Advisory Opinions — "Separation Anxiety: Courts and Congress"
Podcast: Advisory Opinions (The Dispatch)
Episode Date: July 24, 2025
Hosts: Sarah Isgur & David French
Main Theme & Purpose
This episode takes a deep dive into the constitutional and practical crises around separation of powers—particularly focusing on how the Executive Branch (the President and Department of Justice) and the Judiciary (federal courts) have handled U.S. Attorney appointments under the Vacancies Reform Act. The hosts argue Congress has surrendered too much of its authority, raising foundational questions about appointment powers and the results for American governance. The conversation then expands to Congress’s deterioration, qualified immunity, education policy, and parental/medical rights, all through the lens of recent circuit court decisions.
Key Discussion Points & Insights
1. The Vacancies Reform Act and U.S. Attorneys
- Context [02:27]: Sarah relays two separate U.S. Attorney vacancies where the Executive Branch and courts engaged in "shenanigans" to keep preferred prosecutors in place after the statutory time limits for acting appointments expired.
- Main Arguments:
- Host Position: Both hosts agree much of the Vacancies Reform Act (VRA) represents unconstitutional delegation of Congress’s "advice and consent" responsibility, either to the Executive or Judiciary. Sarah’s “extreme” but originalist view: the President must personally perform the duties until the Senate confirms a replacement.
- Constitutional text: “US Attorneys need to be Senate confirmed.” — Sarah [04:10]
- David’s Firm Take: “District judges don't have nominating power…The court is nowhere in this process. So this strikes me as extremely Constitutionally suspect.” [08:27]
- Critique of Endless Acting Appointments: Both criticize loopholes that enable endless rotation of "interims" or "actings," bypassing the Senate-confirmation requirement.
Notable Quotes
Sarah:
"In this one area of the law, David, I am just not a practical person. I do not care about practicalities. I want those separation walls built up, you know, like the Wall of the North in Game of Thrones—the White Walkers shall not cross." [07:18]
David:
"The administration has a consistent position: we get to do what we want…Sometimes the law supports them and sometimes it doesn’t. But they’re always pushing." [12:17]
Sarah:
"Congress is trying to give away its advice and consent power to the other two branches, just depending on how many days it’s been." [14:33]
2. Fantasy Congress: How Should Appointments Work?
Timestamps [16:10–22:20]:
- Sarah’s Solution: The President retains all powers until Senate-confirmed officers are in place. Result: increased pressure for rapid nominations and Senate action.
- David’s Solution: No replacement for a Senate-confirmed official without Senate confirmation. Outgoing officials become “conscripts”—they stay on until a successor is confirmed.
- Discussion of the flaws and unintended consequences (such as outgoing officials stuck in limbo).
Notable Quotes
Sarah:
"The inconvenience of it would be its own forcing mechanism…On the Constitution, the powers are with the President until the Senate has confirmed someone to whom he can delegate those powers." [18:37]
David:
"Resignation can only be effective upon confirmation of your successor…a form of conscription." [20:23]
3. Listener Question: Is Congress Too Far Gone? (and Amending the Vesting Clause)
Timestamps [24:41–30:30]:
- Can Congress’s primacy ever be restored, or would an amendment limiting executive power be necessary?
- David is intrigued by the notion of rewriting the vesting clause to specifically limit the President to executing laws passed by Congress.
- Both agree the problem is ultimately willpower; Congress does not assert itself even with the current Constitution.
Notable Quotes
David:
"We have now created a system where people are pouring all of their hopes and dreams into the President. Minimal, minimal expectations for their own congressmen." [26:50]
Sarah:
"We got here because the President wanted the power and Congress didn’t…There has to be a will to change this." [28:53]
4. Notable Circuit Court Decisions
a) Vullo & Qualified Immunity (2nd Circuit) [31:34–41:35]
- Background: NRA sued for First Amendment retaliation after NY regulators pressured banks/insurers to drop them.
- Court Outcome: Despite Supreme Court ruling that rights were violated, 2nd Circuit applies qualified immunity: rights weren’t 'clearly established' at the time—citing a Justice Jackson concurrence, not the main opinion.
