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Advisory Opinions is presented by Burford Capital, the leading finance firm focused on law. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French and We need to do more Separations of Powers. Today we're going to do some vacancies Reform act when it comes to US Attorneys and everyone is doing this unconstitutionally. Is it too late to fix Congress? Are we too far gone? We will answer a listener question and then we have got a heck of a lineup of circuit court cases for you. Revisiting Vulo and election Conspiracies A little CRT in the classroom can't you? Must you? And finally that heel prick right before they hand you your newborn. Is that constitutional? All this and more on Advisory Opinions I want to talk to my fellow attorneys for a moment. Do you really want to spend time on the technical side of briefing blue booking tables, appendix assembly bait stamping, or would you rather focus on your argument type Law can take your draft and exhibits and transform them into a court ready rule compliant E brief and appendix. Overnight they've helped prepare over 10,000 filings in courts across the country, even SCOTUS. Learn more@typelaw.com and use referral code advisory to save 10% on your first order. That's TypeLaw.com bundle and safe with Expedia.
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You are made to follow your favorite band and from the front row we were made to quietly save you. More Expedia Made to Travel savings vary and subject to availability. Flight inclusive packages are atoll protected. This episode is brought to you by Progressive Insurance. Fiscally responsible financial geniuses, Monetary magicians. These are things people say about drivers who switch their car insurance to Progressive and save hundreds. Visit progressive.com to see if you could save Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states or situations.
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Well David, on the last episode I really let my separation of powers freak flag fly and shout out. By the way to the listener who sent us an AI created rendition of Drake's Take Care album but featuring James Madison. It was awesome. David, I thought we could maybe continue some separation of powers ranting at the beginning of this episode because I have two different U.S. attorney issues that I've got a bone to pick with. And similar to our Take Care discussion, each one cuts the other way, if that makes sense. So David, in the Northern District of New York, the acting U.S. attorney timed out under the Vacancies Reform act so Attorney General Pam Bondi made that person a special assistant to herself, then designated him the first assistant under the Vacancies Reform act and made him acting U.S. attorney again. Okay, that's story number one. Story number two, in New Jersey, Alina Haba also timed out of her 120 days under the Vacancies Reform Act. The court appointed her, her first assistant to serve as acting U.S. attorney. And Bondi fired the first assistant and reinstated Alina Haba as acting U.S. attorney. And I just feel like if you're out there and you're reading any of these stories, you're like, what is happening? What is this? What are these shenanigans? And, David, we've talked about the Vacancies Reform act before. This was intended as a limit on presidential powers. I think it's like a 1996 law. But it reminds me a little bit of how that Emergency Tariff act, whatever it was called from the 70s, like the Nixon era one, was also meant to limit presidential power. And now the president's like, it gives me power to set tariffs. Wee wee pew, pew. That is sort of how we've ended up at the Vacancies Reform Act. So with those two stories in mind, I wanted to back up, read to you a little bit of the Constitution, a little bit of the Vacancies Reform act, and then talk about why the whole fricking thing is unconstitutional in both directions. Okay, so first text of the Constitution, where we always must start. Open your hymnals to Article 2. The President shall have the power by and with the advice and consent of the Senate, to make treaties, do some other stuff, and appoint all other officers of the United States. Okay, so to appoint an officer of the United States, you must have the advice and consent of the Senate. U.S. attorneys are just. We don't even need to get their officers of the United States. Yes, there's inferior officers. That's how other appointments would happen at the Department of Justice. You don't need advice and consent for those. But let's just take my word for it. US Attorneys need to be Senate confirmed. Okay, but, David, we do have a problem here of, like, a new president comes into office, nobody Senate confirmed from his administration. What are you supposed to do? This Thus entereth the Vacancies Reform Act. And when it comes to U.S. attorneys, there's a few options here. One, the first assistant. So the first assistant is considered an inferior officer. The U.S. attorney picks who their first assistant is from career staff in the U.S. attorney's office. It is not a political appointment. So the first thing that the Vacancies Reform act says you can do is pick a first assistant. Uh, the Second thing is, and we talked about this before, it's like someone who's been in the department for 90 days and is of a certain pay scale, GS15 or higher, or someone who's Senate confirmed for some other position. We'll call that like the Catch All Bucket two, not relevant to our discussion today. But what's very relevant to our discussion today is bucket number three, which says you can appoint like that first assistant or whomever, like, for 120 days. After the 120 days, the district court for such district may appoint a United States Attorney to serve until the vacancy is filled. The order of the appointment by the court shall be filed with the clerk of the court. So Congress said that after 120 days, you know, the president gets 120 days of his person doing, you know, whatever. But after 120 days, it's up to an Article 3 court to decide who the acting U.S. attorney will be for the rest of the time until the Senate confirms someone. So let's go back to our stories again. Number one, in the Northern District of New York, the acting U.S. attorney who was put in for those 120 days ran out of 120 days. The district court refused to pick him as the interim U.S. attorney. So then the Attorney General made him special assistant to herself, designated him the first assistant under the Vacant Seizure Reform act, and put him back in. Okay, and then the second one again, Alina Haba timed out in New Jersey, the court appointed her first assistant. Bondi fired the first assistant and put Alina Haba back in. They're actually somewhat similar stories. But David. But David, this is silliness. So I want to talk about the silliness first and then what it would have to look like to be constitutional in my view, which we already know is like this most extreme separation of powers view that nobody else seems to share. And 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 and Game of Thrones, like the White Walkers shall not cross. So, David, give me initial thoughts, feelings, reactions, and unconstitutional delegation of powers.
