All-In PodcastHot Swap growing, donors revolt, President Kamala? SCOTUS breakdown: Immunity, Chevron, Censorship
EVERY SPOKEN WORD
150 min read · 30,048 words- 0:00 – 5:51
Bestie Intros!
- JCJason Calacanis
All right, everybody. Welcome back. It's Hot Swap Summer here at the All-In Podcast, episode 186 of the world's number one podcast. Calling in from the home office in Italy, Chamath Palihapitiya. How are you doing, sir?
- CPChamath Palihapitiya
Great. How are you?
- JCJason Calacanis
You look so relaxed. Look at you. Look at you.
- CPChamath Palihapitiya
(laughs)
- JCJason Calacanis
Look at you.
- CPChamath Palihapitiya
It's only been two days, but it's only been two days that I'm working. I mean, I'm not that relaxed yet, but this place does put you in the right mood, I gotta say.
- JCJason Calacanis
All right. Sacks, I'm sure that it's been an uneventful (laughs) week for you. How are you doing in the great state of California from our headquarters at the All-In Tower in San Francisco? How's the All-In Tower doing?
- DSDavid Sacks
Why are you doxxing me? What's going on here?
- JCJason Calacanis
(laughs) 'Cause you live in San Francisco. Everybody knows that.
- DSDavid Sacks
(laughs)
- JCJason Calacanis
All you have to do is look for the protests. Follow the protests-
- DSDavid Sacks
(laughs)
- JCJason Calacanis
... and you'll find Sacks. Also with us, of course, from the Ohalo Headquarters...
- CPChamath Palihapitiya
Is that Backdraft, Freeburg?
- DFDavid Friedberg
The house is on fire.
- JCJason Calacanis
The house is on fire. By house, you're referring to America.
- CPChamath Palihapitiya
Which house? Which house? America-
- DFDavid Friedberg
Yeah, which one of Europe? Which one?
- CPChamath Palihapitiya
... or the Democrats' or Biden's house? What, what-
- DFDavid Friedberg
There's a political party. There, I mean, you can interpret it as you wish.
- JCJason Calacanis
Oh, okay. There you go.
- DFDavid Friedberg
You can interpret it as you wish.
- CPChamath Palihapitiya
Your butt, is your butt on fire?
- DFDavid Friedberg
(laughs)
- CPChamath Palihapitiya
Did you have some, uh, Indian food?
- JCJason Calacanis
Did you hit the taco truck? What happened? (laughs)
- DFDavid Friedberg
There's a heatwave in the West right now.
- JCJason Calacanis
He stopped at the taco truck.
- DFDavid Friedberg
The West is on fire.
- JCJason Calacanis
The West is on fire. Okay, okay, Dr. Doom. If you want to come to the All-In Summit, now in year three, we've got a ton of programming updates, but the tickets are gonna sell out. We just released another hundred tickets.
- 5:51 – 26:22
Democrats and their donors are falling out; President Biden to resign? Will VP Harris be the nominee?
- JCJason Calacanis
So, let's start off with Hot Swap Summer. You heard it here first, or maybe not. Hot Swap Summer continues. You know, previously, historically, if you wanted to understand who's winning an election, you'd look at the polls. Not perfect, obviously. Some of these polls still call landlines, yada yada.But then people built models, obviously, 538, all this kind of stuff. But it seems that this year and this, uh, election cycle, people are really focused on prediction markets, mm, aka betting markets and, uh, th- well, we're looking at them in real time and obviously people have skin in the game. So, you can... I'm interested in the panel's take on the sharps on these platforms and if you think that they're more accurate than, say, some of these polls or the aggregators of polls. But Kamala Harris is now the favorite to be (laughs) the Democratic nominee, according to one of them. So just let that soak in. (laughs) In the last 24 hours, VP Harris's chances of being the Democratic nominee have gone from 18% to 50%, at the same time President Biden has dropped from 66% to 28%. There are a bunch of long shots, moonshots in there, Newsom, Michelle Obama, Gretchen Whitmer all in the 8 to 12%, but they were low single digits prior to last week's debate. As you can see in the chart, Biden and Harris were about even this morning. Uh, the taping of this is Wednesday, July 3rd. But the New York Times reported that Biden told an ally he's considering dropping out. So, we should note the White House, the White House spokesman said this is absolutely false. But this is the, uh, money chart from, I think, Polymarket, and we keep updating this document in real time while we're taping. Chances of Biden dropping out are now at 77%. That's up from 60% this morning, 40% after the debate.
- DFDavid Friedberg
You know, if he talks to us after we record the show-
- JCJason Calacanis
We have to do this.
- DFDavid Friedberg
... before we publish, it's gonna be a whole-
- DSDavid Sacks
Well, I don't, I don't think he's going to do that because he is scheduled to do a sit-down interview with, uh-
- DFDavid Friedberg
Oh, right, yeah.
- DSDavid Sacks
... George Stephanopoulos. I think they're recording it on Friday.
- DFDavid Friedberg
Right.
- DSDavid Sacks
Which is two days from-
- JCJason Calacanis
Maybe he doesn't care. Oh, is that what you're saying?
