Rational Security: The "Whale of a Tale" Edition

0:00Well, guys, it is officially the first week of September. Summer is over spiritually, if not technically as a matter of a season. Hopefully all are winding down in your summer. Well, Molly, you're still like strangling the last gasp of summer out as I know you're still out and about on the last bit of summer vacation, right? Well vacation, I suppose, is what you can call it when you're working. Ignoring the fact that I made you work today. No, I've been, I have not actually taken any time off work, but it's a tough situation. I'm up here in Maine. It's very beautiful. We're on the water. I can sit on the porch. It's, there was a humpback whale. It's been lovely, but I feel simultaneously guilty for not enjoying the outdoors. And then when I go enjoy the outdoors during work hours, sometimes I feel very guilty for not working. So it's still a good trade off DC heat and humidity for the beauty of mid coast Maine. Here you go. This is your, this is your making a man. So now you can feel free to go goof off this afternoon outside, part coming on the podcast today.

1:00I'm incredibly jealous. You actually saw the whale. I have like been chasing whale sightings most of my adult life and have never succeeded in saving them except for I went on one whale cruise once where I saw like 20 GD whales. And since then I've been trying to chase that high and I haven't seen literally a one anywhere on either coast. So that's kind of amazing humpback. Wow. That's a real main experience. And then I'm assuming you reach into the the surf at your feet, put that a lobster, just took a big bite. Yeah, yeah, yeah, shelling all. There you go. Exactly. Our colleague speaking of whales, our colleague Anna Bauer posted on Blue Sky a couple days ago that she went on a whale watching tour from sheep's head, Bay Brooklyn, which is where my father spent part of his childhood. And she posted videos of a humpback whale. What? I know it made me feel like it's not very special anymore. I spent all summer excited about this whale and then it was like, all right, might as well as well. But the high rise is in the background. It was very impressive. That is infuriating. I spent hundreds of dollars on whale cruise. I'm not exactly like hundreds of dollars on the whale cruise.

2:01It's inciting efforts and failed miserably for, you know, two decades at least at this point. I went on one whale watch cruise once when I was a kid and when I remember most vividly was getting like seasick for the first time. So. Hello everyone and welcome back to Rational Security. The podcast we invite you to join members of the Law Fair team is we try to make sense of the week's big national security news stories, whether they are in our lanes or not. Thrilled to be joined by some of my very talented law fair colleagues this week tried to make sense of some very wonky, very legally complicated stories in the news this week on the domestic front. Joining me this week once again is Law Fair senior editor Eric Columbus. Eric, thank you for coming back on the podcast. Thanks for having me Scott. And of course, another Law Fair senior editor Molly Roberts also joining us Molly. Thank you for coming back on the podcast. Thank you from beautiful Maine coastal Maine, where you know, you're suppressing. I'm assuming the main or accent that you probably have at this point having spent enough

3:03weeks there. It's like a contagious sort of accent. I feel like both impossible to imitate when you want to and yet when you're around mayors. I feel like you can't help it. That's my experience at least. Well, they say you're either from here from away, but you can never be from here no matter if you spend a lot of the summer here. So I wouldn't dare to pretend. There you go. All right. Good policy. Good policy. And joining us as well as Law Fair contributor editor Renee de Resta for the first time in a while Renee great to have you back on the podcast. Thanks for joining us. Great to be on. Thanks for having me here. And you could choose any regional accent you prefer. Go wild. Always New York. Always New York. It's always a little bit of New York. I will take it. I like it. I like it. Well, we have some big stories to dig and do this week. So let us get into a topic one for this week. Signed sealed undelivered as the first mail-in ballot of the 2026 midterms go out this week. A fast moving legal fight over President Trump's effort to reshape mail-in voting is racing toward the Supreme Court. At issue is a new US Postal Service rule stemming from a Trump executive order that requires states to submit absentee voters information to a federal portal before the US Postal Service

4:05will deliver their mail-in ballots. A federal ruling mass chooses block key part through last week, which the administration is currently appealing, and a separate challenge is pending in Washington, DC. Meanwhile, an anonymous whistleblower in the Postal Service has now come forward and warned that the hastily built portal it intends to use to vet these mail-in ballots is so untested and unforgiving that a single scanning error could stop tens of thousands of ballots from reaching voters. How do we get here and what is it likely to mean for November's election? Topic 2. Metacolpa Last week, Meta abruptly settled a landmark child safety case midway through trial, agreeing to pay a bipartisan coalition of state attorneys general as much as $17 billion into overhaul how teenagers experience Instagram and Facebook. The proposed consent judgment, which has been approved by federal judge in California, would require a default two-hour daily timeline for users under 18, a midnight to 6 a.m. night mode, hidden like count stronger age checks and a school hours notification cut back, most of it locked in for a decade. It's being built as the largest big tech settlement ever, but some advocates are warning

5:07that it's terms don't touch the recommendation algorithms that were arguably at the heart of the problem behind the lawsuit. Is this a turning point for social media regulation or just a manageable cost of doing business? Topic 3. Strictly Ballroom On Monday, a divided Supreme Court cleared the way for President Trump to keep building his enormous new White House Ballroom, staying a lower court injunction that had halted construction on the site of the now demolished East Wing. But the five-four ruling in National Park Service V National Trust for Historic Preservation didn't actually decide whether the project is lawful. Instead, the majority simply held that the challengers led by an architectural historian who regularly walks her dog past the White House, lacked standing to sue, deemed her objection to the Ballroom mere offense rather than a concrete aesthetic injury. In an unusual twist, Chief Justice Roberts wrote, the principal dissent, joined by the court three Democratic appointees, arguing that the court has left standing doctrine even murkier than it found it. So what did the court actually decide and what might it mean for other legal challenges to Trump's refashioning of our nation's capital and beyond? So for our first topic, Molly, I know you have been following this story very closely,

6:11this battle over a male and male, you've written about it for lawful, I've talked about it. I think on this podcast previously, a couple of weeks ago, maybe with a topic arose, bring us up to date. We've seen a couple of major developments. We had a ruling from the Supreme Court last week or the week before I can't remember exactly now. That kind of was maybe less of a big deal than it was initially perceived to be. They did weigh with one challenge on procedural grounds. That was quickly kind of mooted out. We now have this final rule. We also have this whistleblower account tied all together for us all the different pieces of this story and where they seem to be headed. That is not so easy to do, Scott. Okay. That's why I'm making you do it, Molly. So what is going on now that matters? All right. So I guess the best thing to do is start with what the Supreme Court did and what the reaction to it was. So there is Judge Judge and Dera Tawani in Massachusetts who had issued two separate injunctions prohibiting the postal service from implementing the part of this rule that applies to the postal service, which you were just describing how that works.

7:14The Supreme Court stayed one of those injunctions. That led to a bunch of headlines saying Supreme Court clears the way for the President Trump to bar mail-in voting in the elections, which is an exaggeration of what the ruling does, even if there hadn't been another injunction in place, which there was. So even at that point, there was still an injunction in place. There was briefly, for about a day, not an injunction in place when the government asked the Judge to vacate or other injunction because the Supreme Court had vacated the first one. The Supreme Court did this all on ripeness grounds. It sort of conflated ripeness and standing, but effectively it said, we're not talking about the legality of the order. We're just talking about the fact that there's no final rule yet. The postal service hasn't issued a final rule yet. That was super weird because the Supreme Court did this on a Monday and actually it turned out that on 9 p.m. on Friday, the postal service had indeed issued a final rule, but when the briefing had happened and presumably when these opinions were written, the rule hadn't

8:19been written yet. But because in the interim it had, the plaintiffs in multiple cases all went back to the courts to in Deer, Tawani and Massachusetts and also to Judge Chronicles in D.C. and sued again asking for new injunctions with this final rule existing. So presumably avoiding this ripeness argument and having to actually address the merits. At the moment there's a temporary restraining order that Judge Tawani has issued, but there will be a hearing tomorrow in Boston about an injunction in that case. And the government has appealed the TRO, which is weird because tears aren't generally impealable, but presumably, shall issue an injunction. And then that will be appealed and it very well might end up with the Supreme Court again. In relatively short order, no less. Well, it would have to, right? Exactly. And talk to us about this whistleblower case that we've heard seeing come forward this week.

