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- [00:01]
A
You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. Action packed pod. Are disturbing the peace statutes actually a violation of your First Amendment rights? We've got non delegation doctrine galore. We are going to do a deep dive today and we are using Mr. Gregory Pheasant from the 9th Circuit who went on a little motorcycle trip in Nevada as our dive in to non delegation doctrine. We will also talk about the territories clause of the Constitution. Bet you can't repeat that one verbatim right now. I certainly couldn't. And Landor, our religious liberty case with RLUPA was argued this week. We'll give you the breakdown on that one. I don't think it's going to come out the way you thought it was going to come out. And finally, ignoring orders. If you are a member of the military who's given an order to blow up, for instance, one of those boats in the Caribbean, can you ignore that order? Can you decide that's an unlawful order? All this and more on Advisory Opinions. This holiday, discover meaningful gifts for everyone on your list at K. Not sure where to start. Our jewelry experts are here to help.
- [01:32]
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- [01:41]
A
Now. David, I'm going to tell you, producer Nick doesn't seem confident in our ability to do this show because we're both not great.
- [01:51]
C
Producer Nick is new around here because we have podcasted through Covid, Sarah, we have podcasted through flu, we have podcasted through late pregnancies, late pregnancies, through laryngitis, where one or both of us could barely croak a word out. I mean, we do it. We just do this podcast.
- [02:14]
A
So a couple notes. One, congratulations to my home state of Texas. Texas. CLE actually now is available based based on that tariff podcast that we did, David. So if you go to scotusblog.com cle you can get credit in a lot of states, including now the state of Texas. Thank you to several Texans who emailed in to light a fire under that one. Much appreciated. Second, we just correction from me. We were talking about the LDS Church and I said it was the Church of Latter Day Saints. We got a, predictably the nicest correction ever from a member of that church. That is the wrong name. It is the Church of Jesus Christ of Latter Day Saints. As this listener wrote in Christ is the center of our faith and we believe that salvation comes by and through him. For that Reason the church's title bears his name. No offense taken here, of course. Just a clarification. Boy, if that doesn't tell you everything you need to know about those in the LDS Church, that's a summary of the whole thing, I would say.
- [03:21]
C
Yeah, I love that. And we actually take great care at the times about this because there's a bit of brand confusion out there. And so there are a lot of people who, when you say Church of Jesus Christ Latter Day Saints, they don't know you're talking about the Mormon Church. And so what we often do is we'll start with Mormon and then say it is the Church of Jesus Christ of Latter Day Saints. And then the rest of the way through the column, or the we say that the full name. Or we'll just do exactly what we did and refer shorthand Latter Day Saints, which maybe that's. Maybe that violates the very politely drafted style guide.
- [03:59]
A
Okay, David, I have a quick one for you here right at the top of the show. Because our other producer, Victoria, put something into our show notes, which she never does. And I brushed her off and told her. She was like, you know, stop listening to Twitter, basically for your legal takes. And then I did some digging and, well, it turned out to be a little bit of a more interesting question than I thought. So did you see the Dave Portnoy confrontation down at Mississippi State?
- [04:29]
C
Yes, yes, I did see that.
- [04:30]
A
Okay. Well, for listeners, Dave Portnoy of Barstool Sports, he is Jewish. He was in Starkville, Mississippi last Friday for a Mississippi State football game and was producing a College Town pizza review when a man approached and said, and I'm not going to use the curse word. I will use a letter. Hey, F the Jews. F you, Dave Portnoy. F you get out of Starkville. The video also shows the man was blocked by another man, forced to pack up while being shouted down by apologetic patrons of the restaurant. There's a holes everywhere. What are you going to do? Portnoy said in the after the confrontation. Okay. There's also some allegation that the man threw coins at Portnoy. Charmingly put all. Put the coins and the like physical confrontation stuff aside. Just focus on the. F the Jews. F you, Dave Portnoy. The man was arrested and charged with disturbing the peace. And they are looking at a hate crime enhancement. And I wanted to read you the statute for disturbing the peace. Any person who disturbs the public peace or the peace of others by violent. Okay, fair enough. Or loud time, place and manner. Okay. Or insulting or profane or indecent, or offensive or boisterous conduct or language, or by intimidation or seeking to intimidate any persons or persons, or by conduct either calculated to provoke a breach of the peace or by conduct which may lead to a breach of the peace or by any other act shall be guilty of a misdemeanor and upon conviction shall be punishable by a fine of not more than $500 or by imprisonment in the county jail not more than six months or both. Part 2. I just loved this. The act of breastfeeding shall not constitute a breach of the peace. So we are in the modern era. Clearly they have amended this law recently. So as I said, there's lots of words in here that I think very much fall under not First Amendment protected stuff. Violence, obviously Loud, fine, indecent. Yeah, that's not protected. But the fact that all of these have or meaning one of them standing alone would be sufficient. I'll just take out the ones that I think are not First Amendment protected. Or at least, you know, you can have exceptions. If you disturb the peace with offensive or boisterous conduct or language. You can be arrested for this. And I just gotta say, David, initially again, producer Victoria was like, you know, this guy got arrested for saying F the Jews. And I was like, victoria, 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?
- [07:15]
C
It's possible. I mean, when you said leave aside the coin throwing.
- [07:20]
A
Well, because that would be assault to me, not disturbing the peace.
- [07:23]
C
Right, you're right about that. And I think with the disturbing the peace, what you're looking at is. And as I'm going to say when I say these words, I'm going to also say, I'm going to bet this is basically like a model disturbing the peace statute.
- [07:39]
A
This is not unique. Mississippi has a very normal statute there.