- DFDavid Friedberg
Which is two-
- DSDavid Sacks
No, no, no, no, hold on, hold on.
- DFDavid Friedberg
Yeah.
- DSDavid Sacks
He's gonna do an interview with Stephanopoulos on Friday, and then Stephanopoulos is showing it in two parts on Saturday and Sunday. So it's gonna be edited. So we don't know what they're gonna edit in or edit out. Uh, at this point though, the media is in such a feeding frenzy that I don't think that ABC is gonna cover for Biden. So I suspect it'll probably be a pretty fair representation of the actual recorded interview. In any event, that's coming out this weekend. I think the Biden presidency basically hinges on this interview. If Biden can show that he's sharp and he's responsive and not senile. And presumably he's going to sit down and do this at the best hours of the day, right? They can't make that excuse anymore.
- JCJason Calacanis
So is that before nap time or after nap time?
- DSDavid Sacks
Right, exactly. So I'm sure he can do this at a time when he has the good stuff. I think if he knocks it out of the park, maybe he can quell all of this speculation. But if not, if it goes poorly, then I think he's done.
- JCJason Calacanis
So this is the last chance again, it's like, this is like the third last chance.
- DSDavid Sacks
I think so. Yeah, because th- think about it. I mean, the accusation is that he's senile. That's not a hard thing to disprove if you're not actually senile.
- JCJason Calacanis
Right.
- DSDavid Sacks
You just need to go in there.
- JCJason Calacanis
(laughs)
- DSDavid Sacks
Right? It's a pretty low bar, right?
- JCJason Calacanis
Not senile.
- DSDavid Sacks
So... Yeah. So he just needs to go in there and talk-
- JCJason Calacanis
Has the balls.
- DSDavid Sacks
... for whatever it is, an hour, and he's not going to be fed a hard, hardball questions.
- JCJason Calacanis
No.
- DSDavid Sacks
Probably gonna be pretty softball questions. He just has to prove that he's not senile. If he can do that, it'll calm things down.
- JCJason Calacanis
I- Stephanopoulos generally does a, a good job. He's not a sycophant. I think he, he considers himself a, a legit journalist and will, will actually-
- DFDavid Friedberg
Well, this is-
- 26:22 – 34:38
Cognitive decline coverup, Bestie strategy for Dems
- JCJason Calacanis
two-part question. One, is there a chance that he has had a diagnosis already and they're covering that up? And two, if they covered up something like that, what is the ramification of it? Because it's clear to everybody he's in cognitive decline. It's clear it's been a couple of years of cognitive decline.
- CPChamath Palihapitiya
No, no, no, th- that was asked of KJP in a press conference yesterday.
- JCJason Calacanis
Yes.
- CPChamath Palihapitiya
And she was very explicit. No. And the reason-
- JCJason Calacanis
No, that she doesn't know.
- CPChamath Palihapitiya
... she can say-
- JCJason Calacanis
She doesn't know.
- CPChamath Palihapitiya
No, no, no. The, th- the, the answer was much more explicit. "Has he been diagnosed?" And she said no. And the reason she said no is because that is very credible for her to say because he hasn't taken the test.
- JCJason Calacanis
Okay, so that's your theory.
- DSDavid Sacks
Look, it was obvious now for months, if not years, that there's been a huge coverup of his cognitive decline and the media has participated in this. Anyone who raised that question was treated as being a partisan or a liar. And just for a good example of this, I know you described George Stephanopoulos as a straight shooter, but when Nikki Haley was on his show-
- JCJason Calacanis
Yeah, so I'm guessing.
- DSDavid Sacks
... a few months ago, and I'm not a fan of Nikki Haley at all, but she started making this point and Stephanopoulos basically wouldn't let her finish. I mean, basically shouted her down. So the media was actively suppressing the story. You take Morning Joe, uh, Scarsborough, he was saying that this version of Biden is the best he's ever been.
- JCJason Calacanis
Yeah.
- DSDavid Sacks
And we've been hearing all of that kind of stuff for months. They were describing true videos showing Biden being out of it. They were describing those as being fakes, clean fakes. They invented this new term for perfectly real videos that basically would reflect his condition. So the media has been engaged in a gigantic coverup of this and as a result, the country is in really bad shape because we have to go through the next six months either with a senile president who has limited cognition or we could end up with a new president who is untested, inexperienced and, based on every interview she's given in the last four years, appears to be completely clueless at a moment in time where I think we have the most dangerous foreign policy situation since the Cuban Missile Crisis.
- JCJason Calacanis
Okay, so you think it's gonna be-
- DSDavid Sacks
So this is a... Hold on. This is a really horrible situation and... Hold on. It's, it's... The media bears a lo- lot of the responsibility and what should have happened, okay, what should have happened is we should have had a re- robust Democratic primary a year ago-
- JCJason Calacanis
Sure, yeah. We all called for that, yeah.
- DSDavid Sacks
... based on concerns about Biden's cognitive abilities reported by an honest media. We never had that.
- JCJason Calacanis
Yeah, so, uh-
- CPChamath Palihapitiya
Did you guys see this clip, by the way? There's a clip on Twitter where somebody put together a clip on X, six minutes of 100 sort of spokespeople and proxies and they all had the same thing to say about President Biden, which is he is sharp as a tack.
