Will Our Courts Hold? What You Need to Know with Amanda & Jessica Yellin

Well, hello everybody. Welcome to We Can Do Hard Things.
We are here today in this moment after we're coming to you all of these weeks with Jessica Yellen because we are trying to figure out a way to know what we need to know about the week's news. To really distill it into what is real versus what is chaotic, trying to get our attention but not really giving us what the real real is, what the real story is.
And then what it really means at the end of the day for us and what we can do about it. So Jessica is here for an hour with us a week to help us know that so that we can know the main stories and not have to have our whole nervous systems on a roller coaster for the rest of the week, but just digest what needs to be digested.
So Jessica Yellen is the founder of News Not Noise, a pioneering Webby Award-winning independent news brand dedicated to helping you manage your information overload. What do we need now more than independent news brands and help with our information overload? She is the former chief White House correspondent for CNN and an Emmy Peabody and Gracie award-winning political correspondent.
You can follow her on Instagram at Jessica Yellen. And also to get her real-time, clear, and brilliant reporting, please do this.
Go to substack.com and search for her page, News Not Noise, and subscribe to it there. It's so good.
You will not regret it. Jessica, welcome back to another week of a lot of news.
Hello. Thank you.
How are you? I'm okay. Digestion is a triggering word right now, but.
Oh, I know you've been sick. I'm so sorry.
It's happening everywhere, is it? You have had a stomach thing. I have a head thing.
Forgive us people if we're a little slow on the uptake today. We're having trouble.
Bodies are processing what the mind is dealing with. I know.
Right? I know the body keeps the score and the score is intense right now. Yes.
This has been a big week in the kind of constitutional issues that we've been approaching and talking about generally over this many last weeks. But what is happening this week? So as we're speaking, the Trump administration and the courts are in a standoff and we are in a place, I would say, at the doorstep of a constitutional conflict that could become a full-blown crisis.
We're not necessarily in the crisis yet. So what's happened, I mean, we could look at this through a bunch of lenses.
I think the most obvious and overt is what's going on with deportations and Trump's immigration policy. Can you just remind us all what we mean when we say a constitutional conflict or constitutional crisis? Like what does that actually mean? Because that is everywhere right now.
So there's a number of ways you could look at it, but fundamentally, it's about where the administration is challenging what the Constitution clearly states and defying it. And in this case, the way they're trying to defy it is by dismissing the validity of the courts to direct the administration.
So our Constitution says there are three equal branches. Congress has the power of the purse.
The executive has the power to oversee these agencies and run the military. And then the judiciary is this third branch that sort of weighs in when there are disputes.
It's a matter of precedent and practice that in America, the judiciary has the final word. When there's something unclear and the judges speak, it ends.
And that's always worked because presidents and Congress have followed it. They have listened.
The weird thing about our system is the courts are the one branch that have no means of forcing their will. They don't have a military, and they don't have power of the purse to take away money.
So we all listen to the courts just through our social compacts. That's part of our agreement in being in society with one another.
We choose to follow what the courts say so that our government can continue functioning. What happened this week is, in a number of ways we can talk about, it's clear the Trump administration wants to test the power of the courts to expand their

own executive authority and essentially run roughshod over judges they don't like. And I'll just say one more thing, which is in authoritarian governments, as you see governments move from democracies into authoritarianism, one of the key features is this practice of defying courts and or dismissing judges that don't go along with the leader's will.
And we've also seen both Trump and Elon Musk this week, and actually for weeks now, saying judges they don't like should be impeached. Okay.
So in terms of the, we've always followed this way. And when people talk about constitutional crisis, basically what they're meaning is,

is there going to be a point at which we stop following this way?

We've always done things, which is the judges have the call and we follow it.

And then what happens then if that happens?

If the courts can't enforce their thing, what then happens?

