Advisory Opinions – “Congress Won’t Contradict Trump”

Date: September 11, 2025
Hosts: Sarah Isgur & David French
Podcast: The Dispatch

Episode Overview

This packed episode examines critical questions about presidential authority, the separation of powers, and the Supreme Court’s evolving handling of weighty legal disputes. French and Isgur dissect the legality of President Trump’s strike on a Venezuelan boat, offer a deep dive into the use of tariffs under emergency powers, discuss the major questions doctrine, dissect recent Supreme Court interim docket machinations, and briefly touch on the Federal Reserve’s constitutional oddities and a significant immigration enforcement case out of Los Angeles.

The tone is characteristically nerdy, lively, and accessible, with Sarah Isgur’s self-deprecating enthusiasm and David French’s careful legal precision driving insightful analysis.

Main Discussion Topics and Insights

1. Legality of Trump’s Venezuelan Boat Strike

Segment start: [02:52]

Key Points

• Event Recap:
  The U.S. government reported a strike on a boat carrying 11 members of the Venezuelan terrorist organization TDA, all killed at President Trump’s order. These individuals were not alleged to be planning an imminent attack but were transporting drugs into the U.S.

• Legal Authority Under the Constitution:

  • David: The president’s commander-in-chief powers have historically allowed immediate self-defense (e.g., Pearl Harbor), but using lethal force absent congressional authorization is contentious when there’s no imminent threat ([04:47]).
  • Sarah: The key distinction: Obama’s drone strikes were under an Authorization for the Use of Military Force (AUMF); Trump’s action lacked such congressional authorization ([08:11]).

• Does Terrorist Designation Unlock War Powers?

  • David: Merely being designated as a foreign terrorist organization (FTO) doesn’t provide statutory authority for force—it’s about sanctions and immigration restrictions, not military action ([04:47]).
  • Sarah: Both Al Qaeda and TDA may be FTOs, but only Al Qaeda has explicit AUMF coverage for military action ([08:11]).

• The Danger of Broad War Powers:

  • David: “[T]he logic of this strike says that, okay, if we’ve positively identified a member of TDA, no matter where they are … under this logic, let’s suppose you’re a National Guardsman and you’re deployed to Chicago and you see a member … could just lift up their M4 and gun that person down right in the middle of the streets of Chicago” ([12:19]).
  • Raises the Posse Comitatus Act and the line between military and law enforcement powers within U.S. territory.

• Practical vs. Normative Limits:

  • David: Ultimately, even if such actions are unconstitutional, “[w]ho’s going to stop it, right?” — highlighting Congress’s inaction ([15:04]).

Memorable Quotes

• “A lot of this … is just an academic discussion because who’s gonna stop it, right?” — David French ([15:04])
• “If the intel was this was loaded up with AK47s and explosives … you would have me on a little bit hard.” — David French ([15:53])
• “My takeaway is like, this is a little bit hard.” — Sarah Isgur ([15:30])

2. The Supreme Court and Trump’s Tariffs Under Emergency Powers

Segment start: [17:14]

The Legal Questions

• Which constitutional powers are at play?

  • Article I, Section 8: Congress regulates tariffs.
  • The International Emergency Economic Powers Act (IEEPA/IPA): Grants broad presidential powers during “national emergencies,” but never before used for tariffs ([21:14]).

• Key Legal Doctrines Discussed:

  • Nondelegation doctrine — Can Congress give the president sweeping, undefined powers?
  • Major Questions Doctrine
    • Barrett school: Looks at context and intent, asking what Congress “meant” ([28:47]).
    • Gorsuch school: Requires a clear, explicit delegation for anything “major”; Trump loses under this theory ([28:47]).

• Case Progression and Venue:

  • Cases are being fast-tracked; one came from the Court of International Trade, the other from D.C. District Court.
  • The justices must decide if IEEPA actually provides for tariffs and which court has jurisdiction.

• Likely Supreme Court Outcome:

  • Both hosts predict the Trump tariff regime will be struck down but are mindful the “internationalness” might give the Court pause ([32:52]).

Notable Quotes

• “Trump does better [under Barrett], under the Gorsuch version, Trump really loses. Like it’s not close.” — Sarah Isgur ([28:47])
• “At the very least, major questions doctrine should apply. It’d be an ideal opportunity to revive non delegation.” — David French ([32:52])

3. The Supreme Court’s “Interim of Interim” Docket Problem

Segment start: [34:40]

• Background:
  Supreme Court is now frequently issuing temporary “administrative stays” before even dealing with cases on the so-called “interim docket.” This has led to media confusion and to speculation about the likely outcome from mere procedural moves.

• Insider Frustrations:

  • Sarah: “I’m deeply frustrated that we have media about these interim to the interim docket that also are saying that administrative stays now project the likely outcome. I mean, we really are now turtles all the way down” ([38:38]).
  • David: “It should be very, very clear that this doesn’t actually indicate much of anything at all” ([38:48]).

• Hope for the Future:

  • David expresses optimism that as the term progresses, more merits-based decisions will move the conversation away from these interim decisions ([39:18]).