9:19And these allegations that we have someone who worked for the Postal Service, we don't know who, it's been channeled through Congress, which is a kind of common venue for these whistleblower claims alleging that the system they've set up is right with flaws and is going to cause lots of problems beyond what it's intended to affect us. Talk to us a little about that and they impact that's happening. Yeah. It's interesting that you say beyond what it's intended affect us because if you ask the whistleblower, if you read the whistleblower's disclosure, the whistleblower says, well, I think it's intended effect is to disenfranchise more people than the courts to do. But yes, it's officially intended effect, exactly, exactly. So essentially part of this rule is to have the states submit to the Postal Service lists of voters they plan to transmit absentee ballots to. And the Postal Service's whole argument is, well, that leaves states in charge. We're not going to say who's eligible in the states. The states get to say that. But the Postal Service will ultimately only transmit ballots to people who appear on those

10:23lists that states give to them if states don't give them lists. They won't transmit ballots to anyone in order to make sure that they're actually transmitting ballots only to the people on those lists. The Postal Service has to do some form of verification. So that's what this whistleblower complaint is about. The Postal Service has developed a portal. And into that portal, the states are supposed to upload their lists. And then ultimately when they send in all these ballots, the Postal Service is going to verify, okay, does the information on what's on these lists and the portal match the ballots. So the whistleblower has said kind of two main things. One of them is that the portal was developed half hazardly. These are all quotes. Sloppy Lee, he says that it's a, that multiple people in the Postal Service have called it a quote unquote, shit show. And that this issue combined with a 0% tolerated failure rate. So if they say, all right, we got a batch of ballots. We don't know how big the batch is going to be yet. It could be 100. It could be a thousand. It could be 10,000.

11:24If one of the ballots doesn't match up perfectly with the information in this portal, we're going to reject the whole batch. We're going to send that back to the states. It's just one. So these batches of great numbers of voters could end up getting sent back if there's just one problem. And that's bad enough if you have a functional portal because even if something has been developed carefully, first of all, if there's a correct discrepancy flagged, you're still putting a lot of other voters ballots at risk because of it. But secondly, it's more likely that it's going to be incorrect because this is developed poorly according to the whistleblower complaint. So that's the first big bucket in the complaint. The second is that this portal development had been paused after Judge Tawani's court order. They said, we got a court order. We got to stop. And then they started right back up again. And so the whistleblower says, and Senator Blumenthal, who the complaint was routed through,

12:25says, this is very clearly a violation of the court order. They shouldn't have continued to develop this portal in the interim. I think that it's not as clear cut as all that. In fact, with the recent TRO, Judge Tawani made it clear that they can continue working on the infrastructure that they would need, which sort of makes sense because that also weakens the argument of the government that they're suffering a reputable harm as long as there's a TRO in place. They're saying, oh, we can't develop this. And she basically said, well, you can. But they're arguing that it's a violation of her order. Already they had issued this final rule when the order was in place, which seemed a little iffy. So that's kind of where we are. That's what's alleged. I think the 0% failure rate is the big news item from it. So Eric, I want to come to you on this sort of narrative we've heard so far. Because I'm kind of curious about your perspective, somebody who's spent a lot of time thinking about courts, executive branch, judiciary, interacting. What are the dynamics we're seeing here about how eager the administration seems to be

13:28to push for these efforts? We've seen them push the limits of these prior TROs issued by Judge Tawani in issuing the order and pushing for this expedited action and developing the system. We also see the courts, the Supreme Court having taken this one initial ruling. I mean, is there an avenue here where is there a strong incentive here to get final resolution of these issues in the near future? Are we going to get this in a week or two? Is it seems that people are content to let the legal fight happening? Keep happening. I guess it's the way the Supreme Court keeps the legal fight happening. And then in the interim, it seems like so long as Judge Tawani's order stands, mail and ballots are going to start getting distributed, at least in normal fashion. Or do we have a sense about where this is likely to lead about where the actors are responding? And what does this whistleblower claim do? I mean, what does Congress seem likely to do? What will they be doing to use this claim or to amplify this claim in a way that might impact these proceedings or is that not the case? Well, to take your last question first, I doubt Congress will do anything because it is controlled by Republicans who are very low to do anything that will anger the president,

14:33as you will know. In terms of how quickly this will be resolved, I assume it will be resolved fairly quickly because I don't think it's in anyone's interest to drag on or for it to be perceived as dragging on. I should say that maybe in the administration's interest, but I think the litigators will push it forward. They were very quick to appeal to the first circuit. And I don't think the first circuit will take too much time in issuing an opinion. And then we'll get up to the Supreme Court. And I think this will be struck down once it gets there, or rather I should say the executive order, the relevant portions of the executive order. I think that Congress's role, or rather I should say, the president's role in election administration is virtually zero. That's fairly clear from the Constitution. And I think it's a huge stretch to, obviously, the Congress created the U.S. Postal Service.

15:36I'm just sorry, I should say the Constitution created the U.S. Postal Service, but Congress has stood it up and has allowed it to make rules for itself, et cetera, et cetera. But I don't think that it could, that those rules would allow it, consistent with the Constitution and the elections clause to promulgate rules to basically butt in to the administration of the election. I think it might be a closer decision than I would hope for. Given that, as there was a recent Supreme Court case, I think it was decided, I think in June, regarding the state of Mississippi and whether Mississippi could, like several other states, maybe a dozen other states do, I think, accept ballots that were postmarked on election day, but that were received days later. And that was a question, I'm triptation of a statute. And it seemed like an easy case to me. It was closer than I expected. It was a five-four decision and with Roberts and Barrett joining the Liberals and the

16:40dissenters led by Justice Alito. At the very end of his opinion, he writes, you know, mail-in ballot has quite large potential for fraud. And we see in this and allowing states to accept ballots that are arrive afterwards after election day, it just raises the possibility of fraud, makes it more likely. And with that in the mind of these four justices, they may kind of import that weariness about mail-in voting and find some way to write a sense. So I would predict a five-four decision. Interesting. So I'm kind of curious about where the line is. Because you're right that they aren't likely to be, you know, I think if this were the present trying to start this, it's a substantive rule imposing it as a hard burden on states that that would raise a lot bigger questions. But here in the fact they're leaning on the president's role or the executive branch is rolling controlling the postal service, which is just one avenue by which you could

17:44do quote-unquote mail-in ballots in theory, although in practice, obviously it's a dominant one. Like in theory, you could have states, FedEx or UPS, you know, ballots to people or you could do what happens in at least Washington, DC, I'm sure other places as well where you can pick up and drop off mail-in ballots. Like I can do a quote-unquote mail-in ballot, absentee ballot without ever touching the mail-postal service. So none of these rules would affect that. To me, that's the point that gives me anxiety because that gives the space for the court to say, well, look, this isn't directly regulating the election. It's just regulating this one avenue that is more in the executive branch as control. But it sounds like you're less persuaded that they're going to be able to use that too. I'm just kind of curious if you're, if I'm wrong, that that's kind of the avenue where the court might be more, find it easiest to rule in the administration's favor or if there's other avenues that you think make that hard. Yeah, I doubt that that would work. I would also note one thing that when you said about, you mentioned drop boxes like we have here in DC, you could just go to the big drop box and put your ballot in and therefore

18:45not have to deal with the postal service in mailing in. What this rule governs is the postal service mailing out the ballots. So you wouldn't, if this, if you're among the people who for whatever reason the postal service doesn't like or believes this is an ill and innozable under its rule, you'll never get your mail-in ballot to drop in that drop box unless the DC is going house to house giving people their ballots, which I doubt DC would do and I doubt is feasible on a larger scale. Yeah, that's a fair point, absolutely. I mean, there are ways you see in other people states and jurisdictions do mail-in ballot distributions, including like at some point some states were going with like electronic distribution because I know, I think I got that in a couple of elections a couple years ago. Others you can do pick up, but agree to be logistically much more difficult and burdensome. And particularly this late in the game where state electoral systems have built around the assumption they'll be able to use the postal service, even if maybe they could adapt