- DSDavid Sacks
Sharp as a tack. (laughs)
- CPChamath Palihapitiya
And it was all ver- Sharp as a tack.
- JCJason Calacanis
(laughs) Which end of a tack, the round part?
- CPChamath Palihapitiya
What was so funny to me is I thought to myself, "If I asked 100 people on the street, 'What do you think of Elon Musk?' You'd have 100 different statements." There'd be a general theme, but n- you would not have even 50 people repeat the exact same words.
- JCJason Calacanis
Yeah, they're talking points, obviously.
- CPChamath Palihapitiya
And so you have this funny situation where 100 different people were basically saying the exact same talking points. So it's not even a point of view, it was just something that they were told to say by somebody else.
- JCJason Calacanis
Yeah.
- CPChamath Palihapitiya
And back to your point-
- JCJason Calacanis
Both, both sides can be like that.
- CPChamath Palihapitiya
... Sax, is the real issue, which is that you don't really have an honest media here and so there is no check and balance on power right now.
- 34:38 – 47:06
SCOTUS clarifies social media moderation
- JCJason Calacanis
rulings and a bunch of SCOTUS activity over the last week. But these are really important consequential decisions. We are going to talk about three of them. And I'm going to try to get through these quickly. Obviously, you could talk about these for hours, and people will be, you know, doing case studies on them for a long time. But let me try to do this quickly so we can get everybody's take on them. The first one I want to talk about is NetChoice. This is the content moderation cases that you may have heard of. There were two very controversial laws passed in Florida and Texas in 2021 in the wake of January 6th. The Florida law, if you weren't aware of it, and, and I don't suspect most people are, would cover platforms with over 100 million monthly active users or 100 million in annual revenue. In other words, they're targeting X, YouTube, Facebook, Meta, those kind of sites. And they would require those platforms to notify users if their posts are removed or altered. And the platforms would have to make general disclosures about their operations and policies. And the Texas law was very similar for platforms over 50 million monthly active users. And it would require them to notify users whose posts were removed and provide an explanation of why, all that kind of stuff. Both of these laws were challenged in court in 2021. Just to give you an idea, like, why I think the conservatives were upset about this, obviously Trump being suspended indefinitely on Twitter, Facebook, and other platforms, or the labeling of content like we've seen on our own channel on YouTube. NetChoice is a tech industry group, includes Facebook and YouTube and the parent companies of those. And they sued to block these two laws. Justice Kagan, a liberal, wrote the unanimous decision. Obviously, no dissensions here, and the majority held the editorial judgment and the curation of other people's speech is a unique expressive product of its own, which entitles it to First Amendment.... protection. So just to give you an example, if you wanted to create a social network where you can't be anonymous, like LinkedIn, you can do that. If you want to do something like Twitter X and have anonymous accounts, you can do that as well. If you want to create a social network with adult content, you can do it. Or, like Zuck is doing on Threads interestingly, they are downplaying political content. Obviously, other platforms amplify political content. So let me, um... and so the, the end of all this in terms of how the court handled it is, uh, they offered some guidance and sent the cases back to the lower courts to clarify a bunch of stuff, just to keep this brief. Chamath, what are your thoughts on this? Obviously, some of the ideas here, like letting users know why they were banned or why content was taken down, I, I think the overwhelming majority of users would like to have that. But is this the government's role?
- NANarrator
I'm not enough of a legal scholar to know the details of this case, except to say that when the entire court goes in one direction, it's probably because this never should have been brought to the court in the first place, and they're giving a very clear message. It wasn't even ideologically strained to figure out what the right answer should be. So.
- JCJason Calacanis
Sacks, obviously, your chosen party was the one who brought this. You have concerns about the platforms doing this. But do you have equal concerns about the government then, I guess, being the ones who have to enforce these? Is this a good ruling?
- DSDavid Sacks
Well, I think that with respect to the Texas and Florida laws, I think their heart was in the right place. They were motivated by the right things, which was to reduce censorship on the social media platforms, specifically censorship of conservatives, which is to say their, their citizens. But those laws probably were overly broad and they infringed on the free speech of corporations, because I guess corporations get free speech too. And basically, what the ruling says is that content moderation receives the f- same First Amendment protections as any other kind of speech. So the decisions of what content you're going to keep up or take down on your own property is itself a speech decision, and the government has to respect that. So that's what the ruling here was saying. I think it's not a bad decision. I wish the Supreme Court, however, had coupled this with a better decision in the Missouri versus Biden case, which they, they basically said that the plaintiffs lack standing to pursue. So they didn't necessarily give a dispositive ruling in that case, but they threw it, they threw it out. And-
- JCJason Calacanis
Yeah.
- DSDavid Sacks
... and basically what that case was about was the Biden administration was engaged in attempts to influence or pressure social media companies to take down speech as a practice known as jawboning. And I wish they had coupled this decision with a better decision in, in Missouri versus Biden saying the government's not allowed to coerce social networks to take down speech either, and they refused to do that. So I wouldn't say these are, like, the greatest set of decisions with regard to free speech that the court's ever done. I hope that they will come back in the future once they find a plaintiff with the right standing to address that issue.
