Kristi Noem's career has been put out of its misery

VR25 - This episode is dedicated to the memory of Cricket, the 14-month-old wirehaired pointer murdered in cold blood by Kristi Noem on an unknown date in a gravel pit in South Dakota. One week after Donald Trump took now-former DHS Secretary Kristi Noem’s job out to the gravel pit, Thomas, Lydia, and Matt get together for a post-mortem. After a brief amuse douche from Noem’s (ahem) closest advisor, Matt plays the one excerpt from her 2024 campaign book “Not Going Back” which should have disqualified her from a Cabinet seat. (No, not that one! But we also revisit that story too and it’s so much worse--and involves twice as many animals--than you may  remember.) We then review some of the most notable lowlights of Noem’s time as DHS Secretary, from completely failing to understand the ancient  legal concept which allowed federal judges to release so many of the people she was illegally detaining without bond to her disturbing enthusiasm for calling US citizens concerned about killer ICE agents “domestic terrorists.” Also: why exactly did Noem lose her job last week, and where did the $220 million of our money handed over to a shell company run by her former press secretary’s husband go? Finally, we take a closer look at Trump’s choice to replace Noem at DHS: an Oklahoma Senator with two first names and a temper even shorter than his MMA career.  Watch this episode on YouTube! “NO GOING BACK: The Truth On What’s Wrong With Politics and How to Move America Forward,” Kristi Noem (2024) DHS ad filmed at Mount Rushmore featuring Kristi Noem on horseback “Firm Tied to Kristi Noem Secretly Got Money From $220 Million DHS Ad Contracts,” Justin Elliott, Joshua Kaplan and Alex Mierjeski, ProPublica (Nov. 14, 2025) “Markwayne Mullin is for Trump--and Indian Country,” Graham Lee Brewer, High Country News (Dec. 9, 2019) “ICE Barbie Replacement Mark Mullin Makes a Killing From Trump’s Wars,” Harry Thompson & Tom Latchem, March 9, 2026 “Mullin’ It Over” column archives on Markwayne Mullin’s Senate website Check out the OA Linktree for all the places to go and things to do!

OA1242 - Ever heard of the “major questions doctrine”? Most lawyers sure hadn’t until a few years ago. So how did it get that important-sounding name? Where did it come from? What even is it? How can we call something a “doctrine” or a rule if we don’t have a clear rule statement to cite to? (Hint: You can’t). If you’ve been feeling like maybe this is all made up and the points don’t matter, you can get your vindication here as we trace back the history of this ever-changing heavily-politicized increasingly-disputed amorphous blob. Jenessa read way too many cases and law review articles to tolerate this nonsense today. Timeline, each citing the one below it: 1. “Major questions doctrine” first appearance in any court case: West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022) 2. “Major question doctrine” [not plural] in an EPA statement on deregulations: Repeal of the Clean Power Plan, 84 Fed. Reg. 32520, 32529 (proposed Jul. 8, 2019) (to be codified at 40 C.F.R. pt. 60). 3. “Major rules doctrine”: U.S. Telecom Association v. F.C.C., 855 F.3d 381, 422-423 (D.C. Cir 2017), Kavanaugh dissent. (Note: There are many decisions by this name, including one from the D.C. Circuit in 2016, all of which are more prevalent online. Only this exact citation, minus the “422-23” pincite, will get you to the right case. Unfortunately I cannot find it outside the paywall to provide a link). 4. “Economic and political significance” allegedly the first unnamed use of the concept: F.D.A. v. Brown & Williamson Tobacco Co. 529 U.S. 120 (2000) 5. “Major questions” first appears in any legal scholarship… well those words appear in that order, at least: Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363 (1986). Meanwhile, in another timeline: Cass R. Sunstein, There are two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, (2021). First ever use of “major questions rule/exception” in a positive light in legal scholarship. Would become more mainstream around 2013-2016: Abigail Moncrieff, Reincarnating the "Major Questions" Exception to Chevron Deference as a Doctrine of Non-Interference as a Doctrine of Non-Interference (Or Why Massachusetts v. EPA Got It Wrong), 60 Admin L. Rev. 593 (2008). Moncrieff, above, cites this as the original coining of “major questions”, not Breyer’s 1986 paper: Cass R. Sunstein, Chevron Step Zero, 92 VA. L. Rev. 187 (2006). Other definitions from legal scholarship: Allison Orr Larsen, Becoming a Doctrine, 76 Fla. L. Rev. 1 (2024). Austin Piatt & Damonta D. Morgan, The Three Major Questions Doctrines, Forward Wis. L. Rev. 19 (2024). Thomas B. Griffith & Haley N. Proctor, Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions Doctrine, 132 Yale L.J. F. 693 (2022). Chad Squitieri, Who Determines Majorness?, 44 Harv. J.L. & Pub. Pol’y 463 (2021). Kevin O. Leske, Major Questions about the “Major Questions” Doctrine, 5 Michigan Journal of Environmental & Administrative Law 479 (2016). Jonas J. Monast, Major Questions About the Major Questions Doctrine, 68 Admin. L. Rev. 445 (2016). Other relevant cases: Learning Resources, Inc. v. Trump, 607 U.S --- (2026) Biden v. Nebraska, 600 U.S. 477 (2023) King v. Burwell, 576 U.S. 473 (2015) Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014) Check out the OA Linktree for all the places to go and things to do!