- [07:43]
C
So this is not, hey, Starkville is some sort of outlier repressive community. Here's what I think is going on with disturbing the peace statutes and why a statute like that would be on the books and be on the books for a long time and never be over and never be disturbed. Is that in reality the key element of this would is going to be that the courts have interpreted disturbing the peace as almost inherently related to a time place manner restriction. So just the loudness alone is not going to be. So the statute is not going to be interpreted as loudness is prohibited. It's Loudness that disturbs the peace. Now what does that disturb the peace mean? And layered within that is I think you're going to see a sort of a time, place and manner restriction. So loudness right after a Mississippi State game as they're chanting, go to hell Ole Miss, after beating Ole Miss, they're never going to arrest anyone for that. So they're not going to treat loudness by itself. It's going to be loudness that does something. And that something is going to be what typically removes it completely from the, the core. That that constitutional analysis it might be loudness outside of a private residence at 3am is disturbing the piece. Loudness outside of, you know, Mississippi State's football stadium or inside the basketball arena is not. And so I think hidden, basically the way that the, these disturbing the peace statutes have been applied is a time, place, manner element is essential to the proof of the offense. And a state, state prosecutor or state defense attorney, I would love to hear from you guys on this as to whether that, that in practice is how it plays out. That's just me from a distance saying, how could this be constitutional?
- [09:34]
A
Yeah, well, we'll, we'll see what this guy raises is his defense.
- [09:39]
C
But I, well, let me, let me say on this. I do think if all he did was yell at him in that moment, I think that's a tougher prosecution. I really do. If it is because it's broad daylight on the street, nobody's sleeping, etc. But if he did throw coins, if he did throw coins, that's going to be, that's going to make it different.
- [10:00]
A
Yeah. And again that's just been alleged in the video. I don't see him throwing coins. I see a guy walking down the sidewalk who yells at someone who is clearly recording something on tv. He recognizes him and yeah, I gotta say, like, I don't think that's disturbing the piece, but yeah. Okay, I want to do a whole non delegation primer. David, are you ready to buckle up for some spooky Halloween dissentals from Judges Boomite and Van Dyke?
- [10:33]
C
I'm so ready for this. I'm super happy about this. And yeah, let's do it. Let's do it.
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A
Okay, I want to start with Mr. Pheasant. This is the US v. Pheasant. Late at night on the Friday of Memorial day weekend in 2021, BLM Bureau of Land Management Rangers were patrolling Moon Rocks, an area of BLM administered land north of Reno, Nevada. By the way, it is Nevada and not Nevada. If you're out there and thinking of running for office nationwide. Just make sure you have someone who is constantly in your ear. I learned it by saying nevapple because it's the A in apple until I got it right. And now I can say Nevada correctly. Okay, it's Nevada. When the rangers saw a group of motorcyclists riding without lights, they turned on their emergency lights to direct them to stop. According to the rangers, one of the motorcyclists, Gregory Pheasant, refused to stop. After the rangers chased him down. He allegedly came to a stop only to split spin his rear wheel, thereby throwing rocks and dirt at the rangers while making obscene gestures and abusive comments. He then sped away again. Pheasant was eventually apprehended and a grand jury in the district of Nevada returned a three count indictment charging him with assault on a federal officer, resisting the issuance of a citation or arrest, and the only count that we care about. David. Driving an off road vehicle on public lands at night without a tail light in violation of Section 303 of the Federal Land Policy and Management act of 1976. Okay, so driving an off road vehicle on public lands at night without a tail light. A lot of elements to that. Fun times. Here's what the Federal Land Policy and management act of 1976 actually says. It gives the Secretary the power to, quote, issue regulations necessary to implement the provisions of the FLPMA with respect to the management, use and protection of the public lands, including the property located thereon. And the statute says that any person who knowingly and willfully violates any of the regulations that the Secretary makes shall be fined no more than $1,000 or imprisoned no more than 12 months or both. By the way, this is sounding quite a bit like disturbing the peace, except Congress just said, Secretary again shall issue regulations necessary to implement the provisions with respect to the management, use and protection of the public lands. I mean, that they basically just like deputized, like in the wild wild west, like the Secretary to just go out and make crimes. Okay, so based only on that language is how you get the crime of driving an off road vehicle on public lands at night without a taillight. So the district court says Congress cannot just tell the Secretary cannot delegate basically defining all crimes on public lands to the Secretary. The three judge panel at the ninth Circuit was like, meh, seems fine to us. That's an intelligible principle. Enough. It went up for en banc review and on Halloween, the court, the full 9th Circuit denied Ottenbank review. But we got dissentals from judges Bhumite and Van Dyke. So, David, I think to do this right, we need to back up to non delegation history. From basically the beginning, everyone saw this as a potential problem that Congress would just at some point say, like, hey, Mr. President, why don't you do our job for us? But everyone kind of brushed that off because ambition checks ambition and yada, yada, yada, in 1928 is where our story is really gonna begin. For non delegation doctrine. This is J.W. hampton versus United States. This establishes the, quote, intelligible principle test. It upheld delegation to the president to adjust tariff rates. I mean, that does sound pretty relevant to our lives right now. And here was the standard. Congress must, quote, lay down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is, is directed to conform. Since then, the court has held that this intelligible principle test is, quote, an exceedingly modest limitation, quote, not demanding, requiring only, quote, some guidance and, quote, deferential. In fact, David, only two cases have ever been struck down on non delegation grounds. They were both in 1935, which has led at least some libertarians to call it one good year.
