WEBVTT
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The Bogosity Podcast,
early and ad-free!
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Become a subscriber at Patreon,
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Use the links at donate.bogosity.tv.
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Welcome to the Bogosity Podcast for the week of December 14
2025, the podcast that can't roller skate in a buffalo herd.
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This is your host, Shane Killian. This will be the
last regular podcast for 2025! Can you believe it?
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So we'll see you in January
for our year in review.
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Until then, let's crenelate
the News of the Bogus.
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The story so far: The New York
Times wants your private chats.
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Specifically, anything you might
have told ChatGPT anytime ever.
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They even tried to make OpenAI preserve your deleted chats
and turn those over, but they lost that one at least.
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But of the remaining chats, they want to
make OpenAI turn over 20 million of them.
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Supposedly they've been "de-identified," but
regular listeners know how little that helps.
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And keep in mind: this is the news
media, not just The New York Times,
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but The Guardian, The Atlantic, Raw
Story, and over a dozen others!
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Imagine those muckraking yellow journalists getting
all of the personal information you've put in,
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even private thoughts you put in for therapeutic reasons
or even just for fun, so they can troll through it.
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The main culprit here is
magistrate Judge Ona T. Wang,
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who refused to see sense and kowtowed to
basically everything the news media wanted.
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Except the deleted ones; that was a road too far
even for her, but that's a pretty extreme limit!
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So now, they're taking it up to
presiding Judge Sidney H. Stein.
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In their 31-page memo, they lay out, as
clearly as anyone could possibly want,
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that this is a sideshow that should never
have been allowed in the first place.
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Plaintiffs have had more
than satisfactory discovery,
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but impermissibly want more,
inexplicably claiming that their analysis
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just wouldn't have a sufficient sample
size unless it's at least 20 million.
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That should make any statistician
listening bark out loud with laughter.
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But, of course, we know what it really is:
not a statistical analysis, but cherry-picking,
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so they can pick out a handful of outputs
that just so happen to make their case
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that they can then pretend is typical.
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There's just no other reason
for wanting that much!
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Especially when you figure that
even the Plaintiffs' experts have said
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that only 0.001 to 0.006% of
ChatGPT conversations are relevant!
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As for Judge Wang, she refused
to allow a stay so that Judge Stein
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can properly review the briefs he
requested and issue his final decision.
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Yes, she wants to force them to go ahead
and start handing over your private chats!
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So they issued another memo
to Judge Stein, saying, quote:
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"All parties agree that the 20
million conversations at issue
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include a massive amount of inherently
private, sensitive, confidential, proprietary,
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and even privileged information
belonging to ChatGPT users
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who have no role or stake in this
case and no opportunity to object
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to the disclosure of this
information in these proceedings.
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But as a result of those Orders,
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OpenAI will soon be forced to hand over this
information to Plaintiffs and their experts,
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which would amount to one of the largest
transfers of private personal information
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ever ordered by a United
States District Court.
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The scale of this disclosure is irreconcilable with
Rule 26's critical proportionality requirement.
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This Court should intervene
immediately to stop it."
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As for the claim that the chats
will be "de-identified," quote:
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"That was factually wrong.
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As OpenAI has explained in two
(unrebutted) sworn witness declarations,
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the de-identification process is not
designed to remove information
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that is private but non-identifying—
i.e., the exact kind of information
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that the Court below held
was immune from disclosure
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when denying OpenAI's motion to compel
the Times to produce its own chatlogs."
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Oh, yeah, if you missed that:
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they caught The New York Times using ChatGPT
for accounting and journalism purposes!
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But Judge Wang mysteriously said that this information
was too private and just couldn't be turned over.
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Quote: "Put simply, just removing
names, contact information,
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and numeric identifiers from a record in which
a user also discusses details of their finances,
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immigration status, trading
strategies, or investigative journalism
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does not mean that the record is no longer
private, sensitive, confidential, or privileged.
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None of the Court's Orders explain why the
disclosure of this type of private information
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should be immune from discovery
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when it was generated by the Times in
its own chatlogs using OpenAI's models,
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but not when it was generated by innocent non-parties
with no role, stake, or voice in these proceedings."
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And OpenAI has a much better method for
doing so, which Judge Wang ignored, quote:
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"Over a month ago, OpenAI
advanced a detailed proposal
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under which the parties would use techniques that
they have used for months in other areas of this case
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to accomplish each and every one of
Plaintiffs' user-data related discovery goals.
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The parties can conduct whatever analyses they
need through non-content metadata like classifiers,
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which would not require the unnecessary disclosure of
the private information in those conversation logs.
00:06:05.080 --> 00:06:10.440
That proposal balances the needs of the case
with the privacy interests of OpenAI's users.
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None of the Orders even
acknowledge that proposal,
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and News Plaintiffs have never
contended that the proposal
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is unworkable or insufficient to
meet the needs of this case.
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By ignoring that more reasonable alternative and instead
ordering the production of all 20 million records
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notwithstanding their undisputed lack
of specific, particularized relevance
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to the claims and defenses in this action,
the Court below committed clear error.
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This Court should intervene to safeguard
the privacy of OpenAI's users."
