 You're listening to highlights from The David Feldman Show, heard nationwide on Pacifica Radio, or as a podcast on iTunes, Stitcher, and now YouTube. Please subscribe to this channel. For more information, go to davidfeldmanshow.com. Thank you for listening. The David Feldman radio program is made possible by listeners like you. You sad, pathetic humps. Well, Trump has been in office since January and has passed not one single piece of major legislation. Some would suggest the only thing he has accomplished is getting Neil Gorsuch on the Supreme Court to replace the seat left vacant by the death of Antonin Scalia. This month a raft of decisions came down from the Supreme Court on everything from the travel ban, gun rights, gerrymandering. So how conservative? How much of a texturalist is Neil Gorsuch turning out to be? For more on this, we are joined by constitutional law professor Corey Bretschneider, whose piece in Tuesday's New York Times is entitled, Your Travel Ban Isn't Safe Yet, Mr. Trump. Welcome, Corey Bretschneider. Thank you, David. Always a pleasure to speak with you. Yes, I woke up Tuesday morning and I read your piece in the New York Times. You've had a couple of pieces in the New York Times and I understand today you were on the BBC. Yes, just about an hour ago I came back from talking about Donald Trump, the travel ban and that New York Times speech that you mentioned. Yeah. Hey, I want to talk about July 4th and the Declaration of Independence, Constitution, the Emoluments Clause and the travel ban, all these things. Do you mind if I just take care of a little business here before we start? Not at all. Okay. Again, I think it's great that you're writing for the New York Times. Yeah. Thank you. One of the things I asked you when you write an amicus brief or for the New York Times, I don't think it's asking too much for you to run it by me first before you send it to the New York Times. So you think we should have a kind of permission system? No, no, no, no. I don't have exclusivity. That's not something I would ever do with you. I believe everybody... Just like you give your heads up that I'm doing this. I'd like to know what you're writing because it does reflect on the show. I have this kind of... You want to vet it to make sure it's not too dirty or that it's going to degrade your show in any way. That's all I'm asking. Right. Just... Not being embarrassed. That's all I'm asking. Just run it by me. Again, I'm happy. I'm not saying you need my permission to write an amicus brief or write for the New York Times. That's not... I don't own you. But what you're saying is that your standards are just a little tighter than the New York Times. Is that right? Or the BBC? A little consideration. I don't want to wake up Tuesday morning, open up the New York Times and see that you have written an op-ed piece without my knowing about this. Are you worried there might be bad jokes in there or that the facts might be wrong or it won't be copy-edited well? All of the above. Okay. By the way, I don't have a pimp mentality. A couple of people have accused me of acting like a pimp and trying to control my guests. That's not where I'm coming from. I just want consideration. And it's not about loyalty. I'm not paranoid. Let's move on. Again, I think I've been very good to you. You have been. I've given you a lot. We've known each other a long time. We've known each other for three months. And anyway, the article was great. Thank you. It was really great. It's very frustrating, you know. I mean, when he was a candidate, there was a lot of, he's spinning constantly. There was a lot of counter-spin. Now he's the president of the United States. So when he tweets out that he won his travel ban case 9-0, which is basically what he did, people start believing it. But we'll get to the travel ban in a second. Okay. I have a serious question. Sure. I'm making fun of the booking wars that go on in show business. I'm being absolutely serious here. There was a time when if you were a guest on The Tonight Show, you weren't allowed on Letterman. Okay. And it was like racketeering. And it still sometimes goes on where they say, well, I want you first. And if you don't do my show first, then you can't go promote your product. You know, if you go do Kelly and Ryan, then you can't come on my show. And I just experienced this on one of the most minor league levels ever with somebody. And I couldn't believe it. I went, really? Are you petty? Are you? Yeah. Are you that petty? Are there racketeering laws that prevent these kind of things? Well, I mean, you can have an exclusive contract. So I'm sure, you know, a lot of the commentators on television are supposed to just comment for one outlet. I don't think that's an antitrust violation. I think that's just an exclusive contract the same way that some jobs, you're not allowed to moonlight. So no, I don't think you've got a case there. By the way, if Mark Marin asked me to be on his podcast and he had a requirement that I not do yours for a while. I would tell you to do Mark Marin. What would you tell me? I would tell you to do Mark Marin. That was my inclination. Absolutely. We'll get to your article in a second. There is this pimp-like mentality among people where it's not about commerce. It's about control and power, the intoxication of being able to have somebody bend to your will and make somebody do something that they don't want to do, but you're just more powerful. That's what I've noticed. What was your thing? What was it? It was so petty. It was not about business. It was about can I control somebody? It was about actually a guest on the show. And it was somebody who used to be important and no longer is. And he's trying to jumpstart his career again. And he told somebody that you're not allowed to do David's show. You can either do mine. And I'm thinking, really, there's a booking war between me and Miss Loser? Are you that petty? And it's somebody who's from that generation where they get off controlling other humans more than they do just making money and doing good work. So anyway. It seems silly. Yeah. That being said, again, please, when you're going to write from The New York Times, clear it with me. Yeah. Any jokes that I'm going to put in there? Not clear all the jokes that are in the next piece. It was great. And it's difficult to cover this topic because it is the travel ban. And the first question I want to ask you is millions of Americans right now are in fear of losing their health care. The CBO just said in 10 years if this health care bill gets passed, 25 million more Americans will be without health insurance. How should anybody care about the travel ban? You know, I think it's all part of a piece that if you take any of these things individually that Trump is doing, the assault on health care, the travel ban, the assault on sanctuary cities, the threat to revoke