How Trump is Using the IRS to Resegregate America

Strict Scrutiny

This episode of Strict Scrutiny examines how the Trump administration's proposed IRS regulations could enable racial resegregation in American education, drawing parallels to historical 'segregation

Key takeaways

• The Supreme Court's shadow docket is being used to advance Republican political interests ahead of midterms by allowing coordinated campaign ads at discounted rates.
• Proposed IRS regulations could enable the resegregation of American schools by targeting tax-exempt status for institutions that promote racial integration.

Main topics

• Supreme Court shadow docket rulings
• Campaign finance and political ads

Notable quotes

"I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

Conclusion

The episode warns that current legal and regulatory trends—particularly those involving the IRS and

Transcript preview

Speaker 1 (0:00) Strict Scrutiny is brought to you by Americans United for separation of church and state. It's back to school season, and this year, 5 million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on- Every kid in those schools, 28 families in Texas supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court. And we need you to amplify their voices before the Supreme Court gets its hands on this case. We've already talked about on the podcast how the Fifth Circuit decision allowing this practice was total BS. I mean, it had to liken the Ten Commandments to basically like a poster, almost suggesting, oh, what, you triggered libs? But the reality is there's a human cost of Christian nationalist policies like these Ten Commandments laws, as well as the decisions the Supreme Court hands down. Public schools are supposed to be accessible to all. They're not supposed to be instructing on the state's preferred religion or the state's edited version of scripture. Visit au.org slash 10C to learn more about this case and how you can help join the fight to protect church-state separation. Speaker 6 (1:25) She Speaker 7 (1:27) spoke, not elegantly, but with unmistakable clarity. She said, I ask Speaker 2 (1:35) no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Speaker 3 (1:58) Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I am your host today, Melissa Murray, and the court is still on summer recess, which means that we at Strict Scrutiny are still keeping summer hours, which means that I am delighted to be joined by a fantastic guest host today. So please welcome Rashad Robinson. Hi, Rashad. Hey, Speaker 2 (2:22) Melissa. It's great to be with you. Speaker 3 (2:24) We are in the midst of greatness. Rashad is an expert political strategist, a media advocate, and the former president for the amazing change organization, Color of Change. For over a decade, he designed and executed winning campaigns that shifted corporate behavior, reformed the criminal justice system, and advanced racial equality. And right now, he is on a book tour throughout the United States promoting his recently released book, From Presence to Power. There it is. How to take on the fights that matter. and win. That's the important part. In the book, Rashad argues that visibility and having a seat at the table aren't necessarily sufficient for true social change. They're good to have, but what you need is visibility, a seat at the table, and structural influence. This book provides a practical framework for actually building that Speaker 5 (3:15) kind of structural influence and creating the opportunity for lasting systemic victories. All to say, Speaker 3 (3:22) I cannot think of a better person, Rashad, to join me today to break down this week's legal news and Speaker 5 (3:27) help us think about how we move beyond our current moment, because what a moment it is. Speaker 2 (3:33) Absolutely. Absolutely. So good to be with you. It's so good to do this. Yes. Speaker 5 (3:38) Okay. So here's what I have on tap for today. Rashad. We're going to start with us discussing some legal news, including the Trump administration's plan to use the IRS and tax-exempt status to resegregate American education. Because why not? Make America great again by going back to 1953. After that, we are going to bring our listeners a... fantastic conversation that Kate, Leah, and I had with Nicholas Bowie and Daphna Renan about their new book, Supremacy, How Rule by the Court Replaced Government by the People. The book is out tomorrow, and we cannot recommend it enough. And as always, after that book interview, we will end things by talking about our favorite things. So Rashad, think about some of your favorite things from this week that you want to share with our listeners. But let's get started with the news, because there is a lot of it. Speaker 3 (4:29) So, listeners, we've been covering all of the court's summer shadow docket shenanigans, and this week was no