[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, 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.

Welcome back to Discourse. I'm your host, Wayne Unger, and we are recording today's episode on Friday, June 20th at 1:15 PM. And on today's episode, well, we're gonna do something a little bit different for today's episode 'cause there's so much to talk about. Today's episode will be unscripted.

We have several things to discuss. Everything from the feud between Elon Musk to Donald Trump, [00:01:00] the Skrmetti decision from the United States Supreme Court, and even the No Kings protest, so unscripted.

Hopefully I don't make a fool of myself, but we have a lot now because it's unscripted, I will mention that I have not had the chance to go super deep into any one of these topics. So in a way, consider this episode to be a fire round where we hit on 1, 2, 3, 4, 5, 6, 7, et cetera. And we discuss some of the most pressing issues, at a decent high level, and I'll add my commentary accordingly.

So let's start with. Perhaps the biggest news a week or two ago, which was this Twitter feud, or X, if you'd like to call it X, this feud between Elon Musk and Donald Trump. So Elon Musk, as you might have heard, left the White House and left his role as the head of Doge. And we've talked [00:02:00]about Doge in the past, and we've talked about Elon Musk in the past, so I'm not gonna rehash those things.

But he left, and in fact, Trump gave him, a pretty good farewell, mini ceremony in the Oval Office, and it went downhill pretty quickly after that where Musk said, I am against this big beautiful bill that's currently working its way through Congress. And the big beautiful Bill, of course, is something that Trump and his administration have been promoting, as well as congressional Republicans have been promoting left and right.

The thing here is this apparently caused the feud, this divergence in opinion on a critical piece of legislation, well critical to Republicans at least, and it spilled over onto X or Twitter where they were basically talking about each other, Musk berating [00:03:00] Trump, and coming out with things like, well, Trump was in the Epstein papers, the Epstein files, and Trump saying, we're gonna revoke all contracts with SpaceX, one of Elon Musk's companies that rely very heavily on government contracts to fund its operations.

It appears that the dust has settled in this feud. It appears according to some public reports that Trump's chief of staff contacted Elon Musk and somehow some way apparently persuaded him to stand down. So that's the latest on that front.

So, speaking of Donald Trump, Donald Trump has, as of I think today, extended the deadline for this TikTok sale.

So you might recall at the beginning of the year, TikTok had a deadline of January 19th that TikTok its parent company Bytedance had either sell TikTok [00:04:00] to a US company or face a complete ban here in the United States. And we saw companies that run the big app store. So Google and Apple took TikTok down, so you cannot download it during this period.

As soon as Trump got into office, he gave them an extension. He had the legal authority to do so questionable as far as whether the predicates to that legal authority triggered. But put that aside for a second, and apparently I think he's now done this three times, including this time, has extended this deadline three times.

So whether there is an actual negotiation in place for a US company to acquire TikTok is. Is at least not discussed in the public domain. I have no information on it. I have no knowledge on it, and to my knowledge, there's been no reporting on it. We assume, however, that there is some type of m and a mergers and acquisitions discussion that's happening.

[00:05:00] It's likely kept confidential as most merger and acquisition conversations. Discussions are especially of companies of this size. So we might see something happen on the mergers and acquisitions front of the TikTok US operation. We might not, we might just see Trump continue to kick this can down the road.

The thing here is if we accept Congress's rationale for enacting this law, which is a national security threat because of Chinese coercion in this information dissemination slash the data harvesting of Americans data, if we accept. Those rationales of the purpose of the bill. Right. The purpose of this ban, then by kicking the can down the road now, giving them, again, I think it's three extensions, well, is Trump undermining the national security interests that Congress promoted when it enacted the [00:06:00] bill, or the reasons, the underlying national security reasons that Congress had when it enacted this bill.

I argue, yes, but just as a general data privacy scholar, by the way in which I work on data privacy and cybersecurity stuff from a legal perspective and from a practical perspective, from that perspective, it makes sense to be wary of the data harvesting that occurs by a social media platform. However. I will say singling out TikTok, merely because it's owned by a Chinese based company, and we don't look at any other social media platform, which by the way, is collecting data as well.

