Host: [00:00:00] Welcome to Discourse, where we cut through the noise and make sense of the chaos. I'm your host, Wayne Ungar. 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, and more.

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.

All right, welcome back to Discourse. We are recording today's episode at 3 p. m on Saturday, March 15th. And I note, as always, things may have changed since. On today's docket. Our primary story is going to be the equal rights amendment. I'm going to get into that and where we are at as a country on a potential 28th amendment to the United States constitution.

But before we do that, once again, it was another busy week. So there's lots of things to talk about, and I'm going [00:01:00] to start with this Quite appalling answer to a member of the press's question by the press secretary. So here we go Get an update on it District Court rulings about all the fired probationary workers You used the same language here just now I was in a statement about fighting back against that ruling Do you mean appealing or something else?

And does the administration plan to comply with those orders? Uh, fighting back by appealing, fighting back by using the full weight of the White House counsel's office and our lawyers at the federal government who believe that this injunction is entirely unconstitutional, and it is for anybody who has a basic understanding of the law.

You cannot have a low level district court judge filing an injunction to usurp the executive authority of the President of the United States. So I'm just going to pause it there. This clip is about 95 seconds long and I'll make sure that we hear the entire clip during this episode. But I just want to address what she says in parts here.

The question is from the [00:02:00] press member, are we going to fight back? On the injunctions against the termination of probationary employees. And now I've talked in past episodes about what the Trump administration has been doing with respect to the federal workforce.

And I've discussed how, for example, you may disagree with the end goal of the Trump administration, or perhaps you may agree with the end goal, which is shrinking the federal workforce, but then we have to acknowledge that there's a different way to do it. There are different means to do it, and the law prescribes specific ways in which you must do it, in which if you're going to terminate members of the federal workforce, you have to follow these processes and procedures.

That said, What the White House press secretary here says in response is yes, of course, we're going to fight it and we're going to fight it with appeals. That's a great start to her answer. No, it really is. It's a great start to her answer because that is the [00:03:00] way in which you fight in our system. If you dislike a court's ruling, as here, the Trump administration does not like district court judges issuing injunctions against them with respect to the termination of federal workers. So you appeal those decisions. That is the proper process. But after she starts off, well, she goes off the rails here and she begins to talk about, if anyone has a basic understanding of the law, you know that this is unconstitutional.

Well, first, when I started this podcast, I said, I wanted to avoid sensationalism and I wanted to have reasonable, rational dialogue. and discourse, civic discourse. But there are some things that I just cannot help but say. And in this case is, are you kidding? To the White House Press Secretary, it is obvious that you do not [00:04:00] have the basic legal understanding of the law.

As somebody who is, one, a lawyer, and two, a law professor, you are just Wrong. Or perhaps you just missed the nuance here and you failed to communicate it. Perhaps you knew the nuance and you chose not to say it. Here's the thing. It is completely constitutional for a federal judge to review the actions of the executive branch.

It happens all of the time. With that said, here we have federal judges who are interpreting the law with respect to the process, the policy, and the procedure for terminating federal employees. And the Trump administration has, as we've talked about on this podcast, and as others have said, and as other media agencies have said, Has time and time and time and time again ignored what the law requires of them with respect to terminating federal workers.

And so, [00:05:00] because there are laws in place, as the press secretary put it, low level federal judges cannot do this. Actually, they can. It's, it goes back to some of the earliest cases in the United States Supreme Court history, perhaps like Marbury versus Madison, that says, yes, The courts are the appropriate venue when somebody has a legal right as a probationary employee, as an example.

If a probationary employee has a legal right that was given to them by the Congress, saying that you are protected in this sense, you are at least protected procedurally from being terminated, or if you are terminated, you have to have these procedures in place in order for that termination to be lawful.

Well, Marbury versus Madison says that is perfectly within the domain of the federal courts. So for somebody to say, if you don't have a legal background or if anyone has a legal background, they wouldn't know that this is [00:06:00] unconstitutional. It's actually the reverse. It's the reverse in that if you have a legal background, if you went to law school, one of the very first cases that you learn in constitutional law, and I know this because I teach it and so do all of my peers in constitutional law, it is Marbury versus Madison.

