Two executive orders came from the same desk, and the government gave the same defense for both: the challenge came too early, because nothing had happened to anyone yet. The argument lost against the birthright citizenship order, and it has lost every time since. Against the mail voting order, the Supreme Court accepted it and held that the district court never had jurisdiction. The difference was the drafting. The birthright order commands agencies to reach a result: no department or agency shall issue citizenship documents. The mail voting order commands the Postal Service to run a rulemaking, and a rulemaking's outcome has to stay open.

Gwen and Marc trace how that choice of wording decides which body of law tests a policy, when the clock starts, who can get into court, and what a loss actually costs.

In this episode:

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