rationally BASED

A Brazilian Supreme Court justice who used to be Lula’s personal lawyer ordered the polls kept open for two hours after they were supposed to close. Another ordered the opposition candidate, Bolsonaro, to surrender his passport. He's since fled to the United States. Is that the sign of a healthy democracy, or is the global Left actually the authoritarian ones undermining democracies around the world?

In Alaska, a second “Dan Sullivan” is on the ballot against the actual Republican senator of that same name. “Decoy Dan" initially filed with the incumbent’s middle initial, and filed as a Repub...

Trump’s Office of Legal Counsel has been on a tear, and hosts Ilan Wurman, Kathryn Johnson, and Joshua Kleinfeld explain the big developments.

Chief Justice Roberts likes to take some time away from DC every summer and relax in Maine. It's a lovely community. Boats and barbecues. Neighbors and no cars. For years, it helped him reset from one of the country's biggest jobs.

Then a local activist published an op-ed urging people to yell at him, give him the finger, refuse to serve him, and generally make sure he never has a moment's peace. Other activists obliged, kayaking up to his home every morning to denounce him.

But is that really "protest"? The effort to make one...

Two big new cases just hit the courts, and hosts Ilan Wurman, Kathryn Johnson, and Joshua Kleinfeld take them on. 

First, the President pulled the White House passes of CNN, MS NOW, and Politico, saying: “The White House is not instituting an assault on the Free Press, something which I cherish. It is instituting an assault on the FAKE NEWS ….” The outlets sued, claiming a constitutional right to the passes, and a federal judge provisionally ruled in their favor on due process grounds. Is the due process claim sound? What about freedom of the press?

Ilan an...

Midterms are around the corner. Democrats have a shot at the House and Senate. And the maps that will decide those races are being fought in courtrooms as much as in legislatures. Hosts Kathryn Johnson, Joshua Kleinfeld, and Ilan Wurman take on the gerrymandering arms race — and the deeper question underneath it: Should courts referee election maps, or does that hand too much power to judges who never have to face the voters?

They start with Virginia, where Democrats tried to turn a 51 percent state into a 10–1 congressional map, then lost on a technicality. Then Texas and Cali...

A public university is “We the People” spending our money on our children. A foreign student with a visa is a houseguest, not a relative.

So why are judges telling states they cannot stop DEI dogma in public classrooms — and telling the United States it cannot send home non-citizens who preach hatred of the country?

Hosts Ilan Wurman, Kathryn Johnson, and Joshua Kleinfeld take on two new cases that split conservatives from libertarians. First, a divided Eleventh Circuit held that Florida’s “Stop Woke Act” violates the First Amendment. Second, a California district court held that the Tru...

Lindsay Clancy sent her husband out of the house, strangled their three children one by one, and then claimed a voice told her to do it. Was she insane? Eleven jurors voted to acquit. Has the jury system failed us?

The conservative media sphere is getting this wrong, hosts Ilan Wurman, Kathryn Johnson, and Joshua Kleinfeld argue. The rage is justified. The insanity defense and the jury — ancient foundations of Anglo-American liberty — are the wrong targets.

The disease is identity politics: a culture in which women side with women, and every group sides with its own...

Washington State’s “Family Reconciliation Act” — arguably the most Orwellian name in recent memory — requires shelters NOT to notify parents if runaway children say they want “gender-affirming treatment.”  Meanwhile, the chief medical groups pushing gender transitions for children — WPATH and the AAP — now claim, in the face of lawsuits for fraud, that their medical standards of care were just “opinions” protected by the First Amendment.

Hosts Ilan Wurman, Joshua Kleinfeld, and Kathryn Johnson break down the cases and ask the hard questions: Do the parents challenging Washington’s law have standing – and does it matter if standing doctrine is just a politica...

The Supreme Court is poised to decide a major case on citizenship and voting this Term: RNC v. Mi Familia Vota.

Only citizens can vote. That is the law federally and in all 50 states. But can states check? That is the question in this case. It seems like a no-brainer that, if the law requires citizenship, a state can require documentary proof of citizenship. But the National Voter Registration Act specifies a form for federal elections that only requires voters to attest that they are citizens; it doesn't require proof. Must Arizona accept the form even for...