19:48to other tools, it gets really harder this late in the game. That's why in part you have usually the Purcell rule that you don't have rulings on the stuff so close to elections, which is something we should, I want to come back to. Sorry, Molly, do you have something? Oh, I was just going to say exactly that, but I think that if the Supreme Court doesn't want to reach the merits here, they don't necessarily have to. I think that they can say that it would be changing the electoral status quo for them to get rid of the injunction that at the stage of the lower court judge is going to issue. And then if they say that and they say Purcell principle, then at least for these midterms, they don't have to address the statutory arguments. But I also think the or the constitutional arguments, but I agree with Eric that the government doesn't really have a leg to stand on here. So I don't think they have to, they don't want to. I think that it's possible though that yeah, that they'll kind of dodge the bigger questions and then we'll be having this battle again as it relates to future elections. So Renee, I want to come to you on that aspect of this and pull in, you know, your close

20:52monitoring of the kind of conversation that happens around these issues and the wave see it particularly online, but in other other contexts too. Because this is like a weird issue that the president has gotten particularly focused on the administrations, particularly focused on has been for a long time in ways that some some people question is necessarily even clearly at least within President Trump's interest, probably Republicans, maybe more in that in 2024, he carried low propensity voters. He actually benefit from a lot of different low propensity voters who could be disproportionately affected by greater barriers to being able to access the vote. That may not, I think most people think probably doesn't translate to the midterms and Republicans, but we don't 100% know and maybe it could have President Trump were actively out there, but it still feeds into this sort of broader narrative about how the 2026 election is being set up. So let's say it's been court either doesn't rules against the administration or never lets this rule get implemented whether passively or actively, right? Says, Perseul will not interfere with this injunction. Let's just let it stand.

21:53What does that do to the conversation around the election? I mean, what should we expect? Can we expect President Trump? People will support it around him. How will they likely respond to that, either with rhetoric or potentially with action as well? It's an interesting question. I think it's somewhat unpredictable at the moment. I don't think people really understand what's going on. I pay a lot of attention to community notes and this question of what is even happening here is nobody really is aware of what is going on. I'm getting these constant note requests for things related to this topic and then I have to go and Google and try to figure out where things are in any given moment in time. So I think it's very confusing. I think the other piece of it though is that for a long time it was a, it was almost an identity marker that mail in balloting was fraud. It was how the election was stolen. It was part of the rigging, et cetera, et cetera on the, on the, on the, on the right here. And the party has tried to shift that as, as you know, it is easier, you know, it seems like it would be beneficial for them to do it. So it's, it's this question of how do you shift that messaging that's been prevalent for

22:57so long if you spent so long telling people that all of this is insecure. How do you now say actually know like you should be doing it also? So I think that that aspect of it is going to be a challenge around how they frame this going into 2026 and then 2028. For Republican voters, specifically, mobilizing voters specifically. For Republican voters specifically. For Republican voters specifically. Right. Oh, well, you told us this was all fraudulent. You told us this was all rigging. You told us that this was like, you know, now what we were supposed to do. And then, and then now you're saying that we should be doing it also. So. So I want to come back to you on a similar question. Like strategically, you've spent a lot of time thinking and looking at how the administration has been building a bunch of myths about the 20, 20 election, the results there, all of which could be justifying moving into, you know, potentially how you approach 2026, 2028 elections, concerns about validity of voting machines. This is just one sort of plank in that ship that we've seen people building that may or may not hold water almost certainly.

23:57It's not in my assessment, at least in most regards, but nonetheless is still being put together. What are the different avenues about where this fits in there? Whatever the given outcome is. Does it drive further action? Is it a deterrent if this doesn't work to, to, for people coming in? I mean, where does it fit in that kind of bigger narrative building effort that you've been documenting? Yeah. I mean, I think there are a few things. I think one of the things is definitely the disinformation, misinformation angle. They've shown confusion. That kind of could have a few effects. One of the effects is if the election doesn't go the administration's way, the Republicans way, they can say something like there wasn't supposed to be mail-in voting. There was the mail-in voting was supposed to have all these rules around it and these rules clearly weren't followed. There was fraud. And so, you know, just as a creating more distrust in the integrity of the election angle that seems somewhat effective, I think also people are already asking now, what does this mean about how I can or should vote?

24:59And if this creates a situation where people think, well, either I shouldn't vote by mail because my vote might not get counted. And I want it to count or whether they think I shouldn't vote by mail because voting by mail is somehow illegal. Or my state might not be complying with these rules. Basically, people don't vote by mail and then they don't make it to the polls because it's logistically more difficult than fewer people vote. So I think that also is a way that this could cause damage. So I think that that matters. And then I think also there is the issue that states are having at the moment where it's really unclear whether they ought to begin to comply with this because if they don't and then it isn't enjoined at the time of the election, then they're in trouble. So you have this situation where states might want to start submitting their lists to the postal service, even if that could end up being ruled unlawful. And I think it just generally creates chaos as they're trying to revise how they administrative

26:00their elections with this uncertainty hanging over them. Eric, I want to come to you with one last aspect of this poor he move on, which is what would the remedies be if this rule does go in and it gets over applied? Right? This whistleblower hypothetical, but no reason to think it's not credible at this point. Theory where, okay, states say, yeah, we're going to give you this list with the understanding that you're going to check it and you will deliver the expectation is you are going to deliver the mail in ballots to the people who are registered to vote. And those are, you know, admittedly, that's who primarily they want to make sure they get those ballots to those. And the whistleblower is saying, no, there's a risk that tens of thousands of people who are which to vote still aren't going to get the mail in ballots because of this errors in the portal system. Are there remedies there that a state could pursue that individual voters could pursue? And what would those remedies look like? I mean, are we talking strictly exposed remedies that would be maybe affect future elections, couldn't do anything about this election? Would it be, you know, something that you might see judicial action on fast enough to make

27:03a difference before the midterm elections? Do we have a sense about what it looks like if this rule does get implemented, but doesn't operate as advertised by the administration, which many people in the whistleblower suspect is kind of its intent to do more than advertised? It would be a mess. And theory someone could sue, a state could sue, individuals could sue the post office and say, hey, you know, XYZ people were supposed to get ballots and did not. And you might be able to be remedied before the election. It was sufficient time. Obviously, the post office would drag its feet on that in litigation. I could also imagine that there'd be a specific challenge to that, and I don't know, Molly might know whether it's already part of litigation, but there could be a specific challenge to that batch processing rule aspect that the whistleblower has noted. I suspect that that would, since the facts have not been developed, you would need to do

28:04a whole new litigation for that, which would obviously take more time. Well, there is going to be more development. In this case, I'm sure we're going to have opportunities to circle back and talk about it more, but let us move on to our second topic. As we're already talking about suing people, today one less person is being sued, one less corporate entity in America. A lot of suspects are still being sued. Plenty of other places, but in this one litigation, at least. And that is better. Formerly Facebook, operator Facebook owner, Facebook and Instagram, among other services they provide. We've talked previously on this podcast about this major lawsuit, which I think it's fair to say is kind of like the tip of the spear, what people think are a number of other kind of similar lawsuits, as well as a potential universe of other potential lawsuits you might cut see coming at social media companies and different kind of big tech companies. And Meta, despite going choosing to go to trial, just a couple of weeks ago, has now settled on terms that, among other things, affect the way these platforms are going to operate. So Renee, I know you've been following this case, talked to us about the terms of the

29:06summit, what drove Meta here, and how it's being perceived by others in the industry about, I guess, advocates of communities, well, about what the ultimate implications are of this settlement for the broader problem set that it's addressing a slice of. Yeah, so this is a very large kind of multi-state deal. There were, I think 14 AGs that had, from 14 different states that had sued Meta settled about eight days after the trial began. The state AGs kind of described the deal as being about a $17 billion settlement, but it's a little bit of a complicated settlement in that Meta is committed to roughly 12 and a half, about 12.7 billion of that amount. And 5 billion is contingent upon Snapchat, TikTok, and YouTube adopting comparable youth protections, or in some cases making payments. So there's these protections that Meta has agreed to is, for example, like a two-hour daily cap, where under 18s, we'll get, we'll default to sort of combine two hours a day across