- JCJason Calacanis
Yeah, that's a key issue. Friedberg, your thoughts? If any?
- DFDavid Friedberg
Yeah. So I've said for a long time, we've obviously had conversations about Twitter and shadow banning and some of the other activities on what are typically called social media platforms. At the end of the day, these are all, as I've shared in the past, my belief is they're all content companies. They have a choice as executives and as editors of those companies to decide how to editorialize the content on their platforms. They can choose to create content with writers that they pay on staff like a newspaper might. They can choose to create content with actors and directors that they pay to create novel video series for them, like HBO might. Or they can choose to make content creation available to third parties that don't get paid, like users. And at the end of the day, what they choose to do with that content and how they choose to display that content is up to them as an editorial platform that is ultimately creating content for other consumers. I don't view that user-generated content platforms are a right of the consumers to have access to share their thoughts. They have the internet to do that, and they have many other places that they can go to to create blogs, to create websites, to do whatever else they want to do to express themselves. But to have a technological platform that lets them submit content that then the editors get to decide how and where they show that content, I think they should understand because it's in the terms and conditions when you sign up. So I don't believe in social media platforms as utilities, and I don't think that the government should have any role in deciding what is or isn't on those platforms. This goes both ways. I think that the company should decide what kind of platforms they want to have, whether they want to have free speech that allows inappropriate content or content that might be offensive, or whether they want to have a highly moderated platform to make it more broadly available or appealing to users. It's entirely up to them, and I really do appreciate the ruling because I think that the government should have less of a role in intervening and deciding how media companies create content and how they editorialize that content.
- JCJason Calacanis
Yeah. So I think that's well said, and I, I was in the same sort of camp as you, Friedberg, which is there's like a battle of snowflakes here. Like, the liberals obviously were canceling people on these platforms, and now, like, the MAGA folks want to come in and have the government regulate it. If you want to compete here, just create a new product or service in the market. You're on the board of Rumble, Sacks, like, they're doing really well. And if you squeeze too tight and your platform doesn't work, it's the marketplace should, you know, figure out who the winners are. And, you know, it, it's, it's not a situation where you want the government getting in there, because then they're going to go to a newspaper, and there's so much precedent here. I, you know, I actually read some of the, of these rulings, which is really interesting. They, they're written phenomenally well. I will put in the show notes the actual links to the PDFs of these decisions. They're well worth reading. And in this case, they brought up a bunch of the previous law. It's fascinating, like people wanted to force a newspaper to allow, you know, one candidate to reply and give him space. They were like, "No, you can't do that. It's their newspaper, they decide what they publish." Another person wanted to...... have a corporate newsletter be forced to give information about the other side, so you just don't get to do that.
- DFDavid Friedberg
I'll just say one more thing. Wha- what else is striking is just how insular and protectionist Texas and Florida are being. And it's not just with this law, it's also with the lab-grown meat or cultivated meat laws that they've passed, and other states are passing similar laws, which is limiting innovation in the state and limiting freedom to operate in the state in order to protect interests of individuals and corporations that already exist within that state. So, it's really important to note, this isn't a good or a bad thing, but those states are operating in a way, the lawmakers of those states are operating in a way that's trying to protect the interests of the individuals and businesses in the state over the freedoms that might... and the liberties that might otherwise be available. And I think we often talk about these states being more free, but these laws and the cultivated meat ban laws, in my opinion, indicate that these states are actually on the contrary. They're much more, kind of, protectionist.
- JCJason Calacanis
What does your take on that, Stacks?
- DSDavid Sacks
To Friedberg's point, I mean, I think this, this, um, ruling might have been necessary from a constitutional standpoint because corporations do have free speech rights. Uh, but again, I would say that I think that the laws of Texas and Florida were coming from a good place, which is they were trying to protect the rights of their citizens to engage in free speech. I think it's just unfortunate that in this case, it's a zero-sum game and, as a result, those laws were, were invalidated. I think that makes sense, but I still think we have a problem.
- JCJason Calacanis
I agree with you, the platforms have too much power. What- what is your proposed solution? You obviously don't want to have the government in there, like, running a newsroom or running Twitter/X 'cause you yourself were saying, "Hey, the government's too involved in X and these platforms and doing this jawboning." So obviously, having them more involved is bad, right? You're against them being involved.
- DSDavid Sacks
Yeah, I think it's really tricky to figure out how to solve this.
- JCJason Calacanis
Got it.
- DSDavid Sacks
I think, for one thing, you don't want the government jawboning these sites to take down content.
- JCJason Calacanis
Right.
- DSDavid Sacks
That clearly should be a free speech violation. I'm just disappointed the Court didn't get to that.