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Good to know somebody is out
there defending our privacy!
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It's not the news media.
00:06:48.200 --> 00:06:50.733
It'll never be the news media...
00:06:54.600 --> 00:06:58.600
Presenting: the greatest
game this side of Yuggoth!
00:06:58.600 --> 00:07:04.440
You are H.P. Lovecraft's
cat, and your name is Ni***
00:07:04.440 --> 00:07:11.080
...Right. We can't say that on a podcast. Anyway,
that's the point: Your name is a joke to him.
00:07:11.080 --> 00:07:13.960
So now, you are out for revenge!
00:07:13.960 --> 00:07:17.560
Using the Necronomicon, you come
to the present day to buy a gun
00:07:17.560 --> 00:07:19.880
to go vanquish him once and for all.
00:07:19.880 --> 00:07:25.000
But the Necronomicon is devious, and it
summoned Lovecraft's monsters as well.
00:07:25.000 --> 00:07:30.200
Now, in a crumbling world, you
must fight for the revenge you seek.
00:07:30.200 --> 00:07:35.800
Fight monsters. Gain allies. Buy guns
and armor for yourself and your team.
00:07:35.800 --> 00:07:38.040
Defeat the bosses of each level.
00:07:38.040 --> 00:07:42.200
Then get your revenge
against Lovecraft himself.
00:07:42.200 --> 00:07:48.520
Play Lovecraft's Cat! The
link is at cat.bogosity.tv.
00:07:48.520 --> 00:07:53.160
Yeah, we're doing cat.bogosity.tv,
not...that other one.
00:07:53.160 --> 00:07:56.326
What, you want me to get kicked
off the Internet or something?
00:08:00.920 --> 00:08:05.720
I'm gonna go more local here, and I don't know
how much national attention this has been getting,
00:08:05.720 --> 00:08:08.040
but the main catalyst
got national news
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after conservatives started sharing
the story over social media.
00:08:11.800 --> 00:08:17.000
I'm talking about the murder of of 23-year-old
Ukrainian refugee Iryna Zarutska
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by Decarlos Brown Jr. after being released
without bond despite having 14 prior arrests.
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During the hearing, several people who knew
him, including his own sister and mother,
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had told the judge that Brown was
insane and needed to be committed,
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but magistrate Teresa Stokes, who never
passed the bar exam or even held a law license,
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released him on a written
promise to appear.
00:08:42.919 --> 00:08:48.153
Especially after the video of the hideous murder
was released and caught national attention,
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there was a big push for change.
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Governor Josh Stein has signed Iryna's Law, which
went into effect on the first and says, quote:
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"For first violent offense, the only option is
secured bond or house arrest (with a secured bond.)
00:09:03.240 --> 00:09:09.000
For subsequent violent offenses, when a defendant
has either a prior violent offense conviction
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or is on pre-trial release, the judge must impose
house arrest with electronic monitoring."
00:09:15.400 --> 00:09:21.240
The judge must also consider the defendant's
entire criminal history, not just convictions.
00:09:21.240 --> 00:09:24.920
But the story here is how the
sheriff of Charlotte reacted.
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You'd think sheriffs would be all about law and
order and keeping violent offenders off the street.
00:09:29.960 --> 00:09:34.440
It'd be refreshing at least if he stood up
for people who haven't yet had their trial,
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meaning legally they're innocent because
they haven't yet been proven guilty.
00:09:38.520 --> 00:09:46.920
But no, Mecklenburg County Sheriff Garry McFadden's
complaint was that Iryna's Law would overcrowd the jails.
00:09:46.920 --> 00:09:53.720
And he said this just days after yet another
train stabbing, the second since Iryna's.
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Well, maybe he's got a point—there
are a lot of violent people in Charlotte!
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As if I needed another
reason not to go there...
00:10:01.880 --> 00:10:06.280
It's weird. There's very little crime in
my county, comparatively speaking.
00:10:06.280 --> 00:10:09.000
Only when you hop the border, it seems.
00:10:09.000 --> 00:10:13.240
McFadden acted as if the whole
thing were a plot against him, quote:
00:10:13.240 --> 00:10:17.286
"And we believe that the only reason
that this caught national attention
00:10:17.286 --> 00:10:21.880
is because it was caught on video and it
was displayed across the United States,
00:10:21.880 --> 00:10:26.440
and our local politicians at that
time saw it was a political agenda,
00:10:26.440 --> 00:10:30.200
or they could highlight her as a
refugee and not an immigrant.
00:10:30.200 --> 00:10:33.000
This is why they created Iryna's Law.
00:10:33.000 --> 00:10:36.360
This law will cause our detention
centers' numbers to rise.
00:10:36.360 --> 00:10:41.560
We will have more people staying inside a
detention center at a longer stay than normally.
00:10:41.560 --> 00:10:44.200
Because it attacks the
new bond referendum
00:10:44.200 --> 00:10:49.560
and it attacks also the discretion that the
magistrates and the judge has on releasing people."