exception. Because on the Friday of Labor Day weekend, exactly the kind of time where you would want to bury a big news item, the Supreme Court decided to release another shadow docket ruling. And predictably, this ruling was another big win for the Republican Party ahead of the midterm elections. Let me set the scene for you. On June 30th, 2026, the Supreme Court issued a decision on its merits docket in a campaign finance dispute called National Republican Senatorial Committee versus FEC. In that case, the court invalidated a campaign finance law that limited coordinated expenditures by political parties on the ground that the challenge law that restricted that kind of coordinated expenditure violated the First Amendment rights of political parties. When that decision was announced, Leah Kate and I said that it would have real impact on campaign spending in the run-up to the midterms. And lo and behold, your favorite Cassandras were absolutely right, because on the Friday before Labor Day weekend, this court decided to issue a shadow docket ruling where it cited its recent decision in NRSC v. FEC. And this particular shadow docket decision concerns the new guidance that the Federal Communications Commission Media Bureau issued in March 2026. So what did that guidance do? Well, traditionally, under federal law, political candidates are guaranteed deeply discounted ad rates in the weeks leading up to an election. But the new guidance that was issued in March 2026 extended those discounted rates to certain party-coordinated ads, not just to individual candidates. And predictably, Democratic candidates across the country took that personally. Four of them, Representative Kristen McDonnell Rivett of Michigan, Senator John Ossoff of Georgia, Sherrod Brown, who is running for a Senate seat in Ohio, and Roy Cooper, who is running for a Senate seat in North Carolina, all joined forces to file suit challenging the new guidance. These Democratic challengers sought expedited review at the Fourth Circuit, which they received, and where they prevailed. The government, with the National Republican Congressional Committee and the National Republican Senatorial Committee as interveners, decided to go to Daddy SCOTUS to ask SCOTUS to please stay. The Fourth Circuit's ruling is so unfair to us. And, shocking nobody, Daddy SCOTUS granted the requested relief, concluding that the Fourth Circuit lacked statutory authority to hear the case because the FCC had not yet issued a decision on the candidate's application for review. Of course, the candidates went to the Fourth Circuit without waiting for a decision from the commission because, one, it's pretty clear what the commission's ruling on its own guidance would be, and two, the election is literally in a couple of months. Time is ticking, and this is a pretty critical question. All to say, the court also determined that the Republican Party committees had demonstrated that if the lower court ruling remained in place, they would suffer irreparable harm because they would not be able to access the more favorable ad rates. Quote, thereby hampering their efforts to reach the electorate in the critical weeks leading up to the midterms. The court, again, citing its June decision, NSRC versus FEC, said that this injury would, quote, implicate the GOP committee's First Amendment rights to speak and coordinate their political activities freely. Because that is really what the First Amendment is for, making sure that ads are deeply discounted for political parties. And again, This is such a big deal, Rashad, and I think it's getting absolutely no play at all. What's the impact of allowing parties and the Republican Party Speaker 5 (8:07) in this particular case, which already enjoys a huge asymmetry in campaign funding right now against the Democratic Party? What's going to happen if they now have the opportunity to coordinate these ads with deeply Speaker 2 (8:19) discounted rates? I mean, it absolutely gets to shape. what is possible, right? So in this current cycle where so much is baked in around who the candidates are and sort of what the race looks like, right, what we're going to see is it creates less opportunity for mistakes on the Democratic side. It, you know, whether or not you can, you know, really hire folks, whether or not you can sort of mount a real effort, the type of range of issues that actually get covered, you know. Similar to what's happening with gerrymandering, this actually sometimes dictates the term of the actual election, whereas like it may feel like, you know, elections will still happen. People will still run for office. But who gets to run? how it's shaped, all gets determined by how much money is in play. And the trick that we've got to really pay attention to is right now we have an election where the Democrats might actually have their win, the wind at their