- CPChamath Palihapitiya
I think we're totally missing the bigger picture. There's, like, a lot of fearmongering that I think has happened with respect to the Supreme Court and that it's all of a sudden become some super ideological, super rigid, super activist place and I think it's, in fact, much of the opposite, and the data supports that. And so I think it's important for people to know that what's actually happening is that many of these decisions are very much split along non-ideological lines and I think that that's an important thing. So I just, like, I'm pulling this up and I just wanna read some of these things to you. US versus Rahimi, which is a federal law that prohibits people subjected to domestic violence restraining orders from having a firearm, that was an eight-to-one decision where all but Thomas supported that. Makes a lot of sense, you would think. Racial gerrymandering, that was more ideological, where it was a conservative bloc versus Sotomayor, Brown, and Kagan. Trump v. Anderson, which is Trump getting back on the Colorado ballot, nine-oh. FDA versus the Alliance for Hippocratic Medicine, which was access to the abortion pill, nine-zero maintaining access. Moyle versus US, which is whether Idaho's strict abortion law conflicts with the federal law, non-ideological where it was Gorsuch, Alito, Thomas, and Ketanji Brown Jackson who dissented. So it goes on and on, and I think what's so interesting about all of this is that I had thought that this was not like what it was. What I thought what had happened is Trump struck the Supreme Court, all of a sudden we are ripping all these laws apart, this longstanding sort of doctrine of what has passed, but yet I think what's actually happening is people are pretty thoughtfully pushing the responsibility to the states and I think that the court's decisions are relatively unpredictable in the sense that it's not just a conservative bloc versus a liberal bloc. I think that's the real story. And when you-
- JCJason Calacanis
Oh...
- CPChamath Palihapitiya
... unpack a bunch of these decisions in that context, that's what's so interesting to me is, like, these are pretty nuanced decisions that get at the heart of a lot of key important issues happening across non-ideological lines. The Jan6 one, Ketanji Brown Jackson was the Biden appointee that basically supported this thing that may throw out 200-plus convictions for Jan6, and Amy Coney Barrett was on the other side. This is an unpredictable Supreme Court. I think they think for themselves, they seem to be independent, and I think they are coming to their own conclusions. That's the only thing to take away from the distribution of the votes. That should make people feel a little bit
- 47:06 – 1:00:03
SCOTUS overturns Chevron, limiting the power of federal agencies
- CPChamath Palihapitiya
better.
- JCJason Calacanis
So, I think this next ruling is the most important one and I think it'll be the most important one that we've seen with this new court that has three of the nine justices placed by Trump, to your point, Chamath, and this one is seismic. The Loper versus Raimondo decision overturned Chevron. Okay, so this one takes a little explaining. The Court overruled a landmark 1984 decision in the Chevron case from 40 years ago. For context, the original ruling created the Chevron doctrine where the government and federal courts generally defer to the stances of federal agencies unless Congress has written specific laws on an issue. The 1984 ruling upheld the EPA's interpretation of the Clean Air Act. It's very influential. This has been cited by federal courts over 18,000 times in 40 years. It was overruled in another six-to-three decision where the justices voted along party lines, Chamath. Basically, this shifts power back to federal judges and courts instead of administrative agencies staffed by experts, academics, all that kind of stuff. In the majority opinion, Roberts, a conservative obviously, said the Chevron doctrine violates the Administrative Procedures Act, a federal law that directs the courts to review actions taken by federal agencies. He also pointed out that the courts are regularly expected to deal with technical questions so this should not be considered beyond their ability or scope. Kagan, a liberal, wrote a critical dissent. She said the agency staffed with scientists and experts are more likely to have the expertise to make these decisions rather than the judges. She also pointed out that the system had been functioning for 40 years and this ruling will create a massive, quote, "jolt to the legal system." Chamath, get in there.
- CPChamath Palihapitiya
Do you remember when President Biden tried to pass the-... budget two years ago and he was one vote short. And Joe Manchin ended up putting it over the top, but he negotiated what was a redo of a bunch of regulation, and he was promised that there would be this regulatory overhaul that happened, and that was sort of why he had decided to vote for that budget bill. It ended up not happening. So the reason why I think he saw that, and he discussed this, is that there are so many businesses that now suffer from the regulations of these agencies because when the agency enacted that regulation, it was just a different time and place and there was no clean way to go back to an independent body and say, "I understand what your intention was in 1985 when you wrote that regulation, but in 2024 things have changed. Can we reconsider?" And basically what the courts have done now will allow companies who believe that regulations are either overwrought or misguided for today's market landscape, bring it to an independent judiciary and have them decide. And I think that that's a very reasonable check and balance, and I think that's- that makes a lot of sense. Folks can pass laws, and if folks believe that those laws do you undue harm, now you have a mechanism to go and actually explain your case to somebody independent who can then make a judgment. I think that that's a good check and balance.
- JCJason Calacanis
Friburg, I know this was the one you most wanted to talk about. Uh, what's your take on this end of the age of experts and throwing things back to the court? What will be the practical ramifications of this?
- DFDavid Friedberg
Well, I don't know how much experience you guys have had dealing with federal regulators-
- JCJason Calacanis
You have a lot more than I think all of us.
- DFDavid Friedberg
... in reg- in- in agencies.
- JCJason Calacanis
Yeah.
