A (3:39)

And no, like an administrative stay. You're literally not supposed to read anything into it. But this was a slightly unusual administrative stay because it undid the panel opinion. And so I read something into that because the normal thing would just be to have the en banc vote, which is going to be what it was like four days hence, including over a weekend. So the fact that they felt the need to issue an administrative stay at all was, I thought, quite unusual.

B (4:07)

Well, when I say you can't read anything into it, I guess you can read into it that Oregon might win, that Trump might lose, and if they had not imposed the stay at all that or reimpose the state off that, that would speak volumes itself. I think I'm maybe a little bit less, a tiny bit less convinced it has any meaning on the merits other than Oregon still got a chance before scotus.

A (4:31)

I think Oregon has a good chance before the en banc 9th Circuit. I expect that they will in fact get rid of the panel opinion and then set it for en banc, which in the meantime would keep the stay in place. But we'll see, as he said Tuesday evening. All right, David, we don't do a lot of death penalty law on this podcast for good reason because it hasn't changed much and there's not a whole lot of law to discuss. Nevertheless, this was actually an interesting eighth Amendment question that was teed up. And I want to read to you a little bit from their dissent from the denial of cert. Take out your phone, go to the clock app and find the stopwatch. Click start. Now watch the seconds as they climb. Three seconds come and go in a blink. At the 30 second mark, your mind starts to wander. One minute passes and you begin to think this is taking a long time. 2, 3. The clock ticks on. Then finally, you make it to four minutes. Hit stop. Now imagine for that entire time you are suffocating. You want to breathe. You have to breathe. But you are strapped to a gurney with a mask on your face, pumping your lungs with nitrogen gas. Your mind knows that the gas will kill you, but your body keeps telling you to breathe. That is what awaits Anthony Boyd tonight. For two to four minutes, Boyd will remain conscious while the state of Alabama kills him. In this way, when the gas starts flowing, he will immediately convulse. He will gasp for air, and he will thrash violently against the restraints holding him in place as he experiences this intense psychological torture until he finally loses consciousness. Just short of 20 minutes later, boy Boyd will be declared dead. Boyd asked for the barest form of mercy. To die by firing squad, which would kill him in seconds rather than by torturous suffocation lasting up to four minutes. The Constitution would grant him that grace. My colleagues do not. This court thus turns its back on Boyd and on the eighth amendment's guarantee against cruel and unusual punishment, because the court should have instead granted a stay of execution and Boyd's petition for certiorari. I respectfully dissent. Okay, so David, let's back up a little here, and I want to read you the text of the eighth Amendment. It's very short. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. I feel like it's one of the most recognizable, at least that end part of the amendments. Cruel and unusual punishment. Right. We all know that one, by the way. In eighth grade when we had to memorize the Constitution and all the amendments, our teacher was trying to also teach us how to use mnemonic devices to help our memories and stuff like that. And so the 8th amendment was an 8, meaning that it was a snowman, and the snowman would melt. And that was cruel and unusual. If you heated him up, that's how we would remember which the 8th amendment was. Maybe that will help someone out there remember that it's the eighth amendment. Okay, next, I want to take you to 1958. This is when Trop v. Dulles is decided. It's kind of a weird case because it has nothing to do with the death penalty, even though it's one of the most cited kind of death penalty ish cases out there. In this case, you have a citizen who's in the army in Morocco. He tries to go AWOL and basically gets caught. He gets court martialed, convicted of desertion, sentenced to three years of hard Labor. And he, when he, like, tries to come back into the United States, they strip him of his citizenship, saying that being a deserter means you're no longer a citizen of the United States. You were over in Morocco. You can't come back to the United States. The Supreme Court basically just says no to this. And this is the part, that's the money part, that everyone knows that the Eighth Amendment's meaning of cruel and unusual punishment must change over time, end quote. Must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. This was one of the sort of peak Warren Court decisions, right, where people felt like living constitutionalism. Is there a better definition of living constitutionalism than that? The Constitution must derive its meaning from the evolving standards of decency that mark the progress of a maturing society. And of course, the criticisms to that are who gets to decide also, what is this progress you speak of? Remember that eugenics decision you guys did just a few decades back? You said that was literally progressive to forcibly sterilize people. But the Eighth Amendment is a little bit weird, David, because to go back to that language, how else do we define what cruel and unusual is? Unlike some of the other parts of the Constitution where you could argue like this is a contract, if you will, with the ratifiers. And so originalism makes the most sense. Cruel and unusual almost by definition have value judgments baked into them. So how are you supposed to determine what is cruel and unusual? Is it only what was cruel and unusual at the founding? Is it the 14th Amendment, when that's ratified? Is it when we hold this, you know, incorporate the 8th amendment against the states? Is that when we decide whether it was cruel and unusual? And, David, do you think this new, relatively new form of execution of pure nitrogen gas should be considered cruel and unusual? And going back to firing squad, something that I think we thought was cruel and unusual 20 years ago now is the not cruel and unusual part. And doesn't that get to the problem with this idea of evolving standards of decency if they evolve forward and backward?

