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Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. We have a new cert grant from the Supreme Court. Cert before judgment. We'll tell you everything about that in this episode. Three circuit decisions, the 11th, the 5th, the D.C. and finally, we'll talk about Jill Lepore's piece in the Atlantic. So many of you have asked us to. How originalism killed the Constitution. A radical legal philosophy has undermined the process of constitutional evolution. All coming up on Advisory Opinions.
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See mintmobile.com this episode is brought to you by Progressive Insurance. Fiscally responsible financial geniuses, monetary magicians. These are things people say about drivers who switch their car insurance to Progressive and save hundreds. Visit progressive.com to see if you could save Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states or situations.
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A
All right, David, let's start at the beginning. This is the Federal Trade Commission. It's Humphrey's executor. It's the battle royale that we've been waiting for. Although I'm not sure that I really thought we would get the head to head Federal Trade Commission, which is what original Humphreys executor was about. From 1935. If you remember, Donald Trump fired Rebecca Slaughter from the ftc. She was one of the democratically appointed commissioners and she sued. The lower courts reinstated her, finding that Humphrey's executor controls and the administration obviously appealed that on the emergency docket to the Supreme Court. Here's the answer we got on that application for stay. The application for stay presented to the Chief justice and by him referred to the court is granted, meaning that Rebecca Slaughter is no longer an FTC commissioner. But it continues. The application is also treated as a petition for a writ for certiorari before judgment and the petition is granted. Okay, let's break this down for just a second, David, from a procedural standpoint because I feel like we're going to be Talking about cert before judgment more than usual this term, potentially. So we all know the way this usually works, right? The circuit court makes a decision on the merits, and then you file a cert petition at the Supreme Court and you go to conference. You often get relisted. If you get relisted once or twice, that's a really good sign. 75% of the petitions granted in any given term sometimes have been relisted once or twice. If you get relisted 23 times, like the current record holder in the ham case from a couple terms ago, you're going to get denied, as it did in the ham case that was on how to measure IQ tests, multiple IQ tests for intellectual disability in a death penalty case, 23 times, you're getting. You're getting something, but you're getting denied. In that case, it was gvr. That means granted, vacated, and remanded. You just send it back to the lower court. And there were two dissenters on that one, Gorsuch. And I want to say, Thomas, I might be right about that. Might be wrong. Going off memory here, okay? So that's the normal process. You get granted, then you get your oral argument schedule. There's two weeks, about a month that they hear oral arguments on Mondays, Tuesdays and Wednesdays. And around the merry go round we go. Okay? And then you also all know I about the interim docket, the emergency docket. That's where we're deciding what the status quo is going to be while the case is pending. That's all of these stays and injunctions and reinstating people and grant money, all of those things, okay? Cert before judgment is where the two are going to blend. So a case goes up on an emergency application for a stay like this, and the Supreme Court says, you know what? It. Instead of sending this back down with what the status quo will be while the case is pending, we're just going to go ahead and take this case because the issues are already teed up and sending it back down. You're basically just going to redo the whole analysis because it's the same analysis for the merits as it was for the interim docket. That's not always the case, Right? Think on. Well, any of these cases, right? Your status quo determination may be really different than your merits determination, but here, the Supreme Court decided, you know what? Let's just. Let's save ourselves all the trouble of going district court, circuit court, supreme court, district court, circuit court, supreme court. So this basically gets transferred from that interim docket to the merits Docket. So now it gets slotted in somewhere. So they will hear oral argument on this. It will be briefed like a merits docket case. All of it will now be a merits docket case because it has been granted certified. The only difference will be that it will move faster than a normal case would. My guess is it will get slotted in November or December for oral argument. And, you know, that makes your briefing schedule and everything maybe a little bit more truncated. And of course, you don't have a full decision from the circuit courts as you normally would. Okay, so there's more to this case, though, that we have to talk about because they granted two questions presented. Now, let's take these one at a time. The parties are directed to brief and argue the following questions. One, whether the statutory removal protections from members of the Federal Trade Commission violate the separations of powers, and if so, whether Humphrey's Executor v. United States from 1935 should be overruled. So, David, I gotta say, just by, I don't know the tone, the answer is yes, Humphreys is going to die a second time. Of course, the joke here is that Humphreys executor, Humphreys himself died before the case actually made it through the courts. That's why it's Humphreys executor. It's the executor of his state who was bringing the case anyway. So, yeah, Humphreys is going to die a second time. Ha, ha, ha. But. But you agree, right? This is. This is bad. For all those fans of Humphreys executor who are out there, we've been leading to this point, but it's only been on that interim emergency docket.
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Right. No, I will say I'm totally with you. I'm totally with you that it looks like Humphrey's executor is gone. But number two.
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Okay, yeah, okay. So number two, and remember, Humphrey's executor was about the Federal Trade Commission, and the Supreme Court held that Congress could restrict removal powers from the President. For the Federal Trade Commission, the argument from the administration has been twofold. One, that was just wrongly decided. Overturn it. Two, the Federal Trade Commission of 1935 may share the same name with the 2025 Federal Trade Commission, but they are very different entities. And the power that this Federal Trade Commission exercises is far more executive in its nature than the 1935 Federal Trade Commission, which was more advising and, you know, thoughts and feelings.
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I was just going to say, okay, if only I was only looking at number one, I would say Humphreys executor is gone. But two, such a wild card. But anyway, that, yeah, well, I just.
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I mentioned number one, because it would have been really easy for them to not touch the Humphreys executor question and just say that this Federal Trade Commission is different. The fact that this QP tees up whether to overturn Humphreys executor means, I guess we're not going to spend a whole lot of time on, you know, the transformation and evolution of the ftc. We may just, you know, Humphrey's executor is wrong. Moving on. Okay, but here's the number two question presented. Now, this was briefed in the administration's application for a stay, but it was at the end, like the very end, David, and it was given pretty short shrift in this. Now, generally, when you're going to the Supreme Court and writing your brief, not generally, always your strongest argument goes first and your longest argument is your strongest argument as you perceive it. So this shoved in little redhead at the end of the brief gets the QP granted. Number two, whether a federal court may prevent a person's removal from public office, either through relief at equity or at law. Okay, this may not sound like a big deal. This is a very, very big deal. And I would argue, David, a bigger deal than the universal injunction case that was argued in the spring that we got in the summer.