Do they just not follow it and we all go along with it? Or do they not follow the court's orders and then insert what here? We don't know because no president until now has defied the courts in the way we're imagining Trump will. He hasn't quite done that yet.
Then if he defies the court, the Supreme Court, really, we're in a constitutional crisis because the crisis is there's no controlling rule about who wins in this standoff. And we have to decide.
Obviously, they have the military, the president, you know, so in theory, he could use the military to force his way if anybody tries to stand up to him. We'll see if Congress will stand up to him.
Some Republicans have indicated privately they would. We'll see.
And then I think, and we can talk about this, it's up to the people. And what will the people do? And will we go in the streets? Would we use our power and influence to force our government to follow the rule of law.
We'll see. Okay, so this all is coming because of these proceedings around the deportation.
So can you walk us through those? Yeah. So this week, in an escalation of Trump's immigration policy, he's done a number of things.
The most sort of dramatic of which was ICE went and rounded up more than 200 people who they say are Venezuelan gang members, but without any due process. They didn't go to court.
They didn't have any presentation of evidence. So we don't really know who is in that group.
We're starting to hear stories. put them on a flight, and sent that flight to a quite terrifying prison in El Salvador.
We're paying the strong man of El Salvador $6 million to use this prison. None of the things that happened there would be allowed in the U.S.
You know, there's no rehabilitation services, no rights afforded to people. Like, it's just a nightmare.
And they presented this glossy video, propaganda video that they released with it of these men being, you know, manhandled, shackled, and taken. So what happened is after these guys had been arrested, but before the flights left, a number of opponents took the Trump administration to court.
Immigrant rights advocates took the Trump administration to court. And there was a legal hearing happening while these men were waiting to get on their plane and getting on their plane and before the plane left.
So you can imagine the split screen, right? Here are the people waiting to be deported. And then the hearings going on.
In the hearing, the judge said, I'm paraphrasing, if there are any flights or people about to leave, don't take them. They may not leave until we resolve this in court.
And if there are any planes in the air right now, you're going to have to turn them around and bring them back. You cannot do deportations of people under this specific authority while this hearing is going on.
And the specific authority was what? It's called the Enemy Aliens Act. And it's basically a 1798 law that Trump is activating again to justify deportations.
And this law says, first, the deportees are alleged members of a Venezuelan gang.

The president says that their presence in the U.S. is an invasion or an incursion.
And because it's an invasion, they fall under something called the Alien Enemies Act, which is connected to the Venezuelan government trying to infiltrate America. This is amazing because that act has never been invoked in our country's

history during a time where we were not at war, actively at war. And in fact, the last time it was invoked was, it's chilling that they chose this because that is an infamous period of our history in which during World War II, that was the act that was invoked to intern Japanese Americans, to put tens of thousands of Japanese Americans in internment camps within the United States during World War II.
And the Trump claim is that we are in a state of war by what they are calling immigrant gang invaders connected to the Venezuelan government. They're constructing this narrative, right, that we don't even know that these people who are deported are in any gang or even Venezuelan or it hasn't been adjudicated in court.
And already some family members have spoken out saying like one woman said, my husband was taken. He's a barber.
He has a tattoo, but he's never been in a gang. And a number of people come forward disputing the claim that their spouse or loved one was in any way connected to any gang activity, as if even that is legal justification for what's happened.
Keep in mind, even if they're Venezuelan gang members, they've been taken to a prison in El Salvador. Yeah.
Why is that? Because the Trump administration was able to cut a deal with the strong man who leads that country and we're paying them $6 million for use of their jail. And this guy brags about how they have these like fancy new jails.
It's just space. We're renting.
He's a real estate guy. He found real estate in El Salvador in a prison.
So they are in court. The judge says, turn the planes around or don't let the planes leave.
Then what happens? So this much is in some dispute, but based on independent records that journalists have been able to find about flights, there were three flights. It seems that, so during the court hearing,

