99% Invisible - Side Projects

Episode Date: August 13, 2024

This week we're highlighting a couple of series that live inside the 99pi production tent.We’ve got a preview of a new miniseries for you called Not Built for This, created and hosted by Emmett FitzGerald. It's a show about climate change, but not in the way you might think. It's about how the complex systems that govern our lives are not designed for the tectonic changes that are coming our way. Because right now we’re all living in a world that was just Not Built for This. You can find Not Built for This in the 99% Invisible feed starting August 20th.We're also announcing the relaunch of Roman's side project What Roman Mars Can Learn About Con Law by featuring a new episode and one from two weeks ago.Side Projects Subscribe to SiriusXM Podcasts+ on Apple Podcasts to listen to ad-free new episodes and get exclusive access to bonus content.

This is 99% Invisible. I'm Roman Mars. Longtime 99PI listeners know that every couple of years, one of our producers breaks off from the normal show production and helms their own mini-series. This is how Avery Truffleman's Articles of Interest and Katie Mingle's According to Need were made, and they represent some of the best work we've ever done. Next week, we will premiere a new series of six episodes that will run twice a week on Tuesdays and Fridays.

It was created by longtime superstar producer, Emmett Fitzgerald, and it's called Not Built For This. It is absolutely brilliant. I cannot wait for you to hear it. Here is a preview. I grew up in Vermont, a state that has occasionally been described as a climate haven. Whenever someone publishes a list of places you should move if you want to escape climate change, Vermont always seems to be somewhere near the top.

I've been covering climate change long enough to know that no place will be safe, but I have to admit that I've always found these lists weirdly comforting. That is, until last summer. About a year ago, it rained so hard in central Vermont that my little green valley filled up like a bathtub, flooding downtown Montpelier. This eerie orchestra that you're hearing is the sound of every security system on Main Street going off all at once. It felt almost two on the nose, like the universe was ringing some kind of planetary alarm bell,

saying, snap out of it. Your quaint little home isn't as safe as you think. But if my little town isn't safe, is anyone's? I'm Emmett Fitzgerald, and I'm the host of Not Built For This, a new mini-series from 99% Invisible. And it's about climate change, but it's really about how the complex systems that govern our lives were not designed to handle the tectonic changes that are coming.

We're going to look at infrastructure and insurance, housing and land use policy, migration and public health. We'll meet people leaving the places they love. When that fire hit, all of a sudden it came clear to me, oh my God, we are in it, this is it, this is climate change, this is what's going to happen. It just kind of came roaring up to my back door. Arriving in places that aren't ready to receive them. And I roughly did the math somewhere between 35, 45,000 people have been displaced.

I burst into tears. And trying to plan for a turbulent future that they can only vaguely make out. All of us were kind of like, my goodness, well, this would be not ideal. This is a series about how we prepare for the extremely bumpy ride ahead of us. Because right now, we're all living in a world that was just not built for this. How you gonna keep telling them it's a freaking 100-year flood? Well, God dang it. 100 years coming every six months. Straight up.

It's called you guys infrastructure is horrible. Coming August 20th from 99% Invisible. Emmett Fitzgerald's not built for this. Get excited. You are going to love it. In addition to Emmett's series, which has been in the works for a couple of years, another side project of mine has restarted and is now in regular production. It's called What Roman Mars Can Learn About Con Law. So, several years ago, when Trump was first elected, there was all this news about the norms and traditions

he was violating on a regular basis, with people emphatically arguing that he was regularly violating the Constitution. Suddenly obscure clauses like the Emoluments Clause and heretivore never considered hypothetical scenarios were routinely being discussed. Like, can presidents pardon themselves with a tweet? The answer is probably yes, but only for federal crimes.

My anxiety led me to seek the counsel of my friend and neighbor Elizabeth Cho, who is a law professor at UC Davis. Over the course of 80 episodes, she's taught me so much by taking something from current events and springboarding off of that to teach me US constitutional law. I love the show. Talking to her is one of my favorite things to do. And I also think the podcast itself is a real service to the world. It really grounds me and helps me make sense of everything.

We had a very busy first part of the year. I was spending a lot of time with Power Broker and the Con Law podcast went fallow. But there was so much going on in the world and so many confounding Supreme Court decisions, we decided to relaunch it anew and reintroduce it to the curious and beautiful nerds in the 99PI audience. Here are a couple of recent episodes. This one is brand new, getting its world premiere right here. Enjoy. So today is Thursday, August 8th at about 11 a.m. What are we gonna be talking about? All right, well, let's go back to 1960.

Okay. On a cold night in February, two officers from the Los Angeles Police Department pulled over a green 1947 Nash driven by Charles Banks. Now Charles was sitting in the front with his wife Norma and in the back seat sat 25 year old Lawrence Robinson, a black army veteran. He was sitting with a lady friend of his. Now the police officers didn't observe any criminal acts from the four people, but they did order Robinson to roll up his sleeves. And the police later testified that they saw what appeared to be numerous needle marks and a scab on his arms.

And Robinson admitted that he'd used narcotics two weeks before. But it was those needle marks that led to Robinson's arrest. And in June of 1960, a jury convicted Robinson for violating the state's health and safety code. California made it a crime, a misdemeanor, to be addicted to the use of narcotics. And the judge had instructed the jury that they could find Robinson guilty if they agreed that he held the status of being a narcotics user. And Robinson was then convicted and sentenced to 90 days in jail. But he appealed

his conviction all the way to the Supreme Court. And in 1962, the Supreme Court decided that Robinson's conviction was unconstitutional. The court noted that no state would make it a crime to be mentally ill, a leper, or to be afflicted by a venereal disease. And there was no difference with California's law making it a crime to be addicted to narcotics. No state should be able to punish someone for their status, even if that status was drug addiction, because it could be, in the Supreme Court's words,

contracted innocently or involuntarily. So Robinson's conviction was reversed. On July 25th, 2024, California Governor Gavin Newsom issued an executive order telling state agencies to clear what he called dangerous homeless encampments on state land. Cities and counties in California were encouraged

to do the same. What's the connection between Lawrence Robinson's arrest and this shift in policy that's emerging not just in California, but many parts of the West Coast? A lot, it turns out, because of the Supreme Court. Time to find out. Let's do it. This is what Roman Mars can learn about con law. An ongoing series of indeterminate length and sporadic release where we look at the vague notion of what is cruel and what is unusual and use it to examine our constitution like we never have before.