B (10:01)

Yeah, the word unusual is very interesting. It's not quite as malleable as the word unreasonable in the Fourth Amendment, which absolutely extends an implication that the judges are going to impose a rule of reason based on their own reasoning. So unreasonable implies a lot of judgment. Unusual, maybe not as much as unreasonable, but everything you just asked, I don't know that there is a one single definitive answer to that. It's going to depend a lot on your interpretive method and go into the issues here, let me put on two hats. First hat I'm going to put on is defender of the death penalty hat. And the defender of the death penalty hat says, okay, guys, we know what's going on here. You are opposed to the death penalty on a blanket basis. You have not been able to get a ruling from that from the Supreme Court. It's very hard to, because the Constitution explicitly contemplates the possibility of the death penalty. And so what you then end up doing is there's just no way to execute somebody that is going to satisfy your definition of, you know, satisfy your interpretation of the prohibition against cruel and unusual punishment. So lethal injection, you're going to object to hanging, you're going to object to firing squads, you're going to object to electrocution, you're going to. You're just going to object to all of it. And so this is. There is no perfect, clean, neat, easy way to end a human life. And this is as good as any would be sort of a response to this, that, look, what's happening here is just whatever way you choose to execute somebody, there's going to be a challenge to that method no matter what it is. I think that is true. I think it is true that there would be a challenge to the method no matter what, but it does not then flow from that that all modern methods are going to be equally acceptable, or all modern methods should be equally acceptable in the absence of, you know, compelling evidence to the contrary. Sarah, the argument that this nitrogen hypoxia is uniquely amongst the modern methods, uniquely excruciating, I think is pretty compelling. So I found the critique of the hypoxia method to be pretty darn compelling. At the same time, so long as the death penalty is a constitutional method of punishment, there has to be a method of executing somebody that is constitutional. And so, you know, in those circumstances, the safe harbor is going to be for those states to rely on those methods that have been explicitly given sort of safe legal harbor. And I think that, for example, a firing squad is one of those methods. I have not followed the ins and outs of the method debate over the decades. I'm sure there have been arguments made that a firing squad is cruel and unusual. I'm sure that that has been the case. But it's hard for to see how that would ever really pass constitutional, how that would be an effective constitutional argument. The firing squad, it seems to me, would be in virtually any conceivable circumstance where the method of execut, where execution is permissible. That a firing squad should be a preferred method and man, this is grim. Sarah. Man, this is grim.

A (13:22)

David, do you as a policy matter support the death penalty? And I think you've already answered the question that as a legal matter you think it's constitutional just in general. So do you as a policy matter.

B (13:34)

Support it not as we practice it in the US but as a moral policy constitutional matter? I support the death penalty in theory. In theory, but not as we're currently doing it.

A (13:48)

Would you say that hanging is cruel and unusual? You've already said firing squad is not.

B (13:53)

Depending on how it's done. No, not cruel and unusual.

A (13:56)

Is there other ways to do it?

B (13:57)

There's hanging where you're killed essentially by asphyxiation, where you.

A (14:01)

The hope is that you break your neck when you fall, but there's not a lot of guarantee at that.

B (14:06)

Well, let's put it this way, the goal, man, this is so crim, Sarah. But the goal is as instantaneous as possible.

A (14:13)

I agree with you. I think the entire foray into lethal injection and sort of these non physically violent forms of death will be something that future generations will look back on as a huge mistake, if not the definition of cruel and unusual. Not because of the torturous aspect. Although I very much take Justice Sotomayor's point on the psychological torture, that every breath you breathe in is killing you, but also you must breathe. But that this idea that we thought we could have a clean method of death, if you know what I mean, that it could be silent, that that would relieve us of any of sort of the barbarism of the death penalty, that's clearly wrong and frankly it's wrong morally as well. If the state is going to take a human life, it should have to take that human life sort of knowingly and with the violence that ending life entails, in my view. And that is part of the trade to ensure that we really do believe that the death penalty is warranted, that we think it is constitutional. Like all of these things, the violence required is part of that contract.

B (15:19)

I really feel like the turn away from things like firing squads was really vibes based. We're not like that. We're not like that. We don't just shoot people. It's going to be antiseptic. It's going to be. No, but if you're killing people, you're like that. Okay? So the important thing is that if you've decided to kill somebody, then you are in fact the moral equivalent of the firing squad. You are the moral equivalent of the hangman you are. That's what you are. So then the question is, the next question isn't neat or messy. It's humane or inhumane. That's the next question. And so that's why I have a lot of sympathy for Justice Sotomayor's opinion here, because it's hitting all of those things that you just mentioned. It's antiseptic, but it's definitely not quick. It's definitely not. I mean, there's a lot of this that is shocking, seems shockingly inhumane. So this is an incredibly grim topic, but I think it's an important topic. And I really do think that much of this transition was kind of vibes based instead of looking in the mirror and just saying, this is what we're doing.