Oftentimes the same data, oftentimes even more data on Americans than maybe TikTok. We don't see those as national security risks because they happen to be American based companies. [00:07:00] But because. TikTok owned by Bytedance is a Chinese company that's a national security risk. Aren't the same concerns that Congress had in enacting the TikTok ban or divest Bill.

Aren't those same concerns present with Meta and its social media platforms, Instagram, Facebook, et cetera, with Twitter slash x, with, I don't know, even Reddit as an example. I argue, yes, and in general, for several years now, I've been arguing for more robust data privacy protections. That brings us to, well, I'm going out of chronological order at this point.

I've thrown chronological, chronological order out the window. That brings us to a recent Supreme Court decision. I'm switching gears In the recent Supreme Court decision I. A case called United States versus Skrmetti, [00:08:00] and this was decided on Tuesday, June 18th, I believe. And just to give you some background on the case, this I actually have a summary of, so let me pull this up because it is actually very intriguing and candidly, I find it to be wrongly decided.

Lemme explain. So United States versus Skrmetti at issue in this case was the constitutionality of Tennessee's Senate Bill one or SB one under an equal protection clause challenge. Now, SB one prohibits gender affirming care for trans youth, but to be clear, it restricts the dispensing or dispensing of hormones to only those minors who are trans. SB one permits hormonal treatment.

In all other cases, such as when a male adolescent who has delayed puberty needs to initiate [00:09:00]puberty, well, that male adolescent can receive a testosterone booster. In a six three decision. The court concluded that SB one is constitutional, and it's also not subject to intermediate scrutiny or heightened scrutiny by the court because SB one does not classify minors on the basis of sex.

Instead per the court, SB one classifies based on age and medical condition or diagnosis, the age classification being minors versus adults. And this is well established that age classifications, and I'll explain this in more detail here in a second, this is well established that age classifications get rational basis review.

There's no question there. Nobody argued that the medical condition and diagnosis classification according to the majority exists because we're comparing patients who have been diagnosed with gender dysphoria versus patients with some other diagnosis that's resulting in the hormonal therapy. [00:10:00] Just as Sotomayor, writing for the dissent, the liberals, the three liberals on the court argued that SB one clearly

classifies on the basis of sex because the medical practitioner's determination on whether he or she can give hormonal therapy to a trans youth is dependent on that patient's biological sex, be it that, as an example, biological males can receive testosterone, but biological females cannot receive testosterone.

So a medical practitioner. Who gives hormonal therapy will have to ask whether the patient is biologically male or biologically female in order to determine whether that patient can proceed with some form of hormonal therapy, and that is a classification on the basis of sex. That's justice Sotomayors and the [00:11:00] dissents opinion here.

Now, I think this was wrongly decided. And I say that because I think Justice Sotomayor is correct in her classification argument now, before the United States Supreme Court was merely, what level of judicial review should this law get, should SB one get? And when we say judicial review, by the way, that's basically the level of scrutiny that the court applies to a law to determine its constitutionality.

And that said. There are usually three standards of review, starting with the very top strict scrutiny and then intermediate scrutiny and then rational basis review. Pretty much everything gets rational basis review unless something triggers intermediate scrutiny or strict scrutiny. When we have infringements or alleged infringements on civil rights, for example.

We typically [00:12:00] scrutinize those government actions like a new law that maybe violates your freedom of speech. We typically scrutinize those under strict scrutiny, which is the highest level of scrutiny that a court can deploy. And it's the highest burden that the government needs to meet in order to justify constitutionally the law, rule or regulation, whatever the government is trying to do.

Intermediate scrutiny is, as it sounds, one step below strict scrutiny and then rational basis is merely, is there a rational basis for this law? Did the legislature come to this conclusion that this law is necessary because there is some reason for it? It is a highly deferential, rational basis that is, it's highly differential to legislative findings, so it is well established in case law at this point.