Our music is from Doomcheat Records, our professor and neighbor is Elizabeth Jo, and I'm your fellow student and host, Roman Mars. So Roman, the last Supreme Court term we just saw had many really important cases. Not all of them focused on Trump. So today I thought we'd talk about one of them, a case called Grants Pass. Okay, let's do it. The executive order I just mentioned from Governor Newsom focuses on the problem of homelessness. And of course, homelessness is a very complicated policy problem in the United States. There are so many reasons why people end up on the streets. Drug abuse,

housing costs, domestic violence, mental illness, or some combination of those things. And many homeless people end up living together in public places like parks and sidewalks. And the problem keeps growing. The federal government's statistics say that homelessness has reached its highest level since it started keeping track in 2007. And homeless encampments became an especially big problem

when the pandemic started. In 2020, the Centers for Disease Control issued official guidance about this. They told cities not to break up homeless encampments because it could lead to further spread of COVID-19. And at the same time, many cities also saw residents and businesses leave their downtowns during the worst of the pandemic. Many cities have recovered, but many have not. And the homelessness crisis has gotten worse.

This is a serious public policy problem, an urban planning problem, especially on the West Coast. Again, according to the federal government, more than 40% of the country's homeless population lives in the Western United States. And according to one estimate, there are 70,000 homeless people in the city of Los Angeles alone. So that's the policy issue.

How do you encourage urban revival after the pandemic when people's habits have changed and when there are large homeless encampments? And how do you help these thousands of people with complicated problems? So one method is to clear out these encampments. Most cities have laws that ban sleeping on the sidewalks or camping in public places.

What is officially camping in a public place? A law might say that you can't camp on public property, and then camping might be defined as something like setting up a campsite which is any place where bedding, sleeping bags, or other material used for bedding purposes, or any stove or fire is placed for the purpose of maintaining a temporary place to live. So a city could use this kind of law, which might impose fines or even jail time, as an incentive to persuade people living in these encampments to leave,

to accept social services, or to accept offers of shelter. So the idea is leave or else. And many cities have adopted a kind of multi-step process to clear these encampments. They might say, look, in 48 hours, we're going to clear the encampments. We're going to have city workers offer social services and shelter, and we're going to help you bag up your things so they're not lost or

stolen. But in other cities, clearing encampment just means heading directly to enforcing these anti-camping laws and arresting people. So Roman sounds like an easy solution to an easy problem. I mean, yeah, it's terrible. It's not an easy problem. There are no easy solutions except for giving people houses, which is, you know, it's a simple solution, but it's complicated in how you enact it. Yeah, and so all of the cities, especially on the West Coast, have struggled with what to do.

One of those cities is Grants Pass. And Grants Pass is a small town in southwestern Oregon with a population of about 38,000. And Grants Pass has an small town in southwestern Oregon with a population of about 38,000. And Grants Pass has an anti-camping law, like the one I've just mentioned. And the city decided to enforce this law against its homeless population. There are about 600 homeless people there. So it's large for the amount of people who live in the city. The first violation results in a fine fine and then later citations can eventually

lead to people being arrested and eventually jail time. Now, Grants Pass had been relying on these laws pretty aggressively for at least five years when a group of homeless people filed a lawsuit in federal court against the city in 2018. So what was the basis of their lawsuit? Well, the plaintiffs in Grants Pass had a very good chance of winning their case when they filed it. And that was because the Ninth Circuit, that's the federal appeals court covering the West Coast, had decided a very similar case just six weeks before. Yeah, that's the Idaho one, right?

Yeah, that's right. That earlier case was called Martin vs. City of Boise. And the Martin case also involved a lawsuit brought by a group of homeless people in Boise that challenged that city's enforcement of its anti-camping laws. Just like in Grant's Pass, it's a crime to camp in public spaces in the city of Boise. Now, Boise did have emergency shelters for the homeless,

but there was not enough bed space for everybody who needed a bed on any given night. And in the Martin case, the plaintiffs argued that arresting the homeless for anti-camping laws violated their constitutional rights. They relied primarily on the case of Lawrence Robinson. So can you see the analogy they're making here? Well, like in Robinson, So can you see the analogy they're making here? Well, like in Robinson, being homeless is not a thing that they can necessarily control. Therefore, being punished for it is cruel and unusual.

That's exactly right. I mean, remember in Robinson, the Supreme Court said, look, this is about the state trying to punish somebody for their status, who they are, and you can't do that. And in Robinson's case, the Supreme Court specifically said in 1962 that if you criminalize the status of being an addict, that violates the Eighth Amendment. So Roman, why don't you read the amendment?

Oh, yes. I love this part. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Now in Lawrence Robinson's case, the Supreme Court said that enforcing this addiction law violated his Eighth Amendment right to be free from cruel and unusual punishment. Now this ban on cruel and unusual punishments is a pretty colorful but not very clear phrase.

So what exactly does that mean? Well, it's not, you don't really have a ready answer for every situation. The death penalty, for instance, is a form of punishment that in general is not considered unconstitutional. But there's so many other kinds of things that are punishments. Justice Gorsuch has said that 18th century methods like disemboweling, quartering, public dissection and burning alive would surely be considered cruel and unusual under the Constitution. That's not too helpful either because Robinson's conviction is not similar to any of these

things. And in fact, the court in Robinson's case didn't object to the method of his punishment. Remember, he just got a 90-day jail sentence. Instead, the court said criminalizing his status violated the eighth amendment. So really they're saying that the very idea of making this a crime is what is unconstitutional. So Robinson versus California is an unusual case because of the way in which it's decided. And the Supreme court hasn't shown much interest in developing this idea further after Robinson's

case. But it remains a Supreme Court decision. And it is Robinson versus California that the federal appeals court relied on in the Martin case to decide that the city of Boise could not constitutionally enforce its camping law in a specific situation when there are more homeless people than beds available in shelters. So that gives Boise two options. Either you stop enforcing your anti-camping law

under these conditions or increase the number of shelter beds so every homeless person could get off of the streets. Those are hard options for any city. And the idea here is that if you are punishing someone for sleeping outside, but there's no other place for them to go, then that is cruel. Like, what are they leaning on in this, you know? I think you've gotten to the core of it, that if you have nowhere to go because there's

no available shelter beds, how can the state punish you? Because you're there involuntarily. You're sleeping on the street through no choice of your own. I'm just trying to find what word in this amendment they're latching onto, you know, that it's particularly cruel, that it's unusual, that it's excessive. You know what you mean?