30:09Instagram and Facebook. Parents can override this, but they're trying to limit teen usage. Parents also get interruptions or nudges, kind of prompts after using the platforms for a long time. There are night and school restrictions, so they're, I think, blocked from midnight to 6am, while push notifications are muted between 8am and 3pm, which is roughly school hours. I think direct messaging is exempt from these time limit, night mode, and school restriction modes, though. So what you're seeing is the company kind of still denying that it did anything wrong, but also making these changes under the settlement that shift the ways in which teen users engage with its products. Now there are certain aspects of it that make some of the civil society advocates who had really supported this lawsuit a little bit frustrated. So while they see it as a win overall, you also see a lot of commentary about how this doesn't really touch the recommender systems, which is the thing that is received a lot

31:10of the focus around whether they are addictive or not. Whether teenagers are sent down rabbit holes or become addicted through this recommender system, pushing very personalized, high engagement, sort of high dopamine type content, that is not really part of the settlement. There are things like ways in which people will, ways in which teenagers theoretically feel incited or encouraged to use the platform. So for example, likes and reaction counts are going to be hidden by default at this point and you're going to see for teens and you're going to see like some of the extreme makeup filters, I think, are being affected under the settlement as well. There should be more aggressive systems for detecting under 13 users or teens mass creating as an adult and then there's going to be an independent auditor who monitors compliance. So the algorithms do remain this major carve out, but that is roughly speaking where the terms of the settlement are and the duration for this is I think a little bit more than a decade. There's initially a five year commitment on some of the provisions, but others last 10

32:11years. And I guess we'll see now as this kind of comes into effect, what happens. We can talk about what the other companies have said. I was actually very surprised by that. I was sort of like, you know, the company that's like, yes, we were an arsonist. Also all of these people over here need to be following our lead and, you know, getting on board and also promoting fire extinguishers. So it's a little bit of a strange, in my opinion, I don't know, you all are the lawyers though, not me, in which the companies are being encouraged to adhere to the terms that meta agreed to. So that does sort of give an interesting amount of power to meta. With those other, would there be, is there like a waiver of claims associated with those other social media companies joining this terms is kind of interesting. I mean, I guess because they're state AGs, they could be waving a whole universe of claims that actually these other companies might be worried about, unlike it was like an individual plaintiff where the facts are much more complicated. But do you have a, do you know whether that's like part of the arrangement? Otherwise, the incentive does seem a little skew.

33:15I think that, you know, TikTok is a TikTok snap in YouTube or the three that we're talking about here. I think TikTok is already facing some state cases and has settled some of the, sort of these addiction cases. You know, AG Bonta from California says that they're interested in talking, you know, snap. I think is also in communication with some states and has settled some states, new lawsuits are continuing to appear. I mean, they're getting sued quite a lot these days. So I don't know. I really, this is the first time I've ever seen anything like this. So I don't want to kind of miss state how impactful it actually is. I think YouTube maybe is the least likely only because Google has significant litigation resources, but also it argues that YouTube is fundamentally a streaming and video service, not a social media network in the way that Instagram and TikTok are. So I guess we'll see what happens with these. It's a really fascinating settlement and a decision to go and, you know, the big parallels I think you think of that when you're a law student, you study are the tobacco settlements

34:15of like the 1990s, right? I think that's like the one that the case that hangs in everybody's brains, although there are earlier cases about the spestest and the sort of other sort of cases that have been, or kind of the precedence for the tobacco cases. And in that case, look, it had a kind of defining quasi regulatory effect on the tobacco industry. The tobacco industry had to voluntarily take a real pivot towards how it packaged, managed, advertised tobacco products as a result of that. It wasn't the end of the conversation, but it was kind of notable. Eric, I kind of want to come to you on a part of this. Where do you think this fits in on the universe of the effectiveness of regulation this particular moment? We've seen Congress really struggle with how to approach social media regulation. What's it ever? We've seen, you know, proposals, there's interests. There's definitely an appetite for it. There's an interest in it on the hill from people on the left and on the right from different

35:16perspectives. But we haven't seen much unity around clear approaches that have the sort of comprehensive treatment. That's why you see in state step in with a variety of sometimes very controversial efforts, a bunch of other efforts. How do you expect Congress and the regulatory efforts to interact with these sorts of settlement efforts? Do we have a sense of it from past practice about how this can either motivate additional regulatory activity, deter it, or provide kind of a foundation for Congress to maybe build on that doesn't require as much consensus building because to some extent they've regulated any of our degrees to this. Well, I think in part it turns on how these companies are viewed by the public. And I think that's still in flux. Like on the one hand, big tech does not enjoy a struggling reputation. On the other hand, these products are extremely popular. And if they weren't extremely popular, there wouldn't be the need for such litigation.

36:19And we all use, or most of us use at least some of these products in our daily lives. And the role with that applicability to kids is an addiction issue is a lot, I think, probably a lot less heart wrenching than the harms caused by tobacco. It kind of in the main. And one interesting thing about litigation, as opposed to congressional action, is that the companies, if agreed to some things that might not necessarily pass first amendment review if Congress itself was imposing it as a requirement. And I suppose the companies could have fought this. Obviously, they could have gone to trial. But for their own cost-benefit analysis, they felt that it was best not to challenge,

37:25to voluntarily do some things that might not be constant with the first amendment. And that dynamic plays out very differently if Congress is acting. And then, of course, you've got the big financial power of these companies that makes members of Congress a lot more hesitant to regulate them. And state AGs, for whatever reason, seem to be less concerned about that. And of course, you don't need in Congress, you need a majority to get something done. Here, you need only one AG in theory to file suit. And here, we had 14, which is obviously far from majority of the state AGs. So that didn't matter in theory for the court's analysis. And it didn't matter in practice either, apparently. Yeah, I had a question related to something that you said, Eric, which is, I remember when there was a lot of conversation, I don't know, five years back, about rewriting

38:27Section 230 because of all these speech harms on the platforms. And the argument then was, you can't do that. That's a first amendment problem. And now it seems like what's happening is this shift to instead addressing the design of the platform, but as a mechanism to avoid, maybe not exactly the speech harms we were talking about then, but some of it is having to do with content that could be harmful to kids' mental health. Some of it is screen time, but some of it is content. So I guess my question is, do those speech concerns still exist or is using this, well, we're talking about how the platforms are designed. We're talking about screen time, even when screen time can sort of be a proxy for exposure at all, these types of speech. Does that get around it? And maybe you get around it with settlements where it's voluntary, but if a court were imposing

39:29some change in how platforms structured their apps or websites or whatever, would that be okay from a speech point of view? Like, are we over this era as long as we're not doing it directly? Are we good? I'm not no expert in it. I think those are still open questions. I defer to Renee if she has knows more about relevant cases that have been decided, but I think that's still very much up in the air. Well, I mean, the thing is, I guess my concern with that on the other side is that no regulation is possible if any aspect of a product touches speech. That just seems very strange to me. There are aspects of the ways in which these platforms engage with young users that are alarming. I think that is something where it is a product design question. I think that implying that because there is speech somewhere in the pipeline or go, this must mean that these pursuit on product grounds or product liability or harmfulness grounds

40:29is something we just can't touch because there might be speech somewhere in the pipeline. That just feels very dissatisfying to me that just as this entire class of company exists beyond the reach of regulation or government, I find that ridiculous. Yeah. No, I mean, I kind of do and always have to. I guess part of my question is, is there, and I'm not sure that the settlement does it, but is there this clear and clean distinction between the settlement involves reducing exposure to age appropriate content? That sounds sort of speechy to me. But if you just said, don't let the decision- Does that in those two auto scroll disable likes? That seems more acceptable. I think in this particular case, there's not anything related to content. I think it is related to these use and time and obscuring certain aspects of engagement, engagement-based activity, so hiding the likes. I don't know that there is anything. I don't recall reading anything in this settlement that was specific to content. I believe that this was entirely about product design.

41:31Maybe one of you has a more nuanced understanding of that. But my understanding is that in this particular settlement, this is very focused, not on the content, not on what they're seeing, but on mechanics and product design. I want to actually prod that and ask your perspective on why that might be, particularly when it comes to that question about algorithmic method they have of driving content, which has been an underlying concern of a lot of this. I mean, that was not necessarily the sole part of this lawsuit. My recollection is that, although I may be getting this confused in their case, I thought one of the big concerns about this is that the whole structure of the platform drives constant screen time in interaction. It stimulates and constant engagement. That's a big part of the concern. That could be, maybe not content neutral, but it could be benign content that you have interaction with. That's how I feel about real estate listings. I'm in my 40s. I'm a house hunting. I'm constantly screaming through real estate hunts, right? You also are worried about, is it could be steered malicious, harmful content?