all their federal funds, you could say that about any one of these things. You know, what's the big deal? This is something that other people have done or what's the consequence when this other thing in the world is happening. But to me, the real story of the last six months and the campaign is that it all amounts to a really worrying ideology and it's an ideology of nationalism. Nationalism mixed with the kind of corporate, not just greed but graft and theft and that's all tied up, I think, in each one of these pieces and so it's important to not just fight on one front but to fight on multiple fronts and to not stop. I know a lot of people right now who are overwhelmed. The New York Times published a full page article listing Donald Trump's lies and part of authoritarianism is inundating the citizenry with so much they can't process it all. It's just complete confusion and they're succeeding in many ways as the holiday is approaching. So many of us, it's enough already, I can't take it. I'm curious, you have been consistent on the travel ban. I'm going to compliment you and you're pretty, I mean you're almost as knowledgeable as I am on this stuff. You have remained laser focused on the travel ban and before we get to that, can you speak to the importance of citizens finding their issue and staying on it? Did you make a decision in January that you were going to focus on one specific thing and not let up? I wrote a piece maybe around the time that we met in July when it was still the campaign called Trump versus the Constitution and what it did was it went clause by clause and it outlined how each one of his proposals and statements led head on into a constitutional provision. It was sort of like a pocket constitution annotated with Trump's proposals and so I was just waiting. You know, I had studied basically each of these, really had a good sense of the arguments, how they could be defeated in court and you know, what was he going to do first? So if he had focused on torture, I think I would have been working on that, but he proposed this really to my mind outrageous and lacking in any rational aside from prejudice, travel ban and so that was the one that I grabbed but I mean I was focused on the threat that he poses to our system as a whole and to me this is just one example of that and it's a very clear way, a successful way I should say too, it's worked so far of pushing back against him and it's rooted importantly, it's not an ad hoc policy, it's rooted in the president but really Steve Bannon, his advisers, nationalism that by a lot of the accounts that are coming out of the White House is he is the driving force and you know nationalism, white nationalism, whatever you want to call it is not an American tradition, it's inconsistent with our constitutional system and this is sort of the epitome of that kind of view and that's why I'm so focused on it. For our listeners, one of the things that I'm trying to accomplish with this show is not to overwhelm the listeners to give them information, important facts and then have them act on it and I mean like a minute a day they don't have to dedicate their entire life and as you're talking one of the things that occur to me is the power of one focusing on one specific thing. Your strength is the constitution so it's not easy but it's convenient for you to get involved right now because this is your expertise. Everybody has their own specific knowledge right so to be a good citizen to be a good citizen you should pay attention to everything but then figure out what your singular strength is and use that to destroy Trump. Yes, I mean I think look you got to figure out every day what can I do to stop this and that's going to be different obviously for different people depending on their talent some people it's constitutional law other people it's policy some people it's art some people it's designing logos some people it's comedy and satire and it's one reason why I personally love doing the show is because I think a lot of the people you have on and you yourself are contributing in a huge way I mean that's how people pay attention and how we fight back and so comedy has been no small part I mean we're talking about this in a serious way but you know it's the truth that the plethora of shows that are out there the New Daily Show with Trevor Noah all of these things are really a way of fighting back and you know for different people right the strengths will be different. I think we should continue with some self-aggrandizement and talk about the importance of comedy because when you look at the state of the country and the rise of political satire obviously it's done so much to move the ball forward I disagree with you about political satire that's another conversation. Yeah I mean that's interesting that you're pushing back against that part because it serves your interest to try to promote it but I don't see how there's any way to dispute it I mean look during the Bush administration too that the people who really were able to galvanize opposition I think you know one way to do it and it's a way of pulling truth out or Samantha Bee I mean they're just a long list there's people who are just seeing the absurdity for what it is and making it just a little clearer for people. Well we whitewash history and that is my next question we're gonna get to the travel ban in a second I think we tend to look back and say well we survived we survived the George W. Bush years the system works tell that to the millions of Americans who lost their homes and their jobs because he crashed the economy tell that to the millions of Iraqis who are dead now and the vets who can't walk who are dead who are struggling just to get their prescriptions filled over to VA hospital George Bush gave tax cuts to the wealthy on the backs of the middle class and our soldiers I don't necessarily believe we survived Nixon Vietnam Reagan and George W. Bush that's the narrative that we like the system works which brings me to my question we're coming up on the July 4th weekend that's when we declared our independence from the British I'm being serious here I'm an angle of file would we have been better off African Americans might have been better off had we stayed with the British and gone with a parliamentary system instead of this blueprint we have now that we're working off that I don't think can accommodate the internet and special interests when you have a constitutional crisis as we are I think in the midst of with the president who is continually assaulting the constitution it makes sense to try to reconsider the system as a whole now you know Cal Exit is one example of that talking about parliamentary systems or a constitutional convention would be another I've got a different angle I'll tell you what it is it's something that I'm trying to really work on and that's to really think hard about