Elie Mystal
Appearances
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Well, first of all, we don't have same-day registration in New York, right? You have to register at least 10 days before the election to participate in an election in New York. And while 10 days might not seem like a lot of time if you are a politically active person who listens to things like Fresh Air, but if you're a nonpolitical person who is right now listening to ESPN –
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Being able to register to vote on the same day you actually go to vote for the election is kind of really convenient, right? But New York doesn't have same-day registration on Election Day. New York has nothing involving what's called portability, and that is critical for... For a market like New York. So portability means I'm registered in one county and then I move.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Does my registration follow me or do I have to re-register in the new county that I move to? And in New York, there is no portability. So you constantly have to re-register every time you change counties. But think about how...
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
damning that is in a place like New York City, where if you move from Manhattan to Brooklyn, as many people do as they have children, if you move from Manhattan to Westchester, as I did when I realized that my kid couldn't live in a shoebox, you have to re-register when you move to Brooklyn or when you move to Westchester or when you move to Long Island.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
There are many laws that we have that are dumb but inconsequential, right? And there are many laws that we have that are dumb but really complicated, right? And require not repeal but reform, require updates, require massaging, right? The laws that I focused on in my book are both consequential but
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Well, I like to think of it this way. The high watermark for voter participation in this country happened before we had voter registration, right? We had 80, almost 90 percent turnout before voter registration laws attacked the country. There are a couple of other stories about that. There are a couple of other reasons for that.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
We're a bigger country now than we were in the 1800s, yada, yada, yada. But I believe strongly that if we just had a voter eligibility requirement and everybody who was eligible to vote was automatically registered to vote, we would see participation shoot on up in this country and voter participation, not just for presidential elections.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
But for all the other elections all the way down the ballot, for the off-year elections, the congressional midterms, for state and local elections, people think about re-registering around the four-year presidential election cycle. People often don't even know when their local elections are taking place.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
But if everybody was preregistered, if everybody was – everybody who was eligible was automatically registered, then you could literally say, hey, Jim, it's Tuesday. We got to go vote today. Really? What? I didn't know we had an election day. Yeah, we do, Jim. Let's go. And we could just go and vote and go home and go back to ESPN.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
That's how – you want to make voting as frictionless as possible if you want to increase participation.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Yeah, Tanya. So behind the curtain here, the inside baseball scoop is that this is the first chapter that I wrote for the book. And I know it sounds weird because airline deregulation, like how is that nearly as important as immigration or voting rights, which we've just discussed. But I really hate flying.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
And because of law school, I had such a strong kind of understanding that the reasons why I hate flying are on purpose. The airlines are doing this on purpose. The laws have been constructed to allow the airlines to make me personally hate flying on purpose. Right. But when I sat down to research it, I like I usually do kind of initially thought, all right, so where are the bad Republicans?
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
but don't need to be reformed, don't need to be massaged, don't need to be updated for the modern age. They're just stupid. And if we just got rid of them, things would be better the day after we got rid of those laws. So that was the kind of fundamental scoping of the book. And that's how I came up with the 10 that I chose to focus on.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Where are the Republicans? How did they do this? Let me explain it. Right. And as I, you know, every kind of new book or a new article, new case I would read, it was just like, oh, there are the Democrats again. Oh, there are some more Democrats. Oh, oh, my goodness. There's all of the Democrats.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
And so it really kind of shaped a lot of the book to really, as I said in the beginning, the scoping of let's think about the popular laws. Let's think about the laws that had broad bipartisan support. And airline deregulation had broad bipartisan support, so broad that its critical sponsor in the Senate was so-called well-known liberal lion Edward M. Kennedy of Massachusetts.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
And so the entire chapter is kind of explaining how a fundamentally conservative Republican laissez-faire economic theory, deregulation – championed by one of the most racist lawyers and impactfully racist humans in American history, Robert Bork. For those playing along at home, Bork is the guy Nixon found to eventually fire everybody during the Saturday Night Massacre, right? That's Bork.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
How does Bork's ridiculous, untested, unproven conservative deregulation theory capture Ted Kennedy and become the standard operating procedure of the Democratic Party. And my chapter explores how exactly that happened. It was a heist.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Well, you know, I only know about the glory days of airline travels from my father. And I kind of talk about that in the book. But basically – Service was king. Service was king in the old days of airline travel because the airlines couldn't change their prices very much. Prices were fixed by the federal government.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
There was a regulatory agency called the Civil Aeronautics Board, the CAB, which literally had price fixing on airfares. So if you wanted to grow your business as an airline, you couldn't overcharge people. You couldn't undercharge people. You couldn't compete on price. The only way you could compete was on service. And so that's why flying used to be awesome, because service was king.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Well, see, there's... The economists disagree. It was expensive to fly some places, but it was cheaper than it is now to fly some places. But it was cheaper to fly other places, right? And the difference between what was overly expensive and what was fairly priced depended on how popular the route was. Because the point of the price fixing was not just the big bad government stamping down the –
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
businesses and innovation. That wasn't why they were price fixing. They were price fixing to try to encourage airlines to fly to low populated routes.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Right. Well, this is also the problem of neoliberalism, right? It's ceding to the market what should be a government function, but then still having the government there to back up the market every time it fails. And that is a great business if you are one of the deregulated businesses, right?