A (16:32)

Well, as we said, the majority of the court denied cert in this case. Mr. Boyd, when he was 21, had participated in a kidnapping killing of Gregory Hughley for owing him $200 for cocaine. Hughley was bound and taped to a park bench. Another member of the group doused him in gasoline and lit him on fire. In 1993, the jury convicted Mr. Boyd, and on Thursday night, Mr. Boyd was executed. Witnesses described seeing Mr. Boyd convulse and he for about 15 minutes before being pronounced dead. About 15 minutes later, he was the eighth person killed by the use of nitrogen gas. And that's the end of that story. David, when we get back, we're going to go on to lighter topics, I promise, a defense of the spoils system and some other interesting news, like horizontal stare decisis. Have you given that much thought recently? We'll be right back. All right, David, we're back. I want to talk about horizontal stare decisis. We have not gotten into the weeds about this. We have talked about precedent and the role of stare decisis, meaning to stand by the thing decided, or what I think is more accurate, to stand by the thing wrongly decided. Because if it was correctly decided, you just decided again the same way, okay. To stand by the thing wrongly decided. And we think of it all almost exclusively on this podcast as vertical stare decisis. The Supreme Court sends out a ruling, and now all of the lower courts have to follow that. That's vertical, right? Judge Oldham from the Fifth Circuit noted shortlister. Specifically, if Justice Alito were to retire, gave a speech at the Heritage foundation where he talked about the elimination of horizontal stare decisis. And I feel like everyone looks at that sentence for a second and is like, that's crazy. What? No, David, I was fully radicalized. Okay, so horizontal stare decisis is this concept across the circuit within the 5th Circuit. For instance, if you get a case as a panel, you are supposed to look at all of the previous 5th Circuit decisions and you are bound by those. So the only way to overturn a previous circuit decision from your circuit is to go en banc and have all of the judges, they get to reevaluate it and overturn that panel precedent. Otherwise your panel is bound by the previous panel. And Judge Oldham's point was this is nuts. Basically, every judge in every case should find the best answer. And while vertical stare decisis makes a lot of sense because those are the nine people assigned that task, the horizontal stare decisis at the circuit level is silliness. So here I'm reading from Josh Blackman's write up who was at the speech that Judge Oldham gave. Horizontal stare decisis and the rule of panel precedent prevent judges from finding what the law is. Their hands are tied by the rule of orderliness. Rather, as soon as panel A decides some issue, panel B through Z are required to mechanically follow every jot and tittle of panel A's decision. It does not matter how poorly reasoned panel A's decision was, or whether panel A consulted the Constitution's original meeting, or whether the parties adequate presented all the necessary arguments to panel A. There is a first movers advantage. And the rule of orderliness is premised on not trusting the judge of panel B to faithfully find the law. Instead, they have to be told what to do. Would eliminating the rule of orderliness bring about disorder? Oldham says no. Indeed, he thinks the current regime is extremely problematic. More than 80% of circuit decisions are designated as published. Moreover, en banc review is exceedingly rare. For example, the fifth Circuit, the en banc court sits about a dozen times per year. That's actually a lot. Yet about 10% of the Supreme Court's merits docket is from unpublished cases. So the justices do not seem troubled by whether a circuit precedent is itself precedential. Okay, so David, on the one hand I am radicalized by Judge Oldham's point of panel precedent and that being sort of a silly first mover advantage for questions of law. On the other hand, there is this built in mechanism, en banc review. The fifth Circuit, I know, he says that's rare. But a dozen times a year is not rare. That's once a month. It's actually quite a bit that they can look if they even think a panel precedent might have been wrong and especially when later panels flag, we wish we could have come out differently, but we're bound by panel precedent. That's like, that's basically a dissental, an en banc petition in itself for en banc review. So on the one hand I'm pretty persuaded by it. On the other hand, I don't think it's a big problem either, especially not on the fifth circuit. And I would argue the ninth Circuit where they do a lot of en banc review. It is the case that many other circuits do not have nearly the same amount of en banc review, though that's often because they have a lot fewer judges and a lot fewer cases coming their way. So David, I just wanted to get your vibe check on horizontal stare decisis.