42:37We know this from the Gonzalez and Tom Duck cases a few years ago, right? What's about sponsored terrorism? There would be something about content that inspires self-harm, right? This horrible story is about the whale thing. I know it was a story that's gotten around about these media campaigns are kind of inspiring self-harm and that certain people's kids could be steered towards by algorithms. The companies don't seem to have settled on those and the attorneys general don't appear to have pushed them on that. That's really interesting to me. Is there a reason why either the attorney generals might feel like they have less leverage over those or the companies might be want to fight for those over these broader use restrictions? Either for technical reason, for legal reason, for business reason, it's just an interesting way this has shaken out and particularly because this settlement looks to be kind of industry standard setting. It's particularly notable because it seems to be saying the space we want to regulate is on user engagement, like platform UI, not substantive generation algorithmic sort

43:40of content, a feeding. That's actually a pretty big regulatory choice that these state AGs appear to maybe have bought into and I don't know whether that's a win for me or what. I think that it is being seen by the civil society advocates who wanted to see that regulated, they see that as the thing that is not being touched here, right? Because the recommender system is not part of the settlement. I did look this up really quickly. It says, muddamas keep teens in a default, 13 plus content setting, so that kind of bounded thing and maintain and improve safeguards against age and appropriate material. You might be able to make an argument around that. I think that's mostly though bullying and harassment, eating disorder content and suicide and self-harm content. I think those, you know, you could maybe make a speech argument around that or a slippery slope argument, but for the most part, for the most part, they are these, as far as I can tell, these settlements do not actually take on the thing that a lot of people, a lot

44:41of people in the parenting community, a lot of people in the civil society community wanted to see, which was, as you're noting, algorithmic recommendation of content. And that is something where parents can go and make that shift, but the company itself is not obligated to. When you say the parents can go make that shift, what do you mean exactly? Oh, so there's parents can tighten content settings on supervised teen accounts. Oh, I see what you mean. That's already a feature built into most of these, right? I think on the specific teen accounts, right? I believe so. I don't have, my kid doesn't have social media, thank God, because we don't let it, because we don't let it. Surprise, that should be indicative. Don't let it. Right? Look, I'm like, you know, there, I understand this from like a, from like a regular territory standpoint, and from like, this is what I do is my job standpoint. But like, let me just, let's be really, like, I'll be really candid. Like, I don't let my kid use this stuff. Absolutely not. I don't want to want it. You know, YouTube, you can't avoid. I was, I had this remarkable experience with him a couple nights ago where he discovered that he could watch YouTube through Google Maps, because you can go to, you can go to

45:42Google Maps, you can search for YouTube's address, and then you can watch YouTube because YouTube.com shows up as the address, sorry, as the, as the web address in Google Maps for YouTube, the company on its Google Maps listing. And then it completely evades the YouTube block on the iPad. Like, you just watch it. Browards. Yeah. Yeah. My kid is like, he's very into tech. He has, you know, builds a lot of stuff, has his own website, you know, constantly trying to find ways to evade school bands and blocks and stuff. He's really, if he spent as much time on a schoolwork as he did on evading bands and blocks. I love it. I know he's actually like a straight-a student too. I shouldn't, I shouldn't make him sound like he's not. No, he's very, very innovative when it comes to finding these things. And then he is a discord with his friends. And I mean, there are two, this question of like, what age did he register as for that discord? God only knows. I imagine it's 18 plus, right? You know, and so as a parent, you are just constantly trying to chase down, chase down these things and find ways to, you know, to keep your kids from using them. You can actually play YouTube and Google Docs, right?

46:42They sit there on their Chromebooks in class and they do this. They all share, they paste YouTube's links into Google Docs and they watch them through Google Docs, which evades the YouTube.com domain block that the school has, right? So these are the sorts of things where, yes, parents can control it technically. They can try at least. They can try. But I'm not, you know, I'm not entirely opposed to the idea that like maybe the companies could do just a little bit more. That's fascinating. Yeah. So before we move on from this topic, I want to touch on this one other issue about how this intersects with something else we've talked about in the podcast before. That's this idea of job owning, which is essentially, you know, government using, it's, I think I'm defining this fairly bit, Renee, correct me if I'm not. I think it's basically government using its leverage in a variety of contexts to pressure companies to adopt purportedly voluntary adjustments to how it approaches speech issues in various contexts. The idea that a lot of people believe and I think there's arguments in the urban court judgments, although the big debate about what actually is and isn't job owning, that

47:44caused lots of problems. But I bought into the idea that the government, executive branch in particular when it does some of these things can be violate the first amendment by compelling speech or compelling a silence of speech. How does that intersect with here? Because this is kind of weird because you have these tensions or potential tensions, at least the way some people interpret the first amendment with these terms. And yes, they're being voluntarily complied with, but they're being voluntarily complied with because of the course of power of the state, to some extent. This part because action taken by state attorneys' generals, but nonetheless, you know, government actors. So there does seem like there's a little bit of tension here. You know, Jeff Kossip has written about this a little bit of law fair in the last few days criticizing on first amendment grounds some of the terms of the settlement. How do you react to that? I mean, talk to us about a little bit about Jeff's argument and where you take it. How you see this fitting in. Yeah, so I think he makes the argument that you can construe this as job owning because the government made an implied threat or made a that meta was facing 1.4 trillion in liabilities.

48:50Ergo, it didn't just choose to settle. It was compelled in some way to settle, compelled to make these changes to its platform. And because of government pressure, that's the argument that he makes. Everybody should read the piece. It's a very interesting piece. I feel like it carries some very strange downstream kind of consequences, which is, you know, we allege that your product violates the law causes the harms. We're going to prove it in court. That's what these AGs said, right? This wasn't some back room, smokey room. If you don't do this or else kind of situation, they actually sued the meta was in court, right? Which is, in my opinion, this is very transparent, contestable government pressure. This is the government saying we are regulating you. We are going to bring this to trial because we believe that these harms have happened. And that's what you start to see there. The question is, is this like a back door regulation, right? That's the, that's the, I think, the thing that people are discussing. And I think that's an interesting question. But I think applying the label jaw boning to it goes a little bit too far for me.

49:51I feel like it's a kind of an absurd expansion of that term. It really turns it into a maximalist term where any, any, got any litigation for any kind of harm that might carry a large price tag because of the perceived severity of the harm is then reframed as untoward pressure as opposed to something that can be contested in a court and decided by a jury or a meta was not. There was no gun held to meta's had to settle this. They have plenty of, you know, phenomenal lawyers. They have taken course, they have, they have like followed cases through before. So the idea that because of the price tag, they were somehow unduly pressured. No, I mean, you can still be found to not have done these things to not be liable by a jury. And that I think is the, this is how, is what courts are for in my opinion as a, as a layperson, not a law professor. So I always hesitate to disagree with folks who clearly have a lot more domain expertise than I do on this front. I just, I just can't quite get my head around how that, how that works. Like in what, how, again, how can you regulate, how, not regulate, how can you sue for liability

50:56purposes if there, if, if any lawsuit that might come with a settlement is then inherently coercive? Yeah, it's a really good question. And just very smart guy, I think of the pieces very, I find it fun, provocative. I would say we're, we're, we're my mind left me on this is that it's very hard to make this argument that job boning when people are suing for actual damages that they've received. That would be basically immunizing any sort of speech from real potential harms. That's never been a part of the first amendment. Calculus, I can say, you know, fire an empty theater, actually, I can't, but that's a bad example. But I can say something harmful and no one can stop me from saying it, but I can be sued when it goes and harms people. That's part of the consequence here. And then I can choose to settle that. I think you might have a case in certain cases where you might have, where you could have a statute that gives punitive damages. Then you have a case where you say, oh, your Congress and the government is actually stacking the odds away from not just the actual harm suffered, but doing in a way that has this regulatory effect, then maybe this argument has a little more grab to me.

