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- [00:01]
Sarah Isgur
You ready?
- [00:02]
Will Bode
I was born ready.
- [00:19]
Sarah Isgur
Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And we are going to do a little oral argument talk for one of Wednesday's arguments about IQ testing and the death penalty, as well as a really wonderful conversation between Professor Mortensen of the University of Michigan and Professor Bode of the University of Chicago on formalism, functionalism, and everything in between when it comes to the structural constitution and these cases that the Supreme Court has this term. So hold on to your hats, cats and kittens. Here we go. Kids, they grow up so fast. One day they're taking their first steps and the next they don't fit into the tiny sneakers they took them in. You blink your eyes and their princess dress is two sizes too small. And their dinosaur backpack isn't cool anymore. But don't cry because they're growing up. Smile because you can profit off of it. For real. There are a bunch of parents on depop looking for the stuff your kid just grew out of. Download depop to start selling, Toast the holidays in a new way and raise a glass of Rumchata, a delicious creamy blend of horchata with rum. Enjoy it over ice or in your coffee. Rumchata. Your holiday cocktails just got sweeter. Tap or click the banner for more. Drink responsibly. Caribbean rum with real dairy cream, natural and artificial flavors. Alcohol 13.75% by volume 27.5 proof. Copyright 2025 Agave Loc Brands, Pojoaquee, Wisconsin. All rights reserved. David, before we start, I just want to have a disclaimer that we are on our way to celebrate Hanukkah this afternoon. And that means that all through this podcast and all through the day, there is a brisket smoking right outside my window. And so if I seem distracted at any point, it's that sweet, sweet smell of meat candy that is wafting through.
- [02:19]
David French
And I have had brisket that husband of the pod has nursed into its full brisket health. And I'm telling you, y' all don't play. Y' all don't play.
- [02:31]
Sarah Isgur
This is going to be about a 20 hour smoke. It's an 8 1/2 pounder, trimmed up nicely. So, yeah, I have, I have very high hopes. And David, I got to tell you, I kind of need the brisket because it's been a brutal weekend, really hard between Brown University, the Bondi beach shooting in Australia, just, I don't know, maybe it's the weather, difficult friendships, you know, I just, I'm not in the holiday spirit right now.
- [03:05]
David French
It's hard. I mean, it's hard. You know, you. You go to bed following the news about Brown, which, by the way, followed right on the heels of news of an ambush in Syria where two American soldiers and an interpreter are killed. So then you have the news about Brown. Then you wake up the next morning and you have the news about Bondi Beach. And then when you go to bed that night, you have the news about Rob Reiner and his wife. And I mean, all just loss upon loss upon loss and loss due to horrific evil. And in the case of Rob Reiner, his wife, just addiction. I believe his son has now been arrested. I mean, just. It's just beyond sad. It has been a very, very, very rough weekend and what feels like a really rough year.
- [03:53]
Sarah Isgur
Sarah, I am ready to put my phone down this year. As soon as we declare it a holiday around here, I'm gonna put my phone down for as long as I can. And, David, it just really does make me appreciate. I know this sounds truly trite. This season, I feel very appreciative for health. Again, as sort of trite as that sounds. There are people who deal with health issues every single day. And the fact that I had a cold for a long time is the most minor of windows into that. And so to be grateful for one's health and one's family's health is huge. And, David, truly, I mean this. To be grateful for the important friendships, and you are one of my most important friends, and I am so grateful for you.
- [04:43]
David French
Well, I'm grateful for our friendship. I'm grateful for the community around, you know, the really cool community around this podcast. I had a fun moment, and on Sunday, I was at church, and somebody from behind me says, I recognize that voice. And I said, oh, you must listen to the greatest legal podcast in human history. And which I then always follow up by saying, I'm not bragging. It's because of Sarah. And they said, absolutely, absolutely. And immediately you just strike up a conversation with somebody. And in a weird way, you know, it feels more familiar almost instantly because we do have a really special community here, and we're grateful for you guys. Grateful that you listen. And it's just a joy doing this. It really is.
- [05:32]
Sarah Isgur
Before we get to Ham vs. Smith, by the way, speaking of our amazing community, I had two emails that I wanted to share with the group, if you will. The first is about our conversation about what lawyers should be thinking about this time of year and what they can give back to their communities, whether it's money or time as a lawyer to really help with access to justice. And here was one of our non lawyer listeners. When my wife and I were in the process of adopting our daughter, we were matched with a pregnant young lady with the help of Catholic charities. She was a minor and the biological father was a minor as well. When we went to court, we found out what a guardian ad litem was. And we also found out that we needed five attorneys, one for us, one for our soon to be daughter, and three guardians ad litem. We started our adoption journey after many rounds of IVF loss and medical expenses. So finding out that we would be getting billed for five lawyers was a little disheartening. As we got to the end of the process and we got our final invoice, we also got a note that the lawyers had significantly reduced their fees to the point that from my estimation, we were only billed about 20% of what we should have been charged. All the legal bills were sent to us through our adoption agency, so we were not able to thank the attorneys properly. In the grand scheme of things, it wasn't a large amount of money, but for us it was huge and it helped us start our second adoption sooner than we were planning. And he sent us the picture of these two little girls, which, first of all, I love being a boy mom. But if there is one downside to being a boy mom, it's the cute hairdos, the bows in the hair, the adorable jumpers. And the one is just wearing this like brick colored little jumper with the little floral print shirt underneath and the tights and the boots and the other one's in like a little jean dress and there's curls everywhere and wow. And that's the difference that lawyers can make when they volunteer or heavily discount their time. And I loved that email said, thank you for sending it. Number two, David, we defamed someone on this podcast.
- [07:33]
David French
Uh oh, I'm very against defamation. So I'm very interested as to who we defamed here.
- [07:39]
Sarah Isgur
We defamed William Howard Taft as a fat president.
- [07:44]
David French
Oh no.
- [07:45]
Sarah Isgur
Well, it's true, but it's not the end of Taft's story. Taft lost 70 pounds and became relatively fit when he was chief justice. One listener writes, the public perception of Taft reminds me of Ebenezer Scrooge. People remember his earlier version as a rude, cantankerous miser and forget his later transformed self as a humble, generous soul like Scrooge. What is most important is where Taft ended, not where he started. Taft shows a physical parallel to Scrooge's transformation. After leaving the presidency in 1909, Taft found a doctor who put him on what we would call today a keto diet. He also started walking a lot when he was Chief Justice. He generally walked each day about three and a half miles from his home in northwest D.C. in the Kalorama neighborhood, all the way to the Supreme Court. Still, at that time, at the old Senate chambers at the US Capitol, you can find descriptions online of his fitness routine with photos of him on his long stroll wearing a straw hat and walking with a cane. Taft was like the Amul Thapar of our day, an important judge who also worked on physical fitness and healthy eating. Advisory opinions is so good at restoring right thinking about so many things. Let that legacy include declaring clearly that William Howard Taft transformed from a fat president to a judicial fitness icon.
- [09:04]
David French
I love that. I like that comparison to Ebenezer Scrooge, where you end up versus where you start. I. I think that's absolutely fantastic. I love that email.