B (21:45)

I don't think it's all that radical to eliminate horizontal stare decisis in the real world. And I sometimes. And the reason why I say that is, you know, I think that your average litigant wouldn't even notice it at all. The real, the reason why I say that is I fear that if you don't practice law and you listen to this podcast that you will think that all cases are super contentious and have could are like 50, 50 or 55, 45 and that they really hang in the balance depending on, you know, a lot of different ideological slash philosophical slash factual factors. When the reality is the vast majority of cases, they're not that close. In the vast majority of cases, outcomes tend to be kind of predictable and the law is a lot more stable, I would say, than maybe you might get from listening to a legal podcast. Even the greatest legal podcast in the history of the universe because we focus on the unstable elements of the practice of law. So first let's just get it out there that your average fifth circuit practitioner, this would not be that relevant to them on a day to day basis. But sometimes it would. And in that circumstance I tend to even though I thought very interesting. One of the core values of the rule of law is predictability that you can form business relationships, enter into actions and activities knowing in advance the lawfulness or unlawfulness of it. The enforceability of a contract, for example, the, you know, a viability of a product that's being sold into the market. I mean, you name it that you an awful lot depends on us being able to pretty much predict what the law is. And if you get rid of horizontal sorry decisives, I'm not saying you demolish that, but you kind of chip away at that a little bit. It makes it just a little bit more unstable. And I tend to think just early initial vibes that the en banc check is enough of a check against sort of rogue paneling or the worst elements of the first mover problem. But it's interesting, Sarah. I gotta admit, it's a very interesting argument.

A (23:50)

The other part of this is that you'll often see panels find pretty minor distinctions to say why a previous panel precedent doesn't hold. But to your point, David, that's so, so well taken. There's a pyramid, right? The Supreme Court only like, because they have full discretion over their docket. They only take the hardest legal questions. They don't have to take anything else. And so we talk mostly about those. And so all of them are interesting and there's both sides to the argument and yada yada. The vast, vast majority of circuit panels are hearing cases that are not remotely interesting. They don't have discretion over their docket. I clerked for an entire year on the 5th Circuit. Not one of my cases was actually hard in that sense. Hard in the sense that maybe I need to go figure out what the law is. And I didn't know, but none of them were like, ooh, this is keeping me up at night because we could really go either way.

B (24:42)

Exactly. That's why lawyers can sit down in meetings with clients and say, this is what's going to happen. If we make this argument, this will happen. And every now and then you have to add the caveat of, okay, you have a chance, but not really, or we can make that argument. I don't have a lot of confidence in its success. I mean, you can absolutely do that, but you would be surprised again, if you're understanding the laws really, on drilling down on the Supreme Court, how much confidence there is in legal assessments sort of going down the chain of that pyramid.

A (25:19)

All right, David, next up, do you remember we talked about Trump v. Slaughter, and we talked about the Supreme Court potentially overruling Humphrey's executor, putting back in place this case called Meyers. And David, you made the point that we would be reinstituting the Spoils system and what a disaster that had been for the United States when there's, you know, only sort of at will employment with the President, Then everything becomes a political position, including the most minor of offices where you might want someone who knows what they're doing, because there's not really going to be any political accountability to the President, to major offices where you really, really would like someone with some level of expertise, short of advising consent from the Senate because remember those principal officers that's in the Constitution. At least you have some check there of the Senate. But everything else would be at will employment. Congress would no longer be able to create for cause removal. Okay, so and we talked about the assassination of President Garfield who was assassinated because of the spoil system which really brought in this era of civil service reform. All right, David, I've been holding this email for a month. David Dear AO, on the September 25 episode, Mr. French discussed the downside of the 19th century spoil system. His points are fair, but he ignored many of the benefits of the spoils system. Here we go David. 1. The potential for spoils helped boost political participation. The 19th century saw the highest levels of voter participation in American history and that went down rapidly as fewer spoils jobs became available. 2. Spoils were a huge party boosting force and AO has in the past extolled the virtue of more power to the political parties. The more patronage jobs there are, the more parties have power to reward local members. 3. Spoils proved to be a moderating force. They made it worthwhile for locals who had opposed a president to cooperate with the winners of elections instead of resisting them. Presidents could offer real useful jobs to political opponents if they could moderate their stances and regularly did so. Lincoln's whole team of rivals was not merely contained to selecting a politically diverse cabinet. It was about finding ways to negotiate and moderate political positions to run a government by coalition building from across the political spectrum. This was practically done through spoils appointments. 4. Spoils were not wasteful. They manifested as valuable patronage that was fundamentally useful. Most patronage post spoils is a special tax break, carve outs or exceptions that are inherently costly. Spoils meant that patronage could be for something necessary instead of bridges to nowhere. 5. Spoils provided extreme incentives for competence in government. In David's example of Social Security, if the spoils go to someone local and incompetent, the locals could and should hold that against the president. He then was highly motivated to hire extremely competent agency directors and they in turn to hire competent subordinates. Today we have almost the exact opposite. The most valuable skills for spoils positions in political operatives are loyalty and communications. Expertise or competence in almost any governing skill isn't necessary to succeed or advance in politics. Whereas under the spoil system the opposite was true. Sixth and last, a lot of claims about 19th century corruption have withered under historical scrutiny in the past half century, specifically about the Freedmen's Bureau and Reconstruction. Similar strict modern standards have not been applied to the most Gilded Age corruption. The stuff most associated with the spoil system. So it's entirely possible that our understanding of the corruption of the spoil system is significantly inaccurate. Mark, who is a PhD in such things, David, he has some really persuasive points there, I will say. I'll just say the only thing I'm not persuaded by is the competence point because I don't think that like a single local incompetent person, you may lose the vote of the locals, but in the modern era the likelihood is that will not be in a swing state, it won't matter and so there won't be that political accountability. On the flip side, I find very, very persuasive the moderating force of the spoil system because you have something real to offer your political, your previous political opponents. And the spoils don't all go to your political loyalists. They actually often buy people off, if you will, to join the force and make the team work a la Lincoln's team of rivals, which is a complicated cabinet in a lot of ways. But he's not wrong about the motivations. It's not like Lincoln was like, I just really want the best voices around me. That's Pollyannish if you think that's what Lincoln was doing. So David, I don't know. He's got some good points. The story sort of like the 17th amendment and the direct election of senators gets more complicated as you really think about it. Instead of sort of use your like, well we're doing it better now version.