The Second Amendment revival of the last 15 years has not yet answered a question that affects at least 1 in every 20 American adults: do Americans have a constitutional right to possess AR-15-style semiautomatic rifles? The Supreme Court will finally answer that question this term in Viramontes v. Cook County.

Professor Joel Alicea – who is part of the litigation team taking Viramontes to the Supreme Court! – joins hosts Ilan Wurman and Joshua Kleinfeld to break down the issues.

Joel, Josh, and Ilan trace the development of Second Amendment doctrine from Heller to the present and dig into...

"Due process of law" is emerging as THE central legal battleground for immigration reform in 2026-27. In this episode, Kathryn Johnson and law professors Joshua Kleinfeld and Ilan Wurman break down the three biggest new cases — and confront the deeper question: What is "due process" anyway?

First is Genalo v. Black, which the Supreme Court will hear this October. The statute requires that immigrants convicted of major crimes be detained pending their deportation hearings. But what if those hearings are delayed for years? Does prolonged detention eventually violate due process? Ilan argues that plaintiffs' claim is a we...

Parent proxy voting for children is in the news and it's gone viral!

On Ross Douthat's podcast, Yale Law professor Samuel Moyn proposed giving 20-somethings extra votes, rather than parents, because “young people — not people who are raising families — will have the best insight into the interests of children” and “Part of our goal as a society is trying to make sure that children aren’t the hostages of their parents." Douthat responded: "I think that’s daft. I think it’s absurd to imagine that a 24-year-old recent college graduate has a better assessment of the interests of my...

In this bonus episode, we cross post our host's appearance at the National Constitution Center. You can also listen to this episode on We the People, the NCC's wonderful podcast. 

Julie Silverbrook, Chief Content and Learning Officer at the NCC, asks Professor Ilan Wurman a series of questions about the Founding and the Constitution, based on his new book The Constitution of 1789: A New Introduction. What was the connection of the enumerated powers to the royal prerogative of the British monarch? What is the separation of powers, properly understood? What is the meaning of "the executive power," a...

Election Money, Mail-In Ballots, and the Supreme Court

In this episode, Kathryn Johnson and law professors Joshua Kleinfeld and Ilan Wurman take on three fights over the rules of American elections — and the deeper question of who should control them.

First is the Supreme Court’s 6-3 decision in NRSC v. FEC, which freed political parties to spend unlimited amounts in coordination with their candidates. What is the case really about? Why did it split along partisan lines? Why do Republicans want stronger parties while Democrats prefer a system dominated by advocacy groups? And was the...

In this episode, hosts Kathryn Johnson and law professor Ilan Wurman take on a hard and controversial question: Are all cultures created equal? Or, more precisely, do all cultures have the same current capacity for constitutional self-government? How much migration and importation of people from foreign cultures and with foreign habits is ideal? Is it racist to even have such discussions?

Our hosts also start with other controversial topics. Does the Trump anti-weaponization fund justify...weaponization against Trump's lawyers by referring them to bar discipline? Our hosts discuss Judge William's ruling and how it applies to Obama's...

Can You Love America While Facing Its Hardest Truth?

In this special episode of our series on the American Founding, hosts Kathryn Johnson and law professors Ilan Wurman and Joshua Kleinfeld take on the hardest question about American patriotism: slavery.

Drawing on Ilan’s new book, The Constitution of 1789, they lay out what the Founders actually wrote about slavery — and what they deliberately left out. Almost without exception, the Founders viewed slavery as profoundly evil, though many of them did not match their behavior to their ideals. They designed the Constitution as a containment strategy: a se...

In this episode, Kathryn Johnson and law professors Ilan Wurman and Joshua Kleinfeld break down the Supreme Court’s 6-3 decision upholding state laws that bar biological males who identify as girls from competing in girls’ sports.

The majority held that Title IX and the Equal Protection Clause permit states to maintain sex-segregated sports teams based on biological sex. But the deeper divide among the justices was revealing. Justice Kavanaugh wrote a narrow opinion for the Court that avoided the big cultural issues, while Justice Thomas wrote directly that men and boys who identify as women are not...