I don't know. Well, they're not. That's kind of the problem. They're relying on the 1962 case, that's Robinson versus California, where the Supreme Court in that case said, well, it's cruel and unusual to punish someone for their status. And so the Ninth Circuit says, well, this is also punishing someone for their status of being involuntarily homeless.

So it's building on an argument. So they're really focusing on the idea of status established in that other case, not necessarily on what's being spoken in the amendment itself. Exactly. And so the appeals court is not saying that homeless people have the right to particular beds or that any city has to guarantee beds to people. Really what they're saying is that if the city is going to arrest folks for these anti-camping laws or sleeping on the sidewalk, they have to have this realistic choice of having a shelter bed available. You don't have the choice of a particular bed or a particular shelter, but you have

to have some access to a shelter. The Martin case is a huge decision. It sets the law for all of the West Coast states. Now let's go back to Grants Pass. Okay. The Grants Pass case was filed because of the Martin decision, and it goes a little bit farther. The federal court decided that every homeless person was involuntarily homeless

because there were not enough shelter beds for the entire population. The Eighth Amendment and Lawrence Robinson's case did not allow the city of Grants Pass to enforce its camping ordinance. So we've just talked about two cities, Boise and Grants Pass, but after the Martin decision, there was a lot of uncertainty and confusion about whether and how cities and counties on the West Coast could enforce their laws and clear these homeless encampments or maybe they couldn't at all. So after these cases, there were many, many lawsuits filed and many judges imposed injunctions or judicially ordered pauses on the enforcement of anti-camping laws in places like San Francisco

and Los Angeles. But the problem was that each time there were small variations about what counted as an available shelter or an adequate shelter so that cities could enforce their laws in ways that didn't violate the Eighth Amendment. So, for instance, in 2020, a federal judge said that adequate shelters meant that shelters needed certain features like nursing staff who could provide COVID tests and on-site security. In 2022, a federal judge

ordered the city of San Francisco not to enforce its anti-camping laws, but the decision left unclear how the city was supposed to determine who was involuntarily homeless and who was not on a daily basis. And you can imagine that's hard to do, right? Not everyone cooperates. It's not clear who really has access to a shelter, or who doesn't.

Yeah. And I don't even know if I know how to define who a voluntarily homeless person is. I mean. That's right. That's right. It's really hard to do. So these decisions raise a very simple question, right?

Do these people have the right to be here? But the answers from all of these different courts were complex, sometimes somewhat inconsistent, and very hard for cities and counties to comply with. So it was no surprise that the Supreme Court decided to review the case of Grants Pass. And the Supreme Court issued its decision in Grants Pass versus Johnson on June 28th, right at the end of its term. Now, before the Supreme Court takes up its case, I want to just pause for a moment on the issue itself.

The politics of this issue are pretty complicated, don't you think? Yeah, because as you stated, the most intense pressure when it comes to homelessness and interacting with communities is in the West where there's a lot of liberal folks who run things who want to take care of the homeless, but also know that this is not a thing that is tenable if encampments get bigger and bigger and bigger. That's right. And then the folks who are bringing lawsuits are advocates for the homeless or civil rights organizations, also considered progressive or left. So this isn't a kind of neat right-left divide. You have a very complicated set of decisions that have to

be made, and the alignments are not what you would necessarily expect. And for some of the federal judges, it was a very personal issue. Here's what one federal appeals court judge said in the grants passed lawsuit before the case went to the Supreme Court. This judge said, assume you are a police officer and you encounter a homeless person in some public place, say San Francisco's Civic Center near the James R. Browning building where our court sits. Assume further that the person has set up a tent and engaged in activities like defecation and urination on the sidewalk nearby. Under Martin, you are powerless to cite this person

even for public defecation because San Francisco has fewer shelter beds than total homeless persons. And so in fact, a very large number of cities, states, and counties filed briefs asking, begging the Supreme Court to take the case, not just from the West Coast, but also from places all around the country, because they wanted some clarity on what was permitted and what was not. Now some of these local governments asked the Supreme Court to overturn the Grants Pass case. But others, like California's Governor Newsom,

simply filed a brief asking for clarity. He wasn't asking for any side in particular. He just said, please make clear what we can do in ways that are constitutional, respecting the rights of the people in these encampments, but allowing the cities to do something about the problem. So Justice Gorsuch wrote the majority opinion in Grants Pass. And I think you can understand Gorsuch's point of view from just two sentences from the opinion. He says, policymakers need access to the full panoply of tools in the policy toolbox to

tackle the complicated issues of housing and homelessness. Five years ago, the US Court of Appeals for the Ninth Circuit took one of those tools off the table. So what's the reasoning behind his opinion? Well there's two major points. In the majority's view, the Eighth Amendment, the one that bans cruel and unusual punishments, has nothing to do with local governments using anti-camping laws as one of its methods to address homeless encampments. Remember, as you pointed out, the Eighth Amendment talks about cruel and unusual punishments.

We typically think of that as what happens after conviction. And the majority in Grants Pass says, well, that's the main focus of the Eighth Amendment. And the problem with the lawsuit in Grants Pass is that it isn't really focused on the punishment at all. It's a lawsuit about the criminal law itself. The punishment afterwards, which could include civil fines, exclusion orders, and then jail sentences, it's just not that severe or strange. It doesn't seem cruel and unusual in the slightest. And so what does this mean for the Robinson case, the addict case?