B (30:07)

If we're going to talk about the spoil system, you just have to get absolutely positively clear as you are saying absolutely no to a meritocracy. Okay, so Americans, Americans for a long time now have been, I think for a lot of good reasons brought up to believe that a meritocracy is a preferable form of decision making when it comes to admissions to universities, when it comes to applicants for positions and jobs, than all of the various kinds of favoritism, explicit favoritism that we have sanctioned in the past, whether it's race based favoritism of the pre civil rights era, whether it is raw nepotism, which is something that a lot of people really hate. You know, there's a reason why nepo baby is not a compliment to just pure political patronage spoil system. And I think that we underestimate the extent to which people have brushed up against a spoil system in other contexts of life and hated it. So we don't have a spoil system in federal employment, but as a practical matter in lots of forms of state and Local employment, we do have it as a practical matter. And so if you grew up in the small town south, for example, as a practical matter, an enormous amount of your public employment was spoils related. It was, are you a part of the machine? How are you connected in the machine? And again, you were not growing up in that circumstance in anything that felt remotely fair. Because what was happening was because spoils were related to political loyalty, very quickly services became related to political loyalty. So it's not just jobs that become related to political loyalty, it's also services related to those jobs. And so not only did you have to be of the dominant party to get a job, you had to be of the dominant party to receive the right kind of access to the government services to which you'd otherwise be entitled. And so that's another impact of spoils running down the line is that it imprints sort of political favoritism so deeply into the process that it inevitably results in political favoritism in the dispensation of government services. Now sometimes that's okay. There are circumstances where very limited circumstances where that's okay, but they're very, very limited. And so you would be abandoning a meritocracy, you would be resulting in down the line so that you really weren't going to get full enjoyment of the government benefits if you, when Republicans and president in the Oval Office, if you're a Democrat and vice versa. And then the last thing is, I know that it's very fashionable. Can I kind of sneer at the idea of government expertise? But let me just put it in the national security, diplomatic context. If you, let's suppose you're walking into the Oval Office and all of a sudden, just to take a non random example, the US relationship with Venezuela becomes of primary importance. Well, the median American politician and the median American cabinet is not walking into office with the slightest foggiest kind of knowledge about Venezuelan internal dynamics, intelligence and capabilities of the Venezuelan army. The, you know, all of the various layers. And yet within the federal government you have people who've been working on these issues for years and years who have deep background knowledge of these, of these countries, of these regions. Now they're not always going to be right. They're going to have some biases that they're going to put into play. But the sheer amount of knowledge in many circumstances would blow you away. And to just sort of say we're going to toss all of that to the side because we've got some guys who are interested in northern South America and they're on our team, right. And they wrote a paper in college once or whatever. I mean, it's just, I don't think it fully absorbs the consequence of intentional ignorance every few years. And so, yeah, I'm not going to say, you know, obviously America was becoming a superpower while we were under the spoil system. America could achieve great things while we were under the spoil system. But this idea that you would be replacing something that at least aspires to a meritocracy with something that just doesn't at all in a closely divided, highly polarized country, it would be hard to think of something that would be almost more calculated to escalate tensions, decrease confidence in government even more spectacularly, and lead us further down the road of polarization.