- [09:15]
Sarah Isgur
I will tell you, David, I found it a bit convicting. Like, I know that Taft does not care what we said about him, but I kind of care that I've been getting that wrong the whole time because I do think that matters that he changed as a person and took that all seriously and that none of us have been talking about that and I didn't even know it. And here I have been making little, you know, snide remarks. So I'm really glad for that email. And I think, you know, the Charles Dickens had an important moral tale for us all. Not just for the Scrooges, but for people writing off other people, as so many people did in A Christmas Carol. They wrote off Ebenezer Scrooge as beyond hope. So it's both ways. Don't give up on yourself. You can always change, but also don't give up on other people. All right, let's talk about Hamve, United States. So this is a death penalty case. Smith is the one convicted and on death row. He has taken five separate IQ tests over a span of almost 40 years. They have ranged from 72 points up to 78 points. And the Supreme Court in Atkins v. Virginia has held that an IQ score of below 70 points would qualify as so intellectually disabled as to be ineligible for the death penalty. Well, not only, of course, do IQ tests have a range. As we've seen, this person took them five times, 72 to 78. But also individual IQ tests have a margin of error of about three points. So when he tested at 72. That range could have included an IQ score of 69. And so the question for the court is, what do we do with five IQ tests? Are we supposed to average them and then add the margin of error? Do we just take the lowest one? This case, by the way, has been up and down. This case currently holds the record for most number of relists. It was relisted 23 times and then sent back down to the 11th Circuit. This is now back up after that. David. So here we are. I will tell you, David, I went into this oral argument thinking this was a pretty easy case. You have five IQ scores, they're all above 70. I get that one of them, if you then take the margin of error, gets you to 69. But what are we doing here, folks? This is a lot of resources going into this, especially when we think about the fact that someone taking that IQ test has every incentive to get as low a score as possible. It is one of the only cases I can think of where the oral argument actually changed my opinion on the case. I left believing that IQ tests are themselves kind of silly. Like, what is this IQ test? That feels very progressive era to me. And in fact, I believe IQ tests are mostly a progressive era thing. I hate the progressive era. This is how you get eugenics. And maybe IQ tests can be helpful for assessing someone's intellectual capacity to understand right from wrong. But that sort of using this very, I don't know, formalist approach or something, where, like, if you score under 70, we don't put you to death, and therefore all of this turns around. Whether you score 70 or above is just all the wrong way to do this. It should instead be a holistic assessment of whether this person is so profoundly intellectually disabled as to not be able to appreciate now their punishment. By the way, there's a different test for when you committed the crime. This is actually like if you, for instance, were totally, you know, a brilliant person when you fatally killed someone, got the death penalty, then later have a stroke, that leaves you intellectually disabled, you still cannot be put to death. So, like, this does not just apply to the time of the crime. That has to be a holistic review. And I get that. Like, we don't want an arbitrary application of the death penalty based on different judges applying different standards. We should have standards that judges use. But I decided, no, I don't want to live in a world where we like average IQ tests. So I went in thinking this was an easy case, he should be eligible for the death penalty. And I left Thinking, nope, you should be able to look at other stuff. And the judge in this case said these IQ tests are basically inconclusive because some of them could fall below the range. Therefore, I'm going to look at other stuff. I'm looking at the other stuff. I think he is intellectually disabled and not eligible for the death penalty. That's a fact finding exercise that I do not get to engage in. So it's not that I'm saying I agree with that fact finding. I'm saying I think that fact finding is the correct process and defer to that fact finding.
- [14:18]
David French
Yeah, I'm exactly with you on this, Sarah. And a lot of the argument was centering around how do you interpret this 2002 case, Atkins versus Virginia. And it talked about clinical definitions here require not only sub average intellectual functioning, but also significant limitations and adaptive skills. And so you had this discussion throughout the oral argument of adaptive skills. But I found that it was interesting that Atkins says sub average intellectual functioning with significant limitations and adaptive skills, which is a little bit different than 70 IQ, which is profoundly sub average. I mean very, very sub average. And sort of they were treating that as like a magical number. You know, that the 70 number is kind of a magical number. But then as the oral argument progressed and you began to. They talked through that Atkins framework. I agree with you completely, Sarah, that treating the IQ number as a kind of a magic number is just a fundamentally flawed approach. There has to be an additional kind of inquiry that is much more holistic. And they did have some pretty interesting. What if you had tests where it was 85 98,590 69 with that? That's a very. Then you can sort of say, well, one is a giant outlier here.
- [15:46]
Sarah Isgur
And that's part of what like made flipped my mind is that actually that was meant to show like how we should use these IQ tests. And instead I was like, actually, I absolutely believe that could happen. And I absolutely think in that case that's proof that you do a more holistic review. So then you need to look at other evidence of whether this person is able to again appreciate the punishment at issue. There's a principle behind the IQ question. We need to apply the principle, not just all of the sort of doctrines that we built as little like crystals around the principle. And I mean, maybe, David, I'm sort of coming around to just like stripping out some of these judicially created doctrines that I think have proven sclerotic over time. And then you start applying them and applying these doctrines that have Been like, so stagnant. Start to realize, like, wait, wait, what is this doctrine actually about? We need to go back to the principle.
- [16:45]
David French
Well, and I like the way you pinpointed these IQ tests as sort of part of the legacy of the technocratic faith in social science. Right. And, and this sort of idea that we can, with scientific precision, apply a test and then figure out who is mentally disabled and who is not mentally disabled. I think we're kind of past that, that we now look back at that and say, well, that was naive. That was, human beings are not that simple. We're not susceptible to that kind of cut and dried sort of test. We were much more complicated. And I think that you're exactly right to point that out. As far as counting to five on this, it's very hard for me to count to five on any particular sort of test, but it feels like it's easy for me to count to five on. There's going to be a holistic approach here.
- [17:42]
Sarah Isgur
So Justice Kagan offered a test. If you have one score that brings you into the 70 minus range. So basically a score of 72 or lower, that's enough so that you have to open the door to a person's evidence regarding their adaptive function. I like that. It's sort of a combo, David. Like, yes, the IQ tests, you know, to your point, if you have all 120 on your IQ test, we're not going to then listen to your evidence on adaptive function. But you know, if you're going to take five IQ tests and one of them puts you in that range, then like, yeah, we probably should listen to what else you have. But if your other IQ tests were 85, 90, then probably that evidence isn't going to be very persuasive because I'm going to ask how you were getting 85s and 90s. It's going to cut both waves. But as long as you get one that's in that range, then that's the triggering point, not the end point, if you will. It seemed like Justice Kavanaugh was kind of open to that. I wouldn't be surprised if Justice Barrett were open to it as well, as she wrote in her book. Right. She is morally opposed to the death penalty. So I would think should be pretty open to sort of a more humanistic and holistic approach to it as well. But I should mention Justice Gorsuch's test that states should have a little leeway to determine whether a defendant has substantial sub average intellectual function as long as they don't treat A single score in the low 70s as decisive and as long as they do not use facts extraneous to IQ scores to outweigh a low score. That's sort of on the other side of the ledger probably. But again, you have Justice Gorsuch. He's our Mr. Lenity guy now in death penalty. That has not been the case for Gorsuch. He has not been Mr. Lenity on death penalty. But I could see in this case when we're talking about a tie, which we basically are, that lenity kind of comes again. I don't mean literal the doctrine of lenity in the legal sense, but the again, philosophy of lenity. When there's a tie, it doesn't go to the government. Okay, David, when we come back, we are going to have a nice meaty deep dive into this court's term, the structural constitution with two professors who have thought so much about this. Professor Julian Davis Mortensen of the University of Michigan, Professor Will Bode of the University of Chicago. Very different perspectives on that like x axis if you will, David, on sort of judicial ideology. But let's see if we can't find some common ground on, I don't know, some originalism, non delegation doctrine. Who knows, let's see where we go. The best way to spread holiday cheer. Sure, singing works, but gifting an aura frame might be even better. It's the gift that keeps fitting families feeling close no matter how far apart they are. This year I'm trying to convince my sister in law to come hang out with us for Christmas. 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Try gusto today@gusto.com advisory and get three months free when you run your first payroll. That's three months of free payroll@gusto.com advisory one more time. Dusto.com advisory all right, let's hop right in. We've got Professor Will Bode from the University of Chicago and Professor Julian Davis Mortensen. Professor Bode, you have been doing this recurring thing with the New York Times where you and some other law professors have just like a conversation like what you're thinking about on some piece of Supreme Court news. And this one thing you said struck me as y' all were talking. You said, the thing that most concerns me is the risk that the court won't take its own formalistic principles as seriously when it comes to restraining executive power. The jury is still out on that and the tariff case will be an important data point. But Trump, the United States was a very bad sign. This was the criminal immunity case. I'd rather have a non originalist court than a court that uses originalism to help the president win cases and then finds excuses not to use it against him. Will you unpack that for us? Because there's a lot of wisdom and thoughtfulness, I think, in there that doesn't fall easily along anyone's sort of stereotype on the legal ideological framework.