Well, the people who challenged the anti-camping law in Grants Pass said, look, this is exactly like Lawrence Robinson's case. Robinson was being punished for being an addict, and we're being punished for being homeless. That's unconstitutional. But the majority in Grants Pass has a very simple response to this. Let's take a look at the law.

In Robinson, the state of California had made it a crime to be addicted to the use of narcotics. The law that's challenged in the Grants Pass case says, you can't occupy a campsite on public property for the purpose of maintaining a temporary place to live. Saruman, can you see how these laws might be considered pretty different? Well, they seem entirely different. It's hard to find similarities, actually, in some ways.

I mean, to me, the most obvious one is this kind of nebulous idea of being addicted to something versus the action of actually putting down a bed and a stove and things like that. They just seem like completely different things to be able to measure and control. That's exactly how the majority sees it. The majority in Grants Pass says, look, the law in Robinson's case was punishing the fact that Robinson was an addict, nothing he was actually doing at the time he was arrested.

But the law in Grant's pass, which is similar to almost every anti-camping law around the country, doesn't focus on the status or the fact of being homeless. They simply state that there are acts that you can't engage in. And that makes all the difference, says the Supreme Court in Grant's pass. And that's why these laws are constitutional. Now, the Supreme Court doesn't overrule Robinson's case. It just says Robinson has nothing to do with these anti-camping laws at all.

Interesting. And in fact, the Supreme Court says the Grant's Pass case is much closer to another case it decided shortly after Robinson. It's a case called Powell versus Texas. Leroy Powell had been convicted in Texas of the crime of getting drunk or being found in a state of intoxication in any public place. Powell argued to the Supreme Court that he was just like Lawrence Robinson.

He was an addict. He was an alcoholic. So Texas was punishing him for his status, and that violated his Eighth Amendment rights. But in 1968, just six years after Robinson's case, the Supreme Court decided that even if Powell could not help what he was doing, because he was an alcoholic,

Texas was not punishing him for being an alcoholic. Texas was punishing the very specific act of being drunk in public. So a very different case from Robinson's, and so Texas could constitutionally punish Leroy Powell. And so in Gorsuch's view, anti-camping laws are just like that Texas law. Here's what the majority in the Grants Pass case said.

The public camping laws prohibit actions undertaken by any person regardless of status. It makes no difference whether the charge defendant is currently a person experiencing homelessness, a backpacker on vacation or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building. So it's sort of like everybody has a right to sleep under the bridges kind of idea. Or everyone doesn't. Or everyone doesn't, right.

So the dissenters, of course, did not see any distinction. Justice Sotomayor wrote a dissent that was joined by Justices Kagan and Jackson. And Sotomayor says, look, for some people, sleeping outside is really the only choice they have. And the fact that the anti-camping laws literally punish acts rather than status is not really the point. Sotomayor points out that if we look beyond the literal words,

if we see why these laws were passed, who is enforcing them and what they say when they're enforcing them, we can see they're specifically designed to punish homeless people who happen to be sleeping in the parks or on the sidewalks. These laws are designed to only target the people who don't have a choice to live anywhere else. Nobody else, not the backpacker, not the person who just happens to have a pillow in the park. These are not people who are arrested. And so for Sotomayor, the Grants Pass Law, like all of these other anti-camping laws, are really laws that truly target the status of homelessness. And that's what makes them unconstitutional in the dissenters' mind.

I'm convinced of that. Because we both, I mean, everyone knows that it isn't the backpacker or the young kid, like, that is getting moved off of a public's spot, especially if they're a white young kid. It really is just for homeless people. I think that's right. I think the problem is that because of the way that the court has decided this area of the law, that there's only this one sort of outlier case, Lawrence Robinson's case, and they've never really revisited it.

And it means that they never really liked that case ever since. They don't really want to overrule that case. But if we're really going to have a Supreme Court that says, well, if there's a law that punishes acts, what we really need to do is look at how it's enforced to see whether it's punishing status. That would really open up a lot of challenges to every kind of criminal law. Yeah, yeah, sure.

That's not a place where the court wants to go. No. So after the grants passed decision, like what happens now then? Well, what it really means is that state and local governments now are free to enforce their anti-camping laws, anti-sleeping on the sidewalk laws, if they want to use these as tools to clear homeless encampments., if they want to use these as tools to clear homeless encampments. They don't have to enforce these laws,

they can really do whatever they want. They can continue to offer shelter and services, they can do nothing if those offers are refused. But after the grants pass case, the decision is left entirely up to cities, counties, and states. They can use persuasion or they can use arrests. And so that's what we're starting to see already.

So in San Francisco, Mayor London Breed has already announced that the city will take more aggressive steps after the grant's passed decision. She's told the city's police officers that they can cite homeless people for illegal camping if they refuse offers of shelter. That was something that they couldn't do before this case.

She also announced that police will enforce laws that ban sitting or lying down on sidewalks. I assume that wouldn't be enforced evenly, probably only enforced against people who appear to be homeless. No way would that be enforced evenly. So that's the clear consequence of the Supreme Court stepping in.

There's no longer any confusion. It's absolutely clear that each city, state or county can do whatever it likes. There is a separate issue that comes up, I think, not having to do with cruel and unusual punishments. When you think about what it means for cities and counties after grants pass, this is a decision about local governments. But it's also a policing decision, too. Because when you think about the carrot and stick approach

that's been used in the case of homeless encampments, well, getting people off the streets is often a matter of incentivizing people or saying, well, the police are going to arrest you. So you can think of grants pass as a Supreme Court incentivizing people or saying, well, the police are going to arrest you. So you can think of grants passed as a Supreme Court case that also grants more powers in the case of policing. Because if the police can enforce these laws, not just anti-camping laws, but laws that

ban sitting and lying down on sidewalks, they have more tools in general at their disposal. I think one of the problems though is that these laws are notoriously vague and broad, and that means they have the potential to be used in ways that might be considered arbitrary or discriminatory or unevenly enforced. Now this kind of concern doesn't have a place in the cruel and unusual punishments area of the law, but there is some possibility that someone might bring up a claim that, well, maybe these laws are unconstitutionally vague. I can't really understand how to comply with these laws.