the presidency during the Obama administration it became very common to say you know what the presidency really is virtually unlimited there is a kind of plenary power in certain matters or absolute power there's prerogative power which is another way of talking about the president's absolute power and this sort of Madisonian story that there are all sorts of checks and balances and congress has a role and we have a quasi-parliamentary system and that congress makes law and the president executes it that those are all sort of quaint in old fashion and really I mean some people even said sort of theorists of Weimar and Nazi Germany who talked about the importance of presidents making decisions unbound by law that even that might be a model and to me that's wrong you know that's really what this is showing us that we were too lenient during the Obama administration in thinking about the president's power and that we have to start going back not to reconsider what the founders did but to basically return to the founding idea of a limited presidency and the president according to our constitution is limited in all sorts of ways including by the Bill of Rights and including by the idea that the president executes and doesn't make law so that's sort of my thing is this July 4th I'm kind of reconsidering the way that we've let the presidency get away from us and thinking about how it needs to be constrained in the way that Madison thought it should be and maybe we're seeing that right now yeah I mean you know one thing people used to say about Nixon a little bit younger than you maybe a lot younger than you good deal younger we won't go into the math but I didn't live through the Nixon presidency the way that you did and I think a lot of people in my generation think that was a weird hiccup of history during Obama it wasn't going to happen again and we don't have to worry about it we don't want to think about the presidency or about the constitution around this bizarre weird example that happened Woodward and Bernstein defeated this guy and what's the big deal and now I think we're seeing this isn't necessarily a blip there is something very dangerous in the office of the president if it is an office that's unconstrained now it's not rightly thought that way and that's another reason why the travel ban to me is fundamental that it's not just about this case it's about this idea of a president who is not above the law the Nixon administration sent E. Howard to the Democratic headquarters to tap their phones and get information which is exactly what Putin was doing to the DNC in 2016 that's similar the other thing that nobody talks about Mark Felt was deep throat and he was second in command over at the FBI that's the similarity that Nixon was brought down by the deep dark state the same way Donald Trump is complaining that the deep dark state is bringing him down our founding fathers never factored in a deep dark state no they didn't I have a friend named I'll just mention his name Jeff Howard who teaches at University of London he said to me what some people call the deep state I call it committed civil service you know that's the way of describing what happened in both cases that the FBI is they see themselves as law enforcement and they're not going to do things that are above the law at least in I mean that's not always been true of course Mark Felt deep throat was pardoned I believe by Reagan because after Watergate he was breaking into the homes of Black Panthers without a warrant yeah he was up to no good too so what was his motivation for doing what he did during Nixon I mean I think Comey's maybe I'm naive but I think it's somewhat pure that he's just trying to tell the truth about what this sort of crazy thing that happened to him what was his obligation wasn't that he was devoted to the rule of law it sounds like it was something else the white male who was at one point second in command over the FBI especially after J. Edgar Hoover died he was pretty important while he was sneaking secrets to Woodward and Bernstein he was authorizing the illegal break-ins of quote-unquote revolutionaries like the Black Panthers and the Weather Underground without a warrant and he got busted and he had to be pardoned I think he ended up getting pardoned by Reagan what is his motivation I think he thinks he loves the country but I'm also sure that if he's second in command over at the FBI he's ambitious and a divisive figure within the organization wanting to rise up to the top he probably wanted Nixon to go down for reasons that we couldn't possibly understand but was threatened by G. Gordon-Liddy and E. Howard Hunt the Cubans who were taking over at Dan Rather called it the Palace Guard Nixon was building up his own Gestapo essentially well Mark felt was threatened by that I mean I get maybe a way to put it just to sort of reflect on our discussion is that these motives are pure people are ambitious especially people at this level and even people who have done I mean it sounds like in Felt's case I'm learning this for the first time but some pretty heinous stuff might have a moment where they say you know what this is frightening for the country the President of the United States is ordering a break in of a hotel trying to get information about the Democratic Party and in this case there's an accusation anyway that at least people close to the President of the United States were colluding with the foreign government to try to influence the election these are major major crimes by people at the highest levels of government so even people I think in the civil service who have done things that are not pure by in any way I mean they might have the moment where they realize that this is just beyond them. When you talk about the CIA I think of as civil servants I think you know Jagger Hoover was a horrible horrible person his name should be taken off the new FBI building that Jared Kushner's family might be building for us I think he was horrible but they are kind of clean they have turned out to be almost impenetrable I think Comey's motivations are pure but how pure is the CIA is there transparency with the CIA? Well it might be that that term deep state you know is used now for a variety of purposes if what it means is that there are aspects of the government and the national security state for instance that are sort of beyond the law and have their own agenda well that's not something I want to defend but if it's the president or his ally saying these people who are standing up to me who are leaking or who are trying to get the truth out what happened in the Russia investigation and in the supposed collusion in those instances those people don't strike me as you know nefarious agents there are people who are part of the federal government doing their job and trying to what not be implicated in things that are illegal that's true