- [25:07]
Will Bode
Yeah, well, this is obviously one of my least popular bits because some people don't like the part where I suggest that the court might be capable of being principled at all, and other people don't like the part where I suggest that it's not all roses and James Madison pictures from here to the end of the US Reports. But let me just put two pieces of that to unpack it. So one is this came up in the context of the case the court heard an argument on last week, Trump vs. Slaughter, the latest unitary executive case, which to my mind is one of the least troubling cases that the Supreme Court is hearing right now by the Trump administration. Which is not to say that it's an easy case. As I also said in that thing, if you time traveled me back to the debates about 1789, I don't know whether I would agree with James Madison or not. And my son also warns me that time travel in the past is dangerous because you create all those paradoxes in Back to the Future. So I probably wouldn't do it. But so it's not that I think it's an easy question, but it's like it's a normal question. It's the question we've already had in PCAOB and Saylor Law and Collins. And here we go again. Unlike the National Guard question or the question of whether the president has unbounded tariff authority sort of in the mouse hole of the, you know, IEEPA statute, or whether the president will even obey court orders at all, or whether government officials can be held in contempt if they don't like those. Those are all like big questions that we're taking seriously now for the first time in a while. And I am not confident that we are getting the right answers on those questions. So it sort of bothers me that but it bothers me we're spending all our time worrying about the unitary executive, but also that it bothers me to think that the court might well do something sort of orthodox and fine in Trump vs. Slaughter. But that won't be the real question. The real question. And I guess the other piece of this is just as Gorsuch sort of did this bit during the argument where he said, you know, and I think this is in response to something maybe Justice Barrett had suggested. First, if we make independent agencies not independent anymore by sort of completing the unitary executive move, at least for principal officers, does that put even greater pressure on the question of, well, what kind of limits on executive power are there supposed to be? Congress thought legislative vetoes, but the Court struck those down in Chadha and we thought maybe for cause removal, the Court's gonna strike those down to Trump versus Slaughter. What then? And for Justice Gorsuch, the answer was the non delegation doctrine now must come and solve all our problems. I'm sure that Julian will disagree with that one a lot for reasons he's very eloquently put forward. But something, and that's sort of my worry is like, what's the something?
- [27:43]
Sarah Isgur
I really hate it when I have a thought and it's really bothering me and keeping me up at night and then you articulate it instead of me being able to articulate it. Professor Mortensen, you though this isn't some new thought to you that's keeping you up at night because you have a very different view of the project that the Court has been undertaking. And I want to read one of your tweets, which is what started the idea for this whole conversation to begin with. History of Unitary Executive theory. Step one, formal logic requires you, a principled legal movement, to override centuries of functionalist traditional. Step two, functionalism requires you, a sensible legal movement, to create exceptions to the formal logic of step one. Why don't you expand on that a little? Because I think the Willbode like oh, and the Julian Davis Mortensen, yeah, duh, are actually kind of the same thing in a way.
- [28:46]
Julian Davis Mortensen
They are, but I think they push and cut in different directions for me. I could try to elegantly stitch them together so that they're either the same or mirror images of one another. But let me instead just sort of try to say what I'm thinking of and meaning by that observation and then you or David can pull the rabbit out of the hat and create the synthesis from our two thoughts. We had a system of government for hundreds of years in the States and in the federal system in which there were lots of tenure protected officers and in which there were lots of arguments about whether a given officer should be protected and where especially early on there were arguments about whether The Constitution had something to say about that. But like the lived thick political reality that we had developed over time was a fundamentally functionalist approach. I mean, avowedly functionalist. It's the shaggy functionalism that to great effect, especially on young law school. Julian, I'll tell you, Justice Scalia, like, beats the majority about the head with in his Morrison dissent. What do you mean, enough? The question isn't, is there enough control? He needs to control all of the executive power. And, you know, it's not perfect. But guess what? Lots of stuff isn't perfect that's called living and existing and emerging and evolving. And I may as well put on the table now because it almost becomes awkward at some point not to observe the meta principle. I think of myself as a Burkean, and I think of myself as somebody committed to the idea of continuous two things. Because Burke kind of has two ideas, only two. He had no more. One of them was like this metaphysical idea of the right, the Constitution in the small c sense, the amassed practices, political and legal, of the English legal system as being an inheritance, but an inheritance that you are morally obliged to pass on. You cared for it. I mean, there's some resonance with Jefferson's idea of yussufruch, but like, you don't deserve to have been born here. You happen to have been born here. It's a gift with the gift becomes obligations. You must care for it, you must water the garden, and you must leave it, ideally in a better state, but certainly in no worse state, to the extent that you can for the next people up and like, deeply committed to this idea. That's the first idea. And the second idea is as part of that, do not prioritize your beautiful ideas French revolutionaries, over the lived experience of your country's past. Things may not go well. And this is an old idea in English thought the well, for some people, infamous. I actually like his work. Matthew Hale talks about this at some extent in his commentaries on Hobbes a century before. My answer to this is really grounded in how I think about not only the law, but also the world. And we had a system. The system was complicated, it was imperfect, it was shaggy. It required judgment calls. It required avoiding, firmly deciding exactly where the lines were. But we kind of felt them. Even if people like Jimmy Carter might have said, hey, I really want to explore putting a removal limitation on the Attorney General, allegedly the quintessential, or perhaps the quintessential person of example of somebody who couldn't be tenure protected. And then Justice Scalia gets really cross about that and has a bunch of arguments about how that is at odds with his beautiful theory of mostly the executive power clause. And that becomes a justification to tear it down in a very kind of somewhat step by step executed Robertsian way. But we've moved from the functionally oriented world that dominated the reality of American politics and political practice, including what the courts were doing at state and federal levels for most of the country's existence and have like chucked that are in the process of chucking that out. I mean, you know, depending on how you read sale, I have already chucked it out in favor of a theory that's grounded in three words, maybe five words, and is highly contestable as a factual matter. We haven't even gotten to originalism yet. So that's step one and then step two. Gosh, I'm going on too long and I apologize. Step two is okay, we won, we marshaled the troops, we hit the bar. Not every old rule can stay even if you're a Burkean. And I don't think modern Norwegian listeners in any way, shape or form Burkean. We hit the bar, we cleared it, we made the case for change of the way we've been doing things and we did it skillfully within the context of plausible sounding law talk. And we've got our new the baseline is the President can remove anybody holds executive power with some exceptions. And then we start explaining the exceptions and it turns out the exact same inexorable logic that Scalia has articulated in his Morrison dissent applies perfectly. Again, there's problems with this argument, but if you accept his argument, it applies to ALJs, it applies to the civil service, it definitely applies to the Fed. And now we're going to say, well let's talk about ways in which actually the theory can be mitigated in reference to long standing institutions or to like random non particularly salient differences between institutions. It reminds me a little bit of the non delegation debate in the in the law review articles, but it's like judges doing it. And so I do apologize for going on too long. That tweet meant to encapsulate a pretty long complicated argument. I'm sure I've said stuff in there that I haven't gotten quite right and that I know that Will would disagree with. And you may as well but that's my for me that's the thought. The reason to tear it all up was principle. But then we won. We hold the mountain. Now we're going to do what you were doing. And we never really meant it about principle and that's, you know, there are better and worse ways to react to frustrating, but that's frustrating.