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Yeah, well, I don't think you have to be an extremist to say that district judges don't have nominating power. So I don't think that that is crazy or extreme at all. I mean, this is the Constitution gives the power to the President. The advice and consent is with the Senate. The court is nowhere in this process. So this strikes me as extremely Constitutionally suspect. I really, truly have a hard time seeing the current court upholding this if challenged. So delegating the conflict advice and consent function at all, at all. Unconstitutional. Delegating it to courts who choose their prosecutors in cases. No, no, no, no, no, no. So I don't think there is a hint of extremism in your position there, Sarah.
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So just to like break this down, we agree that the administration basically rejecting the court appointed after acting US Interim. Weirdly, when the president does it, we call it acting, and when the court does it, we call it interim. So the administration rejecting the court appointed interim U.S. attorney and firing that person, you think thumbs up like that is actually a constitutional protection of the separation of powers.
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Yeah, I, I, I completely agree with that. Now, now the endless rotating of interims or actings. Well, we can get to that. So how long can you go without a senate confirmed position filled by a non senate confirmed individual? So to me, that's also, you know, a question that's equally not extreme at all to say that the answer is you cannot do this. You can.
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Yes. Oh, okay. You don't feel a little extremist right now? Because I do, but I like it.
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C
No, no, no, no, no. It's nothing crazy like the Congress cannot create a Department of Education. Like, what is even that?
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Okay, so here we have the, let's call it the Executive branch. It is. But like the executive branch rejects the Vacancies Reform act as far as the court appointing an acting U.S. attorney. And I'm like, yes, that was an unconstitutional delegation of power. So you can fire then that acting interim U.S. attorney that was appointed by the court. I hope it gets challenged. I think you're exactly right, David. I think this Supreme Court would say absolutely. Nah dog to that. At the same time, this administration, this executive branch is doing end runs around the Vacancies Reform act. And at least according to, you know, the latest news, this is from the Deputy Attorney General, Todd Blanche. Pursuant to the President's authority, we have removed that deputy, the interim acting U.S. attorney, effective immediately. They are saying they have put back in Alina Haba pursuant to that authority. What? You have no inherent authority to appoint officers of the United States without the advice and consent of the Senate. Zero. So they're protecting the executive branch prerogatives in example one against the court, you know, Congress delegating to the court. And then they're absolutely violating the Congress's core constitutional duties in example 2 by saying pursuant to the President's authority, we're just reinstating a non Senate confirmed acting U.S. attorney. And very practically, David, like these can quite easily get challenged because anyone who is now prosecuted by either of these US Attorneys in the Northern District of New York or in New Jersey can simply say that their prosecution is void because the U.S. attorney was not the U.S. attorney.
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C
We're playing a game of chicken here with the, with the system of justice. And look, the Trump administration has a consistent position and the consistent position is we get to do what we want and the law sometimes supports them and sometimes it doesn't. But they're always pushing, always pushing. So when they say, hey, I get to nominate a U.S. attorney, they're right. They're right. The district judges should not get to nominate a U.S. attorney. So this is one instance where the administration saying I get to do what I want is correct. But then to sort of say I get to endlessly have a U.S. attorney without a Senate confirmation, no, you may want that. You don't get that. And I think that this is one thing that's a theme obviously in this second Trump term so far. And, but people need to realize sometimes when Trump is saying I want to do X or Y, he's right that he has the power to do it. Setting aside the wisdom of it for a moment, he does have the power and sometimes he doesn't. And I just wish we would analyze it in that circumstance, not in. Well, every time the court says Trump has the power, it's giving in to Trump. No, no, no. Sometimes the Trump administration is correct in its legal arguments. And so therefore it should win. And there are instances in which it's pushed for greater executive authority. There are areas in which it's correct. I think by and large it's incorrect. In general, in its thrust it's incorrect. But in the specifics, sometimes it's right.
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Well, yeah, if the thesis is we get to do what we want, that's incorrect. But there are just going to be specific incidences where what you wanted to do was correct because Congress unconstitutionally delegated its powers to an Article 3 court, which is insane. Okay, So I think lots of pieces of the Vacancies Reform act, like maybe all of it, but at least large chunks are an unconstitutional delegation of the advise and consent power either back to the President or to the courts. I think both of those are no gos, even when done on a temporary basis. So Congress says, hey, you know what, it's going to take us a while to do this. You have 120 days to not have an advice and consent person. But that person can wield all the powers of A Senate confirmed U.S. attorney. Mr. President, I think that is a non delegation problem. They are delegating for 120 days their advising consent power. And then of course after the 120 days saying that a district court can do it is like Bonkerstown. Non delegation problem. But in both situations Congress is trying to give away its advise and consent power to the other two branches, just depending on how many days it's been.