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Because that means you get to keep all of the profits when things are going well and get bailed out when things are going poorly. The airlines have had massive repeated shocks after 9-11, during COVID. That's just in the past 20 years, right? 25 years. Yet we bail them out. When the airlines are doing great, do they pay us back? Do they give the money back? No, no, no, son, no.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
That's not how it works. That's one of the fundamental flaws of neoliberalism. When you give the market what should be a government function, it's not just that the government then has to bail them out when they go poorly. It's that the government never gets the benefits when they do well. Yeah. And that's the definition of the airline industry.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
And what I try to do in the book is explain that the harm that these laws caused was what was intended by the people who passed them. You know, a lot of times in the book, I will go into the history of how these laws came about in the first place. And you will see people making terrible decisions in real time in support of these statutes and other kind of legal concepts and measures, right?
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
They get all of the profits when things are fine, and we have to pay for them anyway when things go wrong.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Our House of Representatives, right, the House Chamber of Congress, right, which is our most basic federal representative, right? Your individual congressperson is the closest person to the actual people. One congressman in America represents around 750,000 people. I don't remember the exact number. I wrote it down so I didn't have to remember the exact number.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
But it's somewhere in the order of 1 to 700 or so thousand. Right. That's the representative ratio of the country. One representative per 700 or so thousand people. Right. That ratio is the worst ratio of any country that calls itself a democracy in the world.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
And what that means is that in every other single country, one representative represents fewer people than one representative represents here. Our ratio is the worst of any country that calls itself a democracy. That's what I mean when I say that we have the least representative government amongst major democracies. I'm not I don't mean that in terms of feeling.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Well, it didn't always used to be this way, right? We are capped at 435 representatives, right? That's how many people are in the House. Why is that the cap? Is that cap required by the Constitution? No. Did we come up with 435 and we all – no.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
We used to – everybody knows after every census, every 10 years we have a census and we all go through the process of redistricting and we find out that like some states gain representatives and some states lose representatives and we shuffle everybody around. That used to not happen.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
For the first 150 years, whenever there was a new census, instead of moving congressmen around, they just added congressmen. So nobody lost representation. So the ratios remained relatively stable, right? So if California ends up needing five more reps, instead of taking those five reps from New York, you just give California five more reps. Boom, problem solved. We did that until the 1920s.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
As with almost every story in this country, black people happened, right? The 1920s saw increasing relevance of people living in cities. Urban people happened, right? And so the 1920 census saw for the first time that real shift from an agricultural rural society to an urban city society, right?
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
And so the redistricting that would have had to happen after the 1920 census would have given a lot more power to states that had large cities in it as opposed to states that were mainly rural or agrarian. And the people who control the government at that point, it was Woodrow Wilson, who was one of the most racist presidents we've ever had.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
The laws that I'm focusing on are functioning as intended, if you will. And their intention was poor. Their intention was bad. Their intention was anti-democratic or racist or, again, or monopolistic.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
They didn't like it so much that they just ignored the 1920 census. We call the night the scholars call the 1920 census the lost census because it's the only census where no redistricting happened whatsoever. They were just like, oh, look at these numbers. Nah, we're not going to do it this time. And they just did not redistrict for an entire 10-year cycle. Over those 10 years...