the judge says, don't take anyone and basically asks, what's the status of these flights? Where is everybody? What's going on? And they say, you know what? I don't know. The lawyer for the government's like, I need a break to find out.
Okay, let's take a break in the court hearing. So they break.
They come back, I think like an hour later in that break, two of the planes take off. Planes are in the air flying.
They come back from the break and they go back into the court hearing and more transpires. And the judge sort of reiterates that we're going to freeze everything where it is until I can rule.
I want some more information and I'm going to give a written order. The judge gives some sort of written order after and doesn't say in the exact same words, if any flights are in the air, they have to turn around, but makes his intention clear.
And then they break. Subsequently, two of the planes land and a third plane after the hearing ends also takes off.
So these men are gone. They've been deported, disappeared.
And I will add quite chillingly, Amanda, their names disappear from our immigration system. So the minute they've left, it's as if they've been disappeared.
If you're a family member of this person and you looked them up, you know, an hour prior, they're in the system. Now you look them up, they're gone.
No trace of where they are, what their charges are, how you'd find them, nothing. One woman says that she had a call from her loved one, like hysterical, panicked, weeping, saying, I don't know where they're taking me, and then disappear.
So subsequent to this, all of a sudden, this video pops up of this, you know, people in this propaganda video, these guys being taken to this prison. People realize what's happened.
They go back into court. The judge demands the government to explain what's happened.
The government says, we don't know. We don't have the information.
Judge says, you have 24 hours to get me information. I need to know when the planes took off, how you defied, blah, blah.
And now the White House, the Trump administration has gone back to court and said to the judge in response to his request for more information, we won't respond to a judge who's beating a dead horse.

Wow.

So when I was looking back through it, they were saying a couple of things. They were saying that the oral order that the judge said, turn these plans around, was not something that they had to follow since it wasn't written in the written order.
But that is not my experience, nor does that pan out from a legal perspective. If a judge says my oral order is do this, they have to do it.
Yes, they're making up a bunch of bullshit. Can I just say like, yeah, if you tell your kid, you can't have dessert.
And then the kid goes and eats jelly beans and they're like, oh, they're beans, mom. They're not dessert.
You wouldn't be like, oh, let's have an argument about whether they're beans or dessert. You'd be like, go to your room.
This is what they're doing. They're making up an argument.
That's not an argument. It's not real.
There's no legal basis for the claim. So yeah, they claim that they're claiming a couple of things.
One, that the oral version was not binding. They're saying that the plane that left after the court closed had immigrants on it who were not being held under the Alien Enemies Act, weren't being deported under the act.
So that doesn't apply. But then when the judge said, okay, if that's the case, you need to come back and give me all the information about what the charges were against these people and under what auspices they were deported, and they said, no, we're not going to give you that information.
We're not giving you any information. You have to take our word that the people on this plane, it was appropriate that they be deported.
Yes. And let's ladder up to the next argument, which helps people understand what they're really doing, which is Stephen Miller, who has been kind of behind the scenes until now, but he is sort of the legal, one of the legal minds behind Trump's immigration policy and his more extreme attacks on our system.
He's said that this district court judge, this federal judge, has no authority to tell the president what to do when it comes to the president making commander-in-chief decisions. When it comes to the president making a decision about our national security or federal policy, no district judge should be weighing in on the

authority of the great leader, President Trump. And what they're fundamentally doing here is creating a case in which they can challenge the authority of the courts and sort of try to refashion how we function in this country, what our democracy is, to sort of push down the power of the courts and make the president more of a monarch king.

And in doing this, they've said that they want it to go to the Supreme Court and they expect that the court will side with them, meaning the monarch king White House. And it's brilliant, actually.
It's a brilliant strategy because on the face of it, this is an issue about should these people be deported or not. But then when you come up 10,000 feet, you're like, oh, no, this is a case about whether the executive branch can overrule the judicial branch.
and this is a brilliant case to make if you want to start that precedent as an executive branch

because who is going to argue that supposed gang members from another country should have a right to stay in this country, right? It's a very smart test case, because if you're trying to paint some liberal judge who is trying to give more rights to foreign national gang members than the American safety or whatever, you can see how politically this is a smart case. But then when you come up 10,000 feet, you're like, that's not what this case is about.
This case is about the balance of power between the judicial branch and the executive branch. So that's the really scary part.
You nailed it. And you can find interviews all over, you know, the news and in newspapers of people, regular Americans being like, yeah, I want these gang members out of the country.
You know, good for Trump doing this. Or you even find moderates who are like, I don't like a lot of what Trump's doing, but I'm glad he's doing that.
Because it seems like the goal is to push out people who are menace to safety in our society. And the video they released showed people who look stereotypically like gang members, very, very, very tall men covered in tattoos with massive beards and hair that are being shaved, you know, that kind of in a movie, this is who you'd cast kind of thing.
Now, we should add that Venezuelan gang members, or alleged gang members, are not the only people who are falling under this sort of extrajudicial dragnet for deportation. Several pro-Palestine activists were also removed from the U.S.
One is a woman who the Trump administration says, this is, I'm just quoting this, I, I can't, self-deported is their language. There's a Brown University professor and kidney transplant specialist with a valid visa who was deported on Friday.
And they justify this by saying that they found sympathetic photos and videos of Hezbollah militants on one of the doctor's phones and on other things.