- DFDavid Friedberg
And I've ... Yeah. I've worked in a l- across a number of federal agencies in- in businesses I've been involved in, and I can tell you it is, uh, as I'm sure you would expect, there's a lot of bureaucratic morass (laughs) in- in these agencies. And if you think about it, it's because the agencies are effectively, under the Chevron Doctrine, vested unlimited authority to create rules and regulations that they then determine are meant to represent the laws that were passed by Congress, but v- more often than not, those rules and regulations begin to bleed outside of the lines of the intention of the laws when they were passed. And this is because those agencies, by creating new rules and regulations, and this isn't- this isn't some like, you know, I have a subversive reason for doing this, but these agencies have an incentive for creating more rules and regulations because they then get to go back to Congress and ask for more budget and hire more people and grow the importance and the scale of their agency. This is the natural kind of organic growth that arises in any living system, and any organization of individuals is also a living system and has the same incentive.
- JCJason Calacanis
Yes.
- DFDavid Friedberg
It wants to have more resources. It wants to get bigger, it wants to do more stuff, it wants to be more important. And the Chevron Doctrine has allowed agencies to operate independent and outside of the lines that were defined in the laws that were passed that th- that then invested them this authority that then they can go and say, "I want more budget, I wanna get bigger." And I'm optimistic that this ruling will limit the agency's authorities and limit their ability to create more bureaucratic overhead, more headcount, more individuals that need to now go and administer the rules and regulations that they themselves create, and so I'm actually very optimistic and hopeful about this, uh, this change. Now, the downside, the negative to this is that there are a number of really important regulatory roles that agencies have come to play that never got passed as bills, like environmental protection rules, and there's a negative consequence that will arise to some degree with respect to health of the environment, health of people, et cetera, but I think net net, Congress needs to do its job. It needs to go back to session and it needs to sit down and it needs to pass laws that really clearly define what is and what isn't going to be legal going forward, and then the agencies operate strictly within those bounds, so-
- JCJason Calacanis
So to recap, it could get a little messy, but it's a better, healthier system because this system has become super bloated over 40 years. That was my take on it as well. Sachs, what's your take on this? This feels like a- a huge win to me. What do you think?
- DSDavid Sacks
Yeah. Well, I agree with that, and I agree with what Friburg said. Look, when- when this decision, the Chevron decision came down in 1984, at the height of the Reagan revolution, conservatives actually liked it. They- they praised it-
- JCJason Calacanis
Yeah.
- DSDavid Sacks
... because we were coming off a period of an activist court, you know, the- the Warren Court, and they thought-
- JCJason Calacanis
Right.
- DSDavid Sacks
... that shifting power from the courts to the agencies would actually be a good move. Well, it turns out it completely backfired. Um, the Chevron, when it came out, was not a widely noticed decision. Since then, it's been cited 18,000 times by federal courts. It's turned out to be enormously important and influential. And the reason for all those citations is it's the courts deferring to the rulemaking of an agency. You know, what Chevron basically says is, as long as the agency's interpretation is reasonable, or you could say not unreasonable, then the agency can basically promulgate the rule. And what this has led to is an orgy of rulemaking by all these federal agencies.
- JCJason Calacanis
(laughs)
- DSDavid Sacks
And so most of our laws now effectively are being made by unelected bureaucrats who are part of this three-letter alphabet soup of government agencies. It's not the Congress, it's not the court, it's not the president. It's this fourth branch of government that's not in the Constitution, which is the administrative state. And so the administrate- administrative state has become incredibly powerful as a result of Chevron Doctrine, and now I think by reversing it, you actually give a chance for the restoration of democracy. Basically, the agencies are not empowered...... to essentially make whatever rules they want as long as they superficially appear reasonable. They actually have to show that their rules are within a statute, that they, that they were directed by Congress to effectively engage in the rule-making. So, this is a step in the right direction for sure. But again, the real problem here is reigning in this unelected administrative state.
- JCJason Calacanis
Yeah. Chamath, any final thoughts here as we move onto the next one?
- CPChamath Palihapitiya
It seems like the Supreme Court is doing a great job.
- DSDavid Sacks
Mm-hmm.
- DFDavid Friedberg
I agree.
- CPChamath Palihapitiya
All nine of them.
- JCJason Calacanis
Mm-hmm.
- CPChamath Palihapitiya
I mean, they really, they really seem to be doing a tremendous job. I give them a lot of credit.
- DFDavid Friedberg
I feel like I've become a conservative. Maybe I'm a conservative now, Sax. I don't know. I, I may have to sit down and confess to you because I read a number of these decisions and I was like, "I agree, I agree." (laughs) And this is supposed to be a conservative court, so I'm not sure. Maybe I am, uh ...
- DSDavid Sacks
Well, it's actually, it's, it's actually, it's not, it's not a-
- CPChamath Palihapitiya
It's an originalist court. It's not a conservative court. This is what I'm saying, like these are-
- DFDavid Friedberg
Yeah.
- 1:00:03 – 1:05:27
SCOTUS to hear case on restricting online porn in Texas
- DSDavid Sacks
- JCJason Calacanis
Okay. Quick hit here, this is an important story for you, Chamath. SCOTUS also agreed to hear a case on the limits of online porn in its next term, which starts in October.
- DFDavid Friedberg
(laughs)
- DSDavid Sacks
(laughs)
- JCJason Calacanis
And the law in question is passed by-
- CPChamath Palihapitiya
Will it, will it impact incognito mode? 'Cause if it does that... (laughs)
- DFDavid Friedberg
You're in trouble.