Sex based classifications get intermediate scrutiny under the 14th Amendment's equal protection [00:13:00] clause, and so Tennessee obviously trying to sustain the SB one, trying to keep it in place. Tennessee argues that there is no classification on the basis of sex because they want rational basis. Review the lowest level of review to apply.

On the other hand, the plaintiffs, the parents and the trans minors who filed suit to enjoin or strike down SB one, they want intermediate scrutiny because it's a higher bar for Tennessee to meet. Okay.

That said, the majority says there is no sex-based classification and they look at it from a medical diagnosis and age perspective, and there's some logic. I will admit, if I shed myself as much as best as I can of my own biases, there is some logic to that conclusion, except there is some, what I call [00:14:00] logical gymnastics involved.

So it's logical. But it is difficult to follow for even a lawyer like me, even a constitutional law professor like me. Like I have to sit there and as I was reading it, really think about it and then I was able to say, oh yeah, that makes sense. Justice Sotomayor's opinion. On the other hand, again, the dissenting opinion that.

Was more logically sound in my opinion, because just reading it, you're like, yeah, that makes sense. You didn't have to really sit and think about it that hard. So I would say an ordinary person without a legal education or legal background would look at the two opinions and probably be able to make more sense or better sense of the dissent than the majority, because the dissent was easier to follow.

That said SB one was held [00:15:00] constitutional. I think it was wrongly decided. Many other constitutional law scholars think it was wrongly decided. Many say that there was politics injected. Of course there its politics injected. By the way, the Supreme Court has always been political. Should it be political is a different question, but it has always been political.

Since really like the 18 hundreds, right? Like some of the earliest cases, we considered politics. I'm not gonna go down a constitutional law, his history, you know, legal history aspect here. But point being is, did the six conservative justices kind of do some mental gymnastics here to make sure that SB one gets rational basis review.

In order for SB one to be sustained. And I think the answer's yes, I think the answer's yes.

Anyways, that's Skrettmi, [00:16:00] and we can now turn our attention to the next topic, which is not any lighter, to be honest. It's Israel, Iran, and specifically President Trump's threats against Iran. Well, let me begin by saying from a constitutional law perspective, the Constitution is very clear on this point.

Only Congress has the power to declare war. But over the course of history, and really in the 20th century into the 21st century, there has always been this lingering question as far as where do we draw the line with what the president's power is in commander in chief, and what Congress's power is with respect to raising and supporting armies and navies, which is specific language in the Constitution, with its spending power.

Its appropriations power, which we've talked about on this show, and its power to declare war. 'cause that's, again, explicitly clearly given to Congress and not the president of the United States.[00:17:00]

So is a, for example, strike from America on Iran, does that breach the line into kind of infringing upon Congress's authority to declare war versus the President just acting as commander in chief.

In a way, some theorists argue, some scholars, excuse me, argue that the reason why the courts have not been super clear on drawing the line between the commander in chief power and the war power, that Congress has, is because we probably don't want definitive lines drawn because in the event of a hostile attack, we need to respond very quickly and we cannot have laws, rules, and regulations on the books that [00:18:00] explicitly restrain the president from having to respond to a hostile attack as an example.

Okay, set that aside for a second. Let's just talk about the practicality here. The practicality is if there is an action against Iran, by Americans, specifically, not Israel, then wouldn't that drag us into another military involvement in the Middle East? And is that something that we want to be involved in?

Because even though, for example, I was young enough to remember, that president Bush when he decided to go into Iraq for weapons of mass destruction, which were never really actually, which were not found, but that was the reason for doing it. They expected that to be a very quick incursion, to the best of my memory, and some listener may correct me on that and that's fine.

But again, I was much younger and definitely not [00:19:00] legally trained. So I'm going off the best of my memory here. And we have not had, as a country, a successful track record of going into a country in the Middle East and having that for a very short duration, to my knowledge. So that leads me to believe that if we went into Iran and did some military action against Iran, that it's not going to be just a short stint.

It's going to be something that drags us into hostility for years to come. That's been the trend. Now I'm not saying we should or should not get militarily involved in Iran. I am saying that it's an intriguing place to be because the Obama administration. Signed a nuclear agreement with Iran and for the first time in a long time we [00:20:00] showed diplomatic progress with Iran.