- [15:29]
C
And also this doctrine led to, you know, I'm just going to call it mildly embarrassing moment. I was talking to Judge Sutton on a, I've told this story before, but on, on, on a Times podcast. And I was, I brought him on because I really wanted Times listeners to get a primer in originalism. And Judge Sutton did a phenomenal job on talking about what originalism was, what are the debates and disputes within it, all of this. And then we kept going and talked about some of the legal issues that will be very salient in this Trump term. And we talked about major questions. And I very eagerly brought up non delegation. And then this shows you the gap between people like us who are sort of thinking more theoretically about the law and a judge who's reviewing actual cases and then knowing that his decisions are going to be reviewed. And it wasn't that he said, oh, that's not a thing, David. It's more that he said, it's really not been a thing. And which is, which is a very polite way of saying, well, you know, this hasn't happened since, say, oh, about 1935. Now, that's not to say it could never happen, that non delegation can never be revived. And also there that we're just not, you know, we're talking about an actual 9th Circuit case that was an en banc that has some dissentals from en banc denial we, so we're talking about a real thing, but it's. To the extent that it's real. Can we say, Sarah, it's an emerging issue. It's. It's. Or a re emerging issue.
- [16:57]
A
All right. In 2019, David, when we had started this podcast, the court decided Gundy v. United States. And we talked about this at the time. This was a challenge to the Sex Offender Registration and Notification Acts delegation to, to the Attorney General to determine whether the sex offender registration stuff would apply to people who had broken the law before the act. And it was kind of a weird case, if you remember, because it was a non delegation case. But there Kavanaugh had recused himself because he had been on the D.C. circuit panel. To have heard the case is my memory at least it was a plurality where you have Kagan, Ginsburg, Breyer and Sotomayor basically upholding this and saying, like, it passes the intelligible principle test. You have Gorsuch, the chief and Thomas saying, are you effing kidding me? This is the poster child for non delegation. And do you know who the tiebreaker was? It was Alito. And basically what Alito says is like, look, I would love to bring back non delegation, I would love to reconsider the intelligible principle test, but nobody seems like they actually want to like fully, like, strike down Hampton in this case. And I'm not willing to pick out this one bizarre, very small example that also benefits sex offenders as our one time that we say, well, this is not intelligible, like, let's get rid of the intelligible principle test, or if we're not getting rid of it, then I'm happy to have the sex offenders still part of our intelligible principle test. David, I bring up Gundy because this dashed a lot of the hopes and dreams for our non delegation friends out there. Also, you know, it goes back to our conversations, for instance, about why the interim docket percentages can look partisan, even though we argue it's because the topic of the cases is different. This fell along ideological lines. But it's not because sex offenders, for instance, are ideological. It's because of that non delegation part, because the liberals like delegation to the administrative state, the executive branch, and the conservatives tend not to like delegation to the executive branch from Congress. And so that's why you see that dividing line in Gundy, which again, if you apply that to sort of current interim docket cases that have more, I get it, more trumpiness, more partisan valence and everything else, it is hard to see it In a gundy way. But just by way of explaining, I think, why you and I see those cases differently. We see them as gundy cases.
- [19:44]
C
I think the way that I would distinguish some of the. The way maybe judicial liberals and judicial conservatives look at non delegation in the presidency. So the more liberal side of the court would grant, would allow the Congress to delegate, but it also would allow Congress to keep its tentacles in whatever delegated to the presidency to the executive branch to a much greater extent than a judicial conservative would. So a judicial liberal is going to say you can delegate a lot of stuff, but also you can do things like create independent agencies. Also you can do things like limit the President's ability to hire and fire. You're going to. So the check on the President is retained by regulating the way the President executes the authority given to it by Congress. A judicial conservative, by a contrast, would say no, no, no. The way you check the President is by not delegating the authority, by not delegating that power. But then once you do delegate that power and you locate it in the executive branch, then Congress can't have the tentacles that it wants. Once you move over into the executive branch, it's the President's playpen at that point. And Congress, you. You don't have that authority to reach in. And so this is one of the reasons why a lot of smart folks are essentially saying unitary executive and non delegation are kind of. They have to walk happily into the sunset together for that system to really work. Because major questions, non delegation, et cetera, those are the things that keep the presidency under control from breaking its bonds, not regulation of the executive branch itself, if that makes sense.
- [21:32]
A
Yeah. And you know when people try to define this podcast and say like, well, this is a conservative podcast, and then other people are mad cause we're not conservative enough. I think the word conservative, I guess, is pretty unhelpful because I think an area where you and I are kind of radical, if you will. Free speech is one area. For instance, process over outcome. Obviously we're just like insane radicals. You have joined me, David, always as a process girl in an outcome world. But another area is that we're structural constitutionalists. And yes, I think right now that does tend to fall on the conservative side, if that word has a definition. But if you're looking for a more helpful term than conservative or liberal, yeah, we're super into the structural Constitution and that the structural constitution, by the way, is different than originalism or textualism. Because textualism and originalism are all based on ambiguous text, like, well, this text could go either way. And so here's how we're going to determine the meaning of the text. The structural Constitution idea is basically that there doesn't need to be text per se. The way that the Constitution functions in a separation of powers world requires certain things. One of those being strict separation of powers. Where I think, David, you and I are, you know, Congress stay in your lane, the President stay in your lane, ne' er the twain shall meet. And this gets to where I think Justice Gorsuch's major questions doctrine is different than Justice Barrett's. I've tried to explain this many times, but I know some of you guys, it's not easy. So Justice Barrett's major questions doctrine is a textualist doctrine. Major questions doctrine is helping you determine what the text was supposed to mean. Congress wouldn't have intended to hide that elephant in a mouse hole. Therefore, the way you can read the text is the assumption that if the text is ambiguous, it's not smuggling elephants. Justice Gorsuch's major question doctrine, in theory, is a lot more about non delegation doctrine. His is a constitutional avoidance canon, basically, that says if, you know, all things being equal, if you have an ambiguous text like constitutional avoidance doctrine, you should read it in a way that avoids a clash between the branches, and that's a clash between the Judiciary and the Congress and between Congress and the President. So the major questions doctrine basically says, look, Congress, we don't want to get into these intra branch structural disputes. So unless you wrote it clearly, we're not going to allow you to hide elephants in mouse holes. Even if that would, you know, if we were just flipping a coin like it's. The slightly better reading of the statute is probably that you did hide the elephant in the mouse hole.