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C
The most boring but the most interesting. Well, let's let me put the most boring but the most potentially impactful kind of book or analysis would be how many core powers has Congress given away and in which statutes? Because how much of advisory opinions is about that? I mean immigration, yeah. Tariff authority, war declaring, war making war declaring authority here, appointment authority. It's just authority after authority after authority after authority Congress has willingly given away. And the average American just I don't think can even grasp what a government would look like where Congress was taking the lead. And have we seen that? And I've seen it in my lifetime, but I think I was five years old, that was 1974. Post Watergate, Ford was much weaker than Congress. But ever since then, I don't know have I ever been. Certainly not in my adult life where Congress is first among equals. I don't think we can just conceive of it.
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Let's do some fantasy Congress, David. Let's get, get rid of the Vacancies Reform act and talk about what we think the constitutionally appropriate way it would work. When a new president comes into office, has just been sworn in, who is supposed to wield all of these powers? There are 93 U.S. attorneys, 94 districts, oddly enough for those fact checking me at home. But one U.S. attorney covers two districts. So there's nobody holding all of these positions. There's a lot of officers of the United States, I mean cabinet positions, U.S. attorneys, U.S. marshals, and I'm just doing DOJ at this point. So if we don't think that you can delegate for 120 days the advising consent power and certainly not after that to Article 3, how do we think it should work? And I have ideas, David, and people aren't going to like them.
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C
I want to hear yours because I've got one I don't think anybody's going to like.
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I love this. Okay, bad idea factory here at Advisory Opinions. So remember all of the powers of the officers of the United States derive from the President. So think of like the President being sort of the sun and all the little planets circling him. So on the day the President takes office, all of those powers are still within the President. He has not delegated any of those powers, you know, in the 30 seconds after he has been sworn in. Yep, I think that's just how it stays until the Senate confirms people, the President.
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C
So he is the U.S. attorney.
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A
Correct. Now, he can take advice from inferior officers who say, you know, I think we should prosecute this person. I think we should prosecute this. I need you to sign this. Heck, I think they can use the auto pen, David. But until those powers have been delegated to an officer of the United States, which by definition means that person has been confirmed by the US Senate, the powers never moved. The power has to have remained with the President of the United States. And yes, that will make the whole thing a bit trickier because the President's not going to want to do all of that or, you know, have a bunch of people putting stuff in front of his face and be like, can we auto pin this? Can we auto pin this? How about this? How about this? Can I prosecute this person? And I think it will make that nominations process. It will make the President want to nominate people who will get swiftly confirmed, and it will make his friends in Congress want to move quite quickly on those nominations as well. I mean, some of our problem here is with the bureaucratic malaise of the Senate as well and the roadblocks they've thrown up for themselves on the advise and consent process. So I think that if you actually followed the constitutional, my, you know, great wall of separation of powers, the inconvenience of it would be its own forcing mechanism. But I also just think, forget the practical, you know, necessities. I just think I'm right. On the Constitution, the powers are with the President until the Senate has confirmed someone to whom he can delegate those powers.
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C
Sorry, here's mine. You cannot replace a Senate confirmed individual without another Senate confirmed individual. So therefore, holdovers stay until Senate confirmation of replacement, period.
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Oh, David, I'm so glad you said this. I want to read the top section of the Vacancies Reform act when it comes to acting officers to give you more ammunition for this point as you continue. If an officer of an executive branch agency whose appointment to office is required to be made by the President by and with the advice and consent of the Senate, if that person dies, resigns, or is otherwise unable to perform the functions and duties of the office, then you get to all of the VRA Vacancies Reform act options. You know, the menu available. So the question is, do you think, you know, dies, check. Resigns, check. Or is otherwise unable to perform. The administrations of late have argued that if you're fired, you're otherwise unable to perform the duties. And I'm like, that catch all does not include firing. Or else we would just include that.
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C
I would say this is the controversial part. Dies, check. Is otherwise incapacitated. Dies. Or is otherwise incapacitated, period. And so resignation can only be effective upon confirmation of your successor. So you can resign, you can declare an intent to leave, but your resignation can only be effective upon the confirmation of your successor. So it'd be a form of conscription, Sarah. It would be a form of conscription, yeah.
- [20:54]
A
Wow. So this person gets an awesome new job. They can't go take that job until someone's confirmed. What if that awesome new job is as a judge? And what if they get confirmed as an Article 3 district judge?
- [21:07]
C
Gotta wait. Gotta wait. They're conscripted. And think of the incentive. So all of a sudden you have a lot more incentive to fill these positions. Maybe even more incentive than your. Than, you know. Because, I mean, in theory, if Marco Rubio is elected president, he could perform all of these functions without appointing anybody. Because, I mean, how many jobs does he have now? Five or six? But no, it's the you that. What I would suggest would mean that a incoming administration would have this very, very, very urgent task to fill these positions and not leave them lingering and lingering and lingering. But like I said, I'm not sure anybody would like that. I can see some obvious flaws. Like what if you are the president and you are coming in with a hostile Senate? We've had a lot of presidents more recently coming in with a friendly Senate. But if you come in with a hostile Senate and they just decide we get to keep our people, we would have to deal with that possibility. But as a general matter, I think the default rule has to be Senate confirmed positions can only be be filled by Senate confirmed people.