- Broader Critique: The hosts note lower courts sometimes rely on concurrences to avoid the thrust of Supreme Court majorities.
- Analysis of Justice Jackson: Conservatives underestimate her, at their peril. She has a developing, dangerous-to-the-right jurisprudential philosophy.
Notable Quotes:
Sarah:
"The true problem with concurrences…you now have a lower court not really following the majority…using that roadmap to hold that basically the National Rifle Association, yeah, their rights were violated, but those rights weren't clearly established at the time." [34:14]
David:
"Qualified immunity is…angels dancing on the head of a pin…It is almost infinitely malleable for a court to determine what's a close enough match and what is not." [36:59]
b) United States v. Mackey (2nd Circuit) [41:35–45:01]
- Background: Individual convicted of conspiracy for misleading social media posts about voting.
- Ruling: Conviction overturned. Reason: No evidence of a conspiracy (the statute requires two or more persons). Inspiration from internet chatter is not conspiracy.
- Legal Lesson: Even legally savvy podcasters can get tunnel vision and miss the basics.
c) CRT in the Classroom – Students’ Free Speech Rights (8th Circuit) [45:01–51:54]
- Case: Students sued Arkansas over law banning CRT-related materials.
- Ruling: State curriculum is government speech; free speech clause does not give students the right to demand certain teaching.
- Notable Concern: The legal result is clear, but highlights the risks (if, e.g., school boards ban all books by Black authors) and the state of democracy—policy fights should be in the political arena.
d) Newborn Heel Prick and Parental Rights (6th Circuit) [51:54–59:22]
- Issue: Parents challenged Michigan’s collection/storage of newborn blood samples as violations of medical and constitutional rights.
- Ruling: No constitutional problem; storage does not count as medical care or an unreasonable search/seizure since samples are anonymized and for research.
- Hosts’ Reaction: Sarah’s “vibe” is discomfort—privacy concerns linger, but legal doctrines don’t extend protections here. They riff on the limits of unenumerated rights.
Notable Quotes:
Sarah:
"My position is not particularly well thought out. It's a vibe. It's a vibe position." [58:19]
David:
"It does feel a bit unenumerated. It has a whiff of unenumeration attached to it." [56:58]
Memorable Moments & Quotes
-
Game of Thrones Separation of Powers Metaphor:
"I want those separation walls built up, you know, like the Wall of the North in Game of Thrones—the White Walkers shall not cross." — Sarah [07:18] -
Qualified Immunity Critique:
"Qualified immunity is…angels dancing on the head of a pin." — David [36:59] -
On Congress’s Abdication:
"The average American just I don't think can even grasp what a government would look like where Congress was taking the lead." — David [15:02] -
On Constitutional Debates as Theology:
"Constitutional debates remind me a lot of theological debates…You often have the same intensity around constitutional debates as you have around theological debates." — David [36:59]
Timestamps for Important Segments
- [02:27] – Vacancies Reform Act, US Attorneys, and Separation of Powers
- [16:10] – "Fantasy Congress" discussion
- [24:41] – Listener question: Is Congress too weak? Amending the Vesting Clause?
- [31:34] – NRA v. Vullo (qualified immunity and Justice Jackson’s role)
- [41:35] – U.S. v. Mackey—conspiracy requires two or more persons
- [45:01] – CRT, students’ right to receive information, and government speech
- [51:54] – Parental rights, newborn blood spots, privacy, and unenumerated rights
Tone & Language
The episode is lively, knowledgeable, and opinionated—Sarah leans originalist and absolutist about constitutional separation, while David is methodical but amenable to practical consequences. Both hosts engage in deep constitutional analysis, punctuated by humor, cultural metaphors, and a willingness to critique their own profession and political system. Their banter is irreverent but deeply informed.
Conclusion
This episode delivers a robust critique of modern governance’s drift from constitutional first principles, with the hosts arguing passionately for a return to a strict constitutional order—especially Congress reclaiming its authority. Through circuit court cases, they illustrate the consequences of Congress's abdication, the resilience (or weaknesses) of judicial doctrines, and the complex, often unsatisfying edge-cases of American law. The prevailing message: Know the constitutional text, fight your policy battles in the right arena, and beware the costs of power left unchecked.