- JCJason Calacanis
Is this, uh, just ... I think there's a r-
- DFDavid Friedberg
Oh, my gosh.
- JCJason Calacanis
Uh, did you flee to Italy or are you ... (laughs)
- CPChamath Palihapitiya
Could you imagine if they banned incognito mode?
- DFDavid Friedberg
(laughs)
- JCJason Calacanis
I think you might wanna do a deep dive into how incognito incognito mode is. You may wanna get a VPN.
- CPChamath Palihapitiya
I, I, I, I'm pretty sure Texas is gonna ban incognito mode (laughs) in the first place.
- DFDavid Friedberg
Yeah, exactly. Texas, Texas and Florida.
- CPChamath Palihapitiya
I think a couple of these sites, because of the threat ...
- JCJason Calacanis
... of, you know, the s- these laws of age gating, they've just decided to wholesale leave certain states by IP address. Therefore, the sale of VPNs in Texas went up because when you went to certain porn sites it said, "Hey, because of Texas is proposing these laws, we're not going to allow you to visit this website."
- CPChamath Palihapitiya
Nick, do the NBC thing. (instrumental music plays) The more you know. (laughs)
- JCJason Calacanis
The more you know. (laughs) Okay, SCOTUS agreed to hear a case on the limits of online porn in its next term, which starts in October. The law in question was passed by a Texas legislature in 2023, it requires porn sites to verify the age of their users and restrict access for minors. That seems reasonable. Fifth Circuit Court in New Orleans upheld the law, sending it to the Supreme Court. If upheld, users would have to submit personal info (laughs) that verifies they're over 18 to watch porn. The law is opposed by the ACLU and the Free Speech Coalition, which is a trade group representing adult entertainers and companies. They argue it places an undue burden on adults wishing to access constitutionally protected free expression.
- CPChamath Palihapitiya
Oh, speaking of porn and its related businesses-
- JCJason Calacanis
Yep.
- CPChamath Palihapitiya
... the Rick's Cabaret Recession Index is back on. Did you guys see this?
- JCJason Calacanis
Oh. No.
- CPChamath Palihapitiya
It was published on Twitter. So Rick's Cabaret is a collection of public strip clubs.
- JCJason Calacanis
And it includes yours. (laughs)
- CPChamath Palihapitiya
And, and, and what's interesting about the Rick's Cabaret stock price is that it has presaged the last two recessions and whenever the stock dives-
- JCJason Calacanis
Oh.
- CPChamath Palihapitiya
... people, people have said it, it actually predicts an upcoming recession and the stock just, you know, puked up, like, 25 or 30% in the last week.
- JCJason Calacanis
Oh, boy.
- CPChamath Palihapitiya
There it is.
- 1:05:27 – 1:14:33
SCOTUS rules in favor of President Trump in immunity case
- JCJason Calacanis
had a huge victory for Trump in the immunity case. Trump sued in this case based on Special Counsel Jack Smith's prosecution of Trump for alleged attempts to overturn the 2020 election and his role in January 6th. If you don't remember that case, since there's so many cases against Trump, this was, uh, based on Trump pressuring Mike Pence to not certify the election, his phone call to get the 11,780 votes that were missing in Georgia or Giuliani and the Wack Pack trying to fake electorates to overturn the election. Trump argued that he should be immune from prosecution for acts committed while he was president. SCOTUS ruled 6-3 along party lines that former presidents can't face prosecution for actions that related to core powers of their offet, office and-
- CPChamath Palihapitiya
Official, official, official. That was the term they used.
- JCJason Calacanis
Well, no, um, core powers of their office and that all official acts receive at least the broad presumption of immunity. Here's the quote, "Under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute immunity for criminal prosecution for actions within his conclusive and preclusive constitutional authority, and he is entitled to at least presumptive immunity from prosecution for all his official acts." There is no immunity for unofficial acts that would be outside the duty of the presidents. Chief Justice Roberts emphasized that decision... That the decision doesn't necessarily mean presidents are above the law...In her dissenting opinion, Justice Sotomayor wrote that under the new ruling, criminal law can't be applied to presidents even if they misuse their office for personal gain. She wrote that if the president orders the Navy SEAL Team Six to assassinate a political rival, he is now insulated from criminal prosecution. Another quote, "The president is now a king above the law." She closed with this line, "With fear for our democracy, I dissent." Notably this breaks the tradition of closing with, "I respectfully dissent." So Trump's attempts to overturn the election results case now hinges on whether Trump's conduct was private or related to his official duty. For example, the lower courts now have to determine when Trump pressured Pence to not certify the election if that was an official business of being president or not, or when he called Georgia and said, "Hey, can you find me 11,000 votes?" was that official duty or was it outside his duty? President Trump has already cited the immunity ruling in requesting a New York judge throw out his conviction in the hush money case. Sentencing for that was pushed back from July 11th to September because of this ruling. Sachs, there's your run at having-
- CPChamath Palihapitiya
What do you think, Jacob? Well, Jacob, what do you think? This is- I'm really curious what you think.