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A
Yeah. So I agree with that. I just. You. You lose me at the conscription. So I read, dies, resigns. Dies resigns or is otherwise unable to perform means that firing the person does not open up a vacancy that you can then fill with an acting. So you can keep the holdover, or you can bring those powers back up into the president because they will no longer be delegated. So you can fire the person. I do not think you have to keep holdovers, but the power then doesn't stay with some other rando in the office. Sorry, all you first assistants. I know you're not randos but you know is what it is. All right, well I think either any of these solutions are better than the current solution which is just such an obvious non delegation problem. I look forward to any of the people being convicted of crimes in the Northern District of New York or New Jersey Bradford bringing a challenge to their convictions. This will put at risk. I can't tell you how many convictions, David. Gazillions. Gazillions of convictions at risk. And the administration knows that and is fine with it because again, to your point, David, I do think that there are people in the administration who maybe we disagree with them on that overall philosophy of the executive branch gets to do whatever it wants. But they do take seriously the separation of powers. They define it differently than I do. But like yeah, they're willing to put at risk these convictions for the purpose of getting the VRA at least line itemed from the courts in terms of some of the non delegation problems. All right, when we get back, we have some amazing circuit court decisions to discuss, including one circuit that decided to follow a Justice Jackson concurrence. Let's see where it leads.
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A
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C
Yeah, I actually love this thought. And I love this thought experiment. So the thought experiment is, okay, we keep saying Congress needs more power. Congress needs more power. A lot of people are saying Congress needs more power. But it feels as if the inexorable forces of American politics have put us in a position where this is just something people say. It's so impotent in the real world that it's almost like a form of constitutional virtue signaling like, look, I'm a good person. I say Congress needs more power. But that immediately divorces me from the real world where the President has the power. And I think there's a lot of truth to that, sadly, because 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. And I don't know how you change that culturally, politically, much less constitutionally. And so the question becomes, what about do we need to intervene? Would there be a need to intervene for the people to intervene to set this right? And how, what would that look like? And I think that that is a fascinating idea that you take the vesting clause and the vesting clause says the executive power shall be vested in a President of the United States of America. So the executive power. So we have an enormous amount of argument about what is this executive power. And Sarah, you've staked out one position. The executive power includes the power to ignore the creation of an executive cabinet level agency. That's one level of it. But what is it? What is the executive power? It's not a self defining term. And so you can pour a lot into that, a lot of argument, contention, debate, et Cetera. But what if it was? The power to execute the laws passed by Congress is vested in a President of the United States of America. In other words, what is vested in you is essentially something along the lines of the way Yuval Levin has explained the presidency. The President is the steward of the laws passed by Congress. How do you make that explicit? Well, one of the ways you make it explicit is by writing it down in the English language. And I don't know, Sarah, I think that would restrict the President pretty dramatically. And you might have to add some enumerated authority on top of that to sort of COVID some gaps. But I'm super intrigued by that idea and I wanted to run it by you.
- [28:53]
A
I think that that change, I'm for it. Like, I. I'd vote, I'd ratify that amendment. You know what I mean? But I don't think the reason we got to where we got is because of the vesting clause not being phrased correctly. We got here because the President wanted the power and Congress didn't. And so I do think there has to be a will to change this and then an amendment alone. I mean, what's funny is that like, to have the will to ratify the amendment means we'd have the will to have the proper separation of powers to begin with. Probably so, like chicken and egg problem here.
- [29:35]
C
But only for a time. But only for the one beauty of an amendment is you can ride a wave and make a change that lasts forever as opposed to if you have a short burst of congressional energy. Like what post Watergate, that can fade. But what lasting legacy do you leave?
- [29:53]
A
Fair enough. But I do think that we have a more fundamental problem. It's the same reason I don't think we're ratifying that amendment tomorrow, which is Congress doesn't want it. So to get to the first part of the question, are we too far gone? I don't think so. But I do think we need the Supreme Court to. You know, I've compared it to releasing the wolves back into Yellowstone. I do think we have to simply strip power from the President and, you know, strike down laws like the Vacancies Reform act and then wait and stare at Congress awkwardly.
- [30:30]
C
Yeah. And almost what you're saying is it is like, okay, start the game of chicken. In other words, take the power away, create the power vacuum, and then say to the president, you can't fill it. You can't fill it, and then let the power vacuum run its course. In other words, create the conditions on the crown that create the outcry for action and then just keep staring at Congress and make Congress either do it or not. And if they don't, the crisis amplifies. And if they do, they deal with it. That's a very interesting. I think that in many ways that is what the Supreme Court is doing. You know, so for example, in in Loper Bright, it has created a particular power vacuum and is creating some specific power vacuums. Now Congress isn't. They're not power vacuums so urgent that Congress has to act right now for the system to keep going. But that is a very interesting approach. Just create the vacuum and only permit Congress to fill it.