So it's sort of a guilt by affiliation. And then there's Mahmoud Khalil, the Columbia University grad student activist who was the mediator for the encampments, who's been detained, has not been deported, is in a U.S.
jail, but still no charges have been

filed. There's no claim of a, what law did he break? So all these things are test cases,

I think both to test the judiciary and see how the courts will rule,

and also to see how the public responds and how Congress responds.

Thank you. Congress responds.
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So what is the current status? are recording this on wednesday around noon what is the status of that case what is the next the court said don't deport them the administration deported them the court said hey looks like you deported them. And then the administration said, yes, we did do that.
And we had a right to. What's the next step? How does this come to a head from here? So the Trump administration, as we're recording this, is refusing to comply with the district judge's order to provide more information about the flights who's on them when they left, et cetera.
Their language is he's beating a dead horse. That's not a legal claim.
So this is going to get appealed, and it will eventually end up before the Supreme Court, my guess is, quite quickly. We have to see how the court rules.
One early sign is that as this whole process was underway, Trump tweeted, or truth socials, whatever you want to call it, that the judge in the case should be impeached. And, you know, Elon Musk has been ranting about impeachments and replacing all judges for months in an act that is wildly rare.
The chief justice of the Supreme Court, John Roberts, issued a statement injecting himself into a political conversation that just doesn't happen. And in his very sort of cautious, considered language, basically said, America does not impeach judges over their rulings.
Like, that's not what we do here. The judiciary is an equal branch of government, and this is in defiance of America's tradition.
I'm using much more explicit language than he did. He said it in a judge way, but that's what he was saying.
But I will point out to you that what he was weighing in on was the language and the threat to the judge, not the underlying claims in the case. And what the court is going to have to adjudicate are the underlying claims.
Does a president, when he's acting in his commander-in-chief role, have unchecked power to do what he wants to do? Or can the courts weigh in? And if so, which courts, how, et cetera? I just want to point out that even if people are listening to this and thinking maybe the president should have some power like in a war to make decisions without the judge, we have special courts for national security things. And even in emergency crises, when there's a ticking clock and there's a terrorist with a thing and you need to have a surveillance, they have to go to something called the FISA court, where it's the Foreign Intelligence and Surveillance Court, where they can go there and say to a judge, judge, there's no time.
We need a quick decision. Can we have this warrant to find out this thing? And a judge rules really fast, yes or no.
Yes. In fact, this judge who was presided over this case was in one of those specialized courts before.
So he knows the national security issues and has a lot of experience in that area. Like he was previously there.
So that's another wrinkle to this. But yes, there's always a process.
And there is a justified claim in some cases where, you know, we need speedy decisions in a classified setting for people who understand national security to make informed, wise decisions. And so maybe the judges, the court says we need to stand up a commander in chief.
I don't know. A wartime court.
I don't know. But the idea that you can outright defy the courts is sort of the lie is evident in the existence of the FISA court because we already have the existence of a thing that weighs in when a president is doing national security, acting in behalf of our national security interests.

Right.

So what about the fact that there's what they're doing in the court and then there's what the administration is doing outside of the court?

Because right after the judge ruled and the planes landed in El Salvador, the strongman leader of El Salvador retweeted the video of the folks landing in El Salvador and being marched off the plane in this horrific manner. And then the tweet was, oopsie, too late.
Like a giant F you to the courts. And then Secretary of State Rubio retweets, oopsie, too late.
And then Trump's border czar gets on the television and is asked, well, currently the court is trying to stop this. What is your plan? The court has said you can't do this.
And he says, I don't care what the judges think. We're going to have another flight and another flight and another flight.
This is really incendiary, provocative language. Yeah.
Thumbing their nose at the courts and our due process and our system of government. What do you think they're doing? I think that they're chest thumping and acting like bros, right? To excite the base and sort of energize.
When we were talking about the fact you said this was a really clever test case because the majority of America would not have natural sympathy for Venezuelan gang members who might be violently terrorizing a neighborhood.