00:10:49.560 --> 00:10:54.200
And then, of course, he had to get
his digs in on Charlie Kirk. Quote:
00:10:54.200 --> 00:10:59.720
"And so, judges live in fear now, and I have
to say that, because for an entire day,
00:10:59.720 --> 00:11:04.280
we had to talk to the magistrates on
how to live safely, how to travel safely,
00:11:04.280 --> 00:11:08.600
and in the middle of all of that, they were
concerned after the shooting of Charlie Kirk,
00:11:08.600 --> 00:11:12.760
because they said to me, 'Well, what
if they shoot me because of this?'
00:11:12.760 --> 00:11:17.640
And so, they're going to be more cautious
and reluctant to allow people to be released."
00:11:17.640 --> 00:11:21.320
And, of course, he whined about
not having enough money.
00:11:21.320 --> 00:11:24.600
But the one question he didn't
seem to want to address is:
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Just why is Charlotte so freakin'
violent in the first place?
00:11:34.200 --> 00:11:36.680
If you're on the Wi-Fi in
a coffee shop or hotel,
00:11:36.680 --> 00:11:39.000
anyone on that network can
get access to your traffic.
00:11:39.000 --> 00:11:41.320
Do you really trust all
of those strangers?
00:11:41.320 --> 00:11:44.200
For that matter, do you
really trust your ISP?
00:11:44.200 --> 00:11:50.200
A VPN can protect you from prying eyes, disguise
your location, and even foil government censors.
00:11:50.200 --> 00:11:56.920
It's essential in this day and age, so go to
vpn.bogosity.tv and you'll be taken to BoxPN.
00:11:56.920 --> 00:11:58.840
Starting at just $2.99/month,
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you can get unlimited high-speed connections
to VPN servers all over the world,
00:12:03.400 --> 00:12:06.840
and they don't log connections
so your privacy is assured.
00:12:06.840 --> 00:12:12.040
Travelling abroad, just VPN home and don't worry
about what those other governments are doing.
00:12:12.040 --> 00:12:14.920
Back at home, stop your
ISP from traffic-shaping
00:12:14.920 --> 00:12:18.840
and messing with the quality internet
access you're paying good money for.
00:12:18.840 --> 00:12:22.680
You can connect from multiple machines at
once, including your smartphone or tablet,
00:12:22.680 --> 00:12:27.640
and it supports all the secure standards
including OpenVPN and SSTP.
00:12:27.640 --> 00:12:34.673
Bypass censors and surveillance with your own
secure VPN connection. Go to vpn.bogosity.tv.
00:12:40.360 --> 00:12:46.680
So one of the big separation of powers cases, Trump
v. Slaughter, was just heard by the Supreme Court.
00:12:46.680 --> 00:12:50.440
Aside from being an excellent
title for a pro wrestling matchup,
00:12:50.440 --> 00:12:53.080
it actually happened because
Trump had the audacity
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to think he's actually in charge of the
executive branch like the Constitution says
00:12:57.880 --> 00:13:01.480
and fired FTC Commissioner
Rebecca Kelly Slaughter.
00:13:01.480 --> 00:13:06.840
The question being, can the President
fire executive branch officers?
00:13:06.840 --> 00:13:13.880
And if your answer to that is, "Duh!!!" Then you
just might be smarter than a Supreme Court justice.
00:13:13.880 --> 00:13:19.720
Since 1935, the courts and presidents have
been following the case of Humphrey's Executor,
00:13:19.720 --> 00:13:25.400
which said that multi-member commissions
like the FTC were protected from at-will firing.
00:13:25.400 --> 00:13:30.280
Another precedent they mentioned
quite a bit was Seila Law, a 2020 case
00:13:30.280 --> 00:13:35.800
where the court ruled that such for-cause
protections violated separation of powers.
00:13:35.800 --> 00:13:41.560
But that was only for single-director agencies
like the Consumer Financial Protection Bureau.
00:13:41.560 --> 00:13:46.840
So in the interest of making this incredibly long
segment not any longer than it needs to be,
00:13:46.840 --> 00:13:50.680
let's go ahead and hear one of the big
concerns mentioned several times,
00:13:50.680 --> 00:13:54.480
this one from Kavanaugh, worried
about what this might mean for the Fed:
00:13:54.480 --> 00:13:58.533
KAVANAUGH: The other side says
that your position would undermine the
00:13:58.533 --> 00:14:03.306
independence of the Federal Reserve and they have
concerns about that, and I share those concerns.
00:14:03.306 --> 00:14:06.440
KILLIAN: We should get
rid of the Federal Reserve!
00:14:06.440 --> 00:14:09.560
This just goes to show you how
used people have gotten to this
00:14:09.560 --> 00:14:13.160
blatantly unconstitutional
massive government we have.
00:14:13.160 --> 00:14:18.280
When an unconstitutional central
bank, shot down twice before,
00:14:18.280 --> 00:14:24.040
is now considered untouchable, well,
we'll still have some work to do after this.
00:14:24.040 --> 00:14:29.546
Now let's hear Trump's attorney try and
explain this incredibly easy concept to Kagan:
00:14:29.546 --> 00:14:34.520
KAGAN: When you put all of these agencies
under complete presidential control,
00:14:34.520 --> 00:14:40.360
what you are left with is a President that
maybe, you know, your first sentence to me,
00:14:40.360 --> 00:14:45.880
this is the kind of President you want, but
a President with control over everything,
00:14:45.880 --> 00:14:50.432
including over much of the law-making
that happens in this country.