- [31:35]
A
All right, let's talk about Vulo. David Vulo revisited. This was the supreme court case from 2024 in which the New York superintendent of the Department of Financial Services was found to have violated the First Amendment rights of the National Rifle association by basically sending a letter to all of the potential insurance companies and financial institutions saying, like, gee, it'd be really sad if something happened to your financial institution if you kept doing business with the nra. Sotomayor wrote the opinion for the court. It was unanimous. There was a concurrence by Justice Jackson. And the concurrence basically said coercion is not the same as a First Amendment violation, that coercion is how the government might violate someone's First Amendment. But that you need to look at censorship and retaliation. Censorship is, let's call it the before you say the thing, they prevent you pre publication from saying what you want to say. Retaliation is you said the thing and then the government punished you for saying the thing. And so Justice Jackson is walking through how one might want to look at this case on remand. Well, David, we have the Second Circuit on remand deciding, what have you won? National Rifle Association. The Supreme Court said that this government actor violated your constitutional rights, and the Second Circuit held that qualified immunity, no big deal. Let's move on. It was not clearly established. But what's fascinating is they used Justice Jackson's concurrence to get there repeatedly and the whole time. And this made me think of two things, David. One, first, our conversation about Justice Jackson. Right. I had a conservative lawyer friend write me and said, I've caught hell a couple times in the last few weeks because I pushed back against conservative friends who keep downplaying Justice Jackson. Justice Jackson is smart and she's approachable and she has enormous charisma. And she has an entire generation of law professors and journalists who will help her build out the intellectual infrastructure around her jurisprudential instincts. The fact that she doesn't want to accept our side's premises and she'd rather debate these issues with her own preferred vocabulary does not make her dumb. Conservatives are crazy to downplay her, let alone insult her.
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C
Yeah, that's so correct. That is so correct.
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A
And so, David, I mean, this is my take over and over again. Like, it is easy to write people off as dumb or one dimensional when you disagree with them a lot. Like when you're just speaking different languages, it is very hard to grapple with them on their own terms. And I think that is the conservative movement's problem with Justice Jackson right now. You know, she's still new on the court. We don't have some treatise from her on her jurisprudential worldview yet. So there's like a practical reason that I think the conservatives are having trouble grappling with her worldview because we don't have all the contours of it yet. But there's another reason, which is they don't wanna. It's much easier to just say she's dumb. That's dumb, the whole thing's dumb, than actually, like, get into the nitty gritty. Okay, so that's number one. Number two, this is a. This is the true problem with concurrences that you now have a lower court not really following the majority, what, nine justices signed onto. You have a lower court going line by line through an opinion that one justice signed on to and 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. And if I can read the line that I find a little bit, you know, eye rolly, to be honest. The NRA also alleges that Vulo engaged in unlawful retaliation when she pursued investigations and enforcement, enforcement actions against the NRA's business partners. But again, qualified immunity is proper here because the nexus between the alleged retaliation and the alleged eventful infringement of the NRA's First Amendment rights is too attenuated. Specifically, although they repeatedly allege that Vulo retaliated against the NRA for its speech activity, the reality is that they allege only that Vullo punished the NRA's business associations to punish the NRA for its speech. The route from alleged retaliation to eventual infringement is thus circuitous and indirect and insufficient to have put Vulo on notice that her acts would violate First Amendment rights. @ the time of Vulo's conduct, no precedent had clearly established that indirect retaliation of the kind at issue here in this case was unlawful at most. Our existing retaliation cases had addressed only instances in which a defendant retaliated directly against the plaintiff and for the plaintiff's speech activity, whether by actively punishing or passively refusing to do something for the plaintiff. What?