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TRUMP Vacasa 1 million percent. Yes. I mean, we had the universal injunction case and as soon as it was over, both of us said, okay, honestly, not that big a deal. I mean, and there were two very clearly right away, right out of the gate, Administrative Procedure act and class actions, you could see it. And literally was it within a day or two days from the ruling that a class, I think it took, I think it took two days for a class certification and injunction on class basis. I mean, on the very question of citizenship and naturalization, this is infinitely bigger because listen to the language. The language is not even whether a federal court may prevent the President's removal of a member of the executive branch. It's whether a federal court may prevent a person's removal from public office. What? Okay, now I don't want to be like, okay, this is a doom and gloom type of situation. Maybe it's number two is like, let's just be clear. The answer is obviously yes, but under these conditions. But that doesn't feel like it, Sarah. It doesn't feel like it. And I have a theory.
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If the answer were obviously yes, there didn't need to be A grant on the second qp, We've seen Justice Barrett, in particular, really into the formalism of the specific powers of the courts. Like, where do we have this power point to it. What All Writs act section are you looking at? And we've seen Justice Gorsuch, I think, tip his hat in this direction as well. So, no, I don't think this is a grant. That's an obvious. We're granting it just to, like, do a bench slap. No, this is real. This is not a drill. Okay, what's your theory, David?
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So one of my theories is that the question would be, wait a minute, isn't equity available only when remedies at law are inadequate? And what is the traditional remedy at law for removal from a, from a, an office? It is back pay and reinstatement. So that's the general course of action. Say in a Title VII case or something like that, it tends to be back pay and reinstatement. Now, in some cases in the private world, it's just damages. In other words, that the. There is not irreparable harm of not occupying the position, because the position at its very core is about remuneration. It is not about power. And so if you have lost a job, the injury really isn't the lack of the ability to, say, make a car. The injury is the lack of the paycheck. That's the real injury. And so that's why you see in a lot of private cases, tort cases involving private citizens, that the damages are damages. I mean, the remedy is damages that you've lost your job unlawfully, you get damages for that. In the Title VII context, you'll often get a reinstatement and back pay, or you'll get the promotion and back pay. So when I won a case involving a professor, won a jury trial involving a professor who was denied a promotion because he was conservative, that was exactly the remedy. The remedy was he got the promotion and he got the back pay that he would have been entitled to. So I wonder if they're looking at it through this lens, Sarah, that what you do when somebody has lost their job is that you give them the financial compensation for it. And reinstatement where provided for by law. And I think that's a category error here, because the actual loss and damage is not. This is not the same situation as a person who is, say, fulfilling a private employment obligation to balance the books of a company or make a Toyota Camry or even run Apple Computer. All of those things are seemingly mainly in it's a financial It's a pecuniary relationship. That's what it is. Whereas if you are a public official acting under a statutorily authorized use of power, it's not just you're in this for a paycheck, you're fulfilling a public role as defined by law, that there is a real interest in the fulfilling of that public role as defined by law. And so I do wonder about if we're looking at apples and oranges, but that's kind of my theory.
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A
Let me read you a paragraph from the Department of Justice's brief on this question. As I said, it was at the end of the brief, but here it is. Even accepting the court of appeals erroneous premise that this case involves the exact same agency, the exact same removal provision, and the same exercise of executive power as Humphrey's executor, this court should still grant a stay because this case involves a different remedy than Humphrey's executor. Humphrey's executor arose out of a suit for back pay, the remedy traditionally sought by offering officers claiming wrongful removal. In this case, by contrast, the district court granted injunctive and declaratory relief, restoring respondent to office. As Judge Rao, who was in the dissent, correctly determined the government is likely to succeed on the independent ground that the district court's reinstatement of respondent exceeded its remedial authority. Article 2 precludes a court from ordering the reinstatement of an executive officer removed by the President. President's removal power is conclusive and preclusive, which means that it may not be regulated by Congress or reviewed by the courts. And, and that is a quote, citing the Trump case. This was the criminal immunity case. Although Humphrey's executor held that Congress may sometimes restrict the removal power by statute, this court has never held that courts may restrain the removal of executive officers through injunctions or declarations. Permitting judicial reinstatement orders would substantially extend Humphrey's executor on. Unlike a back pay order, a reinstatement order compels the President to entrust executive power to someone he has removed, a far greater intrusion. So, David, it's, you know, very close to what you were saying. Now, there's one other part of this that I found interesting at the very end. The district court stated that, quote, if injunctive relief were to become unavailable, it would award a writ of mandamus. But a court may grant mandamus only if the applicant has a clear and indisputable right to relief. I find this interesting, David, because a Writ of mandamus is sort of to this case what a class action is to the universal injunction case. It's like, oh, sure, take away the equitable relief, but there's always a writ of mandamus. But I think they have a pretty good point here. A writ of mandamus is when you can, a court can compel a government officer to do something, but they're right. It has to be clear and indisputable right to relief. That is obviously not the case here where it is at least an interesting question whether a commissioner at the FTC is removable only for cause because of congressional statute or by the president for any reason because of Article 2. So I say this would be turning.