And Marbury versus Madison says it is the court's role to say what the law is and to hear these type of disputes. Now, she seems to downplay the role of federal judges, which is very intriguing because President Trump, after his first term, certainly upplayed the federal judges in that they set a record for the number of federal judges that they had a confirmed

in that regard here, we have the White House Press Secretary essentially saying that these are nobodies, that these are low level federal judges. These low level federal judges, by the way, Just so you know, have tremendous power, [00:07:00] tremendous power. Most of the legal disputes in the federal court system are settled at the district court level, period.

That's the trial court. That's where you bring a case in the first instance. And only a few cases, a small percentage of cases, ever work their way up to the United States Supreme Court. Moreover, these low level judges are appointed for life until they retire or until they die on the bench. So they have lifetime appointments.

Again, they have their job security for life, and this is the furthest thing from what I would say is a low level judge. Let's go back to what she was saying here. That is completely absurd, and as the executive of the executive branch, the president has the ability to fire or hire, and you have these Lower level judges who are trying to block this president's agenda.

It's very clear to block this president's [00:08:00] agenda. Well, perhaps it's a matter of how are you implementing your agenda and not blocking the agenda itself? Because if you actually look at the judges who are issuing these preliminary injunctions and temporary restraining orders against the Trump administration, they are of all.

Political ideologies. We have Trump appointed judges. We have Biden appointed judges. So the mere notion that this is somehow politically motivated and it's because they don't like the Trump administration's agenda. It's absurd. And as I just cited, I was appalled by the statistic when I saw it this morning, in three or in one month in February, there have been 15 injunctions of this administration in our agenda.

In three years under the Biden administration, there were 14 injunctions. Okay, so major difference between the Trump administration and the Biden administration. The Biden administration made every [00:09:00] attempt to follow the law. Uh, to follow process, process, process and procedures and protocol and whatever the law said.

So whatever they were trying to do, they tried to do it lawfully. Now as the press secretary just said, there have been essentially the same number, if not more injunctions filed against the Trump administration since he was inaugurated about two months ago than in three years of the Biden administration.

Perhaps the better question to be asking there is, why? Why have there been so many injunctions issued against the Trump administration? Perhaps it's because he defies what the law says, and he continually tries to break the law. And if he continually tries to break the law, then yes, judges step in in order to preserve the law and interpret what the law says.

So, it's not a political thing here. It's not. It is a, which administration [00:10:00] was better at trying to implement their agenda within the confines of the law. And that is clear. The Biden administration was the better administration in implementing its agenda. The Trump administration, as we saw during the first Trump administration for that matter, sucks at it.

That's just like an objective fact. What they try to do continually gets blocked by the courts because they don't try to do it through the proper procedure, through the proper policies, through the proper protocol. They don't. They don't even bother. It's very clear that there are judicial activists throughout our judicial branch who are trying to block this president's executive authority.

We are going to fight back. And as anyone who saw president Trump and his legal team fighting back, they know how to do it. He was indicted nearly 200 times and he's in the Oval Office now because he was indicted nearly 200 times. The white house press secretary is bragging about how. He [00:11:00]was indicted over 200 times.

I, I don't know about you, but it just seems like that's a silly. Argument to make I understand her point, which is we have a very strong legal team and we win from a legal perspective And yes, that is true to a certain extent the trump administration donald trump specifically they have won in the courts Many times but they've also lost many times And there's also been kind of a maybe we won on this point, but maybe we lost on this point. This response from the White House press secretary is just beyond me because there are so many things that are wrong with it, but perhaps I switch gears just for a second to say, what could she mean here if she actually knew what she was talking about?

Well, number one, is it unconstitutional for the president to be enjoined from firing employees? Okay, there you have a point, but you failed to articulate this, [00:12:00] Press Secretary. The point here is, the President does have the removal authority, and that's incidental to his appointment's authority under Article 2 of the United States Constitution.

Article 2 of the United States Constitution says that the President has the authority to appoint. Officers of the United States government, be it, for example, a cabinet member, the secretary of defense, or the CFPB director as an example. And there are some agencies that the president oversees that were created by Congress, either by their agencies function, or by the law that make them independent agencies.