In this episode, Kathryn Johnson and law professors Ilan Wurman and Joshua Kleinfeld break down two blockbuster end-of-term SCOTUS decisions on the administrative state: Trump v. Slaughter and Trump v. Cook.

In the first case, the Supreme Court held that the President can remove commissioners and directors from powerful, insulated agencies like the FTC, the SEC, and the CFPB — effectively overruling a century of government by independent agencies. This is one of the most significant expansions of presidential authority over the executive branch in decades. The era of unelected bureaucrats running the federal government may not be ov...

In this episode, Kathryn Johnson and law professors Ilan Wurman and Joshua Kleinfeld break down the Supreme Court's 5-4 birthright citizenship decision — a much more closely divided ruling than many expected.

Chief Justice Roberts, writing for the Court, held that the Citizenship Clause of the Fourteenth Amendment confers citizenship on virtually anyone born on U.S. soil, with only narrow historical exceptions. The decision effectively takes the issue out of the democratic process, requiring either a constitutional amendment or a future Court to change course.

The hosts also analyze the full range of views across th...

In this special episode, our hosts — Kathryn Johnson and law professors Ilan Wurman and Joshua Kleinfeld — tackle four recent Supreme Court decisions. They focus on the two big immigration cases from Thursday, where the Supreme Court upheld the right to hold migrants on the Mexico side of the border without processing their asylum claims, and held that Trump could end Temporary Protected Status for Haiti and Syria. Our hosts talk about the Left's judicial lawfare, and ask deep questions about the nature and purpose of our asylum and immigration laws. They round out the episode with the Court's decision inva...

In this episode, our hosts — Kathryn Johnson and law professors Ilan Wurman and Joshua Kleinfeld — take on a topic that has taken the country by storm over the last several months: welfare fraud. They go over some legal developments involving the Trump Administration's efforts to stem the fraud, including intricate administrative law questions involving "final agency action" and whether agencies may act on political pretexts. They touch, as always, on activist judges seeking to thwart the administration's efforts. They also go deeper and debate the constitutional roots of the welfare system. Ilan argues in his new book that Congress does...

In this episode, Kathryn Johnson and law professors Ilan Wurman and Joshua Kleinfeld take on one of the most controversial actions of the Trump administration: executive orders targeting major law firms. 

Some legal scholars have called these orders the most unconstitutional thing Trump has ever done. Our hosts aren’t convinced — though they acknowledge the orders raise hard legal questions, particularly around the doctrine of unconstitutional conditions. Can the government restrict law firms’ access to federal contracts and security clearances when those firms systematically discriminate against conservatives and pour overwhelming resources into lawfare against one side of the pol...

In this episode, our hosts — Kathryn Johnson and law professors Ilan Wurman and Joshua Kleinfeld — examine the three latest examples of judicial power being used to block elected officials. 

They cover Florida’s effort to hold the American Academy of Pediatrics and WPATH to account for lying about the risks and benefits of transgender surgery on kids — only for an Illinois federal judge to step in and halt the state proceedings on First Amendment grounds.  They cover the D.C. Circuit’s decision to overrule Pete Hegseth and compel the American military to permit transgender service members — holding that h...

In this special episode of Rationally BASED, our host, law professor Ilan Wurman, is joined by guest co-hosts Sanjana Friedman and Judge Glock. Both write about homelessness, public encampments, and other disorders in America's progressive cities. Our hosts talk about the state of the homelessness-industrial complex in Los Angeles and San Francisco. Do NGOs have an incentive to perpetuate homelessness? Was Spencer Pratt right to describe homeless people as simply "drug addicts"? (Answer: mostly yes.) Our hosts talk about how progressives manipulate language to dull the mind and advance their radical agenda, for example by describing homeless persons as "...

Our hosts Kathryn Johnson, Joshua Kleinfeld, and Ilan Wurman break down the controversial new DOJ Anti-Weaponization Fund. Is it legal? Is it justified? And after decades of Democrat “sue and settle” tactics, does it even matter? 