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B
Public servants into SEC football coaches. Here's what I mean, if you're an SEC football coach. Well, I just single out SEC because they're the most fabulously well paid people in the land. You know, public officials in the land. But they, you have a contract, for example. But these guys just get fired constantly until, you know, and what ends up happening is that the schools get on the hook for all of this. It's not back pay. It's their contractual, you know, it's their contractual obligation. So I was just looking up before the podcast, how much did Texas A and M pay out last year to people who were not coaching anymore? And the answer was $27.5 million were being paid. Was being paid by Texas A and M to people who are not coaching anymore who would be in the situation of public officials who lost a job and are receiving compensation from their government. And you think about it like this. And Sarah, if the answer to that question becomes, yes, this isn't unitary executive anymore. This is, I don't even know what to call it, quite frankly, because it's not just, can the president present. Can you prevent a person's removal by the president if they're a member of the executive branch, which. That's the unitary executive. This is, can a person be removed from public office, period? Can a court prevent a person from being removed from public office, Period. And I got to tell you, if you're talking about preventing lawless and lawless authoritarianism, the back pay remedy is inadequate at law. It is adequate for financial compensation. It is not adequate to sustain the statutory or constitutional structure and balance of power in our government.
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A
I mean, for a private employer, right, the back pay, the threat of back pay is the incentive not to wrongfully terminate someone. I think the problem, as you say, David, is the threat of back pay to the government, when it's not their money, really, it's our money, it doesn't provide much of an incentive. And of course, the remedy to the individual person harmed. I actually think I might disagree with you a bit here. The individual person harmed, I do not think has an interest in continuing their service for separation of powers reasons. Their individual harm is different than the harm to the system of government. But of course, does a member of Congress have standing to bring this, to say that no, my power was diminished? No, they don't. So this is all a mess. If you remember back to. I mean, I know you were, you voted in this election back in the 1880. 1880, yeah. In 1880, James Garfield was elected president and he served not very long because while he was sworn in in March, he was shot in July and died in September by a delusional office seeker. Because this was back before we had any protections. So. So, you know, the system we have now has evolved a great deal from its original purpose. But the original purpose was to prevent A the switching out of every federal employee every four years and B, filling those roles with randos who, you know, volunteered in some campaign office that the president's never met and he's just returning favors and that person has no experience and no qualifications for the office that they're being put into. That's how you get the original civil service reform. It was a huge campaign issue even in 1880 and certainly after when Chester Arthur came on the scene and the Tammany hall stuff. But David, back then, think how small the presidency was in comparison, how few executive branch employees there were compared to now. But here's the problem. Original theory of civil service protection really transformed during the Progressive era. Roosevelt first, Roosevelt, Wilson second Roosevelt where it went from, you know, hey, let's not just move these people in and out every four years based on whether they volunteered on the campaign into. Let's put experts in and protect them. Because the politicians are dumb dumbs. And we don't want them to be able to override the expertise of these people who we want serving, you know, forever because they're experts. I think that's a different theory of government and one that is, I mean, that's why I come down pretty hard on the unitary executive side and think if you work in the executive branch, your power is derived from the President and therefore the President must be able to remove you. Otherwise there is no political accountability for people who serve in a government in a republic like it can't work that way. There cannot be independent People who answer to no voters. So that answers the first question for me. Right. I think the FTC commissioners are removable. The Federal Reserve is a different thing. As we talked about in a previous episode. Maybe civil servants are a different thing, I don't know. But these people who are senior officials of the government, absolutely removable, answer to question one, overturn it. And the FTC is different. Like I would answer all the questions. Yes. But on number two, this is really weird because I do believe, as Justice Barrett explained in her book, not every constitutional wrong has a remedy that the courts can give you. This is a fundamental difference between her and Justice Jackson that we saw in the Trump v. Casa case where Justice Jackson is like, it's what you said, David. If the President is acting unlawfully, unconstitutionally, like an authoritarian, we, the courts must stand athwart and yell stop. And Justice Barrett, I mean her famous line, right quote, justice Jackson would do well to heed her own admission. Everyone from the President on down is bound by law. That goes for judges too. This is the difference, David. And I feel like you're leaning on the Justice Jackson side of this argument. Yes. Is that fair?
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B
No. I would say that of course not every constitutional wrong has a remedy.
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A
No. A separation of powers wrong, the big ones, not like some random one. But when it comes to the fundamental ness of the Constitution, it would depend.
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B
On there has to be standing, there has to be a concrete. So I'm not going to say that there is a freestanding. When it's important enough, you get, you get a Supreme Court opinion. But on this one, let me put it this way, I'm with you on our. As Article 2 is written, as you know, the first sentence of Article 2 is written, I'm full firmly of the belief that the executive should have authority over the policy making officials of the executive branch. So that's a, that is a version of unitary executive theory we talked about with Jack Goldsmith, that the President is in charge of the policy making officials in the executive branch, but the civil servants. So the difference guys, for those of you who are like maybe puzzled about this, think of the difference between the US Attorney and all the line prosecutors, many of whom have been working there 20, 25 years. They work on, you know, let's say they're in the organized crime division in this Southern District of New York or whatever, and they have been working on the Gotti investigation for 11 years. And you know, this is kind of basic function of government stuff where you have to have a certain level of continuity and a Certain level of consistency in the provision of services, or you, you just have chaos. I mean, you know, you made a great point, Sarah, about the Gilded Age era. In the Gilded Age era, you had a much, much, much, much smaller government. I mean, people, a federal government, people just probably can't even wrap their heads around how much smaller it was by comparison. And even in that circumstance, the spoil system was intolerable. The spoil system reached a point where it was interfering with the administration and government. It was creating large scale corruption. So the creation of, you know, civil service protections really was a one of these sort of, at the end of the day, no brainer, good government reforms that enabled America to move out of this sort of backwards frontier, small country kind of life into a much more rule of law oriented continent spanning democracy that it is now. And so this sort of idea that, well, you can get damages when your defendant prints money, I think that's a bit of a stretch. What this reminds me of is the difference between dorm room originalism and responsible originalism.
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A
Oh my God, that's such a good term. Dorm room originalism. Oh my gosh.