And what I mean by independent agencies are Congress recognized. That there are several agencies that must be insulated from politics and if we can mitigate the political influence that's that that is a better way of having this agency [00:13:00] go about its business because of the nature of what that agency does.

So, for example, the Federal Trade Commission is about consumer protection and the Federal Trade Commission or FTC for short is led by. a board of five commissioners, the FTC commissioners, and the president gets to appoint those commissioners. But those independent commissioners as an independent agency, the FTC commissioners are protected from at will removal, meaning the president can only terminate officers of independent agencies for cause. At will removal is impermissible. Now there are some scholars, and I acknowledge that this argument is there. There are many scholars who argue that that removal protection, right? That for cause removal protection of independent agency officers is unconstitutional as it infringes upon the president's removal authority under Article two.

But the [00:14:00] case law is quite clear here in the case is Humphrey's executor. That's what the case is called and in that case the United States Supreme Court basically upheld the notion of independent agencies and the for cause removal protection of those agencies officers and so for right now The law is that yes, the president's removal authority can be constrained in certain circumstances.

And here, Congress, with respect to these federal workers, yes, they're not officers of the United States where the political appointments subject to the advice and consent, AKA the confirmation of the United States Senate, yes, these probationary employees are. Federal employees, not necessarily political officers or principal or inferior officers of the United States government as the constitution recognizes them. As employees, they still have some [00:15:00] level of protection put forth or implemented by Congress.

And so it's a very similar analogy to where if Congress can create protections for principal and inferior officers, when they are leading independent agencies under Humphrey's executor. Then certainly Congress can put protections in place with respect to federal government employees, at least from a policy and a procedural standpoint, and that won't frustrate the president's removal authority here. So really what the press secretary was trying to say but failed miserably at Articulating this is number one to a certain extent Yes Congress can act in such a way that prohibits the removal of a federal employee or a federal officer But that would be unconstitutional because it would infringe upon the President's Article II authority.

Except it's not as clear cut as [00:16:00] that, where Congress can, and the Court has recognized that they can, put some protections in place, and the President must abide by those protections. So that's really what the Press Secretary was trying to say here, but just absolutely failed miserably, talking about how it seems like this is a bright line rule.

And it's not a bright line rule. What I mean by that is the press secretary seems to imply that, well, if any federal court tells the president that they can't fire somebody, that that is unconstitutional. And the answer is, or the proper response is that's just not true. That's just not true. It's not. I don't know how other way to put it.

It's just not true. 

Speaking of litigation against the Trump administration, that brings me to my next point, which is what is playing out in the courtrooms across the country with respect to the litigation against the Trump administration. I came across this quote from a legal giant in the Northern district of [00:17:00]California.

So he's a federal district court judge, William who sits on the bench in the Northern District of California, which is housed in San Francisco. And I coincidentally happened to have attended a hearing in his courtroom and it seems like a very bright, nice guy. That said, he attacked the Trump administration for the following.

I'm going to read you his quote and then I'm going to explain what it means. He said, just this last week, Quote, you will not bring the people in here to be cross examined. You're afraid to do so because you know cross examination would reveal the truth. This is the United States district court.

Whenever you submit declarations, those people should be submitted to cross examination, just like the plaintiff's side should be. Then we get at the truth of what's actually true. I tend to doubt that you're telling me the truth whenever we hear all of this, when we hear all of the evidence eventually.

[00:18:00] Why can't you bring your people in to be cross examined or deposed at their convenience? I said two hours for Mr. Azzell, a deposition at his convenience, and you withdrew his declaration rather than do that? Come on, that's a sham. It upsets me, and I want you to know that. I've been practicing in this court for over 50 years, and I know how we get at the truth.

And you're not helping me get at the truth, you're giving me press releases, sham documents, and I'm getting mad. End quote. 

Alright, so let's talk about this. What we're seeing across the federal courts, as illustrated here in the Northern District of California, is the Trump administration attorneys, as they're arguing for the Trump administration, the Department of Justice attorneys, as they make these arguments in court to defend the Trump administration, they're submitting all sorts of court filings.