They're playing to that instinct, right, where they're basically posturing as we're the defenders of rational social will against this reckless liberalism that is too tolerant of, so tolerant of everything that they would have your communities overrun by violent gang members rather than let us just do what government should do, right? It's a law and order posture that they're just on testosterone, right? Yeah. It's like super max law and order.
And playing to this desire for, you know, a lot of people of all political orientations are frustrated with the state of government in their towns. I live in LA where the wildfires made a lot of us feel like, is anyone in charge? And I think they're trying to project, y'all, we're in charge and we're laying down the law and no liberal judges are going to stand in our way of making your town safe.
Right. It's a real keep your eyes on the prize question here because they have put themselves in a really smart position to be like, this is common sense.
We should be able to remove dangerous people assuming, and this is a lot of assumptions and I'm not even making those assumptions, but for the purpose of the argument, assuming these people are dangerous, which we do not know, then common sense, everyday people would be like, yeah, the president should have the right to do that. And that's not the question at issue.
The question at issue here is, does the president get to defy court orders? Because this is just that one case. And then if you step back on what they're doing, when you look at the constitutional issues here, what we see thus far is that, you know, these three co-equal branches of government are supposed to rein each other in and keep each other within limits.
That's a whole purpose of the American experiment. And so far, Congress has not stepped into any kind of way of doing that, of reining in in any way the executive branch.
And the only branch that has is the judicial branch. So this is the one check that has been to his power to date.

And so this is why this is such a big deal. And I'll add that a court also this week said that Elon Musk and his actions at Doge, you know, attacking our federal government, taking all this data, firing people, was unconstitutional.
And that he has no legal authority to do what he's doing because he's not an officer of the U.S. government.
So a judge has ordered Elon Musk's actions reined in and a bunch of people rehired at USAID and funds to continue to go out through USAID. So that's the sort of case that could be if Trump gets away with what he's trying to do in the deportations, then he's going to apply it to what the judge is trying to do to rein in Doge, what they're trying to do to limit Trump's ability to break Social Security, take our national parks, all the things.
Start here and then it just spreads to everything. So this is why you're completely wise to say this is a strategic test case.
And it's also this week, a judge ruled that the ban on trans military folks could not take effect or was illegal. The ban in the military and trans people too.
So if you don't like foreign national gang people in America, noted.

But insert whatever thing you would want to be enforced in America and imagine that.

It's just, will judges' orders prevail or not?

What I think is so interesting about this week, and I wonder if we could talk about it, is there's a lot that's going on within the judicial world right now that seems like it's kind of petty vengeance by Trump, but I feel like is also part of this whole kind of constitutional crisis-ish or conflict or whatever it is we're approaching right now. I don't exactly know what to call it.
And that's that he has issued these executive orders that are targeting specific law firms and specific lawyers. And that is very interesting to me because of the branches, right? One of them, the judicial branch, is dependent for the functioning of that branch on individual civilians who step into the advocate position in order for that branch to run.
And the two executive orders that have happened recently, actually, there's been a few of them. I wonder if we could talk about them, the Perkins Coie and the Paul Weiss and all of that big law thing, because this has seemed to me to be like, oh, that's just Trump being Trump and trying to get after his enemies.
But it also has this really chilling effect on the entire judiciary branch. Yes.
Perkins Coie in particular is one of the things that happens in Washington is certain law firms end up representing Democrats and certain law firms end up representing Republicans. I don't mean as individuals, but like when the Republican Party, the RNC has legal issues, there are certain law firms they rely on.
And when the Democratic Party has legal issues, Perkins Coie is one of the law firms they rely on. And Perkins Coie was the law firm for the Hillary Clinton campaign.
And during the Clinton campaign against Trump in 2016, Perkins Coie ended up taking over payments that the campaign was making to people who were doing investigations. This is standard.
During campaigns, folks hire ex-journalists to basically dig up dirt on the other side, and then they use it as opposition research to make attack ads and whatever else. And among the things that they were researching were Trump's ties to Russia, and they were paying somebody to investigate what ended up being the dossier, the Steele dossier that made these claims that the Mueller investigation looked into, etc.
They've informally discredited the main claims, but it was sort of what happens in politics. And Perkins Coie ended up doing the payments because sometimes they just end up taking over.
It's a, I don't know, a paperwork thing. Right.
And Perkins Coie also has a lawyer who is among the most outspoken people about defending election integrity. And he ran this group to defend the integrity of the election on the Democratic side.
So all of those court cases after the 2020 election where Trump's people were going into every state and being like, this was fraud. Mark Elias of Perkins Coie was the guy on the other side and they just beat their ass.
It was like Trump's people had no success in those court cases. And that was largely Mark Elias and Perkins Coie on the other side of those cases.