- JCJason Calacanis
I- I mean, I- I read the ori- the- I'm- I'm halfway through the- the original PDF and I do think the president needs immunity, obviously, for conducting business. And then I do think if they step outside the lines, they should not have immunity, and then the devil will be in the details here and that's what courts and juries exist to do. So when-
- CPChamath Palihapitiya
Right.
- JCJason Calacanis
... he told Mike Pence to not certify the election, he's obviously not doing that as part of his duty as president. When he called Georgia to get the 11,000 votes, he was not doing that. That's why he had outside counsel there. That's why he hired Giuliani and the WAC PAC.
- CPChamath Palihapitiya
What do you think- what do you think of Sotomayor's hypothetical of using SEAL Team Six to kill a political rival?
- JCJason Calacanis
Well, I- that was-
- CPChamath Palihapitiya
Do you think that that's- you think that he would be immune from prose- anybody would be immune from prosecution for that?
- JCJason Calacanis
No. That seemed a little bit hysterical. And actually, that came up in the discussions. I actually listened to the audio version of this when they were doing the- the Q&A basically. Um, and- and I think you listened to it too, Friedberg. We had talked about it. So yeah, I- I think the devil will be in the details here in how they execute it. Obviously, you need to have immunity if you're going to, I don't know, take actions, you know, to assassinate Osama bin Laden, right? Or- or whatever it is. But, you know, it's- it is a- a bit concerning, this concept of being able to shield the president when he asks, I don't know, the attorney general to do something illegal. So these are the details that are gonna need to be worked out here. And obviously, it's a split decision, so the Supreme Court themselves can't agree on this.
- CPChamath Palihapitiya
I think that there's just so much we don't know about what it takes to be the president of the United States. The example that I gave you guys in the group chat is like, look at the whole Iran-Contra affair. How complicated was that? Can any of us really understand what all of the interplay was when Ronald Reagan decides to work around a weapons embargo, sell weapons to Iran, take money, funnel it and fund the Sandinistas? In the middle of all of that, there was a huge cocaine trade that was kind of enabled or supported. I mean, who- h- how do we know? I think there's just a lot of latitude that you give to the one person that you elect to be president, and so maybe it's just a good reminder for all of us that we are electing one person. We cannot be electing five or six people. We're not electing a shadow cabinet. We're electing one person, and this is just a reminder of how much power that one person has.
- JCJason Calacanis
Sachs, do you have thoughts?
- DSDavid Sacks
I think this was an easy decision. All the majority did was codify explicitly what has long been presumed, that presidents enjoy broad immunity for official acts that they undertake in the exercise of their constitutional authority and the duties of their office. It was established decades ago that presidents enjoy broad immunity from civil lawsuits. And so it's already been the case that presidents can't be sued civilly. Well, criminal liability is even harder to prove. So if you have the broad immunity from civil, you should have broad immunity from criminal as well. And the Supreme Court, I think, had never ruled on criminal immunity because they never had to. No former president's ever been subjected to the type of lawfare that's been deployed against Trump, who also happens to be the political opponent of the current president. So I think it's a shame that the Supreme Court has had to rule on this. Did they get every detail right? I don't know. I don't know what it means for the future. However, I know the reason they're doing it, which is we've had this unprecedented lawfare against Trump and that's why they've been forced to do this. So ultimately, I think this is the right decision. No, it does not authorize drone strikes against the president's political enemies. That's insane. It does not make the president above the law or a king. And I think that Roberts in his ruling said that the key things, he said that the dissent's position in the end boils down to ignoring the Constitution's separation of powers and the court's precedent, and instead fearmongers on the base of extreme hypotheticals. And then he says that the dissents overlook the more likely prospect of an executive branch that cannibalizes itself with each successive president free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. I think that's really the key line here is that you're posing all these insane hypotheticals instead of recognizing the practical reality that if you don't give presidents immunity, then the next president's gonna prosecute the old president and future presidents will be hamstrung in doing this very important job that's already difficult enough. So I think that this was just a- a necessary decision. There was no way around it. And the president already has civil immunity, you gotta give him criminal immunity too.
- JCJason Calacanis
Freeberg, your thoughts. I guess the, the steel man on the other side would be, you know, Trump doing things like calling Georgia and asking to find votes, or pressuring the president, the vice president to overturn the election (laughs) results after 60 failed legal cases, you know, is what's concerning the other side. So, do you have a take on it?
- DFDavid Friedberg
I think that the distinction between acting in their executive capacity as President of the United States, versus their personal capacity as an individual candidate or an individual that could benefit through some other means, is a really good distinction. I think how the courts ultimately adjudicate that distinction is what's still ahead. But I do think that the clarity of that distinction is critical. Uh, it seems like the right thing. How this is gonna play out with respect to election interference, does interfering in the election constitute one's role as an executive overseeing the federal election process, or does it constitute one's personal benefits that may arise if one is individually elected, is the key determinant that the lower court will likely have to make. Maybe that gets kicked back up again in the future, if there's a disagreement over the decision that the court does make with regards to that distinction.
- JCJason Calacanis
Where do you stand on that, Sachs? You, in previous episodes, have said you didn't believe in this election interference and you thought Trump lost. Have you changed your position on that, or are you still in that position?
Episode duration: 1:23:05
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