51:56And that's not a totally foreign concept here. Again, Tom and Gonzalez, we know we're lawsuits under the any terrorism act. The any terrorism act has a treble damages provision. So it's actually a massive punitive damage is built into the statute. So I do wonder if something like that could raise a bigger sort of constitutional concern in my mind. But if you're really tying it to actual damages, it does seem like you would be visionating the usual civil liability system. We rely on to address harms with with too broad a vision of us. But I don't know. Eric Molley, any thoughts about this before you move on? I mean, drawboning, this may be definitional, but I don't think drawboning necessarily means something that is illegal. I think it is, it means this kind of, you know, perhaps creative ways for the government to get things to get private actors to do things that the government might not be able to impose directly. And I don't think anyone would would have well, some would.

52:57But let's say in the the Facebook, you know, drawboning cases and all that, I'm in the Biden administration. If there had been no, you know, private cajoling by the Biden administration, if Joe Biden had just made speeches saying, you know, Facebook, what your guys are doing is terrible. You need to, you know, put away all this speech, all this anti-vaccine websites and disinformation, you know, otherwise, you know, parents will start avoiding your products. And let's say that he was able to get them to back down on grounds like that. And let's say they had the indirect effect of making Congress kind of more interested in regulating Facebook. And then that eventually the downstream effect was Facebook backing down and declining to do things that it could have done consistent with the first amendment. I mean, that to me is is is drawboning what is not illegal anyway. And I think, well, while not having read Jeff's piece, I think the same could probably be said about the AG's actions in this litigation.

54:00Yeah, I'm not an expert on this, but I think I broadly agree with Renee that this is an example. Not of them taking some channel, like back channel to try and do what they want, but just taking a normal channel, they're litigating it in court. And maybe if there had been some, you know, clearly pretextual filing to try to get a kind of unrelated result, then I would feel weirder about it. But it feels like the result is pretty in line with what they were litigating over. So well, it is an interesting, interesting case that obviously could and it's designed to have ripple effects throughout the industry for a long time to come. So we'll have to see what comes from there. But we have a third topic to talk about. So let us get to that another piece of litigation that has culminated kind of at least for the time being on the preliminary relief phase of the litigation as of this week. And that is a Supreme Court decision over the legal challenge to President Trump's ballroom for which he has already demolished the East Wing for which he has been constructing an underground area

55:02that was allowed by the lower courts to proceed on kind of security grounds. But a lower court in Jenkins, I prohibited the president from proceeding with the actual construction of the ballroom itself, which was not tied to military and national security purposes as directly. And now we've seen the Supreme Court strike down that injunction. But on kind of surprising technical grounds, not on the merits. In fact, we saw for justice's say, expressly, we think this was illegal. We think you should reach the merits, but the other five justices declined to do so. Molly talked about that. Talk to us about where this case had landed ultimately on one of my favorite topics, standing doctorate as long time list as a podcast. Well, no, which I'm excited to dig into and put probably most listeners to sleep on. But on this question of standing in what the consequences might be not just for the ballroom case, but for the other array of cases about Trump's actions in the nation's capital. Yeah, sure. So it may have been surprising to some that they didn't reach the merits and wasn't all that surprising. To me, I think if you even look at what the DC circuit did here, it was a two,

56:06one decision to keep this injunction in place. And Judge Naomi Rao, who wrote the dissent there, also relied primarily on standing. Although she spoke a little about what they talk about here. She had kind of a different analysis just speaking to aesthetic standing and sort of the idea of generalized grievances. And then she spent more of her time actually on the idea of associational standing in some kind of inventive argument about how that didn't work out here either, which the Supreme Court did not treat. But I thought that they would use one version of standing to wriggle out of having to address the merits because if their preferred outcome is to enable the president, this is a very cynical analysis. So I apologize. But if a judge's preferred outcome is to not cross the president on an issue that might not seem all that important and to kind of save their capital elsewhere, I think that you don't want to get to the merits because the merits here are just terrible,

57:07terrible for the government. I mean, there's just no argument that they have the express authority of Congress to do this. And there's no argument that they don't need the express authority of Congress to do it. I mean, there's an argument they're making it. But if you read, she just as roverks his dissent, he really kind of economically dismantles that argument in a way that's that's sort of amusing to read. It's pretty dry and I think has a good impact. But but yeah, so what they've done is they've said that this woman walking her dog, as President Trump referred to her, doesn't have standing to challenge the ballroom because this is mere offense or distaste at a government policy. And if you let anyone sue on that basis, everyone could just sue about everything. The issue isn't that the Supreme Court doesn't have doctrine on offense and distaste that's in line with that. They do.

58:08The issue is that the majority doesn't really spend much time explaining why this is just offense versus aesthetic standing as it has recognized is a basis for getting a hearing in a number of environmental cases. And you could draw distinctions that make it clear why this is different from those cases. They don't really do it. They just say her injuries not sufficiently concrete and particularized. And they also don't explain why it's not concrete and particularized. So I would say that that's the problem there. I think that it's not so clear cut that you couldn't say, well, this isn't concrete and particularized and here's why it's the here's why that's missing. So that has led to a lot of people asking, well, does this mean that aesthetic standing generally is dead? Does this mean that aesthetic standing is dead? But for the environmental cases, which is where most of the Supreme Court doctrine is here? Or does this not mean anything at all?

59:09Does this just mean that when they don't want to decide something, they'll say, hey, it's mere offense. And when they want to decide something on the merits, they'll say, it's just that extending. And I don't have a great answer to that. But I do think that it means that for Trump's other construction projects, when there's not some technical reason that someone has standing like in the Kennedy Center case, she Joyce Bady, representative Joyce Bady, who's suing there, is an ex officio trustee, or I think that's the term for it. There might be a technicality in some of these cases that gives people standing. But when it's something similar, where it's someone who essentially uses the area as is now, the historical site or wherever as is now, and is suing on the basis that their use of it is going to be changed, that it's going to have a detrimental effect on their either viewing pleasure or golfing pleasure or whatever, I think they're going to run into issues for sure.

1:00:09Yeah, it's tricky to see where the line is. And I think maybe for folks who haven't been like deep in the weeds either on standing on this, it's worth clarifying what we mean by aesthetic standing and what the court means by it. You know, here the plaintiffs basically were barring a theory from standing, which requires them to show that the plaintiff has an injury in fact, which is conceived as saying they're injured in a way that is constantly cognizable, whether that is can be economic harm, which is like the easily recognizable physical harm, or in this case, aesthetic interest, this idea that you are hurt in a way that you're interest in observing and living your life in a certain way that you appreciate has been hindered by it. That's been the basis for a lot of standing in environmental cases, where people will say, well, I have an aesthetic interest in preserving, in this case, the example they was talking about is a given crocodile, or species of crocodile, I suppose would be that gives me standing to challenge purportedly illegal actions that would threaten the habitat of that crocodile. And they were bringing a similar argument here, saying, well, this person who's a professor of architecture

1:01:11and lives in the air of the White House walks by it and about once a month, they said in her kind of statement, says similarly, I have an appreciation of the White House of the historical building, and this is threatening that because this East Wing overbears that. And they said draw a line between those that just teach us Roberts in opinion that I agree. I thought actually that was quite well done and quite persuasive. I saw other legal people kind of criticizing it, but given that Roberts actually mostly agrees with critiques, aesthetic standing, but nonetheless found it is English here. I thought he actually did a good job explaining why he thinks here the rest of the court was going too far. Says, no, actually, well, in this case, this woman's offense was an actually a trend during this that I can trust. It was just offense. And offense is a different category. And what that means for aesthetic interest, I have absolutely no idea how do you distinguish between the what is offense and what is the harm doing aesthetic interest. They strike me as pretty much the same thing, synonyms of each other. And that's kind of the problem here, I think for a lot of folks. Eric, well, let me turn to you as the other lawyer on the call.