- [34:42]
Will Bode
Can I ask just a clarifying question about this? When is the Scalia moment in this story? Like when did we overrule Morrison versus when is the moment we overruled Morrison versus Olson and we are now unprincipled tacking back on that because the story is told as if Scalia won and now we're not carrying Scalia through. So is Sayla Law the kind of Scalia moment or is it?
- [35:03]
Julian Davis Mortensen
Yes. For me, Sayla law is the moment where emphasizing one strand of Myers as what the executive power is fundamentally about and everything else is a presumptively incorrect derogation for that that has to be specially pled for. Yeah.
- [35:19]
Sarah Isgur
David, Merry Christmas. I brought you two Burkeans to argue and for you to get to ask all your questions about originalism and liberal versus conservative. Although I'm forming my own definition of what I am and I think, I don't know, this has been a long evolution to come up with my own title. David, I don't know if you have a title for yourself of what you are. I think I'm like a Burkean textualist. But anyway, Merry Christmas. Please unwrap your present.
- [35:49]
David French
Yeah. So I have a question for each of you and I'll start with Professor Bode. And I'm really picking up what you're laying down about some of my concerns. And the way I put it when I wrote about this is I was reminded of the old ABC Wide World of Sports show that began with the thrill of victory and the agony of defeat. And the agony of defeat was a super memorable like ski jumper just crashing out, great show, eyes glued to it every every week. But I've rarely seen or listened to an argument where my feelings about the outcome depended on the outcomes of other cases. So I've described it as here's the agony of defeat is that they give more power to the President over the executive branch and then through the birthright citizenship case and or the tariffs case, they concentrate more power in the executive branch. So you have a more powerful executive branch with the President having more power over that more powerful executive branch. And to me that's a nightmare scenario. I'm very worried about that. The thrill of victory, however, is you give the President more power of the executive branch in the name of political accountability over the executive branch, but you also make the executive branch less powerful in the along the lines that Gorsuch insinuated in the oral argument, I was really sort of picking up what Gorsuch was laying down there. And so would you agree with that formulation that one of these is, if not, I mean, maybe you're not going to go as far as, say, the thrill of victory may be preferable to the status quo legally, and then the other one, I suspect you would say with a. The president having more power over a much more powerful executive branch would be, would be a, you know, would be a scenario that you would also just utterly reject.
- [37:54]
Will Bode
Yeah, basically, yes. I mean, and I guess for me this also goes into those sort of the methodological debates Julian was talking about is, you know, I am quite sympathetic to formalism, even formalism that leads us to overturn, you know, long standing practices, because.
- [38:09]
Sarah Isgur
Can you give a definition of formalism?
- [38:12]
Will Bode
Let's say it's, let's say formalism is caring more about things like what is the logic and meaning of the words enacted by the Constitution, Even if it's not what we've been doing and even if it's. We're not sure it would be the best idea. So all things considered, because it's required by our fundamental law and we're supposed to follow our fundamental law and, and maybe it's just to follow our fundamental law without worrying too much about it. And functionalism is doing all the worrying about it. And those are two eternal traditions and legal interpretation.
- [38:38]
Sarah Isgur
Yeah. Is it fair to. On this podcast, I've described sort of this Y axis of institutionalism for the court, like the X axis is your ideological axis and the Y axis is my YOLO axis. The order muppets to the chaos muppets. And that maybe formalism is the chaos muppet. You just do what it says and you don't care about the consequences.
- [38:58]
Will Bode
And this is maybe part of the whiplash problem. I think there are times formalism is the chaos muppanaxis when formalism is being used as a reason to tear down this doctrine. That makes no sense because Justice Scalia's descent in Morrison vs. Olson is just a great dissent and gets greater every year, as Justice Kagan liked to say. But sometimes formalism is the order muppet axis, like when in the substantive due process cases where Justice Scalia was like, were opening Pandora's box, we're recognizing new rights. He was order muppet. Right. And evolving standards of decency was chaos muppet. So I think what it correlates to depends in part on what the formalist believes the formal text actually requires and how out of step it is. With current doctrine. Sometimes, if current doctrine is consistent with formalism, then those now might be the orderly one.
- [39:45]
Julian Davis Mortensen
One additional thought about formalism is saying it's a yes and to Will, not a disagreement. Formalism doesn't require text that I'm confident that Will wouldn't disagree with this. Right? There's relatively more formalist and relatively less formalist approaches to common law. Famously, the rise of legal realism is targeted principally at the inadequate wooden formalism of the categories used at common law to resolve problems, where instead of thinking hard about once you have a bucket and there are rules that apply to that bucket, if you put something in the bucket, those rules happen, period. And so it's text is absolutely one way to get to formalism. But formalism, I think also has to do with like an attraction to a world where there are buckets that resolve problems. And we're reluctant to second guess the buckets for a variety of reasons, including sometimes that they're written.
- [40:34]
Will Bode
I was once in an oral argument where a judge I love asked the advocates something and said, but logically, shouldn't we do X? And the attorney just sort of stared at him and said, but, you, Honor, the cases say blah, blah, blah, blah, blah. I know, but just not the cases. But just for a second, what about logic? And the attorney said, you, Honor, I don't know anything about logic. I just know the cases. Which was probably true and a totally fair response in some sense. But the what about logic answer is the formalist answer. And your Honor, I just do the cases is a kind of Burkian, often more functional stancer.
- [41:12]
Sarah Isgur
Professor Morten said, what about David's thrill of victory option, which is, you know, David, I'm sort of thinking of yours visually. Like we are here on the map in the middle and there's the one side which, as you said, is a more powerful president with a more powerful presidency. Disaster. All four people on this podcast think that is a disaster with no holds barred, I don't think. And then on the other side, as you said, there's a president with more power in the executive branch, but a far less powerful executive branch, a far less powerful presidency because of major questions, doctrine and non delegation doctrine. And Professor Mortensen, we are getting to what I have been anticipating now since we talked about doing this podcast. Tell me why that's bad.
- [42:02]
Julian Davis Mortensen
The reason to adopt a non delegation doctrine is functionalist and functionalist to its core. The formalist textual arguments simply fail. Or rather they fail. If you're interested in how the concept structure worked at the relevant time for originalists. And that's kind of like a fussy objection. Like, I don't know, they're going to do what they're going to do and it's going to aggravate me and all right, I'll be aggravated.
- [42:29]
Sarah Isgur
No, but I take your point that it's also. Hypocritical is the wrong word, but contradictory, I guess. Internally contradictory.
- [42:34]
Julian Davis Mortensen
Profoundly internally contradictory. And giving sustenance to a view that. And you guys would know this, I think, I hope Will knows it to some extent that I fought for a long time, which is something approaching all conservative legal people are hypocritical and are just doing it to achieve policy goals that they want. And I spend a lot of time fighting that with colleagues. I've spent a lot of time trying to unpack that in a more gentle way with students because I try not to fight with students. Like open pedagogy, helping people see the way other people see things. I'm no hero, I'm no genius teacher, but this perspective that I was educated into by some really influential conservative friends and teachers who called me out on my overstatements and unfairnesses when I was in high school and college and that I have really adhered to over a long period of time, it's analogous in some ways to like the Trump thing, Right? Like not to put the hundred pound gorilla on the table, but I spent a long time arguing with lefty liberal friends that know the Republican Party isn't racist. No, that's way too simple. Sure. There's some people on both sides of any coalition that are committed to identity politics that are not great, know that. And then this guy comes in saying the stuff he does and he gets elected and it's like, well, I kind of look stupid now. I feel a little bit about that, that I do about this moment where it's far lower stakes. Well, are they? I don't know, Certainly lower stakes. Telling people, you've got to see it this way, you've got to see it that way. They're committed to these principles. They think about democracy as a core value. They think about text as a core value. They think about formalism is a core value. They think about history as a core value and have evinced their willingness to update their priors in light of historical research from very early on has thrown down a challenge decades ago. And I don't know, it's not that I'm going to now teach my classes saying, well, yeah, they've been hypocrites all along because movements are complicated and people in power make necessarily unprincipled choices. Yes, that includes judges, but it's just like personally disappointing and upsetting to me that this melange of approaches for a movement that whatever else I've thought about it, I've thought of as like a significantly principled movement with sub variance is gravitating towards a system of outcomes that just don't fit either with their prior statements of judicial modesty or with the current statements of history being determinative.