OA1241 - This Rapid Response Friday:* everything you need to know to explain to anyone who will listen exactly why what the US is doing in Iran is illegal. We also review oral arguments in an unusual case involving the federal statute under which Hunter Biden was  recently convicted which has brought weed, guns, and Amy Coney Barrett’s illegal Ambien habit (?) before the Supreme Court at the same time. Finally, in today’s footnote: A man who drinks unpasteurized milk, swims in sewage, and once left a dead bear in Central Park has some opinions about what we should be putting in our coffee--and Matt might agree with him? Can RFK Jr really stop America from running on Dunkin? --- *N.B.: this episode was recorded before the news of DHS Secretary Kristi Noem’s forced departure, but we’ll have plenty more to say about her and replacement nominee Markwayne Mullin next week! “Top Experts’ Backgrounder: Military Action Against Iran and US Domestic Law,” Brian Egan and Tess Bridgeman, Just Security (2/28/2026) “AUTHORITY TO USE MILITARY FORCE IN LIBYA,”DOJ Office of Legal Counsel memorandum, (4/1/2011) Certiorari petition in United States v. Hemani (6/2/2025) Audio from oral arguments in United States v. Hemani  (3/2/2026) “Six Senators Accuse Deputy Attorney General of “Glaring” Crypto Conflict, Cite ProPublica Investigation,” Corey G. Johnson, ProPublica (1/29/2026) “RFK Jr. wants Dunkin’ to prove drinking its iced coffee is safe,” Tal Kopan, The Boston Globe, (3/4/2026) “Dunkin' Nutritional Facts” (2026) [PDF]  

E24 - Today on Vapid Response Wednesday: the story of a wealthy family that lost everything and the one son who had no choice but to try to defend his sister after she was convicted of abusing and trafficking minors with (and for) Jeffrey Epstein. For this special episode we read through Ian Maxwell’s entire body of published work for The Spectator and unseriously consider some of the many questions the tabloid heir raises about the arrest and conviction of his sister Ghislaine, the evils of the First Amendment, and of course a lengthy digression about some people named Todd.  Watch this episode on YouTube! Nobody's Girl, Virginia Roberts Giuffre (2025) Virginia Giuffre’s full 2019 interview on 60 Minutes Australia Ian Maxwell’s video interview with The Telegraph, Feb. 20, 2026 Ian Maxwell’s author page at The Spectator “The truth about my sister, Ghislaine Maxwell,” Ian Maxwell, The Spectator, 12/16/2021 “My sister Ghislaine was denied justice,” Ian Maxwell, The Spectator (UK edition), 7/1/2022 “Don’t take Virginia Giuffre’s memoir at face value,” Ian Maxwell, The Spectator, 11/5/2025 “How my sister Ghislaine beat the Epstein conspiracy theories,” Ian Maxwell, The Spectator, 9/9/2025 “My sister Ghislaine became a prop in the theater of global online outrage,” Ian Maxwell, The Spectator, 2/25/26 Full Department of Trade and Industry report regarding the investigation into Robert Maxwell's pension fund embezzlement and corporate fraud (2001) Check out the OA Linktree for all the places to go and things to do!