Some of them, Like, in this case, be it a declaration. So, you can have an [00:19:00] individual, and apparently, according to, Judge Alsop, this is Mr. Azzell. Mr. Azzell submitted a declaration to the United States District Court for the Northern District of California, and it said something. And usually when you submit a declaration, it's sworn under oath.

And a declaration quite merely is a printout of what you are saying to the court And what happens here is whenever you testify before a court, you are subjecting yourself to cross examination and the reason for that is, in general you are, and the reason for that is cross examination is a fundamental component of our adversarial judicial system.

And what I mean by that is, our judicial system is set up to where you have uh, cross examination is when two opposing parties are arguing against each other, and on direct examination, here, you have the opportunity to , hear a witness's [00:20:00] testimony.

Cross examination is the opposing party's opportunity to cross examine that witness, and by cross examining, in theory, you can attack the holes in their story. You can discredit the witness. That is how you get to the truth, which is, you need cross examination in order to poke holes, in order to identify whether this witness is actually telling the truth.

And it certainly appears that in this Northern District of California case, That Mr. Ozzel submitted a declaration to the United States District Court and the judge asked for him to be deposed or perhaps the opposing party wanted him to be deposed and being deposed is essentially cross examination where the opposing party gets to ask you a bunch of questions to see whether you're actually getting at the truth.

That is a fundamental component of the United [00:21:00] States judicial system. Here, instead of, as the court mentioned, instead of having Mr. Azell sit for a deposition, they withdrew his declaration, which certainly implies that perhaps he wasn't telling the truth in the declaration. because that would all come out on cross examination during that deposition.

So it's the Trump administration, in a way, making a mockery of the process. And for me, that is quite sad. 

Now this part we are recording on Monday March 17th at 9 30 a. m And again, I note things may have changed since so over the course of the weekend We had some more immigration news and in this regard it follows up on the press secretary's comments So first, the Trump officials will answer today in court on Monday, March 17th for the alleged defiance of an immigration order.[00:22:00]

And this traces back to two legal immigrants into the United States. According to NPR, Trump officials are due in federal court in Boston on Monday to answer what the judge calls serious allegations that they disobeyed an order by sending a doctor who was lawfully working in the United States back to Lebanon. In that case, which coincides with the news of a German born green card holder being detained.

These are raising concerns about an immigration crackdown in Boston. This doctor is a kidney transplant specialist at the Division of Kidney Disease and Hypertension at Brown Medicine, an affiliate of Brown University. The doctor was in the United States on what's called an H 1B visa, meant for highly specialized workers.

She went to go visit family in Lebanon in February. February, and when she returned to Boston's Logan International Airport, she was detained for 36 hours and had her phone taken away from her, according to court documents filed by her cousin. And her cousin is who [00:23:00] obtained the court order temporarily barring officials from sending her back.

Now, colleagues say. That the doctor's lawyers made a frantic call to Airport Control Tower to try to stop the plane from taking off after getting that court order. But they were unable to do so. So now, the lawyers accuse the U. S. Customs and Border Protection, or CBP, officials of willfully disobeying a court order by sending her back to Lebanon.

So this is one of the stories. Now switching over to the German national In a separate case of a German national, family members say a 34 year old electrical engineer, Fabian Schmidt, was detained for days when he tried to return to Logan International Airport from a trip to Europe.

Now, they allege that he was violently interrogated, according to NPR. They said that he had to go and be stripped naked and was showered by two officers in ice cold water and then was interrogated again, his mother said to NPR. [00:24:00] He hardly got anything to drink and he wasn't feeling very well when he collapsed.

Schmidt was then transported to a Boston hospital and later found out that he had influenza, according to his family. 

Now, Hilton Beckham, CBP's Assistant Commissioner of Republic Affairs, says that CBP is committed to protecting the United States from national security threats. And in so doing, Beckham also claims that the claims made against CBP with respect to the German national are blatantly false.  