- [45:00]
Will Bode
This is where I get confused by the Scalia thing. I guess if just the Scalia were still on the court and we're now disavowing his Morrison vs Olson dissent in order to save the Fed, does this make more sense to me? But you know, he wasn't even there for sale of law, and the majority in sale of the law never even said Justice Scalia was. Like they've ever Even overruled Morrison vs. Olson. So sort of the moment of unprincipledness is harder for me to pinpoint in some sense. Like, I'm disappointed that they don't agree with me more, and I'm sure Julian's disappointed they don't agree with him more, but they've never claimed to agree with me as much as they are supposed to.
- [45:34]
Julian Davis Mortensen
I think Scalia's Morrison descent is one of the worst dissents in the Supreme Court Reporter, partly because of how successful it's been. If it had not been picked up and noticed, I probably wouldn't be quite so harsh on it. But it has two enormous baseline errors in its reasoning, without even getting into those, which is going to bore everyone to tears. It also, in footnote four, takes away the entire force of its main text argument. And footnote four is not reproduced in many con law textbooks. And it says after a main text opinion that is spent excoriating. And again for law school Julian, really liberal law school Julian, really effectively excoriating persuasively excoriating shaggy formalism, where I keep doing it, shaggy functionalism, where the majority indulges in its instincts about what's enough and decides whether or not an accumulation of things under certain circumstances. And he says over and over and over again, you're asking the wrong question. Enough is the wrong question. The question is, is it any of the executive power? And if the President can't control any of the executive power, and that requires firing people, then the President doesn't have all of the executive power. And notwithstanding the absence of the word all, the president has the executive power, etc. And then in footnote four, he says, but by the way, inferior officers of the civil service, I don't have it in front of me are. He essentially says they're fine because being able to control their superiors is enough. And that's adjudicating Scalia's right. That's adjudicating Scalia's inconsistency. For me, the movement inconsistency is going from Saylo law to what seems likely to happen this year.
- [47:12]
Will Bode
But doesn't Saylo law intentionally picked the footnote side of that? Saylor law does not say the test is all the executive power. It says the test is significant executive power. And Justice Thomas doesn't like that and says, no, no, that's not a good test. I would overrule who's executor now, but the majority in Seattle law is already building in that wiggle room that you either like in the footnote and don't like in the body or either way.
- [47:37]
Julian Davis Mortensen
I think we read it differently, and I don't know how best to work that through here, but I think we read the case differently.
- [47:42]
David French
Can I raise a question about Burkeanism here? Because I do not see Burkeanism in preserving the monstrosity that we have now with independent agencies and administrative power. When I look at Humphreys executor in 1935, I look at the court adjudicating a very different administrative state than we have now. I mean, what's the Burkianism there? Is it preserving the continued expansion of this giant thing until it's blotting out the traditional three branches? Because I don't look at the current system and see Burkeanism here. I see an evolving, metastasizing thing that is steadily expanding, steadily expanding, steadily expanding to the point where it's very hard for me to see, going back to Humphreys executor and the legal environment at the time, that if you're plopping the current administrative state in front of the Humphreys executor court, they're just different things at this point. It has become so large, it has become so powerful that what is the Burkeanism here protecting this expanding organism? Is that what the Burkianism is? Because I don't think that what we're at is really Humphrey's executor, because FTC at Humphreys executor time was a much less powerful entity with many fewer of these independent agencies, which with much less power themselves. So it's hard for me to look at this and say that what we're doing is actually preserving a traditional structure. Unless the tradition we're preserving is ever expanding executive authority and ever expanding power in unaccountable independent commissions. So I don't know. I guess I'm objecting to the idea that preserving this system is Burkian.
- [49:43]
Julian Davis Mortensen
Maybe I can ask a question. I know that you don't mean. I'm confident you don't mean that burkeanism means sticking with those things that I like and being ready to throw the other things out overnight.
- [49:53]
David French
What are we sticking with? What are we sticking with? Are we sticking with a one way ratchet of administrative power? Is that the Burkean analysis? What is it that we're sticking with here? Because I don't see us at Humphreys executor. 1935 Humphreys executor. What we're looking at now is not 1935 Humphreys executor. So what exactly are we sticking with?
- [50:17]
Julian Davis Mortensen
The emerging practice over a long period of time of agencies being built in good faith by a Congress that tries to embed separation of powers protections of various kinds, including two and now maybe three that the Supreme Court has decided to destroy. There's an evolved practice of governing through delegation that has happened for lots of reasons. Some of them buck passing, but others of them because of genuinely intrinsically difficult things about what it means to interface with a spectacularly more complicated society than existed in 1789. And I'm uncomfortable with parts of it, right? Like I might be uncomfortable with this part or that part or that part, but right, like it is a thing that is developed and around which our society has been built over time. And for me, my sense of being attracted to Brooks ideas leads me to think of that emergence over time, statute by statute. Addition, retraction. Expand your jurisdiction here, narrow it there, add a legislative veto, create internal protections for removal, create independent algae, right? Like is it perfect? Is it the Article 3 story of separation of powers? No. But again, like Burke says, I'd rather live with our experience than all of your pretty ideas.
- [51:24]
David French
It sounds like you're saying the Burkean approach is to preserve the evolutionary process, but the evolutionary process is conducted across the alleged governance of a document that has words on a page and the words on a page have an executive power and a legislative power. And the evolutionary process cannot, the preservation of the evolutionary process cannot render the words on the page inert or meaningless. And so I guess I'm a little bit confused by the lines we're drawing. Between where the outcome that I mapped out, which is there is a more control over a less powerful presidency. How that's just functionalist. As a matter of formalism. There are words on a page. Legislation has meaning, executive authority has meaning. And asking how to evaluate the present structure as compared to the words on the page. And surely you would acknowledge that an evolutionary process can evolve beyond the actual words on the page. You can create an evolutionary process where the evolution results in an enormous amount of legislative power in the hands of the executive along with the executive power. And there's a line there that would be too far right.