00:14:50.432 --> 00:14:55.960
GENERAL D. JOHN SAUER: You have control over the executive
branch, which he must and does have under our Constitution.
00:14:55.960 --> 00:15:00.386
And, again, if that's really
legislating, then there's a separate
00:15:00.386 --> 00:15:05.293
constitutional problem that the legislative powers
also have been taken away from Congress.
00:15:05.293 --> 00:15:06.773
KILLIAN: And now Jackson:
00:15:06.773 --> 00:15:10.830
JACKSON: And what I guess I don't understand
is why they don't answer to Congress,
00:15:10.831 --> 00:15:13.880
which establishes the law
that they are bound to follow
00:15:13.880 --> 00:15:18.533
and determines whether these
agencies exist, funds these agencies.
00:15:18.533 --> 00:15:25.320
KILLIAN: Because that's legislating. What
we're talking about are executive functions!
00:15:25.320 --> 00:15:28.120
Basic separation of powers!
00:15:28.120 --> 00:15:32.454
And our founders knew all to well the
horrendous consequences that would occur
00:15:32.454 --> 00:15:35.028
if those walls of separation
were torn down.
00:15:35.028 --> 00:15:39.600
JACKSON: All of those things, it would seem to
me, would be methods or mechanisms of control.
00:15:39.600 --> 00:15:44.468
SAUER: The Constitution requires
clear lines of political accountability.
00:15:44.468 --> 00:15:50.814
JACKSON: I guess I have a very different view of the
dangers and real-world consequences of your position.
00:15:50.814 --> 00:15:57.800
KILLIAN: Yeah, it's called "separation of
powers!" And the danger is of losing that.
00:15:57.800 --> 00:16:03.320
JACKSON: Independent agencies exist because
Congress has decided that some issues,
00:16:03.320 --> 00:16:11.400
some matters, some areas should be
handled in this way by nonpartisan experts,
00:16:11.400 --> 00:16:16.760
that Congress is saying that expertise
matters with respect to aspects of
00:16:16.760 --> 00:16:21.720
the economy and transportation and the
various independent agencies that we have.
00:16:21.720 --> 00:16:25.080
KILLIAN: But Congress is
supposed to be the experts here!
00:16:25.080 --> 00:16:28.280
And whatever expertise
they themselves lack, well,
00:16:28.280 --> 00:16:33.320
that's why they keep dragging all these real-world
experts in to testify at committee hearings.
00:16:33.320 --> 00:16:35.000
That's what they're for!
00:16:35.000 --> 00:16:39.019
What we should not do is
turn over dictatorial power
00:16:39.019 --> 00:16:44.280
to so-called "experts" that serve for
life and are accountable to no one.
00:16:44.280 --> 00:16:49.720
There are terms for that, such as "deep
state" and "shadow government."
00:16:49.720 --> 00:16:54.800
And here, you see it being defended by certain
members of the country's highest court.
00:16:54.800 --> 00:17:01.560
JACKSON: So having a President come in
and fire all the scientists and the doctors
00:17:01.560 --> 00:17:08.265
and the economists and the PhDs and replacing them
with loyalists and people who don't know anything
00:17:08.266 --> 00:17:11.746
is actually not in the best interest
of the citizens of the United States.
00:17:11.746 --> 00:17:16.040
KILLIAN: Wait, you really think
they weren't loyalists to begin with?
00:17:16.040 --> 00:17:19.320
Or do you just not see that when
they're on your side of the aisle?
00:17:19.320 --> 00:17:25.856
JACKSON: There's a pretty significant danger that
Congress has actually identified and cares about
00:17:25.857 --> 00:17:31.720
when it determines that these issues
should not be in presidential control.
00:17:31.720 --> 00:17:36.760
KILLIAN: It's the Constitution that
determines that, not Congress!
00:17:36.760 --> 00:17:43.043
Congress cannot change the Constitution or delegate
its authorities from one branch to another.
00:17:43.043 --> 00:17:50.560
Unconstitutional unaccountable bureaucracies are far
more dangerous than anything she's fearmongering about.
00:17:50.560 --> 00:17:54.025
SAUER: I think the Court said
it well in Free Enterprise Fund
00:17:54.025 --> 00:17:57.960
when it said that we can have a government
that functions without rule by functionaries.
00:17:57.960 --> 00:18:01.947
We can have a government that benefits
from expertise without being ruled by experts.
00:18:01.947 --> 00:18:05.240
JACKSON: No, we can have, but I'm
asking you about Congress's choice,
00:18:05.240 --> 00:18:11.640
Congress's decision that, in these particular
areas, we would like to have independence.
00:18:11.640 --> 00:18:13.585
We don't want the
President controlling.
00:18:13.585 --> 00:18:18.040
KILLIAN: But the President is supposed
to control the executive functions!
00:18:18.040 --> 00:18:23.033
The President and only the
President has executive powers!
00:18:23.033 --> 00:18:26.840
SAUER: The constitutional design
sets up three branches of government.