And if an ordinary person can't figure out how to avoid violating an ambiguously-ordered law, well, that means that there's a risk that the police could arrest anybody for any reason or maybe no reason at all. I bring this up because Justice Sotomayor, who writes the dissent in Grants Pass, suggested, look, we're just deciding the Eighth Amendment claim here today, but there's some possibility that there could be a due process claim here as well.

And what does she mean by that? What she means by this is somebody could raise a due process claim that these laws are called void for vagueness. They're unconstitutionally vague and they could be potentially struck down on a different basis. I see. So it's just kind of like raising a little hint to future lawsuits potentially that might be raised.

And how she might rule on those. And let me go back with a coda about Lawrence Robinson. OK. Remember him? Yeah. Robinson was found dead in a Los Angeles alley, probably of an overdose, in August of 1961. That was 10 months before the Supreme Court issued its opinion in his case.

It's not clear whether Robinson's lawyer was hiding the fact or didn't know that his client had died. Now, then the Supreme Court issued its actual opinion in Robinson v. California in 1962. And after they discovered that Robinson was dead, California's Attorney General asked the Supreme Court to vacate its decision because it was moot, no longer relevant because Robinson was dead. The Supreme Court denied the petition, and California versus Robinson ended up living on as an important opinion, an opinion on the Eighth Amendment that Justice Gorsuch would describe

in 2024 as a notable exception. Wow. What a story. I mean, this is one of the things that I just like. It only came to the revelation after we started talking. But just like, law school is just stories. It's just so cool. It is stories.

Yeah. It's so amazing. I mean, one of the things that's really amazing about constitutional law is, you know, we always hear about these, you know, big name lawyers that argue these cases, but so many of the most important cases start out with the most ordinary kind of situations and ordinary people and through luck and happenstance, their case is the one that becomes the case that is cited for decades.

Yeah, yeah. I am very sympathetic and mostly I'm like on the sort of mayor team on all things and you know I follow her line of thought most of the time. One thing that this does bring to mind though is the nature of policing is there is definitely a bad side for it being discretionary and vague. But there is kind of an upside to that as well, because if the community standard for what the cops do and how we hold our elected officials who control the police in some way responsible, that sentiment could trickle down in a good way too, right? Oh, absolutely. I mean, discretion is not 100% bad.

Police discretion can mean that police can be understanding in situations that technically call for a citation or arrest. I mean, we shouldn't think of police discretion as some sort of evil. I think the problem is police discretion only comes up in legal cases and goes up to the Supreme Court when there have been bad uses of discretion, right? When you have police saying that is just targeting a group

or saying, look, we're just going to arrest these people because they're the unpopular people in the city or the community. And that's if the Supreme Court's ever worried about police discretion, those are the situations where it arises. But you're right. I mean, even with what's happened after grants passed,

there have definitely been cities on the West Coast that reacted to the Supreme Court decision and said, look, that's what they said, but we're not changing our position. We're still going to offer shelter and social services. We're not going to use policing in an aggressive way to punish these folks. So in a way, you might say that this is a decision about sending it back to local communities and deciding what to do. So that leaves a lot in the hands of local folks to decide how they want to address this.

And that can be using the tools of policing as a backup or using it in the first place. And that's what I think will concern some people. Yeah. I mean, that's what I think will concern some people. Yeah. I mean, the silver lining to this is that placing this back into just the local community and for them to assess their values and really realize what they're doing here

and not kind of rely on whatever, these strictures of law that they feel like their hands are tied. Now they know that they're not. And maybe it causes them to be more charitable. And maybe it causes them to think more holistically about the problem. I would have some hope that the better angels of our nature would come through when they realize that they have this power to really destroy someone's life. And maybe they just choose not to, and that would be really, really great. I hope that's right.

I mean, I hope that cities go in the way that is in the opposite direction of what we saw in the Grants Pass, which was basically, say, a decision before the lawsuit that we're just going to get rid of these people, and we're just going to start arresting them left and right. And that's not what you want to see. We want to see some other other more humane approach.

And hopefully, more communities will adopt that. Yeah. Well, good. I mean, I don't know if I'm extremely hopeful. But at least there's something there for people to take charge of this and for people who are aware of this to know that now they actually have the local control to make those decisions and provide those services

and solve the problem in a specific way related to that community. I think that, you know, I don't know, we should take on that responsibility. Yeah, that's right. It's definitely back in our hands now. This is fascinating stuff, Elizabeth. Thank you so much.

Thanks, Roman. Good to be with you. ["The Time Is Now"] After this, another completely different episode of What Roman Mars Can Learn About Con Law that we released two weeks ago. So we are talking on Thursday, July 25th at about 11 15 a.m. and it has been an incredible week in politics and government. What are we going to talk about this week? Well, you're right.

I think we just lived through what seems like the longest week of 2024 so far anyway. Yeah, so shall we recount what happened? Yes, let's start there. On July 13th, Trump survived an assassination attempt during a rally in Pennsylvania. Then two days later on the 15th, federal judge Eileen Cannon ordered that criminal charges be dismissed against Trump. Then two days later, President Biden tested positive for COVID and isolated himself. Yeah, forgot about that one.

That's right. And then on the next day, the 18th, Trump formally accepted his nomination as the Republican nominee at the convention in Milwaukee, Wisconsin. Then on the 21st, Biden announced that he would drop out of the presidential race with less than four months before election day. Remember, he had faced this relentless pressure to drop out after his dismal performance in his debate in June with Trump. And less than an hour after that announcement, Biden then endorsed Vice President Kamala Harris to be the Democratic Party's nominee. So in this very, very long week, two of those events have already raised a bunch of legal questions now that Harris is running for president and Trump's criminal case in Florida has disappeared.