- [24:26]
C
But.
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A
But if you hid the elephant in the mouse hole, now we've got a non delegation doctrine. Now we've got to decide whether you can give that much power to the President. That sounds like a big pain. We would have to revisit Hampton. We'd have to get rid of the intelligible principle test. That gets rid of 100 years, 90 years of precedent. We want to avoid that outcome and have to go through that process. So instead, we're going to require a little bit more of you if you want to delegate that much power to the President. So Gorsuch's is all about non delegation, which is why I thought we would do a little bit of this deep dive. Okay, when we get back, we're gonna go back to Mr. Pheasant, Judge Bhumite's dissental, and whether the Supreme Court is going to finally revisit the intelligible principle test. We'll be right back.
- [25:19]
B
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- [28:36]
C
You hit on something that I want to just pause on for just a second and that is when you were talking about sort of what are the things that we in our little AO hive mind, what are we sort of radical on? Free speech, of course. And you said structure of the Constitution. I want to pause there for just a minute and say that just to note that to say that we're radical on this doesn't mean it's like a personality quirk of ours. It's actually much more that look, the structure exists for a reason. And the reasons for the structure are outlined at some length in the Federalist Papers and in the back and forth between the Federalists and the anti Federalists. And when you begin to understand the reasons for the structure, that helps make you sort of woke on the structure, if that makes sense. So if you're looking at it, this is not an arbitrarily chosen division of power here. This is not something where the founders just said here's one for you, and here's one for you, and here's one for you. There was a rational thought process behind this that is reflected in the different nature of, of the different branches of the government. And so when you're talking about why we consistently say it's article one for a reason, what is one of the reasons why it's Article one? Well, because this is, this is a constitutional republic that is also a democracy. And the most salient element of democracy in the Constitution is the con is Congress and specifically the House of Representatives. So it is the branch of government closest to the people, most democratically representative of the people, and it has the most power given to it as a result. It is not unchecked power, but it is the most power. So when you realize that. That the weighting of power towards the legislative is inherently connected to our very identity as a democracy, then you begin to realize why we're kind of radicalized on this element. Because 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. Contrary. Contrary to the very structure of the founding document. And so that's a reason why we're emphatic about this. I like that better than radical emphatic. We're emphatic about this is because we are dealing with sort of definitional elements of our constitutional republic. And then we're buttressed in that emphasis by the fact that we can see when you depart from that structure, it begins to put very fundamental strains on the system, including very fundamental strains on the very confidence that we live in a democracy to begin with. So just to put a very brief code, like very brief parentheses, this is why we are. We emphasize it so much.
- [31:30]
A
Okay, David, back to our dear Mr. Pheasant, who sounds like a real a hole. So again, remember, the Ninth Circuit declines to take this case en banc. You just have Judge Bhumite and Judge Van Dyke waving their hands to the Supreme Court saying, please think about this. It's different. I'm going to read you some of Judge Boomite's dissental. Blackstone defined a tyrannical government as one in which the right both of making and of enforcing the laws vested in one and the same man and the same body of men. For whenever these two powers are united together, there can be no public liberty. The textual and historical evidence shows that to comply with Article 1's exclusive grant of legislative powers, Congress must, at a minimum, define the actus reus within the four corners of the statute. Okay, so let's take a couple minutes on actus reus. So we've talked about mens rea before on this podcast. That's the mental state you need to commit a crime. You have to intend to break the law. Usually, actus reus is that you have to do a thing. And in this case, what Judge Bhumate is saying in his dissental is Congress didn't even say, like, you know, Mr. President, we definitely don't want people cutting down trees on public land. Your agencies can define exactly how we're going to make that criminal law work. But we don't want people cutting down trees. The actus reus is cutting down trees in this case, if you remember, the delegation is literally like whatever you want it to be. The management, use and protection of public lands. And so, as Judge Bhumite points out, this act defines no prohibitive activity and provides no notice of what conduct would constitute a criminal offense. The statutory prohibition as indefinite as it gets. The act says nothing about where or when motorists can drive off road vehicles on public lands. It doesn't specify what conduct could land you in jail. Instead, the public would need to plumb the depths of the Federal Register to know what's off limits. This is no simple task. Citing Justice Gorsuch has overruled the human toll of too much law, explaining that the Federal Register has expanded from 16 pages in 1936. Remember, that's the year after our one good year to over 188,000 pages as of 2021. And it was likely unelected bureaucrats and not politically accountable actors who wrote those regulations. While some discretion may be left in the hands of executive officials, Congress must establish the conduct that subjects the people to a core deprivation of personal liberty, imprisonment. Because today we bless a conviction where some unaccountable bureaucrat, rather than the people's Congress established the conduct made criminal. I respectfully dissent. So, David, there's a few things here, but the biggest one is, is criminal law different when it comes to non delegation? It's one thing for Congress to tell the President to set the level of tariff, you know, amounts, for instance, and it's another for Congress to say make crimes, whatever crimes, any crimes you want.