 Schmidt's family says that he has faced a misdemeanor drug and DUI charges about a decade ago and more recently he didn't show up for a court hearing, but the relatives say that he never received notice. Meanwhile, CBP, specifically the spokesperson Beckham, says that when an individual is found with drug related charges and tries to re enter the country, Officers will take proper action.

 Now at the same time, also breaking over the weekend is the United States deporting hundreds of Venezuelans to El Salvador despite a court order. [00:25:00] So, over the weekend, the Trump administration deported approximately 250 people who it says are members of a Venezuelan prison gang, and they deported them to El Salvador this weekend with multiple members of the administration.

Saying that on social media now It was not immediately clear if the deportations happened before or after a federal judge in Washington, DC on Saturday issued an emergency order that told the Trump administration to stop using wartime powers to immediately deport people. And the order also said for the Trump administration to turn around any planes that were already in the air. Senior Justice Department officials in a filing on Sunday argued that the order came too late to stop the deportations as the planes were already outside of the United States Territory be it that they were in international airspace now a little bit of background on this story President Trump on Saturday issued a proclamation invoking what's called the alien enemies act of 1798 [00:26:00] against this Venezuelan prison gang.

Now the seldom used law gives the president the authority to detain or deport nationals of an enemy nation during wartime or invasion. It's the first time that the act has been used since World War II. The deportations to El Salvador also included two alleged leaders of the MS 13 gang. Which wasn't included in Saturday's action and 21 other members of the gang, according to the post by the Secretary of State, Marco Rubio, and the El Salvadorian president, MS 13, however, started in Los Angeles in the 1980s.

But many of its members also operate in El Salvador, and the Trump administration has designated it as a foreign terrorist organization. Now, the lawsuits brought in Washington, D. C. to stop the Trump administration from deporting these individuals was filed by the ACLU and Democracy Forward in Washington, D.

C. The ACLU is about protecting civil liberties, and that's what the core of this case [00:27:00] is. If we look at the text of the Alien Enemies Act, it clearly states limiting language. And the obvious limiting language here is the authority conferred by the act is meant to be confined to a time of declared war.

 Congress has the authority to declare war, not the President of the United States. It also confines the authority to any invasion or predatory incursion by a foreign nation or government, which again has not occurred in this instance, enacted at a time when Congress was out of session more than it was in session.

It made sense for the legislature to allow for the possibility that the United States might be invaded by say, England, and yet out of session when Congress would not have had the chance. to declare war.

And that is according to Steve Vladeck, a law professor at Georgetown. Now, he also says, indeed, the only invocations of the statute prior to this weekend prior to Friday [00:28:00] had come during the United States. Three biggest declared wars. The war of 18 12 The first world war and the second world war. It has not been used since.

Obviously the United States is not currently at war with any country, including Venezuela. And in his proclamation, president Trump tried to get around this by rather glaring defect in referring to the gang as part of a hybrid criminal state. That is perpetuating an invasion of and predatory incursion into the United States, which poses a substantial danger to the United States.

That language specifically targeting what the grant of power is given to the president of the United States in the alien enemy act. Now here's the thing about executive action. So executive action, whenever the president of the United States acts, whenever he tries to do something, whenever he tries to, in this case, deport individuals, he has to reference some grant of authority.

And that grant of authority can either come from the constitution [00:29:00] or from a statute enacted by Congress. So in this case, the president of the United States is invoking the alien enemy act and saying that he was given the authority to do so by Congress. Now keep in mind, the alien enemy act is of 1798.

So quite the old act to invoke, but nonetheless, still good law here in the United States. 

And if there is no legal authority, if nothing is granted to him by the constitution or by a statute passed by Congress, then he cannot do something. He cannot do it. So consider this in the Biden administration, the first time Biden tried to forgive student loans, he pointed at something called the HEROES Act, saying that Congress gave him the authority to waive or modify student loan programs during times of national emergencies. And the national emergency at the time, of course, was COVID 19. Except here, the Supreme Court said, well, no, not quite.

If Congress [00:30:00] actually intended for you to have that authority, it would have explicitly stated so with a clear congressional intent. So here, the Trump administration has to point at something in order to proceed with the deportations. And in this case, the Trump administration has found the Alien Enemy Act to be somewhat given of authority.