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You know what dorm room and originalism says is okay, well, I figured out the original public meaning, and the original public meaning is this. And then you look at the large massive edifice of a hundred years, 100 years of development economically, 100 years of development governmentally, legally, etc. And you go, well, it's all got to go. It's got to go. And look, if Congress wants to rebuild something else in line with our precedents, then that's up to Congress. And we're getting perilously close. If the answer to that question is yes to what you might call dorm room originalism, in my view, that it is okay, in working from the state of nature, what is the ideal sort of form of remedy for loss of government employment versus working from the reality that we live with. And when you say that that's not a compromise on the Constitution, it's an acknowledgment that a lot of people have been operating under one system for more than 100 years and that you build up an entire web of checks, balances, precedents, et cetera, over more than 100 years. And look, this could be all much to do about nothing. Where the answer is, number two is look, we're getting this, this is lobbying up to us, and the answer is obviously yes, but here are the circumstances. I don't know. They, they took this question. I, I'm troubled. Think about it like this way. When when we adopted Naomi, we went to our local Social Security office, a little, nice little building in Columbia, Tennessee, and there was an array of employees there, they had supervisors, et cetera. And they helped us navigate getting Naomi a Social Security card. Changing her name to French, you know, went to Naomi French. By the way, her legal name when she immigrated to the US was Konjeet David French. Which let me just say that if my 17 year old daughter would not want to be named David French right now. But the, the, so you name, you, you change your name, et cetera, and they're very helpful. And the person we worked with had a lot of experience with this and he was able to smooth the process. He was fantastic. So, so what if instead of you walk into your Social Security office, what you're dealing with is the members of the local Republican Party committee or Democratic Party committee who helped campaign and put yard signs out for the presidential candidate and a slate of their names has been sent up the chain and it comes back that everyone who wants it can work at the Social Security office. And so you get rid of all the people who've been changing names and doing Social Security numbers and all of that, and providing for benefits and for disability benefits and correcting problems with grandma's check and all of this for all of these years. And in comes a bunch of folks who want a higher paying federal job with better benefits and they don't have any experience in Social Security, they don't know what they're doing, they're going through a train up process, even if they're well meaning. And then maybe the President loses next time around. And then it's the Democratic Party Committee, the local Democratic Party committee for anyone who wants it gets that federal job. That's absurd. And if you think I'm painting too weird a picture, consider some of the facts that we'll talk about in some of the cases we're going to talk about later in this podcast. I mean, I'm just gobsmacked about the librarian case.
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A
All right, David, put a pin in this because we'll come back to it when we talk about that D.C. circuit case. But right after this break, I want to talk about this Jill Lepore piece from the Atlantic and whether originalism killed the Constitution.
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A
Okay, David Jill Lepore in the Atlantic How Originalism Killed the Constitution Let me read a few pieces from this the abandonment of amendment has meant that constitutional history since the 1970s has turned on presidential nominations to the Supreme Court, placing pressure on that institution that it has proved nearly unable to bear. Presidential elections no longer involved campaigns to amend the Constitution. They involved campaigns to appoint justices. Nomination hearings have become spectacles. I think you and I agree with every part of that. Okay, next up, originalists accused the Supreme Court of amending the law by creating new rights, such as the right to an abortion. Yep. So far, so good. And insisted that both Article 5amendment was the only legitimate method of constitutional change. Yes. And that originalism was the only legitimate method of constitutional interpretation. Yes. Practically, though, originalism took hold from the failure of conservatives to change the Constitution by Democratic means. By means of amendment. The aim is now to accomplish in the courts what the administration failed to persuade Congress to do, namely adopt its position on abortion, apportionment, affirmative action, school prayer and the like. Whoa. First of all, David, can we just start with the very simple problem? So while Roe v. Wade and Casey were good law, how exactly was a Republican administration supposed to have Congress adopt its position on abortion? That was exactly what the Court said couldn't happen. Right? It it's a constitutional right that Congress cannot place an undue burden on. So by definition, the whole point was that Congress couldn't reflect whatever the Democratic will was at that point, whatever the majority will was, even if the majority was pro life or pro choice or anything else, couldn't do it because it had been constitutionalized. That's the dumbest.
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B
That's just like, wrong reading it charitably. I think what she's saying is one way to put it is, well, you need to at least first go through Congress. Unless you're calling a convention of states to amend the Constitution. My, my take on this is. Wait. My take on this is. Wait, wait. I'm with you 100%, Jill. On we need to amend that. We need, it needs to be easier to amend the Constitution. We need to revive the constitutional amendment process with you 1 million percent. The worst possible example of the need for that is Roe and Dobbs. Why? Because Roe wasn't a constitutional amendment establishing a right to abortion. It was a court precedent. It was not an amendment. And so by the argument that we should have an amendment to reverse a court precedent. No, no, no, no, no. Once Roe was established, all that was was a court precedent. In fact, one of the arguments going all the way back, I mean, distinctly remember this, like throughout law school, was that, hey, look guys, if you think the right to an abortion is fundamental and should be a fundamental part of the American constitutional project, you should amend the Constitution to protect a right to abortion. All you have right now is a court precedent that you are fiercely defending every four years by trying to make sure that the president that is elected won't appoint the people who'd overturn Roe. That's very unstable. It's inherently unstable. And so if you want to enshrine the right to abortion, you need a constitutional amendment. It cannot be the case that we essentially say, well, let's look at what all the things the Warren Court did or the parts of the Burger Court that we like. And then you've got to have a constitutional amendment to reverse court precedent. And I think what you have seen happen is that with the death of the amendment process, you had two very powerful legal philosophies that emerged. One of them, this is imprecise, but I tend to think of some of the best expression, the best contra to originalism philosophy to me is purposivism. In other words, hey, you can't read the Constitution like a statute. You're reading it much more like these are declarations of values and principles that we're seeking to uphold. But the answer can't be that purposivism or whatever your liberal judicial philosophy establishes precedents that can only be overturned by a constitutional amendment. The same originalism, if you establish a President Dobbs, could be overturned by a liberal Democratic, a liberal dominated majority. It's just a precedent. And I think that if the point of the article was competing, judicial philosophies result in instability of constitutional law that can only be resolved by constitutional amendments. I'm marching on that we would march right along linked arms.