So what is happening and what are the consequences? Time to find out. Let's do it. On, on, on, on, on, on, on, on, on. This is what Roman Mars can learn about Con law, an ongoing series of indeterminate length and sporadic releases where we look at the far-fetched arguments challenging Vice President Harris on the ballot for president, and a Florida judge's decision to throw out the classified documents case against former President Donald Trump and use them to examine our Constitution like we never have before. Our music is from Doom Street Records, our professor and neighbor is Elizabeth Jo, and I'm your fellow student and host, Roman

Mars. So now here we are, Kamala Harris is very likely the Democratic nominee in the presidential election. And it looks like she's secured enough informal support from delegates to be the nominee. So what is she going to face? I think some Republican-led lawsuits, but Roman, I don't think they should be taken very seriously. Let me address some of the big ones. First, there is talk of running a court to prevent Harris from getting on the state ballots. And I think the argument here is that it's legally too late for her to be the nominee. This claim, let me be clear, is a loser. Why is that?

Let me explain. So first, as far as who the nominee is, that's a matter for the political parties. The national party rules determine how delegates are selected. Now of course, everybody thinks, well, Biden announced he was going to run for reelection earlier, and so delegates were providing their support to him. And unofficially, that was true. But Biden, had he not dropped out, would not have become the official Democratic nominee until he was formally nominated at the Democratic National Convention. And that hasn't taken place yet.

So if we assume that Harris becomes the formal nominee during the convention, then she becomes the party's formal candidate, and there's still plenty of time for her to put her name on the ballot. And so it's up to the states to decide their own rules about listing candidates on the general election ballot for president.

And there's no state now that has a printed paper ballot before the Democratic National Convention in Chicago. So let's take the example of Iowa, right, which has an early ballot access deadline. So Iowa tells the parties, the political parties to provide the names of their nominees no later than 81 days before election day or August 16th. But Iowa also says that parties with late conventions have another couple of days after they finish. And so since the Democratic National Convention

starts on August 19th and ends on August 22nd, that means that the Democratic National Convention can provide the name of their nominee pretty late. And so Harris isn't even close to being late to have her name on Iowa's ballots. And actually, even before Biden dropped out, some Trump allies threatened to block Biden from withdrawing from the ballot. That's silly too, for the same reason. He's never, he hasn't been the formal nominee yet.

Also has like a creepy stalker vibe. You can't quit. Yeah, you can't quit me. Yeah. But like a creepy stalker vibe. You can't quit. Yeah, you can't quit me. Yeah. But anyway, it's pretty ridiculous. So there's no chance that such a lawsuit is going to go anywhere. Second, there may be some Republican campaign funding lawsuits. And the idea behind this type of lawsuit might be that Republicans would sue and to stop Harris from using Biden's campaign funds.

But Roman, there's a pretty big problem here. Who was on the Democratic ticket until last week? Biden and Harris. That's right. They were running together. They had one committee. Her name was already on all of the campaign funding paperwork. And so her committee just needed to have amended or changed it

to say, well, she's now running for president as vice president. So she's already on the ticket. It's Harris's money to use. So even if there's some conceivable campaign finance issue, there's another problem in a campaign finance challenge, and that is timing is not on the side of the challenger.

A federal court would very likely say, look, if you have a problem with Harris's campaign funding, you have to first go to the Federal Election Commission. And unfortunately, the Federal Election Commission typically takes years to resolve complaints. So any resolution about any problem, real or imagined, about Harris's campaign funding would come long after the 2024 election. And presumably even if there was a violation, she'd have to pay a fine. So that's not going to stop her from being the nominee. And then third is the ugliest lawsuit that somehow Harris is not constitutionally eligible

to be president. Now in 2020, when Harris was running with Biden, Trump said he heard that Harris doesn't qualify. Why do you think he said that? This is a page out of an older playbook. Right. Just plain old racism. So the constitution requires that the president and vice president be quote natural born citizens. Now, Roman, you know where Harris was born. Yeah, she was born in Oakland, California. Do you want to say your signature line or not?

I don't know if it's downtown or not, but she was probably born in like, in Alta Bates. Like, I don't know. Anyway, there's no question, she is a natural born citizen of the United States. She was born in California in the United States. Now it's also true that both of her parents were not born in the United States. She was born in California in the United States. Now, it's also true that both of her parents were not born in the United States.

They came to the University of California at Berkeley as students to study. But where Harris's parents were born or their citizenship is totally irrelevant to whether Harris is a natural born citizen. Totally. Besides the obvious racism, where does this crazy idea come from that she's somehow not qualified?

Well, you remember our friend, John Eastman. Oh, yes, I do. We had a whole episode on John Eastman. He was the law professor and legal advisor to Trump. And Eastman, of course, concocted this zany theory that Vice President Pence could somehow reject the certified state electors and just decide that Trump had won the 2020 election. It's a crazy idea. And since then, Eastman now faces

disbarment and criminal charges. But he has also advanced a different crazy legal theory that because Harris's parents were in the United States on student visas when Harris was born in Oakland, that they were not subject to the jurisdiction of the United States. That's language from the 14th Amendment's birthright citizenship clause. Now, I just want to say and be very plain, this is a totally fringe, total crackpot legal theory, but it hasn't stopped people from bringing it up, people who are Trump supporters. So there you have it, three legal challenges that might be raised against Harris. None of them are likely to go anywhere. Okay.

That's good to know. Okay. So now let's turn to the other big legal news of that very long week, Judge Cannon's decision to dismiss the indictment and Trump's criminal case in Florida. Now, I thought we should remind everybody of what that case is involved, because it's one of the many Trump cases. This is the criminal case involving classified government documents that Trump had taken to his Mar-a-Lago estate after he was no longer president.

And remember, Trump was not legally permitted to retain these documents. And you probably remember the FBI search of Mar-a-Lago in 2022. That was a big headline. Yeah. Now, Trump had announced just two months before that search that he had been indicted by a federal grand jury for retaining the classified documents. And the indictment charged him with something like 37 separate counts of violating federal criminal law. And a later indictment added some additional charges in that case too.

Now the reason why this became a serious criminal case was because the government charges Trump, not just with holding on to documents he shouldn't have, but willfully retaining these very sensitive documents. So this is not just a case of, you know, whoops, I'm sorry, I didn't realize I had these documents. You can have them back. The reason why this is a criminal case is because allegedly he knew he shouldn't have had them. He claimed not to have any more after he turns them over.