of I think people in the FBI who are fighting back including Comey it's was true early on in the transition when the acting attorney general said she wasn't going to implement this policy that became the travel ban so I guess we have to just distinguish between not just motives but who we're talking about Yeah and we'll move on to the travel ban I just was reminded of something about something about Watergate I mean I'm interested you know too I should say not just in that case I've been focusing on it but on this broad theme that we're talking about which is limits on the presidency that I know you you know know well because you lived through it and it sounds like it was a big part of your political awakening there was a lot of time after Nixon where people were talking about the need to structure the federal government in a way that allowed other institutions to function and that's what I'm starting to write about and think about is we need to do that again I think we need to have a series of books and reflections on the limits of this very dangerous office the office of the president that really picks their outrages the complaint that Nixon had was Kennedy was far worse Johnson was far worse you're bullying me all I did was break in to the DNC and try to cover it up if you ever found out what was going on with Kennedy you guys would celebrate November 22nd 1963 and what happened after Watergate the church hearings the assassination hearings in Congress once the church hearings Senator Church held these hearings about the CIA and we found out things after Watergate that Kennedy and Johnson were doing things that were far worse than anything Nixon did to the Democrats Operation Mongoose where they're trying to kill Castro and the Holy Alliance with Sam Jeanne Khanna and the mafia to do their dirty work extra judicially the CIA said we can't do this we'll get the mafia to do it that's why we need transparency I don't necessarily believe somebody like Mark Felt was pure I think he was selectively prosecuting Nixon knowing that there was other stuff going on but he didn't like Nixon there were informal mechanisms that checked the president and we've talked a lot about the judiciary Congress of course is a check and the hearings that we had recently with Comey but another fundamental check maybe the most important is an informal one and that's leaking and those are the leaks that come from people often in the federal civil service so in a way it doesn't matter what Felt's biography or motivations were he was part of this informal but it serves as a really important check on the presidency and that's leaking so when I talk about limits on the president part of it is the constitution and it's official moments but it also is I think very important that we have these leakers they do a public service I'll be quiet I apologize I'm avoiding the travel ban one final observation and please indulge me to me is where this country went off the rails Arthur Lyman was a Wall Street lawyer who was brought down to be the counsel on the Contragate hearings and one of his famous statements was I'm here to celebrate the 200th anniversary of the constitution that's why I'm here and it's an honor to serve on this committee and celebrate the separations of powers well they never went after Reagan but Reagan did during Contragate is it the 25th amendment where they have to get rid of the president because he's senile or can't fulfill the obligations of the office I think it's the 25th they completely let down the constitution Arthur Lyman said I'm here to celebrate the 200th anniversary of the constitution and they completely let Reagan slide and he looked into the abyss of the deep dark state with Contragate and they blinked they said we're not going there Arthur Lyman the great Wall Street lawyer who they brought down to be the counsel he gave an interview about three years later and said you know we could have impeached Reagan we had the goods on him we just didn't think it would be good for the country we thought he was close to a deal with Chief Nuclear Arms plus it would be unseemly to impeach the Republican president who comes in right after Nixon we can't throw two Republican presidents out of office in a row so much for celebrating the 200th anniversary of the constitution I think it's important I'm speaking for myself now to criticize presidents that violate the constitution regardless of party this is self confession during the Obama administration I was a huge fan the guy is a constitutional lawyer he was brilliant he was articulate he was to me a role model amazing president maybe one of the best ever but he did things that I should have been speaking out against and one example going back to assassination is drone attacks I don't think that it's within the president's power to use drones there were many people in foreign governments and there was a case that was brought of an American citizen who found himself on the drone list and said that his due process rights were violated and Obama cared enough about this to his credit to have his own lawyers look into the constitutionality of the policy and the courts frankly are very reluctant to stop a president and especially a president on issues of foreign policy but you know that is something that I wish I would have thought about at the time because regardless of party we have to start to set up limits on what it is that this most powerful person in the world can do with the constitution wouldn't we be better off with a parliamentary system isn't a parliamentary system more nimble than what we have when the attempted impeachment of the first president Johnson happened after the civil war a lot of people said if that would have succeeded in removing the president that would have been a parliamentary system because what it would have meant was that the congress for not for high crimes and misdemeanors but because they didn't like a president's policy could have just removed him or her now we didn't do that and I think that would be a mistake to just use impeachment as a sort of no confidence vote but I think there's an in between the extreme executive power that we have now and a parliamentary system and that's a more aggressive congress with the federal limits on what the president can do that starts to look more like a parliament but it we have a tradition we have a constitution I don't think we're going to throw it out the window and it's something that we can do that I think in many ways captures the original meaning of the constitution which is maybe more parliamentary would be a way to put it than the current very presidential system that we have now what would happen if we had more than two parties would that trigger a parliamentary system? No we would still have I think in South America you still have presidential systems with multiple parties and you know a parliament is