1:02:13Like how surprising did you find this from terms of like thinking about standing issues generally about, how the court usually approaches these sorts of debates. Like I wasn't totally surprised, although I'm kind of dismayed by the outcome. I'd be kind of curious about your reactions to it. So I think we've seen sometimes in the Trump years that being a lawyer can be a detriment to predicting to strike you with all these laws. Well, the side of the case. Sometimes when I predict what happens, I think I have as good a track record going on vibes, then on anything else and on reading briefs. I remember thinking during the Obama care cases back in, Obama's in 2012, I think, just like thinking that the court would not strike it down, because I just couldn't, I just couldn't imagine them striking it down and striking the whole thing down. And I didn't have a better theory for that. And I turned out, Justice Roberts, to Justice didn't really have a better theory either,

1:03:15in his opinion of holding Obama care as a tax. Here, just based on vibes, I assume, and I think I said in a podcast a couple of weeks ago, that was 80% chance that they would strike it down. And that's what happened. And then I said that on social media, 80%, and a very interesting anonymous lawyer who goes by the handle legal nerd responded by saying it was a 99.9% chance. Now, who knows what the actual chance was, but the thing happened. I mean, Chief Justice Roberts said, come over the other side. So that's not a zero-present chance, I suppose. So, yeah, I suppose. And actually, to stay with legal nerd, he had an interesting tweet a couple of days ago, which was a mock dialogue between the Chief Justice and Justice Barrett, who would provide the fifth vote to the majority.

1:04:16And the two of them usually vote in tandem. I think this might be only the third time on these shout-out cases that they've diverged. And in his tweet, he has Robert saying, Amy, come on, look at who we're dealing with. Dude, hates the Constitution. Wants Congress in this court to drop dead and doesn't give a shit about the rule of law. And then in response, Justice Barrett says, you're correct. But I pissed them off before and paid a heavy price. God protect my family. Who knows? Who knows? You know, this is just representative, I think of what people on the left for a long time. And now on the right, frankly, you have a lot of conservative critiques of Stena, Dr. and I've been saying, which is that it's just this doctrine that has become so fungible and so qualitative and so subjective that you can draw the lines left and right on all these different cases. And can you imagine a distinction between offense and aesthetic harm? I guess you could. Why this line draws here? I don't know. But is it that different than in environmental cases where you've seen, you know, Justice Scalia famously say, well, I didn't see enough evidence that this person who claims

1:05:21are going to visit this wetland, I can't remember what the actual thing was. I think it was wetlands is enough. Like, I want to see plane tickets. I want to see receipts. I want to see evidence that they're actually going to go and enjoy this as opposed to just asserting it. I'm not sure this isn't just another species of that. In some ways, I think this is just a move we've seen the court and lower courts do for a while around this and other areas of standing as why it's such a problem in my mind that, you know, if you are of the view that justice should not be letting their personal values and personal perspectives shape who has access to the legal system or not, standing doctrine should be kind of enemy number one. In a certain case, at least in these certain cases, because that's exactly what's happening. But, you know, no court seems really inclined to really pull that back. You've seen little efforts occasionally to say, well, maybe we'll give people more flexibility in adjusting their complaint and some justice take a looser conception, others take a stricter conception. But I'm sure, you know, an outcome we're going to get from this is we're going to see a lot of lower court judges, probably conservative judges, cite this opinion as a basis for looking

1:06:25with even more scrutiny in environmental cases and other cases that based on aesthetic interest. So, you know, chief Roberts line that says, well, now you can have aesthetic interest for wanting to look at a crocodile, but you can't for the White House, I'm not sure that's going to hold. Because I suspect you're going to get a lot more pushback about the crocodile too from the lower courts where justice are inherently already kind of skeptical of this, a whole concept of aesthetic interest. But the consequences for who can actually bring these claims, I think, can be pretty substantial. So now, of course, this one plaintiff, I should say that the, you know, natural historic trust channeling the interests of this one plaintiff, ours is one individual, now does not have standing in the ice spring court. There's not much anybody can do about this, including Congress, at least not readily. But that doesn't mean other people couldn't still have standing. And that could be a variety of people in my mind. Potentially there are other private actors that might have a better case of standing. You could think of property owners around Lafayette Square, who might have a argument to saying, well, we've reason to believe the aesthetic arm, quote unquote, aesthetic

1:07:27arm will have actual pecuniary harm for us, or just have a much more direct and substantial interest and different, more compelling narrative for how these things affect them that may be harder to dismiss as simple offense. They're out there, whether they're willing to sue or not is a bigger question. And then you have Congress, Congress, which may be in control, at least one chamber, maybe both chambers of Democrats in five short months from now. Eric, talk to us a little bit about other avenues that we might see people try and revive, at least the contours of this lawsuit, if not this specific suit itself. Sure. I can talk about Congress. And this very issue about the extent to which Congress can sue for the White House doing things that is blatantly legal came up during President Trump's first term when he was building a wall along the southern border. And there were lawsuits brought by, I believe the state of California and also a lawsuit brought

1:08:29by the House representatives. And the House argued that this was this spending on the wall was in violation of the appropriations clause because Congress had not appropriated money and instead the administration had just kind of shuffled things around illegally. And the House lost in the district court on standing grounds but prevailed in the DC Circuit. And there are basically two issues here. One is whether Congress has standing at all to sue for an appropriations clause violation, which is one of those things you think would have been decided already after nearly 240 years of having a constitution, but it has not. And the second question is if Congress does have such authority, must both houses sue or together or can only, is it okay if only one house sue?

1:09:29And at the time the House was in democratic hands but the Senate was controlled by Republicans. And the DC Circuit said that one Congress does have the power and two, it's okay for only one house to exercise it. And the analogy was that it requires two keys to open up the Treasury to spend money and that Congress, the keys being the House's key and the Senate's key and that the administration in the words of the court, snatch the House's key out of its hand. And it was a bit of a surprise that the decision was, the opinion was written by Judge Centel, who's a fairly conservative senior judge in the DC Circuit. The two judges who joined him were appointed by democratic presidents. But the case never reached the Supreme Court because soon afterwards the President Biden took over and announced that he wasn't going to continue building the wall.

1:10:30So the case was moot and the Supreme Court vacated the DC Circuit's opinion and in full disclosure. By that point I was working for the House of Representatives, Office of General Counsel and I was on the brief urging the Supreme Court not to vacate the DC Circuit's decision. But that vacator was not on the merits of the space on the fact that there was no way for the other side, the government to challenge the DC Circuit's opinion because it was the Trump administration who was gone. So if the Democrats take back one House, they could try this and they might have at least some success and even if they eventually lose in the Supreme Court, they would serve the purpose of keeping the issue in the news, getting some more headlines and taking what Democrat leadership would believe is a righteous position on the separation of powers. Yeah, it's a fascinating case, it's a Manuchin V.C. versus House of Representatives.

1:11:32I think it's the caption for the DC Circuit opinion. The one thing I recall from that case, which I'll flag, which I think might cause some headaches in this case if it were to be followed like per the letter, although there's always a thing it would be as it was kind of mooted out, is that Judge Centell drew a pretty hard distinction between appropriation clause violations, which was a way of adjudicating there and then statutory violations. And basically said a single chamber might have standing to do a stat appropriations clause violation because of the two key structure of the appropriations clause, but I think he was even pretty expressly dubious about being able to simply sue because of the non-compliance with the statute, because of the idea that that would be a kind of a generalized injury along with lots of other people affected by a statute. That said, and I should say that that's logic bought borrowed I think from the Burwell District Court opinion that had thought about these issues in earlier context a few years earlier. That said, there is this case that there has to be some sort of avenue for some sort of remedy for unlawful behavior for these sorts of statutes.

1:12:33I think this is though, I mean, it all depends on how you frame it, but I think you can very easily frame this as an appropriations clause violation because the argument and Molly can correct me if I were wrong, but I think the argument is where is the source of the president's authority to do this? And the White House points the various statutes that they say gives in this authority. I don't think that the plaintiff is saying is pointing to statutes that says you cannot do this. It's just it's the more the absence of affirmative authority, which then makes it very similar to the wall cases and it makes it an appropriations issue. Where there is no place where you're not violating something that Congress did, you're just cannot point to a place where Congress authorized or appropriated money for this. That may be right. I mean, Chief Justice Roberts had been in open with a bunch of statutory barriers that he thought, in his case for why it was unlawful, was focused on the statutory restrictions and then the lack of affirmative authorization.

1:13:34And the fact you couldn't refer affirmative authorization from an appropriations is my recollection. But you may be right, like maybe you could craft you could craft this as an appropriations restrictive, an effective appropriations restriction because of the lack of that money and because most appropriations are implicit and sometimes explicitly said, like this is supposed to be spent on authorized activities, not, you know, unauthorized activities. I don't just don't know whether that would draw the line the way Judge Centell did in that case or not, even though I frankly think it should personally. Yeah, I don't want to go too far into the weeds on it, but I think you, I think Eric is right. You could. So there's a statute that says you need express authority to do this and then they look for the express authority. And one of the statutes that they cite is an appropriations authorization to do like care and maintenance on the White House. And they do this weird thing where they say, we're just going to use that as an authorization. And then of course, the plaintiffs were arguing, well, actually, it's just authorizing Congress to appropriate and they have an appropriated here.