- [34:51]
C
Could not agree more with that idea that criminal law is a great place to resurrect non delegation because of that very element that you mentioned. And also something that we've talked about at length on this podcast is when you delegate the drafting of criminal law to the President to the executive branch, what ends up happening is that you can have a situation where conduct that's perfectly legal in one four year span of time can become illegal in the next span of time with the underlying statute not having changed at all. In other words, there's no act of Congress to be made aware of that a certain level of, certain kinds of conducts unlawful, unlawful enough to land you in prison. Instead, as the judge was saying, you got to be monitoring the cfr, the Code of Federal, the Federal Register. You got to be. You got to be monitoring regulatory changes that are extremely difficult for anybody to monitor, even if you're a trained attorney, to track all of these changes, it's very, very difficult. And so here you are. Congress passes a law, it empowers the Executive to create crimes that can deprive you of your liberty, and then just washes his hands of it all, leaving the Executive in any given four years to be able to define and redefine when you could go to jail. So to me, as I was reading this case, I was just thinking, you know, there are good vehicles and there are great vehicles for a reexamination, and this is a pretty great vehicle. Even though Pheasant's conduct. Not great, as you said, he seems like a real a hole, but we're not.
- [36:36]
A
But he's not Rahimi. He's not shooting up a whataburger and threatening to kill his girlfriend and her child.
- [36:41]
C
He's just being a punk. That's basically what he was doing. And look, when I read that delegation, I literally laughed out loud. I'm sitting there all alone reading this, and I laughed out loud at the breadth of that delegation because it felt like it was drafted in a lab to make our point for us.
- [37:02]
A
We're all pretty high on Sudafed.
- [37:05]
C
Well, it's true. That is true. So a little punchy. Little punchy.
- [37:09]
A
We're a little punchy. Things are very funny right now. Okay, so another point is separate from the. The non delegation part. Just on persuasive writing. One of the things that I thought Judge Bhumite did so well in this dissental is he took on the Northwest Ordinance issue head on. Because in this fight, the Northwest Ordinance is a very big deal. As the strongest argument for the pro delegation side, because the Northwest Ordinance provided that territorial governors and judges could temporarily adopt criminal and civil laws of existing states until an assembly could be formed, like anything they wanted. You don't get much broader than that. I mean, it looks actually a whole lot like this act in a lot of ways. I really think the strongest writers, the strongest thinkers for that matter, take on the strongest arguments of their opponents. Even if you have to say like, yeah, that's a pretty good argument, but here's my counter, take it for what it's worth. And you know, we try to do that when we steel man stuff on this show. Certainly, David, I just thought Judge Bhumite did an excellent job showcasing how you do that. I think his dissental would have been much, much, much actually weaker if he hadn't brought up the Northwest Ordinance, because then it would be like, well, Wait, what about the one time that Congress gave infinitely no intelligible principle, really over to those territorial governors and judges, for that matter, to make their own criminal laws, to make a whole coat criminal and civil? So he says, look, on the one hand, yeah, this existed. I'm arguing it's the exception that proves the rule. There was this one time back at band camp that they did this. They didn't do it, since it involved territories. That's very different than federal land, but fine, like it exists. And then he says, and I have a second argument, which is the territorial governors and judges still couldn't define a criminal laws actus reus from scratch. They had to adopt a law that had already been written and enacted by other state legislatures. I actually think that's incredibly powerful argument to me that in fact, like, yes, this is a broad delegation because you can go shopping for criminal laws, but at the end of the day, those criminal laws were still passed by someone's elected representatives separate from an executive. So you still avoid the Blackstone problem where it is the consolidation of power and the unaccountability of power. Perhaps the Northwest ordinance still had the unaccountability problem in the sense that those people living there couldn't vote to remove the, you know, North Carolina legislature who had passed that criminal code. But it was never the case that the North Carolina legislature was the same as the North Carolina governor when they made the act in the first place. So persuasive writing point, but also a non delegation point. That's important. Now, David, let's get to whether we think the Supreme Court is going to take this one. Okay, big picture. Do you think that this gets a cert Grant?
- [40:26]
C
I don't want to say no. I don't want to say no. But I'm still of the mindset that maybe we're thinking about non delegation more than they're thinking about non delegation.
- [40:36]
A
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. All right, well, David thinks the Supreme Court will not take this one. I think this is going to be actually one of the relatively rare cases where even if you had four votes to take the case, you're not going to vote to take the case unless, you know, you have that fifth vote to overturn Hampton's intelligible principle test. And David, I think I agree with you that I'm having trouble counting to five. Just a little note here on how this thing would work. For instance, so the Sentinel was published on Halloween, October 31st. From there, Mr. Pheasant's team has 90 days to file their cert petition, but they don't have to use all 90, right? So let's assume that they only take 30 days to file their cert petition. The government would then have 30 days to file theirs. However, they can usually ask for a one time 30 day extension and that's usually granted. So it's usually like 90 days for the one side, 60 days for the other side. At that point, Mr. Pheasant side would be allowed to file a sir reply, meaning like they get to answer the government's brief if there was anything worth answering. They can, however, ask the clerk to go ahead and circulate the briefs as is and just add the reply when it comes. So again, if you're trying to go fast, right, you don't use your whole 90 days. If you're Mr. Pheasant, you oppose the government's extension and hope that they get denied their extra 30 days. And you say circulate without our reply. Don't wait for our reply. Just go, go, go. At that point, it would get circulated for conference, usually within about depending again on like whether it's in on a Tuesday or a Wednesday or whatever else you're looking at, like it getting assigned a conference in a week or two. Which is all to say, David, that if you wanted this case to get decided the same term as tariffs as slaughter, where you can sort of do a whole structural constitution term, it's kind of impossible. I've worked out the math as best I can. And again, the cases that are going to get docketed for this term have to be done by about the end of January. And remember, things usually get relisted at least one time before they get granted. So you need at least two weeks of conference. Is it possible? Yes, but Mr. Pheasant would need to get in his cert petition like the second they hear our podcast. They need to write through the night in order to get this heard this term. And that's if everything goes their way, which of course is pretty unlikely. So they're probably gonna say no to it. I hope they say yes to it. If they say yes to it, we are now in next terms cases already sadness.