defined by legislative supremacy the idea that parliament really is the sovereign entity and the prime minister the leader of the government is beholden to the will of parliament can be recalled for instance if there's a no confidence vote with majority parliament goes against him or her now we don't have anything like that set up we don't have a presidential system where a president has independent real power to implement the law and to go to a parliamentary system would require a convention or a complete rewriting of the constitution guess what I'm suggesting is that what defines parliamentary systems is a strong role for the legislative branch and limits on what the person executing the law can do the cabinet and in our system we've sort of gravitated towards this idea of a pretty weak congress and a very strong president and I think that balance has to be reset Let me paint the scenario for you I ran this by Ralph Nader and he didn't think there was any legitimacy to it and I am name dropping Do you do a show with Ralph Nader every week for the last decade? Please let's stay focused If there were three or four or five parties that would affect the electoral college that would affect how many votes you get when you run for office That's interesting that you're saying if there really were not just the existence of these parties but that they started to in presidential elections do well then it might basically deny any one party the ability to get the necessary votes to become president is that what you're thinking? Yeah, that's interesting That did happen in the election of 1800 for instance and that's how Jefferson was elected It wasn't Rutherford B. Hayes too wasn't that? I don't know the answer to that Either do I I figured you didn't I'm teaching my listeners how to talk to somebody like you He's not going to know who Rutherford is He's so into this travel I know we are cooperating I know I'm just talking to my listeners for a second I see I'm teaching them how to BS Corey Professor just let your mind wander for a second He is so tied up right now in his amicus brief and the ninth circuit court on the travel ban he probably knows who Rutherford behaves is he can only remember so many things Throat in his face Now he's staggering I go in for the kill now Hi, welcome back Corey, you still there? Yes, is this the part where I get to pitch my comedy idea? No, I want to go back because I pitched this idea to Ralph And he confused me Had the Green Party succeeded I don't know what it says in the Constitution about what you need to become president There's a certain number that you need at the Electoral College You have to hit 270, right? So if you don't hit 270 then it goes into Congress Well if it goes into Congress and they're multi-parties I would think that turns us into a parliamentary system because in order for you to become president you have to build coalitions and you're pretty much getting elected president using the speaker of the House for all intents and purposes becomes the prime minister and the president becomes a figurehead It's an interesting idea and I guess what I would say is it's got an aspect of the parliamentary system in the same way that a limited presidency is an aspect of it But is it actually a parliamentary system? No, in a parliamentary system you can recall the prime minister with a no confidence vote for instance, if a majority of parliament votes no confidence or there can be an election called by a prime minister who feels too weak and wants to strengthen his or her power by doing better in a nationwide vote That wouldn't happen in our system under the constitution I'm giving you some credit here but not for all Let's say Paul Ryan had a forge a coalition among the old Republicans and then the Tea Party was their their own party and Ryan became weaker because he was able to work out a deal with the Tea Party Party and the Republican Party Party and suppose the Freedom Caucus was their own party so it's this amalgam of 3 or 4 parties you mean to tell me that the Freedom Caucus and the Tea Party wouldn't be rebelling right now and calling for Paul Ryan's head over the health care bill It would be a no confidence vote but the difference I'm not really disagreeing with you I think it's interesting it would have some aspects of a parliamentary system but my point is that formally our constitution has differences so it still would have a formal election every 4 years for president it wouldn't just happen when there was a weakness of a particular president in power and you would have elections every 2 years for instance for the house and so on there's some arguments that were parliament like in your scenario that you're laying out but with a constitutional system I want to stay on this for a second this is an idea that has been shot down by No I know you want to build it back up you can tell Ralph Nader you actually had some good points even if we stick to electing congress every 2 years the job of the speaker would always be up for grabs the job of the prime minister would be vulnerable what defines a prime minister is they are a member of the legislative branch the parliament but they also are the chief executive in a way of I mean I guess the queen is technically the equivalent of the president sometimes they have a president and a prime France at least in the British system that the prime minister acts in the role of executing the laws as well with fellow ministers but in our system we have still this president despite the fact that he or she might be elected by the congress when we hear of the importance of a third party nobody ever pitches this nobody ever says why a third party and a fourth party why we would succeed how we could keep the constitution and make it nimble would it be more chaotic though that's my word we want chaos we want chaos look at what we have now we have the sclerotic system that's accomplishing nothing what about the suggestion I was trying to make for trying to build your idea by the way can we make money off this idea no we're in the public good business not in the money business you mean to tell me like Thomas Jefferson's ancestors don't get a piece of the declaration of independence it's just that's the president that we're fighting is trying to make money off this meaning the government that's what we're trying not to do wait I was at Norman Lear's house two months ago he bought one of the copies of the declaration of independence I think he paid 8 million dollars for it I'm thinking God the Jefferson estate those kids must they don't have to work you're telling me he doesn't get a piece of this I don't think it works that way I was going to help you make your point and you could go back I'm not interested what's the point what about your here's my way of summing up the smart thing that you said which is how could we take your question is how could we