- [36:59]
C
I mean, you know what this case feels like, Sarah? It feels like if you one at the court of appeals, but then are reversed by the Supreme Court and then the court of appeals is reversed by the Supreme Court, the mere fact that you won at the court of appeals just makes it not clearly established, like, hey, you, you won previously. And then the Supreme Court reverses us how? That, of course, that had to be ambiguous, right? That had to be ambiguous. And so this is, this is the issue with qualified immunity. And look, it's been a while since I've ranted about this in the Second Circuit. If you read the lower court opinions in Vullo, what you saw was that the 2nd Circuit had previously said coercion is inappropriate, but granted qualified immunity against coercion. Okay? Now it says, again, coercion is unconstitutional, but again grants qualified immunity as to the actual acts of coercion. And the reasoning seems to be, well, we didn't say this specific kind of core, this very specific kind of coercion was coercion, but the general principle, no, coercion is just not enough. It's gotta be, I have to show from the case law, very specific, very similar forms of coercion. And that's what you get into the how many angels can dance on the head of a pin? Kind of arguments when you're comparing different angels forms of state misconduct. I mean, there was a case in the sixth Circuit where you actually had. Wait, wait, we have a prior opinion dealing with a dog attacking a surrendering suspect when the surrendering suspect is prone. Is that the same thing as a dog attacking a surrendering suspect when the surrendering suspect is on their knees like, what are we doing here? And so, yeah, this is what qualified immunity is. It is angels dancing on the head of a pin. And it is almost infinitely malleable for a court to determine what's a close enough match and what is not a close enough match. But can I circle back to the Justice Jackson email that you talked about? Because that was so rich with good content. And there was one part of that that I thought was brilliant, and it talked about how we are denigrating somebody who has got a legal philosophy that does not establish, that does not start from our starting premises. And so that because we are working with a philosophy that is several steps down the line of some specific starting premises, and she is several steps down the line from different starting premises. We don't view her as having a different philosophy. People just kind of dismiss her as, you know, ridiculous or unqualified or whatever. And you know what this reminds me of, Sarah, I was thinking about this, and we've talked about this a little bit, but constitutional debates remind me a lot of theological debates. And you often have the same intensity around constitutional debates as you have around theological debates. And they both suffer often from the same malady, which is often people walk in to a theological debate presuming that everyone should have adopted their starting principles. So, for example, arguing with somebody who believes in the inerrancy of Scripture about what a piece of Scripture means is very different than arguing with somebody who does not believe in the inerrancy of Scripture as to what particular Scripture means and how it should apply to your life. And so you've got just different scriptures starting positions. And I think that that's very true in constitutional philosophy is often people start with very different starting presumptions, different starting positions. And once you have that different starting position or presumption, you're going to go in a different direction and the right way to argue with that person, you have to pull all the way back, often to the starting presumption, because that's where the divergence really occurs. Anyway, I just thought that it was just interesting because I've been seeing a lot of the. My newsletters about some religious controversy ripping apart the Christian side, the evangelical side of the Internet. And it just struck me how much these arguments are conducted on the basis of different starting presumptions. And the same with constitutional philosophy. So, sorry, digression.
- [41:36]
A
Uh, I wanted to talk about another case from the Second Circuit, another revisit for us. This is United States v. Mackie and David. You'll remember this one because it was that guy who was putting out on social media that, like, you could vote for Hillary Clinton in 2016 via text or by, you know, clicking your heels three times and stuff, and basically trying to trick Clinton voters into not voting by lying to them about the process of voting, or, like, you know, we've seen this before, and like, you can vote on Wednesday, you know, the day after the election, stuff like that. He got convicted under section 18 USC241. It's basically conspiracy to violate civil rights when two or more persons conspire to injure, oppress, threaten, or intimidate any person in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States or because of having so exercised the same. We talked about this case, David, and we talked about the sort of substance of whether the social media posts would meet that standard. And you and I both thought that they did and that they would be upheld. But we missed an important part of the statute in analyzing the case. And I gotta tell you guys, that conviction was overturned. Can anyone spot why two or more persons. A conspiracy has to have multiple people. And the government, according to this unanimous panel, naw, dogged that really hard and basically said like, there was not evidence such that a reasonable jury, any reasonable jury, could have found the essential elements of the crime beyond a reasonable doubt. Basically, the government had shown that he had been a member of a message board where at one point, weeks earlier, someone had like, floated something similar to this idea. There's no evidence he ever saw it, certainly no evidence he was acting in concert with them, yada yada. Now, David, this does raise an interesting problem though, which is like someone is inspired by sort of, you know, bad ideas they see online. They're acting on it. Basically. This holding is. That is not conspiracy.
- [43:55]
C
Yeah, when I think that's the correct holding. And by the way, this is just a great reminder, Sarah, as if we need more of them, that we are fallible podcasters and that fallible podcasters can tunnel vision on their areas of interest. So in this case, our area of interest was could text messages be a crime? Could you commit a crime by texting out? Or could you commit a crime by putting out this false information? That was what was most interesting to me at least, was this question didn't even really think to just ask the very elementary question of could they even prove the conspiracy element before we even got to the messages themselves. And so, yeah, I have no interest in defending this guy on a moral basis in any way, shape or form, form. But this strikes me as a super plainly correct decision by the court of appeals that if you're going to charge a conspiracy, there should be a conspiracy.