A (35:02)

When we come back, we have the nicest listener question I've ever read that was basically like, hey, why were you guys so wrong about that? And who should argue the tariff case on November 5th? We'll be right back. All right, David, let's start with the tariff case. This comes from an editorial by Jason Willock in the Washington Post. This strategic blunder could swing the Supreme Court tariffs case now, he says. Liberty Justice Center, a nonprofit advocacy group, organized one of the legal challenges to Trump's tariffs after winning in the US Court of International Trade. The organization brought on leading lawyers from both sides to litigate on appeal. On the right is Michael McConnell, a former appellate judge appointed to the bench by George W. Bush, who is now a wonderful friend of the pod, teaching out at Stanford University. And on the left is Neil Katyal, former acting solicitor general under President Barack Obama, who is known for his high charisma, cable news hits and being, you know, very liberal. Katyal gave the oral argument in U.S. court of Appeals for the Federal Circuit in July. However, McConnell is listed as the counsel of record on papers before the Supreme Court. Normally, the counsel of record delivers the oral argument, but the presence of both heavy hitters on the brief led to uncertainty about who they would actually choose. I meaning Jason, not me. I'm reliably informed that the organization decided to bet on Katyal. Katyal is famous and quick on his feet, but this would be a bad strategic choice. The former Obama administration lawyer has become known in recent years for his anti Trump commentary and partisan MSNBC appearances. He can be overzealous, Quote, this is not an elephant in a mouse hole, katyal said at the appellate arguments on tariffs in July, referring to Justice Scalia's observation that Congress doesn't confer vast powers with modest language. This is a galaxy in a keyhole. At one point in the argument, a judge said icily, don't talk over me. McConnell is bookish and not at all bombastic. He is one of the leading originalist scholars in the United States, especially on executive power and its limits. His 2020 book, the President who Would Not Be King, was cited multiple times in Justice Gorsuch's dissent, joined by Thomas and Alito in a related separation of powers case last term. That was the FCC v. Consumer Research case. Very, very related, for what it's worth. So, David, we've talked about this a bit on the pod before, that if you are arguing to a 63 court or a 333 court, no matter how you want to think about it, who speak fluent originalism and textualism and are going to care about those things, how much should you really only be considering an advocate who is at least ideally their primary language is originalism, and if not, they are bilingual with no accent, if you will, in originalism, you know, this is the biggest case of the term, at least right now it's being argued in short order. I'm sure they have actually already picked who's arguing it, whether it is Katyal or McConnell. Should you pick the high charisma, very experienced Neil Katyal, or the bookish, very fluent in originalism Professor McConnell? And I guess part of me is sorry that we're using real people because I think this is a really interesting theoretical conversation, but it really does ground it when it's real people that we can use and it's a real case. So apologies to both Neal Katyal and Professor McConnell for this conversation, because we don't really mean this about you so much, if that makes sense. David, what's your initial reaction?

B (38:43)

Yeah, it's a good question. Also goes to sort of how much does sort of maybe personal affection matter? I mean, I believe, correct me if I'm wrong, but didn't Katyal introduce Gorsuch and sort of helped present Gorsuch during Gorsuch's confirmation hearings was so there's, there's maybe some part of it goes back to this T shirt. What was it? A good lawyer knows the law, a great lawyer knows the judge. And that's always sort of part of the element of when you're thinking about an oral advocate. Like what? What's their relationship to the court? What's their record in front of the court? What do we think the baseline point of affection of the judges is towards the oral advocate in the court? And then I also have a Feeling that a lot of judges are sitting there listening, going, you guys are going through a lot of twists and turns over something that is not quite as dispositive as you think it is.

A (39:39)

Right. In a case like this, the biggest case of the term oral argument probably doesn't matter, maybe at all. The less important the case, if you will, or the more complicated, the more oral argument usually doesn't decide. The outcome of the case is what most advocates will tell you. But it can have a lot to do with the aperture of the decision. Is it going to be narrow? Is it going to be broad? Is it, you know, are they going to find common ground with some of the justices? That's what really comes out at oral argument in a case like this. It's a pretty narrow question. It's a big case that a lot of smart people have thought about with endless amicus briefs. Maybe this decision just doesn't matter. Yeah.

B (40:20)

So I'm much more in that camp. But in the pretending that it does, pretending that. Let's just imagine that this is one of those cases where it's 49.999% versus 49.99% and you're looking for that extra 0.01 boost. Let's play out the scenario. I tend to agree with you that you want somebody who speaks originalism as a mother tongue more than somebody who's going to speak it even with the slightest bit of an accent. I think that was a great way to put it. And that's going to mean, at least for the time being, that you might have just a lot more conservatives as oral advocates at the Supreme Court. But I was talking to a law student the other day about originalism, and I said, do you hear those footsteps? It's like, what do you mean? Those footsteps are the sound of a lot of people who are left of center now run. Coming towards you as they're doing originalism, too. Okay. And so one of the interesting aspects is that one of the reasons of originalism is that one of the reasons why people were very convinced for a very long time, for a lot of very good reasons, that originalism would lead to more conservative outcomes is because basically only conservatives were doing originalism. You know, you had Akhil Lamar out there going, hello, I exist. You know, I'm here. But you got a lot more liberal originalism coming. So you're going to see a lot more fluent liberal originalists coming up. Now, are we there yet? I don't know that we are. So I tend to agree with you. With the caveat that we're talking this through and in all likelihood it's not relevant one way or the other.