And then he hindered or obstructed the government's attempts to try and look for those documents. That's certainly something you're not supposed to do. Yeah. Now, after Trump announced in November of 2022 that he was going to run for president again, Attorney General Merrick Garland appointed Jack Smith as a special counsel.

So what exactly does a special counsel do in this type of case? Okay, when the Justice Department appoints a special counsel, or sometimes it's called an independent counsel, that means that the Justice Department senses that there's at least a perceived need to hire a federal prosecutor who isn't within the usual hierarchy of the Justice Department, often because there's some politically sensitive

or controversial case. So an independent or a special counsel is not directly overseen by the attorney general. I mean, there is some oversight, but the idea here is that a special counsel enjoys some independence about how to conduct an investigation. Yeah. And we've had special federal prosecutors appointed for decades. Do you remember the Watergate Tapes case from 1974? I do, yeah.

Yeah, and we've talked about that Supreme Court decision before. Totally, yeah. But actually, we only focused on one important aspect of it, and that was the court's recognition of what's called executive privilege. And that's the idea that presidents can keep some communications secret. But in the very same case, the Supreme Court also had to address Nixon's claim that the Supreme Court didn't have any authority to get involved in the case at all. Because in that case, he had refused to turn over the tapes to Leon

Jaworski, the special prosecutor who had been appointed by then acting Attorney General Robert Bork. So this part is important because the court ultimately rejected Nixon's argument. The court said, we can look at this case. And in doing so, the Supreme Court explained that Congress, by passing a series of federal statutes gave the attorney general the power to investigate crimes. Not only that, Congress gave the attorney general the power to appoint what it called subordinate officers to help do that. And the court interprets this as meaning that's why there can be a special prosecutor. And so ever since that time, which is 50 years ago now, this part of the Nixon case that the

attorney general can appoint special prosecutors has been widely accepted. We've had a lot of special counsels over the decades, like the special counsel who investigated the Iran-Contra affair during the Reagan administration and Robert Mueller, remember him? Yeah, sure. That's right. So Mueller, of course, was a special counsel appointed by acting attorney general Rod Rosenstein. And so since 1999, federal special counsels have been appointed under a set of federal regulations which are implementing federal statutes.

And those regulations say that the attorney general can supervise a special counsel, but the special counsel has a lot of independence. And independence is the entire point of this kind of job. Right. So all of this put together means that the idea of independent federal special councils being legitimate and lawful and constitutional has been widely accepted by lawyers, judges, Congress, and literally decades of historical experience, unless you're Eileen Cannon.

With that, we can return to Trump and the classified documents case. Trump argued that Jack Smith's appointment as special counsel was not just illegal, but it was unconstitutional. And on July 15, Judge Cannon agreed with Trump and actually ordered that the charges against Trump be completely dismissed. So how did she explain herself in this case,

sort of contradicting 50 years of precedent? Well, Cannon decided that Garland's appointment of Smith was unconstitutional because it was a violation of Article II, Section 2, Clause 2 of the Constitution, also known as the Appointments Clause. So Roman, why don't I have you read the clause? Okay, here we go. The President shall nominate and by and with the advice

and consent of the Senate shall appoint officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law. But the Congress may by law vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments." Danielle Pletka Another one of those perfectly clear parts of the Constitution, right? It's really hard to understand. So the Supreme Court has discussed this clause a lot, and you can tell it can be pretty confusing. But here's a simple way to think about it.

So if you think of all of the people who work in the federal government, there are a small group of positions that are considered officers of the United States. And I mean, relatively speaking, we're still talking about hundreds of people, but it's not close to the many, many thousands more who work for the federal government. But these are the officers that are referred to in the appointments clause. Officers can be principal officers or so-called inferior officers. And the default rule here is that the president has the power to appoint principal officers who are then confirmed by the Senate. So if you think about the president's cabinet, that's how they

get their jobs. But with inferior officers, Congress has the option to decide to give that appointment power to somebody else. So in theory, Attorney General Garland could be that someone else, the head of department that you just referred to in the Appointments Clause. Jack Smith said that he was an inferior officer appointed by Garland, the head of a department. And Smith also pointed to the 1999 federal regulations, the federal statutes cited by the Supreme Court in the Nixon case, the Nixon case itself, and the general idea that, look, everybody has assumed for a long time that special counsels can be constitutionally appointed. This is where Cannon deviated from everyone else. Cannon said, well, look, none of the federal statutes

or federal regulations specifically say the magic words, Congress gives the attorney general the power to appoint a special counsel. And technically that's true. There isn't a literal sentence like that. But again, if you read all of the federal law put together, plus what the Supreme Court said in the Nixon case, plus a bunch of lower court cases

that have interpreted the Nixon case, again, plus decades of historical experience court cases that have interpreted the Nixon case, again, plus decades of historical experience, there's a pretty convincing case that Jack Smith is legal, that his position is lawful. So then you might think, well, wait a minute, how can you ignore what the Supreme Court said, right? Didn't the Supreme Court say that this kind of appointment is constitutional? Well, Cannon gets around this in a very strange way.

She says that the Supreme Court was just kind of mentioning that Congress seemed to have given the attorney general the power to appoint special counsels. They weren't actually deciding that issue, so I can ignore it. And so Cannon's reasoning runs like this. Congress could have given Attorney General Garland the power to appoint Jack Smith, then that would have been constitutional. But because Judge Cannon decides

that there is no federal law that says the magic words allowing the Attorney General to appoint a special counsel, Jack Smith's position is not legal because the Appointments Clause that you just read says that Congress must have done this quote by law and there is no law she says. So in other words, what is her 93 page opinion boiled down to? It means that there has to be some federal statute that authorized Attorney General Garland to appoint Smith, but there isn't. So that means that his appointment violates the constitution's appointment clause.

So Cannon goes in a direction that really nobody else has, but the reason the decision is so significant is that what she decides is the result of her reasoning because Jack Smith was not lawfully appointed. She orders the government to drop the charges against Trump in the classified documents case. Period. After all of this time, after the FBI investigation, after the revelation of some pretty damning evidence, after the grand jury issues an indictment.