The panel dives into how Obama and Biden administrations used collusive sue-and-settle tactics to funnel billions to allies, donors, and favored causes through settlement funds — from $3.5B for Native American tribes and aligned lawyers, to $1.3B for Hispanic farmers and aligned lawyers, to $1.2B from Volkswagen for electric cars, to a student debt end-run from Biden. Trump banned the practice in his fir...

Our hosts, law professor Ilan Wurman and Kathryn Johnson, are joined by guest co-host Joshua Kleinfeld, law professor at Scalia Law School at George Mason University, former professor at Northwestern, and a recent alum of the Trump Administration. They are also joined by Yonatan Green, author of Rogue Justice: The Rise of Judicial Supremacy in Israel. Our hosts talk about the modern phenomenon of left-wing "Juristocracy," that is, rule by judges--but only so long as they're on the political left. Our hosts explain why the Left must couch its ideas in false language like "democracy," and how they label...

In this special episode, our host gives a lecture at Stanford Law School on his new book, The Constitution of 1789: A New Introduction. What caused the American Revolution? Why did we write down our constitutions? What the nature of the American Union? Of executive power? And -- a topic near and dear to the listeners of Rationally BASED -- what is judicial power? Does the Constitution contemplate judicial review? Does that mean the Supreme Court has final say over all constitutional questions? And what was the Constitution's relationship to slavery? Get a sneak peek of Ilan's new book, which...

Our hosts, law professor Ilan Wurman and Kathryn Johnson, start off discussing the Virginia Redistricting case. What did the state supreme court hold? What is an "election"? Is there a federal question for the U.S. Supreme Court to review? Are the Democrats flipping 180 on a bunch of issues to get their way, including the meaning of "election day" and the independent state legislature doctrine? Our hosts then turn to the five-court circuit split surrounding the mandatory detention of illegal aliens. What is an "applicant for admission"? Is an applicant for admission necessarily "seeking" admission? And what does Judge...

Our hosts, law professor Ilan Wurman and Kathryn Johnson, start off discussing the Virginia Redistricting case. What did the state supreme court hold? What is an "election"? Is there a federal question for the U.S. Supreme Court to review? Are the Democrats flipping 180 on a bunch of issues to get their way, including the meaning of "election day" and the independent state legislature doctrine? Our hosts then turn to the five-court circuit split surrounding the mandatory detention of illegal aliens. What is an "applicant for admission"? Is an applicant for admission necessarily "seeking" admission? And what does Judge...

Our hosts, law professor Ilan Wurman and Kathryn Johnson, cover everything Voting Rights Act in light of the Supreme Court's recent decision in Louisiana v. Callais. Why was the Voting Rights Act enacted, and how does it relate to the Fifteenth Amendment and the Equal Protection Clause of the Fourteenth Amendment? What did the VRA accomplish? What did the Supreme Court do with Section 5 of the VRA in Shelby County, and was that case rightly decided? Is redistricting even covered by the language of the VRA? If it is covered, would that even be constitutional if the Fourteenth Amendment...

Our hosts, law professor Ilan Wurman and Kathryn Johnson, get a full hour with Mollie Hemingway, editor-in-chief of The Federalist and author of the new New York Times bestseller, Alito: The Justice Who Reshaped the Supreme Court and Restored the Constitution. They touch on several themes in the book and connect them to current issues and news. Is Alito an originalist? What is a "practical originalist"? Why did he make fun of Justice Scalia, saying he wanted to know what James Madison thought about video games? What do the attacks on Alito show us about the Left's strategy and...

Our hosts, law professor Ilan Wurman and Kathryn Johnson, revisit the issue of Trump's ballroom after the recent assassination attempt. Ilan sticks to his guns and thinks Congress has to approve the ballroom; Kathryn is skeptical. Both agree, though, that the District Court case against the ballroom is ridiculous because the plaintiff doesn't have standing. Our hosts pivot to the Democrats' plan to pack the Supreme Court and make D.C. a state. They talk about the history of circuit riding and the need to increase the number of lower court judges after Biden shamefully vetoed a bipartisan bill...