A (42:08)

So here's what I think the decision comes down to. So there's two different metrics, I guess, to look at this one is the fluency and originalism. And Professor McConnell just crushes Neal Katyal in that. Sorry, Katyal. The book he's written, by the way, is like so difficult and brilliantly smart. And I mean, it's originalism. David, you're going all the way back. John Yoo wrote a review of McConnell's book and it is. I mean, frankly, the John Yoo review of the book is dense at times in some of the history in trying to parse sort of that original understanding of Congress's enumerated powers versus Article 2's non enumerated powers. And his theory is basically to give it very short shrift and totally unfair. The powers listed for Congress in Article 1 basically came from the king. And so do you think of it as okay, if they didn't move it away from the king, then the king retained those powers, like in foreign policy, for instance. What about the power to declare war? I mean, he wrote a whole book on this. Guys, like, there is no one better to think about executive power than Professor McConnell. Okay, but the other metric to think about this is that oral argument is a little bit of theater as well. And so what actor do you want up there? You know, how much charisma, how much quick on your feet and all of that. And on that one, Katyal wins. He has more experience. This is what he does. There's a reason he's very good on cable news, because he's high ris, as the kids would say. But here is the cautionary note I would make on the high risk advocates, often the high RIS people. And I speak, I have this personality trait. When I say something, I just say it with a lot of confidence, whether I'm sure of it or not, to be honest. And it makes people want to argue with me. I think that's a fun way to interact. But not everyone does, first of all. And it can make that other person kind of lock into a position that I force them into by stating my position. So basically, instead of persuading people, I often, like, lock them in to the opposite of whatever I wanted them to come toward because I state it so definitively. It makes them want to debate me. And as we know, when you take a position in a debate, you are more likely to then say you believe that position even if the positions are randomly assigned. So my bigger concern with Neil Got Yell is that that is more his method of Supreme Court argumentation rather than that explanatory method. I'm here to answer your questions. You know, what can I help you with today? Would you like fries with that order? That's not Katyal and it's not me. And it can have this, like, oppositional effect on other people. I would be much more concerned about that when picking an advocate. Now, in some cases, it's kind of, as you say, David, the justices like it. They get really bored. Oftentimes, oral arguments drag on forever. Now it's why I think Lisa Blatt's incredibly effective, even though she is very similar. They find her entertaining and they enjoy a certain amount of sparring with equals. So anyway, that's the trade off for me, David. I'd be a little bit torn on all of those fronts, but we'll see who they pick. And obviously we will be covering the tariffs argument live. SCOTUS blog will have the live blog during the tariff argument on November 5th, so you can follow along with what all of us are thinking. And then we will do a live advisory opinions at the end of the tariff argument that will broadcast on SCOTUS Blog and we'll of course put it out as a podcast after. But we'll do video. We'll have Amy Howe reporting from the sidelines at the Supreme Court. All the shebang we did for the birthright citizen universal injunction argument back in May. So that'll be something to look forward to. All right, David, here's another question from a listener that I just really enjoyed during Biden's presidency. I was convinced that without congressional action, the president did not have the authority to end the migrant crisis to give a crude overview. I know Biden, to my understanding, unlawfully closed the border, and I'm aware that Trump has disincentivized immigration, but I do not understand how he has buttoned up the border so sufficiently and so few people are crying foul. Even more odd to me is that so many people not otherwise disposed to the president are lauding it as one of his few accomplishments. Why is it not the case that the president didn't have the authority to do this? Are Democrats essentially letting him do this because it needs to be done and they don't want to? So, David, we spent a good chunk of the Biden presidency saying, if you want to fix immigration, Congress will need to do something. Biden has used sort of all of the tools in his toolbox. But when you have this many people coming over the border and there are not the places to detain them, that shall detain language, as the Supreme Court said, becomes a political question. Congress can appropriate more money, create more facilities, et cetera, but at the end of the day, the president can't detain what he doesn't have the money and manpower to detain. And David, here we are. And the numbers are astounding. And Congress didn't do anything. So is Trump acting unlawfully? Were we wrong that the president had powers that we weren't acknowledging and Biden wasn't doing his job or and spoiler alert, listeners, this will be my pick. Is there something else going on? And just to get the stats out there, the crossings at the border have gone from 40,000 to 4,000amonth and nobody is being paroled into the United States. Zero people let into the U.S. i mean, the numbers, David, blowing the mind. Okay, so what's your answer to the question?