- [52:48]
Julian Davis Mortensen
Two thoughts. The first thought is at some like, amateur philosophy level, it feels to me as a matter of political practice in theory, like if you're committed to Burkianism, you're committed to the proposition that at some point emerging social mores that are ignoring something in a. I mean, think of desuitude as a super small example of this emerging social mores that don't take text seriously and continue not to take text seriously on some parti. Like, I don't know, it feels to me like my commitment, you know, shaggy commitment. I don't have some deeply thought out philosophical position. My inclination to be Burke and thinks, yeah, that's what it is. And as soon as I put on my historian hat, I'm way more comfortable than on my like, theory of the thing hat. You see this in Burke's era in the, you know, stuff widely reprinted in American newspapers. The arguments that take place about core statutory restrictions on the executive in England have all of the different aspects of legal interpretation that we would now call pluralist, that I tend to want to call traditional right text, structure, spirit, purpose, subsequent practice under them. They talk about all of it and you see people arguing and winning sometimes that the way a statute's been applied over time means that though its words might mean, seem to mean A, then actually it turns out that they mean B. I'm not saying I'm making a meta methodological reflection here on a thing and a way of doing law that actually happened and suggesting that your idea in principle that you could start with something being at odds with the text of an old document and over time have such an embedded practice and development and like, you know, like. Like what's like encrustations of layers on a pearl, or maybe not a pearl, maybe a. Maybe a turd would be a better, better, better things for your purpose. But that's. That is Burkianism to me. I'll say one thing and then stop and invite conversation on it if somebody would like to. Luckily, I don't think we have that problem because I don't think that the modern state is in any way at odds with the proper understanding of the original Constitution. So as it happens, I don't think that what we have is. I'm not sure I'd say that universally. But as to the agency piece as the delegations, as to the scope of the power, as to, you know, executive officers creating rules, I think that that stuff is all over the founding, all over the colonial period, and all over as far as I'm confident talking about, which is not very far into the 19th century. And I don't think it's at odds. It's bigger, but I don't think it's at odds with the form of government.
- [55:34]
Will Bode
So Julian, of course, has written the leading takedown of the kind of Gorsuch dreams of the non delegation doctrine, which I think are convincing at least as against Justice Gorsuch. But Julian, you haven't written as much about the removal part, which is what I found sort of odd about this latest round of this debate. As you know, your name is invoked by folks on both sides of the whole debate. Julian's work in the executive power shows that there is no removal power. Julian's work in the executive power shows that maybe there is a removal power because the executive power might have included functional and logical correlates and removing removal power is one. So it makes sense to me that you're not excited about, in the way that David and I are about reigning in the executive power through non delegation doctrine. But do you think you have a view as a scholar, not as a teacher of Morrison versus Olson, like about the sort of right answer to that question?
- [56:32]
Julian Davis Mortensen
Stepping back, just for what it's worth, I haven't been avoiding the question in my writing. I know you didn't say I was, but I think some people I have a chapter in relation to the decision of 1789 material that exists right now and is going to attack that question not through an ex ante like abstract philosophizing about what one might have thought on the day of enactment, on the day of ratification, but rather like I try to drive a lot of the book through real debates that surface how these legal forms are actually complicated, multi textured. And it's not a secret. I'm more open to arguments that the President ought to have at least sometimes an unfettered power of removal than I am to the idea that the President has some wide ranging foreign affairs or emergency prerogative. I am. We talked about confidence levels. I don't know a lot of things. I'm very uncertain about a lot of things. I am very sure that the executive power meant the power to execute and not the royal residuum. I don't know a lot of things, but I am very sure that there was not anything like a non delegation doctrine in the sense that we mean a doctrine today removal power. There were literally arguments on both sides and you can see them being made and you can see the logic of them. And James Madison and his cohort are not being illogical when they say in the same way as many of us have often said, that appointments are a necessary part of having the executive power. Removal surely too must be because if you can't remove all the usual things, they say that of course it's on the table as a reasonable interpretation of the Constitution. And then other people say other things in principle to do with a necessary and proper clause. In principle to do with an observation again not as a extralegal fact, but as a legally relevant fact that the practice of how offices are run shows that executive officers can be insulated from he who has the ultimate executive power. And they argue, I think the Constitution was written as a profoundly congressionalist document with an incredibly powerful point of the spear executive that had nothing on the first day but that everybody was going to knew was going to become like a righteous badass. Somebody swore earlier so I can say badass because of that belief and because of comments throughout draft really more ratification about and they're weird but comments that of course, of course Congress could take away the President's veto or of course the Congress could take away president's power. I mean that seems nuts to me. I don't know what to do with that. But it's in a lot of places during the ratification debates. So very congressionalist document, necessary and proper clause and this undeniable thread of worries about the Constitution and people supporting the Constitution saying if we don't like it, Congress can change it. Like big picture. I don't have a high confidence level on what the right answer is. I don't even know why I would have argued then because I bet that what I would have argued then would have depended on what I thought about the political program of the people who are going to hold these offices. And I mean, I don't know am I proud of that? Probably not. But I think probably what I would decided to put my litigator sort of advocate efforts too would have Depended on what I wanted to happen.
- [59:44]
Sarah Isgur
Professor Bode, help me with something. So I said that I think the closest I can come to describing myself is something like a Burkean textualist, but one who is super into the structural constitution and is pretty radicalized on severability, meaning, like, I don't think we should have severability doctrine. I think laws, which is like basically two pretty unburkian beliefs that I'm tacking on to my overall love of no revolutions. Okay, if we think of Burkianism as, I don't know, like a rope that has a lot of knots tied on it. And so one version is you can just cut the rope. Like, we don't need this rope. Let's get rid of it. Burkianism, I think, would say, nope. Yet they took the time to tie each knot over the last hundred years. Therefore, if you want to be a Burkian, you have to untie each knot over the next hundred years. And at each, you know, time we untie the knot, we look around and see like, is everything okay? Everyone good? Is this all working? Okay, now we can untie the next knot. And so, like, you know, not that it needs to be a total equivalence of how long it took to do X, you have to take to do to undo X, but kind of. And so if I'm super into the structural constitution, and I do think that victory is having a president who is powerful, but a presidency that is less powerful, but I want to be Burkean about it, and I'm on the Supreme Court in this made up fantasy world. How would one do that? Professor Bode?
- [61:19]
Will Bode
One answer might be, you should meet this guy, John Roberts, who one might think is doing something similar in slowly reintroducing threads of the more formal separation of powers in cases like PCAOB versus Free Enterprise Fund, then once people see that happening now, there's a new element in the tradition where we say, oh, okay, I guess we're sometimes worrying about this now. Now you probably would think maybe the rush from PCOB to say the law was a little fast, especially if Julian's right, that's as sort of revolutionary a decision as some people think it is. Maybe not, because maybe you'd say the law is a little ambiguous, but then you think maybe the rush from, say, the lot, Obviously to Trump vs. Slaughter or to Collins vs. Yadda was a little fast. But it might look like this path with just a slightly slower roll. I do have to say, just since we've used Burke's name so much and Since I love Burke too, there is a great article by my former student Jeremy Rosinsky in National affairs on Burke and Precedent, who points out that Burke actually did write about precedent. We all invoke Burke's theories of politics, which is a slow moving one. But during the impeachment of Hastings, he actually discussed at length how he thought precedent works. And his view of precedent was a little more starry, decisive, skeptical than sort of 20th century stuff. So he had a five part test where precedents had to be numerous and not scattered here and there. They had to be concurrent and not contradictory, they had to be made in good and constitutional times or else they didn't count. They had to be agreeable to the general tenor of legal principles, which are not to be overruled by precedents and so on. So if you wanted to go this direction, and I'm not encouraging you, but if you wanted to go this direction, you could say the real Burkean view of precedent might actually be more like James Madison's liquidation or Neil Gorsuch's Concurrence and Loper Bright or something where you're, you know, precedents are not, you know, a precedent made in bad and unconstitutional times, whatever those are, is indeed one you get to view with some, some suspicion.
- [63:23]
Sarah Isgur
I mean, part of this also though is like, what are we applying the Burkianism to? Because on the one hand, Professor Mortensen, you can say we have to apply Burkianism to everything about removal power, but another way to say it is we have to apply Burkianism to the structural constitution. And so removal power is actually a very small part of, of the overall project. Maybe non delegation is a pretty big part, but still only a part of the overall project. Will you sing me a few more bars on why you think non delegation? The idea that there are certain powers that the legislature cannot give to the executive branch no matter what, with or without strings. Like they can't write tomorrow, you know, put a note on the door that says all legislative power here in granted is now vested in the executive branch. If you need us, we'll be at a boozy lunch at Capitol Grill and. Or on Instagram xoxo535 People who don't like their jobs anymore. If, if they can't do that, then what is the line?