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
They came up with their plan, and that plan was to cap the number of congressional representatives. So in 1920, we were at 435 congressmen. And as we get to 1930s, as we get the 1930 census, which shows the same things, because it's not like people were moving back to the farm. But by the 1930 census, we have now capped the number of congresspeople at 435 congressmen.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
And so instead of adding representatives to states with large cities, we then just start moving them around between each other. And that is why we're here today, folks.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Right. So I'm saying that we should stop doing that. We should just add more congresspeople, right? And there are various different ways that we can think about adding more congresspeople, various different numbers that we could go for. I like what the scholars call the Wyoming rule, right? Every single state gets at least one representative, no matter how – unpopulated that state is.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Currently, our smallest state by population is Wyoming. Wyoming has around 570,000 people, right? And they get one congressional representative. So let's just use what's called the Wyoming rule. Everybody, every 570,000 people get one representative, right? That should be our ratio, not one to 750 or whatever, one to 570, right? That's what Wyoming gets. That's what everybody should get, right?
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
If you did that, you'd have to add, oh, about 700 congresspeople. And that would be better. Having literally more congresspeople would be a more representative government. Now, Tanya, you mentioned the Electoral College. You always hear, especially liberals, complain about the Electoral College. Look, I don't like it neither.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
But you can't change the Electoral College without a constitutional amendment. You can change the number of congresspeople just by a simple piece of legislation, which, again, we did for about 150 years. If you added 700 congresspeople, do you know what that does to the electoral college? It makes it way, way more representative of the larger states, right?
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
So imagine how many extra congresspeople would end up in California or New York if we went to the Wyoming rule. And by the way, that's not necessarily partisan because the other states that we get a lot more congresspeople are Florida and Texas.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
So it doesn't fix all of the inherent unfairnesses of the Electoral College, but it certainly makes the election for president far more indicative of the number of people who live in this country as opposed to the land that people happen to live on. I promise you, in a world with 700 extra congresspeople, Mike Johnson is not the Speaker of the House.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Indeed it is. It is in opposition to what America is most proud of because I don't think America should be particularly proud of slavery and apartheid. And when you look at the laws that were passed before 1965, what we have is a situation where not everybody who was living here under the laws had a right to have a say in what those laws were. They didn't have a right to vote.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
They didn't have a right to participate in the government, not a full, fair and equal right to participate in the government. And so that is antithetical to the concept of democratic self-government. Now, Tanya, you did slightly misstate my position in the open because I don't say that all of the laws passed before 1965 should be immediately and forever abolished tomorrow.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
That is actually a little bit too extreme even for me. What I am saying is that any law passed before the 1965 Voting Rights Act, which I – have always said is the most important single piece of legislation ever passed in American history because it's the first piece of legislation ever passed in American history that made real the promise of democratic self-government, right?
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Before the 1965 Voting Rights Act, we are functionally an apartheid state. So what I'm saying is that any law passed before the Voting Rights Act should be viewed with constitutional skepticism. Right. So put it like this. If all you got for why this should happen or that shouldn't happen is some law that was passed in 1921. I don't care. I just don't care.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
And I don't think the government should care. I don't think legislators and I don't think judges should care if you've got an additional argument. for why the law is good, well, now we can have a discussion, right? Because I'm not saying that every single law passed before 1965 was facially bad.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Right. But I also think, and this is perhaps me being a little bit naive, I also think that the laws that were passed before the Voting Rights Act, the laws that were passed before we had full, fair, and equal participation in government from all Americans, the laws that were passed before that, that we like, that we think are good, we could probably pass those again. At least we could try. Right.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
So if you think that you have this law from 1921 that's still really good and really relevant and really important for the modern age, why don't you pass it again, this time asking everybody, not just rich white men. Let's ask everybody if we think that law is still good. And if so, and some of them will be, then let's go.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Yeah, so one provision of the INA of 1921 was that the Secretary of State, on their sole discretion, can revoke the legal permanent status of immigrants, so green card holders and work visa holders, other legal permanent residents, that the Secretary of State can revoke
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
these legal documents on their say-so if they feel that that immigrant's activities contradict some fundamental foreign interest of the United States. There's no hearing. There's no jury. There's no trial. There's just the say-so of the Secretary of State. That is dumb. That is anti-democratic. That should be unconstitutional.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