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A
One side gets to freeze the judicial conversation. And then from that point forward, you're anti democratic if you change the judicial conversation. That's insane. Either we're for the amendment process or we're not. Originalism didn't freeze or it's not the one that undermined the amendment process. And we know that because I have quotes from lbj. You know what, David, I'm going to Read it. Here's President Johnson. So, well, before originalism, right? Originalism does not exist at this point. Quote, for us to amend the Constitution, we need 2/3 majority in Congress and then a vote of 3/4 of the states. Justice Douglas can do it in one afternoon. That's what killed the amendment process. Originalism ain't got nothing to do with it. Originalism is the reaction to the death of the amendment process.
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B
So let me ask you this, Sarah, and I mean this in both directions, by the way, how much of the originalism debate is all about abortion in Roe?
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A
You really have to have some interesting conversations about the origin of the originalism story, because you almost have these different strains at the beginning. You have a Bork strain, a Scalia strain, and a Meiss strain. They're all going to then merge around 1985 in. I think Mies wins that. And I think it is fair to say that the strain that came out of that, that the strongest thread in that strain at least was the abortion strain. But I wouldn't say that all the threads that made that rope were abortion, if that makes sense. But I'm going to agree on that. And then of course, it's ignored, except in academic circles for a long time by the political left, once the political left starts paying attention to it. Absolutely, it's about abortion because they believe that the litmus test that originalists are using to put judges on the court is the Roe v. Wade test. Now, the problem with that is I can agree that it was a litmus test, but that doesn't necessarily mean it was because of abortion qua abortion. Roe v. Wade also was a litmus test for originalists because it was so untethered to the original meaning of the Constitution. And so both can be true at once in a lot of ways that it is about abortion, but maybe not for all the reasons the left thought.
- [37:30]
B
I would put it like this. Roe was maybe one of the very few questions that originalism makes pretty easy. That's. And so. And Roe is also one of the most important judicial decisions of the last 100 years. It is one of the most inflammatory from a public standpoint. So if originalism is a legal philosophy that is utterly at odds with Roe, although very not, it is not, as we've seen and as we've talked about, if you listen to this podcast, it doesn't make a lot of other things super crystal clear. It's not like a turnkey solution to legal complexity. Originalism is not at all, as Amy Coney Barrett's book Makes clear, for example, but it is very simple when it comes to Roe. And so then it became a symbol of something that if you were supporting Roe, you were had to be against originalism. If you were opposing Roe or if you support abortion rights, you're against originalism. If you are opposing abortion rights, then originalism becomes the banner under which you walk. And so it was actually the conversation around. The popular argument around originalism was almost entirely a proxy for the argument about Roe. And then it gets so much more. And I feel like that becomes so much more clear when you now begin to see so many liberal scholars and advocates pivoting their arguments to originalism. And here's Akhil Rita Mar over here waving his hand, saying, hey, there's always been room for liberal originalism. It exists. I'm here. I'm here. I write things. And. And so you have. You're beginning to see, just because the reality of the Court. You're beginning to see a lot of liberal writers, thinkers, advocates, scholars making originalist arguments that are very compelling, that do not automate, that lead to what you might think of as more liberal outcomes in the same way that when purposivism or its adjacent theories was dominant, conservatives could make some very compelling purposivism arguments, First Amendment free speech, for example, in that area. But I feel the more we fight about originalism and the more we see how complicated it is and how it isn't a turnkey solution to legal complexity, the more I just feel like a lot of the popular argument is just rehashing Roe and Dobbs.
- [39:43]
A
Okay, I think we've solved that. You know, maybe on a future episode, we got a question from a listener about different types of judicial philosophies. We should do a glossary on the next episode of all the different types of judicial philosophies and methodologies that are out there and try to give them some definition. But when we get back, we've got three circuit cases to get to. D.C. circuit, 11th Circuit, and 5th Circuit, where, David, I have a feeling you're gonna have feelings. All right, David, given what we were just talking about, let's do this D.C. circuit case first. I'll give listeners some of the facts here. Perlmutter was appointed Register of copyrights in October 2020 by the Librarian of Congress. In May, she released a report on AI and copyright, where she suggested that some use of copyright material might be fair use, but a lot of it would violate copyright laws. The day after the report, the President fired her via email because he disagreed with the report's recommendations. And he attempted to appoint Deputy Attorney General Todd Blanche as Acting Librarian of Congress, who then appointed Paul Perkins as the new Acting Registrar. Okay, so very similar setup to our FTC case in a lot of ways. The question is, is the Library of Congress different? Is it an executive agency? 2 to 1, judges Pan and Childs said only the Librarian of Congress can remove the Registrar, not the President, and the Library of Congress is not an executive agency. That this case is different than Wilcox and Boyle, the other two removal cases that went up to the interim docket to the supreme on the National Labor Relations Board and one of the other Alphabet agencies that I'm blanking on at the moment, because the Registrar primarily advises Congress and doesn't exercise substantial executive power. Judge Walker dissented. And I gotta say, David, the dissent had some receipts here that I thought were pretty well done. Can I. Can I read a couple pieces of this?
- [41:55]
B
Yeah, please.
