Podcast Summary: Advisory Opinions

Episode: "Everyone Needs to Stay in Their Lane"

Date: November 13, 2025
Hosts: Sarah Isgur and David French
Podcast by: The Dispatch

Episode Overview

This episode delves deep into several nuanced constitutional law issues, including the First Amendment implications of "disturbing the peace" statutes, the nondelegation doctrine, the scope of the Territories Clause, a notable religious liberty case (Landor / RLUIPA), and the legal liabilities of military personnel regarding potentially unlawful orders. The hosts, Sarah Isgur and David French, emphasize structure in the Constitution, the importance of process over outcome, and their sometimes “radical” focus on these foundational issues, all while maintaining an engaging, conversational tone.

Main Topics & Key Discussion Points

1. First Amendment & Disturbing the Peace (Dave Portnoy Incident)

• Reference: Dave Portnoy, Barstool Sports, was verbally harassed in Mississippi; his assailant was arrested under a “disturbing the peace” statute with a possible hate crime enhancement.
• Statute Language: Focus on arrest for "offensive or boisterous conduct or language."
• Analysis:
  • Sarah initially doubts someone could be arrested for merely saying “F the Jews,” but reviews the statute and reconsiders.
  • David explains, “...the key element...is going to be that the courts have interpreted disturbing the peace as almost inherently related to a time place manner restriction.” (08:00)
  • The application is context-sensitive, depending on whether conduct actually disturbs rather than simply being loud or offensive.
• Insight: The statute’s breadth might make it facially overbroad, but in practice, prosecution is context-limited and courts use time, place, and manner factors.

Memorable Quote:

Sarah: “I promise he did not get arrested for saying F the Jews. And now I’m looking at this and I’m kind of like, did he get arrested for saying F the Jews?” (07:08)

2. Nondelegation Doctrine and US v. Pheasant

• Case Overview:
  • Mr. Gregory Pheasant was charged (among other things) for driving an off-road vehicle on federal land without a taillight—a regulatory crime based on a broad congressional delegation to the Secretary of the Interior.
  • The 9th Circuit (en banc) denied review; dissentals from Judges Bumatay and VanDyke argued the delegation was too broad.
• Legal Background:
  • The “intelligible principle” test (from J.W. Hampton v. United States, 1928) is the longstanding but weak nondelegation standard: Congress must give “some guidance” when delegating authority.
  • Only two delegations have been struck down (both 1935).
  • Most recent major case: Gundy v. United States (2019)—the doctrine almost revived, but no majority formed.
• Key Constitutional Point:
  • Is criminal law special? Should delegating to the executive the power to define crimes (actus reus) be forbidden?
  • Bumatay’s dissental: “Congress must at a minimum define the actus reus within the four corners of the statute.” (31:33)
  • The judge notes the risk: an unelected bureaucrat can define criminal conduct, risking liberty with little notice to the public.
• Host Perspective:
  • Both David and Sarah are emphatic that structure and separation of powers are core to democracy.
  • They agree this is an “excellent vehicle” for the Supreme Court to revisit nondelegation, especially as applied to criminal statutes—but both doubt the Court is ready to fully overturn the intelligible principle test.

Memorable Quotes:

Sarah: “We’re structural constitutionalists... Congress stay in your lane, the President stay in your lane, ne’er the twain shall meet.” (21:32)
David: “When you back away from congressional power, you are literally backing away from the most democratic element of the American nation.” (29:15)
Judge Bumatay’s line, read by Sarah: “Because today we bless a conviction where some unaccountable bureaucrat, rather than the people’s Congress, established the conduct made criminal, I respectfully dissent.” (34:32)

3. Supreme Court Prospects – Will They Take Pheasant?

• Process Note: Sarah explains the cert process and timing—difficult for the case to make it into the same term as other major “structural constitution” cases unless the defense files fast and gets lucky.
• Consensus: Both doubt there are five justices willing to upend or revise nondelegation in the sweeping sense Pheasant would require.

Sarah: “We’re the junior high girl who’s crushing on the guy and, like, we’re thinking about him all the time and he is thinking about Halo.” (40:35)

4. The Territories Clause & Plenary Power Over Tribal Affairs

• Case in Question: Quentin Venino v. United States—denial of cert, but with dissent from Gorsuch and Thomas to reconsider federal power over crimes on tribal land.
• Legal Issue: Is federal authority (from the Territories Clause) over Native American tribes justified constitutionally?
• Gorsuch's Perspective:
  • Argues existing precedent (“plenary power” case law) needs reevaluation, likening these cases to Plessy and Korematsu in their gravity.
  • Suggests the clause was not meant to permanently authorize federal criminal law on tribal or similar lands.