That's the shocking part. She appears to be comfortable with saying no more prosecution. So where does she get this idea? How could she say this when it's so contrary to actual lived experience and constitution and every other way people think about this type of thing? Well number one, we know in the classified documents case that Judge Cannon has been particularly susceptible to giving Trump every benefit of the doubt. And not just in this issue, but in others.

But there's actually an even more specific reason. And that comes from the immunity case that you and I talked about last time. OK. Now, of course, in that case, the Supreme Court recognized this very, very generous immunity for a president of the United States. But Justice Clarence Thomas had a concurring opinion. Not only did he

think that that was right about giving any president such broad immunity, he said, I have something else to say. And his something else was, by the way, I think special councils are unconstitutional. Granted, nobody asked him, but this is what he wanted to say. Thomas says in his separate opinion that if the unprecedented prosecution of Trump, that's his words, was going to go forward, it must, as he put it, be conducted by someone duly authorized by the American people. And he didn't think Jack Smith was such a person.

So essentially, Judge Cannon took up that charge and ran with it. She actually cites Thomas's opinion in the immunity case a couple of times in her own opinion. And there you have it. The classified documents case at this moment is dead. Trump continues to be a lucky, lucky, lucky criminal defendant, at least in the federal courts.

Is there anything to be done when she dismisses it? Is that the end of it? It's not the end of it. So Smith has already decided to appeal the case. He'll be appealing the dismissal of the indictment and he'll be going up to the federal appeals court in the region. That's the 11th circuit. Now there's some possibility that things will go in Smith's favor because the 11th circuit has reversed judge Cannon in the classified documents case before. And the odds are pretty good that they might reverse her, again, because Cannon is going against the weight of a lot of consensus opinion. But if Smith wins,

of course, that might not be the end of the case either, and it could go up to the Supreme Court. And Candace's decision has had another totally unexpected effect. You might be aware that President Biden's son Hunter was accused of getting involved in some illegal gun registration or lack of registration and some tax evasion charges. Do you remember what happened to that investigation? I mean, he was found guilty. Yeah. And what kind of prosecutor prosecuted his case? Was it a special prosecutor?

Independent? Yes, it was. It was a special counsel appointed by Attorney General Garland. Again, why? To avoid the appearance of a conflict, since he is, of course, the attorney general in the Biden administration. But of course, the attorney general in the Biden administration.

But of course, you know, the law doesn't always work just for one kind of person or one kind of party. And so understandably, Hunter Biden now has filed legal papers saying, look, if Jack Smith's position is unlawful, so too are the special prosecutors in my case, dismiss my pending criminal case, and reverse my conviction. Wow. What a weird side effect. Ha ha ha. Yep.

So how does this decision affect any of the other cases that are pending against Trump? That's a great question. So in the state cases, the one where Trump has had a conviction already in New York and then a pending criminal case in Georgia, there's no application at all. Yeah. So we're talking about federal special prosecutors or independent counsel. So there won't be any effect. Now, it might seem like, look, doesn't this have the same effect in the federal election interference case? For now,

the answer is no, because as I mentioned, there's been a widespread consensus since the Nixon case that special counsels are legitimate and constitutional. And in fact, in the federal appeals court that covers Judge Chutkin's case, that's the judge in the election interference case, that court had already decided before that it would reject any challenges saying, look, a special counsel is unconstitutional.

So in his case, in the District of Columbia, the applicable law means that his special prosecutor is lawful so far. Because of course, Judge Eileen Cannon is only a federal trial court judge in the 11th Circuit. So what she says doesn't directly affect what happens in the Court of Appeals in the District of Columbia. Now, that's the case for now.

Of course, if we fast forward, if the Supreme Court, for example, were to take up this case, somehow Justice Thomas convinces some of his colleagues to take another look at the lawfulness or the constitutionality of a special prosecutor. That could lead to yet another Supreme Court case, which of course would have national effect. But we're certainly not there yet. And as far as Judge Eileen Cannon's opinion is concerned, it only affects Trump's classified documents case in Mar-a-Lago.

And in fact, Cannon made a statement in her opinion, which may or may not have any really important effect for now, which she says, this is only applicable to this case in particular. And we know already that's not true, since Hunter Biden says, hey, what about me? I'd like my case dismissed too, and look out for other people in similar situations saying the same thing. Yeah. So is there any recourse when it comes to sort of questioning Cannon's judgment here

and like what could be possibly done? Well, there is some speculation that Jack Smith might ask now that the case be reassigned to a different federal judge if the case survives. There's some risk with that because if his request is denied, then he ends up with a really pissed off Judge Cannon in this case. That would be bad. Now so far, Jack Smith might be able to point out to different things that have happened in the actual case to say, look, her actions seem to be very, very biased in favor of Trump

and very biased against the government. So that would be the best case scenario. Judge Cannon was in fact appointed by Trump, but that's probably not a good move by Jack Smith because it's not always the case that just because a judge has been appointed by a president of a particular party, they always side with issues and decisions that seem to favor one party or one side rather than the other.

So it would be much more likely that Smith would say, look, look at the actual things she's decided in this case. Mm-hmm. Well, it's fascinating stuff, and there's just so much going on, so I'm glad that we're meeting every two weeks. And let's just hope that maybe in the next sort of interregnum between the times we talk, a little less news happens.

Just for both of our sake and the country's sake. Yeah, let's hope for some boring times. Thanks. Thanks, let's hope for some boring times. Thanks. Thanks, Roman. This show is produced by Elizabeth Jo, Isabel Angel, and me, Roman Mars. It's mixed by Ezekh Ben-Amad Fareed. Our executive producer is Cathy Tu. You can find us online at LearnConLaw.com. All the music and what Roman Mars can learn about Con Law is provided by Doomtree Records, the

Midwest hip hop collective. You can find out more about Doomtree Records, get merch, and learn about who's on tour at Doomtree.net. We are part of the Stitcher and SiriusXM podcast family.