00:18:26.840 --> 00:18:30.433
It forbids Congress from controlling
what the executive branch does,
00:18:30.433 --> 00:18:34.263
and it also forbids Congress from shaving away the
President's control over the entire executive branch.
00:18:34.263 --> 00:18:38.880
JUSTICE JACKSON: And what I'm positing is that Congress's
decision here is not shaving away the President's control.
00:18:38.880 --> 00:18:40.520
KILLIAN: Yes, it is!
00:18:40.520 --> 00:18:43.667
JACKSON: What Congress is doing is
saying we'd like to have independence—
00:18:43.668 --> 00:18:48.360
nonpartisan experts working on certain
issues for the good of the American people.
00:18:48.360 --> 00:18:52.000
KILLIAN: How naïve do you
have to be to believe that?
00:18:52.000 --> 00:18:55.240
SAUER: No, that is largely Congress's
decision with certain exceptions.
00:18:55.240 --> 00:18:58.600
Congress cannot violate the separation
of powers and threaten all of our liberties
00:18:58.600 --> 00:19:01.000
in the way that it structures the
government and has done so here.
00:19:01.000 --> 00:19:07.000
JACKSON: What other agencies there are that have the
kind of removal protections that are at issue here?
00:19:07.000 --> 00:19:08.892
There are some, what, two dozen?
00:19:08.892 --> 00:19:11.759
SAUER: That's what Seila Law said.
That's probably a good accounting.
00:19:11.759 --> 00:19:13.919
And, obviously, we have challenged
four of them in this Court,
00:19:13.920 --> 00:19:16.145
and we're challenging a handful
of others in other courts as well.
00:19:16.145 --> 00:19:20.372
JUSTICE JACKSON: But you could—you could
challenge the National Labor Relations Board,
00:19:20.372 --> 00:19:26.492
the Nuclear Regulatory Commission, the Commission on
Civil Rights, potentially the Sentencing Commission,
00:19:26.492 --> 00:19:30.039
the Occupational Safety and Health Review
Commission, the PConsumer Product Safety Commission.
00:19:30.039 --> 00:19:32.025
All of these have that
kind of structure.
00:19:32.025 --> 00:19:39.640
KILLIAN: Yes! All of them! And they're all bad. Get rid
of them, or at the very least seriously restructure them!
00:19:39.640 --> 00:19:45.889
I mean, just getting rid of the NRC and letting
atomic energy be regulated by the Department of Energy
00:19:45.890 --> 00:19:52.920
would be a massive step forward in building out
the clean, safe, affordable nuclear power we need.
00:19:52.920 --> 00:19:55.448
All right, time to hear
from the other side:
00:19:55.448 --> 00:19:59.356
AMIT AGARWAL: The President's
constitutional duty to execute the law
00:19:59.357 --> 00:20:02.680
does not give him the power to
violate that law with impunity.
00:20:02.680 --> 00:20:05.240
KILLIAN: But who's
violating the law here?
00:20:05.240 --> 00:20:11.480
The Constitution, in setting up the separation
of powers that was so important to our framers,
00:20:11.480 --> 00:20:18.223
is the supreme law of the land, and it says
that only the President has executive powers!
00:20:18.223 --> 00:20:21.996
AGARWAL: Reasonable people can
and do disagree about first principles,
00:20:21.996 --> 00:20:28.004
but any abstract theory that would wipe away so
much history and precedent should be a non-starter.
00:20:28.004 --> 00:20:33.240
KILLIAN: Oh, really? Would you have
said that about slavery or Jim Crow?
00:20:33.240 --> 00:20:38.160
Sorry, but the Constitution trumps
history and precedent. Deal with it.
00:20:38.160 --> 00:20:42.840
AGARWAL: No tool of interpretation clearly
supports the President's assertion of an
00:20:42.840 --> 00:20:49.000
unrestricted and indefeasible authority to fire
the heads of traditional independent agencies
00:20:49.000 --> 00:20:52.926
like the Federal Elections Commission
and the Nuclear Regulatory Commission.
00:20:52.926 --> 00:20:57.480
KILLIAN: Well, other than, you
know, Article II Section 1 clause 1.
00:20:57.480 --> 00:21:02.606
It was nice, though, to hear the Chief
Justice try and summon up some cojones:
00:21:02.606 --> 00:21:06.680
ROBERTS: Are there some cabinet departments
that you say Congress could just take over?
00:21:06.680 --> 00:21:10.966
Department of Veterans Affairs, Department
of Education, they think, well, we can do—
00:21:10.966 --> 00:21:15.480
experts could do a better job of it and so
we're going to say there is now an agency,
00:21:15.480 --> 00:21:21.967
the agency for education, and it will be run
by—whether it's a multi-member group or not,
00:21:21.967 --> 00:21:27.288
we think it's important for Congress to
have greater control over education, so
00:21:27.289 --> 00:21:32.280
we're creating this new agency and its authorities will be
everything that the current Department of Education has,
00:21:32.280 --> 00:21:36.680
except it will be run by a commission and they
can only be removed for cause. Is that all right?
00:21:36.680 --> 00:21:42.200
AGARWAL: Yeah, I think that it is probably
within the realm of possibility for agencies, yes.