Sarah: “If he has his way, [Gorsuch] will be remembered as the justice who remade the Supreme Court’s doctrine about tribal members on Indian land.” (47:36)

• Wider Implications: Litigation around the Territories Clause could impact not just tribal lands but also U.S. territories (the “insular cases”).

5. RLUIPA & Landor: Remedies for Religious Rights Violations in Prison

• Case Recap:

  • Mr. Landor, a Rastafarian inmate, was forcibly shaved in violation of a clear 5th Circuit precedent and RLUIPA. He seeks damages against individual officers.
  • Issue: Does RLUIPA’s “appropriate relief” language allow for money damages against individual officers?

• Oral Argument Analysis:

  • Hosts predict Supreme Court will say “no”—relief is limited to injunctions, not damages, even in clear, egregious violations.
  • Highlights ongoing trend: difficulty in getting monetary relief for civil rights violations against federal or state actors.

David: “This is another one of these cases where we’re looking at a remedies problem when there is a violation of your constitutional and statutory rights.” (52:23)

6. Remedies for Federal Officer Misconduct

• Listener Q&A:
  • Listeners ask about ICE officers, damages, and remedies when federal officers violate rights.
  • Sarah clarifies: Damages are extremely hard to obtain (Bivens actions are nearly extinct; FTCA is narrow), and Congress often creates no cause of action.

7. Military Orders & Lawful/Unlawful Acts

• Listener Q&A:
  • What happens if a servicemember is ordered to attack a target they believe is unlawful—can they refuse?
  • David’s Analysis:
    • For junior officers, almost never (if legal clearance was obtained, e.g., OLC opinion exists).
    • You can use illegality as a defense if court-martialed, but will almost certainly face court-martial first.
    • Only in cases of manifest illegality (e.g., ordered to shoot an unarmed prisoner) is there a duty to disobey.

David: “If you’re a lieutenant and you say, ‘I think the OLC was wrong,’ you’re going to face military discipline for that without question, and the prospects of you surviving that process are very low.” (64:33)

8. Upcoming: Illustrated Supreme Court Cases for Students

• Cato is producing graphic novels covering Supreme Court cases relevant to AP Government exams; the hosts praise this project and promise a deep dive in the next episode.

Notable Quotes & Timestamps

• David French (structure): “When you back away from congressional power, you are literally backing away from the most democratic element of the American nation, and you’re making America less democratic.” (29:15)
• Sarah Isgur (structuralism and the court): “We’re super into the structural Constitution and that the structural constitution, by the way, is different than originalism or textualism.” (21:40)
• Judge Bumatay, via Sarah: “Because today we bless a conviction where some unaccountable bureaucrat, rather than the people’s Congress, established the conduct made criminal, I respectfully dissent.” (34:32)
• Sarah (Supreme Court's interest in nondelegation): “We’re the junior high girl who’s crushing on the guy and, like, we’re thinking about him all the time and he is thinking about Halo.” (40:35)
• David (military orders): “If you’re a lieutenant and you say, ‘I think the OLC was wrong,’ you’re going to face military discipline for that without question, and the prospects of you surviving that process are very low.” (64:33)

Timestamps for Key Segments

• 00:00–03:59: Intro, announcement, listener correction on LDS church
• 04:00–10:31: Portnoy incident, disturbing the peace statute & First Amendment discussion
• 10:32–25:17: Nondelegation doctrine deep dive—history, the intelligible principle, US v. Pheasant, Gundy v. US
• 28:35–31:27: Structural Constitution—why it matters, democratic legitimacy
• 31:28–41:00: Back to Pheasant, Judge Bumatay’s dissental, prospects for Supreme Court review
• 43:34–50:13: Territories Clause, Gorsuch/Thomas, tribal and territorial authority
• 50:21–54:15: Landor case (RLUIPA), prison religious rights damages issue
• 54:16–56:23: Civil remedies for federal officer misconduct
• 57:13–65:13: Military orders, legality, and personal liability
• 65:14–End: Preview of next episode: graphic Supreme Court case books for students

Conclusion

This “Advisory Opinions” episode is a tour de force in constitutional process, exploring the nitty-gritty of criminal law delegation, structural constitutionalism, remedies for civil rights violations, and the real-world stakes of legal process for both individuals and members of government. Both hosts reiterate their radical (or as David prefers, “emphatic”) commitment to process over outcomes and the structural Constitution, warning against the erosion of core checks and balances. The episode exemplifies AO’s characteristic mix of witty banter, nerdy legal detail, and practical analysis for lawyers and non-lawyers alike.