- [41:56]
A
Here's just the first paragraph. The Register of Copyright exercises, quote, executive power, footnote to a case. So I went and looked up that case, because that's. I mean, if that. That's like the ball game, right? If that's correct. So I went and looked up that case, and here is the previous decision by the D.C. circuit. Furthermore, we have recently recognized the important executive power exercised by the Library, suggesting that whatever the Library's historical association with Congress, it is squarely a component of the Executive Branch in its role as a copyright regulator. So specifically, the Copyright Office is an executive power held another D.C. circuit panel, like, not many years ago, but of course, that had a citation as well. So then I went to that citation, and it's like, all over the place, intercollegiate. Who was one of the parties in this third case I'm mentioning notes that we have referred to the Library of Congress as a Congressional agency and argues that it is not its executive department that can satisfy the head of Department definition. Despite that language, the Library of Congress is a freestanding entity that clearly meets the definition of an executive department. To be sure, it performs a range of different functions, including some, such as the Congressional Research Service, that are exercised primarily for legislative purposes. But as we have mentioned, the Librarian is appointed by the President with advice and consent of the Senate and is subject to unrestricted removal by the President. Further, the powers in the Library and the Board to promulgate copyright regulations, to apply the statute to affected parties, and to set rates and terms case by case, are ones generally associated in modern times with executive agencies rather than legislators. In this role, the Library is Undoubtedly a component of the executive branch that's like a mic drop to me or a peroration, as we learned from Professor Driver.
- [43:49]
B
Yeah, it feels like the kind of case that if they're going to reach this conclusion, they have to do it en banc, that a three judge panel can't contradict two previous panels of the court. And so it strikes me that the actual, the majority opinion, the way I would personally evaluate this is the majority is mistaken because it can't do what it just did. A three judge panel isn't supposed to be able to reverse another three judge panel of the same circuit. It's almost like cases from SCOTUS involving trans issues, abortion, gun rights, et cetera, are like small ball. Nobody cares about them compared to unitary executive theory. And if, and if I had on my bingo card that what is going to be the number one culture war issue at SCOTUS in the year 2025? Unitary executive theory was. That was in the air for a long time, but I had no idea that this would become sort of the issue around which the Supreme Court was going to be weighing in to the most consequential sort of culture of war type issues in the United States that are all centered around the power of the chief executive. This is wild, wild stuff, Sarah. And can I make a suggestion about the prior case law? I think a lot of the prior case law on this point is a little bit imprecise in part because when they're working on it, nobody knew that this was going to be the number one issue in the land years later. And so carefully defining in a, say, a D.C. circuit opinion what is, can you have a legislative agency that exercise that does anything that looks like executive power really should have been something super parsed out. But here we have it. We have a legislative agency that has executive, that has functions, functions that look very, very executive. What do you do with that? That's a very, very, very good question to which we don't have a really comprehensive, satisfactory answer. And the previous cases from the D.C. circuit here though seem to pretty clearly indicate that this sort of hybrid setup should code as executive, not legislative.
- [46:05]
A
I think that's obviously true. And by the way, some of the way they got to this was to say that the President couldn't fire Perlmutter himself because only the librarian can fire the head of the copyright agency, the registrar, and he can fire the librarian, but he can't put in Todd Blanche's acting librarian because the librarian must be confirmed with the advice and consent of the Senate. And The Vacancies Reform act that allows the President to put in actings doesn't apply to the Librarian of Congress because it's not an executive agency. So the whole thing is, like, wrapped in itself on the executive agency front. And I'll note, David, the facts can really distort the outcome of some of these cases. That previous case that I mentioned, where the library, in particular the Copyright Office, was an executive agency, was about whether the Administrative Procedure act applied to the Copyright Office. And there they were like, yeah, definitely, it's an executive agency. It definitely applies. But here, whether the Vacancies Reform act applies. Yeah, I think this one's a loser.
- [47:12]
B
Yeah. But the one thing that struck me, There are many things that struck me about this, but one thing that struck me was this paragraph. The President subsequently invoked the Federal Vacancies Reform act to purportedly appoint Deputy Attorney General Todd Blanch as Acting Librarian of Congress. Okay, so this is like Marco Rubio is half the Cabinet. I guess. Todd Blanche is. And so, guys, when we talk about, okay, sort of an out. What could an out of control executive do when it comes to populating the executive branch of government with basically just little more than partisan allies that this is. And when I say little more than partisan allies, I mean, I'm not naive. I absolutely know that there is a long history of using partisan allies and presidential appointments that are well beyond their, their zone of competence. Don't get me started on some of the people that, for example, President Clinton put in charge of negotiating the North Korean nuclear deals or attempting to negotiate North Korea, Korean nuclear deals in his presidency. Just wild stuff. So I know at the very top edges of the federal government that it is very common to put partisan, just pure partisans in positions of power, no question. But, you know, one of the things that you see when you look at this administration, I'd never seen one so purely dedicated, almost regardless of the function of the agency, to putting someone in charge where their chief qualification was going to be absolute unyielding loyalty. And if you think that would stop at the highest echelons of government in a world where the Supreme Court answers no into question two, I got a bridge to sell you. This would happen up and down the system, up and down the system.
- [49:05]
A
All right, next up, we've put off the culture war for too long. The 11th Circuit sitting on banc, decided this one, seven, six, very close. Anna Lange, a transgender woman and sheriff's deputy, sought coverage for male to female sex change surgery. The county's insurance plan excluded coverage for drugs for sex change, surgery and services and supplies for a sex change and or the reversal of a sex change. The plan did cover other gender dysphoria treatments, hormones, counseling, endocrinologist visits. And the question was, is the exclusion of drugs for sex change, surgery and services and supplies for sex change or the reversal facially discriminatory under Title 7? Seven judges on the 11th Circuit said it did not violate Title 7, pointing to Scremetti, and six judges said that it would. What's your take, David?