And the only reason why the government has any argument to hold, I believe, illegally hold, abduct, and threaten to deport a legal green card holder like Khalil, who committed no crime. Because remember, Khalil has not been charged with any crime. because he didn't commit any crimes.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
I would love to get to that heart of the case. But even before we get to that key First Amendment question, the fundamental hook that the government is using to hold Khalil is this determination by Rubio, by the Secretary of State of the United States, who is currently Marco Rubio, that Khalil was engaged in anti-American activities, that the government even has a hook to revoke his green card.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
And that statute, that line, that hook... comes from the 1921 Immigration Nationality Act. To me, it is a perfect example of why these old, disgusting, racist laws should be repealed forthwith and on their face, because it is these kinds of metastasizations of the racism of the past that hound us and haunt us even in our present and our future.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Yep. So the INA comes from a long congressional process. And one of the chief advocates for the INA and for the restrictions on immigration, specifically for immigrants from the global south, was based on the science and testimony of a guy, Laughlin.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Laughlin would later go on to receive a medal from the then Nazi-controlled University of Heidelberg for his important scientific contributions to the theory of eugenics. When I say that America exported Nazi eugenics to the Nazis, I'm not being hyperbolic. This guy, Laughlin, this is the guy that essentially told Hitler how to make eugenics work as a scientific proposition.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
And it's this guy and his science that the U.S. Congress relied upon while writing the initial INA. This guy was giving congressional testimony in those congressional testimonies.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Congressman, congressmen from both political parties, by the way, were saying how important the testimony is and how important it was to write an immigration law that would protect the white race in America from mongrelization. By the weaker and inferior races.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
That's literally in the congressional record in support of the Immigration and Nationality Act, which is currently being used to hold Mahmoud Khalil illegally. It is one linear story. And that story is steeped in literal Nazi eugenics.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Every single one, right? So look, voter eligibility requirements are one thing, right? Voter eligibility requirements are things like you have to be 18 and you have to live in the state that you vote in and all these kinds of rules and regulations. And I can argue that some of the eligibility requirements are bad or wrong. But again, the scoping of the book, what can we repeal?
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
I don't think that we can repeal voting. voter eligibility requirements. We need to have some of them, even if some of them are ones that I wouldn't agree with or like. Voter registration, on the other hand, is completely useless. Once we have established the rules for eligibility, everybody who is eligible should be automatically registered to vote. And that is not just me saying that.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
That is most of the democratic world saying that. America is unique in its double hurdles to voting, right? We call ourselves the greatest democracy in the world. We are not. We are not in the top 10 because other countries have universal freedoms. Most other countries have some form of universal registration so that if you are eligible to vote, you are automatically then registered to vote.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
That was the most difficult part of writing this book because, as you can imagine, there are a lot of laws. Many of them are stupid, and I did not read them all. So trying to scope how to pick just 10 was the initial challenge of the book. And where I landed on was trying to focus on laws that could be stricken today and and have life be better tomorrow, right?
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
You don't have to go through a two-step process. Hey, I'm eligible. And now also I'm registered. That is insane. And that is straight up anti-democratic.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Right. So first of all, registration was not endemic to the founding of this country. Right. Whatever you think about James Madison and Thomas Jefferson and them, they weren't running around requiring pre-election registration for eligible voters. Now, obviously, I disagree strongly with Thomas Jefferson's eligibility requirements.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
But for the 15 rich white men Thomas Jefferson thought should be eligible to vote, they didn't have to register to vote. Voter registration really only became a thing in America after the Civil War. And it really only became a thing in America after the Civil War in the North because you had this exodus of newly freed black people migrating to the North.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
You had this influx of immigrants from across the pond migrating to the North to places like New York. Specifically to places like New York City. So all of a sudden, New York State fearing the black and Irish swelling of New York City and how that would overwhelm and overrun upstate voters. That's when you get the first real voter registration requirements in the Northeast.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
specifically in New York City. Laws that are designed to make it harder for migrating Black folks and new immigrants into New York City who are eligible to vote to register to vote.
Fresh Air
A Legal Scholar On 10 Laws 'Ruining America'
Because that suppresses the vote of New York City and maintains the superiority of suburban – it wasn't suburban at that point – rural upstate and Long Island voters to still keep control of New York State as a polity. That's where they come from.
The Charlie Kirk Show
It's Liberation Day! + The Wisconsin Aftermath
Every law passed before the 1965 Voting Rights Act should be presumptively unconstitutional, right? Because before the 1965 Voting Rights Act, we were functionally an apartheid country. Not everybody who lived here could vote here. So why should I give a... about some law that some old white man passed in the 1920s.
The Charlie Kirk Show
It's Liberation Day! + The Wisconsin Aftermath
I want you to know we are lucky to have Charlie Kirk.