- [45:01]
A
Whoopsie. All right, David, when we come back, we will be discussing whether students have a right to have critical race theory or whatever people think CRT stands at this point for in schools. Mama papa, mi cuerpo crece a un ridmo alarm. So, David, here's our 8th Circuit case. Two students alleged that an Arkansas law violated their rights under the first Amendment's free speech speech clause because they claim it prohibits their teachers from providing classroom materials and instruction about critical race theory. Concluding the law likely violated the student's rights to receive information, the district court entered a preliminary injunction in favor of the students. But here we have the 8th Circuit not dogging that. As they say, the students concede the classroom materials and instructions they seek to receive constitute government speech. Speech. This is fatal to their likelihood of success because the government's own speech is not restricted by the free speech clause. So it is free to choose what to say and what not to say. Citing our Boston City Council case about the flag flying. Since the free speech clause does not give the students the right to compel the government to say something it does not wish to, they cannot show a likelihood of success. So we vacate the injunction. So, David, this is a right to receive information case. And there are right to receive information cases from the Supreme Court that are, I will acknowledge, a bit jarring to me like that the government violates the first Amendment when it refuses a visa to a person who is going to give a speech to a group of Americans that they have the right to receive that information. I've always found that case pretty nuts. Here's the 8th Circuit. We do not minimize the student's concern, whether in this case or in the abstract, about a government that decides to exercise its discretion over the public school curriculum by prioritizing ideological interests over educational ones. But the Constitution does not give the courts the power to block government action based on mere policy disagreements. The right to receive information cited by the students in support of the preliminary injunction does not authorize a court to require the government to retain certain materials or instruction in the curriculum of its primary and secondary public schools, even if such information was removed for political reasons. Since the speech belongs to the government, it gets to control what it says. I mean, David, I think this is just legally. Right. I'm curious if you do, but I think it should give us pause. I mean, this is the point about, like, the courts, the conservative movements, the conservative judges, I guess, direction being republicanism, small R Republicanism, that these are policy fights. Go fight in the political arena. So on the one hand, I think the court is maintaining its proper role. On the other hand, it should make us uncomfortable because we are the political arena. Are we having this fight correctly? Are we incentivizing the proper behavior? But I do think it is a political fight at the end of the day.
- [48:20]
C
Yeah, I do think that there is this concept of a right to receive information. This is deeply rooted in the philosophy of the first Amendment. So if you have the Frederick Douglass A Plea for free speech in Boston, 1860, greatest sort of single essay form defense of free speech talks about this right to receive information. But when I say philosophical basis of the First Amendment, I talk about sort of the philosophical basis. What is a free speech culture.
- [48:51]
A
Now.
- [48:51]
C
On the legal side of things, I think the courts are in this position that is something like this. Sarah, in the specifics of any given case, it's going to be really hard to find a actual right to receive information that we're going to legally recognize. However, if we say there is absolutely no right to receive information, the downline consequences of that could be pretty terrible. Would you want a situation where a racist school board said there will be no books by black authors in the library? There are. Or there will be no books by women and no textbooks by women in the classroom? Like that kind of blanket, and this goes back to the Pico case that we talk a lot about, is they sort of drew that out as the hypothetical that would really trigger this right to receive information. Like no books by Democrats, no book by black authors, no books by Republican authors that would, that would trigger this. But short of that, short of sort of this very blanket, you can't have any of X category of information. And I mean large categories of information. I just don't see these succeeding. And so I think this case reminds me very much of the 11th Circuit case that we talked about, the pronoun case, in the sense that it is the right result according to the case law. I, I and I've said this from the beginning of the anti CRT laws. The challenge to the anti CRT laws in secondary education is going to, as a general matter, fail unless they're just written so poorly that they're going to be held void for vagueness. But they're just going to fail because of the incredible strength of government speech in secondary education. But this is also some of the poisonous fruit of the Garcetti tree, because all speech in the classrooms now is government speech. Essentially, if you're clothed with the authority of the state, all speech is government speech. So now the state has this ability that it didn't have pre Garcetti, which is to overcome even your ability to speak on matters of public concern so long as you're working. And that expanded government power over speech, over teacher speech dramatically. And then at the same time you have this sort of weak hovering somewhere in the background, right, to receive information that probably is only going to really rear its head in a protective way if somebody just Goes hog wild on suppressing information. And so you now have really, I think, more state control over what happens in the actual classroom con context than any time in my adult lifetime. It's one area where sort of the culture of free speech, the way in which the law is shaping the culture of free speech, has been really constricting as opposed to liberating.
- [51:54]
A
All right. Last circuit decision that I wanted to talk about today, David, comes from the 6th Circuit. And this was a right to direct your child's medical decisions case kind of. I mean, you had to squint, but. But, you know, they made the argument. So. Michigan's newborn screening program began in 1965 to test infants for diseases and health disorders. Michigan department of health and human services oversees the program, requiring medical personnel to prick the heel of every newborn within hours of birth and collect five or six blood spots on a filter paper known as a dried blood spot card. Very creatively named there. Right. In addition to the blood, the card also has demographic information about the baby and the mother. They test the blood spots for over 50 medical conditions, and every year, it diagnoses more than 250 newborn Michigan babies with one of those rare disorders. After the initial screening, they retain one blood spot at the laboratory for potential future use by the child or the family. That is, until this litigation, pursuant to a consent judgment entered into with the plaintiffs, they stopped this practice and destroyed the stored blood spots. They have transferred and continue to transfer the remaining four or five blood spots to defendant Michigan neonatal biobank, a nonprofit. The cards stored at the biobank have no identifying information and are instead given a numeric code that corresponds to a demographic information in the electronic database. Okay, so they can only use that for three reasons. One, validating the accuracy of its newborn screening tests, methods and instruments. Two, permitting third parties to access the anonymized blood samples for medical and public health research. And three, crime victim identification if granted permission by a family member or pursuant to a warrant or subpoena. So, David, does this violate parental rights? And does it violate the fourth amendment? And a unanimous sixth circuit with nominees from many different presidents? Nope. No problem with this screening. But, David, I gotta say, like, I don't know, when I read the facts, I was kind of like, ooh, okay.