So, that's where he points. Now, the question here is whether there are any constitutional liberties that are violated. And of course there are. I am not trying to downplay the seriousness of any kind of violent actions or criminal tendencies of these individuals who were deported, well specifically the ones to El Salvador .

So in the cases that I just recapped, we have the German national, the Lebanese doctor who works at an affiliate of Brown University, and then we have the 250 plus individuals who were deported to El Salvador. 

Certainly, I would say, I think most people would agree that the kidney transplant [00:31:00] doctor who was deported to Lebanon, poses no national security threat to the United States, and in fact, is probably someone who we want here in the United States delivering kidney transplants, At least on the deportees to El Salvador, certainly I'm not trying to downplay the threat to national security because for all we know, they are a threat to national security.

But, what I am trying to say here is that our Constitution affords everyone, whether you are lawfully in the United States or not a right to due process and that right to due process is before you are deprived of your life, liberty, or property, including your right to be here in the United States. You have a right to due process, a procedural due process, which includes notice and an opportunity to be heard.

Now in this case, the alien enemy act. Says that you are not entitled to due process or certainly not entitled to the level of due process that would ordinarily be afforded to individuals. [00:32:00] Now, the concern here is the Trump administration's blatant defiance, one, of court orders, and two, of a constitutional liberty or constitutional right to due process.

I have previously mentioned this in some of my past episodes to where For example, if the Trump administration just blatantly defies a court order, what happens then? That is a constitutional crisis in the making. If the president just snubs his nose at a court order saying that he must do something that is blatantly unconstitutional for one.

And despite the press secretary's language here in that press conference that I previously played on this episode, that Is in itself a defiance of the constitution that in itself is saying we disrespect and disregard the separation of powers because the court does have every authority to order a temporary restraining order or a preliminary injunction to stop the president from doing [00:33:00] something unlawful.

And these are the checks and balances in our system that the framers put in our system to where the branches of government all check each other to make sure that no one branch becomes too powerful. And that's what we see here is an utter failure of these checks and balances. Number one, the president of the United States is defying court orders or beginning to defy court orders.

And that is, again, a violation of the separation of powers. It is also of concern to me that Congress, and we saw this most evidently in President Trump's speech to a joint session of Congress, That Congress seems to have acquiesced to the president justifying the separation of powers. Things like shutting down agencies and departments in the federal government despite congressional mandates that they exist, and despite congressional mandates that they are funded.

With Congress, of course, holding the power of the purse, the appropriations power, as I've mentioned in other episodes as well. So in this [00:34:00] regard, Congress is just sitting by and allowing the President of the United States to defy what Congress has said and to defy what the Constitution limits the President and what the Constitution gives Congress the authority to do.

So not only are there civil rights and liberties, such as a right to due process, being violated in these circumstances, we also have the right to the separation of powers being violated between the three branches of the federal government. Now state governments, of course, are filing suit and other organizations such as the ACLU are filing suit to block some of these actions.

But at the end of the day, if they obtain a court order, as we have seen in these immigration cases, The Trump administration proceeded to defy the court orders anyways, so we are setting up a constitutional crisis insofar as we will see what the federal courts do next, and we'll see what the federal courts attempt to do to constrain or confine the Trump administration.

But despite the press [00:35:00] secretary's argument that this is somehow the federal judiciary's attack on the Trump agenda, no, no, no, Ms. Press Secretary, this is actually the federal courts making sure that the laws are being followed. And in that regard, the reason why the Trump administration has had so many TROs And preliminary injunctions issued against it is because it seems to defy the laws as set.

And if you compare that to the Biden administration, where the Biden administration only received less than 20 preliminary injunctions over the course of its administration, according to the press secretary. Well, that's because the Biden administration made every attempt to follow the law.

And here the Trump administration is not even attempting to do so. And in this regard, we are seeing, we are seeing what Trump said during the election. That he would be a dictator on day one. As a fundamental aspect of dictators, ignore the [00:36:00] rule of law, ignore what the law says, and ignore The limits to their authority that the governing documents, such as a constitution, or the legislative body, such as Congress, put on the presidency.