So to help people understand, Mark Elias formed an outside group. I think it's called Democracy Docket that brought the cases.
So it wasn't even brought through Perkins Coie. Like he was a Perkins Coie lawyer prior to Democracy Docket and I think might still be there.
I know he's not even there anymore. He's gone.
OK. Yeah.
But you see how it's closely tied. And so the Trump administration effectively is trying to disable Perkins Coie's ability to bring any cases on behalf of their clients.
So the executive order says it specifically names this law firm and it says, so they do a ton of stuff with the government. They're a DC law firm.
They represent clients against the government, with the government, everything like that. So the executive order said this firm and any members of this firm cannot have access to or be on government property, cannot engage in any government contracts, cannot become government employees,

cannot basically blackballs them anywhere from representing clients vis-a-vis the government,

which just tells all their clients that the government hates them, that they have a target on their back, and then they just lose client over client over client because who is going to

hire a company in negotiations with the government that the government has already sworn is its enemy? So they go through this whole thing. Then they're trying to get a lawyer.
Perkins Coie is trying to get a lawyer to represent them to stop this with the government. And nobody's stepping up because they're scared they're going to get a target on their back.
And then enter Williams Connolly got Bless Them, another big law DC company who agrees to represent them. They go in.
The judge is horrified by this, says it sends chills down my spine. Who wouldn't be chilled by this? And says that this, what the government has done here, threatens to significantly undermine our entire legal system and the ability of all people to access justice.
Shuts it down, right? But the damage has already been done. Cooley's clients are gone.
Who's going to hire this company now? And then they do the exact same thing with the executive order to Paul Weiss because one of Weiss's former employees used to work for the Manhattan DA's office, who was part of the investigation into Trump's hush money to Stormy Daniels.

So executive order against Paul Weiss.

So this seems like it's a vengeance thing, but it's actually when you think about it, look at all the things that have been done over the last 50 days.

All the executive orders that there's arguments that there's grave overreaching there. All of the firings of federal employees, the birthright citizenship issues, who's representing them? Wilmer Hale is a big law D.C DC company who is representing the fired inspectors general.
Hogan Lovells and Jenner and Block are representing the, blocking the executive orders. Arnold and Porter is working on the birthright citizenship issues.
All of these are big law firms that are fighting against what's happening.

So not for a second is it, sure, this is about Paul Weiss and Perkins Coie and a personal vendetta. It's also about if you can scare law firms from representing people to fight against what the executive branch is doing, you don't even need to worry about down the road defying judges' orders because you're not going to even have any orders.
You make a very good case, by the way. You're a very good lawyer.
That was chilling. I'm listening to that, nodding, thinking, my gosh.
And this is what, you know, this is sometimes when they say the slide away from democracy sometimes happens before you've fully realized it. And it's when we normalize these kinds of things, like when these things are allowed to happen without comment and without protest, it becomes sort of accepted.
And before too late, it's just this boulder rolling downhill and law firms self-exclude, right? They refuse to take the cases because they know they'll lose their business and everybody has to self-protect. And then all of a sudden we're living in a different world.
So it's a real question. We're at that point now where we're in the last third of his first hundred days.
And so we're going to see he's after round.

Now we're going to find out a little bit.

Will our courts hold?

Will Congress stand up?