back in some of these places. And we can't sort of take maybe wins that come under these unfair rules for believing that the rules are not actually fair. And that's the biggest mistake that we can have is that like some Democrats win even under these. unfair rules. And we think, okay, well, we figured out how to like, the playing field is level. It's not actually level. And so. You know, one of the things that happens sometimes, oftentimes, when Democrats sort of win in these type of situations is that they don't go back and get the structural reform that they actually need to get. They kind of continue to try to operate in the system to sort of figure out how do we raise money from the corporations that we need? How do we get the big donors? And I was just at a big donor fundraiser that a friend of mine had. I didn't have the money to like, you know. put money behind Speaker 3 (10:05) it. Wait, Speaker 2 (10:05) you're not Speaker 3 (10:05) a Democratic whale? No, Speaker 2 (10:07) no, I'm not a Democratic whale. And it was interesting being sort of at this event where they were asking for 400 and something thousand for the coordinated campaign. And it was a DSCC event. It was for Asif. They were asking for, and then you could max out your 3,500, but you could also go up to 400 and something thousand for the coordinated campaign. And I was just thinking like, who can actually really legitimately participate and engage in ways that are meaningful? I Speaker 3 (10:37) have Speaker 2 (10:37) some ideas. And how many people now get kind of cut out from the process and how many people's voices actually are just outsized as a result? Speaker 3 (10:44) It's such a good point. I mean, one, Obviously, this decision applies to any political party. So if the Democrats, and again, this goes to your point about not reforming the structural and systemic asymmetries, the Democratic Party could be in a situation where it outperforms the Republicans in terms of fundraising, and they are in the driver's seat. And maybe they would want to do these kinds of coordinated ads. So I want to make that clear. I understand that this could apply on both sides. In this particular election, it really doesn't because the Republicans have actually outraised the Democrats by quite a wide margin. So there's a huge campaign finance asymmetry at play here, which surely the Supreme Court recognizes. But the point that you're making, why do we have these asymmetries in the first place? And does this court decision merely exacerbate a playing field where certain voices sound louder and sound in a louder register than others? Like maybe this shouldn't be the state of our politics in the first place. Speaker 2 (11:41) I mean, if the first question is always going to be from the coordinating committee or for the head of the party in the Senate or the House is like, who can raise enough money to be competitive? Not who has the best ideas, not who can galvanize people and engage, but who can raise money? We start to really limit. Speaker 3 (12:02) That's such a great point. This actually puts more hands in the party's central organizing as opposed to individual candidates and makes the importance of the party much more outsized, more so than it already is. Speaker 2 (12:15) And yeah, and what we've seen over the last several years is insurgent candidates exciting younger people, helping to sort of move people who might not be registered to vote to actually register and feel passionate. And if more of the power gets centralized with the party and the party apparatus, that will not be a good thing for democracy. And it certainly won't be a good thing for the type of wave elections that are going to be necessary to truly get to the numbers that are required for us to be able to win structural reform, where we get enough actual seats in the Senate, where we have enough power in the House, where we have enough people on our side. We don't get to that if money really limits the range of debate, but also limit. who can actually run. Speaker 1 (13:12) Strict Scrutiny is brought to you by Cozy Earth. I'm psyched to tell you how much I love Cozy Earth. I change into my Cozy Earth bamboo stretch knit wide leg pants every night at home. No joke. They're my decompression evening comfy wear. It's cooling fabric, but also soothing. I just love it. I remember the first time I felt the fabric. It's an easy stretch, nothing yucky, and it just has this cool comforting feeling to it. And it works in the summer and the winter. Unclear how it can be so temperature versatile, but it is. And as an added bonus, you can try it because it's super low pressure and risk-free. There's a return and exchange window if the fit isn't right, and the pieces are backed by a warranty against manufacturing defects. Head to CozyEarth.com and use my code SCRUTINY for up to 20 % off home and