00:21:42.200 --> 00:21:46.835
And the constraint historically has been
that these types of determinations
00:21:46.835 --> 00:21:50.822
have been made through a process of political
accommodation between Congress and the President,
00:21:50.822 --> 00:21:53.225
and over the course of more than
200 years, we have not seen—
00:21:53.225 --> 00:21:56.522
ROBERTS: Yeah. Well, sometimes that
accommodation is greater than in other times.
00:21:56.522 --> 00:21:58.840
I mean, we have situations,
let's say, where the Congress,
00:21:58.840 --> 00:22:02.120
both Houses are controlled by one party
and the President is of the same party,
00:22:02.120 --> 00:22:06.360
and they may decide that the government would be
structured better by taking over these entities.
00:22:06.360 --> 00:22:12.616
And so, which departments could Congress impose
a multi-member commission instead of a secretary?
00:22:12.616 --> 00:22:16.800
KILLIAN: And he never answers the
question. So Gorsuch tries it for him:
00:22:16.800 --> 00:22:19.633
GORSUCH: So the answer to
the Chief Justice's question is,
00:22:19.633 --> 00:22:23.006
tomorrow we could have the Labor
Commission, the Education Commission,
00:22:23.006 --> 00:22:27.720
the Environmental Commission, rather
than Departments of Interior and so forth?
00:22:27.720 --> 00:22:30.680
KILLIAN: And he still didn't answer.
00:22:30.680 --> 00:22:35.433
At least Kagan has someone to be a
sounding board for her statist fearmongering:
00:22:35.433 --> 00:22:38.440
KAGAN: It strikes me, Mr. Agarwal,
as I listen to this, you know,
00:22:38.440 --> 00:22:42.440
if you go back to, let's say the Education
Department, what the Chief Justice raised,
00:22:42.440 --> 00:22:47.367
that the more realistic danger here is
that we'll have an Education Department
00:22:47.367 --> 00:22:52.120
as authorized by Congress, by law,
that won't have any employees in it.
00:22:52.120 --> 00:22:53.767
KILLIAN: Sounds all right to me!
00:22:53.767 --> 00:22:57.514
AGARWAL: The real-world danger that is
imminent right now that we know will happen:
00:22:57.514 --> 00:23:01.000
that if Petitioners get their way,
everything is on the chopping block.
00:23:01.000 --> 00:23:04.440
KILLIAN: Yes!!! Let's go!!!
00:23:04.440 --> 00:23:07.800
Now for some real questioning
from Kavanaugh and Gorsuch:
00:23:07.800 --> 00:23:12.600
KAVANAUGH: At least from my experience, it's
very hard to get into the weeds of the particular
00:23:12.600 --> 00:23:19.063
powers exercised by the FTC and distinguish
it from some of the powers exercised by
00:23:19.063 --> 00:23:25.720
some of the other cabinet agencies that we traditionally
think of as executive, or the FCC, or the SEC.
00:23:25.720 --> 00:23:29.880
All of those seem to—FERC,
NLRB—when you get into them all.
00:23:29.880 --> 00:23:31.880
So what's your answer to that?
00:23:31.880 --> 00:23:34.356
KILLIAN: Again, he
didn't really have one.
00:23:34.356 --> 00:23:39.189
GORSUCH: I understand conclusive
and preclusive entirely as we used it—
00:23:39.190 --> 00:23:41.759
when you're speaking
about executive power,
00:23:41.760 --> 00:23:45.480
can the President control what's
done in his departments? I get that.
00:23:45.480 --> 00:23:50.120
And a criminal prosecution's a good
example. I do not understand it as you use it.
00:23:50.120 --> 00:23:58.402
Why isn't it just as conclusive and preclusive to
decide whether to bring charges under the FTCA Act—
00:23:58.402 --> 00:24:01.002
- AGARWAL: Civil charges.
- GORSUCH: Civil versus criminal!
00:24:01.002 --> 00:24:06.242
It's a conclusive and preclusive
decision about enforcement decision
00:24:06.242 --> 00:24:09.680
of a power of the federal government
against individuals across the country.
00:24:09.680 --> 00:24:12.628
AGARWAL: For example, from this Court's
unanimous decision in Humphrey's Executor,
00:24:12.628 --> 00:24:16.082
where you had that kind of civil
enforcement taking place, and
00:24:16.082 --> 00:24:20.040
a unanimous court, including all four
justices from Myers, said that's okay.
00:24:20.040 --> 00:24:22.280
And the kind of civil enforcement
that was going on there,
00:24:22.280 --> 00:24:25.223
you had complaints being issued,
you had cease-and-desist orders—
00:24:25.223 --> 00:24:31.160
JUSTICE GORSUCH: Cease-and-desist orders, but
not lawsuits in court. They had to go to court.
00:24:31.160 --> 00:24:35.460
And I'm just curious, though— fine, I accept
your point, it's a good point about Humphrey's,
00:24:35.461 --> 00:24:41.373
but why isn't that conclusive and preclusive decision
whether to use the federal government's full power
00:24:41.374 --> 00:24:49.240
in prosecution where you can seek fines and incur all of the
penalties that are associated with violating the FTC Act?