And what will the people do? One of the big questions right now is if it is up to Congress to act, will Congress do anything? And I guess we had a glimpse of what Congress is ready to do last week when Democrats had their first opportunity to flex their muscles. They had leverage over the GOP in their spending bill.
And as Nancy Pelosi said, gave up everything for nothing. They kind of folded and did what the GOP wanted without exacting any concessions.
So there is a big question about not only what would the Republicans do, will the Republicans stand up to Trump, but do the Democrats have the leadership and organization to effectively force a reckoning when it comes time? Yes. And can you take us back through that? Because tell me where I'm wrong, because so this spending bill, the continuing resolution to keep the government open, the Democrats vote against it effectively in the House.
They put their necks

out pretty big, a lot of them in certain districts that were close, and they vote against it. Goes to the Senate.
The minority leader, Chuck Schumer, is like, no way in heck. We're not doing this.
this is bad. And then in the 11th hour, he comes and is like, psych, we're doing it.

And plus, I have the votes already of the Dems that it needs to be passed. And this is what

we're doing because it's the lesser of two evils. We can't leave Trump alone with the government

closed. And we're afraid he won't reopen it if he closes it.
So sorry, guys, I'm changing. And then it passes.
Yeah. I like your Chuck Schumer impression.
That was very good. We can talk about this to make it clear.
There's the strategy question for Democrats and the substance question. So the Democrats had this decision to make.
Republicans had been unable for the entirety of Trump's second term. It's been, what, seven weeks.
They have been unable to pass their major legislative package, which was meant to be like tax cuts and all these changes and extend the government spending, like solve for government spending. They couldn't agree among themselves, the Republicans.
It's a mess. They were in a bad situation because they couldn't even push their own agenda forward.
And it got so bad because House and Senate were disagreeing that they were up against this deadline and government was going to shut down Friday night if they didn't come up with a plan to fund government going forward. Now, this has happened many times before.
In order to get something passed in this last minute way, they wanted to just extend current government spending levels in what's called a continuing resolution. The problem with that is you need 60 votes in the Senate to pass it.
They needed, in this case, eight Democrats to vote for them. Well, there are no eight Democrats that want to vote with Republicans right now.
And it was the first time Democrats had leverage to say, uh-uh, we're not doing anything for you unless you give us what we want and negotiate. In the House, all the Democrats except one hung together and, as you said, voted against what the Republicans wanted to do, fund the government, which fundamentally meant government was going to shut down, came over to the Senate, and that was the opportunity for the Senate to refuse to cooperate with the Republicans and exact concessions.
Now, here's where the substance and strategy question breaks. Substance on this is there is a defensible argument that it would not have been smart for Democrats to let government shut down.
If Democrats voted no, government shuts down, what happens? It means that Doge has free reign to do what it wants inside these agencies. You think it's bad now, they would have furloughed, meaning temporarily laid off every government employee that's standing in their way.
And the Trump administration would decide which government employees to keep around, which basically could have been the guy with the key to unlock everything, right? And no one else. Let them run Rashad.
Then they could not only fire people, but shut agencies and never reopen them. Right.
I actually think it was a smart position to not allow that to happen. Yep.
Musk wanted it to happen, government to shut down. So, you know, you could debate this, but Democrats had this moment of choosing that they knew this was coming.
They knew for weeks that they could end up in a position where the Republicans who couldn't get organized might have to do a CR and need Democratic votes. And so what is it, the responsibility of Democratic leadership? Going back a month, they needed to have sat down with one another and agreed, here are the possible future scenarios.
If this happens, what are we doing? If that happens, what are we doing? Plan it out. And then when this became inevitable, have a strategy.
They could have gone on air every day saying, I'm a Democrat and I'm not voting for a shutdown because I believe we want our national parks to survive and blah, blah, blah. I'm not shutting it down because I believe in social security.
Make a public campaign and then pressure Republicans through public messaging to take a different position. For example, we will agree on a 30-day continuing resolution and you can come back and negotiate again.
We will agree a million different things. That's why Nancy Pelosi says, I don't give up something for nothing.
There are no Democrats who wanted government to shut down. What they wanted was to use their leverage to get something, rein in Musk, make Trump stop.
The list is endless. Anything.
Endless. Anything.
There is no better example of stealing defeat from the jaws of victory than exactly what they did. If they were going to end up there anyway, which I agree with you, I think it was the right choice.
What was the awful choice was pretending like you weren't going to go with it and then caving and going with it without getting anything for it. It's like if you are going to go with these people, then own it, say why and say what you require of the other side to go with them.
And instead, all they did was hang out to dry the House members. Who took the vote.
Who took the vote. Yeah, there were House members who are in swing districts where they will, in their next election, people are going to use ads against them saying they voted to shut down government and that could hurt them and they could lose their seat.
So those people took these politically risky votes for no reason. Exactly.
And so you've got infighting on that. You have people who feel totally betrayed.
You lose all the credibility with people like us who are looking at you saying, surely it matters that you're there. Surely there's a modicum of something different for the fact that you are there and your votes are needed versus if you weren't there.
And the answer we got was zero. It makes zero difference that you are there besides confusing the hell out of everyone and making the House Dems more vulnerable.