1:14:35It's not authorizing you to do whatever you want with the money that you have. And then they go to this other statute, which is National Park Service Organic Act that gives the park service the ability to do things that like conserve the land, which Chief Justice Robert said, you know, raising the East Wing and replacing it with a ballroom doesn't seem likely to be an example of that. But they use that so that they can take money through the National Park Service's gift authority. So ultimately, it does have to do with something that Congress hasn't given you any money to do and finding creative ways to say that you have the money to do it. Totally. Yes, totally fair. There are a few other ways I think you might, you're going to see the government try and distinguish the case. And I'm not sure they're all entirely not compelling these. These are not at least because, because we've seen an appropriation like battle over getting appropriate funds like we saw with the border wall with an express rejection here. But that's all just because they're different cases, right? Fundamental principle that Congress should be able to indicate at least some of these constitutional authorities. I think it's there and it's compelling, even though it's kind of a surprise DC Circuit get there. The real question is, what are the outer limits of that?

1:15:36How do you get away from this idea? This is a generalized injury versus a specific injury. But when you're left with no other remedy, it is up to Congress to step in if you want to see these laws enforced. If there's really no one else who can have standing, or at least such a small interest people with standing that even though it clearly is affecting a lot of Americans, there has to be some additional remedy. The question is, I guess like whether Congress can actually sue itself or whether it needs to craft some alternative remedy like a more specific cause of action to enforce these sorts of things. And if it's a latter, then like obviously that's a much heavier left. But we'll have to wait and see. All around I'm supportive of the idea that Congress is standing at us even though I have concerns about how far the court will take that argument. Well folks, we are close to a time to today. This will not be rational security if we do not leave you with some object lessons who ponder over in the week to come. Eric, what do you have for us this week? If you're like me and you have a sweet tooth that sometimes can be hard to contain, especially in the evening, you're looking for something that will give you a little bit.

1:16:39Boost of sweetness without packing in far too many calories or sugar and I promise I'm not getting paid for this even though you're sounding like a flak. But we will take sponsors. So please reach out to us whatever company Eric is about to endorse. Outshine fruit bars. Oh my kids like this. They are delicious. They have these mini bars that are fairly thin. And if you have some discipline can kind of fill your mouth for a little while. I the best ones in my view are pineapple and lime. I like pineapple. Pineapple, the pineapple in products often is very, is, is, is, treakly sweet and this one is not. You can really taste it. They also have strawberry, canjurine, raspberry, grape, black cherry. And maybe they'll send me a free box by obviously not expecting one. I love it. I love. We take it out, China. I'm not sure if it's frozen. No, no, we're going to figure that out. But we'll figure it out in the way.

1:17:40They're really good. There was recently a recall of some of the flavors because they had glass in them. I'm very happy to date on my out, on my outshine. The grapes have been recalled just terrible because I recommend grape. But you can still get lemon. Lemon is fine. But it's a little frustrating not to be able to get grape at the moment. I learned that 30 seconds ago actually as I was looking right before, right before this. It suffices to say that if it has not been recalled and it's still on the shelves, it is probably glass free. Look carefully, but we're still fans about China or our national security. Molly, would you bring for us this week? Oh, yeah. I don't think I can get an endorsement from like big tomato. But I just, I brought a, I brought a summer tomato. I just think that I'm really not a fan of slices of like large tomatoes on my sandwich during the off months down in DC. But I think that there is nothing better in the summer than an heirloom tomato with just a little bit of salt, maybe a little bit of olive oil.

1:18:40It can make it tomato sandwich. Anyway, I think it's just like food at its purist and most delicious and I recommend it now especially because it's this sort of thing is going to taste gross and not that long. So get it. Well, the getting is good. I agree. Tomato season, my favorite season. I have two different types of tomato growing in my garden. Quite as nice as that tomato you're holding up, but this is the time to do it. And I think I'll throw out there. I think there's an object lesson a couple years ago. The cream of tartar trick. If you have tonn tomatoes that aren't quite as good as you want to do, a little cream of tartar with a little like sugar assault pepper on them, like changes the acidity. It's amazing. So even like, man, tomatoes get a lot better. So drag out that tomato season as long as you can. For my object lesson, I will go to a related culinary topic with people who listen to rashity regularly probably been following my saga of being in a pizza chef. I love to make pizza. I make a lot of pizza and I'm constantly experimenting and trying new methods. I mentioned, I think last at the end of last summer, bought a very fancy outdoor 1200 degree pizza oven that I've been making the Apollot and style pizza.

1:19:41Which has been great. I love the oven. It's fun. It's easy. But I never got quite like the rise and texture one of my crust. I found it very frustrating because the Apollot and crust is foreign gradients, salt, water, flour, yeast. And I was like, I've tried a couple of different ratio. I couldn't really get it. Nothing quite got like the full rise. The chewiness I really wanted. And then I found this other recipe that was the exact same ratio as the recipe I had been using. But it gave me a specific method trick that was so amazing. It's outcome. I thought it warranted an object lesson, which is this. Do not do what lots of recipes say and just take your dry ingredients, your wet ingredients, and then combine one and the other and then mix it together. It doesn't work. What I did at its instruction is put all the wet ingredients together and then put in the salt in the yeast just a little bit to get it all wet. You're going to have to soak in and saturate and then sift your flour in super slowly into the water and stir it slowly to make like first a flour slurry and then you add a little bit more, a little bit more. It is crazy the difference it makes. I sound like a crazy person. This is a very odd object lesson, but I swear to God it makes such a huge difference.

1:20:45It's amazing. I had the best dough of my life this past weekend just by making this one little change because it all ends up much more hydrated, much more evenly mixed. I just kind of shifted all in, did a little bit of kneading, put in a bowl, covered it, left it overnight, and I had like perfect pizza dough the next day. Strongly recommend this particular method for any other Neapolitan pizza heads out there. It is really, really worth it. You do need that like 900 plus degree, 9185 900s where you want the temperature on the oven. You need that hot oven. So at home, do the New York pizza or some other recipe if you don't have one of those, but if you got it, you're going to need a palatin style. This method is a hundred percent the way to go. I was super impressed by it. And with that a little bit of pizza enthusiasm, Renee, bring us on them. What do you bring us for your object lesson this week? Does not have to be pizza or culinary related, but I also have heirloom tomatoes in my garden. But I got a kind this year that's green and red and really don't do that because it's impossible to tell them they're ripe. Actually, you just kind of like feel them. Otherwise, you can't tell them. Like, what's still green on top? I don't know. Anyway, no, I guess I'll just like pop up as a little guy.

1:21:46My daughter gave me a Nito, which I sort of made fun of her for collecting these because of like wire kids of Suspice squishies. But I've just been sitting here like playing in the last hour and I will say that there is something to be said for. I feel like really stress balls have come a very long way since we were mixing flour and water and throwing it into balloons when I was a kid. And yeah, so no, this Nito company actually they should sponsor us too is a good product. You could get a Ben's stress ball made. It will be perfect. It will be a little bit a little doctor. But we'll see for open to it guys, we're open to any sort of sponsorship, certainly reach out. But until then that brings us to the end of this week's episode. Rational security is of course a production of law fair. So be sure to visit us at law for media.org for our show page for links to best episodes for our written work and the written work of other law fair contributors and for information law fairs, other phenomenal podcast series. While you're at it, be sure to follow law fair on social media wherever you socialize your media, be sure to leave a rating or review wherever you might be listening and sign up to become a material supporter of law fair on Patreon for an ad free version of this

1:22:49podcast among other special benefits. For more information, visit law for media.org slash support our audio engineer and producer this week was known as the end of goat rodeo and our music as a voice was performed by Sophia Yan and we were once again edited by the wonderful Jen Pacha. On behalf of my guest Molly Eric and Renee, I am Scott our Anderson and we will talk to you next week. Till then, goodbye.