I think minds disagreed, and I take no opinion on this, but mines disagreed on whether that was a good agreement or a bad agreement. I, I take no opinion on it 'cause I don't know the particulars of the agreement, but I think what it does show, unequivocally, That we were making diplomatic progress with Iran, that Iran began to trust us to enter those diplomatic negotiations and sign an agreement.

Trump gets elected in 2016. One of the first things he does during his first term, he pulls out of the Iran nuclear agreement. Of course, that upsets Iran and it's upsets our allies who are also, um, signatories to the agreement. Now he's trying to negotiate diplomatically, trying to solve it again. Buddy, president Trump, [00:21:00] we are in this situation because you ruined or damaged the diplomatic relationship that President Obama was beginning to restore.

In other words, president Obama went one step, big step, by the way, one step forward in building a diplomatic relationship with Iran. And by pulling out of that agreement, you took us two steps back. And now you're like, well, they should negotiate with us and now they should trust us. But you are the reason why Iran doesn't.

This shows, in my opinion, this shows the lack of long-term thinking of a Trump administration. Where if the Trump administration during his first term wanted to renegotiate the Iran nuclear deal versus pulling out. We knew. We knew then, we knew during [00:22:00] the Obama administration.

We actually knew before that we knew in the Bush administration that we as a country, our policy is we generally do not want Iran to obtain nuclear weapons. We don't want them to have that ability. I'm not gonna question that policy. I'm gonna leave that for the foreign policy experts and national security experts.

But we have known for years. That's my point. Obama made a step forward. You can agree or disagree on whether that was a good step or a bad step, whether that agreement was good for America or bad for America, but nonetheless, we made progress on diplomatic relations and I would think if I was the president in 2016.

Now, again, my disclaimer is. I don't have the context or the deep knowledge about that nuclear agreement with Iran, but go with me here for a [00:23:00] second. If I was the president in 20 16, 20 17, excuse me, then I would not have pulled outta the agreement because even if I didn't like the agreement, I would attempt to build on that diplomatic trust and relationship that the Obama administration established.

I would maybe attempt to renegotiate or add terms to the agreement, but I would not have pulled out as to ruin the trust, the little bit of trust that the Obama administration seemingly established with the government of Iran.

 Having said all that, we now interrupt the previous recording of this episode and we are recording this small interjection on Monday, June 23rd at 1:13 PM because some updates have happened, some major updates actually have happened over the course of [00:24:00] the weekend.

Shortly after I recorded the episode that you are listening to, president Donald J. Trump and his team ordered a strike on Iran and three different nuclear facilities throughout the country. That occurred, I believe, on Friday night, maybe into Saturday morning, and we now know the United States has struck Iran. Vice President JD Vance has said publicly that we are not at war with Iran. Its people or its military, but rather we are at war with Iran's nuclear program.

The president has undermined his own vice president's speaking points by posting on truth social that perhaps we are at war with its military, with its leadership, and has suggested. That we could be interested in regime change. Now, as I mentioned earlier in the previous recording, earlier in this episode, the United [00:25:00] States seemingly does not have a very good track record of military involvement in the Middle East. In fact, it's a poor track record of driving regime change in Middle Eastern countries. We can see this, if we look at Libya, we can see this if we look at Syria, Iraq, and Afghanistan. But we can also see this dating back to when the United States was involved in the previous regime change in Iran. So this isn't the first time actually the United States has been involved in Iran, I believe, if my memory is correct here, I believe one of the first instances of the CIA's involvement, which the CIA has now come out publicly and admitted is.

Part of, or was part of the United States Foreign Policy in the 1950s, the United States was involved in changing the regime in Iran, which eventually led to its authoritarian [00:26:00] state . So that now leaves us with the potential of a retaliatory strike from Iran on United States interests and probably United States interests in the region. Probably not striking domestic lands here in the continental United States. I'm not a military expert. I'm not a foreign policy expert, and I'm certainly not a national security expert.