take the constitutional system and turn it into a parliamentary system one way is to emphasize going back to impeachment maybe you know there's no requirement that high crimes and misdemeanors really are high crimes and misdemeanors that mechanism could be used it's up to the congress and it could be used the way that it almost was in the 19th century as a parliamentary system to recall presidents that just basically lack popular will that would be a way of doing what you're saying in a kind of simplistic simple way I think but that would work now I don't know that we want to do that I think that could create a kind of chaos and instability in the system that would keep us from getting anywhere and would be wrapped up in scandal but it would be a way of accomplishing I think some of what you were getting at last episodes but we're being glib and funny and we're not rolling up our sleeves and doing the work we need to do but I do what this is more fun I'm being lazy when am I going to pitch my comedy idea please don't I want to talk to you about you don't want to be that glib just stick with your constitution professor really good thinking that you could pitch me an idea for comedy it's not really for you it's for the 27th amendment can he call me can he have a show yeah you want to pitch an idea yeah do they have a podcast or something where I can get on and give my idea I am a certified huge fan I'm a licensed comedy writer I worked hard to get my comedy I have a comedy writing license where do you sign up for that I made it myself but that's they used to have cabaret licenses in order to be a performer you needed a cabaret license can we reinstate cabaret licenses so that these young comics will stop happily eating began the show by talking about how you're worried about anti-trust violations from the bookers on these shows but now it looks like you want to engage in anti-competitive behavior yourself okay you go you take your wife you get a baby sitter right and you say let's go see comedy at danger fields and there's a comic up there who's practicing comedy without a license I often go to the comedy cellar just for the record do you think it's right I know for a fact that Rich Voss does not have a license to perform comedy do you feel safe who would grant that I would that's where the money we have medallions that's called capture you know what capture is right no what is that it's the idea that the government supposedly is doing things like granting licenses in a way that's for the common good but really somebody is benefiting from it some personal entity like you in your comedy license entity okay listen let me run this idea past you okay in order to perform comedy you have to buy a medallion my idea is really good I don't have a comedy license I don't have the time to but what about medallions should be able to pitch what is the point of our doing this if I can't get rich listen to me professor medallions you need a comedy medallion like you know cab drivers have and wait a second you told me when I asked you if I was going to get paid for this if I was going to be doing a public service and that's what you were all about so now I'm starting to think maybe that wasn't true of course it's a public service aren't I part of the public? you said that it was rude to ask for money it's rude for you to ask for money okay so the 27th amendment this is how slow the constitution is the 27th amendment was ratified in 1992 it was introduced on September 25th 1789 it took 202 years for the 27th amendment to be ratified do you know what the 27th amendment is? I have to do it with salaries right? no it's everybody must do all their Amazon shopping via the David Feldman show website okay I saw that I saw that I was supposed to do that and I'm supposed to send you a note when I buy something I'm going to indulge you you go ahead you have an idea you realize how I'm going to give you the premise I think it's a great premise but now you've got to help me fill it out before you pitch this premise to me and I indulge you do you realize how insulting it is to be talking to David Feldman a licensed comedy writer I've had breakfast with Lou Schneider at Jerry's Deli in the Valley we ordered too it was a pastrami right? with the Russian dressing on the side Russian dressing right? we have a nice relationship I like you you're smart but you really are crossing a line by pitching me an idea do I need an agent before I do this by the way? I just think it's presumptuous to approach me like Feldman a comedy writer who's had lunch with Lou Schneider at least 5 times in the past year for you to think that you can just talk comedy with me do you know the steps one must take to meet with there's the circuit of young comedy writers you work that look what do you think I'm doing this show it's a way of jumping the queue I want to get my idea to him I'm not going to get it by calling him there's a system in place I'm not really a believer in that oh no you have to if you have an idea you pitch it to me that's called capture no no no no no if you think after I reject it then you go to Michael Coman he's an appeals comedy writer he may send it back down to me or move it up to there's a chain of command do I have to explain this to you can I just say I am so thrilled to hear that there is a constitutional system for comedy pitching because I was worried that you're going to reject my idea maybe out of jealousy and then I thought like there's no supreme court to go to no judicial review but now you say there is so who do I go to if you want to you want to bring it to eventually yeah he's the president but you don't just go before him and by the way you don't get to pitch who are you in the system the solicitor general the assistant who does the scheduling I'm the solicitor general you argue the case I argue against it I see well now we're getting a little the solicitor general argues for the government but yeah but you're pitching an idea you're not part of the government you're a plaintiff okay well you have to hear it before you decide if you're going to argue against it I cannot respect this there's a lot of bureaucracy in this whole comedy profession I have an idea the wheels of comedy turn very slowly and there's a reason for that professor jeez we don't scandal like the watergate comedy is incremental we want things to move ahead comedically but slowly and safely go ahead pitch your silly idea and I'll tell you why it won't work jeez go ahead I think that one person that we need to focus on it's been done already it's been done Ernie Kovacs did it Ernie Kovacs did it you're so naive go ahead now I'm intimidated I'll never get it out I just have the premise you were the one I thought it was a partnership let me just talk to my audience talk to my audience for a second get your pitch ready that just makes me feel awkward get your pitch ready I