TRASHFUTURE - *PREVIEW* Autopen Island feat. Carey Shockey

Episode Date: March 21, 2025

  Federal labour lawyer Carey Shockey joins Riley, Nova, and Hussein to talk about the rapid deterioration of the rule of law in the United States, its roots in Reagan and the bipartisan support for the Global War on Terror, and the relationship between law, violence, and the inherent contradictions of liberal capitalism. Get the whole episode on Patreon here! MILO ALERT Check out Milo’s tour dates here: https://miloedwards.co.uk/live-shows

I mean, just going back to the original analogy, I mean, so much of the law and so much of the way that the law is conceived in the United States and particularly at the federal level is conceived of as being this grand concrete structure when in reality, it really is this amalgam in this patchwork. And to pull it back, I know a little bit to your notes, I mean, it's about, and what Nova said at the beginning of the episode, it's about so much of due process is essentially about creating regular outcomes, right? Creating predictable outcomes, creating outcomes that are... To the extent that they are bipartisan are ones that are about creating a safe place space for capital, correct? There's about

creating this very... That's the purpose of these norms. In the field in which I work, there's been significant amount of debate. The last time that the United States passed significant labor legislation was 1947. I mean, maybe the early 1950s, but it's been a significant period of time. And there's been a ongoing conversation within a lot of folks in the labor movement, particularly over the course, since the Reagan era, particularly over the class of last 20 years, about whether the settlement of the National Labor Relations Act was something that was really worthwhile, whether that was something that unions still actually benefit from, this attempt at labor piece between labor and capital.

And I think that what you're seeing now where very recently, Gwen Wilcox, who was one of the National Labor Relations Board members, was unlawfully fired by the Trump administration. She's now been put back to work, but that's currently being appealed and there's a very good chance that the Supreme Court is going to overrule the precedent that prevented the Trump administration arguably from firing her. At the point where that agency then loses a quorum and becomes non-functional, is it then on one hand that is seen as a victory by Musk, by the Trump administration, by a lot of the management forces, by the tech billionaires backing Trump.

But at the same time, one of the factors that made the National Labor Legislation Act worthwhile is that it would create a way of regulating the labor strife that roiled the country in the 1930s. And if we lose that at that point, I mean, going to your point, Riley, it's one of those things where someone's going to be able to rebuild that. but it's kind of an open question

as to what that rebuilding is going to look like. Yeah, or what the damage would be from not having it. I mean, it always struck me that law is, it's an arena, right, in which you can, obviously, you can kind of fight capital on sort of like a defined set of terms, and you can win, and you can make gains that way to a point. But, you know, there's the trade-off of that of being kind of constrained within the system that kind of serves as a kind of, a bit of a safety valve for sort of like, for Capasol, right?

And then legitimizes some of that too. And I think all you can really say now is that we're definitively at the end of that at the moment, because the people in charge have absolutely no interest in it. And I think there's the really interesting inflection point to me is where, if you were a judge, right, if you're a federal judge, you are fully on board with this, you're like Federalist Society or whatever, you are personally massively racist, et cetera, et cetera, et cetera. Are you willing to gleefully incinerate your whole profession along with it in order to achieve that or not?

I don't know the answer to that. I guess it depends how many doodads you've been purchased by whatever billionaire pats you on the head and lets you sleep at the foot of his bed. Yeah. How many orbs you've been given over the last fiscal quarter. I think that's right. And I think you've already seen over the course, particularly since Obama, when you saw the rise of what's called forum shopping, where you have courts, where you have plaintiffs

bringing suits in various different courts around the country that are thought to be friendly to them, particularly during Obama, it was a lot of the districts out in Texas, the Western District of Texas, because there aren't that many judges there. They're almost all John Birch conservatives. And so as a result, you could bring a lawsuit there and get a nationwide injunction against something like the ACA, the minimum wage, something like that in fairly short order. That then went back the other way during the Trump administration. A lot of the suits that were brought during the first Trump administration were brought

at the Ninth Circuit out on the West Coast because those were thought to be more friendly courts and now they're being brought in the First Circuit up in New England. And, and the results of that it feels like is whenever there's like an injunction or a temporary restraining order, Trump or like any of his guys will essentially say like, are somebody's going to kill this guy and put a picture of the judge on Fox News. Yeah.