- [50:04]
B
I'm surprised it was that close, to be honest, after Scrametti. And the reason why I would say that is I feel like Scarmetti really undercut the sex discrimination analysis when you're dealing with one of the key factors being a diagnosis. So if you look at Scarmetti, the thing that took Scarmetti out of the sex discrimination rubric was it was about age plus diagnosis, age plus diagnosis. And so therefore, it wasn't a sex discriminant. If you took a 18 year old person and a 16 year old person, the 18 year old would be able to receive the treatment. The 16 year old would not. The only distinction. And they both had the same diagnosis, the distinction there was age Here, essentially, what the court, the majority is saying is the real distinguishing mark here is diagnosis. It's not sex discrimination because neither male nor female individuals can receive this insurance coverage. So there isn't a sex discrimination component here. There is a diagnosis for which the insurer is providing limited coverage for in the way that it provides limited coverage for other kinds of diagnoses. And then you have to get to, well, wait a minute. In this circumstance, is this a diagnosis that is dealing with a protected class? And if the protected class isn't sex, then is it transgender status? But there's no indication from Scormetti, and in fact, there's a lot of indication from Schemetti to the contrary, that there isn't a protected class, that transgender individuals are not a protected class under federal law. You're protected on the basis of sex, not transgender status. So if this isn't sex discrimination and then transgender status isn't a protected status under federal law, then you're left without a cause of action here. So I was surprised it was 7, 6 based on the Scarmetti case, because there is not the sex discrimination component. Instead, what you're really talking about is a discrimination on the basis of transgender status. The interesting question, Sarah, though, is, you know, one of the reasons why you went back at Scremetti and they were talking about and Was it Judge Justice Barrett? Gosh, I think it was. Justice Barrett, correct me if I'm wrong, who was talking about, okay, should transgender individuals be a protected class a suspect class for equal protection analysis? And one of the factors was that there just wasn't a history of sort of de jura discrimination against transgender individuals in the same way you'd seen against, say, black Americans, et cetera. It would be if you did have an awful lot of insurance policies that were preventing transgender adults from receiving treatment for gender or covering treatment for gender dysphoria. I do wonder if that would begin to adjust the discrimination analysis down the road about protected status. But as of now, without sex discrimination and without protected status. Yeah, I don't. I don't see how the plaintiffs win here. What. What. What was your thought?
- [53:24]
A
So you've got Scrametti, that was decided on 14th amendment equal protection grounds, and you've got Bostock, that was decided on Title 7 statutory employment discrimination grounds. And I think they can feel intention. I had never really thought of them as being intention. And I think, David, you described it well, that sex discrimination based on stereotypes, for instance, of what you look like in the office does to me seem fundamentally different than what Scrametti was talking about, which was medical diagnosis and treatments that will be covered. Now, this case is the first time we've seen the combo, right? So it's the Scrumeti facts, if you will, but in the statutory context. And you have, of course, a concurrence by Judge Newsom saying that the two do not collapse. Your equal protection analysis is not the same as your Title VII analysis and discusses why. There is a great quote, by the way, that really has nothing to do with what we're talking about, but it's pretty fun. Another difference noted by the most in a good way, notorious sex equality advocate of her generation. The equal protection clause prohibits only intentional discrimination, while Title 7 aims to eliminate all forms of employment discrimination, unintentional as well as deliberate. Citing Ginsburg, J. Dissenting in Ricci v. DiStefano in 2009. Anyway, I just thought it was a fun use of notorious in a good way. So, yeah, I mean, I think this comes out the right way. The case that I am interested in that is yet to come. So this was Title seven, but in the factual context of Scrametti. I would like to see another case like Bostock come through that is not medical, but not purely what you wear to work and see whether Bostock gets cabin to, like, the most narrow set of facts, like whether you wear makeup to work or not. Which is, to me, I. I know I'm, like, the only conservative in the world who's like, yeah, that seems like sex stereotyping to me. I don't know what else we'd call that. Same reason. For instance, a woman couldn't be forced by her employer to wear makeup to work, which I also am against. I'm curious to see what will happen when someone tries to extend Bostock. But not to these facts, right? Not to the Scrometti facts, which I think are just clearly not within the Title VII permit.
- [55:53]
B
I do think that there is a building momentum to take punitive legal action against transgender individuals, which is different from sort of saying the legislature has determined it does more harm than good, that these medical interventions do more harm than good. Entirely proper legislative determination to sort of a sweeping sort of crackdown on transgender individuals. You're going to start to move the needle towards creating a protected class. If you start engaging in sort of this punitive actions against individuals on the basis of transgender status, you're going to start to raise those kinds of 14th Amendment concerns. So it's a very interesting, evolving arena of law, but under present case law, I think that the 11th Circuit majority is just correct here. If there isn't sex discrimination, and there isn't. There isn't a protected class around transgender status versus sex, and even here there's not sex discrimination, then, you know, I don't see how you square a contrary result with Skremetti.
- [57:02]
A
All right, David, Last Circuit decision that I wanted to talk about just briefly. Remember, the Supreme Court remanded back to the 5th Circuit that alien Enemies act case about the Venezuelan petitioners. Now, the Alien Enemies act was issued. This is a 1798 statute. The alien act that we're talking about. It is applicable only in the event of a declared war. No, an invasion or a predatory incursion by a foreign nation or government, and then it allows the president to detain alien enemies without going through the Immigration Naturalization act and the sort of congressional process that you would follow from that. And, David, we talked extensively about the difference and why one would probably just be better off going through the administrative immigration process than going into Article 3 courts every time by using the Alien Enemy Act. Okay. But it goes back down to the Fifth Circuit. Two to one. The Fifth Circuit says, yeah, no, our analysis leads us to grant a preliminary injunction to prevent removal because we find no invasion or predatory incursion, and that's the end of that. The reason I bring this up is because of the dissent by Judge Oldham. Just read. For 227 years, every president of every political party has enjoyed the same broad powers to repel threats to our nation under the Alien Enemies Act. And from the dawn of our nation until President Trump took office a second time, courts have never second guessed the President's invocation of that act. Not once. The reason is simple. Determining whether the AEA's preconditions are satisfied, whether there is a declared war or any invasion or predatory incursion being perpetrated, attempted or threatened, depends upon matters of political judgment for which judges have neither technical competence nor official responsibility time and time.