- [43:34]
C
And it would give us just this marvelous treat to look forward to for next term. It's sort of like, you know, back in the day, your NBA team could draft people sometimes ahead of them formally leaving college and so you could know you're getting somebody. So Two years in advance and, you know, giving you something extra to look forward to. If we could get something where we had an extra little gem to already look forward to, that'd be amazing.
- [44:00]
A
When we get back, we are going to talk about two more cases. One, there was a dissent from the denial of cert from Justices Gorsuch and Thomas in the last orders list and that Landor case got argued. Remember the guy who's waving his 5th Circuit completely on point decision as they hold him down, down and shave his head? More on that when we get back. All right, David, first up, we have Quentin Venino versus United States. This case was denied cert, but we have Justice Gorsuch and Justice Thomas dissenting from the denial in which basically you've got two justices saying they want to overturn a case called United States v. Kagama. This is 1886, and it's basically going to uphold the Major crimes Act of 1885, which gave the federal government, quote, plenary power over the internal affairs of Native American tribes. Now, I said this was Justice Gorsuch, right? So none of this should come as a surprise, but let me give you the facts here. Quentin Venino Jr. Is a member of the Jicarilla Apache Nation, was convicted of domestic assault on another member of the tribe. His attorney has argued that the federal government's power over Native American affairs does not extend to criminalizing the intra tribal conduct of Indians on Indian land. But of course, Kagama says they can. So they're arguing that the constitutional authority of Congress to criminalize the conduct of Indians on Indian land is wanting. As in, where did this come from? Why can't the federal government have any say over what Indians do on Indian land? Let me read you the Territories clause from the Constitution, David, something we have never spent a second of time on on this podcast.
- [45:53]
D
Here's the Territories clause.
- [45:54]
A
The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. Okay, so here's Justice Gorsuch's argument. That provision affords Congress only the power to make needful rules and regulations. And while the clause may allow Congress to establish local governments and territories belonging to the nation before they enter the United States as states. And while the clause may allow Congress to establish local governments in territories belonging to the United States before those territories enter the Union as states states, it does not authorize Congress to exercise municipal jurisdiction over non federal lands within a state and over which another sovereign exercises authority. Accordingly, that clause can hardly supply authority for Congress to regulate conduct on tribal lands within states. Nor, for that matter, does the clause, rightly understood, endow the federal government with plenary power even within the territories themselves. Doubtless, as the government stresses in its opposition to this petition, many of the Court's plenary power decisions have stood for years. But the same was once said in defense of Plessy and Korematsu. And as with those cases, our plenary power decisions demand reconsideration if this court is ever to bring coherence to the law and make good on its promise of fidelity to the Constitution. A matter so grave cannot be settled until settled. Right. Quoting Justice John Marshall Harlan. So, David, obviously this has to do with Justice Gorsuch's probably what will be his most remembered legacy a hundred years from now. You know, we think of him as the YOLO justice. There's, you know, everyone's gonna talk about whether he's a Trump guy or whether, you know, he's libertarian. Maybe even a hundred years from now, no one will remember any of those fights. But if he has his way, he will be remembered as the justice who remade the Supreme Court's doctrine about tribal members on Indian land.
- [48:02]
C
Right, Right. I think you're exactly right about this. This is something that has been a very particular focus of his. I asked him about it when I interviewed him a couple of years ago, and, you know, he was very reluctant to be analyzed over it. Sarah might be a right way to phrase it, but it's very clear that he has special concern here. And thankfully so, because if there's a community of people in the United States who've not had a sufficient number of people have particular concern for their treatment, it's Native Americans. And so I think this is going to be it's going to be a very interesting way in which history looks back at this moment, because I think you're exactly right that a lot of the fights, doctrinal fights, that we're having now are going to recede in history, are going to be seen as sort of footnotes to history. But the lasting legacy, I think, will be a really substantial legal revision of how Native American rights are interpreted constitutionally and statutorily. And so I think you're 100% correct about that.
- [49:12]
A
Also, you'll notice the end of Justice Gorsuch's thing there was about territories as well. And so I got an email from Neil Ware at Right to Democracy. Neil flagged this because I think that they intend to also try to, like, get in on this to overturn the insular cases, which again, very similar plenary power case. Right. That, you know, the Constitution doesn't follow the flag into these territories. There have been, you know, spurts and starts when it comes to trying to overturn the insular cases. There hasn't been a lot of hunger for it, but maybe you can, like, ride on the tribal lands train and get consideration for the territories as well. So. And in some ways, I think that hurts the tribal land side of this because it's like, well, if that logic applies, and it applies very broadly beyond just tribal lands, you may find more Supreme Court justices hesitant to bite off such a big chunk o meat.
- [50:14]
C
Yeah, totally agree with that. Totally agree with that. And I'm also excited to talk about our little RLUPA case.