4. The Constitutional Oddity of the Federal Reserve

Segment start: [41:18]

• Background:
  The Supreme Court’s past precedent (Humphrey’s Executor) permitted multi-member agencies with for-cause removal protections (like the old FTC). Recent cases (e.g., Seila Law) questioned insulation for powerful single-director entities (like the CFPB).

• Is the Federal Reserve Different?

  • Sarah: Notes a recent decision (Wilcox) where the majority signaled the Fed is “unique,” tracing to founding-era institutions.
  • David: “It seems to me that the Court is signaling, hey, the Fed is different. Now, that’s not the same thing as saying Lisa Cook will win, but it is saying that the Fed … is just different” ([46:11]).

• Jonah Goldberg’s Challenge:

  • Argues the Fed exists in a “constitutional null space” and, although he doesn’t like it, presidents may have the power to fire its members if it’s part of the executive branch. Expresses desire for a constitutional amendment to clarify this oddity ([46:11]).

• Unitary Executive Skepticism:

  • David floats the idea of amending the Article II vesting clause to clarify the president’s powers, noting that “originalist” support for broad unitary executive power might be overstated ([47:47]).

5. Immigration Enforcement: Supreme Court Interim Decision

Segment start: [51:17]

Core Questions

• What factors can constitute “reasonable suspicion” for immigration stops?

  • Factors at issue: presence at certain locations (e.g., day labor sites), type of work, language, and “apparent” race/ethnicity ([51:17]).

• Recent Supreme Court Action:

  • The Court, apparently 6–3, allowed “some combination” of these factors as the basis for stops, but the justices split on their reasoning—Kavanaugh authored a concurrence, dissenters (Sotomayor, Kagan, Jackson) wrote at length ([51:17], [56:32]).

• Issues Raised:

  • Standing: Did plaintiffs show they were likely to be stopped again?
  • Bivens Problem: Federal agents’ excessive force isn’t easily remedied via damages lawsuits, even though Kavanaugh’s opinion says remedies “should” be available ([55:32]).

Notable Legal Analysis

• Remedial Uncertainty:

  • Sarah: “He didn’t say and remedies are available in federal court. He said remedies should be available in federal court. Cool. Cool. But they aren’t” ([55:32]).

• Prophylactic Injunctions:

  • French cites Oren Kerr’s analysis: broad preemptive injunctions in Fourth Amendment contexts are rare because the facts are so case-specific ([56:32]).

Memorable Quote

• “The Fourth Amendment has to mean something, David. And it means that you get to drive your car and turn … one way or the other without getting stopped. At least a 50/50.” — Sarah Isgur ([63:35])

Notable Quotes & Moments (with Timestamps)

• On lawyering as cramming:
  “It feels like cramming for an exam. And then, like, you walk into the exam and you're so ready to, like, write everything you know down before it leaves your brain.” — Sarah Isgur ([02:28])

• On constitutional inertia:
  “Congress is not going to take any particular action to contradict Trump while certainly while Congress is in the hands of Republicans.” — David French ([03:07])

• On executive power drift:
  “Think about it like this.…if I could confirm that somebody was a member of Al Qaeda, I could bomb them, shoot them, call in an artillery fire mission…with no due process…and so the logic of this strike says that, okay, if we've positively identified a member of TDA, no matter where they are…that National Guardsmen could just lift up their M4 and gun that person down right in the middle of the streets of Chicago.” — David French ([12:19])

• On the Supreme Court's confusing dockets:
  “We really are now turtles all the way down.” — Sarah Isgur ([38:38])

• On the Fed’s constitutional ambiguity:
  “It seems to me that the Court is signaling, hey, the Fed is different.” — David French ([46:11])

• On legal doctrines in flux:
  “A lot of what we're going to talk about today…is the President's inherent authority if he doesn't have an act of Congress that's directly on point.” — Sarah Isgur ([17:14])

Timestamps for Key Segments

• Venezuelan boat strike legality: [02:52] – [17:14]
• Trump tariffs, IEEPA, major questions: [17:14] – [34:40]
• Supreme Court interim docket chaos: [34:40] – [41:18]
• Federal Reserve removal protections: [41:18] – [51:17]
• LA immigration stop case: [51:17] – [63:35]
• Closing, light banter: [63:35] – end

Final Takeaways

• Congress’s abdication and the broadening of executive power remain central, unresolved themes.
• The Supreme Court is now inundated with high-stakes “emergency” and interim orders—often with little clarity or explanation—which is warping both media coverage and real-world legal planning.
• Fundamental doctrines about the separation of powers, major questions, and constitutional structure (especially regarding agencies and the Fed) are in intense, unsettled flux.
• Despite the density of these issues, French and Isgur manage to make even commas in statutory language feel like high drama—for law nerds, at least!

For further reading:

• Oren Kerr’s analysis on Fourth Amendment injunctions (mentioned by David French).
• Precedent cases: Humphrey's Executor, Seila Law, Biden v. Nebraska, OSHA COVID mandate decision, City of Los Angeles v. Lyons.

This episode is essential listening for those tracking presidential powers, administrative law, and the Supreme Court’s ongoing struggles with its own workload and role in an era of rapid executive action.