- [64:27]
Julian Davis Mortensen
I guess the question is, are you asking me as, as a historian or as like a commentator and law professor who's existing in a world where judges are making.
- [64:37]
Sarah Isgur
Yeah, you know what? I didn't really think about the distinction. But if you're giving me a choice, I really. Because this is something David and I have wanted now for a long time. Like we want the liberal originalists. And I know you're not an originalist, but you know, the liberal historian who is giving us sort of the original take, if you will. But from a, you know, if Justice Scalia said looking for, what was it legislative history is like drunk trying to find their keys under the lamplight. You know, I want the. I've heard a lot of conservatives looking for their keys. I'd like to see a liberal look for some keys with this sort of historical lens. I think that'd be really fun.
- [65:18]
Julian Davis Mortensen
I feel like I was educated on the concept of needing a really good reason to tell a political branch. You can't do something before you tell it by conservatives. Because the cases that I read in the 90s in law school were, yeah, I mean, you know, the Rehnquist Court was well underway and there were conservative cases, but gosh, a lot of them were from Warren Court or applying Warren Court precedents. And I kind of liked that stuff. And that was kind of, that was kind of, that was kind of great to have the court doing right in all these different areas based on the Constitution. And it was from that starting point and like talking through with people who I took seriously, who raised kind of meta restraint critiques, who I knew were not doing it just as like a stalking horse for other priorities, I don't know. I literally think I learned about the real value of judicial restraint and like, not just learned like internalized it as like a thing that I had to account for and think about what I was doing. And so for me, if you were to ask me to state a rule, I would say that for pragmatic reasons to do with the judicial function, my preferred rule would be that the court can never strike down anything Congress does under the non delegation doctrine because there is no formal problem with it and because the functional problems that it might raise are decisions for the political branch. I would not think it crazy for a judge to say the statute you just described is so radically at odds with the structure of government. It's crossed a line, it's gone too far. I wouldn't think it crazy for somebody to conclude in relation to that statute and the position as a judge that a line had been crossed for them. I would not view that as unprincipled. I would not view that. I would get that. It would not be an argument about the formalism of non delegation. It would be an argument about just the radical skewing of centralization in an utterly unchecked way. But for my part, because of the upstream incentives that the recognition of a theoretical non delegation doctrine doing work in the event of what you're basically describing political cataclysm in the US and how much work would it even actually do when the court told him to stop? But in any event, the values of preventing a way downstream horrible are vastly outweighed by the values of keeping the courts in their lane in their place, where good people with varying views have genuinely different perspectives on whether what we have now is consistent with basic separation of powers principles. If you're asking me as a lawyer, I immediately bring prudentialism and pragmatism into it and say if you give people a rule, they're going to run with it and they're going to do bad things with it. And there are people who have been trying to do really bad things with the rule. And I would rather bite the bullet and say, sure, in this fantasy land you're describing or in this future you're describing, when we're getting to where we'll make a difference anyway, okay, yeah, the court can't do anything. But I don't know, I'm just honestly not that troubled by that. I maybe should be more troubled by that, but I'm just not that troubled by that. Once I get to the stage of saying we're making a rule across a range of outcomes that is such a long tail outcome that I want the rule to govern the fat part of the tail.
- [68:14]
Sarah Isgur
David, last question to you before we wrap this conversation up in a nice tidy Christmas bow.
- [68:19]
David French
So let me, let me give you a sort of a meta theory of the court right now, and I'd love we're going to sort of step away from, from, you know, legislative power, executive power, et cetera. I've got a meta theory of the court and love to hear your thoughts on it. I think at the end of the day, at the end of this second Trump term, what we're going to see is that when Trump, when Trump came to the Supreme Court with what you might call traditional conservative legal arguments, which this is what I would classify as a traditional conservative legal argument, he's going to fare really well when he comes to the court with what you would call the MAGA arguments. This is the tariff taking in the tariff power. This is trying to change birthright citizenship. This was looking backwards in the rearview mirror, challenging the, challenging the 2020 election. Some of the extremes of independent state legislature doctrine. He's got a really bad record. And so my general thought is, number one, is that a sort of, in your view, a kind of an accurate way of understanding the Court's jurisprudence vis a vis, Trump that when he comes to the Court with a traditional conservative argument, he tends to do pretty well. When he comes to the Court with what you might call a MAGA argument, it's much spottier. Is that how you've seen the Court's jurisprudence so far? And is that how you see the Court's jurisprudence going forward?
- [69:45]
Will Bode
Okay, so two things. One is we've started to see litigation, including some Supreme Court shadow DACA cases, about the power of the purse, where again, I think the traditional view was that was definitely one of the congressional prerogatives. And we're starting to see the President make very aggressive arguments, more aggressive than Richard Nixon arguments about how the power of the purse doesn't bind him. And we're so far seeing him do pretty well in the Corros. So, you know, call me when they apologize for what they've let the President do to the impoundments and maybe. But I worry that, you know, I worry that we're not just going to see the picture you describe. And then the other piece is that I guess it's a traditional conservative argument, although it's not one. I agree with, that in general, courts should be very reluctant to actually hold anybody in the executive branch accountable for anything. The doctrine of qualified immunity started back in the Warren Court, but it seems to be a very traditional conservative argument. Justice Alito seems to believe in it strongly. And of course, it gives us things like Trump versus United States and much, much more. And I guess it does seem to me that when it comes to any question of will anybody in the executive branch ever actually have to face consequences for doing anything unlawful, that you shouldn't hold your breath. And you know that. And I don't know which bucket to put that in, but it's not reassuring if at the end of the day we're told, well, don't worry, there are still some rules. Not as many rules as there used to, but there are still some rules. But I don't think anybody in the executive branch even worries anymore what the rules are. They only worry about whether they are so violating the rules that they might be held liable someday.
- [71:23]
Julian Davis Mortensen
Yeah, I would tend to cosign Will's observations. I mean, I think it's interesting because I think impoundment is probably. I have various hair on fire issues, but I think Impoundment is probably the issue on which my hair is most aflame.
- [71:36]
Sarah Isgur
That's funny because we talked about it a lot. And I mean, we. The larger legal community a lot. Nine months ago or whatever it's been. And then it kind of fell off the radar. I got an email from a listener two days ago about impoundment. It was like, what happened to impoundment? And I was like, yeah, good point. I don't know. And now it's coming up and I feel it's faded, which may be like, we're all gonna start talking about impoundment again. I do have one last question. Sorry I said it wasn't, but I do. Which is more for you, Bode, I think. Is there a principled, traditional conservative, maybe, as David has been calling it, way to vote for Trump in the tariff case. Or is that for you? I mean. Or is this more of a red line on principles? Like, if you vote this way, you are sticking to your conservative principles that you've been articulating over the course of, you know, your project on the Supreme Court, various justices, and if you vote the other way, it's not principled. Is this sort of like your red line?
- [72:41]
Will Bode
Yeah. So I almost never say if you vote the other way unless you're not principled. And I wouldn't say it here either. Like Judge Taranto, did they weigh in the tariffs case below? And he's an Obama appointee who's very sensible and makes very good textual arguments. And the tariff thing is tricky because the statute does convey a lot of broad powers, and it wouldn't even be crazy to say when Congress conveyed the broad powers, it was reassured by the fact that it had a legislative veto, which has since been taken away from it by Chadha, plus your least favorite severability doctrine, Sarah. And so, you know, sorry, but, like, that's the, you know, that's the price you pay. It wouldn't be unformalist to say that and to say, you know, the major questions doctrine doesn't apply to IEPA or IEPA is major, and for Julian's reasons, we don't want to reopen the litigation doctrine. You could get there. I just worry it's a losing the plot case. It's a case where if we're going to say that there's no real limit to what a national emergency is and say when there's a national emergency, you know, Congress gives away the store and say all the things Congress has done to try to take the store back are unconstitutional or ineffective. It's more one of those sort of how did we get here Cases.