B (47:56)

Yeah, so my answer to the question is as a general matter is in line and I'm very curious to say what you the other things going on. So that's as a general, I'm with you on that. I would say also we knew before the Trump administration that that presidents absolutely had impact on crossings during their administrations. So we saw differences where it would be lower for Trump and then higher for Biden. It was higher for Bush in some parts and lower for Obama. I mean, there were changes by administration. Now, some of those are related to factors outside of America, but a lot of them are related to the policies of a given administration. So we always knew that the policies of a given administration could have a short term impact on the border. However, if you think, for example, that Trump has fixed the border unilaterally, ask yourself if any of this would continue under a Democratic president or maybe even under a different Republican president. He hasn't fixed it in the sense of establishing anything that has any legal force or effect upon the expiration of his term as president. So I would put that as a difference between a patch and a fix. And presidents have been able to do patches or take patches off for a very long time. And sometimes it's illegal, sometimes what they do to patch is unlawful. And it takes time to work that out through the system. And while that's working out, they have a lot of freedom of action. But I think it's absolutely true that there are things that a president can do on his or her own that patch it. But you have to have Congress to Fix it. Otherwise, essentially what you're doing is you're adding to the menu. Every presidential election, the border is up for grabs, you know, and this is not the way so things are supposed to be. It's not supposed to be that basically every major piece of American policy becomes up for grabs every presidential election because Congress doesn't pass laws that have binding effect across administrations. So I think there's a definite difference between patch and fix. But I'm very curious about your other factors, Sarah.

A (50:01)

So let me read you some more data. A recent study from the United nations reported that President Trump's immigration policies led to a 97% reduction in illegal aliens heading northbound to the US from Central America. That same study found that 50% of would be illegal aliens who decided to stop their journey toward the US did so because they thought it would be impossible to enter the US under President Trump. Likewise, 46% said fear of detention or deportation led to abandoning their attempt to illegally enter the US So you have this cascading effect, David, where belief becomes reality. If 50% believe that they won't be able to enter the US that it's impossible, that lowers the numbers enough so that the rest that could potentially believe that they could get in maybe would be detained and turned around and deported. The problem for Biden was that nobody believed that he actually had closed the border and by definition therefore he hadn't because they couldn't detain people. And it became this non virtuous cycle where they were overwhelmed literally at the border. Again, Congress could have done something about that. They didn't. But the President I don't think had any real additional powers to do much. Trump was able, through sort of force of will and commentary, to stop so many people from thinking they could come that then he was able to use the tools that he had to stop the rest from coming in and then go detain people. The question, number one, is he breaking the law? No, not aside from the points that we're talking about, you know, deploying the National Guard, I'm not gonna call that unlawfulness. Even if they rule against him in this context, that's not what I think. Unlawful means that this person's asking, they're asking, like in the day to day immigration and detention and stopping people at the border. Is he just doing something crazy illegal and nobody's willing to sue about it? Nope, nothing unlawful going on here. Did Biden have tools that he wasn't using? I mean, yes, sort of. Definitionally, nobody believed him. They thought he was an open borders guy. And the idea of Vice President Harris saying, no, don't come here, was not persuasive. So could they have done more rhetorically? Absolutely, yes. And they could have tried to mean it. Their interior enforcement, I think, convinced our lack thereof, convinced a lot of people that they didn't mean it. Also, you know, sanctuary city policy, supporting sanctuary cities, all of that makes it look like you're saying the border's wide open, even if you're technically saying it's not. Does that make sense? So, like, the overwhelming reason that this is working for President Trump is that nobody's coming anymore, that 97% of people who were heading toward the border turned around. That's incredible. We've never seen anything like it. It is rhetoric based, it is interior enforcement based. And then when you have so few people coming to the border, you are able to do the kind of detention that then makes more people not want to come. It's really been quite incredible, David, because in the end, Congress didn't need to act. And I'm not sure what the long term ramifications of that will be, except that for Congress, they will not be good. Because what did Congress learn here? We just need to elect the right guy as president and then that'll solve the problem.

B (53:28)

Exactly. And again, that puts us in a position where the entire status of the southern border just depends on who wins the presidency, rather than on. Rather than on deliberate congressional action designed to put in place a sensible border enforcement policy that's good for America, regardless of who is president. I mean, this is. I feel like I'm taking crazy pills here, Sarah. Like, guys, seriously, do you honestly think. Do you honest, look, look me in the face and say this is the best way to run this country? I mean, come on. So, yeah, I think it's absolutely true presidents have impact on the border. It is also absolutely true presidents alone can't fix it. Because what's your definition of fix? Because whatever your definition of fix is, the next president may or may not share it. And then from that standpoint, if they're elected and they don't share it, they didn't fix it.

A (54:23)

All right, David, Next week, the Supreme Court will start its November oral argument term. As I mentioned, the tariff case will be argued on November 5. We will cover that live here on advisory opinions. But we still have an episode before that. And we got another, I thought, very fun question from a listener that I'd like to answer, which is, can you guys destroy the best steelman of incorporation through substantive due process? Oh, Joshua, I would love to do that. We're going to go back to slaughterhouse. We're going to do some Lochner era. We've got to stop by Griswold, maybe a little Obergefell. I mean, this is in many ways the story of the Supreme Court for the last 150 years, since the 14th amendment was ratified. What is the due process clause and what happened to the Privileges and Immunities clause? So absolutely, Joshua, we would love to steel man and destroy substantive due process. 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@advisoryopinionsthedispatch.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. Sam.