Our hosts, law professor Ilan Wurman and Kathryn Johnson, take a deep dive into the ongoing January 6 lawfare, and particularly the civil lawsuit against President Trump brought by capitol police officers and lawmakers in D.C. Did you even know that such a lawsuit was going on? Our hosts break down the 2024 immunity decision, talk about the Independent Counsel statute from the Watergate era, and break down the causes of action against Trump in the civil case. Did Trump "direct" others to assault and batter capitol police officers? Did he "aid and abet" the attacks? Or is the civil...

Our hosts, law professor Ilan Wurman and Kathryn Johnson, rave about the Supreme Court's shadow docket. The shadow docket allows the Court quickly to rein in rogue district judges and their crazy opinions. Our hosts in particular talk about Justice Kavanaugh's shadow docket decision involving "Kavanaugh Stops," Justice Sotomayor's personal attack on Kavanaugh, Judge Boasberg's TdA ruling, and the D.C. Circuit's benchslap of his recent attempt to hold Trump officials in contempt. They also talk about exit taxes, and their most academic topic to date: What is the object of legal interpretation? Does the intent of the legislature...

Our hosts, law professor Ilan Wurman and Kathryn Johnson, explore a series of issues involving both executive and judicial "lawmaking." Would the President have the power to "wipe out" Iranian civilization without Congress? Can the President on his own initiative order the postal service to deliver only certain kinds of election-related materials to advance his election integrity agenda? Can the President order the destruction of an entire wing of the White House pursuant to a statute authorizing the making of "alterations" and "improvements"? Our hosts discuss the Constitution's distribution of power between Congress and the President more generally before...

Our hosts, law professor Ilan Wurman and Kathryn Johnson, devote their episode to election integrity and the meaning of "election day." Does a federal "election day" preempt state laws providing that ballots can still be received days after the election? Is someone "elected" once the final selection is made by the voters, or when those selections are transmitted to election officials? Or perhaps it's only when the count is done? Our hosts penetrate this thicket of possibilities, and discuss the surprising history of the uniform election day -- voter fraud! Our hosts explore the "great frauds" that were committed...

Our hosts, law professor Ilan Wurman and Kathryn Johnson, break down what they just heard at the Supreme Court oral argument over President Trump's birthright citizenship executive order. They prognosticate on the result. Wong Kim Ark will not decide this case. Justice Barrett will be the critical vote: what is her theory of what connects ambassadors, invaders, and Indian tribes? What is the government's theory of domicile? What is the plaintiffs' theory of extraterritoriality? They are joined in the second half by guest Theo Wold, one of the architects of the executive order when he worked for the first...

Our hosts, law professor Ilan Wurman and Kathryn Johnson, finally take their promised deep dive into the birthright citizenship case that the Supreme Court will hear next week. Ilan recently testified in Congress on the issue, and has a lot to get off his chest. He and Kathryn discuss Peter Schweizer's testimony about Saipan, an island north of Guam for which there is statutory birthright citizenship and lax visa rules for Chinese citizens. Schweizer estimates that upwards of hundreds of thousands of children might have been born in Saipan to Chinese parents who would now be American citizens if...

Our hosts, law professor Ilan Wurman and Kathryn Johnson, are joined by conservative law students at the podcast’s first ever live taping, at ASU. The hosts tackle one of the most important and controversial legal issues of the day: the asymmetrical lawfare and “barfare” against Trump and Republicans. Does the left play by the rule of law? Do they like the rule of law for themselves, but not for others? Should conservatives start playing by their rules? In terms of legal doctrine, should they embrace an aggressive version of substantive of due process? Common good constitutionalism? Our hosts tackle...

In this bonus episode, our host, law professor Ilan Wurman, gives a talk to a conference of conservative law students on Trump vs. the courts. Are we in a constitutional crisis? Is it because the executive is disrespecting the courts, or because the courts are disrespecting the executive? Can the President ever ignore a court order? What if the court doesn't have jurisdiction? Who decides that question? And what can courts do better to respect the President and ensure they have jurisdiction? Our host makes some suggestions about causes of actions and injunctions. Please enjoy this special bonus episode...