got to talk to my audience the bongs 50,000 people to whisper to on the side the balls on this guy to think that he can come on my show and pitch a comedy idea to me David Feldman who was on Evening at the Improv at least 12 times in the 80s you know what we recorded this show live to tape let him make a fool out of himself hey Corey are you still there and now I'm not going to want to do it what I listened to your ideas about the Constitution and the Parliament what are your credentials for thinking about the relationship between presidential systems and parliamentary systems I believe that you're a citizen and that you have the right to say give an idea, give arguments I take it seriously I listen and now when they were entering this whole comedy thing that's like a very elitist world that I can't give my premise I'm a high priest of comedy go ahead I know that makes sense it's not a constitutional system it's a theocracy Pitch to the comedy Ayatollah go ahead you gotta ask me nicely to hear my idea at this stage alright, Corey, Professor Brechneider I understand you have an idea go ahead pitch me your I think I have a pretty good premise okay it comes from an article in Slate and this is the headline Steve Bannon was once hired to manage an artificial world of people living under glass before the Trump campaign and the article is about how Steve Bannon at one point lived in biosphere 2 for a time in the 1990s the article talks about this where they were trying to deal with the crisis of global warming by creating an artificial world in it that had rivers and all sorts of things under glass and part of what the article reports on is that people didn't really get along with Bannon he had a lot of feuds the article says that he called one person a quote-unquote bimbo and worse so here's the premise it's a kind of cartoon we're in this biosphere and Steve Bannon can't get along with anyone he's harassing people and at one point he's just rejected by many people and finds himself isolated and in revenge within biosphere 2 he decides that he has a great idea which is to build a wall and of course he gets his friend Donald Trump to help him build the wall in the middle of biosphere to this artificial world with the bubble what do you think and that's where the wall comes from is that something you could do something with that's the premise but you've got to make it funny okay well I think it's cute that you had an idea got a political purpose too this is somebody who we have to try to there is a sliver a germ a microscopic germ of an idea there but you're naivete notwithstanding I can take this tiny microscopic idea and I will show you how I will build on it write this down because I'm going to show you how I'm going to take your idea because this is my gift because I've been in Hollywood since before you were born and I will show you how I can take just like a razor thin premise and turn it into magnificence okay now watch all you've done is let out a little belch it's a story by but let me show you how I weave my magic so there's this thing called the bio dome where they put human beings underneath biosphere the biosphere of the bio dome I call it the biosphere I think biosphere will sound funnier it has an F that's funny people are living in this biosphere because we're trying to train them to live on another planet and Steve Bannon this is true I don't know if you know this but Steve Bannon at one time lived in a biosphere to test this out he was in trouble with a woman because he called her a bimbo and everybody because he's such a divisive figure hated Steve Bannon right? so he decides you know what half the people in my biosphere hate me I don't want them near me I'm going to build a wall I'm going to get Donald Trump see now it's political see what I've done here I'm tying it into you called it a biosphere you said Biodome I said biosphere biosphere that makes it that's completely... it's a completely different story it's completely different no different we have to go back to that trademark copyright discussion what are you talking about oh we have the evidence this tape is recorded this is insane this is insane you said Biodome I said biosphere that's why I asked if I needed an agent Cory can you can you just not pay attention for a second I have to talk to my listeners okay obviously I've stolen this idea from Cory Brett Schneider now I do Hollywood jujitsu watch hey Cory are you there yes thank you for listening to my idea by the way I really appreciate you didn't have an idea you didn't have an idea listening to my story by you didn't have a story you didn't have an idea you didn't have a premise you had a word Biodome I changed it to biosphere it's my idea my listeners now watch how I watch the genius it's recorded what do you mean by that I mean the pitch that I gave you the exact same one no you did are you accusing me of recording a conversation do you think I'm one of my Donald Trump recording you like he recorded Komi you think I'm that dishonest that I would record all my conversations what kind of why would you are you saying that this whole thing that we're always talking to each other it's not been for a podcast it's just a way for you to get information about constitutional law and I've spent for the last three months just all this time just talking to you when you pretended that this was on a podcast if you're going to use the f-word I can't talk to you if you're going to say the f-word and spew this kind of horrible vile vitriol at me I don't like the tone of your voice I'm sorry sir sorry no you're not supposed to do that I'm trying to teach my audience that's the old Hollywood trick the trick is you steal from somebody and you're going to be happy about this one she already is worried about the disrespect now taking the idea it's not going to go well for you the way you steal an idea is you steal the idea and then when they come at you you make it an issue about their tone of voice I got it did you really like the idea? yeah I did actually I liked it so much I'm going to take credit for it can we co-create? how dare you how dare you didn't Polly Shor did a movie called Biotom? yeah but he didn't have the Steve Bannon angle when you pitch it that wasn't I don't know I've actually never seen it but when you pitch it it can be white nationalism meets Polly Shor's let's quickly this one really went off the rails it did and you know why this is the story of my college career because I didn't read John Stuart Mill like you assigned me and you had this great article in the New York Times I have to before I go I'm going to be late for Fuglsang but let's very quickly tell them why you were late be sure to tell them why Professor Bretschner wouldn't stop fooling around he's pitching me this great idea about the biosphere let's end on a serious note let's do our work so where are we with the travel