sleepwear. That's code SCRUTINY for up to 20 % off on home and sleepwear. And if you see a post-purchase survey, please be sure to mention that you heard about Cozy Earth right here. This episode is sponsored by BetterHelp. If I could wake up tomorrow and be better at one thing, it would probably be, I don't know, putting things out of my mind, like just being able to compartmentalize stuff so I can chill and relax without having to do everything I can to handle it immediately. If I could choose a second thing, it would be small talk. Not great at it, not good at it, honestly, not even really possible. Better is a feeling, and it's defined by you. And for better help, It's a BetterHelp therapist who really gets you. It's a focus on global emotional well-being with thousands of therapists and millions of members in over 100 countries. It's progress. That could be getting better at handling stress and work or small talk, especially with strangers. Sign up and get 10 % off at betterhelp.com slash strict. That's betterhelp.com slash strict. Speaker 3 (15:03) Let's talk about some other kinds of structural reforms. The president has some ideas about some structural reforms. Actually, they may be like restructuring the entire Constitution in order to allow the president to restructure the election to be completely in the control of the federal government. So on Sunday, September 6th, the Trump administration filed a shadow docket request to have the Supreme Court clear the way for the new U.S. Postal Service rules on the president's executive order relating to quote unquote, election integrity to go forward. Just to refresh you, the court had earlier granted the administration's request to stay a lower court's injunction barring the implementation of the so-called election integrity executive order on the ground that the challenger's claims were not yet right because the USPS had not yet promulgated rules for implementing the EEO's terms. Well, the USPS issued those rules. predictably, and the lower court weighed in. And now this question is back at the court for what will likely be the final showdown on this executive order. The administration's request was referred to Justice Jackson, who is the circuit justice for the First Circuit where this case arose. And Justice Jackson set a speedy timeline for this, requiring responses on the petition on Wednesday, September 9th. We are taping on Thursday, September 10th, and it's likely. that we will get some kind of decision here. So we're still watching for that. And maybe we'll break in at some point later in this taping, Rashad, to have some breaking news on that front. But regardless of the court's decision here, the fact that this has dragged on for so long and has been such a back and forth between various courts Speaker 5 (16:45) and the Supreme Court. This has surely unsettled some voters who might be inclined to vote by mail, who may have to vote by mail because they have jobs or they're away or whatever. Are there going to be real impacts, regardless of how this turns out, on voter turnout, on the Democratic Party's ability to turn out its voters? And if you were on the ground in many of these states that are in the crosshairs, so these are all the purple states that may be swing states for this president, what do you do to galvanize voters in this moment where everything seems so unsettled and there's so much chaos? Speaker 2 (17:20) I think first you have to tell a really clear story to the people you're reaching about why there's so many attempts at making it harder for you to vote and what these folks' goals are, what's behind it. I think you're going to have to pick a really clear and have a really clear answer for people that may have to change. Speaker 3 (17:40) Is fascism a very clear message? No, people don't Speaker 2 (17:43) understand that. People don't understand fascism. People don't understand what it means. It actually has to get way more specific. We have to get it down to like, kitchen table issues, in my opinion, that, you know, Donald Trump Speaker 3 (17:58) wants to prosecute a war with Iran and your gas prices are going up and they want to allow that to continue happening. Speaker 2 (18:04) Absolutely. For the people that fascism works, they're already going to be paying attention and they're already going to be with us. For the people that this is going to be one more thing that makes it confusing and they may throw up their hands, it's one more sort of step in the process. You know, Alyssa, I... been dealing with this for a while because, you know, back in 2020, you know, when Vanita Gupta, Sherilyn Ifill, and I, the three of us in our organizations had won a lot of rule changes at Facebook in terms of how election disinformation and census disinformation would be handled on the platform. Donald Trump went on Facebook and sort of launched