00:24:49.240 --> 00:24:53.853
AGARWAL: We have had all kinds of civil
enforcement of federal statutes taking place,
00:24:53.853 --> 00:24:56.600
including just private statutes
that authorize private attorney
00:24:56.600 --> 00:25:00.000
generals, as this Court has—has
recognized in many, many cases.
00:25:00.000 --> 00:25:04.569
GORSUCH: That's not the executive power,
but criminal actions is the executive power?
00:25:04.571 --> 00:25:05.649
AGARWAL: Yeah, I would not say that it—
00:25:05.651 --> 00:25:07.437
GORSUCH: That—that's what
you're asking us to think about?
00:25:07.438 --> 00:25:10.280
AGARWAL: No, I would not put it that
way. I would not say it's not executive.
00:25:10.280 --> 00:25:11.863
GORSUCH: So it is executive?
00:25:11.863 --> 00:25:16.440
AGARWAL: Yeah, in Seila Law, this Court said it's
not only executive; it's quintessentially executive.
00:25:16.440 --> 00:25:21.400
GORSUCH: So even some quintessentially
executive functions, in your view,
00:25:21.400 --> 00:25:23.989
are not vested in the President
of the United States?
00:25:23.989 --> 00:25:27.589
AGARWAL: I would not say
that—I would not put it in this—
00:25:27.590 --> 00:25:30.282
I would not say that that—yes, I
would—I would say they're not—
00:25:30.282 --> 00:25:33.071
GORSUCH: I think you have to say yes to
that based on what you've just given us.
00:25:33.071 --> 00:25:36.136
AGARWAL: They're not constitutionally
committed to the person of the President
00:25:36.137 --> 00:25:38.855
and to his sole and
exclusive discretion.
00:25:38.855 --> 00:25:41.575
KILLIAN: Okay, at this point,
the less said the better.
00:25:41.575 --> 00:25:45.560
Listen for yourself if you want to
hear such wonders as Sotomayor
00:25:45.560 --> 00:25:49.960
screeching about them "destroying
the structure of government."
00:25:49.960 --> 00:25:53.080
We'll just have to wait until
they reach their decision.
00:25:53.080 --> 00:25:59.480
Normally, that'd be in June, but since they fast-tracked
the case, they may decide to release the decision early.
00:25:59.480 --> 00:26:05.750
We'll just have to see, and hope that some of what's
left of our constitutional protections remain intact.
00:26:12.360 --> 00:26:15.880
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Once again, that's
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00:27:20.440 --> 00:27:25.080
And now it's time to propitionate
this week's Biggest Bogon Emitter.
00:27:25.080 --> 00:27:29.720
And this week, it's not just for RFK
Jr., but for all of MAHA as well.
00:27:29.720 --> 00:27:35.960
If it moves, ban it; if it stops moving,
subsidize it. That seems to be their mantra.
00:27:35.960 --> 00:27:41.000
After all that bogus whining and
moaning about seed oils, RFK Jr.
00:27:41.000 --> 00:27:45.960
got into office and basically bullied
everyone he could not to use them.
00:27:45.960 --> 00:27:49.640
Now, Secretary of Agriculture
Brooke Rollins has announced
00:27:49.640 --> 00:27:55.560
a $12 billion bailout of America's
farmers, paid for by tariff revenues.
00:27:55.560 --> 00:27:59.480
You know, the farmers that were
harmed by the tariffs to begin with.
00:27:59.480 --> 00:28:03.960
But some of the farmers getting the
bailout will be growers of corn (of course),
00:28:03.960 --> 00:28:12.280
sunflower, canola, rapeseed, and safflower—in other
words, the ones most commonly used for seed oils.
00:28:12.280 --> 00:28:18.360
So, encourage production while oppressing
consumption. Makes perfect sense.
00:28:18.360 --> 00:28:23.800
What hasn't changed is the government's
crony relationship with big factory farms.
00:28:23.800 --> 00:28:27.320
If we were to assume they were
being honest about seed oils,
00:28:27.320 --> 00:28:31.880
then they care more about farmers than
they do about keeping you healthy.
00:28:31.880 --> 00:28:37.720
If they're not honest about seed oils...well,
it's hard to say if that's better or worse!
00:28:37.720 --> 00:28:42.213
So all of that makes MAHA this
week's Biggest Bogon Emitter.
00:28:47.560 --> 00:28:50.280
Do you have children?
Or nieces or nephews?
00:28:50.280 --> 00:28:52.520
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00:29:54.200 --> 00:30:02.166
And now let's subterraneanizationalesserate
this week's Idiot Extraordinaire.
00:30:04.840 --> 00:30:09.240
So the old "No Tax on Tips Act"
from the Ron Paul of yesteryear
00:30:09.240 --> 00:30:12.120
became a campaign promise
for Trump's second term,
00:30:12.120 --> 00:30:17.080
and this time it actually passed, albeit
as a rider to the One Big Beautiful Bill.
00:30:17.080 --> 00:30:23.160
Also included was No Tax on Overtime and a
tax deduction for seniors on Social Security.