 And I now interrupt my interruption because just as I recorded the interruption that you're listening to, to this episode, breaking News out of the Middle East is Iran has launched missiles at a United States military base in Qatar, which explains why minutes earlier. There was breaking news that Qatar had actually shut down its airspace.

So my guess is Iran notified Qatar of its actions before it did Qatar shut down its airspace, uh, as a precaution, and then Iran launched its strike against the United [00:27:00] States military base in Qatar. At this point, we don't know the success or failure of this operation against the United States Bass in Qatar.

So that is quite literally breaking news as I'm recording the interruption that was speculating to a potential strike by Iran in retaliation.

That potential strike has apparently occurred, and I do not yet know, because this is quite literally happening as I'm recording this, what the impact is to that United States military base in Qatar. All of that said, I now return us to the original interruption, and then we'll get back to the previously recorded episode that was recorded on Friday, June 20th.

before I return [00:28:00] us to the previous recording of this episode, I will say. That many in the United States and for that matter around the world have come to Israel's defense in their actions in Gaza and their actions against Hamas as saying that Israel has every right to defend itself, I agree with that insofar as any sovereign nation has a right to defend itself.

And if you apply that same rationale, then the argument now is Iran has a right to defend itself. You could argue that Iran has taken actions against United States military interest and other interest in the region. My point here is this, if we are to [00:29:00] critically think about issues around the world.

That means we have to critically think about our own actions as a country. And if we think critically about our own actions here, we now have struck Iran with no major strike. First by Iran against the United States. So the question is. Who is the aggressor here?

So we'll see what plays out. I'll of course mention it as it plays out on this podcast, but that is the latest on this front. And now I return. To the previously recorded episode.

now, speaking of the military and military interaction, Trump last weekend ordered a military [00:30:00] parade to celebrate the 250th birthday or anniversary of the United States Army and his own birthday.

The thing here is if you watched it and I caught glimpses 'cause it was on in the background at the restaurant that I was eating dinner at, at that time, if you watched it, it certainly did not look like a military parade that we've seen outta Russia or North Korea. China, or kind of any of our main adversaries around the world and authoritarian regimes.

Many criticized this military parade on the Washington DC streets as something that we would see out of an authoritarian regime. And they're not wrong, but to be fair, right, we've seen military parades or celebratory mil, you know, celebratory ceremonies in countries that are very [00:31:00] much our ally, like France.

Now, they may have a different reason for it. The argument that I, I, I seem to have heard leading up to the military parade, the Army's parade, and then immediately following is that only authoritarian regimes do military parades, and that's factually not true. So either way, my personal philosophy, my personal view on the issue is it was a colossal waste of money.

That we could have done something different to celebrate the 250th anniversary or birth of the US Army. We could have had ceremonies, for example, in in some, uh, army historians have argued this. We could have had ceremonies in Lexington to celebrate the Battle of Lexington. We could have had it in Gettysburg, maybe right, for the Civil War.

So we could [00:32:00] have had ceremonies at these symbolic. Locations, these historical locations around the country. We could have had flyovers for sports events, perhaps going one step above what we normally do. For those sports events, we could have done a, a, a, all kinds of different things that I think would've been less costly.

Now, at the same time, we had essentially a counter protest. Was happening around the world for that matter. And it was generally called no Kings protests. And it was this idea that America does not have kings. We do not have a monarchy. In fact, and this is true if we think about it, right, we were founded as a country rebelling against the king.

We outright [00:33:00] rejected the idea of a king. The framers of the United States Constitution did not use that Title King when they, for example, drafted the Constitution. And when George Washington became the leader of the country after the Revolutionary War, we very deliberately used the term president. So, No King's protest is actually very much aligned with American history, and at least on social media,

I was seeing MAGA supporters. Now, they could have been bots. I, I will admit that they could have been bots, but I imagine some of them were real users sitting behind those accounts, arguing that the No King's protest was a sh, like they were shameful of it, that it never should have happened. I kindly, respectfully remind those individuals that quite [00:34:00] literally our country was founded on dissent and a rebellion against a king.