- [73:52]
Sarah Isgur
And Professor Mortensen, I guess I'm not totally sure where you'd come down in the tariff case because on the one hand you're not going to be a non delegation major questions guy. On the other hand, you can't want to write a blank check like this to the President. I wouldn't think so. How do you parse the outcome of the tariffs case on this principled to unprincipled line?
- [74:14]
Julian Davis Mortensen
The tariffs case is one of the situations where my reading the actual briefs about an area where I figured I knew enough to know what the right answer was before I read the briefs completely changed my mind, gave me a 180. I had argued openly that Trump's wall was perfectly legal. And so. Right. Like I'm familiar with the proposition that there will be things that any president does, and certainly this one that make me deeply unhappy and very uncomfortable. I went into the tariffs case as I thought about ipa, as I thought about the general posture of the Supreme Court in relation to presidential action directed overseas across both constitutional and statutory cases. I mean he's got everything going for him and IPA has every word in doesn't have tariffs. And I was persuaded in reading the brief two things. One, that the what are they called, the balance of payments tariffs have a huge problem because there's other parts of the statutory structure that provides specifically for that. And I was startled and surprised to realize how good the legal argument was that those tariffs weren't valid. By far the bulk of the tariffs and for the whichever criminal group, I forget which one the other tariffs are directed at basically with Canada, Mexico and China, the ones where you really can only lean on.
- [75:43]
Sarah Isgur
Yeah, we're calling the fentanyl tariffs, but whatever.
- [75:46]
Julian Davis Mortensen
Fentanyl tariffs seems totally appropriate to me. You know, I don't know. I actually have come to think it's a hard case. You have canons of construction that go both ways expressio unias. They say a whole ton of stuff and they don't say tariffs but like general overall gestalt to this day just to let the president to do literally everything. They didn't literally say that, but you can in some important ways describe a tariff as a regulation. And so like I can see arguments both ways. And so I think I'm with Will that I think there's clearly a better answer when it comes to the balance of trade tariff. Again, in my genius knowledge from reading five briefs on the briefs, it looks to me like there's a clearly right answer on the brief. I genuinely don't know what I think the right answer is on the other tariffs. And that's a radical change for my assumption going in that it would be like totally fine. I mean, I think I said in presentations in February, like, I'm sure it's fine. And then it turned out it was not.
- [76:36]
Sarah Isgur
Professor Will Bode of the University of Chicago and Professor Julian Davis Mortensen from the University of Michigan. By the way, sorry about some of that football stuff going on there.
- [76:46]
David French
Oh my gosh, I thought my Auburn Tigers were having a tough year.
- [76:51]
Sarah Isgur
But goodness gracious, thank you both for joining us. I have so much to chew on from this conversation and I think it will fuel some of my nightmares. So appreciate it. Talk soon.
- [77:02]
Julian Davis Mortensen
It's been a real pleasure. Thank you.
- [77:03]
Will Bode
Thank you.
- [77:05]
Sarah Isgur
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- [78:16]
Will Bode
This episode is brought to you by NBA on Prime. This Tuesday at 8:30 Eastern it's the Emirates NBA Cup Championship game on Prime. This year's quest for the cup has.
- [78:25]
David French
Been building to this the Championship game.
- [78:28]
Will Bode
Live from Las Vegas. Not a Prime member. Sign up for a 30 day free trial to get started today. The Emirates NBA Cup Championship game this.
- [78:36]
Sarah Isgur
Tuesday at 8:30 Eastern only on Prime.
- [78:39]
Will Bode
Restrictions apply. See Amazon.com Amazon prime for details.
- [78:45]
Sarah Isgur
David I thought that was a super interesting conversation. I was, yeah, I'm thinking about some of this stuff differently and even sort of how to how to think of my own judicial philosophy differently now.
- [78:58]
David French
That was really a great conversation. I enjoyed that very much. I, you know, I, it to me, as you can probably tell from the emphasis I put on it, I was very interested in this notion about that it's somehow Burkean to preserve the Humphreys executor precedent when I feel like we're well beyond what Humphrey's executor was actually. Was actually adjudicating. And so that was a. To me, that's the really interesting part of the exercise because as I've said on this podcast, as I wrote at the Times, I just kind of object to the notion that what we're dealing with is preserving a 100-year-old structure. Yeah, it's an almost 100-year-old precedent for sure, but I kind of object to the notion that we're preserving is a 100-year-old structure.
- [79:50]
Sarah Isgur
What about my knots on the rope analogy? Like, forget precedent and specific court cases, like, here we are. And so if you want to back up, you've got to back up at, you know, you can go at a little bit of a quicker pace, but you've still got to sort of retrace your steps. You don't just get to cut the whole rope. You have to untie the knots one at a time and make sure that you didn't cause some unintended consequences with each knot you untied. And because, And I say that, David, because I'm torn. I want. Some piece of me really wants to simply say nope. When we got rid of the single House legislative veto, when we got rid of removal powers, we got rid of these laws, as in tomorrow there is no FTC and Congress will have to repass a federal trade act if they would like to have an FTC tomorrow. It's like the most anti Burkean thing that someone could possibly imagine and that nobody is talking about doing. But yes, you know, like late at night when it's dark, I daydream about this. That would be sort of your version almost, David, of like, ah, F. Burke, like let's go back to the structural constitution. If we're serious about that, that's what we would have to be in favor of. But the Burkean part of me is like I'm unwilling to do that truthfully. Not because I don't think it's correct constitutionally, but because I feel fear. I have enough intellectual humility to fear my own rightness. How right am I?
- [81:19]
David French
You know, I, I liked your nod analogy a lot because I think that's actually what slaughter is, is that it's, there's no realistic, there's no world in which they're just going to strike down all independent agencies as a result of this case. So that's just not happening. And actually what is happening is, is a really pretty, pretty narrow version. It's like moving a little knot upwards in the sense that you're not getting rid of the FTC, you're not getting rid of the FTC's powers, you are getting rid of the relative. And that's, you know, it's not total independence, but relative independence of the commissioners themselves, which isn't. I mean, it is consequential, but it's not catastrophic change one way or the other. And so I do feel like what we're, and what was very clear to me from the oral argument is a number of the justices seem to be trying to figure out ways to create a quite limited ruling here. What is the way in which we're essentially just applying, say, the law instead of anything like really wrenching and massive. So I'm very curious as to how this comes out, but it feels like in any scenario, we're going to be doing your knots on the rope analogy. It's just how much of a difference, how big a distance is there going to be from knot to knot?
- [82:45]
Sarah Isgur
Well, next time on Advisory Opinions, we have some circuit cases to go through and some conversations about conversations. David?
- [82:53]
David French
Yeah, I'm looking forward to this conversation.
- [82:56]
Sarah Isgur
Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You if you can rate, review and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up@thedispatch.com join and if you use promo code AO, you'll get one month free and help me win the ongoing, deeply scientific internal debate over which Dispatch Podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad, free feed and early access to all episodes. Two gift memberships to give away access to exclusive town halls with our founders and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us@advisoryopinionsthedispatch.com we read everything even the ones that say David's right. That's gonna do it for our show today. Thanks so much for tuning in. We'll see you next time. Running a small business is tough. Why add online threats to the mix? Norton Small Business can help you and your employees stay safer online. It's an all in one cybersecurity solution that protects your employees devices, monitors for information like your EIN on the dark web and alerts you in real time to suspicious activity. And if you ever need help, our 24, 7 business tech support has you covered. Let us be your IT department so you can focus on the business you love. Visit norton.com business today.
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