OA1240 - Shaina Aber, Executive Director with Acacia Center for Justice, joins today to discuss immigration nonprofit work during Trump 2.0. Find all of the tools and programs we talked about at their website, Acacia Center for Justice.  

OA1239 - Did the Supreme Court just hand Donald Trump the biggest L in US presidential history? We go beyond the headlines to break down the first decision on the merits of any of the second Trump term’s policies. What is the deal with the “major questions doctrine” and why can’t the conservative justices agree about what it is and how to use it? Why did Neil Gorsuch choose this case to drop a lengthy diss track with bars about every one of his colleagues? And is there anything Clarence Thomas wouldn’t let a Republican president do? We then review a lesser-noticed SCOTUS decision from this week on whether you can sue USPS for intentionally stealing your mail for openly racist reasons (the answer may surprise you!).  Finally, in today’s footnote: Thomas Takes the ICE Exam! Learning Resources, Inc. et al. v. Trump (2/20/2026) United States Postal Service v. Konan  (2/24/2026) “The Postmaster,” William Shawn, The New Yorker (11/14/1970)(letter addressed to William Faulkner from Post Office Inspector Mark Webster) Memorandum Summary of Documents Newly Received from DHS Whistleblowers, Sen. Richard Blumenthal (2/23/2026)(with leaked ICE training documents attached) Check out the OA Linktree for all the places to go and things to do!

OA1238 - Dive in to an “old” case from the 90’s that secured a critical right for people with disabilities: The right to be free from unnecessary institutionalization. Learn about some of the more obscure portions of the Americans with Disabilities Act, the different ways we can define discrimination, and what happens when a majority of  judges just cannot agree to sign on to an entire opinion. Olmstead v. L.C. 527 U.S. 581 (1999) Americans with Disabilities Act - Findings and Purpose; 42 U.S.C. § 12101(a)(2, 3, & 5) Americans with Disabilities Act - Discrimination; 42 U.S.C. § 12132 28 CFR § 35.130(d) Jesse Jackson (July 18, 1989). Statement before the Committee on Education and Labor Subcommittee on Select Education (regarding the Americans with Disabilities Act). Check out the OA Linktree for all the places to go and things to do!  

OA1237 - The U.S. Department of Justice is not sending their best these days. From the problematic indictments of journalists Don Lemon and Georgia Fort for their coverage of the protest of a church in Minnesota whose pastor runs the local ICE field office to the unexpected dismissal of Mohsen Mohdawi’s deportation proceedings to a bizarre argument (and more good news) in Kilmar Abrego Garcia’s custody proceedings, we are continuing to see what happens when authoritarian lawyering meets actual federal judges applying actual federal law to the facts and parties before them.  Finally, in today’s footnote: can you sue your ex for telling millions of people about your enormous penis? We debate whether a former football player’s claims are giving BDE or legal shrinkage. Federal indictment of Nakima Levy Armstrong, Don Lemon, Georgia Fort, et al in connection with January 18, 2026 protest at Cities Church DOJ Office of Civil Rights memo re: FACE Act charging policy (Jan 24, 2025) The Freedom of Access to Clinic Entrances (“FACE”) Act, 18 USC 248 Petitioner’s 28(j) letter in Mahdawi v. Trump with copy of the Immigration Judge’s order terminating Mohsen Mahdawi’s removal proceedings attached (Feb. 17, 2026) Judge Xinis’s order preventing Kilmar Abrego Garcia’s re-detention by ICE (Feb. 17, 2026) Complaint in Kalil v. Kalil, filed Jan. 6, 2026 Excerpts from Rev. Jesse Jackson’s “Keep Hope Alive” speech at the 1988 Democratic National Convention Check out the OA Linktree for all the places to go and things to do!