We rebelled against the king. We dissented from what the king was doing, and that's what gave birth to this country. So a No King's protest is very much aligned with American history and American ideals. Now, you may have disagreed on how it was executed, saying that was a counter protest to the United States Army 250th, uh, anniversary military parade.

You, you could have said, you know what? I don't think it is right to do that on the same day. I think that's a fair opinion. I don't agree with it personally, but I think that that's a fair opinion. You could say that the No Kings protest was very much an anti-Trump protest. And I think the [00:35:00] pictures from all the No Kings protests around the country support that 'cause

they were very much anti-Trump messages that were conveyed on protest signs, on pickets, et cetera. But here's the thing, again, our country was founded on dissent. Right. Our country was founded on disagreeing with the leader, and in the 17 hundreds that was King George. And so it is very much an American ideal to disagree with the leader of the country, this case, president Trump, and it is very much an American ideal.

To be able to go onto the streets and protests your concerns and your grievances. You may again disagree with what some of those opinions are that individuals hold fair, but nonetheless, the mere act of [00:36:00] protesting is so American. It is rooted in how we were founded as a country and codified in the First Amendment.

for this last topic here was a sup. Uh, I'm gonna discuss a Supreme Court case that actually came out today on Friday, June 20th, and I'm gonna switch gears and kind of mention this in the context of climate change. So a little bit of background. California, as a state, has implemented certain emission standards for all vehicles to be sold in California after a certain date.

I don't know the particulars of the bill, but I know that's what California has attempted to do and I believe has enacted, to be fair. Well, automobile companies. Some of them, probably most of them, but I don't know that for sure, have acquiesced to this higher emissions standard in [00:37:00] California driving its citizens and its state to this shift to electric vehicles and fuel companies filed suit against California and the EPA arguing.

That it, that they as fuel companies should have the ability to sue, even though the regulation doesn't directly apply to them. Right. It, it technically, directly applies to automobile manufacturers, gm, Ford, et cetera. 'cause they're the ones that have to comply with it. They're the ones that have to innovate and figure out how do we get X miles per gallon that California has set?

Well today the Supreme Court said that. Fuel companies do have what's called Article three standing to bring a suit to challenge these type of regulations. I haven't read the opinion, [00:38:00] but by first glance, I think it's correct from a legal perspective, from a constitutional perspective, that they do have an injury with respect to these regulations, be it that the fuel makers.

The fuel refiners, well, they will be economically harmed because their product will be in less demand, given that the regulation implements a higher emissions standard. I think that is a correct opinion, legal opinion, but then again, I haven't read it. That said, I think it shows. The hypocrisy of energy companies, of fuel companies.

I say that because we see, and there are commercials running on tv. I've seen them, there are commercials running on TV where these fuel companies have paraded [00:39:00] around all of their initiatives to shift to green energy to renewables. Yet their actions say. We're still going to bring lawsuits that hurt our bread and butter business, our fuel business.

So I question the sincerity of the fuel company's external message that they are about mitigating climate change because their actions say, well, we don't want to be economically harmed. We're gonna experience economic damages from these regulations and we should be able to sue over that. Again, the question of whether they can sue legally or constitutionally, that is what I think is correctly decided in this case, but that's not why I bring this case up.

I bring this case up [00:40:00] because it shows, I think. This speaking out of both sides of your mouth from these fuel companies. On one hand, they want to publicly represent that they're all about mitigating climate change, switching to green energy, renewables, et cetera. Yet they fight legally in court, right?

They fight against actions that support climate change mitigation.

All right. That's it for today's episode, this kind of fire round unscripted episode. I hope that this was somewhat insightful, perhaps, just as valuable as some of my scripted shows that go much deeper into individual issues. If you liked today's episode in this fire round, please leave a comment, rate and subscribe.

I would greatly appreciate [00:41:00] that some feedback on this unscripted model, this fire round model. Very helpful. Thank you everybody.

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 paw.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 guests. And do not reflect the views of any employer, institution, or organization. [00:42:00] 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.