That is a concern that should concern all Americans.  

Yeah.  

Host: Switching gears and returning to our recording from Saturday, March 15.

 Breaking just yesterday, congress has passed the continuing resolution to keep the government funded and open. And I don't want to comment on that because actually I haven't had the chance to read the body or the substance of that continuing resolution. 

 I think what highlights over the last week of this, this fight over the continuing resolution is, and I've said this before, I've said this way before the Trump administration, Trump 2 came into office, I said this during the Biden administration, [00:37:00] I've said it prior to, perhaps during Trump 1, that the Democrats need new leadership.

That is just my fundamental, and I think that was more evident. In the last week over the continuing resolution than we've seen in the past .

Here's what pains me is at some point retire to our Great public servants who have served in congress for years for decades And who are reaching their 80s and 90s? retire already Retire. You have done great service and for that I am appreciative, but it is time for the baby boomers to hand the baton to the next generation, be it Generation X and Millennials.

It is time. And so, Chuck Schumer, I thank you for your service. I'm gonna call you out specifically. It is time to pass the baton.

Now on that point, why does the Democratic Party [00:38:00] need a change in leadership? Because we are reaching a point in which the baby boomers as a voting bloc are diminishing. And the Gen Xers and the Millennials and of course Gen Z right behind them are continuing to grow in their electoral power.

And we need a new generation of leadership who knows how to message and cater to that new generation of electoral power. 

All right. With that said, let's turn to our main story for today. The Equal Rights Amendment. You may have heard of the Equal Rights Amendment. In fact, it's been proposed and it's been debated for decades now, but perhaps you've heard about it. At the end of the Biden administration's first term, so a little bit of history regarding the Equal Rights Amendment.

It was first proposed in 1923 by Alice Paul and Crystal Eastman. In the final weeks of President Biden's term, President Biden declared the [00:39:00] Equal Rights Amendment to be the law of the land and officially part of the United States Constitution as the 28th Amendment to the United States Constitution.

But here's the thing. Under a 1984 law, the Archivist of the United States is charged with issuing a formal certification after three quarters of the states have ratified an amendment. Now that has not occurred in this case.

So it's not entirely clear from a legal standpoint on whether the equal rights amendment is truly a part of the constitution or not. And when there's been any doubt regarding the ratification of an amendment in the past. Congress has simply passed a resolution declaring it to be valid, and so they've been adopted.

And I'll talk about that specifically in the context of the 14th and 15th Amendments in a second. As of January 27th, 2020, the Equal Rights Amendment satisfied the requirements for ratification under Section 5 of the United [00:40:00] States Constitution. Section 5 of the United States Constitution requires, number one, that any amendment or proposed amendment to the United States Constitution must pass both the House and the Senate by a two thirds vote.

After it passes Congress, then it gets sent to the state legislatures for approval, and three quarters of the states have to ratify an amendment in order for that amendment to be adopted into the Constitution. Three quarters of the states, well with 50 states, the requisite threshold is 38 states today.

Here's the kicker with the Equal Rights Amendment. When Congress initially passed the Equal Rights Amendment in both chambers, they set a deadline. They set a deadline for when states had to ratify it. And, Within a year after the initial amendment passed both chambers in Congress, 30 out of the necessary 38 states ratified the amendment.

But then, [00:41:00] the amendment came under attack. And specifically, it came under attack by conservative activists. Conservative activists claimed that the measure, the Equal Rights Amendment, would lead to Gender neutral bathrooms, same sex marriage, and women in the military.

We've heard this. We still hear this to this day, this argument from the conservatives that gender neutral bathrooms are bad, that same sex marriage is bad, that women in the military is bad. The thing is, we are still doing quite well as a society. Even with gender neutral bathroom, same sex marriage and women in the military.

I'm just going to put that out there. Now, by 1977, 35 states ratified. So Congress voted to extend the deadline by three additional years, but it was still not able to reach the required 38 states until the Biden administration. And I think Virginia was the 38th state to ratify. But here is the [00:42:00] other kicker.