I mean, it's, you know, won't somebody rid me of this meddling priest? Yeah. I mean, it's just, you know, over and over again. And so as a result, you have this kind of this gradual breakdown of there being any sort of real legal and judiciary consensus where these are increasingly just different fiefdoms that are, you know, kind of go to the spoils of the victor one way or another. I mean, obviously the Supreme Court is now going to be lost for at least a generation. It was interesting that the Chief Justice responded to this exact kind of stochastic

thing by being like, well, it's nice to be nice, please don't be mean to federal judges. John Roberts quoted a saying to President, it takes more muscles to frown than to smile. Just very lightly, just kind of like, hey, stop that. Which to me seems insufficient, but what do I know? And all of this, once again, just really goes back to the fact that we really haven't had all that active of a legislature for several decades now. You have brief moments of bipartisan consensus around things like passing the Patriot Act or whatever, or the

crime bill of the 90s or something like NAFTA. But by and large, you really have the Senate and the House almost completely grinded with it at all, particularly over the course of the last 10 to 20 years. And so through that, both you've seen first with Bush, then with Obama, now with Trump and with Biden, you've seen the increasing evidence of rule by executive fiat, which goes to the entire unitary executive theory where you increasingly just have... Right now, as we currently record this, Trump has said that he is going to dismantle the Department of Education, notably without keeping the part of it that administers student

loans because we have to make sure that we still do debt collection, but that the rest of the entire secretariat is going to be dissolved. And so you just can increasingly have the mad king sitting on his throne, just tossing out edicts and seeing which ones stick. And I mean, that's, that's been getting to a real kind of an even more frightening place with the, uh, the U S Institute of peace thing. I would say we're going to get there, but I wanted to just sort of step back for a little bit and I wanted to go back to some of these, now that we sort of talked about like the broad relationship between the powers, I want to talk about some of the, some of the other

specific things that the administration is doing. We've noted like in like unilaterally dismantling the agencies, the statutory basis, as well as impounding payments, which is its own sort of crisis. But I wanted to talk a little bit about how they are doing it. And the question is, are they dissembling? I.e. they're saying, okay, well, that judge said we had to have the planes turn around where we were flying these Venezuelan migrants to the torture prison in El Salvador. Well, actually, it was in international waters. So it was out of that judge's jurisdiction versus dissembling like that. Or what they're doing is they're saying, okay, well, we're not eliminating USAID. We're just reducing it to what we consider to be a statutory minimum.

And those are saying, oh no, we're not breaking the law versus gloating, right? Which is we're going to brag that our actions are in defiance of court orders and we urge you to do something about it because no, you can't. I do feel like the gloating is baked in, whether they're kind of trying to assume the under color of law or whatever, because they did, like, the deportation flight specifically was like open defiance, right? But I think that whether or not they, and then you had this kind of like, hurried thing that resulted in, oh, well we're not actually, you know, just ignoring the court order, it was just kind of, it was a fait accompli that we'd

already done the deportations. But Naib Boukle was still doing the gloating post, right? And Rubio like retweeted that shit, which is informative, I think. Yeah, it's not a crime if it happened in the past. If the court finds you doing it after you've done it, then you're free. You federal judges typically like that argument. Yeah.

Yeah, no, I'm gonna try that the next time that I appear in front of one of them, we'll see how well it works out for me. I'm sure it won't end up with me in contempt. The other thing I wanted to mention though as well, is noting some of the people who were on that flight, is they would say, okay, well, we know that they're all gang members and terrorists and we're not going to supply any evidence of that to anybody because they're enemy combatants. This was the kind of logic that was used to get people like Omar Khadr or Maher Arar sent to Guantanamo Bay during the war on terror. In the case of Omar Khadr, he was alleged to have thrown a grenade

when I believe he was just like wounded in a gunfight and then blamed for the death of an American officer, then taken to Guantanamo Bay. Maher Arar, both these guys are Canadian, incidentally. Maher Arar was set up by Canadian intelligence and the RCMP as an al-Qaeda associate who then was arrested and sent to Guantanamo Bay based on just knowing someone who knew someone who knew someone. And in both these cases, the people who were actually on that deportation plane, it's now being filed essentially, were rounded up under equally suspicious circumstances. Yeah, like, has tattoos.

Yeah. Essentially. One guy was like, he had a tattoo of the Real Madrid logo that was used as proof of gang membership and that he had a social media post with making finger guns. I mean, that's also not new in the sense that administratively that it's been that way for as long as I think anyone can remember in terms of like determining gang affiliation, right? If you look at, uh, like any state prison system in the U S there's a lot of that,

uh, that I've read about. Um, so yeah, it's just trying to elevate that to, we can now take someone to El Salvador off of this.