E23 - For today's amuse douche: a savory sample of our favorite Harvard Law professor’s extremely normal 2015 explanation of his appearances in Jeffrey Epstein’s flight logs. We then take on an almost painfully normal 1997 Dersh LA Times oped in which the lawyer who would go on to secure one of the best plea deals a pedophile has ever received complains about all of those pesky age of consent laws. Finally: some of the worst reactions from men exposed in the Epstein files.  You can also watch this episode on YouTube! “Gelernter tells dean he stands by praising student's looks to Epstein,” Yale News, Feb 5, 2026 “Statutory Rape is an Outdated Concept, Alan Dershowitz, LA Times (1997)(retrieved from Newspapers.com.)  Steven Pinker's linguistic analysis for Epstein's defense team, eventually resulting in Epstein's "sweetheart deal" (attachment in linked email, June 28, 2007). Check out the OA Linktree for all the places to go and things to do!

OA1236 - Elections grab bag! Election news has been accumulating, so Jenessa helps us get caught up on what’s going on. Who’s winning elections? What’s going on with redistricting? Heard something confusing about the mail? Trump back on his bullshit again? Good news, mixed news, debunking alleged bad news, bad news with plans for how to turn things around; we’ve got it all. Updates since we recorded: The SAVE America Act passed the House. Also the affidavit for the warrant in Georgia was unsealed. We’ll talk about it soon, but the short version is these people really still believe in election conspiracy theories. It’s gross. We’ll survive. John Hanna & Julie Carr Smyth (Feb. 1, 2026). Texas stunner: Democrat Taylor Rehmet flips Republican state Senate district Trump won by 17 points, Associated Press. Amy Howe (Feb. 4, 2026). Supreme Court allows California to use congressional map benefitting Democrats, SCOTUSBlog. Tangipa v. Newsom (docket and SCOTUSBlog coverage), SCOTUSBlog. Abbott v. League of United Latin American Citizens (docket and SCOTUSBlog coverage), SCOTUSBlog. H.R.7296 - SAVE America Act, Congress.gov. H.R.7300 - Make Elections Great Again Act. Congress.gov. Domestic Mail Manual 608.11 Domestic Mail Manual amendment explanation (Nov. 24, 2025). Postmarks and Postal Possession, Federal Register. 39 CFR Part 111 Dan Mooney, What Is RTO? Why Do We Have It?, National Association of Postal Supervisors (Aug. 19, 2025)  Regional Transportation Optimization (RTO) initiative. (Feb. 2, 2025). Service Standards for Market-Dominant Mail Products, Federal Register. 39 CFR Part 121 Track Your Ballot or Ballot Application, Vote.org. 2 U.S.C. § 7 - Time of election (Dec. 24, 2025). Table 11: Receipt and Postmark Deadlines for Absentee/Mail Ballots, National Conference of State Legislatures. Evan Lee (Jan. 15, 2026) Court holds that all candidates can challenge rules governing vote counting in elections, SCOTUSBlog. Bost v. Illinois State Board of Elections, 607 U.S. __ (2026). Bost v. Illinois State Board of Elections (docket and SCOTUSBlog coverage), SCOTUSBlog. Amy Howe (Nov. 10, 2025). Justices agree to decide major election law case, SCOTUSBlog. Watson v. Republican National Committee (Election Law) (docket and SCOTUSBlog coverage), SCOTUSBlog. Check out the OA Linktree for all the places to go and things to do!