Not only did Congress set a timeline, That timeline was stated in the preamble of the bill. So there's a legal question there, which is whether the timeline can be given effect as a part of the preamble and not the operative part of the bill. The second part is five states. Five of those 38 states eventually rescinded their ratification votes.

And here, the other question is, can a state rescind its ratification vote? Congress confronted this question twice during the ratification of the 14th and the 15th amendments following the Civil War. In each instance, Congress adopted resolutions declaring the amendments to be ratified, ignoring purported state rescissions.

Essentially, Congress decided, no state, once [00:43:00] you have ratified, you have ratified and you cannot rescind that ratification. But a court, I believe in 1980, said, That, yes, a state can rescind its ratification, but that wasn't the United States Supreme Court, so certainly it can only be taken with a grain of salt, because I think eventually the United States Supreme Court will have to confront the issue on whether the Equal Rights Amendment is, in fact, part of the United States Constitution.

I realize that I didn't get into what the Equal Rights Amendment It actually stands for, in the Equal Rights Amendment, the text is basically about gender equality.

 The Equal Rights Amendment says, quote, Equality of rights under the law shall not be denied or bridged by the United States or by any state on the account of sex.

It prohibits sex based discrimination at the Constitution level. [00:44:00] Some argue that the 14th Amendment already does this with the Equal Protection Clause. So the 14th Amendment Is one of the three reconstruction amendments that were enacted after the Civil War

the Reconstruction Amendments, that term comes from post Civil War where we were reconstructing the Union after the South lost the Civil War. And the 13th Amendment, as a quick summary, prohibits slavery and involuntary servitude. The 14th Amendment has several key provisions, but most notably is about due process of the law and equal protection of the law.

Equal protection refers to the idea that a governmental body, be it a state or the federal government, may not deny people equal protection of the laws. Now, that governing body, either the state or federal government, must treat an individual in the same manner as others in similar conditions and circumstances.

There is [00:45:00] some permissible discrimination that can occur by a government body. And that discrimination is tested primarily under a strict scrutiny review, which means that the government must show that the discrimination is narrowly tailored to achieve a compelling government interest in order for it to be permissible.

That applies for most suspect classes, such as race or alienage, as an example. If the discrimination is based on race or alienage or national origin, then the government must justify its action under a strict scrutiny review. But, if it's based in sex, if it's a sex based discrimination that is allegedly violating the Equal Protection Clause, then the courts have to apply the Intermediate Scrutiny Review, which is, the government must show that whatever it's trying to do, that discrimination on the basis of sex.

is substantially related to an [00:46:00] important government interest, so it's a slightly lower standard. I think the effect of the Equal Rights Amendment, if actually adopted to the United States Constitution, would say, okay, any sex based discrimination must be subject to strict scrutiny, not intermediate scrutiny, as it is today under the 14th Amendment.

So in that way, it would actually improve sex based discrimination protections, at least at the constitutional level, at the federal constitutional level. The legal issues that the United States Supreme Court, I think, will eventually have to answer here are twofold. Number one, whether the timetable that Congress outlined in the preamble of the initial act can be given any legal effect.

Is that timetable valid. There have been some efforts in Congress to waive that deadline. So perhaps based on how Congress has acted, that could inform the United States Supreme Court with respect to whether it should give it some legal effect, because Congress [00:47:00] has considered that to be a binding part of the bill.

The second legal issue is whether a state can rescind its ratification vote. How do I anticipate a case will work its way up to the United States Supreme Court where the Equal Rights Amendment is at issue? It will take some case. In which somebody argues a sex based discrimination by either a state or local government, and they make a claim under the Equal Rights Amendment, and probably the Equal Protection Clause of the 14th Amendment as well.

In that claim, Before they are able to get to the merits of that claim, they'll have to answer the legal question on whether the equal rights amendment actually is a part of the United States constitution. And that's how I anticipate this will work its way up to the Supreme court is because the Supreme court will have to answer that question.

So that's the equal rights amendment in a nutshell. I thank you for joining us once again, and we'll see you next [00:48:00] time.

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 discourse pod. 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. It does not constitute professional advice or legal advice. The opinions expressed are solely those of the hosts and any [00:49:00] guests.