ban Professor and try to keep it serious where are we and you say in the New York Times that it's going to be rejected in October when the Supreme Court considers it Donald Trump as usual has claimed victory and out of whole cloth really made up a story about how he won his travel ban case in the Supreme Court as he put it in a tweet 9-0 and unfortunately a lot of the national media are following him so what this piece in the New York Times does and hopefully others will pick up on it is really look at what the court did and what they did was first of all say that there is and this is really been missed by a lot of people that there's a the way they did this indication is that by saying that they're not going to allow for the implementation of the ban for people with bona fide significant relationships from these countries with people in the United States what they're saying is that there's a substantial likelihood of success that that claim is going to win in the end when they hear the case in the fall in other words they are saying in this opinion that it is very likely substantially likely is the technical way that they're going to strike down a huge part of this travel ban now there is a part of the ban that they allowed to take place and it took place today and Trump is trying to get as much publicity for it as he can and that's for people who have no bona fide relationship with people in the United States that means for instance if you don't have any parents or actually they've said even grandparents don't qualify as a bona fide relationship you are now banned from coming into the country if you're in one of the six countries on the list but I think actually that the court even though they haven't have allowed that to take effect in the end the legal arguments against the whole thing are so strong and this claim about the substantial likelihood of striking down at least part of the ban all indicate that Trump is going to lose if this thing is still in place in October it is being implemented though right the part that's being implemented that they allowed to be implemented were for people who going to a university for instance if you have a sibling or a parent that's in the country the language at the Supreme Court of the United States used was if you have a bona fide relationship and you're from one of these six countries with somebody in the United States this ban cannot apply to you in other words you could come in if you have a visa anyway but if you don't then yes then they've allowed for it to be implemented for now is there a possibility the ban will be over because eventually Donald J. Trump will figure out what the hell is going on you know in his campaign called for this ban until he can figure out what the hell is going on is there a time limit on the ban? He says that he wants I think 90 days to study it that's his ostensible reason for the ban as he puts it sometimes he wants to figure out what is going on here yes it's time limited from the time it takes place I think it's 90 days and then it will expire now he has the ability of the executive order to extend it to get rid of it sooner and one thing that is possible that maybe you're alluding to is that he might just decide you know what I don't want to deal with this anymore I'm going to let this thing expire and you know I'll pretend that I won back in the spring and nobody will be the wiser it's been such a disaster for him and such a lesson in how his and bannens I should say going back to the earlier discussion animus towards Islam really has no place in our constitutional and that's why courts have repeatedly struck it down and why the supreme court indicated there is a substantial likelihood that it would be struck down at least with reference to people with a bona fide relationship you wrote in your piece of the New York Times the ninth circuit court rejected the ban because it most likely violates an immigration law that prohibits quote discriminating on the basis of nationality right I thought we could discriminate against people's nationality when it came to immigration don't we have quotas on who can come into this country wasn't there a time in our history when we say okay six percent of the immigrants can be from Czechoslovakia three percent from Haiti isn't that how there was and then there was actually a vile Chinese Exclusion Act at one point that prohibited all immigration from of Chinese immigrants but that legislation that the ninth circuit is referring to is passed precisely to get rid of that system of national discrimination that's why the law was passed was that that's not a constitutional argument that's a statutory one but it's equally important was that passed during the Johnson administration there was a law passed I believe in the nineteen sixties called the immigration and nationality act that eliminated quotas and also eliminated discrimination based on national origin and so that's not a constitutional argument it's a statutory one and that's what the ninth circuit relied on is the text of that law there's a great article in the New Yorker by Calvin Trillin about the immigration nationality act of nineteen sixty five how it changed food in America once everybody from every type of country was allowed into America suddenly foodies were discovering khazaki food you know it's a virginity food a lot of obesity can be traced to the immigration nationality act of nineteen six all this great food you were saying something about Chinese food what was I did see something that talked about this sort of odd history of Chinese restaurants this was something that I saw online about there was a strange way that could avoid the discrimination against Chinese immigrants by having a restaurant and so the argument anyway was that the increase in the number of Chinese restaurants that you see in the twentieth century they grow very large was tied in some way to avoiding this discrimination so you know I mean this is just a small way of course that we can think about the vast array of cultures that make up the United States is through food it's a very small way and you know it's certainly not the only way it also has an odd relationship to the country's bigotry but I mean I don't know that it's sort of just goes to the fundamental point which is that this administration doesn't appreciate America in the way that the rest of us do they think it's ethnic history of I think unfortunately not devoted to pluralism not devoted to people coming from around the world and that's just a very different America than the one that I think you and I value and see every day I'll talk to you next week bye you're listening to highlights from the David Feldman show heard nationwide on Pacifica Radio or as a podcast on iTunes, Stitcher and now YouTube please subscribe to this channel for more information go to DavidFeldmanshow.com thank you for listening