- [50:21]
A
Yes, let's do rlupa. Okay, so remember Mr. Landor, he is in jail. He is transferred to a different prison facility to serve out just the remaining few months of his sentence when he is transferred. He's a Rastafarian. He has long braids. He brings with him a fifth Circuit decision, literally on point for this purpose. They throw it in the trash, hold him down, strap him down to a chair and shave his head in violation of his religious rights, in violation of this fifth Circuit decision, and in violation of rluipa, the Religious Land Use and Institutionalized Persons Act. That is also fun to say RI Lupa and is the sister of rfra. Now, in rfra, the identical language was held for damages against individuals who violate your religious freedom rights. But in rluipa, that has not been the case. So the problem for Mr. Landor is who does he sue? Because this wasn't like a pattern in practice problem necessarily. He can't just sue the state prison, for instance. He's trying to sue the individuals who held him down and shaved his head. But can he? So this is actually. There's no question over his religious rights, The First Amendment, none of that. Everyone agrees that this was unconstitutional and violated his rights. The question is, what can you do about it? Or is RLUPA kind of unenforceable, except in a prospective, like, you could get an injunction. But of course, by virtue of being in prison, that's going to be pretty hard to do. Mr. Landor didn't have the time to get an injunction. He showed them the case, they threw it in the trash and immediately strapped him down to a chair to shave his head, as I keep repeating, because it is so egregious. So what good is RLUPA to a man in prison. David, after the argument, I think the answer is going to be not much.
- [52:23]
C
Not much. Yeah, you're exactly right. You know, 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. This is a consistent issue that we've been talking about for a long time. Under what circumstances can you get money damages as opposed to an injunction stopping? Nobody doubts you can get an injunction stopping the shaving of the head. But if the shaving of the head happens in spite of a court order, what remedy do you have? And that's the really key question here. And the question was whether the provision of RLUIPA that allows for appropriate relief, appropriate relief, is sufficient to grant this private right of action. And reading the tea leaves the same way as you, Sarah, it does not look as if that that language is going to be sufficient to grant a right of action. And, you know, I think that the, you know, the Louisiana, the, the Louisiana argument here was really that the remedy, the answer here for this problem is across the street, referring to Congress, that the answer here would be amending the statute to very clearly provide the proper right of action. Now, I'll note that, that there is actually statutes that have been very clearly drafted to grant a right of relief that have been construed to not grant a right of relief in many circumstances, like section 1983. But in this circumstance, I think that it's pretty clear to me that the court's basically going to see that vague phrase, appropriate relief is not precise enough to encompass the right of action for damages. And I don't even think it's that tough of a prediction. Based on the oral argument, it seems pretty clear with the caveat that of course anything could happen, but this would be one that would surprise us.
- [54:15]
A
Yeah, it almost looked like it could be six, three along ideological lines. But with the conservatives on the no right to relief side, you had Justice Sotomayor at the end suggesting that perhaps this could just be prospective. Like maybe these officers weren't put on notice, but maybe we could see, say, that there is a right of relief from now on. I don't think a lot of justices were hopping on that bandwagon, though. So we shall see. And, David, this is relevant, by the way, a little bit at least to a lot of emails I've gotten about ICE officers. A lot of folks are very upset with what ICE officers are doing in their city, for instance, and want to know, like, what lawsuits they can bring. First of all you person who emailed me probably does not have standing, but even if you did have standing and again they're not wanting to challenge the removal, not the immigration side, but sort of the methods if you will. It's really tough to get damages. We've talked about this before. Prospective relief, no problem. You can get an injunction if it is likely to happen to you again. But as we saw in the Los Angeles case, the court is not inclined to think it's going to happen to you again even if it already happened to you once. Second, on the damages side we have Bivens, which has basically been cabined to its quite literal facts at this point. And otherwise you have the Federal Torts Claims act, but that has to be, you know, negligence and it's really for a very different thing than constitutional rights violations. So just a note to listeners once again, especially our non lawyer listeners, not every constitutional wrong has a remedy. And you've got to think about some of these. Well, think about standing always. That's going to include your ripeness, your mootness, your injury stuff and think about remedy and cause of action because you don't have a case unless Congress has created for you the ability to sue. And oftentimes they haven't.
- [56:24]
C
I think it'd be interesting to do a during like a slow news cycle if we'll ever have one of those again. Sarah, one will come. They'll come to do kind of swap back and forth on what are some legal reforms that you think are necessary either as a result of all of the confusion and division and of this moment or that were their necessity was highlighted to you because of all that's been going on over the last decade of American life? What are some key legal reforms that would make America more stable and more just would be a very interesting I think podcast and one of those that is going to be top of mind for me is accountability for federal officers who violate civil rights.
- [57:08]
A
Interesting. I don't know if we're going to agree on that. So we should definitely talk about it.
