the government, because we cannot move fast and break things because people's lives are impacted.

Rather, we must move thoughtfully. Deliberately. And in a way that doesn't lead to substantial disruption of everyday lives. That's it for today's episode of Discourse. Thank you for tuning in and being part of the conversation. You can catch future episodes of Discourse wherever you get your podcasts. If you found this discussion insightful, be sure to subscribe, leave a review, and share it with others who value thoughtful analysis over the noise.

You can also join the conversation by visiting DiscoursePod. org and following me on X and Blue Sky at Prof Unger for more insights and updates. Until next time, keep thinking critically, stay curious, and engage with respect. We'll see you soon.

Discourse is a commentary podcast for informational and educational purposes only and does not constitute [00:39:00] professional advice or legal advice. The opinions expressed Rest are solely those of the hosts and any guests, and do not reflect the views of any employer, institution, or organization. This podcast is not journalism and does not adhere to journalistic principles.

It offers analysis, opinion, and discussion on current events, but should not be relied upon as a news source. Listeners should consult qualified professionals for legal or otherwise expert advice specific to their situation. Thanks for listening.