- [54:19]
C
I think the way the court framed it is parents get to direct the medical care of their children. And is the retention of this blood sample medical care? I mean, I think it's correct. No, this is not medical care in that kind of very specific instance. But it seems like you are sort of more making a privacy case, right, more so than a parent's rights case, more than of a privacy interest here.
- [54:51]
A
You're right. The 6th Circuit said this doesn't constitute medical care of the specific children because there's no treatment going on. And two, it's not a fourth amendment problem because it doesn't constitute a search because they don't seek to obtain information about the specific children. And it's not a state seizure because the parents didn't have possessory interest in the blood spots. Okay, so let's break this up because I think the initial prick on the heel is medical care and I think the parents would have a right to decline that prick on their child's foot, as silly as that sounds. And as much as I would never decline that, you know, you're opening up the child's blood to potential infection. I mean, it is a medical treatment. Sorry. And so like I do think you should be able to decline the pin prick if you want to. I think you'd be stupid to do it. But that does seem like medical care to me. It also seems like a fourth amendment problem. They are looking to obtain information about that specific child. That's why they're doing the pinprick on the heel now that is different than the blood spot spot card in its retention because I think these parents of course want the pinprick to find out if their kid's okay. They just don't want it being retained. I will tell you, I'm squeamish about both. So as I said, like I think you can decline the pinprick now on the card. I agree that's not medical care. There's no argument for it being medical care. Sorry, that's a non starter. But that is the government keeping records about you. Whether at this moment they are attached to your name or not, they are nevertheless vital and very much identifying information about you because that's your DNA. Now, they're not keeping it for that purpose right now, but I just don't know that the fourth amendment should be a purpose based test. But maybe you're right. Maybe I'm making more of an unenumerated privacy right claim and I'm just going to fail. I'm going to founder on the shores of the unenumerated rights.
- [56:59]
C
Yeah, it does feel a bit unenumerated. It has a whiff of unenumeration attached to it. But you know, it is an interesting question. So the fourth Amendment doesn't prohibit searches and seizures. It prohibits unreasonable, you know, it's one of the few elements of the Constitution that really quite explicitly invites kind of judicial judgment, is this unreasonable? And I think that that's where in my view, this case would founder. Not that it isn't a search, not that it isn't a seizure. I mean, it seems to be like, by the plain definition of the word seizure, you are taking something here, right? So it does seem to be a search. It does seem to be a seizure. They are searching for, you know, especially in the initial pin prick, they're searching for diseases, they're seizing the blood. It's the unreasonable part of it. That, that really is where I kind of founder because it strikes me as the very definition of reasonable. However, is there a hovering unenumerated parental right that tips the balance? And that. That's where I think that's the much more interesting question to me is the. Actually the unenumeration of it all.
- [58:19]
A
The unenumeration of it all. The other part of this. Like to argue against my own position here. And again, my position is not particularly well thought out. It's a vibe. It's a vibe position. If, you know, it says it's limited to use to identify victims of a crime. Let's assume that, you know, right, they do have your DNA and that they use that to identify the perpetrator of a crime. You could have that thrown out because they violated, at that point, they violated your fourth Amendment right. Like maybe they hadn't violated when they were keeping the card for research purposes, but the second that they used it for criminal purpose, then it was an unreasonable seizure of your blood sample from when you were a newborn. David, would you get on board with that? You would throw out any conviction based on the blood spot card? Cause then I'm okay with it throwing.
- [59:06]
C
Out a conviction based on the blood.
- [59:08]
A
Now mind you, it violates the statutory authority. So like, you probably already get to throw it out because of that. But forget that for a second. I just mean constitutionally, I think I'm.
- [59:17]
C
I might be. I need to think about it more, but I think I might be with. My vibe is to be with you as the criminal.
- [59:22]
A
You're probably in trouble anyway because like, let's say they use the blood spot card to figure out it's you, but then go find some other evidence that it was you. But they needed to narrow it down to you to go find that other evidence. They're going to throw out the blood spot card and they're going to keep all that other evidence as independent discovery. So you're probably going to jail. Anyway. And I'm fine with that, too, because you did it in this hypothetical that I'm dealing with. But I'd like them to throw out the blood spot card.
- [59:49]
C
I'm vibing with you. Yes, yes, I'm. I'm. As long as we're like this is viable jurisprudence.
- [59:57]
A
Sorry, Professor Kerr, who's, I'm sure, banging his head against a brick.
- [60:01]
C
He's yelling at us. This is worse than the text message conspiracy case, guys.
- [60:09]
A
All right, well, with that, we have some exciting episodes coming up, especially when we get into August. David, you know, we like our special August episodes, and this August will not disappoint. So more to come on advisory opinions. But until then, you know, do. Do some vibes. Theory of justice out there for yourselves. It feels good. We'll see you next time. Sa.