Yeah. And Schumer has actually said, I heard him say, well, we didn't think the GOP would have the

votes to pass their CR. We didn't think they'd be able to pass their own budget bill.
It's like

they were waiting until game day to devise their plays. This is not how anyone else in America runs their jobs or their businesses or their homes.
You have your plans and then your plan B's. It's what we all do every day.
And there's no excuse that they do not. So one of the things, and I think we'll talk about this another time, but I do think part of what Trump does as a figure is he makes what was there obvious.
And I think in the case of Democrats, this challenge and conflict is making it evident that something isn't working in the party and that change is necessary. Yes.
Yes. We need to have a whole conversation about that because I wish it were as simple as getting the right people elected, which is hard enough.
And I don't think that it is. I think it's a much bigger answer.
That feels like a whole other podcast episode we should do. Yep.
I think we should. There is, before we leave, a tiny pocket of really wonderful news.
And I feel so happy to deliver this story that was a couple weeks ago in Montana. And this is, you know, and speaking of kind of two sides coming together with some sanity during a really hard time.
In Montana, there was these bills, these two bills that would remove trans children from their parents and that would ban drag shows. and it sounds wild to our ears, but there are actually 396 bills currently under consideration in 49 states that are somehow related to anti-trans rights, similar to this in Montana.
And two trans representatives stood up and gave these beautiful, moving speeches to the legislature. And the Republican reps in that body changed their votes in response to this and had this really beautiful show of solidarity.
and the two bills were defeated 55 to 44 after 13 of the Republicans flipped to support Democrats. And to me, it was this beautiful moment of humanity being susceptible to not just following the party line, but being open to a human argument for humans and also to be just the common sense of what is government for.
I mean, one of the Republican representatives, Sherry Esmond said, trust the parents to do what's right and stop these crazy bills that are a waste of time. They're a waste of energy.
We should be working on property tax relief and not doing this sort of business on the floor of the house and having to even talk about this. I mean, this whole idea of like, stop.
This is madness. Just stop this madness.
And the piece of that that's so powerful and encouraging to me, I think, is this happened because 15 Republicans crossed party lines to do this. And that was only possible because the Democrats who were advocating for this were open to working with them, were open to not demonizing them as the enemy that's never going to do anything, and found the right language and values to message to them and find a point of empathetic connection.
That this isn't about some, like, liberal wedge issue. This is about parents and families.
And do these parents and these families have a right to make their own choices? And I think that's kind of inspiring, hopeful, and instructive that there is possibility for coalition with people with whom lots of us might disagree on a lot of issues, but you find the areas where you can agree, especially when you're able to make it values connection. Yeah.
Yeah. Representative Zephyr, who is one of the representatives who is trans, who spoke out against these bills, said, I have built solid relationships with Republicans and those relationships change hearts, minds, and eventually votes.
It is painful, grueling work, but it makes a difference. And that's maybe the way.

That's doing a hard thing.

That is a hard thing.

Good luck out there this week, y'all.

We will stay posted and get you up to date next week.

Be good to yourself and good to each other.

You and we can do hard things.

Bye-bye. If this podcast means something to you, it would mean so much to us.
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