- [58:57]
B
Can I stop you right there?
- [58:59]
A
Yeah.
- [58:59]
B
That's so completely wrong. That is so completely wrong. I mean, come on, Judge. The reason it's not been controversial is because it was enacted three times in three declared wars. The War of 1812, World War I, World War II. That's the reason it's not been controversial.
- [59:18]
A
Let me read on. Time and time again, the Supreme Court has instructed that the President's declaration of an invasion, insurrection, or incursion is conclusive, final, and completely beyond the second guessing powers of unelected federal judges. That rule does not apply only to presidents. It also applies to governors. In one famous case from the 1930s, for example, the governor of Texas, Welcome. Declared an insurrection because some oil barons in East Texas were pumping too much crude. Referencing a 1932 case that went to the Supreme Court. It seems patently absurd to call profit maximizing business practices an insurrection. But that's irrelevant. The Supreme Court unanimously held, quote, by virtue of his duty to cause the laws to be faithfully executed, the executive is appropriately vested with the discretion to determine whether an exigency requiring military aid for that purpose has arisen. His decision to that effect is conclusive. For President Trump, however, the rules are different. Today. The majority holds. President Trump is just an ordinary civil litigant. His declaration of a predatory incursion is not conclusive. Far from it. Rather, President Trump must plead sufficient facts, as if he were some run of the mill plaintiff in a breach of contract case, to convince a federal judge that he is entitled to relief. That contravenes over 200 years of legal precedent. And it transmogrifies. Transmogrifies the least dangerous Brants into robed crusaders who get to play act as multitudinous commanders in chief. First of all, David, just great sat sentence there at the end. Second. So you disagree?
- [60:50]
B
Come on. I mean, a president does something no president has ever done before, and then you say why are you treating him the way no president has ever been treated? Why is he acting the way no president has ever acted?
- [61:01]
A
But doesn't it matter? Could Congress give that to the president? As you've said before, David, there's a difference between saying when there is a predatory incursion and when the President determines that there is a predatory incursion. Do you believe that courts can second guess that second statutory language?
- [61:20]
B
The reason why I think the Insurrection act is so dangerous is for exactly that reason, the legislature has given and delegated that authority to the President. Interestingly, the War Powers act, for example, seems to imply, although there are others who would disagree with me on this, that a president sort of can get like what, a couple months of war without a congressional declaration, as long as there's congressional notification. Or if you look at the travel ban case, in the travel ban case, this was when the President determines that a certain class of aliens, a certain alien or class of aliens presents. I forget the exact language, but when Congress does know how to delegate, explicitly delegate that power to a president, absolutely knows how to do that. Now, I do think there's major questions doctrine issues there, but major questions doctrine has been. It's very dormant. It's very dormant. We need a lot more development. But here there isn't that language. That language just flat out doesn't exist. It refers to, it says whenever certain conditions exist. It doesn't say when the President finds that certain conditions exist. And then since we're dealing with an area where there is specific reservation of power to Congress in the Constitution, the power to declare war, this isn't just a matter of intruding on the executive here. There's a legislature who has the power to declare war. And so this isn't just just treating with the executive. I felt like the majority opinion did an excellent job of going through that. Look, that if you're going to take any sort of what do words mean analysis here between invasion and predatory incursion, that what the words mean. It's. It's not hard to discern. An invasion is what Russia is doing to Ukraine a predatory incursion. And they went back to the things like, you know, raids by Indian tribes, et cetera. A predatory incursion, again, is something that sounds in a military context. So although I'm 1 million percent in favor of it, Pakistan would argue that we had a predatory incursion when we raided Islamabad and killed Osama bin Laden. That would be when a country's military or an armed force is use. You're Using military force within a sovereign country in a way that's distinct from an invasion, which is taking and holding territory, versus in a predatory incursion, which is often a. For one nation to damage another, one nation to inflict harm on another. And so the historical context of this couldn't be more crystal clear. The idea that this is a way in which you can escape the entire criminal justice system by presidential fiat. Wow. And so, yeah, if a president is going to do something that is not. Has no precedent in American history. It's not a defense to judicial intervention to say there's been no similar intervention in history. That's just what I find so objectionable.
- [64:21]
A
Okay, So I actually think in the end, we agree. Violently. So here's the statutory language. Whenever there is a declared war between the United States and any foreign nation or government or. Or any invasion or predatory incursion is perpetrated, attempted or threatened, against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event. That's when his powers are unlocked. The. And the President makes a public proclamation, to me, separates out that first clause, as in. That first clause is open to judicial fact finding and reviewing. So I agree with the majority. I disagree with the dissent. But I think that the statute could be written differently and that there are statutory things, as you mentioned, David, that are committed to the President's discretion. Understandably so. As in some, it might be wise or unwise, but it's what Congress intended it to be. That, like, this isn't up to courts to get to second guess the President in this type of emergency. Look, someone's got to make the decision. We pick that guy, not you. Courts. In this statute, however, it looks like it was a factual determination and the President is a separate. As in, the President must agree with that previous factual determination and the President makes public proclamation of the event is basically, you have to have two keys on the nuclear code. The factual determination is made by someone, and the President agrees with that by making a proclamation. So, yeah. All right. Well, that's the fifth Circuit for you. That one might be going back up. Or not. Of course, if the Supreme Court thinks that the 5th Circuit majority got it right. Okay, well, we ended in violent agreement. We solved who broke the Constitution. And I'm feeling good. You know, David, our next episode will come out after the court's long conference. And so we'll talk about the long conference a little bit. We'll talk about judicial methodologies, some of the cases for the upcoming term, because first Monday of October is right around the corner. OT25 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 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@advisory opinionsedispatch.com we read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.
- [67:46]
B
Sa.