00:30:23.160 --> 00:30:26.040
Competing with Trump
directly on the campaign trail,
00:30:26.040 --> 00:30:31.480
Kamala Harris adopted it, as did a number
of Democratic Gubernatorial candidates.
00:30:31.480 --> 00:30:37.720
The polls showed this was popular with
73% of Americans across party lines.
00:30:37.720 --> 00:30:43.240
Now, Democratic governors are saying
they'll do whatever they can to block the bill.
00:30:43.240 --> 00:30:46.680
Treasury Secretary Scott Bessent
issued a scathing statement
00:30:46.680 --> 00:30:53.400
against states including Colorado, New York, and
Illinois, which he described as "liberal strongholds,"
00:30:53.400 --> 00:30:59.033
for blocking their own residents from
receiving these tax breaks. He said, quote:
00:30:59.034 --> 00:31:01.400
"This partisan stonewalling
is a direct assault
00:31:01.400 --> 00:31:05.400
on the very families and workers
liberal politicians claim to champion.
00:31:05.400 --> 00:31:09.240
By denying their residents access
to these important tax cuts,
00:31:09.240 --> 00:31:12.920
these governors and legislators
are forcing hardworking Americans
00:31:12.920 --> 00:31:18.040
to shoulder higher state tax burdens,
robbing them of the relief they deserve
00:31:18.040 --> 00:31:23.080
and exacerbating the financial squeeze
on low- and middle-income households.
00:31:23.080 --> 00:31:29.960
We call on these holdout states to immediately conform
and stop punishing their citizens for partisan games.
00:31:29.960 --> 00:31:35.640
The American people voted for bold
change, not bureaucratic roadblocks."
00:31:35.640 --> 00:31:42.280
Ordinarily, state taxes follow the Internal Revenue
Code, either automatically or through an annual bill.
00:31:42.280 --> 00:31:45.880
That's to help simplify and
standardize the tax code.
00:31:45.880 --> 00:31:50.920
But states don't have to do that. They can
put the screws on you as much as they want
00:31:50.920 --> 00:31:55.160
and there isn't a thing the feds
can do about it beyond whine.
00:31:55.160 --> 00:32:01.240
For example, if you live in Colorado, you'll
see an extra line on your tax form that says,
00:32:01.240 --> 00:32:04.120
"Excess federal deduction
for overtime pay."
00:32:04.120 --> 00:32:08.920
Did you get the deduction? You'll have
to add it back in to your state taxes!
00:32:08.920 --> 00:32:15.960
New York has lines for "Add-back of exempt tip
income" and "Add-back of exempt overtime pay."
00:32:15.960 --> 00:32:22.520
Maine is doing similar line items for senior
deductions, car loan interest, tips, and overtime.
00:32:22.520 --> 00:32:27.240
Eric Clements, director of Tax Compliance
at Thomson Reuters, said, quote:
00:32:27.240 --> 00:32:33.240
"You must pay close attention to state adjustments for
the next few years, as each state's approach differs.
00:32:33.240 --> 00:32:38.840
This complexity makes DIY tax preparation
less viable for affected clients."
00:32:38.840 --> 00:32:42.680
Oh, great, more
cronyism for H&R Block!
00:32:42.680 --> 00:32:45.520
They're trying their best
to get that money back
00:32:45.520 --> 00:32:49.720
so they can continue stuffing their
budgets with their favorite boondoggles.
00:32:49.720 --> 00:32:52.360
But this time? It might backfire.
00:32:52.360 --> 00:32:58.360
People remember that these are all things the
Democrats said they wanted and failed to deliver.
00:32:58.360 --> 00:33:04.280
And now they see how much they hate the
fact that it was Trump that made them happen!
00:33:04.280 --> 00:33:10.920
I'm sure we'll hear more on April 15th as people are
suddenly forced to pay more attention to state taxes.
00:33:10.920 --> 00:33:14.600
Might be a good season for
"Taxation is theft!" memes.
00:33:14.600 --> 00:33:19.586
So all of that makes these Democratic
governors this week's Idiot Extraordinaire.
00:33:24.820 --> 00:33:31.720
Well, that wraps up this "the royal posterior of a
royal infant child" edition of the Bogosity Podcast.
00:33:31.720 --> 00:33:36.760
I hope you enjoyed it; if you did, please go to
donate.bogosity.tv for several ways to support,
00:33:36.760 --> 00:33:40.040
and discord.bogosity.tv
to join the discussion.
00:33:40.040 --> 00:33:45.480
Subscribe at the Discord, Patreon, or
SubscribeStar and you can listen early and ad-free.
00:33:45.480 --> 00:33:50.760
Thank you for listening. Have a very happy holiday
season, and we'll see you after the new year!
00:33:50.760 --> 00:33:53.800
Until then, here's a quote
from Milton Friedman:
00:33:53.800 --> 00:34:02.040
"I am in favor of cutting taxes under any circumstances and
for any excuse, for any reason, whenever it's possible."
00:34:02.040 --> 00:34:06.680
The Bogosity Podcast is licensed under a Creative
Commons Attribution-NonCommercial-NoDerivatives
00:34:06.680 --> 00:34:08.953
4.0 International license.