- [57:14]
C
Yeah, yeah, absolutely. Sarah, I've been getting a lot of messages from service members, former service members, just interested listeners who are asking what's the legal scenario around service member participation in the strikes outside of Venezuela. And I've been trying to think about how to describe this and let me put it like this. Okay. There's sort of two separate and independent questions. One is are you going to be criminally responsible at some future point if a future administration comes in and says these were these were illegal Strikes that a future administration interprets all of Trump's orders to be unlawful orders. These strikes are illegal. Are you going to be criminally liable? And the answer to that is going to be almost certainly no. Almost certainly no. That you have a junior officer or an enlisted sailor, you have been given sufficient legal guidance within the realm of legal knowledge you're supposed to possess. In other words, you are not a legal scholar, you are not required to be a legal scholar, that you have been given clearance by commanders, and you have been. And there have been sufficient legal justifications presented to where you're not going to be on the hook legally. That's one question. But then there's another question. What if you believe that these orders are unlawful? What legal rights do you have if you believe they're unlawful? And the answer to that is not going to be incredibly comforting. The best I can tell you is you will be able to raise the legality of the order in it as a defense to a court martial, for example. That is something that you could raise it as a defense, but it's pretty darn clear you're going to face a court martial. It's very clear that you're. It would be, it would shock me if you did not face a court martial. Now, that's with what we have seen of the strikes so far. If you had a wildly fantastical scenario where, like, let's say somebody said, hey, you know Lieutenant Smith flying an F18, that look, that Carnival Cruise Line ship over there, it's full of drugs, sink it. Well, okay, that's a different scenario entirely. It's like when I talked about earlier, if someone said to one of our troopers in Iraq, you see that prisoner who's over there in, in the detention facility, shoot him. Now, that, that you would have an obligation to say no, and you would have. You would be liable, you would be criminally responsible if you, if you did it. But the question is, for a junior officer, a young sailor, do you have the ability to say no to this order and survive a court martial? Maybe. Maybe. But the further you go up the chain of command, the more this analysis, the more difficult this analysis gets, because there's a huge difference between a young pilot of an F18 and, say, the chief lawyer of the Air Force or the chief lawyer for the Navy or the commander of, you know, the commander of the fleet at issue. Now, this is where you're going to have more difficulty if later on there's a determination that this was clearly an unambiguously illegal. And so I Think that it's a, it, it's a just a very, very, very, very difficult situation for the younger sailors and pilots, etc, that you're not in a situation where you have a clear legal ability to defy these orders. And so it is. But you could in all likelihood use the illegality of the order as a defense and a court martial. But you would have to go through a court martial. I mean, this is why it's so important for our legal, our military action to be legally sound. Because you're putting people in this predicament.
- [61:27]
A
Don't you think it is relevant to the legal analysis? So there is Now a classified 50 page opinion from OLC holding that these strikes are lawful. That the United States is in a non international armed conflict. That it is being waged under the President's Article 2 authorities. If you've got a 50 page opinion from OLC to your point about whether you could be prosecuted later by a different administration, the answer to that is now firmly no. That opinion covers you. That's why OLC opinions exist.
- [62:01]
C
Yeah. Especially going down the chain that is, look at that. 50 page opinion is like a shield against liability. But that's a whole different question from the 50 page opinion is a shield against liability. But what if I'm somebody who says, I don't want to kill these people.
- [62:20]
A
Yeah, I just. We don't want. This is why we have court martials. Right. It's like the departmentalism problem. You as a random individual do not get to decide whether it's a lawful order. Or else we have total military chaos as we have everyone second guessing the Office of Legal Counsel in the Department of Justice which says that it is legal. It reminds me of that 1812 case, right? Where the guy's like, this isn't an invasion. You don't have the right to call me up into National Guard service. And they're like, no, sir, this is a Wendy's. You do not get to make that call. Individual soldier does not get to decide whether it's an invasion or emergency. That is a call only for the President. In this case, you have, you know, it'd be very different in the. Is it Crimson Tide, David, where you have the. Yeah, the commander giving an order and he's like, that's an unlawful order. You're relieved of your duty, Captain. And it's like this great standoff with Denzel Washington. In that moment I think you've got. You are in fact required to exercise your own ideas of lawful orders. But not in this case. Someone else has done that in the chain of command.
- [63:34]
C
Yeah, it's, again, your ability to violate that order is you can't do it without getting a court martial in the circumstance, you just can't do it. However, I'm not going to say there's never a circumstance because, you know, we have situations like the My Live Massacre, for example, where soldiers intervened in real time. As, you know, soldiers with rank over them were committing unlawful acts. And so there are circumstances. And this is why I use extreme examples like blow up the Carnival cruise ship or shoot this prisoner.
- [64:10]
A
No, I think that's a great example because there. You're not saying that blowing up the ships like OLC said, is an unlawful order. You're saying the specific, specific facts here are different than the OLC opinion. And I am assessing these specific facts to make the order unlawful. Totally different. I agree with you. But you can't just say, I, I disagreed with the OLC opinion.
- [64:33]
C
Exactly. Exactly. Now, could that keep you out of prison? Doubtful. But that would be a defense you would offer if you were being about to be sent to Leavenworth, for example. It would be a defense that you would offer. But I'm going to just tell you it's a defense that almost certainly would not work if once you have the OLC opinion and you have, you have commanders acting according with the OLC opinion, and if you're a lieutenant and you say, I think the OLC was wrong, you're. You're going to face military discipline for that without question. And the prospects of you surviving that process are very low.
- [65:13]
A
All right, well, look, David, I've got another treat for you. Next time on Advisory Opinions, we're going to talk about the illustrated Supreme Court review that Cato has been putting out. Because if you are a high school listener of this podcast, and I know there's dozens of you, well, dozen. There's like maybe a dozen of you. Cato is putting out graphic novels of Supreme Court cases that are the ones specifically showing up on your AP Government exam. How cool is that? They are partnering with high schools across the country to do this. And I got one of these. I think it's awesome, David. And so we're going to do a deep dive. They've got Barnes v. Felix. They've got the Drummond case. I mean, definitely every case on here we covered last year. A, Cato, great job. B, if you're a high schooler and want a copy of this, I mean, I don't actually know how to get one. Except I will bet you, if you email anyone at Cato. They will be so excited to mail you a copy because you're a huge nerd who listens to advisory opinions and Cato if you're listening. If that costs you money, I am happy to foot the bill to send high schoolers copies of your graphic novels. That's something AO can help with.
- [66:32]
D
Okay, David, that's it for us today.
- [66:34]
A
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.
- [66:41]
D
Choice to help new listeners find us.
- [66:43]
A
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 at Advisory Opinions the Dispatch Calm we read everything, even the ones that say David's right.
- [67:30]
D
That's gonna do it for our show today.
- [67:32]
A
Thanks so much for tuning in. We'll see you next time.