into a whole tirade about vote by mail being illegal. And Mark Zuckerberg. Even Speaker 3 (18:52) though he votes by mail. Speaker 2 (18:53) Even though he votes by mail. And Mark Zuckerberg did not pull down those posts, even though we had set these policies. And they kind of like had this sort of Trump exemption. They had all these policies, but anytime Trump violated them, whether it was something around like, you know, the looters and shooters posts he did around the Ferguson's activists, when the looting starts, the shooting starts, all of these like violations of the policies. And I remember being in this meeting with Mark. in Sherilyn and Vanita that I talk about in the book, where Mark was trying to explain that like vote by mail was under contention and maybe not actually legal to Sherilyn, who was like, you know, you don't get to tell me about how voting actually works. Yeah, Speaker 3 (19:34) I said like, Sherilyn Ifill is a lawyer and a litigator for many years. Mark Zuckerberg Speaker 2 (19:40) made a great app. He made a great app and he didn't actually finish his undergrad. And, um... And there's like, and there's, he didn't go to law school. And I was, as the non-lawyer in the room, you know, very much trying to sort of just, you know, back up how it would be sort of how it would implicate on the ground. But they, but Mark also votes by mail. And we see all of these folks, right, that he doesn't show up to his local, the local school down the street in Palo Alto to vote. And so we ended up in this, in these roundabout conversations. Voting Speaker 3 (20:14) at a Speaker 2 (20:14) school sounds poor. I just want to say. Yes, yes, Speaker 3 (20:17) yes, yes. Not for mega donors like him. And Speaker 2 (20:19) also saying you're going to fund a school and then not actually funding it. Oh, shade. Right? I mean, it's what happened. Mega donor shade. It's what happened. And so I say all to say that this level of mis- and disinformation and confusion around vote by mail, something that has like, that people have done for decades, it's just, it has happened. And it has worked. And it is a process. And it is used by rich people and people with a lot of power. Well, it Speaker 3 (20:51) used to be used by Republicans. This was for military voters who are abroad. You Speaker 2 (20:57) know, once again, when the rules don't favor them, they change the rules, whether they're actually trying to reach the voters and engage the voters. And so this is a problem that there's so much. sort of uncertainty around how you can vote and where you can vote and the process. And it will put one more extra burden on already taxed organizers in an environment where we are sort of under the gun. But also these attempts are happening because they know that they are behind. They know that they are on the ropes. They know that they're not going to be able to win if they don't, you know. go on TV and promise people $5,000 or something crazy. And so that is what we are seeing. We are seeing the behaviors and the antics of people who are losing and don't actually have a legitimate strategy to reach voters to win. Speaker 3 (21:56) Well, the point about the chaos, I think, being the point, I think is a very good one because like where there is chaos, where there is confusion, people aren't going to go out. I mean, it's already hard, I think, to vote. Like people were like, what do you mean it's hard to vote? It actually is really hard to vote. Figuring out your precinct and then your precinct's moved and this, that, and the other. And then you, you know, they make it hard, right? Like we don't have a national day for voting. Other systems do. They make it hard. This kind of chaos makes it even more difficult to sort of. figure out what's going on and to exercise your right to vote. Where I think this chaos is even more pronounced is in the show-me state, Missouri. So get ready. This one is a doozy, Rashad. So in other election-related news, listeners, there is some shit going on in Missouri, and it involves our friend Coach Kavanaugh. And I don't even think it's his fault. That's the best part. For once, it may not be Brett Kavanaugh's fault. Listeners, you know that the president has this whole scheme to maintain control of Congress and keep Republican control of the House of Representatives because impeachment. And that scheme involves doing a little totally normal, not at all unprecedented or unorthodox mid-cycle redistricting. Well. The GOP and Missouri were all on board to give Daddy Trump exactly what he wanted, a new congressional map for Missouri that eliminated one Democratic congressional seat. And on Speaker 5 (23:24) September 3rd, when this map was challenged all the way up to the Missouri Supreme Court on a range of issues, including... The Missouri GOP Secretary of State's refusal to put a ballot referendum on the ballot